<PAGE>
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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SCHEDULE 14D-1
TENDER OFFER STATEMENT PURSUANT TO SECTION 14(D)(1)
OF THE SECURITIES AND EXCHANGE ACT OF 1934
AND
SCHEDULE 13D
----------------
NU-WEST INDUSTRIES, INC.
(NAME OF SUBJECT COMPANY)
AGRIUM ACQUISITION CORPORATION
AGRIUM U.S. INC.
AGRIUM INC.
(BIDDERS)
VOTING COMMON STOCK, $.01 PAR VALUE
(TITLE OF CLASS OF SECURITIES)
670 19H 308
(CUSIP NUMBER)
DOROTHY E.A. BOWER, ESQ.
GENERAL COUNSEL AND CORPORATE SECRETARY
10333 SOUTHPORT ROAD S.W., SUITE 426
CALGARY, ALBERTA, CANADA T2W 3X6
(403) 258-4600
(NAME, ADDRESS AND TELEPHONE NUMBER OF PERSON AUTHORIZED TO RECEIVE NOTICES
AND COMMUNICATIONS)
COPY TO:
THOMAS A. RICHARDSON, ESQ.
HOLME ROBERTS & OWEN LLC
1700 LINCOLN, SUITE 4100
DENVER, COLORADO 80203
(303) 861-7000
CALCULATION OF FILING FEE
<TABLE>
<CAPTION>
TRANSACTION VALUATION* AMOUNT OF FILING FEE
<S> <C>
$98,462,889 $19,792.54
</TABLE>
* Estimated for purposes of calculating the amount of the filing fee only. The
amount assumes the purchase of 8,744,313 shares of Voting Common Stock, $.01
par value, and 633,105 shares of Nonvoting Common Stock, $.01 par value,
which are convertible into Voting Common Stock (the "Shares"). Such numbers
of Shares represent all the Shares outstanding as of August 10, 1995, and
assume the exercise of all existing options and warrants to acquire Shares
from the Company.
[_] Check the following box if any part of this fee is offset as provided by
Rule 0-11(a)(2) and identify the filing with which the offsetting fee was
previously paid. Identify the previous filing by registration number, or the
form or schedule and the date of its filing.
AMOUNT PREVIOUSLY PAID: NONE FILING PARTY: NOT APPLICABLE
FORM OR REGISTRATION NO.: NOT APPLICABLE DATE FILED: NOT APPLICABLE
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<PAGE>
SCHEDULE 14D-1
CUSIP NO. 670 19H 308
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1. NAME OF REPORTING PERSONS S.S. or I.R.S.
IDENTIFICATION NO. OF ABOVE PERSONS
AGRIUM INC. (97061303)
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2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [_]
(b) [_]
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3. SEC USE ONLY
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4. SOURCE OF FUNDS
WC
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5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(D) OR 2(E) [_]
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6. CITIZENSHIP OR PLACE OF ORGANIZATION
CANADA
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7. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH
REPORTING PERSON
*
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8. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (7) EXCLUDES
CERTAIN SHARES [_]
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9. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (7)
57.1%
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10. TYPE OF REPORTING PERSON
CO
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* On August 9, 1995, Agrium Inc., a Canadian corporation ("Parent"), and
Agrium Acquisition Corporation, a Delaware corporation (" Purchaser"), a
wholly-owned subsidiary of Agrium U.S. Inc., a Colorado corporation ("Agrium
U.S."), a wholly-owned subsidiary of Parent, received Irrevocable Proxies
(the "Irrevocable Proxies") from a group of stockholders (collectively, the
"Committing Stockholders") of Nu-West Industries, Inc. (the "Company"),
pursuant to which the Committing Stockholders agreed to tender an aggregate
of 4,614,281 shares of Voting Common Stock (the "Committed Shares") in this
tender offer and appointed employees of Parent as their proxies to vote the
Committed Shares in favor of the merger contemplated by the Agreement and
Plan of Merger and against any transaction inconsistent with such merger.
The Irrevocable Proxies are described more fully in Section 12 of the Offer
to Purchase, dated August 16, 1995.
-2-
<PAGE>
SCHEDULE 14D-1
CUSIP NO. 670 19H 308
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1. NAME OF REPORTING PERSONS S.S. or I.R.S.
IDENTIFICATION NO. OF ABOVE PERSONS
AGRIUM U.S. INC. (91-1589568)
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2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [_]
(b) [_]
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3. SEC USE ONLY
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4. SOURCE OF FUNDS
AF, WC
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5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(D) OR 2(E) [_]
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6. CITIZENSHIP OR PLACE OF ORGANIZATION
COLORADO
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7. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH
REPORTING PERSON
*
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8. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (7) EXCLUDES [_]
CERTAIN SHARES
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9. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (7)
57.1%
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10. TYPE OF REPORTING PERSON
CO
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* On August 9, 1995, Agrium Inc., a Canadian corporation ("Parent"), and
Agrium Acquisition Corporation, a Delaware corporation ("Purchaser"), a
wholly-owned subsidiary of Agrium U.S. Inc., a Colorado corporation ("Agrium
U.S."), a wholly-owned subsidiary of Parent, received Irrevocable Proxies
(the "Irrevocable Proxies") from a group of stockholders (collectively, the
"Committing Stockholders") of Nu-West Industries, Inc. (the "Company"),
pursuant to which the Committing Stockholders agreed to tender an aggregate
of 4,614,281 shares of Voting Common Stock (the "Committed Shares") in this
tender offer and appointed employees of Parent as their proxies to vote the
Committed Shares in favor of the merger contemplated by the Agreement and
Plan of Merger and against any transaction inconsistent with such merger.
