<PAGE>
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------
SCHEDULE 14D-1
TENDER OFFER STATEMENT
PURSUANT TO SECTION 14(D)(1) OF THE
SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. 5)
AND
SCHEDULE 13D UNDER THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. 7)
----------------
JOSLYN CORPORATION
(NAME OF SUBJECT COMPANY)
TK ACQUISITION CORPORATION
DANAHER CORPORATION
(BIDDER)
COMMON STOCK, PAR VALUE $1.25 PER SHARE 48107010
(INCLUDING THE ASSOCIATED RIGHTS) (CUSIP NUMBER OF
(TITLE OF CLASS OF SECURITIES) CLASS OF SECURITIES)
PATRICK W. ALLENDER
TK ACQUISITION CORPORATION
C/O DANAHER CORPORATION
1250 24TH STREET, N.W., SUITE 800
WASHINGTON, D.C. 20037
TELEPHONE: (202) 828-0850
(NAME, ADDRESS AND TELEPHONE NUMBER OF PERSON AUTHORIZED TO
RECEIVE NOTICES AND COMMUNICATIONS ON BEHALF OF BIDDER)
COPY TO:
MEREDITH M. BROWN, ESQ.
DEBEVOISE & PLIMPTON
875 THIRD AVENUE
NEW YORK, NEW YORK 10022
TELEPHONE: (212) 909-6000
-----------------
<PAGE>
CALCULATION OF FILING FEE
TRANSACTION VALUATION* AMOUNT OF FILING FEE**
$234,065,350.00 $46,813.07
- --------
* Based on the offer to purchase all of the outstanding shares of Common
Stock, par value $1.25 per share (the "Shares"), of the Subject Company and
the associated Rights at $34.00 cash per share. The Subject Company has
disclosed to the Bidders that as of August 8, 1995, 7,195,240 Shares and
302,588 options to acquire Shares were outstanding. Outstanding Shares are
therefore assumed to equal 7,497,828, less 613,550 Shares beneficially
owned by Danaher Corporation.
** 1/50 of 1% of Transaction Valuation.
[x] Check box if any part of the fee is offset as provided by Rule 0-
11(a)(2) and identify the filing with which the offsetting fee was
previously paid. Identify the previous filing by registration statement
number, or the Form or Schedule and the date of its filing.
Amount Previously Paid: $44,111.73
Form or Registration No.: Schedule 14D-1
Filing Party: TK Acquisition Corporation, TK Acquisition Corporation
Date Filed: July 24, 1995
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
2
<PAGE>
Danaher Corporation and TK Acquisition Corporation hereby amend and supplement
their Tender Offer Statement on Schedule 14D-1 filed on July 24, 1995 (as
amended, the "Schedule 14D-1"), as set forth in this Amendment No. 5, with
respect to the offer to purchase all of the outstanding shares of Common Stock,
$1.25 par value per share, of Joslyn Corporation, an Illinois corporation,
including the associated common stock purchase rights, upon the terms and
conditions set forth in the Offer to Purchase, dated July 24, 1995, and the
related Letter of Transmittal (which, together, as amended from time to time,
constitute the "Offer"). Unless otherwise indicated, capitalized terms used
herein without definition have the meanings assigned to them in the Schedule
14D-1.
ITEM 3. PAST CONTRACTS, TRANSACTIONS OR NEGOTIATIONS WITH THE SUBJECT COMPANY.
Item 3 is hereby amended and supplemented as follows:
On August 20, 1995, following negotiations between the Company and Parent
from August 18, 1995 to August 20, 1995, the Company and Parent executed an
Agreement and Plan of Merger dated as of August 20, 1995 (the "Merger
Agreement"). On August 21, 1995, the Company and Parent issued a joint press
release announcing execution of the Merger Agreement. Copies of such press
release and the Merger Agreement are set forth as Exhibits (a)9 and (a)10,
respectively, and each is incorporated herein by reference.
ITEM 5. PURPOSE OF THE TENDER OFFER AND PLANS OR PROPOSALS OF THE BIDDER.
Item 5 is hereby amended and supplemented as follows:
The information provided in this Amendment No. 5 under Item 3 is hereby
incorporated by reference.
ITEM 7. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT
TO THE SUBJECT COMPANY'S SECURITIES.
Item 7 is hereby amended and supplemented as follows:
The information provided in this Amendment No. 5 under Item 3 is hereby
incorporated by reference.
ITEM 11. MATERIAL TO BE FILED AS EXHIBITS.
11(a)(9) Joint Press Release issued by Parent and the Company on
August 21, 1995.
11(a)(10) Agreement and Plan of Merger, dated as of August 20, 1995, among
Danaher Corporation, DH Holdings Corp., TK Acquisition
Corporation and Joslyn Corporation.
3
<PAGE>
SIGNATURE
After due inquiry and to the best of my knowledge and belief, I certify
that the information set forth in this statement is true, complete and correct.
Danaher Corporation
By: /s/ Patrick W. Allender
-------------------------------
Name: Patrick W. Allender
Title: Senior Vice President,
Chief Financial Officer
and Secretary
TK Acquisition Corporation
By: /s/ Patrick W. Allender
-------------------------------
Name: Patrick W. Allender
Title: Vice President and
Treasurer
August 21, 1995
4
<PAGE>
EXHIBIT 11(a)(9)
DANAHER AND JOSLYN CORPORATION AGREE TO
DANAHER'S ACQUISITION OF JOSLYN AT $34 PER SHARE
FOR IMMEDIATE RELEASE
- ---------------------
WASHINGTON, D.C, and CHICAGO, ILLINOIS, August 21, 1995. Danaher
Corporation (NYSE: DHR) and Joslyn Corporation (NASDAQ: JOSL) today announced a
definitive merger agreement under which Danaher is amending its outstanding
tender offer to increase the offer price from $32 to $34 per share in cash for
all outstanding Joslyn shares and stock purchase rights not owned by Danaher.
Holders of any Joslyn shares not owned by Danaher after the tender offer will
receive $34 per share in a merger. The transaction has a total equity value,
including the approximately 8.6% of Joslyn's shares already owned by Danaher, of
approximately $245 million.
The directors of Joslyn have unanimously approved the amended Danaher offer
and the merger and recommend that Joslyn shareholders accept the offer and
tender their shares. Goldman, Sachs & Co., Joslyn's financial adviser, has
delivered to Joslyn's directors its opinion that the consideration to be paid to
Joslyn's shareholders in the amended tender offer and the merger is fair to
Joslyn's shareholders.
<PAGE>
"We are pleased with the combination of Danaher and Joslyn," George M.
Sherman, President and Chief Executive Officer of Danaher, said. "Joslyn's
business complements businesses in which we are engaged. Our strong preference
has been for a negotiated transaction, and we are glad to have reached an
agreement with Joslyn."
William E. Bendix, Chairman of the Board of Joslyn, and Laurence Wolski,
Joslyn's Chief Executive Officer, said: "Joslyn's directors believe Danaher's
amended offer is fair to Joslyn's shareholders and is in their best interests.
The price Danaher is paying represents an increase over its original offer and a
premium of 37% over the closing price before Danaher publicly proposed to
acquire Joslyn."
Joslyn's directors have taken appropriate actions to ensure that Joslyn's
common stock purchase rights will not be triggered by the amended offer or by
the merger, and so that certain sections of the Illinois Business Corporation
Act will not apply to the offer or the merger. The amended tender offer remains
subject to the requirement that at least two-thirds of Joslyn's shares, on a
fully diluted basis, are tendered, and to certain other conditions.
Danaher's original tender offer was scheduled to expire on Friday, August
18. The amended offer will expire at midnight, E.S.T., on Friday, September 1,
2
<PAGE>
unless the offer is further extended. Danaher said that 237,134 Joslyn shares
had been tendered as of the close of business on August 18.
Joslyn Corporation, founded in 1902, provides electric power quality,
protection, switch, control and distribution products to the electric utility,
telecommunications and industrial markets.
Danaher is a leading manufacturer of tools, process/equipment controls, and
transportation products.
CONTACT:
Danaher Corporation: Joslyn Corporation:
Patrick W. Allender William J. Rotenberry
Chief Financial Officer Director of Corporate
Development
(202) 828-0850 (312) 454-2921
# # #
3
<PAGE>
EXHIBIT 99.1
================================================================================
AGREEMENT AND PLAN OF MERGER
AMONG
DANAHER CORPORATION
DH HOLDINGS CORP.
TK ACQUISITION CORPORATION
AND
JOSLYN CORPORATION
Dated as of August 20, 1995
================================================================================
<PAGE>
AGREEMENT AND PLAN OF MERGER
TABLE OF CONTENTS
(Not Part of the Agreement)
<TABLE>
<CAPTION>
Page
<S> <C>
PARTIES................................................................... 1
ARTICLE I THE TENDER OFFER............................................... 1
1.1. The Offer........................................................... 1
1.2. Company Action...................................................... 3
1.3. Board of Directors.................................................. 5
ARTICLE II THE MERGER.................................................... 8
2.1. The Merger.......................................................... 8
2.2. Articles of Incorporation........................................... 9
2.3. By-Laws............................................................. 9
2.4. Directors and Officers.............................................. 9
2.5. Effective Time...................................................... 9
ARTICLE III CONVERSION OF SHARES......................................... 11
3.1. Company Common Stock................................................ 11
3.2. Dissenting Shares................................................... 12
3.3. Purchaser Common Stock.............................................. 13
3.4. Exchange of Shares.................................................. 14
3.5. Employee Stock Options.............................................. 17
3.6. Adjustment of Merger Consideration.................................. 19
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF
THE COMPANY................................................. 19
4.1. Organization........................................................ 19
4.2. Capitalization...................................................... 21
4.3. Authorization of this Agreement;
Recommendation of Merger.......................................... 22
4.4. Consents and Approvals.............................................. 24
4.5. No Conflicts........................................................ 25
4.6. Compliance.......................................................... 26
4.7. Financial Statements and Reports; No
Undisclosed Liabilities........................................... 27
4.8. Offer Documents; Proxy Statement; Other
Information; Schedule 14D-9....................................... 28
4.9. Employee Agreements and Plans....................................... 30
4.10. Absence of Certain Changes......................................... 33
4.11. Litigation......................................................... 34
4.12. Taxes.............................................................. 34
4.13. Environmental Matters.............................................. 35
</TABLE>
i
<PAGE>
<TABLE>
<S> <C>
4.14. IBCA Sections 7.85 and 11.75; Board
Approval; Shareholder Vote....................................... 38
4.15. Rights Agreement................................................... 38
4.16. Finders and Investment Bankers..................................... 39
4.17. Offer Conditions................................................... 39
ARTICLE V REPRESENTATIONS AND WARRANTIES
OF THE PARENT, DH HOLDINGS AND
THE PURCHASER.............................................. 40
5.1. Organization........................................................ 40
5.2. Capitalization...................................................... 41
5.3. Authorization of this Agreement..................................... 41
5.4. Consents and Approvals; No Violations............................... 42
5.5. Offer Documents; Proxy Statement; Other
Information
5.6. Financial Ability to Perform........................................ 46
5.7. Finders and Investment Bankers...................................... 46
ARTICLE VI COVENANTS..................................................... 47
6.1. Conduct of the Business of the Company.............................. 47
6.2. Access to Information............................................... 51
6.3. Shareholder Approval................................................ 52
6.4. Reasonable Efforts.................................................. 54
6.5. Consents............................................................ 54
6.6. Public Announcements................................................ 55
6.7. Consent of DH Holdings.............................................. 55
6.8. No Solicitation..................................................... 55
6.9. Indemnification; Insurance.......................................... 57
6.10. Employee Benefits; Severance Agreements and
Plans............................................................ 61
6.11. Stock Options...................................................... 64
6.12. Transfer Taxes..................................................... 64
6.13. Anti-takeover Statutes............................................. 65
6.14. No Amendment to the Rights Agreement............................... 65
6.15. Notification of Certain Matters.................................... 65
6.16. Disposition of Litigation.......................................... 66
6.17. Proxy Contest...................................................... 66
6.18. Stock Exchange Listing............................................. 66
ARTICLE VII CLOSING CONDITIONS........................................... 67
7.1. Conditions to the Obligations of the Parent,
the Purchaser and the Company..................................... 67
7.2. Conditions to the Obligations of the Company........................ 68
ARTICLE VIII CLOSING..................................................... 69
8.1. Time and Place...................................................... 69
8.2. Filings at the Closing.............................................. 69
ARTICLE IX TERMINATION AND ABANDONMENT................................... 69
</TABLE>
ii
<PAGE>
<TABLE>
<S> <C>
9.1. Termination......................................................... 70
9.2. Procedure and Effect of Termination................................. 73
9.3. Fees and Expenses................................................... 74
ARTICLE X MISCELLANEOUS.................................................. 78
10.1. Amendment and Modification......................................... 78
10.2. Waiver of Compliance; Consents..................................... 78
10.3. Survival of Warranties............................................. 79
10.4. Notices............................................................ 80
10.5. Assignment; Parties in Interest.................................... 81
10.6. Specific Performance............................................... 82
10.7. Governing Law...................................................... 83
10.8. Counterparts....................................................... 83
10.9. Interpretation..................................................... 83
10.10. Entire Agreement.................................................. 84
</TABLE>
ANNEX A -- Conditions to the Offer
ANNEX B -- Illinois Articles of Merger
ANNEX C -- Danaher Corporation Non-Qualified Stock Option
Agreement
iii
<PAGE>
AGREEMENT AND PLAN OF MERGER
----------------------------
AGREEMENT AND PLAN OF MERGER, dated as of August 20, 1995, among
Danaher Corporation, a Delaware corporation (the "Parent"), DH Holdings Corp., a
Delaware corporation that is a wholly-owned subsidiary of the Parent ("DH
Holdings"), TK Acquisition Corporation, a Delaware corporation that is a
wholly-owned subsidiary of DH Holdings (the "Purchaser"), and Joslyn
Corporation, an Illinois corporation (the "Company") (the "Agreement" or the
"Merger Agreement").
Parent, DH Holdings, Purchaser and the Company hereby agree as
follows:
ARTICLE I
THE TENDER OFFER
1.1. The Offer. (a) As promptly as practicable, but in no event
---------
later than five business days after the public announcement of the execution of
this Agreement, the Purchaser shall, and the Parent shall cause the Purchaser
to, amend and supplement its outstanding tender offer (the "Offer") to purchase
for cash all of the issued and outstanding shares (the "Shares") of common
stock, par value $1.25 per share (the "Common Stock") (including the associated
Common Stock Purchase Rights ("Rights") issued pursuant to the Rights Agreement,
dated as of February 10,
<PAGE>
1988 and amended as of September 2, 1994, between the Company and The First
National Bank of Chicago as Rights Agent (as the same may be further amended,
the "Rights Agreement") to provide that (i) the purchase price offered pursuant
-
to the Offer will be $34.00 per Share (which term in this Agreement shall
include the associated Right unless the context otherwise requires), (ii) the
--
obligations of the Purchaser and the Parent to consummate the Offer and to
accept for payment and purchase the Shares tendered shall be subject only to the
conditions set forth in Annex A hereto (the "Offer Conditions") and (iii) the
---
expiration date of the Offer will be extended at least until midnight on the
tenth business day following the date of such amendment. The Purchaser shall not
without the Company's prior written consent reduce the price per Share or the
number of Shares sought to be purchased or modify the form of consideration to
be received by holders of the Shares in the Offer, waive or modify the condition
(the "Minimum Condition") set forth in clause (i) of the first sentence of Annex
A hereto, impose additional conditions to the Offer or amend any term of the
Offer in a manner adverse to the holders of the Shares. Subject only to the
conditions of the Offer set forth in Annex A, the Purchaser shall, and the
Parent shall cause the Purchaser to, pay for all of the Shares validly
2
<PAGE>
tendered and not withdrawn pursuant to the Offer as soon as legally permissible.
(b) As soon as practicable on the date the Offer is amended pursuant
to this Agreement, the Parent and the Purchaser will file with the Securities
and Exchange Commission (the "SEC") an amendment to its Tender Offer Statement
on Schedule 14D-1 (together with all supplements or amendments thereto, and
including all exhibits, the "Offer Documents"). The Parent and the Purchaser
shall give the Company and its counsel a reasonable opportunity to review the
Offer Documents prior to their being filed with the SEC or disseminated to the
shareholders of the Company. The Parent and the Purchaser will furnish the
Company and its counsel in writing with any comments that the Parent, the
Purchaser or their counsel may receive from the SEC or its staff with respect to
the Offer Documents, promptly after receipt of such comments.
1.2. Company Action. (a) In connection with the Offer, the Company
--------------
shall cause its transfer agent as promptly as possible to furnish the Purchaser
with mailing labels, security position listings and any available listings or
computer files containing the names and addresses of record holders of the
Shares as of a recent date, and shall furnish to the Purchaser such information
and assistance as the Parent or the Purchaser may reasonably request in com-
3
<PAGE>
municating the Offer to the Company's shareholders. The information contained
in any such labels, listings and files shall be used solely for the purpose of
communicating the Offer or disseminating any other documents necessary to
consummate the merger of the Purchaser with and into the Company, as
contemplated by the Offer (the "Merger") and shall otherwise be subject to the
provisions of the Confidentiality Agreement, dated July 28, 1995 (the
"Confidentiality Agreement"), between the Parent and the Company, which
Confidentiality Agreement remains in full force and effect.
