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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-K
CURRENT REPORT PURSUANT
TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
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Date of Report (Date of Earliest Event Reported):
June 30, 1994
NATIONAL INTERGROUP, INC.
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(Exact Name of Registrant as Specified in its Charter)
DELAWARE
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(State or Other Jurisdiction of Incorporation)
1-8549 25-1425889
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(Commission File Number) (I.R.S. Employer
Identification No.)
1220 Senlac Drive, Carrollton, Texas 75006
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(Address of Principal Executive Offices) (Zip Code)
(214) 446-4800
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(Registrant's Telephone Number, Including Area Code)
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Item 5. Other Events.
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On June 30, 1994, National Intergroup, Inc. (the
"Registrant") and FoxMeyer Corporation, its 80.5% owned
subsidiary ("FoxMeyer"), entered into a definitive merger
agreement (the "Merger Agreement") pursuant to which FoxMeyer
will be merged with and into a wholly-owned subsidiary of the
Registrant (the "Proposed Merger") and become a wholly-owned
subsidiary of the Registrant. Under the terms of the Merger
Agreement, public stockholders of FoxMeyer will receive 0.90
shares of common stock of the Registrant ("NII Common Stock") for
each share of common stock of FoxMeyer (the "Exchange Ratio") in
a tax-free reorganization transaction. The Exchange Ratio is
subject to upward adjustment, based on the average price of NII
Common Stock during a 20-day period preceding the meeting of
stockholders that will be held to approve the Proposed Merger
(the "Stockholder's Meeting"), so that FoxMeyer's stockholders
will receive, in exchange for each share of FoxMeyer common
stock, NII Common Stock with a value of no less than $14.40 per
share. The Registrant may terminate the transaction if, as the
result of the adjustment, the Exchange Ratio is greater than one
for one.
The Merger Agreement has been approved by the respective
Boards of Directors of the Registrant and FoxMeyer. Consummation
of the Proposed Merger is conditioned upon, among other things,
(i) approval of the transaction by the holders of a majority of
the shares of FoxMeyer's common stock (which is assured since the
Registrant beneficially owns 80.5% of FoxMeyer's outstanding
common stock and has agreed to vote in favor of the Proposed
Merger), (ii) approval of the transaction by a majority of the
shares of NII Common Stock voting at the Stockholder's Meeting
and (iii) the effectiveness of a registration statement to be
filed with the Securities and Exchange Commission with respect to
the shares of NII Common Stock to be issued pursuant to the
Proposed Merger.
The Registrant and FoxMeyer also announced that, based on
the Merger Agreement, they have entered into a Memorandum of
Understanding with counsel to the plaintiffs settling nine
Delaware stockholder suits that were filed following the
Registrant's announcement on March 1, 1994 of a prior proposal to
acquire the shares held by the public stockholders of FoxMeyer.
Attached hereto and incorporated herein by reference is the
press release issued by the Registrant and FoxMeyer in connection
with the execution of the Merger Agreement and a copy of the
Merger Agreement.
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Item 7. Exhibits.
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(1) Text of Press Release issued by the Registrant and
FoxMeyer dated July 1, 1994.
(2) Agreement and Plan of Merger dated as of June 30, 1994
among the Registrant, FoxMeyer Acquisition Corp. and
FoxMeyer.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act
of 1934, the Registrant has duly caused this report to be signed
on its behalf by the undersigned hereunto duly authorized.
DATE: July 1, 1994 NATIONAL INTERGROUP, INC.
By: /s/ Edward L. Massman
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Edward L. Massman
Controller
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EXHIBITS INDEX
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EXHIBIT
NUMBER DESCRIPTION
- - ------- -----------
(1) Text of Press Release issued by the Registrant and
FoxMeyer dated July 1, 1994.
(2) Agreement and Plan of Merger dated as of June 30, 1994
among the Registrant, FoxMeyer Acquisition Corp. and
FoxMeyer.
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EXHIBIT 1
FOR IMMEDIATE RELEASE
CONTACT: J. Warren Henry
(214) 446-4270
NATIONAL INTERGROUP AGREES TO EXCHANGE ITS STOCK FOR
FOXMEYER CORPORATION SHARES HELD BY THE PUBLIC
Agreement Would Make FoxMeyer A Wholly Owned Subsidiary
DALLAS, TEXAS, July 1, 1994--National Intergroup, Inc.
(NYSE:NII) and its 80.5 percent owned subsidiary, FoxMeyer Corporation
(NYSE:FOX), announced today that they have entered into a definitive
merger agreement under which FoxMeyer would become a wholly-owned
subsidiary of National Intergroup. Pursuant to the terms of the
merger agreement, public stockholders of FoxMeyer (other than National
Intergroup) will receive 0.90 shares of National Intergroup common
stock (the "Exchange Ratio") for each share of FoxMeyer common stock
in a tax-free reorganization transaction.
The merger agreement has been approved by the boards of
directors of both National Intergroup and FoxMeyer. In approving the
merger agreement, the FoxMeyer board considered the favorable
recommendation of the special committee of FoxMeyer directors and the
opinion of Smith Barney Inc., the investment banking firm retained by
the FoxMeyer special committee, as to the fairness of the Exchange
Ratio, as adjusted as set forth below, from a financial point of view,
to FoxMeyer's common stockholders, other than National Intergroup and
its affiliates.
Consummation of the merger is conditioned upon, among other
requirements:
- Approval of the transaction by the holders of a
majority of the outstanding FoxMeyer shares, which is
assured, because National Intergroup beneficially owns
80.5 percent of the outstanding FoxMeyer shares and has
agreed to vote such shares in favor of the merger;
- Approval of the transaction by a majority of National
Intergroup's shares of common stock voting on the
merger; and
- The effectiveness of a registration statement to be
filed with the Securities and Exchange Commission with
respect to the shares of common stock of National
Intergroup that would be issued pursuant to the merger.
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The Exchange Ratio is subject to upward adjustment, so that
FoxMeyer's stockholders will receive National Intergroup stock with a
value no less than $14.40 per share in exchange for each FoxMeyer
share, based upon the average price of National Intergroup's common
stock during a 20-trading-day period preceding the stockholders'
meeting. National Intergroup has the right to terminate the
transaction if the result of the adjustment is an Exchange Ratio
greater than one share of National Intergroup common stock for one
share of FoxMeyer common stock.
National Intergroup and FoxMeyer also announced that, based
on the definitive merger agreement, they have entered into a
Memorandum of Understanding with counsel to plaintiffs settling
certain Delaware shareholder litigation which was commenced following
National Intergroup's March 1, 1994, announcement of a prior proposal
to acquire the shares held by the public stockholders of FoxMeyer.
The National Intergroup and FoxMeyer boards of directors
have postponed the companies' annual meetings of shareholders so that
the merger can be considered at the annual meeting. Their respective
annual meetings had been originally scheduled for August 10, 1994, in
Dallas, Texas. The annual meetings will be rescheduled after the
joint proxy statement/prospectus is available for mailing to
stockholders; at this time, the companies expect the mailing to take
place in September.
At its annual meeting, National Intergroup's board of
directors expects to recommend changing the corporation's name to
better reflect its expanding focus on the growing health care industry
in the United States and Canada.
FoxMeyer is a leading provider of health care products and
information-based services in the United States and Canada, with sales
of $5.1 billion for the year ended March 31, 1994.
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EXHIBIT 2
AGREEMENT AND PLAN OF MERGER
BY AND AMONG
NATIONAL INTERGROUP, INC.,
FOXMEYER ACQUISITION CORP.
