UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 4)*
Nu-West Industries, Inc.
(Name of Issuer)
Common Stock (par value $0.01 per share)
(Title of Class of Securities)
67019H1000C2
(CUSIP Number)
Robin B. Shanus, Deputy General Counsel
Weiss, Peck & Greer, L.L.C.
One New York Plaza
New York, NY 10004
(212) 908-9539
(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)
August 9, 1995
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box |_|
Check the following box if a fee is being paid with the statement |_|. (A fee is
not required only if the reporting person: (1) has a previous statement on file
reporting beneficial ownership of more than five percent of the class of
securities described in Item 1; and (2) has filed no amendment subsequent
thereto reporting beneficial ownership of five percent or less of such class.)
(See Rule 13d-7.)
Note: Six copies of this statement, including all exhibits, should be filed with
the Commission. See Rule 13d-1(a) for other parties to whom copies are to be
sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
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SCHEDULE 13D
CUSIP No. 67019H10002 Page 2 of 27 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Weiss, Peck & Greer, L.L.C.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) |_|
(b) |X|
3 SEC USE ONLY
4 SOURCE OF FUNDS*
N/A
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) |_|
6 CITIZENSHIP OR PLACE OF ORGANIZATION
State of Delaware
NUMBER OF 7 SOLE VOTING POWER
SHARES -0-
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 3,368,568
EACH
9 SOLE DISPOSITIVE POWER
REPORTING
-0-
PERSON
10 SHARED DISPOSITIVE POWER
WITH
3,368,568
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
3,368,568
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* |_|
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
45.2%
14 TYPE OF REPORTING PERSON*
BD, IA, OO
<PAGE>
SCHEDULE 13D
CUSIP No. 67019H10002 Page 3 of 27 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Wesley W. Lang, Jr.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) |_|
(b) |X|
3 SEC USE ONLY
4 SOURCE OF FUNDS*
PF
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) |_|
6 CITIZENSHIP OR PLACE OF ORGANIZATION
U.S.A.
NUMBER OF 7 SOLE VOTING POWER
SHARES 1,166
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 4,396,282
EACH
9 SOLE DISPOSITIVE POWER
REPORTING
1,166
PERSON
10 SHARED DISPOSITIVE POWER
WITH
4,396,282
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
4,397,448
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* |_|
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
59.0%
14 TYPE OF REPORTING PERSON*
IN
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SCHEDULE 13D
CUSIP No. 67019H10002 Page 4 of 27 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Peter Pfister
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) |_|
(b) |X|
3 SEC USE ONLY
4 SOURCE OF FUNDS*
PF
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) |_|
6 CITIZENSHIP OR PLACE OF ORGANIZATION
U.S.A.
NUMBER OF 7 SOLE VOTING POWER
SHARES 389
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 4,396,282
EACH
9 SOLE DISPOSITIVE POWER
REPORTING
389
PERSON
10 SHARED DISPOSITIVE POWER
WITH
4,396,282
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
4,396,671
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* |_|
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
59.0%
14 TYPE OF REPORTING PERSON*
IN
<PAGE>
SCHEDULE 13D
CUSIP No. 67019H10002 Page 5 of 27 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
WPG Corporate Development Associates II, L.P. Liquidating Trust,
U/T/A dated December 31, 1993
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) |_|
(b) |X|
3 SEC USE ONLY
4 SOURCE OF FUNDS*
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) |_|
6 CITIZENSHIP OR PLACE OF ORGANIZATION
State of Delaware
NUMBER OF 7 SOLE VOTING POWER
SHARES -0-
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 2,488,005
EACH
9 SOLE DISPOSITIVE POWER
REPORTING
-0-
PERSON
10 SHARED DISPOSITIVE POWER
WITH
2,488,005
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,488,005
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11)
EXCLUDES CERTAIN SHARES* |_|
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
33.4%
14 TYPE OF REPORTING PERSON*
OO
<PAGE>
SCHEDULE 13D
CUSIP No. 67019H10002 Page 6 of 27 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Weiss , Peck & Greer Venture Associates, L.P. Liquidating Trust,
U/T/A dated December 30, 1994
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) |_|
(b) |X|
3 SEC USE ONLY
4 SOURCE OF FUNDS*
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) |_|
6 CITIZENSHIP OR PLACE OF ORGANIZATION
State of Delaware
NUMBER OF 7 SOLE VOTING POWER
SHARES -0-
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 880,563
EACH
9 SOLE DISPOSITIVE POWER
REPORTING
-0-
PERSON
10 SHARED DISPOSITIVE POWER
WITH
880,563
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
880,563
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* |_|
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
11.8%
14 TYPE OF REPORTING PERSON*
OO
<PAGE>
SCHEDULE 13D
CUSIP No. 67019H10002 Page 7 of 27 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
WPG Corporate Development Associates III, L.P.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) |_|
(b) |X|
3 SEC USE ONLY
4 SOURCE OF FUNDS*
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) |_|
6 CITIZENSHIP OR PLACE OF ORGANIZATION
State of Delaware
NUMBER OF 7 SOLE VOTING POWER
SHARES -0-
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 1,027,714
EACH
9 SOLE DISPOSITIVE POWER
REPORTING
-0-
PERSON
10 SHARED DISPOSITIVE POWER
WITH
1,027,714
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,027,714
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* |_|
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
11.8%
14 TYPE OF REPORTING PERSON*
PN
<PAGE>
SCHEDULE 13D
CUSIP No. 67019H10002 Page 8 of 27 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
WPG CDA III, L.P.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) |_|
(b) |X|
3 SEC USE ONLY
4 SOURCE OF FUNDS*
N/A
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) |_|
6 CITIZENSHIP OR PLACE OF ORGANIZATION
State of Delaware
NUMBER OF 7 SOLE VOTING POWER
SHARES -0-
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 1,027,714
EACH
9 SOLE DISPOSITIVE POWER
REPORTING
-0-
PERSON
10 SHARED DISPOSITIVE POWER
WITH
1,027,714
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,027,714
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* |_|
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
11.8%
14 TYPE OF REPORTING PERSON*
PN
<PAGE>
SCHEDULE 13D
CUSIP No. 67019H10002 Page 9 of 27 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
WPG Corporate Development Associates III (Overseas), Ltd.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) |_|
(b) |X|
3 SEC USE ONLY
4 SOURCE OF FUNDS*
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) |_|
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Cayman Islands
NUMBER OF 7 SOLE VOTING POWER
SHARES -0-
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 217,999
EACH
9 SOLE DISPOSITIVE POWER
REPORTING
-0-
PERSON
10 SHARED DISPOSITIVE POWER
WITH
217,999
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
217,999
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* |_|
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
2.9%
14 TYPE OF REPORTING PERSON*
CO
<PAGE>
Pursuant to Rules 13d-1(f)(1)-(2) and 13d-2 of Regulation
13D-G of the General Rules and Regulations under the Securities Exchange Act of
1934, as amended (the "Act"), the undersigned hereby file this Amendment No. 4
to the original Schedule 13D dated September 30, 1989 filed by Weiss, Peck &
Greer on behalf of the reporting persons identified thereon. This Amendment No.
4 is filed on behalf of Weiss, Peck & Greer, L.L.C., a Delaware limited
liability company ("WPG"), Wesley W. Lang, Jr. ("Lang"), Peter Pfister
("Pfister"), WPG Corporate Development Associates II, L.P. Liquidating Trust,
U/T/A dated December 31, 1993 ("CDAII Liquidating Trust"), Weiss, Peck & Greer
Venture Associates, L.P. Liquidating Trust, U/T/A dated December 30, 1994
("WPGVA Liquidating Trust"), WPG Corporate Development Associates III, L.P., a
Delaware limited partnership ("CDAIII"), WPG CDA III, L.P., a Delaware limited
partnership ("WPG-CDA III"), and WPG Corporate Development Associates III
(Overseas), Ltd., a Cayman Islands corporation ("CDAIII Overseas"). The
foregoing persons are sometimes hereinafter referred to as the "Reporting
Persons."
Unless otherwise indicated herein, all capitalized terms used
in this Amendment No. 4 which are defined in the original Schedule 13D Statement
dated September 30, 1989, as heretofore amended, shall have the same meaning
herein as therein.
Unless otherwise specified in the following items, there are
no material changes from the information reported in such statement dated
September 30, 1989, as amended by Amendment No. 1 thereto, dated January 9,
1990, Amendment No. 2 thereto, dated November 2, 1990, and Amendment No. 3
thereto, dated November 27, 1995.
Item 1. Security and Issuer.
This Statement relates to the voting common stock, par value
$0.01 per share (the "Common Stock"), of Nu-West Industries, Inc., a Delaware
corporation (the "Issuer"). The principal executive offices of the Issuer are
located at 8400 East Prentice Avenue, Englewood, Colorado 80111.
Item 2. Identity and Background.
(a) Pursuant to Rules 13d-1(f)(1)-(2) of Regulation 13D-G of
the General Rules and Regulations under the Securities Exchange Act of 1934, as
amended
10
<PAGE>
(the "Act"), the undersigned hereby file this Schedule 13D Statement on behalf
of the Reporting Persons. The Reporting Persons are making this single, joint
filing because they may be deemed to constitute a "group" within the meaning of
Section 13(d)(3) of the Act, although neither the fact of this filing nor
anything contained herein shall be deemed to be a claim or an admission by the
Reporting Persons that a group exists. Mr. Lang and Mr. Pfister are members of
the Issuer's board of directors.
WPG
(b)-(c) WPG is a Delaware limited liability company. WPG's
principal businesses are those of investment management, brokerage and
investment banking. The principal business address of WPG (which also serves as
its principal office) is One New York Plaza, New York, New York 10004. Pursuant
to Instruction C to Schedule 13D of the Act, the following information regarding
the name, business or residence address and the present principal occupation of
each managing member is set forth below:
Managing Members Address Occupation
Stephen H. Weiss One New York Plaza Managing Member, WPG
New York, NY 10004
Philip Greer One New York Plaza Managing Member, WPG
New York, NY 10004
Melville Straus One New York Plaza Managing Member, WPG
New York, NY 10004
Roger J. Weiss One New York Plaza Managing Member, WPG
New York, NY 10004
Nelson Schaenen, Jr. One New York Plaza Managing Member, WPG
New York, NY 10004
11
<PAGE>
Samuel Armacost One New York Plaza Managing Member, WPG
New York, NY 10004
Annette Bianchi One New York Plaza Managing Member, WPG
New York, NY 10004
John Callaghan One New York Plaza Managing Member, WPG
New York, NY 10004
Gill Cogan One New York Plaza Managing Member, WPG
New York, NY 10004
Candice Eggers One New York Plaza Managing Member, WPG
New York, NY 10004
Ellen Feeney One New York Plaza Managing Member, WPG
New York, NY 10004
Janet A. Fiorenza One New York Plaza Managing Member, WPG
New York, NY 10004
Margery Z. Flicker One New York Plaza Managing Member, WPG
New York, NY 10004
Tony Giammalva One New York Plaza Managing Member, WPG
New York, NY 10004
Ronald M. Hoffner One New York Plaza Managing Member, WPG
New York, NY 10004
Steven Hutchinson One New York Plaza Managing Member, WPG
New York, NY 10004
James W. Kiley 20 North Wacker Drive Managing Member, WPG
Chicago, IL 60606
12
<PAGE>
A. Roy Knutsen One New York Plaza Managing Member, WPG
New York, NY 10004
Alan D. Kohn One New York Plaza Managing Member, WPG
New York, NY 10004
Wesley W. Lang, Jr. One New York Plaza Managing Member, WPG
New York, NY 10004
Gary R. Lisk One New York Plaza Managing Member, WPG
New York, NY 10004
Marvin B. Markowitz One New York Plaza Managing Member, WPG
New York, NY 10004
Howard Mattsson One New York Plaza Managing Member, WPG
New York, NY 10004
Kathleen A. McCarragher One New York Plaza Managing Member, WPG
New York, NY 10004
John Murabito One New York Plaza Managing Member, WPG
New York, NY 10004
Jay C. Nadel One New York Plaza Managing Member, WPG
New York, NY 10004
Joseph N. Pappo One New York Plaza Managing Member, WPG
New York, NY 10004
McGehee L. Porter One New York Plaza Managing Member, WPG
New York, NY 10004
Bradford R. Peck One New York Plaza Managing Member, WPG
(beneficially owns New York, NY 10004
389 shares of
Common Stock)
13
<PAGE>
Peter Pfister One New York Plaza Managing Member, WPG
New York, NY 10004
Steven Pomerantz One New York Plaza Managing Member, WPG
New York, NY 10004
Stuart W. Porter 20 North Wacker Drive Managing Member, WPG
Chicago, IL 60606
Francis H. Powers One New York Plaza Managing Member, WPG
New York, NY 10004
R. Scott Richter One New York Plaza Managing Member, WPG
New York, NY 10004
James Schainuck One New York Plaza Managing Member, WPG
New York, NY 10004
Gary E. Scheier One New York Plaza Managing Member, WPG
New York, NY 10004
David J. Schilder 20 North Wacker Drive Managing Member, WPG
Chicago, IL 60606
Arthur L. Schwarz 7 West 51st Street Managing Member, WPG
New York, NY 10019
Daniel S. Vandivort One New York Plaza Managing Member, WPG
New York, NY 10004
Robert Weiss One New York Plaza Managing Member, WPG
New York, NY 10004
Ellen P. Welsh One New York Plaza Managing Member, WPG
New York, NY 10004
14
<PAGE>
Hugh Zurkuhlen One New York Plaza Managing Member, WPG
New York, NY 10004
Steven Lear One New York Plaza Managing Member, WPG
New York, NY 10004
Kenneth Tarr One New York Plaza Managing Member, WPG
New York, NY 10004
Paul Morris One New York Plaza Managing Member, WPG
New York, NY 10004
CDAII Liquidating Trust
(b)-(c) CDAII Liquidating Trust is a trust formed to liquidate
the assets of WPG Corporate Development Associates II, L.P. ("CDAII"). The
principal business of CDAII was that of a private investment partnership. CDAII
Liquidating Trust's principal business address (which also serves as its
principal office) is One New York Plaza, New York, New York 10004. WPG is the
sole trustee of the trust.
WPGVA Liquidating Trust
(b)-(c) WPGVA Liquidating Trust is a trust formed to liquidate
the assets of Weiss, Peck & Greer Venture Associates, L.P. ("WPGVA"). The
principal business of WPGVA was that of a private investment partnership. WPGVA
Liquidating Trust's principal
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business address (which also serves as its principal office) is One New York
Plaza, New York, New York 10004. WPG is the sole trustee of the trust.
CDAIII
CDAIII is a Delaware limited partnership. The principal
business of CDAIII is that of a private investment partnership. CDAIII's
principal business address (which also serves as its principal office) is One
New York Plaza, New York, New York 10004. The sole general partner of CDAIII is
WPG-CDA III.
WPG-CDA III
WPG-CDA III is a Delaware limited partnership. The principal
business of WPG-CDA III is serving as the sole general partner of CDAIII.
WPG-CDA III's principal business address (which also serves as its principal
office) is One New York Plaza, New York, New York 10004. Mr. Lang is a managing
general partner of WPG-CDA III. WPG is a Class A limited partner of WPG-CDAIII.
Pursuant to Instruction C to Schedule 13D of the Act, the following information
regarding the general partners of WPG-CDA III and their respective business
addresses and present principal occupations is set forth below:
General Partners Address Occupation
Philip Greer One New York Plaza Managing Member, WPG
New York, NY 10004
Wesley W. Lang One New York Plaza Managing Member, WPG
New York, NY 10004
Stephen Hutchinson One New York Plaza Managing Member, WPG
New York, NY 10004
16
<PAGE>
Peter B. Pfister One New York Plaza Managing Member,WPG
New York, NY 10004
Craig Whiting One New York Plaza General Partner,
New York, NY 10004 WPG-CDAIII
CDAIII Overseas
(b)-(c) CDAIII Overseas is a Cayman Islands corporation. The
principal business of CDAIII Overseas is that of a private investment company.
CDAIII Overseas' principal business address (which also serves as its principal
office) is c/o W.S. Walker & Company, Caledonian House, Grand Cayman, Cayman
Islands, British West Indies. Pursuant to Instruction C to Schedule 13D of the
Act, the following information regarding the names, business or residence
address and the present principal occupation of each director and officer is set
forth below:
Directors Address Occupation
Philip Greer One New York Plaza Managing Member, WPG
New York, NY 10004
Robert Rayne 33 Robert Adam Street Executive Director
London W1M 5AH of LMS Services
United Kingdom Limited PLC
17
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Michael Carney BankAmerica Trust & Banking Vice President and
Corporation (Cayman) Limited, Manager of Trust
P.O. Box 1092, George Town and Private Banking
Grand Cayman, Cayman Islands of BankAmerica Cayman
British West Indies
Robin Jarvis BankAmerica Trust & Banking Manager of Mutual
Corporation (Cayman) Limited, Funds, BankAmerica
P.O. Box 1092, George Town Cayman
Grand Cayman, Cayman Islands
British West Indies
Brent Thomas BankAmerica Trust & Banking Trust Officer of
Corporation (Cayman) Limited, Mutual Funds,
P.O. Box 1092, George Town BankAmerica, Cayman
Grand Cayman, Cayman Islands
British West Indies
Officers Address Office
BankAmerica Anchorage Centre Harbour Secretary
Trust & Banking George Town, Grand
Corporation Cayman, Cayman
(Cayman) Limited Islands
British West Indies
Mr. Lang
(b)-(c) Mr. Lang's business address is One New York Plaza, New
York, New York 10004, and his present principal occupation or employment at such
address is as a principal in WPG.
Mr. Pfister
(b)-(c) Mr. Pfister's business address is One New York Plaza,
New York, New York 10004, and his present principal occupation or employment at
such address is as a principal in WPG.
The following persons identified in the original Schedule 13D
to which this Amendment No. 4 relates (or in previous amendments thereto) are no
longer part of the joint filing group: Philip Greer, E. Theodore Stolberg,
Weiss, Peck & Greer CDA, L.P., WPG CDA III (Overseas), L.P., WPG Corporate
Development Associates II, L.P., and Weiss, Peck & Greer Venture Associates,
L.P.
(d) To the knowledge of the Reporting Persons, none of the
entities or persons identified in this Item 2 has, during the last five years,
been convicted in a criminal proceeding (excluding traffic violations or similar
misdemeanors).
(e) To the knowledge of the Reporting Persons, none of the
entities or persons identified in this Item 2 has, during the last five years
been a party to a civil proceeding of a judicial or administrative body of
competent jurisdiction and as a result of such proceeding
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<PAGE>
was or is subject to a judgment, decree or final order enjoining future
violations of, or prohibiting or mandating activities subject to, federal or
state securities laws or finding any violation with respect to such laws.
