SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------
SCHEDULE 13D
(Rule 13d-101)
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT
TO RULE 13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO
RULE 13d-2(a)
(Amendment No. 2)
HOWMET INTERNATIONAL INC.
(Name of Issuer)
Common Stock, par value $0.01 per share
(Title of Class of Securities)
443208103
(CUSIP Number)
Daniel S. Hapke, Jr.
Senior Vice President and General Counsel
Cordant Technologies Inc.
15 W. South Temple
Suite 1600
Salt Lake City, Utah 84101-1532
(801) 933-4000
----------------------------------------------
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
March 13, 2000
(Date of Event Which Requires Filing of This Statement)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition that is the subject of this Schedule 13D, and is filing
this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the
following box [ ].
(continued on the following pages)
<PAGE>
CUSIP No. 443208103 13D Page 2 of 9 Pages
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Cordant Technologies Holding Company 51-0336475
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [X]
(b) [_]
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
Bank BK
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) [_]
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
NUMBER OF
84,650,000
SHARES
--------------------------------------------------------
8 SHARED VOTING POWER
BENEFICIALLY
OWNED BY -0-
--------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING
84,650,000
PERSON
--------------------------------------------------------
10 SHARED DISPOSITIVE POWER
WITH
-0-
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
84,650,000
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
[-]
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
84.6%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
CO
- --------------------------------------------------------------------------------
<PAGE>
CUSIP No. 443208103 13D Page 3 of 9 Pages
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Cordant Technologies Inc. 36-2678716
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [X]
(b) [_]
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
Bank BK
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) [_]
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
NUMBER OF
84,650,000
SHARES
--------------------------------------------------------
8 SHARED VOTING POWER
BENEFICIALLY
OWNED BY -0-
--------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING
84,650,000
PERSON
--------------------------------------------------------
10 SHARED DISPOSITIVE POWER
WITH
-0-
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
84,650,000
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
[-]
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
84.6%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
CO; HC
- --------------------------------------------------------------------------------
<PAGE>
SCHEDULE 13D
This Amendment No. 2 to Schedule 13D amends the Statement on Schedule 13D
filed February 18, 1999 by Cordant Technologies Inc. ("Cordant") and Cordant
Technologies Holding Company ("Holding" and, together with Cordant, the
"Reporting Persons"), as amended by Amendment No. 1, filed with the Securities
and Exchange Commission on November 12, 1999 (as amended, the "Schedule 13D"),
relating to the shares of common stock, par value $0.01 per share ("Shares"), of
Howmet International Inc., a Delaware corporation (the "Issuer"). Capitalized
terms used but not defined herein have the meanings given to such terms in the
Schedule 13D.
ITEM 4. PURPOSE OF TRANSACTION.
Item 4 of the Schedule 13D is hereby amended and restated in its entirety
as follows:
The Reporting Persons acquired the Purchased Shares on February 8, 1999,
from The Carlyle Group ("Carlyle") to increase their ownership of the Issuer
from 62% to 84.6% of the outstanding Shares. The Reporting Persons had an option
that was granted by Carlyle in December 1997 at the time of the Issuer's initial
public offering (the "IPO") to acquire all of Carlyle's Shares. The option was
exercisable beginning in December 1999 at a market-based price, and the
acquisition of the Shares from Carlyle was made at this time to eliminate the
uncertainty regarding the price and timing of the option exercise. In connection
with Carlyle's sale of its Shares, Mr. William E. Conway, Jr., Carlyle's
representative on the Board of Directors of the Issuer, advised Cordant of his
intention to retire from the Issuer's Board of Directors effective at the 1999
Annual Meeting.
On February 12, 1999, the Issuer announced that on February 17, 1999, it
planned to exercise its option to redeem all of its then outstanding 9% Series A
Senior Cumulative Preferred Stock (the "Series A Preferred Stock") at an
aggregate redemption price of $66,379,991, all of the shares of which were owned
by Holding. On February 17, 1999, the redemption of the Series A Preferred Stock
was consummated.
On November 12, 1999, Cordant delivered a written proposal to the Board of
Directors of the Issuer to acquire all of the outstanding Shares not owned by
Cordant for a price of $17.00 per share in cash (the "Proposal Letter"). In the
Proposal Letter, Cordant requested that the Issuer's Board of Directors refer
the proposal to its Committee of Independent Directors (the "Special Committee")
for its review and consideration. The text of the Proposal Letter is filed as
Exhibit 5 hereto and incorporated herein by reference.
On March 8, 2000, representatives of Cordant advised representatives of
the Special Committee of Cordant's discussions with Alcoa Inc. ("Alcoa")
regarding a possible business combination transaction involving Cordant and
Alcoa. Cordant requested that the Special Committee consider recommending to the
full Board of Directors of the Issuer that it approve Alcoa's entering into a
proposed Agreement and Plan of Merger with Cordant (the "Merger Agreement") such
that Alcoa would not be restricted, as an "interested stockholder" of the Issuer
under Section 203 of the General Corporation Law of the State of Delaware
("Section 203"), from entering into a business combination (as defined in
Section 203) with the Issuer for three
Page 4 of 9
<PAGE>
years after becoming an interested stockholder without an affirmative vote of
two-thirds of the disinterested Shares.
Over the next few days, representatives of Cordant conducted discussions
with representatives of the Special Committee regarding the terms under which
the Special Committee would consider recommending the approval, for purposes of
Section 203, of Alcoa's becoming an interested stockholder of the Issuer as a
result of its entering into the Merger Agreement. As an alternative, the
representatives also discussed possible terms for a negotiated transaction in
which Cordant would acquire the publicly held Shares. On March 10, 2000, Cordant
made a proposal to the Special Committee to acquire all publicly traded Shares
for $18.75 per Share, but following further discussions no agreement was
reached.
On March 13, 2000, the Reporting Persons and the Issuer entered into an
amendment to the Corporate Agreement (as defined in Item 6 below) (the
"Corporate Agreement Amendment"). Under the Corporate Agreement Amendment,
Cordant agreed to certain restrictions on acquiring Shares if doing so would
reduce the number of publicly held Shares below 14% of the outstanding Shares.
The Issuer stated on March 14, 2000, that Alcoa had separately agreed with the
Issuer to be bound by the same limitations, which are described in Item 6 below,
and that the Corporate Agreement Amendment and the arrangements with Alcoa had
been approved by the full Board of Directors of the Issuer with the
recommendation and concurrence of the Special Committee. The Special Committee
and the full Board of Directors of the Issuer also approved, for purposes of
Section 203, Alcoa's becoming an interested stockholder of the Issuer as a
result of its entering into the Merger Agreement.
On March 14, 2000, Cordant and Alcoa announced the execution of the Merger
Agreement. Alcoa has advised Cordant that it intends to enter into
discussions with the Special Committee to pursue the acquisition of the
publicly held Shares. Cordant expects to participate in these discussions
as appropriate.
Subject to any limitations set forth in the Corporate Agreement, as
amended by the Corporate Agreement Amendment, and the Merger Agreement and
changes in other factors, including, among other things, market and economic
conditions, the respective businesses, operations, financial condition and
prospects of Cordant and the Issuer, and other business opportunities that may
be available to Cordant, Cordant reserves the right to formulate other plans
and/or make other proposals and take such actions with respect to its investment
in the Issuer. The descriptions of the Corporate Agreement, the Corporate
Agreement Amendment and certain terms of the Merger Agreement set forth in Item
6 below are incorporated herein by reference.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT
TO SECURITIES OF THE ISSUER.
Item 6 of the Schedule 13D is hereby amended and restated in its entirety
as follows:
In connection with the Issuer's IPO, the Reporting Persons and the Issuer
entered into a Corporate Agreement, dated as of December 2, 1997 (the "Corporate
Agreement"). Under the
Page 5 of 9
<PAGE>
Corporate Agreement, the Reporting Persons agreed that without the consent of
the Carlyle representative on the Issuer's Board, if any, and a majority (but
not less than two) of the non-employee directors of the Issuer who are not
directors or employees of the Reporting Persons, Carlyle or their respective
affiliates, neither the Reporting Persons nor any of their affiliates may
acquire Publicly Held Shares (as defined below) if, after such acquisition, the
number of Publicly Held Shares would be less than 14% of the total number of
Shares outstanding other than (i) pursuant to a tender offer to acquire all of
the outstanding Shares not then beneficially owned by the Reporting Persons or
(ii) pursuant to a merger or other business combination in which holders of all
outstanding Publicly Held Shares are treated the same. "Publicly Held Shares" as
used in this Amendment No. 2 to Schedule 13D is defined as outstanding Shares
other than Shares held by the Reporting Persons, Carlyle or any of their
affiliates.
Pursuant to the Corporate Agreement, the Issuer granted to Holding a
preemptive right which gives Holding the right, upon any issuance or sale by the
Issuer of its Shares of capital stock, to purchase from the Issuer a number of
such Shares sufficient to maintain Cordant's percentage ownership of the
Issuer's outstanding voting power and equity as of immediately prior to such
issuance or sale. The Corporate Agreement also provides that each party shall
use its good faith efforts to cause at least two members of the Issuer's Board
of Directors to be independent directors within the meaning of the rules of the
New York Stock Exchange regarding who may serve on the audit committee of a
company listed on such exchange. Under the Corporate Agreement, the Issuer has
also established a Committee of Independent Directors of the Issuer's Board of
Directors to be responsible for approving the terms of all material agreements
and transactions, and any material amendments to such agreements, between the
Issuer and Cordant.
On March 13, 2000, the Reporting Persons and the Issuer entered into the
Corporate Agreement Amendment. Under the Corporate Agreement Amendment, the
Reporting Persons agreed that neither they nor any of their affiliates will
acquire Publicly Held Shares if, after such acquisition, the number of Publicly
Held Shares would be less than 14% of the total number of outstanding Shares,
other than: (1) with the consent of a majority (but not less than two) of the
non-employee directors of the Issuer who are not directors or employees of
Cordant, Holding or their affiliates; or (2) the purchase of at least a majority
of the outstanding Publicly Held Shares pursuant to a tender offer to acquire
all of the Publicly Held Shares, which tender offer (A) is conditioned upon
there being tendered and not withdrawn prior to the expiration of the offer not
less than a majority of the outstanding Publicly Held Shares (the "Minimum
Tender Condition"), and (B) provides a commitment for a prompt merger or
business combination following the purchase of Shares in the tender offer as
contemplated by clause (3) below; or (3) pursuant to a merger or other business
combination, within one year following the completion of a tender offer
described in clause (2) above that satisfied the Minimum Tender Condition, in
which each Publicly Held Share outstanding immediately prior to the effective
time of such merger or business combination is converted into the right to
receive the same consideration paid or issued in the tender offer; or (4)
pursuant to a merger or other business combination in which holders of all
outstanding Publicly Held Shares are treated the same which is approved by the
holders of a majority of the outstanding Publicly Held Shares.
The foregoing description of certain terms of the Corporate Agreement and
the Corporate Agreement Amendment is qualified in its entirety by reference to
the Corporate Agreement and
Page 6 of 9
<PAGE>
the Corporate Agreement Amendment, copies of which are filed as Exhibits 3 and
6, respectively, hereto, and incorporated herein by reference.
Pursuant to the terms of the Merger Agreement, Cordant agreed to certain
restrictions on its ability to dispose of or acquire Shares. Section 5.1 of the
Merger Agreement provides that neither Cordant nor any of its subsidiaries will
enter into an agreement for the disposition of Shares or the acquisition of
additional Shares except in an amount that is not material to Cordant and its
subsidiaries taken as a whole. However, the restrictions in Section 5.1 of the
Merger Agreement do not preclude (1) Cordant and its subsidiaries from
discussing and negotiating the acquisition of the Publicly Held Shares, provided
that Cordant may not enter into an agreement with respect to any such
acquisition without the consent of Alcoa, or (2) the Issuer from entering into
discussions and negotiations with Alcoa for the acquisition of the Publicly Held
Shares. Section 5.7 of the Merger Agreement, among other things, generally
limits the ability of Cordant to solicit proposals for the sale of its
Shares. Section 5.11 of the Merger Agreement provides that nothing in the Merger
Agreement will prevent Alcoa or any of its affiliates from offering to acquire
or agreeing with the Issuer to acquire all of the Shares not owned by Cordant or
its subsidiaries in accordance with the terms of the Corporate Agreement, as
amended by the Corporate Agreement Amendment, provided that Alcoa may not
acquire any Shares prior to Alcoa's purchase of shares of Cordant common stock
as contemplated by the Merger Agreement.
The foregoing description of certain terms of the Merger Agreement is
qualified in its entirety by reference to the Merger Agreement, a copy of which
is filed as Exhibit 7 hereto and incorporated herein by reference.
The Reporting Persons, on the one hand, and certain affiliates of Carlyle
(the "Carlyle Entities") and William E. Conway, Jr., on the other hand, on
February 8, 1999 amended and restated an existing standstill agreement (the "New
Standstill Agreement"), which New Standstill Agreement provides that none of the
Carlyle Entities nor Mr. Conway will, without the prior consent of Cordant's
Board of Directors, among other things, acquire or otherwise increase their
aggregate beneficial ownership of, or permit affiliates controlled by certain of
the Carlyle Entities to so acquire, any securities of the Issuer or its
wholly-owned subsidiary, Howmet Corporation (other than as a result of an
acquisition of such class of securities by the Issuer or Howmet Corporation).
The foregoing description of certain terms of the New Standstill Agreement
is qualified in its entirety by reference to the New Standstill Agreement, a
copy of which is filed as Exhibit 4 hereto and incorporated herein by reference.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
Exhibit 1* Joint Filing Agreement, dated as of February 18, 1999,
between Cordant and Holding.
Exhibit 2* Credit Agreement, dated as of February 5, 1999, among
Cordant, the First National Bank of Chicago, individually and
as Administrative Agent, First
Page 7 of 9
<PAGE>
Chicago Capital Markets, Inc., as Arranger, and the
lending institutions thereto.
Exhibit 3 Corporate Agreement, dated as of December 2, 1997, among
Cordant, Holding and the Issuer. (incorporated by reference
to Exhibit 4.5 to the Howmet International Inc. Form 10-K
for the fiscal year ended December 31, 1997)
Exhibit 4* Second Amended and Restated Standstill Agreement, dated as
of February 8, 1999, among Cordant, Holding, the Carlyle
Entities and William E. Conway, Jr.
Exhibit 5* Letter, dated November 12, 1999, to the Board of
Directors of the Issuer.
Exhibit 6 Amendment, dated as of March 13, 2000, to Corporate
Agreement, dated as of December 2, 1997, among Cordant,
Holding and the Issuer.
Exhibit 7 Agreement and Plan of Merger, dated as of March 14, 2000,
among Alcoa, Omega Acquisition Corp. and Cordant.
- --------------------------------------
* Previously filed.
Page 8 of 9
<PAGE>
SIGNATURE
After reasonable inquiry and to the best of the undersigned's knowledge and
belief, the undersigned certify that the information set forth in this statement
is true, complete and correct.
CORDANT TECHNOLOGIES INC.
By: /s/ Edwin M. North
-------------------------------
Name: Edwin M. North
Title: Vice President and
Corporate Secretary
CORDANT TECHNOLOGIES HOLDING COMPANY
By: /s/ Edwin M. North
-------------------------------
Name: Edwin M. North
Title: Assistant Secretary
Page 9 of 9
Exhibit 6
AMENDMENT
Amendment, dated as of March 13, 2000 ("this Amendment"), to the
Corporate Agreement, dated as of December 2, 1997 (the "Corporate Agreement"),
by and among Cordant Technologies Inc.(formerly named Thiokol Corporation), a
Delaware corporation ("Cordant"), Cordant Technologies Holding Company (formerly
named Thiokol Holding Company), a Delaware corporation and a wholly owned
subsidiary of Cordant ("Holding"), and Howmet International Inc., a Delaware
corporation (the "Company") (individually, a "Party" and collectively, the
"Parties"). Capitalized terms used but not defined herein shall have the
meanings ascribed in the Corporate Agreement.
WHEREAS, the Parties desire to amend the Corporate Agreement;
NOW, THEREFORE, in consideration of the above premises and mutual
agreements set forth in this Amendment, the Parties hereby agree as follows:
1. Article I of the Corporate Agreement is hereby amended and restated to
read as follows:
Neither Cordant, Holding nor any of their Affiliates shall acquire
Publicly Held Shares (as defined below) if, after such acquisition, the
number of Publicly Held Shares would be less than 14% of the total number
of shares of Common Stock outstanding other than:
(i) with the consent of a majority (but not less than two) of the
non-employee directors of the Company who are not directors or
employees of Cordant, Holding or their respective Affiliates,
or
(ii) the purchase of at least a majority of the outstanding
Publicly Held Shares pursuant to a tender offer to acquire all
of the Publicly Held Shares, which tender offer (A) is
conditioned upon there being tendered and not withdrawn prior
to the expiration of the offer not less than a majority of the
outstanding Publicly Held Shares (the "Minimum Tender
Condition"), and (B) provides a commitment for a prompt merger
or business combination following the purchase of shares in
the tender offer as contemplated by the following clause
(iii), or
(iii) pursuant to a merger or other business combination, within one
year following the completion of a tender offer described in
clause (ii) that satisfied the Minimum Tender Condition, in
which each Publicly Held Share outstanding immediately prior
to the effective time of such merger or business combination
is converted into the right to receive the same consideration
paid or issued in the tender offer, or
(iv) pursuant to a merger or other business combination in which
holders of all outstanding Publicly Held Shares are treated
the same which is approved
<PAGE>
by the holders of a majority of the outstanding Publicly
Held Shares.
For purposes of this ARTICLE I, "Publicly Held Shares" shall mean
outstanding shares of Common Stock other than shares held by Cordant,
Holding or any of their Affiliates.
2. This Amendment shall be governed by and construed in accordance with the
substantive and procedural laws of the State of New York applicable to
agreements made and to be performed entirely within such State (without
giving effect to any conflict of laws principles which might require
application of the law of a different jurisdiction).