AND
FOXMEYER CORPORATION
DATED AS OF JUNE 30, 1994
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TABLE OF CONTENTS
Page
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ARTICLE I
THE MERGER
SECTION 1.1. The Merger . . . . . . . . . . . . . . . . . . 3
SECTION 1.2. Effective Date . . . . . . . . . . . . . . . . 5
SECTION 1.3. Effects of the Merger . . . . . . . . . . . . 5
SECTION 1.4. Certificate of Incorporation . . . . . . . . . 5
SECTION 1.5. By-Laws . . . . . . . . . . . . . . . . . . . 6
SECTION 1.6. Directors . . . . . . . . . . . . . . . . . . 6
SECTION 1.7. Officers . . . . . . . . . . . . . . . . . . . 6
ARTICLE II
CONVERSION OF SHARES
SECTION 2.1. Conversion of Shares . . . . . . . . . . . . 7
SECTION 2.2. Exchange of Shares . . . . . . . . . . . . . 8
SECTION 2.3. Closing of Transfer Books . . . . . . . . . . 15
SECTION 2.4. Stock Options . . . . . . . . . . . . . . . . 15
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
SECTION 3.1. Organization . . . . . . . . . . . . . . . . 17
SECTION 3.2. Capitalization . . . . . . . . . . . . . . . 17
SECTION 3.3. Authority Relative to This Agreement . . . . 17
SECTION 3.4. Consents and Approvals; No Violation . . . . 19
SECTION 3.5. Absence of Material Adverse Change . . . . . 20
SECTION 3.6. Joint Proxy Statement/Prospectus . . . . . . 20
SECTION 3.7. Reports . . . . . . . . . . . . . . . . . . . 22
SECTION 3.8. Fairness Opinion . . . . . . . . . . . . . . 23
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
OF PARENT AND ACQUISITION
SECTION 4.1. Organization . . . . . . . . . . . . . . . . 24
SECTION 4.2. Capitalization . . . . . . . . . . . . . . . 24
SECTION 4.3. Authority Relative to This Agreement;
Consents and Approvals; No Violation . . . . 25
SECTION 4.4. Consents and Approvals; No Violation . . . . 26
SECTION 4.5. Absence of Material Adverse Change . . . . . 28
SECTION 4.6. Business of Acquisition . . . . . . . . . . . 28
SECTION 4.7. Joint Proxy Statement/Prospectus . . . . . . 28
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SECTION 4.8. Reports . . . . . . . . . . . . . . . . . . . 30
SECTION 4.9. Litigation. . . . . . . . . . . . . . . . . . 32
ARTICLE V
COVENANTS
SECTION 5.1. Capitalization . . . . . . . . . . . . . . . 32
SECTION 5.2. Conduct of Business of Acquisition . . . . . 34
SECTION 5.3. Registration Statement; Joint Proxy
Statement . . . . . . . . . . . . . . . . . . 34
SECTION 5.4. Stockholder Approval . . . . . . . . . . . . 35
SECTION 5.5. Best Efforts . . . . . . . . . . . . . . . . 37
SECTION 5.6. Consents . . . . . . . . . . . . . . . . . . 38
SECTION 5.7. NYSE Listing . . . . . . . . . . . . . . . . 38
SECTION 5.8. Fees and Expenses . . . . . . . . . . . . . . 38
ARTICLE VI
CONDITIONS TO THE OBLIGATIONS OF
PARENT, ACQUISITION AND THE COMPANY
SECTION 6.1. Stockholder Approval . . . . . . . . . . . . 39
SECTION 6.2. Certain Proceedings . . . . . . . . . . . . . 39
SECTION 6.3. Exchange Listing . . . . . . . . . . . . . . 39
SECTION 6.4. Registration Statement . . . . . . . . . . . 39
SECTION 6.5. Blue Sky Laws . . . . . . . . . . . . . . . . 40
SECTION 6.6. Consents . . . . . . . . . . . . . . . . . . 40
SECTION 6.7. Tax Opinion . . . . . . . . . . . . . . . . . 40
SECTION 6.8. Fairness Opinion . . . . . . . . . . . . . . 41
ARTICLE VII
CONDITIONS TO THE OBLIGATIONS
OF PARENT AND ACQUISITION
SECTION 7.1. Representations and Warranties True . . . . . 41
SECTION 7.2. Performance . . . . . . . . . . . . . . . . . 42
SECTION 7.3. Certificates . . . . . . . . . . . . . . . . 42
SECTION 7.4. Material Adverse Change . . . . . . . . . . . 42
SECTION 7.5. Regulatory Approvals . . . . . . . . . . . . 42
ARTICLE VIII
CONDITIONS TO THE OBLIGATIONS OF THE COMPANY
SECTION 8.1. Representations and Warranties True . . . . . 43
SECTION 8.2. Performance . . . . . . . . . . . . . . . . . 43
SECTION 8.3. Certificates . . . . . . . . . . . . . . . . 43
SECTION 8.4. Material Adverse Change . . . . . . . . . . . 44
SECTION 8.5. Regulatory Approvals . . . . . . . . . . . . 44
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ARTICLE IX
CLOSING
SECTION 9.1. Time and Place . . . . . . . . . . . . . . . 45
SECTION 9.2. Filings at the Closing . . . . . . . . . . . 45
ARTICLE X
TERMINATION AND ABANDONMENT
SECTION 10.1. Termination . . . . . . . . . . . . . . . . . 46
SECTION 10.2. Procedure and Effect of Termination . . . . . 47
ARTICLE XI
MISCELLANEOUS
SECTION 11.1. Amendment and Modification . . . . . . . . . 48
SECTION 11.2. Waiver of Compliance; Consents . . . . . . . 48
SECTION 11.3. Indemnification . . . . . . . . . . . . . . . 49
SECTION 11.4. Non-Survival of Warranties . . . . . . . . . 52
SECTION 11.5. Notices . . . . . . . . . . . . . . . . . . . 52
SECTION 11.6. Assignment . . . . . . . . . . . . . . . . . 53
SECTION 11.7. Governing Law . . . . . . . . . . . . . . . . 54
SECTION 11.8. Counterparts . . . . . . . . . . . . . . . . 54
SECTION 11.9. Interpretation . . . . . . . . . . . . . . . 54
SECTION 11.10. Entire Agreement . . . . . . . . . . . . . . 55
SCHEDULES
Schedule 3.4 FoxMeyer Conflicts
Schedule 4.2 Options
Schedule 4.4 NII Conflicts
Schedule 6.6 Consents
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AGREEMENT AND PLAN OF MERGER
----------------------------
AGREEMENT AND PLAN OF MERGER (the "Agreement"), dated as of June 30,
1994, by and among NATIONAL INTERGROUP, INC., a Delaware corporation
("Parent"), FoxMeyer Acquisition Corp., a Delaware corporation
("Acquisition"), and FOXMEYER CORPORATION, a Delaware corporation (the
"Company"). The Company and Acquisition are sometimes collectively
referred to herein as the "Constituent Corporations".
W I T N E S S E T H:
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WHEREAS, Parent has authorized capital stock consisting of
(i) 50,000,000 shares of common stock, $5.00 per share (the "Parent
Shares"), of which 12,836,803 shares are issued and outstanding as of
the date hereof, and (ii) 10,000,000 shares of preferred stock, $5.00
par value, of which (a) 924,000 shares of $5 Cumulative Convertible
Preferred Stock (the "Convertible Preferred Stock"), and (b) 3,579,060
shares of $4.20 Cumulative Exchangeable Series A Preferred Stock (the
"Series A Preferred Stock") are issued and outstanding as of the date
hereof; and
WHEREAS, the Company has authorized capital stock consisting
of (i) 60,000,000 shares of common stock, $.01 par value ("Common
Stock"), of which 28,200,000 shares are issued and outstanding as of
the date hereof, and (ii) 10,000,000 shares of preferred stock, $.01
par value, none of which is issued and outstanding as of the date
hereof; and
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WHEREAS, Parent owns 22,690,000 shares, or approximately
80.5%, of the outstanding Common Stock; and
WHEREAS, Acquisition is a direct, wholly-owned subsidiary of
Parent; and
WHEREAS, the Board of Directors of each of Parent,
Acquisition and the Company believes it is in the best interest of
each respective corporation and their respective stockholders to
consummate the merger of the Company with and into Acquisition (the
"Merger") pursuant to the applicable provisions of the Delaware
General Corporation Law ("DGCL") and in accordance with the terms and
subject to the conditions of this Agreement in a transaction intended
to qualify as a reorganization within the meaning of Section
368(a)(1)(A) and Section 368(a)(2)(D) of the Internal Revenue Code of
1986, as amended (the "Code"); and
WHEREAS, based upon the unanimous recommendation of the
special committee of the Board of Directors of the Company (the
"Special Committee"), the Board of Directors of the Company, pursuant
to the applicable provisions of the DGCL, has approved the Merger upon
the terms and subject to the conditions set forth herein and has
recommended approval of this Agreement by the stockholders of the
Company; and
WHEREAS, the Boards of Directors of each of Acquisition and
the Parent have approved the Merger, upon the terms and subject to the
conditions set forth herein.
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NOW, THEREFORE, in consideration of the foregoing premises
and the mutual covenants contained herein, the parties hereto agree as
follows:
ARTICLE I
THE MERGER
SECTION 1.1. The Merger. Upon the terms and subject to the
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conditions hereof and in accordance with the DGCL, on the Effective
Date (as defined in Section 1.2 hereof) the Company shall be merged
with and into Acquisition in accordance with the applicable provisions
of the DGCL, and the separate corporate existence of the Company shall
thereupon cease. Following the Merger, Acquisition shall continue as
the surviving corporation (hereinafter referred to for periods on and
after the Effective Date as the "Surviving Corporation") under the
laws of the State of Delaware under the name FoxMeyer Corporation. On
the Effective Date, 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 the restrictions,
disabilities and duties of each of the Constituent Corporations; and
all and singular, rights, privileges, powers and franchises of each of
the Constituent Corporations, and all property, real, personal and
mixed, and all debts due to any of the Constituent Corporations on
whatever account, as well for
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stock subscriptions as all other things in action or belonging to each
of the Constituent Corporations shall be vested in the Surviving
Corporation; and all property, rights, privileges, powers and
franchises, and all and every other interest shall be thereafter the
property of the Surviving Corporation as they were of the Constituent
Corporations, and the title to any real estate vested by deed or
otherwise, under the laws of the State of Delaware, in any of the
Constituent Corporations, shall not revert or be in any way impaired
by reason of the DGCL; but all rights of creditors and all liens upon
any property of any of the Constituent Corporations shall be preserved
unimpaired, and all debts, liabilities and duties of the respective
Constituent Corporations shall thenceforth attach to the Surviving
Corporation, and may be enforced against it to the same extent as if
said debts, liabilities and duties had been incurred or contracted by
it. At the election of Parent, any direct wholly-owned subsidiary of
Parent may be substituted for Acquisition as a constituent corporation
in the Merger; provided that such substituted constituent corporation
is reasonably acceptable to the Special Committee.
SECTION 1.2. Effective Date. The Merger shall be
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consummated by and shall be effective on the date (the "Effective
Date") of the filing with the Delaware Secretary of State of a
certificate of merger or, if applicable, a certificate of
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ownership and merger, in such form as is required by, and executed in
accordance with, the relevant provisions of the DGCL, and such other
documents as may be required by the provisions of the DGCL (which
filings shall be made as soon as practicable following the
satisfaction or waiver of the conditions set forth in Article VI
hereof).
SECTION 1.3. Effects of the Merger. The Merger shall have
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the effects set forth in Section 259 of the DGCL.
SECTION 1.4. Certificate of Incorporation. The Certificate
----------------------------
of Incorporation of Acquisition immediately prior to the Effective
Time shall be the Certificate of Incorporation of the Surviving
Corporation, until duly amended in accordance with the terms thereof
and the DGCL, except that Article First of the Certificate of
Incorporation of the Surviving Corporation shall read in its entirety
as follows:
"FIRST: The name of the corporation is: FoxMeyer
Corporation."
SECTION 1.5. By-Laws. The By-Laws of Acquisition, as in
-------
effect immediately prior to the Effective Date, shall be the By-Laws
of the Surviving Corporation until thereafter amended as provided by
law.
SECTION 1.6. Directors. The directors of the Company on
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the Effective Date shall be the initial directors of the Surviving
Corporation and will hold office from the Effective
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Date until their respective successors are duly elected or appointed
and qualified in the manner provided in the Certificate of
Incorporation and By-Laws of the Surviving Corporation, or as
otherwise provided by law.
