<PAGE>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
------------------------
BEN & JERRY'S HOMEMADE, INC.
(Name of Issuer)
------------------------
CLASS A COMMON STOCK, PAR VALUE $.033 PER SHARE
(including the associated Class A Common Stock Purchase Rights)
and
CLASS B COMMON STOCK, PAR VALUE $.033 PER SHARE
(including the associated Class B Common Stock Purchase Rights)
(Titles of Classes of Securities)
------------------------
081465106
081465205
(CUSIP Numbers)
------------------------
RONALD M. SOIEFER, ESQ.
CONOPCO, INC.
390 PARK AVENUE
NEW YORK, NY 10022
(212) 888-1260
(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)
------------------------
COPY TO:
RICHARD HALL, ESQ.
CRAVATH, SWAINE & MOORE
WORLDWIDE PLAZA
825 EIGHTH AVENUE
NEW YORK, NEW YORK 10019
(212) 474-1000
------------------------
APRIL 11, 2000
(Date of Event which Requires Filing of this Statement)
------------------------
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition that is the subject of this Schedule 13D, and is filing this
schedule because of SectionSection240.13d-1(e), 240.13d-1(f) or 240.13d-1(g),
check the following box / /.
NOTE: Schedules filed in paper format shall include a signed original and five
copies of the schedule, including all exhibits. See Section240.13d-7 for other
parties to whom copies are to be sent.
* The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
(Continued on following pages)
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Page 1 of 8
<PAGE>
CUSIP NOS. 081465106
081465205
<TABLE>
<C> <S>
- ---------------------------------------------------------------------
1 Names of Reporting Persons
Identification Nos. of Above Persons (entities only)
VERMONT ALL NATURAL EXPANSION COMPANY
- ---------------------------------------------------------------------
2 Check the Appropriate Box if a Member of a Group (See
Instructions) (a) / /
(b) / /
- ---------------------------------------------------------------------
3 SEC Use Only
- ---------------------------------------------------------------------
4 Source of Funds (See Instructions) AF
- ---------------------------------------------------------------------
5 Check if Disclosure of Legal Proceedings is Required
Pursuant to Items 2(d) or 2(e) / /
- ---------------------------------------------------------------------
6 Citizenship or Place of Organization VERMONT
- ---------------------------------------------------------------------
</TABLE>
<TABLE>
<C> <S>
7 Sole Voting power
1,219,986 SHARES OF CLASS A COMMON STOCK*
------------------------------------------------------------
8 Shared Voting Power
------------------------------------------------------------
9 Sole Dispositive Power
1,219,986 SHARES OF CLASS A COMMON STOCK*
------------------------------------------------------------
10 Shared Dispositive Power
Number of Shares
Beneficially Owned
by Each Reporting
Person with
- ----------------------------------------------------------------------------------
</TABLE>
<TABLE>
<C> <S>
11 Aggregate Amount Beneficially Owned by Each Reporting Person
1,219,986 SHARES OF CLASS A COMMON STOCK*
- ---------------------------------------------------------------------
12 Check Box if the Aggregate Amount in Row (11) Excludes
Certain Shares
(See Instructions)
/ /
- ---------------------------------------------------------------------
13 Percent of Class Represented by Amount in Row (11)
APPROXIMATELY 19.9% OF THE SHARES OF CLASS A COMMON STOCK
OUTSTANDING AS OF MARCH 31, 2000*
- ---------------------------------------------------------------------
14 Type of Reporting Person (See Instructions)
CO
- ---------------------------------------------------------------------
</TABLE>
* See Note on page 4.
Page 2 of 8
<PAGE>
CUSIP NOS. 081465106
081465205
<TABLE>
<C> <S>
- ---------------------------------------------------------------------
1 Names of Reporting Persons (entities only)
Identification No. of above Persons
CONOPCO, INC. (13-1840427)
- ---------------------------------------------------------------------
2 Check the Appropriate Box if a Member of a Group (See
Instructions) (a) / /
(b) / /
- ---------------------------------------------------------------------
3 SEC Use Only
- ---------------------------------------------------------------------
4 Source of Funds (See Instructions) WC, AF
- ---------------------------------------------------------------------
5 Check If Disclosure of Legal Proceedings is Required
Pursuant to Items 2(d) or 2(e) / /
- ---------------------------------------------------------------------
6 Citizenship or Place of Organization NEW YORK
- ---------------------------------------------------------------------
</TABLE>
<TABLE>
<C> <S>
7 Sole Voting Power
1,219,986 SHARES OF CLASS A COMMON STOCK*
------------------------------------------------------------
8 Shared Voting Power
------------------------------------------------------------
9 Sole Dispositive Power
1,219,986 SHARES OF CLASS A COMMON STOCK*
------------------------------------------------------------
10 Shared Dispositive Power
Number of Shares
Beneficially Owned
by Each Reporting
Person with
- ----------------------------------------------------------------------------------
</TABLE>
<TABLE>
<C> <S>
11 Aggregate Amount Beneficially Owned by Each Reporting Person
1,219,986 SHARES OF CLASS A COMMON STOCK*
- ---------------------------------------------------------------------
12 Check Box if the Aggregate Amount in Row (11) Excludes
Certain Shares
(See Instructions)
/ /
- ---------------------------------------------------------------------
13 Percent of Class Represented by Amount in Row (11)
APPROXIMATELY 19.9% OF THE SHARES OF CLASS A COMMON STOCK
OUTSTANDING AS OF MARCH 31, 2000*
- ---------------------------------------------------------------------
14 Type of Reporting Person (See Instructions)
CO
- ---------------------------------------------------------------------
</TABLE>
* See Note on the following page.
Page 3 of 8
<PAGE>
CUSIP NOS. 081465106
081465205
<TABLE>
<C> <S>
- ---------------------------------------------------------------------
1 Names of Reporting Persons
Identification No. of above Persons (entities only)
UNILEVER N.V.
- ---------------------------------------------------------------------
2 Check the Appropriate Box if a Member of a Group (See
Instructions) (a) / /
(b) / /
- ---------------------------------------------------------------------
3 SEC Use Only
- ---------------------------------------------------------------------
4 Source of Funds (See Instructions) WC, OO
- ---------------------------------------------------------------------
5 Check If Disclosure of Legal Proceedings is Required
Pursuant to Items 2(d) or 2(e) / /
- ---------------------------------------------------------------------
6 Citizenship or Place of Organization THE NETHERLANDS
- ---------------------------------------------------------------------
</TABLE>
<TABLE>
<C> <S>
7 Sole Voting Power
1,219,986 SHARES OF CLASS A COMMON STOCK*
------------------------------------------------------------
8 Shared Voting Power
------------------------------------------------------------
9 Sole Dispositive Power
1,219,986 SHARES OF CLASS A COMMON STOCK*
------------------------------------------------------------
10 Shared Dispositive Power
Number of Shares
Beneficially Owned
by Each Reporting
Person with
- ----------------------------------------------------------------------------------
</TABLE>
<TABLE>
<C> <S>
11 Aggregate Amount Beneficially Owned by Each Reporting Person
1,219,986 SHARES OF CLASS A COMMON STOCK*
- ---------------------------------------------------------------------
12 Check Box if the Aggregate Amount in Row (11) Excludes
Certain Shares
(See Instructions) / /
- ---------------------------------------------------------------------
13 Percent of Class Represented by Amount in Row (11)
APPROXIMATELY 19.9% OF THE SHARES OF CLASS A COMMON STOCK
OUTSTANDING AS OF MARCH 31, 2000*
- ---------------------------------------------------------------------
14 Type of Reporting Person (See Instructions)
CO
- ---------------------------------------------------------------------
</TABLE>
* On April 11, 2000, Conopco, Inc. ("Conopco") entered into a Stock Option
Agreement (the "Stock Option Agreement") with Ben & Jerry's Homemade, Inc.
(the "Company"), pursuant to which the Company granted Conopco an option,
subject to certain conditions, to purchase up to 1,219,986 shares (the
"Option Shares") of Class A Common Stock, par value $.033 per share, of the
Company, at a purchase price of $43.60 per Option Share. Conopco's right to
purchase the Option Shares is reflected in Rows 7, 9 and 11 of each of the
tables above. A copy of the Stock Option Agreement is attached hereto as
Exhibit (2)(c), and the Stock Option Agreement is described more fully in
Section 12 of the Offer to Purchase, attached hereto as Exhibit (2)(a).
Page 4 of 8
<PAGE>
ITEM 1. SECURITY AND ISSUER.
This Schedule 13D relates to the Class A Common Stock, par value $.033 per
share, of Ben & Jerry's Homemade, Inc., a Vermont corporation (the "Company").
The address of the issuer's principal executive office is 30 Community Drive,
South Burlington, Vermont 05403.
ITEM 2. IDENTITY AND BACKGROUND.
(a)-(c) and (f) This Schedule 13D is being filed by Vermont All Natural
Expansion Company, a Vermont corporation (the "Purchaser"), Conopco, Inc., a New
York corporation ("Conopco"), and Unilever N.V., a company organized under the
laws of The Netherlands ("Unilever"). The Purchaser is a wholly owned subsidiary
of Conopco, which is a wholly owned subsidiary of Unilever United States, Inc.,
a Delaware corporation ("UNUS"). UNUS is directly owned 75% by Unilever and 25%
by Unilever PLC, an English public limited company. Information concerning the
principal business and the address of the principal offices of the Purchaser,
Conopco, UNUS and Unilever is set forth in Section 9 ("Certain Information
Concerning the Purchaser, Conopco and Unilever") of the Offer to Purchase dated
April 18, 2000 (the "Offer to Purchase"), and is incorporated herein by
reference to the Offer to Purchase, a copy of which is attached hereto as
Exhibit (2)(a).
Information regarding the names, business addresses, present principal
occupation or employment, and material occupations, positions, offices or
employment during the last five years and citizenship of the directors and
executive officers of the Purchaser, Conopco and Unilever is set forth in
Schedule I to the Offer to Purchase and is incorporated herein by reference.
(d) and (e) During the last five years, none of the Purchaser, Conopco or
Unilever, or any of their respective executive officers or directors or UNUS has
been convicted in a criminal proceeding (excluding traffic violations or similar
misdemeanors), nor has any of them been a party to a civil proceeding of a
judicial or administrative body of competent jurisdiction and as a result of
such proceeding was or is subject to a judgment decree or final order enjoining
future violations of, or prohibiting activities subject to, federal or state
securities laws or finding of any violation of such laws. The information set
forth in Section 9 ("Certain Information Concerning the Purchaser, Conopco and
Unilever") and Section 15 ("Certain Legal Matters") of the Offer to Purchase is
incorporated herein by reference.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
The information set forth in Section 10 ("Source and Amount of Funds") of
the Offer to Purchase is incorporated herein by reference.
ITEM 4. PURPOSE OF TRANSACTION.
(a)-(g) and (j) The information set forth in Section 12 ("Purpose of the
Offer; the Merger Agreement; Other Agreements") of the Offer to Purchase is
incorporated herein by reference.
(h) and (i) The information set forth in Section 7 ("Effect of the Offer on
the Market for the Class A Shares; Class A Share Quotation; Exchange Act
Registration; Margin Regulations") of the Offer to Purchase is incorporated
herein by reference.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
(a)-(c) The information set forth in "Introduction", Section 9 ("Certain
Information Concerning the Purchaser, Conopco and Unilever") and Section 12
("Purpose of the Offer; the Merger Agreement; Other Agreements") of the Offer to
Purchase is incorporated herein by reference.
Page 5 of 8
<PAGE>
ITEM 6.CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO
SECURITIES OF THE ISSUER.
The information set forth in "Introduction", Section 9 ("Certain Information
Concerning the Purchaser, Conopco and Unilever"), Section 11 ("Contacts and
Transactions with the Company; Background of the Offer") and Section 12
("Purpose of the Offer; the Merger Agreement; Other Agreements") of the Offer to
Purchase is incorporated herein by reference.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
<TABLE>
<S> <C>
(2)(a) Offer to Purchase.
(2)(b) Agreement and Plan of Merger dated as of April 11, 2000,
among Conopco, the Purchaser and the Company.
(2)(c) Stock Option Agreement dated as of April 11, 2000, between
the Company and Conopco.
(99) Power of Attorney by Unilever N.V. dated April 14, 2000.
</TABLE>
Page 6 of 8
<PAGE>
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.
Date: April 18, 2000
<TABLE>
<S> <C> <C>
VERMONT ALL NATURAL EXPANSION COMPANY,
by /s/ MART LAIUS
-----------------------------------------
Name: Mart Laius
Title: Vice President
CONOPCO, INC.,
by /s/ MART LAIUS
-----------------------------------------
Name: Mart Laius
Title: Vice President
UNILEVER N.V.,
by /s/ MART LAIUS*
-----------------------------------------
Name: Mart Laius
* By power of attorney.
</TABLE>
Page 7 of 8
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NO. DOCUMENT
----------- --------
<S> <C>
(2)(a) Offer to Purchase.
(2)(b) Agreement and Plan of Merger dated as of April 11, 2000,
among Conopco, the Purchaser and the Company.
(2)(c) Stock Option Agreement dated as of April 11, 2000, between
the Company and Conopco.
(99) Power of Attorney by Unilever N.V. dated April 14, 2000.
</TABLE>
Page 8 of 8
<PAGE>
OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING SHARES OF CLASS A COMMON STOCK
(INCLUDING THE ASSOCIATED CLASS A COMMON STOCK PURCHASE RIGHTS)
AND
ALL OUTSTANDING SHARES OF CLASS B COMMON STOCK
(INCLUDING THE ASSOCIATED CLASS B COMMON STOCK PURCHASE RIGHTS)
OF
BEN & JERRY'S HOMEMADE, INC.
AT
$43.60 NET PER SHARE
BY
VERMONT ALL NATURAL EXPANSION COMPANY,
A WHOLLY OWNED SUBSIDIARY OF
CONOPCO, INC.,
A SUBSIDIARY OF
UNILEVER N.V.
------------
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT,
NEW YORK CITY TIME, ON MONDAY, MAY 15, 2000, UNLESS THE OFFER IS EXTENDED.
-------------------
THE OFFER IS BEING MADE PURSUANT TO THE AGREEMENT AND PLAN OF MERGER DATED AS OF
APRIL 11, 2000, AMONG CONOPCO, INC., VERMONT ALL NATURAL EXPANSION COMPANY AND
BEN & JERRY'S HOMEMADE, INC. THE BOARD OF DIRECTORS OF BEN & JERRY'S
HOMEMADE, INC. HAS ADOPTED THE MERGER AGREEMENT AND APPROVED THE OFFER, THE
MERGER (EACH, AS DEFINED HEREIN) AND THE OTHER TRANSACTIONS CONTEMPLATED BY THE
MERGER AGREEMENT, DETERMINED THAT THE OFFER AND THE MERGER ARE FAIR TO AND IN
THE BEST INTERESTS OF THE COMPANY'S SHAREHOLDERS AND UNANIMOUSLY RECOMMENDS THAT
THE SHAREHOLDERS OF THE COMPANY ACCEPT THE OFFER AND TENDER THEIR SHARES (AS
DEFINED HEREIN) PURSUANT TO THE OFFER.
---------------------
THE OFFER IS CONDITIONED UPON, AMONG OTHER THINGS, (A) THERE BEING VALIDLY
TENDERED AND NOT WITHDRAWN PRIOR TO THE EXPIRATION OF THE OFFER SUCH NUMBER OF
SHARES THAT, TAKING INTO ACCOUNT THE CONVERSION OF THE CLASS B SHARES INTO CLASS
A SHARES (EACH AS DEFINED HEREIN), WOULD CONSTITUTE AT LEAST A MAJORITY OF THE
VOTING POWER OF THE COMPANY COMMON STOCK (AS DEFINED HEREIN), DETERMINED ON A
FULLY DILUTED BASIS, AFTER GIVING EFFECT TO THE EXERCISE OR CONVERSION OF ALL
OPTIONS, RIGHTS AND SECURITIES EXERCISABLE OR CONVERTIBLE INTO VOTING
SECURITIES, AND (B) THE WAITING PERIOD (AND ANY EXTENSION THEREOF) UNDER THE
HART-SCOTT-RODINO ANTITRUST IMPROVEMENTS ACT OF 1976, AS AMENDED, APPLICABLE TO
THE PURCHASE OF SHARES PURSUANT TO THE OFFER HAVING EXPIRED OR BEEN TERMINATED.
--------------------------
IMPORTANT
ANY SHAREHOLDER DESIRING TO TENDER ALL OR ANY PORTION OF SUCH SHAREHOLDER'S
SHARES SHOULD EITHER (1) COMPLETE AND SIGN THE LETTER OF TRANSMITTAL (OR A
FACSIMILE THEREOF) IN ACCORDANCE WITH THE INSTRUCTIONS IN THE LETTER OF
TRANSMITTAL, HAVE SUCH SHAREHOLDER'S SIGNATURE THEREON GUARANTEED IF REQUIRED BY
INSTRUCTION 1 TO THE LETTER OF TRANSMITTAL, MAIL OR DELIVER THE LETTER OF
TRANSMITTAL (OR SUCH FACSIMILE) AND ANY OTHER REQUIRED DOCUMENTS TO THE
DEPOSITARY AND DELIVER THE CERTIFICATES FOR SUCH SHARES TO THE DEPOSITARY ALONG
WITH THE LETTER OF TRANSMITTAL (OR SUCH FACSIMILE), OR, IN THE CASE OF A
BOOK-ENTRY TRANSFER EFFECTED PURSUANT TO THE PROCEDURES DESCRIBED IN SECTION 2,
DELIVER A DULY COMPLETED AND SIGNED LETTER OF TRANSMITTAL OR AN AGENT'S MESSAGE
(AS DEFINED HEREIN) AND ANY OTHER REQUIRED DOCUMENTS TO THE DEPOSITARY AND
DELIVER SUCH SHARES PURSUANT TO THE PROCEDURES FOR BOOK-ENTRY TRANSFER DESCRIBED
IN SECTION 2, IN EACH CASE PRIOR TO THE EXPIRATION OF THE OFFER, OR (2) REQUEST
SUCH SHAREHOLDER'S BROKER, DEALER, BANK, TRUST COMPANY OR OTHER NOMINEE TO
EFFECT THE TRANSACTION FOR SUCH SHAREHOLDER. A SHAREHOLDER HAVING SHARES
REGISTERED IN THE NAME OF A BROKER, DEALER, BANK, TRUST COMPANY OR OTHER NOMINEE
MUST CONTACT SUCH BROKER, DEALER, BANK, TRUST COMPANY OR OTHER NOMINEE IF SUCH
SHAREHOLDER DESIRES TO TENDER SUCH SHARES.
A SHAREHOLDER WHO DESIRES TO TENDER SHARES AND WHOSE CERTIFICATES FOR SUCH
SHARES ARE NOT IMMEDIATELY AVAILABLE OR WHO CANNOT COMPLY IN A TIMELY MANNER
WITH THE PROCEDURES FOR BOOK-ENTRY TRANSFER, OR WHO CANNOT DELIVER ALL REQUIRED
DOCUMENTS TO THE DEPOSITARY PRIOR TO THE EXPIRATION OF THE OFFER, MAY TENDER
SUCH SHARES BY FOLLOWING THE PROCEDURES FOR GUARANTEED DELIVERY SET FORTH IN
SECTION 2.
CLASS B SHARES ARE SUBJECT TO TRANSFER RESTRICTIONS AND THE ACCEPTANCE FOR
PAYMENT OF CLASS B SHARES TENDERED PURSUANT TO THE OFFER MAY RESULT IN A DEEMED
TRANSFER OF SUCH CLASS B SHARES AND THE AUTOMATIC CONVERSION THEREOF INTO
CLASS A SHARES.
QUESTIONS AND REQUESTS FOR ASSISTANCE OR FOR ADDITIONAL COPIES OF THIS OFFER
TO PURCHASE, THE LETTER OF TRANSMITTAL, THE NOTICE OF GUARANTEED DELIVERY OR ANY
OTHER TENDER MATERIALS MAY BE DIRECTED TO MORROW & CO., INC. OR TO MORGAN
STANLEY & CO. INCORPORATED AT THEIR RESPECTIVE ADDRESSES AND TELEPHONE NUMBERS
SET FORTH ON THE BACK COVER OF THIS OFFER TO PURCHASE.
------------------------------
THE DEALER MANAGER FOR THE OFFER IS:
MORGAN STANLEY DEAN WITTER
APRIL 18, 2000
<PAGE>
SUMMARY TERM SHEET
Vermont All Natural Expansion Company, which is a subsidiary of Unilever
N.V. and Unilever PLC, is offering to purchase all the outstanding shares of
Class A and Class B Common Stock of Ben & Jerry's Homemade, Inc. for $43.60 net
per share, in cash. The following are some of the questions you, as a
shareholder of Ben & Jerry's Homemade, Inc., may have and answers to those
questions. We urge you to read carefully the remainder of this Offer to Purchase
because the information in this summary is not complete. Additional important
information is contained in the remainder of this Offer to Purchase.
WHO IS OFFERING TO BUY MY SHARES? Vermont All Natural Expansion Company is
a Vermont corporation formed for the purpose of making a tender offer for all
the outstanding shares of Class A and Class B Common Stock of Ben & Jerry's
Homemade, Inc. We are a wholly owned direct subsidiary of Conopco, Inc., a New
York corporation, which is a subsidiary of Unilever N.V., a company organized
under the laws of The Netherlands, and Unilever PLC, an English public limited
company. See "Introduction" and Section 9 ("Certain Information Concerning the
Purchaser, Conopco and Unilever") of this Offer to Purchase.
WHAT SHARES ARE BEING SOUGHT IN THE OFFER? We are seeking to purchase all
the outstanding Class A and Class B Common Stock of Ben & Jerry's
Homemade, Inc. See "Introduction" and Section 1 ("Terms of the Offer") of this
Offer to Purchase.
HOW MUCH ARE YOU OFFERING TO PAY, WHAT IS THE FORM OF PAYMENT AND WILL I
HAVE TO PAY ANY FEES OR COMMISSIONS? We are offering to pay $43.60 per share,
net to you, in cash. If you are the record owner of your shares and you tender
your shares to us in the offer, you will not have to pay brokerage fees or
similar expenses. If you own your shares through a broker or other nominee, and
your broker tenders your shares on your behalf, your broker or nominee may
charge you a fee for doing so. You should consult with your broker or nominee to
determine whether any charges will apply. See "Introduction" and Section 1
("Terms of the Offer") of this Offer to Purchase.
DO YOU HAVE THE FINANCIAL RESOURCES TO MAKE PAYMENT? We plan to obtain all
funds needed for the offer and the merger through intercompany loans of
available cash from, and/or proceeds of the sale of commercial paper by Unilever
N.V., Unilever PLC and their subsidiaries. The Unilever group is one of the
largest consumer products companies in the world. The offer is not conditioned
upon any financing arrangements. See Section 9 ("Certain Information Concerning
the Purchaser, Conopco and Unilever") and Section 10 ("Source and Amount of
Funds") of this Offer to Purchase.
WHAT DOES THE BOARD OF DIRECTORS OF BEN & JERRY'S HOMEMADE, INC. THINK OF
THE OFFER? We are making the offer pursuant to a merger agreement among us,
Conopco, Inc. and Ben & Jerry's Homemade, Inc. The board of directors of Ben &
Jerry's Homemade, Inc. adopted the merger agreement and approved our tender
offer and our proposed merger with Ben & Jerry's Homemade, Inc. The board of
directors of Ben & Jerry's Homemade, Inc. has determined that the offer and the
merger are fair to, and in the best interests of, you, as a shareholder of
Ben & Jerry's Homemade, Inc., and unanimously recommends that you accept the
offer and tender your shares. See "Introduction" to this Offer to Purchase.
HOW LONG DO I HAVE TO DECIDE WHETHER TO TENDER IN THE OFFER? You will have
until 12:00 midnight, New York City time, on Monday, May 15, 2000, to tender
your shares in the offer. Further, if you cannot deliver everything that is
required in order to make a valid tender by that time, you may be able to gain a
little extra time by using a guaranteed delivery procedure, which is described
later in this Offer to Purchase. See Section 1 ("Terms of the Offer") and
Section 2 ("Procedures for Tendering Shares") of this Offer to Purchase.
i
<PAGE>
CAN THE OFFER BE EXTENDED AND UNDER WHAT CIRCUMSTANCES? Subject to the
terms of the merger agreement, we can extend the offer. We have also agreed in
the merger agreement that:
- at the request of Ben & Jerry's Homemade, Inc. we will extend the offer in
increments of five business days while litigation challeging or seeking to
limit or prevent the offer or the merger or seeking to limit or impose
conditions on the acquisition of the assets of Ben & Jerry's
Homemade, Inc. by us is pending; and
- we will also extend the offer in the same manner when there is litigation
which would reasonably be expected to have a material adverse effect on
Ben & Jerry's Homemade, Inc.
However, we will not be required to extend the offer beyond September 30, 2000.
See Section 1 ("Terms of the Offer") of this Offer to Purchase.
WHAT ARE THE MOST SIGNIFICANT CONDITIONS TO THE OFFER? There is no
financing condition to the offer; however, we are not obligated to purchase any
tendered shares:
- unless the number of shares validly tendered and not withdrawn before the
expiration date of the offer represents at least a majority of the shares
of Class A and Class B Common Stock of Ben & Jerry's Homemade, Inc.
outstanding on a fully diluted basis and assuming conversion of the
Class B Common Stock. We have agreed not to waive this minimum tender
condition without the consent of Ben & Jerry's Homemade, Inc.; and
- the applicable waiting period under the Hart-Scott-Rodino Antitrust
Improvements Act of 1976 has not expired or been terminated.
The offer is also subject to a number of other conditions. See Section 14
("Certain Conditions of the Offer") of this Offer to Purchase.
HOW DO I TENDER MY SHARES? To tender shares, you must deliver the
certificates representing your shares, together with a completed letter of
transmittal and any other documents required, to Morgan Guaranty Trust Company
of New York, the depositary for the offer, not later than the time the tender
offer expires. If your shares are held in "street" name, the shares can be
tendered by your nominee through The Depository Trust Company. If you cannot
deliver an item that is required to be delivered to the depositary by the
expiration of the tender offer, you may get a little extra time to do so by
having a broker, a bank or other fiduciary that is a member of the Securities
Transfer Agents Medallion Program or other eligible institution guarantee that
the missing item will be received by the depositary within three Nasdaq trading
days. For the tender to be valid, however, the depositary must receive the
missing item within that three trading day period. See Section 2 ("Procedures
for Tendering Shares") of this Offer to Purchase.
UNTIL WHAT TIME CAN I WITHDRAW PREVIOUSLY TENDERED SHARES? You can withdraw
shares at any time until the offer has expired and, if we have not by Friday,
June 16, 2000, agreed to accept your shares for payment, you can withdraw them
at any time after such time until we accept shares for payment. See Section 1
("Terms of the Offer") and Section 3 ("Withdrawal Rights") of this Offer to
Purchase.
HOW DO I WITHDRAW PREVIOUSLY TENDERED SHARES? To withdraw shares, you must
deliver a written notice of withdrawal, or a facsimile of one, with the required
information to the depositary while you still have the right to withdraw the
shares. See Section 1 ("Terms of the Offer") and Section 3 ("Withdrawal Rights")
of this Offer to Purchase.
WILL THE TENDER OFFER BE FOLLOWED BY A MERGER IF ALL THE SHARES ARE NOT
TENDERED IN THE OFFER? If we accept for payment and pay for at least a majority
of the outstanding shares on a fully diluted basis of Ben & Jerry's
Homemade, Inc., following approval by the shareholders of Ben & Jerry's
Homemade, Inc. we will be merged with and into Ben & Jerry's Homemade, Inc. If
that merger takes place, Conopco, Inc. will directly own all the shares of
Ben & Jerry's Homemade, Inc., and all
ii
<PAGE>
other shareholders of Ben & Jerry's Homemade, Inc. will receive $43.60 per share
in cash. There are no dissenters' rights available in connection with the offer.
However, if the merger takes place, shareholders who have not sold their shares
in the offer may have dissenters' rights under the Vermont Business Corporation
Act. See Section 12 ("Purpose of the Offer; the Merger Agreement; Other
Agreements--Dissenters' Rights") of this Offer to Purchase.
WHAT IS THE MARKET VALUE OF MY SHARES AS OF A RECENT DATE? On April 11,
2000, the last trading day before Ben & Jerry's Homemade, Inc. and
Conopco, Inc. announced that they had signed the merger agreement, the last sale
price of the Class A Shares reported on the Nasdaq National Market was $34 15/16
per share. On April 17, 2000, the last trading day before we commenced our
tender offer, the last sale price of the Class A Shares was $43 1/8 per share.
We advise you to obtain a recent quotation for Class A shares of Ben & Jerry's
Homemade, Inc. in deciding whether to tender your shares. See Section 6 ("Price
Range of the Class A Shares; Dividends on the Shares") of this Offer to
Purchase.
DO YOU HAVE ANY OTHER AGREEMENTS WITH BEN & JERRY'S HOMEMADE, INC.? Unilever
N.V. and Unilever PLC have entered into a License Agreement with Ben & Jerry's
Homemade, Inc. and Ben & Jerry's Homemade Holdings, Inc., a wholly owned
subsidiary of Ben & Jerry's Homemade, Inc. This License Agreement grants
Unilever N.V. and Unilever PLC an exclusive worldwide license of the Ben &
Jerry's brand name for ice cream and related dessert products outside the United
States (except in certain countries, including those in which Ben & Jerry's
Homemade, Inc. has already granted licenses to other companies). Also, on the
date of the merger agreement, Ben & Jerry's Homemade, Inc. granted
Conopco, Inc. an option to purchase up to 1,219,986 shares of Class A Common
Stock at $43.60 per share. See Section 12 ("Purpose of the Offer; the Merger
Agreement; Other Agreements") of this Offer to Purchase.
TO WHOM CAN I TALK IF I HAVE QUESTIONS ABOUT THE TENDER OFFER? You can call
Morrow & Co., Inc. at (800) 566-9061 (toll free) or Morgan Stanley & Co.
Incorporated at (212) 761-4750. Morrow & Co., Inc. is acting as the information
agent and Morgan Stanley & Co. Incorporated is acting as the dealer manager for
our tender offer. See the back cover of this Offer to Purchase.
iii
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TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
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<S> <C>
INTRODUCTION................................................ 1
THE TENDER OFFER............................................ 4
1. Terms of the Offer................................... 4
2. Procedures for Tendering Shares...................... 5
3. Withdrawal Rights.................................... 8
4. Acceptance for Payment and Payment................... 9
5. Certain U.S. Federal Income Tax Consequences......... 10
6. Price Range of the Class A Shares; Dividends on the
Shares.................................................... 11
7. Effect of the Offer on the Market for the Class A
Shares; Class A Share Quotation; Exchange Act
Registration; Margin Regulations..................... 12
8. Certain Information Concerning the Company........... 13
9. Certain Information Concerning the Purchaser, Conopco
and Unilever.............................................. 15
10. Source and Amount of Funds........................... 15
11. Contacts and Transactions with the Company;
Background of the Offer................................... 16
12. Purpose of the Offer; the Merger Agreement; Other
Agreements................................................ 18
13. Dividends and Distributions.......................... 31
14. Certain Conditions of the Offer...................... 32
15. Certain Legal Matters................................ 33
16. Fees and Expenses.................................... 35
17. Miscellaneous........................................ 36
SCHEDULE I--Directors and Executive Officers of Unilever,
Conopco and the Purchaser
</TABLE>
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To the Holders of Class A Common Stock and
the Holders of Class B Common Stock of
BEN & JERRY'S HOMEMADE, INC.:
INTRODUCTION
Vermont All Natural Expansion Company, a Vermont corporation (the
"Purchaser"), which is a wholly owned subsidiary of Conopco, Inc., a New York
corporation ("Conopco"), which is indirectly owned 75% by Unilever N.V., a
company organized under the laws of The Netherlands ("Unilever"), and 25% by
Unilever PLC, an English public limited company, hereby offers to purchase all
the outstanding (i) shares of Class A Common Stock (the "Class A Shares"), par
value $.033 per share (the "Class A Common Stock"), of Ben & Jerry's
Homemade, Inc., a Vermont corporation (the "Company"), together with the
associated rights (the "Class A Rights"), issued pursuant to the Class A Rights
Agreement dated as of July 30, 1998, between the Company and American Stock
Transfer & Trust Company ("American"), as amended from time to time, (the
"Class A Rights Agreement"), and (ii) shares of Class B Common Stock (the
"Class B Shares" and, together with the Class A Shares, the "Shares"), par value
$.033 per share (the "Class B Common Stock" and, together with the Class A
Common Stock, the "Company Common Stock"), of the Company, together with the
associated rights (together with the Class A Rights, the "Rights") to purchase
shares of Class B Common Stock issued pursuant to the Class B Rights Agreement
dated as of July 30, 1998, between the Company and American, as amended from
time to time (together with the Class A Rights Agreement, the "Rights
Agreements"), at a price of $43.60 per Share, net to the seller in cash, without
interest thereon (the "Offer Price"), upon the terms and subject to the
conditions set forth in this Offer to Purchase and in the related Letter of
Transmittal (which, together with any amendments or supplements hereto or
thereto, collectively constitute the "Offer").
The Class B Shares are subject to transfer restrictions contained in the
Company's Articles of Association, as amended (the "Company Charter"), which
provide that, subject to limited exceptions, any transfer of Class B Shares
(other than to the Company) will result in the automatic conversion of such
Class B Shares into Class A Shares. The acceptance for payment of Class B Shares
tendered pursuant to the Offer may be a deemed transfer resulting in the
automatic conversion of such Class B Shares into Class A Shares. Further, in
accordance with the Company Charter, the Board of Directors of the Company (the
"Company Board") has authorized the mandatory conversion of each outstanding
Class B Share into one newly issued Class A Share, and the Company has agreed
that upon receipt of a Qualified Notice (as defined in Section 12) from Conopco,
the Company will mail to the holders of Class B Shares a notice of conversion
stating that each outstanding Class B Share will be converted into a Class A
Share 10 days after the date of the mailing of such notice of conversion. Unless
the context otherwise requires, all references to the Shares shall be deemed to
include the associated Rights, and all references to the Rights include the
benefits that may inure to holders of the Rights pursuant to the Rights
Agreements.
Tendering shareholders whose Shares are registered in their own names and
who tender directly to the Depositary (as defined below) will not be obligated
to pay brokerage fees or commissions or, except as set forth in Instruction 6 of
the Letter of Transmittal, transfer taxes on the purchase of Shares pursuant to
the Offer. Shareholders who hold their Shares through banks or brokers should
check with such institutions as to whether they charge any service fees. The
Purchaser will pay all fees and expenses of Morgan Stanley & Co. Incorporated,
which is acting as Dealer Manager (the "Dealer Manager"), Morgan Guaranty Trust
Company of New York, which is acting as the Depositary (the "Depositary"), and
Morrow & Co., Inc., which is acting as the Information Agent (the "Information
Agent"), incurred in connection with the Offer. See Section 16.
THE COMPANY BOARD HAS ADOPTED THE MERGER AGREEMENT AND APPROVED THE OFFER,
THE MERGER AND THE OTHER TRANSACTIONS CONTEMPLATED BY THE MERGER AGREEMENT,
DETERMINED THAT THE TERMS OF THE OFFER AND THE MERGER ARE FAIR TO AND IN THE
BEST INTERESTS OF THE COMPANY'S SHAREHOLDERS AND UNANIMOUSLY RECOMMENDS THAT
SHAREHOLDERS OF THE COMPANY ACCEPT THE OFFER AND TENDER THEIR SHARES PURSUANT TO
THE OFFER. THE
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FACTORS CONSIDERED BY THE COMPANY BOARD IN ARRIVING AT ITS DECISION TO ADOPT THE
MERGER AGREEMENT, APPROVE THE OFFER, THE MERGER AND THE OTHER TRANSACTIONS
CONTEMPLATED BY THE MERGER AGREEMENT, TO DETERMINE THAT THE TERMS OF THE OFFER
AND THE MERGER ARE FAIR TO AND IN THE BEST INTERESTS OF THE COMPANY'S
SHAREHOLDERS AND TO UNANIMOUSLY RECOMMEND THAT SHAREHOLDERS OF THE COMPANY
ACCEPT THE OFFER AND TENDER THEIR SHARES PURSUANT TO THE OFFER ARE DESCRIBED IN
THE COMPANY'S SOLICITATION/RECOMMENDATION STATEMENT ON SCHEDULE 14D-9 (THE
"SCHEDULE 14D-9"), WHICH WILL BE FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION (THE "COMMISSION") AND IS BEING MAILED TO SHAREHOLDERS OF THE COMPANY
CONCURRENTLY HEREWITH.
GORDIAN GROUP, L.P. HAS ACTED AS THE COMPANY'S FINANCIAL ADVISOR. THE
OPINION OF GORDIAN GROUP, L.P. DATED APRIL 11, 2000, AS TO THE FAIRNESS AS OF
SUCH DATE, FROM A FINANCIAL POINT OF VIEW, TO THE HOLDERS OF THE SHARES OF THE
CONSIDERATION TO BE RECEIVED IN THE OFFER AND THE MERGER IS SET FORTH IN FULL AS
ANNEX A TO THE SCHEDULE 14D-9. SHAREHOLDERS ARE URGED TO, AND SHOULD, READ THE
SCHEDULE 14D-9 AND SUCH OPINION CAREFULLY IN THEIR ENTIRETY.
THE OFFER IS CONDITIONED UPON, AMONG OTHER THINGS, (A) THERE BEING VALIDLY
TENDERED AND NOT WITHDRAWN PRIOR TO THE EXPIRATION DATE (AS DEFINED IN
SECTION 1) SUCH NUMBER OF SHARES THAT, TAKING INTO ACCOUNT THE CONVERSION OF THE
CLASS B SHARES TO CLASS A SHARES, WOULD CONSTITUTE AT LEAST A MAJORITY OF THE
COMBINED VOTING POWER OF THE COMPANY COMMON STOCK (DETERMINED ON A FULLY DILUTED
BASIS, AFTER GIVING EFFECT TO THE EXERCISE OR CONVERSION OF ALL OPTIONS, RIGHTS
AND SECURITIES EXERCISABLE OR CONVERTIBLE INTO VOTING SECURITIES) (THE "MINIMUM
CONDITION"), (B) THE WAITING PERIOD (AND ANY EXTENSION THEREOF) UNDER THE
HART-SCOTT-RODINO ANTITRUST IMPROVEMENTS ACT OF 1976, AS AMENDED (THE "HSR
ACT"), APPLICABLE TO THE PURCHASE OF SHARES PURSUANT TO THE OFFER HAVING EXPIRED
OR BEEN TERMINATED AND (C) THE COMPANY HAVING MAILED, UPON RECEIPT OF A WRITTEN
NOTICE THAT (I) IS DELIVERED BY CONOPCO TO THE COMPANY NOT EARLIER THAN THE
BUSINESS DAY IMMEDIATELY PRIOR TO THE THEN-SCHEDULED EXPIRATION DATE OF THE
OFFER AND NOT LATER THAN 2 P.M. EASTERN TIME ON THE THEN-SCHEDULED EXPIRATION
DATE OF THE OFFER AND (II) STATES THAT, AS OF THE TIME OF SUCH NOTICE, CONOPCO
HAS NO REASON TO BELIEVE THAT ANY CONDITION TO THE OFFER WILL NOT BE SATISFIED
AT THE THEN-SCHEDULED EXPIRATION DATE OF THE OFFER (ASSUMING COMPLIANCE BY THE
COMPANY WITH THIS CLAUSE (C)), A NOTICE OF CONVERSION, WHICH NOTICE SHALL
SPECIFY THAT ALL CLASS B SHARES SHALL BE AUTOMATICALLY CONVERTED INTO CLASS A
SHARES EFFECTIVE TEN DAYS FROM THE DATE OF SUCH MAILING. The Purchaser reserves
the right (subject to obtaining the consent of the Company and the applicable
rules and regulations of the Commission), which it presently has no intention of
exercising, to waive or reduce the Minimum Condition and to elect to purchase,
pursuant to the Offer, fewer than the minimum number of Shares necessary to
satisfy the Minimum Condition. See Sections 1, 12 and 14.
The Offer is being made pursuant to the Agreement and Plan of Merger dated
as of April 11, 2000 (the "Merger Agreement"), among Conopco, the Purchaser and
the Company pursuant to which, following the consummation of the Offer and the
satisfaction or waiver of certain conditions, the Purchaser will be merged with
and into the Company (the "Merger"), with the Company surviving the Merger as a
wholly owned subsidiary of Conopco. In the Merger, each issued and outstanding
Share (other than Shares owned by Conopco, the Purchaser or the Company or any
wholly owned subsidiary of Conopco, the Purchaser or the Company or by
shareholders, if any, who are entitled to and properly exercise dissenters'
rights under Vermont law) will be converted into the right to receive $43.60, in
cash, without interest thereon.
Consummation of the Merger is subject to a number of conditions, including
approval by shareholders of the Company and Shares having been purchased
pursuant to the Offer. Upon (i) the conversion of the Class B Shares and
(ii) the redemption of the Company's $1.20 Class A Preferred Stock, par value
$1.00 per share (the "Preferred Stock"), each in accordance with the Company
Charter and the Merger Agreement, the only outstanding capital stock of the
Company will be the Class A Shares.
The Merger Agreement is more fully described in Section 12.
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The Company has informed the Purchaser that, as of April 14, 2000, there
were 6,143,539 Class A Shares and 792,819 Class B Shares issued and outstanding
and 1,415,523 Class A Shares and no Class B Shares reserved for issuance upon
the exercise of outstanding options, warrants or other rights to purchase
Class A Shares or Class B Shares, as the case may be, from the Company. Based
upon the foregoing and assuming that no Shares are otherwise issued after
April 14, 2000, there are 8,351,881 Shares outstanding on a fully diluted basis,
and the Minimum Condition will be satisfied if at least 4,175,942 Shares are
validly tendered and not withdrawn prior to the Expiration Date. The actual
number of Shares required to be tendered to satisfy the Minimum Condition will
depend upon the actual number of Shares outstanding on the date that the
Purchaser accepts Shares for payment pursuant to the Offer. If the Minimum
Condition is satisfied and the Purchaser accepts for payment Shares tendered
pursuant to the Offer, the Purchaser will be able to elect a majority of the
members of the Company Board and to effect the Merger without the affirmative
vote of any other shareholder of the Company. See Section 12.
Certain U.S. federal income tax consequences of the sale of Shares pursuant
to the Offer and the conversion of Shares pursuant to the Merger are described
in Section 5.
THIS OFFER TO PURCHASE AND THE RELATED LETTER OF TRANSMITTAL CONTAIN
IMPORTANT INFORMATION THAT SHOULD BE READ BEFORE ANY DECISION IS MADE WITH
RESPECT TO THE OFFER.