The Irrevocable Proxies are described more fully in Section 12 of the Offer
to Purchase, dated August 16, 1995.
-3-
<PAGE>
SCHEDULE 14D-1
CUSIP NO. 670 19H 308
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1. NAME OF REPORTING PERSONS S.S. or I.R.S.
IDENTIFICATION NO. OF ABOVE PERSONS
AGRIUM ACQUISITION CORPORATION
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2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [_]
(b) [_]
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3. SEC USE ONLY
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4. SOURCE OF FUNDS
AF
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5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(D) OR 2(E) [_]
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6. CITIZENSHIP OR PLACE OF ORGANIZATION
DELAWARE
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7. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH
REPORTING PERSON
*
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8. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (7) EXCLUDES
CERTAIN SHARES [_]
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9. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (7)
57.1%
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10. TYPE OF REPORTING PERSON
CO
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* On August 9, 1995, Agrium Inc., a Canadian corporation ("Parent"), and
Agrium Acquisition Corporation, a Delaware corporation ("Purchaser"), a
wholly-owned subsidiary of Agrium U.S. Inc., a Colorado corporation ("Agrium
U.S."), a wholly-owned subsidiary of Parent, received Irrevocable Proxies
(the "Irrevocable Proxies") from a group of stockholders (collectively, the
"Committing Stockholders") of Nu-West Industries, Inc. (the "Company"),
pursuant to which the Committing Stockholders agreed to tender an aggregate
of 4,614,281 shares of Voting Common Stock (the "Committed Shares") in this
tender offer and appointed employees of Parent as their proxies to vote the
Committed Shares in favor of the merger contemplated by the Agreement and
Plan of Merger and against any transaction inconsistent with such merger.
The Irrevocable Proxies are described more fully in Section 12 of the Offer
to Purchase, dated August 16, 1995.
-4-
<PAGE>
TENDER OFFER
This Tender Offer Statement on Schedule 14D-1 is filed by Agrium Inc., a
Canadian corporation ("Parent"), Agrium U.S. Inc., a Colorado corporation and
a wholly-owned subsidiary of Parent ("Agrium U.S."), and Agrium Acquisition
Corporation, a Delaware corporation and wholly-owned subsidiary of Agrium U.S.
("Purchaser"), relating to the offer by Purchaser to purchase all outstanding
shares of Voting Common Stock, $.01 par value, and Nonvoting Common Stock,
$.01 par value (the "Shares") of Nu-West Industries, Inc. (the "Company"), at
$10.50 per Share, net to the seller in cash, on the terms and subject to the
conditions set forth in the Offer to Purchase, dated August 16, 1995 (the
"Offer to Purchase"), and in the related Letter of Transmittal, copies of
which are attached hereto as Exhibits (a)(1) and (a)(2), respectively. The
Nonvoting Common Stock is not registered under the Securities Exchange Act of
1934, as amended, and is convertible into Voting Common Stock.
This Tender Offer Statement on Schedule 14D-1 also constitutes a Statement
on Schedule 13D with respect to the acquisition by the Purchaser, Agrium U.S.
and the Parent of beneficial ownership of the Committing Stockholders' Shares.
The item numbers and responses thereto below are in accordance with the
requirements of Schedule 14D-1.
ITEM 1. SECURITY AND SUBJECT COMPANY
(a) The name of the subject company is Nu-West Industries, Inc., a Delaware
corporation (the "Company"). The address of the Company's principal executive
offices is 8400 East Prentice Avenue, Suite 1320, Englewood, Colorado 80111.
(b) The information set forth on the cover page and under "Introduction" in
the Offer to Purchase is incorporated herein by reference.
(c) The information set forth in Section 6 of the Offer to Purchase is
incorporated herein by reference.
ITEM 2. IDENTITY AND BACKGROUND
(a)-(d), (g) This Statement is filed by the Purchaser, Agrium U.S., and the
Parent. The information set forth on the cover page, under "Introduction," in
Section 9 and in Schedule I of the Offer to Purchase is incorporated herein by
reference.
(e)-(f) During the last five years, neither the Purchaser, the Parent,
Agrium U.S., nor, to their knowledge, any of the persons listed in Schedule I
(Directors and Executive Officers) to the Offer to Purchase, (i) has been
convicted in a criminal proceeding (excluding traffic violations or similar
misdemeanors) or (ii) has 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 any violation of such laws.
ITEM 3. PAST CONTACTS, TRANSACTIONS, OR NEGOTIATIONS WITH THE SUBJECT COMPANY
(a) The information set forth in Sections 8 and 11 of the Offer to Purchase
is incorporated herein by reference.
(b) The information set forth under "Introduction" and in Sections 9, 11 and
12 of the Offer to Purchase is incorporated herein by reference.
ITEM 4. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION
(a)-(b) The information set forth under "Introduction" and in Section 10 of
the Offer to Purchase is incorporated herein by reference.
(c) Not applicable.
ITEM 5. PURPOSE OF THE TENDER OFFER AND PLANS OR PROPOSALS OF THE BIDDER
(a)-(e) The information set forth under "Introduction" and in Sections 9, 11
and 12 of the Offer to Purchase is incorporated herein by reference.
(f)-(g) The information set forth in Section 7 of the Offer to Purchase is
incorporated herein by reference.
-5-
<PAGE>
ITEM 6. INTEREST IN SECURITIES OF THE SUBJECT COMPANY
(a) The information set forth under "Introduction" and in Section 12 of the
Offer to Purchase is incorporated herein by reference.