SECTION 1.7. Officers. The officers of the Company on the
--------
Effective Date shall be the initial officers of the Surviving
Corporation and will hold office from the Effective Date until their
respective successors are duly elected or appointed and qualified in
the manner provided in the Certificate of Incorporation and By-Laws of
the Surviving Corporation, or as otherwise provided by law.
ARTICLE II
CONVERSION OF SHARES
SECTION 2.1. Conversion of Shares. At the Effective Date,
--------------------
by virtue of the Merger and without any action on the part of Parent,
Acquisition, the Company or the stockholders thereof:
(i) Each share of Common Stock issued and outstanding
immediately prior to the Effective Date (other than shares held by
Parent or the Company) shall automatically be converted into the right
to receive, and shall be exchanged for, 0.90 Parent Shares (the
"Ratio"); provided, however, that if the product of (x) the Average
-------- -------
Stock Price and (y) the Ratio, is less than $14.40, the Ratio shall be
increased so that the product of
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(x) the Average Stock Price and (y) the Ratio, as so increased, equals
$14.40 (the Ratio, as adjusted, being referred to herein as the
"Exchange Ratio"). The "Average Stock Price" shall mean the average
per share closing price on the New York Stock Exchange ("NYSE") of
Parent Shares during the period of twenty consecutive trading days
commencing twenty-one trading days prior to the date of the
Stockholder Meeting of the Company (the "Meeting Date") and ending on
the second trading day prior to the Meeting Date. The Parent Shares
to be received upon the Merger shall be treasury shares and are
sometimes hereinafter referred to as the "Merger Consideration."
(ii) Each share of Common Stock issued and outstanding
immediately prior to the Effective Date that is (A) owned by Parent or
the Company or (B) held in the treasury of the Company, shall be
cancelled and retired without any payment of any consideration
therefor and shall cease to exist, and no Parent Shares or other
consideration shall be delivered in exchange for such shares of Common
Stock.
(iii) Each share of Common Stock, par value $.01 per share,
of Acquisition issued and outstanding immediately prior to the
Effective Date shall remain unchanged and shall be the common stock of
the Surviving Corporation.
SECTION 2.2. Exchange of Shares. (a) Prior to the
------------------
Effective Date, the Parent shall designate a bank or trust
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company to act as exchange agent (the "Exchange Agent") in connection
with the Merger. On the Effective Date, Parent shall take all steps
necessary to enable and cause the Exchange Agent to receive the Merger
Consideration as and when certificates for shares of Common Stock are
properly surrendered. Parent Shares into which shares of Common Stock
shall be converted in the Merger shall be deemed to have been issued
as of the Effective Date. No dividends or other distributions
declared after the Effective Date with respect to Parent Shares and
payable to the holders of record thereof after the Effective Date
shall be paid to the holder of any unsurrendered Certificates with
respect to which Parent Shares shall have been issued in the Merger
until such Certificates shall be surrendered for exchange as provided
herein, but (i) upon such surrender there shall be paid, without
interest, to the person in whose name the certificates representing
such Parent Shares shall be issued the amount of dividends theretofore
paid with respect to such Parent Shares as of any record date
subsequent to the Effective Date and the amount of any cash payable to
such person in lieu of fractional Parent Shares pursuant to this
Section 2.2 and (ii) at the appropriate payment date or as soon as
practicable thereafter, there shall be paid to such person the amount
of dividends with a record date after the Effective Date but prior to
such surrender and a payment date subsequent to such surrender payable
with
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respect to such Parent Shares, subject in any case to any applicable
abandoned property, escheat or similar laws.
(b) Promptly after the Effective Date, the Company shall
cause the Exchange Agent to mail to each record holder as of
immediately prior to the Effective Date, and to each holder of an
outstanding certificate or certificates that as of the Effective Date
represent the right to receive the Merger Consideration (the
"Certificates"), a form of letter of transmittal (which shall specify
that delivery shall be effected, and risk of loss and title to the
Certificates shall pass, only upon proper delivery of the Certificates
to the Exchange Agent) and instructions for use in effecting the
surrender of the Certificates for payment thereof.
(c) Upon surrender to the Exchange Agent of a Certificate,
together with such letter of transmittal duly executed and completed
in accordance with the instructions thereto, and such other documents
as may be requested, the holder of such Certificate shall be entitled
to receive in exchange therefor the Merger Consideration (rounded down
to the nearest whole number of Parent Shares) deliverable in respect
of the shares of Common Stock theretofore evidenced by such
certificate or certificates (together with any cash in lieu of
fractional Parent Shares pursuant to Section 2.2(e)) and such
certificate or certificates shall forthwith be cancelled. Until
surrendered in
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accordance with the provisions of this Section 2.2(c), each
Certificate shall represent for all purposes only the right to receive
upon such surrender the Merger Consideration, but shall have no other
rights. If a Certificate or Certificates evidencing more than one
share of Common Stock shall be surrendered for exchange as provided in
this Agreement at one time by the same holder, the number of full
Parent Shares and the amount of cash in lieu of fractional Parent
Shares deliverable upon the surrender thereof shall be computed on the
basis of the aggregate number of shares of Common Stock so
surrendered. Notwithstanding the foregoing, neither the Exchange Agent
nor any party hereto shall be liable to a holder of shares of Common
Stock for any Merger Consideration delivered to a public official
pursuant to applicable abandoned property, escheat or similar laws.
(d) If the Parent Shares are to be delivered to a person
other than the person in whose name the Certificate surrendered in
exchange thereof is registered, it shall be a condition to the payment
of such Parent Shares that the Certificate so surrendered shall be
properly endorsed or accompanied by appropriate stock powers and
otherwise in proper form for transfer, that such transfer otherwise be
proper and that the person requesting such transfer pay to the
Exchange Agent any transfer or other taxes payable by reason of the
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<PAGE>
<PAGE>
foregoing or establish to the satisfaction of the Exchange Agent that
such taxes have been paid or are not required to be paid.
(e) No certificates representing fractional Parent Shares
shall be issued upon the surrender for exchange of Certificates
pursuant to this Section 2.2. No dividend, stock split or other
change in the capital structure of Parent shall be applicable with
respect to any fractional share interest. Such fractional share
interests shall not entitle the holder thereof to vote or to any
rights as a security holder of Parent. In lieu of any fractional
Parent Shares, the Exchange Agent shall, on behalf of all holders of
fractional Parent Shares as soon as practicable after the Effective
Date, aggregate all such fractional interests (collectively, the
"Fractional Shares") and, at Parent's option, such Fractional Shares
shall be purchased by Parent or otherwise sold by the Exchange Agent
as agent for the holders of such Fractional Shares, in either case at
then prevailing price on the New York Stock Exchange (the "NYSE"), all
in the manner provided in Section 2.2(f). Parent will pay all
commissions, transfer taxes and other out-of-pocket transaction costs,
including expenses and compensation of the Exchange Agent, incurred in
connection with such sale of the Fractional Shares.
(f) To the extent not purchased by Parent, the sale of the
Fractional Shares by the Exchange Agent will be executed on the NYSE
or through one or more member firms of the NYSE and will
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<PAGE>
<PAGE>
be executed in round lots to the extent practicable. In either case,
the Exchange Agent will determine the portion, if any, of the net
proceeds of such sale to which each holder of Fractional Shares is
entitled, by multiplying the amount of the aggregate net proceeds of
the sale of the Fractional Shares, by a fraction, the numerator of
which is the amount of Fractional Shares to which such holder is
entitled and the denominator of which is the aggregate amount of
Fractional Shares to which all holders of Fractional Shares are
entitled.
(g) As soon as practicable after the determination of the
amount of cash, if any, to be paid to holders of Fractional Shares in
lieu of such Fractional Shares, the Exchange Agent will mail such
amounts, without interest, to such holders; provided, however, that no
-------- -------
such amount will be paid to any holder of such Fractional Shares prior
to the surrender by such holder of the Certificates formerly
representing such holder's shares of Common Stock. All cash proceeds
from the sale of Fractional Shares to be paid pursuant to this
Section, if unclaimed at the sixth month anniversary of the Effective
Date, shall be released and paid by the Exchange Agent to Parent,
after which time persons entitled thereto may look only to Parent for
payment thereof. Notwithstanding the foregoing, neither the Exchange
Agent nor any party hereto shall be liable for any cash proceeds
delivered to a
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<PAGE>
<PAGE>
public official pursuant to applicable abandoned property, escheat or
similar laws.
(h) Promptly following the date that is six months after
the Effective Date, the Exchange Agent shall return to Parent all
Parent Shares in its possession, and the Exchange Agent's duties shall
terminate. Thereafter, each holder of a Certificate formerly
representing a share of Common Stock may surrender such Certificate to
Parent and (subject to applicable abandoned property, escheat or
similar laws) receive in exchange therefor the Merger Consideration.
(i) In the event any Certificate shall have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by
the person claiming such Certificate to be lost, stolen or destroyed,
Parent shall issue in exchange for such lost, stolen or destroyed
certificate the Merger Consideration deliverable in respect thereof as
determined in accordance with this Article II; provided, however, that
-------- -------
the Board of Directors of Parent may, in its discretion and as a
condition precedent to the issuance thereof, require the owner of such
lost, stolen or destroyed Certificate to give Parent a bond in such
sum as it may direct as indemnity against any claim that may be made
against Parent with respect to the Certificate alleged to have been
lost, stolen or destroyed.
<PAGE>
<PAGE>
SECTION 2.3. Closing of Transfer Books. After the
-------------------------
Effective Date there shall be no transfers on the stock transfer books
of the Surviving Corporation of the shares of Common Stock that were
outstanding immediately prior to the Effective Date. If, after the
Effective Date, Certificates are presented to the Surviving
Corporation, they shall be cancelled and exchanged for the Merger
Consideration as provided in this Article II.