3. Except as expressly set forth herein, this Amendment to the Corporate
Agreement shall not by implication or otherwise alter, modify, amend or in
any way affect any of the terms, conditions, obligations, covenants or
agreements contained in the Corporate Agreement, all of which are ratified
and affirmed in all respects and shall continue in full force and effect.
4. This Amendment may be executed by the Parties in separate counterparts, each
of which when so executed and delivered shall be an original, but all such
counterparts shall together constitute one and the same instrument.
<PAGE>
IN WITNESS WHEREOF, the Parties hereto have caused this instrument
to be duly executed on the date first above written.
HOWMET INTERNATIONAL INC.
By: /s/ Roland A. Paul
-----------------------------------
Name: Roland A. Paul
Title: Vice President and General Counsel
CORDANT TECHNOLOGIES INC.
By: /s/ James R. Wilson
-----------------------------------
Name: James R. Wilson
Title: Chief Executive Officer
CORDANT TECHNOLOGIES HOLDING COMPANY
By: /s/ Richard L. Corbin
-----------------------------------
Name: Richard L. Corbin
Title: President
Exhibit 7
Investors and holders of securities of Cordant Technologies Inc. ("Cordant") are
strongly advised to read Cordant's solicitation/recommendation statement, when
it becomes available, regarding the tender offer contemplated by this Agreement
and Plan of Merger, because it will contain important information. Investors and
securityholders may obtain a free copy of the solicitation/recommendation
statement, which will be filed by Cordant with the Securities and Exchange
Commission (the "SEC"), and other documents filed by Cordant at the SEC's web
site at www.sec.gov. Investors and securityholders may also obtain, without
charge, a copy of the solicitation/recommendation statement, when available, by
directing requests to Cordant's Investor Relations department.
==============================================================================
AGREEMENT AND PLAN OF MERGER
among
ALCOA INC.,
OMEGA ACQUISITION CORP.
and
CORDANT TECHNOLOGIES INC.
Dated as of March 14, 2000
===============================================================================
<PAGE>
TABLE OF CONTENTS
PAGE
ARTICLE I
Section 1.1 The Offer.......................................................2
Section 1.2 Company Actions.................................................4
Section 1.3 Directors of the Company........................................5
ARTICLE II
THE MERGER
Section 2.1 The Merger......................................................6
Section 2.2 Closing.........................................................6
Section 2.3 Effective Time..................................................7
Section 2.4 Effects of the Merger...........................................7
Section 2.5 Certificate of Incorporation; By-laws...........................7
Section 2.6 Directors; Officers of Surviving Corporation....................8
Section 2.7 Conversion of Securities........................................8
Section 2.8 Exchange of Certificates........................................9
Section 2.9 Appraisal Rights...............................................11
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Section 3.1 Organization, Qualification, Etc...............................12
Section 3.2 Capital Stock..................................................13
Section 3.3 Corporate Authority Relative to this Agreement; No Violation...15
Section 3.4 Reports and Financial Statements...............................16
Section 3.5 No Undisclosed Liabilities.....................................18
Section 3.6 No Violation of Law............................................18
Section 3.7 Environmental Matters..........................................18
Section 3.8 Employee Benefit Plans; ERISA..................................20
Section 3.9 Absence of Certain Changes or Events...........................22
Section 3.10 Litigation.....................................................23
Section 3.11 Schedule 14D-9; Offer Documents; and Proxy Statement...........23
Section 3.12 Intellectual Property..........................................23
Section 3.13 Tax Matters....................................................24
i
<PAGE>
PAGE
Section 3.14 Opinion of Financial Advisor...................................26
Section 3.15 Required Vote of the Company Stockholders......................26
Section 3.16 Employment Matters.............................................26
Section 3.17 Rights Plan....................................................27
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
OF ALCOA AND THE PURCHASER
Section 4.1 Organization, Qualification, Etc...............................27
Section 4.2 Corporate Authority Relative to this Agreement; No Violation...28
Section 4.3 Offer Documents; Proxy Statement; Schedule 14D-9...............29
Section 4.4 Financing......................................................29
Section 4.5 Opinion of Financial Advisor...................................29
Section 4.6 Ownership of Capital Stock.....................................30
ARTICLE V
COVENANTS AND AGREEMENTS
Section 5.1 Conduct of Business Prior to the Effective Time................30
Section 5.2 Access; Confidentiality........................................33
Section 5.3 Special Meeting; Proxy Statement...............................34
Section 5.4 Reasonable Best Efforts; Further Assurances....................35
Section 5.5 Employee Stock Options and Other Employee Benefits.............37
Section 5.6 Takeover Statute...............................................39
Section 5.7 No Solicitation by the Company.................................39
Section 5.8 Public Announcements...........................................42
Section 5.9 Indemnification; Insurance.....................................42
Section 5.10 Disclosure Schedule Supplements................................43
Section 5.11 Howmet Acquisition.............................................44
ARTICLE VI
CONDITIONS TO THE MERGER
Section 6.1 Conditions to Each Party's Obligation to Effect the Merger.....44
ii
<PAGE>
PAGE
ARTICLE VII
TERMINATION
Section 7.1 Termination....................................................45
Section 7.2 Effect of Termination..........................................46
Section 7.3 Termination Fee................................................46
ARTICLE VIII
MISCELLANEOUS
Section 8.1 No Survival of Representations and Warranties..................47
Section 8.2 Expenses.......................................................47
Section 8.3 Counterparts; Effectiveness....................................47
Section 8.4 Governing Law..................................................47
Section 8.5 Notices........................................................47
Section 8.6 Assignment; Binding Effect.....................................48
Section 8.7 Severability...................................................49
Section 8.8 Enforcement of Agreement.......................................49
Section 8.9 Entire Agreement; No Third-Party Beneficiaries.................49
Section 8.10 Headings.......................................................49
Section 8.11 Definitions....................................................49
Section 8.12 Finders or Brokers.............................................50
Section 8.13 Amendment or Supplement........................................50
Section 8.14 Extension of Time, Waiver, Etc.................................50
iii
<PAGE>
DEFINED TERM SECTION
INDEX OF DEFINED TERMS
Acquisition Agreement....................................................5.7(b)
Acquisition Proposal.....................................................5.7(a)
affiliates.................................................................8.11
Agreement..........................................................Introduction
Alcoa..............................................................Introduction
Alcoa and Purchaser Agreements...........................................4.2(b)
Alcoa Common Stock.......................................................5.5(a)
Alcoa Disclosure Schedule...............................Article IV Introduction
Asset Transaction........................................................5.7(a)
Business Combination Transaction.........................................5.7(a)
CERCLA...................................................................3.7(d)
Certificate of Merger.......................................................2.3
Certificate of Ownership and Merger.........................................2.3
Certificates.............................................................2.8(b)
Closing.....................................................................2.2
Closing Date................................................................2.2
Code.....................................................................2.8(f)
Company............................................................Introduction
Company Affiliated Group................................................3.13(a)
Company Agreements.......................................................3.3(b)
Company Common Stock...................................................Recitals
Company Disclosure Schedule............................Article III Introduction
Company Employee.........................................................5.5(b)
Company Option Plans.....................................................5.5(a)
Company Plans............................................................3.8(a)
Company Preferred Stock..................................................3.2(a)
Company Representatives..................................................5.7(a)
Company SEC Reports......................................................3.4(e)
Company Stockholder Approval...............................................3.15
Company Title IV Plan ...................................................3.8(d)
Computer Software.......................................................3.12(c)
Confidentiality Agreement................................................5.2(b)
control....................................................................8.11
Copyrights..............................................................3.12(c)
DGCL...................................................................Recitals
i
<PAGE>
DEFINED TERM SECTION
Disclosure Schedule......................................Article IV Introduction
Dissenting Shares............................................................2.9
Dissenting Stockholders......................................................2.9
Drop Dead Date............................................................7.1(b)
Effective Time...............................................................2.3
Employee Stock Options....................................................5.5(a)
Environmental Claim....................................................3.7(f)(i)
Environmental Law.....................................................3.7(f)(ii)
Environmental Permits.....................................................3.7(a)
ERISA.....................................................................3.8(a)
ERISA Affiliate...........................................................3.8(a)
Exchange Act..............................................................1.1(a)
Exchange Agent............................................................2.8(a)
Foreign Plans.............................................................3.8(a)
GAAP......................................................................3.4(e)
Governmental Entity.......................................................3.3(b)
Group SEC Reports.........................................................3.4(e)
Hazardous Materials..................................................3.7(f)(iii)
Howmet....................................................................3.1(b)
Howmet Common Stock.......................................................3.1(b)
Howmet Options............................................................3.2(b)
Howmet Preferred Stock....................................................3.2(b)
Howmet SEC Reports........................................................3.4(e)
Howmet Transaction..........................................................5.11
HSR Act...................................................................3.3(b)
Incipient Superior Proposal...............................................5.7(a)
Including...................................................................8.11
Indemnified Parties.......................................................5.9(a)
Independent Director Approval.............................................1.3(c)
Intellectual Property....................................................3.12(c)
IRS.......................................................................3.8(b)
Lien......................................................................3.1(b)
Material Adverse Effect...................................................3.1(a)
Merger..................................................................Recitals
Merger Consideration......................................................2.7(b)
Minimum Condition.........................................................1.1(a)
New Share Number..........................................................5.5(a)
ii
<PAGE>
DEFINED TERM SECTION
Offer..................................................................Recitals
Offer Documents..........................................................1.1(b)
Offer Price............................................................Recitals
Offer to Purchase........................................................1.1(b)
Patents.................................................................3.12(c)
Person.....................................................................8.11
Policies.................................................................5.9(c)
Proxy Statement......................................................5.3(a)(ii)
Purchase Date............................................................5.5(a)
Purchaser..........................................................Introduction
Regulatory Condition.......................................Annex A Introduction
Rights...................................................................3.2(c)
Rights Agreement.........................................................3.2(a)
Schedule 14D-9...........................................................1.2(b)
Schedule TO..............................................................1.1(b)
SEC......................................................................1.1(a)
Securities Act...........................................................3.3(b)
Shares.................................................................Recitals
Significant Subsidiaries...................................................8.11
Special Meeting.......................................................5.3(a)(i)
Subsidiaries...............................................................8.11
Superior Proposal........................................................5.7(a)
Surviving Corporation.......................................................2.1
Tax Return..............................................................3.13(c)
Taxes...................................................................3.13(c)
Termination Date............................................................5.1
Termination Fee.............................................................7.3
Trademarks..............................................................3.12(c)
iii
<PAGE>
AGREEMENT AND PLAN OF MERGER, dated as of March 14, 2000 (the
"Agreement"), among ALCOA INC., a Pennsylvania corporation ("Alcoa"),
OMEGA ACQUISITION CORP., a Delaware corporation (the "Purchaser"),
and CORDANT TECHNOLOGIES INC., a Delaware corporation (the "Company").
WHEREAS, the Boards of Directors of Alcoa, the Purchaser and the
Company deem it advisable and in the best interests of their respective
stockholders that Alcoa acquire the Company upon the terms and subject to the
conditions provided for in this Agreement;
WHEREAS, in furtherance thereof it is proposed that the acquisition be
accomplished by the Purchaser commencing a cash tender offer (as it may be
amended from time to time as permitted by this Agreement, the "Offer") to
purchase all of the issued and outstanding shares of common stock, par value
$1.00 per share, of the Company (the "Company Common Stock") and the associated
Rights (the shares of Company Common Stock and any associated Rights are
referred to herein as "Shares"), for $57.00 per Share (such amount or any
greater amount per Share paid pursuant to the Offer being hereinafter referred
to as the "Offer Price"), subject to applicable withholding Taxes, net to the
seller in cash, upon the terms and subject to the conditions set forth in this
Agreement;
WHEREAS, the Board of Directors of the Company has approved the Offer
and the Merger and resolved to recommend that holders of Shares tender their
Shares pursuant to the Offer and approve and adopt this Agreement and the
Merger; and
WHEREAS, the Boards of Directors of Alcoa (on its own behalf and as
the sole stockholder of the Purchaser), the Purchaser and the Company have each
approved this Agreement and the merger of the Purchaser with and into the
Company (the "Merger") in accordance with the General Corporation Law of the
State of Delaware (the "DGCL"), in the case of each of the Company and the
Purchaser, and in accordance with the Pennsylvania Business Corporation Law, in
the case of Alcoa, and upon the terms and conditions set forth in this
Agreement.
NOW, THEREFORE, in consideration of the representations, warranties,
covenants and agreements contained in this Agreement, and intending to be
legally bound hereby, Alcoa, the Purchaser and the Company agree as follows:
<PAGE>
ARTICLE I
Section 1.1 The Offer.
(a) Provided that this Agreement shall not have been terminated
in accordance with Section 7.1 and none of the events set forth in paragraphs
(a) through (i) of Annex A hereto shall have occurred or be existing (and shall
not have been waived by the Purchaser), the Purchaser shall commence (within the
meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the
"Exchange Act")) the Offer as promptly as reasonably practicable after the date
hereof, but in no event later than five business days after the public
announcement of the execution of this Agreement. The obligation of the Purchaser
to accept for payment and pay for Shares tendered pursuant to the Offer shall be
subject only to the satisfaction of the condition that there be validly tendered
and not withdrawn prior to the expiration of the Offer that number of Shares
which represents at least a majority of the then outstanding Shares on a fully
diluted basis (the "Minimum Condition") and to the satisfaction or waiver by the
Purchaser of the other conditions set forth in Annex A hereto. The Company
agrees that no Shares held by the Company or any of its Subsidiaries will be
tendered to the Purchaser pursuant to the Offer. The Purchaser expressly
reserves the right to waive any of such conditions (other than the Minimum
Condition), to increase the price per Share payable in the Offer and to make any
other changes in the terms of the Offer; PROVIDED, HOWEVER, that no change may
be made without the prior written consent of the Company which decreases the
price per Share payable in the Offer, reduces the maximum number of Shares to be
purchased in the Offer, changes the form of consideration to be paid in the
Offer, modifies or amends any of the conditions set forth in Annex A hereto,
imposes conditions to the Offer in addition to the conditions set forth in Annex
A hereto, waives the Minimum Condition or makes other changes in the terms and
conditions of the Offer that are in any manner adverse to the holders of Shares
or, except as provided below, extends the Offer. Subject to the terms of the
Offer and this Agreement and the satisfaction or earlier waiver of all the
conditions of the Offer set forth in Annex A hereto as of any expiration date of
the Offer, the Purchaser will accept for payment and pay for all Shares validly
tendered and not withdrawn pursuant to the Offer as soon as it is permitted to
do so under applicable law. Notwithstanding the foregoing, the Purchaser may,
without the consent of the Company, (i) extend the Offer beyond the scheduled
expiration date, which shall be 25 business days following the date of
commencement of the Offer, if, at the scheduled expiration of the Offer, any of
the conditions to the Purchaser's obligation to accept for payment and to pay
for the Shares shall not be satisfied or, to the extent permitted by this
Agreement, waived or (ii) extend
2
<PAGE>
the Offer for any period required by any rule, regulation or interpretation of
the Securities and Exchange Commission (the "SEC") or the staff thereof
applicable to the Offer, other than Rule 14e-5 promulgated under the Exchange
Act. Unless the Company advises the Purchaser that it does not wish the
Purchaser to extend the Offer, the Purchaser shall extend the Offer from time to
time until the earlier of (A) the date that is 30 days after the date on which
the Regulatory Condition (as defined in Annex A) is satisfied or (B) the Drop
Dead Date, in the event that, at the then-scheduled expiration date, all of the
conditions of the Offer set forth in Annex A hereto have not been satisfied or
waived as permitted by this Agreement. Any extension of the Offer pursuant to
the preceding sentence of clause (i) of the second preceding sentence or this
Section 1.1 shall not exceed the lesser of ten business days or such fewer
number of days that the Purchaser reasonably believes are necessary to cause the
conditions of the Offer set forth in Annex A hereto to be satisfied. The
Purchaser shall provide a "subsequent offering period" (as contemplated by Rule
14d-11 under the Exchange Act) of not less than three business days following
its acceptance for payment of Shares in the Offer. On or prior to the dates that
the Purchaser becomes obligated to accept for payment and pay for Shares
pursuant to the Offer, Alcoa shall provide or cause to be provided to the
Purchaser the funds necessary to pay for all Shares that the Purchaser becomes
so obligated to accept for payment and pay for pursuant to the Offer. The Offer
Price shall, subject to any required withholding of Taxes, be net to the seller
in cash, upon the terms and subject to the conditions of the Offer.
(b) As promptly as practicable on the date of commencement of the
Offer, the Purchaser shall file with the SEC a Tender Offer Statement on
Schedule TO (together with all amendments and supplements thereto, the "Schedule
TO") with respect to the Offer. The Schedule TO shall contain or incorporate by
reference an offer to purchase (the "Offer to Purchase") and forms of the
related letter of transmittal and all other ancillary Offer documents
(collectively, together with all amendments and supplements thereto, the "Offer
Documents"). Alcoa and the Purchaser shall cause the Offer Documents to be
disseminated to the holders of the Shares as and to the extent required by
applicable federal securities laws. Alcoa and the Purchaser, on the one hand,
and the Company, on the other hand, will promptly correct any information
provided by it for use in the Offer Documents if and to the extent that it shall
have become false or misleading in any material respect, and the Purchaser will
cause the Offer Documents as so corrected to be filed with the SEC and to be
disseminated to holders of the Shares, in each case as and to the extent
required by applicable federal securities laws. The Company and its counsel
shall be given a reasonable opportunity to review and comment upon the Schedule
TO before it is filed with the SEC. In addition, Alcoa and the Purchaser agree
to provide the Company and its counsel with any comments,
3
<PAGE>
whether written or oral, that Alcoa or the Purchaser or their counsel may
receive from time to time from the SEC or its staff with respect to the Offer
Documents promptly after the receipt of such comments and to consult with the
Company and its counsel prior to responding to any such comments.