(b) The information set forth under "Introduction" and in Sections 9, 11 and
12 of the Offer to Purchase is incorporated herein by reference.
ITEM 7. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT
TO THE SUBJECT COMPANY'S SECURITIES
The information set forth under "Introduction" and in Sections 9, 11, 12 and
13 of the Offer to Purchase is incorporated herein by reference.
ITEM 8. PERSONS RETAIN, EMPLOYED OR TO BE COMPENSATED
The information set forth under "Introduction" and in Sections 10 and 16 of
the Offer to Purchase is incorporated herein by reference.
ITEM 9. FINANCIAL STATEMENTS TO CERTAIN BIDDERS
The information set forth in Section 9 of the Offer to Purchase is
incorporated herein by reference.
ITEM 10. ADDITIONAL INFORMATION
(a) The information set forth in Sections 11 and 12 of the Offer to Purchase
is incorporated herein by reference.
(b)-(e) The information set forth in Sections 10 and 15 of the Offer to
Purchase is incorporated herein by reference.
(f) The information set forth in the Offer to Purchase and the Letter of
Transmittal, copies of which are attached hereto as Exhibits (a)(1) and
(a)(2), respectively, is incorporated herein by reference.
ITEM 11. MATERIAL TO BE FILED AS EXHIBITS
<TABLE>
<C> <S>
(a)(1) Offer to Purchase, dated August 16, 1995
(a)(2) Letter of Transmittal
(a)(3) Notice of Guaranteed Delivery
(a)(4) Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other
Nominees
(a)(5) Letter to Clients for use by Brokers, Dealers, Commercial Banks, Trust
Companies and Other Nominees
(a)(6) Guidelines for Certification of Taxpayer Identification Number on
Substitute Form W-9
(a)(7) Text of Press Release, dated August 10, 1995
(c)(1) Agreement and Plan of Merger, dated August 9, 1995, among the
Purchaser, the Parent and the Company
(c)(2) Irrevocable Proxy, dated August 9, 1995, among the Purchaser, the
Parent and WPG Corporate Development Associates III (Overseas), Ltd.
(c)(3) Irrevocable Proxy, dated August 9, 1995, among the Purchaser, the
Parent and Weiss, Peck & Greer Venture Associates, L.P. Liquidating
Trust U/T/A dated December 30, 1994
(c)(4) Irrevocable Proxy, dated August 9, 1995, among the Purchaser, the
Parent and WPG Corporate Development Associates III, L.P.
(c)(5) Irrevocable Proxy, dated August 9, 1995, among the Purchaser, the
Parent and WPG Corporate Development Associates II., L.P. Liquidating
Trust U/T/A dated December 31, 1993
(d) Not applicable
(e) Not applicable
(f) None
</TABLE>
-6-
<PAGE>
SIGNATURES
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.
Agrium Inc.
/s/ John M. Van Brunt
By: _________________________________
Name: John M. Van Brunt
Title: President & Chief Executive
Officer
Agrium U.S. Inc.
/s/ John M. Van Brunt
By: _________________________________
Name: John M. Van Brunt
Title: Chairman & Chief Executive
Officer
Agrium Acquisition Corporation
/s/ Dorothy E. A. Bower
By: _________________________________
Name: Dorothy E. A. Bower
Title: President
Dated: August 16, 1995
-7-
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT DESCRIPTION PAGE
------- ----------- ----
<C> <S> <C>
(a)(1) Offer to Purchase, dated August 16, 1995
(a)(2) Letter of Transmittal
(a)(3) Notice of Guaranteed Delivery
(a)(4) Letter to Brokers, Dealers, Commercial Banks, Trust Companies
and Other Nominees
(a)(5) Letter to Clients for use by Brokers, Dealers, Commercial
Banks, Trust Companies and Other Nominees
(a)(6) Guidelines for Certification of Taxpayer Identification Number
on Substitute Form W-9
(a)(7) Text of Press Release, dated August 10, 1995
(c)(1) Agreement and Plan of Merger, dated August 9, 1995, among the
Purchaser, the Parent and the Company
(c)(2) Irrevocable Proxy, dated August 9, 1995, among the Purchaser,
the Parent and WPG Corporate Development Associates III
(Overseas), Ltd.
(c)(3) Irrevocable Proxy, dated August 9, 1995, among the Purchaser,
the Parent and Weiss, Peck & Greer Venture Associates, L.P.
Liquidating Trust U/T/A dated December 30, 1994
(c)(4) Irrevocable Proxy, dated August 9, 1995, among the Purchaser,
the Parent and WPG Corporate Development Associates III, L.P.
(c)(5) Irrevocable Proxy, dated August 9, 1995, among the Purchaser,
the Parent and WPG Corporate Development Associates II, L.P.
Liquidating Trust U/T/A dated December 31, 1993
(d) Not applicable
(e) Not applicable
(f) None
</TABLE>
<PAGE>
Exhibit (a)(1)
OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING SHARES OF VOTING COMMON STOCK AND NONVOTING COMMON STOCK
OF
NU-WEST INDUSTRIES, INC.
AT
$10.50 NET PER SHARE
BY
AGRIUM ACQUISITION CORPORATION
A WHOLLY-OWNED SUBSIDIARY OF AGRIUM U.S. INC.,
A WHOLLY-OWNED SUBSIDIARY OF
AGRIUM INC.