(f) Mr. Lang and Mr. Pfister are citizens of the United States
of America.
Item 3. Source and Amount of Funds or Other Consideration.
Except for shares personally held by Messrs. Lang and Pfister,
the Common Stock held by the Reporting Persons was acquired with working capital
of CDAII, WPGVA, CDAIII, and CDAIII Overseas, or upon exercise of warrants
granted in connection with financings of the Issuer. As a result of a
recapitalization plan consummated in October 1993 and the exercise of warrants
by the Reporting Persons in connection with such plan, the Reporting Persons'
percentage ownership interest, as a group, increased to approximately 61.9% as
of the dated of this Amendment No. 4 to Schedule 13D.
Item 4. Purpose of Transaction.
On August 9, 1995, the Issuer entered into an Agreement and
Plan of Merger (the "Merger Agreement") among the Issuer, Agrium, Inc.
("Purchaser"), a Canadian corporation, and Agrium Acquisition Corporation
("Acquisition"), a wholly-owned subsidiary of the Purchaser, pursuant to which
the Issuer agreed to the merger of Acquisition with and into the Issuer. The
Merger Agreement contemplates that Acquisition will commence a tender offer (the
"Tender Offer"), subject to certain conditions, for all outstanding shares of
the Company.
Section 9.1 of the Merger Agreement provides that the Merger
Agreement is subject to termination on or prior to the filing of a certificate
of merger (the "Effective Date"), whether before or after approval by the
stockholders:
(a) by mutual consent of Purchaser and the Board of Directors
of the Issuer;
(b) by Purchaser or the Issuer if the Merger shall not have
been consummated on or before December 15, 1995, which date may be extended by
mutual agreement of the Boards of Directors of the Issuer and Purchaser;
(c) by the Issuer, if, prior to the Effective Date, the
Issuer, its Board of Directors or its stockholders shall receive a bona fide
written proposal or offer from a third party (each an "Acquisition Proposal")
relating to:
(i) the acquisition or purchase of all or substantially
all of the assets of, or more than a 50% equity interest (including any shares
theretofore acquired) in the Issuer;
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(ii) a merger, consolidation or similar business
combination with the Issuer;
(iii) a tender or exchange offer for the Issuer
conditioned on ownership of more than 50% of the outstanding shares following
such tender or exchange offer;
and the Board of Directors of the Issuer determines that it has a duty in the
proper discharge of its fiduciary responsibilities under applicable law to
consider such other proposal or offer, and then such Board of Directors either
(A) accepts such proposal or offer, (B) recommends to the stockholders
acceptance of such proposal or offer, or (C) in the case of a tender or exchange
offer, takes no position with respect thereto and all conditions (other than
terminating the Merger Agreement) of such tender or exchange offer have been
satisfied;
(d) by Purchaser upon a breach of any material representation,
warranty, covenant or agreement on the part of the Issuer set forth in this
Agreement or if any representation or warranty of the Issuer shall have become
untrue and such breach or untruth shall have caused a material adverse effect;
or
(e) by the Issuer upon a breach of any material
representation, warranty, covenant or agreement on the part of the Purchaser set
forth in this Agreement or if any representation or warranty of the Purchaser
shall have become untrue and such breach or untruth shall have caused a material
adverse effect.
On August 9, 1995, each of the Reporting Persons identified
below granted an irrevocable proxy to designated employees of the Purchaser
relating to shares of Common Stock. The irrevocable proxies, covering an
aggregate of 4,614,281 shares of Common Stock, entitle the named
attorneys-in-fact (i) to call a special meeting of stockholders of the Issuer to
consider the Merger, and (ii) to vote (or, at their discretion, execute a
written consent with respect to) with or without the other, all the shares
covered by the proxy (A) in favor of the Merger and adoption of the Merger
Agreement, and (B) against any business combination proposal or other matter
that may interfere or be inconsistent with the Merger or the Merger Agreement
(including, without limitation, an Acquisition Proposal, as defined in the
Merger
20
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Agreement), at any meeting of stockholders of the Issuer (or consent in lieu
thereof) and any adjournment or adjournments thereof.
Each Reporting Person granting a proxy also agreed to tender
the shares covered by the proxy in the Tender Offer.
Each proxy (including the obligation to tender shares in the
Tender Offer) terminates automatically on the earliest to occur of (i) the
Effective Time, (ii) termination of the Merger Agreement pursuant to Section 9.1
thereof, or (ii) amendment of the Merger Agreement with respect to the price per
share to be received upon the merger or tender.
The Reporting Persons granting proxies and the number of
shares of Common Stock covered by such proxy are as follows:
Reporting Person Number of Shares
WPGVA Liquidating Trust 880,563
CDAIII 1,027,714
CDAII Liquidating Trust 2,488,005
CDAIII Overseas 217,999
The Merger Agreement is annexed to this Amendment No. 4 as
Exhibit A; the proxies are annexed as Exhibit B.
The identified Reporting Persons granted proxies with respect
to the shares owned by them to induce the Purchaser to enter into the Merger
Agreement. If the Merger Agreement is consummated, the Issuer will cease to be a
public company. Consequently, its securities will cease to be quoted and will be
eligible for termination of registration pursuant to Section 12(g)(4) of the
Securities Exchange Act of 1934.
21
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Item 5. Interest in Securities of Issuer.
The following information is provided in response to Item 5 of
Schedule 13D and is based on a total of 7,453,174 shares of voting Common Stock
represented by the Issuer in the Merger Agreement to be outstanding. An
additional 633,106 shares of non-voting common stock are outstanding based upon
representations of the Issuer in the Merger Agreement.
(a) CDAII Liquidating Trust
CDAII Liquidating Trust beneficially owns 2,488,005 shares of
Common Stock, constituting approximately 33.4% of the Common Stock outstanding.
WPGVA Liquidating Trust
WPGVA Liquidating Trust beneficially owns 880,563 shares of
Common Stock, constituting approximately 11.8% of the Common Stock outstanding.
CDAIII
CDAIII beneficially owns 1,027,714 shares of Common Stock,
constituting approximately 13.8% of the Common Stock outstanding.
WPG-CDA III
WPG-CDA III as the sole general partner of CDAIII may be
deemed, pursuant to Rule 13d-3, to own beneficially 1,027,714 shares of Common
Stock, constituting approximately 13.8% of the Common Stock outstanding. WPG-CDA
III disclaims beneficial ownership of all such Common Stock, except to the
extent of WPG-CDA III's beneficial interest, as a partner of CDAIII, in the
Common Stock held by CDAIII.
CDAIII Overseas
CDAIII Overseas beneficially owns 217,999 shares of Common
Stock, constituting approximately 2.9% of Common Stock outstanding.
22
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Mr. Lang
Mr. Lang owns of record 1,166 shares of Common Stock and has
sole voting and dispositive power with respect to such shares. By reason of his
status as a principal of WPG and as a managing partner of WPG-CDAIII, Mr. Lang
may be deemed to be the beneficial owner, within the meaning of Rule 13d-3, of
the 4,396,282 shares of Common Stock held by CDAII Liquidating Trust, WPGVA
Liquidating Trust, and CDAIII, constituting approximately 59.0% of the Common
Stock in the aggregate. Mr. Lang disclaims beneficial ownership of such Common
Stock, except to the extent of Mr. Lang's indirect beneficial interest in such
entities.
Mr. Pfister
Mr. Pfister owns of record 389 shares of Common Stock and has
sole voting and dispositive power with respect to such shares. By reason of his
status as a principal of WPG and as a general partner of WPG-CDAIII, Mr. Pfister
may be deemed to be the beneficial owner, within the meaning of Rule 13d-3, of
the 4,396,282 shares of Common Stock held by CDAII Liquidating Trust, WPGVA
Liquidating Trust, and CDAIII, constituting approximately 59.0% of the Stock in
23
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the aggregate. Mr. Pfister disclaims beneficial ownership of such Common Stock,
except to the extent of Mr. Pfister's indirect beneficial interest in such
entities.
WPG
WPG is the sole trustee of CDAII Liquidating Trust and WPGVA
Liquidating Trust. As a result, WPG may also be deemed, pursuant to Rule 13d-3,
to beneficially own 3,368,568 shares of Common Stock, constituting approximately
45.2% of the Common Stock outstanding. However, WPG disclaims beneficial
ownership of the 3,368,568 shares of Common Stock held by CDAII Liquidating
Trust, WPGVA Liquidating Trust, CDAIII and CDAIII Overseas.
(b) No Material Change
(c) Except as set forth in Item 3 above, during the past sixty (60)
days, there have been no transactions in the Common Stock by any of the
Reporting Persons, nor, to the knowledge of the Reporting Persons by any other
person named in Item 2.
Item 6. Contracts, Arrangements, Understandings or Relationships With Respect
to Securities of the Issuer.
See Items 4 and 7.
Item 7. Material to be filed as Exhibits.
Exhibit A Agreement and Plan of Merger dated as of
August 9, 1995 among the Issuer, Purchaser
and Acquisition.
Exhibit B Proxies dated August 9, 1995 executed
by the following Reporting Persons: WPGVA
Liquidating Trust, CDAIII, CDAII Liquidating
Trust, and CDAIII Overseas.
Exhibit C Agreement pursuant to Rule 13d-1(f)(1)(iii).
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Exhibit D Power of Attorney appointing Robin B.
Shanus and/or Peter B. Pfister to act on
behalf of Wesley W. Lang, Jr. individually
and on behalf of WPCDA III, L.P. and on
behalf of WPG Corporate Development
Associates III, L.P.
25
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SIGNATURES
After reasonable inquiry and to the best of our knowledge and
belief, we certify that the information set forth in this statement is true,
complete and correct.
Dated: August 14, 1995
*
Wesley W. Lang, Jr.
s/Peter Pfister
Peter Pfister
WPG CORPORATE DEVELOPMENT ASSOCIATES II, L.P. LIQUIDATING TRUST
By: WEISS, PECK & GREER, L.L.C.
its sole trustee
By:s/Philip Greer
Philip Greer
WEISS, PECK & GREER VENTURE ASSOCIATES, L.P. LIQUIDATING TRUST
By: WEISS, PECK & GREER, L.L.C.
its sole trustee
By:s/Philip Greer
Philip Greer
26
<PAGE>
WPG CORPORATE DEVELOPMENT ASSOCIATES III, L.P.
By: WPG CDA III, L.P.
its sole general partner
By:*
Wesley W. Lang, Jr.
WPG CDA III, L.P.
By:*
Wesley W. Lang, Jr.
WPG CORPORATE DEVELOPMENT ASSOCIATES III (OVERSEAS), LTD.
By:s/Robin Jarvis
Robin Jarvis
WEISS, PECK & GREER, L.L.C.
By:s/Philip Greer
Philip Greer
*By:s/Robin Shanus
Robin B. Shanus
Attorney-in-Fact
27
EXHIBIT A
AGREEMENT AND PLAN OF MERGER
dated as of August 9, 1995
by and among
AGRIUM INC.,
AGRIUM ACQUISITION CORPORATION
and NU-WEST INDUSTRIES, INC.
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I THE TENDER OFFER 1
Section 1.1 The Tender Offer 1
Section 1.2 Action by the Company 2
Section 1.3 Continuing Directors 3
ARTICLE II THE MERGER 3
Section 2.1 The Merger 3
Section 2.2 Consummation of the Merger 3
ARTICLE III CERTIFICATE OF INCORPORATION AND BY-LAWS OF THE
SURVIVING CORPORATION 4
Section 3.1 Certificate of Incorporation 4
Section 3.2 By-Laws 4
Section 3.3 Officers and Board of Directors 4
ARTICLE IV CONVERSION OF SHARES 4
Section 4.1 Conversion of Shares 4
Section 4.2 Payment for Shares 5
Section 4.3 Shares of Dissenting Stockholders 5
Section 4.4 Closing of the Company's Transfer Books 5
Section 4.5 Status of Share Certificates 5
ARTICLE V REPRESENTATIONS AND WARRANTIES OF PURCHASER AND
ACQUISITION 6
Section 5.1 Organization 6
Section 5.2 Authority Relative to this Agreement 6
Section 5.3 No Conflicts; Required Filings and Consents 6
Section 5.4 Information 7
Section 5.5 Litigation 8
Section 5.6 Financing 8
Section 5.7 Ownership of Capital Stock 8
ARTICLE VI REPRESENTATIONS AND WARRANTIES OF THE COMPANY 8
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Page
Section 6.1 Organization and Qualification; Subsidiaries 8
Section 6.2 Charter and By-Laws 9
Section 6.3 Capitalization 9
Section 6.4 Authority 11
Section 6.5 No Conflict; Required Filings and Consents 11
Section 6.6 Permits; Compliance 12
Section 6.7 Reports; Financial Statements 12
Section 6.8 Absence of Certain Changes or Events 13
Section 6.9 Absence of Litigation 13
Section 6.10 Employee Plans; Labor Matters 14
Section 6.11 Taxes 16
Section 6.12 Environmental Matters 17
Section 6.13 Delaware Law 18
Section 6.14 Inventory; Accounts Receivable 19
Section 6.15 Insurance 19
Section 6.16 Properties 19
Section 6.17 Certain Contracts and Restrictions 19
Section 6.18 Information Supplied 19
Section 6.19 Opinion of Financial Advisor 20
Section 6.20 Futures Trading and Fixed Price Exposure 20
Section 6.21 Intellectual Property 20
Section 6.22 Contributions, Etc. 20
Section 6.23 Easements 20
Section 6.24 Information 21
ARTICLE VII COVENANTS 21
Section 7.1 Conduct of Business by the Company Pending
the Merger 21
Section 7.2 Stockholders' Meeting and Proxy Statement 24
Section 7.3 Certain Filings and Consents 24
Section 7.4 Access 24
Section 7.5 Expenses 25
Section 7.6 Employee Stock Options; Warrant 25
Section 7.7 Indemnification and Insurance 25
Section 7.8 Employee Benefits 26
Section 7.9 Maintenance of Financing 26
Section 7.10 Resignation of Directors 27
Section 7.11 Board of Directors 27
ARTICLE VIII CONDITIONS 27
Section 8.1 Conditions to Each Party's Obligation to
Effect the Merger 27
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Section 8.2 Conditions to Obligations of Purchaser and
Acquisition to Effect the Merger 27
Section 8.3 Conditions to Obligation of the Company to
Effect the Merger 28
ARTICLE IX TERMINATION, AMENDMENT AND WAIVER 29
Section 9.1 Termination 29
Section 9.2 Break-Up Fee; Effect of Termination 30
Section 9.3 Amendment 30
Section 9.4 Waiver 30
ARTICLE X GENERAL PROVISIONS 30
Section 10.1 Notice of Breach 30
Section 10.2 Cooperation 31
Section 10.3 Non-Survival of Representations and Warranties 31
Section 10.4 Brokers 31
Section 10.5 Entire Agreement 31
Section 10.6 Applicable Law 31
Section 10.7 Interpretation; Headings 31
Section 10.8 Assignment 31
Section 10.9 Separability 32
Section 10.10 Publicity 32
Section 10.11 Notices 32
Section 10.12 Counterparts 33
Section 10.13 No Third Party Beneficiaries 33
Section 10.14 Schedules 33
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<PAGE>
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER dated as of August 9, 1995 (this
"Agreement") by and among Agrium Inc., a Canadian corporation ("Purchaser"),
Agrium Acquisition Corporation, a Delaware corporation and wholly-owned
subsidiary of Purchaser ("Acquisition"), and Nu-West Industries, Inc., a
Delaware corporation (the "Company"). (Acquisition and the Company are
hereinafter collectively referred to as the "Constituent Corporations.")
WHEREAS, Purchaser and the Boards of Directors of the Constituent
Corporations (a) desire to enter into this Agreement and (b) have approved the
merger of Acquisition with and into the Company (the "Merger"), all upon the
terms and subject to the conditions set forth herein.
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
TENDER OFFER
Section 1.1 The Tender Offer.
(a) As long as none of the events set forth in Exhibit A
hereto shall have occurred or be existing, Acquisition shall, and Purchaser
shall cause Acquisition to, commence as promptly as practicable, but in no event
later than five business days after the date hereof, a tender offer (as amended
or extended from time to time, the "Tender Offer") subject to the conditions set
forth in Exhibit A hereto, for all outstanding shares of Voting Common Stock,
par value $.01, and Nonvoting Common Stock, par value $.01 (collectively, the
"Shares") of the Company, which Tender Offer is conditioned upon a sufficient
number of Shares being properly tendered and not withdrawn, which, when added
together with any Shares owned by Purchaser and any of its subsidiaries or which
Purchaser and Acquisition have the right to acquire, will equal at least 60% of
the outstanding Shares on a fully diluted basis. The per Share price to be paid
in the Tender Offer, which shall be paid net to the sellers in cash, shall be
$10.50. Purchaser agrees, subject to the terms and conditions of the Tender
Offer, to pay for all Shares tendered that it is obligated to purchase as soon
as legally permissible.
(b) Without the prior written consent of the Company,
Acquisition shall not decrease the Merger Price (as defined in Section 4.1),
decrease the number of Shares being sought in the Tender Offer, change the form
of consideration payable in the Tender Offer, add additional conditions to the
Tender Offer or make any other material change in the terms or conditions to the
Tender Offer.
<PAGE>
(c) On the date the Tender Offer is commenced, Purchaser and
Acquisition shall file with the Securities and Exchange Commission (the "SEC") a
tender offer statement on Schedule 14D-1 (together with all amendments and
supplements thereto, the "Schedule 14D-1") with respect to the Tender Offer. The
Schedule 14D-1 shall contain (included as an exhibit) or shall incorporate by
reference the Offer to Purchase (or portions thereof) and forms of the related
Letter of Transmittal and summary advertisement and shall comply as to form in
all material respects with the requirements of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and the rules and regulations promulgated
thereunder (the "Rules and Regulations"). If at any time prior to the expiration
or termination of the Tender Offer any event occurs which is required by the Act
and the Rules and Regulations to be described in an amendment to the Schedule
14D-1 or any supplement thereto, Purchaser and Acquisition will file and
disseminate, as required, an amendment or supplement which complies in all
material respects with the Act and the Rules and Regulations. The Company and
its counsel shall be given an opportunity to review the Schedule 14D-1 and any
amendment or supplement thereto prior to its being filed with the SEC. Purchaser
and Acquisition agree to provide the Company and its counsel with any written
comments (and to inform the Company and its counsel of the tenor of any oral
comments) Purchaser and Acquisition or their counsel may receive from the SEC
with respect to the Offer Documents (as defined in Section 5.4) is made promptly
after the receipt of such comments.