(b) The Company hereby consents to the Offer, as amended pursuant to
Section 1.1, and represents and warrants that the Board of Directors of the
Company (at a meeting duly called and held at which a quorum was present) as
part of its approval of this Agreement has unanimously (i) approved the making
-
of the Offer, (ii) determined that each of the Offer and the Merger is fair to
--
and in the best interests of the shareholders of the Company and (iii) resolved,
---
subject to the terms and conditions of this Agreement, to recommend acceptance
of the Offer and approval and adoption of this Agreement by the shareholders of
the Company (to the extent such approval and adoption is required by applicable
law). Promptly after the commencement of the Offer, the Company shall file an
4
<PAGE>
amendment to its Tender Offer Solicitation/Recommendation Statement on Schedule
14D-9 (together with any amendments or supplements thereto, and including all
exhibits, the "Schedule 14D-9") with respect to the Offer which shall contain,
subject to the fiduciary duties of the Board of Directors of the Company, the
recommendations of the Board of Directors in favor of the Offer, the Merger and
the Agreement. The Board of Directors of the Company will not withdraw, modify
or amend such recommendation except to the extent that, after taking into
account the advice of counsel to the Company, it concludes that such withdrawal,
modification or amendment is legally required in the proper exercise of its
fiduciary duties. Parent, Purchaser and their counsel will be given a
reasonable opportunity to review the Schedule 14D-9 and all amendments or
supplements thereto prior to their filing with the SEC or dissemination to the
holders of Shares. The Company shall furnish to the Parent and the Purchaser a
copy of the resolutions referred to in the first sentence of this subsection
(b), certified by an appropriate officer of the Company.
1.3. Board of Directors. (a) Promptly, subject to any applicable
------------------
requirements under Section 14(f) of the Exchange Act) upon the purchase by the
Purchaser of Shares pursuant to the Offer, the Board of Directors of the Company
shall amend its By-Laws to provide that the number of
5
<PAGE>
directors shall be no less than seven (7) and more than twelve (12) persons,
Steven M. Rales, Mitchell P. Rales, George M. Sherman, Patrick W. Allender, C.
Scott Brannan and James H. Ditkoff shall be elected by the Board of Directors as
additional directors of the Company (or, if any such persons shall be
unavailable, other persons designated by the Purchaser and reasonably acceptable
to the Independent Directors) and William E. Bendix, James M. Reed and Lawrence
G. Wolski shall resign as directors of the Company, and thereafter until the
Effective Time:
(i) the total number of directors of the Company shall be nine
(9);
(ii) the Purchaser shall be entitled to designate up to six
directors; and
(iii) the Board of Directors shall have at least three
Independent Directors (as defined in Section 1.3(c) hereof).
(b) The Company's obligations with respect to the election of the
Purchaser's designees to the Board of Directors of the Company shall be subject
to Section 14(f) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and Rule 14f-1 promulgated thereunder. The Company shall
promptly take all actions required pursuant to Section 14(f) and Rule 14f-1 in
order to fulfill its obligations under this Section 1.3 and shall include in
the
6
<PAGE>
Schedule 14D-9 such information with respect to the Company and its officers and
directors as is required under Section 14(f) and Rule 14f-1. The Parent and the
Purchaser will supply to the Company in writing and shall be solely responsible
for any information with respect to any of them and their nominees, officers,
directors and affiliates required by Section 14(f) and Rule 14f-1.
(c) Following the election or appointment of the Purchaser's
designees pursuant to this Section 1.3 and prior to the Effective Time, any
amendment to this Agreement or of the Articles of Incorporation or Amended and
Restated By-Laws of the Company, any termination of this Agreement by the
Company, any extension by the Company of the time for the performance of any of
the obligations or other acts of the Parent or the Purchaser and any waiver of
any of the Company's rights under this Agreement will require the concurrence of
a majority of the directors of the Company then in office who are neither
designated by the Purchaser nor otherwise affiliated with the Parent or the
Purchaser and are not employees of the Company or any of its Subsidiaries (the
"Independent Directors").
7
<PAGE>
ARTICLE II
THE MERGER
2.1. The Merger. (a) Upon the terms and subject to the satisfaction
----------
or waiver, if permissible, of the conditions set forth in Article VII hereof,
as promptly as practicable following the consummation of the Offer, in
accordance with the provisions of this Agreement, the General Corporation Law
of the State of Delaware, as amended (the "GCL"), and the Illinois Business
Corporation Act of 1983, as amended (the "IBCA"), the parties hereto shall cause
the Purchaser to be merged with and into the Company, and the Company shall be
the surviving corporation (hereinafter sometimes called the "Surviving
Corporation") and shall continue its corporate existence under the laws of the
State of Illinois. At the Effective Time, the separate existence of the
Purchaser shall cease.
(b) The Surviving Corporation shall retain the name of the Company
and shall possess all the rights, privileges, immunities, powers and franchises
of the Purchaser and the Company and shall by operation of law become liable for
all the debts, liabilities and duties of the Company and the Purchaser. The
Merger shall have the other effects provided for in the applicable provisions of
the GCL and the IBCA.
8
<PAGE>
2.2. Articles of Incorporation. At the Effective Time, the Articles
-------------------------
of Incorporation of the Company, as amended as of the date hereof, shall become
the Articles of Incorporation of the Surviving Corporation until, subject to
Section 6.9(a) hereof, thereafter amended in accordance with provisions thereof
and as provided by law, except that ARTICLE FOUR thereof shall be amended to
reduce the authorized capital stock of the Surviving Corporation to 1,100 shares
of Common Stock, par value $1.25 per share.
2.3. By-Laws. At the Effective Time, the By-Laws of the Company, as
-------
amended as of the date hereof, shall become the By-Laws of the Surviving
Corporation until, subject to Section 6.9(a) hereof, thereafter amended, altered
or repealed as provided therein and by law.
2.4. Directors and Officers. The directors of the Purchaser and the
----------------------
officers of the Company immediately prior to the Effective Time shall be the
directors and officers, respectively, of the Surviving Corporation, each to hold
office in accordance with the Certificate of In corporation and By-Laws of the
Surviving Corporation.
2.5. Effective Time. The Merger shall become effective at the later
--------------
of (i) the date and time when a properly executed certificate of merger or
certificate of ownership and merger (either such document being referred to
hereinafter as the "Delaware Certificate of Merger"),
9
<PAGE>
together with any other documents required by law to effectuate the Merger,
shall be filed with the Secretary of State of the State of Delaware in
accordance with the GCL and (ii) the date and time when, following the filing of
Articles of Merger in accordance with the IBCA (the "Illinois Articles of
Merger"), the Secretary of State of the State of Illinois issues a certificate
of merger (the "Illinois Certificate of Merger") with respect to the Merger;
provided, however, in no event shall the Merger become effective later than:
(x) 90 days after the date of filing the Delaware Certificate of Merger, or (y)
30 days subsequent to issuance of the Illinois Certificate of Merger. The
Delaware Certificate of Merger shall be filed in Delaware in accordance with the
GCL and the Illinois Articles of Merger shall be filed in Illinois in accordance
with the IBCA as soon as practicable after the Closing, and the parties shall
endeavor to cause such filings to be made on the same date. The date and time
when the Merger shall become effective is herein referred to as the "Effective
Time." A form of the Plan of Merger to be included in the Illinois Articles of
Merger is attached hereto as Annex B and is incorporated herein. Such Plan of
Merger is subject to all of the provisions of this Agreement, and in case of
conflict between the terms of such Plan of Merger and those of this Agreement,
the terms of this Agreement shall govern.
10
<PAGE>
Approval of this Agreement by the Board of Directors and shareholders of the
Company and Purchaser includes approval of such Plan of Merger.
ARTICLE III
CONVERSION OF SHARES
3.1. Company Common Stock. (a) Subject to the provisions of Section
--------------------
3.6 hereof, each Share issued and outstanding immediately prior to the Effective
Time (except for Shares then owned beneficially or of record by the Parent or
the Purchaser or any other subsidiary of the Parent and except for Dissenting
Shares (as defined in Section 3.2), shall, by virtue of the Merger and without
any action on the part of the holder thereof, be converted into the right to
receive $34.00 (or, if a greater per Share price shall have been paid in the
Offer, such greater price) ($34.00 or such greater price being referred to
hereinafter as the "Merger Consideration") in cash payable to the holder
thereof, without interest thereon, upon surrender of the certificate
representing such Share.
(b) Each Share issued and outstanding immediately prior to the
Effective Time which is then owned beneficially or of record by the Parent or
the Purchaser or any other subsidiary of the Parent shall, by virtue of the
Merger and without any action on the part of the holder thereof, be
11
<PAGE>
cancelled and retired and cease to exist, without any conversion thereof.
(c) Each Share issued and held in the Company's treasury immediately
prior to the Effective Time shall, by virtue of the Merger, be cancelled and
retired and cease to exist, without any conversion thereof.
(d) At the Effective Time the holders of certificates representing
Shares shall cease to have any rights as shareholders of the Company, except
such rights, if any, as they may have pursuant to the IBCA, and, except as
aforesaid, their sole right shall be the right to receive cash as aforesaid.
3.2. Dissenting Shares. Notwithstanding anything in this Agreement
-----------------
to the contrary, any Shares which are outstanding immediately prior to the
Effective Time and which are held by shareholders who have not voted such Shares
in favor of the approval and adoption of this Agreement and who shall have
properly demanded appraisal of such Shares in the manner provided in Section
11.70 of the IBCA ("Dissenting Shares"), if applicable, shall not be converted
into or be exchangeable for the right to receive the Merger Consideration, but
the holders thereof shall be entitled to payment of the appraised value of such
Shares in accordance with the provisions of Section 11.70 of the IBCA; provided,
--------
however, that (i) if any holder of Dissenting Shares shall
- ------- -
12
<PAGE>
subsequently deliver a written withdrawal of his demand for appraisal of such
Shares, or (ii) if any holder fails to establish his entitlement to appraisal
--
rights as provided in Sections 11.65 and 11.70 of the IBCA, or (iii) if any such
---
holder shall, for any other reason, become ineligible for such appraisal, then
such holder shall forfeit the right to appraisal of such Shares and each such
Share shall thereupon be deemed to have been converted into and to have become
exchangeable for, as of the Effective Time, the right to receive the Merger
Consideration, without any interest thereon. The Company shall not settle or
compromise any claim for dissenters' rights prior to the Effective Time without
the prior written consent of the Parent and the Purchaser.
3.3. Purchaser Common Stock. Each share of common stock, par value
----------------------
$.01 per share ("Purchaser Common Stock"), of the Purchaser issued and
outstanding immediately prior to the Effective Time shall, by virtue of the
Merger and without any action on the part of the holder thereof, be converted
into and exchangeable for one fully paid and non-assessable share of common
stock, par value $1.25 per share ("Surviving Corporation Common Stock"), of the
Surviving Corporation. From and after the Effective Time, each outstanding
certificate theretofore representing shares of Purchaser Common Stock shall be
deemed for all purposes
13
<PAGE>
to evidence ownership of and to represent the same number of shares of Surviving
Corporation Common Stock.
3.4. Exchange of Shares. (a) Prior to the Effective Time, the
------------------
Purchaser shall, and the Parent shall cause the Purchaser to, deposit in trust
with the depositary for the Offer, or with a bank or trust company with offices
in New York, New York, Chicago, Illinois or Washington, District of Columbia,
designated by the Purchaser and having capital, surplus and undivided profits of
at least $100,000,000 (the "Exchange Agent"), cash in an aggregate amount equal
to the product of (i) the number of Shares issued and outstanding immediately
-
prior to the Effective Time (other than any such Shares owned beneficially or of
record by the Parent or the Purchaser or any other subsidiary of the Parent and
other than Dissenting Shares), and (ii) the Merger Consideration (such amount
--
being hereinafter referred to as the "Exchange Fund"). The Exchange Agent
shall, pursuant to irrevocable instructions reasonably satisfactory to the
Company and its counsel, make the payments provided for in Section 3.1(a) of
this Agreement out of the Exchange Fund. The Exchange Agent shall invest the
Exchange Fund as the Parent directs, in direct obligations of the United States
of America, obligations for which the full faith and credit of the United
States of America is pledged to provide for the payment of
14
<PAGE>
all principal and interest, commercial paper obligations receiving the highest
rating from either Moody's Investors Services, Inc. or Standard & Poor's
Corporation, or certificates of deposit, bank repurchase agreements or banker's
acceptances of commercial banks with capital exceeding $10,000,000,000. The
Exchange Fund shall not be used for any other purpose except as provided in this
Agreement.
(b) Promptly after the Effective Time, the Surviving Corporation
shall cause the Exchange Agent to mail to each record holder (other than the
Parent, the Purchaser or any other subsidiary of the Parent) as of the Effective
Time of an outstanding certificate or certificates which immediately prior to
the Effective Time represented Shares (the "Certificates"), a form letter of
transmittal (which shall specify that delivery shall be effected, and risk of
loss and title to the Certificates shall pass, only upon proper delivery of the
Certificates to the Exchange Agent) and instructions for use in effecting the
surrender of the Certificates for payment therefor. Upon surrender to the
Exchange Agent of a Certificate, together with such letter of transmittal duly
executed, the holder of such Certificate shall be entitled to receive in
exchange therefor cash in an amount equal to the product of the number of Shares
represented by such Certificate and the Merger Consideration, less any
applicable withholding tax, and such Certificate
15
<PAGE>
shall forthwith be cancelled. No interest shall be paid or accrued on the cash
payable upon the surrender of the Certificates. If payment is to be made to a
person other than the person in whose name the Certificate surrendered is
registered, it shall be a condition of payment that the Certificate so
surrendered shall be properly endorsed or otherwise in proper form for transfer
and that the person requesting such payment shall pay any transfer or other
taxes required by reason of the payment to a person other than the registered
holder of the Certificate surrendered or establish to the satisfaction of the
Exchange Agent and the Surviving Corporation that such tax has been paid or is
not applicable. Until surrendered in accordance with the provisions of this
Section 3.4, each Certificate (other than Certificates representing Shares owned
beneficially or of record by the Parent, the Purchaser or any other subsidiary
of the Parent and other than Certificates representing Dissenting Shares in
respect of which appraisal rights are perfected) shall represent for all
purposes the right to receive the Merger Consideration in cash multiplied by the
number of Shares evidenced by such Certificate, without any interest thereon.
(c) After the Effective Time there shall be no transfers on the stock
transfer books of the Surviving Corporation of the Shares which were outstanding
immediately
16
<PAGE>
prior to the Effective Time. If, after the Effective Time, Certificates (other
than Certificates representing Shares owned beneficially or of record by the
Parent, the Purchaser or any other subsidiary of the Parent and other than
Dissenting Shares) are presented to the Surviving Corporation, they shall be
cancelled and exchanged for cash as provided in this Article III.
(d) Any portion of the Exchange Fund which remains unclaimed by the
shareholders of the Company for 180 days after the Effective Time (including any
interest received with respect thereto) shall be repaid to the Surviving
Corporation, upon demand. Any shareholders of the Company who have not
theretofore complied with Section 3.4(b) shall thereafter look only to the
Surviving Corporation (subject to abandoned property, escheat or other similar
laws) for payment of their claim for the Merger Consideration per Share, without
any interest thereon, but shall have no greater rights against the Surviving
Corporation than may be accorded to general creditors of the Surviving
Corporation under Illinois law.
(e) The Surviving Corporation shall pay all charges and expenses,
including those of the Exchange Agent, in connection with the exchange of cash
for Shares.
3.5. Employee Stock Options. Subject to and in accordance with the
----------------------
terms of the Joslyn Corporation Non-
17
<PAGE>
Employee Director Stock Plan and any related option agreement, with respect to
each stock option for 1,000 shares of Common Stock granted within the six month
period preceding the Closing, each at an exercise price of $24.75 per share, to
each non-employee director who is subject to the provisions of Sections 16(a)
and 16(b) of the Exchange Act, the Parent shall provide each such director with
an option to purchase 1,000 shares of the Parent's common stock (the "Substitute
Options"). Each Substitute Option shall (a) be in substitution for, and
-
cancellation of, such stock options granted under the stock option plan of the
Company (the "Cancelled Options"); (b) be in the form attached hereto as Annex C
-
and (c) be immediately exercisable in full at an exercise price of $22.625 per
-
share of the Parent's common stock. Subject to and in accordance with the terms
of the applicable stock option plan of the Company and any related option
agreement, immediately prior to the Effective Time, each holder of an
outstanding option to purchase Shares granted under any employee stock option
plan of the Company, other than a Cancelled Option or any other option with a
stock appreciation right exercisable upon a change of control of the Company,
whether or not then exercisable, shall be entitled to receive from the Surviving
Corporation for each Share subject to such option, in cancellation of such
option, an amount in cash equal to the excess, if any,
18
<PAGE>
of the Merger Consideration over the per Share exercise price of such option
without interest thereon, subject to all applicable tax withholding
requirements, and such option shall thereupon be cancelled. Subject to the
foregoing, each option or other equity award with respect to shares of Common
Stock outstanding at the Effective Time under any stock option or other equity
plan, program or agreement of the Company shall automatically terminate and be
cancelled upon consummation of the Merger. The Parent shall cause the Surviving
Corporation to make all payments required by this Section 3.5.