3
<PAGE>
THE TENDER OFFER
1. TERMS OF THE OFFER
Upon the terms and subject to the conditions of the Offer, the Purchaser
will accept for payment and pay for all Shares validly tendered prior to the
Expiration Date and not theretofore withdrawn in accordance with Section 3. The
term "Expiration Date" means 12:00 midnight, New York City time, on Monday,
May 15, 2000, unless and until the Purchaser has extended in accordance with the
Merger Agreement the period of time during which the Offer is open, in which
event the term "Expiration Date" shall mean the latest time and date on which
the Offer, as so extended by the Purchaser, will expire.
Subject to the Merger Agreement (which, as described below, prohibits
certain amendments to the Offer without the consent of the Company) and the
applicable rules and regulations of the Commission, the Purchaser reserves the
right (but shall not be obligated), at any time and from time to time, and
regardless of whether or not any of the events or facts set forth in Section 14
shall have occurred, (a) to extend the period of time during which the Offer is
open, and thereby delay acceptance for payment of and the payment for any
Shares, by giving oral or written notice of such extension to the Depositary and
(b) to amend the Offer in any other respect by giving oral or written notice of
such amendment to the Depositary. The Purchaser has no intention to make
available a "subsequent offering period" (within the meaning of Rule 14d-11
under the Securities Exchange Act of 1934, as amended (the "Exchange Act")), but
has the right (but not the obligation) to do so under Rule 14d-11 and the Merger
Agreement. Under no circumstances will interest be paid on the purchase price
for tendered Shares, regardless of any extension of or amendment to the Offer or
any delay in paying for such Shares.
If by 12:00 midnight, New York City time, on Monday, May 15, 2000 (or any
date or time then set as the Expiration Date), any of or all the conditions to
the Offer have not been satisfied or waived, the Purchaser, subject to the
Merger Agreement and the applicable rules and regulations of the Commission,
reserves the right (but shall not be obligated) (a) to terminate the Offer and
not accept for payment or pay for any Shares and return all tendered Shares to
tendering shareholders, (b) to waive all the unsatisfied conditions and accept
for payment and pay for all Shares validly tendered prior to the Expiration Date
and not subsequently withdrawn, (c) to extend the Offer and, subject to the
right of shareholders to withdraw tendered Shares until the Expiration Date,
retain the Shares that have been tendered during the period or periods for which
the Offer is extended or (d) to amend the Offer.
There can be no assurance that the Purchaser will exercise its right to
extend the Offer. Any extension, waiver, amendment or termination will be
followed as promptly as practicable by public announcement thereof. In the case
of an extension, Rule 14e-l(d) under the Exchange Act requires that the
announcement be issued no later than 9:00 a.m., New York City time, on the next
business day after the previously scheduled Expiration Date in accordance with
the public announcement requirements of Rule 14d-4(d) under the Exchange Act.
Subject to applicable law (including Rules 14d-4(d) and 14d-6(d) under the
Exchange Act, which require that any material change in the information
published, sent or given to shareholders in connection with the Offer be
promptly disseminated to shareholders in a manner reasonably designed to inform
shareholders of such change) and without limiting the manner in which the
Purchaser may choose to make any public announcement, the Purchaser will not
have any obligation to publish, advertise or otherwise communicate any such
public announcement other than by issuing a press release to the Dow Jones News
Service.
In the Merger Agreement, the Purchaser has agreed that, except as described
below, it will not, without the consent of the Company, (a) reduce the number of
Shares subject to the Offer, (b) reduce the Offer Price, (c) reduce or waive the
Minimum Condition, (d) modify, in any manner adverse to the holders of Shares,
or add to the conditions to the Offer (which are set forth in Section 14),
(e) extend the Offer or (f) change the form of consideration payable in the
Offer. However, the Merger Agreement provides that, without the consent of the
Company, the Purchaser may (a) extend the Offer, if at the Expiration Date any
of the conditions to the Purchaser's obligation to purchase Shares are not
satisfied, until such time as such
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<PAGE>
conditions are satisfied or waived, (b) extend the Offer for any period required
by any rule, regulation, interpretation or position of the Commission or the
staff thereof applicable to the Offer and (c) make available a subsequent
offering period (within the meaning of Rule 14d-11 under the Exchange Act).
Without limiting the right of the Purchaser to extend the Offer, in the event
that any condition set forth in paragraph (a) of Section 14 is not satisfied or
waived at the scheduled Expiration Date of the Offer, at the request of the
Company the Purchaser shall, and Conopco shall cause the Purchaser to, extend
the Expiration Date of the Offer in increments of five business days each until
the earliest to occur of (w) the satisfaction or waiver of such condition,
(x) Conopco reasonably determines that such condition to the Offer is not
capable of being satisfied on or prior to September 30, 2000, (y) the
termination of the Merger Agreement in accordance with its terms and
(z) September 30, 2000. As used in this Offer to Purchase, "business day" has
the meaning set forth in Rule 14d-1 under the Exchange Act.
If the Purchaser makes a material change in the terms of the Offer or the
information concerning the Offer or waives a material condition of the Offer,
the Purchaser will disseminate additional tender offer materials and extend the
Offer to the extent required by Rules 14d-4(d), 14d-6(d) and 14e-1 under the
Exchange Act. The minimum period during which an offer must remain open
following material changes in the terms of such offer or information concerning
such offer, other than a change in price or a change in the percentage of
securities sought, will depend upon the facts and circumstances then existing,
including the relative materiality of the changed terms or information. With
respect to a change in price or a change in the percentage of securities sought,
a minimum period of 10 business days is generally required to allow for adequate
dissemination to shareholders.
The Company has provided the Purchaser with the Company's shareholder lists
and security position listings for the purpose of disseminating the Offer to
holders of Shares. This Offer to Purchase, the related Letter of Transmittal and
other relevant materials will be mailed by the Purchaser to record holders of
Shares and will be furnished to brokers, dealers, banks, trust companies and
similar persons whose names, or the names of whose nominees, appear on the
shareholder lists, or, if applicable, who are listed as participants in a
clearing agency's security position listing, for subsequent transmittal to
beneficial owners of Shares.
2. PROCEDURES FOR TENDERING SHARES
VALID TENDER. For a shareholder validly to tender Shares pursuant to the
Offer, (a) the certificates for tendered Shares, together with a Letter of
Transmittal (or a facsimile thereof), properly completed and duly executed, any
required signature guarantees and any other required documents, must, prior to
the Expiration Date, be received by the Depositary at one of its addresses set
forth on the back cover of this Offer to Purchase; (b) in the case of a transfer
effected pursuant to the book-entry transfer procedures described under
"Book-Entry Transfer", either a Letter of Transmittal (or a facsimile thereof),
properly completed and duly executed, and any required signature guarantees, or
an Agent's Message (as defined below), and any other required documents, must be
received by the Depositary at one of such addresses, such Shares must be
delivered pursuant to the book-entry transfer procedures described below and a
Book-Entry Confirmation (as defined below) must be received by the Depositary,
in each case prior to the Expiration Date; or (c) the tendering shareholder
must, prior to the Expiration Date, comply with the guaranteed delivery
procedures described below under "Guaranteed Delivery".
The valid tender of Shares pursuant to one of the procedures described above
will constitute a binding agreement between the tendering shareholder and the
Purchaser upon the terms and subject to the conditions of the Offer.
THE METHOD OF DELIVERY OF SHARES, THE LETTER OF TRANSMITTAL AND ALL OTHER
REQUIRED DOCUMENTS, INCLUDING DELIVERY THROUGH THE BOOK-ENTRY TRANSFER FACILITY
(AS DEFINED BELOW), IS AT THE ELECTION AND RISK OF THE TENDERING SHAREHOLDER.
SHARES WILL BE DEEMED DELIVERED ONLY WHEN ACTUALLY RECEIVED BY THE DEPOSITARY
(INCLUDING, IN THE CASE OF A BOOK-ENTRY TRANSFER, BY BOOK-ENTRY CONFIRMATION).
IF DELIVERY IS BY MAIL,
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REGISTERED MAIL WITH RETURN RECEIPT REQUESTED, PROPERLY INSURED, IS RECOMMENDED.
IN ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO ENSURE TIMELY DELIVERY.
BOOK-ENTRY TRANSFER. The Depositary will establish an account with respect
to the Shares at The Depository Trust Company (the "Book-Entry Transfer
Facility") for purposes of the Offer within two business days after the date of
this Offer to Purchase. Any financial institution that is a participant of the
Book-Entry Transfer Facility's system may make book-entry delivery of Shares by
causing the Book-Entry Transfer Facility to transfer such Shares into the
Depositary's account in accordance with the Book-Entry Transfer Facility's
procedures for such transfer. However, although delivery of Shares may be
effected through book-entry transfer into the Depositary's account at the
Book-Entry Transfer Facility, the Letter of Transmittal (or a facsimile
thereof), properly completed and duly executed, with any required signature
guarantees, or an Agent's Message, and any other required documents, must, in
any case, be received by the Depositary at one of its addresses set forth on the
back cover of this Offer to Purchase prior to the Expiration Date for a valid
tender of Shares by book-entry. The confirmation of a book-entry transfer of
Shares into the Depositary's account at the Book-Entry Transfer Facility as
described above is referred to herein as a "Book-Entry Confirmation". DELIVERY
OF DOCUMENTS TO THE BOOK-ENTRY TRANSFER FACILITY IN ACCORDANCE WITH THE
BOOK-ENTRY TRANSFER FACILITY'S PROCEDURES DOES NOT CONSTITUTE DELIVERY TO THE
DEPOSITARY.
The term "Agent's Message" means a message, transmitted through electronic
or other means by the Book-Entry Transfer Facility to, and received by, the
Depositary and forming a part of a Book-Entry Confirmation, which states that
the Book-Entry Transfer Facility has received an express acknowledgment from the
participant in the Book-Entry Transfer Facility tendering the Shares that such
participant has received and agrees to be bound by the terms of the Letter of
Transmittal and that the Purchaser may enforce such agreement against the
participant. "Agent's Message" shall also include any hard copy print-out
evidencing such message generated by a computer terminal maintained by the
Depositary.
SIGNATURE GUARANTEES. No signature guarantee is required on the Letter of
Transmittal if (a) the Letter of Transmittal is signed by the registered
holder(s) (which term, for purposes of this Section 2, includes any participant
in the Book-Entry Transfer Facility's system whose name appears on a security
position listing as the owner of the Shares) of Shares tendered therewith and
such registered holder has not completed either the box entitled "Special
Delivery Instructions" or the box entitled "Special Payment Instructions" on the
Letter of Transmittal or (b) such Shares are tendered for the account of a
financial institution (including most commercial banks, savings and loan
associations and brokerage houses) that is a participant in the Security
Transfer Agents Medallion Program, the New York Stock Exchange Medallion
Signature Guarantee Program or the Stock Exchange Medallion Program (such
participant, an "Eligible Institution"). In all other cases, all signatures on
the Letter of Transmittal must be guaranteed by an Eligible Institution. See
Instructions 1 and 5 to the Letter of Transmittal. If the certificates for
Shares are registered in the name of a person other than the signer of the
Letter of Transmittal, or if payment is to be made or certificates for Shares
not tendered or not accepted for payment are to be returned to a person other
than the registered holder of the certificates surrendered, the tendered
certificates must be endorsed or accompanied by appropriate stock powers, in
either case signed exactly as the name or names of the registered holders or
owners appear on the certificates, with the signatures on the certificates or
stock powers guaranteed as aforesaid. See Instructions 1 and 5 to the Letter of
Transmittal.
GUARANTEED DELIVERY. If a shareholder desires to tender Shares pursuant to
the Offer and such shareholder's certificates for Shares are not immediately
available or the book-entry transfer procedures cannot be completed on a timely
basis or time will not permit all required documents to reach the Depositary
prior to the Expiration Date, such shareholder's tender may be effected if all
the following conditions are met:
(a) such tender is made by or through an Eligible Institution;
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(b) a properly completed and duly executed Notice of Guaranteed
Delivery, substantially in the form provided by the Purchaser, is received
by the Depositary at one of its addresses set forth on the back cover of
this Offer to Purchase prior to the Expiration Date; and
(c) either (i) the certificates for tendered Shares together with a
Letter of Transmittal (or a facsimile thereof), properly completed and duly
executed, and any required signature guarantees, and any other required
documents received by the Depositary at one of its addresses set forth on
the back cover of this Offer to Purchase within three trading days after the
date of execution of such Notice of Guaranteed Delivery or (ii) in the case
of a transfer effected pursuant to the book-entry transfer procedures
described above under "Book-Entry Transfer", either a Letter of Transmittal
(or a facsimile thereof), properly completed and duly executed, and any
required signature guarantees, or an Agent's Message, and any other required
documents, is received by the Depositary at one of such addresses, or such
Shares are delivered pursuant to the book-entry transfer procedures
described above and a Book-Entry Confirmation is received by the Depositary,
in each case within three trading days after the date of execution of such
Notice of Guaranteed Delivery. A "trading day" is any day on which the
Nasdaq National Market (the "Nasdaq National Market") operated by the Nasdaq
Stock Market, Inc. ("Nasdaq"), a subsidiary of the National Association of
Securities Dealers, Inc., is open for business.
The Notice of Guaranteed Delivery may be delivered to the Depositary in the
manner specified therein and must include a guarantee by an Eligible Institution
in the form set forth in such Notice of Guaranteed Delivery.
DISTRIBUTION OF RIGHTS. Holders of Shares will be required to tender one
Right for each Share tendered to effect a valid tender of such Share. Unless and
until the Distribution Date (as defined in the Rights Agreements) occurs, the
Rights are represented by and transferred with the Shares. Accordingly, if the
Distribution Date does not occur prior to the Expiration Date of the Offer, a
tender of Shares will constitute a tender of the associated Rights. If, however,
pursuant to the Rights Agreements or otherwise, a Distribution Date does occur,
certificates representing a number of Rights equal to the number of Shares being
tendered must be delivered to the Depositary in order for such Shares to be
validly tendered. If a Distribution Date has occurred, a tender of Shares
without Rights constitutes an agreement by the tendering shareholder to deliver
certificates representing a number of Rights equal to the number of Shares
tendered pursuant to the Offer to the Depositary within three trading days after
the date such certificates are distributed. The Purchaser reserves the right to
require that it receive such certificates prior to accepting Shares for payment.
Payment for Shares tendered and purchased pursuant to the Offer will be made
only after timely receipt by the Depositary of, among other things, such
certificates, if such certificates have been distributed to holders of Shares.
The Purchaser will not pay any additional consideration for the Rights tendered
pursuant to the Offer. The Rights Agreements have been amended as of April 11,
2000, to exempt from the provisions of the Rights Agreements the Merger
Agreement, the acquisition of Shares by Conopco or the Purchaser pursuant to the
Offer and the other transactions contemplated by the Merger Agreement.
APPOINTMENT. By executing a Letter of Transmittal (or a facsimile thereof),
a tendering shareholder will irrevocably appoint designees of the Purchaser as
such shareholder's attorneys-in-fact and proxies in the manner set forth in the
Letter of Transmittal, each with full power of substitution, to the full extent
of such shareholder's rights with respect to the Shares tendered by such
shareholder and accepted for payment by the Purchaser and with respect to any
and all other Shares or other securities or rights issued or issuable in respect
of such Shares on or after April 11, 2000. All such proxies will be considered
coupled with an interest in the tendered Shares. Such appointment will be
effective when, and only to the extent that, the Purchaser accepts for payment
Shares tendered by such shareholder as provided herein. Upon the effectiveness
of such appointment, all prior powers of attorney, proxies and consents given by
such shareholder with respect to such Shares or other securities or rights will,
without further action, be revoked and no subsequent powers of attorney,
proxies, consents or revocations may be given (and, if given, will not
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be effective). The designees of the Purchaser will thereby be empowered to
exercise all voting and other rights with respect to such Shares and other
securities or rights in respect of any annual, special or adjourned meeting of
the Company's shareholders, actions by written consent in lieu of any such
meeting or otherwise, as they in their sole discretion deem proper. The
Purchaser reserves the right to require that, in order for Shares to be deemed
validly tendered, immediately upon the Purchaser's acceptance for payment of
such Shares, the Purchaser must be able to exercise full voting, consent and
other rights with respect to such Shares and other securities or rights,
including voting at any meeting of shareholders.
DETERMINATION OF VALIDITY. All questions as to the validity, form,
eligibility (including time of receipt) and acceptance of any tender of Shares
will be determined by the Purchaser in its sole discretion, which determination
will be final and binding. The Purchaser reserves the absolute right to reject
any or all tenders determined by it not to be in proper form or the acceptance
for payment of or payment for which may, in the opinion of the Purchaser's
counsel, be unlawful. The Purchaser also reserves the absolute right to waive
any defect or irregularity in the tender of any Shares of any particular
shareholder whether or not similar defects or irregularities are waived in the
case of other shareholders. No tender of Shares will be deemed to have been
validly made until all defects or irregularities relating thereto have been
cured or waived. None of the Purchaser, Conopco, Unilever, the Company, the
Depositary, the Information Agent, the Dealer Manager or any other person will
be under any duty to give notification of any defects or irregularities in
tenders or incur any liability for failure to give any such notification. The
Purchaser's interpretation of the terms and conditions of the Offer (including
the Letter of Transmittal and the instructions thereto) will be final and
binding.
BACKUP WITHHOLDING. In order to avoid "backup withholding" of U.S. federal
income tax on payments of cash pursuant to the Offer, a shareholder surrendering
Shares in the Offer must, unless an exemption applies, provide the Depositary
with such shareholder's correct taxpayer identification number ("TIN") on a
Substitute Form W-9 and certify under penalties of perjury that such TIN is
correct and that such Shareholder is not subject to backup withholding. If a
shareholder does not provide such shareholder's correct TIN or fails to provide
the certifications described above, the Internal Revenue Service (the "IRS") may
impose a penalty on such shareholder, and payment of cash to such shareholder
pursuant to the Offer may be subject to backup withholding of 31%. All
shareholders surrendering Shares pursuant to the Offer should complete and sign
the main signature form and the Substitute Form W-9 included as part of the
Letter of Transmittal to provide the information and certification necessary to
avoid backup withholding (unless an applicable exemption exists and is proved in
a manner satisfactory to the Purchaser and the Depositary). Certain shareholders
(including, among others, all corporations and certain foreign individuals and
entities) are not subject to backup withholding. Noncorporate foreign
shareholders should complete and sign the main signature form and a Form W-8,
Certificate of Foreign Status, a copy of which may be obtained from the
Depositary, in order to avoid backup withholding. See Instruction 9 to the
Letter of Transmittal.
3. WITHDRAWAL RIGHTS
Except as otherwise provided in this Section 3, tenders of Shares are
irrevocable. Shares tendered pursuant to the Offer may be withdrawn pursuant to
the procedures set forth below at any time prior to the Expiration Date and,
unless theretofore accepted for payment and paid for by the Purchaser pursuant
to the Offer, may also be withdrawn at any time after Friday, June 16, 2000.
For a withdrawal to be effective, a written notice of withdrawal must be
timely received by the Depositary at one of its addresses set forth on the back
cover of this Offer to Purchase and must specify the name of the person having
tendered the Shares to be withdrawn, the number of Shares to be withdrawn and
the name of the registered holder of the Shares to be withdrawn, if different
from the name of the person who tendered the Shares. If certificates for Shares
have been delivered or otherwise identified to the Depositary, then, prior to
the physical release of such certificates, the serial numbers shown on such
certificates must be submitted to the Depositary and, unless such Shares have
been
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<PAGE>
tendered by an Eligible Institution, any and all signatures on the notice of
withdrawal must be guaranteed by an Eligible Institution. If Shares have been
delivered pursuant to the book-entry transfer procedures described in
Section 2, any notice of withdrawal must also specify the name and number of the
account at the Book-Entry Transfer Facility to be credited with the withdrawn
Shares and otherwise comply with the Book-Entry Transfer Facility's procedures.
Withdrawals of tenders of Shares may not be rescinded, and any Shares properly
withdrawn will thereafter be deemed not validly tendered for purposes of the
Offer. However, withdrawn Shares may be retendered again by following one of the
procedures described in Section 2 at any time prior to the Expiration Date.
All questions as to the form and validity (including time of receipt) of
notices of withdrawal will be determined by the Purchaser in its sole
discretion, which determination will be final and binding. None of the
Purchaser, Conopco, Unilever, the Company, the Depositary, the Information
Agent, the Dealer Manager or any other person will be under any duty to give
notification of any defects or irregularities in any notice of withdrawal or
incur any liability for failure to give any such notification.
4. ACCEPTANCE FOR PAYMENT AND PAYMENT
Upon the terms and subject to the conditions of the Offer (including, if the
Offer is extended or amended, the terms and conditions of any such extension or
amendment), the Purchaser will accept for payment and will pay for all Shares
validly tendered prior to the Expiration Date and not properly withdrawn in
accordance with Section 3 promptly after the Expiration Date. The Purchaser,
subject to the Merger Agreement, expressly reserves the right, in its sole
discretion, to delay acceptance for payment of or payment for Shares in order to
comply in whole or in part with any applicable law, including the HSR Act. See
Section 15. Any such delays will be effected in compliance with Rule 14e-1(c)
under the Exchange Act (relating to a bidder's obligation to pay for or return
tendered securities promptly after the termination or withdrawal of such
bidder's offer).
In all cases, payment for Shares accepted for payment pursuant to the Offer
will be made as promptly as practicable following the Expiration Date but only
after timely receipt by the Depositary of (a) the certificates for such Shares,
together with a Letter of Transmittal (or a facsimile thereof), properly
completed and duly executed, and any required signature guarantees or (b) in the
case of a transfer effected pursuant to the book-entry transfer procedures
described in Section 2, a Book-Entry Confirmation and either a Letter of
Transmittal (or a facsimile thereof), properly completed and duly executed, and
with any required signature guarantees, or an Agent's Message, and any other
required documents. The per Share consideration paid to any shareholder pursuant
to the Offer will be the highest per Share consideration paid to any other
shareholder pursuant to the Offer. Accordingly, tendering shareholders may be
paid at different times depending upon when certificates for Shares or
Book-Entry Confirmations with respect to Shares are actually received by the
Depositary.
For purposes of the Offer, the Purchaser will be deemed to have accepted for
payment, and thereby purchased, Shares validly tendered to the Purchaser and not
withdrawn as, if and when, the Purchaser gives oral or written notice to the
Depositary of the Purchaser's acceptance for payment of such Shares. Upon the
terms and subject to the conditions of the Offer, payment for Shares accepted
for payment pursuant to the Offer will be made by deposit of the purchase price
therefor with the Depositary, which will act as an agent for tendering
shareholders for the purpose of receiving payment from the Purchaser and
transmitting payment to tendering shareholders whose Shares have been accepted
for payment. If the Purchaser varies the terms of the Offer by increasing the
consideration to be paid, the Purchaser shall pay such increased amount for each
tendered Share accepted for payment pursuant to the Offer. UNDER NO
CIRCUMSTANCES WILL INTEREST BE PAID ON THE PURCHASE PRICE FOR TENDERED SHARES,
REGARDLESS OF ANY EXTENSION OF OR AMENDMENT TO THE OFFER OR ANY DELAY IN PAYING
FOR SUCH SHARES.
If the Purchaser is delayed in its acceptance for payment of or payment for
Shares or is unable to accept for payment or pay for Shares pursuant to the
Offer for any reason, then, without prejudice to the
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<PAGE>
Purchaser's rights under the Offer (but subject to compliance with
Rule 14e-1(c) under the Exchange Act (relating to a bidder's obligation to pay
for or return tendered securities promptly after the termination or withdrawal
of such bidder's offer)), the Depositary may, nevertheless, on behalf of the
Purchaser, retain tendered Shares, and such Shares may not be withdrawn except
to the extent tendering shareholders are entitled to do so as described in
Section 3.
If any tendered Shares are not purchased pursuant to the Offer for any
reason, the certificates for such Shares will be returned (and, if certificates
are submitted for more Shares than are tendered, new certificates for the Shares
not tendered will be sent), in each case without expense to the tendering
shareholder (or, in the case of Shares delivered by book-entry transfer of such
Shares into the Depositary's account at the Book-Entry Transfer Facility
pursuant to the book-entry transfer procedures described in Section 2, such
Shares will be credited to an account maintained at the Book-Entry Transfer
Facility), as promptly as practicable after the expiration or termination of the
Offer.
The Purchaser reserves the right to transfer or assign, in whole or from
time to time in part, to Conopco, or to one or more direct or indirect wholly
owned subsidiaries of Conopco, the right to purchase Shares tendered pursuant to
the Offer, but any such transfer or assignment will not relieve the Purchaser of
its obligations under the Offer and will in no way prejudice the rights of
tendering shareholders to receive payment for Shares validly tendered and
accepted for payment pursuant to the Offer.
5. CERTAIN U.S. FEDERAL INCOME TAX CONSEQUENCES
The receipt of cash pursuant to the Offer or the Merger will be a taxable
transaction for U.S. federal income tax purposes under the Internal Revenue Code
of 1986, as amended (the "Code"), and may also be a taxable transaction under
applicable state, local or foreign income or other tax laws. Generally, for U.S.
federal income tax purposes, a tendering shareholder will recognize gain or loss
equal to the difference between the amount of cash received by the shareholder
pursuant to the Offer or Merger and the aggregate tax basis in the Shares
tendered by the shareholder and purchased pursuant to the Offer or converted
into cash in the Merger, as the case may be. Gain or loss will be calculated
separately for each block of Shares tendered and purchased pursuant to the Offer
or converted into cash in the Merger, as the case may be.
If tendered Shares are held by a tendering shareholder as capital assets,
gain or loss recognized by such shareholder will be capital gain or loss, which
will be long-term capital gain or loss if such shareholder's holding period for
the Shares exceeds one year. In the case of a noncorporate shareholder,
long-term capital gain will be eligible for a maximum U.S. federal income tax
rate of 20%. In addition, under present law the ability to use capital losses to
offset ordinary income is limited.
A shareholder that tenders Shares may be subject to 31% backup withholding
unless the shareholder provides its TIN and certifies that such number is
correct or properly certifies that it is awaiting a TIN and otherwise complies
with the applicable requirements of the backup withholding rules, or unless an
exemption applies. Exemptions are available for shareholders that are
corporations and for certain foreign individuals and entities. A shareholder
that does not furnish a required TIN or that does not otherwise establish a
basis for an exemption from backup withholding may be subject to a penalty
imposed by the IRS. See "Backup Withholding" under Section 2.
If backup withholding applies to a shareholder, the Depositary is required
to withhold 31% from payments to such shareholder. Backup withholding is not an
additional tax. Rather, the amount of the backup withholding can be credited
against the U.S. federal income tax liability of the person subject to the
backup withholding, provided that the required information is given to the IRS.
If backup withholding results in an overpayment of tax, a refund can be obtained
by the shareholder by filing a U.S. federal income tax return.
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<PAGE>
The foregoing discussion may not be applicable with respect to Shares
received pursuant to the exercise of employee stock options or otherwise as
compensation or with respect to holders of Shares who are subject to special tax
treatment under the Code--such as non-U.S. persons, life insurance companies,
tax-exempt organizations and financial institutions--and may not apply to a
holder of Shares in light of individual circumstances, such as holding Shares as
a hedge or as part of a hedging, straddle, conversion or other risk-reduction
transaction. Shareholders are urged to consult their own tax advisors to
determine the particular tax consequences to them (including the application and
effect of any state, local or foreign income and other tax laws) of the Offer
and the Merger.
6. PRICE RANGE OF THE CLASS A SHARES; DIVIDENDS ON THE SHARES
The Class A Shares are quoted on the Nasdaq National Market under the symbol
"BJICA" and have been at all times since October 1985. The following table sets
forth, for each of the periods indicated, the high and low sales prices per
Class A Share.
BEN & JERRY'S HOMEMADE, INC.
<TABLE>
<CAPTION>
HIGH LOW
---------- -----------
<S> <C> <C>
FISCAL YEAR ENDED DECEMBER 26, 1998:
First Quarter............................................. $19 $14
Second Quarter............................................ 21 1/8 17
Third Quarter............................................. 19 7/8 13 1/16
Fourth Quarter............................................ 23 1/2 14 7/8
FISCAL YEAR ENDED DECEMBER 25, 1999:
First Quarter............................................. 27 3/8 21 1/8
Second Quarter............................................ 31 1/2 24 1/4
Third Quarter............................................. 29 1/16 17 7/8
Fourth Quarter............................................ 29 1/2 15 3/4
FISCAL YEAR ENDING DECEMBER 30, 2000:
First Quarter............................................. 30 1/2 20 3/4
Second Quarter............................................ 43 3/16 29 3/8
</TABLE>
On April 11, 2000, the last full trading day before the public announcement
of the execution of the Merger Agreement, the last reported sales price of the
Class A Shares on the Consolidated Tape System was $34 15/16 per Class A Share.
On April 17, 2000, the last full trading day before commencement of the Offer,
the last reported sales price of the Class A Shares on the Consolidated Tape
System was $43 1/8 per Class A Share. SHAREHOLDERS ARE URGED TO OBTAIN CURRENT
MARKET QUOTATIONS FOR THE CLASS A SHARES.
The Class B Shares are subject to transfer restrictions and are not listed
on any national securities exchange but trade periodically in the
over-the-counter market under the symbol "BJICB". The last reported sales price
of the Class B Shares was $26 per Class B Share on February 24, 2000.
The Purchaser has been advised by the Company that the Company has never
declared or paid any cash dividends on the Shares. Although stock dividends have
been paid on the Shares in the past, the Company has advised the Purchaser that
the Company has not declared or paid any stock or other non-cash dividends on
the Shares in the last two years.
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7. EFFECT OF THE OFFER ON THE MARKET FOR THE CLASS A SHARES; CLASS A SHARE
QUOTATION; EXCHANGE ACT REGISTRATION; MARGIN REGULATIONS
MARKET FOR THE CLASS A SHARES. The purchase of Class A Shares pursuant to
the Offer will reduce the number of holders of Class A Shares and the number of
Class A Shares that might otherwise trade publicly and could adversely affect
the liquidity and market value of the remaining Class A Shares held by the
public.
SHARE QUOTATION. Depending upon the number of Class A Shares purchased
pursuant to the Offer, the Class A Shares may no longer meet the requirements
for continued designation for the Nasdaq National Market. To maintain such
designation, a security must substantially meet one of two maintenance
standards. The first maintenance standard requires that there be at least
750,000 publicly held shares, the publicly held shares have a market value of at
least $5 million, the issuer have net tangible assets of at least $4 million,
there be at least 400 shareholders of round lots, the minimum bid price per
share be $1 and there be at least two registered and active market makers. The
second maintenance standard requires that the issuer have either (a) a market
capitalization of at least $50 million or (b) total assets and total revenue of
at least $50 million each for the most recently completed fiscal year or two of
the last three most recently completed fiscal years, there be at least 1,100,000
shares publicly held, the publicly held shares have a market value of at least
$15 million, the minimum bid price per share be $5, there be at least 400
shareholders of round lots and there be at least four registered and active
market makers.
If these standards for continued designation for the Nasdaq National Market
are not met, the Class A Shares might nevertheless continue to be included in
the Nasdaq SmallCap Market. Continued inclusion in the Nasdaq SmallCap Market,
however, would require that there be at least 300 shareholders of round lots,
there be at least 500,000 publicly held shares, the publicly held shares have a
market value of at least $1 million, there be at least two registered and active
market makers, of which one may be entering stabilizing bids, and the issuer
have either (a) net tangible assets of at least $2 million, (b) a market
capitalization of at least $35 million or (c) net income of at least $500,000 in
the most recently completed fiscal year or in two of the last three most
recently completed fiscal years. Class A Shares held directly or indirectly by
directors, officers or beneficial owners of more than 10% of the Shares are not
considered as being publicly held for this purpose.
According to the Company, as of February 25, 2000, there were approximately
9,979 holders of record of Class A Shares and 1,922 holders of record of
Class B Shares and as of April 14, 2000 there were 6,143,539 Class A Shares and
792,819 Class B Shares outstanding. If, as a result of the purchase of Class A
Shares pursuant to the Offer or otherwise, the Class A Shares no longer meet any
of the requirements of Nasdaq for continued listing and the number of Class A
Shares outstanding are no longer listed, the market for Class A Shares could be
adversely affected. If Nasdaq were to delist the Class A Shares, it is possible
that the Class A Shares would continue to trade on other securities exchanges or
in the over-the-counter market and that price quotations would be reported by
such exchanges. The extent of the public market for the Class A Shares and the
availability of such quotations would, however, depend upon the number of
holders of Class A Shares remaining at such time, the interests in maintaining a
market in the Class A Shares on the part of securities firms, the possible
termination of registration of the Class A Shares under the Exchange Act, as
described below, and other factors.
EXCHANGE ACT REGISTRATION. Each of the Class A Shares and the Class B
Shares are currently registered under the Exchange Act. Registration of the
Shares under the Exchange Act may be terminated upon application of the Company
to the Commission if the Shares are neither listed on a national securities
exchange nor held by 300 or more holders of record. Termination of registration
of the Shares under the Exchange Act would, subject to Section 15(d) of the
Exchange Act, substantially reduce the information required to be furnished by
the Company to its shareholders and to the Commission and would make certain
provisions of the Exchange Act no longer applicable to the Company, such as the
short-swing profit-recovery provisions of Section 16(b) of the Exchange Act, the
requirement of furnishing
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a proxy statement pursuant to Section 14(a) or 14(c) of the Exchange Act in
connection with shareholders' meetings and the related requirement of furnishing
an annual report to shareholders and the requirements of Rule 13e-3 under the
Exchange Act with respect to "going private" transactions. Furthermore, the
ability of "affiliates" of the Company and persons holding "restricted
securities" of the Company to dispose of such securities pursuant to Rule 144 or
144A promulgated under the Securities Act of 1933, as amended, may be impaired
or eliminated. The Purchaser intends to seek to cause the Company to apply for
termination of registration of the Shares under the Exchange Act as soon after
the completion of the Offer as the requirements for such termination are met.
If registration of the Shares is not terminated prior to the Merger, then
the Shares will be delisted from Nasdaq and the registration of the Shares under
the Exchange Act will be terminated following the consummation of the Merger.
MARGIN REGULATIONS. The Class A Shares are currently "margin securities"
under the regulations of the Board of Governors of the Federal Reserve System
(the "Federal Reserve Board"), which has the effect, among other things, of
allowing brokers to extend credit on the collateral of the Shares. Depending
upon factors similar to those described above regarding listing and market
quotations, it is possible that, following the Offer, the Class A Shares would
no longer constitute "margin securities" for the purposes of the margin
regulations of the Federal Reserve Board and therefore could no longer be used
as collateral for loans made by brokers.
8. CERTAIN INFORMATION CONCERNING THE COMPANY
The Company is a Vermont corporation with its principal offices at 30
Community Drive, South Burlington, VT 05403, telephone no. (802) 846-1500.
According to the Company's Annual Report on Form 10-K for the fiscal year ended
December 25, 1999 (the "Company 10-K"), the Company, which began active
operations in 1978, is a leading manufacturer of super premium ice cream, frozen
yogurt and sorbet in unique and regular flavors. The Company also manufactures
ice cream novelty products. The Company is committed to using milk and cream
that have not been treated with the synthetic hormone, rBGH. The Company uses
natural ingredients in its products. The Company believes that it has maintained
a reputation for producing gourmet-quality natural ice cream and frozen
desserts, and for sponsoring or creating light-hearted promotions that foster an
image as an independent socially conscious Vermont company.
Set forth below is certain selected financial information with respect to
the Company and its subsidiaries excerpted from the information contained in the
Company 10-K. More comprehensive financial information is included in such
reports and other documents filed by the Company with the Commission, and the
following summary is qualified in its entirety by reference to such reports,
other documents and all the financial information (including any related notes)
contained therein. Such reports and other documents should be available for
inspection and copies thereof should be obtainable in the manner set forth below
under "Available Information".
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BEN & JERRY'S HOMEMADE, INC.
SELECTED CONSOLIDATED FINANCIAL INFORMATION
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
THIRTEEN WEEKS
YEAR ENDED AND AS OF DECEMBER, ENDED AND AS OF
------------------------------------------ ---------------------
DECEMBER 25, DECEMBER 26, DECEMBER 27, MARCH 25, MARCH 27,
1999 1998 1997 2000 1999
------------ ------------ ------------ --------- ---------
(UNAUDITED)
<S> <C> <C> <C> <C> <C>
Consolidated Statement of
Operations:
Net Sales......................... $237,043 $209,203 $174,206 $ 54,179 $ 50,066
Income before Taxes............... 5,208 9,776 6,284 2,052 1,841
Taxes............................. 1,823 3,534 2,388 718 644
Net income........................ 3,385 6,242 3,896 1,334 1,197
Net income per share (diluted).... $ 0.46 $ 0.84 $ 0.53 $ 0.18 $ 0.16
Consolidated Balance Sheet Data:
Total current assets.............. 87,347 82,309 80,080 90,750 88,781
Total assets...................... 150,602 149,501 146,471 154,763 158,141
Total current liabilities......... 44,542 33,928 28,668 47,733 41,751
Total stockholders' equity........ 89,391 90,908 86,919 90,667 91,138
</TABLE>
CERTAIN FORECAST INFORMATION. During the course of discussions between
representatives of the Company and Conopco, the Company provided Conopco with
the Company's summary forecasts of the Company's future financial performance
during fiscal year 2000. In its provisional budget for fiscal year 2000, the
Company forecast that during 2000 it would have sales of $265 million and income
before taxes of $15 million.
The financial forecasts were prepared by the Company and were not prepared
with a view to public disclosure or compliance with the published guidelines of
the Commission or the guidelines established by the American Institute of
Certified Public Accountants regarding projections or forecasts. Such forecasts
are, in general, prepared solely for internal use and capital budgeting and
other management decisions and are subjective in many respects and thus
susceptible to various interpretations and periodic revision based on actual
experience and business developments. Such forecasts are based on a number of
assumptions that are beyond the control of the Company or its financial
advisors, including economic forecasting (both general and specific to the
Company's business), which is inherently uncertain and subjective. Accordingly,
there can be no assurance that the assumptions made in preparing such forecasts
will prove accurate. It is expected that there will be differences between
actual and forecasted results, and actual results may be materially greater or
less than those contained in the forecasts. None of Unilever, Conopco, the
Purchaser or the Company or their respective financial advisors assumes any
responsibility for the validity, reasonableness, completeness or accuracy of any
of such forecasts. The inclusion of the foregoing information should not be
regarded as an indication that the Purchaser, Conopco, Unilever or the Company
or any other person who provided or received such information considers it an
accurate prediction of future events and the forecasts should not be relied upon
as such. None of the Purchaser, Conopco, Unilever or the Company intends to
update, revise or correct such information if it becomes inaccurate (even in the
short term).
AVAILABLE INFORMATION. The Company is subject to the informational
requirements of the Exchange Act and, in accordance therewith, is required to
file reports and other information with the Commission relating to its business,
financial condition and other matters. Certain information as of particular
dates concerning the Company's directors and officers, their remuneration, stock
options and other matters, the principal holders of the Company's securities and
any material interest of such persons in transactions with the Company is
required to be disclosed in the Company's proxy statements distributed to the
Company's shareholders and filed with the Commission. Such information should be
available for inspection at the
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public reference facilities of the Commission at 450 Fifth Street, N.W.,
Washington, DC 20549, and at the regional offices of the Commission located at
Seven World Trade Center, 13th Floor, New York, NY 10048 and Northwestern Atrium
Center, 500 West Madison Street (Suite 1400), Chicago, IL 60661. Copies of such
information should be obtainable, by mail, upon payment of the Commission's
customary charges, by writing to the Commission's principal office at 450 Fifth
Street, N.W., Washington, DC 20549. The Commission also maintains a Web site on
the Internet at (http://www.sec.gov) that contains reports, proxy and
information statements and other information regarding registrants that file
electronically with the Commission.
Except as otherwise stated in this Offer to Purchase, the information
concerning the Company contained herein has been taken from or based upon
publicly available documents on file with the Commission and other publicly
available information. Although the Purchaser, Conopco and Unilever do not have
any knowledge that any such information is untrue, none of the Purchaser,
Conopco or Unilever takes any responsibility for the accuracy or completeness of
such information or for any failure by the Company to disclose events that may
have occurred and may affect the significance or accuracy of any such
information.
9. CERTAIN INFORMATION CONCERNING THE PURCHASER, CONOPCO AND UNILEVER
The Purchaser, a Vermont corporation, which is a wholly owned subsidiary of
Conopco, was organized to acquire the Company and has not conducted any
unrelated activities since its organization. The principal office of the
Purchaser is located at the principal office of Conopco. All outstanding shares
of capital stock of the Purchaser are owned by Conopco.
Conopco, a New York corporation, is an indirect subsidiary of Unilever with
its principal office located at 390 Park Avenue, New York, NY 10022. Conopco is
a direct subsidiary of Unilever United States, Inc., a Delaware corporation
("UNUS"). Conopco's operating divisions consist of most of the consumer products
operations of the Unilever Group (as defined below) conducted in the United
States. UNUS is directly owned 75% by Unilever and 25% by Unilever PLC, with its
principal office located at 390 Park Avenue, New York, NY 10022. UNUS is a
holding company for all of Unilever's principal operations in the United States.
The Unilever group, consisting of Unilever, Unilever PLC and their
subsidiaries (collectively, the "Unilever Group"), is one of the world's largest
manufacturers of branded and packaged consumer goods. Based on its 1999 turnover
in excess of $40 billion, the Unilever Group is one of the largest consumer
products companies in the world. At present, the greater part of the Unilever
Group's business is in branded consumer goods, primarily foods, detergents and
personal products. As of December 31, 1999, the Unilever Group employed
approximately 255,000 people worldwide. Unilever's principal office is located
at Weena 455, 3013 AL, Rotterdam, The Netherlands.
AVAILABLE INFORMATION. Unilever furnishes Forms 20-F, Forms 6-K and other
documents to the Commission. Such reports and other information should be
available for inspection at the Commission and copies thereof should be
obtainable from the Commission in the same manner as is set forth with respect
to the Company in Section 8, with the exception that such documents are not
available on the Commission's Web site. Such material should also be available
for inspection at the library of the New York Stock Exchange, 20 Broad Street,
New York, NY 10005.
10. SOURCE AND AMOUNT OF FUNDS
The total amount of funds required by the Purchaser to purchase all
outstanding Shares pursuant to the Offer and to pay fees and expenses related to
the Offer and the Merger is estimated to be approximately $350 million. The
Purchaser plans to obtain all funds needed for the Offer and the Merger through
intercompany loans of available cash from, and/or the proceeds of the sale of
commercial paper by, Unilever, Unilever PLC and their subsidiaries. The Offer
and the Merger are not subject to any financing condition.
15
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11. CONTACTS AND TRANSACTIONS WITH THE COMPANY; BACKGROUND OF THE OFFER
For purposes of this Section 11, "Unilever US" means Unilever United States,
Inc. and Conopco. During the summer of 1999, representatives of Unilever US
expressed to representatives of the Company Unilever's potential interest in
pursuing discussions regarding various forms of business arrangements, including
a distribution agreement and/or joint venture, an international license
agreement and a business combination. On August 4, 1999, a representative of
Gordian Group, L.P., the Company's financial advisor, spoke on the telephone
with the financial advisor of Unilever US regarding Unilever's general interest
in a business combination with the Company.
