UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington. D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 10)
__
TRISTAR Corporation
___________________
(Formerly Ross Cosmetics Distribution Centers, Inc.)
____________________________________________________
(Name of Issuer)
Common Stock, $0.01 Par Value
____________________________________________________________________________
(Title of Class of Securities)
778242107
_____________________________________
(CUSIP Number)
Robert B. McCaw, Esq.; Wilmer, Cutler & Pickering; 2445 M Street, N.W.,
Washington, D.C. 20037; 202-663-6586 and Kirit Sheth; P.O. Box 16758;
Jebel Ali Free Zone; Dubai, United Arab Emirates, Tel: 011-97-14-519-444
_________________________________________________________________________
(Name, Address and Telephone Number of Person Authorized to Receive
Notices and Communications)
July 31, 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.
<PAGE> 2 of 20
*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).
SEC 1746 (12-91)
<PAGE>
<PAGE> 3 of 20
SCHEDULE 13D
CUSIP NO. 778242107
1 Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
Mahendra Sheth
2 Check the Appropriate Box if a Member of a Group* (a)_X_
(b)
3 SEC Use Only
4 Source of Funds*
AF
5 Check Box if disclosure of legal proceedings ____
is required pursuant to items 2(d) or 2(e)
6 Citizenship or place of organization
India
7 Sole Voting Power
Number of
Shares -0-
Beneficially 8 Shared Voting Power
Owned by
each 6,420,174 shares, includes 2,400,000 shares
Reporting Person capable of being acquired through
with exercise of a warrant
9 Sole Dispositive Power
-0-
10 Shared Dispositive Power
6,420,174 shares, includes 2,400,000 shares
capable of being acquired through exercise
of a warrant
11 Aggregate amount beneficially owned by each reporting person
6,420,174 shares, includes 2,400,000 shares capable of being
acquired through exercise of a warrant
12 Check box if the aggregate amount in row (11) excludes certain
shares* ____
13 Percent of Class represented by amount in row (11)
70.9
14 Type of reporting person*
IN<PAGE>
<PAGE> 4 of 20
SCHEDULE 13D
CUSIP NO. 778242107
1 Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
Shashikant S. Sheth
2 Check the Appropriate Box if a Member of a Group* (a)_X_
(b)
3 SEC Use Only
4 Source of Funds*
AF
5 Check Box if disclosure of legal proceedings ____
is required pursuant to items 2(d) or 2(e)
6 Citizenship or place of organization
India
7 Sole Voting Power
Number of
Shares -0-
Beneficially 8 Shared Voting Power
Owned by
each 6,420,174 shares, includes 2,400,000 shares
Reporting Person capable of being acquired through
with exercise of a warrant
9 Sole Dispositive Power
-0-
10 Shared Dispositive Power
6,420,174 shares, includes 2,400,000 shares
capable of being acquired through exercise
of a warrant
11 Aggregate amount beneficially owned by each reporting person
6,420,174 shares, includes 2,400,000 shares capable of being
acquired through exercise of a warrant
12 Check box if the aggregate amount in row (11) excludes certain
shares* ____
13 Percent of Class represented by amount in row (11)
70.9
14 Type of reporting person*
IN<PAGE>
<PAGE> 5 of 20
SCHEDULE 13D
CUSIP NO. 778242107
1 Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
Kirit Sheth
2 Check the Appropriate Box if a Member of a Group* (a)_X_
(b)
3 SEC Use Only
4 Source of Funds*
AF
5 Check Box if disclosure of legal proceedings ____
is required pursuant to items 2(d) or 2(e)
6 Citizenship or place of organization
India
7 Sole Voting Power
Number of
Shares -0-
Beneficially 8 Shared Voting Power
Owned by
each 6,420,174 shares, includes 2,400,000 shares
Reporting Person capable of being acquired through
with exercise of a warrant
9 Sole Dispositive Power
-0-
10 Shared Dispositive Power
6,420,174 shares, includes 2,400,000 shares
capable of being acquired through exercise
of a warrant
11 Aggregate amount beneficially owned by each reporting person
6,420,174 shares, includes 2,400,000 shares capable of being
acquired through exercise of a warrant
12 Check box if the aggregate amount in row (11) excludes certain
shares* ____
13 Percent of Class represented by amount in row (11)
70.9
14 Type of reporting person*
IN<PAGE>
<PAGE> 6 of 20
SCHEDULE 13D
CUSIP NO. 778242107
1 Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
Jamnadas Sheth
2 Check the Appropriate Box if a Member of a Group* (a)_X_
(b)
3 SEC Use Only
4 Source of Funds*
AF
5 Check Box if disclosure of legal proceedings ____
is required pursuant to items 2(d) or 2(e)
6 Citizenship or place of organization
India
7 Sole Voting Power
Number of
Shares -0-
Beneficially 8 Shared Voting Power
Owned by
each 6,420,174 shares, includes 2,400,000 shares
Reporting Person capable of being acquired through
with exercise of a warrant
9 Sole Dispositive Power
-0-
10 Shared Dispositive Power
6,420,174 shares, includes 2,400,000 shares
capable of being acquired through exercise
of a warrant
11 Aggregate amount beneficially owned by each reporting person
6,420,174 shares, includes 2,400,000 shares capable of being
acquired through exercise of a warrant
12 Check box if the aggregate amount in row (11) excludes certain
shares* ____
13 Percent of Class represented by amount in row (11)
70.9
14 Type of reporting person*
IN<PAGE>
<PAGE> 7 of 20
SCHEDULE 13D
CUSIP NO. 778242107
1 Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
Jayesh Sheth
2 Check the Appropriate Box if a Member of a Group* (a)
(b)_X_
3 SEC Use Only
4 Source of Funds*
Not applicable
5 Check Box if disclosure of legal proceedings ____
is required pursuant to items 2(d) or 2(e)
6 Citizenship or place of organization
England
7 Sole Voting Power
Number of
Shares -0-
Beneficially 8 Shared Voting Power
Owned by
each -0-
Reporting Person
with
9 Sole Dispositive Power
-0-
10 Shared Dispositive Power
-0-
11 Aggregate amount beneficially owned by each reporting person
-0-
12 Check box if the aggregate amount in row (11) excludes certain
shares* ____
13 Percent of Class represented by amount in row (11)
Not applicable
14 Type of reporting person*
IN
<PAGE>
<PAGE> 8 of 20
SCHEDULE 13D
CUSIP NO. 778242107
1 Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
Virendra Sheth
2 Check the Appropriate Box if a Member of a Group* (a)
(b)_X_
3 SEC Use Only
4 Source of Funds*
Not applicable
5 Check Box if disclosure of legal proceedings ____
is required pursuant to items 2(d) or 2(e)
6 Citizenship or place of organization
USA
7 Sole Voting Power
Number of
Shares -0-
Beneficially 8 Shared Voting Power
Owned by
each -0-
Reporting Person
with 9 Sole Dispositive Power
-0-
10 Shared Dispositive Power
-0-
11 Aggregate amount beneficially owned by each reporting person
-0-
12 Check box if the aggregate amount in row (11) excludes certain
shares* ____
13 Percent of Class represented by amount in row (11)
Not applicable
14 Type of reporting person*
IN
<PAGE>
<PAGE> 9 of 20
SCHEDULE 13D
CUSIP NO. 778242107
1 Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
Starion International Limited
2 Check the Appropriate Box if a Member of a Group* (a)_X_
(b)
3 SEC Use Only
4 Source of Funds*
AF
5 Check Box if disclosure of legal proceedings ____
is required pursuant to items 2(d) or 2(e)
6 Citizenship or place of organization
British Virgin Islands
7 Sole Voting Power
Number of
Shares -0-
Beneficially 8 Shared Voting Power
Owned by
each 6,313,174 shares, includes 2,400,000 shares
Reporting Person capable of being acquired through exercise
with of a warrant
9 Sole Dispositive Power
-0-
10 Shared Dispositive Power
6,313,174 shares, includes 2,400,000 shares
capable of being acquired through exercise
of a warrant
11 Aggregate amount beneficially owned by each reporting person
6,313,174 shares, includes 2,400,000 shares capable of being
acquired through exercise of a warrant
12 Check box if the aggregate amount in row (11) excludes certain
shares* ____
13 Percent of Class represented by amount in row (11)
69.8
14 Type of reporting person*
00<PAGE>
<PAGE> 10 of 20
This Amendment No. 10 to the Statement on Schedule 13D
filed jointly by Mahendra Sheth, Shashikant Sheth, Kirit Sheth, and Jamnadas
Sheth (collectively the "Core Sheth Families"), together with Starion
International Limited ("Starion"), Jayesh Sheth, and Virendra Sheth (all of
the foregoing referred to collectively as the "Reporting Persons") (the
"Schedule 13D") pursuant to a joint filing agreement attached hereto as
Exhibit 1, relates to the Common Stock of TRISTAR CORPORATION, formerly
known as Ross Cosmetics Distribution Centers, Inc. (the "Issuer").
The Schedule 13D is amended as follows:
Item 1. Security and Issuer.
____________________
This amendment relates to the merger agreement entered
into among Eurostar Perfumes, Inc. ("Eurostar"), Transvit Manufacturing
Corporation ("Transvit"), and the Issuer as further described in Item 4
below (the "Merger Agreement") and to the Common Stock Purchase Warrant
acquired by Starion International Limited ("Starion") as described in
Amendment 6, dated December 29, 1994. The principal executive offices of
the Issuer are located at 12500 San Pedro Avenue, Suite 500, San Antonio, TX
78216.
Item 2. Identity and Background.
_______________________
No amendment.
Item 3. Source and Amounts of Funds or Other Consideration.
__________________________________________________
The 9,977,800 shares of common stock of the Issuer to
be acquired by the Core Sheth Families as described in Item 4, will be
acquired in a merger transaction in which the Issuer will receive from the
Core Sheth Families all of the shares of Eurostar, the entity to be merged
into the Issuer.
Item 4. Purpose of Transaction.
______________________
On July 31, 1995, an Agreement and Plan of Merger (the
"Merger Agreement") was entered into among the Issuer, Eurostar, and
Transvit. This Merger Agreement has been approved by the Issuer's
Acquisition Committee and Board of Directors and will be submitted to a vote
of the Issuer's common stockholders to be held on August 30, 1995.
Eurostar is a non-public, Texas corporation that is
wholly-owned by Transvit. Transvit is a British Virgin Islands corporation
that is wholly owned by the Core Sheth Families. The Core Sheth Families
also own 4,020,174 shares or 60.5% of the common stock of the Issuer in
addition to warrants that enable them to purchase an additional 2,400,000
shares of the Issuer's common stock, bringing their total percentage
beneficial ownership of the Issuer to 70.9%
<PAGE> 11 of 20
Eurostar is the Issuer's principal supplier of perfume
products under a distribution agreement entered into on October 24, 1992,
and discussed in Amendment No. 1 to Schedule 13D. Upon completion of the
merger, this distribution agreement will terminate.
If the merger is completed, the Issuer will receive all
of the Core Sheth Families' shares of Eurostar in return for 9,977,800 newly
issued shares of the Issuer, and Eurostar will be merged into the Issuer,
with the Issuer being the surviving corporation assuming all of the rights
and obligations of Eurostar.
The purposes of the merger are to reduce the current
profitability and cash flow problems of the Issuer, to expand the Issuer's
existing market base, to eliminate certain potential conflicts of interest
between the Issuer and Eurostar, and to increase the Issuer's flexibility in
future financings and acquisitions. The Core Sheth Families have no current
plans to engage in a Rule 13e-3 transaction, nor is the merger motivated by
such a purpose. The Core Sheth Families reserve the right, however, to
change their intent in the future, or take any actions regarding any of the
matters described herein, directly or as a participant with others, based on
their continuing review of their investment in shares of the common stock of
the Issuer and future developments that affect the Issuer.
Under the Merger Agreement, sixty percent of the
combined worth of the Issuer and Eurostar will be assigned to Eurostar and
40 percent to the Issuer. When the shares of the Issuer's common stock
already beneficially owned by the Core Sheth Families are taken into
account, the transaction will result in the Core Sheth Families having
beneficial ownership of approximately 86.2% of the outstanding shares of the
Issuer's common stock immediately following the merger.
With respect to the corporate governance of Tristar
following the merger, the Core Sheth Families do not currently plan to
initiate any changes in the Issuer's certificate of incorporation or bylaws,
and they expect that the following directors will remain on the Issuer's
Board of Directors: Viren S. Sheth, Shashikant S. Sheth, Richard P.
Rifenburgh, and Robert R. Sparacino. No decision has been made at this time
with respect to other possible changes in the composition of the Board. In
addition, it is anticipated that the current executive officers of the
Issuer and Eurostar will become comparable executive officers of the Issuer
following the merger.
In connection with the merger, the Issuer will agree to
change the exercise price of the two-million-share Common Stock Purchase
Warrant (the "Warrant") acquired by Starion in December 1994 and described
in Amendment 6 to Schedule 13D. The exercise price will be repriced at an
amount, if lower than the current exercise price, equal to the lowest
average closing sales price of the Issuer's common stock in any consecutive
20-day trading period during the time period beginning with the filing of
the Certificate of Merger and Articles of Merger with the Secretaries of
State of Delaware and Texas, respectively, and ending on August 31, 1996.
The exercise price of the Warrant will increase 10% per share on December
15, 2001, on December 15, 2002, and on December 15, 2003, on a cumulative
and compounded basis. The Issuer's agreement to change the exercise price
<PAGE> 12 of 20
of the Warrant will be subject to consummation of the merger. The Issuer
and Starion have not yet executed a final agreement revising the terms of
the Warrant.