SECTION 2.4. Stock Options. At the Effective Date, the
-------------
Company's obligations with respect to each outstanding option to
purchase shares of Common Stock (collectively, the "Stock Options" and
each a "Stock Option") granted pursuant to the Company's Stock Option
and Performance Award Plan (the "Company Stock Option Plan") shall be
assumed by Parent. The Stock Options assumed by Parent shall continue
to have, and be subject to, the same terms and conditions set forth in
the stock option plans and agreements pursuant to which such Stock
Options were issued as in effect immediately prior to the Effective
Date, except that (a) the number of shares for which such Stock Option
shall be exercisable shall equal the product of the Exchange Ratio and
the number of shares of Common Stock subject to the Stock Option
immediately prior to the Effective Date (rounded down to the nearest
whole number), and (b) the per share exercise price for the Parent
Shares issuable upon the exercise of such assumed Stock Option shall
be equal to the aggregate exercise
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<PAGE>
price for the shares of Common Stock subject to the Stock Option,
divided by the number of Parent Shares deemed to be purchasable
pursuant to the Option. The date of grant shall be the date on which
the Stock Option was originally granted. Parent shall (i) reserve for
issuance the number of Parent Shares that will become issuable upon
the exercise of such Stock Options pursuant to this Section 2.4 and
(ii) at the Effective Date, execute a document evidencing the
assumption by Parent of the Company's obligations with respect thereto
under this Section 2.4. Nothing in this Section 2.4 shall affect the
schedule of the vesting (or the acceleration thereof) with respect to
the Stock Options, in accordance with the terms thereof, to be assumed
by Parent as provided in this Section 2.4.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to the Parent and
Acquisition as follows:
SECTION 3.1. Organization. Each of the Company and its
------------
subsidiaries (the "Subsidiaries") is a corporation duly organized,
validly existing and in good standing under the laws of the
jurisdiction of its incorporation and each has all requisite corporate
power and authority to own, lease and operate
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<PAGE>
its properties and to carry on its business as now being conducted.
SECTION 3.2. Capitalization. The authorized capital stock
--------------
of the Company consists of (a) 60,000,000 shares of Common Stock, of
which at June 30, 1994 there were (i) 28,200,000 shares issued and
outstanding and 3,150,000 shares held in the Company's treasury and
(ii) 1,800,000 shares reserved for future issuance pursuant to the
Company Stock Option Plan and (b) 10,000,000 shares of preferred
stock, par value $.01 per share, none of which were issued and
outstanding. All issued and outstanding shares of Common Stock are
validly issued, fully paid, non-assessable and free of preemptive
rights.
SECTION 3.3. Authority Relative to This Agreement. The
------------------------------------
Company has all requisite corporate power and authority to execute and
deliver this Agreement and to consummate the transactions contemplated
hereby. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly
and validly authorized and approved by the Company's Board of
Directors and no other corporate proceedings on the part of the
Company or any Subsidiary of the Company are necessary to authorize
this Agreement, and, except for the adoption of this Agreement by its
stockholders and the filing and recording of the Certificate of
Merger, no other corporate proceedings on the part of the Company
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<PAGE>
are necessary to consummate the transactions so contemplated. This
Agreement has been duly and validly executed and delivered by the
Company, and constitutes a valid and binding obligation of the
Company enforceable against it in accordance with its terms, subject
to (i) approval in accordance with the DGCL of the stockholders of the
Company and (ii) applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and similar laws affecting
creditors' rights and remedies generally and subject, as to enforce-
ability, to general principles of equity, including principles of
commercial reasonableness, good faith and fair dealing (regardless of
whether enforcement is sought in a proceeding at law or in equity).
SECTION 3.4. Consents and Approvals; No Violation. Except
------------------------------------
for applicable requirements of the Securities Act of 1933, as amended
(the "Securities Act"), the Securities Exchange Act of 1934 (the
"Exchange Act"), filings with various state blue sky authorities, and
filing and recordation of appropriate merger documents as required by
the DGCL, no filing with, and no permit, authorization, consent or
approval of, any public body or authority is necessary for the
execution and delivery by the Company of this Agreement or the
consummation by the Company of the transactions contemplated by this
Agreement. Neither the execution and delivery of this Agreement nor
the consummation of the transactions contemplated hereby will
(i) conflict with or
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<PAGE>
result in any breach of any provision of the Certificate of
Incorporation or By-Laws of the Company or any of the Subsidiaries,
(ii) except as set forth on Schedule 3.4, 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,
cancellation or acceleration) under, any of the terms, conditions or
provisions of any note, bond, mortgage, indenture, license, permit,
agreement or other instrument or obligation to which the Company or
any of the Subsidiaries is a party or by which any of them or any of
their properties or assets may be bound or (iii) violate any order,
writ, injunction, decree, statute, rule or regulation applicable to
the Company, any of the Subsidiaries or any of their properties or
assets, excluding from the foregoing clauses (ii) and (iii)
violations, breaches or defaults that, either individually or in the
aggregate, would not have a material adverse effect on the business,
operations, financial condition or prospects of the Company and the
Subsidiaries taken as a whole.
SECTION 3.5. Absence of Material Adverse Change. Since
----------------------------------
March 31, 1994, there has not been any material adverse change in the
business, operations, properties, assets, liabilities or condition
(financial or otherwise) of the Company and its Subsidiaries taken as
a whole or any declaration of any dividend or other distribution with
respect to the Company's
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<PAGE>
capital stock, other than dividends paid in respect of the Common
Stock on May 13, 1994.
SECTION 3.6. Joint Proxy Statement/Prospectus. None of the
--------------------------------
information supplied or to be supplied by the Company and the
Company's Special Committee for inclusion in the Registration
Statement (as defined in Section 5.3) or in the joint proxy statement/
prospectus (the "Proxy Statement") to be mailed to the stockholders of
Parent and the Company in connection with any meetings of stockholders
of Parent and the Company convened in accordance with Section 5.4
will, (a) in the case of the Registration Statement, at the time it is
filed with the Securities and Exchange Commission (the "SEC") or any
other regulatory authority, at the time it becomes effective and at
the Effective Date, 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 not misleading, or
(b) in the case of the Proxy Statement, at the time it is filed with
the SEC or any other regulatory authority, at the time of the mailing
of the Proxy Statement or any amendment or supplement thereto, at the
time of the meetings of the shareholders to which the Proxy Statement
relates and at the Effective Date, contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein, in light
of
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<PAGE>
the circumstances under which they are made, not misleading. If at
any time prior to the Effective Date any event with respect to the
Company, its officers and directors or any of its Subsidiaries should
occur which is required to be described in an amendment of, or a
supplement to, the Proxy Statement or the Registration Statement, such
event shall be so described, and such amendment or supplement shall be
promptly filed with the SEC and, as required by law, disseminated to
the stockholders of the Company. The Proxy Statement and any other
SEC filing will comply (with respect to the Company) in all material
respects, as to form, with the applicable requirements of each of the
Exchange Act and the Securities Act and the respective rules and
regulations thereunder.
SECTION 3.7. Reports. The Company has furnished to Parent
-------
an accurate and complete copy of each registration statement, report
and proxy statement filed by the Company with the SEC since September
1, 1991 (the "Company SEC Documents"). Since September 1, 1991 the
Company has filed all required forms, reports and documents required
to be filed by it pursuant to the Securities Act and the Exchange Act
and the rules and regulations thereunder. The Company SEC Documents,
including without limitation any financial statements or schedules
included therein, when filed, (a) did not contain any untrue statement
of a material fact or omit to state a material fact required to be
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<PAGE>
<PAGE>
stated therein or necessary in order to make the statements therein,
in light of the circumstances under which they were made, not
misleading and (b) complied in all material respects with the
applicable requirements of the Securities Act and the Exchange Act, as
the case may be, and the applicable rules and regulations thereunder.
Other than as disclosed in filings by the Company with the SEC, the
financial statements of the Company (including the related notes
thereto) included in the Company SEC Documents comply as to form in
all material respects with applicable accounting requirements and with
the published rules and regulations of the SEC with respect thereto,
have been prepared in accordance with generally accepted accounting
principles ("GAAP") applied on a consistent basis during the periods
involved (except as may be indicated in such financial statements or
in the notes thereto or, in the case of the unaudited financial
statements, as permitted by the requirements of Form 10-Q) and fairly
present in accordance with GAAP (subject, in the case of the unaudited
statements, to normal recurring audit adjustments) the consolidated
financial position of the Company and its consolidated subsidiaries as
at the dates thereof and the consolidated results of their operations
and cash flows for the periods then ended.
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<PAGE>
SECTION 3.8. Fairness Opinion. The Special Committee has
----------------
received an opinion of Smith Barney Inc., financial advisor to the
Special Committee (the "Fairness Opinion"), to the effect that, as of
the date hereof, the Exchange Ratio is fair, from a financial point of
view, to the holders of the Common Stock of the Company, other than
Parent and its affiliates (the "Unaffiliated Company Stockholders").
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
OF PARENT AND ACQUISITION
Except as otherwise disclosed in writing to the Company
prior to the execution of this Agreement, each of Parent and
Acquisition represents and warrants to the Company as follows:
SECTION 4.1. Organization. Each of Parent and Acquisition
------------
is a corporation duly organized, validly existing and in good standing
under the laws of the jurisdiction of its incorporation and has all
requisite corporate power and authority to own, lease and operate its
properties and to carry on its business as now being conducted.
SECTION 4.2. Capitalization. (a) The authorized capital
--------------
stock of Parent consists of (i) 50,000,000 shares of common stock,
$5.00 par value, of which at June 30, 1994, there were 12,836,803
shares issued and outstanding and 11,255,941 shares held in Parent's
treasury, and (ii) 10,000,000 shares of
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<PAGE>
preferred stock, $5.00 par value, of which at June 30, 1994 there were
(A) 924,000 shares of Convertible Preferred Stock, and (B) 3,579,060
shares of Series A Preferred Stock issued and outstanding. The Parent
Shares to be delivered to the holders of Common Stock pursuant to
Article II hereof, at the time of such delivery, will be duly
authorized, validly issued, fully paid and non-assessable and not
subject to any preemptive or similar rights. Except as set forth on
Schedule 4.2 or as otherwise contemplated in this Agreement, there are
not now, and at the Effective Date there will not be, any existing
options, warrants, calls, subscriptions, or other rights or other
agreements or commitments obligating Parent to issue, transfer or sell
any shares of capital stock of the Parent.