Section 1.2 Action by the Company. The Company hereby represents
that the Board of Directors of the Company, in connection with its approval of
this Agreement, by resolution has (a) approved the Tender Offer and the Merger
and (b) resolved to recommend acceptance of the Tender Offer and approval and
adoption of the Merger and this Agreement by the holders of the Shares if such
approval and adoption is required by the General Corporation Law of the State of
Delaware (the "GCL"). On the date the Schedule 14D-1 is filed with the SEC, the
Company shall file with the SEC a Solicitation/Recommendation Statement on
Schedule 14D-9 (together with all amendments and supplements thereto, the
"Schedule 14D-9") and shall mail the Schedule 14D-9 to the stockholders of the
Company. The Schedule 14D-9 shall comply as to form in all material respects
with the requirements of the Act and the Rules and Regulations. Purchaser,
Acquisition and their counsel shall be given the opportunity to review the
Schedule 14D-9 and any amendment or supplement thereto prior to its filing with
the SEC. The Company agrees to provide Purchaser and Acquisition and their
counsel with any written comments (and to inform them of the tenor of any oral
comments) that the Company or its counsel receive from the SEC with respect to
the Schedule 14D-9 promptly after the receipt of such comments. If at any time
prior to the expiration or termination of the Tender Offer any event occurs
which is required by applicable law to be described in an amendment to the
Schedule 14D-9 or any supplement thereto, the Company will file and disseminate,
as required, an amendment or supplement which complies in all material respects
with the Act, the Rules and Regulations and any other applicable laws. In
connection with the Tender Offer, the Company will or will cause its transfer
agent to furnish Purchaser with a list of stockholders and mailing labels
containing the names and addresses of all record holders of the Shares held in
stock depositories, each as of a recent date. The Company shall furnish
Purchaser with any additional information, including an updated list of
stockholders, mailing labels and lists of security
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<PAGE>
positions, and any assistance as Purchaser may reasonably request in
communicating the Tender Offer to the record and beneficial holders of the
Shares.
Section 1.3 Continuing Directors. After the time that Acquisition's
designees constitute at least a majority of the Board of Directors of the
Company and until the Effective Date (as defined in Section 2.2), any amendment
or termination of this Agreement, extension for the performance or waiver of the
obligations or other acts of Purchaser or Acquisition (except pursuant to this
Agreement) or waiver of the Company's rights hereunder, which amendment,
termination, extension or waiver would adversely affect the stockholders,
optionholders or employees of the Company, shall also require the approval of a
majority (or such higher percentage as is required under the By-laws of the
Company) of the then serving directors, if any, who are directors as of the date
hereof (the "Continuing Directors"). If the number of Continuing Directors prior
to the Effective Date is reduced below two for any reason, the remaining
Continuing Directors or Continuing Director shall be entitled to designate
persons to fill such vacancies who shall be deemed Continuing Directors for all
purposes of this Agreement.
ARTICLE II
THE MERGER
Section 2.1 The Merger. Upon the terms and subject to the conditions
hereof, on the Effective Date, Acquisition shall be merged with and into the
Company, which shall be the surviving corporation (the Company in such capacity
being hereinafter sometimes called the "Surviving Corporation"). From and after
the Effective Date, the status, rights and liabilities of, and the effect of the
Merger on, each of the Constituent Corporations in the Merger and the Surviving
Corporation shall be as provided in Section 259 of the GCL. At any time, and
from time to time after the Effective Date, the last acting officers of
Acquisition, or the corresponding officers of the Surviving Corporation, may, in
the name of Acquisition, execute and deliver all such proper deeds, assignments,
and other instruments and take or cause to be taken all such further or other
action as the Surviving Corporation may deem necessary or desirable in order to
vest, perfect or confirm in the Surviving Corporation title to and possession of
all of the Company's property, rights, privileges, powers, franchises,
immunities and interests and otherwise to carry out the purposes of this
Agreement and the Merger.
Section 2.2 Consummation of the Merger. As soon as practicable (but
in any event within five business days) after the receipt of any required
approval of the Company's stockholders and Board of Directors (or, if such
approval is not required, all other corporate action required as a precondition
to effect the Merger), and subject to the conditions hereinafter set forth, the
parties hereto shall cause the Merger to be consummated by the approval and
filing with the Secretary of the State of Delaware of a certificate of merger
(or a certified copy of this Agreement) in such form as required by and executed
in accordance with the relevant provisions of applicable law (the time of such
filing being the "Effective Date").
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ARTICLE III
CERTIFICATE OF INCORPORATION AND BY-LAWS
OF THE SURVIVING CORPORATION
Section 3.1 Certificate of Incorporation. The Certificate of
Incorporation of the Company in effect on the Effective Date shall be the
Certificate of Incorporation of the Surviving Corporation, until thereafter
amended as provided by law.
Section 3.2 By-Laws. The By-Laws of the Company in effect on the
Effective Date shall be the By-Laws of the Surviving Corporation, until
thereafter amended as provided by law and the Surviving Corporation's
Certificate of Incorporation.
Section 3.3 Officers and Board of Directors. The directors of
Acquisition on the Effective Date shall become the directors of the Surviving
Corporation until their respective successors are duly elected and qualified.
The officers of the Company on the Effective Date shall continue as the officers
of the Surviving Corporation, to serve in accordance with the By-Laws thereof
until their respective successors are duly elected and qualified.
ARTICLE IV
CONVERSION OF SHARES
Section 4.1 Conversion of Shares. As of the Effective Date, by
virtue of the Merger and without any action on the part of Purchaser,
Acquisition, the Company or the holders of any securities of the Company:
(a) All Shares which are held by the Company as treasury
shares, all authorized and unissued Shares and any Shares owned by Purchaser,
Acquisition or any other direct or indirect subsidiary of Purchaser, shall be
canceled.
(b) Each other outstanding Share (other than Shares held by
Dissenting Stockholders (as defined in Section 4.3)) shall be converted into the
right to receive (U.S.)$10.50 net in cash or such higher amount per Share as may
be paid to any holder of Shares pursuant to the Tender Offer (the "Merger
Price").
(c) Each issued and outstanding share of capital stock of
Acquisition shall be converted into one validly issued, fully paid and
non-assessable share of Voting Common Stock, par value $.01 per share, of the
Surviving Corporation.
(d) Except as provided in Section 7.6 and as set forth in
Schedule 4.1, all notes and other debt or equity instruments of the Company
which are outstanding at the Effective Date shall continue to be outstanding
subsequent to the Effective Date as debt or equity instruments of the Surviving
Corporation, subject to their respective terms and provisions.
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<PAGE>
Section 4.2 Payment for Shares. Purchaser shall authorize one or
more persons to act as paying agent in connection with the Merger (the "Paying
Agent"). Upon or as soon as practicable after the Effective Date, Purchaser
shall make available and each former holder of Shares shall be entitled to
receive pursuant to Section 4.1(b), upon surrender to the Paying Agent of the
certificate or certificates, which immediately prior to the Effective Date
represented such outstanding Shares, for cancellation, the aggregate amount of
cash into which those Shares shall have been converted in the Merger. Until so
surrendered, each certificate, which immediately prior to the Effective Date
represented outstanding Shares, shall represent solely the right to receive,
upon surrender, the aggregate amount of cash into which the Shares represented
thereby shall have been converted. No interest shall accrue or be paid on the
cash payable upon the surrender of the certificate or certificates. Purchaser
shall pay on the Effective Date the amounts due in respect of the stock options
referred to in Section 7.6.
Section 4.3 Shares of Dissenting Stockholders. Notwithstanding
anything in this Agreement to the contrary, any issued and outstanding shares of
capital stock of the Company held by a stockholder who has not voted in favor of
nor consented to the Merger and who complies with all the provisions of the GCL
concerning the right of holders of such stock to dissent from the Merger and
require appraisal of their shares (a "Dissenting Stockholder"), shall not be
converted as described in Section 4.1 but shall become, at the Effective Date,
by virtue of the Merger and without any further action, the right to receive
such consideration as may be determined to be due to such Dissenting Stockholder
pursuant to the GCL; provided, however, that Shares outstanding immediately
prior to the Effective Date and held by a Dissenting Stockholder who shall,
after the Effective Date, withdraw his demand for appraisal or lose his right of
appraisal, in either case pursuant to the GCL, shall be deemed to be converted
as of the Effective Date, into the right to receive the Merger Price. The
Company shall give Purchaser (a) prompt notice of any written demands for
appraisal of shares of capital stock of the Company received by the Company and
(b) the opportunity to direct all negotiations and proceedings with respect to
any such demands. The Company shall not, without the prior written consent of
Purchaser, voluntarily make any payment with respect to, or settle, offer to
settle or otherwise negotiate, any such demands.
Section 4.4 Closing of the Company's Transfer Books. Upon the
Effective Date, the stock transfer books of the Company shall be closed and no
transfer of Shares (other than shares of Voting Common Stock, par value $.01 per
share, into which the capital stock of Acquisition is to be converted pursuant
to the Merger) shall thereafter be made.
Section 4.5 Status of Share Certificates. From and after the
Effective Date, the holders of certificates evidencing ownership of Shares
outstanding immediately prior to the Effective Date shall cease to have any
rights with respect to such Shares except as otherwise provided for herein or by
applicable law.
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ARTICLE V
REPRESENTATIONS AND WARRANTIES OF PURCHASER AND ACQUISITION
Purchaser and Acquisition jointly and severally represent and
warrant to the Company as follows:
Section 5.1 Organization. Purchaser is a corporation duly organized,
validly existing and in good standing under the laws of Canada and has the
requisite corporate power to carry on its business as it is now being conducted.
Acquisition is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware and is a wholly-owned
subsidiary of Purchaser.
Section 5.2 Authority Relative to this Agreement. Purchaser and
Acquisition have the requisite corporate power and authority to make the Tender
Offer, execute and deliver this Agreement, to perform their obligations
hereunder and to consummate the transactions contemplated hereby. The execution
and delivery of this Agreement by Purchaser and Acquisition and the consummation
by Purchaser and Acquisition of the transactions contemplated hereby have been
duly authorized by all necessary corporate and, to the extent necessary,
stockholder action of Purchaser and Acquisition and no other acts or corporate
proceedings on the part of Purchaser or Acquisition are necessary to authorize
the Tender Offer, the Merger or this Agreement or to consummate the transactions
contemplated hereby. This Agreement has been duly executed and delivered by
Purchaser and Acquisition and is a valid and binding obligation of Purchaser and
Acquisition, enforceable against them in accordance with its terms.
Section 5.3 No Conflicts; Required Filings and Consents.
(a) The execution and delivery of this Agreement by Purchaser
and Acquisition does not, and the consummation of the transactions contemplated
hereby will not (i) conflict with or violate the charter or By-Laws, or the
equivalent organizational documents, in each case as amended or restated, of
Purchaser or any of its subsidiaries, (ii) in any material respect, conflict
with or violate any federal, state, foreign or local law, statute, ordinance,
rule, regulation, order, judgment or decree (collectively, "Laws") applicable to
Purchaser or any of its subsidiaries or by which any of their respective
properties is bound or subject or (iii) result in any material breach of or
constitute a material default (or an event that with notice or lapse of time or
both would become a material default) under, or give to others any rights of
termination, amendment, acceleration or cancellation of, or require payment
under, or result in the creation of a lien or encumbrance on any of the
properties or assets of Purchaser or any of its subsidiaries pursuant to, any
note, bond, mortgage, indenture, contract, agreement, lease, license, permit,
franchise or other instrument or obligation to which Purchaser or any of its
subsidiaries is a party or by or to which Purchaser or any of its subsidiaries
or any of their respective properties is bound or subject, except for any such
conflicts, violations, breaches, defaults, events, rights of termination,
amendment, acceleration or cancellation, payment obligations or liens or
encumbrances described in clauses (ii) or (iii) that would not, in the
aggregate, prevent the
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Purchaser and Acquisition from performing, in any material respect, their
respective obligations under this Agreement (a "Purchaser Material Adverse
Effect").
(b) The execution and delivery of this Agreement by Purchaser
and Acquisition does not, and consummation of the transactions contemplated
hereby will not, require either Purchaser or Acquisition to obtain any consent,
license, permit, approval, waiver, authorization or order of, or to make any
filing with or notification to, any governmental or regulatory authority,
domestic or foreign (collectively, "Governmental Entities"), except (i) for
applicable requirements, if any, of the Securities Act of 1933, as amended (the
"Securities Act"), the Exchange Act, state securities or blue sky laws ("Blue
Sky Laws"), and the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as
amended (the "Hart-Scott-Rodino Act"), and the filing and recordation of
appropriate merger documents as required by the GCL, and (ii) where the failure
to obtain such consents, licenses, permits, approvals, waivers, authorizations
or orders, or to make such filings or notifications, would not, either
individually or in the aggregate, constitute a Purchaser Material Adverse
Effect.
Section 5.4 Information. (a) The documents pursuant to which the
Tender Offer is made, including a Schedule 14D-1, an Offer to Purchase and a
related Letter of Transmittal and any amendments thereof or supplements thereto
(the "Offer Documents"), will not at the respective times such documents are
filed with the SEC, contain any untrue statement of a material fact or omit to
state any material fact (other than information with respect to the Company
supplied by the Company, with respect to which no representation is made)
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. None of the information to be supplied by Purchaser or Acquisition
for inclusion in a proxy statement in connection with the meeting of the
Company's stockholders, if required, described in Section 7.2 hereof (the "Proxy
Statement") or in an information statement mailed to the Company's stockholders
(the "Information Statement") or any amendments thereof or supplements thereto,
will, at the time of the meeting of stockholders to be held in connection with
the Merger or the mailing to stockholders, as the case may be, contain any
untrue statement of a material fact or omit to state any material fact necessary
in order to make the statements therein, in light of the circumstances under
which they were made, not misleading.
(b) Since their inception, Purchaser and its subsidiaries
have filed all forms, reports, statements and other documents required to be
filed with applicable Canadian and United States securities authorities, except
where the failure to file such documents would not have a Purchaser Material
Adverse Effect (all such forms, reports, statements and other documents being
referred to herein, collectively, as the "Purchaser Reports"). The Purchaser
Reports, including all Purchaser Reports filed after the date of this Agreement
and prior to the Effective Date, (i) were or will be prepared in all material
respects in accordance with the requirements of applicable Law and (ii) did not
at the time they were filed, or will not at the time they are filed, 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, except where
any such statement or
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omission would not have a Purchaser Material Adverse Effect. Notwithstanding
this Section 5.4(b), Purchaser shall not be deemed to represent or warrant the
preparation or accuracy of any Purchaser Report, statement, document or other
information included in the Purchaser Reports that were provided to the
Purchaser for inclusion therein by a third party.
Section 5.5 Litigation. There is no claim, action, suit, litigation,
proceeding, arbitration or, to the knowledge of Purchaser, any investigation of
any kind at law or in equity (including actions or proceedings seeking
injunctive relief), pending or, to the knowledge of Purchaser, threatened
against Purchaser or any of its subsidiaries or any properties or rights of
Purchaser or any of its subsidiaries (except for claims, actions, suits,
litigation, proceedings, arbitrations or investigations which would not
reasonably be expected to have a Purchaser Material Adverse Effect), and neither
Purchaser nor any of its subsidiaries is subject to any continuing order of,
consent decree, settlement agreement or other similar written agreement with,
any Governmental Entity, or any judgment, order, writ, injunction, decree or
award of any Governmental Entity or arbitrator, including, without limitation,
cease and desist or other orders, except for matters which would not have a
Purchaser Material Adverse Effect.
Section 5.6 Financing. Purchaser and Acquisition have funds
available to them sufficient to consummate the Tender Offer and the Merger on
the terms contemplated hereby.
Section 5.7 Ownership of Capital Stock. As of the date hereof, each
of Purchaser, Acquisition and their respective affiliates is not an interested
stockholder of the Company (as defined in Section 203 of the GCL).
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to Purchaser and Acquisition as
follows:
Section 6.1 Organization and Qualification; Subsidiaries. Each of
the Company and its subsidiaries (as defined in Section 10.7) is duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
incorporation or organization, has all requisite corporate or partnership power
and authority to own, lease and operate its properties and to carry on its
business as it is now being conducted and is duly qualified and in good standing
to do business in each jurisdiction in which the nature of the business
conducted by it or the ownership or leasing of its properties makes such
qualification necessary, other than where the failure to be so duly qualified
and in good standing would not have a Company Material Adverse Effect. The term
"Company Material Adverse Effect" as used in this Agreement shall mean any
change or effect that, individually or when taken together with all other such
changes or effects, would be materially adverse to the financial condition,
results of operations or fair market value of the Company and its subsidiaries,
taken as a whole. Schedule 6.1 of the disclosure schedule delivered to Purchaser
by the Company on the date hereof (the "Company Disclosure Schedule") sets
forth, as of the date of this Agreement, a true and complete list of all the
Company's subsidiaries and investments in business entities together with (A)
the jurisdiction of
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incorporation or organization of each subsidiary and the percentage of each
subsidiary's outstanding capital stock or other equity interests owned by the
Company or another subsidiary of the Company, and (B) an indication of whether
each such subsidiary is a "Significant Subsidiary" as defined in Rule 1-02 of
Regulation S-X of the SEC. Neither the Company nor any of its subsidiaries owns
or has owned since its inception (other than Nu-South Industries, Inc., a
Delaware corporation, the Conda Partnership, an Idaho general partnership and
Nu-Gulf Industries, Inc., a Delaware corporation), an equity interest in any
other corporation, partnership or joint venture arrangement or other business
entity that is or was material to the financial condition, results of operations
or fair market value of the Company and its subsidiaries, taken as a whole.
Section 6.2 Charter and By-Laws. The Company has heretofore
furnished to Purchaser complete and correct copies of the charter and the
By-Laws or the equivalent organizational documents, in each case as amended or
restated, of the Company and each of its subsidiaries. Neither the Company nor
any of its subsidiaries is in violation of any of the provisions of its charter
or any material provision of its By-Laws (or equivalent organizational
documents).
Section 6.3 Capitalization.
(a) The authorized capital stock of the Company consists of
14,666,667 shares of Voting Common Stock, par value $.01 per share, of which
7,453,174 shares are issued and outstanding; 2,000,000 shares of Nonvoting
Common Stock, par value $.01 per share, of which 633,106 shares are issued and
outstanding; 290,000 shares of Class A Preferred Stock, par value $100 per
share, of which 290,000 shares are issued and outstanding; 20,000 shares of
Class B Preferred Stock, par value $100 per share, of which 344 shares are
issued and outstanding; and 500,000 shares of Serial Preferred Stock, par value
$1.00 per share, none of which is issued and outstanding. Except as described in
this Section 6.3 or in Schedule 6.3(a) of the Company Disclosure Schedule, as of
the date of this Agreement, no shares of capital stock of the Company are
reserved for any purpose. Each of the outstanding shares of capital stock of, or
other equity interests in, each of the Company and its subsidiaries is duly
authorized, validly issued and, in the case of shares of capital stock, fully
paid and nonassessable, and has not been issued in violation of (nor are the
authorized shares of capital stock of any of such corporate entities subject to)
any preemptive or similar rights created by statute, the charter or By-Laws (or
the equivalent organizational documents) of the Company or any of its
subsidiaries, or any agreement to which the Company or any of its subsidiaries
is a party or bound, and such outstanding shares or other equity interests owned
by the Company or a subsidiary of the Company are owned free and clear of all
security interests, liens, claims, pledges, agreements, limitations on the
Company's or such subsidiaries' voting rights, charges or other encumbrances of
any nature whatsoever, except as set forth in the Second Amended and Restated
Agreement of Limited Partnership of NuTec Mineral & Chemical Company, a Colorado
limited partnership, dated as of January 1, 1994, and as provided in the
documents evidencing the Company's credit facility with Harris Trust and Savings
Bank (the "Harris Loan").