Completion of the merger is subject to the following
contingencies: (1) the merger must be approved by an affirmative vote of 66
2/3% of the outstanding shares of the Issuer's common stock. The Core Sheth
Families currently own, directly or indirectly, 60.5% of the Issuer's
outstanding shares of common stock (not including warrants) and intend to
vote in favor of the merger; (2) the shares of Tristar common stock to be
issued upon consummation of the merger must be approved for listing on the
NASDAQ/National Market System; (3) the merger, in the opinion of Coopers &
Lybrand, must qualify for treatment as a reorganization within the meaning
of section 368(a) of the Internal Revenue Code and shall be treated
substantially similar to a "pooling of interests" for accounting purposes;
(4) Tristar shall have received from its investment advisory firm an opinion
that the terms of the merger are fair to minority stockholders. Other
conditions to each party's obligation to complete the merger are contained
in Article VI of the Merger Agreement.
The Merger Agreement may be terminated at any time
prior to its completion by the mutual consent of Tristar and Eurostar, or in
the discretion of either Tristar or Eurostar under certain adverse
circumstances described in section 7.1 of the Merger Agreement.
As of this filing, under Rule 13d-3(d)(1)(i) the Core
Sheth Families continue to have beneficial ownership of 6,420,174 shares of
common stock of the Issuer. If the merger is completed, the Core Sheth
Families will acquire beneficial ownership of an additional 9,977,800
shares, so that they will have a total beneficial ownership (including
warrants) of 86.2% of the common stock of the Issuer.
Item 5. Interest in Securities of the Issuer.
____________________________________
No amendment.
Item 6. Contracts, Arrangements, Understandings or Relationships
________________________________________________________
with Respect to Securities of the Issuer.
________________________________________
The information set forth in Item 4 is incorporated by
reference.
Item 7. Material to be Filed as Exhibits.
________________________________
1. Written Agreement of the Reporting Persons relating
to the filing of the Schedule 13D dated August 28, 1992, the Amendment No. 1
dated November 5, 1992, the Amendment No. 2 dated November 30, 1992, the
Amendment No. 3 dated June 23, 1993, the Amendment No. 4 dated September 7,
1993, the Amendment No. 5 dated April 6, 1994, the Amendment No. 6 dated
December 29, 1994, the Amendment No. 7 dated December 29, 1994, the
Amendment No. 8 dated March 13, 1995, the Amendment No. 9 dated June 19,
1995, and this Amendment No. 10 as required by Rule 13d-1(f).
<PAGE> 13 of 20
2. Agreement and Plan of Merger among Eurostar
Perfumes, Inc., Transvit Manufacturing Corporation, and Tristar Corporation,
dated July 31, 1995.
<PAGE>
<PAGE> 14 of 20
Signature
After reasonable inquiry and to the best of my
knowledge and belief, I certify that the information set forth in this
statement is true, complete and correct.
/s/ Kirit Sheth
___________________________________
Kirit Sheth, Individually
Dated: August 7, 1995
<PAGE>
<PAGE> 15 of 20
Signature
After reasonable inquiry and to the best of my
knowledge and belief, I certify that the information set forth in this
statement is true, complete and correct.
/s/ Jamnadas Sheth
___________________________________
Jamnadas Sheth, Individually
Dated: August 7, 1995
<PAGE>
<PAGE> 16 of 20
Signature
After reasonable inquiry and to the best of my
knowledge and belief, I certify that the information set forth in this
statement is true, complete and correct.
/s/ Mahendra Sheth
___________________________________
Mahendra Sheth, Individually
Dated: August 7, 1995
<PAGE>
<PAGE> 17 of 20
Signature
After reasonable inquiry and to the best of my
knowledge and belief, I certify that the information set forth in this
statement is true, complete and correct.
/s/ Shashikant Sheth
___________________________________
Shashikant Sheth, Individually
Dated: August 7, 1995
<PAGE>
<PAGE> 18 of 20
Signature
After reasonable inquiry and to the best of my
knowledge and belief, I certify that the information set forth in this
statement is true, complete and correct.
Starion International Ltd.
By /s/ Shashikant Sheth
______________________________
Shashikant Sheth
Title: Director
Dated: August 7, 1995
<PAGE>
<PAGE> 19 of 20
Signature
After reasonable inquiry and to the best of my
knowledge and belief, I certify that the information set forth in this
statement is true, complete and correct.
/s/ Virendra Sheth
___________________________________
Virendra Sheth, Individually
Dated: August 7, 1995
<PAGE>
<PAGE> 20 of 20
Signature
After reasonable inquiry and to the best of my
knowledge and belief, I certify that the information set forth in this
statement is true, complete and correct.
/s/ Jayesh Sheth
___________________________________
Jayesh Sheth, Individually
Dated: August 7, 1995
EXHIBIT 1
The undersigned agree that the Statement on Schedule
13D dated August 28, 1992, the Amendment No. 1 dated November 5, 1992, the
Amendment No. 2 dated November 30, 1992, the Amendment No. 3 dated June 23,
1993, the Amendment No. 4 dated August 31, 1993, the Amendment No. 5 dated
March 31, 1993, the Amendment No. 6 dated December 14, 1994, the Amendment
No. 7 dated December 29, 1994, the Amendment No. 8 dated March 13, 1995, the
Amendment No. 9 dated June 19, 1995, and this Amendment No. 10 are being
filed with the Securities and Exchange Commission on behalf of each of
Mahendra Sheth, Shashikant Sheth, Kirit Sheth, Jamnadas Sheth, Starion
International, Ltd., Virendra Sheth, and Jayesh Sheth.
/s/ Jamnadas Sheth
___________________________________
Jamnadas Sheth, Individually
/s/ Shashikant Sheth
___________________________________
Shashikant Sheth, Individually
/s/ Mahendra Sheth
___________________________________
Mahendra Sheth, Individually
/s/Kirit Sheth
___________________________________
Kirit Sheth, Individually
/s/ Virendra Sheth
___________________________________
Virendra Sheth, Individually
/s/ Jayesh Sheth
___________________________________
Jayesh Sheth, Individually
<PAGE> 2 of 2
Starion International Ltd.
By
/s/ Shashikant Sheth
______________________________
Name: Shashikant Sheth
Title: Director
Dated: August 7, 1995
EXHIBIT 2
AGREEMENT AND PLAN OF MERGER
Among
Eurostar Perfumes, Inc.,
Transvit Manufacturing Corporation
and
Tristar Corporation
July 1, 1995
<PAGE>
<PAGE> 2 of 37
AGREEMENT AND PLAN OF MERGER
This Agreement and Plan of Merger (the "Agreement"), executed the
31st day of July, 1995 (the "Date Hereof"), to be effective July 1, 1995
(the "Effective Date"), is among Eurostar Perfumes, Inc., a Texas
corporation ("Eurostar"), Transvit Manufacturing Corporation, a British
Virgin Islands corporation and the sole stockholder of Eurostar ("Parent"),
and TRISTAR CORPORATION, a Delaware corporation ("Tristar").
WHEREAS, subject to and in accordance with the terms and conditions
of this Agreement, as of the Date Hereof, the respective Boards of Directors
of Eurostar and Tristar, and Parent as sole stockholder of Eurostar, have
approved the merger of Eurostar with and into Tristar (the "Merger"),
whereby each issued and outstanding share of common stock, par value $.001
per share, of Eurostar ("Eurostar Common Stock") not owned directly or
indirectly by Eurostar will be converted into the right to receive common
stock, par value $.01 per share, of Tristar ("Tristar Common Stock"), as
provided herein;
WHEREAS, for federal income tax purposes, it is intended that the
Merger shall qualify as a reorganization within the meaning of
Section 368(a) of the Internal Revenue Code of 1986, as amended (the
"Code");
WHEREAS, the Merger is intended to be accounted for in a manner
similar to a "pooling of interests" for accounting purposes; and
WHEREAS, the parties hereto desire to set forth certain
representations, warranties and covenants made by each to the other as an
inducement to the consummation of the Merger;
NOW, THEREFORE, in consideration of the premises and of the mutual
representations, warranties and covenants herein contained, the parties
hereto hereby agree as follows:
ARTICLE I
THE MERGER
1.1 The Merger. Subject to and in accordance with the terms and
conditions of this Agreement and in accordance with the Delaware General
Corporation Law (the "DGCL"), and the Texas Business Corporation Act (the
"TBCA"), at the Effective Time (as defined in Section 1.3) Eurostar shall be
merged with and into Tristar. As a result of the Merger, the separate
corporate existence of Eurostar shall cease and Tristar shall continue as
the surviving corporation (sometimes referred to herein as the "Surviving
Corporation") and shall succeed to and assume all of the rights and
obligations of Eurostar in accordance with the DGCL and the TBCA.
1.2 Closing Date. The closing of the transactions contemplated
by this Agreement (the "Closing") shall take place at the offices of
Fulbright & Jaworski L.L.P., 300 Convent Street, Suite 2200, San Antonio,
Texas, as soon as practicable after the satisfaction or waiver of the
conditions set forth in Article VI or at such other time and place and on
<PAGE> 3 of 37
such other date as Eurostar and Tristar shall agree; provided, that the
closing conditions set forth in Article VI shall have been satisfied or
waived at or prior to such time. The date on which the Closing occurs is
herein referred to as the "Closing Date".
1.3 Consummation of the Merger. As soon as practicable on the
Closing Date, the parties hereto will cause the Merger to be consummated by
filing with the Secretary of State of the State of Delaware a certificate of
merger in such form as required by, and executed in accordance with, the
relevant provisions of the DGCL, and by filing with the Secretary of State
of the State of Texas articles of merger in such form as required by, and
executed in accordance with, the Texas Business Corporation Act (the
"TBCA"). The "Effective Time" of the Merger as that term is used in this
Agreement shall mean the later to occur of the filing of such certificate of
merger or articles of merger.
1.4 Effects of the Merger. The Merger shall have the effects
set forth in the applicable provisions of the DGCL and the TBCA and as set
forth herein.
1.5 Certificate of Incorporation; Bylaws. The Certificate of
Incorporation and bylaws of Tristar, as in effect immediately prior to the
Effective Time and as amended as described in the Preliminary Proxy
Statement (hereinafter defined), shall be the Certificate of Incorporation
and bylaws of the Surviving Corporation and thereafter shall continue to be
its Certificate of Incorporation and bylaws until amended as provided
therein and under the DGCL.
1.6 Directors and Officers. The directors of Tristar
immediately prior to the Effective Time shall be the initial directors of
the Surviving Corporation, each to hold office in accordance with the
Certificate of Incorporation and bylaws of the Surviving Corporation, and
the officers of Tristar immediately prior to the Effective Time shall be the
initial officers of the Surviving Corporation, in each case until their
respective successors are duly elected or appointed and qualified.
1.7 Conversion of Securities; Exchange; Fractional
Shares. Subject to the terms and conditions of this Agreement, at the
Effective Time, by virtue of the Merger and without any action on the part
of Eurostar, Tristar or their respective stockholders:
(a) Each share of Eurostar Common Stock issued and
outstanding immediately prior to the Effective Time (the "Shares"),
other than any Shares to be canceled pursuant to Section 1.7(b),
shall be converted, subject to the provisions of this Section 1.7,
into the right to receive 9.97781 shares of Tristar Common Stock;
provided, however, that no fractional shares of Eurostar Common
Stock shall be issued, and, in lieu thereof, the number of shares
shall be rounded downward to the next whole number.
(b) Each share of Eurostar Common Stock held in the
treasury of Eurostar immediately prior to the Effective Time shall
be canceled and extinguished at the Effective Time without any
conversion thereof and no payment shall be made with respect
thereto.
<PAGE> 4 of 37
(c) As soon as practicable after the Effective Time,
each holder of an outstanding certificate that prior thereto
represented Shares shall be entitled, upon surrender thereof to the
transfer agent for the Tristar Common Stock, to receive in exchange
therefor a certificate or certificates representing the number of
whole shares of Tristar Common Stock into which the Shares so
surrendered shall have been converted as aforesaid, of such
denominations and registered in such names as such holder may
request. Until so surrendered, each outstanding certificate that,
prior to the Effective Time, represented Shares shall be deemed from
and after the Effective Time, for all corporate purposes, other than
the payment of earlier dividends and distributions, to evidence the
ownership of the number of full shares of Tristar Common Stock into
which such Shares shall have been converted pursuant to this
Section 1.7. Unless and until any such outstanding certificates
shall be surrendered, no dividends or other distributions payable to
the holders of Tristar Common Stock, as of any time on or after the
Effective Time, shall be paid to the holders of such outstanding
certificates which prior to the Effective Time represented Shares;
provided, however, that, upon surrender and exchange of such
outstanding certificates, there shall be paid to the record holders
of the certificates issued and exchanged therefor the amount,
without interest thereon, of dividends and other distributions, if
any, that theretofore were declared and became payable since the
Effective Time with respect to the number of full shares of Tristar
Common Stock issued to such holders.
(d) All shares of Tristar Common Stock into which the
Shares shall have been converted pursuant to this Section 1.7 shall
be issued in full satisfaction of all rights pertaining to such
converted Shares.
1.8 Taking of Necessary Action; Further Action. The parties
hereto shall take all such reasonable and lawful action as may be necessary
or appropriate in order to effectuate the Merger as promptly as possible.