Section 1.2 Company Actions.
(a) The Company hereby approves of and consents to the Offer and
represents and warrants that the Company's Board of Directors, at a meeting duly
called and held, has (i) determined that the terms of the Offer and the Merger
are fair to and in the best interests of the stockholders of the Company, (ii)
approved this Agreement and approved the transactions contemplated hereby,
including the Offer and the Merger and (iii) resolved to recommend that the
stockholders of the Company accept the Offer, tender their Shares to the
Purchaser thereunder and approve and adopt this Agreement and the Merger.
Subject to Section 5.7, the Company hereby consents to the inclusion in the
Offer Documents of the recommendation of the Board described in the immediately
preceding sentence.
(b) As promptly as practicable on the date of commencement of the
Offer, the Company shall file with the SEC a Solicitation/Recommendation
Statement on Schedule 14D-9 (together with all amendments and supplements
thereto, the "Schedule 14D-9") which shall contain the recommendation referred
to in clause (iii) of Section 1.2(a) hereof. The Company further agrees to take
all steps necessary to cause the Schedule 14D-9 to be disseminated to holders of
the Shares as and to the extent required by applicable federal securities laws.
The Company, on the one hand, and each of Alcoa and the Purchaser, on the other
hand, will promptly correct any information provided by it for use in the
Schedule 14D-9 if and to the extent that it shall have become false or
misleading in any material respect, and the Company will cause the Schedule
14D-9 as so corrected to be filed with the SEC and to be disseminated to holders
of the Shares, in each case as and to the extent required by applicable federal
securities laws. Alcoa and its counsel shall be given a reasonable opportunity
to review and comment upon the Schedule 14D-9 before it is filed with the SEC.
In addition, the Company agrees to provide Alcoa, the Purchaser and their
counsel with any comments, whether written or oral, that the Company or its
counsel may receive from time to time from the SEC or its staff with respect to
the Schedule 14D-9 promptly after the receipt of such comments and to consult
with Alcoa, the Purchaser and their counsel prior to responding to any such
comments.
4
<PAGE>
(c) The Company shall promptly furnish the Purchaser with mailing
labels containing the names and addresses of all record holders of Shares and
with security position listings of Shares held in stock depositories, each as of
a recent date, together with all other available listings and computer files
containing names, addresses and security position listings of record holders and
non-objecting beneficial owners of Shares. The Company shall furnish the
Purchaser with such additional information, including, without limitation,
updated listings and computer files of stockholders, mailing labels and security
position listings, and such other assistance as Alcoa, the Purchaser or their
agents may reasonably require in communicating the Offer to the record and
beneficial holders of Shares. Subject to the requirements of applicable law, and
except for such steps as are necessary to disseminate the Offer Documents and
any other documents necessary to consummate the Offer or the Merger, Alcoa and
the Purchaser shall hold in confidence the information contained in such labels,
listings and files, shall use such information solely in connection with the
Offer and the Merger, and, if this Agreement is terminated in accordance with
Section 7.1 or if the Offer is otherwise terminated, shall promptly deliver or
cause to be delivered to the Company all copies of such information, labels,
listings and files then in their possession or in the possession of their agents
or representatives.
Section 1.3 Directors of the Company.
(a) Promptly upon the purchase of and payment for Shares by the
Purchaser or any of its affiliates pursuant to the Offer, Alcoa shall be
entitled to designate such number of directors, rounded up to the next whole
number, on the Board of Directors of the Company as is equal to the product
obtained by multiplying the total number of directors on such Board (giving
effect to the directors designated by Alcoa pursuant to this sentence) by the
percentage that the number of Shares so purchased and paid for bears to the
total number of Shares then outstanding. In furtherance thereof, the Company
shall, upon request of the Purchaser, promptly increase the size of its Board of
Directors or exercise its best efforts to secure the resignations of such number
of directors, or both, as is necessary to enable Alcoa's designees to be so
elected to the Company's Board and, subject to Section 14(f) of the Exchange Act
and Rule 14f-1 promulgated thereunder, shall cause Alcoa's designees to be so
elected. At such time, the Company shall, if requested by Alcoa, also cause
directors designated by Alcoa to constitute at least the same percentage
(rounded up to the next whole number) as is on the Company's Board of Directors
of each committee of the Company's Board of Directors. Notwithstanding the
foregoing, if Shares are purchased pursuant to the Offer, there shall be until
the Effective Time at least two members of the Company's Board of Directors who
are directors on the date hereof and are not employees of the Company.
5
<PAGE>
(b) The Company shall promptly take all actions required pursuant
to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in
order to fulfill its obligations under Section 1.3(a), including mailing to
stockholders together with the Schedule 14D-9 the information required by such
Section 14(f) and Rule 14f-1 as is necessary to enable Alcoa's designees to be
elected to the Company's Board of Directors. Alcoa and the Purchaser will supply
the Company and be solely responsible for any information with respect to them
and their nominees, officers, directors and affiliates required by such Section
14(f) and Rule 14f-1.
(c) Following the election of Alcoa's designees to the Company's
Board of Directors pursuant to this Section 1.3, prior to the Effective Time (i)
any amendment or termination of this Agreement by the Company, (ii) any
extension or waiver by the Company of the time for the performance of any of the
obligations or other acts of Alcoa or the Purchaser under this Agreement, or
(iii) any waiver of any of the Company's rights hereunder shall, in any such
case, require the concurrence of a majority of the directors of the Company then
in office who neither were designated by the Purchaser nor are employees of the
Company (the "Independent Director Approval").
ARTICLE II
THE MERGER
Section 2.1 The Merger. Upon the terms and subject to the conditions
set forth in this Agreement, and in accordance with the DGCL, at the Effective
Time the Purchaser shall merge with and into the Company, and the separate
corporate existence of the Purchaser shall thereupon cease, and the Company
shall be the surviving corporation in the Merger (the "Surviving Corporation").
The Surviving Corporation shall possess all the rights, privileges, powers and
franchises of a public as well as of a private nature and shall be subject to
all of the restrictions, disabilities, duties, debts and obligations of the
Company and the Purchaser, all as provided in the DGCL.
Section 2.2 Closing. The closing of the Merger (the "Closing") will
take place at 10:00 a.m. on a date to be specified by the parties (the "Closing
Date"), which shall be no later than the second business day after satisfaction
or waiver of the conditions set forth in Article VI, unless another time or
date, or both, are agreed to in writing by the parties hereto. The Closing will
be held at the offices of Skadden, Arps,
6
<PAGE>
Slate, Meagher & Flom LLP, Four Times Square, New York, New York, unless another
place is agreed to by the parties hereto.
Section 2.3 Effective Time. Subject to the provisions of this
Agreement, on the Closing Date the parties shall file with the Secretary of
State of the State of Delaware a certificate of merger in accordance with
Section 251 of the DGCL (the "Certificate of Merger") or a certificate of
ownership and merger (the "Certificate of Ownership and Merger") in accordance
with Section 253 of the DGCL, as applicable, executed in accordance with the
relevant provisions of the DGCL and shall make all other filings or recordings
required under the DGCL in order to effect the Merger. The Merger shall become
effective upon the filing of the Certificate of Merger or Certificate of
Ownership and Merger or at such other time as is agreed by the parties hereto
and specified in the Certificate of Merger or Certificate of Ownership and
Merger (the time at which the Merger becomes fully effective being hereinafter
referred to as the "Effective Time").
Section 2.4 Effects of the Merger. The Merger shall have the effects
set forth in Section 259 of the DGCL.
Section 2.5 Certificate of Incorporation; By-laws.
(a) At the Effective Time, the Certificate of Incorporation of
the Purchaser, as in effect immediately prior to the Effective Time, shall be
the Certificate of Incorporation of the Surviving Corporation; PROVIDED,
HOWEVER, that Article FIRST of the Certificate of Incorporation of the Surviving
Corporation shall be amended to read in its entirety as follows: "FIRST: The
name of the corporation is Cordant Technologies Inc." and as so amended shall be
the Certificate of Incorporation of the Surviving Corporation until thereafter
amended as provided by the DGCL and such Certificate of Incorporation.
(b) At the Effective Time, the By-laws of the Purchaser, as in
effect immediately prior to the Effective Time, shall be the By-laws of the
Surviving Corporation until thereafter amended as provided by the DGCL, the
Certificate of Incorporation of the Surviving Corporation and such By-laws.
7
<PAGE>
Section 2.6 Directors; Officers of Surviving Corporation.
(a) The directors of the Purchaser at the Effective Time shall be
the directors of the Surviving Corporation until their respective successors are
duly elected and qualified or their earlier death, resignation or removal in
accordance with the Certificate of Incorporation and By-laws of the Surviving
Corporation.
(b) The officers of the Company at the Effective Time shall be
the officers of the Surviving Corporation until their respective successors are
duly elected and qualified or their earlier death, resignation or removal in
accordance with the Certificate of Incorporation and By-laws of the Surviving
Corporation.
Section 2.7 Conversion of Securities. At the Effective Time, by virtue
of the Merger and without any action on the part of the holders of any
securities of the Purchaser or the Company:
(a) Each Share that is owned by Alcoa, the Purchaser, any of
their respective Subsidiaries, the Company or any Subsidiary of the Company
shall automatically be cancelled and retired and shall cease to exist, and no
consideration shall be delivered in exchange therefor.
(b) Each issued and outstanding Share, other than Shares to be
cancelled in accordance with Section 2.7(a) and Dissenting Shares, shall
automatically be converted into the right to receive the Offer Price in cash
(the "Merger Consideration"), payable, without interest, to the holder of such
Share, upon surrender, in the manner provided in Section 2.8, of the certificate
that formerly evidenced such Share. All such Shares, when so converted, shall no
longer be outstanding and shall automatically be cancelled and retired and shall
cease to exist, and each holder of a certificate representing any such Shares
shall cease to have any rights with respect thereto, except the right to receive
the Merger Consideration therefor upon the surrender of such certificate in
accordance with Section 2.8.
(c) Each issued and outstanding share of common stock, par value
$.01 per share, of the Purchaser shall be converted into one validly issued,
fully paid and nonassessable share of common stock of the Surviving Corporation.
8
<PAGE>
Section 2.8 Exchange of Certificates.
(a) Exchange Agent. Prior to the Effective Time, Alcoa shall
designate a bank or trust company reasonably acceptable to the Company to act as
agent for the holders of the Shares (other than Shares held by Alcoa and its
Subsidiaries, the Company and its Subsidiaries, and Dissenting Shares) in
connection with the Merger (the "Exchange Agent") to receive in trust, the
aggregate Merger Consideration to which holders of Shares shall become entitled
pursuant to Section 2.7(b). Alcoa shall deposit such aggregate Merger
Consideration with the Exchange Agent promptly following the Effective Time.
Such aggregate Merger Consideration shall be invested by the Exchange Agent as
directed by Alcoa or the Surviving Corporation.
(b) Exchange Procedures. Promptly after the Effective Time, Alcoa
and the Surviving Corporation shall cause to be mailed to each holder of record,
as of the Effective Time, of a certificate or certificates, which immediately
prior to the Effective Time represented outstanding Shares (the "Certificates"),
whose Shares were converted pursuant to Section 2.7(b) into the right to receive
the Merger Consideration, a 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
shall be in such form and have such other provisions as Alcoa may reasonably
specify) and instructions for use in effecting the surrender of the Certificates
in exchange for the Merger Consideration. Upon surrender of a Certificate for
cancellation to the Exchange Agent or to such other agent or agents as may be
appointed by Alcoa, together with such letter of transmittal, properly completed
and duly executed in accordance with the instructions thereto, the holder of
such Certificate shall be entitled to receive in exchange therefor the Merger
Consideration for each Share formerly represented by such Certificate, and the
Certificate so surrendered shall forthwith be cancelled. No interest will be
paid or accrued on the cash payable upon the surrender of the Certificates. If
payment of the Merger Consideration is to be made to a Person other than the
Person in whose name the surrendered Certificate is registered, it shall be a
condition of payment that the Certificate so surrendered shall be properly
endorsed or shall be otherwise in proper form for transfer and that the Person
requesting such payment shall have paid all transfer and other Taxes required by
reason of the issuance to a Person other than the registered holder of the
Certificate surrendered or shall have established to the satisfaction of the
Surviving Corporation that such Tax either has been paid or is not applicable.
Until surrendered as contemplated by this Section 2.8, each Certificate shall be
deemed at any time after the Effective Time to represent only the right to
receive the Merger Consideration for each Share in cash as contemplated by this
Section 2.8.
9
<PAGE>
(c) Transfer Books; No Further Ownership Rights in the Shares. At
the Effective Time, the stock transfer books of the Company shall be closed, and
thereafter there shall be no further registration of transfers of the Shares on
the records of the Company. From and after the Effective Time, the holders of
Certificates evidencing ownership of the Shares outstanding immediately prior to
the Effective Time shall cease to have any rights with respect to such Shares,
except as otherwise provided for herein or by applicable law. If, after the
Effective Time, Certificates are presented to the Surviving Corporation for any
reason, they shall be cancelled and exchanged as provided in this Article II.
(d) Termination of Fund; No Liability. At any time following the
first anniversary of the Effective Time, the Surviving Corporation shall be
entitled to require the Exchange Agent to deliver to it any funds (including any
interest received with respect thereto) which had been made available to the
Exchange Agent, and holders shall be entitled to look to the Surviving
Corporation (subject to abandoned property, escheat or other similar laws) only
as general creditors thereof with respect to the Merger Consideration payable
upon due surrender of their Certificates without any interest thereon.
Notwithstanding the foregoing, neither the Surviving Corporation nor the
Exchange Agent shall be liable to any holder of a Certificate for Merger
Consideration delivered to a public official pursuant to any applicable
abandoned property, escheat or similar law.
(e) Lost, Stolen or Destroyed Certificates. In the event any
Certificates for Shares shall have been lost, stolen or destroyed, upon the
making of an affidavit of that fact by the Person claiming such Certificate(s)
to be lost, stolen or destroyed and, if required by Alcoa, the posting by such
Person of a bond in such sum as Alcoa may reasonably direct as indemnity against
any claim that may be made against it or the Surviving Corporation with respect
to such Certificate(s), the Exchange Agent will issue the Merger Consideration
pursuant to Section 2.8(b) deliverable in respect of the Shares represented by
such lost, stolen or destroyed Certificates.
(f) Withholding Taxes. Alcoa and the Purchaser shall be entitled
to deduct and withhold, or cause the Exchange Agent to deduct and withhold, from
the Offer Price or the Merger Consideration payable to a holder of Shares
pursuant to the Offer or the Merger any such amounts as are required under the
Internal Revenue Code of 1986, as amended (the "Code"), or any applicable
provision of state, local or foreign Tax law. To the extent that amounts are so
withheld by Alcoa or the Purchaser, such withheld amounts shall be treated for
all purposes of this Agreement as having
10
<PAGE>
been paid to the holder of the Shares in respect of which such deduction and
withholding was made by Alcoa or the Purchaser.
Section 2.9 Appraisal Rights. Notwithstanding anything in this
Agreement to the contrary, Shares (the "Dissenting Shares") that are issued and
outstanding immediately prior to the Effective Time and which are held by
stockholders who did not vote in favor of the Merger and who comply with all of
the relevant provisions of Section 262 of the DGCL (the "Dissenting
Stockholders") shall not be converted into or be exchangeable for the right to
receive the Merger Consideration, unless and until the holder or holders thereof
shall have failed to perfect or shall have effectively withdrawn or lost their
rights to appraisal under the DGCL. If any Dissenting Stockholder shall have
failed to perfect or shall have effectively withdrawn or lost such right, such
holder's Shares shall thereupon be converted into and become exchangeable for
the right to receive, as of the Effective Time, the Merger Consideration for
each Share without any interest thereon. The Company shall give Alcoa (i) prompt
notice of any written demands for appraisal of any Shares, attempted withdrawals
of such demands and any other instruments served pursuant to the DGCL and
received by the Company relating to stockholders' rights of appraisal, and (ii)
the opportunity to direct all negotiations and proceedings with respect to
demands for appraisal under the DGCL. Neither the Company nor the Surviving
Corporation shall, except with the prior written consent of Alcoa, voluntarily
make any payment with respect to, or settle or offer to settle, any such demand
for payment. If any Dissenting Stockholder shall fail to perfect or shall have
effectively withdrawn or lost the right to dissent, the Shares held by such
Dissenting Stockholder shall thereupon be treated as though such Shares had been
converted into the right to receive the Merger Consideration pursuant to Section
2.7(b).
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Except as set forth on the schedule delivered by the Company to Alcoa
prior to the execution and delivery of this Agreement (the "Company Disclosure
Schedule"), the Company represents and warrants to Alcoa and the Purchaser as
set forth below:
11
<PAGE>
Section 3.1 Organization, Qualification, Etc.
(a) The Company is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware, has the corporate
power and authority required for it to own its properties and assets and to
carry on its business as it is now being conducted. The Company is duly
qualified to do business and is in good standing in each jurisdiction in which
the ownership of its properties or the conduct of its business requires such
qualification, except for jurisdictions in which the failure to be so qualified
or in good standing would not, individually or in the aggregate, have a Material
Adverse Effect on the Company or substantially delay the Offer and the Merger or
otherwise prevent the Company from performing its obligations hereunder. As used
in this Agreement, any reference to any state of facts, event, change or effect
having a "Material Adverse Effect" on or with respect to the Company or Alcoa,
as the case may be, means such state of facts, event, change or effect that has
had, or would reasonably be expected to have, a material adverse effect on the
business, results of operations, assets or financial condition of the Company
and its Subsidiaries, taken as a whole, or Alcoa and its Subsidiaries, taken as
a whole, as the case may be. The Company has delivered or made available to
Alcoa copies of the certificate of incorporation and by-laws of the Company.