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THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY
TIME, ON THURSDAY, SEPTEMBER 14, 1995, UNLESS EXTENDED
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THE BOARD OF DIRECTORS OF NU-WEST INDUSTRIES, INC. (THE "COMPANY") HAS
UNANIMOUSLY DETERMINED THAT EACH OF THE OFFER AND MERGER IS FAIR TO, AND IN
THE BEST INTERESTS OF, THE COMPANY'S VOTING AND NONVOTING COMMON STOCKHOLDERS,
HAS APPROVED THE MERGER AGREEMENT AND THE TRANSACTIONS CONTEMPLATED BY THE
MERGER AGREEMENT, INCLUDING THE OFFER AND MERGER, AND RECOMMENDS THAT THE
COMPANY'S VOTING AND NONVOTING COMMON STOCKHOLDERS ACCEPT THE OFFER AND TENDER
ALL THEIR VOTING AND NONVOTING COMMON SHARES ("SHARES") PURSUANT TO THE OFFER.
AGRIUM ACQUISITION CORPORATION (THE "PURCHASER") HAS RECEIVED IRREVOCABLE
PROXIES FROM CERTAIN STOCKHOLDERS OWNING APPROXIMATELY 49.2% OF THE SHARES
(CALCULATED ON A FULLY DILUTED BASIS), PURSUANT TO WHICH, AMONG OTHER THINGS,
THOSE STOCKHOLDERS AGREED TO TENDER SUCH SHARES IN THE OFFER AND GRANTED TO
THE PURCHASER IRREVOCABLE PROXIES TO VOTE THEIR SHARES FOR THE MERGER AND
AGAINST ANY TRANSACTION INCONSISTENT WITH THE MERGER.
THE OFFER IS CONDITIONED UPON, AMONG OTHER THINGS, THERE BEING VALIDLY
TENDERED AND NOT PROPERLY WITHDRAWN PRIOR TO THE EXPIRATION DATE THAT NUMBER
OF SHARES THAT WOULD REPRESENT, ON A FULLY DILUTED BASIS, 60% OF THE SHARES.
THE OFFER IS ALSO SUBJECT TO CERTAIN OTHER CONDITIONS CONTAINED IN THIS OFFER
TO PURCHASE. SEE INTRODUCTION AND SECTIONS 1 AND 14 OF THIS OFFER TO PURCHASE.
----------------
IMPORTANT
Any stockholder wishing to tender all or a portion of that stockholder's
Shares should either (1) complete and sign the Letter of Transmittal (or a
manually signed facsimile of it) in accordance with the instructions in the
Letter of Transmittal, mail or deliver it and any other required documents to
the Depositary (as defined herein) and either deliver the certificates for
those Shares to the Depositary along with the Letter of Transmittal or tender
those Shares pursuant to the procedures for book-entry transfer set forth in
Section 3 or (2) request his broker, dealer, commercial bank, trust company or
other nominee to effect the transaction for the stockholder. Any stockholder
whose Shares are registered in the name of a broker, dealer, commercial bank,
trust company or other nominee must contact that broker, dealer, commercial
bank, trust company or other nominee, if the stockholder wishes to tender such
Shares.
Any stockholder who wishes to tender Shares and whose certificates
representing those Shares are not immediately available or who cannot comply
with the procedure for book-entry transfer on a timely basis should tender
those Shares by following the procedures for guaranteed delivery set forth in
Section 3.
Questions and requests for assistance may be directed to the Information
Agent at its address and telephone number set forth on the back cover of this
Offer to Purchase. Requests for additional copies of this Offer to Purchase,
the Letter of Transmittal, the Notice of Guaranteed Delivery and other related
materials may be directed to the Information Agent or to brokers, dealers,
commercial banks and trust companies.
----------------
August 16, 1995
<PAGE>
TABLE OF CONTENTS
<TABLE>
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PAGE
----
<S> <C>
INTRODUCTION.............................................................. 1
1. Terms of the Offer.................................................. 2
2. Acceptance for Payment and Payment for Shares....................... 3
3. Procedure for Tendering Shares...................................... 4
4. Withdrawal Rights................................................... 7
5. Certain Federal Income Tax Consequences of the Offer and the Merger. 7
6. Price Range of the Voting Shares; Dividends on the Shares........... 8
7. Effect of the Offer on the Market for the Voting Shares, Nasdaq
National Market Listing, Exchange Act Registration and Margin
Securities.......................................................... 9
8. Certain Information Concerning the Company.......................... 10
9. Certain Information Concerning the Purchaser, Agrium U.S. and the
Parent.............................................................. 12
10. Source and Amount of Funds.......................................... 14
11. Background of the Offer............................................. 14
12. Purpose of the Offer and the Merger; Plans for the Company; the
Merger Agreement and the Irrevocable Proxies; the Confidentiality
Agreement; Other Matters............................................ 16
13. Dividends and Distributions......................................... 23
14. Certain Conditions of the Offer..................................... 24
15. Certain Legal Matters............................................... 25
16. Fees and Expenses................................................... 26
17. Miscellaneous....................................................... 27
</TABLE>
i
<PAGE>
To the Holders of Voting and
Nonvoting Common Stock of
Nu-West Industries, Inc.:
INTRODUCTION
Agrium Acquisition Corporation (the "Purchaser"), a Delaware corporation and
a wholly-owned subsidiary of Agrium U.S. Inc. ("Agrium U.S."), a Colorado
corporation and a wholly-owned subsidiary of Agrium Inc., a Canadian
corporation (the "Parent"), hereby offers to purchase all the outstanding
shares of Voting Common Stock, $.01 par value ("Voting Shares"), and Nonvoting
Common Stock, $.01 par value ("Nonvoting Shares," and together with the Voting
Shares, the "Shares"), of Nu-West Industries, Inc., a Delaware corporation
(the "Company"), at a purchase price of $10.50 per Share (the "Offer Price"),
net to the seller in cash, 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, collectively constitute
the "Offer").