(b) The authorized capital stock of Acquisition consists of
28,200,000 shares of common stock, $.01 par value (the "Acquisition
Shares"), all of which are issued and outstanding as of the date
hereof. Parent owns all of the issued and outstanding Acquisition
Shares. All of the issued and outstanding Acquisition Shares are
validly issued, fully paid, non-assessable and free of preemptive
rights.
SECTION 4.3. Authority Relative to This Agreement; Consents
----------------------------------------------
and Approvals; No Violation. Each of Parent and Acquisition has all
---------------------------
requisite corporate power and authority to execute and deliver this
Agreement and to consummate the
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<PAGE>
<PAGE>
transactions contemplated hereby. The execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby
have been duly and validly authorized and approved by the Board of
Directors of Parent, for itself and as the sole stockholder of
Acquisition, and by the Board of Directors of Acquisition, and no
other corporate proceedings on the part of Parent or Acquisition are
necessary to authorize this Agreement or the consummation of the
transactions contemplated hereby. This Agreement has been duly and
validly executed and delivered by Parent and Acquisition and
constitutes a valid and binding agreement of each of them, enforceable
against each of them in accordance with its terms, subject to
applicable bankruptcy, insolvency, fraudulent conveyance, reorganiza-
tion, moratorium and similar laws affecting creditors' rights and
remedies generally and subject, as to enforceability, to general
principles of equity, including principles of commercial
reasonableness, good faith and fair dealing (regardless of whether
enforcement is sought in a proceeding at law or in equity).
SECTION 4.4. Consents and Approvals; No Violation. Except
------------------------------------
for any applicable requirements of the Securities Act, the Exchange
Act, and filing and recordation of appropriate merger documents as
required by the DGCL, no filing with, and no permit, authorization,
consent or approval of, any public body is
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<PAGE>
necessary for the execution and delivery by Parent or Acquisition of
this Agreement or the consummation by Parent or Acquisition of the
transactions contemplated by this Agreement. Neither the execution
and delivery of this Agreement nor the consummation of the
transactions contemplated hereby by Parent or Acquisition will (i)
conflict with or result in any breach of any provision of the
Certificate of Incorporation or By-Laws of Parent or Acquisition,
(ii) violate any order, writ, injunction, decree, statute, rule or
regulation applicable to Parent or Acquisition or any of their
respective properties or assets, or (iii) except as set forth on
Schedule 4.4, result in a violation or breach of, or constitute (with
or without due notice or lapse of time or both) a default under, any
note, bond, mortgage, indenture, license, permit, agreement or other
instrument to which Parent or Acquisition is a party, or by which
Parent or Acquisition or any of their respective properties is bound,
excluding from the foregoing clauses (ii) and (iii) violations,
breaches or defaults which, either individually or in the aggregate,
would not have a material adverse effect on the business, operations
or financial condition of Parent or Acquisition.
SECTION 4.5. Absence of Material Adverse Change. Since
----------------------------------
March 31, 1994, there has not been any material adverse change in the
business, operations, properties, assets, liabilities or condition
(financial or otherwise) of Parent and
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<PAGE>
its subsidiaries taken as a whole or any declaration of any dividend
or other distribution with respect to Parent's capital stock other
than (i) the cash dividend with respect to the Convertible Preferred
Stock, in the amount of $1.25 per share, declared on June 17, 1994 and
payable on July 15, 1994, and (ii) the dividend with respect to the
Series A Preferred Stock, in the amount of $1.05 per share, declared
on June 17, 1994 and payable on July 15, 1994, which dividend will be
paid in the form of additional shares of Series A Preferred Stock.
SECTION 4.6. Business of Acquisition. Acquisition has not
-----------------------
engaged, and will not, prior to the Closing, engage, in any business
other than in connection with the Merger.
SECTION 4.7. Joint Proxy Statement/Prospectus. None of the
--------------------------------
information supplied or to be supplied by Parent or Acquisition for
inclusion or incorporation by reference in the Proxy Statement or the
Registration Statement will, (a) in the case of the Registration
Statement, at the time it is filed with the SEC or any other
regulatory authority, at the time it becomes effective and at the
Effective Date, 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 not misleading, or
(b) in the case of the Proxy Statement, at the time it is filed with
the SEC or any other regulatory authority, at the time of the mailing
of the Proxy
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<PAGE>
Statement or any amendment or supplement thereto, at the time of the
meetings of the stockholders to which the Proxy Statement relates and
at the Effective Date, contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or
necessary in order to make the statements therein, in light of the
circumstances under which they are made, not misleading. If at any
time prior to the Effective Date any event with respect to Parent, its
officers and directors or any of its subsidiaries should occur which
is required to be described in an amendment of, or a supplement to,
the Proxy Statement or the Registration Statement, such event shall be
so described, and such amendment or supplement shall be promptly filed
with the SEC and, as required by law, disseminated to the shareholders
of the Company. The Proxy Statement and the Registration Statement
and any other SEC filing will comply (with respect to Parent and its
Subsidiaries other than the Company and its Subsidiaries) in all
material respects, as to form, with the applicable requirements of
each of the Exchange Act and the Securities Act and the respective
rules and regulations thereunder.
SECTION 4.8. Reports. Parent has furnished to the Company
-------
an accurate and complete copy of each registration statement, report
and proxy statement filed by Parent with the SEC since December 31,
1990 (the "Parent SEC Documents"). Since
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December 31, 1990 Parent has filed all required forms, reports and
documents required to be filed by it pursuant to the Securities Act
and the Exchange Act and the rules and regulations thereunder. The
Parent SEC Documents, including without limitation any financial
statements or schedules included therein, when filed, (a) did not
contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under which
they were made, not misleading and (b) complied in all material
respects with the applicable requirements of the Securities Act and
the Exchange Act, as the case may be, and the applicable rules and
regulations thereunder. Other than as disclosed in filings by Parent
with the SEC, the financial statements of Parent (including the
related notes thereto) included in the Parent SEC Documents comply as
to form in all material respects with applicable accounting
requirements and with the published rules and regulations of the SEC
with respect thereto, have been prepared in accordance with GAAP
applied on a consistent basis during the periods involved (except as
may be indicated in such financial statements or in the notes thereto
or, in the case of the unaudited financial statements, as permitted by
the requirements of Form 10-Q) and fairly present in accordance with
GAAP (subject, in the case of the unaudited statements, to normal
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<PAGE>
recurring audit adjustments) the consolidated financial position of
Parent and its consolidated subsidiaries as at the dates thereof and
the consolidated results of their operations and cash flows for the
periods then ended.
4.9. Continuity of Business Line. Parent intends to cause
---------------------------
Acquisition to continue the historic business of the Company or use a
significant portion of the Company's historic business assets in a
business, in each case within the meaning of Treas. Reg. 1.368-1(d).
4.10. Litigation. Except as disclosed in the Parent SEC
----------
Documents, there are no actions, suits, investigations or proceedings
pending or, to the best knowledge of Parent, threatened, against
Parent or any of its Subsidiaries (other than the Company and its
Subisidiaries) that, if adversely determined, would be reasonably
likely to result in any claims against, or obligations or liabilities
of, Parent or any of its Subsidiaries that, alone or in the aggregate,
would have a material adverse effect with respect to the business,
operations, properties, assets, liabilities or condition (financial or
otherwise) of Parent and its Subsidiaries taken as a whole.
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<PAGE>
ARTICLE V
COVENANTS
SECTION 5.1. Capitalization. Prior to the Effective Date,
--------------
unless the other parties to this Agreement shall agree in writing and
except as otherwise expressly permitted or contemplated by this
Agreement:
(a) neither Parent nor the Company shall split, combine or
reclassify the outstanding Parent Shares or shares of Common Stock,
respectively, or declare, set aside or pay any dividend payable in
cash, stock or property or make any distribution with respect to
Parent Shares or shares of Common Stock, respectively, other than (ii)
in the case of Parent, the payment of dividends with respect to
Parent's outstanding Convertible Preferred Stock and Series A
Preferred Stock, and (ii) in the case of the Company, the payment of
regular quarterly dividends consistent with past practice; or redeem,
purchase or otherwise acquire (or agree to redeem, purchase or
otherwise acquire), directly or indirectly, any Parent Shares or
shares of Common Stock, respectively; and
(b) neither Parent nor the Company, or any of their
respective subsidiaries (including Acquisition) shall (i) issue or
agree to issue any additional Parent Shares or shares of Common Stock
respectively, or options, warrants or rights of any kind to acquire
any Parent Shares or shares of Common Stock, respectively, other than
(A) in the case of Parent, Parent Shares issuable pursuant to the
options outstanding on the date hereof
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<PAGE>
granted under Parent's 1993 Stock Option and Performance Award Plan
(the "Parent Stock Option Plan") and, (B) in the case of the Company,
shares of Common Stock issuable pursuant to the Company Stock Option
Plan; or (ii) amend or modify any outstanding stock option granted
pursuant to the Parent Stock Option Plan or the Company Stock Option
Plan, respectively, or grant any stock appreciation rights or stock
bonuses.
SECTION 5.2. Conduct of Business of Acquisition. During
----------------------------------
the period from the date of the Agreement to the Closing,
(i) Acquisition shall not engage in any activities of any nature other
than as contemplated by this Agreement, and (ii) Parent will continue
to own all of the outstanding Common Stock of Acquisition.
SECTION 5.3. Registration Statement; Joint Proxy Statement.