If, at any time after the Effective Time, any such further action is
necessary or desirable to carry out the purposes of this Agreement and to
vest the Surviving Corporation with full right, title and possession to all
assets, property, rights, privileges, powers and franchises of Eurostar or
Tristar, such corporations shall direct their respective officers and
directors to take all such lawful and necessary action.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Unless stated otherwise, all representations and warranties are as
of the Effective Date.
2.1 Certain Definitions. As used in this Agreement, the
following terms shall have the meanings ascribed to them below:
(a) "Environmental Laws" shall mean all federal, state,
local or municipal laws, rules, regulations, statutes, ordinances or
orders of any governmental entity relating to (i) the control of any
<PAGE> 5 of 37
potential pollutant or protection of the air, water or land,
(ii) solid, gaseous or liquid waste generation, handling, treatment,
storage, disposal or transportation, and (iii) exposure to
hazardous, toxic or other substances alleged to be harmful. The
term "Environmental Laws" shall include, but not be limited to, the
Clean Air Act, 42 U.S.C. Section 7401 et seq., the Clean Water Act,
33 U.S.C. Section 1251 et seq., the Resource Conservation and
Recovery Act, 42 U.S.C. Section 6901, et seq., the Toxic Substances
Control Act, 15 U.S.C. Section 2601 et seq., the Safe Drinking Water
Act, 42 U.S.C. Section 300f et seq. and the Comprehensive
Environmental Response, Compensation and Liability Act ("CERCLA"),
42 U.S.C. Section 9601 et seq.
(b) "Environmental Permit" shall mean any permit,
license, approval, registration, identification number or other
authorization with respect to any business or other operations
conducted by Eurostar or any Eurostar Subsidiary (as defined in
Section 2.2(a)) or Tristar or any Tristar subsidiary (as defined in
Section 2.3(a)).
(c) "Hazardous Materials" shall mean any (i) petroleum
or petroleum products, (ii) hazardous substances as defined by
Section 101(14) of CERCLA or (iii) any other chemical, substance or
waste that is regulated under any Environmental Law.
(d) "Knowledge" of any party shall mean the collective
knowledge of such party's officers, directors and key employees.
(e) "Material Adverse Change" with respect to any party
shall mean a material adverse change in the business, financial
condition or results of operations of such party and its
subsidiaries, taken as a whole; provided, however, that in no event
shall the term "Material Adverse Change" be deemed to include (a)
changes in national economic conditions or industry conditions
generally, (b) changes, or possible changes, in federal, state or
local statutes and regulations applicable to Eurostar, Tristar or
the Surviving Corporation.
(f) "Material Adverse Effect" on any party shall mean
any material adverse effect on the business, financial condition or
results of operations of such party and its subsidiaries, taken as a
whole or on such party's ability to consummate the Merger;
(g) "Permitted Liens" shall mean (A) liens for taxes
not due and payable or which are being contested in good faith,
(B) mechanics', warehousemen's and other statutory liens incurred in
the ordinary course of business, and (C) defects and irregularities
in title and encumbrances which are not substantial in character or
amount and do not materially impair the use of the property or asset
in question.
2.2 Representations and Warranties of Eurostar and
Parent. Eurostar and Parent hereby, jointly and severally, represent and
warrant to Tristar that, except as set forth in the Preliminary Proxy
Statement or in the disclosure letter delivered by Eurostar to Tristar on
<PAGE> 6 of 37
the Date Hereof (the "Eurostar Disclosure Letter") that as of the Effective
Date:
(a) Organization and Compliance with Law. Eurostar and
each of its corporate subsidiaries (the "Eurostar Subsidiaries") is
a corporation duly organized, validly existing and in good standing
under the laws of the jurisdiction in which it is organized and has
all requisite corporate power and authority and all necessary
governmental authorizations to own, lease and operate all of its
properties and assets and to carry on its business as now being
conducted, except where the failure to have such governmental
authority would not, either individually or in the aggregate, have a
Material Adverse Effect. Eurostar and each of the Eurostar
Subsidiaries is duly qualified as a foreign corporation to do
business, and is in good standing, in each jurisdiction in which the
property owned, leased or operated by it or the nature of the
business conducted by it makes such qualification necessary, except
in such jurisdictions where the failure to be duly qualified does
not and would not, either individually or in the aggregate, have a
Material Adverse Effect. Neither Eurostar nor any of the Eurostar
Subsidiaries, nor any employee or, to the Knowledge of Eurostar, any
agent of Eurostar or any of the Eurostar Subsidiaries, has made any
payment or transfer of funds or assets to any person or conferred
any benefit on any person or received any funds, assets or personal
benefit in violation of any applicable law, rule or regulation.
Eurostar and each of the Eurostar Subsidiaries is in compliance with
all applicable laws, judgments, orders, rules and regulations,
domestic and foreign, except where failure to be in such compliance
would not, either individually or in the aggregate, have a Material
Adverse Effect. Eurostar has heretofore delivered to Tristar true
and complete copies of the articles of incorporation and bylaws of
Eurostar. The Eurostar Disclosure Letter sets forth each of the
Eurostar Subsidiaries and their respective jurisdictions of
incorporation.
(b) Capitalization.
(i) The authorized capital stock of Eurostar
consists of 1,000,000 shares of Eurostar Common Stock, par
value $.001 per share, all of which are issued and
outstanding. All issued shares of Eurostar Common Stock are
validly issued, fully paid and nonassessable and were not
issued in violation of the preemptive rights of any person.
Eurostar is not a party to, and has no Knowledge of, any
agreement or arrangement providing for registration rights
with respect to any capital stock or other securities of
Eurostar. All issued shares of Eurostar Common Stock are
owned by Parent free and clear of all liens, charges,
encumbrances, adverse claims and options of any nature. All
outstanding shares of capital stock of Eurostar Subsidiaries
are owned by Eurostar free and clear of all liens, charges,
encumbrances, adverse claims and options of any nature.
(ii) Other than as set forth in this Section
2.2(b), there are not as of the Effective Date, and at the
<PAGE> 7 of 37
Effective Time there will not be, any (A) shares of capital
stock or other equity securities of Eurostar outstanding or
(B) outstanding options, warrants, scrip, rights to
subscribe for, calls or commitments of any character
whatsoever relating to, or securities or rights convertible
into or exchangeable for, shares of any class of capital
stock of Eurostar, or contracts, understandings or
arrangements to which Eurostar is a party, or by which it is
or may be bound, to issue additional shares of its capital
stock or options, warrants, scrip or rights to subscribe
for, or securities or rights convertible into or
exchangeable for, any additional shares of its capital
stock.
(c) Authorization and Validity of Agreement. Eurostar
and Parent have all requisite corporate power and authority to enter
into this Agreement and to perform their respective obligations
hereunder. As of the Date hereof, the execution and delivery by
Eurostar and Parent of this Agreement and the consummation by each
of them of the transactions contemplated hereby have been duly
authorized by all necessary corporate action. As of the Date
hereof, this Agreement has been duly executed and delivered by
Eurostar and Parent and is the valid and binding obligation of
Eurostar and Parent, enforceable against Eurostar and Parent in
accordance with its terms, except as such enforceability may be
limited or affected by (i) bankruptcy, insolvency, reorganization,
moratorium, liquidation, arrangement, fraudulent transfer,
fraudulent conveyance and other similar laws (including court
decisions) now or hereafter in effect and affecting the rights and
remedies of creditors generally or providing for the relief of
debtors, (ii) the refusal of a particular court to grant equitable
remedies, including, without limitation, specific performance and
injunctive relief, and (iii) general principles of equity
(regardless of whether such remedies are sought in a proceeding in
equity or at law) and except as the enforceability of any
indemnification provision contained in this Agreement may be limited
by applicable federal or state securities laws.
(d) No Approvals or Notices Required; No Conflict with
Instruments to which Eurostar or Parent is a Party. Neither the
execution and delivery of this Agreement nor the performance by
Eurostar or Parent of its obligations hereunder, nor the
consummation of the transactions contemplated hereby by Eurostar or
Parent, will (i) conflict with the charter or bylaws of Eurostar or
Parent; (ii) assuming satisfaction of the requirements set forth in
clause (iii) below, violate any provision of law applicable to
Eurostar or Parent; (iii) except for (A) requirements of Federal and
state securities law, and (B) the filing of articles of merger by
Eurostar in accordance with the TBCA, require any consent or
approval of, or filing with or notice to, any public body or
authority, domestic or foreign, under any provision of law
applicable to Eurostar or Parent; or (iv) require any consent,
approval or notice under, or violate, breach, be in conflict with or
constitute a default (or an event that, with notice or lapse of time
or both, would constitute a default) under, or permit the
<PAGE> 8 of 37
termination of any provision of, or result in the creation or
imposition of any lien upon any properties, assets or business of
Eurostar or Parent under, any note, bond, indenture, mortgage, deed
of trust, lease, franchise, permit, authorization, license,
contract, instrument or other agreement or commitment or any order,
judgment or decree to which Eurostar or Parent is a party or by
which Eurostar or Parent or any of their respective assets or
properties are bound or encumbered, except those that have already
been given, obtained or filed and except in any of the cases
enumerated in clauses (ii) through (iv), those that, in the
aggregate, would not have a Material Adverse Effect.
(e) Eurostar Financial Statements; Material Agreements.
Eurostar has delivered to Tristar copies of the consolidated balance
sheet of Eurostar and the Eurostar Subsidiaries as of September 30,
1992, 1993 and 1994, and March 31, 1995, and consolidated statements
of income and consolidated statements of shareholders' equity of
Eurostar and the Eurostar Subsidiaries for the fiscal periods then
ended. The financial statements delivered by Eurostar pursuant to
this Section 2.2(e) are collectively referred to herein as the
"Eurostar Consolidated Financial Statements." The Eurostar
Consolidated Financial Statements do not include the pro forma
financial statements of Tristar and Eurostar included in the
Preliminary Proxy Statement or to be included in the Proxy Statement
(hereinafter defined).
Each of the Eurostar Consolidated Financial Statements
(including any related notes or schedules) was, and each of the
Eurostar Consolidated Financial Statements to be included in the
Proxy Statement will be, prepared in accordance with generally
accepted accounting principles applied on a consistent basis (except
as may be noted therein or in the notes or schedules thereto), and
fairly presents or will fairly present, as the case may be, the
consolidated financial position of Eurostar and the Eurostar
Subsidiaries as of the dates thereof and the statements of income,
cash flows (or changes in financial position prior to the approval
of Statement of Financial Accounting Standards Number 95) and
stockholders' equity for the periods then ended (subject, in the
case of the unaudited interim financial statements, to normal year-
end audit adjustments on a basis comparable with past periods in
accordance with generally accepted accounting principles). As of
the Effective Date, neither Eurostar nor any of the Eurostar
Subsidiaries has any material liabilities, absolute or contingent,
not reflected in the Eurostar Consolidated Financial Statements,
except for (i) liabilities not required under generally accepted
accounting principles to be reflected on such financial statements
or the notes thereto and (ii) liabilities incurred in the ordinary
course of business since March 31, 1995, consistent with past
operations and not relating to the borrowing of money. The Eurostar
Disclosure Letter contains a list of all material contracts of
Eurostar and the Eurostar Subsidiaries, true and correct copies of
which have been made available to Tristar.
<PAGE> 9 of 37
(f) Conduct of Business in the Ordinary Course; Absence
of Certain Changes and Events. Since March 31, 1995, except as
contemplated by this Agreement, Eurostar and the Eurostar
Subsidiaries have conducted their business only in the ordinary and
usual course, and there has not been (i) any Material Adverse Change
in Eurostar or any condition, event or development that reasonably
may be expected to result in any such Material Adverse Change;
(ii) any change by Eurostar in its accounting methods, principles or
practices; or (iii) any declaration, setting aside or payment of any
dividends or distributions in respect of the Eurostar Common Stock
or any redemption, purchase or other acquisition of any of its
securities or any securities of any of the Eurostar Subsidiaries.
(g) Certain Fees. With the exception of the engagement
of Principal Financial Services, Inc. and Duncan-Smith Co., by
Eurostar, neither Eurostar nor any of its officers, directors or
employees, on behalf of Eurostar or any of the Eurostar Subsidiaries
or its or their respective Boards of Directors (or any committee
thereof), has employed any financial advisor, broker or finder or
incurred any liability for any financial advisory, brokerage or
finders' fees or commissions in connection with the transactions
contemplated hereby.
(h) Litigation. There are no claims, actions, suits,
investigations or proceedings pending or, to the knowledge of
Eurostar or any of the Eurostar Subsidiaries, threatened against or
affecting Eurostar or any of the Eurostar Subsidiaries or any of
their respective properties at law or in equity, or any of their
respective employee benefit plans or fiduciaries of such plans, or
before or by any federal, state, municipal or other governmental
agency or authority, or before any arbitration board or panel,
wherever located, that individually or in the aggregate if adversely
determined would have a Material Adverse Effect, or that involve the
risk of criminal liability.