The Offer is being made pursuant to an Agreement and Plan of Merger dated as
of August 9, 1995 (the "Merger Agreement") among the Purchaser, the Parent and
the Company. The Merger Agreement provides, among other things, for the
commencement of the Offer by the Purchaser and further provides that, subject
to 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 direct, wholly-owned subsidiary of Agrium U.S. (the "Surviving
Corporation"). In the Merger, each outstanding Share (other than Shares owned
by the Company or any subsidiary of the Company, the Parent, the Purchaser,
Agrium U.S. or any other subsidiary of the Parent, and Shares owned by
stockholders who shall have properly exercised their appraisal rights under
Delaware law) will be converted on the effective date of the Merger (the
"Effective Date") into the right to receive the Offer Price in cash, without
interest and less any required withholding taxes (the "Merger Consideration").
All other equity securities of the Company will remain outstanding after the
Effective Date, subject to their respective terms and conditions.
The board of directors of the Company (the "Board") has unanimously
determined that each of the Offer and Merger is fair to, and in the best
interests of, the holders of the Shares (the "Stockholders"), has approved the
Merger Agreement and the transactions contemplated by the Merger Agreement,
including the Offer and Merger, and recommends that the Stockholders accept
the Offer and tender all their Shares pursuant to the Offer.
PaineWebber Incorporated ("PaineWebber"), the Company's financial advisor,
has delivered to the Company its written opinion dated August 8, 1995 that the
consideration to be received by holders of the Shares pursuant to the Offer
and Merger is fair, from a financial point of view, to the Stockholders (other
than stockholders that are affiliates of Weiss, Peck & Greer, L.L.C.). A copy
of the opinion of PaineWebber is contained in the Company's
Solicitation/Recommendation Statement on Schedule 14D-9 (the "Schedule 14D-9")
filed with the Securities and Exchange Commission (the "Commission") in
connection with the Offer, a copy of which is being furnished to Stockholders
concurrently with this Offer to Purchase.
The Offer is conditioned upon, among other things, there being validly
tendered and not properly withdrawn prior to the Expiration Date (as defined
in Section 1 below) that number of Shares (the "Minimum Number of Shares")
that would represent, on a fully diluted basis, 60% of the Shares (or
5,626,451 Shares) (the "Minimum Tender Condition"). The Offer also is subject
to certain other conditions. See Sections 1 and 14.
The Company has informed the Purchaser that, as of August 9, 1995, there
were (i) 7,453,258 Voting Shares outstanding, (ii) 633,105 shares of Nonvoting
Shares outstanding, and (iii) outstanding stock options and warrants (the
"Options") granted by the Company to purchase an aggregate of 1,291,055
Shares.
Concurrently with the execution of the Merger Agreement, the Purchaser and
the Parent received Irrevocable Proxies dated August 9, 1995 (the "Irrevocable
Proxies") from certain Stockholders (the "Committing Stockholders") owning, in
the aggregate, 4,614,281 Voting Shares (or approximately 49.2% of
<PAGE>
the Shares calculated on a fully diluted basis). Pursuant to the Irrevocable
Proxies, the Committing Stockholders agreed to tender their Shares in the
Offer and granted proxies to employees of Parent to vote their Shares for the
Merger and against any transaction inconsistent with the Merger.
The consummation of the Merger is subject to the satisfaction or waiver of a
number of conditions, including, if required, the approval of the Merger by
the requisite vote or consent of the Stockholders. Under the Delaware General
Corporation Law (the "DGCL"), the stockholder vote necessary to approve the
Merger will be the affirmative vote of at least a majority of the outstanding
Shares, including Shares held by the Purchaser and its affiliates. If the
Purchaser acquires at least 90% of the outstanding Shares pursuant to the
Offer or otherwise, the Purchaser would be able to effect the Merger pursuant
to the "short-form" merger provisions of Section 253 of the DGCL, without
prior notice to, or any action by, any other Stockholder. In that event, the
Purchaser intends to effect the Merger as promptly as practicable following
the purchase of Shares in the Offer. See Section 12.
The Merger Agreement and the Irrevocable Proxies are more fully described in
Section 12. Certain federal income tax consequences of the sale of Shares
pursuant to the Offer and the exchange of Shares for the Merger Consideration
pursuant to the Merger are described in Section 5.
Tendering Stockholders will not be obligated to pay brokerage fees or
commissions or, except as set forth in Instruction 6 to the Letter of
Transmittal, transfer taxes on the purchase of Shares pursuant to the Offer or
Merger. The Purchaser will pay all charges and expenses of Chemical Mellon
Shareholder Services, the depositary (the "Depositary"), and D. F. King & Co.,
Inc., as the information agent (the "Information Agent"), in connection with
the Offer. See Section 16.
1. TERMS OF THE OFFER
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 thereby purchase)
all Shares that are validly tendered and not withdrawn in accordance with
Section 4 below prior to the Expiration Date. As used in the Offer, the term
"Expiration Date" means 12:00 midnight, New York City time, on Thursday,
September 14, 1995, unless and until the Purchaser, in accordance with the
terms of the Offer and the Merger Agreement, shall have extended the period of
time during which the Offer is open, in which event the term "Expiration Date"
means the latest time and date at which the Offer, as so extended, expires. As
used in this Offer to Purchase, "business day" has the meaning set forth in
Rule 14d-1(c)(6) under the Securities Exchange Act of 1934, as amended (the
"Exchange Act").