Such certificate of incorporation and by-laws are complete and correct and in
full force and effect, and the Company is not in violation of any of the
provisions of its certificate of incorporation or by-laws.
(b) Each of the Company's Significant Subsidiaries is a
corporation or other business entity duly organized, validly existing and in
good standing under the laws of its jurisdiction of incorporation or
organization. Each of the Company's Significant Subsidiaries (i) has the
corporate or other organizational power and authority required for it to own its
properties and assets and to carry on its business as it is now being conducted
and (ii) is duly qualified to do business and is in good standing in each
jurisdiction in which the ownership of its properties or the conduct of its
business requires such qualification, except for jurisdictions in which the
failure to be so qualified or in good standing would not, individually or in the
aggregate, have a Material Adverse Effect on the Company. All the outstanding
shares of capital stock of, or other ownership interests in, the Company's
Subsidiaries are duly authorized, validly issued, fully paid and non-assessable
and, with respect to such shares or ownership interests that are owned by the
Company or its Subsidiaries, are free and clear of all liens, claims, mortgages,
encumbrances, pledges, security interests, equities or charges of any kind
(each, a "Lien"). All the outstanding shares of capital stock of, or other
ownership interests in, the Company's Subsidiaries are wholly owned by the
Company, directly or indirectly, except for the common stock, par value $0.01
per share
12
<PAGE>
(the "Howmet Common Stock"), of Howmet International Inc. ("Howmet"), of which a
wholly owned Subsidiary of the Company owns as of the date hereof 84,650,000
shares. Other than the Subsidiaries listed in Section 3.1 of the Company
Disclosure Schedule, there are no Persons in which the Company owns, of record
or beneficially, any direct or indirect equity or similar interest or any right
(contingent or otherwise) to acquire the same.
Section 3.2 Capital Stock.
(a) The authorized capital stock of the Company consists of
200,000,000 shares of Company Common Stock and 25,000,000 shares of Preferred
Stock, par value $1.00 per share (the "Company Preferred Stock"). As of March 3,
2000, (i) 36,714,831 shares of Company Common Stock are issued and outstanding;
(ii) 1,560,220 shares of Company Common Stock are subject to outstanding options
issued under the Company's 1989 Stock Awards Plan; (iii) 1,514,143 shares of
Company Common Stock are subject to outstanding options issued under the
Company's 1996 Stock Awards Plan, as amended; (iv) 4,356,725 shares of Company
Common Stock are issued and held in the treasury of the Company; and (v) no
shares of Company Preferred Stock are issued, outstanding or reserved for
issuance, except for 600,000 shares of the Company Preferred Stock which have
been designated as "Series A Junior Participating Preferred Stock" and reserved
for issuance in connection with the Rights Agreement, dated May 22, 1997,
between the Company and First Chicago Trust Company of New York (the "Rights
Agreement"). Since March 3, 2000 through the date of this Agreement, (A) no
options to purchase shares of Company Common Stock have been granted, (B) no
shares of Company Common Stock have been issued other than pursuant to the
exercise of options to purchase shares of Company Common Stock outstanding on
March 3, 2000 and (C) no shares of Company Preferred Stock have been issued.
Section 3.2(a) of the Company Disclosure Schedule sets forth a complete and
correct list, as of February 29, 2000, of all holders of options, directors'
restricted stock or other rights to purchase or receive capital stock of the
Company under a stock option or other stock based employee or non-employee
director benefit plan of the Company or any of its Subsidiaries, including such
person's name, the number of options (vested, unvested and total) or other
rights held by such person, the date of grant and the exercise price for each
such option or right.
(b) The authorized capital stock of Howmet consists of
400,000,000 shares of Howmet Common Stock, and 10,000,000 shares of preferred
stock, par value $.01 per share ("Howmet Preferred Stock"). As of March 3, 2000,
(i) 100,033,307 shares of Howmet Common Stock are issued and outstanding; (ii)
13
<PAGE>
4,301,250 shares of Howmet Common Stock are subject to outstanding options
issued under Howmet's 1997 Stock Awards Plan ("Howmet Options"); (iii) no shares
of Howmet Common Stock are issued and held in the treasury of Howmet; (iv) no
shares of Howmet Preferred Stock are issued and outstanding; and (v) no shares
of Howmet Preferred Stock are issued and outstanding or reserved for issuance.
Since March 3, 2000 through the date of this Agreement, (A) no Howmet Options
have been granted, (B) no shares of Howmet Common Stock have been issued other
than pursuant to the exercise of Howmet Options outstanding as of March 3, 2000
and (C) no shares of Howmet Preferred Stock have been issued. Section 3.2(b) of
the Company Disclosure Schedule sets forth a complete and correct list, as of
February 29, 2000 of all holders of options or other rights to purchase or
receive capital stock of Howmet under a stock option or other stock based
employee or non-employee director benefit plan of the Company, Howmet or any of
their Subsidiaries, including such person's name, the number of options (vested,
unvested and total) or other rights held by such person, the date of grant and
the exercise price for each such option or right.
(c) All the outstanding shares of Company Common Stock are duly
authorized, validly issued, fully paid and non-assessable. Except as set forth
in paragraph (a) or (b) above, except for the Company's obligations under the
Rights Agreement (including with respect to the preferred share purchase rights
issued or issuable thereunder (the "Rights"), and except for the transactions
contemplated by this Agreement, (1) there are no shares of capital stock of the
Company authorized, issued or outstanding, (2) there are no authorized or
outstanding options, warrants, calls, preemptive rights, subscriptions or other
rights, agreements, arrangements or commitments of any character obligating the
Company or any of its Subsidiaries to issue, transfer or sell or cause to be
issued, transferred or sold any shares of capital stock or other equity interest
in the Company or any of its Subsidiaries or securities convertible into or
exchangeable for such shares or equity interests, or obligating the Company or
any of its Subsidiaries to grant, extend or enter into any such option, warrant,
call, subscription or other right, agreement, arrangement or commitment, and (3)
there are no outstanding contractual obligations of the Company or any of its
Subsidiaries to repurchase, redeem or otherwise acquire any Shares or other
capital stock of the Company or any Subsidiary or to provide funds to make any
investment (in the form of a loan, capital contribution or otherwise) in any
Subsidiary (other than a Subsidiary that is wholly owned, directly or
indirectly, by the entity obligated to provide such funds) or other entity.
14
<PAGE>
Section 3.3 Corporate Authority Relative to This Agreement; No
Violation.
(a) The Company has the corporate power and authority to enter
into this Agreement and to carry out its obligations hereunder. The execution
and delivery of this Agreement and the consummation of the transactions
contemplated hereby have been duly and validly authorized by the Board of
Directors of the Company and, except for obtaining the Company Stockholder
Approval and the filing of the Certificate of Merger or the Certificate of
Ownership and Merger, as applicable, no other corporate proceedings on the part
of the Company are necessary to authorize the consummation of the transactions
contemplated hereby. The Board of Directors of the Company approved for purposes
of Section 203 of the DGCL the entering into by Alcoa, the Purchaser and the
Company of this Agreement and the consummation of the transactions contemplated
hereby and has taken all appropriate action so that Section 203 of the DGCL,
with respect to the Company, will not be applicable to Alcoa and the Purchaser
by virtue of such actions. The Board of Directors of Howmet approved for
purposes of Section 203 of the DGCL Alcoa and the Purchaser becoming "interested
stockholders" pursuant to Alcoa executing a letter agreement, dated March 13,
2000 with Howmet or their entry into an agreement with the Company providing for
a tender offer by the Purchaser to acquire the outstanding Shares, to be
followed by a merger in which Alcoa would acquire the remaining Shares, and the
consummation of such transactions and the Board of Directors of Howmet has taken
all appropriate action so that Section 203 of the DGCL, with respect to Howmet,
will not be applicable to Alcoa and the Purchaser by virtue of such actions.
This Agreement has been duly and validly executed and delivered by the Company
and, assuming this Agreement constitutes a valid and binding agreement of Alcoa
and the Purchaser, constitutes a valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms.
(b) Except for the filings, permits, authorizations, consents and
approvals set forth in Section 3.3(b)(i) of the Company Disclosure Schedule or
as may be required under the Securities Act of 1933, as amended (the "Securities
Act"), the Exchange Act, the Hart-Scott-Rodino Antitrust Improvements Act of
1976, as amended (the "HSR Act"), state securities or blue sky laws, the rules
and regulations of the New York Stock Exchange or the Chicago Stock Exchange or
the anti-competition laws or regulations of the European Union or any foreign
jurisdiction in which the Company or Alcoa (directly or through Subsidiaries, in
each case ) has material assets or conducts material operations, and the filing
of the Certificate of Merger or Certificate of Ownership and Merger, as
applicable, under the DGCL, none of the execution, delivery
15
<PAGE>
or performance of this Agreement by the Company, the consummation by the Company
of the transactions contemplated hereby or compliance by the Company with any of
the provisions hereof will (i) conflict with or result in any breach of any
provision of the certificate of incorporation, by-laws or similar organizational
documents of the Company or any of its Subsidiaries, (ii) require any filing by
the Company or any of its Subsidiaries with, or permit, authorization, consent
or approval of, any federal, regional, state or local court, arbitrator,
tribunal, administrative agency or commission or other governmental or other
regulatory authority or agency, whether U.S. or foreign (a "Governmental
Entity"), (iii) result in a violation or breach of, or constitute (with or
without due notice or lapse of time or both) a default (or give rise to any
right of termination, amendment, cancellation or acceleration) under, any of the
terms, conditions or provisions of any note, bond, mortgage, indenture, lease,
license, contract, agreement or other instrument 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 may be bound (the "Company Agreements"), or (iv)
violate any order, writ, injunction, decree, judgment, permit, license,
ordinance, law, statute, rule or regulation applicable to the Company, any of
its Subsidiaries or any of their properties or assets, excluding from the
foregoing clauses (ii), (iii) and (iv) such filings, permits, authorizations,
consents, approvals, violations, breaches or defaults which will not,
individually or in the aggregate, have a Material Adverse Effect on the Company
or prevent or substantially delay the consummation of the transactions
contemplated hereby.
Section 3.4 Reports and Financial Statements. The Company has
previously furnished or otherwise made available (by electronic filing or
otherwise) to Alcoa true and complete copies of:
(a) the Annual Reports on Form 10-K filed by the Company with the
SEC for the fiscal year ended June 30, 1998 and the fiscal period ended December
31, 1998, and the Annual Reports on Form 10-K filed by Howmet with the SEC for
each of the fiscal years ended December 31, 1997 and 1998;
(b) the Quarterly Reports on Form 10-Q filed by each of the
Company and Howmet with the SEC for the quarters ended March 31, 1999, June 30,
1999 and September 30, 1999;
(c) each definitive proxy statement filed by each of the Company
and Howmet with the SEC since December 31, 1997;
16
<PAGE>
(d) each final prospectus filed by each of the Company and Howmet
with the SEC since December 31, 1997, except any final prospectus on Form S-8;
and
(e) all Current Reports on Form 8-K filed by each of the Company
and Howmet with the SEC since January 1, 1998.
As of their respective dates, such reports, proxy statements and prospectuses
filed by the Company (collectively with, and giving effect to, any amendments,
supplements and exhibits thereto, the "Company SEC Reports") and filed by Howmet
(collectively with, and giving effect to, any amendments, supplements and
exhibits thereto, the "Howmet SEC Reports," and together with the Company SEC
Reports, the "Group SEC Reports") (i) complied as to form in all material
respects with the applicable requirements of the Securities Act, the Exchange
Act and the rules and regulations promulgated thereunder in effect as of the
date of filing, and (ii) did not contain any untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading. Except to the extent that information contained in
any Group SEC Report was amended or was superseded by a later filed Group SEC
Report, none of the Group SEC Reports contains any untrue statement of a
material fact or omits to state any material fact required to be stated therein
or necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. Except for (x) filing
requirements of Subsidiaries of the Company in connection with guarantees by
such Subsidiaries of indebtedness of the Company, (y) Cordant Technologies
Holding Company (with respect to the filing of Statements on Schedule 13D under
the Exchange Act) and (z) Howmet, none of the Company's Subsidiaries is required
to file any forms, reports or other documents with the SEC. The audited
consolidated financial statements and unaudited consolidated interim financial
statements included in the Group SEC Reports (including any related notes and
schedules) fairly present in all material respects the consolidated financial
position of each of the Company and Howmet, as the case may be, and its
respective consolidated Subsidiaries as of the dates thereof and the results of
operations and cash flows for the periods or as of the dates then ended
(subject, in the case of the unaudited interim financial statements, to normal
recurring year-end adjustments), and in each case were prepared in accordance
with generally accepted accounting principles in the United States ("GAAP")
consistently applied during the periods involved (except as otherwise disclosed
in the notes thereto). Since January 1, 1999, each of the Company and Howmet has
timely filed all reports, registration statements and other filings required to
be filed by it with the SEC under the rules and regulations of the SEC. The
Company
17
<PAGE>
represents and warrants to Alcoa that, as of the respective dates thereof, all
reports of the type referred to in this Section 3.4 which the Company files with
the SEC on or after the date hereof, will not contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading. The audited consolidated financial
statements and the unaudited consolidated interim financial statements included
in such reports (including any related notes and schedules) will fairly present
in all material respects the consolidated financial position of the Company and
its consolidated Subsidiaries as of the dates thereof and the results of
operations and cash flows or other information included therein for the periods
or as of the date then ended (subject, in the case of the interim financial
statements, to normal, recurring year-end adjustments), and will be prepared in
each case in accordance with GAAP consistently applied during the periods
involved (except as otherwise disclosed in the notes thereto).
Section 3.5 No Undisclosed Liabilities. Neither the Company nor any of
its Subsidiaries has any liabilities or obligations of any nature required to be
set forth in a consolidated balance sheet of the Company and its consolidated
Subsidiaries under GAAP whether or not accrued, contingent or otherwise, and
there is no existing condition, situation or set of circumstances which could be
expected to result in such a liability or obligation, except liabilities or
obligations (a) reflected in the Group SEC Reports or (b) which, individually or
in the aggregate, would not have a Material Adverse Effect on the Company.
Section 3.6 No Violation of Law. The businesses of the Company and its
Subsidiaries are not being conducted in violation of any order, writ,
injunction, decree, judgment, permit, license, ordinance, law, statute, rule or
regulation of any Governmental Entity (PROVIDED that no representation or
warranty is made in this Section 3.6 with respect to Environmental Laws), except
(a) as described in the Group SEC Reports, and (b) for violations or possible
violations which would not, individually or in the aggregate, have a Material
Adverse Effect on the Company.
Section 3.7 Environmental Matters.
(a) Each of the Company and its Subsidiaries has obtained all
licenses, permits, authorizations, approvals and consents from Governmental
Entities which are required under any applicable Environmental Law and necessary
for it to carry on its business or operations as now conducted ("Environmental
Permits"), except for such failures to have Environmental Permits which,
individually or in the aggregate,
18
<PAGE>
would not have a Material Adverse Effect on the Company. Each of such
Environmental Permits is in full force and effect, and each of the Company and
its Subsidiaries is in compliance with the terms and conditions of all such
Environmental Permits and with all applicable Environmental Laws, except for
such failures to be in full force and effect or in compliance which,
individually or in the aggregate, would not have a Material Adverse Effect on
the Company.
(b) There are no Environmental Claims pending or, to the best
knowledge of the Company, threatened against the Company or any of its
Subsidiaries, or, to the best knowledge of the Company, for which the Company or
any of its Subsidiaries is liable, that, individually or in the aggregate, would
have a Material Adverse Effect on the Company.
(c) To the best knowledge of the Company, there are no past or
present actions, activities, circumstances, conditions, events or incidents,
including, without limitation, the release, threatened release or presence of
any Hazardous Material, that would form the basis of any Environmental Claim
against the Company or any of its Subsidiaries, or for which the Company or any
of its Subsidiaries is liable, except for such Environmental Claims which,
individually or in the aggregate, would not have a Material Adverse Effect on
the Company.
(d) To the best knowledge of the Company, no site or facility now
or previously owned, operated or leased by the Company or any of its
Subsidiaries is listed or proposed for listing on the National Priorities List
promulgated pursuant to the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended, and the rules and regulations thereunder
("CERCLA").
(e) No Liens have arisen under or pursuant to any Environmental
Law on any site or facility owned, operated or leased by the Company or any of
its Subsidiaries, except for such Liens which would not, individually or in the
aggregate, have a Material Adverse Effect on the Company, and no action of any
Governmental Entity has been taken or, to the best knowledge of the Company, is
in process which could subject any of such properties to such Liens, except for
any such action which, individually or in the aggregate, would not have a
Material Adverse Effect on the Company.
19
<PAGE>
(f) As used in this Agreement:
(i) "Environmental Claim" means any claim, action, lawsuit
or proceeding by any Person which seeks to impose liability (including,
without limitation, liability for investigatory costs, cleanup costs,
governmental response costs, natural resources, damages, property damages,
personal injuries or penalties) arising out of, based on or resulting from
(A) the presence, or release or threatened release, of any Hazardous
Materials at any location, whether or not owned or operated by the Company
or any of its Subsidiaries, or (B) circumstances which would give rise to
any violation, or alleged violation, of any Environmental Law.
(ii) "Environmental Law" means any law or order of any
Governmental Entity relating to (A) the generation, treatment, storage,
disposal, use, handling, manufacturing, transportation or shipment of Hazardous
Materials or (B) the environment or to emissions, discharges, releases or
threatened releases of Hazardous Material into the environment.
(iii) "Hazardous Materials" means (A) any petroleum or
petroleum products, radioactive materials or friable asbestos; (B) any chemicals
or other materials or substances which are now defined as or included in the
definition of "hazardous substances," "hazardous wastes," "hazardous materials,"
"extremely hazardous wastes," "restricted hazardous wastes," "toxic substances,"
"toxic pollutants," "pollutants," "contaminants," "infectious wastes,"
"hazardous chemicals" or "hazardous pollutants," under any Environmental Law;
and (C) pesticides.