On September 8, Unilever US wrote to the Company Board expressing a general
interest in a possible business combination between Unilever and the Company but
not specifying a proposed value for the Company. On September 27, 1999, Unilever
US and the Company entered into the Confidentiality Agreement (as defined
below).
During the period from the latter part of September through October,
representatives of Unilever US met with representatives of the Company to
discuss possible transactions. These discussions focused on the September 8
letter from Unilever US and transactions in which Unilever might be interested,
including a business combination between the Company and Unilever US and
possible distribution joint ventures between the Company and Unilever US or
among the Company, Unilever US and Dreyer's Grand Ice Cream, Inc.
These discussions between Unilever US and the Company lasted until
October 28, when Unilever US indicated that Unilever was not interested in
pursuing further discussions concerning a distribution joint venture but
remained interested in exploring a business combination with the Company. During
late October and early November, representatives of Unilever US engaged in due
diligence with respect to the Company.
On November 4, the Company's senior management and other representatives met
with representatives of Unilever US to discuss a possible cash acquisition by
Unilever US of the Company and certain other related matters. Discussions were
held between representatives of Unilever US and the Company throughout the
remainder of November concerning the terms of Unilever's cash acquisition
proposal, consisting of a cash tender offer followed by a cash merger, including
discussions of a draft merger agreement reflecting this proposed structure. At a
meeting on November 30, representatives of Unilever US suggested a cash price
for the acquisition of $33.00 to $35.00 per share.
Discussions between representatives of Unilever US and the Company
concerning Unilever's continued interest in acquiring the Company continued
intermittently during the period from early December through late January.
On January 25 and January 26, Unilever US wrote to the Company reiterating
Unilever's interest in a business combination and outlining Unilever's proposed
terms. Representatives of Unilever US also communicated to representatives of
the Company the fact that Unilever was now willing to pay $36.00 in cash per
Share. Following a meeting of the Company Board on January 27, representatives
of Unilever US were informed by representatives of the Company that Unilever's
proposal was not approved by the Company Board.
On January 28, Unilever US sent a letter to the Company Board indicating
that Unilever had increased its cash offer to acquire the Company to $40.00 per
Share but was also interested in exploring alternatives to a full acquisition of
the Company. From time to time beginning the following week and lasting until
early March, representatives of Unilever US met with representatives of the
Company to discuss alternative transactions between Unilever and the Company, in
which Unilever US (a) would acquire up to a 20% equity stake in the Company
either directly from the Company or from its shareholders at $32 per share,
(b) would enter into an exclusive license of the Ben & Jerry's trademarks and
related intellectual property rights for the manufacture and sale of super
premium ice cream and related frozen dessert products outside the United States
and (c) would enter into a joint venture to
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address the Company's and Unilever US' distribution requirements in the
out-of-home market for frozen dessert products in the United States. During the
course of these discussions, the parties reviewed draft agreements with respect
to each of these proposed transactions.
Following a meeting of the Company Board on March 9, representatives of
Unilever US were informed that the Company Board had determined not to proceed
further with these alternative transaction structures that representatives of
Unilever US and the Company had been discussing.
Following the March 9 meeting of the Company Board and continuing until
early April, representatives of Unilever US engaged in discussions with
representatives of the Company and Meadowbrook Lane, Inc. ("Meadowbrook") with
respect to a transaction in which the Company would be acquired by an investor
group including Meadowbrook, Unilever US and Mr. Cohen. Although Chartwell
Investments II LLC was involved in certain of these discussions, it ultimately
did not participate as part of the investor group. Unilever US and Meadowbrook
proposed that the Company be acquired by an investor group with a $25-50 million
equity investment by Meadowbrook, at least $25-40 million in value of shares of
Company Common Stock being "rolled over" by existing shareholders of the
Company, including Messrs. Cohen and Greenfield (who would agree to meet this
"roll over" commitment to the extent that other shareholders of the Company
elected not to do so) and with an investment by Unilever equal to approximately
28% of the common equity of the Company. In addition, Unilever would make
secured loans to the Company and purchase an amount of convertible preferred
shares of the Company sufficient to finance the transaction.
These discussions resulted in an acquisition proposal being submitted by an
investor group including Unilever US and Meadowbrook (but not including
Chartwell) at $38.00 per Share in which Mr. Cohen (but not Mr. Greenfield) would
agree to "roll over" at least $25 million in value of his shares (to the extent
that other shareholders of the Company elected not to do so). Following approval
in principle of this transaction by the Company Board on March 23,
representatives of Unilever US continued to meet on a number of occasions with
representatives of Meadowbrook and Mr. Cohen and, in some cases with
representatives of the Company as well, to attempt to reach agreement on all
terms of this transaction structure. Negotiations concerning this proposed
transaction continued through the evening of April 2.
On April 3, Unilever US's legal advisor received a telephone call from one
of the Company's legal advisors indicating that, because of a development, the
proposed transaction among Unilever US, Meadowbrook and Mr. Cohen would likely
no longer receive majority support by the Company Board at the proposed price of
$38.00 per Share.
Following a meeting of the Company Board on April 5, the Company Board
requested best and final offers from, among others, Unilever US and the investor
group consisting of Unilever US, Meadowbrook and Mr. Cohen. Representatives of
Unilever US and Meadowbrook and Mr. Cohen were advised that the forms of
agreements proposed would need to be submitted by April 10.
On April 6 and again on April 8, representatives of the Company met with
representatives of Unilever US to discuss the forms of agreements for Unilever's
acquisition proposal. Also on April 6, Unilever US, Meadowbrook and Mr. Cohen
advised the Company that they would not be continuing to work together to make a
joint acquisition proposal. On April 10, representatives of Unilever US
submitted the proposed forms of agreements to representatives of the Company.
On the morning of April 11, representatives of Unilever US made a
presentation to the Company Board concerning Unilever's proposal. At this
meeting, representatives of Unilever US informed the Company Board that Unilever
was now offering $43.60 in cash per Share. In addition, Unilever offered various
financial and other commitments, including commitments for the benefit of the
Company's employees and the Foundation (as defined below). On the afternoon and
evening of April 11, discussions between representatives of Unilever US and
representatives of the Company ensued during which representatives of the
Company and Unilever US resolved the remaining open issues concerning the
proposed transaction agreements, following which representatives of the parties
executed the Transaction Agreements. On the morning of April 12, Unilever and
the Company issued a joint press release
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announcing the transaction, which is filed as an exhibit to the Tender Offer
Statement on Schedule TO filed by the Purchaser, Conopco and Unilever on
April 12, 2000.
Except as described in this Offer to Purchase (including Schedule I hereto),
none of the Purchaser, Conopco or Unilever or, to the best knowledge of
Unilever, Conopco and the Purchaser, any of the persons listed in Schedule I
hereto, or any associate or majority-owned subsidiary of the Purchaser, Conopco
or Unilever or any of the persons so listed, beneficially owns any equity
security of the Company, and none of the Purchaser, Conopco or Unilever or, to
the best knowledge of Unilever, Conopco and the Purchaser, any of the other
persons referred to above, has effected any transaction in any equity security
of the Company during the past 60 days. The Purchaser, Conopco and Unilever
disclaim beneficial ownership of any Shares owned by any pension plan of
Unilever or any affiliate of Unilever.
Except as described in this Offer to Purchase, as of the date hereof
(a) there have not been any contacts, transactions or negotiations between the
Purchaser, Conopco or Unilever, any of their respective subsidiaries or, to the
best knowledge of Unilever, Conopco or the Purchaser, any of the persons listed
in Schedule I hereto, on the one hand, and the Company or any of its directors,
officers or affiliates, on the other hand, that are required to be disclosed
pursuant to the rules and regulations of the Commission and (b) none of the
Purchaser, Conopco or Unilever or, to the best knowledge of Unilever, Conopco
and the Purchaser, any of the persons listed in Schedule I hereto has any
contract, arrangement, understanding or relationship with any person with
respect to any securities of the Company. During the pendancy of the Offer,
Conopco and the Purchaser intend to have ongoing contacts and negotiations with
the Company and its directors, officers and shareholders.
12. PURPOSE OF THE OFFER; THE MERGER AGREEMENT; OTHER AGREEMENTS
PURPOSE
The purpose of the Offer is to enable Conopco to acquire control of the
Company and to acquire the outstanding Shares. The Offer, as the first step in
the acquisition of the Company, is intended to facilitate the acquisition of all
the outstanding Shares. The purpose of the Merger is to cause the Company to
become a wholly owned subsidiary of Conopco.
THE MERGER AGREEMENT
The Merger Agreement provides that, following the satisfaction or waiver of
the conditions described below under "Conditions to the Merger", the Purchaser
will be merged with and into the Company, and each issued Class A Share (other
than Shares owned by Conopco, the Purchaser or the Company or a wholly owned
subsidiary of Conopco, the Purchaser or the Company or by shareholders, if any,
who are entitled to and who properly exercise dissenters' rights under Vermont
law) will be converted into the right to receive $43.60, in cash, without
interest thereon.
VOTE REQUIRED TO APPROVE MERGER. The Vermont Business Corporation Act (the
"VBCA") requires, among other things, that the adoption of any plan of merger by
the Company Board must be approved by a majority of all the votes entitled to be
cast on the plan (including the votes attributable to any Shares owned by the
Purchaser). The Company Board has approved the Offer, the Merger and the Merger
Agreement; consequently, the only additional action of the Company that may be
necessary to effect the Merger is approval of the Merger Agreement by the
Company's shareholders.
The Company Charter provides that the Preferred Stock is entitled to vote
upon a business combination, including the Merger, as a separate class. However,
immediately following the consummation of the Offer, pursuant to the Merger
Agreement the Company Board shall authorize the Company (i) to redeem all the
outstanding shares of Preferred Stock, at a price per share that would have been
received by a holder of Preferred Stock, if paid as consideration in the Merger,
prior to the record date for the meeting of the shareholders of the Company
seeking shareholder approval of the Merger and (ii) to deliver to all holders of
Company Preferred Stock the notice of redemption required by the Company
Charter. The
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Company shall redeem all outstanding shares of Company Preferred Stock prior to
seeking shareholder approval of the Merger.
CONVERSION OF THE CLASS B SHARES. Upon receipt of a Qualified Notice (as
defined below) from Conopco, and in accordance with the Company Charter, the
Company shall mail a notice to all the holders of Class B Shares, which notice
shall specify that all Class B Shares will be automatically converted into
shares of Class A Shares effective ten days from the date of such mailing. The
Company shall not take any action to rescind, revoke, retrieve or otherwise
impair the effectiveness of such notice of conversion or prevent the automatic
conversion of the outstanding Class B Shares. The Merger Agreement defines a
"Qualified Notice" as a written notice that (i) is delivered by Conopco to the
Company not earlier than the business day immediately prior to the
then-scheduled expiration date of the Offer and not later than 2 p.m. Eastern
Time on the then-scheduled expiration date of the Offer and (ii) states that, as
of the time of such notice, Conopco has no reason to believe that any condition
set forth in Section 14 will not be satisfied at the then-scheduled expiration
date of the Offer (assuming compliance by the Company with this paragraph).
CONDITIONS TO THE MERGER. The Merger Agreement provides that the respective
obligations of each party to effect the Merger are subject to the satisfaction
or waiver of certain conditions, including the following: (a) the Company shall
have obtained the approval of the Merger Agreement by a majority of all the
votes attributable to the outstanding shares of Company Common Stock; (b) the
waiting period (and any extension thereof) applicable to the Merger under the
HSR Act shall have been terminated or shall have expired, and (c) no temporary
restraining order, preliminary or permanent injunction or other order issued by
any court of competent jurisdiction or other legal restraint or prohibition
preventing the consummation of the Merger shall be in effect; PROVIDED, HOWEVER,
that prior to asserting the condition set forth in this clause (c), each of the
Company, Conopco and the Purchaser shall have used its best efforts to prevent
the entry of any such injunction or other order and to appeal as promptly as
possible any such injunction or other order that may be entered.
TERMINATION OF THE MERGER AGREEMENT. The Merger Agreement may be terminated
at any time prior to the effective time of the Merger, whether before or after
approval of the Merger Agreement by the shareholders of the Company: (a) by
mutual written consent of Conopco, the Purchaser and the Company; (b) by either
Conopco or the Company: (i) if the Merger is not consummated on or before
September 30, 2000, unless the failure to consummate the Merger is the result of
a material breach of the Merger Agreement or any other agreements entered into
in connection therewith (collectively, the "Transaction Agreements") by the
party seeking to terminate the Merger Agreement; PROVIDED, HOWEVER, that
(A) the passage of such period shall be tolled for any part thereof during which
any party shall be subject to a nonfinal order, decree, ruling or action
restraining, enjoining or otherwise prohibiting the consummation of the Merger,
(B) the Merger Agreement may not be terminated pursuant to this clause (i) after
the Purchaser accepts Shares for payment pursuant to the Offer and (C) such
September 30, 2000 date may be extended to a date not later than November 30,
2000, by Conopco or the Company prior to termination of the Merger Agreement, by
notice in writing to the other, if on September 30, 2000, the Offer has not been
consummated because the waiting period (and any extension thereof) under the HSR
Act applicable to the purchase of Shares pursuant to the Offer has not expired
or been terminated due to the failure of the condition in clause (ii) of the
first paragraph of Section 14 or the condition in paragraph (a) of Section 14;
(ii) if any governmental entity issues an order, decree or ruling or takes any
other action permanently enjoining, restraining or otherwise prohibiting the
Merger and such order, decree, ruling or other action shall have become final
and nonappealable, (iii) if as the result of the failure of any of the
conditions set forth in Section 14, the Offer shall have terminated or expired
in accordance with its terms without the Purchaser having purchased any Shares
pursuant to the Offer, or (iv) if, upon a vote at a duly held meeting to obtain
the approval of the terms of the Merger Agreement by the shareholders of the
Company, such approval is not obtained; PROVIDED, HOWEVER, that Conopco may not
terminate this Agreement under this clause (iv) if the Class A Shares owned by
the Purchaser, Conopco or any affiliate of Conopco shall not
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have been voted in favor of obtaining such approval; (c) by Conopco, if the
Company breaches or fails to perform in any material respect any of its
representations, warranties or covenants contained in any Transaction Agreement,
which breach or failure to perform (i) would give rise to the failure of a
condition set forth in Section 14, and (ii) has not been cured within 30 days
after the giving of written notice to the Company of such breach (provided that
Conopco is not then in wilful and material breach of any representation,
warranty or covenant contained in any Transaction Agreement); (d) by Conopco:
(i) if the Company Board or any committee thereof withdraws or modifies, or
publicly proposes to withdraw or modify, in a manner adverse to Conopco, its
approval or recommendation of the Merger Agreement, the Offer or the Merger,
fails to recommend to the Company's shareholders that they accept the Offer and
approve the Merger Agreement or approves or recommends, or publicly proposes to
approve or recommend, any Company Takeover Proposal (as defined below);
PROVIDED, HOWEVER, that any public statement by the Company that (A) it has
received a Company Takeover Proposal, (B) it has given Conopco the notice
required by Section 5.02(b) of the Merger Agreement in connection with the
withdrawal of its recommendation or (C) otherwise only describes the technical
operation of Sections 5.02, 6.07 and 7.01(d)(ii) of the Merger Agreement and the
provisions contained in this paragraph shall not be deemed to be a public
proposal to withdraw or modify the Company Board's recommendation for the
purposes of this clause (i) or (ii) if the Company or any of its officers,
directors, employees, representatives or agents takes any of the actions
described below under "Takeover Proposals"; (e) by the Company, if the Company
Board withdraws its recommendation of the Offer in accordance with the second
paragraph under "Takeover Proposals"; and (f) by the Company, if Conopco
breaches or fails to perform in any material respect any of its representations,
warranties or covenants contained in any Transaction Agreement, which breach or
failure to perform cannot be or has not been cured within 30 days after the
giving of written notice to Conopco of such breach (provided that the Company is
not then in wilful and material breach of any representation, warranty or
covenant contained in any Transaction Agreement).
TAKEOVER PROPOSALS. The Merger Agreement provides that the Company will
not, nor will it permit any of its subsidiaries to, nor will it authorize any
officer, director or employee of, or any investment banker, attorney or other
advisor or representative of, the Company or any of its subsidiaries to,
(a) directly or indirectly solicit, initiate or encourage the submission of, any
Company Takeover Proposal, (b) enter into any agreement with respect to any
Company Takeover Proposal or (c) directly or indirectly participate in any
discussions or negotiations regarding, or furnish to any person any information
with respect to, or take any other action to facilitate any inquiries or the
making of any proposal that constitutes, or may reasonably be expected to lead
to, any Company Takeover Proposal; PROVIDED, HOWEVER, that prior to the
acceptance for payment of Shares pursuant to the Offer, the Company may, to the
extent required by the fiduciary obligations of the Company Board, as determined
in good faith by a majority of the disinterested members thereof after
consultation with outside counsel, in response to a Company Takeover Proposal
that was made by a person whom the Company Board determines, in good faith after
consultation with outside counsel and an independent financial advisor, to be
reasonably capable of making a Superior Company Proposal (as defined below),
that was not solicited by the Company and that did not otherwise result from a
breach or deemed breach of the limitations contained in this paragraph,
(x) furnish information with respect to the Company to the person or group
making such Company Takeover Proposal and its representatives pursuant to a
customary confidentiality agreement not less restrictive of the other party than
the Confidentiality Agreement (as defined below) and (y) participate in
discussions and negotiations with such person or group and its representatives
to the extent required regarding such Company Takeover Proposal. Without
limiting the foregoing, it is agreed that any violation of the restrictions set
forth in the preceding sentence by any representative or affiliate of the
Company or any subsidiary of the Company, whether or not such person is
purporting to act on behalf of the Company or any subsidiary of the Company or
otherwise, shall be deemed to be a breach of the provisions set forth in this
paragraph by the Company. Subject to the foregoing, the Company shall, and shall
cause its representatives to, cease immediately all discussions and negotiations
regarding any proposal that constitutes, or may reasonably be expected to lead
to, a Company Takeover Proposal.
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The Merger Agreement further provides that, except as described below,
neither the Company Board nor any committee thereof may (a) withdraw or modify,
or propose to withdraw or modify, in a manner adverse to Conopco or the
Purchaser, the approval or recommendation by the Company Board or any such
committee of the Merger Agreement, the Offer or the Merger, (b) approve any
letter of intent, agreement in principle, acquisition agreement or similar
agreement relating to any Company Takeover Proposal or (c) approve or recommend,
or propose to approve or recommend, any Company Takeover Proposal.
Notwithstanding the foregoing, if, prior to the acceptance for payment of Shares
pursuant to the Offer, the Company Board receives a Superior Company Proposal
and a majority of the disinterested directors of the Company determine in good
faith, after consultation with outside counsel, that it is necessary to do so in
order to comply with their fiduciary obligations, the Company Board may withdraw
its approval or recommendation of the Offer, the Merger and the Merger Agreement
and, in connection therewith, approve or recommend such Superior Company
Proposal, PROVIDED, that the Company Board shall give Conopco five business
days' notice prior to withdrawing its recommendation.
In addition to the obligations of the Company described in the preceding two
paragraphs, the Merger Agreement provides that the Company promptly will advise
Conopco orally and in writing of any Company Takeover Proposal or any inquiry
with respect to or that could lead to any Company Takeover Proposal, the
identity of the person or group making any such Company Takeover Proposal or
inquiry and the material terms of any such Company Takeover Proposal or inquiry.
The Company shall (a) keep Conopco fully informed of the status, including any
change to the details, of any such Company Takeover Proposal or inquiry and
(b) provide to Conopco as soon as practicable after receipt or delivery thereof
with copies of all correspondence and other written material sent or provided to
the Company from any third party in connection with any Company Takeover
Proposal or sent or provided by the Company to any third party in connection
with any Company Takeover Proposal.
The provisions described in the three preceding paragraphs do not prohibit
the Company from taking and disclosing to its shareholders a position
contemplated by Rule 14e-2(a) promulgated under the Exchange Act or from making
any required disclosure to the Company's shareholders if, in the good faith
judgment of the Company Board, after consultation with outside counsel, failure
so to disclose would be inconsistent with its obligations under applicable law.
"COMPANY TAKEOVER PROPOSAL" means (a) any proposal or offer for a merger,
consolidation, dissolution, recapitalization or other business combination
involving the Company or any subsidiary of the Company, (b) any proposal for the
issuance by the Company of a material amount of its equity securities as
consideration for the assets or securities of another person or (c) any proposal
or offer to acquire in any manner, directly or indirectly, a material equity
interest in any voting securities of, or a substantial portion of the assets of,
the Company or any subsidiary of the Company, in each case other than the Offer,
the Merger and the other transactions contemplated by the Merger Agreement (the
"Transactions").
"SUPERIOR COMPANY PROPOSAL" means any proposal made by a third party to
acquire all or substantially all the equity securities or assets of the Company,
pursuant to a tender or exchange offer, a merger, a consolidation, a liquidation
or dissolution, a recapitalization or a sale of all or substantially all its
assets, (a) on terms which a majority of the disinterested directors of the
Company determines in its good faith judgment (i) to represent superior value
for the holders of the Shares than the Transactions (based on the written
opinion, with only customary qualifications, of Gordian Group, L.P. or another
independent financial advisor as to such proposal's financial superiority),
taking into account all the terms and conditions of such proposal and the Merger
Agreement (including any proposal by Conopco to amend the terms of the
Transactions), and (ii) to be no less favorable to the Company's stakeholders
(not including its shareholders), taken as a whole, than the Transactions,
taking into account all the terms and conditions of such proposal and the Merger
Agreement (including any proposal by Conopco to amend the terms of the
Transactions) and (b) that is reasonably capable of being completed, taking into
account all financial, regulatory, legal and other aspects of such proposal.
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FEES AND EXPENSES; TERMINATION FEE. Except as provided below, all fees and
expenses incurred in connection with the Merger Agreement, the Offer, the Merger
and the other Transactions will be paid by the party incurring such fees or
expenses, whether or not the Offer or the Merger is consummated.
The Company will pay to Conopco a fee of $11.4 million (the "Termination
Fee") if: (a) the Merger Agreement is terminated pursuant to the provisions
described above in clause (b)(iii) under "Termination of the Merger Agreement"
as a result of the failure of any condition set forth in paragraph (d) of
Section 14 ("Certain Conditions of the Offer"); (b) Conopco terminates the
Merger Agreement pursuant to the provisions described above in clause (d) under
"Termination of the Merger Agreement" or the Company terminates the Merger
Agreement pursuant to the provisions described above in clause (e) under
"Termination of the Merger Agreement"; (c) after the date of the Merger
Agreement any person makes or consummates a Company Takeover Proposal or amends
a Company Takeover Proposal made prior to the date of the Merger Agreement, and
(i) the Offer remains open for at least five business days following the first
public announcement of the making, consummation or amendment, as the case may
be, of such Company Takeover Proposal, (ii) the Minimum Condition is not
satisfied at such expiration date and (iii) the Merger Agreement is terminated
pursuant to the provisions described above in clause (b)(iii) under "Termination
of the Merger Agreement"; or (d) the Merger Agreement is terminated (other than
termination pursuant to the provisions described above in clause (b)(iv) or
clause (f) under "Termination of the Merger Agreement") and within 12 months of
such termination the Company enters into a definitive agreement to consummate,
or consummates, the transactions contemplated by a Company Takeover Proposal.
Any fee due under the provisions described above shall be paid by wire transfer
of same-day funds on the date of termination of the Merger Agreement (except
that in the case of termination pursuant to clause (d) above such payment shall
be made on the date of execution of such definitive agreement or, if earlier,
consummation of such transactions). See also "Option Agreement".
CONDUCT OF BUSINESS. The Merger Agreement provides that except for matters
set forth in the letter from the Company to Conopco and the Purchaser dated the
date of the Merger Agreement (the "Company Disclosure Letter") or otherwise
expressly permitted by the Transaction Agreements, from the date of the Merger
Agreement to the earlier of Conopco having designated a majority of the Company
Board and the effective time of the Merger, the Company shall, and shall cause
each subsidiary of the Company to, conduct the business of the Company and the
subsidiaries of the Company, taken as a whole, in the usual, regular and
ordinary course in substantially the same manner as previously conducted and use
all reasonable efforts to preserve intact its current business organization,
keep available the services of its current officers and employees and keep its
relationships with customers, suppliers, licensors, licensees, distributors and
others having business dealings with them to the end that its goodwill and
ongoing business shall be unimpaired at the effective time of the Merger. In
addition, and without limiting the generality of the foregoing, except for
matters set forth in the Company Disclosure Letter or otherwise expressly
permitted by the Transaction Agreements, from the date of the Merger Agreement
to the earlier of Conopco having designated a majority of the Company Board and
the effective time of the Merger, the Company shall not, and shall not permit
any subsidiary of the Company to, do any of the following without the prior
written consent of Conopco: (a) (i) declare, set aside or pay any dividends on,
or make any other distributions in respect of, any of its capital stock, other
than dividends and distributions by a direct or indirect wholly owned subsidiary
of the Company to its parent, (ii) split, combine or reclassify any of its
capital stock or issue or authorize the issuance of any other securities in
respect of, in lieu of or in substitution for shares of its capital stock (other
than upon the conversion of Class B Shares into Class A Shares), or
(iii) purchase, redeem or otherwise acquire any shares of capital stock of the
Company or any subsidiary of the Company or any other securities thereof or any
rights, warrants or options to acquire any such shares or other securities;
(b) issue, deliver, sell or grant (i) any shares of its capital stock, (ii) any
voting debt of the Company or other voting securities, (iii) any securities
convertible into or exchangeable for, or any options, warrants or rights to
acquire, any such shares, voting debt or the Company, voting securities or
convertible or exchangeable securities or (iv) any "phantom" stock, "phantom"
stock rights, stock appreciation rights or stock-based performance units, other
than the issuance of Class A Shares (and
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associated Class A Rights) (1) upon the exercise of Company Stock Options (as
defined below) outstanding on the date of the Merger Agreement and in accordance
with their present terms, (2) pursuant to the Stock Option Agreement between
Conopco and the Company dated as of the date of the Merger Agreement (see
"Option Agreement"), (3) upon the conversion of Class B Shares into Class A
Shares in accordance with the Company Charter, (4) upon the exercise of warrants
held by Gordian Group L.P. or (5)(x) pursuant to the Company's employee stock
purchase plan and (y) the exercise of options to purchase shares in the American
Company for Ice Cream Manufacturing, E.I. Ltd.; (c) amend its articles of
incorporation, by-laws or other comparable charter or organizational documents;
(d) acquire or agree to acquire (i) by merging or consolidating with, or by
purchasing a substantial equity interest in or portion of the assets of, or by
any other manner, any business or any corporation, partnership, joint venture,
association or other business organization or division thereof or (ii) any
assets that are material, individually or in the aggregate, to the Company and
the subsidiaries of the Company, taken as a whole, except purchases of inventory
in the ordinary course of business consistent with past practice or in the
fulfillment of contracts in existence on the date hereof and copies of which
have been made available to Conopco; (e)(i) grant to any employee, officer or
director of the Company or any subsidiary of the Company any increase in
compensation, except in the ordinary course of business consistent with prior
practice or to the extent required under employment or consulting agreements in
effect as of the date of the most recent audited financial statements included
in the Company's documents filed with the Commission since December 28, 1997 and
publicly available prior to the date of the Merger Agreement (the "Filed Company
SEC Documents"), (ii) grant to any employee, officer or director of the Company
or any subsidiary of the Company any increase in severance or termination pay,
except to the extent required under any employment, consulting, severance or
termination agreement in effect as of the date of the most recent audited
financial statements included in the Filed Company SEC Documents,
(iii) establish, adopt, enter into or amend any Company benefit agreement,
(iv) establish, adopt, enter into or amend in any material respect any
collective bargaining agreement or Company benefit plan or (v) take any action
to accelerate any rights or benefits, or make any material determinations not in
the ordinary course of business consistent with prior practice, under any
collective bargaining agreement, Company benefit plan or Company benefit
agreement; (f) make any change in accounting methods, principles or practices
materially affecting the reported consolidated assets, liabilities or results of
operations of the Company, except insofar as may have been required by a change
in generally accepted accounting principles; (g) sell, lease (as lessor),
license or otherwise dispose of or subject to any lien any properties or assets,
except for sales of inventory and excess or obsolete assets in the ordinary
course of business consistent with past practice; (h) (i) incur any indebtedness
for borrowed money or guarantee any such indebtedness of another person, issue
or sell any debt securities or warrants or other rights to acquire any debt
securities of the Company or any subsidiary of the Company, guarantee any debt
securities of another person, enter into any "keep well" or other agreement to
maintain any financial statement condition of another person or enter into any
arrangement having the economic effect of any of the foregoing, except for
short-term borrowings incurred in the ordinary course of business consistent
with past practice, or (ii) make any loans, advances or capital contributions
to, or investments in, any other person, other than to or in the Company or any
direct or indirect wholly owned subsidiary of the Company; (i) make or agree to
make any new capital expenditure or expenditures that, individually, is in
excess of $500,000 or, in the aggregate, are in excess of $1,000,000; PROVIDED,
HOWEVER, that with respect to proposed capital expenditures, the written consent
of Conopco shall not unreasonably be withheld; (j) make or change any material
tax election or settle or compromise any material tax liability or refund;
(k) (i) pay, discharge or satisfy any claims, liabilities or obligations
(absolute, accrued, asserted or unasserted, contingent or otherwise) in excess
of $100,000, other than the payment, discharge or satisfaction, in the ordinary
course of business consistent with past practice or in accordance with their
terms, of liabilities reflected or reserved against in, or contemplated by, the
most recent consolidated financial statements (or the notes thereto) of the
Company included in the Filed Company SEC Documents or incurred in the ordinary
course of business consistent with past practice, (ii) cancel any material
indebtedness (individually or in the aggregate) or waive any claims or rights of
substantial value or (iii) waive the benefits of, or agree to modify in any
manner, any
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confidentiality, standstill or similar agreement to which the Company or any
subsidiary of the Company is a party; or (l) authorize any of, or commit or
agree to take any of, the foregoing actions.
BOARD OF DIRECTORS. The Merger Agreement provides that promptly upon the
acceptance for payment of, and payment by the Purchaser for, any Shares pursuant
to the Offer, the Purchaser shall be entitled to designate a majority of the
directors, which designees of the Purchaser shall remain on the Company Board
until the effective time of the Merger, on the Company Board, subject to
compliance with Section 14(f) of the Exchange Act and the VBCA; PROVIDED,
HOWEVER, that in the event that the Purchaser's designees are appointed or
elected to the Company Board, until the effective time of the Merger the Company
Board shall have at least three directors who are Directors on the date of the
Merger Agreement and who are not officers of the Company (the "Independent
Directors"); PROVIDED, FURTHER, that, in such event, if the number of
Independent Directors shall be reduced below three for any reason whatsoever,
any remaining Independent Directors (or Independent Director, if there shall be
only one remaining) shall be entitled to designate persons to fill such
vacancies who shall be deemed to be Independent Directors for purposes of the
Merger Agreement or, if no Independent Directors then remain, the other
directors shall designate three persons to fill such vacancies who are not
officers, shareholders or affiliates of the Company, Conopco or the Purchaser,
and such persons shall be deemed to be Independent Directors for purposes of the
Merger Agreement. Subject to applicable law, the Company shall take all action
requested by Conopco necessary to effect any such election, including mailing to
its shareholders the information statement containing the information required
by Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder,
which information statement is attached to the Schedule 14D-9 (provided that the
Purchaser shall have provided to the Company on a timely basis all information
required to be included in such information statement with respect to the
Purchaser's designees). In connection with the foregoing, the Company shall
promptly, at the option of the Purchaser, either increase the size of the
Company Board or obtain the resignation of such number of its current directors
as is necessary to enable the Purchaser's designees to be elected or appointed
to the Company Board as provided above.
STOCK OPTIONS. The Merger Agreement provides that as soon as reasonably
practicable following the date of the Merger Agreement, the Company Board (or,
if appropriate, any committee administering the Company Stock Plans (as defined
below)) shall adopt such resolutions or take such other actions as may be
required to effect the following: (a) adjust the terms of all outstanding
Company Stock Options (as defined below), whether vested or unvested, as
necessary to provide that each Company Stock Option (and any Company SAR (as
defined below) related thereto) outstanding immediately prior to the acceptance
for payment of Class A Shares pursuant to the Offer, including all vested and
unvested Company Stock Options, shall be canceled effective immediately prior to
the acceptance for payment of Class A Shares pursuant to the Offer, with the
holder thereof becoming entitled to receive an amount in cash equal to (i) the
excess, if any, of (A) $43.60 over (B) the exercise price per share of the
Class A Shares subject to such Company Stock Option or Company SAR, multiplied
by (ii) the number of Class A Shares for which such Company Stock Option shall
not theretofore have been exercised; PROVIDED, HOWEVER, that no cash payment
shall be made with respect to any Company SAR that is related to any Company
Stock Option in respect of which such a cash payment is made; PROVIDED, FURTHER,
that all amounts payable pursuant to this clause (a) shall be subject to any
required withholding of taxes or proof of eligibility of exemption therefrom and
to receipt of the written consent of the holder thereof and shall be paid at or
as soon as practicable following the acceptance for payment of Class A Shares
pursuant to the Offer, without interest; and (b) make such other changes to the
Company Stock Plans as the Company and Conopco may agree are appropriate to give
effect to the Offer and the Merger.
The Merger Agreement provides that, after the effective time of the Merger,
the Company shall establish an appropriate long-term incentive plan to properly
incentivise its employees.
"Company Stock Option" means any option to purchase Company Common Stock
granted under any Company Stock Plan. "Company SAR" means any stock appreciation
right or other award linked to the price of the Company Common Stock and granted
under any Company Stock Plan. "Company Stock
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Plans" means the Company's 1995 Equity Incentive Plan, 1999 Equity Incentive
Plan, 1985 Stock Option Plan, 1986 Employee Stock Purchase Plan ("1986 ESPP"),
1992 Non-Employee Directors' Restricted Stock Plan and 1995 Non-Employee
Directors' Plan for Stock in Lieu of Director's Cash Retainer.
BENEFIT PLANS. The Merger Agreement provides that except as set forth above
under "Stock Options" or in the following paragraph, the Company shall maintain
for a period of five years after the effective time of the Merger the Company's
benefit plans (other than equity or equity-based programs), except to the extent
provided above under "Stock Options" in effect on the date of the Merger
Agreement or to provide benefits to each current employee of the Company and its
subsidiaries that are not materially less favorable in the aggregate to such
employees than those in effect on the date of the Merger Agreement (other than
equity or equity-based programs), except to the extent provided above under
"Stock Options".
As soon as practicable following the date of the Merger Agreement, the
Company Board (or, if appropriate, any committee administering the 1986 ESPP)
shall take or cause to be taken such actions as may be necessary to provide that
(i) no options shall be granted and no payroll deductions accepted after the
earlier of June 30, 2000, or the date on which falls the effective time of the
Merger; (ii) if the effective time of the Merger falls on a date prior to
June 30, 2000, the exercise date in respect of the offering (option) period
under the 1986 ESPP that commenced January 1, 2000 shall be accelerated, and all
unexercised rights granted in respect of such offering (option) period shall be
exercised immediately prior to the effective time of the Merger; (iii) all
holding periods with respect to shares under the ESPP shall be waived; and
(iv) the 1986 ESPP shall terminate as of the effective time of the Merger.
Six months following the effective time of the Merger, Conopco shall make
available to the Company the sum of $5 million to be distributed on a per capita
basis to the then full-time employees of the Company below the Office of the
Chief Executive Officer (the "OCEO") as a special bonus or, at the election of
the Company Board, to the Foundation (as defined below).
INDEMNIFICATION AND INSURANCE. In the Merger Agreement, Conopco and the
Purchaser have agreed that all rights to indemnification for acts or omissions
occurring prior to the effective time of the Merger now existing in favor of the
current or former directors or officers of the Company and its subsidiaries as
provided in their respective articles of incorporation or by-laws shall survive
the Merger and shall continue in full force and effect in accordance with their
terms until the expiration of the applicable statute of limitations (PROVIDED,
that in the event any claim or claims are asserted or made prior to the
expiration of all applicable statutes of limitation, all rights to
indemnification in respect of any such claim or claims shall continue until
disposition of any and all such claims), and Conopco shall cause the Company to
honor all such rights. Without limitation of the foregoing, in the event any
such indemnified party is or becomes involved in any capacity in any action,
proceeding or investigation in connection with any matter, including the
transactions contemplated by the Merger Agreement, occurring prior to, and
including, the effective time of the Merger, Conopco shall, or shall cause the
Company to, pay as incurred such indemnified party's reasonable legal and other
expenses (including the cost of any investigation and preparation) incurred in
connection therewith (subject to receipt by the Company of the undertaking from
such indemnified party to repay advances if it is subsequently determined that
such indemnified party is not entitled to indemnification). Conopco shall pay
all expenses, including reasonable attorneys' fees, that may be incurred by any
Indemnified Party in successfully enforcing the indemnity and other obligations
provided for in this paragraph. Conopco will cause to be maintained for a period
of not less than six years from the effective time of the Merger, the Company's
current directors' and officers' insurance and indemnification policy to the
extent that it provides coverage for events occurring prior to the effective
time of the Merger (the "D&O Insurance") for all persons who are directors and
officers of the Company on the date of the Merger Agreement, so long as the
annual premium therefor would not be in excess of 200% of the last annual
premium paid prior to the date of the Merger Agreement (such 200% amount, the
"Maximum Premium"). If the existing D&O Insurance expires, is terminated or
canceled during such six-year period, Conopco will use all reasonable efforts to
cause to be obtained as much D&O Insurance as can be obtained for the remainder
of such period for an annualized premium not in excess of the
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Maximum Premium, on terms and conditions no less advantageous than the existing
D&O Insurance. The Company has represented that the Maximum Premium is $228,000.
BEST EFFORTS; NOTIFICATION. The Merger Agreement provides that: upon the
terms and subject to the conditions set forth in the Merger Agreement, and
subject to the provisions of the Merger Agreement under "Company Takeover
Proposals," each of the Company, Conopco and the Purchaser will use its best
efforts to take, or cause to be taken, all actions, and to do, or cause to be
done, and to assist and cooperate with the other parties in doing, all things
necessary, proper or advisable to consummate and make effective, in the most
expeditious manner practicable, the Offer, the Merger and the other
Transactions, including (a) the obtaining of all necessary actions, waivers,
consents and approvals from governmental entities and the making of all
necessary registrations and filings (including filings with governmental
entities, if any) and the taking of all reasonable steps as may be necessary to
obtain an approval or waiver from, or to avoid an action or proceeding by, any
governmental entity, (b) the obtaining of all necessary consents, approvals or
waivers from third parties, (c) the defending of any lawsuits or other legal
proceedings, whether judicial or administrative, challenging the Merger
Agreement or any other Transaction Agreement or the consummation of the
Transactions, including seeking to have any stay or temporary restraining order
entered by any court or other governmental entity vacated or reversed and
(d) the execution and delivery of any additional instruments necessary to
consummate the Transactions and to fully carry out the purposes of the
Transaction Agreements; PROVIDED, HOWEVER, that neither the Company nor Conopco
shall be required to consent to any action described in paragraph (a) of
Section 14. In connection with and without limiting the foregoing, the Company
and the Company Board shall (i) take all action necessary to ensure that no
state takeover statute or similar statute or regulation becomes applicable to
any Transaction or the Merger Agreement or any other Transaction Agreement and
(ii) if any state takeover statute or similar statute or regulation becomes
applicable to the Merger Agreement or any other Transaction Agreement, take all
action necessary to ensure that the Offer, the Merger and the other Transactions
may be consummated as promptly as practicable on the terms contemplated by the
Transaction Agreements and otherwise to minimize the effect of such statute or
regulation on the Offer, the Merger and the other Transactions. Nothing in the
Merger Agreement shall be deemed to require any party to waive any substantial
rights or agree to any substantial limitation on its operations or to dispose of
any significant asset or collection of assets.
REPRESENTATIONS AND WARRANTIES. The Merger Agreement contains various
customary representations and warranties.
PROCEDURE FOR TERMINATION, AMENDMENT, EXTENSION OR WAIVER. The Merger
Agreement provides that a termination of the Merger Agreement pursuant to the
provisions under "Termination of the Merger Agreement", an amendment of the
Merger Agreement pursuant to the provisions for an amendment thereof or an
extension or waiver pursuant to the provisions thereof, in order to be
effective, require in the case of Conopco, the Purchaser or the Company, action
by its Board of Directors or the duly authorized designee of its Board of
Directors.
INELIGIBLE DIRECTORS. Conopco has acknowledged in the Merger Agreement that
no Ineligible Director is acting as a representative of the Company in
connection with the Transaction Agreements and the Transactions and that any
action or failure to act on the part of any Ineligible Director shall not be
deemed to be an action or failure to act on the part of the Company, except to
the extent that such Ineligible Director's action or failure to act is taken
under the instruction of, or with the cooperation or the concurrence of, the
Company Board. The Merger Agreement defines an "Ineligible Director" as any
member on the Company Board on the date of the Merger Agreement who (i) fails to
tender his or her Shares pursuant to the Offer, (ii) makes any public statement
disparaging Unilever, Unilever PLC, Conopco, the Company, any Transaction
Agreement or any Transaction, (iii) takes any action that, but for the preceding
sentence would constitute a breach of the Merger Agreement by the Company or
(iv) takes any other action which is intended to cause any Transaction to fail
to be completed. Ineligible Directors may not serve on the Surviving Corporation
Board (as defined below).
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The foregoing summary of the Merger Agreement is qualified in its entirety
by reference to the Merger Agreement, a copy of which is filled as
Exhibit (d)(1) to the Schedule TO. The Merger Agreement should be read in its
entirety for a more complete description of the matters summarized above.
RIGHTS AGREEMENTS. The Rights Agreements have been amended as of April 11,
2000, to render the Rights inapplicable to the Offer, the Merger and the other
Transactions.
CONFIDENTIALITY AGREEMENT. Pursuant to the Mutual Non-Disclosure Agreement
dated September 27, 1999, between Conopco and the Company (the "Confidentiality
Agreement"), the Company and Conopco agreed to keep confidential certain
information exchanged between such parties. The Merger Agreement provides that
all information exchanged pursuant to Section 6.02 of the Merger Agreement
concerning "Access to Information" shall be subject to the Confidentiality
Agreement.
LICENSE AGREEMENT. The Company, its wholly owned subsidiary, Ben & Jerry's
Homemade Holdings, Inc. ("Holdings"), Unilever and Unilever PLC entered into a
License Agreement dated as of April 11, 2000 (the "License Agreement"), pursuant
to which the Company and Holdings granted to Unilever and Unilever PLC an
exclusive worldwide license, other than the United States (and territories and
commonwealths thereof), Japan and the Caribbean and subject to the Company's
existing license arrangements (collectively, the "Territory"), to use (i) the
"Ben & Jerry's" trademark, (ii) trademarks owned by the Company and Holdings, or
licensed to the Company and Holdings, associated with certain Ben & Jerry's
flavor names and (iii) proprietary technology of the Company used in making
super premium ice cream (the "Licensed Technology") in connection with the
manufacture, marketing, distribution and sale (wholesale and retail) of super
premium ice cream under the Ben & Jerry's trademark by Unilever and Unilever PLC
and their respective affiliated companies (collectively, the "Unilever
Affiliates"). Because Holdings and the Company have already granted an exclusive
license to a third party with respect to Canada, Unilever and Unilever PLC will
not be able to use the Ben & Jerry's brand in Canada.