---------------------------------------------
Parent shall promptly prepare and file with the SEC a Registration
Statement (the "Registration Statement") under the Securities Act with
respect to the Parent Shares to be issued in the Merger and shall use
all reasonable efforts to have the Registration Statement declared
effective by the SEC as promptly as practicable. Parent shall also
take any action required to be taken under state blue sky law or
securities laws in connection with issuance of Parent Shares pursuant
to the Merger, and the Company, Parent and Acquisition shall furnish
all information concerning the Company, Parent and Acquisition and the
holders of
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<PAGE>
shares of Common Stock and shall take such other action as may be
reasonably requested in connection with any such action. The Company
and Parent shall prepare for inclusion in the Registration Statement,
shall file with the SEC under the Exchange Act at the time the
Registration Statement is filed as provided above, and shall use all
reasonable efforts to have cleared by the SEC, the Proxy Statement
with respect to the special meeting of stockholders of Parent and the
Company as provided in Section 5.4 below, and shall mail the Proxy
Statement to their respective stockholders as promptly as practicable
after clearance of the Proxy Statement with the SEC.
SECTION 5.4. Stockholder Approval. (a) Parent shall take
--------------------
all steps necessary to call, give notice of, convene and hold a
special meeting of its stockholders as soon as practicable for the
purpose of adopting and approving this Agreement and the transactions
contemplated hereby and for such other purposes as may be necessary or
desirable, and the Company shall take all steps necessary to call,
give notice of, convene and hold a special meeting of its stockholders
as soon as practicable for the purpose of adopting and approving this
Agreement and the transactions contemplated hereby and for such other
purposes as may be necessary or desirable.
(b) The Board of Directors of each of Parent and the
Company has unanimously determined that this Agreement is
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<PAGE>
advisable and in the best interests of its stockholders and shall
recommend to its stockholders the adoption and approval of this
Agreement and the transactions contemplated hereby and shall use its
best efforts to obtain the necessary approvals by its stockholders of
this Agreement and the transactions contemplated hereby. At any
meeting of the stockholders of the Company to vote on the approval and
adoption of this Agreement and the transactions contemplated hereby,
the Parent agrees to vote all shares of Common Stock beneficially
owned by it in favor of the approval and adoption of this Agreement.
At the meeting of the stockholders of Parent to vote on the approval
and adoption of this Agreement and the transactions contemplated
hereby, Parent will cause Abbey J. Butler, Melvin J. Estrin, Centaur
Partners IV, Butler Equities II, L.P. and Estrin Abod Equities Limited
Partnership (collectively, the "Parent Affiliated Stockholders") to
vote or cause to be voted all Parent Shares beneficially owned by such
Parent Affiliated Stockholders, within the meaning of Regulation 13D
promulgated under the Securities Exchange Act of 1934, in favor of the
approval and adoption of this Agreement and the transactions
contemplated hereby.
(c) The Special Committee has unanimously recommended to
the Board of Directors of the Company that the Merger is fair to and
in the best interests of the Unaffiliated Company Stockholders. Based
upon the recommendation of the Special
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<PAGE>
Committee, the Board of Directors of the Company has determined that
the Merger is advisable and in the best interests of the stockholders
of the Company and shall recommend to its stockholders the adoption
and approval of this Agreement and the transactions contemplated
hereby; provided, however, that at any time prior to the meeting of
-------- -------
the stockholders of the Company at which approval or adoption of this
Agreement is presented to such stockholders for a vote, either the
Special Committee or the Board of Directors of the Company, in
accordance with their respective fiduciary duties, as advised by
counsel, may revoke, modify or qualify its recommendation with respect
to this Agreement and the transactions contemplated hereby in the
event that a Bona Fide Third Party Offer (as defined in Section
10.01(f) hereof) is received by the Company and the Company would be
permitted to terminate this Agreement as a result of the receipt of
such Bona Fide Third Party Offer pursuant to Section 10.01(f) hereof.
SECTION 5.5. Best Efforts. Subject to the terms and
------------
conditions herein provided and, in the case of the Company, to the
proviso contained in Section 5.04(c), each of the parties hereto
agrees to use its best efforts to take, or cause to be taken, all
action, and to do, or cause to be done, all things necessary, proper
or advisable under applicable laws and regulations to consummate and
make effective the transactions
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<PAGE>
contemplated by this Agreement. Parent shall cause Acquisition to
perform all of its obligations under this Agreement. In case at any
time after the Effective Date any further action is necessary or
desirable to carry out the purposes of this Agreement, the proper
officers and directors of each corporation that is a party to this
Agreement shall take all such necessary action.
SECTION 5.6. Consents. Parent, Acquisition and the Company
--------
shall each use its best efforts to obtain consents of all third
parties and governmental authorities necessary to the consummation of
the transactions contemplated by this Agreement.
SECTION 5.7. NYSE Listing. If required, Parent shall use
------------
its best efforts to effect, on or before the Effective Date, approval
for listing on the NYSE, upon official notice of issuance, of the
Parent Shares to be issued pursuant to the Merger.
SECTION 5.8. Fees and Expenses. Each party hereto shall
-----------------
pay all costs and expenses incurred by it in connection with this
Agreement and the transactions contemplated hereby.
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ARTICLE VI
CONDITIONS TO THE OBLIGATIONS OF
PARENT, ACQUISITION AND THE COMPANY
The respective obligations of each party to effect the
Merger shall be subject to the fulfillment at or prior to the
Effective Date of the following conditions:
SECTION 6.1. Stockholder Approval. This Agreement and the
--------------------
Merger shall have been adopted and approved by the affirmative vote of
the holders of at least a majority of the outstanding shares of Common
Stock of the Company, by the affirmative vote of at least a majority
of the Parent Shares voting on this Agreement and the Merger, and by
the sole stockholder of Acquisition.
SECTION 6.2. Certain Proceedings. None of Parent, Holding,
-------------------
Acquisition or the Company shall be subject to any writ, order, decree
or injunction of a court of competent jurisdiction prohibiting or
restricting the consummation of the Merger.
SECTION 6.3. Exchange Listing. The Parent Shares required
----------------
to be issued in the Merger shall have been approved for listing on the
NYSE, subject to official notice of issuance.
SECTION 6.4. Registration Statement. The Registration
----------------------
Statement shall have been declared effective, shall be effective at
the Effective Time, and no stop order suspending such
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<PAGE>
effectiveness shall have been issued or proceedings for that purpose
shall have been instituted.
SECTION 6.5. Blue Sky Laws. Parent shall have received all
-------------
Blue Sky authorizations necessary to issue the Merger Consideration.
SECTION 6.6. Consents. Parent and the Company shall have
--------
obtained, on or before the Closing Date, the consents listed on
Schedule 6.6 hereto.
SECTION 6.7. Tax Opinion. Parent shall have delivered to
-----------
the Company an opinion of Parent's counsel, Weil, Gotshal & Manges,
reasonably acceptable to Latham & Watkins, counsel to the Special
Committee, to the effect that (i) the Merger will constitute a
reorganization within the meaning of Section 368(a) of the Code;
(ii) no gain or loss will be recognized by holders of shares of Common
Stock upon the exchange of such shares solely for Parent Shares by
reason of the Merger (except with respect to cash, if any, received in
lieu of fractional shares), (iii) the tax basis of the Parent Shares
received by holders of shares of Common Stock in the Merger will be
the same as the tax basis of the shares of Common Stock surrendered in
exchange therefor and (iv) a holder's holding period in such Parent
Shares will include its holding period in such shares of Common Stock
provided the shares of Common Stock were held as a capital asset at
the Effective Time. In rendering such opinion, Weil, Gotshal &
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<PAGE>
Manges may receive and rely upon representations contained in
certificates reasonably acceptable to Latham & Watkins, counsel to the
Special Committee.
SECTION 6.8. Fairness Opinion. The Fairness Opinion shall
----------------
not have been modified, withdrawn or revoked as of the time of the
mailing of the Proxy Statement to the stockholders of the Company.
ARTICLE VII
CONDITIONS TO THE OBLIGATIONS
OF PARENT AND ACQUISITION
Each and every obligation of Parent and Acquisition under
this Agreement to be performed on or before the Closing Date shall be
subject to the satisfaction, on or before the Closing Date, of each of
the following conditions:
SECTION 7.1. Representations and Warranties True. The
-----------------------------------
representations and warranties of the Company contained herein shall
be true and correct in all material respects on the date of this
Agreement and at and on the Closing Date as though such
representations and warranties were made at and on such date, except
for changes permitted or contemplated by this Agreement.
SECTION 7.2. Performance. The Company shall have performed
-----------
and complied in all material respects with all agreements, obligations
and conditions required by this Agreement
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<PAGE>
to be performed or complied with by it on or prior to the Closing
Date.
SECTION 7.3. Certificates. The Company shall furnish such
------------
certificates of its officers to evidence compliance with the
conditions set forth in this Article VII, as may be reasonably
requested by Parent.
SECTION 7.4. Material Adverse Change. Since March 31,
-----------------------
1994, there shall not have been any change or event that has resulted
in, or may result in, any material adverse change in the business,
operations, properties, assets, liabilities or condition (financial or
otherwise) of the Company and its subsidiaries, taken as a whole.
SECTION 7.5. Regulatory Approvals. All consents,
--------------------
approvals, permits and authorizations required to be obtained prior to
the Effective Date from governmental and regulatory authorities in
connection with the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby by Parent,
Acquisition and the Company shall have been obtained without
restrictions, except where the failure to obtain such consents,
approvals, permits and authorizations which would not have a material
adverse effect on the business, operations, properties, assets,
liabilities or condition (financial or otherwise) of Parent or
Acquisition.
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<PAGE>
ARTICLE VIII
CONDITIONS TO THE OBLIGATIONS OF THE COMPANY
The obligations of the Company under this Agreement to
effect the Merger shall be subject to the satisfaction on or before
the Closing Date, of each of the following conditions:
SECTION 8.1. Representations and Warranties True. The
-----------------------------------
representations and warranties of Parent and Acquisition contained
herein shall be true and correct in all material respects on the date
of this Agreement and at and on the Closing Date as though such
representations and warranties were made at and on such date, except
for changes permitted or contemplated by this Agreement.