3.6. Adjustment of Merger Consideration. In the event of any
----------------------------------
reclassification, recapitalization, stock split or stock dividend with respect
to the Common Stock (or if a record date with respect to any of the foregoing
shall occur) prior to the Effective Time, appropriate and proportionate
adjustments, if any, shall be made to the amount of Merger Consideration per
Share, and all references to the Merger Consideration in this Agreement shall be
deemed to be to the Merger Consideration as so adjusted.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to the Parent and the Purchaser
and agrees as follows:
19
<PAGE>
4.1. Organization. The Company and each of its subsidiaries is a
------------
corporation duly organized, validly existing and in good standing under the laws
of the jurisdiction of its incorporation and has all requisite corporate power
and authority to own, lease and operate its properties and to conduct its
business as now being conducted, except where the failure to be so organized,
existing and in good standing or to have such power and authority would not,
individually or in the aggregate, have a material adverse effect on the
business, properties, assets, financial condition or results of operations of
the Company and its subsidiaries taken as a whole (a "Material Adverse Effect").
Each of the Company and its subsidiaries is duly qualified or licensed and in
good standing to do business as a foreign corporation in each jurisdiction in
which the property owned, leased or operated by it or the nature of the
business conducted by it makes such qualification necessary, except where the
failure to be so qualified or licensed and in good standing, individually or in
the aggregate, would not reasonably be likely to have a Material Adverse Effect.
Each of the Company's subsidiaries (except for any subsidiaries formed or
acquired in 1995, which have been identified in writing in a list furnished by
the Company to the Parent, and except that ADK Pressure Equipment Corporation
has been sold) is listed in the Company's Annual
20
<PAGE>
Report on Form 10-K for the fiscal year ending December 31, 1994, and except as
and to the extent set forth in such Annual Report, the Company owns directly or
indirectly all of the issued and outstanding capital stock of each of its
subsidiaries, free and clear of all liens, pledges, security interests, claims
or other encumbrances. The Company has heretofore made available to the Parent
accurate and complete copies of the Articles of Incorporation and the By-Laws
of the Company, each as currently in effect.
4.2. Capitalization. The authorized capital stock of the Company
--------------
consists of 20,000,000 shares of Common Stock of which, on August 8, 1995, there
were 7,195,240 shares issued and outstanding, 887,276 shares reserved for
issuance under future grants of options under the Company's director and
employee stock option plans, 302,588 shares subject to options outstanding under
the Company's stock option plans, of which 23,437 are in tandem with outstanding
stock appreciation rights, and 1,217,840 shares held in the Company's treasury.
All issued and outstanding Shares are duly authorized, validly issued, fully
paid and nonassessable and have no preemptive rights. The Company is, directly
or indirectly, the record and beneficial owner of all of the outstanding shares
of capital stock of each of its subsidiaries, free and clear of any lien,
mortgage, pledge or encumbrance of any kind. Except for the Rights
21
<PAGE>
and options to acquire not more than 302,588 shares pursuant to the Company's
director and employee stock option plans, there are not now, and at the
Effective Time there will not be, any existing options, warrants, calls,
subscriptions, preemptive rights or other rights or other agreements or
commitments whatsoever obligating the Company or any of its subsidiaries to
issue, transfer, deliver or sell or cause to be issued, transferred, delivered
or sold any additional shares of capital stock of the Company or any of its
subsidiaries, or obligating the Company or any of its subsidiaries to grant,
extend or enter into any such agreement or commitment.
4.3. Authorization of this Agreement; Recommendation of Merger. (a)
---------------------------------------------------------
The Company has all requisite corporate power and authority to execute and
deliver this Agreement and, subject to approval by the shareholders of the
Company to the extent required by law, to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly and validly
authorized and approved by the Company's Board of Directors and, except for the
approval of this Agreement by the shareholders of the Company to the extent
required by law, no other corporate proceedings on the part of the Company are
necessary to authorize this Agreement or consummate the
22
<PAGE>
transactions contemplated hereby. This Agreement has been duly and validly
executed and delivered by the Company, and subject only to the approval hereof
by its shareholders to the extent required by law, this Agreement (assuming the
due and valid authorization, execution and delivery of this Agreement by the
Parent, DH Holdings and the Purchaser and the enforceability of this Agreement
against each of them) constitutes a valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms, except to the
extent that enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer or other similar laws of general
applicability relating to or affecting the enforcement of creditors' rights and
by the effect of general principles of equity (regardless of whether
enforceability is considered in a proceeding in equity or at law).
(b) The Board of Directors of the Company (at a meeting duly called
and held at which a quorum was present) has determined that the Merger is fair
to and in the best interests of the shareholders of the Company and has
resolved to recommend approval of the Merger and adoption of this Agreement by
the shareholders of the Company; provided, however, that such recommendation may
-------- -------
be withdrawn, modified or amended (but if, after the Company has received a
23
<PAGE>
Superior Proposal -- namely, a proposal to acquire, directly or indirectly, more
than 50% of the Shares or all or any substantial portion of the consolidated
assets of the Company and its subsidiaries and on terms which the Board of
Directors of the Company determines in its good faith judgment, based on the
advice of Goldman, Sachs & Co., to be more favorable to the Company's
stockholders than the Offer and the Merger taken together -- then such
withdrawal, modification or amendment may be made only at a time that is after
the second business day after the Parent has received written notice from the
Company advising the Parent of the Company's receipt of a Superior Proposal,
specifying the material terms and conditions of such Superior Proposal and
identifying the person making such Superior Proposal) to the extent the
Company's Board of Directors, after taking into account the advice of counsel to
the Company, concludes that such withdrawal, modification or amendment is
required in the proper exercise of its fiduciary duties.
4.4. Consents and Approvals. Except for (i) filings required under
---------------------- -
the Exchange Act, (ii) the filing of a Pre-Merger Notification and Report Form
--
by the Company under the Hart-Scott-Rodino Antitrust Improvements Act of 1976
and the rules and regulations thereunder (together, the "HSR Act"), (iii) the
---
filing and recordation of appropriate merger documents as required by the IBCA
and the GCL and, if
24
<PAGE>
applicable, the laws of other states in which the Company is qualified to do
business, (iv) filings under the securities or blue sky laws or takeover
--
statutes of the various states and (v) filings in connection with any applicable
-
transfer or other taxes in any applicable jurisdiction, no filing with, and no
permit, authorization, consent or approval of, any public body or authority is
necessary for the consummation by the Company of the transactions contemplated
by this Agreement, the failure to make or obtain of which is reasonably likely
to have a Material Adverse Effect or a material adverse effect on the ability of
the Company to consummate the transactions contemplated hereby.
4.5. No Conflicts. Except as set forth in Schedule 4.5, neither the
------------
execution and delivery of this Agreement nor the consummation of the
transactions contemplated hereby nor compliance by the Company with any of the
provisions hereof will (i) conflict with or result in any violation of any
-
provision of the Articles of Incorporation or the By-Laws of the Company, each
as amended as of the date hereof, or the certificate of incorporation or by-laws
(or equivalent instruments) of any of its subsidiaries, (ii) result in a
--
violation or breach of, or constitute a default (or give rise to any right of
termination, cancellation or acceleration) under, any note, bond, mortgage,
indenture, license, agreement or other instrument
25
<PAGE>
or obligation to which the Company or any of its subsidiaries is a party or by
which any of them or any of their properties or assets is bound or (iii)
---
assuming the accuracy (without taking into account any limitation based on
knowledge or materiality) of the representations and warranties of the Parent
and the Purchaser contained herein and their compliance with all agreements
contained herein and assuming the due making or obtaining of all filings,
permits, authorizations, consents and approvals referred to in Section 4.4,
violate any statute, rule, regulation, order, injunction, writ or decree of any
public body or authority by which the Company or any of its subsidiaries or any
of their respective assets or properties is bound, excluding from the foregoing
clauses (ii) and (iii) conflicts, violations, breaches or defaults which, either
individually or in the aggregate, are not reasonably likely to have a Material
Adverse Effect or a material adverse effect on the Company's ability to
consummate the transactions contemplated hereby.
4.6. Compliance. Neither the Company nor any of its subsidiaries is
----------
in conflict with, or in default or violation of, (i) any law, rule, regulation,
-
order, judgment or decree applicable to the Company or any of its subsidiaries
or by which its or any of their respective properties are bound or affected or
(ii) any note, bond, mortgage,
- ---
26
<PAGE>
indenture, contract, agreement, lease, license, permit, franchise or other
instrument or obligation to which the Company or any of its subsidiaries is a
party or by which the Company or any of its subsidiaries or its or any of their
respective properties are bound or affected, except for any such conflicts,
defaults or violations which would not, individually or in the aggregate,
reasonably be expected to either have a Material Adverse Effect or prevent the
consummation of the Offer or the Merger.
4.7. Financial Statements and Reports; No Undisclosed Liabilities.
------------------------------------------------------------
(a) The Company has filed all forms, reports and documents with the SEC since
January 1, 1994, required to be filed by it pursuant to the Securities Act of
1933, as amended, and the rules and regulations promulgated thereunder (the
"Securities Act"), and the Exchange Act and the rules and regulations
promulgated thereunder (collectively, the "Disclosure Statements"), all of which
have complied in all material respects with all applicable requirements of the
Securities Act and the Exchange Act and the rules and regulations promulgated
thereunder. None of such Disclosure Statements, at the time filed, contained any
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary in order to make the statements there-
27
<PAGE>
in, in light of the circumstances under which they were made, not misleading.
The consolidated balance sheets and the related consolidated
statements of income, cash flows and retained earnings (including the notes
thereto) of the Company and its subsidiaries contained or incorporated by
reference in the Disclosure Statements, were prepared from, and are in
accordance with, the books and records of the Company and its consolidated
subsidiaries, complied as of their respective dates in all material respects
with applicable accounting requirements and with the published rules and
regulations of the SEC with respect thereto, and presented fairly the
consolidated financial position of the Company and its subsidiaries as of their
respective dates, and the consolidated results of their operations and their
cash flows for the periods presented therein, in conformity with United States
generally accepted accounting principles ("GAAP") applied in all material
respects on a consistent basis, except as otherwise noted therein and, in the
case of unaudited quarterly financial statements, as permitted by Form 10-Q
under the Exchange Act, and subject in the case of quarterly financial
statements to normal year-end audit adjustments and to any other adjustments
described therein.
(b) The Company has no outstanding indebtedness for borrowed money.
28
<PAGE>
4.8. Offer Documents; Proxy Statement; Other Information; Schedule
-------------------------------------------------------------
14D-9. None of the information supplied in writing by the Company specifically
- -----
for inclusion in the Offer Documents will, at the respective times the Offer
Documents or any amendments or supplements thereto are filed with the SEC,
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading. The Schedule 14D-9 on the date filed with the SEC will not contain
any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading; provided, however, that the foregoing shall not apply to the extent
-------- -------
that any such untrue statement of a material fact or omission to state a
material fact was made by the Company in reliance upon and in conformity with
written information furnished to the Company by the Parent or the Purchaser
specifically for use in the Schedule 14D-9. No proxy solicitation materials
distributed by the Company to its shareholders and/or filed with the SEC in
connection with the Merger, including any amendments or supplements thereto
(collectively, the "Proxy Statement") will, at the time the Proxy Statement is
mailed
29
<PAGE>
to the Company's shareholders, contain any untrue statement of a material fact,
or omit to state any material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading or, at the time of the meeting of shareholders to
which the Proxy Statement, as then amended or supplemented, relates or at the
Effective Time omit to state any material fact necessary to correct any
statement which has become false or misleading in any earlier communication with
respect to the solicitation of any proxy for such meeting; except that no
representation is made by the Company with respect to information furnished to
the Company by the Parent or the Purchaser specifically for use in the Proxy
Statement. The Schedule 14D-9 and the Proxy Statement each will comply in all
material respects, both as to form and otherwise, with the requirements of the
Exchange Act and the rules and regulations thereunder. Notwithstanding the
foregoing, no representation or warranty is made herein with respect the
information provided to the Parent and the Purchaser pursuant to the
Confidentiality Agreement in the "Joslyn Corporation Discussion Materials Book
One" and the "Joslyn Corporation Discussion Materials Book Two", in each case
dated August 1, 1995.
4.9. Employee Agreements and Plans. (a) There are no material
-----------------------------
employee or retiree compensation or benefit
30
<PAGE>
plans, arrangements, contracts or agreements (including, without limitation,
stock option plans or other equity plans, employment agreements, change of
control, retention, severance and other similar agreements) of any type
(including but not limited to plans described in section 3(3) of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA")), whether written
or unwritten, (x) maintained, or contributed to, by the Company, any of its
-
subsidiaries or any other trade or business, whether or not incorporated (an
"ERISA Affiliate"), that together with the Company or any of its subsidiaries
would be deemed a "single employer" within the meaning of section 414 of the
Code or section 4001(b) of ERISA or (y) with respect to which the Company, any
-
of its subsidiaries or any ERISA Affiliate has or has had, within the preceding
six years, an obligation to contribute or the Company or any of its subsidiaries
has or may have a liability, other than those listed on Schedule 4.9(a) hereto
(the "Benefit Plans"). Neither the Company, any of its subsidiaries nor any
ERISA Affiliate has any formal plan or any commitment to any current or former
employee to create any additional Benefit Plan.
(b) With respect to each Benefit Plan currently in effect or under
which the Company has an obligation to make payments or contributions, the
Company has delivered to
31
<PAGE>
Parent accurate and complete copies of all plan texts, summary plan
descriptions, summaries of material modifications, trust agreements, other
funding arrangements and other related agreements including all amendments to
the foregoing; the two most recent IRS Form 5500 annual reports, including all
Schedules and attachments thereto; the most recent annual and periodic
accounting of plan assets; the most recent determination letter received from
the United States Internal Revenue Service (the "Service"); and the two most
recent actuarial reports, to the extent any of the foregoing may be applicable
to a particular Benefit Plan.
(c) Except as specifically set forth in the Disclosure Statements or
on Schedule 4.9(c) hereto, the consummation of the transactions contemplated by
this Agreement will not, by itself, entitle any individual to severance pay or
accelerate the time of payment or vesting, or increase the amount, of
compensation or benefits due to any individual, except for any such
entitlements, vesting or increases which would not be material to any such
individual or in the aggregate to the Company.
Neither the Company nor any of its subsidiaries has incurred or
reasonably expects to incur any material liability or obligation (whether
directly or indirectly, including as a result of an indemnification obligation
or by reason of any relationship to any ERISA Affiliate) under or
32
<PAGE>
pursuant to Title I or IV of ERISA or the penalty or excise tax provisions of
the Code relating to employee benefit plans. Each of the Benefit Plans have
been operated and administered in substantial compliance with their terms and
all applicable laws, statutes and regulations.
4.10. Absence of Certain Changes. Except as disclosed in the
--------------------------
Disclosure Statements filed prior to the date of this Agreement or in Schedule
4.10 hereto, from January 1, 1995 until the date of this Agreement, the Company
and its subsidiaries have conducted their respective businesses and operations
consistent with past practice only in the ordinary and usual course and there
have not occurred (i) any events, changes, or effects (including the incurrence
-
of any liabilities or obligations of any nature, whether accrued, contingent or
otherwise) having, or which would be reasonably likely to have, individually or
in the aggregate, a Material Adverse Effect; (ii) any declaration, setting aside
--
or payment of any dividend or other distribution (whether in cash, stock or
property) with respect to the equity interests of the Company or of any of its
subsidiaries (other than regular quarterly cash dividends of not more than $0.30
per share payable to holders of Common Stock); (iii) any material change by the
---
Company or any of its subsidiaries in accounting principles or methods, except
insofar as may be required by a change in
33
<PAGE>
GAAP; (iv) any grant of options or stock appreciation rights under any Benefit
--
Plan; or (v) after June 30, 1995 to the date of this Agreement, any entry by the
==========================================================================
Company into any agreement, commitment or transaction that is material to the
=============================================================================
Company and its subsidiaries, taken as a whole, other than in the ordinary
==========================================================================
course of business.
===================
4.11. Litigation. Except as disclosed in the Disclosure Statements
----------
filed prior to the date of this Agreement or as disclosed on Schedule 4.11
hereto, there is no suit, claim, action, proceeding or investigation pending or,
to the knowledge of the Company, threatened against, the Company or any of its
subsidiaries that, individually or in the aggregate, would reasonably be
expected (i) to have a Material Adverse Effect, or (ii) to materially delay or
- --
prevent the consummation of the Merger or the other transactions contemplated
hereby.
4.12. Taxes. (a) The Company and its subsidiaries (i) have duly
----- -
filed all material Tax Returns (as hereinafter defined) required to be filed by
them on or prior to the date hereof, and will duly file all material Tax Returns
required to be filed by them on or before the Effective Time (taking into
account any extensions properly obtained), and (ii) have duly paid in full, or
--
made provision in accordance with GAAP for the payment of, all Taxes (as
hereinafter defined) for all periods ending on or
34
<PAGE>
before the date hereof. Such Tax Returns are and will be true, complete and
correct in all material respects.
(b) No audits or other proceedings are presently pending with regard
to any Taxes or Tax Returns of the Company or any of its subsidiaries, which
audits or other proceedings could, individually or in the aggregate, reasonably
be expected to result in a Material Adverse Effect.
(c) No material deficiencies for Taxes have been asserted against the
Company or any of its subsidiaries which have not been resolved and fully paid
or which are not adequately reserved for in accordance with GAAP. The accruals
and reserves for taxes (including interest and penalties, if any, thereon)
reflected in the Company's most recent quarterly financial statements are
adequate in all material respects in accordance with GAAP.
(d) "Taxes" shall mean all federal, state, local and foreign taxes,
and other assessments of a similar nature (whether imposed directly or through
withholding), including any interest and penalties thereon and additions
thereto. "Tax Returns" shall mean all federal, state, local and foreign tax
returns, declarations, statements, reports, schedules, forms and information
returns.