Subject to the provisions of a Confidentiality Agreement dated February 1,
1995, between the Parent and the Company (see Section 12), in the event that
the Offer is not consummated, the Purchaser may seek to acquire additional
Shares through open market purchases, privately negotiated transactions or
otherwise, upon such terms and conditions and at such prices as it shall
determine, which may be more or less than the Offer Price and could be for
cash or other consideration.
The Offer is conditioned upon, among other things, satisfaction of the
Minimum Tender Condition and the expiration or termination of all waiting
periods imposed by the Hart-Scott-Rodino Antitrust Improvements Act of 1976
and the regulations under it (the "HSR Act"). The Offer also is subject to
certain other conditions set forth in Section 14 below. The Purchaser
expressly reserves the right (but will not be obligated) to waive any or all
of the conditions of the Offer or to extend the Offer. The Purchaser also
expressly reserves the right, subject to all applicable laws (including
applicable regulations of the Commission promulgated under the Exchange Act)
and the terms of the Merger Agreement, at any time or from time to time, (i)
to delay acceptance for payment of or payment for any Shares, regardless of
whether the Shares were theretofore accepted for payment, or to terminate the
Offer and not accept for payment or pay for any Shares not theretofore
accepted for payment or paid for, upon the occurrence of any of the conditions
specified in Section 14 below, by giving oral or written notice of such delay
in payment or termination to the Depositary and (ii) to amend the Offer in any
respect, by giving oral or written notice to the Depositary. Any extension,
delay in payment, termination or amendment will
2
<PAGE>
be followed as promptly as practicable by public announcement, the
announcement in the case of an extension to be issued no later than 9:00 a.m.,
New York City time, on the next business day after the previously scheduled
Expiration Date. Without limiting the manner in which the Purchaser may choose
to make any public announcement, the Purchaser will have no obligation to
publish, advertise or otherwise communicate any such announcement, other than
by issuing a release to the Dow Jones News Service or as otherwise required by
law. The reservation by the Purchaser of the right to delay acceptance for
payment of or payment for Shares is subject to the provisions of Rule 14e-1(c)
under the Exchange Act, which requires that the Purchaser pay the
consideration offered or return the Shares deposited by or on behalf of
Stockholders promptly after the termination or withdrawal of the Offer. Any
delay in acceptance for payment or payment beyond the time permitted by
applicable law will be effectuated by an extension of the period during which
the Offer is open.
Pursuant to the terms of the Merger Agreement, without the prior written
consent of the Company, the Purchaser will not (i) change the form of
consideration payable in the Offer, (ii) decrease the number of Shares sought
pursuant to the Offer, (iii) impose additional conditions to the Offer or (iv)
make any other material change in the terms or conditions to the Offer.
Assuming the prior satisfaction or waiver of the conditions to the Offer, the
Purchaser will accept for payment, and pay for, in accordance with the terms
of the Offer, all Shares validly tendered and not properly withdrawn pursuant
to the Offer promptly after the Expiration Date.
The Commission has announced that, under its interpretation of Rules 14d-
4(c) and 14d-6(d) under the Exchange Act, material changes in the terms of a
tender offer or information concerning a tender offer may require that the
tender offer be extended so that it remains open a sufficient period of time
to allow security holders to consider such material changes or information in
deciding whether or not to tender or withdraw their securities. The minimum
period during which an offer must remain open following material changes in
the terms of the Offer or information concerning the Offer, other than a
change in price or a change in percentage of securities sought, will depend
upon the facts and circumstances, including the relative materiality of the
terms or information. If the Purchaser decides to increase or, subject to the
consent of the Company, to decrease the consideration in the Offer, to make a
change in the percentage of Shares sought or to change or waive the Minimum
Tender Condition and, if, at the time that notice of any such change is first
published, sent or given to Stockholders, the Offer is scheduled to expire at
any time earlier than the tenth business day after (and including) the date of
that notice, the Offer will be extended at least until the expiration of that
period of ten business days.
The Company has provided the Purchaser with its Stockholder list and
security position listings for the purpose of disseminating the Offer to
Stockholders. This Offer to Purchase, the related Letter of Transmittal and
other relevant materials will be mailed to record holders of Shares and will
be furnished to brokers, dealers, commercial banks, trust companies and
similar persons whose names, or the names of whose nominees, appear on the
Company's stockholder list 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. ACCEPTANCE FOR PAYMENT AND PAYMENT FOR SHARES
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 thereby purchase)
and, under the terms of the Offer, pay for Shares that are validly tendered
and not properly withdrawn on or prior to the Expiration Date, promptly after
the later of the following dates: (i) the Expiration Date and (ii) the date of
satisfaction or waiver of all the conditions to the Offer set forth in this
Offer to Purchase. The Purchaser expressly reserves the right, in its
discretion, subject to applicable laws and regulations, to delay acceptance
for payment of or payment for Shares in order to comply, in whole or in part,
with any applicable law, government regulation or condition contained in this
Offer to Purchase. See Section 14 below.
In all cases, payment for Shares purchased pursuant to the Offer will be
made only after timely receipt by the Depositary of (i) certificates for the
Shares (or a timely Book-Entry Confirmation (as defined in Section 3) with
respect to the Shares) and (ii) the Letter of Transmittal (or a manually
signed facsimile), properly completed and duly executed with all required
signature guarantees, and all other documents required by the Letter of
Transmittal. See Section 3 below.