SECTION 8.2. Performance. Parent and Acquisition shall
-----------
have performed and complied with all agreements, obligations and
conditions required by this Agreement to be performed or complied with
by them on or prior to the Closing Date.
SECTION 8.3. Certificates. Parent and Acquisition shall
------------
furnish such certificates of their respective officers to evidence
compliance with the conditions set forth in this Article VIII, as may
be reasonably requested by the Company.
SECTION 8.4. Material Adverse Change. Since March 31,
-----------------------
1994, there shall not have been any change or event (other than a
change or event solely with respect to the Company) that has resulted
in, or may result in, any material adverse change in the
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<PAGE>
business, operations, properties, assets, liabilities or condition
(financial or otherwise) of Parent and its subsidiaries, taken as a
whole.
SECTION 8.5. Regulatory Approvals. All consents,
--------------------
approvals, permits and authorizations required to be obtained prior to
the Effective Date from governmental and regulatory authorities in
connection with the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby by Parent,
Acquisition and the Company shall have been obtained without
restrictions, except where the failure to obtain such consents,
approvals, permits and authorizations could not reasonably be expected
to have a material adverse effect on the business, operations,
properties, assets, liabilities or condition (financial or otherwise)
of the Company.
ARTICLE IX
CLOSING
SECTION 9.1. Time and Place. Subject to the provisions of
--------------
Articles VI, VII, VIII and X, the closing of the Merger (the
"Closing") shall take place at the offices of Weil, Gotshal & Manges,
767 Fifth Avenue, New York, New York 10153, as soon as practicable but
in no event later than 9:30 A.M., local time, on the first business
day after the date on which each of the conditions set forth in
Articles VI, VII and VIII has been
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<PAGE>
satisfied or waived by the party or parties entitled to the benefit of
such condition, or at such other place, at such other time, or on such
other date as Parent and the Company may mutually agree. The date on
which the Closing actually occurs is herein referred to as the
"Closing Date."
SECTION 9.2. Filings at the Closing. Subject to the
----------------------
provisions of Articles VI, VII, VIII, and X hereof, Parent,
Acquisition and the Company shall immediately after the Closing
(a) file with the Delaware Secretary of State a certificate of merger
in the form annexed as Annex B hereto and (b) take all such other and
further actions as may be required by law to make the Merger
effective.
ARTICLE X
TERMINATION AND ABANDONMENT
SECTION 10.1. Termination. This Agreement may be
-----------
terminated at any time prior to the Effective Date, whether before or
after approval by the stockholders of Parent or the Company:
(a) by mutual consent of the Boards of Directors of Parent
and the Company;
(b) by either Parent or the Company if, without fault of
such terminating party, the Merger shall not have been consummated on
or before December 31, 1994, which date may be
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<PAGE>
extended by the mutual consent of the Boards of Directors of Parent
and the Company;
(c) by Parent or the Company if any court of competent
jurisdiction in the United States or other governmental body in the
United States shall have issued an order (other than a temporary
restraining order), decree or ruling or taken any other action
restraining, enjoining or otherwise prohibiting the Merger, and such
order, decree, ruling or other action shall have become final and
nonappealable;
(d) by either Parent or the Company, if the stockholders of
Parent or the Company fail to duly adopt and approve this Agreement
and the Merger as contemplated by Section 6.1; or
(e) by Parent prior to the stockholders' meeting of the
Company if the Average Stock Price is less than $14.40.
(f) by the Company, if, prior to the consummation of the
transactions contemplated hereby, the Company receives a bona fide
third party offer, which is not subject to any financing condition (a
"Bona Fide Third Party Offer"), to acquire the Common Stock that
involves the payment or issuance to all holders of the Common Stock of
consideration per share of the Common Stock with a value in excess of
the consideration per share of the Common Stock to be received by the
Unaffiliated Company Stockholders in the Merger, which offer the
Special Committee has
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<PAGE>
determined is more favorable to the Unaffiliated Company Stockholders.
SECTION 10.2. Procedure and Effect of Termination. In the
-----------------------------------
event of termination and abandonment of the Merger by Parent or the
Company pursuant to Section 10.1, written notice thereof shall
forthwith be given to the other and this Agreement shall terminate and
the Merger shall be abandoned, without further action by any of the
parties hereto. If this Agreement is terminated as provided herein,
the obligations stated in this Section 10.2 and in Sections 5.8 and
11.3 shall survive any such termination.
ARTICLE XI
MISCELLANEOUS
SECTION 11.1. Amendment and Modification. Subject to
--------------------------
applicable law, this Agreement may be amended, modified or
supplemented only by written agreement of Parent, Acquisition and the
Company at any time prior to the Effective Date with respect to any of
the terms contained herein; provided, however, that, after this
-------- -------
Agreement is adopted by the Company's stockholders pursuant to Section
5.4, no such amendment or modification shall reduce the amount or
change the form of the consideration to be delivered to the
stockholders of the Company.
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SECTION 11.2. Waiver of Compliance; Consents. Any failure
------------------------------
of Parent or Acquisition on the one hand, or the Company, on the other
hand, to comply with any obligation, covenant, agreement or condition
herein may be waived by the Company or Parent or Acquisition,
respectively, only by a written instrument signed by the party
granting such waiver, but such waiver or failure to insist upon strict
compliance with such obligation, covenant, agreement or condition
shall not operate as a waiver of, or estoppel with respect to, any
subsequent or other failure. Whenever this Agreement requires or
permits consent by or on behalf of any party hereto, such consent
shall be given in writing in a manner consistent with the requirements
for a waiver of compliance as set forth in this Section 11.1.
SECTION 11.3. Indemnification. (a) From and after the
---------------
Effective Date, the Surviving Corporation shall maintain, and Parent
agrees to cause the Surviving Corporation to maintain for a period of
at least six years from the Effective Date, (i) director and officer
liability insurance providing at least the same amounts and coverage
with respect to the Company's officers and directors as the current
policies maintained by or on behalf of the Company, and containing
terms and conditions which are no less advantageous with respect to
matters existing or occurring on or prior to the Effective Date, and
in the event any claim is made against present directors or officers
of the Company that is
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<PAGE>
covered, in whole or in part, or potentially so covered by insurance,
the Surviving Corporation and Parent shall do nothing that would
forfeit, jeopardize, restrict or limit the insurance coverage
available for that claim until the final disposition of that claim;
provided, however, that if the cost of maintaining such insurance
-------- -------
exceeds the current cost related to providing such insurance (the
"Current Cost"), then the Surviving Corporation shall maintain and
Parent agrees to cause the Surviving Corporation to maintain such
director and officer liability insurance with the maximum amount of
coverage obtainable at twice such Current Cost, and (ii) all rights to
indemnification now existing in favor of the present directors or
officers of the Company and its respective subsidiaries as provided in
their respective certificates or articles of incorporation or by-laws
or otherwise in effect on the date hereof (other than pursuant to this
Agreement) shall survive the Merger for a period of six years;
provided, however, that all such rights to indemnification with
-------- -------
respect to any claim asserted, made or originated prior to the
expiration of such six-year period shall survive until the final
disposition of such Claim (as hereinafter defined), and that during
such period, the Certificate of Incorporation and By-Laws of the
Surviving Corporation shall not be amended to reduce or limit the
rights of indemnity of the present directors or officers of the
Company, or the ability of the Surviving
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<PAGE>
Corporation to indemnify them, nor to hinder, delay or make more
difficult the exercise of such rights of indemnity or the ability to
indemnify.
(b) From and after the Effective Date, Parent shall
indemnify, defend and hold harmless each person who is now an officer
or director of the Company against all losses, claims, damages, costs,
expenses or liabilities, or in connection with any claim, action,
suit, proceeding or investigation (a "Claim"), arising out of the fact
that such person is an officer or director of the Company (or out of
any action taken by any such person on behalf of the Company),
pertaining to any matter existing or occurring on or prior to the
Effective Date (including, without limitation, the transactions
contemplated by this Agreement), whether asserted or claimed prior to,
or on or after, the Effective Date. In each case such indemnification
shall be to the full extent a corporation is permitted under
applicable law to indemnify its own directors and officers, as the
case may be (and Parent will pay expenses in advance of the final
disposition of any such action or proceeding to each such director or
officer of the Company seeking indemnification hereunder to the full
extent permitted by law).
(c) Without limiting the foregoing, in any case in which
approval by the Surviving Corporation is required to effectuate any
indemnification under this Section 11.3, Parent
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<PAGE>
shall cause the Surviving Corporation to direct, at the election of
the director or officer of the Company seeking indemnification
hereunder, that the determination of any such approval shall be made
by independent counsel acceptable to Parent selected by such director
or officer of the Company seeking indemnification hereunder.
(d) This Section 11.3 shall survive the consummation of the
Merger. The provisions of this Section 11.3 are intended to be for
the benefit of, and shall be enforceable by the present directors or
officers of the Company, as the case may be. The rights provided
under this Section 11.3 shall be in addition to, and not in lieu of,
any rights to indemnity which any party may have under the Articles of
Incorporation or By-Laws of the Company or the Surviving Corporation
or any other agreements.
SECTION 11.4. Non-Survival of Warranties. The respective
--------------------------
representations and warranties of Parent, Acquisition and the Company
contained herein shall expire with, and be terminated and extinguished
by, the Merger, or the termination of this Agreement pursuant to
Section 10.1 or otherwise; and thereafter neither Parent, Acquisition
nor the Company, nor any officer or director thereof shall be under
any liability whatsoever with respect to any such representation or
warranty. This Section 11.4 shall have no effect upon any other
obligation of the parties hereto including, without limitation, the
obligations of
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<PAGE>
the Surviving Corporation and Parent under Section 11.3 hereof,
whether to be performed before or after the Closing.