Section 3.8 Employee Benefit Plans; Erisa.
(a) Section 3.8(a) of the Company Disclosure Schedule contains a
true and complete list of each material deferred compensation, incentive
compensation or equity compensation plan; "welfare" plan, fund or program
(within the meaning of section 3(1) of the Employee Retirement Income Security
Act of 1974, as amended ("ERISA")); "pension" plan, fund or program (within the
meaning of section 3(2) of ERISA); each material employment, consulting,
termination or severance agreement; and each other material employee benefit
plan, fund, program, agreement or arrangement, in each case, that is sponsored,
maintained or contributed to or required to be contributed to by the Company or
by any trade or business, whether or not incorporated (an "ERISA Affiliate"),
that together with the Company would be deemed
20
<PAGE>
a "single employer" within the meaning of section 4001(b) of ERISA, or to which
the Company or an ERISA Affiliate is party, for the benefit of any employee or
former employee of the Company or any Subsidiary (the "Company Plans");
PROVIDED, that Section 3.8(a) of the Company Disclosure Schedule does not set
forth a complete list of Company Plans that are maintained outside the United
States primarily for the benefit of persons who are not citizens or residents of
the United States ("Foreign Plans"). The Company shall deliver a true and
complete list of Foreign Plans to Purchaser as soon as practicable after the
date hereof. The Company and its Subsidiaries do not have any material
liabilities or obligations with respect to Foreign Plans (whether or not
accrued, contingent or otherwise) which are not reflected in the Group SEC
Reports to the extent required to be so reflected.
(b) With respect to each Company Plan, the Company shall, as soon
as practicable after the date hereof, deliver or make available to Alcoa true
and complete copies of the Company Plans and any amendments thereto, any related
trust or other funding vehicle, any reports or summaries required under ERISA or
the Code and the most recent determination letter received from the Internal
Revenue Service (the "IRS") with respect to each Company Plan intended to
qualify under Section 401 of the Code.
(c) No liability under Title IV or section 302 of ERISA has been
incurred by the Company or any ERISA Affiliate that has not been satisfied in
full, and no condition exists that presents a material risk to the Company or
any ERISA Affiliate of incurring any such liability, other than liability for
premiums due the Pension Benefit Guaranty Corporation (which premiums have been
paid when due), except as would not have a Material Adverse Effect on the
Company.
(d) No Company Plan that is subject to Title IV (a "Company Title
IV Plan") is a "multiemployer pension plan," as defined in section 3(37) of
ERISA, nor is any Company Title IV Plan a plan described in section 4063(a) of
ERISA.
(e) Each Company Plan has been operated and administered in
accordance with its terms and applicable law, including but not limited to ERISA
and the Code, except as would not have a Material Adverse Effect on the Company,
and each Company Plan intended to be "qualified" within the meaning of section
401(a) of the Code is so qualified and the trusts maintained thereunder are
exempt from taxation under section 501(a) of the Code, except for failures to so
qualify or be exempt that would reasonably be expected to be curable without a
Material Adverse Effect on the Company.
21
<PAGE>
(f) No Company Plan provides medical, surgical, hospitalization,
death or similar benefits (whether or not insured) for employees or former
employees of the Company or any Subsidiary for periods extending beyond their
retirement or other termination of service, other than (i) coverage mandated by
applicable law, (ii) death benefits under any "pension plan," or (iii) benefits
the full cost of which is borne by the current or former employee (or his
beneficiary).
(g) Section 3.8(g)(i) of the Company Disclosure Schedule sets
forth each Company Plan under which payments may be made that could constitute
"excess parachute payments" within the meaning of Section 280G of the Code. The
aggregate amount of such excess parachute payments (exclusive of "gross-up
payments" for excise tax) shall not exceed the amount set forth in Section
3.8(g)(ii) of the Company Disclosure Schedule.
(h) Section 3.8(h) of the Company Disclosure Schedule sets forth
each Company Plan under which, as a result of the consummation of the Offer or
the Merger, either alone or in combination with another event, (A) any current
or former employee or officer of the Company or any ERISA Affiliate may become
entitled to severance pay or any other payment, except as expressly provided in
this Agreement, or (B) compensation due any such employee or officer may become
accelerated the time of payment or vested, or increased.
(i) There are no pending or, to the best knowledge of the
Company, threatened claims by or on behalf of any Company Plan, by any employee
or beneficiary covered under any such Company Plan, or otherwise involving any
such Company Plan (other than routine claims for benefits), except as would not
have a Material Adverse Effect on the Company.
(j) There are no pending or scheduled audits of any Company Plan
by any Governmental Entity or any pending nor, to the best knowledge of the
Company, threatened claims or penalties resulting from any such audit, except as
would not have a Material Adverse Effect on the Company.
Section 3.9 Absence of Certain Changes or Events. Except as disclosed
in the Group SEC Reports, since December 31, 1998 (a) the businesses of the
Company and its Subsidiaries have been conducted in all material respects in the
ordinary course, and (b) there has not been any event, occurrence, development
or state
22
<PAGE>
of circumstances or facts that has had, or would have, individually or in the
aggregate, a Material Adverse Effect on the Company.
Section 3.10 Litigation. Except as disclosed in the Group SEC Reports,
there are no claims, actions, suits, proceedings, arbitrations or investigations
pending (or, to the best knowledge of the Company, threatened) against or
affecting the Company or its Subsidiaries or any of their respective properties
or assets at law or in equity, by or before any Governmental Entity which,
individually or in the aggregate, will have a Material Adverse Effect on the
Company or would prevent or substantially delay the Offer or the Merger.
Section 3.11 Schedule 14D-9; Offer Documents; and Proxy Statement.
Neither the Schedule 14D-9 nor any information supplied by the Company for
inclusion in the Offer Documents will, at the respective times the Schedule
14D-9, the Offer Documents or any amendments or supplements thereto are filed
with the SEC or are first published, sent or given to stockholders of the
Company, 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 made therein, in the light of the circumstances
under which they are made, not misleading. The Proxy Statement will not, on the
date the Proxy Statement (or any amendment or supplement thereto) is first
mailed to stockholders of the Company, 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 made therein, in the light of the
circumstances under which they are made, not misleading or will, at the time of
the Special Meeting, omit to state any material fact necessary to correct any
statement in any earlier communication with respect to the solicitation of
proxies for the Special Meeting which shall have become false or misleading in
any material respect. The Schedule 14D-9 and the Proxy Statement will, when
filed by the Company with the SEC, comply as to form in all material respects
with the applicable provisions of the Exchange Act and the rules and regulations
thereunder. Notwithstanding the foregoing, the Company makes no representation
or warranty with respect to information supplied by or on behalf of Alcoa or the
Purchaser which is contained in any of the foregoing documents.
Section 3.12 Intellectual Property.
(a) The Company and its Subsidiaries own or have valid rights to
use all items of Intellectual Property utilized in the conduct of the business
of the Company and its Subsidiaries as presently conducted free and clear of all
Liens with
23
<PAGE>
such exceptions as would not have, individually or in the aggregate, a Material
Adverse Effect on the Company.
(b) Except as would not individually or in the aggregate have a
Material Adverse Effect on the Company, (i) neither the Company nor any
Subsidiary of the Company is in default (or with the giving of notice or lapse
of time or both, would be in default) under any license or other grant to use
such Intellectual Property, (ii) such Intellectual Property is not being
infringed by any third party, (iii) neither the Company nor any Subsidiary is
infringing any Intellectual Property of any third party, and (iv) in the last
three years neither the Company nor any Subsidiary has received any written
claim or notice of infringement from any third party.
(c) As used in this Agreement, "Intellectual Property" means all
of the following: (i) U.S. and foreign registered and unregistered trademarks
and pending trademark applications, trade dress, service marks, logos, trade
names, brand names, corporate names, assumed names and business names and all
registrations and applications to register the same (the "Trademarks"), (ii)
issued U.S. and foreign patents and pending patent applications, invention
disclosures, and any and all divisions, continuations, continuations-in-part,
reissues, continuing patent applications, reexaminations, and extensions
thereof, any counterparts claiming priority therefrom, utility models, patents
of importation/confirmation, certificates of invention, certificates of
registration and like statutory rights (the "Patents"), (iii) U.S. and foreign
copyrights (including, but not limited to, those in computer software and
databases), rights of publicity, and all registrations and applications to
register the same (the "Copyrights"), (iv) all categories of trade secrets as
defined in the Uniform Trade Secrets Act and under corresponding foreign
statutory and common law, including, but not limited to, business, technical and
know-how information, (v) all licenses and agreements pursuant to which the
Company or any Subsidiary has acquired rights in or to any Trademarks, Patents,
trade secrets, technology, know-how, Computer Software, rights of publicity or
Copyrights, or licenses and agreements pursuant to which the Company has
licensed or transferred the right to use any of the foregoing, and (vi) all
computer software, data files, source and object codes, user interfaces, manuals
and other specifications and documentation and all know-how relating thereto
(collectively, "Computer Software").
Section 3.13 Tax Matters.
(a) All federal, state, local and foreign Tax Returns required to
be filed by or on behalf of the Company, each of its Subsidiaries and each
affiliated, combined, consolidated or unitary group of which the Company or any
of its
24
<PAGE>
Subsidiaries is a member (a "Company Affiliated Group") have been timely filed
or requests for extensions have been timely filed and any such extension has
been granted and has not expired, and all such filed Tax Returns are complete
and accurate except to the extent any failure to file or any inaccuracies in
filed Tax Returns would not, individually or in the aggregate, have a Material
Adverse Effect on the Company. All Taxes due and owing by the Company, any
Subsidiary of the Company or any Company Affiliated Group have been paid, or
adequately reserved for, except to the extent any failure to pay or reserve for
would not, individually or in the aggregate, have a Material Adverse Effect on
the Company. There is no audit, examination, deficiency, refund litigation,
proposed adjustment or matter in controversy with respect to any Taxes due and
owing by the Company, any Subsidiary of the Company or any Company Affiliated
Group which if determined adversely would, individually or in the aggregate,
have a Material Adverse Effect on the Company. All assessments for Taxes due and
owing by the Company, any Subsidiary of the Company or any Company Affiliated
Group with respect to completed and settled examinations or concluded litigation
have been paid, except to the extent any failures to pay would not individually
or in the aggregate have a Material Adverse Effect on the Company. Section
3.13(a) of the Company Disclosure Schedule sets forth (i) the taxable years of
the Company for which the statutes of limitations with respect to U.S. federal
income Taxes have not expired, and (ii) with respect to federal income Taxes for
such years, those years for which examinations have been completed, those years
for which examinations are presently being conducted, and those years for which
examinations have not yet been initiated. Neither the Company nor any of its
Subsidiaries has any liability under Treasury Regulation Section 1.1502-6 for
U.S.federal income Taxes of any Person other than the Company and its Subsidiar-
ies except to the extent of any liabilities that would not, individually or in
the aggregate, have a Material Adverse Effect on the Company. The Company and
each of its Subsidiaries have complied in all material respects with all rules
and regulations relating to the withholding of Taxes, except to the extent any
such failure to comply would not, individually or in the aggregate, have a
Material Adverse Effect on the Company.
(b) Neither the Company nor any Subsidiary of the Company has (i)
entered into a closing agreement or other similar agreement with a taxing
authority relating to Taxes of the Company or any Subsidiary of the Company with
respect to a taxable period for which the statute of limitations is still open,
or (ii) with respect to U.S. federal income Taxes, granted any waiver of any
statute of limitations with respect to, or any extension of a period for the
assessment of, any income Tax, in either case, that is still outstanding. There
are no Liens relating to material Taxes upon the assets of the Company or any
Subsidiary of the Company other than Liens relating to Taxes not yet due or
Liens for which adequate reserves have been established.
25
<PAGE>
Neither the Company nor any Subsidiary of the Company is a party to or is bound
by any Tax sharing agreement, Tax indemnity obligation or similar agreement or
practice in respect of Taxes (other than with respect to agreements solely
between or among members of the consolidated group of which the Company is the
common parent). No consent under Section 341(f) of the Code has been filed with
respect to the Company or any Subsidiary of the Company.
(c) For purposes of this Agreement: (i) "Taxes" means any and all
federal, state, local, foreign or other taxes of any kind (together with any and
all interest, penalties, additions to tax and additional amounts imposed with
respect thereto) imposed by any taxing authority, including, without limitation,
taxes or other charges on or with respect to income, franchises, windfall or
other profits, gross receipts, property, sales, use, capital stock, payroll,
employment, social security, workers' compensation, unemployment compensation or
net worth, and taxes or other charges in the nature of excise, withholding, ad
valorem or value added, and (ii) "Tax Return" means any return, report or
similar statement (including the attached schedules) required to be filed with
respect to any Tax, including, without limitation, any information return, claim
for refund, amended return or declaration of estimated Tax.
Section 3.14 Opinion of Financial Advisor. The Board of Directors of
the Company has received the opinion of Morgan Stanley & Co. Incorporated, dated
the date of this Agreement, substantially to the effect that, the consideration
to be received by the holders of Shares pursuant to this Agreement is fair to
such stockholders from a financial point of view.
Section 3.15 Required Vote of the Company Stockholders. The
affirmative vote of the holders of a majority of the outstanding shares of
Company Common Stock (the "Company Stockholder Approval") is the only vote of
the holders of any class or series of the Company's capital stock which is
necessary to approve and adopt this Agreement.
Section 3.16 Employment Matters. Neither the Company nor any of its
Subsidiaries has experienced any work stoppages, strikes, collective labor
grievances, other collective bargaining disputes or claims of unfair labor
practices in the last year which would, individually or in the aggregate, have a
Material Adverse Effect on the Company. There is no organizational effort
presently being made or, to the best knowledge of the Company, threatened by or
on behalf of any labor union with respect to employees of the Company or any of
its Subsidiaries, except as would not have a Material Adverse Effect on the
Company.
26
<PAGE>
Section 3.17 Rights Plan. The Board of Directors of the Company has
amended the Rights Agreement to provide that (i) so long as this Agreement has
not been terminated pursuant to Section 7.1, a Distribution Date (as such term
is defined in the Rights Agreement) shall not occur or be deemed to occur, and
neither Alcoa nor the Purchaser shall become an Acquiring Person (as such term
is defined in the Rights Agreement), as a result of the execution, delivery or
performance of this Agreement, the announcement, making or consummation of the
Offer, the acquisition of Shares pursuant to the Offer or the Merger, the
consummation of the Merger or any other transaction contemplated by this
Agreement and (ii) the Rights shall expire immediately prior to the consummation
of the Offer.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
OF ALCOA AND THE PURCHASER
Except as set forth on the schedule delivered by Alcoa to the Company
prior to the execution of this Agreement (the "Alcoa Disclosure Schedule," and
together with the Company Disclosure Schedule, the "Disclosure Schedule"), Alcoa
and the Purchaser jointly and severally represent and warrant to the Company as
set forth below:
Section 4.1 Organization, Qualification, Etc. Each of Alcoa and the
Purchaser is a corporation duly organized, validly existing and in good standing
under the laws of the jurisdiction of its incorporation, has the corporate power
and authority and all governmental approvals required for it to own its
properties and assets and to carry on its business as it is now being conducted
or presently proposed to be conducted. Each of Alcoa and the Purchaser is duly
qualified to do business and is in good standing in each jurisdiction in which
the ownership of its properties or the conduct of its business requires such
qualification, except for jurisdictions in which the failure to be so qualified
and in good standing would not, individually or in the aggregate, have a
Material Adverse Effect on Alcoa or delay consummation of the transactions
contemplated by this Agreement or otherwise prevent Alcoa or the Purchaser from
performing its obligations hereunder. The Purchaser is a wholly owned Subsidiary
of Alcoa.
27
<PAGE>
Section 4.2 Corporate Authority Relative to This Agreement; No
Violation.
(a) Each of Alcoa and the Purchaser has the corporate power and
authority to enter into this Agreement and to carry out its obligations
hereunder. The execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby have been duly and validly authorized by
the Board of Directors of each of Alcoa and the Purchaser. Alcoa, as the sole
stockholder of the Purchaser, has duly and validly approved and adopted this
Agreement. Other than the filing of the Certificate of Merger no other corporate
proceedings on the part of Alcoa or the Purchaser (including their respective
stockholders) are necessary to authorize the consummation of the transactions
contemplated hereby. This Agreement has been duly and validly executed and
delivered by Alcoa and the Purchaser and, assuming this Agreement constitutes a
valid and binding agreement of the Company, constitutes a valid and binding
agreement of each of Alcoa and the Purchaser, enforceable against each of Alcoa
and the Purchaser in accordance with its terms.
(b) Except for the filings, permits, authorizations, consents and
approvals as may be required under the Exchange Act, the HSR Act, or the anti-
competition laws or regulations of the European Union or any foreign
jurisdiction in which the Company or Alcoa (directly or through Subsidiaries, in
each case) has material assets or conducts material operations and the filing of
the merger certificate under the DGCL, none of the execution, delivery or
performance of this Agreement by Alcoa or the Purchaser, the consummation by
Alcoa or the Purchaser of the transactions contemplated hereby or compliance by
Alcoa or the Purchaser with any of the provisions hereof will (i) conflict with
or result in any breach of any provision of the articles of incorporation or
by-laws of Alcoa or the certificate of incorporation, by-laws or similar
organizational documents of any of its Subsidiaries, including the Purchaser,
(ii) require any filing with, or permit, authorization, consent or approval of,
any Governmental Entity, (iii) result in a violation or breach of, or constitute
(with or without due notice or lapse of time or both) a default (or give rise to
any right of termination, amendment, cancellation or acceleration) under, any of
the terms, conditions or provisions of any note, bond, mortgage, indenture,
lease, license, contract, agreement or other instrument or obligation to which
Alcoa or any of its Subsidiaries is a party or by which any of them or any of
their respective properties or assets may be bound (the "Alcoa and Purchaser
Agreements"), or (iv) violate any order, writ, injunction, decree, judgment,
permit, license, ordinance, law, statute, rule or regulation applicable to
Alcoa, any of its Subsidiaries or any of their respective properties or assets,
excluding from the foregoing clauses (ii), (iii) and (iv) such violations,
breaches or
28
<PAGE>
defaults which will not, individually or in the aggregate, have a Material
Adverse Effect on Alcoa or prevent or substantially delay the consummation of
the transactions contemplated hereby.