4.13. Environmental Matters. (a) Except as set forth in the
---------------------
Disclosure Statements or otherwise previously
35
<PAGE>
disclosed by the Company to the Parent, to the knowledge of the Company there
are no Environmental Liabilities (as de fined below) of the Company that could
reasonably be expected to have a Material Adverse Effect. The Company has
identified to Parent in writing all wood treating facilities that, to the
knowledge of the Company, were previously owned by the Company or any of its
subsidiaries.
(b) As used in this Agreement, "Environmental Laws" means any and all
applicable federal, state, local and foreign statutes, laws, judicial decisions,
regulations, ordinances, rules, judgments, orders, decrees, codes, plans,
injunctions, permits, concessions, grants, franchises, licenses, agreements and
governmental restrictions relating to the environment or to emissions,
discharges or releases of pollutants, contaminants, Hazardous Substances or
wastes into the environment, including without limitation ambient air, surface
water, ground water or land, or otherwise relating to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport or
handling of pollutants, contaminants, Hazardous Substances or wastes or the
clean-up or other remediation thereof. "Environmental Liabilities" with respect
to any person means any and all liabilities of or relating to such person or any
of its subsidiaries (including any entity which is, in whole or in part, a
predecessor of such person or any of its subsid-
36
<PAGE>
iaries), whether vested or unvested, contingent or fixed, actual or potential,
which (i) arise under or relate to matters covered by Environmental Laws and
-
(ii) relate to actions occurring or conditions existing on or prior to the date
--
of this Agreement. "Hazardous Substances" means any toxic, radioactive, caustic
or otherwise hazardous substance, including petroleum, its derivatives, by-
products and other hydrocarbons, or any substance having any constituent
elements displaying any of the foregoing characteristics, including, without
limitation, any sub stance regulated under Environmental Laws.
(c) Except as set forth in the Disclosure Statement, or as previously
disclosed to Parent, neither the Company nor any of its subsidiaries has
received any written communication from anyone that has been brought to the
attention of the Company's legal department or of any officer of the Company and
that alleges that the Company or any of its subsidiaries is not in compliance
with any Environmental Law (except for noncompliance that would not reasonably
be expected to have, individually or in the aggregate, a Material Adverse
Effect).
(d) Except as set forth in the Disclosure Statement or as previously
disclosed in writing to Parent, and except as, individually or in the aggregate,
would not reasonably be expected to have a Material Adverse Effect,
37
<PAGE>
the Company and its subsidiaries have all permits, approvals, and other
authorizations required under Environmental Laws that are necessary to continue
the existing operations of the Company and its subsidiaries.
4.14 IBCA Sections 7.85 and 11.75; Board Approval; Shareholder Vote.
--------------------------------------------------------------
(a) The Board of Directors of the Company has approved the Offer and the Merger
prior to the date of this Agreement pursuant to the provisions of Section 11.75
of the IBCA.
(b) At least two-thirds of the Company's Disinterested Directors (as
defined in Section 7.85(C)(7) of the IBCA) have approved the acquisition of
Shares pursuant to the Offer and the Merger and have approved the Merger, all
pursuant to the provisions of Section 7.85 of the IBCA.
(c) The affirmative vote of holders of two-thirds of the Shares is
the only vote of the holders of any class or series of capital stock of the
Company necessary under the IBCA or the Articles of Incorporation or By-Laws of
the Company to approve the Merger.
(d) Not less than 75% of the Directors of the Company then qualified
and acting within the meaning of Section 3.9.3 of the By-Laws of the Company
have approved this Agreement and the transactions contemplated by this
Agreement, including, without limitation, the Merger.
38
<PAGE>
4.15. Rights Agreement. The Board of Directors of the Company has
----------------
taken all necessary corporate action to provide that neither the Parent nor the
Purchaser nor any of their affiliates will become an "Acquiring Person," that no
"Triggering Event," "Section 11(a)(ii) Event," "Section 13 Event," "Stock
Acquisition Date" or "Distribution Date" (as such terms are defined in the
Rights Agreement) will occur and that neither Section 11 nor Section 13 of the
Rights Agreement will be triggered, in each case as a result of the
announcement, commencement or consummation of the Offer, the execution or
delivery of this Agreement or any amendment hereto in accordance with the terms
hereof or the consummation of the transactions contemplated by this Agreement.
4.16. Finders and Investment Bankers. All negotiations relating to
------------------------------
this Agreement and the transactions contemplated hereby have been carried on
without the intervention of any person acting on behalf of the Company in such
manner as to give rise to any valid claim against the Parent, the Purchaser or
the Company for any broker's or finder's fee or similar compensation, except for
Goldman, Sachs & Co., whose fees (which have been described in a writing
furnished by the Company to Parent), to the extent payable, shall be paid by the
Company.
39
<PAGE>
4.17. Offer Conditions. Since July 1, 1995, to the knowledge of the
----------------
Company, no event has occurred and no circumstance has arisen which would
reasonably be expected to result in a failure to satisfy any of the Offer
Conditions.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
OF THE PARENT, DH HOLDINGS AND THE PURCHASER
The Parent, DH Holdings and the Purchaser each jointly and severally
represent and warrant to the Company and agree as follows:
5.1. Organization. Each of the Parent, DH Holdings and the Purchase
------------
is a corporation duly organized, validly existing and in good standing under the
laws of the jurisdiction of its incorporation and each has all requisite
corporate power and authority to own, lease and operate its properties and to
conduct its business as now being conducted, except where the failure to be so
organized, existing and in good standing or to have such power and authority
would not, individually or in the aggregate, have a material adverse effect on
the business, properties, assets, financial condition or results of operations
of the Parent and its subsidiaries taken as a whole. Each of the Parent, DH
Holdings and the Purchaser is duly qualified or licensed and in good standing to
do business as a foreign
40
<PAGE>
corporation in each jurisdiction in which the properties owned, leased or
operated by it or the nature of the business conducted by it makes such
qualification necessary, except where the failure to be so qualified or licensed
and in good standing, individually or in the aggregate, would not reasonably be
likely to have a material adverse effect on the business, financial condition,
properties, assets or results of operations of the Parent and its subsidiaries
taken as a whole. DH Holdings is a wholly-owned subsidiary of the Parent, and
the Purchaser is a wholly-owned subsidiary of DH Holdings.
5.2. Capitalization. Parent has 125,000,000 authorized shares of
--------------
common stock, par value $.01 per share, of which, on July 19, 1995, there were
58,476,408 shares issued and outstanding. All shares of common stock of the
Parent issued upon exercise of the Substitute Options (including payment in full
of the exercise price therefor) shall be duly authorized, validly issued, fully
paid, nonassessable and listed on the New York Stock Exchange (the "NYSE") and
such issuance shall not be subject to any preemptive rights.
5.3. Authorization of this Agreement. Each of the Parent, DH
-------------------------------
Holdings and the Purchaser has all requisite corporate power and authority to
execute and deliver this Agreement and to consummate the transactions
contemplated
41
<PAGE>
hereby. The execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby have been duly and validly authorized and
approved by the Boards of Directors of the Parent, DH Holdings and the Purchaser
and by DH Holdings as the sole shareholder of the Purchaser, and no other
corporate proceedings on the part of the Parent, DH Holdings or the Purchaser
are necessary to authorize this Agreement or consummate the transactions
contemplated hereby. This Agreement has been duly and validly executed and
delivered by each of the Parent, DH Holdings and the Purchaser and this
Agreement (assuming the due and valid authorization, execution and delivery of
this Agreement by the Company and the enforceability of this Agreement against
it) constitutes a valid and binding agreement of the Parent and the Purchaser
enforceable against each of them in accordance with its terms, except to the
extent that enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer or other similar laws of general
applicability relating to or affecting the enforcement of creditors' rights and
by the effect of general principles of equity (regardless of whether
enforceability is considered in a proceeding in equity or at law).
5.4. Consents and Approvals; No Violations. Except for (i) filings
------------------------------------- -
required under the Exchange Act,
42
<PAGE>
(ii) the filing of a Pre-Merger Notification and Report Form by the Parent under
--
the HSR Act, (iii) the filing and recordation of appropriate merger documents as
---
required by the GCL and the IBCA, (iv) filings under the securities or blue sky
--
laws or takeover statutes of the various states, (v) filings required under the
-
listing requirements of the NYSE and (vi) filings in connection with any
--
applicable transfer or other taxes in any applicable jurisdiction, no filing
with, and no permit, authorization, consent or approval of, any public body or
authority is necessary for the consummation by the Parent, DH Holdings and the
Purchaser of the transactions contemplated by this Agreement, the failure to
make or obtain which is reasonably likely to impair the ability of the Parent,
DH Holdings or the Purchaser to perform their respective obligations hereunder
or to consummate the transactions contemplated hereby. Neither the execution
and delivery of this Agreement nor the consummation of the transactions
contemplated hereby nor compliance by the Parent, DH Holdings or the Purchaser
with any of the provisions hereof will (i) conflict with or result in any
-
violation of any provision of the Certificate of Incorporation or By-Laws of the
Parent, DH Holdings or the Purchaser, as each may be amended as of the date
hereof (ii) result in a violation or breach of, or constitute a default (or give
--
rise to any
43
<PAGE>
right of termination, cancellation or acceleration) under, any note, bond,
mortgage, indenture, license, agreement or other instrument or obligation to
which the Parent or any of its subsidiaries is a party, or by which any of them
or any of their respective properties or assets is bound, or (iii) assuming the
---
truth of the representations and warranties of the Company hereunder and its
compliance with all agreements contained herein and assuming the due making or
obtaining of all filings, permits, authorizations, consents and approvals
referred to in the immediately preceding sentence, violate any statute, rule,
regulation, order, injunction, writ or decree of any public body or authority by
which the Parent or any of its subsidiaries or any of their respective
properties or assets is bound, excluding from the foregoing clauses (ii) and
(iii) conflicts, violations, breaches or defaults which, either individually or
in the aggregate, are not reasonably likely to impair the ability of the Parent,
DH Holdings or the Purchaser to perform their respective obligations hereunder
or to consummate the transactions contemplated hereby.
5.5. Offer Documents; Proxy Statement; Other Information. None of
---------------------------------------------------
the Offer Documents will, on the date filed with the SEC or on the date first
published, sent or given to the Company's shareholders, contain any untrue
statement of a material fact or omit to state any material
44
<PAGE>
fact required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading; provided, however, that the foregoing shall not apply to the extent
-------- -------
that any such untrue statement of a material fact or omission to state a
material fact was made by the Parent or the Purchaser in reliance upon and in
conformity with written information furnished to the Parent or the Purchaser by
the Company specifically for use in the Offer Documents. The Offer Documents
will comply in all material respects, both as to form and otherwise, with the
requirements of the Exchange Act and the rules and regulations thereunder. None
of the information supplied or to be supplied in writing by the Parent or the
Purchaser specifically for inclusion in the Schedule 14D-9 or in the Proxy
Statement will, at the time the Schedule 14D-9 is filed with the SEC or the
Proxy Statement is mailed to the Company's shareholders, as the case may be,
contain any untrue statement of a material fact, or omit to state any material
fact required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading or, in the case of the Proxy Statement, at the time of the meeting of
shareholders to which such Proxy Statement, as then amended or supplemented,
relates, or at the Effective Time, omit to state any material fact
45
<PAGE>
necessary to correct any statement which has become false or misleading in any
earlier communication with respect to the solicitation of any proxy for such
meeting. If at any time prior to the Effective Time any event relating to the
Parent or any of its subsidiaries is discovered which should be set forth in an
amendment of, or a supplement to, the Proxy Statement, the Parent shall promptly
so inform the Company and will furnish all necessary information to the Company
relating to such event.
5.6. Financial Ability to Perform. The Parent and the Purchaser
----------------------------
have, from cash on hand or committed lines of credit, available funds sufficient
to pay all cash payments for Shares in the Offer and the Merger and to pay all
related fees and expenses.
5.7. Finders and Investment Bankers. All negotiations relating to
------------------------------
this Agreement and the transactions contemplated hereby have been carried on
without the intervention of any person acting on behalf of the Parent, DH
Holdings or the Purchaser in such manner as to give rise to any valid claim
against the Parent, DH Holdings, the Purchaser or the Company for any broker's
or finder's fee or similar compensation, except for Merrill Lynch, Pierce,
Fenner & Smith Incorporated ("Merrill Lynch") whose fees, to the extent payable,
shall be paid by the Parent. The Parent shall be solely responsible for, and
shall indemnify the
46
<PAGE>
Company with respect to, any fee payable to Merrill Lynch if the Merger is not
consummated.
ARTICLE VI
COVENANTS
6.1. Conduct of the Business of the Company. Except as contemplated
--------------------------------------
by this Agreement or as set forth in Schedule 6.1 hereto, during the period from
the date of this Agreement to the Effective Time, the Company and its
subsidiaries will each conduct its operations in all material respects according
to its ordinary and usual course of business, and will use reasonable efforts to
preserve intact its business organization and to maintain satisfactory
relationships with suppliers, distributors, customers and others having business
relationships with it. The Company will promptly advise the Parent in writing of
any change which could reasonably be expected to have a Material Adverse Effect,
and will confer on a regular and frequent basis with representatives of the
Parent to report upon the status of operations. Without limiting the gene
reality of the foregoing, and except as otherwise expressly contemplated by this
Agreement or as set forth in Schedule 6.1 hereto, prior to the Effective Time,
neither the Company nor any of its subsidiaries will, without the prior written
consent of the Parent:
47
<PAGE>
(a) amend its Articles of Incorporation or By-Laws (or equivalent
instruments);
(b) authorize for issuance, issue, sell, deliver or agree or commit
to issue, sell or deliver (whether through the issuance or granting of
additional options, warrants, commitments, subscriptions, rights to purchase or
otherwise) any shares of capital stock of any class or any securities
convertible into shares of capital stock of any class, except as required by any
employee benefit or stock option plan or agreement existing as of the date
hereof;
(c) split, combine or reclassify any shares of its capital stock,
declare, set aside or pay any dividend or other distribution (whether in cash,
stock or property or any combination thereof) in respect of its capital stock,
or redeem or otherwise acquire any shares of its capital stock; provided,
--------
however, that the Company may declare and pay to holders of Shares regular
- -------
quarterly dividends of not more than $0.30 per share of Common Stock; and
provided, further, that any of the Company's subsidiaries may declare, set aside
- -------- -------
or pay any dividend or other distribution with respect to their capital stock;
(d) (i) create, incur, assume, maintain or permit to exist any long-
-
term debt (including obligations in
48
<PAGE>
respect of capital leases); (ii) except in the ordinary course of business and
--
consistent with past practices assume, guarantee, endorse or otherwise become
liable or responsible (whether directly, contingently or otherwise) for the
obligations of any person other than any subsidiary of the Company; or (iii)
---
make any loans, advances or capital contributions to, or investments in, any
person other than any of the subsidiaries of the Company, except for loans or
advances to employees or customers in the ordinary course of business and
consistent with past practices;
(e) except in the ordinary course of business or as otherwise
contemplated by or described or referred to in the Disclosure Statements or the
Offer Documents, sell, transfer, mortgage or otherwise dispose of or encumber,
any business, subsidiary, assets that are material to the Company and its
subsidiaries taken as a whole, or fixed assets that have a value on the
Company's books, either individually or in the aggregate, in excess of $500,000;
(f) settle or compromise any pending or threatened suit, action or
claim in which the amount involved is greater than $500,000 or which is material
to the Company and its subsidiaries taken as a whole or which relates to the
transactions contemplated hereby or
49
<PAGE>
modify, amend or terminate any contracts involving in excess of $500,000 or
waive, release or assign any right or claim involving in excess of $500,000;
(g) make any material tax election or permit any material insurance
policy naming it as a beneficiary or a loss payable payee to be cancelled or
terminated, in each case without notice to the Parent;
(h) grant any material increase in the compensation payable or to
become payable to any of its officers or employees or establish, adopt, enter
into, make any new grants or awards under, be obligated to grant any awards
under, or amend, any collective bargaining (except as required by law), bonus,
profit sharing, thrift, compensation, stock option or other equity, pension,
retirement, incentive or deferred compensation, employment, retention,
termination, severance, health, life or other welfare, fringe or other plan,
agreement, trust, fund, policy or arrangement for the benefit of any current or
former directors, officers or employees, or grant or pay any benefit not
required by any existing plan or arrangement;
(i) change in any material respect any of the accounting principles
used by it, unless required by GAAP;
50
<PAGE>
(j) acquire any business or capital stock, merge or consolidate with
any other person or sell, encumber or otherwise transfer any business or
material portion thereof; or
(k) agree to do any of the foregoing.
6.2. Access to Information. From the date hereof to the Effective
---------------------
Time, but subject to applicable confidentiality agreements creating obligations
to others and excluding information provided to the Company's Board of Directors
with respect to the Offer, the Company shall, and shall cause its subsidiaries,
officers, directors, employees, auditors and other agents to, afford the
officers, employees, auditors and other agents of the Parent, and to
representatives of and advisors to financing sources, reasonable access during
normal business hours to its officers, employees, agents, properties, offices,
plants and other facilities and to all books, records and contracts, and shall
furnish the Parent and such financing sources with all financial, operating and
other data and information as the Parent, through its officers, employees or
agents, or such financing sources may from time to time reasonably request. The
Company will promptly furnish to the Parent, at the Parent's expense and subject
to the Confidentiality Agreement, a copy of each material document filed or
received by it pursuant to the Federal securities
51
<PAGE>
laws or Federal or state tax laws or any Environmental Laws, and of such other
documents as the Parent may reasonably request.