Unilever and Unilever PLC have agreed to pay to the Company 5% of the net
sales of frozen dessert products under the Ben & Jerry's trademark by the
Unilever Affiliates, 5% of the net sales of promotional items by the Unilever
Affiliates and 5% of up-front franchise fees paid to the Unilever Affiliates by
Ben & Jerry's franchisees. The Company has the right to approve the countries in
which the Unilever Affiliates uses the Ben & Jerry's trademark (and the related
flavor names) and the marketing of products under the Ben & Jerry's trademark.
The Company and Holdings also agreed to cooperate with Unilever and Unilever PLC
in developing a plan for the geographic expansion of the Ben & Jerry's brand
internationally. Unilever and Unilever PLC have agreed in the License Agreement
to purchase from the Company, and the Company and Holdings have agreed to sell,
the assets, at the net book value of such assets pursuant to a mutually
satisfactory purchase agreement, of the Company's subsidiaries in the United
Kingdom and France.
Pursuant to the License Agreement, the Company and Holdings have agreed not
to compete in frozen dessert products in the Territory during the term of the
License Agreement, except in countries where Unilever and Unilever PLC have
irrevocably indicated they do not wish to sell products under the Ben & Jerry's
trademark. Unilever and Unilever PLC have agreed that in the Territory they will
sell super premium products only under the Ben & Jerry's trademark. Unilever and
Unilever PLC further agreed to use the Licensed Technology only in connection
with frozen dessert products bearing the Ben & Jerry's trademark. Except with
respect to countries with respect to which Unilever and Unilever PLC have given
notice of intent not to enter and regions in which the License Agreement has
been terminated for a Material Default (as defined below) in such region, the
Company and Holdings may not grant another license in connection with frozen
dessert products in the Territory during the term of the License Agreement.
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Subject to termination, the License Agreement has a term of ten years and is
renewable at the option of Unilever and Unilever PLC for additional five-year
terms. The Company and Holdings may terminate the License Agreement in the event
of a Material Default by Unilever and Unilever PLC that is not cured within
60 days of a satisfactory written notice from the Company and Holdings. The
License Agreement defines "Material Default" as a material breach of (A) a
covenant that relates to the payment of money by Unilever and Unilever PLC,
(B) a covenant that directly and substantially affects the Essential Integrity
of the Principal Licensed Mark (as defined in the License Agreement) or
(C) certain other specified covenants contained in the License Agreement. The
License Agreement automatically terminates upon the termination of the Merger
Agreement for breach by Conopco and/or the Purchaser.
Upon a Change of Control (as defined below) of the Company, the obligation
of Unilever and Unilever PLC to obtain the approval of the Company or Holdings
under the License Agreement is deemed to be an obligation to keep such parties
informed as to Unilever and Unilever PLC's actions under the License Agreement
prior to such action being taken, except with respect to the ability of the
Company and Holdings to prevent Unilever and Unilever PLC to act under the
License Agreement in countries in which significant human rights abuses are
occurring. The License Agreement defines a "Change of Control" of a party to the
License Agreement as (A) the acquisition by any person or group of persons
acting in concert of beneficial ownership of such party's securities, or any
other transaction with respect to beneficial ownership of such party or such
party's securities, that involves or results in either (x) the acquisition of
beneficial ownership of securities representing 20% or more of the voting power
of such party's outstanding equity securities or (y) the merger or consolidation
of such party with any person in which the shareholders of such party would not,
immediately after such merger or consolidation, own securities representing at
least 20% of the voting power of the person issuing the cash or securities in
such merger or consolidation, and (B) the sale of all or substantially all of
the assets of such party to one or more Persons; PROVIDED, HOWEVER, that a
Change of Control shall not be deemed to occur in the case of clause (A) or
(B) above if (x) a named founder of the Company is the resulting controlling
person or a member of the resulting controlling group of persons and (y) all
other members of such group of persons, if any, are charitable organizations.
In the License Agreement, Unilever and Unilever PLC have agreed to undertake
activities related to the "social mission" of the Company in connection with the
Unilever Affiliates' activities under the Ben & Jerry's trademark, including,
among others, a commitment to purchase "fair trade" products to the extent
available at commercially reasonable prices, a commitment to open scoop shops in
the Company's PartnerShop format in partnership with non-profit organizations, a
commitment to use unbleached paper to the extent available at commercially
reasonable prices and a commitment to purchase, if commercially feasible, a
portion of its ingredients from not-for-profit suppliers and suppliers from
economically disadvantaged groups and to provide assistance to such suppliers.
The License Agreement provides that a material breach by Unilever or Unilever
PLC of one of the covenants contained in the preceding sentence with respect to
a country is not Material Default but will result in an increased royalty rate
of 8% with respect to the region in which such country is located for so long as
such breach is uncured following a 90-day cure period. Upon a Material Default
by Unilever and/or Unilever PLC of their duties under the social mission
commitments contained in the first sentence of this paragraph, the royalty rate
will be increased to 8% worldwide for so long as such Material Default is
uncured during a one-year cure period. Following the expiration of such one-year
cure period, the Company and Holdings may terminate the License Agreement if
such Material Default is continuing.
The License Agreement also provides that the parties thereto will negotiate
a mutually satisfactory master franchising agreement within 12 months of the
date of the License Agreement.
OPTION AGREEMENT. On April 11, 2000, the Company and Conopco entered into a
Stock Option Agreement (the "Option Agreement"). Pursuant to the Option
Agreement, the Company granted to Conopco an irrevocable option (the "Option")
to purchase up to 1,219,986 Class A Shares (equivalent to 19.9% of the currently
outstanding shares of Company Common Stock) at a purchase price of $43.60 per
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Share. The Option is exercisable (in whole or in part) at any one time either
(i) after the expiration of the Offer and the acceptance of Shares for payment
pursuant thereto or (ii) after the termination of the Merger Agreement in
circumstances in which Conopco is entitled to receive the Termination Fee (each,
a "Purchase Event"). The Option terminates upon the earliest to occur of
(i) the effective date of the Merger, (ii) 180 days after the first occurrence
of a Purchase Event and (iii) termination of the Merger Agreement in accordance
with its terms prior to and without the occurrence of a Purchase Event. After
the occurrence of a Purchase Event, Conopco may elect to receive a cash payment
from the Company in lieu of exercising its Option, which cash payment will be
equal to (A) the aggregate market value of the Shares underlying the Option
minus (B) the aggregate exercise price of the Option, subject to a cap of
$500,000. In addition, pursuant to the Option Agreement, the Company granted
registration rights to Conopco with respect to Shares purchased upon exercise of
the Option.
PLANS FOR THE COMPANY
In the Merger Agreement, Conopco has agreed following the effective time of
the Merger to maintain a board of directors of the Company (the "Surviving
Corporation Board") composed of (i) seven directors from among the members of
the Company Board and persons nominated by such continuing directors
(collectively, from time to time, the "Class I Directors"), (ii) two members to
be appointed by Meadowbrook Lane Capital (the "Class M Directors"), (iii) one
member to be appointed by Conopco and (iv) the Chief Executive Officer of the
Company following the effective time of the Merger (the "Surviving
Corporation"). The Merger Agreement provides that the Surviving Corporation
Board shall have primary responsibility with respect to the enhancement of the
social mission priorities of the Company, as they may evolve, and the
preservation of the essential integrity of the Ben & Jerry's brand-name. Conopco
shall have primary responsibility in the area of financial and operational
aspects of the Surviving Corporation and in all areas not allocated to the
Surviving Corporation Board. The Chief Executive Officer of the Company shall
manage the affairs of the Company pursuant to an annual delegation of authority
and within the scope of an annual business plan approved by Conopco following
good faith discussions with the Company Board. The Chief Executive Officer of
the Company shall be designated by Conopco, after good faith consultation with,
and the participation in discussions of, the Appointment Committee of the
Surviving Corporation Board (consisting of Ben Cohen and Jerry Greenfield,
unless they are not directors, in which case such committee shall include one or
two directors, as the case may be, appointed by a majority of the Class I
Directors, from among the Class I Directors and Class M Directors). The
Surviving Corporation and Conopco have an understanding that the current Chief
Executive Officer will remain during a transitional period. The Merger Agreement
provides that the Company Charter and Company By-laws shall be amended to the
extent necessary to implement the foregoing.
The Surviving Corporation has agreed in the Merger Agreement not to initiate
any material headcount reductions for two years following the effective time of
the Merger and to maintain for at least five years its corporate presence and
substantial operations in Vermont. The Surviving Corporation has agreed in the
Merger Agreement to establish a new product development unit responsible for
special projects to be headed by Ben Cohen for so long as he is an employee. In
addition, the Surviving Corporation has agreed to continue the Company's
liveable wage policy following the effective time of the Merger and that a
significant amount of the incentive-based compensation of members of the OCEO
shall be based on the social performance of the Surviving Corporation.
The Company and Conopco have agreed that following the effective time of the
Merger, they will work together in good faith to develop a set of social metrics
to measure the social performance of the Surviving Corporation. The Surviving
Corporation has also agreed to seek to have the rate of increase of such social
metrics exceed the rate of increase of sales.
The Surviving Corporation has agreed in the Merger Agreement to establish a
Social Venture Fund and agreed to fund such entity pursuant to an agreement to
be made between the Surviving Corporation and the Foundation after the effective
time of the Merger on such terms and conditions as they and a
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committee of the Surviving Corporation Board, appointed in accordance with
Section 6.14(e) of the Merger Agreement ("the Social Venture Committee") of the
Surviving Corporation Board shall approve to provide venture financing to
(a) vendors owned by women, minorities or indigenous people, (b) vendors which
give priority to a social change mission, and (c) such other third-party
entrepreneurial businesses within the scope of the Company's social mission
priorities. The Company shall make available to the Social Venture Fund an
aggregate amount of $5 million. The terms of any agreement relating to the
Social Venture Fund shall limit the financial responsibility of the Surviving
Corporation to the foregoing cash contributions.
The Surviving Corporation has also agreed to continue following the
effective time of the Merger the Company's practice of making charitable
contributions by making contributions, for a minimum of ten years, of
$1.1 million per year adjusted annually (i) by multiplying such amount by the
ratio of the U.S. Producer Price Index for the month of December of the year in
which the determination is made to the U.S. Producer Price Index for
December 1999 and (ii) by multiplying the product of such calculation by the
ratio of the equivalent gallon sales of frozen dessert products bearing the
Ben & Jerry's brand-name sold by any person in such year to the equivalent
gallon sales of such products sold in 1999; PROVIDED, HOWEVER, that such ratio
shall never be less than one. The Surviving Corporation Board shall have the
responsibility for allocating annual contributions among The Ben & Jerry's
Foundation, Inc. (the "Foundation"), local community charitable initiatives with
the support and oversight of employee Community Action Teams and charitable
institutions selected by the OCEO. The Surviving Corporation Board may allocate
a portion of such contributions to the Foundation so long as (i) the Foundation
does not significantly change its charitable purpose, (ii) none of the trustees
of the Foundation disparages the Surviving Corporation, its products or its
management and (iii) any replacement or additional trustee of the Foundation is
reasonably satisfactory to Conopco. After such initial ten-year period, the
Surviving Corporation shall continue to make contributions as calculated in
accordance with the first sentence of this paragraph unless the activities and
performance of the Foundation cease to be reasonably acceptable to Unilever, and
provided that the Foundation meets the other requirements set out in the
previous sentence.
DISSENTERS' RIGHTS
The holders of Shares do not have dissenters' rights as a result of the
Offer. However, if the Merger is consummated, holders of Shares at the effective
time of the Merger will have certain rights pursuant to the provisions of
Chapter 13 of the VBCA ("Chapter 13") to dissent and obtain payment of fair
value for their Shares. Under Chapter 13, dissenting shareholders who comply
with the applicable statutory procedures will be entitled to receive a judicial
appraisal of the fair value of their Shares (exclusive of any element of value
arising from the accomplishment or expectation of the Merger) and to receive
payment of such fair value in cash, together with accrued interest, if any. Any
such judicial determination of the fair value of Shares could be based upon
factors other than, or in addition to, the price per Share to be paid in the
Merger or the market value of the Shares. The value so determined could be more
or less than the price per Share to be paid in the Merger.
The foregoing summary of Chapter 13 does not purport to be complete and is
qualified in its entirety by reference to Chapter 13. FAILURE TO FOLLOW THE
STEPS REQUIRED BY CHAPTER 13 OF THE VBCA FOR PERFECTING DISSENTERS' RIGHTS MAY
RESULT IN THE LOSS OF SUCH RIGHTS.
GOING-PRIVATE TRANSACTIONS
The Commission has adopted Rule 13e-3 under the Exchange Act, which is
applicable to certain "going private" transactions. The Purchaser does not
believe that Rule 13e-3 will be applicable to the Merger unless the Merger is
consummated more than one year after the termination of the Offer. If
applicable, Rule 13e-3 requires, among other things, that certain financial
information concerning the fairness of the Merger and the consideration offered
to minority shareholders in the Merger be filed with the Commission and
disclosed to shareholders prior to the consummation of the Merger.
30
<PAGE>
Except as otherwise described in this Offer to Purchase, Conopco and the
Purchaser have no current plans or proposals that would relate to, or result in,
an extraordinary corporate transaction involving the Company, such as a merger,
reorganization or liquidation involving the Company or any of its subsidiaries,
a sale or transfer of a material amount of assets of the Company or any of its
subsidiaries, any change in the present Company Board or management of the
Company including, but not limited to, any plans or proposals to change the
number or term of directors or to fill any existing vacancies on the Company
Board, any material change in the Company's present capitalization or dividend
policy, any other material change in the Company's corporate structure or
business, causing a class of securities of the Company to be delisted from a
national securities exchange or to cease to be authorized to be quoted in an
inter-dealer quotation system of a registered national securities association or
a class of equity securities of the Company becoming eligible for termination of
registration pursuant to Section 12(g)(4) of the Exchange Act.
13. DIVIDENDS AND DISTRIBUTIONS
Pursuant to the terms of the Merger Agreement, the Company is prohibited
from taking any of the actions described in the two succeeding paragraphs, and
nothing herein shall constitute a waiver by the Purchaser or Conopco of any of
its rights under the Merger Agreement or a limitation of remedies available to
the Purchaser or Conopco for any breach of the Merger Agreement, including
termination thereof.
If, on or after the date of the Merger Agreement, the Company should
(a) split, combine or otherwise change the Shares or its capitalization,
(b) acquire or otherwise cause a reduction in the number of outstanding Shares
or other securities or (c) issue or sell additional Shares, shares of any other
class of capital stock, other voting securities or any securities convertible
into, or rights, warrants or options, conditional or otherwise, to acquire any
of the foregoing, other than Shares issued pursuant to the exercise of
outstanding Company Stock Options, then, subject to the provisions described in
Section 14, the Purchaser may, in addition to its remedies under the Merger
Agreement but subject to the terms thereof (which restrict the Purchaser from
taking certain actions without the consent of the Company), make such
adjustments as it deems appropriate in the Offer Price and other terms of the
Offer, including, without limitation, the number or type of securities offered
to be purchased.
If, on or after the date of the Merger Agreement, the Company should declare
or pay any cash dividend on the Shares or other distribution on the Shares, or
issue with respect to the Shares any additional Shares, shares of any other
class of capital stock, other voting securities or any securities convertible
into, or rights, warrants or options, conditional or otherwise, to acquire, any
of the foregoing, payable or distributable to shareholders of record on a date
prior to the transfer of the Shares purchased pursuant to the Offer to the
Purchaser or its nominee or transferee on the Company's stock transfer records,
then, subject to the provisions described in Section 14 below, (a) the Offer
Price may be reduced by the amount of any such cash dividend or cash
distribution and (b) the whole of any such noncash dividend, distribution or
issuance to be received by the tendering shareholders will (i) be received and
held by the tendering shareholders for the account of the Purchaser and will be
required to be promptly remitted and transferred by each tendering shareholder
to the Depositary for the account of the Purchaser, accompanied by appropriate
documentation of transfer, or (ii) at the direction of the Purchaser, be
exercised for the benefit of the Purchaser, in which case the proceeds of such
exercise will promptly be remitted to the Purchaser. Pending such remittance and
subject to applicable law, the Purchaser will be entitled to all rights and
privileges as owner of any such noncash dividend, distribution, issuance or
proceeds and may withhold the entire Offer Price or deduct from the Offer Price
the amount or value thereof, as determined by the Purchaser in its sole
discretion.
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<PAGE>
14. CERTAIN CONDITIONS OF THE OFFER
Notwithstanding any other term of the Offer or the Merger Agreement (but
subject to the disclosure contained in the Company Disclosure Letter), the
Purchaser will not be required to accept for payment or, subject to any
applicable rules and regulations of the Commission, including Rule 14e-l(c)
under the Exchange Act (relating to a bidder's obligation to pay for or return
tendered securities promptly after the termination or withdrawal of such
bidder's offer), to pay for any Shares tendered pursuant to the Offer unless
(i) the Minimum Condition shall have been satisfied and (ii) (A) the waiting
period (and any extension thereof) under the HSR Act applicable to the purchase
of Shares pursuant to the Offer shall have expired or been terminated, (B) any
consents, approvals and filings under any foreign antitrust law, the absence of
which would prohibit the consummation of the Offer, shall have been obtained or
made and (C) the Company shall have mailed the notice of conversion described in
"Conversion of Class B Shares" to all holders of Class B Shares following
receipt of the notice from Conopco specified in "Conversion of the Class B
Shares" and shall not have taken any action in violation of the requirements
thereof. Furthermore, notwithstanding any other term of the Offer or the Merger
Agreement, the Purchaser will not be required to commence the Offer, accept for
payment or, subject as aforesaid, to pay for any Shares not theretofore accepted
for payment or paid for, and may terminate or amend the Offer, with the consent
of the Company or if, at any time on or after the date of the Merger Agreement
and before the acceptance of such shares for payment or the payment therefor,
any of the following conditions exists:
(a) there shall be threatened or pending any suit, action or proceeding
by any governmental entity or any other person, in each case that has a
reasonable likelihood of success, (i) challenging the acquisition by Conopco
or the Purchaser of any Class A Shares, seeking to delay, limit, inhibit,
restrain or prohibit the making or consummation of the Offer or the Merger
or any other Transaction, or seeking to obtain from the Company, Conopco or
the Purchaser any damages that are material in relation to the Company and
its subsidiaries taken as whole, (ii) seeking to prohibit or limit the
ownership or operation by the Company, Conopco or any of their respective
subsidiaries of any material portion of the business or assets of the
Company, Conopco or any of their respective subsidiaries, or to compel the
Company, Conopco or any of their respective subsidiaries to dispose of or
hold separate any material portion of the business or assets of the Company,
Conopco or any of their respective subsidiaries, as a result of the Offer,
the Merger or any other Transaction, (iii) seeking to impose limitations on
the ability of Conopco or the Purchaser to acquire or hold, or exercise full
rights of ownership of, any Shares, including the right to vote the Shares
purchased by it on all matters properly presented to the shareholders of the
Company, (iv) seeking to prohibit or limit Conopco or any of its
subsidiaries from effectively controlling in any material respect the
business or operations of the Company and the subsidiaries of the Company,
or (v) which otherwise, individually or in the aggregate, could reasonably
be expected to have a material adverse effect on the business, assets,
condition (financial or otherwise), prospects or results of operations of
the Company and its subsidiaries, a material adverse effect on the ability
of the Company to perform its obligations under the Transaction Agreements
or a material adverse effect on the ability of the Company to consummate the
Offer, the Merger and the other Transactions (a "Company Material Adverse
Effect");
(b) any statute, rule, regulation, legislation, interpretation,
judgment, order or injunction shall be threatened, proposed, sought,
enacted, entered, enforced, promulgated, amended or issued with respect to,
or deemed applicable to, or any consent or approval withheld with respect
to, (i) Conopco, the Company or any of their respective subsidiaries or
(ii) the Offer, the Merger or any other Transaction, by any governmental
entity that is reasonably likely to result directly or indirectly, in any of
the consequences referred to in paragraph (a) above;
(c) since the date of the Merger Agreement, there shall have occurred
(i) any material damage to any material property in which the Company or any
subsidiary of the Company has any interest, (ii) any suit, action or
proceeding threatened against or affecting the Company or any subsidiary
thereof or any significant development in any existing suit, action or
proceeding involving or affecting
32
<PAGE>
the Company or any subsidiary thereof, (iii) any challenge to the use by the
Company of any material intellectual property rights used in its business at
the date hereof or (iv) any event, change, effect or development adversely
affecting the integrity of the trademarks or trade names under which the
Company conducts its business, that, in any case under each of clause (i),
(ii), (iii) and (iv), individually or in the aggregate, have had or would
reasonably be expected to have, a Company Material Adverse Effect;
(d)(i) it shall have been publicly disclosed or Conopco shall have
otherwise learned that beneficial ownership (determined for the purposes of
this paragraph as set forth in Rule 13d-3 promulgated under the Exchange
Act) of more than 50% of the outstanding Shares has been acquired by another
person or (ii) the Company Board or any committee thereof shall have
withdrawn or modified in a manner adverse to Conopco or the Purchaser, its
approval or recommendation of the Merger Agreement, the Offer or the Merger,
failed to recommend to the Company's shareholders that they accept the Offer
and approve the Merger Agreement or approved or recommended any Company
Takeover Proposal;
(e)(i) any representation and warranty of the Company in the Merger
Agreement that is qualified as to Company Material Adverse Effect shall not
be true and correct as of the date of the Merger Agreement, except to the
extent such representation and warranty expressly relates to an earlier date
(in which case on and as of such earlier date), and (ii) the representations
and warranties of the Company that are not so qualified as to Company
Material Adverse Effect shall not be true or correct in all respects as of
the date of the Merger Agreement, except to the extent such representations
and warranties expressly relate to an earlier date (in which case on and as
of such earlier date), unless the failure of all such representations and
warranties in this clause (ii) to be true and correct in the aggregate, has
had or would reasonably be expected to have a Company Material Adverse
Effect;
(f) the Company shall have failed to perform in any material respect any
obligation or to comply in any material respect with any agreement or
covenant of the Company to be performed or complied with by it under the
Merger Agreement; or
(g) the Merger Agreement shall have been terminated in accordance with
its terms;
which, in any such case, and regardless of the circumstances giving rise to any
such condition (including any action or inaction by Conopco or any of its
affiliates), makes it inadvisable to proceed with such acceptance for payment or
payment.
The foregoing conditions are for the sole benefit of the Purchaser and
Conopco and, subject to Section 1.01(a) of the Merger Agreement, may be asserted
by the Purchaser or Conopco regardless of the circumstances giving rise to such
conditions or may be waived by the Purchaser and Conopco in whole or in part at
any time and from time to time in their sole discretion. The failure by Conopco,
the Purchaser or any other affiliate of Conopco at any time to exercise any of
the foregoing rights shall not be deemed a waiver of any such right, the waiver
of any such right with respect to particular facts and circumstances shall not
be deemed a waiver with respect to any other facts and circumstances and each
such right shall be deemed an ongoing right that may be asserted at any time and
from time to time.
15. CERTAIN LEGAL MATTERS
Except as described in this Section 15, based on a review of publicly
available filings made by the Company with the Commission and other publicly
available information concerning the Company and discussions of representatives
of Conopco with representatives of the Company, none of the Purchaser, Conopco
or the Company is aware of any license or regulatory permit that appears to be
material to the business of the Company and its subsidiaries, taken as a whole,
that might be adversely affected by the Purchaser's acquisition of Shares (and
the indirect acquisition of the stock of the Company's subsidiaries) as
contemplated herein or of any approval or other action by any governmental
entity that would be
33
<PAGE>
required or desirable for the acquisition or ownership of Shares by the
Purchaser as contemplated herein. Should any such approval or other action be
required or desirable, Conopco and the Purchaser currently contemplate that such
approval or other action will be sought, except as described below under "State
Takeover Laws". While (except as otherwise expressly described in this
Section 15) the Purchaser does not presently intend to delay the acceptance for
payment of or payment for Shares tendered pursuant to the Offer pending the
outcome of any such matter, there can be no assurance that any such approval or
other action, if needed, would be obtained or would be obtained without
substantial conditions or that failure to obtain any such approval or other
action might not result in consequences adverse to the Company's business or
that certain parts of the Company's business might not have to be disposed of if
such approvals were not obtained or such other actions were not taken or in
order to obtain any such approval or other action. If certain types of adverse
action are taken with respect to the matters discussed below, the Purchaser
could, subject to the terms and conditions of the Merger Agreement, decline to
accept for payment or pay for any Shares tendered. See Section 14 for a
description of certain conditions to the Offer.
STATE TAKEOVER LAWS. A number of states throughout the United States have
enacted takeover statutes that purport, in varying degrees, to be applicable to
attempts to acquire securities of corporations that are incorporated or have
assets, shareholders, executive offices or places of business in such states. In
EDGAR V. MITE CORP., the Supreme Court of the United States held that the
Illinois Business Takeover Act, which involved state securities laws that made
the takeover of certain corporations more difficult, imposed a substantial
burden on interstate commerce and therefore was unconstitutional. In CTS CORP.
V. DYNAMICS CORP. OF AMERICA, however, the Supreme Court of the United States
held that a state may, as a matter of corporate law and, in particular, those
laws concerning corporate governance, constitutionally disqualify a potential
acquiror from voting on the affairs of a target corporation without prior
approval of the remaining shareholders, provided that such laws were applicable
only under certain conditions. Subsequently, a number of U.S. federal courts
ruled that various state takeover statutes were unconstitutional insofar as they
apply to corporations incorporated outside the state of enactment.
Based on information supplied by the Company, the Purchaser does not believe
that any state takeover statutes or similar laws purport to apply to the Offer
or the Merger. Neither the Purchaser nor Conopco has currently complied with any
state takeover statute or regulation. The Purchaser reserves the right to
challenge the applicability or validity of any state law purportedly applicable
to the Offer or the Merger and nothing in this Offer to Purchase or any action
taken in connection with the Offer or the Merger is intended as a waiver of such
right. If it is asserted that any state takeover statute is applicable to the
Offer or the Merger and an appropriate court does not determine that it is
inapplicable or invalid as applied to the Offer or the Merger, the Purchaser
might be required to file certain information with, or to receive approvals
from, the relevant state authorities, and the Purchaser might be unable to
accept for payment or pay for Shares tendered pursuant to the Offer, or be
delayed in consummating the Offer or the Merger. In such case, the Purchaser may
not be obligated to accept payment or pay for any Shares tendered pursuant to
the Offer. See Section 14.
ANTITRUST. Under the provisions of the HSR Act applicable to the Offer, the
acquisition of Shares under the Offer may be consummated after the expiration of
a 15-calendar-day waiting period commenced by the filing by Conopco of a
Notification and Report Form with respect to the Offer, unless Conopco receives
a request for additional information or documentary material from the Antitrust
Division or the Federal Trade Commission (the "FTC") or unless early termination
of the waiting period is granted. Conopco is in the process of preparing such
filing, which is expected to be filed shortly. If, within the initial 15-day
waiting period, either the Antitrust Division or the FTC requests additional
information or material from Conopco concerning the Offer, the waiting period
will be extended and would expire at 11:59 p.m., New York City time, on the
tenth calendar day after the date of substantial compliance by Conopco with such
request. Only one extension of the waiting period pursuant to a request for
additional information is authorized by the HSR Act. Thereafter, such waiting
period may be extended only by court order or with the consent of Conopco. In
practice, complying with a request for additional information or material can
34
<PAGE>
take a significant amount of time. In addition, if the Antitrust Division or the
FTC raises substantive issues in connection with a proposed transaction, the
parties frequently engage in negotiations with the relevant governmental agency
concerning possible means of addressing those issues and may agree to delay
consummation of the transaction while such negotiations continue. Expiration or
termination of the applicable waiting period under the HSR Act is a condition to
the Purchaser's obligation to accept for payment and pay for Shares tendered
pursuant to the Offer.
The Merger will not require an additional filing under the HSR Act if the
Purchaser owns 50% or more of the outstanding Shares at the time of the Merger
or if the Merger occurs within one year after the HSR Act waiting period
applicable to the Offer expires or is terminated.
The Antitrust Division and the FTC frequently scrutinize the legality under
the antitrust laws of transactions such as the Purchaser's proposed acquisition
of the Company. At any time before or after the Purchaser's acquisition of
Shares pursuant to the Offer, the Antitrust Division or the FTC could take such
action under the antitrust laws as it deems necessary or desirable in the public
interest, including seeking to enjoin the purchase of Shares pursuant to the
Offer or the consummation of the Merger or seeking the divestiture of Shares
acquired by the Purchaser or the divestiture of substantial assets of the
Company or its subsidiaries or Conopco or its subsidiaries. Private parties may
also bring legal action under the antitrust laws under certain circumstances.
There can be no assurance that a challenge to the Offer on antitrust grounds
will not be made or, if such a challenge is made, of the result thereof.
FOREIGN LAWS. The Company and certain of its subsidiaries conduct business
in several foreign countries where regulatory filings or approvals may be
required or desirable in connection with the consummation of the Offer. Certain
of such filings or approvals, if required or desirable, may not be made or
obtained prior to the expiration of the Offer. If any foreign governmental
entity takes any action prior to the completion of the Offer that might have
certain adverse affects, the Purchaser will not be obligated to accept for
payment or pay for any Shares tendered. See Section 14.
16. FEES AND EXPENSES
Morgan Stanley & Co. Incorporated is acting as Dealer Manager in connection
with the Offer and is providing certain financial advisory services to Conopco
and the Purchaser in connection with the Offer. Pursuant to an engagement letter
dated April 12, 2000, between Unilever United States, Inc. and Morgan Stanley &
Co. Incorporated. Morgan Stanley & Co. Incorporated will receive customary
compensation for such services. Conopco has also agreed to reimburse Morgan
Stanley & Co. Incorporated for its out-of-pocket expenses, including the fees
and expenses of legal counsel and any other advisor retained by Morgan
Stanley & Co. Incorporated in connection with its engagement and to indemnify
Morgan Stanley & Co. Incorporated and certain related persons against certain
liabilities and expenses incurred in connection with its engagement, including
certain liabilities under federal securities laws. Conopco will also compensate
Meadowbrook upon the consummation of the Merger.
Conopco and the Purchaser have retained Morrow & Co., Inc. to act as the
Information Agent and Morgan Guaranty Trust Company of New York to serve as the
Depositary in connection with the Offer. The Information Agent and the
Depositary each will receive reasonable and customary compensation for their
services, be reimbursed for certain reasonable out-of-pocket expenses and be
indemnified against certain liabilities and expenses in connection therewith,
including certain liabilities and expenses under federal securities laws.
Neither the Purchaser nor Conopco will pay any fees or commissions to any
broker or dealer or other person (other than the Dealer Manager and the
Information Agent) in connection with the solicitation of tenders of Shares
pursuant to the Offer. Brokers, dealers, banks and trust companies will be
reimbursed by the Purchaser upon request for customary mailing and handling
expenses incurred by them in forwarding material to their customers.
35
<PAGE>
17. MISCELLANEOUS
The Offer is not being made to (nor will tenders be accepted from or on
behalf of) holders of Shares in any jurisdiction in which the making of the
Offer or the acceptance thereof would not be in compliance with the laws of such
jurisdiction. Neither the Purchaser nor Conopco is aware of any jurisdiction in
which the making of the Offer or the acceptance thereof would not be in
compliance with the laws of such jurisdiction. To the extent the Purchaser or
Conopco becomes aware of any state law that would limit the class of offerees in
the Offer, the Purchaser will amend the Offer and, depending on the timing of
such amendment, if any, will extend the Offer to provide adequate dissemination
of such information to holders of Shares prior to the expiration of the Offer.
In any jurisdiction the securities, blue sky or other laws of which require the
Offer to be made by a licensed broker or dealer, the Offer is being made on
behalf of the Purchaser by the Dealer Manager or one or more registered brokers
or dealers licensed under the laws of such jurisdiction.
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATION ON BEHALF OF THE PURCHASER OR CONOPCO NOT CONTAINED HEREIN OR IN
THE LETTER OF TRANSMITTAL AND, IF GIVEN OR MADE, SUCH INFORMATION OR
REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED.
Conopco and the Purchaser have filed with the Commission the Schedule TO
pursuant to Rule 14d-3 under the Exchange Act, together with exhibits,
furnishing certain additional information with respect to the Offer, and may
file amendments thereto. In addition, the Company has filed the Schedule 14D-9
pursuant to Rule 14d-9 under the Exchange Act, together with exhibits, setting
forth its recommendation with respect to the Offer and the reasons for such
recommendation and furnishing certain additional related information. Such
Schedules and any amendments thereto, including exhibits, should be available
for inspection and copies should be obtainable in the manner set forth in
Section 8 (except that such material will not be available at the regional
offices of the Commission).
VERMONT ALL NATURAL EXPANSION COMPANY
April 18, 2000
36
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SCHEDULE I
SCHEDULE I
DIRECTORS AND EXECUTIVE OFFICERS OF
UNILEVER, CONOPCO AND THE PURCHASER
1. DIRECTORS AND EXECUTIVE OFFICERS OF UNILEVER. The name, citizenship,
present principal occupation or employment and five-year employment history of
each of the directors and executive officers of Unilever are set forth below.
Unless otherwise indicated, all occupations, offices or positions of employment
listed opposite an individual's name were held during the last five years and
all such occupations, offices or employments were with Unilever or a subsidiary
thereof. The principal business address of Messrs. FitzGerald, Brown, Markham,
Butler, Cescau, Allgrove and Williams is Unilever PLC, Unilever House,
Blackfriars, London EC4P 4BQ, United Kingdom. The principal business address of
Messrs. Burgmans, Kemner, Peelen, Haars and Westerburgen is Unilever N.V., Weena
455, P. O. Box 760, 3000 DK Rotterdam, The Netherlands. The principal business
address of Mr. Phillips is 33 Benedict Place, Greenwich, CT 06830. Directors of
Unilever are indicated by an asterisk.
<TABLE>
<CAPTION>
NAME AND BUSINESS PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT AND
ADDRESS FIVE-YEAR EMPLOYMENT HISTORY
----------------- ----------------------------------------------
<S> <C>
Niall W. A. FitzGerald*.............. Chairman, Unilever PLC and Vice Chairman, Unilever N.V.
Ireland since 1996; Vice Chairman, Unilever PLC from May 1994 to
1996; Detergents Co-ordinator prior to 1995.
Antony Burgmans*..................... Chairman, Unilever N.V. since 1999; Vice Chairman, Unilever
The Netherlands PLC since 1999; Vice Chairman, Unilever N.V. from 1998 to
1999; Business Group President, Ice Cream & Frozen
Foods--Europe from 1996 to 1998; Member, Foods Executive
prior thereto.
Roy D. Brown*........................ Business Group President, Food & Beverages--Europe since
United Kingdom 1996; Regional Director, Central and Eastern Europe prior
thereto.
A. Clive Butler*..................... Category Director, Home & Personal Care since 1996;
United Kingdom Personnel Director prior thereto.
Patrick J. Cescau*................... Financial Director since 1999; Controller and Deputy
France Financial Director from 1998 to 1999; President, Lipton from
1997 to 1998; President, Van den Bergh Foods from 1995 to
1997.
Alexander Kemner*.................... Category Director, Foods since 1996; Regional Director, East
The Netherlands Asia/ Pacific prior thereto.
Rudolph H. P. Markham*............... Strategy & Technology Director since May 1998; Business
United Kingdom Group President, Northeast Asia from 1996 to May 1998;
Chairman and Chief Executive Officer, Unilever Japan prior
thereto.
Jan Peelen*.......................... Personnel Director since 1996; Chairman, Foods Executive
The Netherlands prior thereto.
Robert M. Phillips*.................. Chairman, Unilever North America Committee since 1996;
United States Business Group President, Home & Personal Care--North
America from 1996 to 1999; Personal Products Co-ordinator
prior thereto.
Jan Haars............................ Treasurer since August 1997; Head of Investment Banking,
The Netherlands Rabobank prior thereto.
</TABLE>
37
<PAGE>
<TABLE>
<CAPTION>
NAME AND BUSINESS PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT AND
ADDRESS FIVE-YEAR EMPLOYMENT HISTORY
----------------- ----------------------------------------------
<S> <C>
Jefferey W. Allgrove................. Controller since 1999; Vice President, Finance, Unilever
United Kingdom United States, Inc. prior thereto.
Josephus W.B. Westerburgen........... Joint Secretary since prior to April 1995.
The Netherlands
Stephen G. Williams.................. Joint Secretary since prior to April 1995.
United Kingdom
</TABLE>
2. DIRECTORS AND EXECUTIVE OFFICERS OF CONOPCO. The name, citizenship, present
principal occupation or employment and five-year employment history of each of
the directors and executive officers of Conopco are set forth below. Unless
otherwise indicated, all occupations, offices or positions of employment listed
opposite an individual's name were held during the last five years. Unless
otherwise indicated, each director or executive officer is a citizen of the
United States. Unless otherwise indicated, the principal business address of
each director or executive officer is Conopco, Inc., 390 Park Avenue, New York,
NY 10022. Directors of Conopco are indicated by an asterisk.
<TABLE>
<CAPTION>
NAME AND BUSINESS PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT AND
ADDRESS FIVE-YEAR EMPLOYMENT HISTORY
----------------- ----------------------------------------------
<S> <C>
Richard A. Goldstein................. President and Chief Executive Officer, Unilever United
States, Inc. since prior to April 1995; Business Group
President, Foods--North America since 1996; Chairman and
Chief Executive Officer of Unilever North American Regional
Management prior thereto; President, Conopco, Inc.;
President, Vermont All Natural Expansion Company.
Thomas H. Floyd*..................... Vice President, Finance, Unilever United States, Inc. since
(United Kingdom) January 1999; Senior Vice President, Finance, Foods--North
America since January 1999; Senior Vice President,
Strategy-Home & Personal Care Category from June 1996 to
December 1998; Senior Vice President, Finance-Speciality
Chemicals Co-ordination prior thereto; Vice President,
Conopco, Inc.; Vice President and Treasurer, Vermont All
Natural Expansion Company.
Paul D. Garwood...................... Senior Vice President, Unilever United States, Inc., since
(United Kingdom) October 1999; Executive Vice President and Chief Operating
Officer, Unilever Home & Personal Care USA, October 1997 to
September 1999; Senior Vice President and General Manager
(Fabrics), Lever Brothers Company, August 1994 to September
1997; Vice President, Conopco, Inc.
George M. Griesbeck.................. President, Diversey Lever, Inc. since 1996; Chief Executive
1000 Ridgeway Loop Road Officer, Auto-Chlor System prior thereto; Vice President,
Memphis, TN 38120 Conopco, Inc.
A. Peter Harwich*.................... Associate General Counsel, Unilever United States, Inc.
since July 1997; Associate, Cravath, Swaine & Moore prior
thereto; Vice President and Assistant Secretary, Conopco,
Inc.; Vice President and Assistant Secretary, Vermont All
Natural Expansion Company.
</TABLE>
38
<PAGE>
<TABLE>
<CAPTION>
NAME AND BUSINESS PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT AND
ADDRESS FIVE-YEAR EMPLOYMENT HISTORY
----------------- ----------------------------------------------
<S> <C>
Venkatesh Kasturirangan (India)...... Executive Vice President and Chief Operating Officer,
33 Benedict Place Personal Wash, Skin and Oral Business Unit, Unilever Home &
Greenwich, CT 06830 Personal Care USA since June 1998; Chairman and Chief
Executive Officer, Unilever Phillippines from July 1995 to
June 1998; Regional Member, Personal Products Co-ordination
prior thereto; Vice President, Conopco, Inc.
Melvin H. Kurtz...................... Vice President-Law, Unilever Home & Personal Care USA since
33 Benedict Place 1998; Vice President, Secretary and General Counsel,
Greenwich, CT 06830 Chesebrough- Pond's USA prior thereto; Vice President,
Conopco, Inc.
E. Mark Landry....................... Senior Vice President, Finance & Information Technology,
33 Benedict Place Unilever Home & Personal Care North America since September
Greenwich, CT 06830 1998; President, Lever Pond's Canada from August 1997 to
September 1998; Executive Vice President and Chief Operating
Officer, Chesebrough-Pond's USA prior thereto; Vice
President, Conopco, Inc.
Mart Laius........................... Vice President, Corporate Development & Administrative
Services, Unilever United States, Inc. since prior to April
1995; Vice President, Conopco, Inc.; Vice President, Vermont
All Natural Expansion Company.
Paulanne Mancuso..................... President and Chief Executive Officer, Unilever Cosmetics
725 Fifth Avenue International since March 2000; President and Chief
New York, NY 10022 Executive Officer, Calvin Klein Cosmetics Company prior
thereto; Vice President, Conopco, Inc.
Jean Mortier (France)................ Chief Financial Officer and Senior Vice President, Unilever
725 Fifth Avenue Cosmetics International since March 2000; Chief Financial
New York, NY 10022 Officer and Senior Vice President, Calvin Klein Cosmetics
Company from September 1996 to February 2000; Commercial
Director, Elida Faberge from February 1995 to August 1996;
Vice President, Conopco, Inc.
John W. Rice......................... President and Chief Executive Officer, Lipton since 2000;
President and Chief Operating Officer, Lipton from 1998 to
1999; Executive Vice President and Chief Operating Officer,
Unilever Home & Personal Care USA from 1996 to 1998; Senior
Vice President and General Manager, Lever Brothers Company
prior thereto; Vice President, Conopco, Inc.
Nancy Schnell........................ Deputy General Counsel, Unilever United States, Inc. since
1996; Associate General Counsel, Unilever United States,
Inc. prior thereto; Vice President and Assistant Secretary,
Conopco, Inc.
Ronald M. Soiefer*................... Vice President, General Counsel and Secretary, Unilever
United States, Inc. since January 1996; Senior Vice
President, General Counsel and Secretary, Foods--North
America since 1998; Senior Vice President, General Counsel
and Secretary, Unilever Home & Personal Care North America
since 1998; Deputy General Counsel Unilever United States,
Inc. prior to 1996; Vice President and Secretary, Conopco,
Inc.; Vice President and Secretary, Vermont All Natural
Expansion Company.
</TABLE>
39
<PAGE>
<TABLE>
<CAPTION>
NAME AND BUSINESS PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT AND
ADDRESS FIVE-YEAR EMPLOYMENT HISTORY
----------------- ----------------------------------------------
<S> <C>
Melinda Sweet........................ Deputy General Counsel-Environmental Affairs, Unilever
United States, Inc. since prior to April 1995; Senior Vice
President-Law, Unilever Home & Personal Care USA since 1998;
Senior Vice President and General Counsel, Lever Brothers
Company from prior to April 1995 until 1998; Vice President
and Assistant Secretary, Conopco, Inc.