Section 4.3 Offer Documents; Proxy Statement; Schedule 14D-9. Neither
the Offer Documents nor any information supplied by Alcoa or the Purchaser for
inclusion in the Schedule 14D-9 will, at the time the Offer Documents, the
Schedule 14D-9, or any amendments or supplements thereto, are filed with the SEC
or are first published, sent or given to stockholders of the Company, 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 made therein, in the light of the circumstances under which they
are made, not misleading. The information supplied by Alcoa for inclusion in the
Proxy Statement will not, on the date the Proxy Statement (or any amendment or
supplement thereto) is first mailed to stockholders of the Company, 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
the light of the circumstances under which they are made, not misleading, or
shall, at the time of the Special Meeting, omit to state any material fact
necessary to correct any statement in any earlier communication with respect to
the solicitation of proxies for the Special Meeting which shall have become
false or misleading. Notwithstanding the foregoing, Alcoa and the Purchaser make
no representation or warranty with respect to any information supplied by or on
behalf of the Company which is contained in any of the Offer Documents, the
Proxy Statement or any amendment or supplement thereto. The Offer Documents
shall comply as to form in all material respects with the requirements of the
Exchange Act and the rules and regulations thereunder.
Section 4.4 Financing. At or prior to the dates that the Purchaser
becomes obligated to accept for payment and pay for Shares pursuant to the
Offer, and at the Effective Time, Alcoa and the Purchaser will have sufficient
cash resources available to pay for the Shares that the Purchaser becomes so
obligated to accept for payment and pay for pursuant to the Offer and to pay the
aggregate Merger Consideration pursuant to the Merger.
Section 4.5 Opinion of Financial Advisor. The Board of
Directors of Alcoa has received the opinion of Salomon Smith Barney Inc., dated
the date of this Agreement, substantially to the effect that the consideration
to be offered by Alcoa in the Offer and the Merger, taken together, is fair to
Alcoa from a financial point of view.
29
<PAGE>
Section 4.6 Ownership of Capital Stock. Immediately prior to the
execution and delivery of this Agreement, neither Alcoa nor any of its
Subsidiaries beneficially owned any Shares or any shares of Howmet Common Stock.
ARTICLE V
COVENANTS AND AGREEMENTS
Section 5.1 Conduct of Business Prior to the Effective Time. (a) The
Company agrees that, from and after the date hereof and prior to the Effective
Time or the date, if any, on which this Agreement is earlier terminated pursuant
to Section 7.1 (the "Termination Date"), and except as may be agreed in writing
by Alcoa, which agreement shall not be unreasonably withheld or delayed, as may
be expressly permitted pursuant to this Agreement or as set forth in Section 5.1
of the Company Disclosure Schedule, the Company:
(i) shall, and shall cause each of its Subsidiaries to,
conduct its operations in all material respects according to their ordinary
course of business in substantially the same manner as heretofore
conducted;
(ii) shall use its reasonable best efforts, and cause each
of its Subsidiaries to use its reasonable best efforts, to preserve intact
its business organization and goodwill, keep available the services of its
current officers and other key employees and preserve its current
relationships with those Persons having significant business dealings with
the Company and its Subsidiaries;
(iii) shall notify Alcoa of any emergency or other
substantial change in the normal course of its or its Subsidiaries'
respective businesses or in the operation of its or its Subsidiaries'
respective properties and of any complaints of or hearings (or written
communications indicating that the same are threatened) of which the
Company has knowledge before any Governmental Entity if such emergency,
change, complaint, investigation or hearing would have a Material Adverse
Effect on the Company;
(iv) shall not, and shall not permit any of its Subsidiaries
that is not incorporated or organized in the United States or not wholly
owned to, repatriate funds, authorize or pay any dividends on or make any
distribution with respect to its outstanding shares of capital stock (other
than (A) regularly
30
<PAGE>
quarterly cash dividends by the Company in an amount not to exceed $0.10
per Share per quarter declared and paid in accordance with past practice,
including establishment of record and payment dates and (B) dividends or
distributions by wholly owned Subsidiaries of the Company;
(v) shall not, and shall not permit any of its Subsidiaries
to establish, enter into or amend any severance plan, agreement or
arrangement or any Company Plan or materially increase the compensation
payable or to become payable or the benefits provided to its officers or
employees, except as may be required by applicable law or a contract in
existence on the date hereof, and except for increases for nonofficer
employees in the normal course of business consistent with past practice;
(vi) shall not, and shall not permit any of its Subsidiaries
to, authorize or announce an intention to authorize, or enter into an
agreement with respect to, any merger, consolidation or business
combination (other than the Merger), any acquisition of any assets or
securities, or any disposition of any assets or securities, except in an
amount that is not material to the Company and its Subsidiaries taken as a
whole;
(vii) shall not, and shall not permit any of its
Subsidiaries to, propose or adopt any amendments to its certificate of
incorporation or by-laws (or other similar organizational documents);
(viii) shall not, and shall not permit any of its Subsidiar-
ies to, issue or authorize the issuance of, or agree to issue or sell any
shares of capital stock of any class (whether through the issuance or
granting of options, warrants, commitments, convertible securities,
subscriptions, rights to purchase or otherwise), except for (1) the
issuance of Company Common Stock and associated Rights pursuant to options
and grants outstanding as of the date of this Agreement which were issued
or made, as the case may be, pursuant to the Company's 1989 Stock Awards
Plan, 1996 Stock Awards Plan and Key Executive Long-Term Incentive Plan and
each of which is set forth in Section 3.2(a) of the Company Disclosure
Schedule, (2) the issuance of Howmet Common Stock pursuant to options and
grants outstanding as of the date of this Agreement, which were issued or
made, as the case may be, pursuant to Howmet's 1997 Stock Awards Plan, and
each of which is set forth in Section 3.2(b) of the Company Disclosure
Schedule; or take any action to cause to be exercisable any otherwise
unexercisable option under any existing stock option
31
<PAGE>
plan and (3) the annual issuance to each non-employee director of the
Company of shares of Company Common Stock having a value of $20,000;
PROVIDED, that such issuance is made at such time as is consistent with
past practice;
(ix) shall not, and shall not permit any of its Subsidiaries
to, reclassify, combine, split, purchase or redeem any shares of its
capital stock or purchase or redeem any rights, warrants or options to
acquire any such shares (other than as contemplated by the Company Plans);
(x) shall not, and shall not permit any of its Subsidiaries
to, (A) incur, assume or prepay any indebtedness or any other material
liabilities for borrowed money or issue any debt securities other than (i)
incurrences and repayments of indebtedness under the Company's or its
Subsidiaries' credit facilities in existence on the date of this Agreement
in the ordinary course of business consistent with past practice and (ii)
in an amount not to exceed $40 million in the aggregate or (B) assume,
guarantee, endorse or otherwise become liable or responsible (whether
directly, contingently or otherwise) for the obligations of any other
Person (other than wholly owned Subsidiaries), except for guarantees by
Subsidiaries of the Company of indebtedness permitted under the preceding
clause (A);
(xi) shall not, and shall not permit any of its Subsidiaries
to (or consent to any proposal by any Person in which the Company has an
investment to), make or forgive any loans, advances or capital
contributions to, or investments in, any other Person other than the
Company or any wholly-owned Subsidiary of the Company (including any
intercompany loans, advances or capital contributions to, or investments
in, any affiliate) other than advances to employees in the ordinary course
of business in accordance with the Company's or its Subsidiaries'
established policies;
(xii) shall not, and shall not permit any of its
Subsidiaries to, (A) enter into any material lease or license or otherwise
subject to any material Lien any of its properties or assets (including
securitizations), other than in the ordinary course of business consistent
with past practice; (B) modify or amend in any material respect, or
terminate, any of its material contracts (except (x) with respect to
"classified" contracts or (y) in the ordinary course of business); (C)
waive, release or assign any rights that are material to the Company and
its Subsidiaries taken as a whole; or (D) permit any insurance policy
naming it as a beneficiary or a loss payable payee to lapse, be cancelled
32
<PAGE>
or expire unless a new policy with substantially identical coverage is in
effect as of the date of lapse, cancellation or expiration;
(xiii) shall not, and shall not permit any of its Subsidiar-
ies to change any of the financial accounting methods used by it unless
required by generally accepted accounting principles of the applicable
country or change in applicable law;
(xiv) shall not, and shall not permit any of its
Subsidiaries to, file with, or submit to, any Governmental Entity
(including the SEC) any registration statement, prospectus or other similar
document, or any amendment or supplement thereto, relating to the issuance
of any securities of the Company or any Subsidiary of the Company, other
than a registration statement of the Company on Form S-8 (including any
final prospectus thereon) or any amendment or supplement thereto, filed
with the SEC in connection with the Company Stock Plans, in each case, in
the ordinary course of business consistent with past practice;
(xv) shall not, and shall not permit any of its Subsidiaries
to, agree, in writing or otherwise, to take any of the foregoing actions or
take any action which would (y) make any representation or warranty in
Article III hereof untrue or incorrect in any material respect, or (z)
result in any of the conditions to the Offer set forth in Annex A hereto or
any of the conditions to the Merger set forth in Article VI hereof not
being satisfied;
(b) Alcoa agrees that, from and after the date hereof and prior
to the earlier of the Effective Time and the Termination Date, and except as may
be agreed in writing by the Company or as may be expressly permitted pursuant to
this Agreement, Alcoa shall not, and shall not permit any of its Subsidiaries to
(i) agree, in writing or otherwise, to take any action which would result in any
of the conditions to the Offer set forth in Annex A hereto or any of the
conditions to the Merger set forth in Article VI hereof not being satisfied or
(ii) delay the consummation of the Offer, including by application of Rule 14e-5
under the Exchange Act.
Section 5.2 Access; Confidentiality.
(a) Except for competitively sensitive information or government
"classified" information or as limited by applicable law (including, without
limitation, antitrust laws) or the terms of any confidentiality agreement or
provision in
33
<PAGE>
effect on the date of this Agreement, the Company shall (and shall cause each of
its Subsidiaries to) afford to the officers, employees, accountants, counsel and
other authorized representatives of Alcoa reasonable access during normal
business hours upon reasonable notice, throughout the period prior to the
earlier of the Effective Time or the Termination Date, to its properties,
offices, facilities, employees, contracts, commitments, books and records
(including but not limited to Tax Returns and supporting work papers) and any
report, schedule or other document filed or received by it pursuant to the
requirements of federal or state securities laws and shall (and shall cause each
of its Subsidiaries to) furnish to Alcoa such additional financial and operating
data and Tax and other information as to its and its Subsidiaries' respective
businesses and properties as Alcoa may from time to time reasonably request.
Alcoa and the Purchaser will use their best efforts to minimize any disruption
to the businesses of the Company and its Subsidiaries which may result from the
requests for data and information hereunder. No investigation pursuant to this
Section 5.2(a) shall affect any representation or warranty in this Agreement of
any party hereto or any condition to the obligations of the parties hereto.
(b) Alcoa will hold any information provided under this Section
5.2 that is non-public in confidence to the extent required by, and in
accordance with, the provisions of the letter dated December 2, 1999, between
Alcoa and the Company (the "Confidentiality Agreement").
Section 5.3 Special Meeting; Proxy Statement.
(a) Following the purchase of Shares pursuant to the Offer, if
required by applicable law in order to consummate the Merger, the Company,
acting through its Board of Directors, shall, in accordance with applicable law:
(i) duly call, give notice of, convene and hold a special
meeting of its stockholders (the "Special Meeting") for the purposes of
considering and taking action upon the approval and adoption of this Agree-
ment; and
(ii) prepare and file with the SEC a preliminary proxy or
information statement relating to the Merger and this Agreement and obtain
and furnish the information required to be included by the SEC in the Proxy
Statement and, after consultation with Alcoa, respond promptly to any
comments made by the SEC with respect to the preliminary proxy or informa
tion statement and cause a definitive proxy or information statement,
including
34
<PAGE>
any amendments or supplements thereto (the "Proxy Statement") to be mailed
to its stockholders at the earliest practicable date, PROVIDED that no
amendments or supplements to the Proxy Statement will be made by the
Company without consultation with Alcoa and its counsel.
(b) Alcoa shall vote, or cause to be voted, all of the Shares
acquired in the Offer or otherwise then owned by it, the Purchaser or any of
Alcoa's other Subsidiaries in favor of the approval and adoption of this
Agreement.
(c) Notwithstanding the provisions of paragraphs (a) and (b)
above, in the event that Alcoa, the Purchaser and any other Subsidiaries of
Alcoa shall acquire in the aggregate at least 90% of the outstanding shares of
each class of capital stock of the Company pursuant to the Offer or otherwise,
the parties hereto shall, subject to Article VI hereof, take all necessary and
appropriate action to cause the Merger to become effective as soon as
practicable after such acquisition, without a meeting of stockholders of the
Company, in accordance with Section 253 of the DGCL.
Section 5.4 Reasonable Best Efforts; Further Assurances.
(a) Subject to the terms and conditions of this Agreement and
applicable law, each of the parties shall act in good faith and use reasonable
best efforts to take, or cause to be taken, all actions, and to do, or cause to
be done, all things necessary, proper or advisable to consummate and make
effective the transactions contemplated by this Agreement as soon as
practicable. Without limiting the foregoing, the parties shall (and shall cause
their respective Subsidiaries, and use reasonable best efforts to cause their
respective affiliates, directors, officers, employees, agents, attorneys,
accountants and representatives, to) (i) consult and cooperate with and provide
assistance to each other in the preparation and filing with the SEC of the Offer
Documents, the Schedule 14D-9, the preliminary Proxy Statement and the Proxy
Statement and all necessary amendments or supplements thereto; (ii) obtain all
consents, approvals, waivers, licenses, permits, authorizations, registrations,
qualifications or other permissions or actions by, and give all necessary
notices to, and make all filings with and applications and submissions to, any
Governmental Entity or other Person necessary in connection with the
consummation of the transactions contemplated by this Agreement as soon as
reasonably practicable; (iii) provide all such information concerning such
party, its Subsidiaries and its officers, directors, employees, partners and
affiliates as may be necessary or reasonably requested in connection with any of
the foregoing; (iv) avoid the entry of, or have vacated or terminated, any
decree, order, or judgment that would restrain, prevent, or delay the
consummation of the Offer or the
35
<PAGE>
Merger, including but not limited to defending through litigation on the merits
any claim asserted in any court by any Person; (v) take any and all reasonable
steps necessary to avoid or eliminate every impediment under any antitrust,
competition, or trade regulation law that is asserted by any Governmental Entity
with respect to the Offer or the Merger so as to enable the consummation of the
Offer or the Merger to occur as expeditiously as possible; and (vi) divest such
plants, assets or businesses of the Company or any of its Subsidiaries
(including entering into customary ancillary agreements on commercially
reasonable terms relating to any such divestiture of such assets or businesses)
as may be required in order to avoid the filing of a lawsuit by any Governmental
Entity seeking to enjoin the purchase of Shares pursuant to the Offer or the
consummation of the Merger, or the entry of, or to effect the dissolution of,
any injunction, temporary restraining order, or other order in any suit or
proceeding, which would otherwise have the effect of preventing or delaying the
purchase of Shares pursuant to the Offer or the consummation of the Merger;
PROVIDED, HOWEVER, that Alcoa shall not be required to take any actions in
connection with, or agree to, any hold separate order, sale, divestiture, or
disposition of plants, assets and businesses of (x) Alcoa or any of its
Subsidiaries or (y) of the Company or any of its Subsidiaries that accounted in
the aggregate for more than $60 million in revenues in the Company's 1999 fiscal
year. At the request of Alcoa, the Company shall agree to divest, hold separate
or otherwise take or commit to take any action that limits its freedom of action
with respect to, or its ability to retain, any of the businesses, product lines
or assets of the Company or any of its Subsidiaries, provided that any such
action shall be conditioned upon the consummation of the purchase of Shares in
the Offer. Prior to making any application to or filing with a Governmental
Entity or other entity in connection with this Agreement (other than filing
under the HSR Act), each party shall provide the other party with drafts thereof
and afford the other party a reasonable opportunity to comment on such drafts.
(b) The Company, Alcoa and the Purchaser shall keep the other
reasonably apprised of the status of matters relating to completion of the
transactions contemplated hereby, including promptly furnishing the other with
copies of notices or other communications received by Alcoa, the Purchaser or
the Company, as the case may be, or any of their respective Subsidiaries, from
any third party and/or any Governmental Entity with respect to the transactions
contemplated by this Agreement.
36
<PAGE>
Section 5.5 Employee Stock Options and Other Employee Benefits.
(a) The Company shall use its reasonable best efforts to cause
each outstanding option to purchase shares of Company Common Stock (including
any related alternative rights) granted under any stock option or compensation
plan or arrangement of the Company or its Subsidiaries (collectively, the
"Company Option Plans") (including those granted to current or former employees
and directors of the Company or any of its Subsidiaries) (the "Employee Stock
Options") to become exercisable, and each share of restricted Company Common
Stock granted under the Company Option Plans, to vest in full and become fully
transferable and free of restrictions, either prior to the purchase of the
Shares pursuant to the Offer or immediately prior to the Effective Time, as
permitted pursuant to the terms and conditions of the applicable Company Option
Plan. The Company shall offer to each holder of an Employee Stock Option that is
outstanding immediately prior to the first purchase of Shares pursuant to the
Offer (the "Purchase Date") (whether or not then presently exercisable or
vested) to cancel such Employee Stock Option in exchange for an amount in cash
equal to the product obtained by multiplying (x) the difference between the
Offer Price and the per share exercise price of such Employee Stock Option, and
(y) the number of shares of Company Common Stock covered by such Employee Stock
Option. All payments in respect of such Employee Stock Options shall be made as
promptly as practicable after the Purchase Date, subject to the collection of
all applicable withholding Taxes required by law to be collected by the Company.