(i) Employee Benefit Plans. The Eurostar Disclosure
Letter sets forth a complete and accurate list of:
(i) each "employee welfare benefit plan" (as
such term is defined in Section 3(1) of the Employee
Retirement Income Security Act of 1974, as amended
("ERISA")) (the "Eurostar Welfare Plans");
(ii) each "employee pension benefit plan" (as
such term is defined in Section 3(2) of ERISA) (the
"Eurostar Pension Plans"); and
(iii) all other employee benefit agreements or
arrangements, including, but not limited to, deferred
compensation plans, incentive plans, bonus plans or
arrangements, stock option plans, stock purchase plans,
golden parachute agreements, severance pay plans, dependent
care plans, cafeteria plans, employee assistance programs,
scholarship programs, employment contracts and other similar
plans, agreements and arrangements (collectively, with the
<PAGE> 10 of 37
Eurostar Welfare Plans and the Eurostar Pension Plans, the
"Eurostar Benefit Plans"),
that were in effect as of the Effective Date or were maintained
within three years of the Closing Date, or were approved before the
Effective Date but are not yet effective, for the benefit of
directors, officers, employees or former employees (or their
beneficiaries) of Eurostar, any of the Eurostar Subsidiaries
incorporated in the United States (the "Eurostar U.S. Subsidiaries")
or any member of a controlled group or affiliated service group (as
defined in Section 414(b), (c) or (m) of the Code) that is
incorporated or domiciled in the United States of which Eurostar or
any of the Eurostar U.S. Subsidiaries is a member (collectively, the
"Eurostar Group"). Eurostar and the Eurostar U.S. Subsidiaries have
provided to Tristar, as to each Eurostar Benefit Plan, as
applicable, access to a complete and accurate copy of (i) such plan,
agreement or arrangement; (ii) the trust, group annuity contract or
other document that provides the funding for such plan; (iii) the
most recent annual Form 5500, 990 and 1041 reports; (iv) the most
recent actuarial report or valuation statement; (v) the most current
summary plan description, booklet or other descriptive written
materials, and any summary of material modifications prepared after
each such summary plan description; (vi) the most recent Internal
Revenue Service ("IRS") determination letter and all rulings or
determinations requested from the IRS subsequent to the date of such
determination letter; and (vii) all other pending correspondence
from the IRS or the Department of Labor that relates to such plan
received by Eurostar.
Each Eurostar Welfare Plan and each Eurostar Pension Plan
(i) is in compliance with ERISA, including, but not limited to, all
reporting and disclosure requirements of Part 1 of Subtitle B of
Title I of ERISA, except where the failure to be in compliance would
not, either individually or in the aggregate, have a Material
Adverse Effect; (ii) is in compliance with the Code, except where
the failure to be in compliance would not, either individually or in
the aggregate, have a Material Adverse Effect; (iii) has had the
appropriate Form 5500 timely filed for any Eurostar Pension Plan for
each year of its existence and for any Eurostar Welfare Plan for
each year of its existence after 1987; (iv) has not engaged in any
transaction described in Section 406 or 407 of ERISA or Section 4975
of the Code unless it received an exemption under Section 408 of
ERISA or Section 4975 of the Code, as applicable, or unless such
transaction has been corrected and all applicable excise taxes paid
or waived; (v) has at all times complied with the bonding
requirements of Section 412 of ERISA; (vi) has no issue pending
(other than the payment of benefits in the normal course or the
qualification of the plan pursuant to an application pending before
the IRS) nor any issue resolved adversely to the Eurostar Group that
may subject the Eurostar Group to the payment of a penalty,
interest, tax or other amount; and (vii) can be unilaterally
terminated or amended on no more than 90 days' notice. No notice
has been received by the Eurostar Group of an increase or proposed
increase in any premium relative to any Eurostar Benefit Plan, and
no amendment to any Eurostar Benefit Plan within the last twelve
<PAGE> 11 of 37
months has increased the rate of employer contributions thereunder.
Each Eurostar Benefit Plan that is intended to be a
voluntary employee benefit association has been submitted to and
approved by the IRS as exempt from federal income tax under
Section 501(c)(9) of the Code, or the applicable submission period
relating to any such plan will not have ended prior to the Closing.
No Eurostar Benefit Plan will cause the Eurostar Group to have
liability for severance pay as a result of this Agreement. The
Eurostar Group does not provide employee post-retirement medical or
health coverage or contribute to or maintain any employee welfare
benefit plan that provides for health benefit coverage following
termination of employment except as required by Section 4980B(f) of
the Code or other applicable statute, nor has the Eurostar Group
made any representations, agreements, covenants or commitments to
provide that coverage. All group health plans maintained by the
Eurostar Group have been operated in compliance with
Section 4980B(f) of the Code.
Each Eurostar Pension Plan has been submitted to and
approved as qualifying under Section 401(a) of the Code by the IRS
or the applicable remedial amendment period relating to such plan
will not have ended prior to the Closing. No facts have occurred
which, if known by the IRS, could cause disqualification of any
Eurostar Pension Plan. Each Eurostar Pension Plan to which
Section 412 of the Code is applicable fully complies with the
funding requirements of that Section and there is no accumulated
funding deficiency as defined in Section 302(a)(2) of ERISA (whether
or not waived) in any such plan. The Eurostar Group has paid all
premiums (including interest, charges and penalties for late
payment) due the Pension Benefit Guaranty Corporation (the "PBGC")
with respect to each Eurostar Pension Plan for which premiums are
required. No Eurostar Pension Plan has been terminated under
circumstances that would result in liability to the PBGC or the
Eurostar Group. There has been no "reportable event" (as defined in
Section 4043(b) of ERISA and the regulations under that Section)
with respect to any Eurostar Pension Plan subject to Title IV of
ERISA. With respect to each Eurostar Pension Plan, the Eurostar
Group has not (i) ceased operations at a facility so as to become
subject to the provisions of Section 4062(e) of ERISA,
(ii) withdrawn as a substantial employer so as to become subject to
the provisions of Section 4063 of ERISA or (iii) ceased making
contributions on or before the Closing Date to any such plan subject
to Section 4064(a) of ERISA to which the Eurostar Group made
contributions at any time during the six years prior to the Closing
Date. Neither the Eurostar Group nor any member thereof has made a
complete or partial withdrawal from a multiemployer plan (as defined
in Section 3(37) of ERISA) so as to incur withdrawal liability as
defined in Section 4201 of ERISA.
Eurostar's subsidiaries incorporated outside of the United
States and any benefit plans maintained by any of them for the
benefit of their directors, officers, employees or former employees
(or any of their beneficiaries) are in compliance with applicable
laws pertaining to such plans in the jurisdictions of such
<PAGE> 12 of 37
subsidiaries, except where such failure to be in compliance would
not, either individually or in the aggregate, have a Material
Adverse Effect.
(j) Taxes. All returns and reports, including, without
limitation, information and withholding returns and reports ("Tax
Returns") of or relating to any foreign, federal, state or local
tax, assessment or other governmental charge ("Taxes" or a "Tax")
that are required to be filed on or before the Closing Date by or
with respect to Eurostar or any of the Eurostar Subsidiaries, or any
other corporation that is or was a member of an affiliated group
(within the meaning of Section 1504(a) of the Code) of corporations
of which Eurostar was a member for any period ending on or prior to
the Closing Date, have been or will be duly and timely filed
(including any applicable extensions), and all Taxes, including
interest and penalties, due and payable pursuant to such Tax Returns
have been paid or adequately provided for in reserves established by
Eurostar, except where the failure to file, pay or provide for would
not, either individually or in the aggregate, have a Material
Adverse Effect. No Tax Returns of or with respect to Eurostar or
any of the Eurostar Subsidiaries have been audited by the applicable
governmental authority. There is no material claim against Eurostar
or any of the Eurostar Subsidiaries with respect to any Taxes, and
no material assessment, deficiency or adjustment has been asserted
or proposed with respect to any Tax Return of or with respect to
Eurostar or any of the Eurostar Subsidiaries that has not been
adequately provided for in reserves established by Eurostar. The
total amounts set up as liabilities for current and deferred Taxes
in the balance sheet dated March 31, 1995, included in the Eurostar
Consolidated Financial Statements have been prepared in accordance
with generally accepted accounting principles and are sufficient to
cover the payment of all material Taxes, including any penalties or
interest thereon and whether or not assessed or disputed, that are,
or are hereafter found to be, or to have been, due with respect to
the operations of Eurostar and the Eurostar Subsidiaries through the
periods covered thereby.
(k) Environmental. Except such matters which would
not, either individually or in the aggregate, have a Material
Adverse Effect:
(i) Neither Eurostar nor any Eurostar
Subsidiary has caused or, to the Knowledge of Eurostar,
permitted the release or disposal of Hazardous Materials
onto, at or near any property owned or operated by Eurostar
or any Eurostar Subsidiary.
(ii) To the Knowledge of Eurostar, neither
Eurostar nor any Eurostar Subsidiary has caused or allowed
the generation, use, treatment, storage or disposal of
Hazardous Materials in connection with any business or other
operations conducted by Eurostar or any Eurostar Subsidiary
except in accordance with all applicable Environmental Laws.
<PAGE> 13 of 37
(iii) To the Knowledge of Eurostar, Eurostar and
the Eurostar Subsidiaries have obtained and are in
substantial compliance with all Environmental Permits
required with respect to the business or other operations
conducted by Eurostar or any Eurostar Subsidiary.
(iv) To the Knowledge of Eurostar, Eurostar and
the Eurostar Subsidiaries have filed all reports required by
Environmental Laws.
(v) Eurostar and the Eurostar Subsidiaries have
provided Tristar access to all environmental audits or
assessments prepared by or for, or received by, Eurostar or
any Eurostar Subsidiary with respect to any business or
other operations conducted by Eurostar or any Eurostar
Subsidiary.
(vi) Eurostar has no Knowledge of any facts,
conditions or circumstances that could cause Eurostar or any
Eurostar Subsidiary to incur any loss, liability, damage,
costs or expenses, with respect to any individual event in
excess of $50,000, or in the aggregate in excess of
$250,000, over Eurostar's accrued liabilities related to
environmental matters reflected on Eurostar's most recent
consolidated balance sheet contained in the Eurostar
Consolidated Financial Statements, for (A) violations of
United States or foreign Environmental Laws, (B) failure to
obtain a United States or foreign Environmental Permit,
(C) response or remedial costs under any Environmental Law
or (D) personal injury or property damage resulting from
exposure to or releases of Hazardous Materials under United
States or foreign Environmental Laws.
(vii) Neither Eurostar nor any Eurostar
Subsidiary has received any inquiry or notice, nor does
Eurostar have any reason to suspect or believe any of them
will receive any inquiry or notice, of any actual or
potential proceeding, claim, lawsuit or loss that arises
under or relates to any Environmental Law.
(viii) Neither Eurostar nor any Eurostar
Subsidiary is currently operating or required to be
operating under any compliance order, schedule, decree or
agreement, any consent decree, order or agreement, or any
corrective action decree, order or agreement issued or
entered into under any Environmental Law.
(ix) No underground storage tanks are present on
the properties owned or operated by either Eurostar or any
Eurostar U.S. Subsidiary and, to the Knowledge of Eurostar,
any underground storage tanks previously removed from any
properties owned or operated by either Eurostar or any
Eurostar U.S. Subsidiary were removed in accordance with
applicable Environmental Laws.
<PAGE> 14 of 37
(x) To the Knowledge of Eurostar, all prior
operations conducted by Eurostar or any Eurostar Subsidiary
have been conducted in compliance with all applicable
limitations, restrictions, conditions, standards,
prohibitions, requirements and obligations established under
applicable Environmental Laws.
(l) No Severance Payments. None of Eurostar or the
Eurostar Subsidiaries will owe a severance payment or similar
obligation to any of their respective employees, officers or
directors as a result of the Merger or the transactions contemplated
by this Agreement, nor will any of such persons be entitled to an
increase in severance payments or other benefits as a result of the
Merger or the transactions contemplated by this Agreement in the
event of the subsequent termination of their employment.
(m) Voting Requirements. The consent of the holders of
at least a majority of the outstanding shares of Eurostar Common
Stock is the only action of the holders of any class or series of
the capital stock of Eurostar necessary to approve this Agreement
and the Merger.
(n) Insurance. The Eurostar Disclosure Letter sets
forth all policies of insurance in effect as of the Effective Date
relating to the business or operations of Eurostar and the Eurostar
Subsidiaries.
(o) Title to Property. Eurostar and each of the
Eurostar Subsidiaries have good and indefeasible title to all of
their respective real properties purported to be owned in fee and
good title to all their respective other material assets, free and
clear of all mortgages, liens, charges and encumbrances other than
Permitted Liens.
2.3 Representations and Warranties of Tristar. Tristar hereby
represents and warrants to Eurostar that, except as set forth in the
Preliminary Proxy Statement or in the disclosure letter delivered by Tristar
to Eurostar on the Date Hereof (the "Tristar Disclosure Letter") that as of
the Effective Date:
(a) Organization and Compliance with Law. Tristar and
each of its subsidiaries (the "Tristar Subsidiaries") is a
corporation duly organized, validly existing and in good standing
under the laws of the jurisdiction in which it is organized and has
all requisite corporate power and authority and all necessary
governmental authorizations to own, lease and operate all of its
properties and assets and to carry on its business as now being
conducted, except where the failure to have such governmental
authority would not, either individually or in the aggregate, have a
Material Adverse Effect. Tristar and each of the Tristar
Subsidiaries is duly qualified as a foreign corporation to do
business, and is in good standing, in each jurisdiction in which the
property owned, leased or operated by it or the nature of the
business conducted by it makes such qualification necessary, except
in such jurisdictions where the failure to be duly qualified does
<PAGE> 15 of 37
not and would not, either individually or in the aggregate, have a
Material Adverse Effect. Tristar and each of the Tristar
Subsidiaries is in compliance with all applicable laws, judgments,
orders, rules and regulations, domestic and foreign, except where
failure to be in such compliance would not, either individually or
in the aggregate, have a Material Adverse Effect. Neither Tristar
nor any of the Tristar Subsidiaries, nor any employee or, to the
Knowledge of Tristar, any agent of Tristar or any of the Tristar
Subsidiaries, has made any payment or transfer of funds or assets to
any person or conferred any benefit on any person or received any
funds, assets or personal benefit in violation of any applicable
law, rule or regulation. Tristar has heretofore delivered to
Eurostar true and complete copies of the certificate or articles of
incorporation and bylaws of Tristar and each Tristar Subsidiary.