Eric Walsh (United Kingdom).......... President, Good Humor--Breyers Ice Cream since prior to
909 Packerland Drive April 1995; Vice President, Conopco, Inc.
Green Bay, WI 54303
Steve Warhover....................... President and Chief Executive Officer, Gorton's since prior
128 Rogers Street to April 1995; Vice President, Conopco, Inc.
Gloucester, MA 01930
Paul W. Wood......................... Vice President, Corporate Affairs, Unilever United States,
Inc. since prior to April 1995; Senior Vice President,
Conopco, Inc.
Eugene Zeffern....................... Executive Vice President and Chief Operating Officer,
325 North Wells Street Unilever Home & Personal Care USA since 1998; Senior Vice
Chicago, IL 60610 President, Unilever Home & Personal Care USA from 1997 to
1998; Senior Vice President, Helene Curtis from 1996 to
1997; President, Helene Curtis USA from 1995 to 1996; Vice
President, Conopco, Inc.
Paul McMahon......................... Treasurer, Unilever United States, Inc., since September
800 Sylvan Avenue 1999; Vice President and Treasurer, W.R. Grace and Co. from
Englewood Cliffs, NJ 07632 October 1995 to September 1999; Assistant Treasurer, W.R.
Grace and Co. prior thereto; Treasurer, Conopco, Inc.
</TABLE>
3. DIRECTORS AND EXECUTIVE OFFICERS OF THE PURCHASER. The name, business
address, present principal occupation or employment and five-year employment
history of each of the directors and executive officers of the Purchaser are set
forth below. Unless otherwise indicated, the business address of each such
director and executive officer is Vermont All Natural Expansion Company in care
of Conopco, Inc., 390 Park Avenue, New York, NY 10022. All such directors and
executive officers listed below are citizens of the United States except Thomas
Floyd, who is a citizen of the United Kingdom. Further information concerning
the directors and executive officers listed below, each of whom also serves as
an executive officer of Conopco, is provided above. Directors of the Purchaser
are indicated by an asterisk.
<TABLE>
<CAPTION>
NAME AND BUSINESS PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT AND
ADDRESS FIVE-YEAR EMPLOYMENT HISTORY
----------------- ----------------------------------------------
<S> <C>
Richard A. Goldstein................. (See above information.)
Mart Laius........................... (See above information.)
Ronald M. Soiefer*................... (See above information.)
Thomas H. Floyd*..................... (See above information.)
Phillip Cohen........................ General Tax Counsel, Unilever United States, Inc.; Vice
800 Sylvan Avenue President and Assistant Secretary, Vermont All Natural
Englewood Cliffs, NJ 07632 Expansion Company.
A. Peter Harwich*.................... (See above information.)
David Strickland, Jr................. Assistant General Counsel, Unilever United States, Inc.
since November 1995; Assistant General Counsel, Lipton prior
thereto; Vice President and Assistant Secretary, Vermont All
Natural Expansion Company.
</TABLE>
40
<PAGE>
Manually signed facsimile copies of the Letter of Transmittal will be
accepted. The Letter of Transmittal, certificates for Shares and any other
required documents should be sent or delivered by each shareholder of the
Company or such shareholder's broker, dealer, bank, trust company or other
nominee to the Depositary at one of its addresses set forth below.
THE DEPOSITARY FOR THE OFFER IS
MORGAN GUARANTY TRUST COMPANY OF NEW YORK
<TABLE>
<CAPTION>
BY MAIL: BY OVERNIGHT COURIER: BY HAND:
<S> <C> <C>
Morgan Guaranty Trust Company Morgan Guaranty Trust Company Morgan Guaranty Trust Company
of New York of New York of New York
c/o EquiServe Corporate c/o Colbent Management c/o Securities Transfer &
Reorganization Corporate Reorganization Reporting Services, Inc.
P.O. Box 842007 40 Campanelli Drive 100 William Street, Galleria
Boston, MA 02284-2007 Braintree, MA 02184 New York, NY 10038
BY FACSIMILE TRANSMISSION:
(781) 575-4826
CONFIRM BY TELEPHONE:
(781) 575-4816
</TABLE>
Questions and requests for assistance or for additional copies of this Offer
to Purchase, the Letter of Transmittal and the Notice of Guaranteed Delivery may
be directed to the Information Agent or to the Dealer Manager at their
respective telephone numbers and location listed below. You may also contact
your broker, dealer, bank, trust company or other nominee for assistance
concerning the Offer.
THE INFORMATION AGENT FOR THE OFFER IS:
[LOGO]
445 PARK AVENUE
5TH FLOOR
NEW YORK, NY 10022
CALL COLLECT (212) 754-8000
BANKS AND BROKERAGE FIRMS,
PLEASE CALL:
(800) 662-5200
SHAREHOLDERS, PLEASE CALL (800) 566-9061
THE DEALER MANAGER FOR THE OFFER IS:
MORGAN STANLEY DEAN WITTER
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
(212) 761-4750
<PAGE>
Exhibit (2)(b)
================================================================================
AGREEMENT AND PLAN OF MERGER
Dated as of April 11, 2000
Among
CONOPCO, INC.,
VERMONT ALL NATURAL EXPANSION COMPANY
And
BEN & JERRY'S HOMEMADE, INC.
================================================================================
<PAGE>
TABLE OF CONTENTS
<TABLE>
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<S> <C>
ARTICLE I
THE OFFER AND THE MERGER
SECTION 1.01. The Offer.................................................................................2
SECTION 1.02. Company Actions...........................................................................4
SECTION 1.03. The Merger................................................................................5
SECTION 1.04. Closing...................................................................................5
SECTION 1.05. Effective Time............................................................................5
SECTION 1.06. Effects...................................................................................6
SECTION 1.07. Articles of Incorporation and By-laws.....................................................6
SECTION 1.08. Directors.................................................................................6
SECTION 1.09. Officers..................................................................................6
ARTICLE II
EFFECT ON THE CAPITAL STOCK OF THE
CONSTITUENT CORPORATIONS; EXCHANGE OF CERTIFICATES
SECTION 2.01. Effect on Capital Stock...................................................................6
SECTION 2.02. Exchange of Certificates..................................................................8
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
SECTION 3.01. Organization, Standing and Power.........................................................10
SECTION 3.02. Company Subsidiaries; Equity Interests...................................................11
SECTION 3.03. Capital Structure........................................................................11
SECTION 3.04. Authority; Execution and Delivery; Enforceability........................................14
SECTION 3.05. No Conflicts; Consents...................................................................15
SECTION 3.06. SEC Documents; Undisclosed Liabilities...................................................16
SECTION 3.07. Information Supplied.....................................................................17
SECTION 3.08. Absence of Certain Changes or Events.....................................................18
SECTION 3.09. Taxes....................................................................................20
SECTION 3.10. Absence of Changes in Benefit Plans......................................................21
SECTION 3.11. ERISA Compliance; Excess Parachute Payments..............................................21
SECTION 3.12. Litigation...............................................................................24
</TABLE>
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<TABLE>
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<S> <C>
SECTION 3.13. Compliance with Applicable Laws..........................................................24
SECTION 3.14. Environmental Matters....................................................................24
SECTION 3.15. Contracts; Debt Instruments..............................................................26
SECTION 3.16. Intellectual Property....................................................................26
SECTION 3.17. Labor Matters............................................................................27
SECTION 3.18. Title to Properties......................................................................27
SECTION 3.19. Equipment................................................................................28
SECTION 3.20. Suppliers................................................................................28
SECTION 3.21. Brokers; Schedule of Fees and Expenses...................................................28
SECTION 3.22. Opinion of Financial Advisor.............................................................29
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF CONOPCO AND SUB
SECTION 4.01. Organization, Standing and Power.........................................................29
SECTION 4.02. Sub......................................................................................29
SECTION 4.03. Authority; Execution and Delivery; Enforceability........................................29
SECTION 4.04. Consents.................................................................................30
SECTION 4.05. Information Supplied.....................................................................30
SECTION 4.06. Brokers..................................................................................31
SECTION 4.07. Conopco Plans............................................................................31
ARTICLE V
COVENANTS RELATING TO CONDUCT OF BUSINESS
SECTION 5.01. Conduct of Business......................................................................31
SECTION 5.02. No Solicitation..........................................................................35
ARTICLE VI
ADDITIONAL AGREEMENTS
SECTION 6.01. Preparation of Proxy Statement; Shareholders Meeting.....................................38
SECTION 6.02. Access to Information; Confidentiality...................................................39
SECTION 6.03. Best Efforts; Notification...............................................................40
SECTION 6.04. Stock Options ..........................................................................41
SECTION 6.05. Benefit Plans ..........................................................................42
SECTION 6.06. Indemnification..........................................................................43
SECTION 6.07. Fees and Expenses; Liquidated Damages....................................................44
SECTION 6.08. Public Announcements.....................................................................45
</TABLE>
<PAGE>
<TABLE>
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<S> <C>
SECTION 6.09. Transfer Taxes ..........................................................................46
SECTION 6.10. Interim Directors........................................................................46
SECTION 6.11. Company Capital Stock....................................................................47
SECTION 6.12. Rights Agreements; Consequences if Rights Triggered......................................47
SECTION 6.13. Shareholder Litigation...................................................................48
SECTION 6.14. Operations of the Surviving Corporation..................................................48
SECTION 6.15. The Foundation ..........................................................................52
SECTION 6.16. Certain Employee Matters.................................................................52
SECTION 6.17. Social Milestones........................................................................52
SECTION 6.18. The Social Venture Fund..................................................................53
ARTICLE VII
SECTION 7.01. Conditions to the Offer..................................................................53
SECTION 7.02. Conditions to the Merger.................................................................56
ARTICLE VIII
TERMINATION, AMENDMENT AND WAIVER
SECTION 8.01. Termination..............................................................................57
SECTION 8.02. Effect of Termination....................................................................59
SECTION 8.03. Amendment................................................................................59
SECTION 8.04. Extension; Waiver........................................................................60
SECTION 8.05. Procedure for Termination, Amendment, Extension or Waiver................................60
ARTICLE IX
GENERAL PROVISIONS
SECTION 9.01. Nonsurvival of Representations and Warranties............................................61
SECTION 9.02. Notices..................................................................................61
SECTION 9.03. Definitions..............................................................................62
SECTION 9.04. Interpretation; Disclosure Letters.......................................................63
SECTION 9.05. Severability.............................................................................63
SECTION 9.06. Counterparts.............................................................................63
SECTION 9.07. Entire Agreement; No Third-Party Beneficiaries...........................................63
SECTION 9.08. GOVERNING LAW............................................................................64
SECTION 9.09. Assignment...............................................................................64
SECTION 9.10. Enforcement..............................................................................65
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
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<S> <C>
SECTION 9.11. Separate Parties.........................................................................65
</TABLE>
EXHIBIT A Articles of Incorporation
EXHIBIT B Form of Delegation of Authority
<PAGE>
AGREEMENT AND PLAN OF MERGER, dated as of
April 11, 2000, among CONOPCO, INC., a New York
corporation ("CONOPCO"), VERMONT ALL NATURAL
EXPANSION COMPANY, a Vermont corporation ("SUB"), and
BEN & JERRY'S HOMEMADE, INC., a Vermont corporation
(the "COMPANY").
WHEREAS Conopco believes that it is uniquely positioned to
further the Company's three-part mission through a business combination that
leverages the strengths of both Conopco and the Company;
WHEREAS the respective Boards of Directors of Conopco, Sub and
the Company have approved the acquisition of the Company by Conopco on the terms
and subject to the conditions set forth in this Agreement;
WHEREAS, in furtherance of such acquisition, Conopco proposes
to cause Sub to make a tender offer (as it may be amended from time to time as
permitted under this Agreement, the "OFFER") to purchase all the outstanding
shares of Class A Common Stock of the Company, par value $.033 per share (the
"CLASS A COMMON STOCK"), including the associated Class A Rights (as defined in
Section 3.03), and all the outstanding shares of Class B Common Stock of the
Company, par value $.033 per share (the "CLASS B COMMON STOCK", and together
with the Class A Common Stock, the "COMPANY COMMON STOCK"), including the
associated Class B Rights (as defined in Section 3.03), at a price per share of
Company Common Stock (including the associated Company Right (as defined in
Section 3.03)) of $43.60, net to the seller in cash, on the terms and subject to
the conditions set forth in this Agreement;
WHEREAS the respective Boards of Directors of Conopco, Sub and
the Company have approved the merger (the "MERGER") of Sub into the Company, or
(at the election of Conopco) the Company into Sub, on the terms and subject to
the conditions set forth in this Agreement, whereby (a) each issued share of
Company Common Stock not owned by Conopco, Sub or the Company, and (b) each
share of Company Common Stock, not owned directly or indirectly by Conopco or
the Company, shall be converted into the right to receive $43.60 in cash;
WHEREAS, immediately following the acceptance for payment of
shares of Company Common Stock pursuant to the Offer, the Company shall cause
the outstanding shares
<PAGE>
of the Company's $1.20 Class A Preferred Stock, par value $1.00 per share (the
"COMPANY PREFERRED STOCK" and, together with the Company Common Stock, the
"COMPANY CAPITAL STOCK"), to be redeemed;
WHEREAS simultaneously with the execution and
delivery of this Agreement Ben & Jerry's Homemade Holdings,
Inc. and the Company are granting an international license
to Unilever N.V. and Unilever PLC pursuant to a License
Agreement (the "LICENSE AGREEMENT");
WHEREAS simultaneously with the execution and delivery of this
Agreement the Company and Conopco are entering into a stock option agreement
(the "STOCK OPTION AGREEMENT" and, together with this Agreement and the License
Agreement, the "TRANSACTION AGREEMENTS"), pursuant to which the Company is
granting Conopco an option to purchase shares of Class A Common Stock on the
terms and subject to the conditions set forth therein; and
WHEREAS Conopco, Sub and the Company desire to make certain
representations, warranties, covenants and agreements in connection with the
Offer and the Merger and also to prescribe various conditions to the Offer and
the Merger.
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
THE OFFER AND THE MERGER
SECTION 1.01. THE OFFER. (a) Subject to the conditions of this
Agreement, as promptly as practicable but in no event later than five business
days after the date of this Agreement, Sub shall, and Conopco shall cause Sub
to, commence the Offer within the meaning of the applicable rules and
regulations of the Securities and Exchange Commission (the "SEC"). The
obligation of Sub to, and of Conopco to cause Sub to, commence the Offer and
accept for payment, and pay for, any shares of Company Common Stock tendered
pursuant to the Offer are subject to the conditions set forth in Section 7.01.
The initial expiration date of the Offer shall be the 20th business day
following the commencement of the Offer (determined using Rule 14d-2 of the
SEC). Sub expressly
<PAGE>
reserves the right to modify the terms of the Offer or waive any condition to
the Offer, except that, without the consent of the Company, Sub shall not (i)
reduce the number of shares of Company Common Stock subject to the Offer, (ii)
reduce the price per share of Company Common Stock to be paid pursuant to the
Offer, (iii) reduce or waive the Minimum Tender Condition (as defined in Section
7.01), (iv) modify, in any manner adverse to the holders of Company Common
Stock, or add to, the conditions set forth in Section 7.01, (v) extend the Offer
or (vi) change the form of consideration payable in the Offer. Notwithstanding
the foregoing, Sub may, without the consent of the Company, (i) extend the Offer
in increments of not more than five business days each, if at the scheduled
expiration date of the Offer any of the conditions to Sub's obligation to
purchase shares of Company Common Stock are not satisfied, until such time as
such conditions are satisfied or waived, (ii) extend the Offer for any period
required by any rule, regulation, interpretation or position of the SEC or the
staff thereof applicable to the Offer and (iii) make available a subsequent
offering period (within the meaning of Rule 14d-11 of the SEC). Without limiting
the right of Sub to extend the Offer, in the event that any condition set forth
in paragraph (a) of Section 7.01 is not satisfied or waived at the scheduled
expiration date of the Offer, at the request of the Company Sub shall, and
Conopco shall cause Sub to, extend the expiration date of the Offer in
increments of five business days each until the earliest to occur of (w) the
satisfaction or waiver of such condition, (x) Conopco reasonably determines that
such condition to the Offer is not capable of being satisfied on or prior to
September 30, 2000, (y) the termination of this Agreement in accordance with its
terms and (z) September 30, 2000. In addition, on the terms and subject to the
conditions of the Offer and this Agreement, Sub shall pay for all shares of
Company Common Stock validly tendered and not withdrawn pursuant to the Offer
that Sub becomes obligated to purchase pursuant to the Offer as soon as
practicable after the expiration of the Offer.
(b) On the date of commencement of the Offer, Conopco and Sub
shall file with the SEC a Tender Offer Statement on Schedule TO with respect to
the Offer, which shall contain an offer to purchase and a related letter of
transmittal and summary advertisement (such Schedule TO and the documents
included therein pursuant to which the Offer will be made, together with any
supplements or amendments thereto, the "OFFER DOCUMENTS"). Each of Conopco, Sub
and the Company shall
<PAGE>
promptly correct any information provided by it for use in the Offer Documents
if and to the extent that such information shall have become false or misleading
in any material respect, and each of Conopco and Sub shall take all steps
necessary to amend or supplement the Offer Documents and to cause the Offer
Documents as so amended or supplemented to be filed with the SEC and to be
disseminated to the Company's shareholders, in each case as and to the extent
required by applicable Federal securities laws. Conopco and Sub shall provide
the Company and its counsel in writing with any comments Conopco, Sub or their
counsel may receive from the SEC or its staff with respect to the Offer
Documents promptly after the receipt of such comments.
SECTION 1.02. COMPANY ACTIONS. (a) Subject to the right of the
Board of Directors of the Company (the "COMPANY BOARD", which term shall mean,
after the Effective Time (as defined in Section 1.05), the board of directors of
the Surviving Corporation (as defined in Section 1.03)) to take action permitted
by Section 5.02(b), the Company hereby approves of and consents to the Offer,
the Merger and the other transactions contemplated by the Transaction Agreements
(collectively, the "TRANSACTIONS").
(b) On the date the Offer Documents are filed with the SEC,
the Company shall file with the SEC a Solicitation/Recommendation Statement on
Schedule 14D-9 with respect to the Offer, including an appropriate information
statement (the "INFORMATION STATEMENT") under Rule 14f-1 (such Schedule 14D-9
and Information Statement, as amended from time to time, the "SCHEDULE 14D-9")
and shall mail the Schedule 14D-9 to the holders of Class A Common Stock. The
Schedule 14D-9 shall contain the recommendation described in Section 3.04(b),
unless such recommendation has been withdrawn or modified in accordance with
Section 5.02(b). Each of the Company, Conopco and Sub shall promptly correct any
information provided by it for use in the Schedule 14D-9 if and to the extent
that such information shall have become false or misleading in any material
respect, and the Company shall take all steps necessary to amend or supplement
the Schedule 14D-9 and to cause the Schedule 14D-9 as so amended or supplemented
to be filed with the SEC and disseminated to the Company's shareholders, in each
case as and to the extent required by applicable Federal securities laws. The
Company shall provide Conopco and its counsel in writing with any comments the
Company or its counsel may receive from the
<PAGE>
SEC or its staff with respect to the Schedule 14D-9 promptly after the receipt
of such comments.
(c) In connection with the Offer, the Company shall cause its
transfer agent to furnish Sub promptly with mailing labels containing the names
and addresses of the record holders of Company Common Stock as of a recent date
and of those persons becoming record holders of Company Common Stock subsequent
to such date, together with copies of all lists of shareholders, security
position listings and computer files and all other information in the Company's
possession or control regarding the beneficial owners of Company Common Stock,
and shall furnish to Sub such information and assistance (including updated
lists of shareholders, security position listings and computer files) as Conopco
may reasonably request in communicating the Offer to the Company's shareholders.
Subject to the requirements of applicable Law (as defined in Section 3.05), and
except for such steps as are necessary to disseminate the Offer Documents and
any other documents necessary to consummate the Transactions, Conopco and Sub
shall hold in confidence the information contained in any such labels, listings
and files, shall use such information only in connection with the Offer and the
Merger and, if this Agreement shall be terminated, shall, upon request, deliver
to the Company all copies of such information then in their possession.
SECTION 1.03. THE MERGER. On the terms and subject to the
conditions set forth in this Agreement, and in accordance with the Vermont
Business Corporation Act (the "VBCA"), Sub shall be merged with and into the
Company at the Effective Time (as defined in Section 1.05). At the Effective
Time, the separate corporate existence of Sub shall cease and the Company shall
continue as the surviving corporation (the "SURVIVING CORPORATION"). At the
election of Conopco, any direct or indirect wholly owned subsidiary of Conopco
may be substituted for Sub as a constituent corporation in the Merger. In such
event, the parties shall execute an appropriate amendment to this Agreement in
order to reflect the foregoing.
SECTION 1.04. CLOSING. The closing (the "CLOSING") of the
Merger shall take place at the offices of Cravath, Swaine & Moore, 825 Eighth
Avenue, New York, New York 10019 at 10:00 a.m. on the second business day
following the satisfaction (or, to the extent permitted by Law, waiver by all
parties) of the conditions set forth in Section 7.02, or at such other place,
time and
<PAGE>
date as shall be agreed in writing between Conopco and the Company. The date on
which the Closing occurs is referred to in this Agreement as the "CLOSING DATE".
SECTION 1.05. EFFECTIVE TIME. Prior to the Closing, the
Company shall prepare, and on the Closing Date or as soon as practicable
thereafter the Surviving Corporation shall file with the Secretary of State of
the State of Vermont, articles of merger or other appropriate documents (in any
such case, the "ARTICLES OF MERGER") executed in accordance with the relevant
provisions of the VBCA and shall make all other filings or recordings required
under the VBCA. The Merger shall become effective at such time as the Articles
of Merger are duly filed with such Secretary of State, or at such other later
time as Conopco and the Company shall agree and specify in the Articles of
Merger (the time the Merger becomes effective being the "EFFECTIVE TIME").
SECTION 1.06. EFFECTS. The Merger shall have the
effects set forth in Section 11.06 of the VBCA.
SECTION 1.07. ARTICLES OF INCORPORATION AND BY-LAWS. (a) The
Articles of Incorporation of the Surviving Corporation shall be amended at the
Effective Time to read in the form of Exhibit A and, as so amended, such
Articles of Incorporation shall be the Articles of Incorporation of the
Surviving Corporation until thereafter changed or amended as provided therein or
by applicable Law.
(b) The By-laws of Sub as in effect immediately prior to the
Effective Time shall be the By-laws of the Surviving Corporation until
thereafter changed or amended as provided therein or by applicable Law.
SECTION 1.08. DIRECTORS. The directors of the Company
immediately prior to the Effective Time shall be the directors of the Surviving
Corporation who elect to remain on or rejoin the Company Board, together with
such other individuals appointed to the Company Board, all in accordance with
the provisions of Section 6.14(a).
SECTION 1.09. OFFICERS. The officers of the Company
immediately prior to the Effective Time shall be the officers of the Surviving
Corporation, until the earlier of their resignation or removal or until their
respective successors are duly elected or appointed and qualified, as the case
may be.
<PAGE>
ARTICLE II
EFFECT ON THE CAPITAL STOCK OF THE
CONSTITUENT CORPORATIONS; EXCHANGE OF CERTIFICATES
SECTION 2.01. EFFECT ON CAPITAL STOCK. At the Effective Time,
by virtue of the Merger and without any action on the part of the holder of any
shares of Company Common Stock or any shares of capital stock of Sub:
(a) CAPITAL STOCK OF SUB. Each issued and outstanding share of
capital stock of Sub shall be converted into and become ten thousand fully paid
and nonassessable shares of common stock, par value $0.01 per share, of the
Surviving Corporation.
(b) CANCELATION OF TREASURY STOCK AND CONOPCO-OWNED STOCK.
Each share of Company Common Stock that is owned by the Company, Conopco or Sub
shall no longer be outstanding and shall automatically be canceled and retired
and shall cease to exist, and no consideration shall be delivered or deliverable
in exchange therefor. Each share of Company Common Stock that is owned by any
subsidiary of the Company or Conopco (other than Sub) shall automatically be
converted into one fully paid and nonassessable share of common stock, par value
$0.01 per share, of the Surviving Corporation.
(c) CONVERSION OF COMPANY COMMON STOCK. (1) Subject to
Sections 2.01(b) and 2.01(d), each issued and outstanding share of Company
Common Stock shall be converted into the right to receive $43.60 in cash.
(2) The cash payable upon the conversion of shares of Company
Common Stock pursuant to this Section 2.01(c) is referred to collectively as the
"MERGER CONSIDERATION". As of the Effective Time, all such shares of Company
Common Stock shall no longer be outstanding and shall automatically be canceled
and retired and shall cease to exist, and each holder of a certificate
representing any such shares of Company Common Stock shall cease to have any
rights with respect thereto, except the right to receive Merger Consideration
upon surrender of such certificate in accordance with Section 2.02, without
interest.
(d) DISSENTERS RIGHTS. Notwithstanding anything in this
Agreement to the contrary, shares ("DISSENTERS SHARES") of Company Common Stock
that are outstanding immediately prior to the Effective Time and that are held
by any person who is entitled to demand and
<PAGE>
properly demands payment of the fair value of such Dissenters Shares pursuant
to, and who complies in all respects with, Chapter 13 of the VBCA ("CHAPTER 13")
shall not be converted into Merger Consideration as provided in Section 2.01(c),
but rather the holders of Dissenters Shares shall be entitled to payment of the
fair value of such Dissenters Shares in accordance with Chapter 13 of the VBCA;
PROVIDED, HOWEVER, that if any such holder shall fail to perfect or otherwise
lose such holder's right to receive payment of fair value under Chapter 13, then
the right of such holder to be paid the fair value of such holder's Dissenters
Shares shall cease and such Dissenters Shares shall be deemed to have been
converted as of the Effective Time into, and to have become exchangeable solely
for the right to receive, Merger Consideration as provided in Section 2.01(c).
The Company shall serve prompt notice to Conopco of any demands received by the
Company for appraisal of any shares of Company Common Stock. Prior to the
Effective Time, the Company shall not, without the prior written consent of
Conopco, participate in negotiations or proceedings with respect to such demands
or make any payment with respect to, or settle or offer to settle, any such
demands, or agree to do any of the foregoing.
SECTION 2.02. EXCHANGE OF CERTIFICATES. (a) PAYING AGENT.
Prior to the Effective Time, Conopco and the Company shall select a bank or
trust company to act as paying agent (the "PAYING AGENT") for the payment of
Merger Consideration upon surrender of certificates representing Company Common
Stock. Concurrently with the Effective Time, the Company shall provide to the
Paying Agent the amount of cash required to pay the aggregate Merger
Consideration (such cash being hereinafter referred to as the "EXCHANGE FUND").
(b) EXCHANGE PROCEDURE. As soon as reasonably practicable
after the Effective Time, the Paying Agent shall mail to each holder of record
of a certificate or certificates (the "CERTIFICATES") that immediately prior to
the Effective Time represented outstanding shares of Company Common Stock whose
shares were converted into the right to receive Merger Consideration pursuant to
Section 2.01, (i) a letter of transmittal (which shall specify that delivery
shall be effected, and risk of loss and title to the Certificates shall pass,
only upon delivery of the Certificates to the Paying Agent and shall be in such
form and have such other provisions as Conopco and the Company may reasonably
specify) and (ii) instructions for use in effecting the surrender of the
Certificates in exchange for Merger Consideration.
<PAGE>
Upon surrender of a Certificate for cancelation to the Paying Agent or to such
other agent or agents as may be appointed by Conopco, together with such letter
of transmittal, duly executed, and such other docu ments as may reasonably be
required by the Paying Agent, the holder of such Certificate shall be entitled
to receive in exchange therefor the amount of cash into which the shares of
Company Common Stock theretofore represented by such Certificate shall have been
converted pursuant to Section 2.01, and the Certificate so surrendered shall
forthwith be canceled. In the event of a transfer of ownership of Company Common
Stock that is not registered in the transfer records of the Company, payment may
be made to a person other than the person in whose name the Certificate so
surrendered is registered, if such Certificate shall be properly endorsed or
otherwise be in proper form for transfer and the person requesting such payment
shall pay any transfer or other taxes required by reason of the payment to a
person other than the registered holder of such Certificate or establish to the
satisfaction of Conopco that such tax has been paid or is not applicable. Until
surrendered as contemplated by this Section 2.02, each Certificate shall be
deemed at any time after the Effective Time to represent only the right to
receive upon such surrender the amount of cash, without interest, into which the
shares of Company Common Stock theretofore represented by such Certificate have
been converted pursuant to Section 2.01. No interest shall be paid or shall
accrue on the cash payable upon surrender of any Certificate.
(c) NO FURTHER OWNERSHIP RIGHTS IN COMPANY COMMON STOCK. The
Merger Consideration paid in accordance with the terms of this Article II upon
conversion of any shares of Company Common Stock shall be deemed to have been
paid in full satisfaction of all rights pertaining to such shares of Company
Common Stock, SUBJECT, HOWEVER, to the Surviving Corporation's obligation to pay
any dividends or make any other distributions with a record date prior to the
Effective Time that may have been declared or made by the Company on such shares
of Company Common Stock in accordance with the terms of this Agreement or prior
to the date of this Agreement and which remain unpaid at the Effective Time, and
after the Effective Time there shall be no further registration of transfers on
the stock transfer books of the Surviving Corporation of shares of Company
Common Stock that were outstanding immediately prior to the Effective Time. If,
after the Effective Time, any certificates formerly representing shares of
Company Common Stock are presented to the Surviving Corporation
<PAGE>
or the Paying Agent for any reason, they shall be canceled and exchanged as
provided in this Article II.
(d) TERMINATION OF EXCHANGE FUND. Any portion of the Exchange
Fund that remains undistributed to the holders of Company Common Stock for six
months after the Effective Time shall be delivered to Conopco, upon demand,
subject to compliance with any applicable abandoned property, escheat or similar
Law.
(e) NO LIABILITY. To the extent permitted by applicable Law,
none of Sub, Conopco, the Company or the Paying Agent shall be liable to any
person in respect of any cash from the Exchange Fund delivered to a public
official pursuant to any applicable abandoned property, escheat or similar Law.
If any Certificate has not been surrendered prior to five years after the
Effective Time (or immediately prior to such earlier date on which Merger
Consideration in respect of such Certificate would otherwise escheat to or
become the property of any Governmental Entity (as defined in Section 3.05)),
any such shares, cash, dividends or distributions in respect of such Certificate
shall, to the extent permitted by applicable Law, become the property of the
Surviving Corporation, free and clear of all claims or interest of any person
previously entitled thereto.
(f) INVESTMENT OF EXCHANGE FUND. The Paying Agent shall invest
any cash included in the Exchange Fund, as directed by Conopco, on a daily
basis. Any interest and other income resulting from such investments shall be
paid to Conopco.
(g) WITHHOLDING RIGHTS. The Surviving Corporation shall be
entitled to deduct and withhold from the consideration otherwise payable to any
holder of Company Common Stock pursuant to this Agreement such amounts as may be
required to be deducted and withheld with respect to the making of such payment
under the Code (as defined in Section 3.11), or under any provision of state,
local or foreign tax Law.
<PAGE>
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to Conopco and Sub as
follows:
SECTION 3.01. ORGANIZATION, STANDING AND POWER. Each of the
Company and each of its subsidiaries (the "COMPANY SUBSIDIARIES") is duly
organized, validly existing and in good standing under the laws of the
jurisdiction in which it is organized and has full corporate power and authority
and possesses all governmental franchises, licenses, permits, authorizations and
approvals necessary to enable it to own, lease or otherwise hold its properties
and assets and to conduct its businesses as presently conducted. The Company and
each Company Subsidiary is duly qualified to do business in each jurisdiction
where the nature of its business or their ownership or leasing of its properties
make such qualification necessary or the failure to so qualify has had or would
reasonably be expected to have a material adverse effect on the Company, a
material adverse effect on the ability of the Company to perform its obligations
under the Transaction Agreements or a material adverse effect on the ability of
the Company to consummate the Offer, the Merger and the other Transactions (a
"COMPANY MATERIAL ADVERSE EFFECT"). The Company has delivered to Conopco true
and complete copies of the Articles of Incorporation of the Company, as amended
to the date of this Agreement (as so amended, the "COMPANY CHARTER"), and the
By-laws of the Company, as amended to the date of this Agreement (as so amended,
the "COMPANY BY-LAWS"), and the comparable charter and organizational documents
of each Company Subsidiary, in each case as amended through the date of this
Agreement.
SECTION 3.02. COMPANY SUBSIDIARIES; EQUITY INTERESTS. (a) The
letter, dated as of the date of this Agreement, from the Company to Conopco and
Sub (the "COMPANY DISCLOSURE LETTER") lists each Company Subsidiary and its
jurisdiction of organization. All the outstanding shares of capital stock of
each Company Subsidiary have been validly issued and are fully paid and
nonassessable and, except as set forth in the Company Disclosure Letter, are
owned by the Company, by another Company Subsidiary or by the Company and
another Company Subsidiary, free and clear of all pledges, liens, charges,
mortgages, encumbrances and security interests of any kind or nature whatsoever
(collectively, "LIENS").
(b) Except for its interests in the Company Subsidiaries and
except for the ownership interests set forth in the Company Disclosure Letter,
the Company does not own, directly or indirectly, any capital stock, membership
interest, partnership interest, joint venture interest or other equity interest
in any person.
<PAGE>
SECTION 3.03. CAPITAL STRUCTURE. (a) The authorized capital
stock of the Company consists of 20,000,000 shares of Class A Common Stock and
3,000,000 shares of Class B Common Stock, as well as 900 shares of Company
Preferred Stock. The Board of Directors of the Company has duly authorized the
conversion of each issued and outstanding share of Class B Common Stock into one
share of Class A Common Stock and has authorized the mailing of a notice of
conversion pursuant to the Company Charter, upon receipt of the notice from
Conopco contemplated by Section 6.11(b), to all the holders of Class B Common
Stock. At the close of business on March 31, 2000, (i) 6,130,582 shares of Class
A Common Stock, 793,729 shares of Class B Common Stock and 900 shares of Company
Preferred Stock were issued and outstanding, (ii) 644,606 shares of Class A
Common Stock and 1,092 shares of Class B Common Stock were held by the Company
in its treasury, (iii) 1,298,627 shares of Class A Common Stock were subject to
outstanding Company Stock Options (as defined below) and 160,185 additional
shares of Class A Common Stock were reserved for issuance pursuant to the
Company Stock Plans (as defined below) (assuming for such purpose that, with
respect to the offering period in effect on the date hereof under the Company's
1986 Employee Stock Purchase Plan (the "1986 ESPP"), (A) all current
participants continue to contribute at current levels and (B) the purchase price
of the shares purchasable in respect of such offering period is determined to be
85% of the fair market value of shares of Class A Common Stock on the first day
of such offering period, and giving effect to such offering period), (iv)(A)
7,400,000 shares of Class A Common Stock were reserved for issuance in
connection with the rights (the "CLASS A RIGHTS") issued pursuant to the Rights
Agreement dated as of July 30, 1998, as amended from time to time (the "CLASS A
RIGHTS AGREEMENT"), between the Company and American Stock Transfer & Trust
Company, and (B) 900,000 shares of Class B Common Stock were reserved for
issuance in connection with the rights (the "CLASS B RIGHTS" and, together with
the Class A Rights, the "COMPANY RIGHTS") issued pursuant to the Rights
Agreement dated as of July 30, 1998, as amended from time to time (together with
the Class A Rights Agreement, the "COMPANY RIGHTS AGREEMENTS"), between the
Company and American Stock Transfer & Trust Company and (v) 125,000 shares of
Class A Common Stock reserved for issuance under the warrants held by Gordian
Group, L.P. (the "GORDIAN GROUP WARRANTS"). Except as set forth above and except
for the shares of Class A Common Stock reserved for issuance upon either (i) the
exercise of the option granted to Conopco pursuant to the Stock Option Agreement
or (ii) the
<PAGE>
conversion of shares of Class B Common Stock, at the close of business on March
31, 2000, no shares of capital stock or other voting securities of the Company
were issued, reserved for issuance or outstanding. There are no outstanding
Company SARs (as defined below) that were not granted in tandem with a related
Company Stock Option. All outstanding shares of Company Capital Stock are, and
all such shares that may be issued prior to the Effective Time (including shares
of Company Capital Stock that shall be deemed to be shares of Class A Common
Stock upon the automatic conversion of shares of Class B Common Stock) will be
when issued, duly authorized, validly issued, fully paid and nonassessable and
not subject to or issued in violation of any purchase option, call option, right
of first refusal, preemptive right, subscription right or any similar right
under any provision of the VBCA, the Company Charter, the Company By-laws or any
Contract (as defined in Section 3.05) to which the Company is a party or
otherwise bound. There are not any bonds, debentures, notes or other
indebtedness of the Company having the right to vote (or convertible into, or
exchangeable for, securities having the right to vote) on any matters on which
holders of Company Common Stock may vote ("VOTING COMPANY DEBT"). Except as set
forth above or in Section 3.03(b), as of the date of this Agreement, there are
not any options, warrants, rights, convertible or exchangeable securities,
"phantom" stock rights, stock appreciation rights, stock-based performance
units, commitments, Contracts, arrangements or undertakings of any kind to which
the Company or any Company Subsidiary is a party or by which any of them is
bound (i) obligating the Company or any Company Subsidiary to issue, deliver or
sell, or cause to be issued, delivered or sold, additional shares of capital
stock or other equity interests in, or any security convertible or exercisable
for or exchangeable into any capital stock of or other equity interest in, the
Company or any Company Subsidiary or any Voting Company Debt, (ii) obligating
the Company or any Company Subsidiary to issue, grant, extend or enter into any
such option, warrant, call, right, security, commitment, Contract, arrangement
or undertaking or (iii) that give any person the right to receive any economic
benefit or right similar to or derived from the economic benefits and rights
accruing to holders of Company Capital Stock. Except as set forth in Section
6.11, as of the date of this Agreement, there are not any outstanding
contractual obligations of the Company or any Company Subsidiary to repurchase,
redeem or otherwise acquire any shares of capital stock of the Company or any
Company Subsidiary. The Company has delivered to Conopco complete and correct
<PAGE>
copies of the Company Rights Agreements, as amended to the date of this
Agreement.
(b) The authorized capital stock of The American Company for
Ice Cream Manufacturing E.I. Ltd. ("ACICM") consists of 18,000 Ordinary Shares
(the "SUBSIDIARY ORDINARY SHARES") and 18,000 Preferred Shares (the "SUBSIDIARY
PREFERRED SHARES"), each with a nominal value of 1.00 NIS. At the close of
business on March 31, 2000, 12,000 Subsidiary Ordinary Shares and 18,000
Subsidiary Preferred Shares were issued and outstanding, and 3,333 Subsidiary
Ordinary Shares reserved for issuance under options and 1,200 Subsidiary
Ordinary Shares were subject to outstanding options to purchase Subsidiary
Ordinary Shares and Subsidiary Preferred Shares, respectively, and no other
Subsidiary Ordinary Shares or Subsidiary Preferred Shares were issued,
outstanding or reserved for issuance. As of such date, Ben & Jerry's Homemade,
B.V., a wholly owned subsidiary of the Company, owned 18,000 Subsidiary
Preferred Shares.
(c) For purposes of this Agreement:
"COMPANY STOCK OPTION" means any option to
purchase Company Common Stock granted under any Company
Stock Plan.
"COMPANY SAR" means any stock appreciation right or other
award linked to the price of Company Common Stock and granted under any
Company Stock Plan.
"COMPANY STOCK PLANS" means the Company's 1995 Equity
Incentive Plan, 1999 Equity Incentive Plan, 1985 Stock Option Plan,
1986 Employee Stock Purchase Plan, 1992 Non-Employee Directors'
Restricted Stock Plan and 1995 Non-Employee Directors' Plan for Stock
in Lieu of Director's Cash Retainer, all separate stock option
agreements under which options were issued in 1999 (the form of which
is set forth in the Company Disclosure Letter) and the provisions of
employment agreements for officers (disclosed in the Company Disclosure
Letter) that include certain terms of options granted under the
Company's 1985 Stock Option Plan and 1995 Equity Incentive Plan.
SECTION 3.04. AUTHORITY; EXECUTION AND DELIVERY;
ENFORCEABILITY. (a) The Company has all requisite corporate power and authority
to execute and deliver each Transaction Agreement to which it is a party and,
subject, in the case of the Merger, to receipt of the Company Shareholder
Approval (as defined in
<PAGE>
Section 3.04(c)), to consummate the Transactions. The execution and delivery by
the Company of the Transaction Agreements to which it is a party and the
consummation by the Company of the Transactions have been duly authorized by all
necessary corporate action on the part of the Company, subject, in the case of
the Merger, to receipt of the Company Shareholder Approval. The Company has duly
executed and delivered each Transaction Agreement to which it is a party, and
each Transaction Agreement to which it is a party constitutes its legal, valid
and binding obligation, enforceable against it in accordance with its terms,
subject, in the case of the Merger, to receipt of the Company Shareholder
Approval.
(b) The Company Board, at a meeting duly called and held, duly
adopted resolutions (i) adopting this Agreement, (ii) approving the other
Transaction Agreements, the Offer, the Merger and the other Transactions, (iii)
determining that the terms of the Offer and the Merger are fair to and in the
best interests of the shareholders of the Company, (iv) recommending that the
holders of Company Common Stock accept the Offer and tender their shares of
Company Common Stock pursuant to the Offer and (v) recommending that the
Company's shareholders approve this Agreement. No state takeover statute or
similar statute or regulation applies or purports to apply to the Company with
respect to this Agreement and the other Transaction Agreements, the Offer, the
Merger or any other Transaction.
(c) The only vote of holders of any class or series of Company
Capital Stock necessary to approve this Agreement and the Merger is the
approval, by person or proxy, of this Agreement by the holders of a majority of
the outstanding shares of Class A Common Stock (the "COMPANY SHAREHOLDER
APPROVAL"). The affirmative vote of the holders of Company Capital Stock, or any
of them, is not necessary to approve any Transaction Agreement other than this
Agreement or consummate the Offer or any Transaction other than the Merger.
SECTION 3.05. NO CONFLICTS; CONSENTS. (a) Except as set forth
in the Company Disclosure Letter, the execution and delivery by the Company of
each Transaction Agreement to which it is a party do not, and the consummation
of the Offer, the Merger and the other Transactions and compliance with the
terms hereof and thereof will not, conflict with, or result in any violation of
or default (with or without notice or lapse of time, or both) under, or give
rise to a right of
<PAGE>
termination, cancelation or acceleration of any obligation or to loss of a
material benefit under, or to increased, additional, accelerated or guaranteed
rights or entitlements of any person under, or result in the creation of any
Lien upon any of the properties or assets of the Company or any Company
Subsidiary under, any provision of (i) the Company Charter, the Company By-laws
or the comparable charter or organizational documents of any Company Subsidiary,
(ii) any contract, lease, license, indenture, note, bond, agreement, permit,
concession, franchise or other instrument (a "CONTRACT") to which the Company or
any Company Subsidiary is a party or by which any of their respective properties
or assets is bound or (iii) subject to the filings and other matters referred to
in Section 3.05(b), any judgment, order or decree ("JUDGMENT") or statute, law
(including common law), ordinance, rule or regulation ("LAW") applicable to the
Company or any Company Subsidiary or their respective properties or assets,
other than, in the case of clause (iii) above, any such items that, individually
or in the aggregate, have not had and would not reasonably be expected to have a
Company Material Adverse Effect or result in a liability to the Company and the
Company Subsidiaries, taken as a whole, in excess of $1,000,000.