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(b) There are no existing options, warrants, calls, subscriptions,
convertible securities or other securities, agreements, commitments or
obligations which would require the Company to issue or sell Shares except
pursuant to (a) the 1988 Employee Stock Option Plan and the Company's 1994
Employee Stock Incentive Plan ( collectively, the "Stock Option Plans") under
which, as of the close of business on the date hereof, 497,721 Shares were
issuable and reserved for issuance pursuant to outstanding options, (b) the
Company's Nonemployee Director Stock Option Plan (the "Nonemployee Plan") under
which, as of the close of business on the date hereof, 4,167 Shares were
issuable and reserved for issuance pursuant to outstanding options, (c) the
warrant issued September 18, 1989 by the Company to GE Capital Corporation (the
"GE Warrant") under which, as of the close of business on the date hereof,
111,541 Shares were issuable and reserved for issuance, and (d) the warrants
issued November 2, 1993 by the Company originally to Indosuez CM II, Inc. under
which, as of the close of business on the date hereof, 677,626 Shares were
issuable and reserved for issuance (together with the GE Warrant, the
"Warrants"). Except as set forth in Section 6.3 or in Schedule 6.3(b) to the
Company Disclosure Schedule, there are no obligations, contingent or otherwise,
of the Company or any of its subsidiaries (i) to repurchase, redeem or otherwise
acquire any shares of the capital stock of the Company, or the capital stock or
other equity interests of any subsidiary of the Company or (ii) (other than
advances to subsidiaries in the ordinary course of business) to provide material
funds to, or make any material investment in (in the form of a loan, capital
contribution or otherwise), or provide any guarantee with respect to the
obligations of, any subsidiary of the Company or any other person. Except as
described in Schedule 6.3(b) to the Company Disclosure Schedule, neither the
Company nor any of its subsidiaries (x) directly or indirectly owns, (y) has
agreed to purchase or otherwise acquire or (z) holds any interest convertible
into or exchangeable or exercisable for, 5% or more of the capital stock of any
corporation, partnership, joint venture or other business association or entity
(other than the subsidiaries of the Company set forth in Schedule 6.1 of the
Company Disclosure Schedule). Except as set forth in Schedule 6.3(b) of the
Company Disclosure Schedule and except for any agreements, arrangements or
commitments between the Company and its subsidiaries or between such
subsidiaries, there are no agreements, arrangements or commitments of any
character (contingent or otherwise) pursuant to which any person is or may be
entitled to receive any payment based on the revenues or earnings, or calculated
in accordance therewith, of the Company or any of its subsidiaries. There are no
voting trusts, proxies or other agreements or understandings to which the
Company or any of its subsidiaries is a party or by which the Company or any of
its subsidiaries is bound with respect to the voting of any shares of capital
stock of the Company or any of its subsidiaries.
(c) The Company has delivered to Purchaser complete and correct
copies of the Stock Option Plans and the Nonemployee Plan and each form of
option issued thereunder and the Warrants, including all amendments thereto, and
the Company has delivered a complete and correct list of all outstanding awards
under the Stock Option Plans and the Nonemployee Plan, setting forth as of the
date hereof (i) the number and type of awards outstanding, (ii) the exercise
price of each outstanding option, (iii) the number of options exercisable, and
(iv) assuming no amendment or waiver of the terms thereof, the number of options
which will become exercisable, and the number of shares of restricted stock with
respect to which the restrictions will lapse, on account of the Tender Offer,
the Merger or any other transaction contemplated hereby.
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Section 6.4 Authority. The Company has all requisite corporate power
and authority to execute and deliver this Agreement, to perform its obligations
hereunder and to consummate the transactions contemplated hereby (subject to the
approval of the Merger, this Agreement and the transactions contemplated hereby
by the affirmative vote of the holders of a majority of the outstanding shares
of Voting Common Stock of the Company ("Stockholder Approval")). The Company's
Board of Directors has unanimously recommended approval and adoption of this
Agreement by the Company's stockholders entitled to vote on the Merger. Subject
to Stockholder Approval, the execution and delivery of this Agreement by the
Company and the consummation by the Company of the transactions contemplated
hereby have been duly authorized by all necessary corporate action and no other
corporate proceedings on the part of the Company are necessary to authorize this
Agreement or to consummate the transactions contemplated hereby. This Agreement
has been duly executed and delivered by the Company and is a valid and binding
obligation of the Company, enforceable against it in accordance with its terms.
Section 6.5 No Conflict; Required Filings and Consents.
(a) The execution and delivery of this Agreement by the
Company does not, and the consummation of the transactions contemplated hereby
will not (i) conflict with or violate the charter or By-Laws, or the equivalent
organizational documents, in each case as amended or restated, of the Company or
any of its subsidiaries, (ii) in any material respect, conflict with or violate
any Laws applicable to the Company or any of its subsidiaries or by which any of
their respective properties is bound or subject or (iii) except as described in
Schedule 6.5 to the Company Disclosure Schedule, result in any breach of or
constitute a default (or an event that with notice or lapse of time or both
would become a default) under, or give to others any rights of termination,
amendment, acceleration or cancellation of, or require payment under, or result
in the creation of a lien or encumbrance on any of the properties or assets of
the Company or any of its subsidiaries pursuant to, any note, bond, mortgage,
indenture, contract, agreement, lease, license, permit, franchise or other
instrument or obligation to which the Company or any of its subsidiaries is a
party or by or to which the Company or any of its subsidiaries or any of their
respective properties is bound or subject, except for any such conflicts,
violations, breaches, defaults, events, rights of termination, amendment,
acceleration or cancellation, payment obligations or liens or encumbrances
described in clauses (ii) or (iii) that would not have a Company Material
Adverse Effect.
(b) The execution and delivery of this Agreement by the
Company does not, and consummation of the transactions contemplated hereby will
not, require the Company to obtain any consent, license, permit, approval,
waiver, authorization or order of, or to make any filing with or notification to
any Governmental Entities, except (i) for applicable requirements, if any, of
the Securities Act, the Exchange Act, state securities or Blue Sky Laws, and the
Hart-Scott-Rodino Act, and the filing and recordation of appropriate merger
documents as required by the GCL and (ii) where the failure to obtain such
consents, licenses, permits, approvals, waivers, authorizations or orders, or to
make such filings or notifications, would not,
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either individually or in the aggregate, prevent the Company from performing, in
any material respect, its obligations under this Agreement and would not have a
Company Material Adverse Effect.
Section 6.6 Permits; Compliance. Each of the Company and its
subsidiaries is in possession of all franchises, grants, authorizations,
licenses, permits, easements, variances, exemptions, consents, certificates,
approvals and orders (other than any thereof covered by Section 6.12) necessary
to own, lease and operate its properties and to carry on its business as it is
now being conducted (collectively, the "Company Permits"), and there is no
action, proceeding or investigation pending or, to the knowledge of the Company,
threatened regarding suspension or cancellation of any of the Company Permits,
except where the failure to possess, or the suspension or cancellation of, such
Company Permits, or such action, proceeding or investigation, would not have a
Company Material Adverse Effect. Neither the Company nor any of its subsidiaries
is in conflict with, or in default or violation of (a) any Law applicable to the
Company or any of its subsidiaries or by or to which any of their material
respective properties is bound or subject or (b) any of the Company Permits,
except for any such conflicts, defaults or violations which would not have a
Company Material Adverse Effect. During the period commencing on June 30, 1991
and ending on the date hereof, neither the Company nor any of its subsidiaries
has received from any Governmental Entity any written notification, asserting
that the Company was in possible default or violation of any Laws, except as
described in Schedule 6.6 to the Company Disclosure Schedule, and except for
defaults or violations that would not have a Company Material Adverse Effect.
Section 6.7 Reports; Financial Statements.
(a) Since June 30, 1991, the Company and its subsidiaries
have filed all forms, reports, statements and other documents required to be
filed with (A) the SEC including, without limitation, (1) all Annual Reports on
Form 10-K, (2) all Quarterly Reports on Form 10-Q, (3) all proxy statements
relating to meetings of stockholders (whether annual or special), (4) all
Current Reports on Form 8-K and (5) all other reports, schedules, registration
statements or other documents (collectively referred to as the "Company SEC
Reports") and (B) any applicable state securities authorities, except where the
failure to file such documents would not have a Company Material Adverse Effect
(all such forms, reports, statements and other documents being referred to
herein, collectively, as the "Company Reports"). The Company Reports, including
all Company Reports filed after the date of this Agreement and prior to the
Effective Date, (i) were or will be prepared in all material respects in
accordance with the requirements of applicable Law (including, with respect to
the Company SEC Reports, the Securities Act and the Exchange Act, as the case
may be, and the rules and regulations of the SEC thereunder applicable to such
Company SEC Reports) and (ii) did not at the time they were filed, or will not
at the time they are filed, 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. Notwithstanding this Section 6.7(a), the Company
shall not be deemed to represent or warrant the preparation or accuracy of any
form, report, statement, document or other information
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included in the Company Reports that were provided to the Company for inclusion
therein by a third party.
(b) Each of the consolidated financial statements (including,
in each case, any related notes thereto) contained in the Company SEC Reports
filed since June 30, 1991, (i) have been or will be prepared in accordance with
the published rules and regulations of the SEC and U.S. generally accepted
accounting principles ("GAAP") applied on a consistent basis throughout the
periods involved (except (A) to the extent required by changes in U.S. GAAP and
(B) with respect to the Company SEC Reports filed prior to the date of this
Agreement, as may be indicated in the notes thereto) and (ii) fairly present or
will fairly present the consolidated financial position of the Company and its
subsidiaries as of the respective dates thereof and the consolidated results of
operations and cash flows for the periods indicated (including reasonable
estimates of normal and recurring year-end adjustments), except that any
unaudited interim financial statements were or will be subject to normal and
recurring year-end adjustments.
Section 6.8 Absence of Certain Changes or Events. Except as
disclosed in the Company SEC Reports filed prior to the date of this Agreement
or as contemplated by this Agreement or as set forth in Schedule 6.8 of the
Company Disclosure Schedule, since June 30, 1994 the Company and its
subsidiaries have conducted their respective businesses only in the ordinary
course and there has not been: (i) any damage, destruction or loss (whether or
not covered by insurance) with respect to any assets of the Company or any of
its subsidiaries which would have a Company Material Adverse Effect; (ii) any
material change by the Company or its subsidiaries in their accounting methods,
principles or practices; (iii) except for dividends by a subsidiary to the
Company or another subsidiary, any declaration, setting aside or payment of any
dividends or distributions in respect of shares of the Company's capital stock
or the shares of stock of, or other equity interests in, any subsidiary, or any
redemption, purchase or other acquisition by the Company or any of its
subsidiaries of any of the Company's securities or any of the securities of any
subsidiary; (iv) except in the ordinary course of business and consistent with
past practice, any increase in the benefits under, or the establishment or
amendment of, any bonus, insurance, severance, deferred compensation, pension,
retirement, profit sharing, stock purchase or other employee Plan (as defined in
Section 6.10) or any increase in the compensation payable or to become payable
to directors, officers or employees of the Company or its subsidiaries, (v) any
grant of stock options other than grants prior to March 31, 1995; (vi) any
revaluation by the Company or any of its subsidiaries of any of their assets,
including the writing down of the value of inventory or the writing down or off
of notes or accounts receivable, other than in the ordinary course of business;
(vii) any entry by the Company or any of its subsidiaries into any commitment or
transaction material to the Company and its subsidiaries, taken as a whole
(other than this Agreement and the transactions contemplated hereby); (viii)
except pursuant to the Harris Loan, any material increase in indebtedness for
borrowed money; or (ix) a Company Material Adverse Effect other than a Company
Material Adverse Effect that is caused by changes in the market price of raw
materials, feedstocks or finished goods.
Section 6.9 Absence of Litigation. Except as disclosed in the
Company SEC Reports filed prior to the date of this Agreement or as set forth in
Schedule 6.9 to the Company
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Disclosure Schedule, there is no claim, action, suit, litigation, proceeding,
arbitration or, to the knowledge of the Company, investigation of any kind, at
law or in equity (including actions or proceedings seeking injunctive relief),
pending or, to the knowledge of the Company, threatened against the Company or
any of its subsidiaries or any properties or rights of the Company or any of its
subsidiaries (except for claims, actions, suits, litigation, proceedings,
arbitrations or investigations which would not reasonably be expected to have a
Company Material Adverse Effect), and neither the Company nor any of its
subsidiaries is subject to any continuing order of, consent decree, settlement
agreement or other similar written agreement with any Governmental Entity, or
any judgment, order, writ, injunction, decree or award of any Government Entity
or arbitrator, including, without limitation, cease and desist or other orders,
except for matters which would not have a Company Material Adverse Effect.
Section 6.10 Employee Plans; Labor Matters.
(a) Schedule 6.10 of the Company Disclosure Schedule sets
forth, and the Company has made available to Purchaser true and correct copies
of, (i) all employment agreements with officers of the Company or its
subsidiaries and all increases in their compensation and benefits since December
31, 1994; (ii) all agreements with consultants of the Company or its
subsidiaries obligating the Company or any subsidiary to make annual cash
payments in an amount exceeding $50,000; (iii) all non-competition agreements
with the Company or a subsidiary executed by officers of the Company; and (iv)
all material plans, programs, agreements and other arrangements of the Company
or its subsidiaries with or relating to its employees.
(b) Except for the plans and arrangements set forth on
Schedule 6.10 to the Company Disclosure Schedule (the "Scheduled Plans"),
neither the Company nor any member of the Controlled Group now maintains, has
ever maintained or contributed to, or has any plans or commitments for, any
employee Plans (as such term is defined in the Employee Retirement Income
Security Act of 1974, as amended ("ERISA") ss. 3(3)) or any other retirement,
pension, stock option, stock appreciation right, profit sharing, incentive
compensation, deferred compensation, savings, thrift, vacation pay, severance
pay, or other employee compensation or Plan, agreement, practice, or
arrangement, whether written or unwritten, whether or not legally binding
(collectively, the "Plans"). For purposes of this Agreement, "Controlled Group"
means a controlled or affiliated group within the meaning of the Internal
Revenue Code of 1986, as amended ("Code") ss. 414(b), (c), (m), or (o) of which
the Company is a member. The Company has made available to Purchaser correct and
complete copies of all Scheduled Plans (including a detailed written description
of any Scheduled Plan that is unwritten, including a description of eligibility
criteria, participation, vesting, benefits, funding arrangements and assets and
any other provisions relating to the Company) and, with respect to each
Scheduled Plan, a copy of each of the following: (i) the most recent favorable
determination letter, (ii) materials submitted to the Internal Revenue Service
in support of a pending determination letter request, (iii) the most recent
letter issued by the Internal Revenue Service recognizing tax exemption, (iv)
each insurance contract, trust agreement, or other funding vehicle, (v) the most
recently filed Forms 5500 plus all schedules and attachments, and (vi) each
summary plan description or other general
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explanation or communication distributed or otherwise provided to employees with
respect to each Scheduled Plan that describes the terms of the Scheduled Plan.
(c) Each Scheduled Plan has at all times been in compliance,
in form and in operation, in all material respects with all applicable
requirements of law and regulations, including without limitation ERISA. Each
Scheduled Plan that is intended to be a qualified plan has received a favorable
determination letter from the Internal Revenue Service; nothing has occurred
since the date of the most recent favorable determination letter that would
cause the loss of the Scheduled Plan's qualification; and each such Scheduled
Plan has at all times been in compliance, in form and in operation, in all
material respects with the applicable requirement of the Code and the applicable
Treasury Regulations.
(d) Neither the Company nor any party in interest (as such
term is defined in ERISA ss. 3(14)) nor any disqualified person (as such term is
defined in Code ss. 4975) has engaged in any prohibited transaction within the
meaning of ERISA ss. 406 or Code ss. 4975 that would have a Company Material
Adverse Effect.
(e) All contributions to Scheduled Plans for all periods
ending prior to the Effective Date (including periods from the first day of the
current plan year to the Effective Date) will be made prior to or accrued as of
the Effective Date by the Company in accordance with past practice.
(f) All insurance premiums with respect to each Scheduled
Plan have been paid in full or accrued, subject only to normal retrospective
adjustments in the ordinary course for policy years or other applicable policy
periods ending on or before the Effective Date.
(g) Neither the Company nor any member of the Controlled
Group has any liability for failure to comply with ERISA or the Code for any
action or failure to act in connection with the administration or investment of
any Scheduled Plan, except where such liability would not have a Company
Material Adverse Effect.
(h) Neither the Company nor any member of the Controlled
Group has ever maintained, contributed to, or been obligated to contribute to
any plan that is subject to Title IV of ERISA or the minimum funding
requirements of Code ss. 412. Neither the Company nor any member of the
Controlled Group has ever contributed to or been obligated to contribute to a
multiemployer plan (as such term is defined in ERISA ss. 3(37)).
(i) With respect to each Scheduled Plan and Plan, there are
no material actions, suits, grievances, arbitrations or other manner of
litigation or material claims, with respect to any Scheduled Plan (except for
routine claims for benefits made in the ordinary course of plan administration
for which plan administrative procedures have not been exhausted) pending or, to
the Company's knowledge, threatened against or with respect to any Scheduled
Plan or Plan, any plan sponsor, or any fiduciary (as such term is defined in
ERISA ss. 3(21)) of
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such Scheduled Plan or Plan, other than actions, suits, grievances, claims,
arbitrations or other manner of litigation that would not have a Company
Material Adverse Effect.
(j) Except as set forth in Schedule 6.10 to the Company
Disclosure Schedule, neither the Company nor any member of the Controlled Group
has any liability for post-retirement welfare benefits except for the
continuation coverage required by Part 6 of Title I of ERISA.