6.3. Shareholder Approval. (a) If required by applicable law in
--------------------
order to consummate the Merger, as soon as practicable following the purchase of
the Shares pursuant to the Offer, the Company, acting through its Board of
Directors, shall in accordance with applicable law, except to the extent that
the Board of Directors of the Company, after taking into account the advice of
counsel to the Company, concludes that any action is required in the proper
exercise of its fiduciary duties, take all steps necessary duly to call, set a
record date for, give notice of, convene and hold a meeting of its shareholders
as soon as practicable for the purpose of adopting and approving this Agreement
and the transactions contemplated hereby. At such meeting, the Parent and the
Purchaser will each vote, or cause to be voted, all Shares acquired in the Offer
or otherwise beneficially owned by it or any of its subsidiaries on the record
date for such meeting, in favor of the approval and adoption of this Agreement
and the transactions contemplated hereby.
(b) The Company will, if required by law for the consummation of the
Merger, prepare and file a Proxy Statement with the SEC, and shall use all
reasonable efforts to
52
<PAGE>
obtain and furnish the information required to be included by it in the Proxy
Statement and, after consultation with the Parent, to respond promptly to any
comments made by the SEC with respect to the Proxy Statement and any preliminary
version thereof and cause the Proxy Statement to be mailed to its shareholders
at the earliest practicable time following the purchase of the Shares pursuant
to the Offer. The Board of Directors of the Company and the Board of Directors
of the Parent and the Purchaser have each deter mined that the Merger is
advisable and in the best interests of shareholders of their respective
companies and, except to the extent that the Board of Directors of the Company
after taking into account the advice of counsel to the Company, concludes that
any action is required in the proper exercise of its fiduciary duties, the Board
of Directors of the Company will (i) recommend to the shareholders of the
-
Company the adoption and approval of this Agreement and the transactions
contemplated hereby and the other matters to be submitted to such shareholders
in connection therewith and (ii) use all reasonable efforts to obtain the
--
necessary approval by the shareholders of the Company of this Agreement and the
transactions contemplated hereby.
(c) Notwithstanding the foregoing, in the event that after the
closing of the Offer the Purchaser shall be the owner of at least 90 percent of
the outstanding Shares,
53
<PAGE>
the parties hereto shall take all necessary and appropriate action to cause the
Merger to become effective, as soon as practicable after the expiration of the
Offer and compliance with the applicable provisions of the IBCA and any
applicable rules of the SEC, without a meeting of shareholders of the Company,
if practicable, in accordance with Section 253 of the GCL and Section 11.30 of
the IBCA.
6.4. Reasonable Efforts. Subject to the terms and conditions herein
------------------
provided and the fiduciary duties of the Board of Directors of the Company, each
of the parties hereto agrees to use all reasonable efforts consistent with
applicable legal requirements to take, or cause to be taken, all action, and to
do, or cause to be done, all things necessary or proper and advisable under
applicable laws and regulations to ensure that the conditions set forth in Annex
A hereto and Article VII hereof are satisfied and to consummate and make
effective, in the most expeditious manner practicable, the transactions
contemplated by this Agreement.
6.5. Consents. The Parent and the Company each shall use all
--------
reasonable efforts to obtain all material consents of third parties and
governmental authorities, and to make all governmental filings, necessary to the
consummation of the transactions contemplated by this Agreement. The Company,
the Parent and the Purchaser have
54
<PAGE>
previously filed Pre-Merger Notification and Report Forms under the HSR Act with
the Federal Trade Commission (the "FTC") and the Antitrust Division of the
Department of Justice (the "Antitrust Division") and shall use all reasonable
efforts to respond as promptly as practicable to all inquiries received from the
FTC or the Antitrust Division for additional information or documentation.
6.6. Public Announcements. The Parent and the Company will consult
--------------------
with each other before issuing any press release or otherwise making any public
statements with respect to the Offer or the Merger and shall not issue any such
press release or make any such public statement prior to such consultation,
except as may be required by law or by obligations pursuant to any listing
agreement with any securities exchange.
6.7. Consent of DH Holdings. DH Holdings, as the sole shareholder of
----------------------
the Purchaser, by executing this Agreement consents to the execution and
delivery of this Agreement by the Purchaser and the consummation of the Merger
and the other transactions contemplated hereby and such consent shall be treated
for all purposes as a vote duly cast at a meeting of the shareholders of the
Purchaser held for such purpose.
6.8. No Solicitation. Neither the Company nor any of its
---------------
subsidiaries nor any of their respective of-
55
<PAGE>
ficers, directors, employees, agents or representatives (including, without
limitation, investment bankers, attorneys and accountants) shall, directly
or indirectly, (a) solicit, initiate or encourage or (b) enter into any
- -
discussions or negotiations with, in a continuance any discussions or
negotiations commenced before the date of this Merger Agreement with, or
disclose directly or indirectly any information not customarily disclosed
concerning its business and properties to, or afford any access to its
properties, books and records to, any corporation, partnership or other person
or group in connection with any possible proposal (an "Acquisition Proposal")
regarding a sale of the Company's capital stock or a merger, consolidation or
sale or spin-off of all or a substantial portion of the assets of the Company or
any subsidiary of the Company which is material to the Company and its
subsidiaries taken as a whole, or a liquidation or a recapitalization of the
Company, or any similar transaction; provided that (x) in response to an
-------- -
Acquisition Proposal made without such solicitation, initiation or
encouragement, the Company may (to the extent that the Board of Directors of the
Company, after taking into account the advice of counsel to the Company,
concludes that any of the following actions is required in the proper exercise
of its fiduciary duties) (i) furnish information-with respect to the Company
-
56
<PAGE>
to any person pursuant to a confidentiality agreement no more favorable to such
person than the Confidentiality Agreement is to the Parent and (ii) participate
--
in negotiations regarding such Acquisition Proposal and (y) the Company's Board
-
of Directors shall be free to take and disclose any position with respect to a
third party offer pursuant to Rules l4d-9 and l4e-2 under the Exchange Act and
make such disclosures to the Company's shareholders, which, upon the advice of
the Company's counsel, is required by applicable law. The Company will notify
the Parent immediately, orally and in writing, if any discussions or
negotiations are sought to be initiated, any inquiry or pro proposal is made, or
any such information is requested, with respect to an Acquisition Proposal or
potential Acquisition Proposal or if any Acquisition Proposal is received or if
the Company has been informed that an Acquisition Proposal is forthcoming, and
will include in such notification the identity of the other party or parties and
the material terms and conditions of any such request, inquiry or Acquisition
Proposal. The Company will keep the Parent informed in reasonable detail of the
status (including amendments or proposed amendments) of any such request,
inquiry or Acquisition Proposal.
6.9. Indemnification; Insurance. (a) For a period of six years
--------------------------
after the Effective Time, the Parent
57
<PAGE>
shall, and shall cause the Surviving Corporation to, indemnify, defend and hold
harmless the present and former officers, directors, employees and agents of the
Company and its subsidiaries (collectively, the "Indemnified Parties") from and
against, and pay or reimburse the Indemnified Parties for, all losses,
obligations, expenses, claims, damages or liabilities (whether or not resulting
from third-party claims and including interest, penalties, out-of-pocket
expenses and attorneys' fees incurred in the investigation or defense of any of
the same or in asserting any of their rights hereunder) resulting from or
arising out of actions or omissions occurring on or prior to the Effective Time
(including, without limitation, the transactions contemplated by this Agreement)
to the full extent permitted or required under applicable law and, in the case
of indemnification by the Surviving Corporation, to the extent permitted under
the provisions of the Articles of Incorporation and the By-Laws of the Company,
each as in effect at the date hereof (which provisions shall not be amended in
any manner which adversely affects any Indemnified Party, for a period of six
years), including provisions relating to advances of expenses incurred in the
defense of any action or suit; provided that in the event any claim or claims
--------
are asserted or made within such six-year period, all rights to indemnification
in respect of
58
<PAGE>
each such claim shall continue until final disposition of such claim. Without
limiting the foregoing, in any case in which approval by the Surviving
Corporation is required to effectuate any indemnification, the Parent shall
cause the Surviving Corporation to direct, at the election of the Indemnified
Party, that the determination of any such approval shall be made by independent
counsel selected by the Indemnified Party.
(b) Any Indemnified Party wishing to claim indemnification under
Section 6.9(a) shall provide notice to the Parent promptly after such
Indemnified Party has actual knowledge of any claim as to which indemnity may be
sought, provided that failure to provide such notice shall not relieve the
--------
Parent or the Surviving Corporation of its obligations hereunder except to the
extent that the Parent or the Surviving Corporation is materially prejudiced
thereby, and the Indemnified Party shall permit the Parent (at the Parent's
expense) to assume the defense of any claim or any litigation resulting
therefrom; provided that (i) counsel for the Parent who shall conduct the
-------- -
defense of such claim or litigation shall be reasonably satisfactory to the
Indemnified Party, and the Indemnified Party may par participate in such defense
at such Indemnified Party's expense, and (ii) the omission by any Indemnified
--
Party to give notice as provided herein shall not relieve the Parent
59
<PAGE>
of its indemnification obligation under this Agreement except to the extent that
such omission results in a failure of actual notice to the Parent and the Parent
is materially damaged as a result of such failure to give notice. The Parent
shall not, in the defense of any such claim or litigation, except with the
consent of the Indemnified Party, consent to entry of any judgment or enter into
any settlement that provides for injunctive or other nonmonetary relief
affecting the Indemnified Party or that does not include as an unconditional
term thereof the giving by the claimant or plaintiff to such Indemnified Party
of a release from all liability with respect to such claim or litigation. In the
event that the Parent does not accept the defense of any matter as above
provided, or counsel for the Indemnified Parties advises that there are issues
which raise conflicts of interest between the Parent or the Surviving
Corporation and the Indemnified Parties, the Indemnified Parties may retain
counsel satisfactory to them, and the Parent or the Surviving Corporation shall
pay all reasonable fees and expenses of such counsel for the Indemnified Parties
promptly as statements therefor are received; provided that the Parent shall not
--------
be liable for any settlement effected without its prior written consent (which
consent shall not be unreasonably withheld). In any event, the Parent and the
Indemnified Parties shall cooperate in the defense of any
60
<PAGE>
action or claim subject to this Section 6.9 and the records of each shall be
available to the other with respect to such defense.
(c) For not less than six years after the Effective Time, the Parent
and the Purchaser shall maintain in effect directors' and officers' liability
insurance covering the Indemnified Parties who are currently covered by the
Company's existing directors' and officers' liability insurance, on terms and
conditions no less favorable to such directors and officers than those in effect
on the date hereof; provided that in no event shall the Parent be required to
--------
expend in any one year an amount in excess of 150% of the annual premiums
currently paid by the Company for such insurance (the Company represents that
the annual premium is currently approximately $182,000); and, provided, further,
-------- -------
that if the annual premiums of such insurance coverage exceed such amount, the
Parent shall be obligated to obtain a policy with the greatest coverage
available for a cost not exceeding such amount.
6.10. Employee Benefits; Severance Agreements and Plans. (a) The
-------------------------------------------------
Parent shall maintain, or cause the Surviving Corporation to maintain, until
December 31, 1996, employee benefit plans which, in the aggregate, will provide
benefits to the employees of the Company and its subsidiaries that are
substantially comparable, in the
61
<PAGE>
aggregate, to those provided to such employees under the employee benefit plans
of the Company in effect on the date of this Agreement, and, after December 31,
1996, will provide such employees with benefits that are consistent with those
provided to other employees of the Parent. To the extent that any employee of
the Company or its subsidiaries is to be covered by any employee benefit plan of
the Parent or its subsidiaries, such employee shall, for the purposes of
eligibility and vesting (but not accrual of benefits under such plans), be
credited with his or her years of service with the Company or its subsidiaries
as of the Effective Time and with years of service with prior employers to the
extent service with prior employers is taken into account under corresponding
plans of the Company or its subsidiaries. With respect to any employee of the
Company or its subsidiaries who becomes eligible to participate in any medical
plan of the Parent or its subsidiaries (but without creating any obligation in
the Parent or its subsidiaries to increase the medical conditions covered by any
such medical plan of the Parent or its subsidiaries), (i) no condition that
-
would have been covered under the applicable medical plan of the Company in
which such employee participated immediately prior to the change in coverage
shall be excluded as a pre-existing condition from coverage under any medical
plan of the Parent
62
<PAGE>
or its subsidiaries and (ii) amounts paid before such participation by such
--
employee of the Company under the applicable medical plan of the Company with
respect to the plan year in which such participation commences shall be taken
into account in applying deductibles and maximum out-of-pocket limits applicable
under the medical plan of the Parent with respect to the balance of such plan
year to the same extent as if such amounts had been paid under such medical plan
of the Parent.
(b) Parent shall honor, or cause the Company to honor, effective
upon the consummation of the Offer, the Company's obligations under the
Company's existing severance agreements dated as of September 16, 1994 with
Messrs. Diehl, Koprowski and Wolski. With respect to other employees, the Parent
shall honor, or shall cause the Company to honor, effective upon the
consummation of the Offer, the Company's Severance Plan for the Corporate Staff
and the Severance Policy for Corporate Managers (such plan and policy, the
"Severance Policies") as in effect on the date of this Agreement, including the
provisions of the Severance Policies relating to amendment or termination of the
Severance Policies. The Company represents and warrants that correct copies of
the Severance Policies have been filed as exhibits to Disclosure Statements. The
Parent acknowledges that consummation of the Offer will constitute
63
<PAGE>
a "Change in Control" under such severance agreements and the Severance
Policies.
6.11. Stock Options. Prior to the acquisition of Shares pursuant to
-------------
the Offer, the Company shall make all necessary and appropriate adjustments to
(including without limitation an adjustment, reasonably satisfactory to the
Purchaser, in the number of Shares subject to outstanding options and in the
option prices per Share to reflect the change in the number of Shares that will
be outstanding following the Merger), and shall use all reasonable efforts to
obtain all necessary consents with respect to, all of the Company's employee
stock options other than any options which contain a stock appreciation right
and will therefore be converted into a right to receive cash upon a change of
control of the Company, in order that such stock options may be cancelled and
settled by the Company as provided in Section 3.5 hereof.
6.12. Transfer Taxes. The Surviving Corporation shall pay any
--------------
transfer Taxes payable in connection with the Merger and shall be responsible
for the preparation and filing of any required Tax Returns with respect to such
Taxes.
6.13. Anti-takeover Statutes. If any "fair price," "moratorium,"
----------------------
"control share acquisition" or other form of anti-takeover statute is or shall
become applicable
64
<PAGE>
to the Offer, Merger or other transactions contemplated hereby, the Company and
the members of the Board of Directors of the Company shall grant such approvals
and take such actions as are necessary so that the Offer, Merger and other
transactions contemplated hereby may be consummated as promptly as practicable
on the terms contemplated hereby and otherwise act to eliminate or minimize the
effects of any such anti-takeover statute on the transactions contemplated
hereby.
6.14. No Amendment to the Rights Agreement. The Company covenants
------------------------------------
and agrees that so long as this Agreement is in effect, it will not amend the
Rights Agreement or redeem the Rights or terminate the Rights Agreement prior to
the Effective Date, except as expressly contemplated by this Agreement.
6.15. Notification of Certain Matters. The Company will give prompt
-------------------------------
notice to the Parent and the Purchaser, and the Parent and the Purchaser will
give prompt notice to the Company, of (a) the occurrence or non-occurrence of
-
any event likely to cause (i) any representation or warranty contained in this
-
Agreement to be untrue or inaccurate in any material respect, and (ii) any
--
failure of the Company, or of the Parent or the Purchaser, as the case may be,
to comply with or satisfy any covenant, condition or agreement to be complied
with or satisfied
65
<PAGE>
under this Agreement; provided, however, that the delivery of any notice
-------- -------
pursuant to this Section 6.15 will not limit or otherwise affect the remedies
available under this Agreement to the party receiving such notice and (b) any
communication (written or oral) received by any director or officer of the
Company from any person that alleges any noncompliance with Environmental Laws
or any Environmental Liability on the part of the Company or any of its
subsidiaries that is material to the Company and its subsidiaries taken as a
whole.
6.16. Disposition of Litigation. Each of the Parent, the Purchaser
-------------------------
and the Company agrees promptly to use all reasonable efforts to withdraw (and
shall not refile) all pending litigation between the parties.
6.17. Proxy Contest. The Parent and the Purchaser agree to withdraw
-------------
(and not refile) the Schedule 14A filed with the SEC relating to the calling of
a special meeting for, among other things, the removal of the directors of the
Company.
6.18. Stock Exchange Listing. The Parent shall use all reasonable
----------------------
efforts to list on the NYSE, upon official notice of issuance, the shares of
common stock of the Parent to be issued upon exercise of the Substitute Options.
66
<PAGE>
ARTICLE VII
CLOSING CONDITIONS
7.1. Conditions to the Obligations of the Parent, the Purchaser and
--------------------------------------------------------------
the Company. The respective obligations of each party to effect the Merger
- -----------
shall be subject to the fulfillment at or prior to the Effective Time of the
following conditions:
(a) The Purchaser shall have purchased all Shares duly tendered and
not withdrawn pursuant to the terms of the Offer and subject to the terms
there of; provided that the obligation of the Parent, DH Holdings and the
Purchaser to effect the Merger shall not be conditioned on the fulfillment
of the condition set forth in this subsection (a) if the failure of the
Purchaser to purchase the Shares pursuant to the Offer shall have
constituted a breach of the Offer or of this Agreement.