3
<PAGE>
For purposes of the Offer, the Purchaser will be deemed to have accepted for
payment (and thereby purchased) tendered Shares as, if and when the Purchaser
gives oral or written notice to the Depositary of the Purchaser's acceptance
of the Shares for payment. In all cases, payment for Shares purchased pursuant
to the Offer will be made by deposit of the purchase price with the
Depositary, which will act as agent for tendering Stockholders for the purpose
of receiving payment from the Purchaser and transmitting payment to tendering
Stockholders whose Shares shall have been accepted for payment. If, for any
reason, acceptance for payment of any Shares tendered pursuant to the Offer is
delayed, or the Purchaser is unable to accept for payment Shares tendered
pursuant to the Offer, then, without prejudice to the Purchaser's rights under
Section 14, the Depositary may, nevertheless, on behalf of the Purchaser,
retain tendered Shares, and such Shares may not be withdrawn, except to the
extent that the tendering Stockholders are entitled to withdrawal rights as
described in Section 4 below and as otherwise required by Rule 14e-1(c) under
the Exchange Act. Under no circumstances will interest on the Offer Price be
paid by the Purchaser, regardless of any delay in making such payment.
If any tendered Shares are not purchased for any reason or if certificates
are submitted for more Shares than are tendered, certificates for the Shares
not purchased or tendered will be returned pursuant to the instructions of the
tendering Stockholder without expense to the tendering Stockholder (or, in the
case of Shares delivered by book-entry transfer into the Depositary's account
at a Book-Entry Transfer Facility (as defined in Section 3) pursuant to the
procedures set forth in Section 3, the Shares will be credited to an account
maintained at the appropriate Book-Entry Transfer Facility) as promptly as
practicable following the expiration, termination or withdrawal of the Offer.
If, prior to the Expiration Date, the Purchaser increases the consideration
to be paid per Share pursuant to the Offer, the Purchaser will pay the
increased consideration for all the Shares purchased pursuant to the Offer,
whether or not the Shares were tendered prior to the increases in
consideration.
The Purchaser reserves the right to transfer or assign, in whole or from
time to time in part, to one or more of its affiliates the right to purchase
Shares tendered pursuant to the Offer; however, no such transfer or assignment
will release the Purchaser from its obligations under the Offer or prejudice
the rights of tendering Stockholders to receive payment for Shares validly
tendered and accepted for payment pursuant to the Offer.
3. PROCEDURE FOR TENDERING SHARES
Valid Tenders. For Shares to be validly tendered pursuant to the Offer,
either (i) a Letter of Transmittal (or a manually signed facsimile), properly
completed and duly executed, with any required signature guarantees and any
other documents required by the Letter of Transmittal, must 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 and either (a) certificates
representing Shares must be received by the Depositary at any such address
prior to the Expiration Date or (b) the Shares must be delivered pursuant to
the procedures for book-entry transfer set forth below and a Book-Entry
Confirmation (as defined below) must be received by the Depositary prior to
the Expiration Date or (ii) the tendering Stockholder must comply with the
guaranteed delivery procedures set forth below. No alternative, conditional or
contingent tenders will be accepted.
Book-Entry Transfer. The Depositary will establish an account with respect
to the Shares at The Depository Trust Company, Midwest Securities Trust
Company and Philadelphia Depository Trust Company (each, a "Book-Entry
Transfer Facility" and, collectively, the "Book-Entry Transfer Facilities")
for purposes of the Offer within two business days after the date of this
Offer to Purchase. Any financial institution that is a participant in any of
the Book-Entry Transfer Facilities' systems may make book-entry delivery of
Shares by causing a Book-Entry Transfer Facility to transfer the Shares into
the Depositary's account at the Book-Entry Transfer Facility in accordance
with that Book-Entry Transfer Facility's procedures for such transfer.
However, although delivery of the Shares may be effected through book-entry
transfer into the Depositary's account at a Book-Entry Transfer Facility, the
Letter of Transmittal (or a manually signed facsimile), properly completed and
duly executed, with any required signature guarantees and any other required
documents, must, in any case, be transmitted to, and received by, the
Depositary at one of its addresses set forth on the back cover of this Offer
to
4
<PAGE>
Purchase prior to the Expiration Date, or the tendering Stockholder must
comply with the guaranteed delivery procedures described below. The
confirmation of a book-entry transfer of Shares into the Depositary's account
at a Book-Entry Transfer Facility as described above is referred to as a
"Book-Entry Confirmation." DELIVERY OF DOCUMENTS TO A BOOK-ENTRY TRANSFER
FACILITY IN ACCORDANCE WITH THE BOOK-ENTRY TRANSFER FACILITY'S PROCEDURES DOES
NOT CONSTITUTE DELIVERY TO THE DEPOSITARY.
Signature Guarantees. Signatures on Letters of Transmittals must be
guaranteed by a member firm of a registered national securities exchange
(registered under Section 6 of the Exchange Act) or of the National
Association of Securities Dealers, Inc. (the "NASD"), or by a commercial bank
or trust company having an office or correspondent in the United States or by
any other "Eligible Guarantor Institution" (as defined in Rule 17Ad-15 under
the Exchange Act) (each of the foregoing constituting an "Eligible
Institution"), unless the Shares are tendered (i) by a registered holder of
Shares who has not completed either the box entitled "Special Delivery
Instructions" or the box entitled "Special Payment Instructions" on the Letter
of Transmittal or (ii) for the account of an Eligible Institution. See
Instruction 1 of the Letter of Transmittal. If the certificates representing
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 accepted for payment or not tendered are to be issued to a person other
than the registered holder, then the certificates representing Shares must be
endorsed or accompanied by appropriate stock powers, in each case signed
exactly as the name or names of the registered holder or holders appear on the
certificates, with the signatures on the certificates or stock powers
guaranteed as described above and as provided in the Letter of Transmittal.