(k) Neither the Company nor any of its subsidiaries is a
party to any collective bargaining or other labor union contracts. No collective
bargaining agreement is being negotiated by the Company or any of its
subsidiaries. To the Company's knowledge, there is no pending or threatened
labor dispute, strike or work stoppage against the Company or any of its
subsidiaries which may materially interfere with the respective business
activities of the Company or any of its subsidiaries. To the knowledge of the
Company, none of the Company, any of its subsidiaries or any of their respective
representatives or employees has committed any unfair labor practices in
connection with the operation of the respective businesses of the Company or its
subsidiaries and, to the knowledge of the Company, there is no pending or
threatened charge or complaint against the Company or any of its subsidiaries by
the National Labor Relations Board or any comparable state agency that would
have a Company Material Adverse Effect.
Section 6.11 Taxes. The Company has prepared and duly filed (and to
its knowledge has done so accurately and correctly) all material federal, state,
county and local income, franchise, use, real property and personal property tax
returns and reports (including all attached statements and schedules) required
to be filed as of the date hereof with respect to the Company and its
subsidiaries and has duly paid, withheld or reserved for all taxes, penalties
and other governmental charges required to be paid that have been assessed or
levied against or upon the Company and its subsidiaries or any of their
properties, assets, income, franchises, licenses or sales including without
limitation income, gross receipt and property taxes. To the extent that any such
taxes relate to periods on or prior to June 30, 1994, such taxes have either
been paid or are reflected as a liability on the Company's June 30, 1994 audited
financial statements. If not paid, the Company is contesting such amount in good
faith by appropriate proceedings. In the event the Company is contesting such
amounts in good faith, the Company has set aside on its books adequate reserves
in accordance with U.S. GAAP with respect thereto and all of such matters
involving an amount in excess of $100,000 are described in Schedule 6.11 to the
Company Disclosure Schedule. Except as set forth in Schedule 6.11 to the Company
Disclosure Schedule, the Company does not know of any proposal by any taxing
authority for material additional taxes or assessments against or upon the
Company. Except as set forth in Schedule 6.11 to the Company Disclosure
Schedule, to the knowledge of the Company all monies required to be withheld by
the Company from employees for income taxes, social security taxes and
unemployment insurance taxes have been collected or withheld or either paid to
the respective governmental agencies or set aside in cash for such purpose.
Except as set forth in Schedule 6.11 to the Company Disclosure Schedule, the
Company has not entered into any agreement for the extension of time for the
assessment of any tax or tax delinquency. The Company has made
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available to Purchaser an accurate, correct and complete copy of each return or
statement filed by, on behalf of or including the Company for federal income tax
purposes or state and local income or franchise tax purposes for the tax years
of the Company ended June 30, 1992, June 30, 1993 and June 30, 1994. The Company
is not subject to any joint venture, partnership or other arrangement or
contract that is treated as a partnership for federal income tax purposes,
except for NuTec Mineral & Chemical Company. The net operating losses, net
operating loss carry forwards and other tax attributes of the Company as shown
in the federal corporate income tax return of the Company for the year ended
June 30, 1994 are not subject to any limitation under Code Sections 381, 382,
383 or 384, or any other provision of the Code or the federal consolidated
return regulations (or any predecessor provision of any Code section or the
regulations), and, to the knowledge of the Company, no event has occurred since
June 30, 1994 that would prevent the Company from utilizing these net operating
losses, net operating loss carry forwards or other tax attributes if it had
sufficient income. For purposes of the prior sentence "any limitation" shall not
include the specific tax issues regarding the Company's net operating losses
that have been raised by the Internal Revenue Service in written communications
to the Company that have been provided to the Purchaser.
Section 6.12 Environmental Matters. Except for matters disclosed in
the Company SEC Reports or Schedule 6.12 to the Company Disclosure Schedule and
except for matters that would not result in a Company Material Adverse Effect,
to the knowledge of the Company, (i) the properties, operations and activities
of the Company and its subsidiaries are in compliance with all applicable
Environmental Laws; (ii) the Company and its subsidiaries and the properties and
operations of the Company and its subsidiaries are not subject to any existing,
pending or threatened action, suit, investigation, inquiry or proceeding by or
before any governmental authority under any Environmental Law and neither the
Company nor its subsidiaries have received any notice that they are responsible
or potentially responsible for clean up of any property; (iii) all notices,
permits, licenses, or similar authorizations, if any, required to be obtained or
filed by the Company or any of its subsidiaries under any Environmental Law in
connection with any aspect of the business of the Company or its subsidiaries,
including without limitation those relating to the treatment, storage, disposal
or release of a hazardous substance, have been duly obtained or filed and the
Company and its subsidiaries are in compliance, in all material respects, with
the terms and conditions of all such notices, permits, licenses and similar
authorizations; (iv) the Company and its subsidiaries have satisfied and are
currently in compliance with all financial responsibility requirements
applicable to their operations and imposed by any governmental authority under
any Environmental Law, and the Company and its subsidiaries have not received
any notice of material noncompliance with any such financial responsibility
requirements; (v) there are no physical or environmental conditions existing on
any property of the Company or its subsidiaries or resulting from the Company's
or such subsidiaries' operations or activities, past or present, at any
location, that would be reasonably likely to give rise to any on-site or
off-site remedial obligations imposed on the Company or any of its subsidiaries
under any Environmental Laws; (vi) since the effective date of the relevant
requirements of applicable Environmental Laws and to the extent required by such
applicable Environmental Laws, all hazardous substances and wastes generated by
the Company and its subsidiaries have been handled and stored in compliance with
Environmental Laws, transported
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only by carriers authorized under Environmental Laws to transport such
substances and wastes, and disposed of only at treatment, storage, and disposal
facilities authorized under Environmental Laws to treat, store or dispose of
such substances and wastes; (vii) there has been no exposure of any person or
property to hazardous substances or any pollutant or contaminant, nor has there
been any release of hazardous substances, or any pollutant or contaminant into
the environment by the Company or its subsidiaries or in connection with their
properties or operations that could reasonably be expected to give rise to any
claim against the Company or any of its subsidiaries for costs, damages or
compensation; (viii) the Company and its subsidiaries have made available to
Purchaser or its agents all internal and external environmental audits and
studies and all correspondence on substantial environmental matters or
liabilities in the possession of the Company or its subsidiaries relating to any
of the current or former properties or operations of the Company and its
subsidiaries (except that in the case of any written materials for which the
Company asserts an attorney client privilege, the Company shall provide
Purchaser with a list of such materials and a summary of their contents, and the
Company shall cooperate with Purchaser to provide Purchaser with access to such
materials if such access can be provided without violation of the attorney
client privilege); and (ix) neither the Company nor its subsidiaries are subject
to or have entered into any agreement requiring that they pay to, defend,
indemnify or hold harmless any person for or against any environmental
liabilities and costs other than agreements disclosed in the Company SEC Reports
and the Harris Loan. For purposes of this Agreement, the term "Environmental
Laws" shall mean any and all laws, statutes, ordinances, rules, regulations, or
orders of any Governmental Entity pertaining to health or the environment
currently in effect in any and all jurisdictions in which the party in question
and its subsidiaries own property or conduct business, including without
limitation, the Clean Air Act, as amended, the Comprehensive Environmental,
Response, Compensation, and Liability Act of 1980 ("CERCLA"), as amended, the
Federal Water Pollution Control Act, as amended, the Occupational Safety and
Health Act of 1970, as amended, the Resource Conservation and Recovery Act of
1976 ("RCRA"), as amended, the Safe Drinking Water Act, as amended, the Toxic
Substances Control Act, as amended, the Hazardous Materials Transportation Act,
as amended, any state laws implementing the foregoing federal laws, and any
similar state laws, and all other federal, state and local environmental
conservation or protection laws. For purposes of this Agreement, the terms
"hazardous substance" shall mean hazardous substance as defined in CERCLA,
petroleum, and any other chemical or material regulated under any Environmental
Laws, "release" shall have the meanings specified in CERCLA, and "disposal"
shall have the meaning specified in RCRA; provided, however, that to the extent
the current laws of the state in which the property is located have established
a meaning for "hazardous substance," "release," or "disposal" that is broader
than that specified in either CERCLA or RCRA, such broader meaning shall apply.
Section 6.13 Delaware Law. The Board of Directors of the Company has
approved the Tender Offer, the Merger and this Agreement, and such approval is
sufficient to render inapplicable the restrictions on business combinations set
forth in Section 203 of the GCL, to the Tender Offer, the Merger, this
Agreement, the transactions contemplated by this Agreement and any additional
acquisitions of the Shares by Purchaser or Acquisition.
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Section 6.14 Inventory; Accounts Receivable. The inventory of the
Company and its subsidiaries consists of raw materials, work in process and
finished goods and supplies, all of which is merchantable and fit, in all
material respects, for the purpose for which it was procured or manufactured,
and none of which is slow-moving, obsolete, damaged or defective, subject only
to the reserve for inventory writedown provided for in the Company's March 31,
1995 financial statements, as adjusted for operations and transactions through
the date hereof in accordance with the past custom and practice of the Company
and its subsidiaries. All notes and accounts receivable of the Company and its
subsidiaries are reflected properly on their books and records in all material
respects.
Section 6.15 Insurance. The Company and each of its subsidiaries are
currently insured for reasonable amounts against such risks as companies engaged
in a similar business would, in accordance with good business practice,
customarily be insured.
Section 6.16 Properties. Except for liens and encumbrances (a)
referred to in the reports described in Schedule 6.16 to the Company Disclosure
Schedule, (b) granted by a subsidiary of the Company to the Company or another
subsidiary, (c) granted pursuant to the Harris Loan, or (d) arising in the
ordinary course of business and for properties and assets disposed of in the
ordinary course of business after June 30, 1994, the Company and its
subsidiaries have defensible title or leasehold interest, free and clear of all
liens, the existence of which would have a Company Material Adverse Effect, to
all their material properties and assets, whether tangible or intangible, real,
personal or mixed. All buildings, and all fixtures, equipment and other property
and assets which are material to its business on a consolidated basis, held
under leases by any of the Company or its subsidiaries are, to the Company's
knowledge, held under valid instruments enforceable by the Company or its
subsidiaries in accordance with their respective terms. In all material
respects, the Company's and its subsidiaries' plant and equipment have been
maintained consistently with industry standards and are in good and serviceable
condition, reasonable wear and tear excepted.
Section 6.17 Certain Contracts and Restrictions. The Company SEC
Reports or Schedule 6.17 to the Company Disclosure Schedule list, as of the date
of this Agreement, each agreement, contract or commitment (other than any
thereof entered into in the ordinary course of business) of a duration in excess
of six months to which the Company or any of its subsidiaries is a party or by
which the Company or any of its subsidiaries is bound pursuant to which the
Company or its subsidiaries paid consideration during the previous twelve months
in excess of $1,000,000, or which is otherwise material to the financial
condition or results of operations of the Company and its subsidiaries, taken as
a whole. The Amendment to Ore Purchase Agreement, effective as of June 1, 1995,
between Rhone-Poulenc, Inc. and the Company remains in effect and has not been
amended or otherwise modified.
Section 6.18 Information Supplied. Without limiting any of the
representations and warranties contained herein, no representation or warranty
of the Company set forth herein contains any untrue statement of material fact,
or, at the date thereof, omits to state a material
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fact necessary in order to make the statements contained therein, in light of
the circumstances under which such statements are made, not misleading.
Section 6.19 Opinion of Financial Advisor. The Company has received
the opinion of PaineWebber Incorporated to the effect that, as of August 8,
1995, the consideration to be received by the holders of the Shares (other than
stockholders of the Company affiliated with Weiss, Peck & Greer) in the Tender
Offer and/or the Merger is fair, from a financial point of view, to such
holders.
Section 6.20 Futures Trading and Fixed Price Exposure. Except as set
forth in Schedule 6.20 of the Company Disclosure Schedule and except as
contemplated by the Harris Loan, none of the Company or any of its subsidiaries
engages in any futures or options trading or is a party to any price swaps,
hedges, futures or similar investments.
Section 6.21 Intellectual Property. Schedule 6.21 to the Company
Disclosure Schedule contains a complete list as of the date of this Agreement of
all material (i) patents owned or used by the Company or patent applications
filed by the Company, (ii) trademarks, service marks, tradenames, Company
copyrights, or applications therefor, owned or used by the Company. Schedule
6.21 of the Company Disclosure Schedule lists all officers of the Company who
have executed technology rights agreements with the Company. To the Company's
knowledge, no patents, patent applications, trademarks, trademark applications,
service marks, service mark applications, trade secrets, tradenames, copyrights,
licenses, inventions, drawings, designs, customer lists, proprietary know how or
information or other rights with respect thereto (collectively referred to as
"Proprietary Rights"), are necessary to or presently being used in the business
of the Company other than those which have been lawfully obtained or applied
for; and to the Company's knowledge, the operations of the Company do not in any
material respect conflict with or infringe on the rights of any third party. Any
person who has asserted that the Company's operations conflict with or infringe
upon any of such person's rights, or any Proprietary Rights owned, possessed or
used by such other person has been disclosed.
Section 6.22 Contributions, Etc. The Company annually inquires of at
least its executive officers concerning conduct of the business including use of
funds for unlawful contributions, gifts, entertainment, or other unlawful
expenses relating to political activities unlawful payments to foreign or
domestic government officials, political parties, or campaigns and no material
violation or unlawful activity has been identified.
Section 6.23 Easements. The business of the Company and its
subsidiaries has been operated in a manner that does not violate the material
terms of any easements, rights of way, permits, servitudes, licenses, leasehold
estates and similar rights relating to real property used by the Company and its
subsidiaries in such business (collectively, "Easements") material to such
business. All material Easements are valid and enforceable and grant the rights
purported to be granted thereby and all rights necessary thereunder for the
current operation of such business.
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Section 6.24 Information. Neither (a) the Proxy Statement or
Information Statement (other than information provided by Purchaser or
Acquisition, as to which no representation is made), nor (b) any information
provided by the Company for inclusion in any amendments or supplements to the
Offer Documents, nor (c) the Schedule 14D-9 to be filed by the Company in
connection with the Tender Offer and any amendments thereof or supplements
thereto will contain, at the respective times such documents are filed with the
SEC, and, in the case of the Proxy Statement or Information Statement or any
amendments thereof or supplements thereto, at the time of the meeting of
stockholders to be held in connection with the Merger, if required, or at the
time of mailing to stockholders, as the case may be, any untrue statement of a
material fact or will omit to state any material fact required to be stated
therein or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. The Schedule 14D-9,
the Proxy Statement or Information Statement, as the case may be, and any
amendments of or supplements to any of the foregoing, will comply as to form in
all material respects with the provisions of the Exchange Act.
ARTICLE VII
COVENANTS
Section 7.1 Conduct of Business by the Company Pending the Merger.
Subsequent to the date hereof and prior to the Effective Date, unless Purchaser
shall otherwise agree in writing or unless the failure to comply with any of the
following covenants results from actions by the Board of Directors of the
Company which are approved by a majority of the directors appointed by Purchaser
pursuant to Section 7.11 hereof and except as otherwise specifically
contemplated by this Agreement:
(a) the businesses of the Company and its subsidiaries shall
be conducted only in, and neither the Company nor any of its subsidiaries shall
take any action except in, the ordinary and usual course of business.
(b) the Company shall not
(1) (i) increase the compensation payable to or to become
payable to any director or executive officer, except for increases in
salary or wages payable or to become payable in the ordinary course of
business and consistent with past practice; (ii) grant any severance or
termination pay (other than pursuant to the normal severance policy of
the Company or its subsidiaries as in effect on the date of this
Agreement) to, or enter into or amend any employment or severance
agreement with, any director, officer or employee; (iii) establish,
adopt or enter into any new employee Plan or arrangement; or (iv)
except as may be required by applicable law and actions that are not
inconsistent with the provisions of Section 6.10 of this Agreement,
amend, or take any other actions (other than the acceleration of
vesting or waiving of performance criteria permitted pursuant to the
Plans upon a change in control of the Company) with respect to, any of
the Plans;
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(2) declare or pay any dividend on, or make any other
distribution in respect of, outstanding shares of capital stock, except
for dividends by a subsidiary to the Company or another subsidiary;
(3) (i) except as described in Schedule 7.1(b)(3) to the
Company Disclosure Schedule, redeem, purchase or otherwise acquire any
shares of its or any of its subsidiaries' capital stock or any
securities or obligations convertible into or exchangeable for any
shares of its or its subsidiaries' capital stock (other than any such
acquisition directly from any wholly owned subsidiary of the Company in
exchange for capital contributions or loans to such subsidiary), or any
options, warrants or conversion or other rights to acquire any shares
of its or its subsidiaries' capital stock or any such securities or
obligations (except in connection with the exercise of outstanding
stock options or Warrants in accordance with their terms); (ii) effect
any reorganization or recapitalization; or (iii) split, combine or
reclassify any of its or its subsidiaries' capital stock or issue or
authorize or propose the issuance of any other securities in respect
of, in lieu of or in substitution for, shares of its or its
subsidiaries' capital stock;
(4) (i) except as described in Schedule 7.1(b)(4) to the
Company Disclosure Schedule, issue, deliver, award, grant or sell, or
authorize or propose the issuance, delivery, award, grant or sale
(including the grant of any security interests, liens, claims, pledges,
limitations in voting rights, charges or other encumbrances) of, any
shares of any class of its or its subsidiaries' capital stock
(including shares held in treasury), any securities convertible into or
exercisable or exchangeable for any such shares, or any rights,
warrants or options to acquire any such shares (except as permitted for
the issuance of shares upon the exercise of stock options outstanding
as of the date of this Agreement) other than (a) the conversion of
Voting Common Stock and Nonvoting Common Stock as provided in paragraph
4(D) of Section 2 of Article IV of the Company's Certificate of
Incorporation, (b) the exercise of the Warrants or (c) the exercise of
options under the Stock Option Plans or the Nonemployee Plan; or (ii)
amend or otherwise modify the terms of any such rights, warrants or
options the effect of which shall be to make such terms more favorable
to the holders thereof;
(5) acquire or agree to acquire, by merging or consolidating
with, by purchasing an equity interest in or a portion of the assets
of, or by any other manner, any business or any corporation,
partnership, association or other business organization or division
thereof, or otherwise acquire or agree to acquire any assets of any
other person (other than the purchase of assets from suppliers or
vendors in the ordinary course of business) in each case which are
material, individually or in the aggregate, to the Company and its
subsidiaries, taken as a whole;
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(6) sell, lease, exchange, mortgage, pledge, transfer or
otherwise dispose of, or agree to sell, lease, exchange, mortgage,
pledge, transfer or otherwise dispose of, any of its material assets or
any material assets of any of its subsidiaries, except for dispositions
in the ordinary course of business and consistent with past practice;
(7) solicit, initiate or knowingly encourage any inquiries,
discussions or negotiations with any person (other than Purchaser or
Acquisition) concerning any Acquisition Proposal (as defined in Section
9.1(c)) or solicit, initiate or knowingly encourage any effort or
attempt by any other person to do, make or seek an Acquisition Proposal
or, unless required in order for the Board of Directors of the Company
to comply with its fiduciary responsibilities, with a view to pursuing
an Acquisition Proposal with such person, engage in discussions or
negotiations with or disclose any nonpublic information relating to the
Company or any of its subsidiaries to such person or authorize or
permit any of the officers, directors or employees of the Company or
any of its subsidiaries or any investment banker, financial adviser,
attorney, accountant or other representative retained by the Company or
any of its subsidiaries to take any such action. The Company shall
immediately communicate to Purchaser in writing the terms of any
Acquisition Proposal which it may receive;
(8) adopt or propose to adopt any amendments to its charter
or By-Laws, which would alter the terms of its capital stock or would
have an adverse impact on the consummation of the transactions
contemplated by this Agreement;
(9) (i) change, in any material respect, any of its methods
of accounting in effect at June 30, 1995, or (ii) make or rescind any
express or deemed election relating to taxes, settle or compromise any
claim, action, suit, litigation, proceeding, arbitration,
investigation, audit or controversy relating to Taxes (except where the
amount of such settlements or controversies, individually or in the
aggregate, would not have a Company Material Adverse Effect), or change
any of its methods of reporting income or deductions for federal income
tax purposes from those employed in the preparation of the federal
income tax returns for the taxable year ending June 30, 1994, except,
in each case, as may be required by Law or U.S. GAAP;
(10) other than as permitted by the Harris Loan, incur any
material obligation for borrowed money or purchase money indebtedness,
whether or not evidenced by a note, bond, debenture or similar
instrument;
(11) enter into any material arrangement, agreement or
contract with any third party (other than customers in the ordinary
course of business) that provides for an exclusive arrangement with
that third party or is substantially more restrictive on the Company or
substantially less advantageous to the
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Company than arrangements, agreements or contracts existing on the date
hereof unless such arrangement is entered into in the ordinary course
of business; or
(12) agree in writing or otherwise to do any of the
foregoing.