The Tristar Disclosure Letter sets forth each of the Tristar
Subsidiaries and their respective jurisdictions of incorporation.
(b) Capitalization.
(i) The authorized capital stock of Tristar
consists of 10,000,000 shares of Tristar Common Stock, par
value $.01 per share, and 1,000,000 shares of preferred
stock, par value $.05 per share. As of June 15, 1995, there
were issued and outstanding 6,648,996 shares of Tristar
Common Stock and no shares of preferred stock, and no shares
of Tristar Common Stock were held as treasury shares. As of
June 15, 1995, there were reserved for issuance 2,666,634
shares of Tristar Common Stock pursuant to the stock option
plan and warrants described in Section 2.3(b)(ii). All
issued shares of Tristar Common Stock are validly issued,
fully paid and nonassessable and no holder thereof is
entitled to preemptive rights. Tristar is not a party to,
and has no Knowledge of, any voting agreement, voting trust
or similar agreement or arrangement relating to any class or
series of its capital stock, or any agreement or arrangement
providing for registration rights with respect to any
capital stock or other securities of Tristar. All
outstanding shares of capital stock of the Tristar
Subsidiaries are owned by Tristar free and clear of all
liens, charges, encumbrances, adverse claims and options of
any nature.
(ii) As of the Effective Date, there are
outstanding options (the "Tristar Options") issued to
employees and directors to purchase an aggregate of 200,428
shares of Tristar Common Stock under Tristar's 1991 Stock
Option Plan; 66,206 shares of Tristar Common Stock under a
Nonqualified Stock Option Agreement and outstanding warrants
issued to affiliates of Eurostar to purchase an aggregate of
2,400,000 shares of Tristar Common Stock (the "Tristar
Warrants"). Other than as set forth in this Section 2.3(b),
there are not as of the Effective Date, and at the Effective
Time there will not be, any (A) shares of capital stock or
other equity securities of Tristar outstanding (other than
Tristar Common Stock issued pursuant to the exercise of
<PAGE> 16 of 37
Tristar Options or Tristar Warrants as described herein) or
(B) outstanding options, warrants, scrip, rights to
subscribe for, calls or commitments of any character
whatsoever relating to, or securities or rights convertible
into or exchangeable for, shares of any class of capital
stock of Tristar, or contracts, understandings or
arrangements to which Tristar is a party, or by which it is
or may be bound, to issue additional shares of its capital
stock or options, warrants, scrip or rights to subscribe
for, or securities or rights convertible into or
exchangeable for, any additional shares of its capital
stock.
(c) Authorization and Validity of Agreement. Tristar
has all requisite corporate power and authority to enter into this
Agreement and to perform its obligations hereunder. The execution
and delivery by Tristar of this Agreement and the consummation by it
of the transactions contemplated hereby have been duly authorized by
all necessary corporate action (subject only, with respect to the
Merger, to adoption of this Agreement by its stockholders as
provided for in Section 5.2). On or prior to the Date Hereof, the
Board of Directors of Tristar and the Acquisition Committee of the
Board of Directors of Tristar have determined to recommend approval
of the Merger to the stockholders of Tristar, and such determination
is in effect as of the Date Hereof. This Agreement has been duly
executed and delivered by Tristar and is the valid and binding
obligation of Tristar, enforceable against Tristar in accordance
with its terms, except as such enforceability may be limited or
affected by (i) bankruptcy, insolvency, reorganization, moratorium,
liquidation, arrangement, fraudulent transfer, fraudulent conveyance
and other similar laws (including court decisions) now or hereafter
in effect and affecting the rights and remedies of creditors
generally or providing for the relief of debtors, (ii) the refusal
of a particular court to grant equitable remedies, including,
without limitation, specific performance and injunctive relief, and
(iii) general principles of equity (regardless of whether such
remedies are sought in a proceeding in equity or at law) and except
as the enforceability of any indemnification provision contained in
this Agreement may be limited by applicable federal or state
securities laws.
(d) No Approvals or Notices Required; No Conflict with
Instruments to which Tristar or any of the Tristar Subsidiaries is a
Party. Neither the execution and delivery of this Agreement nor the
performance by Tristar of its obligations hereunder, nor the
consummation of the transactions contemplated hereby by Tristar,
will (i) conflict with the Certificate of Incorporation or bylaws of
Tristar or the charter or bylaws of any of the Tristar Subsidiaries;
(ii) assuming satisfaction of the requirements set forth in
clause (iii) below, violate any provision of law applicable to
Tristar or any of the Tristar Subsidiaries; (iii) except for
(A) requirements of Federal and state securities law, and (B) the
filing of a certificate of merger in accordance with the DGCL,
require any consent or approval of, or filing with or notice to, any
public body or authority, domestic or foreign, under any provision
<PAGE> 17 of 37
of law applicable to Tristar or any of the Tristar Subsidiaries; or
(iv) require any consent, approval or notice under, or violate,
breach, be in conflict with or constitute a default (or an event
that, with notice or lapse of time or both, would constitute a
default) under, or permit the termination of any provision of, or
result in the creation or imposition of any lien upon any
properties, assets or business of Tristar or any of the Tristar
Subsidiaries under, any note, bond, indenture, mortgage, deed of
trust, lease, franchise, permit, authorization, license, contract,
instrument or other agreement or commitment or any order, judgment
or decree to which Tristar or any of the Tristar Subsidiaries is a
party or by which Tristar or any of the Tristar Subsidiaries or any
of its or their respective assets or properties are bound or
encumbered, except those that have already been given, obtained or
filed and except in any of the cases enumerated in clauses (ii)
through (iv), those that, in the aggregate, would not have a
Material Adverse Effect.
(e) Commission Filings; Financial Statements. Since
August 31, 1991, Tristar and each of the Tristar Subsidiaries have
filed all reports, registration statements and other filings,
together with any amendments required to be made with respect
thereto, that they have been required to file with the Commission
under the Securities Act and the Exchange Act. All reports,
registration statements and other filings (including all notes,
exhibits and schedules thereto and documents incorporated by
reference therein) filed by Tristar with the Commission since August
31, 1991 through the Date Hereof, together with any amendments
thereto, are sometimes collectively referred to as the "Tristar
Commission Filings". Tristar has heretofore delivered to Eurostar
copies of the Tristar Commission Filings. As of the respective
dates of their filing with the Commission, except as otherwise
disclosed in later filings with the Commission, the Tristar
Commission Filings complied, and the Proxy Statement (as defined in
Section 5.1) (except with respect to information concerning Eurostar
and the Eurostar Subsidiaries furnished by or on behalf of Eurostar
to Tristar specifically for use therein) will comply, in all
material respects with the Securities Act, the Exchange Act and the
rules and regulations of the Commission promulgated thereunder, and
did not or will not, as the case may be, contain any untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
made therein, in light of the circumstances under which they were
made, not misleading.
All material contracts of Tristar and the Tristar
Subsidiaries have been included in the Tristar Commission Filings,
except for those contracts not required to be filed pursuant to the
rules and regulations of the Commission, and copies of all such
contracts have been made available to Eurostar.
Each of the consolidated financial statements (including any
related notes or schedules) included in the Tristar Commission
Filings was, and each of the consolidated financial statements to be
included in the Proxy Statement (except for those financial
<PAGE> 18 of 37
statements of Eurostar and the Eurostar Subsidiaries furnished by or
on behalf of Eurostar to Tristar specifically for use therein) will
be, prepared in accordance with generally accepted accounting
principles applied on a consistent basis (except as may be noted
therein or in the notes or schedules thereto), and fairly presents
or will fairly present, as the case may be, the consolidated
financial position of Tristar and the Tristar Subsidiaries as of the
dates thereof and the statements of income, cash flows (or changes
in financial position prior to the approval of Statement of
Financial Accounting Standards Number 95) and stockholders' equity
for the periods then ended (subject, in the case of the unaudited
interim financial statements, to normal year-end audit adjustments
on a basis comparable with past periods in accordance with generally
accepted accounting principles). As of the Date Hereof, Tristar has
no material liabilities, absolute or contingent, not reflected in
the Tristar Commission Filings, except for (i) liabilities not
required under generally accepted accounting principles to be
reflected on such financial statements or the notes thereto and
(ii) liabilities incurred in the ordinary course of business since
May 31, 1995, consistent with past operations and not relating to
the borrowing of money.
(f) Conduct of Business in the Ordinary Course; Absence
of Certain Changes and Events. Since February 28, 1995, except as
contemplated by this Agreement or disclosed in the Tristar
Commission Filings filed with the Commission since that date,
Tristar and the Tristar Subsidiaries have conducted their business
only in the ordinary and usual course, and there has not been
(i) any Material Adverse Change in Tristar or any condition, event
or development that reasonably may be expected to result in any such
Material Adverse Change; (ii) any change by Tristar in its
accounting methods, principles or practices; (iii) any revaluation
by Tristar or any of the Tristar Subsidiaries of any of its or their
assets, including, without limitation, writing down the value of
inventory or writing off notes or accounts receivable other than in
the ordinary course of business; (iv) any entry by Tristar or any of
the Tristar Subsidiaries into any commitment or transaction material
to Tristar and the Tristar Subsidiaries, taken as a whole; (v) any
declaration, setting aside or payment of any dividends or
distributions in respect of the Tristar Common Stock or any
redemption, purchase or other acquisition of any of its securities
or any securities of any of the Tristar Subsidiaries; (vi) any
damage, destruction or loss (whether or not covered by insurance)
materially adversely affecting the properties or business of Tristar
and the Tristar Subsidiaries, taken as a whole; (vii) any increase
in excess of $100,000 in indebtedness for borrowed money; (viii) any
granting of a security interest or lien on any material property or
assets of Tristar and the Tristar Subsidiaries, taken as a whole,
other than Permitted Liens; or (ix) any increase in or establishment
of any bonus, insurance, severance, deferred compensation, pension,
retirement, profit sharing, stock option (including, without
limitation, the granting of stock options, stock appreciation
rights, performance awards or restricted stock awards), stock
purchase or other employee benefit plan or any other increase in the
compensation payable or to become payable to any officers or key
<PAGE> 19 of 37
employees of Tristar or any of the Tristar Subsidiaries.
(g) Certain Fees. With the exception of the engagement
of Howard Frazier Barker Elliott by Tristar, neither Tristar nor any
of its officers, directors or employees, on behalf of Tristar or any
of the Tristar Subsidiaries or its or their respective Boards of
Directors (or any committee thereof), has employed any financial
advisor, broker or finder or incurred any liability for any
financial advisory, brokerage or finders' fees or commissions in
connection with the transactions contemplated hereby.
(h) Litigation. Except as disclosed in the Tristar
Commission Filings, there are no claims, actions, suits,
investigations or proceedings pending or, to the Knowledge of
Tristar or any of the Tristar Subsidiaries, threatened against or
affecting Tristar or any of the Tristar Subsidiaries or any of their
respective properties at law or in equity, or any of their
respective employee benefit plans or fiduciaries of such plans, or
before or by any federal, state, municipal or other governmental
agency or authority, or before any arbitration board or panel,
wherever located, that individually or in the aggregate if adversely
determined would have a Material Adverse Effect, or that involve the
risk of criminal liability.
(i) Employee Benefit Plans. The Tristar Disclosure
Letter sets forth a complete and accurate list of:
(i) each "employee welfare benefit plan" (as
such term is defined in Section 3(1) of ERISA) (the "Tristar
Welfare Plans");
(ii) each "employee pension benefit plan" (as
such term is defined in Section 3(2) of ERISA) (the "Tristar
Pension Plans"); and
(iii) all other employee benefit agreements or
arrangements, including, but not limited to, deferred
compensation plans, incentive plans, bonus plans or
arrangements, stock option plans, stock purchase plans,
golden parachute agreements, severance pay plans, dependent
care plans, cafeteria plans, employee assistance programs,
scholarship programs, employment contracts and other similar
plans, agreements and arrangements (collectively, with the
Tristar Welfare Plans and the Tristar Pension Plans, the
"Tristar Benefit Plans"),
that were in effect as of the Effective Date or were maintained
within three years of the Closing Date, or were approved before this
date but are not yet effective, for the benefit of directors,
officers, employees or former employees (or their beneficiaries) of
Tristar, any of the Tristar Subsidiaries or any member of a
controlled group or affiliated service group as defined in
Sections 414(b),(c),(m) and (o) of the Code of which Tristar or any
of the Tristar Subsidiaries is a member (collectively, the "Tristar
Group"). Tristar has provided to Eurostar, as to each Tristar
<PAGE> 20 of 37
Benefit Plan, as applicable, access to a complete and accurate copy
of (i) such plan, agreement or arrangement; (ii) the trust, group
annuity contract or other document that provides the funding for
such plan; (iii) the most recent annual Form 5500, 990 and 1041
reports; (iv) the most recent actuarial report or valuation
statement; (v) the most current summary plan description, booklet or
other descriptive written materials, and any summary of material
modifications prepared after each such summary plan description;
(vi) the most recent IRS determination letter and all rulings or
determinations requested from the IRS subsequent to the date of such
determination letter; and (vii) all other pending correspondence
from the IRS or the Department of Labor received by any member of
the Tristar Group that relates to such plan.