(b) No consent, approval, license, permit, order or
authorization ("CONSENT") of, or registration, declaration or filing with, or
permit from, any Federal, state, local or foreign government or any court of
competent jurisdiction, administrative agency or commission or other
governmental authority or instrumentality, domestic or foreign (a "GOVERNMENTAL
ENTITY") is required to be obtained or made by or with respect to the Company or
any Company Subsidiary in connection with the execution, delivery and
performance of any Transaction Agreement to which it is a party or the
consummation of the Transactions, other than (i) compliance with and filings
under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the
"HSR ACT"), (ii) the filing with the SEC of (A) the Schedule 14D-9, (B) a proxy
or information statement relating to the approval of this Agreement by the
Company's shareholders (the "PROXY STATEMENT"), (C) the Information Statement
and (D) such reports under Section 13 of the Securities Exchange Act of 1934, as
amended (the "EXCHANGE ACT") as may be required in connection with this
Agreement and the other Transaction Agreements, the Offer, the Merger and the
other Transactions, (iii) the filing of the Articles of Merger with the
Secretary of State of the State of Vermont and
<PAGE>
appropriate documents with the relevant authorities of the other jurisdictions
in which the Company is qualified to do business, (iv) compliance with and such
filings as may be required under applicable Environmental Laws (as defined in
Section 3.14), (v) such filings as may be required in connection with the Taxes
described in Section 6.09, (vi) as may be required under any state securities
laws and (vii) such other items as are set forth in the Company Disclosure
Letter.
(c) The Company Board has taken all action necessary to (i)
render the Company Rights inapplicable to this Agreement and the other
Transaction Agreements, the Offer, the Merger and the other Transactions and
(ii) ensure that (A) neither Conopco nor Sub nor any of its affiliates or
associates is or will become an "Acquiring Person" (as defined in each of the
Company Rights Agreements) by reason of any Transaction Agreement, the Offer,
the Merger or any other Transaction, and (B) a "Distribution Date" (as defined
in each of the Company Rights Agreements) shall not occur by reason of any
Transaction Agreement, the Offer, the Merger or any other Transaction.
SECTION 3.06. SEC DOCUMENTS; UNDISCLOSED LIABILITIES. The
Company has filed all reports, schedules, forms, statements and other documents
required to be filed by the Company with the SEC since December 28, 1997 (the
"COMPANY SEC DOCUMENTS"). As of its respective date, each Company SEC Document
complied in all material respects with the requirements of the Exchange Act or
the Securities Act of 1933, as amended (the "SECURITIES ACT"), as the case may
be, and the rules and regulations of the SEC promulgated thereunder applicable
to such Company SEC Document, and did not contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading. Except to the extent that
information contained in any Company SEC Document has been revised or superseded
by a later filed Company SEC Document, none of the Company SEC Documents
contains any untrue statement of a material fact or omits to state any material
fact required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading. The consolidated financial statements of the Company included in the
Company SEC Documents comply as to form in all material respects with applicable
accounting requirements and the published rules and regulations of
<PAGE>
the SEC with respect thereto, have been prepared in accordance with generally
accepted accounting principles ("GAAP") (except, in the case of unaudited
statements, as permitted by Form 10-Q of the SEC) applied on a consistent basis
during the periods involved (except as may be indicated in the notes thereto)
and fairly present the consolidated financial position of the Company and its
consolidated subsidiaries as of the dates thereof and the consolidated results
of their operations and cash flows for the periods then ended (subject, in the
case of unaudited statements, to normal year-end audit adjustments). Except as
set forth on the face of, or in the notes to, the most recent balance sheet of
the Company included in the Filed Company SEC Documents (as defined in Section
3.08), neither the Company nor any Company Subsidiary had, as of such date, any
liabilities or obligations of any nature (whether accrued, absolute, contingent
or otherwise) required by GAAP to be set forth on a consolidated balance sheet
or in the notes thereto.
SECTION 3.07. INFORMATION SUPPLIED. None of the information
supplied or to be supplied by the Company for inclusion or incorporation by
reference in (i) the Offer Documents, the Schedule 14D-9 or the Information
Statement will, at the time such document is filed with the SEC, at any time it
is amended or supplemented or at the time it is first published, sent or given
to the Company's shareholders, contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or necessary to
make the statements therein not misleading, or (ii) the Proxy Statement will, at
the date it is first mailed to the Company's shareholders or at the time of the
Company Shareholders Meeting (as defined in Section 6.01), contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements therein, in light of
the circumstances under which they are made, not misleading. The Schedule 14D-9,
the Information Statement and the Proxy Statement will comply as to form in all
material respects with the requirements of the Exchange Act and the rules and
regulations thereunder, except that no representation or warranty is made by the
Company with respect to statements made or incorporated by reference therein
based on information supplied by Conopco or Sub in writing specifically for
inclusion or incorporation by reference therein.
SECTION 3.08. ABSENCE OF CERTAIN CHANGES OR EVENTS. Except as
disclosed in the Company SEC Documents filed and publicly available on or prior
to April 7, 2000
<PAGE>
(the "FILED COMPANY SEC DOCUMENTS") or in the Company Disclosure Letter, from
the date of the most recent audited financial statements included in the Filed
Company SEC Documents to the date of this Agreement, the Company has conducted
its business only in the ordinary course consistent with recent past practice,
and during such period there has not been:
(i) any event, change, effect or development that,
individually or in the aggregate, has had or would reasonably be
expected to have a Company Material Adverse Effect;
(ii) any declaration, setting aside or payment of any dividend
or other distribution (whether in cash, stock or property) with respect
to any Company Capital Stock or any repurchase for value by the Company
of any Company Capital Stock;
(iii) any split, combination or reclassification of any
Company Capital Stock or any issuance or the authorization of any
issuance of any other securities in respect of, in lieu of or in
substitution for shares of Company Capital Stock, other than the
authorization by the Company Board to convert all the outstanding
shares of Class B Common Stock into shares of Class A Common Stock and
to redeem the Company Preferred Stock;
(iv) (A) any granting by the Company or any Company Subsidiary
to any director or officer of the Company or any Company Subsidiary of
any increase in compensation, except in the ordinary course of business
consistent with prior practice or as was required under employment or
consulting agreements in effect as of the date of the most recent
audited financial statements included in the Filed Company SEC
Documents, (B) any granting by the Company or any Company Subsidiary to
any such director or officer of any increase in severance or
termination pay, except as was required under any employment,
consulting, severance or termination agreements in effect as of the
date of the most recent audited financial statements included in the
Filed Company SEC Documents, or (C) any entry by the Company or any
Company Subsidiary into, or any amendment of, any employment,
consulting, deferred compensation, indemnification, severance or
termination agreement with any such director or officer;
<PAGE>
(v) any change in accounting methods, principles or practices
by the Company or any Company Subsidiary materially affecting the
consolidated assets, liabilities or results of operations of the
Company, except insofar as may have been required by a change in GAAP;
(vi) any material elections with respect to Taxes by the
Company or any Company Subsidiary or settlement or compromise by the
Company or any Company Subsidiary of any material Tax liability or
refund;
(vii) (A) any acquisition by the Company or any Company
Subsidiary by merging or consolidating with, or by purchasing a
substantial equity interest in or substantial portion of the assets of,
or by any other manner, any business or any corporation, partnership,
joint venture, association or other business organization or division
thereof or (B) any acquisition by the Company or any Company Subsidiary
of any assets (other than inventory) that are material, individually or
in the aggregate, to the Company and the Company Subsidiaries;
(viii) any sale, lease, license, encumbrance or other
disposition of assets of the Company or any Company Subsidiary in
excess of $500,000 in the aggregate, other than sales of products to
customers and immaterial dispositions of personal property and other
than any encumbrance created in connection with financing the purchase
of equipment and other property, in each case in the ordinary course of
business consistent with past practice;
(ix) any incurrence of capital expenditures by the Company or
any Company Subsidiary in excess of $500,000 individually, or in excess
of $1 million in the aggregate; or
(x) any other transaction, contract or commitment of the
Company or any Company Subsidiary other than in the ordinary course of
business, consistent with past practice and on an arms' length basis.
SECTION 3.09. TAXES. (a) Except as disclosed in the Company
Disclosure Letter, each of the Company and each Company Subsidiary has timely
filed, or has caused to be timely filed on its behalf, all Tax Returns required
to be filed by it, and all such Tax Returns are
<PAGE>
true, complete and accurate. All Taxes shown to be due on such Tax Returns, or
otherwise owed, have been timely paid.
(b) Except as disclosed in the Company Disclosure Letter, the
most recent financial statements contained in the Filed Company SEC Documents
reflect an adequate reserve (in addition to any reserve for deferred Taxes
established to reflect timing differences between book and tax income) for all
Taxes payable by the Company and the Company Subsidiaries for all Taxable
periods and portions thereof through the date of such financial statements. No
deficiency with respect to any Taxes has been proposed, asserted or assessed
against the Company or any Company Subsidiary, and no requests for waivers of
the time to assess any such Taxes are pending.
(c) Except as disclosed in the Company Disclosure Letter, the
Federal income Tax Returns of the Company and each Company Subsidiary
consolidated in such Returns have been examined by and settled with the United
States Internal Revenue Service for all years through 1997. All material
assessments for Taxes due with respect to such completed and settled
examinations or any concluded litigation have been fully paid.
(d) Except as disclosed in the Company Disclosure Letter,
there are no material Liens for Taxes (other than for current Taxes not yet due
and payable) on the assets of the Company or any Company Subsidiary. Neither the
Company nor any Company Subsidiary is bound by any agreement with respect to
Taxes.
(e) Except as disclosed in the Company Disclosure Letter, no
claim has been made in the past five years by any authority in a jurisdiction
within which the Company or any Company Subsidiary does not file Tax Returns
that it is, or may be, subject to taxation by that jurisdiction.
(f) For purposes of this Agreement:
"TAXES" includes all forms of taxation, whenever created or
imposed, and whether of the United States or elsewhere, and whether imposed by a
local, municipal, governmental, state, foreign, Federal or other Governmental
Entity, or in connection with any agreement with respect to Taxes, including all
interest, penalties and additions imposed with respect to such amounts.
<PAGE>
"TAX RETURN" means all Federal, state, local, provincial and
foreign Tax returns, declarations, claims for refunds, statements, reports,
schedules, forms and information returns and any amended Tax return relating to
Taxes.
SECTION 3.10. ABSENCE OF CHANGES IN BENEFIT PLANS. Except as
disclosed in the Company Disclosure Letter, from the date of the most recent
audited financial statements included in the Filed Company SEC Documents to the
date of this Agreement, there has not been any adoption or amendment in any
material respect by the Company or any Company Subsidiary of any collective
bargaining agreement or any bonus, pension, profit sharing, deferred
compensation, incentive compensation, stock ownership, stock purchase, stock
option, phantom stock, retirement, thrift, savings, stock bonus, restricted
stock, cafeteria, paid time off, perquisite, fringe benefit, vacation,
severance, disability, death benefit, hospitalization, medical or other plan,
arrangement or understanding (whether or not legally binding) maintained,
sponsored or funded, in whole or in part, by the Company or any Company
Subsidiary providing benefits to any current or former employee, consultant,
officer or director of the Company or any Company Subsidiary (collectively,
"COMPANY BENEFIT PLANS"). Except as disclosed in the Filed Company SEC Documents
or in the Company Disclosure Letter, as of the date of this Agreement there are
not any consulting arrangements or agreements involving payments by the Company
of more that $50,000 per year or any employment, indemnification, severance or
termination agreements or arrangements between the Company or any Company
Subsidiary and any current or former employee, consultant, officer or director
of the Company or any Company Subsidiary (collectively, "COMPANY BENEFIT
AGREEMENTS").
SECTION 3.11. ERISA COMPLIANCE; EXCESS PARACHUTE PAYMENTS. (a)
The Company Disclosure Letter contains a list and brief description of all
"employee pension benefit plans" (as defined in Section 3(2) of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA")) (sometimes
referred to herein as "COMPANY PENSION PLANS"), "employee welfare benefit plans"
(as defined in Section 3(1) of ERISA) and all other Company Benefit Plans and
Company Benefit Agreements maintained, or contributed to, by the Company or any
Company Subsidiary or to which the Company or any Company Subsidiary is a party,
for the benefit of any current or former employees, consultants, officers or
directors of the Company or any Company Subsidiary. The
<PAGE>
Company has delivered to Conopco true, complete and correct copies of (i) each
Company Benefit Plan and Company Benefit Agreement (or, in the case of any
unwritten Company Benefit Plan or Company Benefit Agreement, a description
thereof), (ii) the most recent annual report on Form 5500 filed with the
Internal Revenue Service with respect to each Company Benefit Plan (if any such
report was required), (iii) the most recent summary plan description for each
Company Benefit Plan for which such summary plan description is required and
(iv) each trust agreement and group annuity contract relating to any Company
Benefit Plan.
(b) Except as disclosed in the Company Disclosure Letter, all
Company Pension Plans that are intended to be qualified under Section 401(a) of
the Internal Revenue Code of 1986, as amended (the "CODE"), have received
favorable determination letters from the Internal Revenue Service with respect
to "TRA" (as defined in Section 1 of Rev. Proc. 93- 39), to the effect that such
Company Pension Plans are qualified and exempt from Federal income taxes under
Sections 401(a) and 501(a), respectively, of the Code, and no such determination
letter has been revoked nor, to the knowledge of the Company, has revocation
been threatened, nor has any such Company Pension Plan been amended since the
date of its most recent determination letter or application therefor in any
respect that would adversely affect its qualification or materially increase its
costs. All Company Benefit Plans have been operated in all material respects in
accordance with their terms and in substantial compliance with all applicable
laws, including ERISA and the Code. There is no material pending or, to the
knowledge of the Company, threatened litigation relating to the Company Benefit
Plans.
(c) None of the Company, any Company Subsidiary or any entity
that is considered one employer with the Company under Section 4001 of ERISA or
Section 414 of the Code contributes or has ever contributed or been obligated to
contribute to any "multiemployer plan" within the meaning of Section 4001(a)(3)
of ERISA or to any defined benefit pension plan subject to Title IV of ERISA or
to Part 3 of Subpart B of Title I of ERISA. Neither the Company nor any Company
Subsidiary, nor to the knowledge of the Company or any Company Subsidiary, any
officer of the Company or any of its Company Subsidiary or any of the Company
Benefit Plans which are subject to ERISA, including the Company Pension Plans,
any trusts created thereunder or any trustee or administrator thereof, has
engaged in a "prohibited
<PAGE>
transaction" (as such term is defined in Section 406 of ERISA or Section 4975 of
the Code) or any other breach of fiduciary responsibility that could subject the
Company, any Company Subsidiary or any officer of the Company or any Company
Subsidiary to the tax or penalty on prohibited transactions imposed by such
Section 4975 or to any liability under Section 502(i) or 502(1) of ERISA. All
contributions and premiums required to be made under the terms of any Company
Benefit Plan as of the date hereof have been timely made or have been reflected
on the most recent consolidated balance sheet filed or incorporated by reference
in the Filed Company SEC Documents.
(d) With respect to any Company Benefit Plan that is an
employee welfare benefit plan, except as disclosed in the Company Disclosure
Letter, (i) no such Company Benefit Plan is unfunded or funded through a
"welfare benefits fund" (as such term is defined in Section 419(e) of the Code),
(ii) each such Company Benefit Plan that is a "group health plan" (as such term
is defined in Section 5000(b)(1) of the Code), complies with the applicable
requirements of Section 4980B(f) in all material respects of the Code and (iii)
each such Company Benefit Plan (including any such Plan covering retirees or
other former employees) may be amended or terminated without material liability
to the Company and the Company Subsidiary on or at any time after the Effective
Time. Neither the Company nor any Company Subsidiary has any obligations for
retiree health and life benefits under any Company Benefit Plan or Company
Benefit Agreement.
(e) Except as disclosed in the Company Disclosure Letter, the
consummation of the Offer and the Merger or any of the other Transactions will
not (i) entitle any employee, consultant, officer or director of the Company or
any Company Subsidiary to severance pay, (ii) accelerate the time of payment or
vesting or trigger any payment or funding (through a grantor trust or otherwise)
of compensation or benefits under, increase the amount payable or trigger any
other material obligation pursuant to, any of the Company Benefit Plans or
Company Benefit Agreements or (iii) result in any breach or violation of, or a
default under, any of the Company Benefit Plans or Company Benefit Agreements.
(f) Other than payments that may be made to the persons listed
in the Company Disclosure Letter (the "PRIMARY COMPANY EXECUTIVES"), any amount
or economic benefit that could be received (whether in cash or
<PAGE>
property or in respect of the vesting of property) as a result of the Offer and
the Merger or any other Transaction (including as a result of termination of
employment on or following the Effective Time) by any employee, officer or
director of the Company or any of its affiliates who is a "disqualified
individual" (as such term is defined in proposed Treasury Regulation Section
1.280G-1) under any Company Benefit Plan or Company Benefit Agreement or
otherwise would not be characterized as an "excess parachute payment" (as
defined in Section 280G(b)(1) of the Code), and no disqualified individual is
entitled to receive any additional payment from the Company or any Company
Subsidiary or any other person in the event that the excise tax under Section
4999 of the Code is imposed on such disqualified individual. Set forth in the
Company Disclosure Letter is (i) the estimated maximum amount that could be paid
to each Primary Company Executive as a result of the Merger and the other
Transactions under all Company Benefit Plans and Company Benefit Agreements and
(ii) the "base amount" (as defined in Section 280G(b)(3) of the Code) for each
Primary Company Executive calculated as of the date of this Agreement.
SECTION 3.12. LITIGATION. Except as disclosed in the Company
Disclosure Letter, there is no suit, action or proceeding pending or, to the
knowledge of the Company, threatened against or affecting the Company or any
Company Subsidiary (and the Company is not aware of any basis for any such suit,
action or proceeding) that, individually or in the aggregate, has resulted in or
would reasonably be expected to result in a Company Material Adverse Effect or
in a liability to the Company and the Company Subsidiaries, taken as a whole, in
excess of $1,000,000, nor is there any Judgment outstanding against the Company
or any Company Subsidiary that, individually or in the aggregate, has resulted
in or would reasonably be expected to result in a Company Material Adverse
Effect or in a liability to the Company and the Company Subsidiaries, taken as a
whole, in excess of $1,000,000.
SECTION 3.13. COMPLIANCE WITH APPLICABLE LAWS. Except as
disclosed in the Company Disclosure Letter, the Company and the Company
Subsidiaries are in compliance in all material respects with all applicable
Laws, including those relating to occupational health and safety. Except as set
forth in the Company Disclosure Letter, neither the Company nor any Company
Subsidiary has received any written communication during the past two years from
a Governmental Entity that alleges that the Company or a
<PAGE>
Company Subsidiary is not in compliance with any applicable Law. This Section
3.13 does not relate to matters with respect to Taxes, which are the subject of
Section 3.09, or to environmental matters, which are the subject of Section
3.14.
SECTION 3.14. ENVIRONMENTAL MATTERS. (a) Except as set forth
in the Company Disclosure Letter, neither the Company nor any Company Subsidiary
has (i) placed, held, located, released, transported or disposed of any
Hazardous Substances (as defined below) on, under, from or at any of the
Company's or any Company Subsidiary's properties or any other properties, except
for those actions that individually or in the aggregate have not resulted in, or
would not reasonably be expected to result in, material liability to the Company
and the Company Subsidiaries, (ii) any knowledge or reason to know of the
presence of any Hazardous Substances on, under or at any Company Subsidiary's
properties or any other property but arising from the Company's or any Company
Subsidiary's properties, other than a reason to know of such presences that
individually or in the aggregate have not resulted in, or would not reasonably
be expected to result in, material liability to the Company and the Company
Subsidiaries, or (iii) received any written notice (A) of any violation of any
statute, law, ordinance, regulation, rule, judgment, decree or order of any
Governmental Entity relating to any matter of pollution, protection of the
environment, environmental regulation or control or regarding Hazardous
Substances on or under any of the Company's or any Company Subsidiary's
properties or any other properties (collectively, "ENVIRONMENTAL LAWS"), (B) of
the institution or pendency of any suit, action, claim, proceeding or
investigation by any Governmental Entity or any third party in connection with
any such violation, (C) requiring the response to or remediation of Hazardous
Substances at or arising from any of the Company's or any Company Subsidiary's
properties or any other properties, or (D) demanding payment for response to or
remediation of Hazardous Substances at or arising from any of the Company's or
any Company Subsidiary's properties or any other properties. For purposes of
this Agreement, the term "HAZARDOUS SUBSTANCE" shall mean any toxic or hazardous
materials or substances, including asbestos, buried contaminants, chemicals,
flammable explosives, radioactive materials, petroleum and petroleum products
and any substances defined as, or included in the definition of, "hazardous
substances", "hazardous wastes", "hazardous materials" or "toxic substances"
under any Environmental Law.
<PAGE>
(b) Except as set forth in the Company Disclosure Letter, no
Environmental Law imposes any obligation upon the Company or any Company
Subsidiary arising out of or as a condition to any Transaction, including,
without limitation, any requirement to modify or to transfer any permit or
license, any requirement to file any notice or other submission with any
Governmental Entity, the placement of any notice, acknowledgment or covenant in
any land records, or the modification of or provision of notice under any
agreement, consent order or consent decree. No Lien has been placed upon any of
the Company's or its subsidiaries' properties under any Environmental Law.
SECTION 3.15. CONTRACTS; DEBT INSTRUMENTS. (a) Except as
disclosed in the Company Disclosure Letter, (i) there is no Contract that has a
future liability to the Company and the Company Subsidiaries, taken as a whole,
in excess of $200,000 per annum or $500,000 over the lifetime of such Contract
(a "MATERIAL CONTRACT"), and (ii) neither the Company nor any Company Subsidiary
is the lessee under any lease (whether of real or personal property) that
requires annual payments in excess of $200,000 or $500,000 over the lifetime of
such lease. Neither the Company nor any Company Subsidiary is in violation in
any material respect of or in default in any material respect under (nor does
there exist any condition which upon the passage of time or the giving of notice
would cause such a violation of or default under) any Material Contract to which
it is a party or by which it or any of its properties or assets is bound, and,
to the knowledge of the Company, no other party to any such Material Contract is
(with or without the lapse of time or the giving of notice, or both) in breach
or default in any material respect thereunder.
(b) The Company Disclosure Letter sets forth (i) a list of all
loan or credit agreements, notes, bonds, mortgages, indentures and other
agreements and instruments pursuant to which any indebtedness of the Company or
any Company Subsidiary in an aggregate principal amount in excess of $100,000 is
outstanding or may be incurred and (ii) the respective principal amounts
currently outstanding thereunder.
(c) The Company Filed SEC Documents include as exhibits
thereto all Contracts that are required to be filed by the Company under the
Exchange Act.
SECTION 3.16. INTELLECTUAL PROPERTY. The Company Disclosure
Letter sets forth a summary
<PAGE>
description of all patents, patent rights, trademarks, trademark rights, trade
names, trade name rights, service marks, service mark rights, copyrights and
other proprietary intellectual property rights and proprietary computer programs
necessary to produce the products of the Company and the Company Subsidiaries
and to conduct the business of the Company and the Company Subsidiaries as
currently conducted (collectively, "INTELLECTUAL PROPERTY RIGHTS"). The Company
and the Company Subsidiaries own, or are validly licensed or otherwise have the
right to use, all Intellectual Property Rights necessary to conduct their
respective businesses as currently conducted with no infringement of, or
conflict with, the rights of any others. Except as set forth in the Company
Disclosure Letter, no claims are pending or, to the knowledge of the Company,
threatened that the Company or any Company Subsidiary is infringing or otherwise
adversely affecting the rights of any person with regard to any Intellectual
Property Right. Except as set forth in the Company Disclosure Letter, neither
the Company nor any Company Subsidiary has granted to any third party a license
or other right to any Intellectual Property Right. To the knowledge of the
Company, except as set forth in the Company Disclosure Letter, no person is
infringing the rights of the Company or any Company Subsidiary with respect to
any Intellectual Property Right.
SECTION 3.17. LABOR MATTERS. Except as set forth in the
Company Disclosure Letter, there are no collective bargaining or other labor
union agreements to which the Company or any Company Subsidiary is a party or by
which any of them is bound. Since December 31, 1996, neither the Company nor any
Company Subsidiary has encountered any labor union organizing activity, or had
any actual or threatened employee strikes, work stoppages, slowdowns or
lockouts.
SECTION 3.18. TITLE TO PROPERTIES. (a) Except as set forth in
the Company Disclosure Letter, each of the Company and each Company Subsidiary
has good and marketable title to, or valid leasehold interests in, all its
respective real properties except for such as are no longer used or useful in
the conduct of its respective business or as have been disposed of in the
ordinary course of business and assets which are material to the conduct of the
business of the Company and the Company Subsidiaries ("MATERIAL ASSETS"). All
such properties and Material Assets, other than properties and Material Assets
in which the Company or any Company Subsidiary has leasehold interests, are free
and clear of all Liens
<PAGE>
other than (i) Liens imposed by Law that were incurred in the ordinary course of
business such as carrier's, warehousemen's and mechanic's Liens, which Liens do
not materially detract from the value of such properties and Material Assets or
materially impair the use thereof in the operation of the respective businesses
of the Company and the Company Subsidiaries, (ii) Liens arising pursuant to
purchase money security interests relating to indebtedness representing an
amount no greater than the purchase price of such properties or Material Assets,
(iii) Liens for Taxes and assessments not yet due and payable or Liens for Taxes
being contested in good faith and by appropriate proceedings for which adequate
reserves have been established, or (iv) Liens set forth in the Company
Disclosure Letter. The Company Disclosure Letter sets forth a complete list of
all real property owned by the Company or any Company Subsidiary.
(b) Except as set forth in the Company Disclosure Letter, each
of the Company and each Company Subsidiary has complied in all material respects
with the terms of all leases with annual payments in excess of $50,000 to which
it is a party and under which it is in occupancy, and all such leases are in
full force and effect. Each of the Company and each Company Subsidiary enjoys
peaceful and undisturbed possession under all such leases. To the knowledge of
the Company, no other party to any of such leases is (with or without the lapse
of time or the giving of notice, or both) in breach or default in any material
respect thereunder.
SECTION 3.19. EQUIPMENT. Except as set forth in the Company
Disclosure Letter, all (i) the material equipment of the Company and the Company
Subsidiaries, and (ii) the equipment currently in use that, in the aggregate, is
necessary to produce the products of the Company and the Company Subsidiaries
(other than the Company's novelty product line and related equipment) or
otherwise necessary to conduct the business of the Company and the Company
Subsidiaries as currently conducted, is in good operating condition and repair
(ordinary wear and tear excepted), taking into account its age and use, and is
available for immediate use in the business of the Company and the Company
Subsidiaries.
SECTION 3.20. SUPPLIERS. Except as set forth in the Company
Disclosure Letter, since January 1, 2000, there has not been (i) any material
adverse change in the business relationship of the Company or any Company
Subsidiary with any of their top 20 suppliers or (ii) any material adverse
change in the terms of the supply
<PAGE>
agreements or related arrangements with any such supplier. Except as set forth
in the Company Disclosure Letter, to the knowledge of the Company, the
Transactions will not adversely affect its or any Company Subsidiary's business
relationship with any of their top 20 suppliers, other than as a result of a
pre-existing relationship with Conopco or Sub.
SECTION 3.21. BROKERS; SCHEDULE OF FEES AND EXPENSES. No
broker, investment banker, financial advisor or other person, other than Gordian
Group, L.P., the fees and expenses of which will be paid by the Company, is
entitled to any broker's, finder's, financial advisor's or other similar fee or
commission in connection with the Transactions based upon arrangements made by
or on behalf of the Company. The estimated fees and expenses incurred and to be
incurred by the Company in connection with the Offer, the Merger and the other
Transactions (including the fees of Gordian Group, L.P. and the fees of the
Company's legal counsel) are set forth in the Company Disclosure Letter. The
Company has furnished to Conopco a true and complete copy of all agreements
between the Company and Gordian Group, L.P. relating to the Offer, the Merger
and the other Transactions.
SECTION 3.22. OPINION OF FINANCIAL ADVISOR. The Company has
received the opinion of Gordian Group, L.P., dated the date of this Agreement,
to the effect that, as of such date, the consideration to be received in the
Offer and the Merger by the holders of Company Common Stock is fair from a
financial point of view, a signed copy of which opinion has been or promptly
upon receipt will be, delivered to Conopco.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF CONOPCO AND SUB
Conopco and Sub jointly and severally represent and warrant to
the Company as follows:
SECTION 4.01. ORGANIZATION, STANDING AND POWER. Each of
Conopco and Sub is duly organized, validly existing and in good standing under
the laws of the jurisdiction in which it is organized and has full corporate
power and authority to conduct its businesses as presently conducted.
<PAGE>
SECTION 4.02. SUB. (a) Since the date of its incorporation,
Sub has not carried on any business or conducted any operations other than the
execution of the Transaction Agreements to which it is a party, the performance
of its obligations hereunder and thereunder and matters ancillary thereto. Sub
was incorporated solely for the consummation of the Transactions.
(b) The authorized capital stock of Sub consists of 1,000
shares of common stock, par value $0.01 per share, all of which have been
validly issued, are fully paid and nonassessable and are owned by Conopco free
and clear of any Lien.
SECTION 4.03. AUTHORITY; EXECUTION AND DELIVERY;
ENFORCEABILITY. Each of Conopco and Sub has all requisite corporate power and
authority to execute and deliver each Transaction Agreement to which it is a
party and to consummate the Transactions. The execution and delivery by each of
Conopco and Sub of each Transaction Agreement to which it is a party and the
consummation by it of the Transactions have been duly authorized by all
necessary corporate action on the part of Conopco and Sub. Conopco, as sole
shareholder of Sub, has approved this Agreement. No vote of Conopco's
shareholders is required to approve this Agreement or the transactions
contemplated hereby. Each of Conopco and Sub has duly executed and delivered
each Transaction Agreement to which it is a party, and each Transaction
Agreement to which it is a party constitutes its legal, valid and binding
obligation, enforceable against it in accordance with its terms.
SECTION 4.04. CONSENTS. No Consent of, or registration,
declaration or filing with, any Governmental Entity is required to be obtained
or made by or with respect to Conopco or any of its subsidiaries in connection
with the execution, delivery and performance of any Transaction Agreement to
which Conopco or Sub is a party or the consummation of the Transactions, other
than (i) compliance with and filings under the HSR Act, (ii) the filing with the
SEC of (A) the Offer Documents and (B) such reports under Sections 13 and 16 of
the Exchange Act as may be required in connection with this Agreement, and the
other Transaction Agreements, the Offer, the Merger and the other Transactions,
(iii) the filing of the Articles of Merger with the Secretary of State of the
State of Vermont, (iv) compliance with and such filings as may be required under
applicable Environmental Laws and (v) such filings as may be
<PAGE>
required in connection with the Taxes described in Section 6.09.
SECTION 4.05. INFORMATION SUPPLIED. (a) None of the
information supplied or to be supplied by Conopco or Sub for inclusion or
incorporation by reference (i) in the Offer Documents, the Schedule 14D-9 or the
Information Statement will, at the time such document is filed with the SEC, at
any time it is amended or supplemented or at the time it is first published,
sent or given to the Company's shareholders, contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading, or (ii) in the Proxy
Statement will, at the date it is first mailed to the Company's shareholders or
at the time of the Company Shareholders Meeting, contain any untrue statement of
a material fact or omit to state any material fact required to be stated therein
or necessary in order to make the statements therein, in light of the
circumstances under which they are made, not misleading.
(b) The Offer Documents will comply as to form in all material
respects with the requirements of the Exchange Act and the rules and regulations
thereunder, except that no representation is made by Conopco or Sub with respect
to statements made or incorporated by reference therein based on information
supplied by the Company for inclusion or incorporation by reference therein.
SECTION 4.06. BROKERS. Except as set forth in the letter,
dated as of the date of this Agreement, from Conopco to the Company (the
"CONOPCO DISCLOSURE LETTER") no broker, investment banker, financial advisor or
other person, other than Morgan Stanley & Co. Incorporated, the fees and
expenses of which will be paid by Conopco, is entitled to any broker's,
finder's, financial advisor's or other similar fee or commission in connection
with the Transactions based upon arrangements made by or on behalf of Conopco.
SECTION 4.07. CONOPCO PLANS. Conopco has previously disclosed
to the Company or its counsel each agreement or understanding between Conopco or
its affiliates, on the one hand, and any member of the Company Board or of the
Company's Office of the Chief Executive Officer (the "OCEO") or the Chief
Executive Officer of the Company (the "CEO"), on the other hand, regarding (i)
any plans that Conopco or its affiliates may have to cause to be terminated the
employment, or
<PAGE>
cause to be changed the responsibilities, of the CEO or of any member of the
OCEO, (ii) any plans that Conopco or its affiliates may have to cause to be
terminated the directorship of any member of the Company Board, and (iii) any
financial or other matter concerning support of the Transactions or
directorship, employment or other arrangements with Conopco or the Company
following the Effective Time.
ARTICLE V
COVENANTS RELATING TO CONDUCT OF BUSINESS
SECTION 5.01. CONDUCT OF BUSINESS. (a) CONDUCT OF BUSINESS BY
THE COMPANY. Except for matters set forth in the Company Disclosure Letter or
otherwise expressly permitted by the Transaction Agreements, from the date of
this Agreement to the earlier of Conopco having designated a majority of the
Company Board pursuant to Section 6.10 and the Effective Time the Company shall,
and shall cause each Company Subsidiary to, conduct the business of the Company
and the Company Subsidiaries, taken as a whole, in the usual, regular and
ordinary course in substantially the same manner as previously conducted and use
all reasonable efforts to preserve intact its current business organization,
keep available the services of its current officers and employees and keep its
relationships with customers, suppliers, licensors, licensees, distributors and
others having business dealings with them to the end that its goodwill and
ongoing business shall be unimpaired, in all material respects, at the Effective
Time. In addition, and without limiting the generality of the foregoing, except
for matters set forth in the Company Disclosure Letter or otherwise expressly
permitted by the Transaction Agreements, from the date of this Agreement to the
earlier of Conopco having designated a majority of the Company Board pursuant to
Section 6.10 and the Effective Time, the Company shall not, and shall not permit
any Company Subsidiary to, do any of the following without the prior written
consent of Conopco:
(i) (A) declare, set aside or pay any dividends on, or make
any other distributions in respect of, any of its capital stock, other
than dividends and distri butions by a direct or indirect wholly owned
subsidiary of the Company to its parent, (B) split, combine or
reclassify any of its capital stock or issue or author ize the issuance
of any other
<PAGE>
securities in respect of, in lieu of or in substitution for shares of
its capital stock (other than upon the conversion of shares of Class B
Common Stock into shares of Class A Common Stock in accordance with the
Company Charter), or (C) purchase, redeem or otherwise acquire any
shares of capital stock of the Company or any Company Subsidiary or any
other securities thereof or any rights, warrants or options to acquire
any such shares or other securities;
(ii) issue, deliver, sell or grant (A) any shares of its
capital stock, (B) any Voting Company Debt or other voting securities,
(C) any securities convertible into or exchangeable for, or any
options, warrants or rights to acquire, any such shares, Voting Company
Debt, voting securities or convertible or exchangeable securities or
(D) any "phantom" stock, "phantom" stock rights, stock appreciation
rights or stock-based performance units, other than (x) the issuance of
Class A Common Stock (and associated Class A Rights) (1) upon the
exercise of Company Stock Options outstanding on the date of this
Agreement and in accordance with their present terms, (2) pursuant to
the Stock Option Agreement, (3) upon the conversion of shares of Class
B Common Stock into shares of Class A Common Stock in accordance with
the Company Charter, (4) upon exercise of Gordian Warrants or (5)
pursuant to the 1986 ESPP (subject to Section 6.05(c)) and (y) the
issuance of capital stock of ACICM upon the exercise of options to
purchase such capital stock that are outstanding on the date of this
Agreement and in accordance with their present terms;
(iii) amend its articles of incorporation, by-laws or other
comparable charter or organizational documents;
(iv) acquire or agree to acquire (A) by merging or
consolidating with, or by purchasing a substantial equity interest in
or portion of the assets of, or by any other manner, any business or
any corporation, partnership, joint venture, association or other
business organization or division thereof or (B) any assets that are
material, individually or in the aggregate, to the Company and the
Company Subsidiaries, taken as a whole, except purchases of inventory
in the ordinary course of business consistent with past practice or
<PAGE>
in the fulfillment of Contracts in existence on the date hereof and
copies of which have been made available to Conopco;
(v) (A) grant to any employee, officer or director of the
Company or any Company Subsidiary any increase in compensation, except
in the ordinary course of business consistent with prior practice or to
the extent required under employment or consulting agreements in effect
as of the date of the most recent audited financial statements included
in the Filed Company SEC Documents, (B) grant to any employee, officer
or director of the Company or any Company Subsidiary any increase in
severance or termination pay, except to the extent required under any
employment, consulting, severance or termination agreement in effect as
of the date of the most recent audited financial statements included in
the Filed Company SEC Documents, (C) establish, adopt, enter into or
amend any Company Benefit Agreement, (D) establish, adopt, enter into
or amend in any material respect any collective bargaining agreement or
Company Benefit Plan or (E) take any action to accelerate any rights or
benefits, or make any material determinations not in the ordinary
course of business consistent with prior practice, under any collective
bargaining agreement or Company Benefit Plan or Company Benefit
Agreement;
(vi) make any change in accounting methods, principles or
practices materially affecting the reported consolidated assets,
liabilities or results of operations of the Company, except insofar as
may have been required by a change in GAAP;
(vii) sell, lease (as lessor), license or otherwise dispose of
or subject to any Lien any properties or assets, except for leases and
disposals of trucks and trailers and sales of inventory and excess or
obsolete assets, in all cases in the ordinary course of business
consistent with past practice;
(viii) (A) incur any indebtedness for borrowed money or
guarantee any such indebtedness of another person, issue or sell any
debt securities or warrants or other rights to acquire any debt
securities of the Company or any Company Subsidiary, guarantee any debt
securities of another person, enter into any "keep well" or other
agreement to
<PAGE>
maintain any financial statement condition of another person or enter
into any arrangement having the economic effect of any of the
foregoing, except for short-term borrowings incurred in the ordinary
course of business consistent with past practice, or (B) make any
loans, advances or capital contributions to, or investments in, any
other person, other than to or in the Company or any direct or indirect
wholly owned subsidiary of the Company;
(ix) make or agree to make any new capital expendi ture or
expenditures that, individually, is in excess of $500,000 or, in the
aggregate, are in excess of $1,000,000; PROVIDED, HOWEVER, that with
respect to proposed capital expenditures the written consent of Conopco
shall not unreasonably be withheld;
(x) make or change any material Tax election or settle or
compromise any material Tax liability or refund;
(xi) (A) pay, discharge or satisfy any claims, liabilities or
obligations (absolute, accrued, asserted or unasserted, contingent or
otherwise) in excess of $100,000, other than the payment, discharge or
satisfaction, in the ordinary course of business consistent with past
practice or in accordance with their terms, of liabilities reflected or
reserved against in, or contemplated by, the most recent consolidated
financial statements (or the notes thereto) of the Company included in
the Filed Company SEC Documents or incurred in the ordinary course of
business consistent with past practice, (B) cancel any material
indebtedness (individually or in the aggregate) or waive any claims or
rights of substantial value or (C) waive the benefits of, or agree to
modify in any manner, any confidentiality, standstill or similar
agreement to which the Company or any Company Subsidiary is a party; or
(xii) authorize any of, or commit or agree to take any of, the
foregoing actions.
(b) OTHER ACTIONS. Subject to Section 5.02(b), the Company
shall not, and shall not permit any Company Subsidiary to, take any action that
would, or that would reasonably be expected to, result in (A) any of the
representations and warranties of the Company set forth
<PAGE>
in any Transaction Agreement to which it is a party that is qualified as to
Company Material Adverse Effect becoming untrue, (B) the representations and
warranties that are not so qualified as to Company Material Adverse Effect
becoming untrue where the failure of the representations and warranties referred
to in this clause (B) to be so true, when taken together, would reasonably be
expected to have a Company Material Adverse Effect, or (C) any condition to the
Offer set forth in Section 7.01, or any condition to the Merger set forth in
Section 7.02, not being satisfied. Conopco shall not, and shall not permit its
subsidiaries to, take any action that would, or would reasonably be expected to,
result in any condition to the Offer set forth in Section 7.01, or any condition
to the Merger set forth in Section 7.02, not being satisfied.
(c) ADVICE OF CHANGES. The Company shall promptly advise
Conopco orally and in writing of any change or event that has or would
reasonably be expected to have a Company Material Adverse Effect. The Company
shall promptly provide to Conopco (or its counsel) copies of all filings made by
the Company with any Governmental Entity in connection with this Agreement and
the Transactions, except with respect to the disclosure in Item 4(c) and any
related materials in the Company's filing under the HSR Act.
(d) CONTINUATION OF CONTRACTS. The Company shall use its best
efforts to take such actions necessary to ensure the continuation of the
contracts referred to in Section 3.05 of the Company Disclosure Letter;
PROVIDED, HOWEVER, that this Section 5.01(d) shall not require the payment by
the Company of any consent or other similar fee under any such contract.