Each Employee Stock Option, the holder of which does not accept such offer, that
remains outstanding immediately before the Effective Time shall be assumed by
Alcoa and converted, effective as of the Effective Time, into an option with
respect to that number (the "New Share Number") of shares of common stock, par
value $1.00 per share, of Alcoa ("Alcoa Common Stock") that equals the number of
shares of Company Common Stock subject to such Employee Stock Option immediately
before the Effective Time, times an amount equal to the Merger Consideration
divided by the Alcoa Share Value (as defined below), rounded to the nearest
whole number, with a per-share exercise price equal to the aggregate exercise
price of such option immediately before the Effective Time, divided by the New
Share Number, rounded to the nearest whole cent; provided, that in the case of
any such option that was granted as an "incentive stock option" within the
meaning of Section 422 of the Code and did not cease to qualify as such as a
result of any acceleration of vesting provided for above or otherwise, the
number of shares shall be rounded down to the nearest whole number to determine
the New Share Number, and the new per-share exercise price shall be determined
by rounding up to the nearest whole cent. The Alcoa Share Value means the
average of the daily high and low trading prices of the Alcoa Common Stock on
the New York Stock Exchange on each
37
<PAGE>
trading day during the period of 30 days ending the second trading day prior to
the Effective Time. Upon the Effective Time or as soon as reasonably practicable
thereafter, Alcoa shall file with the SEC a Registration Statement or
Registration Statements on Form S-8 covering all shares of Alcoa Common Stock to
be issued pursuant to the options converted into options to purchase shares of
Alcoa Common Stock pursuant to the terms of this Section 5.5(a) and shall cause
such Registration Statement to remain effective so long as Alcoa continues to
have a registration statement on Form S-8 (or any successor form) outstanding
for other options to purchase Alcoa Common Stock. Prior to the Purchase Date,
the Company and Alcoa shall take all action as may be necessary to carry out the
terms of this Section 5.5.
(b) For the period from the Purchase Date through and including
December 31, 2001, Alcoa shall, or shall cause the Company or the Surviving
Corporation to, maintain employee benefit plans, programs and arrangements which
are, in the aggregate, for the employees who were employees of the Company or
any Subsidiary of the Company immediately prior to the Purchase Date and
continue to be employees of Alcoa, the Surviving Corporation or any other
Subsidiary of Alcoa, no less favorable than those provided by the Company and
its Subsidiaries as of the Purchase Date. Each person who is an employee or
former employee of the Company or its Subsidiaries immediately prior to the
Purchase Date (a "Company Employee") shall, without duplication of benefits, be
given credit for all service with the Company or any of its Subsidiaries (and
service credited by the Company or any of its Subsidiaries) prior to the
Purchase Date, using the same methodology utilized by the Company as of
immediately before the Purchase Date for crediting service and determining
levels of benefits, under (i) all employee benefit plans, programs and
arrangements maintained by or contributed to by Alcoa and its Subsidiaries
(including, without limitation, the Company and the Surviving Corporation) in
which such Company Employees become participants for purposes of eligibility to
participate, vesting and determination of level of benefits (excluding, however,
benefit accrual under any defined benefit plans), and (ii) severance plans for
purposes of calculating the amount of each Company Employee's severance
benefits. Alcoa, the Company and the Surviving Company shall (x) waive all
limitations as to preexisting conditions exclusions and waiting periods with
respect to participation and coverage requirements applicable to the Company
Employees under any welfare benefit plans that such Company Employees may be
eligible to participate in after the Purchase Date, other than limitations or
waiting periods that are already in effect with respect to such employees and
that have not been satisfied as of the Purchase Date under any welfare benefit
plan maintained for the Company Employees immediately prior to the Purchase
Date, and (y) provide each Company Employee with credit for any co-payments and
deductibles paid prior to the
38
<PAGE>
Purchase Date in satisfying any applicable deductible or out-of-pocket
requirements under any welfare plans that such Company Employees are eligible to
participate in after the Purchase Date.
(c) Without limiting the generality of the foregoing, for the
period through and including December 31, 2001, Alcoa shall provide, and shall
cause its Subsidiaries (including, without limitation, the Company and the
Surviving Corporation) to provide Company Employees whose employment is
terminated following the Purchase Date with severance benefits on terms and
conditions, and in amounts, that are not less favorable than those provided
under the Company Severance Pay Plan.
(d) Without limiting the generality of the foregoing, Alcoa shall
honor and provide, and/or shall cause it Subsidiaries (including, without
limitation, the Company and the Surviving Corporation) to honor provide, the
agreements and change-of-control payments and benefits set forth in Section
5.5(d) of the Company Disclosure Schedule.
(e) The Company shall take the actions provided for in Item 4 of
Section 5.1 of the Company Disclosure Schedule with respect to its qualified
pension plans.
Section 5.6 Takeover Statute. If any "fair price," "moratorium,"
"control share acquisition" or other form of anti-takeover statute or regulation
shall become applicable to the transactions contemplated hereby, each of the
Company, Alcoa and the Purchaser and the members of their respective Boards of
Directors shall grant such approvals and take such actions as are reasonably
necessary so that the 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 such statute or regulation on the
transactions contemplated hereby.
Section 5.7 No Solicitation by the Company.
(a) Neither the Company nor any of its Subsidiaries nor any of
the officers and directors of any of them shall, and the Company shall direct
and use its reasonable best efforts to cause its and its Subsidiaries'
employees, agents and representatives, including any investment banker, attorney
or accountant retained by it or any of its Subsidiaries (the Company, its
Subsidiaries and their respective officers, directors, employees, agents and
representatives being the "Company Representatives")
39
<PAGE>
not to, directly or indirectly through another Person, (i) initiate, solicit,
encourage or otherwise knowingly facilitate any inquiries (by way of furnishing
information or otherwise) or the making of any inquiry, proposal or offer from
any Person which constitutes an Acquisition Proposal (or would reasonably be
expected to lead to an Acquisition Proposal) or (ii) participate in any
discussions or negotiations regarding an Acquisition Proposal; PROVIDED,
HOWEVER, that the Company's Board of Directors may, or may authorize the Company
Representatives to, in response to an Acquisition Proposal that the Board of
Directors of the Company concludes in good faith is an Incipient Superior
Proposal, (x) furnish information with respect to the Company and its
Subsidiaries to any Person making such Acquisition Proposal pursuant to a
customary confidentiality agreement and (y) participate in discussions or
negotiations regarding such Acquisition Proposal, provided that, prior to taking
any such action, the Company provides reasonable advance notice to Alcoa that it
is taking such action. For purposes of this Agreement "Acquisition Proposal"
means any direct or indirect inquiry, proposal or offer (or any improvement,
restatement, amendment, renewal or reiteration thereof) relating to the
acquisition or purchase of a business or shares of any class of equity
securities of the Company or any of its Subsidiaries, any tender offer or
exchange offer that, if consummated, would result in any Person beneficially
owning any class of equity securities of the Company or any of its Subsidiaries,
or any merger, reorganization, share exchange, consolidation, business
combination, recapitalization, liquidation, dissolution or similar transaction
(a "Business Combination Transaction") involving the Company or any of its
Subsidiaries, or any purchase or sale of a substantial portion of the
consolidated assets (including without limitation stock of Subsidiaries owned
directly or indirectly by the Company) of the Company or any of its Subsidiaries
(an "Asset Transaction"), other than the transactions contemplated by this
Agreement or as permitted by Section 5.1 of this Agreement. For purposes of this
Agreement, (A) "Incipient Superior Proposal" shall mean an unsolicited bona fide
written Acquisition Proposal that the Board of Directors of the Company
concludes in good faith (after consultation with the Company's financial
advisor) would, if consummated, provide greater aggregate value to the Company's
stockholders from a financial point of view than the transactions contemplated
by this Agreement; PROVIDED that for purposes of this definition the term
"Acquisition Proposal" shall have the meaning set forth above, except that (x)
references to "shares of any class of equity securities of the Company" shall be
deemed to be references to "100% of the outstanding Shares" and (y) an
"Acquisition Proposal" shall be deemed to refer only to a Business Combination
Transaction involving the Company or, with respect to an Asset Transaction, such
transaction must involve the assets of the Company and its Subsidiaries, taken
as a whole, and not any Subsidiary of the Company alone and (B) "Superior
Proposal" shall mean an Incipient Superior Proposal for which any required
financing is committed or
40
<PAGE>
which, in the good faith judgment of the Board of Directors in the Company
(after consultation with its financial advisor), is capable of being financed by
the Person making the Acquisition Proposal.
(b) Except as expressly permitted by this Section 5.7, neither
the Company's Board of Directors nor any committee thereof shall (i) withdraw,
modify or change, or propose publicly to withdraw, modify or change, in a manner
adverse to Alcoa, the recommendation by such Board of Directors or such
committee of the Offer, the Merger or this Agreement unless the Board of
Directors of the Company shall have determined in good faith, after consultation
with its financial advisor, that the Offer, the Merger or this Agreement is no
longer in the best interests of the Company's stockholders and that such
withdrawal, modification or change is, therefore, required in order to satisfy
its fiduciary duties to the Company's stockholders under applicable law, (ii)
approve or recommend, or propose publicly to approve or recommend, any
Acquisition Proposal, or (iii) cause the Company to enter into any letter of
intent, agreement in principle, acquisition agreement or other similar agreement
(each, an "Acquisition Agreement") related to any Acquisition Proposal.
Notwithstanding the foregoing, the Company may, in response to a Superior
Proposal, (x) take any of the actions described in clauses (i) or (ii) above or
(y) subject to this paragraph (b), terminate this Agreement (and concurrently
with or after such termination, if it so chooses, cause the Company to enter
into any Acquisition Agreement with respect to any Acquisition Proposal) but
only after the third business day following Alcoa's receipt of written notice
advising Alcoa that the Company's Board of Directors is prepared to accept an
Acquisition Proposal, and attaching the most current version of any such
Acquisition Proposal or any draft of an Acquisition Agreement; PROVIDED, the
Company is not in breach of any of its obligations under this Section 5.7.
(c) In addition to the obligations of the Company set forth in
paragraphs (a) and (b) of this Section 5.7, the Company shall promptly (but in
any event within one business day) notify Alcoa orally and in writing of any
Acquisition Proposal or any inquiry regarding the making of any Acquisition
Proposal, indicating, in connection with such notice, the name of such Person
making such Acquisition Proposal or inquiry and the substance of any such
Acquisition Proposal or inquiry. The Company thereafter shall keep Alcoa
reasonably informed of the status and terms (including amendments or proposed
amendments) of any such Acquisition Proposals or inquiries and the status of any
discussions or negotiations relating thereto.
(d) Nothing contained in this Section 5.7 shall prohibit the
Company or its Board of Directors from at any time taking and disclosing to its
41
<PAGE>
stockholders a position contemplated by Rule 14e-2 promulgated under the
Exchange Act or from making any disclosure to the Company's stockholders
required by applicable law.
Section 5.8 Public Announcements. Alcoa and the Company agree that
neither one of them will issue any press release or otherwise make any public
statement or respond to any press inquiry with respect to this Agreement or the
transactions contemplated hereby without the prior approval of the other party
(which approval will not be unreasonably withheld or delayed), except as may be
required by applicable law or the rules of any stock exchange on which such
party's securities are listed.
Section 5.9 Indemnification; Insurance. (a) From and after the
Purchase Date, Alcoa will indemnify and hold harmless each present and former
director and officer of the Company and its Subsidiaries (the "Indemnified
Parties"), against any costs or expenses (including attorneys' fees), judgments,
fines, losses, claims, damages or liabilities incurred in connection with any
claim, action, suit, proceeding or investigation, whether civil, criminal,
administrative or investigative, by reason of the fact that such individual is
or was a director, officer, employee or agent of the Company or any of its
Subsidiaries, or is or was serving at the request of the Company or any of its
Subsidiaries as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, arising out of or
pertaining to matters existing or occurring at or prior to the Effective Time,
whether asserted or claimed prior to, at or after the purchase of Shares in the
Offer, to the fullest extent permitted under applicable law, and Alcoa shall
also advance fees and expenses (including attorneys' fees) as incurred to the
fullest extent permitted under applicable law.
(b) The Certificate of Incorporation of the Company shall, from
and after the Purchase Date, and the Certificate of Incorporation of the
Surviving Corporation shall, from and after the Effective Time, contain
provisions no less favorable with respect to indemnification than are set forth
as of the date of this Agreement in Article Ninth of the Certificate of
Incorporation of the Company, which provisions shall not be amended, repealed or
otherwise modified for a period of six years from the Purchase Date in any
manner that would adversely affect the rights thereunder of individuals who at
the Purchase Date were directors, officers or employees of the Company; PROVIDED
that nothing contained herein shall limit Alcoa's ability to merge the Company
into Alcoa or any of its Subsidiaries or otherwise eliminate the Company's
corporate existence.
42
<PAGE>
(c) For six years from the Effective Time, Alcoa shall maintain
in effect the Company's and its Subsidiaries' current directors' and officers'
liability insurance policy (the "Policies") covering those persons who are
currently covered by the Policies; PROVIDED, HOWEVER, that in no event shall
Alcoa be required to expend in any one year an amount in excess of the annual
premiums currently paid by the Company and its Subsidiaries for such insurance,
and, PROVIDED, FURTHER, that if the annual premiums of such insurance coverage
exceeds such amount, Alcoa shall be obligated to obtain policies with the
greatest coverage available for a cost not exceeding such amount; and PROVIDED,
FURTHER, that Alcoa may meet its obligations under this paragraph by covering
the above persons under Alcoa's insurance policy on the terms described above
that expressly provide coverage for any acts which are covered by the existing
policies of the Company and its Subsidiaries.
(d) Nothing in this Agreement is intended to, shall be construed
to, or shall release, waive or impair any rights to directors' and officers'
insurance claims under any policy that is or has been in existence with respect
to the Company or any of its Subsidiaries or any of their respective officers,
directors or employees, it being understood and agreed that the indemnification
provided for in this Section 5.9 is not prior to or in substitution for any such
claims under such policies.
Section 5.10 Disclosure Schedule Supplements. From time to time after
the date of this Agreement and prior to the Effective Time, the Company will
promptly supplement or amend the Company Disclosure Schedule with respect to any
matter hereafter arising which, if existing or occurring at or prior to the date
of this Agreement, would have been required to be set forth or described in the
Company Disclosure Schedule or which is necessary to correct any information in
a schedule or in any representation and warranty of the Company which has been
rendered inaccurate thereby in any material respect; PROVIDED, HOWEVER, that the
Company may not update Sections 5.1 and 5.5(d) of the Company Disclosure
Schedule. For purposes of determining the accuracy of the representations and
warranties of the Company contained in this Agreement in order to determine the
fulfillment of the conditions set forth in clause (f) of Annex A, the Company
Disclosure Schedule shall be deemed to include only that information contained
therein on the date of this Agreement and shall be deemed to exclude any
information contained in any subsequent supplement or amendment thereto.
43
<PAGE>
Section 5.11 Howmet Acquisition. Nothing in this Agreement shall
prevent Alcoa or any affiliate of Alcoa from offering to acquire or agreeing
with Howmet to acquire all of the shares of Howmet Common Stock not owned by the
Company or any of its Subsidiaries (a "Howmet Transaction") in accordance with
the terms of the Corporate Agreement, dated as of December 2, 1997, by and among
the Company, Cordant Technologies Holding Company and Howmet, as amended;
PROVIDED, HOWEVER, Alcoa agrees that it will not acquire any shares of Howmet
Common Stock prior to the Purchaser's purchase of Shares pursuant to the Offer.
ARTICLE VI
CONDITIONS TO THE MERGER
Section 6.1 Conditions to Each Party's Obligation to Effect the
Merger. 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 Company Stockholder Approval shall have been obtained, if
required by applicable law.
(b) No statute, rule, regulation, executive order, decree, ruling
or permanent injunction shall have been enacted, entered, promulgated or
enforced by any Governmental Entity which prohibits the consummation of the
Merger substantially on the terms contemplated hereby or has the effect of
making the acquisition of Shares by Alcoa or the Purchaser or any affiliate of
either of them illegal.
(c) Alcoa or the Purchaser or any affiliate of either of them
shall have purchased Shares pursuant to the Offer, except that this condition
shall not be a condition to Alcoa's and the Purchaser's obligation to effect the
Merger if Alcoa, the Purchaser or such affiliate shall have failed to purchase
Shares pursuant to the Offer in breach of their obligations under this
Agreement.
(d) The applicable waiting period under the HSR Act shall have
expired or been terminated.