Section 7.2 Stockholders' Meeting and Proxy Statement. Except as
provided in Section 9.1 of this Agreement, the Company shall take all action
necessary in accordance with applicable law and its Certificate of Incorporation
and By-Laws to convene a meeting of the holders of the shares of Voting Common
Stock of the Company as promptly as practicable after the expiration of the
Tender Offer to consider and vote upon the adoption of the Merger Agreement, if
such stockholder approval is required by applicable law. In connection with any
stockholders' meeting, if required, the Company shall prepare and file the Proxy
Statement with the SEC and Purchaser shall furnish all information concerning
Purchaser and Acquisition as the Company may reasonably request in connection
with the preparation of the Proxy Statement. At any stockholders' meeting,
Purchaser agrees to vote or cause all of the Shares acquired pursuant to the
Tender Offer or otherwise by Acquisition or any affiliate of Purchaser to be
voted in favor of the Merger. The Company shall in the Proxy Statement, through
its Board of Directors, recommend that the Company's stockholders adopt the
Merger Agreement, if such vote is required, except to the extent that the Board
of Directors shall have withdrawn or modified its approval or recommendation of
the Tender Offer or the Merger Agreement as contemplated by Section 9.1(c).
Section 7.3 Certain Filings and Consents. Purchaser, Acquisition and
the Company shall (a) cooperate with each other in determining whether any
filings are required to be made or consents, approvals, permits or
authorizations are required to be obtained under any federal or state law or
regulation or whether any consents, approvals or waivers are required to be
obtained from other parties to loan agreements or other contracts material to
the business of the Company and its subsidiaries taken as a whole in connection
with the consummation of the Merger and (b) actively assist each other in making
any such filings and obtaining any consents, permits, authorizations, approvals
or waivers that are required.
Section 7.4 Access. Upon reasonable notice, the Company shall, and
shall cause each of its subsidiaries to, afford Purchaser and Acquisition, and
their respective representatives, full access during normal business hours until
the Effective Date to all of its properties, books, contracts, commitments and
records (including, but not limited to, tax returns) and, during that period,
the Company and each of its subsidiaries shall furnish promptly to Purchaser and
Acquisition, and their respective representatives, all information concerning
its business, properties, assets, liabilities, operations, financial condition
and personnel as Purchaser or Acquisition may reasonably request; except that in
the case of all written materials for which the Company asserts an attorney
client privilege, the Company shall provide Purchaser with a list of such
materials and a summary of their contents, and the Company shall cooperate with
Purchaser to provide Purchaser with access to such materials if such access can
be provided without violation of the attorney client privilege. Purchaser and
Acquisition shall, and shall use their reasonable best efforts to cause their
consultants and advisors to, hold in confidence all such
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information until such time as such information is otherwise publicly available
(unless otherwise required to disclose such information by law), and if this
Agreement is terminated, Purchaser and Acquisition shall deliver to the Company
all documents, work papers and other material obtained by them from the Company
pursuant to the terms of this Agreement.
Section 7.5 Expenses.
(a) Except as provided in Section 9.2(a) of this Agreement,
all Expenses (as defined in Section 7.5(b) hereof) incurred by the parties
hereto shall be borne solely and entirely by the party which has incurred such
Expenses.
(b) "Expenses" as used in this Agreement shall include all
out-of-pocket expenses (including, without limitation, all fees and expenses of
counsel, accountants, investment bankers, experts and consultants to a party
hereto and its affiliates) incurred by a party or on its behalf in connection
with or related to the authorization, preparation, negotiation, execution and
performance of the Tender Offer, this Agreement, the preparation, printing,
filing and mailing of the Offer Documents, the Schedule 14D-1, the Schedule
14D-9, the Proxy Statement, the Information Statement, the solicitation of
stockholder approvals and all other matters related to the consummation of the
transactions contemplated hereby; provided, however, that "Expenses" shall not
include any fees of legal counsel or advisors of any stockholder of any party.
Section 7.6 Employee Stock Options; Warrant. On or before the
Effective Date of the Merger, the Company shall take all steps necessary for all
outstanding options granted under the Stock Option Plans and the Nonemployee
Plan to be converted by the Merger into the right to receive for each Share
covered thereby a cash amount equal to the excess of the Merger Price over the
option exercise price. Such amount shall be paid by Purchaser on the Effective
Date. On the Effective Date of the Merger, all rights under the Warrants shall
be converted by the Merger into the right to receive for each Share covered
thereby the right to receive the Merger Price upon payment to the Company of the
applicable Warrant exercise price. The Company shall take no action, or allow
any action to be taken, or fail to take any action, that would cause or result
in any acceleration of exercisability of outstanding options granted under the
Stock Option Plans and the Nonemployee Plan.
Section 7.7 Indemnification and Insurance. The Company shall
indemnify and hold harmless, and after the Effective Date, Purchaser and the
Surviving Corporation shall indemnify and hold harmless, each present employee,
agent, director or officer of the Company and the Company's subsidiaries (the
"Indemnified Parties") (a) with respect to any losses, claims, damages,
liabilities, costs and expenses, including reasonable attorneys' and expert
witness fees, arising out of or pertaining to any action or omission occurring
prior to the Effective Date (including any which arise out of or pertain to the
transactions contemplated by this Agreement) and (b) as provided in their
respective charters or by-laws in effect at the date hereof (to the extent
consistent with applicable law), which provisions shall survive the Merger and
shall
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continue in full force and effect for a period of not less than five years from
the Effective Date. In the event any claim or claims (a "Claim or Claims") are
asserted or made pursuant to the preceding sentence within such five-year
period, all rights to indemnification in respect of any such Claim or Claims
shall continue until disposition of any and all such Claims. In the event that a
claim is asserted against any Indemnified Party with respect to any matter to
which the indemnities contained in this section relate, the Indemnified Party
shall give prompt written notice to the Surviving Corporation setting forth in
reasonable detail the basis for such claim for indemnification. The Surviving
Corporation shall have the right, at its election, to take over the defense or
settlement of such claim at its own expense by giving prompt notice to that
effect to the Indemnified Party. If the Surviving Corporation shall have so
assumed the defense of any Claim, the Surviving Corporation shall be authorized
to consent to a settlement of, or the entry of any judgment arising from, any
such Claim, without the prior written consent of the Indemnified Party;
provided, however, that a condition to any such settlement shall be a complete
release of the Indemnified Party with respect to such Claim. If the Surviving
Corporation does not, within thirty days after receipt of the Indemnified
Party's notice of Claim, (x) give such notice to take over the defense of such
Claim and proceed to defend the Claim or (y) object to such Claim in writing to
the Indemnified Party, then the Indemnified Party shall have the right to
undertake the defense of such Claim and the Surviving Corporation shall pay to
the Indemnified Party the reasonable fees and expenses of its counsel. The
Surviving Corporation shall not be liable for any settlement effected without
its consent, which consent shall not be unreasonably withheld. The Indemnified
Party shall at all times have the right, at its option and expense, to
participate fully in, but not to control, any such defense. Without limiting the
foregoing, the Company and, after the Effective Date, the Surviving Corporation,
to the extent permitted by applicable law, will periodically advance reasonable
expenses as incurred with respect to the foregoing to the fullest extent
permitted under applicable law provided the person to whom the expenses are
advanced provides an undertaking to repay such advances if it is ultimately
determined that such person is not entitled to indemnification. In the event
that within five years from the Effective Date the Surviving Corporation shall
consolidate or merge with or into any other person or shall transfer all or
substantially all of its assets to any person and such person surviving such
consolidation or merger or to which such assets shall have been transferred is
not a Delaware corporation, the Surviving Corporation shall enter into an
agreement pursuant to which such person shall agree to provide indemnification
substantially equivalent to that required of the Company hereunder.
Section 7.8 Employee Benefits. For a period of two years from the
Effective Date, Purchaser and the Surviving Corporation agree to honor in
accordance with their terms the Company's employee benefit plans, in each case
to the extent the same have been delivered or made available to Purchaser for
review, provided however that Purchaser or the Surviving Corporation may amend
or terminate any such plan at any time after the Effective Date to the extent
the amendment or termination is deemed to be necessary or appropriate to comply
with the requirements of applicable law.
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Section 7.9 Maintenance of Financing. Purchaser and Acquisition
shall at all times have available to them funds sufficient to consummate the
Tender Offer and the Merger on the terms contemplated by this Agreement.
Section 7.10 Resignation of Directors. The Company will obtain the
resignations of all of the Continuing Directors of the Company on the Effective
Date.
Section 7.11 Board of Directors. Upon the acquisition of Shares
pursuant to the Tender Offer, which, when added together with Shares owned by
Purchaser or any of its direct or indirect subsidiaries, equal at least a
majority of the then outstanding shares of Voting Common Stock, the Company
shall fill any vacancies and increase the size of its Board of Directors as
necessary to enable Purchaser to designate at its option a majority of the
Company's Board of Directors, and shall cause Purchaser's designees to be so
elected and shall mail promptly the information required by Section 14(f) of the
Act and Rule 14f-1 promulgated thereunder.
ARTICLE VIII
CONDITIONS
Section 8.1 Conditions to Each Party's Obligation to Effect the
Merger. The respective obligations of each party to effect the Merger shall be
subject to the fulfillment at or prior to the Effective Date of the following
conditions:
(a) The holders of the Voting Common Stock of the Company
entitled to vote shall have duly approved the Merger if required by applicable
law.
(b) No preliminary or permanent injunction or other order by
a court of competent jurisdiction which prevents the consummation of the Merger
shall have been issued and remain in effect (each party agreeing to use its
reasonable best efforts to have any such injunction lifted).
(c) No action shall have been taken nor shall any statute,
rule or regulation have been enacted by the government of the United States or
any state thereof that makes the consummation of the Tender Offer or the Merger
illegal in any material respect.
(d) The applicable waiting period under the Hart-Scott-Rodino
Act with respect to the transactions contemplated by this Agreement shall have
expired or been terminated.
Section 8.2 Conditions to Obligations of Purchaser and Acquisition
to Effect the Merger. The obligations of Purchaser and Acquisition to effect the
Merger shall be subject to the fulfillment at or prior to the Effective Date of
the following additional conditions:
(a) The representations and warranties of the Company set
forth in Article VI shall be true and correct in all material respects on the
Effective Date (or on such other
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date specified in Article VI) with the same force and effect as though made on
and as of such date, and Purchaser and Acquisition shall have received a
certificate to that effect from the Chief Executive Officer and the Treasurer of
the Company.
(b) All of the covenants and agreements of the Company to be
performed or complied with pursuant to this Agreement prior to the Effective
Date shall have been duly performed and complied with in all material respects,
and Purchaser and Acquisition shall have received a certificate to that effect
from the Chief Executive Officer and the Treasurer of the Company.
(c) Holders of no more than 400,000 Shares, in the aggregate,
shall have filed with the Company a written objection to the Merger and made a
written demand for payment of the fair value of his shares in the manner
permitted by the GCL.
(d) All of the Continuing Directors of the Company on the
Effective Date shall have resigned.
(e) Since the date of this Agreement, there shall have been
no Company Material Adverse Effect; provided, however, that an IRS Notice of
Proposed Adjustment (to the extent it relates to specific tax issues regarding
the Company's net operating losses that have been raised by the Internal Revenue
Service in a written communication referred to in the last sentence of Section
6.11 shall not be considered a Company Material Adverse Effect for this purpose.
(f) Other than taxes duly paid, withheld or reserved for by
the Company, no taxes are payable, or reasonably expected by the Company to be
payable, with respect to items or periods covered by the returns and reports
referred to in Section 6.11 (whether or not shown on or reportable on such
returns or reports or with respect to any period prior to the Effective Date),
other than any such taxes which would not have a Company Material Adverse
Effect.
Section 8.3 Conditions to Obligation of the Company to Effect the
Merger. The obligation of the Company to effect the Merger shall be subject to
the fulfillment at or prior to the Effective Date of the following additional
conditions.
(a) The representations and warranties of Purchaser and
Acquisition set forth in Article V shall be true and correct in all material
respects on the Effective Date (or on such other date specified in Article V)
with the same force and effect as though made on and as of such date, and the
Company shall have received certificates to that effect from the Chief Executive
Officer and the Treasurer of Purchaser and the President of Acquisition.
(b) All of the covenants and agreements of Purchaser and
Acquisition to be performed or complied with pursuant to this Agreement prior to
the Effective Date shall have been duly performed and complied with in all
material respects, and the Company shall
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have received certificates to that effect from the Chief Executive Officer and
the Treasurer of Purchaser and the President of Acquisition.
ARTICLE IX
TERMINATION, AMENDMENT AND WAIVER
Section 9.1 Termination. This Agreement shall be subject to
termination at any time prior to the Effective Date, whether before or after
approval by the stockholders of the Company, if required, as follows:
(a) by mutual consent of Purchaser and the Board of Directors
of the Company;
(b) by Purchaser or the Company if the Merger shall not have
been consummated on or before December 15, 1995, which date may be extended by
mutual agreement of the Boards of Directors of the Company and Purchaser;
(c) by the Company if, prior to the Effective Date, the
Company, its Board of Directors or its stockholders shall receive a bona fide
written proposal or offer from a third party (each an "Acquisition Proposal")
relating to:
(i) the acquisition or purchase of all or substantially
all of the assets of, or more than a 50% equity interest
(including any Shares theretofore acquired) in the Company;
(ii) a merger, consolidation or similar business
combination with the Company;
(iii) a tender or exchange offer for the Company
conditioned on ownership of more than 50% of the outstanding
Shares following such tender or exchange offer;
and the Board of Directors of the Company determines that it has a duty in the
proper discharge of its fiduciary responsibilities under applicable law to
consider such other proposal or offer, and then such Board of Directors either
(A) accepts such proposal or offer, (B) recommends to the stockholders
acceptance of such proposal or offer, or (C) in the case of a tender or exchange
offer, takes no position with respect thereto and all conditions (other than
terminating this Agreement) of such tender or exchange offer have been
satisfied, in which event this Agreement shall be terminated without any
liability to the Company or the Company's Board of Directors as a result of such
termination other than as set forth in Section 9.2(a).
(d) by Purchaser upon a breach of any material
representation, warranty, covenant or agreement on the part of the Company set
forth in this Agreement or if any
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representation or warranty of the Company shall have become untrue and such
breach or untruth shall have caused a Company Material Adverse Effect.
(e) by the Company upon a breach of any material
representation, warranty, covenant or agreement on the part of the Purchaser set
forth in this Agreement or if any representation or warranty of the Purchaser
shall have become untrue and such breach or untruth shall have caused a
Purchaser Material Adverse Effect.
Section 9.2 Break-Up Fee; Effect of Termination.
(a) If the Agreement is terminated pursuant to Section
9.1(c), the Company shall pay to Purchaser U.S. $4,000,000 in cash. Any payment
required to be made pursuant to this Section 9.2(a) shall be made as promptly as
practicable but not later than three business days after termination of this
Agreement, and shall be made by wire transfer of immediately available funds to
an account designated by Purchaser.
(b) In the event of termination of this Agreement by
Purchaser, Acquisition or the Company (other than pursuant to Section 9.1(c)),
there shall be no liability under this Agreement on the part of either the
Company, Purchaser or Acquisition or their respective officers or directors,
except for any breach of the provisions of Section 7.2 and the confidentiality
provisions of Section 7.4, and except for any termination pursuant to Section
9.1(d) or (e) as a result of a wilful breach of any representation, warranty,
covenant or agreement of Purchaser, Acquisition or the Company contained herein.
Section 9.3 Amendment. This Agreement may be amended by the parties
hereto, by action taken by the respective Boards of Directors of Purchaser,
Acquisition and the Company, at any time before or after approval hereof by the
stockholders of the Company, but, after any such approval, if required, no
amendment shall be made which changes the Merger Price without the further
approval of such stockholders. This Agreement may not be amended except by an
instrument in writing signed on behalf of each of the parties hereto.
Section 9.4 Waiver. At any time prior to the Effective Date, the
parties hereto, by action taken by the respective Boards of Directors of
Purchaser, Acquisition or the Company, may (a) extend, for a reasonable time,
the time for the performance of any of the obligations or other acts of the
other parties hereto, (b) waive any inaccuracies in the representations and
warranties contained herein or in any document delivered pursuant hereto and (c)
waive compliance with any of the agreements or conditions contained herein. Any
agreement on the part of the party hereto to any such extension or waiver shall
be valid if set forth in an instrument in writing signed on behalf of such
party.
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ARTICLE X
GENERAL PROVISIONS
Section 10.1 Notice of Breach. Each party shall promptly give
written notice to the other parties upon becoming aware of the occurrence, or
impending or threatened occurrence, of any event which would cause or constitute
a breach of any of its representations, warranties of covenants contained or
referred to in this Agreement and shall use its reasonable best efforts to
prevent or promptly remedy the same.