SECTION 5.02. NO SOLICITATION. (a) The Company shall not, nor
shall it authorize or permit any Company Subsidiary to, nor shall it authorize
or permit any officer, director or employee of, or any investment banker,
attorney or other advisor or representative (collectively, "REPRESENTATIVES")
of, the Company or any Company Subsidiary to, (i) directly or indirectly
solicit, initiate or encourage the submission of, any Company Takeover Proposal
(as defined in Section 5.02(e)), (ii) enter into any agreement with respect to
any Company Takeover Proposal or (iii) directly or indirectly participate in any
discussions or negotiations regarding, or furnish to any person any information
with respect to, or take any other action to facilitate any inquiries or the
making of any
<PAGE>
proposal that constitutes, or may reasonably be expected to lead to, any Company
Takeover Proposal; PROVIDED, HOWEVER, that prior to the acceptance for payment
of shares of Class A Common Stock pursuant to the Offer the Company may, to the
extent required by the fiduciary obligations of the Company Board, as determined
in good faith by a majority of the disinterested members thereof after
consultation with outside counsel, in response to a Company Takeover Proposal
that was made by a person whom the Company Board determines, in good faith after
consultation with outside counsel and an independent financial advisor, to be
reasonably capable of making a Superior Company Proposal (as defined in Section
5.02(e)), that was not solicited by the Company and that did not otherwise
result from a breach or a deemed breach of this Section 5.02(a), (x) furnish
information with respect to the Company to the person or group making such
Company Takeover Proposal and its Representatives pursuant to a customary
confidentiality agreement not less restrictive of the other party than the
Confidentiality Agreement (as defined in Section 6.02) and (y) participate in
discussions and negotiations with such person or group and its Representatives
to the extent required regarding such Company Takeover Proposal. Without
limiting the foregoing, it is agreed that any violation of the restrictions set
forth in the preceding sentence by any Representative or affiliate of the
Company or any Company Subsidiary, whether or not such person is purporting to
act on behalf of the Company or any Company Subsidiary or otherwise, shall be
deemed to be a breach of this Section 5.02(a) by the Company. Subject to the
foregoing provisions of this Section 5.02, the Company shall, and shall cause
its Representatives to, cease immediately all discussions and negotiations
regarding any proposal that constitutes, or may reasonably be expected to lead
to, a Company Takeover Proposal.
(b) Neither the Company Board nor any committee thereof shall
(i) withdraw or modify, or propose to withdraw or modify, in a manner adverse to
Conopco or Sub, the approval or recommendation by the Company Board or any such
committee of this Agreement, the Offer or the Merger, (ii) approve any letter of
intent, agreement in principle, acquisition agreement or similar agreement
relating to any Company Takeover Proposal or (iii) approve or recommend, or
propose to approve or recommend, any Company Takeover Proposal. Notwithstanding
the foregoing, if, prior to the acceptance for payment of shares of Class A
Common Stock pursuant to the Offer, the Company Board receives a
<PAGE>
Superior Company Proposal and a majority of the disinterested directors of the
Company determine in good faith, after consultation with outside counsel, that
it is necessary to do so in order to comply with their fiduciary obligations,
the Company Board may withdraw its approval or recommendation of the Offer, the
Merger and this Agreement and, in connection therewith, approve or recommend
such Superior Company Proposal, PROVIDED, that the Company Board shall give
Conopco five business days' notice prior to withdrawing its recommendation.
(c) The Company promptly shall advise Conopco orally and in
writing of any Company Takeover Proposal or any inquiry with respect to or that
could lead to any Company Takeover Proposal, the identity of the person or group
making any such Company Takeover Proposal or inquiry and the material terms of
any such Company Takeover Proposal or inquiry. The Company shall (i) keep
Conopco fully informed of the status, including any change to the details, of
any such Company Takeover Proposal or inquiry and (ii) provide to Conopco as
soon as practicable after receipt or delivery thereof with copies of all
correspondence and other written material sent or provided to the Company from
any third party in connection with any Company Takeover Proposal or sent or
provided by the Company to any third party in connection with any Company
Takeover Proposal.
(d) Nothing contained in this Section 5.02 shall prohibit the
Company from taking and disclosing to its shareholders a position contemplated
by Rule 14e-2(a) promulgated under the Exchange Act or from making any required
disclosure to the Company's shareholders if, in the good faith judgment of the
Company Board, after consultation with outside counsel, failure so to disclose
would be inconsistent with its obligations under applicable Law.
(e) For purposes of this Agreement:
"COMPANY TAKEOVER PROPOSAL" means (i) any proposal or offer
for a merger, consolidation, dissolution, recapitalization or other
business combination involving the Company or any Company Subsidiary,
(ii) any proposal for the issuance by the Company of a material amount
of its equity securities as consideration for the assets or securities
of another person or (iii) any proposal or offer to acquire in any
manner, directly or indirectly, a material equity interest in any
voting securities of, or a substantial portion of the
<PAGE>
assets of, the Company or any Company Subsidiary, in each case other
than the Transactions.
"SUPERIOR COMPANY PROPOSAL" means any proposal made by a third
party to acquire all or substantially all the equity securities or
assets of the Company, pursuant to a tender or exchange offer, a
merger, a consolidation, a liquidation or dissolution, a
recapitalization or a sale of all or substantially all its assets, (i)
on terms which a majority of the disinterested directors of the Company
determines in its good faith judgment (A) to represent superior value
for the holders of Company Common Stock than the Transactions (based on
the written opinion, with only customary qualifications, of Gordian
Group, L.P. or another independent financial advisor as to such
proposal's financial superiority), taking into account all the terms
and conditions of such proposal and this Agreement (including any
proposal by Conopco to amend the terms of the Transactions), and (B) to
be no less favorable to the Company's stakeholders (not including its
shareholders), taken as a whole, than the Transactions, taking into
account all the terms and conditions of such proposal and this
Agreement (including any proposal by Conopco to amend the terms of the
Transactions) and (ii) that is reasonably capable of being completed,
taking into account all financial, regulatory, legal and other aspects
of such proposal.
ARTICLE VI
ADDITIONAL AGREEMENTS
SECTION 6.01. PREPARATION OF PROXY STATEMENT; SHAREHOLDERS
MEETING. (a) The Company shall, as soon as practical following the expiration of
the Offer, prepare and file with the SEC the Proxy Statement in preliminary
form, and the Company and each of Conopco and Sub shall use its best efforts to
respond as promptly as practicable to any comments of the SEC with respect
thereto. The Company shall notify Conopco promptly of the receipt of any
comments from the SEC or its staff and of any request by the SEC or its staff
for amendments or supplements to the Proxy Statement or for additional
information and shall supply Conopco with copies of all correspondence between
the Company or any of its representatives, on the one hand, and the SEC or its
staff, on the other hand, with respect to the Proxy
<PAGE>
Statement. If at any time prior to receipt of the Company Shareholder Approval
there shall occur any event that should be set forth in an amendment or
supplement to the Proxy Statement, the Company shall promptly prepare and mail
to its shareholders such an amendment or supplement. The Company shall not mail
any Proxy Statement, or any amendment or supplement thereto, to which Conopco
reasonably objects. The Company shall use its best efforts to cause the Proxy
Statement to be mailed to the Company's shareholders as promptly as reasonably
practicable after filing with the SEC.
(b) The Company shall, as soon as reasonably practical
following the expiration of the Offer, duly call, give notice of, convene and
hold a meeting of its shareholders (the "COMPANY SHAREHOLDERS MEETING") for the
purpose of seeking the Company Shareholder Approval. Without limiting the
generality of the foregoing, the Company agrees that, unless this Agreement
shall have been terminated, its obligations pursuant to the first sentence of
this Section 6.01(b) shall not be affected by (i) the commencement, public
proposal, public disclosure or communication to the Company of any Company
Takeover Proposal or (ii) the withdrawal or modification by the Company Board of
its approval or recommendation of this Agreement, the Offer or the Merger.
(c) Conopco shall cause all shares of Class A Common Stock
purchased by Sub pursuant to the Offer and all other shares of Class A Common
Stock owned by Sub or any other direct or indirect subsidiary of either Parent
to be represented at the Company Shareholders Meeting and to be voted in favor
of obtaining the Company Shareholder Approval.
SECTION 6.02. ACCESS TO INFORMATION; CONFIDENTIALITY. (a) The
Company shall, and shall cause each Company Subsidiary to, afford to Conopco,
and to Conopco's officers, employees, accountants, counsel, financial advisors
and other representatives, upon reasonable notice reasonable access during
normal business hours during the period prior to the Effective Time to all their
respective properties, books, contracts, commitments, personnel and records and,
during such period, the Company shall, and shall cause each Company Subsidiary
to, furnish promptly to Conopco (a) a copy of each report, schedule,
registration statement and other document filed by it during such period
pursuant to the requirements of Federal or state securities laws and (b) all
other information concerning its business, properties and personnel as Conopco
may reasonably
<PAGE>
request; PROVIDED, HOWEVER, that the Company may withhold (i) any document or
information that is subject to the terms of a confidentiality agreement with a
third party or (ii) such portions of documents or information relating to
pricing or other matters that are highly sensitive and the exchange of such
documents (or portions thereof) or information, as determined by the Company's
outside counsel, might reasonably result in antitrust difficulties between the
Company and Conopco (or any of its affiliates). If any material is withheld from
Conopco pursuant to the proviso to the preceding sentence, the Company shall
inform Conopco as to what is being withheld. Without limiting the generality of
the foregoing, the Company shall, within two business days of request therefor,
provide to Conopco the information described in Rule 14a-7(a)(2)(ii) under the
Exchange Act and any information to which a holder of Company Common Stock would
be entitled under Section 16.02 of the VBCA (assuming such holder met the
requirements of such section).
(b) The Company shall, as soon as practicable and in any event
by the end of the third week of each month, furnish to Conopco such financial
information for the previous month in such form as is provided to the Company
Board.
(c) All information exchanged pursuant to this Section 6.02
shall be subject to the confidentiality agreement dated September 27, 1999
between the Company and Conopco (the "CONFIDENTIALITY AGREEMENT").
SECTION 6.03. BEST EFFORTS; NOTIFICATION. (a) Upon the terms
and subject to the conditions set forth in this Agreement, and subject to
Section 5.02 and the Company's right to make the disclosures to its shareholders
permitted under Section 5.02(d), each of the parties shall use its best efforts
to take, or cause to be taken, all appropriate actions, and to do, or cause to
be done, and to assist and cooperate with the other parties in doing, all things
necessary, proper or advisable to consummate and make effective, in the most
expeditious manner practicable, the Offer, the Merger and the other
Transactions, including (i) the obtaining of all necessary actions, waivers,
consents and approvals from Governmental Entities and the making of all
necessary registrations and filings (including filings with Governmental
Entities, if any) and the taking of all reasonable steps as may be necessary to
obtain an approval or waiver from, or to avoid an action or proceeding by, any
Governmental Entity, (ii) the
<PAGE>
obtaining of all necessary consents, approvals or waivers from third parties,
(iii) the defending of any lawsuits or other legal proceedings, whether judicial
or administrative, challenging this Agreement or any other Transaction Agreement
or the consummation of the Transactions, including seeking to have any stay or
temporary restraining order entered by any court or other Governmental Entity
vacated or reversed and (iv) the execution and delivery of any additional
instruments necessary to consummate the Transactions and to fully carry out the
purposes of the Transaction Agreements; PROVIDED, HOWEVER, that neither the
Company nor Conopco shall be required to consent to any action described in
Section 7.01(a). In connection with and without limiting the foregoing, the
Company and the Company Board shall (i) take all action necessary to ensure that
no state takeover statute or similar statute or regulation becomes applicable to
any Transaction or this Agreement or any other Transaction Agreement and (ii) if
any state takeover statute or similar statute or regulation becomes applicable
to this Agreement or any other Transaction Agreement, take all action necessary
to ensure that the Offer, the Merger and the other Transactions may be
consummated as promptly as practicable on the terms contemplated by the
Transaction Agreements and otherwise to minimize the effect of such statute or
regulation on the Offer, the Merger and the other Transactions. Nothing in this
Section 6.03 shall be deemed to require any party to waive any substantial
rights or agree to any substantial limitation on its operations or to dispose of
any significant asset or collection of assets.
(b) The Company shall give prompt notice to Conopco, and
Conopco shall give prompt notice to the Company, of (i) any representation or
warranty made by it contained in any Transaction Agreement that is qualified as
to materiality being untrue or inaccurate in any respect when given or any such
representation or warranty that is not so qualified being untrue or inaccurate
in any material respect when given or (ii) the failure by it to comply with or
satisfy in any material respect any covenant, condition or agreement to be
complied with or satisfied by it under any Transaction Agreement; PROVIDED,
HOWEVER, that no such notification shall affect the representations, warranties,
covenants or agreements of the parties or the conditions to the obligations of
the parties under the Transaction Agreements.
SECTION 6.04. STOCK OPTIONS. (a) As soon as reasonably
practicable following the date of this Agreement, the Company Board (or, if
appropriate, any
<PAGE>
committee administering the Company Stock Plans) shall adopt resolutions or take
such other actions as may be required to effect the following:
(i) adjust the terms of all outstanding Company Stock Options,
whether vested or unvested, as necessary to provide that each Company
Stock Option (and any Company SAR related thereto) outstanding
immediately prior to the acceptance for payment of shares of Class A
Common Stock pursuant to the Offer, including all vested and unvested
Company Stock Options, shall be canceled effective immediately prior to
the acceptance for payment of Class A Common Stock pursuant to the
Offer, with the holder thereof becoming entitled to receive an amount
in cash equal to (A) the excess, if any, of (1) $43.60 over (2) the
exercise price per share of the Class A Common Stock subject to such
Company Stock Option or Company SAR, multiplied by (B) the number of
shares of the Class A Common Stock for which such Company Stock Option
shall not theretofore have been exercised; PROVIDED, HOWEVER, that no
cash payment shall be made with respect to any Company SAR that is
related to any Company Stock Option in respect of which such a cash
payment is made; PROVIDED, FURTHER, that all amounts payable pursuant
to this Section 6.04(a)(i) shall be subject to any required withholding
of Taxes or proof of eligibility of exemption therefrom and to receipt
of the written consent of the holder thereof and shall be paid at or as
soon as practicable following the acceptance for payment of shares of
Class A Common Stock pursuant to the Offer, without interest; and
(ii) make such other changes to the Company Stock Plans as the
Company and Conopco may agree are appropriate to give effect to the
Offer and the Merger.
(b) After the Effective Time, the Surviving Corporation shall
establish an appropriate long-term incentive plan to properly incentivise its
employees.
SECTION 6.05. BENEFIT PLANS AND SPECIAL BONUS PROGRAM. (a)
Except as set forth in Section 6.04 and this Section 6.05, Conopco agrees that
after the consummation of the Offer the Company shall honor, and, on and after
the Effective Time, Conopco shall cause the Surviving Corporation to honor, all
employment, severance, termination, consulting and retirement agreements to
which the Company or any Company Subsidiary
<PAGE>
is presently a party and which have been disclosed in the Company Disclosure
Letter, including all "constructive termination" provisions therein. Conopco
confirms that, for purposes of such agreements, the acceptance for payment, and
purchase, of the Company Common Stock pursuant to the Offer shall constitute a
"change in control".
(b) Except as set forth in Sections 6.04 and 6.05(c), the
Surviving Corporation shall maintain for a period of five years after the
Effective Time the Company Benefit Plans (other than equity or equity-based
programs), except to the extent provided in Section 6.04, in effect on the date
of this Agreement or provide benefits to each current employee of the Company
and the Company Subsidiaries that are not materially less favorable in the
aggregate to such employees than those in effect on the date of this Agreement
(other than equity or equity-based programs), except to the extent provided in
Section 6.04.
(c) As soon as practicable following the date of this
Agreement, the Company Board (or, if appropriate, any committee administering
the 1986 ESPP) shall take or cause to be taken such actions as may be necessary
to provide that (i) no options shall be granted and no payroll deductions
accepted after the earlier of June 30, 2000 or the date in which falls the
Effective Time; (ii) if the Effective Time falls on a date prior to June 30,
2000, the exercise date in respect of the offering (option) period under the
1986 ESPP that commenced January 1, 2000 shall be accelerated, and all
unexercised rights granted in respect of such offering (option) period shall be
exercised immediately prior to the Effective Time; (iii) all holding periods
with respect to shares under the ESPP shall be waived; and (iv) the 1986 ESPP
shall terminate as of the Effective Time.
(d) Six months following the Effective Time, Conopco shall
make available to the Surviving Corporation the sum of $5 million to be
distributed on a per capita basis to the then full-time employees of the Company
below the OCEO as a special bonus unless the Company Board determines in its
sole discretion that all or a portion of such amount should be contributed to
the Foundation (as defined in Section 6.14) in which case the balance shall be
distributed on a per capita basis to the then full-time employees of the Company
below the OCEO and the amount not so distributed shall be contributed to the
Foundation.
<PAGE>
SECTION 6.06. INDEMNIFICATION. (a) Conopco and Sub agree that
all rights to indemnification under the Company Charter, the Company By-laws,
the Company's indemnification or other agreements or by Law for acts or
omissions occurring prior to the Effective Time now existing in favor of the
current or former directors or officers of the Company and its subsidiaries (the
"INDEMNIFIED PARTIES") as provided in their respective articles of
incorporation, by-laws or indemnification agreements shall survive the Merger
and shall continue in full force and effect in accordance with their terms until
the expiration of the applicable statute of limitations (PROVIDED, that in the
event any claim or claims are asserted or made prior to the expiration of all
applicable statutes of limitation, all rights to indemnification in respect of
any such claim or claims shall continue until disposition of any and all such
claims), and Conopco shall cause the Surviving Corporation to honor all such
rights. Without limitation of the foregoing, in the event any such Indemnified
Party is or becomes involved in any capacity in any action, proceeding or
investigation in connection with any matter, including the transactions
contemplated by this Agreement, occurring prior to, and including, the Effective
Time, Conopco shall, or shall cause the Surviving Corporation to, pay as
incurred such Indemnified Party's reasonable legal and other expenses (including
the cost of any investigation and preparation) incurred in connection therewith
(subject to receipt by the Surviving Corporation of an undertaking from such
Indemnified Party to repay advances if it is subsequently determined that such
Indemnified Party is not entitled to indemnification). Conopco shall pay all
expenses, including reasonable attorneys' fees, that may be incurred by any
Indemnified Party in successfully enforcing the indemnity and other obligations
provided for in this Section 6.06(a).
(b) Conopco shall cause to be maintained for a period of not
less than six years from the Effective Time the Company's current directors' and
officers' insurance and indemnification policies to the extent that they provide
coverage for events occurring prior to the Effective Time (the "D&O INSURANCE")
for all persons who are directors and officers of the Company on the date of
this Agreement, so long as the annual premium therefor would not be in excess of
200% of the last annual premiums paid prior to the date of this Agreement (such
200% amount, the "MAXIMUM PREMIUM"). If the existing D&O Insurance expires, is
terminated or canceled during such six-year period, Conopco shall use all
reasonable efforts
<PAGE>
to cause to be obtained as much D&O Insurance as can be obtained for the
remainder of such period for an annualized premium not in excess of the Maximum
Premium, on terms and conditions no less advantageous than the existing D&O
Insurance. The Company represents to Conopco that the Maximum Premium is
$228,000.
SECTION 6.07. FEES AND EXPENSES; LIQUIDATED DAMAGES. (a)
Except as provided below, all fees and expenses incurred in connection with the
Merger shall be paid by the party incurring such fees or expenses, whether or
not the Merger is consummated.
(b) The Company shall pay to Conopco a fee of $11.4 million
if: (i) this Agreement is terminated pursuant to Section 8.01(b)(iii) as a
result of the failure of the condition set forth in paragraph (d) of Section
7.01; (ii) Conopco terminates this Agreement pursuant to Section 8.01(d) or the
Company terminates this Agreement pursuant to Section 8.01(e); (iii) after the
date of this Agreement any person makes or consummates a Company Takeover
Proposal or amends a Company Takeover Proposal made prior to the date of this
Agreement, and (A) the Offer remains open for at least five business days
following the first public announcement of the making, consummation or
amendment, as the case may be, of such Company Takeover Proposal, (B) the
Minimum Tender Condition is not satisfied at such expiration date and (C) this
Agreement is terminated pursuant to Section 8.01(b)(iii); or (iv) this Agreement
is terminated (other than termination pursuant to Section 8.01(b)(iv) or
8.01(f)) and within 12 months of such termination the Company enters into a
definitive agreement to consummate, or consummates, the transactions
contemplated by a Company Takeover Proposal. Any fee due under this Section
6.07(b) shall be paid by wire transfer of same-day funds on the date of
termination of this Agreement (except that in the case of termination pursuant
to clause (iv) above such payment shall be made on the date of execution of such
definitive agreement or, if earlier, consummation of such transactions). Conopco
shall only be entitled to one fee under this Section 6.07(b).
(c) The parties acknowledge that Conopco's damages in the
event that this Agreement is breached by the Company would be extremely costly
and impractical to calculate. Conopco and the Company have expressly negotiated
this provision, and have agreed that in light of the circumstances existing at
the time of execution of this Agreement, an amount equal to $11.9 million
<PAGE>
represents a reasonable estimate of the harm likely to be suffered by Conopco in
the event this Agreement is terminated pursuant to Section 8.01(c) or pursuant
to Section 8.01(b)(iii) as a result of the failure of a condition set forth in
paragraph (e) or (f) of Section 7.01. Accordingly, in the event this Agreement
is terminated under such circumstances, Conopco shall be entitled to receive
$11.9 million from the Company as its sole remedy and as liquidated damages.
SECTION 6.08. PUBLIC ANNOUNCEMENTS. Each of Conopco and Sub,
on the one hand, and the Company, on the other hand, shall consult with each
other before issuing, and provide each other the opportunity to review and
comment upon, any press release or other public statements with respect to the
Offer and the Merger and the other Transactions and shall not issue any such
press release or make any such public statement prior to such consultation,
except as may be required, as determined by outside counsel, by applicable Law,
court process or by obligations pursuant to any listing agreement with any
national securities exchange.
SECTION 6.09. TRANSFER TAXES. All stock transfer, real estate
transfer, documentary, stamp, recording and other similar Taxes (including
interest, penalties and additions to any such Taxes) ("TRANSFER TAXES") incurred
in connection with the Transactions shall be paid by either Sub or the Surviving
Corporation, and the Company shall cooperate with Sub and Conopco in preparing,
executing and filing any Tax Returns with respect to such Transfer Taxes.
SECTION 6.10. INTERIM DIRECTORS. Promptly upon the acceptance
for payment of, and payment by Sub for, any shares of Class A Common Stock
pursuant to the Offer, Sub shall be entitled to designate, for election by the
Company Board, such number of directors on the Company Board as will give Sub,
subject to compliance with Section 14(f) of the Exchange Act and the VBCA,
majority representation on the Company Board; PROVIDED, HOWEVER, that in the
event that Sub's designees are appointed or elected to the Company Board, until
the Effective Time the Company Board shall have at least three directors who are
Directors on the date of this Agreement and who are not officers of the Company
(the "INDEPENDENT DIRECTORS"); PROVIDED, FURTHER, that, in such event, if the
number of Independent Directors shall be reduced below three for any reason
whatsoever, any remaining Independent Directors (or Independent Director, if
there shall be only one remaining) shall be entitled to
<PAGE>
designate persons to fill such vacancies who shall be deemed to be Independent
Directors for purposes of this Agreement or, if no Independent Directors then
remain, the other directors shall designate three persons to fill such vacancies
who are not officers, shareholders or affiliates of the Company, Conopco or Sub,
and such persons shall be deemed to be Independent Directors for purposes of
this Agreement. Subject to applicable Law, the Company shall take all action
requested by Conopco necessary to effect any such election, including mailing to
its shareholders the Information Statement containing the information required
by Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder, and
the Company shall make such mailing with the mailing of the Schedule 14D-9
(provided that Sub shall have provided to the Company on a timely basis all
information required to be included in the Information Statement with respect to
Sub's designees). In connection with the foregoing, the Company shall promptly,
at the option of Sub, either increase the size of the Company Board or obtain
the resignation of such number of its current directors as is necessary to
enable Sub's designees to be elected or appointed to the Company Board as
provided above.
SECTION 6.11. COMPANY CAPITAL STOCK. (a) Immediately following
the consummation of the Offer, the Company Board shall authorize the Company to
redeem all of the outstanding shares of Company Preferred Stock, at a price per
share that would have been received by a holder of Company Preferred Stock if
paid as Merger Consideration in the Merger, prior to the record date for the
Company Shareholder Meeting and deliver to all holders of Company Preferred
Stock the notice of redemption required by the Company Charter. The Company
shall redeem all outstanding shares of Company Preferred Stock prior to the
Effective Time.
(b) Upon receipt of a Qualified Notice (as defined below) from
Conopco, and in accordance with the Company Charter, the Company shall mail a
notice to all the holders of Class B Common Stock, which notice shall specify
that all outstanding shares of Class B Common Stock will be automatically
converted into shares of Class A Common Stock effective ten days from the date
of such mailing. The Company shall not take any action to rescind, revoke,
retrieve or otherwise impair the effectiveness of such notice of conversion or
prevent the automatic conversion of the outstanding shares of Class B Common
Stock. A "QUALIFIED NOTICE" shall mean a written notice that (i) is delivered by
Conopco to the Company not earlier than the business day immediately prior to
<PAGE>
the then scheduled expiration date of the Offer and not later than 2 p.m.
Eastern Time on the then scheduled expiration date of the Offer and (ii) states
that, as of the time of such notice, Conopco has no reason to believe that any
condition set forth in Section 7.01 will not be satisfied at the then scheduled
expiration time of the Offer (assuming compliance by the Company with this
Section 6.11(b)).
SECTION 6.12. RIGHTS AGREEMENTS; CONSEQUENCES IF RIGHTS
TRIGGERED. The Company Board shall take all further action (in addition to that
referred to in Section 3.05(c)) requested in writing by Conopco in order to
render the Company Rights inapplicable to the Offer, the Merger and the other
Transactions. Except as approved in writing by Conopco, the Company Board shall
not (i) amend either of the Company Rights Agreements, (ii) redeem the Company
Rights or (iii) take any action with respect to, or make any determination
under, the Company Rights Agreements.
SECTION 6.13. SHAREHOLDER LITIGATION. After the Closing Date,
the Company shall give Conopco the opportunity to participate in the defense or
settlement of any shareholder litigation against the Company or its directors
relating to any Transaction.
SECTION 6.14. OPERATIONS OF THE SURVIVING CORPORATION. (a) The
Company Board immediately following the Effective Time shall consist of: (i) the
CEO; (ii) seven members to be composed of (A) such members of the Company Board
(other than the current CEO and Ineligible Directors (as defined in Section
9.03)) as of the date hereof who wish to continue or rejoin as members of the
Company Board following the Effective Time and (B) such other persons as may be
necessary to fill any vacancies in the seven members as shall be designated for
election by a majority of the persons specified in clause (A) (the "CLASS I
DIRECTORS"); (iii) two members (the "CLASS M DIRECTORS") to be designated by
Meadowbrook Lane, Inc. ("MEADOWBROOK"); and (iv) one member (together with any
alternate that Conopco may from time to time designate, the "CLASS U DIRECTOR")
to be designated by Conopco. The size of the Company Board shall be fixed at 11.
Directors shall be elected for one year terms (subject to earlier removal, death
or resignation), and a majority of directors then in office in each Class shall
designate the candidates for election to the Company Board in such Class each
year, and Conopco shall cause the election of such candidates and the CEO to the
Company Board. Vacancies on the Company Board shall be
<PAGE>
filled in a like manner. Conopco, as sole shareholder of the Surviving
Corporation, shall remove any director of any Class at the written request of at
least a majority of the directors of such Class then in office and shall not
otherwise remove any member of the Company Board after the Effective Time, other
than a Class U Director or the CEO following termination of his or her
employment. No Ineligible Director shall be permitted at any time to be elected
to the Company Board.
(b) Immediately following the Effective Time, the Surviving
Corporation shall delegate authority to the CEO to manage the affairs of the
Company, substantially in the form of Exhibit B, appropriately adjusted for
inflation and other relevant factors. The Surviving Corporation, with the
consent of Conopco, shall review on an annual basis the proper scope of such
delegation and shall make a new delegation to the CEO as of January 1 of each
year. Within the scope of the authority delegated by the Surviving Corporation
to the CEO, the CEO may act without obtaining the prior approval of Conopco or
the Company Board. The Company Board shall not alter or challenge in any way the
scope of any delegation of authority by the Surviving Corporation to the CEO.
(c) Decisions with respect to the appointment, compensation
and removal of the CEO shall be made by Conopco after good faith consultation
with, and the participation in discussions of, an advisory committee of the
Company Board (the "APPOINTMENT COMMITTEE") consisting of Ben Cohen ("B.C.") and
Jerry Greenfield ("J.G."); PROVIDED, HOWEVER, that, if from time to time one or
both of B.C. or J.G. is not a member of the Company Board, then a majority of
the Class I Directors then in office shall appoint one or two, as the case may
be, Class I Directors or Class M Directors to the Appointment Committee.
(d) Subject to Sections 6.14(e) and 6.14(f), which place
primary responsibility for Social Mission Priorities and the Essential Integrity
of the Brand (each as defined below) with the Company Board, the Surviving
Corporation shall be managed by the CEO in accordance with an annual business
plan. Each year the CEO shall present a business plan for the following year to
Conopco and the Company Board. Conopco and the Company Board, in good faith
consultation with each other, shall review the proposal and Conopco, the Company
Board and the CEO shall use good faith efforts to reach agreement on the annual
business plan. If such parties are unable to reach agreement on the annual
business plan, the ultimate
<PAGE>
determination of such plan shall be by Conopco. The annual business plan may be
modified following the principles set out in the previous two sentences.
(e) The Company Board shall have primary responsibility for
preserving and enhancing the objectives of the historical social mission of the
Company as they may evolve from time to time consistent therewith ("SOCIAL
MISSION PRIORITIES"). The Company Board shall work together with the CEO to
integrate Social Mission Priorities into the business of the Surviving
Corporation. The Company Board shall have a committee (the "SOCIAL VENTURE
COMMITTEE") that shall oversee the Social Venture Fund (as defined below)
consisting of one Class M Director, appointed by a majority of the Class M
Directors then in office, and B.C., or, if B.C. is not a member of the Company
Board, J.G., or, if neither B.C. nor J.G. is a member of the Company Board, a
Class I Director appointed by a majority of the Class I Directors. Schedule 6.14
contains an illustrative list of Social Mission Priorities of the Company as of
the date hereof.
(f) The Company Board shall be the custodians of the Ben &
Jerry's-brand image and shall have primary responsibility for safeguarding the
integrity of the essential elements of the Ben & Jerry's brand-name (the
"ESSENTIAL INTEGRITY OF THE BRAND"). The Company Board shall work together with
the CEO to provide that the business of the Surviving Corporation is conducted
in a manner that preserves and enhances the Essential Integrity of the Brand. As
part of this responsibility, the Company Board may prevent any action by the CEO
in the areas of new product introduction, the changing of product standards and
specifications, the approval of the content of marketing materials and the
licensing or other use of the Ben & Jerry's trademark that, in each case, a
majority of the Company Board reasonably determines to be inconsistent with the
Essential Integrity of the Brand.
(g) The Company and Conopco shall work together to develop and
mutually agree to a set of measures of the social performance of the Surviving
Corporation ("SOCIAL METRICS"). The Surviving Corporation, under the direction
of the Company Board, shall seek to have the Social Metrics of the Surviving
Corporation increase at a rate in excess of the rate of sales increases of the
Surviving Corporation.
(h) The Surviving Corporation shall continue the Company's
practice of making charitable contributions
<PAGE>
by making contributions, for a minimum of ten years, of $1.1 million per year
adjusted annually (i) by multiplying such amount by the ratio of the U.S.
Producer Price Index for the month of December of the year in which the
determination is made to the U.S. Producer Price Index for December 1999 and
(ii) by multiplying the product of such calculation by the ratio of the
equivalent gallon sales of Products bearing the Principal Licensed Mark (each as
defined in the License Agreement) sold by any person in such year to the
equivalent gallon sales of Products sold in 1999; PROVIDED, HOWEVER, that such
ratio shall never be less than one. To the extent that a material portion of the
Company's business consists of activities other than the manufacture and sale of
Products, Conopco and the Surviving Corporation shall agree on an appropriate
equivalent measure of sales volume for clause (ii) with respect to such
non-Product activities. The Company Board shall have the responsibility for
allocating annual contributions among The Ben & Jerry's Foundation, Inc. (the
"FOUNDATION"), local community charitable initiatives with the support and
oversight of employee Community Action Teams and charitable institutions
selected by the OCEO. The Company Board may allocate a portion of such
contributions to the Foundation so long as (i) the Foundation does not
significantly change its charitable purpose, (ii) none of the trustees of the
Foundation disparages the Surviving Corporation, its products or its management
and (iii) any replacement or additional trustee of the Foundation is reasonably
satisfactory to Conopco. After such ten year period, the Surviving Corporation
shall continue to make contributions as calculated in accordance with the first
sentence of this Section 6.14(h) unless the activities and performance of the
Foundation cease to be reasonably acceptable to Unilever, and provided that the
Foundation meets the other requirements set out in the previous sentence. The
Company Board shall also be responsible for making the determination referred to
in Section 6.05(d).
(i) Conopco shall not prevent the Surviving Corporation from
fulfilling its obligations under this Section 6.14.
(j) Conopco shall have primary responsibility for the
financial and operational aspects of the Surviving Corporation and the other
aspects of the Surviving Corporation not allocated to the Company Board pursuant
to this Section 6.14. Each member of the Company Board after the Effective Time
and all employees of the Surviving Corporation shall agree to abide by the
<PAGE>
Unilever Code of Business Conduct, and all employees of the Surviving
Corporation shall agree to abide by Unilever's financial, accounting and legal
procedures.
(k) Following the Effective Time, the Surviving Corporation
shall establish a new product development unit responsible for special projects
to be headed by B.C., for so long as B.C. is a member of the Company Board and
an employee of the Surviving Corporation. The role of such unit shall include
the test-marketing of new products to a reasonable extent, provided that such
test-marketing is performed in conjunction with the Surviving Corporation's
marketing department to ensure that proper measures are utilized to determine
the success or failure of such test-marketing.
(l) The parties agree that the Company Charter and the Company
By-laws shall be amended after the Effective Time to the extent necessary to
implement the provisions contained in this Section 6.14, including if necessary
the Surviving Corporation electing to become a close corporation in accordance
with the provisions of the VBCA.
SECTION 6.15. THE FOUNDATION. Immediately prior to the
Effective Time, the Surviving Corporation shall, and Conopco shall cause the
Surviving Corporation to, make a one-time contribution of not less than $5
million to the Foundation so long as (i) the Foundation does not significantly
change its charitable purpose, (ii) none of the trustees of the Foundation
disparages the Surviving Corporation, its products or its management and (iii)
any replacement or additional trustee of the Foundation appointed before the
date of payment is reasonably satisfactory to Conopco.
SECTION 6.16. CERTAIN EMPLOYEE MATTERS. (a) The Surviving
Corporation shall not, for a period of at least two years following the
Effective Time, initiate any material headcount reduction of the employees of
the Company, such headcount to be measured on a seasonal basis taking into
account past employment practice by the Company.
(b) The Surviving Corporation shall maintain for a period of
at least five years following the Effective Time its corporate presence and
substantial operations in Vermont.
<PAGE>
(c) The Surviving Corporation shall maintain the Company's
current "liveable wage" policy in respect of employees of the Surviving
Corporation.
(d) Following the Effective Time, a significant amount of the
incentive-based compensation of the OCEO shall be based on the social
performance of the Surviving Corporation, and the Company Board shall be
primarily responsible for the award of such social performance based amounts.
SECTION 6.17. SOCIAL MILESTONES. Following the Effective Time,
Conopco shall cause the Parents to, and the Company shall, appoint John
Elkington (or such other person as the parties may agree from time to time) (the
"SOCIAL ADVISOR") to work with the Parents and the Company to develop a program
of social milestones for the assessment of the Parents' efforts to incorporate
socially responsible practices into their businesses, based on the Parents'
social audit to be completed in the year 2000 (the "PARENTS SOCIAL AUDIT"),
which will set out five-year performance goals with interim annual targets (the
"SOCIAL MILESTONES"), each of the Social Milestones to be agreed between the
Parents and the Company. The Social Advisor shall carry out an annual audit of
the Parents' performance in relation to the Social Milestones, such audit to be
publicly disseminated to the extent consistent with the dissemination of the
Parents Social Audit, or, if the Parents Social Audit is not publicly
disseminated, on a time frame and in a manner reasonably acceptable to the
Parents and the Company Board, which manner shall include publication on the
Parents' website. The reasonable fees of John Elkington shall be borne by
Conopco or its affiliates.
SECTION 6.18. THE SOCIAL VENTURE FUND. Following the Effective
Time, the Surviving Corporation shall establish an entity (the "SOCIAL VENTURE
FUND") independent from the Foundation and the Surviving Corporation, such
entity to be beneficially owned by the Foundation or another charitable
foundation to be established by the Surviving Corporation (so long as such other
charitable foundation constitutes an entity to which donations would be tax
deductible under the U.S. Income Tax Code). The Surviving Corporation shall fund
such entity pursuant to an agreement to be made between the Surviving
Corporation and the Foundation after the Effective Time on such terms and
conditions as they and the Social Venture Committee shall approve to provide
venture financing to (a) vendors owned by women, minorities or indigenous
people, (b) vendors which give
<PAGE>
priority to a social change mission, and (c) such other third-party
entrepreneurial businesses within the scope of the Company's Social Mission
Priorities. The Surviving Corporation shall make available to the Social Venture
Fund an aggregate amount of $5 million. The terms of any agreement relating to
the Social Venture Fund shall limit the financial responsibility of the
Surviving Corporation to the foregoing cash contributions.
ARTICLE VII
SECTION 7.01. CONDITIONS TO THE OFFER. Notwithstanding any
other term of the Offer or this Agreement, Sub shall not be required to accept
for payment or, subject to any applicable rules and regulations of the SEC,
including Rule 14e-l(c) under the Exchange Act (relating to Sub's obligation to
pay for or return tendered shares of Company Common Stock promptly after the
termination or withdrawal of the Offer), to pay for any shares of Company Common
Stock tendered pursuant to the Offer unless (i) there shall have been validly
tendered and not withdrawn prior to the expiration of the Offer such number of
shares of Company Common Stock that, taking into account the conversion of the
Class B Common Stock to Class A Common Stock, would constitute a majority of the
combined voting power of the Company Common Stock (determined on a fully diluted
basis, after giving effect to the exercise or conversion of all options, rights
and securities exercisable or convertible into voting securities) (the "MINIMUM
TENDER CONDITION"), (ii) the waiting period (and any extension thereof) under
the HSR Act applicable to the purchase of shares of Company Common Stock
pursuant to the Offer shall have expired or been terminated and (iii) the
Company shall have mailed the notice of conversion described in Section 6.11(b)
to all holders of Class B Common Stock following receipt of the notice specified
in Section 6.11(b) and shall not have taken any action in violation of Section
6.11(b). Furthermore, notwithstanding any other term of the Offer or this
Agreement, Sub shall not be required to accept for payment or, subject as
aforesaid, to pay for any shares of Company Common Stock not theretofore
accepted for payment or paid for, and may terminate or amend the Offer, with the
consent of the Company, or if, at any time on or after the date of this
Agreement and before
<PAGE>
the acceptance of such shares for payment or the payment therefor, any of the
following conditions exists:
(a) there shall be threatened by any Governmental Entity, or
there shall be initiated or pending any suit, action, proceeding,
application or counterclaims by any Governmental Entity or any other
person, or before any court or governmental authority, agency or
tribunal, domestic or foreign in each case that has a reasonable
likelihood of success, (i) challenging the acquisition by Conopco or
Sub of any Class A Common Stock, seeking to restrain or prohibit the
making or consummation of the Offer or the Merger or any other
Transaction, or seeking to obtain from the Company, Conopco or Sub any
damages that are material in relation to the Company and its
subsidiaries taken as whole, (ii) seeking to prohibit or limit the
ownership or operation by the Company, Conopco or any of their
respective subsidiaries of any material portion of the business or
assets of the Company, Conopco or any of their respective subsidiaries,
or to compel the Company, Conopco or any of their respective
subsidiaries to dispose of or hold separate any material portion of the
business or assets of the Company, Conopco or any of their respective
subsidiaries, as a result of the Offer, the Merger or any other
Transaction, (iii) seeking to impose limitations on the ability of
Conopco or Sub to acquire or hold, or exercise full rights of ownership
of, any shares of Company Common Stock, including the right to vote the
Company Common Stock purchased by it on all matters properly presented
to the shareholders of the Company, (iv) seeking to prohibit or limit
Conopco or any of its subsidiaries from effectively controlling in any
material respect the business or operations of the Company and the
Company Subsidiaries, or (v) which otherwise, individually or in the
aggregate, would reasonably be expected to have a Company Material
Adverse Effect;
(b) any Law shall be threatened, proposed, sought, or any Law
or Judgment shall be enacted, entered, enforced, promulgated, amended
or issued with respect to, or deemed applicable to, or any Consent
withheld with respect to (i) Conopco, the Company or any of their
respective subsidiaries or (ii) the Offer, the Merger or any other
Transaction, by any Governmental Entity that would reasonably be
<PAGE>
expected to result directly or indirectly, in any of the consequences
referred to in paragraph (a) above;
(c) since the date of this Agreement, there shall have
occurred (i) any material damage to any material property in which the
Company or any Company Subsidiary has any interest, (ii) any suit,
action or proceeding threatened against or affecting the Company or any
Company Subsidiary or any significant development in any existing suit,
action or proceeding involving or affecting the Company or any Company
Subsidiary, (iii) any challenge to the use by the Company of any
material intellectual property rights used in its business at the date
hereof or (iv) any event, change, effect or development adversely
affecting the integrity of the trademarks or trade names under which
the Company conducts its business, that, in any case under each of
clause (i), (ii), (iii) and (iv), individually or in the aggregate,
have had or would reasonably be expected to have, a Company Material
Adverse Effect;
(d)(i) it shall have been publicly disclosed or Conopco shall
have otherwise learned that beneficial ownership (determined for the
purposes of this paragraph as set forth in Rule 13d-3 promulgated under
the Exchange Act) of more than 50% of the outstanding shares of the
Company Common Stock has been acquired by another person or (ii) the
Company Board or any committee thereof shall have withdrawn or modified
in a manner adverse to Conopco or Sub, its approval or recommendation
of this Agreement, the Offer or the Merger, failed to recommend to the
Company's shareholders that they accept the Offer and give the Company
Shareholder Approval or approved or recommended any Company Takeover
Proposal;
(e)(i) any representation and warranty of the Company in this
Agreement that is qualified as to Company Material Adverse Effect shall
not be true and correct as of the date of this Agreement, except to the
extent such representation and warranty expressly relates to an earlier
date (in which case on and as of such earlier date), and (ii) the
representations and warranties of the Company that are not so qualified
as to Company Material Adverse Effect shall not be true or correct in
all respects as of the date of this Agreement, except to the extent
such representations and warranties expressly relate to an earlier date
(in which case on and as
<PAGE>
of such earlier date), unless the failure of all such representations
and warranties in this clause (ii) to be true and correct in aggregate,
has had or would reasonably be expected to have a Company Material
Adverse Effect;
(f) the Company shall have failed to perform in any material
respect any obligation or to comply in any material respect with any
agreement or covenant of the Company to be performed or complied with
by it under this Agreement; or
(g) this Agreement shall have been terminated in accordance
with its terms;
which, in any such case, and regardless of the circumstances giving rise to any
such condition (including any action or inaction by Conopco or any of its
affiliates), makes it inadvisable, in the sole judgment of Sub or Conopco, to
proceed with such acceptance for payment or payment.