SECTION 11.5. Notices. All notices and other
-------
communications hereunder shall be in writing and shall be deemed given
if delivered personally or mailed by registered or certified mail
(return receipt requested) to the parties at the following addresses
(or at such other address for a party as shall be specified by like
notice; provided that notices of a change of address shall be
effective only upon receipt thereof):
(a) if to the Company, to:
FoxMeyer Corporation
1220 Senlac Drive
Carrollton, Texas 75006
Attn: Co-Chairmen
Telecopy:
with a copy to:
Latham & Watkins
1001 Pennsylvania Avenue, N.W.
Suite 1300
Washington, D.C. 20005-2505
Attn: John J. Huber, Esq.
Telecopy: 212-637-2201
(b) if to Parent or Acquisition, to:
National Intergroup, Inc.
1220 Senlac Drive
Carrollton, Texas 75006
Attn:
Telecopy:
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with a copy to:
Weil, Gotshal & Manges
767 Fifth Avenue
New York, New York 10153
Attn: Stephen E. Jacobs, Esq.
Telecopy: (212) 310-8007
SECTION 11.6. Assignment. This Agreement and all of the
----------
provisions hereof shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and permitted
assigns, but neither this Agreement nor any of the rights, interests
or obligations hereunder shall be assigned by any of the parties
hereto without the prior written consent of the other parties, nor is
this Agreement intended to confer upon any other person except the
parties hereto any rights or remedies hereunder.
SECTION 11.7. Governing Law. This Agreement shall be
-------------
governed by the laws of the State of Delaware (regardless of the laws
that might otherwise govern under applicable Delaware principles of
conflicts of law) as to all matters, including but not limited to
matters of validity, construction, effect, performance and remedies.
SECTION 11.8. Counterparts. This Agreement may be executed
------------
in two or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.
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SECTION 11.9. Interpretation. The article and section
--------------
headings contained in this Agreement are solely for the purpose of
reference, are not part of the agreement of the parties and shall not
in any way affect the meaning or interpretation of this Agreement. As
used in this Agreement, (i) the term "person" shall mean and include
an individual, a partnership, a joint venture, a corporation, a trust,
an unincorporated organization and a government or any department or
agency thereof; (ii) the term "subsidiary" of any specified
corporation shall mean any corporation of which the outstanding
securities having ordinary voting power to elect a majority of the
board of directors are directly or indirectly owned by such specified
corporation.
SECTION 11.10. Entire Agreement. This Agreement, including
----------------
the exhibits hereto and the documents and instruments referred to
herein embodies the entire agreement and understanding of the parties
hereto in respect of the subject matter contained herein. There are
no representations, warranties, covenants or undertakings, other than
those expressly set forth or referred to herein.
This Agreement supersedes all prior agreements and the
understandings between the parties with respect to such subject
matter.
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<PAGE>
IN WITNESS WHEREOF, Parent, Acquisition and the Company have
caused this Agreement to be signed by their respective duly authorized
officers on the date first above written.
NATIONAL INTERGROUP, INC.
By: /s/ Abbey J. Butler
---------------------------
Name: Abbey J. Butler
Title: Co-Chief Executive Officer
FOXMEYER ACQUISITION CORP.
By: /s/ Abbey J. Butler
-----------------------------
Name: Abbey J. Butler
Title: Co-Chief Executive Officer
FOXMEYER CORPORATION
By: /s/ Thomas L. Anderson
-----------------------------
Name: Thomas L. Anderson
Title: President and Chief
Operating Officer
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<PAGE>
SCHEDULE 3.4
FoxMeyer Conflicts
------------------
1. Amended and Restated Loan Agreement, dated as of April 29, 1993,
among FoxMeyer Corporation, as Borrower, FoxMeyer Drug Company,
Merchandise Coordinator Services Corporation and Harris Wholesale
Company, as Guarantors, the Lenders and Issuer referred to
therein, Citicorp USA, Inc., as Administrative Agent and
Nationsbank of Texas, N.A. and Banque Paribas, as co-agents.
2. Credit Agreement, dated as of August 30, 1993, among FoxMeyer
Corporation, FoxMeyer Drug Company, Merchandise Coordinator
Services Corporation, and Harris Wholesale Company, the financial
institutions party thereto (the "Lenders") and Continental Bank,
N.A., individually and as Agent for the Lenders.
3. Note Agreements, each dated April 15, 1993, between FoxMeyer
Corporation and the holders of the 7.09% Senior Notes due April
15, 2005.
4. Lease Guaranty, dated as of December 28, 1993, between FoxMeyer
Corporation and TBC Realty II Corporation.
5. Office/Warehouse Lease, dated as of December 30, 1986, between
FoxMeyer Corporation and Carol Stream Partners.
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Schedule 4.2
Options
-------
Number of
Optionee Expiration Shares Exercise
-------- ---------- --------- --------
Date Price
---- -----
Abbey J. Butler 10/24/94 440,000 $15.00
Melvyn J. Estrin 10/24/94 440,000 $15.00
Options granted under Parent's 1993
-----------------------------------
Stock Option and Performance Award Plan:
---------------------------------------
Expiration Number of Exercise
Optionee Date Shares Price
-------- --------- --------- ---------
Abbey J. Butler 06/02/99 800,000 $18.25
Melvyn J. Estrin 06/02/99 800,000 $18.25
Options granted under Parent's 1987 Restated
--------------------------------------------
Stock Option and Performance Award Plan:
---------------------------------------
Expiration Number of Exercise
Optionee Date Shares Price
-------- --------- --------- ---------
Sheldon W. Fantle 07/28/97 15,000 $15.00
07/30/97 1,000 $14.00
08/02/98 1,000 $12.8125
Paul M. Finfer 07/28/97 15,000 $15.00
07/30/97 1,000 $14.00
08/02/98 1,000 $12.8125
Alfred H. Kingon 07/28/97 15,000 $15.00
07/30/97 1,000 $14.00
08/02/98 1,000 $12.8125
William G. Tull 07/28/97 15,000 $15.00
07/30/97 1,000 $14.00
08/02/98 1,000 $12.8125
P.L. Calhoun 09/16/96 2,000 $17.6875
L.D. Davis 09/16/96 2,000 $17.6875
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R.K. Dickey 12/16/95 300 $27.50
W.A. Doherty 12/16/95 300 $27.50
09/16/96 500 $17.6875
D.T. Donovan 05/14/95 1,000 $25.8750
12/16/95 1,000 $27.50
Brenda L. Fugagli 12/16/95 1,000 $27.50
09/16/96 3,000 $17.6875
W.L. Gadd 09/16/96 500 $17.6875
Richard W. Gates 12/16/95 300 $27.50
09/16/96 400 $17.6875
C.S. Hoult 12/16/95 300 $27.50
William J. Jones 09/16/96 5,000 $17.6875
Robert L. King 08/28/96 74,500 $16.6875
09/16/96 10,000 $17.6875
E.J. Klein 09/16/96 5,000 $17.6875
G.B. Levy 12/16/95 1,000 $27.50
Howard M. Love 02/19/95 65,000 $14.8750
09/16/96 50,000 $17.6875
J.M. McKibbin 12/16/95 6,000 $27.50
04/21/96 9,000 $24.75
John B. Menzer 09/16/96 5,000 $17.6875
James C. Mitchell 12/16/95 300 $27.50
J.D. Sabo 12/16/95 300 $27.50
Ronald J. Saul 09/16/96 12,000 $17.6875
R.S. Smith 05/14/95 50,000 $25.8750
12/16/95 50,000 $27.50
09/16/96 25,000 $17.6875
W.B. Smith 12/16/95 1,000 $27.50
J.M. Stinson, III 12/16/95 300 $27.50
09/16/96 3,000 $17.6875
J. Suitlas 12/16/95 300 $27.50
09/16/96 500 $17.6875
E.L. Tetrick 05/14/95 1,000 $25.8750
12/16/95 1,000 $27.50
09/16/96 5,000 $17.6875
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J.C. Thomas 09/16/96 2,000 $17.6875
W.D. Thompson 05/14/95 1,000 $25.8750
12/16/95 1,000 $27.50
09/16/96 12,000 $17.6875
F.E. Tucker 05/14/95 15,000 $25.8750
12/16/95 15,000 $27.50
09/16/96 15,000 $17.6875
C. Vaught 12/16/95 500 $27.50
Michael C. Webster 09/16/96 5,000 $17.6875
Dennis L. Wilson 12/16/95 300 $27.50
09/16/96 500 $17.6875
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SCHEDULE 4.4
NII Conflicts
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1. Loan Agreement, dated as of January 13, 1994, among National
Intergroup, Inc., the banks named therein (the "Banks") and
Banque Paribas, as Agent for the Banks.
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Schedule 6.6
Consents
--------
1. Consent of the requisite lenders pursuant to the Loan Agreement,
dated as of January 13, 1994, among National Intergroup, Inc.,
the banks named therein (the "Banks") and Banque Paribas, as
Agent for the Banks.
2. Consent of the requisite lenders pursuant to the Amended and
Restated Loan Agreement, dated as of April 29, 1993, among
FoxMeyer Corporation, as Borrower, FoxMeyer Drug Company,
Merchandise Coordinator Services Corporation and Harris Wholesale
Company, as Guarantors, the Lenders and Issuer referred to
therein, Citicorp USA, Inc., as Administrative Agent and
Nationsbank of Texas, N.A. and Banque Paribas, as co-agents.
3. Consent of the requisite lenders pursuant to the Credit
Agreement, dated as of August 30, 1993, among FoxMeyer
Corporation, FoxMeyer Drug Company, Merchandise Coordinator
Services Corporation, and Harris Wholesale Company, the financial
institutions party thereto (the "Lenders") and Continental Bank,
N.A., individually and as Agent for the Lenders.
4. Consent of the requisite noteholders pursuant to the Note
Agreements, each dated April 15, 1993, between FoxMeyer
Corporation and the holders of the 7.09% Senior Notes due April
15, 2005.
5. Consent of TBC Realty II Corporation ("TBC") pursuant to the
Lease Guaranty, dated as of December 28, 1993, between FoxMeyer
Corporation and TBC.
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