Each Tristar Welfare Plan and each Tristar Pension Plan
(i) is in compliance with ERISA, including, but not limited to, all
reporting and disclosure requirements of Part 1 of Subtitle B of
Title I of ERISA, except where the failure to be in compliance would
not, either individually or in the aggregate, have a Material
Adverse Effect; (ii) is in compliance with the Code, except where
the failure to be in compliance would not, either individually or in
the aggregate, have a Material Adverse Effect; (iii) has had the
appropriate Form 5500 timely filed for any Tristar Pension Plan for
each year of its existence and for any Tristar Welfare Plan for each
year of its existence after 1987; (iv) has not engaged in any
transaction described in Section 406 or 407 of ERISA or Section 4975
of the Code unless it received an exemption under Section 408 of
ERISA or Section 4975 of the Code, as applicable, or unless such
transaction has been corrected and all applicable excise taxes paid
or waived; (v) has at all times complied with the bonding
requirements of Section 412 of ERISA; (vi) has no issue pending
(other than the payment of benefits in the normal course or the
qualification of the plan pursuant to an application pending before
the IRS) nor any issue resolved adversely to the Tristar Group that
may subject the Tristar Group to the payment of a penalty, interest,
tax or other amount; and (vii) can be unilaterally terminated or
amended on no more than 90 days' notice. No notice has been
received by the Tristar Group of an increase or proposed increase in
any premium relative to any Tristar Benefit Plan, and no amendment
to any Tristar Benefit Plan within the last twelve months has
increased the rate of employer contributions thereunder.
Each Tristar Benefit Plan that is intended to be a voluntary
employee benefit association has been submitted to and approved by
the IRS as exempt from federal income tax under Section 501(c)(9) of
the Code, or the applicable submission period relating to any such
plan will not have ended prior to the Closing. No Tristar Benefit
Plan will cause the Tristar Group to have liability for severance
pay as a result of this Agreement. The Tristar Group does not
provide employee post-retirement medical or health coverage or
contribute to or maintain any employee welfare benefit plan that
provides for health benefit coverage following termination of
employment except as required by Section 4980B(f) of the Code or
other applicable statute, nor has the Tristar Group made any
representations, agreements, covenants or commitments to provide
<PAGE> 21 of 37
that coverage. All group health plans maintained by the Tristar
Group have been operated in compliance with Section 4980B(f) of the
Code.
Except for each Tristar Pension Plan that is an ERISA top-
hat plan, each Tristar Pension Plan has been submitted to and
approved as qualifying under Section 401(a) of the Code by the IRS
or the applicable remedial amendment period relating to such plan
will not have ended prior to the Closing. No facts have occurred
which, if known by the IRS, could cause disqualification of any
Tristar Pension Plan. Each Tristar Pension Plan to which
Section 412 of the Code is applicable fully complies with the
funding requirements of that Section and there is no accumulated
funding deficiency as defined in Section 302(a)(2) of ERISA (whether
or not waived) in any such plan. The Tristar Group has paid all
premiums (including interest, charges and penalties for late
payment) due the PBGC with respect to each Tristar Pension Plan for
which premiums are required. No Tristar Pension Plan has been
terminated under circumstances that would result in liability to the
PBGC or the Tristar Group. There has been no "reportable event" (as
defined in Section 4043(b) of ERISA and the regulations under that
Section) with respect to any Tristar Pension Plan subject to
Title IV of ERISA. With respect to each Tristar Pension Plan, the
Tristar Group has not (i) ceased operations at a facility so as to
become subject to the provisions of Section 4062(e) of ERISA,
(ii) withdrawn as a substantial employer so as to become subject to
the provisions of Section 4063 of ERISA or (iii) ceased making
contributions on or before the Closing Date to any such plan subject
to Section 4064(a) of ERISA to which the Tristar Group made
contributions at any time during the six years prior to the Closing
Date. Neither the Tristar Group nor any member thereof has made a
complete or partial withdrawal from a multiemployer plan (as defined
in Section 3(37) of ERISA) so as to incur withdrawal liability as
defined in Section 4201 of ERISA.
(j) Taxes. All Tax Returns of or relating to any Taxes
that are required to be filed on or before the Closing Date by or
with respect to Tristar or any of the Tristar Subsidiaries, or any
other corporation that is or was a member of an affiliated group
(within the meaning of Section 1504(a) of the Code) of corporations
of which Tristar was a member for any period ending on or prior to
the Closing Date, have been or will be duly and timely filed
(including any applicable extensions), and all Taxes, including
interest and penalties, due and payable pursuant to such Tax Returns
have been paid or adequately provided for in reserves established by
Tristar, except where the failure to file, pay or provide for would
not, either individually or in the aggregate, have a Material
Adverse Effect. All Tax Returns of or with respect to Tristar or
any of the Tristar Subsidiaries have been audited by the applicable
governmental authority, or the applicable statute of limitations has
expired, for all periods up to and including the tax year ended
August 31, 1986. There is no material claim against Tristar or any
of the Tristar Subsidiaries with respect to any Taxes, and no
material assessment, deficiency or adjustment has been asserted or
proposed with respect to any Tax Return of or with respect to
<PAGE> 22 of 37
Tristar or any of the Tristar Subsidiaries that has not been
adequately provided for in reserves established by Tristar. The
total amounts set up as liabilities for current and deferred Taxes
in the balance sheet dated February 28, 1995, included in the
Tristar Commission Filings have been prepared in accordance with
generally accepted accounting principles and are sufficient to cover
the payment of all material Taxes, including any penalties or
interest thereon and whether or not assessed or disputed, that are,
or are hereafter found to be, or to have been, due with respect to
the operations of Tristar and the Tristar Subsidiaries through the
periods covered thereby.
(k) Environmental. Except for such matters which would
not, individually or in the aggregate, have a Material Adverse
Effect:
(i) Neither Tristar nor any Tristar Subsidiary
has caused or, to the Knowledge of Tristar, permitted the
release or disposal of Hazardous Materials onto, at or near
any property owned or operated by Tristar or any Tristar
Subsidiary.
(ii) To the Knowledge of Tristar, neither
Tristar nor any Tristar Subsidiary has caused or allowed the
generation, use, treatment, storage or disposal of Hazardous
Materials in connection with any business or other
operations conducted by Tristar or any Tristar Subsidiary
except in accordance with all applicable Environmental Laws.
(iii) To the Knowledge of Tristar, Tristar and
the Tristar Subsidiaries have obtained and are in
substantial compliance with all Environmental Permits
required with respect to the business or other operations
conducted by Tristar or any Tristar Subsidiary.
(iv) To the Knowledge of Tristar, Tristar and
the Tristar Subsidiaries have filed all reports required by
Environmental Laws.
(v) Tristar and the Tristar Subsidiaries have
provided Eurostar access to all environmental audits or
assessments prepared by or for, or received by, Tristar or
any Tristar Subsidiary with respect to any business or other
operations conducted by Tristar or any Tristar Subsidiary.
(vi) Tristar has no Knowledge of any facts,
conditions or circumstances that could cause Tristar or any
Tristar Subsidiary to incur any loss, liability, damage,
costs or expenses, with respect to any individual event, in
excess of $50,000, or in the aggregate in excess of
$250,000, for (A) violations of Environmental Laws,
(B) failure to obtain an Environmental Permit, (C) response
or remedial costs under any Environmental Law or
(D) personal injury or property damage resulting from
exposure to or releases of Hazardous Materials.
<PAGE> 23 of 37
(vii) Neither Tristar nor any Tristar Subsidiary
has received any inquiry or notice, nor does Tristar have
any reason to suspect or believe any of them will receive
any inquiry or notice, of any actual or potential
proceeding, claim, lawsuit or loss that arises under or
relates to any Environmental Law.
(viii) Neither Tristar nor any Tristar Subsidiary
is currently operating or required to be operating under any
compliance order, schedule, decree or agreement, any consent
decree, order or agreement, or any corrective action decree,
order or agreement issued or entered into under any
Environmental Law.
(ix) No underground storage tanks are present on
the properties owned or operated by either Tristar or any
Tristar Subsidiary and, to the Knowledge of Tristar, any
underground storage tanks previously removed from any
properties owned or operated by either Tristar or any
Tristar Subsidiary were removed in accordance with
applicable Environmental Laws.
(x) To the Knowledge of Tristar, all prior
operations conducted by Tristar or any Tristar Subsidiary
have been conducted in compliance with all applicable
limitations, restrictions, conditions, standards,
prohibitions, requirements and obligations established under
applicable Environmental Laws.
(l) No Severance Payments. None of Tristar or the
Tristar Subsidiaries will owe a severance payment or similar
obligation to any of their respective employees, officers or
directors as a result of the Merger or the transactions contemplated
by this Agreement, nor will any of such persons be entitled to an
increase in severance payments or other benefits as a result of the
Merger or the transactions contemplated by this Agreement in the
event of the subsequent termination of their employment.
(m) Voting Requirements. The consent of the holders of
at least 66 2/3% of the outstanding shares of Tristar Common Stock
is the only action of the holders of any class or series of the
capital stock of Tristar necessary to approve this Agreement and the
Merger.
(n) Insurance. The Tristar Disclosure Letter sets
forth all policies of insurance in effect as of the Effective Date
relating to the business or operations of Tristar and the Tristar
Subsidiaries.
(o) Title to Property. As set forth in the Tristar
Commission Filings, Tristar and each of the Tristar Subsidiaries
have good and indefeasible title to all of their real properties
purported to be owned in fee and good title to all their other
material assets, free and clear of all mortgages, liens, charges and
encumbrances other than Permitted Liens.
<PAGE> 24 of 37
ARTICLE III
COVENANTS OF EUROSTAR PRIOR TO THE EFFECTIVE TIME
3.1 Conduct of Business by Eurostar Pending the Merger.
Eurostar covenants and agrees that, from the Effective Date of this
Agreement until the Effective Time, unless Tristar shall otherwise provide
its prior consent in writing (which consent shall not be unreasonably
withheld) or as disclosed in the Eurostar Disclosure Letter or the
Preliminary Proxy Statement or as otherwise expressly contemplated by this
Agreement:
(a) The business of Eurostar and the Eurostar
Subsidiaries shall be conducted only in, and Eurostar and the
Eurostar Subsidiaries shall not take any action except in, the
ordinary course of business and consistent with past practice;
(b) Eurostar shall not, and shall not permit any of the
Eurostar Subsidiaries to:
(i) split, combine or reclassify any
outstanding capital stock of Eurostar or any of the Eurostar
Subsidiaries, or authorize, declare, set aside or pay any
dividend payable in cash, stock, property or otherwise in
respect of the capital stock of Eurostar or any of the
Eurostar Subsidiaries;
(ii) authorize or pay any extraordinary bonuses
to employees;
(iii) grant any stock options or rights to
acquire Eurostar Common Stock or common stock of any of the
Eurostar Subsidiaries to any person or entity;
(iv) authorize or issue, sell, pledge, dispose
of or encumber any shares of capital stock of Eurostar or
any of the Eurostar Subsidiaries;
(v) other than in the ordinary course of
business and consistent with past practice and not relating
to the borrowing of money, sell, pledge, dispose of or
encumber any assets of Eurostar or any of the Eurostar
Subsidiaries;
(vi) redeem, purchase, acquire or offer to
acquire any shares of Eurostar Common Stock or common stock
of any of the Eurostar Subsidiaries;
(vii) enter into or grant any material change in
compensation, benefit, severance, consulting or stay-bonus
arrangements applicable to employees generally or applicable
to any employee with an annual salary in excess of $50,000;
(viii) acquire any corporation, partnership, other
<PAGE> 25 of 37
business organization or division thereof;
(ix) enter into any contract, agreement,
commitment or arrangement other than in the ordinary course
of business and consistent with past practice;
(x) other than capital expenditures in the
ordinary course of business and consistent with past
practice, authorize any single capital expenditure
(including any single capital lease) that is in excess of
$25,000 or capital expenditures (including capital leases)
that are, in the aggregate, in excess of $250,000;
(xi) amend or propose to amend the charter or
bylaws of Eurostar or any of the Eurostar Subsidiaries; or
(xii) take, and Eurostar shall use its reasonable
efforts to prevent any affiliate of Eurostar from taking,
any action that would prevent, with the passage of time, the
Merger's qualification for accounting treatment similar to
"pooling of interests" accounting treatment or prevent the
Merger from being treated for federal income tax purposes as
a reorganization within the meaning of Section 368(a) of the
Code.