Section 10.2 Cooperation. Subject to the terms and conditions herein
provided, each of the parties hereto agrees to use its reasonable 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 Merger and the other transactions contemplated
by this Agreement. In case at any time after the Effective Date any further
action is necessary or desirable to carry out the purpose of this Agreement, the
proper officers and/or directors of Purchaser, Acquisition or the Company shall
take, or cause to be taken, all such necessary action. Purchaser shall cause
Acquisition to comply with all of Acquisition's obligations hereunder.
Section 10.3 Non-Survival of Representations and Warranties. None of
the representations and warranties in this Agreement shall survive the Effective
Date of the Merger.
Section 10.4 Brokers. The Company represents and warrants that,
except for its financial advisor, PaineWebber Incorporated, no broker, finder or
investment banker is entitled to any brokerage, finder's or other fee or
commission in connection with the Tender Offer or the Merger.
Section 10.5 Entire Agreement. Other than the Confidentiality
Agreement, dated February 1, 1995, between the Company and Purchaser, this
Agreement contains the entire agreement among Purchaser, Acquisition and the
Company with respect to the Tender Offer, the Merger and the other transactions
contemplated hereby, and supersedes all prior agreements, understandings,
representations, and warranties with respect to the subject matter.
Section 10.6 Applicable Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware (without giving
effect to its choice of laws principles).
Section 10.7 Interpretation; Headings. When a reference is made in
this Agreement to subsidiaries of the Company or Purchaser, the word
"subsidiaries" means any corporation, partnership, limited liability company or
other entity more than 50% of whose outstanding voting securities are directly
or indirectly owned by the Company or Purchaser, as the case may be. The
headings contained in this Agreement are for reference purposes only and shall
not affect in any way the meaning or interpretation of this Agreement.
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<PAGE>
Section 10.8 Assignment. Purchaser and Acquisition shall have the
right (a) to assign to Purchaser or any direct or indirect wholly-owned
subsidiary of Purchaser any and all of the rights and obligations of Acquisition
or Purchaser under this Agreement, including, without limitation, the right to
substitute in Acquisition's place such a subsidiary as one of the Constituent
Corporations in the Merger (such subsidiary assuming all of the obligations of
Acquisition in connection with the Merger) and (b) to transfer to Purchaser or
to one or more directly or indirectly wholly-owned subsidiaries of Purchaser the
right to purchase Shares tendered pursuant to the Tender Offer.
Section 10.9 Separability. Any term or provision of this Agreement
which is invalid or unenforceable in any jurisdiction, shall, as to such
jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without rendering invalid or unenforceable the remaining terms
and provisions of this Agreement in any other jurisdiction. If any provision of
this Agreement is so broad as to be unenforceable, such provision shall be
interpreted to be only so broad as is enforceable.
Section 10.10 Publicity. Except as required by law or the rules of
any exchange on which the shares of Purchaser or Company are traded, as long as
this Agreement is in effect, neither the Company nor Purchaser shall issue or
cause the publication of any press release or other announcement with respect to
the Tender Offer, the Merger or this Agreement without the prior consent of the
other, which consent shall not be unreasonably withheld.
Section 10.11 Notices. All notices or other communications hereunder
shall be in writing and shall be deemed to have been duly given if delivered
personally or sent by first-class mail, postage prepaid, with return receipt
requested, addressed as follows:
If to Purchaser or Acquisition, to:
D.E.A. Bower, General Counsel
10333 Southport Road SW, Suite 426
Calgary, Alberta T2W 3X6
Fax # 403-258-5761
with copies to:
Thomas A. Richardson
Holme Roberts & Owen LLC
1700 Lincoln, Suite 4100
Denver, CO 80203
Fax # 303-866-0200
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<PAGE>
If to the Company, to:
Nu-West Industries, Inc.
3010 Conda Road
Soda Springs, Idaho 83276
Attn: Craig D. Harlen
Fax # 208-547-2550
with copies to:
Davis, Graham & Stubbs, L.L.C.
370 17th Street
Suite 4700
Denver, Colorado 80202
Attn: John L. McCabe, Esq.
Fax # 303-893-1379
Section 10.12 Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original but all
of which together shall constitute one agreement.
Section 10.13 No Third Party Beneficiaries. No provision of this
Agreement is intended to benefit any person other than the parties hereto.
Section 10.14 Schedules. Inclusion of, or reference to, matters in a
schedule to this Agreement does not constitute an admission of what is material
or the materiality of such matter.
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<PAGE>
IN WITNESS WHEREOF, Purchaser, Acquisition and the Company have
caused this Agreement to be signed by their respective officers thereunto duly
authorized all as of the date first written above.
AGRIUM INC.
By:
Title:
AGRIUM ACQUISITION CORPORATION
By:
Title:
NU-WEST INDUSTRIES, INC.
By:
Title:
<PAGE>
EXHIBIT A
The capitalized terms used herein have the meanings set forth in the Agreement
and Plan of Merger dated as of August 9, 1995 (the "Merger Agreement") to which
this Exhibit A is attached.
CONDITIONS OF THE OFFER
Notwithstanding any other provision of the Tender Offer, Acquisition shall not
be required to accept for payment, purchase or pay for any Shares tendered and
may terminate or (subject to the terms of the Merger Agreement) amend the Tender
Offer or may postpone the acceptance for payment, purchase of or payment for
Shares tendered, if before acceptance for payment for any such Shares (whether
or not any Shares have theretofore been accepted for payment or paid for
pursuant to the Tender Offer) (i) there shall not have been validly tendered and
not properly withdrawn pursuant to the Tender Offer at least 60% of the Shares
on a fully diluted basis (the "Minimum Condition"), (ii) any waiting period
under the Hart-Scott-Rodino Act applicable to the purchase of Shares pursuant to
the Tender Offer shall not have expired or been terminated, or (iii) any of the
following shall occur:
(a) Any representation or warranty of the Company in the Merger Agreement shall
have been untrue or incorrect in any material respect as of the date of the
Merger Agreement and the date of consummation of the Tender Offer with the same
force and effect as though made on and as of the date of consummation of the
Tender Offer, or there has been a breach by the Company of any covenant or
agreement set forth in the Merger Agreement which breach shall not be remedied
within five days (or by the Expiration Date if sooner) of written notice
specifying such breach in reasonable detail and demanding that same be remedied
(except where such failure to be true and correct or such breach would not
reasonably be expected to have a Company Material Adverse Effect).
(b) There shall be any action taken, or any statute, rule, regulation, decree,
order or injunction promulgated, enacted, entered into or enforced by any state,
federal or foreign government or governmental agency or authority or by any
court (domestic or foreign) that would (i) make the acceptance for payment of,
the payment for, or the purchase of, some or all of the Shares by Acquisition
illegal or otherwise prohibit consummation of the Tender Offer or the Merger,
(ii) prohibit the ability of Acquisition, or render Acquisition unable, to
accept for payment, pay for or purchase some or all of the Shares in a manner
that is adverse in any material respect to the transactions contemplated by the
Tender Offer or the Merger, (iii) require the divestiture by Purchaser,
Acquisition or the Company or any of their respective subsidiaries of all or any
material portion of the business, assets or property of any of them or any
Shares, or impose any material limitation on the ability of any of them to
conduct their business and own such assets, properties and Shares, (iv) impose
material limitations on the ability of Acquisition or Purchaser to acquire or
hold or to exercise effectively all rights of ownership of Shares, including,
without limitation, the right to vote any Shares purchased by Acquisition on all
matters properly
A-1
<PAGE>
presented to the stockholders of the Company or (v) impose any material
limitations on the ability of Purchaser or Acquisition or any of their
respective subsidiaries effectively to control in any material respect the
business or operations of the Company and its subsidiaries.
(c) Since the date of the Merger Agreement there shall have been a Company
Material Adverse Effect.
(d) The Merger Agreement shall have been terminated in accordance with its
terms.
(e) The Company's Board of Directors shall have withdrawn, modified or amended
in any respect materially adverse to Purchaser or Acquisition its recommendation
of the Tender Offer and the Merger or resolved to do so.
A-2
EXHIBIT B
IRREVOCABLE PROXY
This irrevocable proxy (the "Proxy") is granted as of August
9, 1995.
WHEREAS, pursuant to an Agreement and Plan of Merger dated of
even date herewith (the "Merger Agreement") among Agrium Inc., a Canadian
corporation ("Agrium"), Agrium Acquisition Corporation, a Delaware corporation
and wholly-owned subsidiary of Agrium ("Merger Sub"), and Nu-West Industries,
Inc., a Delaware corporation ("Nu-West"), providing for the merger of Merger Sub
with and into Nu-West (as defined in the Merger Agreement, the "Merger"),
Nu-West will become a wholly-owned subsidiary of Agrium and each share of common
stock, $.01 par value per share, of Nu-West ("Nu-West Common Stock") held by the
undersigned as of the Effective Time (as defined in the Merger Agreement) of the
Merger will be converted into the right to receive $10.50; and
WHEREAS, to induce Agrium and Merger Sub to enter into the
Merger Agreement and at the request of Agrium, the undersigned has agreed to
appoint and irrevocably grant a proxy to Dale W. Massie, Dorothy E.A. Bower and
Ian Noble, as designated employees of Agrium, with respect to all Nu-West Common
Stock beneficially owned by the undersigned on the date hereof and all voting
securities of Nu-West acquired from time to time by the undersigned after the
date hereof (such Nu-West Common Stock and securities being referred to herein
as the "Covered Shares");
NOW, THEREFORE, in consideration of the foregoing, the
undersigned hereby agrees as follows:
1. Grant of Proxy. The undersigned hereby revokes all prior
proxies with respect to the Covered Shares and appoints Dale W. Massie, Dorothy
E.A. Bower and Ian Noble, in their respective capacities as employees of Agrium,
and each of them individually, as the undersigned's proxy and attorney-in-fact
(with full power of substitution), for and in the name, place and stead of the
undersigned, (i) to call a special meeting of stockholders of Nu-West to
consider the Merger, and (ii) to vote (or, at their discretion, execute a
written consent with respect to) with or without the other, all the Covered
Shares (A) in favor of the Merger and adoption of the Merger Agreement, and (B)
against any business combination proposal or other matter that may interfere or
be inconsistent with the Merger or the Merger Agreement (including, without
limitation, an Acquisition Proposal, as defined in the Merger Agreement), at any
meeting of stockholders of Nu-West (or consent in lieu thereof) and any
adjournment or adjournments thereof.
2. Representations and Warranties. The undersigned hereby
represents and warrants to Agrium as follows: the undersigned has full power and
authority to grant this Proxy, and neither the execution or delivery of this
Proxy nor the performance of the undersigned's obligations hereunder will (A)
conflict with or result in a breach, default or violation of any agreement,
proxy, document, instrument, judgment, decree, order, governmental permit,
certificate, license, law, statute, rule or regulation to which the undersigned
is a party or to which the undersigned is subject, (B) result in the creation of
any lien, charge or other encumbrance on any Covered Shares (except for any
encumbrance created by this Proxy) or (C) require the undersigned to obtain the
consent of any private nongovernmental third party. The undersigned further
represents and warrants to Agrium that (i) as of the date hereof, the
undersigned is the sole record and beneficial owner of the number of Covered
Shares set forth opposite the undersigned's name below, free and clear of any
lien, charge, proxy (other than this Proxy) or other encumbrance, and that such
Covered Shares constitute all of the voting securities of Nu-West owned
beneficially or of record by the undersigned, and (ii) except as expressly
provided in this Proxy, no consent, action, approval or authorization of, or
registration, declaration or filing with, any governmental department,
commission, agency or other instrumentality or any other person or entity is
required to authorize, or is otherwise required in connection with, the
execution and delivery of this Proxy or the undersigned's performance of the
terms of this Proxy or the validity or enforceability of this Proxy (other than
any required amendment to any Statement on Schedule 13D of the undersigned
caused by the existence and terms of this Proxy).
3. Proxy Irrevocable. The undersigned agrees and acknowledges
that, as a stockholder of Nu-West, he will recieve substantial consideration in
connection with the Merger, and that this Proxy is given in consideration of,
and as an inducement to, the execution of the Merger Agreement by Agrium and
Agrium Sub, and that the proxy granted hereby is and shall be deemed to be
coupled with an interest and is not revocable, and shall not be terminated
(other than in accordance with Section 5 hereof) by any act of the undersigned
or by operation of law, whether by the death or incapacity of the undersigned or
by the occurrence of any other event or events whatsoever. The undersigned
further agrees that he will not grant any proxy or proxies inconsistent with
this Proxy. If requested by Agrium, the undersigned agrees that he will enter
into a voting agreement or similar arrangement with Agrium or its designee
relating to the Covered Shares, which agreement or arrangement will commit the
undersigned to vote the Covered Shares as specified in Section 1 hereof and will
contain substantially similar representations, restrictions on transfer or
disposition and termination provisions as this Proxy.
4. Transferability of Covered Shares. The undersigned will not
sell or otherwise transfer or dispose of any of the Covered Shares unless the
following conditions are met:
(a) prior written notice of this Proxy is given to the
transferee; and the transferee agrees that the shares
transferred will remain subject to this Proxy and, in
connection therewith, executes and delivers to Agrium
a proxy covering such shares in form and substance
satisfactory to Agrium, which proxy shall be in
substantially the form of this Proxy; or
(b) the transfer is to Agrium or its designee pursuant to
the tender offer described in the Merger Agreement,
it being agreed that the undersigned will, subject to
Section 5, tender the Covered Shares in such tender
offer.
5. Termination of Proxy. This Proxy (including the obligation
referred to in Section 4 to tender the Covered Shares) shall terminate
automatically on the earliest to occur of (i) the Effective Time, (ii)
termination of the Merger Agreement pursuant to Section 9.1 thereof, or (iii)
amendment of the Merger Agreement with respect to the price per share to be
received upon the merger or tender.
6. Miscellaneous. The undersigned understands and agrees that
Agrium is relying on this Proxy and may enforce its terms against the
undersigned, and that irreparable damage would occur in the event of breach of
any provision of the Proxy. The undersigned agrees that, in the event of such
breach, Agrium shall be entitled to specific performance of the terms hereof, in
addition to any other remedies that may be available at law or in equity. This
Proxy shall be governed by, and construed in accordance with, the laws of the
State of Delaware, regardless of the laws that might otherwise govern under
applicable principles of conflicts of law.
IN WITNESS WHEREOF, the undersigned has executed this Proxy as
of the date first set forth above.
Number of Covered Shares: 217,999
WPG CORPORATE DEVELOPMENT
ASSOCIATES III (OVERSEAS), LTD.
By:s/Robin Jarvis
Robin Jarvis
Director
<PAGE>
IRREVOCABLE PROXY
This irrevocable proxy (the "Proxy") is granted as of August
9, 1995.
WHEREAS, pursuant to an Agreement and Plan of Merger dated of
even date herewith (the "Merger Agreement") among Agrium Inc., a Canadian
corporation ("Agrium"), Agrium Acquisition Corporation, a Delaware corporation
and wholly-owned subsidiary of Agrium ("Merger Sub"), and Nu-West Industries,
Inc., a Delaware corporation ("Nu-West"), providing for the merger of Merger Sub
with and into Nu-West (as defined in the Merger Agreement, the "Merger"),
Nu-West will become a wholly-owned subsidiary of Agrium and each share of common
stock, $.01 par value per share, of Nu-West ("Nu-West Common Stock") held by the
undersigned as of the Effective Time (as defined in the Merger Agreement) of the
Merger will be converted into the right to receive $10.50; and
WHEREAS, to induce Agrium and Merger Sub to enter into the
Merger Agreement and at the request of Agrium, the undersigned has agreed to
appoint and irrevocably grant a proxy to Dale W. Massie, Dorothy E.A. Bower and
Ian Noble, as designated employees of Agrium, with respect to all Nu-West Common
Stock beneficially owned by the undersigned on the date hereof and all voting
securities of Nu-West acquired from time to time by the undersigned after the
date hereof (such Nu-West Common Stock and securities being referred to herein
as the "Covered Shares");
NOW, THEREFORE, in consideration of the foregoing, the
undersigned hereby agrees as follows:
1. Grant of Proxy. The undersigned hereby revokes all prior
proxies with respect to the Covered Shares and appoints Dale W. Massie, Dorothy
E.A. Bower and Ian Noble, in their respective capacities as employees of Agrium,
and each of them individually, as the undersigned's proxy and attorney-in-fact
(with full power of substitution), for and in the name, place and stead of the
undersigned, (i) to call a special meeting of stockholders of Nu-West to
consider the Merger, and (ii) to vote (or, at their discretion, execute a
written consent with respect to) with or without the other, all the Covered
Shares (A) in favor of the Merger and adoption of the Merger Agreement, and (B)
against any business combination proposal or other matter that may interfere or
be inconsistent with the Merger or the Merger Agreement (including, without
limitation, an Acquisition Proposal, as defined in the Merger Agreement), at any
meeting of stockholders of Nu-West (or consent in lieu thereof) and any
adjournment or adjournments thereof.
2. Representations and Warranties. The undersigned hereby
represents and warrants to Agrium as follows: the undersigned has full power and
authority to grant this Proxy, and neither the execution or delivery of this
Proxy nor the performance of the undersigned's obligations hereunder will (A)
conflict with or result in a breach, default or violation of any agreement,
proxy, document, instrument, judgment, decree, order, governmental permit,
certificate, license, law, statute, rule or regulation to which the undersigned
is a party or to which the undersigned is subject, (B) result in the creation of
any lien, charge or other encumbrance on any Covered Shares (except for any
encumbrance created by this Proxy) or (C) require the undersigned to obtain the
consent of any private nongovernmental third party. The undersigned further
represents and warrants to Agrium that (i) as of the date hereof, the
undersigned is the sole record and beneficial owner of the number of Covered
Shares set forth opposite the undersigned's name below, free and clear of any
lien, charge, proxy (other than this Proxy) or other encumbrance, and that such
Covered Shares constitute all of the voting securities of Nu-West owned
beneficially or of record by the undersigned, and (ii) except as expressly
provided in this Proxy, no consent, action, approval or authorization of, or
registration, declaration or filing with, any governmental department,
commission, agency or other instrumentality or any other person or entity is
required to authorize, or is otherwise required in connection with, the
execution and delivery of this Proxy or the undersigned's performance of the
terms of this Proxy or the validity or enforceability of this Proxy (other than
any required amendment to any Statement on Schedule 13D of the undersigned
caused by the existence and terms of this Proxy).
3. Proxy Irrevocable. The undersigned agrees and acknowledges
that, as a stockholder of Nu-West, he will recieve substantial consideration in
connection with the Merger, and that this Proxy is given in consideration of,
and as an inducement to, the execution of the Merger Agreement by Agrium and
Agrium Sub, and that the proxy granted hereby is and shall be deemed to be
coupled with an interest and is not revocable, and shall not be terminated
(other than in accordance with Section 5 hereof) by any act of the undersigned
or by operation of law, whether by the death or incapacity of the undersigned or
by the occurrence of any other event or events whatsoever. The undersigned
further agrees that he will not grant any proxy or proxies inconsistent with
this Proxy. If requested by Agrium, the undersigned agrees that he will enter
into a voting agreement or similar arrangement with Agrium or its designee
relating to the Covered Shares, which agreement or arrangement will commit the
undersigned to vote the Covered Shares as specified in Section 1 hereof and will
contain substantially similar representations, restrictions on transfer or
disposition and termination provisions as this Proxy.