(b) There shall not be in effect any statute, rule or regulation
enacted, promulgated or deemed applicable by any governmental authority of
competent jurisdiction that makes consummation of the Merger illegal and no
temporary restraining order, preliminary or permanent injunction or other
order issued by any court of competent jurisdiction or other legal
restraint or prohibition preventing the consummation of the Merger shall be
in effect; provided, however, that
-------- -------
67
<PAGE>
each of the parties shall use all reasonable efforts to prevent the entry of
any such injunction or other order and to appeal as promptly as possible any
injunction or other order that may be entered.
(c) If required by the Company's Articles of Incorporation or the
IBCA, this Agreement shall have been approved and adopted by the affirmative
vote of the holders of the requisite number of shares of Common Stock in
accordance with the Articles of Incorporation and By-Laws of the Company and
the IBCA.
7.2. Conditions to the Obligations of the Company. The obligation of
--------------------------------------------
the Company pursuant to this Agreement to consummate the Merger is also subject
to the Parent or the Purchaser having made all filings required prior to the
Closing (as defined below) with respect to, and having paid to the proper taxing
authorities or made adequate provision for the payment of, all transfer Taxes
payable in connection with the Merger.
ARTICLE VIII
CLOSING
8.1. Time and Place. The closing of the Merger (the "Closing") shall
--------------
take place at the offices of Debevoise & Plimpton, 875 Third Avenue, New York,
New York, as soon as
68
<PAGE>
practicable following satisfaction or waiver, if permissible, of the conditions
set forth in Article VII. The date on which the Closing actually occurs is
herein referred to as the "Closing Date."
8.2. Filings at the Closing. At the Closing, the Parent, the
----------------------
Purchaser and the Company shall cause the Delaware Certificate of Merger,
together with any other documents required by law to effectuate the Merger, to
be filed with the Secretary of State of the State of Delaware in accordance with
the provisions of the GCL, and the Illinois Articles of Merger to be filed with
the Secretary of State of the State of Illinois in accordance with the IBCA,
and shall take any and all other lawful actions and do any and all other lawful
things necessary to cause the Merger to become effective.
ARTICLE IX
TERMINATION AND ABANDONMENT
9.1. Termination. This Agreement may be terminated at any time prior
-----------
to the Effective Time, whether before or after approval by the shareholders of
the Company:
(a) by mutual consent of the Board of Directors of the Parent and the
Board of Directors of the Company;
69
<PAGE>
(b) by action of the Board of Directors of the Parent or action of
the Board of Directors of the Company if at least that number of Shares
required by the Minimum Condition shall not have been purchased in the Offer
on or before November 20, 1995, or the Merger shall not have been
consummated on or before February 20, 1996; provided, however, that the
--------
Board of Directors of the Parent shall have no right pursuant to this
Section 9.1(b) to terminate this Agreement after the consummation of the
Offer; and provided, further, that the right to terminate this Agreement
--------
shall not be available to any party whose failure to fulfill any obligation
under this Agreement has been the cause of, or resulted in, the failure of
the Offer or the Merger, as the case may be, to occur on or before the
aforesaid dates;
(c) by either the Parent or the Company if the Offer shall expire or
terminate in accordance with its terms without any Shares having been
purchased thereunder and, in the case of termination by the Parent, the
Purchaser shall not have been required by the terms of the Offer or this
Agreement to purchase any Shares pursuant to the Offer;
(d) by the Company if (i) the Purchaser shall not timely amend the
Offer as provided in Section 1.1(a) or
70
<PAGE>
(ii) the Parent, DH Holdings or the Purchaser shall fail to comply in any
material respect with any of its covenants or agreements required to be
complied with by it before the date of such termination and such failure to
comply shall not be cured within four business days following receipt by the
Parent from the Company of written notice of such failure and demand for
cure;
(e) by either the Parent, the Purchaser or the Company, if any court
of competent jurisdiction in the United States or other governmental agency
of competent jurisdiction shall have issued an order, decree or ruling or
taken any other action restraining, permanently enjoining or otherwise
prohibiting the consummation of the Offer or the Merger, and such order,
decree, ruling or other action shall have become final and non-appealable;
(f) by the Company if prior to the purchase of Shares pursuant to the
Offer, and after receipt of a Superior Proposal and at a time that is after
the second business day after the Parent has received written notice from
the Company advising the Parent of the Company's receipt of a Superior
Proposal, specifying the material terms and conditions of such Superior
Proposal and identifying the person making such Superior Proposal, the Board
of Directors of the
71
<PAGE>
Company or any committee thereof (i) shall have with drawn or modified in a
manner adverse to the Purchaser or the Parent, and in a manner consistent
with Section 4.3(b) of this Agreement, its approval or recommendation of
the Offer, this Agreement, the Merger or any other transaction contemplated
by any of the foregoing or (ii) shall have recommended a Superior Proposal,
or (iii) shall have resolved to do any of the foregoing; provided, however,
-----------------
that such termination under this paragraph (f) shall not be
effective until the Company has made payment to DH Holdings of the Fee (as
defined in Section 9.3(a)) required to be paid pursuant to Section 9.3(a)
and has either paid to Parent $1.5 million for Expenses (the Parent hereby
agrees to refund any excess of such amount over actual Expenses) or
deposited with a mutually acceptable escrow agent $1.5 million for
reimbursement to Parent, DH Holdings and Purchaser of Expenses (as defined
in Section 9.3(b)); or
(g) by the Company, upon approval of the Board of Directors of the
Company, if prior to the purchase of Shares pursuant to the Offer, the Board
of Directors of the Company shall have withdrawn or modified in a manner
adverse to Purchaser or Parent, and in a manner consistent with Section
4.3(b) of this Agreement (in-
72
<PAGE>
cluding as to timing and contents of notice to the Parent with respect to
any Superior Proposal), its approval of recommendation of the Offer, this
Agreement or the Merger in order to approve the execution by the Company of
a definitive agreement providing for the acquisition of the Company or its
assets or Shares pursuant to a Superior Proposal; provided, however, that
-------- -------
such termination under this paragraph (g) shall not be effective until the
Company has made payment to DH Holdings of the Fee required to be paid
pursuant to Section 9.3(a) and has either paid to Parent $1.5 million for
Expenses (the Parent hereby agrees to refund any excess of such amount over
actual Expenses) or deposited with a mutually acceptable escrow agent $1.5
million for reimbursement to Parent, DH Holdings and Purchaser of Expenses
(as defined in Section 9.3(b)).
9.2. Procedure and Effect of Termination. In the event of
-----------------------------------
termination and abandonment of the Merger by the Parent, the Purchaser or the
Company pursuant to Section 9.1, written notice thereof shall forthwith be
given to the others, and this Agreement shall terminate and the Merger shall be
abandoned, without further action by any of the parties hereto. The Purchaser
agrees that any termination by the Parent shall be conclusively binding upon
it,
73
<PAGE>
whether given expressly on its behalf or not, and the Company shall have no
further obligation with respect to it. If this Agreement is terminated as
provided herein, no party hereto shall have any liability or further obligation
to any other party to this Agreement, provided that any termination shall be
--------
without prejudice to the rights of any party hereto arising out of breach by any
other party of any covenant or agreement contained in this Agreement, and
provided, further, that the obligations set forth in the second sentence of
- -------- -------
Section 1.2(a) and Sections 4.16, 5.6, 6.12, 9.3 and 10.7 shall in any event
survive any termination.
9.3. Fees and Expenses. (a) In the event that:
-----------------
(i) any person (including, without limitation, the Company or any
affiliate thereof) or group, other than the Parent or any affiliate of the
Parent, shall have become the beneficial owner of more than 15% of the then
outstanding Shares and thereafter this Agreement shall have been terminated
pursuant to Section 9.1 and within 12 months of such termination a Third
Party Acquisition (as hereinafter defined) shall occur; or
(ii) any person or group shall have commenced, publicly proposed or
communicated to the Company a proposal that is publicly disclosed for a
tender or exchange offer for more than 30% (or which, assuming
74
<PAGE>
the maximum amount of securities which could be purchased, would result in
any person or group beneficially owning more than 30%) of the then
outstanding Shares or otherwise for the direct or indirect acquisition of
the Company or all or substantially all of its assets for per Share
consideration having a value greater than the per Share amount proposed to
be paid pursuant to the Offer hereunder and (A) the Offer shall have
-
remained open for at least 20 business days, (B) the Minimum Condition
-
shall not have been satisfied and (C) this Agreement shall have been
-
terminated pursuant to Section 9.1; or
(iii) this Agreement is terminated pursuant to Section 9.1(f) or (g);
then, in any such event, the Company shall pay DH Holdings promptly (but in no
event later than one business day after the first of such events shall have
occurred) a fee of $6.0 million (the "Fee"), which amount shall be payable in
immediately available funds, plus all Expenses (as hereinafter defined);
provided that, in the case described in clause (ii) of this Section 9.3(a), if
(x) the Parent has terminated this Agreement and (y) the Board of Directors of
- -
the Company or any committee thereof (A) shall not have withdrawn or modified in
-
a manner adverse to the Purchaser
75
<PAGE>
or the Parent its approval or recommendation of the Offer, this Agreement or the
Merger, (B) shall not have approved or recommended the proposal of the person or
-
group referred to in clause (ii) and (C) shall not have resolved to do any of
-
the foregoing, the Company shall pay to DH Holdings on such termination all
Expenses and shall pay the Fee only if, within 12 months of such termination, a
Third Party Acquisition shall occur.
(b) "Expenses" means all out-of-pocket expenses and fees up to $1.5
--------
million in the aggregate (including, without limitation, fees and expenses
payable to all banks, investment banking firms, other financial institutions and
other persons and their respective agents and counsel for arranging, committing
to provide or providing any financing for the Offer, the Merger and any
transactions contemplated thereby or structuring the transactions and all fees
of counsel, accountants, experts and consultants to Parent, DH Holdings and
Purchaser, and all printing and advertising expenses) actually incurred or
accrued by either of them or on their behalf in connection with the
transactions, including, without limitation, litigation related thereto and the
financing thereof, and actually incurred or accrued by banks, investment banking
firms, other financial institutions and other persons and assumed by Parent, DH
Holdings or Purchaser in connection with the negotiation,
76
<PAGE>
preparation, execution and performance of this Agreement, the structuring and
financing of the Offer, the Merger and any transactions contemplated thereby and
any litigation and any financing commitments or agreements relating thereto.
(c) Except as set forth in this Section 9.3, all costs and expenses
incurred in connection with this Agreement and the Offer, the Merger and any
transactions contemplated thereby shall be paid by the party incurring such
expenses, whether or not any Transaction is consummated.
(d) In the event that the Company shall fail to pay the Fee or any
Expenses when due, the term "Expenses" shall be deemed to include the costs and
expenses actually incurred or accrued by the Parent, DH Holdings and Purchaser
(including, without limitation, fees and expenses of counsel) in connection with
the collection under and enforcement of this Section 9.3, together with interest
on such unpaid Fee and Expenses, commencing on the date that the Fee or such
Expenses became due, at a rate equal to the rate of interest publicly announced
by Citibank, N.A., from time to time, in the City of New York, as such bank's
Prime Rate plus 1.00%.
(e) "Third Party Acquisition" means the occurrence of any of the
-----------------------
following events: (i) the acquisition of the Company by merger, consolidation
-
or other business combination transaction by any person other than the Parent,
77
<PAGE>
the Purchaser or any affiliate thereof (a "Third Party"); (ii) the acquisition
----- ----- --
by any Third Party of 50% or more (in book value or market value) of the total
assets of the Company and its subsidiaries, taken as a whole; (iii) the
---
acquisition by a Third Party of 50% or more of the outstanding Shares whether
by tender offer, exchange offer or otherwise; (iv) the adoption by the Company
--
of a plan of liquidation or the declaration or payment of an extraordinary
dividend; or (v) the repurchase by the Company or any of its subsidiaries of 50%
-
or more of the outstanding Shares.
ARTICLE X
MISCELLANEOUS
10.1. Amendment and Modification. Subject to applicable law, this
--------------------------
Agreement may be amended, modified or supplemented only by written agreement of
the Parent, DH Holdings, the Purchaser and the Company at any time prior to the
Effective Time with respect to any of the terms contained herein, provided, that
--------
after this Agreement is adopted by the Company's shareholders pursuant to
Section 6.3, no such amendment or modification shall be made that reduces the
amount or changes the form of the Merger Consideration or otherwise materially
and adversely affects
78
<PAGE>
the rights of the Company's shareholders hereunder, without the further approval
of such shareholders.
10.2. Waiver of Compliance; Consents. Any failure of the Parent, DH
------------------------------
Holdings or the Purchaser, on the one hand, or the Company, on the other hand,
to comply with any obligation, covenant, agreement or condition herein may be
waived by the Company or the Parent, respectively, only by a written instrument
signed by the party granting such waiver (and, in the case of the Company,
approved in accordance with the provisions of Section 1.3(c) if applicable), but
such waiver or failure to insist upon strict compliance with such obligation,
covenant, agreement or condition shall not operate as a waiver of, or estoppel
with respect to, any subsequent or other failure. Whenever this Agreement
requires or permits consent by or on behalf of any party hereto, such consent
shall be given in writing in a manner consistent with the requirements for a
waiver of compliance as set forth in this Section 10.2. Each of DH Holdings and
the Purchaser hereby agrees that any consent or waiver of compliance given by
the Parent hereunder shall be conclusively binding upon it, whether given
expressly on its behalf or not.
10.3. Survival of Warranties. Each and every representation and
----------------------
warranty made in Article IV, other than Section 4.16 (if this Agreement is
terminated before
79
<PAGE>
consummation of the Offer), and Article V, other than Sections 5.2 and 5.7 (if
this Agreement is terminated before consummation of the Offer), of this
Agreement shall expire with, and be terminated and extinguished by, the Merger,
or the termination of this Agreement pursuant to Section 9.1. This Section 10.3
shall have no effect upon any other obligation of the parties hereto, whether to
be performed before or after the Closing.
10.4. Notices. All notices and other communications hereunder shall
-------
be in writing and shall be deemed given if (a) delivered personally or by
-
overnight courier, (b) mailed by registered or certified mail, return receipt
-
requested, postage prepaid, or (c) transmitted by telecopier, and in each case,
-
addressed to the parties at the following addresses (or at such other address
for a party as shall be specified by like notice; provided that notices of a
change of address shall be effective only upon receipt thereof):
(a) if to the Parent, DH Holdings or the Purchaser, to
Danaher Corporation
1250 24th Street, N.W.
Washington, D.C. 20037
Telecopy: (202) 828-0860
Attention: Patrick W. Allender
--------- Vice President and Chief
Financial Officer
80
<PAGE>
with a copy to
Debevoise & Plimpton
875 Third Avenue
New York, New York 10022
Telecopy: (212) 909-6836
Attention: Meredith M. Brown
---------
(b) if to the Company, to
Joslyn Corporation
30 South Wacker Drive
Chicago, Illinois 60606
Telecopy: (312) 454-2905
Attention: William E. Bendix
--------- Chairman of the Board
and
Lawrence G. Wolski
Chief Executive Officer
with a copy to
Sidley & Austin
One First National Plaza
Chicago, Illinois 60603
Telecopy: (312) 853-7036
Attention: Thomas A. Cole
--------- and
Jon M. Gregg
Any notice so addressed shall be deemed to be given (i) three business days
-
after being mailed by first-class, registered or certified mail, return receipt
requested, postage prepaid and (ii) upon delivery, if transmitted by hand
--
delivery, overnight courier or telecopier.
10.5. Assignment; Parties in Interest. This Agreement and all of the
-------------------------------
provisions hereof shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and permitted assigns, but
81
<PAGE>
neither this Agreement nor any of the rights, interests or obligations hereunder
shall be assigned by any of the parties hereto without the prior written consent
of the other parties (except that the Purchaser may assign to the Parent or any
other direct or indirect wholly-owned subsidiary of the Parent any and all
rights and obligations of the Purchaser under this Agreement and/or the
Purchaser's right to purchase Shares transferred pursuant to the Offer, provided
that any such assignment will not relieve the Parent or the Purchaser from any
of its obligations under this Agreement). Except for Section 5.6, which is
intended for the benefit of the Company's shareholders, and Section 6.9, which
is intended for the benefit of the Company's directors, officers, employees and
agents, this Agreement is not intended to confer upon any other person except
the parties any rights or remedies under or by reason of this Agreement.
10.6. Specific Performance. The parties hereto agree that
--------------------
irreparable damage would occur in the event that any of the provisions of this
Agreement were not performed in accordance with their specific terms or were
otherwise breached. It is accordingly agreed that the parties shall be entitled
to an injunction or injunctions to prevent breaches of this Agreement and to
enforce specifically the terms and provisions hereof in any court of the United
82
<PAGE>
States or any state having jurisdiction, this being in addition to any other
remedy to which they are entitled at law or in equity.
10.7. Governing Law. This Agreement shall be governed by the laws of
-------------
the State of Illinois (regardless of the laws that might otherwise govern under
applicable principles of conflicts of law) as to all matters, including but not
limited to matters of validity, construction, effect, performance and remedies.
10.8. Counterparts. This Agreement may be executed in two or more
------------
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
10.9. Interpretation. The article and section headings contained in
--------------
this Agreement are solely for the purpose of reference, are not part of the
agreement of the parties and shall not in any way affect the meaning or
interpretation of this Agreement. As used in this Agreement, (i) the term
-
"person" shall mean and include an individual, a partnership, a joint venture, a
corporation, a trust, an unincorporated organization and a government or any
department or agency thereof; (ii) the terms "affiliate" and "associate" shall
--
have the meanings set forth in Rule l2b-2 of the General Rules and Regulations
promulgated under the Exchange Act; and (iii) the term "subsidiary" of any
---
83
<PAGE>
specified corporation shall mean any corporation of which the outstanding
securities having ordinary voting power to elect a majority of the board of
directors are directly or indirectly owned by such specified corporation; and
(iv) the phrase "to the knowledge" of any specified corporation shall refer only
to the actual knowledge of the directors or officers of such corporation.