(c) Eurostar shall use its reasonable efforts (i) to
preserve intact the business organization of Eurostar and each of
the Eurostar Subsidiaries, (ii) to maintain in effect any
franchises, authorizations or similar rights of Eurostar and each of
the Eurostar Subsidiaries, (iii) to keep available the services of
the current officers and key employees of Eurostar and each of the
Eurostar Subsidiaries, (iv) to preserve its goodwill with those
having business relationships with Eurostar and the Eurostar
Subsidiaries, (v) to maintain and keep the properties of Eurostar
and each of the Eurostar Subsidiaries in as good a repair and
condition as exists on the Effective Date, except for deterioration
due to ordinary wear and tear and damage due to casualty; and
(vi) to maintain in full force and effect insurance comparable in
amount and scope of coverage to that maintained on the Effective
Date by Eurostar and each of the Eurostar Subsidiaries;
(d) Eurostar shall, and shall cause the Eurostar
Subsidiaries to, perform their respective obligations under any
contracts and agreements to which any of them is a party or to which
any of their assets is subject, except to the extent such failure to
perform would not have a Material Adverse Effect on Eurostar, and
except for such obligations as Eurostar or the Eurostar Subsidiaries
in good faith may dispute; and
(e) Eurostar shall not, and shall not permit any of the
Eurostar Subsidiaries to, take any action that would, or that
reasonably could be expected to, result in any of the
representations and warranties set forth in this Agreement becoming
untrue. Eurostar promptly shall advise Tristar orally and in
writing of any change or event having, or which, insofar as
<PAGE> 26 of 37
reasonably can be foreseen, would have, a Material Adverse Effect on
Eurostar.
3.2 Access to Information; Confidentiality. From the Effective
Date to the Effective Time, Eurostar shall, and shall cause the Eurostar
Subsidiaries and its and their officers, directors, employees and
representatives to, afford the representatives of Tristar complete access
during normal business hours to its officers, employees, representatives,
properties, books and records, and shall furnish Tristar all financial,
operating and other data and information as Tristar, through its
representatives, reasonably may request.
Eurostar agrees to hold in confidence, and not to disclose to others
for any reason whatsoever, any non-public information received by it, any of
the Eurostar Subsidiaries or its or their representatives in connection with
the transactions contemplated hereby except (i) as required by law; (ii) for
disclosure to officers, directors, employees, representatives, shareholders
and affiliates of Eurostar and the Eurostar Subsidiaries as necessary in
connection with the transactions and filings contemplated hereby or as
necessary to the operation of Eurostar's business; and (iii) for information
which becomes publicly available other than through Eurostar. If the Merger
is not consummated, Eurostar will return all non-public documents and other
material obtained from Tristar, the Tristar Subsidiaries or its or their
representatives in connection with the transactions contemplated hereby, and
all copies, summaries and extracts thereof, or certify to Tristar that such
information has been destroyed.
ARTICLE IV
COVENANTS OF TRISTAR PRIOR TO THE EFFECTIVE TIME
4.1 Conduct of Business by Tristar Pending the Merger. Tristar
covenants and agrees that, from the Effective Date of this Agreement until
the Effective Time, unless Eurostar shall otherwise provide its prior
consent in writing (which consent shall not be unreasonably withheld) or as
disclosed in the Tristar Disclosure Letter or the Preliminary Proxy
Statement or as otherwise expressly contemplated by this Agreement:
(a) The business of Tristar and the Tristar
Subsidiaries shall be conducted only in, and Tristar and the Tristar
Subsidiaries shall not take any action except in, the ordinary
course of business and consistent with past practice;
(b) Tristar shall not, and shall not permit any of the
Tristar Subsidiaries to:
(i) split, combine or reclassify any
outstanding capital stock of Tristar or Sub, or authorize,
declare, set aside or pay any dividend payable in cash,
stock, property or otherwise in respect of the capital stock
of Tristar or any of the Tristar Subsidiaries;
(ii) authorize or pay any extraordinary bonuses
to employees;
<PAGE> 27 of 37
(iii) grant any stock options or rights to
acquire Tristar Common Stock or common stock of any of the
Tristar Subsidiaries to any person or entity, other than
options to purchase Tristar Common Stock issued pursuant to
employee stock option plans in amounts consistent with past
practice;
(iv) authorize or issue, sell, pledge, dispose
of or encumber any shares of capital stock of Tristar or any
of the Tristar Subsidiaries except pursuant to the Tristar
Options and other than as contemplated by this Agreement;
(v) other than in the ordinary course of
business and consistent with past practice and not relating
to the borrowing of money, sell, pledge, dispose of or
encumber any assets of Tristar or any of the Tristar
Subsidiaries;
(vi) redeem, purchase, acquire or offer to
acquire any shares of Tristar Common Stock or common stock
of any of the Tristar Subsidiaries;
(vii) enter into or grant any material change in
compensation, benefit, severance, consulting or stay-bonus
arrangements applicable to employees generally or applicable
to any employee with an annual salary in excess of $50,000;
(viii) acquire any corporation, partnership, other
business organization or division thereof;
(ix) enter into any contract, agreement,
commitment or arrangement other than in the ordinary course
of business and consistent with past practice;
(x) other than capital expenditures in the
ordinary course of business and consistent with past
practice, authorize any single capital expenditure
(including any single capital lease) that is in excess of
$25,000 or capital expenditures (including capital leases)
that are, in the aggregate, in excess of $250,000;
(xi) amend or propose to amend the charter or
bylaws of Tristar or Sub; or
(xii) take, and Tristar shall use its reasonable
efforts to prevent any affiliate of Tristar from taking, any
action that would prevent, with the passage of time, the
Merger's qualification for accounting treatment similar to
"pooling of interests" accounting treatment or prevent the
Merger from being treated for federal income tax purposes as
a reorganization within the meaning of Section 368(a) of the
Code.
<PAGE> 28 of 37
(c) Tristar shall use its reasonable efforts (i) to
preserve intact the business organization of Tristar and each of the
Tristar Subsidiaries, (ii) to maintain in effect any franchises,
authorizations or similar rights of Tristar and each of the Tristar
Subsidiaries, (iii) to keep available the services of the current
officers and key employees of Tristar and each of the Tristar
Subsidiaries, (iv) to preserve its goodwill with those having
business relationships with Tristar and the Tristar Subsidiaries,
(v) to maintain and keep the properties of Tristar and each of the
Tristar Subsidiaries in as good a repair and condition as exists on
the Effective Date, except for deterioration due to ordinary wear
and tear and damage due to casualty; and (vi) to maintain in full
force and effect insurance comparable in amount and scope of
coverage to that maintained on the Effective Date by Tristar and
each of the Tristar Subsidiaries;
(d) Tristar shall, and shall cause the Tristar
Subsidiaries to, perform their respective obligations under any
contracts and agreements to which any of them is a party or to which
any of their assets is subject, except to the extent such failure to
perform would not have a Material Adverse Effect on Tristar, and
except for such obligations as Tristar or the Tristar Subsidiaries
in good faith may dispute; and
(e) Tristar shall not, and shall not permit any of the
Tristar Subsidiaries to, take any action that would, or that
reasonably could be expected to, result in any of the
representations and warranties set forth in this Agreement becoming
untrue. Tristar promptly shall advise Eurostar orally and in
writing of any change or event having, or which, insofar as
reasonably can be foreseen, would have, a Material Adverse Effect on
Tristar.
4.2 Access to Information; Confidentiality. From the Effective
Date to the Effective Time, Tristar shall, and shall cause the Tristar
Subsidiaries and its and their officers, directors, employees and
representatives to, afford the representatives of Eurostar complete access
during normal business hours to its officers, employees, representatives,
properties, books and records, and shall furnish Eurostar all financial,
operating and other data and information as Eurostar, through its
representatives, reasonably may request.
Tristar agrees to hold in confidence all, and not to disclose to
others for any reason whatsoever, any non-public information received by it,
any of the Tristar Subsidiaries or its or their representatives in
connection with the transactions contemplated hereby except (i) as required
by law; (ii) for disclosure to officers, directors, employees and
representatives of Tristar and the Tristar Subsidiaries as necessary in
connection with the transactions and filings contemplated hereby or as
necessary to the operation of Tristar's business; and (iii) for information
which becomes publicly available other than through Tristar. If the Merger
is not consummated, Tristar will return all non-public documents and other
material obtained from Eurostar, the Eurostar Subsidiaries or its or their
representatives in connection with the transactions contemplated hereby, and
all copies, summaries and extracts thereof, or certify to Eurostar that such
<PAGE> 29 of 37
information has been destroyed.
4.3 NASDAQ/NMS Listing. Tristar shall use its reasonable
efforts to cause the shares of Tristar Common Stock to be issued upon
consummation of the Merger to be approved for listing on the NASDAQ/National
Market System, subject to official notice of issuance, prior to the Closing
Date.
ARTICLE V
ADDITIONAL AGREEMENTS
5.1 Proxy Statement. Prior to execution of this Agreement,
Tristar prepared and filed with the Commission the preliminary proxy
statement (the "Preliminary Proxy Statement") of Tristar relating to the
Merger, and as promptly as practicable after the execution of this
Agreement, Tristar shall prepare and file with the Commission a definitive
proxy statement (the "Proxy Statement") of Tristar relating to the Merger.
Subject to the terms and conditions set forth in Article VI, the Proxy
Statement shall contain a statement that the Board of Directors of Tristar
and the Acquisition Committee of the Board of Directors of Tristar
recommended that the stockholders of Tristar approve and adopt the Merger
and this Agreement.
5.2 Approval of Stockholders. Tristar shall promptly take all
action reasonably necessary in accordance with the DGCL and its Certificate
of Incorporation and bylaws to obtain the approval and adoption of the
Merger and this Agreement from Tristar stockholders holding at least 66 2/3%
of the Tristar Common Stock. Subject to the terms and conditions set forth
in Article VI, the Board of Directors of Tristar (i) shall recommend to the
stockholders of Tristar to adopt and approve the Merger and this Agreement
and (ii) shall take all action reasonably necessary to obtain the approval
and adoption of the Merger and this Agreement from Tristar stockholders
holding at least 66 2/3% of the Tristar Common Stock.
5.3 Filings; Consents; Reasonable Efforts. Subject to the terms
and conditions of this Agreement, Tristar and Eurostar shall (i) make all
necessary filings with respect to the Merger and this Agreement under the
Securities Act, the Exchange Act and applicable blue sky or similar
securities laws and shall use its reasonable efforts to obtain required
approvals and clearances with respect thereto; (ii) use its reasonable
efforts to obtain all consents, waivers, approvals, authorizations and
orders required in connection with the authorization, execution and delivery
of this Agreement and the consummation of the Merger; and (iii) take, or use
its reasonable efforts to cause to be taken, all appropriate action, and do,
or cause to be done, all things necessary, proper or advisable to satisfy or
cause to be satisfied all conditions precedent under this Agreement and to
consummate and make effective as promptly as practicable the transactions
contemplated by this Agreement.
5.4 Notification of Certain Matters. Tristar shall give prompt
notice to Eurostar, and Eurostar shall give prompt notice to Tristar, orally
and in writing, of (i) the occurrence, or failure to occur, of any event
which occurrence or failure would be likely to cause any representation or
<PAGE> 30 of 37
warranty contained in this Agreement to be untrue or inaccurate at any time
from the Effective Date to the Effective Time, (ii) any material failure of
Tristar or Eurostar, as the case may be, or any officer, director, employee
or agent thereof, to comply with or satisfy any covenant, condition or
agreement to be complied with or satisfied by it hereunder, and (iii) any
fact or event that would make it necessary to amend the Proxy Statement or
to render the statements therein not misleading or to comply with applicable
law.
5.5 Agreement to Defend. In the event any claim, action, suit,
investigation or other proceeding by any governmental body or other person
or other legal or administrative proceeding is commenced that questions the
validity or legality of the transactions contemplated hereby or seeks
damages in connection therewith, whether before or after the Effective Time,
the parties hereto agree to cooperate and use their reasonable efforts to
defend against and respond thereto.
5.6 Expenses. All costs and expenses incurred in connection
with this Agreement and the transactions contemplated hereby shall be paid
by the party incurring such expenses.
5.7 Indemnity. Parent shall indemnify and hold harmless Tristar
from and against all damages, costs and expenses (including reasonable
attorneys' fees and costs of investigation) arising out of any breach of any
of the representations, warranties or covenants of Eurostar or Parent in
this Agreement to the extent such damages, costs and expenses exceed in the
aggregate $1,000,000. Tristar shall indemnify and hold harmless Parent from
and against all damages, costs and expenses (including reasonable attorneys'
fees and costs of investigation) arising out of any breach of any of the
representations, warranties or covenants of Tristar in this Agreement to the
extent such damages, costs and expenses exceed in the aggregate $1,000,000.
In the event any claim is made, or any suit or action is commenced,
against any person in respect of which indemnification may be sought by such
person under this Section 5.7 (the "Indemnified Party"), the Indemnified
Party shall promptly give the party against whom indemnification is sought
(the "Indemnifying Party") notice thereof and the Indemnifying Party shall
be entitled to conduct or participate in the defense thereof at the
Indemnifying Party's expense; provided, however, that the failure to give
such notice shall not relieve the Indemnifying Party of its obligations
hereunder, except to the extent the Indemnifying Party is prejudiced
thereby. The Indemnifying Party may, at its expense, participate in or
assume the defense of any such action, suit or proceeding involving a third
party. In such case the Indemnified Party shall have the right (but not the
duty) to participate in the defense thereof, and to employ counsel, at its
own expense, separate from counsel employed by the Indemnifying Party in any
such action and to be liable for the fees and expenses of one firm as
counsel (and appropriate local counsel) employed by the Indemnified Party if
the Indemnifying Party has not assumed the defense thereof. Whether or not
the Indemnifying Party chooses to defend or prosecute any claim involving a
third party, all the parties hereto shall cooperate in the defense or
prosecution thereof and shall furnish such records, information and
testimony, and attend such conferences, discovery proceedings, hearings,
trials and appeals, as may be reasonably requested in connection therewith.