4. Transferability of Covered Shares. The undersigned will not
sell or otherwise transfer or dispose of any of the Covered Shares unless the
following conditions are met:
(a) prior written notice of this Proxy is given to the
transferee; and the transferee agrees that the shares
transferred will remain subject to this Proxy and, in
connection therewith, executes and delivers to Agrium
a proxy covering such shares in form and substance
satisfactory to Agrium, which proxy shall be in
substantially the form of this Proxy; or
(b) the transfer is to Agrium or its designee pursuant to
the tender offer described in the Merger Agreement,
it being agreed that the undersigned will, subject to
Section 5, tender the Covered Shares in such tender
offer.
5. Termination of Proxy. This Proxy (including the obligation
referred to in Section 4 to tender the Covered Shares) shall terminate
automatically on the earliest to occur of (i) the Effective Time, (ii)
termination of the Merger Agreement pursuant to Section 9.1 thereof, or (iii)
amendment of the Merger Agreement with respect to the price per share to be
received upon the merger or tender.
6. Miscellaneous. The undersigned understands and agrees that
Agrium is relying on this Proxy and may enforce its terms against the
undersigned, and that irreparable damage would occur in the event of breach of
any provision of the Proxy. The undersigned agrees that, in the event of such
breach, Agrium shall be entitled to specific performance of the terms hereof, in
addition to any other remedies that may be available at law or in equity. This
Proxy shall be governed by, and construed in accordance with, the laws of the
State of Delaware, regardless of the laws that might otherwise govern under
applicable principles of conflicts of law.
IN WITNESS WHEREOF, the undersigned has executed this Proxy as
of the date first set forth above.
Number of Covered Shares: 2,488,005
WPG CORPORATE DEVELOPMENT
ASSOCIATES II, L.P. LIQUIDATING
TRUST, U/T/A dated December 31, 1993
By: Weiss, Peck & Greer, L.L.C.,
the sole trustee
By:s/Wesley W. Lang, Jr.
Wesley W. Lang, Jr.
Principal
<PAGE>
IRREVOCABLE PROXY
This irrevocable proxy (the "Proxy") is granted as of August
9, 1995.
WHEREAS, pursuant to an Agreement and Plan of Merger dated of
even date herewith (the "Merger Agreement") among Agrium Inc., a Canadian
corporation ("Agrium"), Agrium Acquisition Corporation, a Delaware corporation
and wholly-owned subsidiary of Agrium ("Merger Sub"), and Nu-West Industries,
Inc., a Delaware corporation ("Nu-West"), providing for the merger of Merger Sub
with and into Nu-West (as defined in the Merger Agreement, the "Merger"),
Nu-West will become a wholly-owned subsidiary of Agrium and each share of common
stock, $.01 par value per share, of Nu-West ("Nu-West Common Stock") held by the
undersigned as of the Effective Time (as defined in the Merger Agreement) of the
Merger will be converted into the right to receive $10.50; and
WHEREAS, to induce Agrium and Merger Sub to enter into the
Merger Agreement and at the request of Agrium, the undersigned has agreed to
appoint and irrevocably grant a proxy to Dale W. Massie, Dorothy E.A. Bower and
Ian Noble, as designated employees of Agrium, with respect to all Nu-West Common
Stock beneficially owned by the undersigned on the date hereof and all voting
securities of Nu-West acquired from time to time by the undersigned after the
date hereof (such Nu-West Common Stock and securities being referred to herein
as the "Covered Shares");
NOW, THEREFORE, in consideration of the foregoing, the
undersigned hereby agrees as follows:
1. Grant of Proxy. The undersigned hereby revokes all prior
proxies with respect to the Covered Shares and appoints Dale W. Massie, Dorothy
E.A. Bower and Ian Noble, in their respective capacities as employees of Agrium,
and each of them individually, as the undersigned's proxy and attorney-in-fact
(with full power of substitution), for and in the name, place and stead of the
undersigned, (i) to call a special meeting of stockholders of Nu-West to
consider the Merger, and (ii) to vote (or, at their discretion, execute a
written consent with respect to) with or without the other, all the Covered
Shares (A) in favor of the Merger and adoption of the Merger Agreement, and (B)
against any business combination proposal or other matter that may interfere or
be inconsistent with the Merger or the Merger Agreement (including, without
limitation, an Acquisition Proposal, as defined in the Merger Agreement), at any
meeting of stockholders of Nu-West (or consent in lieu thereof) and any
adjournment or adjournments thereof.
2. Representations and Warranties. The undersigned hereby
represents and warrants to Agrium as follows: the undersigned has full power and
authority to grant this Proxy, and neither the execution or delivery of this
Proxy nor the performance of the undersigned's obligations hereunder will (A)
conflict with or result in a breach, default or violation of any agreement,
proxy, document, instrument, judgment, decree, order, governmental permit,
certificate, license, law, statute, rule or regulation to which the undersigned
is a party or to which the undersigned is subject, (B) result in the creation of
any lien, charge or other encumbrance on any Covered Shares (except for any
encumbrance created by this Proxy) or (C) require the undersigned to obtain the
consent of any private nongovernmental third party. The undersigned further
represents and warrants to Agrium that (i) as of the date hereof, the
undersigned is the sole record and beneficial owner of the number of Covered
Shares set forth opposite the undersigned's name below, free and clear of any
lien, charge, proxy (other than this Proxy) or other encumbrance, and that such
Covered Shares constitute all of the voting securities of Nu-West owned
beneficially or of record by the undersigned, and (ii) except as expressly
provided in this Proxy, no consent, action, approval or authorization of, or
registration, declaration or filing with, any governmental department,
commission, agency or other instrumentality or any other person or entity is
required to authorize, or is otherwise required in connection with, the
execution and delivery of this Proxy or the undersigned's performance of the
terms of this Proxy or the validity or enforceability of this Proxy (other than
any required amendment to any Statement on Schedule 13D of the undersigned
caused by the existence and terms of this Proxy).
3. Proxy Irrevocable. The undersigned agrees and acknowledges
that, as a stockholder of Nu-West, he will recieve substantial consideration in
connection with the Merger, and that this Proxy is given in consideration of,
and as an inducement to, the execution of the Merger Agreement by Agrium and
Agrium Sub, and that the proxy granted hereby is and shall be deemed to be
coupled with an interest and is not revocable, and shall not be terminated
(other than in accordance with Section 5 hereof) by any act of the undersigned
or by operation of law, whether by the death or incapacity of the undersigned or
by the occurrence of any other event or events whatsoever. The undersigned
further agrees that he will not grant any proxy or proxies inconsistent with
this Proxy. If requested by Agrium, the undersigned agrees that he will enter
into a voting agreement or similar arrangement with Agrium or its designee
relating to the Covered Shares, which agreement or arrangement will commit the
undersigned to vote the Covered Shares as specified in Section 1 hereof and will
contain substantially similar representations, restrictions on transfer or
disposition and termination provisions as this Proxy.
4. Transferability of Covered Shares. The undersigned will not
sell or otherwise transfer or dispose of any of the Covered Shares unless the
following conditions are met:
(a) prior written notice of this Proxy is given to the
transferee; and the transferee agrees that the shares
transferred will remain subject to this Proxy and, in
connection therewith, executes and delivers to Agrium
a proxy covering such shares in form and substance
satisfactory to Agrium, which proxy shall be in
substantially the form of this Proxy; or
(b) the transfer is to Agrium or its designee pursuant to
the tender offer described in the Merger Agreement,
it being agreed that the undersigned will, subject to
Section 5, tender the Covered Shares in such tender
offer.
5. Termination of Proxy. This Proxy (including the obligation
referred to in Section 4 to tender the Covered Shares) shall terminate
automatically on the earliest to occur of (i) the Effective Time, (ii)
termination of the Merger Agreement pursuant to Section 9.1 thereof, or (iii)
amendment of the Merger Agreement with respect to the price per share to be
received upon the merger or tender.
6. Miscellaneous. The undersigned understands and agrees that
Agrium is relying on this Proxy and may enforce its terms against the
undersigned, and that irreparable damage would occur in the event of breach of
any provision of the Proxy. The undersigned agrees that, in the event of such
breach, Agrium shall be entitled to specific performance of the terms hereof, in
addition to any other remedies that may be available at law or in equity. This
Proxy shall be governed by, and construed in accordance with, the laws of the
State of Delaware, regardless of the laws that might otherwise govern under
applicable principles of conflicts of law.
IN WITNESS WHEREOF, the undersigned has executed this Proxy as
of the date first set forth above.
Number of Covered Shares: 1,027,714
WPG CORPORATE DEVELOPMENT
ASSOCIATES III, L.P.
By: WPG CDA III, L.P.
By:s/Wesley W. Lang, Jr.
Wesley W. Lang, Jr.
<PAGE>
IRREVOCABLE PROXY
This irrevocable proxy (the "Proxy") is granted as of August
9, 1995.
WHEREAS, pursuant to an Agreement and Plan of Merger dated of
even date herewith (the "Merger Agreement") among Agrium Inc., a Canadian
corporation ("Agrium"), Agrium Acquisition Corporation, a Delaware corporation
and wholly-owned subsidiary of Agrium ("Merger Sub"), and Nu-West Industries,
Inc., a Delaware corporation ("Nu-West"), providing for the merger of Merger Sub
with and into Nu-West (as defined in the Merger Agreement, the "Merger"),
Nu-West will become a wholly-owned subsidiary of Agrium and each share of common
stock, $.01 par value per share, of Nu-West ("Nu-West Common Stock") held by the
undersigned as of the Effective Time (as defined in the Merger Agreement) of the
Merger will be converted into the right to receive $10.50; and
WHEREAS, to induce Agrium and Merger Sub to enter into the
Merger Agreement and at the request of Agrium, the undersigned has agreed to
appoint and irrevocably grant a proxy to Dale W. Massie, Dorothy E.A. Bower and
Ian Noble, as designated employees of Agrium, with respect to all Nu-West Common
Stock beneficially owned by the undersigned on the date hereof and all voting
securities of Nu-West acquired from time to time by the undersigned after the
date hereof (such Nu-West Common Stock and securities being referred to herein
as the "Covered Shares");
NOW, THEREFORE, in consideration of the foregoing, the
undersigned hereby agrees as follows:
1. Grant of Proxy. The undersigned hereby revokes all prior
proxies with respect to the Covered Shares and appoints Dale W. Massie, Dorothy
E.A. Bower and Ian Noble, in their respective capacities as employees of Agrium,
and each of them individually, as the undersigned's proxy and attorney-in-fact
(with full power of substitution), for and in the name, place and stead of the
undersigned, (i) to call a special meeting of stockholders of Nu-West to
consider the Merger, and (ii) to vote (or, at their discretion, execute a
written consent with respect to) with or without the other, all the Covered
Shares (A) in favor of the Merger and adoption of the Merger Agreement, and (B)
against any business combination proposal or other matter that may interfere or
be inconsistent with the Merger or the Merger Agreement (including, without
limitation, an Acquisition Proposal, as defined in the Merger Agreement), at any
meeting of stockholders of Nu-West (or consent in lieu thereof) and any
adjournment or adjournments thereof.
2. Representations and Warranties. The undersigned hereby
represents and warrants to Agrium as follows: the undersigned has full power and
authority to grant this Proxy, and neither the execution or delivery of this
Proxy nor the performance of the undersigned's obligations hereunder will (A)
conflict with or result in a breach, default or violation of any agreement,
proxy, document, instrument, judgment, decree, order, governmental permit,
certificate, license, law, statute, rule or regulation to which the undersigned
is a party or to which the undersigned is subject, (B) result in the creation of
any lien, charge or other encumbrance on any Covered Shares (except for any
encumbrance created by this Proxy) or (C) require the undersigned to obtain the
consent of any private nongovernmental third party. The undersigned further
represents and warrants to Agrium that (i) as of the date hereof, the
undersigned is the sole record and beneficial owner of the number of Covered
Shares set forth opposite the undersigned's name below, free and clear of any
lien, charge, proxy (other than this Proxy) or other encumbrance, and that such
Covered Shares constitute all of the voting securities of Nu-West owned
beneficially or of record by the undersigned, and (ii) except as expressly
provided in this Proxy, no consent, action, approval or authorization of, or
registration, declaration or filing with, any governmental department,
commission, agency or other instrumentality or any other person or entity is
required to authorize, or is otherwise required in connection with, the
execution and delivery of this Proxy or the undersigned's performance of the
terms of this Proxy or the validity or enforceability of this Proxy (other than
any required amendment to any Statement on Schedule 13D of the undersigned
caused by the existence and terms of this Proxy).
3. Proxy Irrevocable. The undersigned agrees and acknowledges
that, as a stockholder of Nu-West, he will recieve substantial consideration in
connection with the Merger, and that this Proxy is given in consideration of,
and as an inducement to, the execution of the Merger Agreement by Agrium and
Agrium Sub, and that the proxy granted hereby is and shall be deemed to be
coupled with an interest and is not revocable, and shall not be terminated
(other than in accordance with Section 5 hereof) by any act of the undersigned
or by operation of law, whether by the death or incapacity of the undersigned or
by the occurrence of any other event or events whatsoever. The undersigned
further agrees that he will not grant any proxy or proxies inconsistent with
this Proxy. If requested by Agrium, the undersigned agrees that he will enter
into a voting agreement or similar arrangement with Agrium or its designee
relating to the Covered Shares, which agreement or arrangement will commit the
undersigned to vote the Covered Shares as specified in Section 1 hereof and will
contain substantially similar representations, restrictions on transfer or
disposition and termination provisions as this Proxy.
4. Transferability of Covered Shares. The undersigned will not
sell or otherwise transfer or dispose of any of the Covered Shares unless the
following conditions are met:
(a) prior written notice of this Proxy is given to the
transferee; and the transferee agrees that the shares
transferred will remain subject to this Proxy and, in
connection therewith, executes and delivers to Agrium
a proxy covering such shares in form and substance
satisfactory to Agrium, which proxy shall be in
substantially the form of this Proxy; or
(b) the transfer is to Agrium or its designee pursuant to
the tender offer described in the Merger Agreement,
it being agreed that the undersigned will, subject to
Section 5, tender the Covered Shares in such tender
offer.
5. Termination of Proxy. This Proxy (including the obligation
referred to in Section 4 to tender the Covered Shares) shall terminate
automatically on the earliest to occur of (i) the Effective Time, (ii)
termination of the Merger Agreement pursuant to Section 8.1 thereof, or (iii)
amendment of the Merger Agreement with respect to the price per share to be
received upon the merger or tender.
6. Miscellaneous. The undersigned understands and agrees that
Agrium is relying on this Proxy and may enforce its terms against the
undersigned, and that irreparable damage would occur in the event of breach of
any provision of the Proxy. The undersigned agrees that, in the event of such
breach, Agrium shall be entitled to specific performance of the terms hereof, in
addition to any other remedies that may be available at law or in equity. This
Proxy shall be governed by, and construed in accordance with, the laws of the
State of Delaware, regardless of the laws that might otherwise govern under
applicable principles of conflicts of law.
IN WITNESS WHEREOF, the undersigned has executed this Proxy as
of the date first set forth above.
Number of Covered Shares: 880,563
WEISS, PECK & GREER VENTURE
ASSOCIATES, L.P. LIQUIDATING TRUST
U/T/A dated December 30, 1994
By: Weiss, Peck & Greer, L.L.C.
By:s/Wesley W. Lang, Jr.
Wesley W. Lang, Jr.
Principal
EXHIBIT C
Pursuant to Rule 13d-1(f)(1)(iii) of Regulation 13D-G of the
General Rules and Regulations of the Securities and Exchange Commission under
the Securities Exchange Act of 1934, as amended, the undersigned agree that the
statement to which this Exhibit is attached is filed on behalf of each of them
in the capacities set forth herein below.
*
Wesley W. Lang, Jr.
s/Peter Pfister
Peter Pfister
WPG CORPORATE DEVELOPMENT ASSOCIATES II, L.P. LIQUIDATING TRUST
By: WEISS, PECK & GREER, L.L.C.
its sole trustee
By:s/Philip Greer
WEISS, PECK & GREER VENTURE ASSOCIATES, L.P. LIQUIDATING TRUST
By: WEISS, PECK & GREER, L.L.C.
its sole trustee
By:s/Philip Greer
WPG CORPORATE DEVELOPMENT ASSOCIATES III, L.P.
By: WPG CDA III, L.P.
its sole general partner
By:*
Wesley W. Lang, Jr.
WPG CDA III, L.P.
By:*
Wesley W. Lang, Jr.
WPG CORPORATE DEVELOPMENT ASSOCIATES III (OVERSEAS), LTD.
By:s/ Robin Jarvis
WEISS, PECK & GREER, L.L.C.
By:s/Philip Greer
*By:s/Robin Shanus
Robin B. Shanus
Attorney-in-Fact
EXHIBIT D
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned have
made, constituted and appointed, and by these presents does hereby make,
constitute and appoint each of Robin B. Shanus and Peter B. Pfister, with full
power of substitution, a true and lawful attorney-in-fact, for him and in his
name, place and stead to execute, acknowledge, deliver and file (a) any and all
filings required by Sections 13 and 16 of the Securities Exchange Act of 1934,
as amended, and the rules and regulations promulgated thereunder, respecting
securities beneficially owned by the undersigned, including, but not limited to,
Schedules 13D, Schedules 13G, Forms 3, Forms 4, and Forms 5, and (b) joint
filing agreements in connection with filings on Schedule 13D or Schedule 13G.
The validity of this Power of Attorney shall not be affected
in any manner by reason of the execution, at any time, of other powers of
attorney by the undersigned in favor of persons other than those named herein.
The undersigned agrees and represents to those dealing with
his attorneys-in-fact herein, Robin B. Shanus and Peter B. Pfister, that this
Power of Attorney may be voluntarily revoked only by written notice to such
attorney-in-fact.
WITNESS THE EXECUTION HEREOF this 14th day of August, 1995.
s/Wesley W. Lang, Jr.
Wesley W. Lang, Jr.
WPG CORPORATE DEVELOPMENT
ASSOCIATES III, L.P.
By: WPG CDA III, L.P.
its sole general partner
By:s/Wesley W. Lang, Jr.
Wesley W. Lang, Jr.
WPG CDA III, L.P.
By:s/Wesley W. Lang, Jr.
Wesley W. Lang, Jr.