44
<PAGE>
ARTICLE VII
TERMINATION
Section 7.1 Termination. This Agreement may be terminated and the
other transactions contemplated herein abandoned at any time prior to the
Effective Time, whether before or after obtaining the Company Stockholder
Approval:
(a) by the mutual written consent of the Company (including, from
and after the Purchase Date, the Independent Director Approval contemplated by
Section 1.3(c)), Alcoa and the Purchaser;
(b) by either Alcoa or the Company if (i) (1) the Offer shall
have expired without any Shares being purchased pursuant thereto, or (2) the
Offer has not been consummated on or before September 30, 2000 (the "Drop Dead
Date"); PROVIDED, HOWEVER, that the right to terminate this Agreement pursuant
to this Section 7.1(b)(i) shall not be available to any party whose failure to
fulfill any obligation under this Agreement or the Offer has been the cause of,
or resulted in, the failure of the Shares to have been purchased pursuant to the
Offer; (ii) a statute, rule, regulation or executive order shall have been
enacted, entered or promulgated prohibiting the consummation of the Offer or the
Merger substantially on the terms contemplated hereby; or (iii) an order,
decree, ruling or injunction shall have been entered permanently restraining,
enjoining or otherwise prohibiting the consummation of the Offer or the Merger
substantially on the terms contemplated hereby and such order, decree, ruling or
injunction shall have become final and non-appealable; PROVIDED, that the party
seeking to terminate this Agreement pursuant to this Section 7.1(b)(iii) shall
have used its reasonable best efforts to remove such order, decree, ruling or
injunction and shall not be in violation of Section 5.4;
(c) by Alcoa, if due to an occurrence or circumstance, other than
as a result of a breach by Alcoa or the Purchaser of its obligations hereunder
or under the Offer, resulting in a failure to satisfy any condition set forth in
Annex A hereto, the Purchaser shall have (i) failed to commence the Offer within
30 days following the date of this Agreement, or (ii) terminated the Offer
without having accepted any Shares for payment thereunder;
(d) by the Company, upon approval of its Board of Directors, if
the Purchaser shall have terminated the Offer without having accepted any Shares
for payment thereunder, other than as a result of a breach by the Company of its
obligations
45
<PAGE>
hereunder, that would result in a failure to satisfy any of the conditions set
forth in Annex A hereto;
(e) by the Company, in accordance with Section 5.7(b); PROVIDED,
that such termination shall not be effective unless and until the Company shall
have paid to Alcoa the fee described in Section 7.3 hereof and shall have
complied with the provisions of Sections 5.7(b) and (c).
Section 7.2 Effect of Termination. In the event of termination of this
Agreement pursuant to Section 7.1, written notice thereof shall forthwith be
given to the other party or parties specifying the provision hereof pursuant to
which such termination is made, and this Agreement shall terminate and be of no
further force and effect (except for the provisions of Sections 5.2, 7.3 and 8.2
in the case of termination of this Agreement at any time, and Section 5.5 in the
case of a termination following the purchase of Shares pursuant to the Offer),
and there shall be no other liability on the part of Alcoa, the Purchaser or the
Company or their respective officers or directors except liability arising out
of a willful breach of this Agreement. In the event of termination of this
Agreement pursuant to Section 7.1 prior to the expiration of the Offer, Alcoa
and the Purchaser will promptly terminate the Offer upon such termination of
this Agreement without the purchase of Shares thereunder.
Section 7.3 Termination Fee. In the event that this Agreement shall
have been terminated pursuant to Section 7.1(c) as a result of the failure of
the condition of the Offer set forth in paragraph (e) of Annex A hereto or
Section 7.1(e), the Company shall immediately pay Alcoa a fee equal to $75
million (the "Termination Fee"), payable by wire transfer of immediately
available funds, the receipt of which by Alcoa in the case of termination
pursuant to Section 7.1(e), shall be a condition to the effectiveness of such
termination. The Company acknowledges that the agreements contained in this
Section 7.3 are an integral part of the transactions contemplated by this
Agreement, and that, without these agreements, Alcoa and the Purchaser would not
enter into this Agreement; accordingly, if the Company fails to pay the amount
due pursuant to this Section 7.3, and, in order to obtain such payment, Alcoa
commences a suit which results in a judgment against the Company for the fee set
forth in this Section 7.3, the Company shall pay to Alcoa its costs and expenses
(including attorneys' fees and expenses) in connection with such suit, together
with interest on the amount of the fee at the prime rate of Citibank N.A. in
effect on the date such payment was required to be made.
46
<PAGE>
ARTICLE VIII
MISCELLANEOUS
Section 8.1 No Survival of Representations and Warranties. None of the
representations and warranties in this Agreement or in any instrument delivered
pursuant to this Agreement shall survive the Effective Time.
Section 8.2 Expenses. Except as otherwise expressly contemplated by
this Agreement, all costs and expenses incurred in connection with this
Agreement and the transactions contemplated hereby shall be paid by the party
incurring such costs and expenses.
Section 8.3 Counterparts; Effectiveness. This Agreement may be
executed in two or more separate counterparts, each of which shall be deemed to
be an original but all of which shall constitute one and the same agreement.
This Agreement shall become effective when each party hereto shall have received
counterparts hereof signed by each of the other parties hereto.
Section 8.4 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware, without regard
to the principles of conflicts of laws thereof.
Section 8.5 Notices. All notices and other communications hereunder
shall be in writing (including telecopy or similar writing) and shall be
effective (a) if given by telecopy, when such telecopy is transmitted to the
telecopy number specified in this Section 8.5 and the appropriate telecopy
confirmation is received or (b) if given by any other means, when delivered at
the address specified in this Section 8.5:
To Alcoa or the Purchaser:
Alcoa Inc.
201 Isabella Street
Pittsburgh, Pennsylvania 15212-5858
Attention: Lawrence R. Purtell, Esq.
Telecopy: (412) 553-3200
47
<PAGE>
copy to:
Skadden, Arps, Slate, Meagher & Flom LLP
Four Times Square
New York, New York 10036-6522
Attention: J. Michael Schell, Esq.
Margaret L. Wolff, Esq.
Telecopy: (212) 735-2000
To the Company:
Cordant Technologies Inc.
15 West S. Temple
Suite 1600
Salt Lake City, Utah 84101-1532
Attention: Corporate Secretary
Telecopy: (801) 933-4203
copy to:
Wachtell, Lipton, Rosen & Katz
51 West 52nd Street
New York, New York 10019-6150
Attention: Eric S. Robinson, Esq.
Telecopy: (212) 403-2000
Section 8.6 Assignment; Binding Effect. Neither this Agreement nor any
of the rights, interests or obligations hereunder shall be assigned by any of
the parties hereto (whether by operation of law or otherwise) without the prior
written consent of the other parties, except that the Purchaser may assign, in
its sole discretion, all or any of its rights and interests hereunder to Alcoa
or to any direct or indirect wholly owned Subsidiary of Alcoa, provided that no
such assignment shall relieve the Purchaser of its obligations hereunder if such
assignee does not perform such obligations. Subject to the preceding sentence,
this Agreement shall be binding upon and shall inure to the benefit of the
parties hereto and their respective successors and permitted assigns. Any
assignment not permitted under this Section 8.6 shall be null and void.
48
<PAGE>
Section 8.7 Severability. Any term or provision of this Agreement
which is invalid or unenforceable in any jurisdiction shall, as to that
jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without rendering invalid or unenforceable the remaining terms
and provisions of this Agreement in any other jurisdiction. If any provision of
this Agreement is so broad as to be unenforceable, such provision shall be
interpreted to be only so broad as is enforceable.
Section 8.8 Enforcement of Agreement. The parties hereto agree that
money damages or other remedy at law would not be sufficient or adequate remedy
for any breach or violation of, or a default under, this Agreement by them and
that in addition to all other remedies available to them, each of them shall be
entitled to the fullest extent permitted by law to an injunction restraining
such breach, violation or default or threatened breach, violation or default and
to any other equitable relief, including, without limitation, specific
performance, without bond or other security being required.
Section 8.9 Entire Agreement; No Third-party Beneficiaries. This
Agreement together with the Disclosure Schedule and exhibits hereto and the
Confidentiality Agreement constitute the entire agreement, and supersede all
other prior agreements and understandings, both written and oral, among the
parties, or any of them, with respect to the subject matter hereof and thereof
and except for the provisions of Section 5.5(d) (with respect to the individuals
identified by name on Section 5.5(d) of the Company Disclosure Schedule) and
Section 5.9 hereof, is not intended to and shall not confer upon any Person
other than the parties hereto any rights or remedies hereunder.
Section 8.10 Headings. Headings of the Articles and Sections of this
Agreement are for convenience of the parties only, and shall be given no
substantive or interpretive effect whatsoever.
Section 8.11 Definitions. References in this Agreement to (a)
"Subsidiaries" of the Company or Alcoa shall mean any corporation or other form
of legal entity of which more than 50% of the outstanding voting securities are
on the date hereof directly or indirectly owned by the Company or Alcoa or in
which the Company or Alcoa has the right to elect a majority of the members of
the board of directors or other similar governing body; (b) "Significant
Subsidiaries" shall mean Subsidiaries which constitute "significant
subsidiaries" under Rule 405 promulgated by the SEC under the Securities Act;
(c) "affiliates" shall mean, as to any Person, any other Person which, directly
or indirectly, controls, or is controlled by, or is under common control
49
<PAGE>
with, such Person; (d) "Person" shall mean an individual, a corporation, a
partnership, an association, a trust or any other entity or organization,
including, without limitation, a Governmental Entity. As used in the definition
of "affiliates," "control" (including, with its correlative meanings,
"controlled by" and "under common control with") shall mean the possession,
directly or indirectly, of the power to direct or cause the direction of
management or policies of a Person, whether through the ownership of securities
or partnership or other ownership interests, by contract or otherwise.
"Including," as used herein, shall mean "including, without limitation."
Section 8.12 Finders or Brokers. Except for Morgan Stanley & Co.
Incorporated, a copy of whose engagement agreement has been provided to Alcoa,
with respect to the Company, and Salomon Smith Barney, Inc. with respect to
Alcoa, neither the Company nor Alcoa nor any of their respective Subsidiaries
has employed any investment banker, broker, finder or intermediary in connection
with the transactions contemplated hereby who would be entitled to any fee or
any commission in connection with or upon consummation of the Offer or the
Merger.
Section 8.13 Amendment or Supplement. At any time prior to the
Effective Time, this Agreement may be amended or supplemented in any and all
respects, whether before or after the Company Stockholder Approval, by written
agreement of the parties hereto, by action taken by their respective Boards of
Directors (which in the case of the Company shall include the Independent
Director Approval contemplated in Section 1.3(c)), with respect to any of the
terms contained in this Agreement; PROVIDED, HOWEVER that following the Company
Stockholder Approval there shall be no amendment or change to the provisions
hereof which would reduce the amount or change the type of consideration into
which each Share shall be converted upon consummation of the Merger or other
change requiring stockholder approval without further approval by the
stockholders of the Company.
Section 8.14 Extension of Time, Waiver, Etc. At any time prior to the
Effective Time, any party may (a) extend the time for the performance of any of
the obligations or acts of any other party hereto; (b) waive any inaccuracies in
the representations and warranties of any other party hereto contained herein or
in any document delivered pursuant hereto; or (c) subject to the proviso of
Section 8.13 waive compliance with any of the agreements or conditions of any
other party hereto contained herein; PROVIDED, HOWEVER, in the case of the
Company following the acceptance of Shares for payment in the Offer, the
Independent Director Approval contemplated in Section 1.3(c) is obtained.
Notwithstanding the foregoing no failure or delay by the Company, Alcoa or the
Purchaser in exercising any right hereunder shall operate as a
50
<PAGE>
waiver thereof nor shall any single or partial exercise thereof preclude any
other or further exercise thereof or the exercise of any other right hereunder.
Any agreement on the part of a party hereto to any such extension or waiver
shall be valid only if set forth in an instrument in writing signed on behalf of
such party.
51
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered as of the date first above written.
ALCOA INC.
By:/s/ Richard B. Kelson
Name: Richard B. Kelson
Title: Chief Financial Officer
OMEGA ACQUISITION CORP.
By:/s/ Barbara S. Jeremiah
Name: Barbara Jeremiah
Title: Vice President
CORDANT TECHNOLOGIES INC.
By:/s/ James R. Wilson
Name: James R. Wilson
Title: Chief Executive Officer
52
<PAGE>
ANNEX A
Conditions to the Offer
The capitalized terms used in this Annex A have the meanings set forth
in the attached Agreement, except that the term "the Agreement" shall be deemed
to refer to the attached Agreement.
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 SEC, including Rule 14e-1(c) promulgated under the Exchange
Act (relating to the Purchaser's obligation to pay for or return tendered Shares
promptly after termination or withdrawal of the Offer), pay for, and may
postpone the acceptance for payment of and payment for Shares tendered, and,
except as set forth in the Agreement, terminate the Offer as to any Shares not
then paid for if (i) the Minimum Condition shall not have been satisfied at the
scheduled expiration date of the Offer, (ii) any applicable waiting period under
the HSR Act shall not have expired or been terminated, the notification of and
approval by the European Commission under the EU Council Regulation 4064/89, as
amended, shall not have been received or the applicable waiting period under the
Canadian Competition Act shall not have expired, in each case to the extent
applicable to the purchase of Shares in the Offer (the "Regulatory Condition"),
prior to the expiration of the Offer, or (iii) immediately prior to the
expiration of the Offer, any of the following conditions shall exist:
(a) there shall have been entered, enforced or issued by any
Governmental Entity, any judgment, order, injunction or decree (i) which makes
illegal, restrains or prohibits or makes materially more costly the making of
the Offer, the acceptance for payment of, or payment for, any Shares by Alcoa,
the Purchaser or any other affiliate of Alcoa, or the consummation of the Merger
transaction; (ii) which prohibits or limits materially the ownership or
operation by the Company, Alcoa or any of their Subsidiaries of all or any
material portion of the business or assets of the Company, Alcoa or any of their
Subsidiaries, or compels the Company, Alcoa or any of their Subsidiaries to
dispose of or hold separate all or any portion of the business or assets of the
Company, Alcoa or any of their Subsidiaries; (iii) which imposes or confirms
limitations on the ability of Alcoa, the Purchaser or any other affiliate of
Alcoa to exercise full rights of ownership of any Shares, including, without
limitation, the right to vote any Shares acquired by the Purchaser pursuant to
the Offer or otherwise on all matters properly presented to the Company's
stockholders, including, without limitation, the approval and adoption of this
Agreement and the transactions contemplated by this
i
<PAGE>
Agreement; (iv) which requires divestiture by Alcoa, the Purchaser or any other
affiliate of Alcoa of any Shares; or (v) which otherwise would have a Material
Adverse Effect on the Company to the extent that it relates to or arises out of
the transaction contem plated by this Agreement or Alcoa, except in the case of
clauses (i) through (v), where such events are consistent with or result from
Alcoa's, the Purchaser's and the Company's obligations under Section 5.4 of the
Agreement;
(b) there shall have been any statute, rule, regulation,
legislation or interpretation enacted, enforced, promulgated, amended or, issued
by any Governmental Entity or deemed by any Governmental Entity applicable to
(i) Alcoa, the Company or any Subsidiary or affiliate of Alcoa or the Company or
(ii) any transaction contemplated by this Agreement, other than the HSR Act, the
EU Council Regulation 4064/89, as amended, and the Canadian Competition Act,
which is reasonably likely to result, directly or indirectly, in any of the
consequences referred to in clauses (i) through (v) of paragraph (a) above,
except where such events are consistent with or result from Alcoa's, the
Purchaser's and the Company's obligations under Section 5.4 of the Agreement;
(c) there shall have occurred any changes, conditions, events or
developments that would have, or be reasonably likely to have, individually or
in the aggregate, a Material Adverse Effect on the Company;
(d) there shall have occurred (i) any general suspension of, or
limitation on prices for, trading in securities on the New York Stock Exchange
other than a shortening of trading hours or any coordinated trading halt
triggered solely as a result of a specified increase or decrease in a market
index, (ii) a declaration of a banking moratorium or any suspension of payments
in respect of banks in the United States, (iii) any limitation (whether or not
mandatory) on the extension of credit by banks or other lending institutions in
the United States, (iv) the commencement of a war, material armed hostilities or
any other material international or national calamity involving the United
States or (v) in the case of any of the foregoing existing at the time of the
commencement of the Offer, a material acceleration or worsening thereof;
(e) (i) it shall have been publicly disclosed or the Purchaser
shall have otherwise learned that any Person, other than Alcoa or any of its
affiliates, shall have acquired or entered into a definitive agreement or
agreement in principle to acquire beneficial ownership (determined for the
purposes of this paragraph as set forth in Rule 13d-3 promulgated under the
Exchange Act) of the then outstanding Shares, or shall have been granted any
option, right or warrant, conditional or otherwise, to acquire
ii
<PAGE>
beneficial ownership of 50% or more of the then outstanding Shares, or (ii) the
Board of Directors of the Company or any committee thereof shall have (A)
withdrawn, modified or changed, in a manner adverse to Alcoa or the Purchaser,
the recommendation by such Board of Directors or such committee of the Offer,
the Merger or this Agreement, (B) approved or recommended, or proposed publicly
to approve or recommend, an Acquisition Proposal, (C) caused the Company to
enter into any Acquisition Agreement relating to any Acquisition Proposal, or
(D) resolved to do any of the foregoing;
(f) the representations or warranties of the Company set forth in
the Agreement that are qualified by materiality or Material Adverse Effect shall
not be true and correct, or the representations and warranties of the Company
set forth in the Agreement that are not so qualified shall not be true and
correct in all material respects, in each case, as if such representations or
warranties were made as of such time on or after the date of the Agreement
(except to the extent such representations and warranties speak as of a specific
date or as of the date hereof, in which case such representations and warranties
shall not be so true and correct or true and correct in all material respects,
as the case may be, as of such specific date or as of the date hereof,
respectively);
(g) the Company shall have failed to perform in any material
respect any material obligation or to comply in any material respect with any
material agreement or covenant of the Company to be performed or complied with
by it under the Agreement;
(h) the Agreement shall have been terminated in accordance with
its terms; or
(i) the Purchaser and the Company shall have agreed that the
Purchaser shall terminate the Offer or postpone the acceptance for payment of or
payment for Shares thereunder;
which, in the reasonable good faith judgment of the Purchaser in any such case,
and regardless of the circumstances (including any action or inaction by Alcoa
or any of its affiliates) giving rise to any such condition, makes it
inadvisable to proceed with such acceptance for payment or payment.
The foregoing conditions are for the benefit of the Purchaser
and Alcoa and may be asserted by the Purchaser or Alcoa regardless of the
circumstances giving rise to any such condition or may be waived by the
Purchaser or Alcoa in whole or in
iii
<PAGE>
part at any time and from time to time in their reasonable discretion. The
failure by Alcoa or the Purchaser at any time to exercise any of 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.
iv