10.10. Entire Agreement. This Agreement, including the annexes and
----------------
the exhibits and schedules to this Agreement, and the Confidentiality Agreement,
embody the entire agreement and understanding of the parties hereto in respect
of the subject matter contained herein and supersedes all prior agreements and
the understandings between the parties with respect to such subject matter.
84
<PAGE>
IN WITNESS WHEREOF, the Parent, DH Holdings, the Purchaser and the
Company have caused this Agreement to be signed by their respective duly
authorized officers as of the date first above written.
DANAHER CORPORATION
By_______________________
Name:
Title:
DH HOLDINGS CORP.
By________________________
Name:
Title:
TK ACQUISITION CORPORATION
By_______________________
Name:
Title:
JOSLYN CORPORATION
By_______________________
Name:
Title:
85
<PAGE>
ANNEX A
-------
Conditions to the Offer. Notwithstanding any other provision of the
-----------------------
Offer, the Purchaser shall not be required to accept for payment, or, subject to
any applicable rules and regulations of the Securities and Exchange Commission
(the "Commission"), including Rule 14e-1(c) under the Exchange Act (relating to
the Purchaser's obligation to pay for or return tendered shares after the
termination or withdrawal of the Offer), to pay for any Shares not theretofore
accepted for payment or paid for, and the Purchaser may (subject to the terms of
the Merger Agreement) amend or terminate the Offer as to such Shares not
theretofore accepted for payment or paid for (subject to any such applicable
rules and regulations of the Commission) (i) unless there are validly tendered
-
and not properly withdrawn prior to the expiration of the Offer that number of
Shares which, when aggregated with the Shares currently owned by the Parent and
any of its subsidiaries, represents at least two-thirds of the Shares on a
fully-diluted basis, or (ii) if at any time on or after the date of the Merger
--
Agreement and at or before the time that the particular Shares are accepted for
payment (whether or not any other Shares shall theretofore have been accepted
for payment or paid for pursuant to the Offer) any of the following conditions
exists:
1
<PAGE>
(a) there shall have been any action or proceeding brought by any
governmental authority before any federal or state court, or any order or
preliminary or permanent injunction entered in any action or proceeding
before any federal or state court or governmental, administrative or
regulatory authority or agency, located or having jurisdiction within the
United States or any country or economic region in which either the Company
or the Parent, directly or indirectly, has material assets or operations,
or any statute, rule, regulation, legislation, interpretation, judgment or
order enacted, entered, enforced, promulgated, amended, issued or deemed
applicable to the Purchaser, the Company or any subsidiary or affiliate of
the Purchaser or the Company or the Offer or the Merger, by any legislative
body, court, government or governmental, administrative or regulatory
authority or agency located or having jurisdiction within the United States
or any country or economic region in which either the Company or the
Parent, directly or indirectly, has material assets or operations, which
could reasonably be expected to have the effect of: (i) making illegal, or
-
otherwise directly or indirectly prohibiting, materially restraining or
making materially more costly, the
2
<PAGE>
making of the Offer, the acceptance for payment of, payment for, or
ownership, directly or indirectly, of some or all of the Shares by the
Parent or the Purchaser, the consummation of any of the transactions
contemplated by the Merger Agreement or materially delaying the Merger;
(ii) prohibiting or materially limiting the ownership or operation by the
--
Company or any of its subsidiaries that owns a material portion of the
business and assets of the Company and its subsidiaries taken as a whole,
or by the Parent, the Purchaser or any of the Parent's subsidiaries of all
or any material portion of the business or assets of the Company and its
subsidiaries taken as a whole or the Parent and its subsidiaries taken as a
whole, or compelling the Purchaser, the Parent or any of the Parent's
subsidiaries to dispose of or hold separate all or any material portion of
the business or assets of the Company and its subsidiaries taken as a whole
or the Parent and its subsidiaries taken as a whole, as a result of the
transactions contemplated by the Offer or the Merger Agreement; (iii)
---
imposing limitations on the ability of the Purchaser, the Parent or any of
the Parent's subsidiaries effectively to acquire or hold or to exercise
full rights of ownership of Shares including, without limitation, the right
to vote any
3
<PAGE>
Shares acquired or owned by the Parent or the Purchaser or any of the
Parent's subsidiaries on all matters properly presented to the shareholders
of the Company, including, without limitation, the adoption and approval of
the Merger Agreement and the Merger or the right to vote any shares of
capital stock of any subsidiary (other than immaterial subsidiaries)
directly or indirectly owned by the Company; (iv) requiring divestiture by
--
the Parent or the Purchaser, directly or indirectly, of any Shares; or (v)
-
which could reasonably be expected to materially adversely affect the
business, financial condition or results of operations of the Company and
its subsidiaries taken as a whole or the value of the Shares or of the
Offer to the Purchaser or the Parent;
(b) there shall have occurred, or the Purchaser shall have become
aware of any fact that has had, or could reasonably be expected to have, a
Material Adverse Effect;
(c) there shall have occurred (i) any general suspension of trading
-
in, or limitation on prices for, securities on any national securities
exchange or in the over-the-counter market in the United States, (ii) a
--
decline of at least 20% in either the Dow Jones Average of Industrial
Stocks or the Standard & Poor's
4
<PAGE>
500 index from that existing at the close of business on August 18, 1995,
(iii) a declaration of a banking moratorium or any suspension of payments
---
in respect of banks in the United States, (iv) any limitation (whether or
--
not mandatory) by any government or governmental, administrative or
regulatory authority or agency, domestic or foreign, on, or any other event
that could reasonably be expected to materially adversely affect, the
extension of credit by banks or other lending institutions in the United
States or (v) a commencement of a war or armed hostilities or other
-
national or international calamity directly or indirectly involving the
United States which would reasonably be expected to have a Material Adverse
Effect or prevent (or materially delay) the consummation of the Offer;
(d) (i) it shall have been publicly disclosed or the Purchaser shall
-
have otherwise learned that beneficial ownership (determined for the
purposes of this paragraph as set forth in Rule 13d-3 promulgated under the
Exchange Act) of 15% or more of the outstanding Shares has been acquired by
any corporation (including the Company or any of its subsidiaries or
affiliates), partnership, person or other entity or group (as defined in
Section 13(d)(3) of the Exchange
5
<PAGE>
Act), other than the Parent or any of its affiliates, or (ii) (A) the Board
-- -
of Directors of the Company or any committee thereof shall have withdrawn
or modified in a manner adverse to the Parent or the Purchaser the approval
or recommendation of the offer, the Merger or the Merger Agreement, or
approved or recommended any takeover proposal or any other acquisition of
Shares other than the Offer and the Merger, (B) any such corporation,
-
partnership, person or other entity or group shall have entered into a
definitive agreement or an agreement in principle with the Company with
respect to a tender offer or exchange offer for any Shares or a merger,
consolidation or other business combination with or involving the Company
or (C) the Board of Directors of the Company or any committee thereof shall
-
have resolved to do any of the foregoing;
(e) any of the representations and warranties of the Company set
forth in the Merger Agreement that are qualified as to materiality shall
not be true and correct or any such representations and warranties that are
not so qualified shall not be true and correct in any material respect, in
each case as if such representations and warranties (other than
representations and warranties made as of a specified date) were made at
the time of such determination;
6
<PAGE>
(f) the Company shall have failed to perform in any material respect
any obligation or to comply in any material respect with any agreement or
covenant of the Company to be performed or complied with by it under the
Merger Agreement prior to the time of such determination; or
(g) the Merger Agreement shall have been terminated in accordance
with its terms or the Offer shall have been terminated with the consent of
the Company;
which, in the good faith sole judgment of the Purchaser with respect to each and
every matter referred to above and regardless of the circumstances (including
any action or inaction by the Purchaser or any of its affiliates not
inconsistent with the terms hereof and the terms of the Merger Agreement) giving
rise to any such condition, makes it inadvisable to proceed with the Offer or
with such acceptance for payment of or payment for Shares or to proceed with the
Merger.
The foregoing conditions are for the sole benefit of the Purchaser and
may be asserted by the Purchaser regardless of the circumstances giving rise to
any such condition or may be waived by the Purchaser in whole or in part at any
time and from time to time in its sole discretion (subject to the terms of the
Merger Agreement). The failure by the Purchaser at any time to exercise any of
7
<PAGE>
the foregoing rights shall not be deemed a waiver of any such right, the waiver
of any such right with respect to particular facts and other circumstances shall
not be deemed a waiver with respect to any other facts and circumstances, and
each such right shall be deemed an ongoing right that may be asserted at any
time and from time to time.
8
<PAGE>
ANNEX C
DANAHER CORPORATION
NON-QUALIFIED STOCK OPTION AND AGREEMENT
Under the terms and conditions of the Joslyn Corporation Non-Employee
Director Stock Plan ("Stock Plan") approved by the Board of Directors of Joslyn
Corporation ("Joslyn") on February 8, 1995, and by the Shareholders of Joslyn
Corporation on April 26, 1995, Joslyn granted an option to purchase Common
Shares of Joslyn to the non-employee Director of Joslyn listed below (the
"Director"). Pursuant to Section 3.5 of the Agreement and Plan of Merger among
Danaher Corporation ("Danaher"), DH Holdings Corp., TK Acquisition Corporation
and Joslyn, such option was cancelled and the option to purchase shares of
Common Stock, par value $.01 per share, of Danaher ("Danaher Shares")
represented by this Agreement was substituted therefor.
To the following Director: _________________________
For the following Number of Danaher Shares: ___________
At the following Option Price: $_____________________
Effective Date (date of grant): April 26, 1995
Earliest Exercise Date: The date of this
Agreement
Expiration Date: April 25, 2005
Except as provided below, the Danaher Shares subject to this Non-
Qualified Stock Option ("NQSO") Agreement may be purchased by the Director, in
whole or in part, at any time on or after the Earliest Exercise Date and before
the Expiration Date.
This NQSO is not assignable or transferable except upon the death of
the Director. The NQSO will expire on the date which is six (6) months after
the date the Director ceases to be a Director of Joslyn. If the Directorship
ceases by reason of mandatory retirement, the NQSO will expire within two years
after the date the Director ceases to be a Director. In the event the
directorship ceases by reason of disability, the NQSO may be exercised within
one year by the person or persons to whom the Director's rights
1
<PAGE>
shall pass by will or by applicable law. In no event, however, shall any
option be exercisable after the expiration date of the term of such option.
In consideration of the granting of this NQSO by the Corporation, the
Director acknowledges:
(a) that this Agreement shall not give the Director any right to
continue to be a Director of Joslyn;
(b) that any taxable income resulting from the exercise shall not be
considered income from retirement plans, welfare plans, deferred
compensation agreements, stock option plans, bonuses, or any other benefit
or compensation plan in which a benefit or amount is a function of income;
(c) that this NQSO is not, and will not be treated or considered as,
an Incentive Stock Option ("ISO") for any purpose;
(d) that this NQSO is subject to the other terms and conditions
contained herein or in the Stock Plan incorporated herein by reference and
to restrictions on disposition of Danaher Shares acquired upon exercise as
may be required by any applicable law; and
(e) that in the event of any conflict or inconsistency between this
Agreement and the Stock Plan, the provisions of the Stock Plan shall
control.
Any exercise of this NQSO, in whole or in part, shall be made in
writing, specifying the number of Danaher Shares to be purchased and the
date on which the purchase shall be made. The notice of exercise shall be
given to Danaher by mailing or delivering such notice to the chief
executive offices of Danaher, 1250 24th Street, N.W., Suite 800,
Washington, D.C. 20037 (or at such other address as may then be the address
of the such chief executive offices), attention of the Secretary, at least
fifteen days and not more than twenty days prior to the exercise date,
along with payment of the full purchase price of such Danaher Shares.
Payment of the Option Price may be made in cash, Danaher Shares or any
other form approved by the Stock Option Committee.
2
<PAGE>
IN WITNESS WHEREOF, this Agreement has been executed
on ____________, 1995
DANAHER CORPORATION
By:_________________________
Name:____________________
Title:___________________
ATTEST:
___________________________
Name:______________________
Title:_____________________
By:_________________________
Director
3
<PAGE>
ARTICLES OF MERGER
Form BCA-11.25 CONSOLIDATION OR EXCHANGE
(Rev. Jan. 1995) File #
- -------------------------------------------------------------------------------
George H. Ryan SUBMIT IN DUPLICATE
Secretary of State -----------------------
Department of Business Services THIS SPACE FOR USE BY
Springfield, IL 62756 SECRETARY OF STATE
Telephone (217) 782-6961
- --------------------------------- -----------------------
DO NOT SEND CASH! Date
Remit payment in check or
money order, payable to
"Secretary of State." Filing Fee $
Filing Fee is $100, but if merger
or consolidation of more than 2
corporations, $50 for each Approved:
additional corporation.
- -------------------------------------------------------------------------------
merge
1. Names of the corporations proposing to consolidate , and the state
exchange shares
or county of their incorporation
Name of Corporation State or Country Corporation File No.
Of Incorporation
- ---------------------------------- -------------------- --------------------
- ---------------------------------- -------------------- --------------------
- ---------------------------------- -------------------- --------------------
- ---------------------------------- -------------------- --------------------
- -------------------------------------------------------------------------------
2. The laws of the state or country under which each corporation is
incorporated permit such merger, consolidation or exchange.
- -------------------------------------------------------------------------------
surviving
3. (a) Name of the new corporation:
acquiring -------------------------------
(b) It shall be governed by the laws of:
- -------------------------------------------------------------------------------
merger
4. Plan of consolidation is as follows:
acquiring
IF NOT SUFFICIENT SPACE TO COVER THIS POINT, AND ONE OR MORE
SHEETS OF THIS SIZE.
<PAGE>
merger
5. Plan of consolidation was approved, as to each corporation not
acquiring organized in Illinois, in compliance with the
laws of the state under which it is organized, and
(b) as to each Illinois corporation, as follows:
(THE FOLLOWING ITEMS ARE NOT APPLICABLE TO MERGERS UNDER (S)11.30-90% OWNED
SUBSIDIARY PROVISIONS. SEE ARTICLE 7.)
(ONLY "X" ONE BOX FOR EACH CORPORATION)
<TABLE>
<CAPTION>
By the shareholders,
a resolution of the
board of directors
having been duly
adopted and submitted By written consent
to a vote at a of the shareholders
meeting of having not less than
shareholders. Not the minimum number
less than the of votes required by
minimum number of statute and by the
votes required by articles of
statute and by the incorporation. By all written
articles of Shareholders who consent of ALL the
incorporation have not consented shareholders
voted in favor of in writing have been entitled to vote on
the action taken. given notice in the action, in
accordance with accordance with
((S) 11.20) (S)7.10 ((S)11.220) (S)7.10 & (S) 11.20
Name of Corporation -------------------- ------------------- --------------------
- -------------------
<S> <C> <C> <C>
[_] [_] [_]
- --------------------------
[_] [_] [_]
- --------------------------
[_] [_] [_]
- --------------------------
[_] [_] [_]
- --------------------------
[_] [_] [_]
- --------------------------
</TABLE>
- --------------------------------------------------------------------------------
6. (Not applicable if surviving, new or acquiring corporation is an Illinois
corporation)
It is agreed that, upon and after the issuance of a certificate of merger,
consolidation or exchange by the Secretary of the State of the State of
Illinois:
a. The surviving, new or acquiring corporation may be served with process in
the State of Illinois in any proceeding for the enforcement of any
obligation of any corporation organized under the laws of the State of
Illinois which is a party to the merger, consolidation or exchange and in
any proceeding for the enforcement of the rights of a dissenting shareholder
of any such corporation organized under the laws of the State of Illinois
against the surviving, new or acquiring corporation.
b. The Secretary of State of the State of Illinois shall be and hereby is
irrevocably appointed as the agent of the surviving, new or acquiring
corporation to accept service of process in any such proceedings, and
c. The surviving, new, or acquiring corporation will promptly pay to the
dissenting shareholders of any corporation organized under the laws of the
State of Illinois which is a party to the merger, consolidation or exchange
the amount, if any, to which they shall be entitled under the provisions of
"The Business Corporation Act of 1983" of the State of Illinois with respect
to the rights of dissenting shareholders.
- --------------------------------------------------------------------------------
<PAGE>
7. (Complete this item if reporting a merger under (S) 11.30-90% owned
subsidiary provisions.)
a. The number of outstanding shares of each class of each merging
subsidiary corporation and the number of such shares of each class owned
immediately prior to the adoption of the plan of merger by the parent
corporation, are:
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
Total Number of Shares Number of Shares of Each Class
Name of Corporation Outstanding Owned Immediately Prior to
of Each Class Merger by the Parent Corporation
<S> <C> <C>
- ------------------------------ ----------------------------- --------------------------------
- ------------------------------ ----------------------------- --------------------------------
- ------------------------------ ----------------------------- --------------------------------
- ------------------------------ ----------------------------- --------------------------------
- ------------------------------ ----------------------------- --------------------------------
</TABLE>
b. (Not applicable to 100% owned subsidiaries)
The date of mailing a copy of the plan of merger and notice of the right
to dissent to the shareholders of each merging subsidiary corporation
was ______________________, 19_______.