The foregoing conditions are for the sole benefit of Sub and
Conopco and, subject to Section 1.01(a), may be asserted by Sub or Conopco
regardless of the circumstances giving rise to such conditions or may be waived
by Sub and Conopco in whole or in part at any time and from time to time in
their sole discretion. The failure by Conopco, Sub or any other affiliate of
Conopco at any time to exercise any of the foregoing rights shall not be deemed
a waiver of any such right, the waiver of any such right with respect to
particular facts and circumstances shall not be deemed a waiver with respect to
any other facts and circumstances and each such right shall be deemed an ongoing
right that may be asserted at any time and from time to time.
SECTION 7.02. CONDITIONS TO THE MERGER. The respective
obligation of each party to effect the Merger is subject to the satisfaction or
waiver on or prior to the Closing Date of the following conditions:
(a) SHAREHOLDER APPROVAL. The Company shall have
obtained the Company Shareholder Approval.
(b) ANTITRUST. The waiting period (and any extension thereof)
applicable to the Merger under the HSR Act shall have been terminated or shall
have expired.
(c) NO INJUNCTIONS OR RESTRAINTS. No temporary restraining
order, preliminary or permanent injunction or
<PAGE>
other order issued by any court of competent jurisdiction or other legal
restraint or prohibition preventing the consummation of the Merger shall be in
effect; PROVIDED, HOWEVER, that prior to asserting this condition each of the
parties shall have used its best efforts to prevent the entry of any such
injunction or other order and to appeal as promptly as possible any such
injunction or other order that may be entered.
ARTICLE VIII
TERMINATION, AMENDMENT AND WAIVER
SECTION 8.01. TERMINATION. This Agreement may be
terminated at any time prior to the Effective Time, whether
before or after receipt of Company Shareholder Approval:
(a) by mutual written consent of Conopco, Sub and
the Company;
(b) by either Conopco or the Company:
(i) if the Merger is not consummated on or before
September 30, 2000, unless the failure to consummate the
Merger is the result of a material breach of any Transaction
Agreement by the party seeking to terminate this Agreement;
PROVIDED, HOWEVER, that (A) the passage of such period shall
be tolled for any part thereof during which any party shall be
subject to a nonfinal order, decree, ruling or action
restraining, enjoining or otherwise prohibiting the
consummation of the Merger, (B) this Agreement may not be
terminated pursuant to this clause (i) after Sub accepts
shares of Company Common Stock for payment pursuant to the
Offer and (C) such September 30, 2000 date may be extended to
a date not later than November 30, 2000, by Conopco or the
Company prior to termination of this Agreement, by notice in
writing to the other, if on September 30, 2000, the Offer has
not been consummated because of the failure of the condition
in clause (ii) of the lead-in paragraph in Section 7.01 or the
condition in paragraph (a) in Section 7.01;
(ii) if any Governmental Entity issues an order,
decree or ruling or takes any other action permanently
enjoining, restraining or
<PAGE>
otherwise prohibiting the Offer or the Merger and such order,
decree, ruling or other action shall have become final and
nonappealable;
(iii) if as the result of the failure of any of the
conditions set forth in Section 7.01 to this Agreement, the
Offer shall have terminated or expired in accordance with its
terms without Conopco having purchased any shares of Company
Common Stock pursuant to the Offer; or
(iv) if, upon a vote at a duly held meeting to obtain
the Company Shareholder Approval, the Company Shareholder
Approval is not obtained; PROVIDED, HOWEVER, that Conopco may
not terminate this Agreement under this Section 8.01(b)(iv) if
the Company Common Stock owned by Sub, Conopco or any
affiliate of Conopco shall not have been voted in favor of
obtaining the Company Shareholder Approval;
(c) by Conopco, if the Company breaches or fails to perform in
any material respect any of its representations, warranties or
covenants contained in any Transaction Agreement, which breach or
failure to perform (i) would give rise to the failure of a condition
set forth in Section 7.01, and (ii) has not been cured within 30 days
after the giving of written notice to the Company of such breach
(provided that Conopco is not then in wilful and material breach of any
representation, warranty or covenant contained in any Transaction
Agreement);
(d) by Conopco:
(i) if the Company Board or any committee thereof
withdraws or modifies, or publicly proposes to withdraw or
modify, in a manner adverse to Conopco, its approval or
recommendation of this Agreement, the Offer or the Merger,
fails to recommend to the Company's shareholders that they
accept the Offer and give the Company Shareholder Approval or
approves or recommends, or publicly proposes to approve or
recommend, any Company Takeover Proposal; PROVIDED, HOWEVER,
that any public statement by the Company that (A) it has
received a Company Takeover Proposal, (B) it has given Conopco
the notice required by Section 5.02(b) in connection with the
withdrawal of its recommendation or (C) otherwise only
describes the technical
<PAGE>
operation of Sections 5.02, 6.07 and 7.01(d)(ii) and this
Section 8.01 shall not be deemed to be a public proposal to
withdraw or modify the Company Board's recommendation for the
purposes of this clause (i) or Section 7.01(d)(ii); or
(ii) if the Company or any of its officers,
directors, employees, representatives or agents
takes any of the actions that are proscribed by
Section 5.02;
(e) by the Company if the Company Board withdraws its
recommendation of the Offer in accordance with Section 5.02(b); and
(f) by the Company, if Conopco breaches or fails to perform in
any material respect any of its representations, warranties or
covenants contained in any Transaction Agreement, which breach or
failure to perform cannot be or has not been cured within 30 days after
the giving of written notice to Conopco of such breach (provided that
the Company is not then in wilful and material breach of any
representation, warranty or covenant contained in any Transaction
Agreement).
SECTION 8.02. EFFECT OF TERMINATION. In the event of
termination of this Agreement by either the Company or Conopco as provided in
Section 8.01, this Agreement shall forthwith become void and have no effect,
without any liability or obligation on the part of Conopco, Sub or the Company,
other than Section 3.21, Section 4.06, Section 6.02(c), Section 6.07, this
Section 8.02 and Article IX, which provisions shall survive such termination,
and except to the extent that such termination results from the wilful and
material breach by a party of any representa tion, warranty or covenant set
forth in any Transaction Agreement.
SECTION 8.03. AMENDMENT. This Agreement may be amended by the
parties at any time before or after receipt of the Company Shareholder Approval;
PROVIDED, HOWEVER, that after receipt of the Company Shareholder Approval, there
shall be made no amendment that by Law requires further approval by the
shareholders of the Company without the further approval of such shareholders.
This Agreement may not be amended except by an instrument in writing signed on
behalf of each of the parties and, where any amendment relates to a provision of
this Agreement in respect of which any third party beneficiary is entitled to an
enforcement right
<PAGE>
pursuant to Section 9.07, an instrument in writing must be signed by the person
entitled to such enforcement right.
SECTION 8.04. EXTENSION; WAIVER. At any time prior to the
Effective Time, the parties may (a) extend the time for the performance of any
of the obligations or other acts of the other parties, (b) waive any
inaccuracies in the representations and warranties contained in this Agreement
or in any document delivered pursuant to this Agreement or (c) subject to the
proviso of Section 8.03, waive compliance with any of the agreements or
conditions contained in this Agreement. Any agreement on the part of a party to
any such extension or waiver shall be valid only if set forth in an instrument
in writing signed on behalf of such party and, where any waiver relates to a
provision of this Agreement in respect of which any third party beneficiary is
entitled to an enforcement right pursuant to Section 9.07, an instrument in
writing must be signed by the person entitled to such enforcement right. The
failure of any party to this Agreement to assert any of its rights under this
Agreement or otherwise shall not constitute a waiver of such rights.
SECTION 8.05. PROCEDURE FOR TERMINATION, AMEND MENT, EXTENSION
OR WAIVER. A termination of this Agreement pursuant to Section 8.01, an
amendment of this Agreement pursuant to Section 8.03 or an extension or waiver
pursuant to Section 8.04 shall, in order to be effective, require (a) in the
case of Conopco, Sub or the Company, action by its Board of Directors or the
duly authorized designee of its Board of Directors and (b) in the case of the
Company, action by a majority of the members of the Company Board who were
members thereof on the date of this Agreement and remain as such hereafter or
the duly authorized designee of such members; PROVIDED, HOWEVER, that in the
event that Sub's designees are appointed or elected to the Company Board as
provided in Section 6.10, after the acceptance for payment of Company Common
Stock pursuant to the Offer and prior to the Effective Time, the affirmative
vote of the majority of the Independent Directors, in lieu of the vote required
pursuant to clause (a) above, shall be required by the Company to (i) amend or
terminate this Agreement, (ii) exercise or waive any of the Company's rights or
remedies under this Agreement or (iii) extend the time for performance of
Conopco's or Sub's respective obligations under this Agreement.
<PAGE>
ARTICLE IX
GENERAL PROVISIONS
SECTION 9.01. NONSURVIVAL OF REPRESENTATIONS AND WARRANTIES.
None of the representations and warranties in this Agreement or in any
instrument delivered pursuant to this Agreement shall survive the Effective
Time. This Section 9.01 shall not limit any covenant or agreement of the parties
which by its terms contemplates performance after the Effective Time.
SECTION 9.02. NOTICES. All notices, requests, claims, demands
and other communications under this Agree ment shall be in writing and shall be
deemed given upon receipt by the parties at the following addresses (or at such
other address for a party as shall be specified by like notice):
(a) if to Conopco or Sub, to
Conopco, Inc.
390 Park Avenue, 21st Floor
New York, NY 10022
Attention: Ronald Soiefer
Facsimile: (212) 688-3411
with a copy to:
Cravath, Swaine & Moore
Worldwide Plaza
825 Eighth Avenue
New York, NY 10019
Attention: Richard Hall
Facsimile: (212) 474-3700
(b) if to the Company, to
Ben & Jerry's Homemade, Inc.
30 Community Drive
South Burlington, VT 05403
Attention: Chief Executive Officer
Facsimile (508) 230-5579
<PAGE>
with a copy to:
Ropes & Gray
One International Place
Boston, MA 02110
Attention: Howard K. Fuguet
Facsimile: (617) 951-7050
and:
Skadden, Arps, Slate, Meagher & Flom LLP
Four Times Square
New York, New York 10036
Attention: Randall H. Doud
Facsimile: (917) 777-2524
SECTION 9.03. DEFINITIONS. For purposes of this
Agreement:
"AFFILIATE" and "ASSOCIATE", when used with reference to any
person, shall have the respective meanings ascribed to such terms in Rule 12b-2
of the Exchange Act, as in effect on the date of this Agreement. In the case of
Conopco, "affiliate" shall include, without limitation, either Parent, and any
entity a majority of the voting control of which is owned, directly or
indirectly, by either Parent or both of them together.
A "MATERIAL ADVERSE EFFECT" means, when used in connection
with the Company or Conopco, any change or effect that is materially adverse to
the business, properties, assets, condition (financial or otherwise), or results
of operations of such party and its subsidiaries, taken as a whole, except (in
the case of the Company) as expressly set forth in the Company Disclosure
Letter.
An "INELIGIBLE DIRECTOR" means any member of the Company Board
at the date hereof who (a) fails to tender his or her shares of Company Common
Stock pursuant to the Offer, (b) makes any public statement disparaging either
Parent, Conopco, the Company, any Transaction Agreement or any Transaction, (c)
takes any action that, but for Section 9.11, would constitute a breach of this
Agreement by the Company or (d) takes any other action which is intended to
cause any of the Transactions to fail to be completed.
"PARENT" means either of Unilever N.V. or Unilever
PLC and "PARENTS" shall mean both of them.
<PAGE>
A "PERSON" means any individual, firm, corporation,
partnership, company, limited liability company, trust, joint venture,
association, Governmental Entity or other entity.
A "SUBSIDIARY" of any person means another person, an amount
of the voting securities, other voting ownership or voting partnership interests
of which is sufficient to elect at least a majority of its Board of Directors or
other governing body (or, if there are no such voting interests, 50% or more of
the equity interests of which) is owned directly or indirectly by such first
person.
SECTION 9.04. INTERPRETATION; DISCLOSURE LETTERS. When a
reference is made in this Agreement to a Section, Exhibit or Schedule such
reference shall be to a Section of this Agreement unless otherwise indicated.
The table of contents and headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement. Whenever the words "include", "includes" or "including" are used
in this Agreement, they shall be deemed to be followed by the words "without
limitation". Any matter disclosed in any section of the Company Disclosure
Letter shall be deemed disclosed only for the purposes of the specific Sections
of this Agreement to which such section relates.
SECTION 9.05. SEVERABILITY. If any term or other provision of
this Agreement is invalid, illegal or incapable of being enforced by any rule or
Law, or public policy, all other conditions and provisions of this Agreement
shall nevertheless remain in full force and effect so long as the economic or
legal substance of the transactions contemplated hereby is not affected in any
manner materially adverse to any party. Upon such determination that any term or
other provision is invalid, illegal or incapable of being enforced, the parties
hereto shall negotiate in good faith to modify this Agreement so as to effect
the original intent of the parties as closely as possible in an acceptable
manner to the end that transactions contemplated hereby are fulfilled to the
extent possible.
SECTION 9.06. COUNTERPARTS. This Agreement may be executed in
one or more counterparts, all of which shall be considered one and the same
agreement and shall become effective when one or more counterparts have been
signed by each of the parties and delivered to the other parties.
<PAGE>
SECTION 9.07. ENTIRE AGREEMENT; NO THIRD-PARTY BENEFICIARIES.
The Transaction Agreements, taken together with the Company Disclosure Letter
and the Conopco Disclosure Letter, (a) constitute the entire agreement, and
supersede all prior agreements and understandings, both written and oral, among
the parties with respect to the Transactions, and (b) except for the provisions
of Article II and Sections 6.04(a), 6.05, 6.06, 6.15, 6.16 and 6.18 are not
intended to confer upon any person other than the parties any rights or
remedies. The provisions of Section 6.04(a) are enforceable by the holders of
the Company Stock Options. The provisions of Section 6.05(a) are enforceable by
the parties to those agreements referred to in Section 6.05(a). The provisions
of Sections 6.05(b), 6.05(c), 6.05(d), 6.16 and 6.18 are enforceable by Henry
Morgan and Jeffrey Furman acting jointly. Conopco shall reimburse the reasonable
legal fees and expenses of Henry Morgan and Jeff Furman in bringing any
litigation, or taking any other action, in good faith to enforce the third-party
beneficiary rights granted to them under this Section 9.07. The provisions of
Section 6.06 are enforceable by the directors and officers referred to in
Section 6.06. Until such time as the Company Board is constituted in accordance
with Section 6.14(a), the provisions of Section 6.14(a) are enforceable by any
individual who is a member of the Company Board at the date of this Agreement.
Thereafter, (i) the provisions of Section 6.14(a) relating to the removal of
directors may be enforced by any individual who was a member of the Company
Board immediately prior to the alleged breach of Section 6.14(a) and (ii) the
provisions of Section 6.14(a) relating to the appointment of a director may be
enforced by any individual who was a member of the Company Board immediately
prior to the alleged breach of Section 6.14(a) or by any individual nominated
for appointment in accordance with the provisions of Section 6.14(a) but not so
appointed by the Surviving Corporation. The provisions of Section 6.15 are
enforceable by the Foundation.
SECTION 9.08. GOVERNING LAW. THIS AGREEMENT AND ANY DISPUTE
ARISING OUT OF OR RELATING TO THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK, REGARDLESS OF THE LAWS THAT MIGHT OTHERWISE GOVERN UNDER APPLICABLE
PRINCIPLES OF CONFLICTS OF LAWS THEREOF, EXCEPT TO THE EXTENT THE LAWS OF THE
STATE OF VERMONT ARE MANDATORILY APPLICABLE TO THE MERGER.
<PAGE>
SECTION 9.09. ASSIGNMENT. Neither this Agreement nor any of
the rights, interests or obligations under this Agreement shall be assigned, in
whole or in part, by opera tion of law or otherwise by any of the parties
without the prior written consent of the other parties except that Sub may
assign, in its sole discretion, any of or all its rights, interests and
obligations under this Agreement to Conopco or to any direct or indirect wholly
owned subsidiary of Conopco, but no such assignment shall relieve Sub of any of
its obligations under this Agreement. Any purported assignment without such
consent shall be void. Subject to the preceding sentences, this Agreement will
be binding upon, inure to the benefit of, and be enforceable by, the parties and
their respective successors and assigns.
SECTION 9.10. ENFORCEMENT. The parties agree that irreparable
damage would occur in the event that any of the provisions of any Transaction
Agreement were not performed in accordance with their specific terms or were
otherwise breached. It is accordingly agreed that the parties shall be entitled
to an injunction or injunctions to prevent breaches of any Transaction Agreement
and to enforce specifically the terms and provisions of each Transaction
Agreement in any New York state court or any Federal court located in the State
of New York, this being in addition to any other remedy to which they are
entitled at law or in equity. In addition, each of the parties hereto (a)
consents to submit itself to the personal jurisdiction of any New York state
court or any Federal court located in the State of New York in the event any
dispute arises out of any Transaction Agreement or any Transaction, (b) agrees
that it will not attempt to deny or defeat such personal jurisdiction by motion
or other request for leave from any such court, (c) agrees that it will not
bring any action relating to any Transaction Agreement or any Transaction in any
court other than any New York state court or any Federal court sitting in the
State of New York and (d) waives any right to trial by jury with respect to any
action related to or arising out of any Transaction Agreement or any
Transaction.
SECTION 9.11. SEPARATE PARTIES. Each of the parties to this
Agreement acknowledges and agrees that each party is responsible for its own
performance of its obligations hereunder and that no other party shall be liable
for a failure of another party to perform its obligations. Without limiting the
foregoing, it is acknowledged by Conopco that no Ineligible Director is
<PAGE>
acting as a representative of the Company in connection with the Transaction
Agreements or the Transactions and that any action or failure to act on the part
of any Ineligible Director shall not be deemed to be an action or failure to act
on the part of the Company, including under Section 5.02, 6.07 or 8.01, except
to the extent that such Ineligible Director's action or failure to act is taken
under the instruction of, or with the cooperation or the concurrence of, the
Company Board.
IN WITNESS WHEREOF, Conopco, Sub and the Company have duly
executed this Agreement, all as of the date first written above.
CONOPCO, INC.,
by
/S/ MART LAIUS
--------------------------------
Name: Mart Laius
Title: Vice President
VERMONT ALL NATURAL EXPANSION
COMPANY,
by
/S/ MART LAIUS
--------------------------------
Name: Mart Laius
Title: Vice President
BEN & JERRY'S HOMEMADE, INC.,
by
/S/ PERRY D. ODAK
--------------------------------
Name: Perry D. Odak
Title: Chief Executive Officer
<PAGE>
EXHIBIT A
ARTICLES OF INCORPORATION
OF
SURVIVING CORPORATION
ARTICLE I
The name of the corporation (hereinafter called the
"Corporation") is BEN & JERRY'S HOMEMADE, INC.
ARTICLE II
The address of the Corporation's registered office in the
State of Vermont is 148 College Street, Burlington, Vermont. The name of the
registered agent at such address is The Corporation Trust Company.
ARTICLE III
The Corporation has the following Mission Statement: We have a
progressive, nonpartisan, social mission that seeks to meet human needs and
eliminate injustices in our local, national and international communities by
integrating these concerns into our business activities. Our focus is on
children and families, and the environment.
- - The gap between the rich and the poor is wide. We strive to create
economic opportunities for those who have been denied them.
<PAGE>
- - Capitalism and the wealth it produces does not create opportunity for
everyone equally. We practice caring capitalism by integrating concern
for the disadvantaged in our day-to-day business activities, and by
advancing new models of economic justice that can become sustainable
and replicable.
- - Manufacturing by definition creates waste. We strive
to minimize our negative impact on the environment.
- - The growing of food sometimes uses toxic chemicals. We support socially
and environmentally sustainable methods of food production and family
farming.
The U.S. continues to spend significantly more on its military each year than
the combined spending on: child health, welfare, education, nutrition, housing,
job training and environment. We seek and support nonviolent ways to achieve
peace and justice.
We strive to manifest a deep respect for human beings inside and outside our
Corporation and for the communities of which they live.
<PAGE>
ARTICLE IV
The total number of shares of all classes of stock that the
Corporation shall have authority to issue is 10,000,000 shares of Common Stock
having the par value of $0.01 per share.
ARTICLE V
The number of directors of the Corporation shall be fixed from
time to time by the Board of Directors of the Corporation.
ARTICLE VI
In furtherance and not in limitation of the powers conferred
upon it by law, the Board of Directors of the Corporation is expressly
authorized to adopt, amend or repeal the By-laws of the Corporation.
ARTICLE VII
Unless and except to the extent that the By-laws of the
Corporation so require, the election of directors of the Corporation need not be
by written ballot.
ARTICLE VIII
To the fullest extent from time to time permitted by law, no
director of the Corporation shall be personally liable to any extent to the
Corporation or its
<PAGE>
shareholders for monetary damages for breach of his fiduciary duty as a
director.
ARTICLE IX
Each person who is or was or had agreed to become a director
or officer of the Corporation, and each such person who is or was serving or who
had agreed to serve at the request of the Corporation as a director, officer,
partner, member, employee or agent of another corporation, partnership, limited
liability company, joint venture, trust or other enterprise (including the
heirs, executor, administrators or estate of such person), shall be indemnified
by the Corporation to the fullest extent permitted from time to time by
applicable law.
ARTICLE X
The purpose of the Corporation is to engage in any lawful act
or activity for which corporations may be organized under the Vermont Business
Corporation Act.
<PAGE>
EXHIBIT B
FORM OF DELEGATION OF AUTHORITY
A. Conopco and the Company Board retain authority with regard to the
following matters, among others; as between Conopco and the Company
Board the allocation of responsibility between them shall be as
provided in Section 6.14:
1. Approval on an annual basis for the upcoming year
of:
a. the Company's Strategic and Operating Plan to
include: Marketing, Sales and Social Mission
b. the Financial Plan/Budget to include:
Statement of Income, Balance Sheet and
Statements of Cash Flows (including an
Operating Budget, Statement of Projected
Financial Positions, Balance Sheet and Flow
of Funds Forecasts)
c. the Capital Expenditure Budget and Operating
Lease Budget
d. the Company's draft and final audited
financial statements
e. Trade Credit Policy: Conopco approval for
Trade Credit extended to any customer in
excess of $1 million
2. Selection of
a. Corporate Counsel
b. Independent Auditors
2.1. Approval of
a. the principal Banking Institution(s) with
which the Company maintains deposit,
borrowing or other relationships
c. any Investment Banking Institution
d. Public Relations and Advertising Agencies
e. Consultants with a contract value in excess
of $175,000 or to whom payments are expected
to exceed $175,000 in the aggregate
f. any insurance agent, broker or similar party
3. Any transaction involving
<PAGE>
a. the sale or encumbrance of assets with a book
value over $100,000
b. the sale of stock or assets of a subsidiary
c. the acquisition of stock or assets of another
company
d. loans in excess of $30,000 made outside the
ordinary course of business not to exceed
$150,000 outstanding at any time
e. a single purchase of Inventory in excess of $5
million or any opening of Letters of Credit in excess
of $2 million (in the aggregate of excess over and
above $2 million or singular opening of Letter of
Credit above $2 million)
f. transactions with any parties related to any
officer of the Company
g. the sale or purchase of the Company's capital
stock
h. the declaration and payment of dividends
i. the approval of any other contract (including
all real property leases, joint venture, partnership
or similar contracts with vendors) with a value in
excess of $250,000 per year with terms not to exceed
five years or any other non-ordinary course payment
or purchase orders (including the settlement of
litigation claims involving payments by the Company)
in excess of $250,000
4. Total compensation (including Bonuses) of any employees at or
above the level of Officer and/or any other employees
exceeding $200,000 annually.
5. Employment termination or appointments of any employee with a
base salary at or above $200,000.
6. Any change in employee benefit plans with an annual aggregate
cost increase in excess of $300,000.
7. Any amendments of the By-laws of the Company.
8. Any amendment or alteration of the borrowing authority of the
Company or renegotiation, prepayment of or amendment to any
lending arrangement.
<PAGE>
9. Approval of authorized signatures and signing authorities on
all bank accounts for check signing, money transfer
authorities, etc.
10. The delegation of authority to individuals other than officers
(E.G., buyers) of the Company to execute contracts or other
agreements on behalf of the Company.
11. Any amendment or new collective bargaining or other labor
agreements.
12. all matters not covered by the delegation in B and any matters
requiring, as a matter of law, a specific vote of the Board of
Directors in addition to the votes establishing the below
delegation.
B. The Surviving Corporation delegates to the Chief Executive Officer the
authority to set upon the following matters with the required written
concurrence of the Chief Financial Officer:
1. Capital Expenditures within the Capital Budget up to $700,000
per project; PROVIDED, that the total value of capital
expenditures does not exceed the amount authorized in the
Budget.
2. Capital Expenditures not in the Capital Budget up to $350,000
per project, but not over $750,000 in the aggregate. In no
event will total capital expenditures exceed the total value
of capital expenditures authorized in the Capital Budget.
3. Disposal or encumbrance of assets with a book or fair market
value of no more than $150,000 per transaction.
4. Operating Leases within Operating Lease Budget up to a total
commitment of $500,000 per transaction.
5. Operating Leases not in Operating Lease Budget, with a total
commitment of $150,000 per year in total commitment per lease
with a term not to exceed five years, but not over $450,000
annually in the aggregate.
6. Administration of the details of the Company's Compensation
Program (applying its general
<PAGE>
compensation philosophy as previously developed) for all
employees (other than those covered in A.3 above).
7. Administration of the Employees Benefit Program, including
approval of changes with an aggregate annual cost up to
$300,000.
8. a. Execution of contracts within the ordinary
course with an individual value of up to
$500,000 that do not require special approval
by A.3 above.
b. Other non-ordinary payments in an amount up to
$150,000 that also do not require special approval by
A.3 above.
C. Conopco and the Surviving Corporation will be provided with a
comprehensive review of the following matters by the Chief Executive
Officer, or other members of the management on a regular basis, or more
often if issues create the need:
1. As soon as practical:
a. Status of material tax matters as they arise.
b. Status of material legal matters as they
arise.
c. Any material change in vendor relations.
d. Any material change in the operating or
financial performance of the Company.
e. Any contact made by potential buyers who may
be interested in purchasing the Company
and/or its assets.
f. Notices of default or acceleration under loan
agreements, notes or significant contract.
2. Monthly:
a. Financial and operating results, including
managements analysis in writing
b. Update/reconciliation of actual vs. budgeted Capital
expenditures.
3. Quarterly:
a. Status of legal matters
b. Competition update
c. Information systems
<PAGE>
d. Report on all banking relationships
e. Product Quality
4. Annually:
a. Independent accountant management letters
b. Other tax matters
c. Officers salary, bonus and wages adjustment
recommendations
d. Property/Casualty and employee benefit
insurance programs
e. Advertising and Public Relations programs
f. Officer performance appraisals
g. Union relationships
<PAGE>
Exhibit (2)(c)
CONFORMED COPY
STOCK OPTION AGREEMENT dated as of April 11, 2000, between
BEN & JERRY'S HOMEMADE, INC., a Vermont corporation ("ISSUER"),
and CONOPCO, INC., a New York corporation ("GRANTEE").
WHEREAS Issuer and Grantee are parties to an Agreement and
Plan of Merger, dated as of the date hereof (the "MERGER AGREEMENT"; defined
terms used but not defined herein have the meanings set forth in the Merger
Agreement); and
WHEREAS as a condition and inducement to Grantee's willingness
to enter into the Merger Agreement, Grantee has requested that Issuer agree, and
Issuer has agreed, to grant Grantee the Option (as defined below).
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. GRANT OF OPTION. Issuer hereby grants to Grantee an
irrevocable option (the "OPTION") to purchase up to 1,219,986 (as adjusted as
set forth herein) shares (the "OPTION SHARES") of Class A Common Stock at a
purchase price of $43.60 (as adjusted as set forth herein) per Option Share (the
"PURCHASE PRICE").
SECTION 2. EXERCISE OF OPTION. (a) Grantee may exercise the
Option, with respect to any of or all the Option Shares at any one time after
the termination of the Merger Agreement in circumstances in which the Grantee is
entitled to receive a termination fee pursuant to Section 6.07 of the Merger
Agreement (a "PURCHASE EVENT"); PROVIDED, HOWEVER, that (i) except as provided
in the last sentence of this Section 2(a), the Option shall terminate and be of
no further force and effect upon the earliest to occur of (A) the Effective
Time, (B) 180 days after the first occurrence of a Purchase Event, and (C)
termination of the Merger Agreement in accordance with its terms prior to and
without the occurrence of a Purchase Event, and (ii) any purchase of Option
Shares upon exercise of the Option shall be subject to compliance with the HSR
Act and the obtaining or making of any consents, approvals, orders,
notifications or authorizations, the failure of which to have obtained or made
would have the effect of making the
<PAGE>
issuance of Option Shares illegal. Notwithstanding the termination of the
Option, Grantee shall be entitled to purchase the Option Shares if it has
exercised the Option in accordance with the terms hereof prior to the
termination of the Option and the termination of the Option shall not affect any
rights hereunder that by their terms do not terminate or expire prior to or as
of such termination.
(b) The exercise of the Option shall be effected by Grantee
sending to Issuer a written notice (an "EXERCISE NOTICE"; the date of which
being herein referred to as the "NOTICE DATE") to that effect. An Exercise
Notice shall specify the number of Option Shares, if any, Grantee wishes to
purchase pursuant to the Option, the number of Option Shares, if any, with
respect to which Grantee wishes to exercise its Cash-Out Right (as defined in
Section 6(c)), the denominations of the certificate or certificates evidencing
the Option Shares that Grantee wishes to purchase pursuant to the Option and a
date not earlier than three business days nor later than 20 business days from
the Notice Date for the closing of such purchase (the "OPTION CLOSING DATE").
Any Option Closing will be at an agreed location and time in New York, New York
on the applicable Option Closing Date or at such later date as may be necessary
so as to comply with Section 2(a).
SECTION 3. PAYMENT AND DELIVERY OF CERTIFICATES. (a) At any
Option Closing, Grantee shall pay to Issuer in immediately available funds by
wire transfer to a bank account designated in writing by Issuer an amount equal
to the Purchase Price multiplied by the number of Option Shares to be purchased
at such Option Closing.
(b) At any Option Closing, simultaneously with the delivery of
immediately available funds as provided in Section 3(a), Issuer shall deliver to
Grantee a certificate or certificates representing the Option Shares to be
purchased at such Option Closing, which Option Shares shall be free and clear of
all Liens.
(c) Certificates for the Option Shares delivered at an Option
Closing shall have typed or
<PAGE>
printed thereon a restrictive legend, which will read substantially as follows:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY BE
REOFFERED OR SOLD ONLY IF SO REGISTERED OR IF AN EXEMPTION FROM SUCH
REGISTRATION IS AVAILABLE."
It is understood and agreed that the reference to restrictions arising under the
Securities Act in the above legend will be removed by delivery of substitute
certificate(s) without such reference if such Option Shares have been registered
and sold pursuant to the Securities Act, such Option Shares have been sold in a
transaction in reliance on and in accordance with Rule 144 under the Securities
Act or Grantee has delivered to Issuer a copy of a letter from the staff of the
SEC, or an opinion of counsel in form and substance reasonably satisfactory to
Issuer and its counsel, to the effect that such legend is not required for
purposes of the Securities Act.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF
ISSUER. Issuer hereby represents and warrants to Grantee as
follows:
Issuer has taken all necessary corporate and other action to
authorize and reserve and, subject to the expiration or termination of
any required waiting period under the HSR Act, to permit it to issue,
and, at all times from the date hereof until the obligation to deliver
Option Shares upon the exercise of the Option terminates, shall have
reserved for issuance, upon exercise of the Option, shares of Class A
Common Stock sufficient for Grantee to exercise the Option in full, and
Issuer shall take all necessary corporate action to authorize and
reserve for issuance all additional shares of Class A Common Stock or
other securities which may be issued pursuant to Section 6 upon
exercise of the Option. The shares of Class A Common Stock to be
issued upon due exercise of the Option, including all additional
shares of Class A Common Stock or other securities which may be
<PAGE>
issuable upon exercise of the Option or any other securities which may
be issued pursuant to Section 6, upon issuance pursuant hereto, will
be duly and validly issued, fully paid and nonassessable, and will be
delivered free and clear of all Liens, including any preemptive rights
of any shareholder of Issuer.
SECTION 5. REPRESENTATIONS AND WARRANTIES OF GRANTEE. Grantee
hereby represents and warrants to Issuer that any Option Shares or other
securities acquired by Grantee upon exercise of the Option will not be
transferred or otherwise disposed of except in a transaction registered, or
exempt from registration, under the Securities Act.
SECTION 6. ADJUSTMENT UPON CHANGES IN CAPITALIZATION, ETC. (a)
In the event of any change in Class A Common Stock by reason of a stock
dividend, split-up, merger, recapitalization, combination, exchange or
conversion of shares, or similar transaction, the type and number of shares or
securities subject to the Option, and the Purchase Price thereof, shall be
adjusted appropriately, and proper provision will be made in the agreements
governing such transaction, so that Grantee shall receive upon exercise of the
Option the number and class of shares or other securities or property that
Grantee would have received in respect of Class A Common Stock if the Option had
been exercised immediately prior to such event or the record date therefor, as
applicable. Subject to Section 1, and without limiting the parties' relative
rights and obligations under the Merger Agreement, if any additional shares of
Class A Common Stock are issued after the date of this Agreement (other than
pursuant to an event described in the first sentence of this Section 6(a)), the
number of shares of Class A Common Stock subject to the Option shall be adjusted
so that, after such issuance, it equals 19.9% of the number of shares of Class A
Common Stock then issued and outstanding, without giving effect to any shares
subject to or issued pursuant to the Option.
(b) Without limiting the parties' relative rights and
obligations under the Merger Agreement, in the event that Issuer enters into an
agreement (i) to
<PAGE>
consolidate with or merge into any person, other than Grantee or one of its
subsidiaries, and Issuer will not be the continuing or surviving corporation in
such consolidation or merger, (ii) to permit any person, other than Grantee or
one of its subsidiaries, to merge into Issuer and Issuer will be the continuing
or surviving corporation, but in connection with such merger, the shares of
Class A Common Stock outstanding immediately prior to the consummation of such
merger will be changed into or exchanged for stock or other securities of Issuer
or any other person or cash or any other property, or the shares of Class A
Common Stock outstanding immediately prior to the consummation of such merger
will, after such merger, represent less than 50% of the outstanding voting
securities of the merged company, or (iii) to sell or otherwise transfer all or
substantially all its assets to any person, other than Grantee or one of its
subsidiaries, then, and in each such case, the agreement governing such
transaction will make proper provision so that the Option will, upon the
consummation of any such transaction and upon the terms and conditions set forth
herein, be converted into, or exchanged for, an option with identical terms
appropriately adjusted to acquire the number and class of stock or other
securities or cash or other property that Grantee would have received in respect
of Class A Common Stock if the Option had been exercised immediately prior to
such consolidation, merger, sale, or transfer, or the record date therefor, as
applicable and make any other necessary adjustments.
(c) If, at any time during the period commencing on a
Purchase Event and ending on the termination of the Option in accordance with
Section 2, Grantee sends to Issuer an Exercise Notice indicating Grantee's
election to exercise its right (the "CASH-OUT RIGHT") pursuant to this
Section 6(c), then Issuer shall pay to Grantee, on the Option Closing Date,
in exchange for the cancelation of the Option with respect to such number of
Option Shares as Grantee specifies in the Exercise Notice, an amount in cash
equal to the greater of (i) $1.00 per Option Share the subject of such
Exercise Notice and (ii) such number of Option Shares multiplied by the
difference between (A) the average closing price, for the ten trading days
commencing on the 12th trading day immediately preceding the Notice Date,
<PAGE>
per share of Class A Common Stock as reported on the NASDAQ, as reported in THE
WALL STREET JOURNAL (Northeast edition), or, if not reported thereby, any other
authoritative source (the "CLOSING PRICE") and (B) the Purchase Price.
Notwithstanding the termination of the Option, Grantee shall be entitled to
exercise its rights under this Section 6(c) if it has exercised such rights in
accordance with the terms hereof prior to the termination of the Option.
Notwithstanding anything herein to the contrary, the aggregate amount payable by
Issuer to Grantee pursuant to this Section 6(c) shall not exceed $500,000.
SECTION 7. REGISTRATION RIGHTS. Issuer shall, if requested
by Grantee at any time and from time to time within three years of the
exercise of the Option, as expeditiously as possible prepare and file up to
three registration statements under the Securities Act if such registration
is necessary in order to permit the sale or other disposition of any or all
shares of securities that have been acquired by or are issuable to Grantee
upon exercise of the Option in accordance with the intended method of sale or
other disposition stated by Grantee, including a "shelf" registration
statement under Rule 415 under the Securities Act or any successor provision,
and Issuer shall use its best efforts to qualify such shares or other
securities under any applicable state securities laws. Issuer shall use
reasonable efforts to cause each such registration statement to become
effective, to obtain all consents or waivers of other parties which are
required therefor, and to keep such registration statement effective for such
period not in excess of 180 calendar days from the day such registration
statement first becomes effective as may be reasonably necessary to effect
such sale or other disposition. The obligations of Issuer hereunder to file a
registration statement and to maintain its effectiveness may be suspended for
up to 60 calendar days in the aggregate if the Board of Directors of Issuer
shall have determined that the filing of such registration statement or the
maintenance of its effectiveness would require premature disclosure of
material nonpublic information that would materially and adversely affect
Issuer or otherwise interfere with or adversely affect any pending or
proposed offering of securities of Issuer or any other
<PAGE>
material transaction involving Issuer. Any registration statement prepared and
filed under this Section 7, and any sale covered thereby, shall be at Issuer's
expense except for underwriting discounts or commissions, brokers' fees and the
fees and disbursements of Grantee's counsel related thereto. Grantee will
provide all information reasonably requested by Issuer for inclusion in any
registration statement to be filed hereunder. If, during the time periods
referred to in the first sentence of this Section 7, Issuer effects a
registration under the Securities Act of Class A Common Stock for its own
account or for any other shareholders of Issuer (other than on Form S-4 or Form
S-8, or any successor form), it shall allow Grantee the right to participate in
such registration, and such participation shall not affect the obligation of
Issuer to effect demand registration statements for Grantee under this Section
7; PROVIDED, HOWEVER, that, if the managing underwriters of such offering advise
Issuer in writing that in their opinion the number of shares of Class A Common
Stock requested to be included in such registration exceeds the number which can
be sold in such offering, Issuer shall include the shares requested to be
included therein by Grantee pro rata with the shares intended to be included
therein by Issuer. In connection with any registration pursuant to this Section
7, Issuer and Grantee shall provide each other and any underwriter of the
offering with customary representations, warranties, covenants, indemnification,
and contribution in connection with such registration.
SECTION 8. LOSS OR MUTILATION. Upon receipt by Issuer of
evidence reasonably satisfactory to it of the loss, theft, destruction or
mutilation of this Agreement, and (in the case of loss, theft or destruction) of
reasonably satisfactory indemnification, and upon surrender and cancelation of
this Agreement, if mutilated, Issuer will execute and deliver a new Agreement of
like tenor and date. Any such new Agreement executed and delivered will
constitute an additional contractual obligation on the part of Issuer, whether
or not the Agreement so lost, stolen, destroyed, or mutilated shall at any time
be enforceable by anyone.
SECTION 9. MISCELLANEOUS. (a) EXPENSES. Except as otherwise
provided in the Merger Agreement,
<PAGE>
each of the parties hereto will bear and pay all costs and expenses incurred by
it or on its behalf in connection with the transactions contemplated hereunder,
including fees and expenses of its own financial consultants, investment
bankers, accountants, and counsel.
(b) AMENDMENT. This Agreement may not be amended, except by an
instrument in writing signed on behalf of each of the parties.
(c) EXTENSION; WAIVER. Any agreement on the part of a party to
waive any provision of this Agreement, or to extend the time for performance,
will be valid only if set forth in an instrument in writing signed on behalf of
such party. The failure of any party to this Agreement to assert any of its
rights under this Agreement or otherwise will not constitute a waiver of such
rights.
(d) NO THIRD-PARTY BENEFICIARIES. This Agreement is not
intended to confer upon any person other than the parties and their successors
and permitted assigns any rights or remedies.
(e) GOVERNING LAW. This Agreement will be governed by, and
construed in accordance with, the laws of the State of New York, regardless of
the laws that might otherwise govern under applicable principles of conflict of
laws thereof.
(f) NOTICES. All notices, requests, claims, demands, and other
communications under this Agreement shall be given in accordance with Section
9.02 of the Merger Agreement.
(g) ASSIGNMENT. Neither this Agreement, the Option nor any of
the rights, interests, or obligations under this Agreement may be assigned or
delegated, in whole or in part, by operation of law or otherwise, by Issuer or
Grantee without the prior written consent of the other, except that Grantee may
assign all its rights under Section 7 to any person who acquires from Grantee
any Option Shares. Any assignment or delegation in violation of the preceding
sentence shall be void.
<PAGE>
Subject to the first and second sentences of this Section 9(g), this Agreement
shall be binding upon, inure to the benefit of, and be enforceable by, the
parties and their respective successors and permitted assigns.
(h) FURTHER ASSURANCES. In the event of any exercise of the
Option by Grantee, Issuer and Grantee shall execute and deliver all other
documents and instruments and take all other actions that may be reasonably
necessary in order to consummate the transactions provided for by such exercise.
IN WITNESS WHEREOF, Issuer and Grantee have duly executed this
Agreement, all as of the day and year first written above.
CONOPCO, INC.,
by
/S/ MART LAIUS
------------------------------------
Name: Mart Laius
Title: Vice President
BEN & JERRY'S HOMEMADE, INC.,
by
/S/ PERRY D. ODAK
------------------------------------
Name: Perry D. Odak
Title: Chief Executive Officer
<PAGE>
EXHIBIT 99
POWER OF ATTORNEY
The undersigned, Unilever N.V., a Netherlands corporation ("Unilever"), hereby
constitutes and appoints Thomas H. Floyd, Mart Laius and Ronald M. Soifer, and
each of them, with full power of substitution and resubstitution, as Unilever's
agent and attorney-in-fact, with full power and authority to do and perform any
and all things on Unilever's behalf for all purposes relating to the
transactions contemplated by the Agreement and Plan of Merger dated as of April
11, 2000 among Conopco, Inc., Vermont All Natural Expansion Company and Ben &
Jerry's Homemade, Inc. and related agreements of even date therewith (the
"Agreements"), including without limitation, for the purposes of signing any and
all documents to be filed with or furnished to the Securities and Exchange
Commission or the New York Stock Exchange or any other governmental or
regulatory authority, as well as any and all agreements, certificates,
instruments or other documents as such agents and attorneys-in-fact in their
discretion individually deem necessary or advisable to be entered into in
connection with the consummation of the transactions contemplated by the
Agreements.
IN WITNESS WHEREOF, Unilever N.V. has duly executed this instrument as of the
date set forth below by its duly authorized officers.
/s/ G. DIJKSTRA /s/ R. W. CHAMBERLAIN
- -------------------------- ---------------------------
G. Dijkstra R. W. Chamberlain
Attorney B Attorney A
Rotterdam, 14th April, 2000