The Indemnifying Party shall not be liable for any settlement effected
<PAGE> 31 of 37
without its consent of any claim, litigation or proceedings in respect of
which indemnity may be sought hereunder, unless the Indemnifying Party
refuses to acknowledge liability for indemnification under this Section 5.7
and/or declines to defend the Indemnified Party in such claim, litigation or
proceeding.
5.8 Termination of Distribution Agreement. On or prior to the
Closing Date, each party shall execute and deliver an instrument sufficient
to terminate the Distribution Agreement dated October 23, 1992 (the
"Distribution Agreement"), among Eurostar, Tristar and Starion International
Ltd.
ARTICLE VI
CONDITIONS
6.1 Conditions to Obligation of Each Party to Effect the Merger.
The respective obligations of each party to effect the Merger shall be
subject to the fulfillment or waiver at or prior to the Closing Date of the
following conditions:
(a) This Agreement and the Merger shall have been
approved and adopted by the requisite vote of the stockholders of
Tristar as may be required by law and by any applicable provisions
of its Certificate of Incorporation or bylaws;
(b) No order shall have been entered and remain in
effect in any action or proceeding before any foreign, federal or
state court or governmental agency or other foreign, federal or
state regulatory or administrative agency or commission that would
prevent or make illegal the consummation of the Merger;
(c) There shall have been obtained any and all material
permits, approvals and consents of securities or blue sky
commissions of any jurisdiction, and of any other governmental body
or agency, that reasonably may be deemed necessary so that the
consummation of the Merger and the transactions contemplated thereby
will be in compliance with applicable laws, the failure to comply
with which would have a Material Adverse Effect on Tristar or the
Surviving Corporation after the consummation of the Merger;
(d) All approvals of private persons, financial
institutions or corporations, (i) the granting of which is necessary
for the consummation of the Merger or the transactions contemplated
in connection therewith or (ii) the non-receipt of which would have
a Material Adverse Effect on Tristar or the Surviving Corporation
after the consummation of the Merger, shall have been obtained;
(e) Tristar shall have been advised in writing on the
Closing Date by Coopers & Lybrand L.L.P. that, in accordance with
generally accepted accounting principles and applicable rules and
regulations of the Commission, the Merger should be treated
substantially similarly to a "pooling of interests" for accounting
<PAGE> 32 of 37
purposes;
(f) Tristar shall have received from Howard Frazier
Barker Elliott a written opinion, dated as of the date of this
Agreement, satisfactory in form and substance to the Board of
Directors of Tristar, to the effect that the terms of the Merger are
fair to the minority stockholders of Tristar from a financial point
of view, which opinion shall have been confirmed in writing to such
Board of Directors (i) as of the date the Proxy Statement is first
mailed to the stockholders of Tristar and (ii) as of the Closing
Date; and
(g) The Distribution Agreement shall have been
terminated.
6.2 Additional Conditions to Obligations of Tristar. The
obligation of Tristar to effect the Merger is, at the option of Tristar,
also subject to the fulfillment or waiver at or prior to the Closing Date of
the following conditions:
(a) The representations and warranties of Eurostar and
Parent contained in Section 2.2 shall be accurate in all material
respects as of the Closing Date as though such representations and
warranties had been made at and as of that time (except where any
such representation or warranty is made as of a date specifically
set forth therein); all of the terms, covenants and conditions of
this Agreement to be complied with and performed by Eurostar on or
before the Closing Date shall have been duly complied with and
performed in all material respects; and a certificate of Eurostar to
the foregoing effect dated the Closing Date and signed by the chief
financial officer of Eurostar shall have been delivered to Tristar;
(b) Since the Effective Date of this Agreement, no
Material Adverse Change of Eurostar shall have occurred, and
Eurostar and the Eurostar Subsidiaries shall not have suffered any
damage, destruction or loss (whether or not covered by insurance)
materially adversely affecting the properties or business of
Eurostar and the Eurostar Subsidiaries, taken as a whole, and
Tristar shall have received a certificate of Eurostar signed by the
chief executive officer of Eurostar dated the Closing Date to such
effect;
(c) Tristar shall have received from Akin Gump,
Strauss, Hauer & Feld, L.L.P., counsel to Eurostar, an opinion dated
the Effective Time covering the matters set forth in Exhibit 6.2(d);
(d) Tristar shall have received from Coopers & Lybrand
L.L.P., a written opinion dated as of the date that the Proxy
Statement is first mailed to stockholders of Tristar to the effect
that (i) the Merger will be treated for federal income tax purposes
as a reorganization within the meaning of Section 368(a) of the
Code, (ii) Tristar and Eurostar will each be a party to that
reorganization within the meaning of Section 368(b) of the Code and
(iii) Tristar and Eurostar shall not recognize any gain or loss as a
result of the Merger, and such opinion shall not have been withdrawn
<PAGE> 33 of 37
or modified in any material respect.
6.3 Additional Conditions to Obligations of Eurostar. The
obligation of Eurostar to effect the Merger is, at the option of Eurostar,
also subject to the fulfillment or waiver at or prior to the Closing Date of
the following conditions:
(a) The representations and warranties of Tristar
contained in Section 2.3 shall be accurate as of the Closing Date in
all material respects as though such representations and warranties
had been made at and as of that time (except where any such
representation or warranty is made as of a date specifically set
forth therein); all of the terms, covenants and conditions of this
Agreement to be complied with and performed by Tristar on or before
the Closing Date shall have been duly complied with and performed in
all material respects; and a certificate of Tristar to the foregoing
effect dated the Closing Date and signed by the chief financial
officer of Tristar shall have been delivered to Eurostar;
(b) Since the Effective Date of this Agreement, no
Material Adverse Change of Tristar shall have occurred, and Tristar
and the Tristar Subsidiaries shall not have suffered any damage,
destruction or loss (whether or not covered by insurance) materially
adversely affecting the properties or business of Tristar and the
Tristar Subsidiaries, taken as a whole, and Eurostar shall have
received a certificate of Tristar signed by the chief executive
officer of Tristar dated the Closing Date to such effect;
(c) The shares of Tristar Common Stock issuable upon
consummation of the Merger shall have been approved for listing on
the NASDAQ/National Market System, subject to official notice of
issuance;
(d) Eurostar shall have received from Fulbright &
Jaworski L.L.P., counsel to Tristar, an opinion dated the Effective
Time covering the matters set forth in Exhibit 6.3(d).
ARTICLE VII
MISCELLANEOUS
7.1 Termination. This Agreement may be terminated and the
Merger and the other transactions contemplated herein may be abandoned at
any time prior to the Effective Time, whether prior to or after approval by
the stockholders of Tristar:
(a) by mutual consent of Eurostar and Tristar;
(b) by either Eurostar or Tristar if the Merger has not
been effected on or before September 30, 1995;
(c) by either Tristar or Eurostar if a final,
unappealable order to restrain, enjoin or otherwise prevent, or
awarding substantial damages in connection with, a consummation of
<PAGE> 34 of 37
this Agreement or the transactions contemplated in connection
herewith shall have been entered;
(d) by Tristar or Eurostar if the required approval of
the stockholders of Tristar for the adoption and approval of the
Merger and this Agreement is not received;
(e) by Tristar if (i) since the Effective Date of this
Agreement there has been a Material Adverse Change in Eurostar,
taken as a whole, or (ii) there has been a material breach of any
representation or warranty set forth in this Agreement by Eurostar
which breach has not been cured within ten business days following
receipt by Eurostar of notice of such breach;
(f) by Eurostar if (i) since the Effective Date of this
Agreement there has been a Material Adverse Change in Tristar, taken
as a whole, or (ii) there has been a material breach of any
representation or warranty set forth in this Agreement by Tristar
which breach has not been cured within ten business days following
receipt by Tristar of notice of such breach;
(g) By Tristar or Eurostar, if the Acquisition
Committee of the Board of Directors of Tristar or the Board of
Directors of Eurostar, in its discretion, determines that such
termination is necessary for the Acquisition Committee of the Board
of Directors of Tristar or the Board of Directors of Eurostar, as
the case may be, to comply with their respective fiduciary duties to
minority stockholders (in the case of Tristar) or stockholder (in
the case of Eurostar) under applicable law; or
(h) By Tristar or Eurostar, if there is pending or
threatened any litigation against Tristar or Eurostar, or any of
their respective stockholders, affiliates, directors, officers or
employees (other than litigation disclosed in the Tristar Commission
Filings), which is, in the view of the Board of Directors of
Eurostar or the Acquisition Committee of the Board of Directors of
Tristar, reasonably likely to have a Material Adverse Effect on
Tristar or Eurostar, either prior to or following the consummation
of the Merger.
7.2 Effect of Termination. In the event of any termination of
this Agreement pursuant to Section 7.1, Tristar and Eurostar shall have no
obligation or liability to each other except that (i) the provisions of the
second paragraphs of Sections 3.2 and 4.2 and the provisions of
Sections 5.6, and this Article VII shall survive any such termination, and
(ii) nothing herein and no termination pursuant hereto will relieve any
party from liability for any breach of this Agreement.
7.3 Waiver and Amendment. Any provision of this Agreement may
be waived at any time by the party that is, or whose stockholders are,
entitled to the benefits thereof. This Agreement may not be amended or
supplemented at any time, except by an instrument in writing signed on
behalf of each party hereto; provided that after this Agreement has been
approved and adopted by the stockholders of Tristar, this Agreement may be
amended only as may be permitted by applicable provisions of the DGCL and
<PAGE> 35 of 37
the TBCA. The waiver by any party hereto of any condition or of a breach of
another provision of this Agreement shall not operate or be construed as a
waiver of any other condition or subsequent breach. The waiver by any party
hereto of any of the conditions precedent to its obligations under this
Agreement shall not preclude it from seeking redress for breach of this
Agreement other than with respect to the condition so waived.
7.4 Survival of Representations, Warranties, Covenants and
Agreements. The representations, warranties, covenants or agreements in
this Agreement or in any instrument delivered pursuant to this Agreement
shall survive for a period of one year following the Closing Date.
7.5 Public Statements. Tristar and Eurostar agree to consult
with each other prior to issuing any press release or otherwise making any
public statement with respect to the transactions contemplated hereby, and
shall not issue any such press release or make any such public statement
prior to such consultation, except as may be required by law or applicable
stock exchange policy.
7.6 Assignment. This Agreement shall inure to the benefit of
and will be binding upon the parties hereto and their respective legal
representatives, successors and permitted assigns. Except as set forth in
this Agreement, this Agreement shall not be assignable by the parties
hereto.
7.7 Notices. All notices, requests, demands, claims and other
communications that are required to be or may be given under this Agreement
shall be in writing and shall be deemed to have been duly given if
(i) delivered in person or by courier, (ii) sent by telecopy or facsimile
transmission, answer back requested, or (iii) mailed, certified first class
mail, postage prepaid, return receipt requested, to the parties hereto at
the following addresses:
if to Tristar: Tristar Corporation
12500 San Pedro Avenue, Suite 500
San Antonio, Texas 78216
Attention: President
with a copy to: Fulbright & Jaworski L.L.P.
300 Convent Street, Suite 2200
San Antonio, Texas 78205
Attention: Phillip M. Renfro, Esq.
if to Eurostar Eurostar Perfumes, Inc.
or Parent: 12001 Network, Bldg. E, Suite 110
San Antonio, Texas 78249-3355
Attention: President
<PAGE> 36 of 37
with a copy to: Akin, Gump, Strauss, Hauer & Feld, L.L.P.
300 Convent Street, Suite 1500
San Antonio, Texas 78205
Attention: Cecil Schenker, P.C.
or to such other address as any party shall have furnished to the other by
notice given in accordance with this Section 7.7. Such notices shall be
effective, (i) if delivered in person or by courier, upon actual receipt by
the intended recipient, (ii) if sent by telecopy or facsimile transmission,
when the transmission is confirmed, or (iii) if mailed, upon the earlier of
five days after deposit in the mail and the date of delivery as shown by the
return receipt therefor.
7.8 Governing Law. This Agreement shall be governed by and
construed in accordance with the substantive law of the State of Delaware
without giving effect to the principles of conflicts of law thereof.
7.9 Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction
to be invalid, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions of this Agreement shall continue in
full force and effect and shall in no way be affected, impaired or
invalidated.
7.10 Counterparts. This Agreement may be executed in
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same agreement.
7.11 Headings. The Section headings herein are for convenience
only and shall not affect the construction hereof.
7.12 Entire Agreement; Third Party Beneficiaries. This Agreement
constitutes the entire agreement and supersedes all other prior agreements
and understandings, both oral and written, among the parties or any of them,
with respect to the subject matter hereof and neither this nor any documents
delivered in connection with this Agreement confers upon any person not a
party hereto any rights or remedies hereunder.
SIGNATURES ON FOLLOWING PAGE
<PAGE>
<PAGE> 37 of 37
IN WITNESS WHEREOF, each of the parties has caused this Agreement to
be executed on its behalf by its officers thereunto duly authorized, all as
of the Date Hereof to be effective on the Effective Date.
Eurostar Perfumes, Inc.
By: /s/ Viren S. Sheth
___________________
Name: Viren S. Sheth
_______________
Title: President and Chief Executive Officer
_____________________________________
Transvit Manufacturing Corporation
By: /s/ Mahendra Sheth
__________________
Name:
___________________________________
Title: ___________________________________
Tristar Corporation
By: /s/ Loren Eltiste
_________________
Name: Loren Eltiste
______________
Title: Vice President and Chief Financial Officer
__________________________________________