Was written consent for the merger or written waiver of the 30-day
period by the holders of all the outstanding shares of all subsidiary
corporations received? [_] Yes [_] No
(If the answer is "No," the duplicate copies of the Articles of Merger
may not be delivered to the Secretary of State until after 30 days
following the mailing of a copy of the plan of merger and of the notice
of the right to dissent to the shareholders of each merging subsidiary
corporation.)
- --------------------------------------------------------------------------------
8. The undersigned corporations have caused these articles to be signed by
their duly authorized officers, each of whom affirms, under penalties of
perjury, that the facts stated herein are true. (All signatures must be in
BLACK INK.)
- --------------------------------------------------------------------------------
Dated , 19
----------------------------- ----- ----------------------------------
(Exact Name of Corporation)
attested by by
-------------------------------- --------------------------------
(Signature of Secretary or (Signature of President or
Assistant Secretary) Vice President)
-------------------------------- --------------------------------
(Type or Print Name and Title) (Type or Print Name and Title)
Dated , 19
----------------------------- ----- ----------------------------------
(Exact Name of Corporation)
attested by by
-------------------------------- --------------------------------
(Signature of Secretary or (Signature of President or
Assistant Secretary) Vice President)
-------------------------------- --------------------------------
(Type or Print Name and Title) (Type or Print Name and Title)
Dated , 19
----------------------------- ----- ----------------------------------
(Exact Name of Corporation)
attested by by
-------------------------------- --------------------------------
(Signature of Secretary or (Signature of President or
Assistant Secretary) Vice President)
-------------------------------- --------------------------------
(Type or Print Name and Title) (Type or Print Name and Title)
<PAGE>
EXHIBIT A
---------
PLAN OF MERGER
--------------
This Plan of Merger is by and between TK Acquisition Corporation, a Delaware
corporation and an indirect wholly-owned subsidiary of Danaher Corporation
(hereinafter sometimes referred to as "TKA" or the "Merged Corporation"), and
Joslyn Corporation, an Illinois corporation (hereinafter sometimes referred to
as "Joslyn" or the "Surviving Corporation"). TKA and Joslyn are sometimes
individually referred to as a "Constituent Corporation" and collectively as the
"Constituent Corporations."
WHEREAS, the Constituent Corporations desire that TKA merge with and into
Joslyn (hereinafter referred to as the "Merger") upon the terms and subject to
the conditions herein set forth and in accordance with the laws of the States of
Delaware and Illinois; and
WHEREAS, the Board of Directors and the shareholders of each Constituent
Corporation have approved and adopted this Plan of Merger.
NOW, THEREFORE, the Constituent Corporations do hereby covenant and agree to
this Plan of Merger as follows:
ARTICLE I
---------
THE MERGER
----------
On the effective date of the Merger (the "Effective Date"), the Constituent
Corporations agree that the following actions shall be taken:
1.1 In accordance with the applicable provisions of the laws of the
State of Illinois and the State of Delaware, TKA shall be merged with and into
Joslyn, which shall be the Surviving Corporation.
1.2 The Articles of Incorporation of Joslyn as amended as of
August 20, 1995 shall be the Articles of Incorporation of the Surviving
Corporation until thereafter amended, altered or repealed as provided therein
and by applicable law, except that ARTICLE FOUR thereof shall be amended to
reduce the authorized capital stock of the Surviving Corporation to 1,100 Shares
of Common Stock, par value $1.25 per Share.
1.3 The By-laws of Joslyn as amended as of August 20, 1995 shall
continue to be and constitute the By-laws of the Surviving Corporation until
thereafter amended, altered or repealed as provided therein and by applicable
law.
1.4 The directors of TKA immediately prior to the Effective Date
shall be the directors of the Surviving Corporation each to hold office in
accordance with the Articles of Incorporation and By-laws of the Surviving
Corporation.
1.5 The officers of Joslyn immediately prior to the Effective Date
shall be the officers of the Surviving Corporation each to hold office in
accordance with the Articles of Incorporation and By-laws of the Surviving
Corporation.
<PAGE>
ARTICLE II
----------
MODE OF MERGER
--------------
The mode of carrying into effect the Merger provided for in this Plan
of Merger and the manner and basis of converting shares of the Constituent
Corporations are as follows:
2.1 Joslyn Common Stock. (a) Subject to Section 2.6, each share of
-------------------
Common Stock of Joslyn, par value $1.25 per share (each, a "Share," and
collectively, the "Shares") issued and outstanding immediately prior to the
Effective Date (except for Shares then owned beneficially or of record by
Danaher Corporation or TKA or any other subsidiary of Danaher Corporation and
except for Dissenting Shares (as defined below), shall, by virtue of the Merger
and without any action on the part of the holder thereof, be converted into the
right to receive $34.00 ($34.00 being referred to hereinafter as the "Merger
Consideration") in cash payable to the holder thereof, without interest thereon,
upon surrender of the certificate representing such Share. As used in this
Article II, "Share" and "Shares" shall include the associated Common Stock
Purchase Rights.
(b) Each Share issued and outstanding immediately prior to the
Effective Date which is then owned beneficially or of record by Danaher
Corporation or TKA or any other subsidiary of Danaher Corporation shall, by
virtue of the Merger and without any action on the part of the holder thereof,
be canceled and retired and cease to exist, without any conversion thereof.
(c) Each Share issued and held in Joslyn's treasury immediately
prior to the Effective Date shall, by virtue of the Merger, be canceled and
retired and cease to exist, without any conversion thereof.
(d) On the Effective Date, the holders of certificates representing
Shares shall cease to have any rights as shareholders of Joslyn, except such
rights, if any, as they may have pursuant to the Illinois Business Corporation
Act (the "IBCA"), and, except as aforesaid, their sole right shall be the right
to receive cash as aforesaid.
2.2 Dissenting Shares. Notwithstanding anything in this Plan of
-----------------
Merger to the contrary, any Shares which are outstanding immediately prior to
the Effective Date and which are held by shareholders who have not voted such
Shares in favor of the approval and adoption of this Plan of Merger and who
shall have properly demanded appraisal of such Shares in the manner provided in
Section 11.70 of the IBCA ("Dissenting Shares"), if applicable, shall not be
converted into or be exchangeable for the right to receive the Merger
Consideration, but the holders thereof shall be entitled to payment of the
appraised value of such Shares in accordance with the provisions of Section
11.70 of the IBCA; provided, however, that (i) if any holder of Dissenting
-------- ------- -
Shares shall subsequently deliver a written withdrawal of his demand for
appraisal of such Shares, or (ii) if any holder fails to establish his
--
entitlement to appraisal rights as provided in Sections 11.65 and 11.70 of the
IBCA, or (iii) if any such holder shall, for any other reason, become ineligible
---
for such appraisal, then such holder shall forfeit the right to appraisal of
such Shares and each such Share shall thereupon be deemed to have been converted
into and to have become exchangeable for, as of the Effective Date, the right to
receive the Merger Consideration, without any interest thereon. Joslyn shall not
settle or compromise any claim for dissenters' rights prior to the Effective
Date without the prior written consent of Danaher Corporation and TKA.
2.3 TKA Common Stock. Each share of common stock, par value $.01 per
----------------
share ("TKA Common Stock"), of TKA issued and outstanding immediately prior to
the Effective Date shall, by virtue of the Merger and without any action on the
part of the holder thereof, be converted into and exchangeable for one fully
paid and non-assessable share of common stock, par value $1.25 per share
("Surviving Corporation Common Stock"), of the Surviving Corporation. From and
after the Effective Date, each outstanding certificate theretofore representing
shares of TKA Common Stock shall be deemed for all purposes to evidence
ownership of and to represent the same number of shares of Surviving Corporation
Common Stock.
2.4 Exchange of Shares. (a) Prior to the Effective Date, TKA shall,
------------------
and Danaher Corporation shall cause TKA to, deposit in trust with the depositary
for the Offer, or with a bank or trust company with offices in New York, New
York, Chicago, Illinois or Washington, District of Columbia designated by TKA
and having capital, surplus and undivided profits of at least $100,000,000 (the
"Exchange Agent"), cash in an aggregate amount equal to the product of (i) the
-
number of Shares issued
<PAGE>
and outstanding immediately prior to the Effective Date (other than any such
Shares owned beneficially or of record by Danaher Corporation or TKA or any
other subsidiary of Danaher Corporation and other than Dissenting Shares), and
(ii) the Merger Consideration (such amount being hereinafter referred to as the
- ---
"Exchange Fund"). The Exchange Agent shall, pursuant to irrevocable
instructions reasonably satisfactory to Joslyn and its counsel, make the
payments provided for in Section 2.1 out of the Exchange Fund. The Exchange
Agent shall invest the Exchange Fund as Danaher Corporation directs, in direct
obligations of the United States of America, obligations for which the full
faith and credit of the United States of America is pledged to provide for the
payment of all principal and interest, commercial paper obligations receiving
the highest rating from either Moody's Investors Services, Inc. or Standard &
Poor's Corporation, or certificates of deposit, bank repurchase agreements or
banker's acceptances of commercial banks with capital exceeding $10,000,000,000.
The Exchange Fund shall not be used for any other purpose except as provided in
this Plan.
(b) Promptly after the Effective Date, the Surviving Corporation shall
cause the Exchange Agent to mail to each record holder (other than Danaher
Corporation, TKA or any other subsidiary of Danaher Corporation) as of the
Effective Date of an outstanding certificate or certificates which immediately
prior to the Effective Date represented Shares (the "Certificates"), a form
letter of transmittal (which shall specify that delivery shall be effected, and
risk of loss and title to the Certificates shall pass, only upon proper delivery
of the Certificates to the Exchange Agent) and instructions for use in effecting
the surrender of the Certificates for payment therefor. Upon surrender to the
Exchange Agent of a Certificate, together with such letter of transmittal duly
executed, the holder of such Certificate shall be entitled to receive in
exchange therefor cash in an amount equal to the product of the number of Shares
represented by such Certificate and the Merger Consideration, less any
applicable withholding tax, and such Certificate shall forthwith be canceled.
No interest shall be paid or accrued on the cash payable upon the surrender of
the Certificates. If payment is to be made to a person other than the person in
whose name the Certificate surrendered is registered, it shall be a condition of
payment that the Certificate so surrendered shall be properly endorsed or
otherwise in proper form for transfer and that the person requesting such
payment shall pay any transfer or other taxes required by reason of the payment
to a person other than the registered holder of the Certificate surrendered or
establish to the satisfaction of the Exchange Agent and the Surviving
Corporation that such tax has been paid or is not applicable. Until surrendered
in accordance with the provisions of this Section 2.4, each Certificate (other
than Certificates representing Shares owned beneficially or of record by Danaher
Corporation, TKA or any other subsidiary of Danaher Corporation and other than
Certificates representing Dissenting Shares in respect of which appraisal rights
are perfected) shall represent for all purposes the right to receive the Merger
Consideration in cash multiplied by the number of Shares evidenced by such
Certificate, without any interest thereon.
(c) After the Effective Date there shall be no transfers on the stock
transfer books of the Surviving Corporation of the Shares which were outstanding
immediately prior to the Effective Date. If, after the Effective Date,
Certificates (other than Certificates representing Shares owned beneficially or
of record by Danaher Corporation, TKA or any other subsidiary of Danaher
Corporation and other than Dissenting Shares) are presented to the Surviving
Corporation, they shall be canceled and exchanged for cash as provided in this
Article II, subject to applicable law in the case of Dissenting Shares.
(d) Any portion of the Exchange Fund which remains unclaimed by the
shareholders of Joslyn for 180 days after the Effective Date (including any
interest received with respect thereto) shall be repaid to the Surviving
Corporation, upon demand. Any shareholders of Joslyn who have not theretofore
complied with Section 2.4(b) shall thereafter look only to the Surviving
Corporation (subject to abandoned property, escheat or other similar laws) for
payment of their claim for the Merger Consideration per Share, without any
interest thereon, but shall have no greater rights against the Surviving
Corporation than may be accorded to general creditors of the Surviving
Corporation under Illinois law.
2.5 Payment of Charges and Expenses. The Surviving Corporation shall pay
--------------------------------
all charges and expenses, including those of the Exchange Agent, in connection
with the exchange of cash for Shares.
2.6 Employee Stock Options. Subject to and in accordance with the terms
----------------------
of the Joslyn Corporation Non-Employee Director Stock Option Plan and any
related option agreement, with respect to each stock option for 1,000 shares
granted within the six month period preceding the closing of the Merger each at
an exercise price of $24.75 per share to each non-employee director who is
subject to the provisions of Sections 16(a) and 16(b) of the Securities Exchange
Act of 1934, as amended, Danaher Corporation shall provide each such director
with an option to purchase 1,000 shares of Danaher Corporation's Common
<PAGE>
Stock (the "Alternative Options"). Each Alternative Option shall (a) be in
-
substitution for, and cancellation of, such stock options granted under the
stock option plan of Joslyn (the "Canceled Options"); (b) be in the form of
-
Annex A hereto; and (c) be immediately exercisable in full at an exercise price
-
of $22.625 per share of Danaher Corporation's Common Stock. Subject to and in
accordance with the terms of the applicable stock option plan of Joslyn and any
relation option agreement, immediately prior to the Effective Date, each holder
of an outstanding option to purchase Shares granted under any employee stock
option plan of Joslyn, other than a Canceled Option or any other option with a
stock appreciation right exercisable upon a change of control of Joslyn, whether
or not then exercisable, shall be entitled to receive from the Surviving
Corporation for each Share subject to such option, in cancellation of such
option, an amount in cash equal to the excess, if any, of the Merger
Consideration over the per Share exercise price of such option without interest
thereon, subject to all applicable tax withholding requirements, and such option
shall thereupon be canceled. Subject to the foregoing, each option or other
equity award with respect to shares of Common Stock outstanding on the Effective
Date under any stock option or other equity plan, program or agreement of Joslyn
shall automatically terminate and be canceled upon consummation of the Merger.
Danaher Corporation shall cause the Surviving Corporation to make all payments
required by this Section 2.6.
2.7. Adjustment of Merger Consideration. In the event of any
----------------------------------
reclassification, recapitalization, stock split or stock dividend with respect
to the Common Stock (or if a record date with respect to any of the foregoing
shall occur) prior to the Effective Date, appropriate and proportionate
adjustments, if any, shall be made to the amount of Merger Consideration per
Share, and all references to the Merger Consideration in this Agreement shall be
deemed to be to the Merger Consideration as so adjusted.
ARTICLE III
-----------
FURTHER ASSURANCES
------------------
If at any time the Surviving Corporation shall consider or be advised that
any further assignment or assurance in law is necessary or desirable to vest in
the Surviving Corporation the title to any property or rights of the Merged
Corporation, the proper officers and directors of the Merged Corporation shall,
and will execute and make all such proper assignments and assurances in law and
do all things necessary or proper to effectuate the Merger.
ARTICLE IV
----------
AMENDMENTS
----------
Notwithstanding approval of this Plan of Merger by the directors of
the Constituent Corporations and adoption thereof by the shareholders of the
Constituent Corporations, the Boards of Directors of the Constituent
Corporations may amend this Plan of Merger by written agreement at any time
prior to the Effective Date; provided that any such amendment made subsequent to
the adoption of this Plan by the shareholders of either Constituent Corporation
shall not alter the Merger Consideration provided in Article II above or
otherwise materially and adversely affect the rights of Joslyn's shareholders
thereunder without the further approval of such shareholders.
<PAGE>
Form BCA-14.35 REPORT FOLLOWING MERGER
(Rev. Jan. 1991) OR CONSOLIDATION
File #
- -------------------------------------------------------------------------------
George H. Ryan DO NOT SEND CASH
Secretary of State
Department of Business Services
Springfield, IL 62756
Telephone (217) 782-6961
- --------------------------------
This space for use by
Secretary of State
------------------------
Date
Remit payment in check or money
order, payable to "Secretary of
State." Franchise Tax $
Filing Fee $
Penalty $
Interest $
Approved:
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
1. CORPORATE NAME:____________________________________________________________
2. STATE OR COUNTRY OF INCORPORATION__________________________________________
- -------------------------------------------------------------------------------
3. Issued shares of each corporation party to the merger prior to the merger:
Corporation Class Series Par Value Number of Shares
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
4. Paid-in Capital of each corporation party to the merger prior to the merger:
Corporation Paid-in Capital
- -------------------------------------------------------------------------------
$
- -------------------------------------------------------------------------------
$
- -------------------------------------------------------------------------------
$
- -------------------------------------------------------------------------------
$
- -------------------------------------------------------------------------------
$
- -------------------------------------------------------------------------------
<PAGE>
- -------------------------------------------------------------------------------
5. Description of the merger: (include effective date and a brief explanation
of the conversion as stated in the plan of merger).
- -------------------------------------------------------------------------------
6. Issued shares after merger:
Class Series Par Value Number of Shares
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
7. Paid-in Capital of the surviving or new corporation: $_____________
("Paid-in Capital" replaces the terms Stated Capital
and Paid-in Surplus and is equal to the total of these accounts.)
- -------------------------------------------------------------------------------
ITEM 8 MUST BE SIGNED
8. The undersigned corporation has caused this statement to be signed by its
duly authorized officers, each of whom affirms, under penalties of perjury,
that the facts stated herein are true.
Dated________________________, 19__________ __________________________________
(Exact Name of Corporation)
attested by________________________________ by________________________________
(Signature of Secretary or (Signature of President or
Assistant Secretary) Vice President)
__________________________________ ________________________________
(Type or Print Name and Title) (Type or Print Name and Title)