See Instructions 1 and 5 of the Letter of Transmittal.
Guaranteed Delivery. If a Stockholder wishes to tender Shares pursuant to
the Offer and the Stockholder's certificates are not immediately available or
the procedures for book-entry transfer cannot be completed on a timely basis
or time will not permit all required documents to reach the Depositary prior
to the Expiration Date, the Shares may nevertheless be tendered, if all the
following guaranteed delivery procedures are complied with:
(i) the tender is made by or through an Eligible Institution;
(ii) a properly completed and duly executed Notice of Guaranteed
Delivery, substantially in the form provided by the Purchaser with this
Offer to Purchase, is received by the Depositary as provided below prior to
the Expiration Date; and
(iii) the certificates for all tendered Shares in proper form for
transfer or a Book-Entry Confirmation with respect to all tendered Shares,
together with a properly completed and duly executed Letter of Transmittal
(or a manually signed facsimile) and any other documents required by the
Letter of Transmittal, are received by the Depositary within three Nasdaq
National Market ("Nasdaq National Market") trading days after the date of
execution of the Notice of Guaranteed Delivery.
The Notice of Guaranteed Delivery may be delivered by hand or transmitted by
telegram, facsimile transmission or mailed to the Depositary and must include
an endorsement by an Eligible Institution in the form set forth in the Notice
of Guaranteed Delivery.
In all cases, Shares shall not be deemed validly tendered unless a properly
completed and duly executed Letter of Transmittal (or a manually signed
facsimile) is received by the Depositary.
The method of delivery of certificates for Shares, the Letter of Transmittal
and any other required documents is at the option and risk of the tendering
Stockholder. If delivery is made by mail, registered mail with return receipt
requested, properly insured, is recommended. In all cases, sufficient time
should be allowed to ensure timely delivery.
Notwithstanding any other provision of this Offer to Purchase, payment for
Shares accepted for payment pursuant to the Offer in all cases will be made
only after timely receipt by the Depositary of certificates for (or
5
<PAGE>
Book-Entry Confirmation with respect to) the Shares, a Letter of Transmittal
(or a manually signed facsimile), properly completed and duly executed, with
any required signature guarantees and all other documents required by the
Letter of Transmittal.
Backup Federal Income Tax Withholding. To prevent backup federal income tax
withholding of 31% of the payments made to Stockholders with respect to the
purchase price of Shares purchased pursuant to the Offer or the Merger, a
Stockholder must provide the Depositary with his correct taxpayer
identification number and certify that he is not subject to backup federal
income tax withholding by completing the substitute Form W-9 included in the
Letter of Transmittal. See Instruction 10 of the Letter of Transmittal. See
Section 5 below.
Determination of Validity. All questions as to the form of documents and
the validity, eligibility (including time of receipt) and acceptance for
payment of any tender of Shares pursuant to any of the procedures described
above will be determined by the Purchaser in its sole discretion, which
determination shall be final and binding on all parties. The Purchaser
reserves the absolute right to reject any or all tenders of Shares determined
not to be in proper form or the acceptance of or payment for which may, in the
opinion of counsel, be unlawful and reserves the absolute right to waive any
defect or irregularity in any tender of Shares. Subject to the terms of the
Merger Agreement, the Purchaser also reserves the absolute right to waive or
amend any or all of the conditions of the Offer. The Purchaser's
interpretation of the terms and conditions of the Offer (including the Letter
of Transmittal and its instructions) will be final and binding on all parties.
No tender of Shares will be deemed to have been validly made until all defects
and irregularities have been cured or waived. None of the Purchaser, the
Parent, Agrium U.S., the Depositary, the Information Agent 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.
Other Requirements. Subject to the provisions of Section 4, by executing a
Letter of Transmittal, a tendering Stockholder irrevocably appoints designees
of the Purchaser as his attorneys-in-fact and proxies, with full power of
substitution, in the manner set forth in the Letter of Transmittal, to the
full extent of the Stockholder's rights with respect to the Shares tendered by
the Stockholder and purchased by the Purchaser and with respect to any and all
other Shares or other securities issued or issuable in respect of those
Shares, on or after the date of the Offer. All such powers of attorney and
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 the Shares for payment. Upon acceptance for payment, all
prior powers of attorney and proxies given by the Stockholder with respect to
the Shares (and any other Shares or other securities so issued in respect of
such purchased Shares) will be revoked, without further action, and no
subsequent powers of attorney and proxies may be given (and, if given, will
not be deemed effective) by the Stockholder. The designees of the Purchaser
will be empowered to exercise all voting and other rights of the Stockholder
with respect to such Shares (and any other Shares or securities so issued in
respect of such purchased Shares) as they in their sole discretion may deem
proper, including, without limitation, in respect of any annual or special
meeting of the Stockholders, or any adjournment or postponement of any such
meeting, or in connection with any action by written consent in lieu of any
such meeting or otherwise (including any such meeting or action by written
consent to approve the Merger). The Purchaser reserves the absolute right to
require that, in order for Shares to be validly tendered, immediately upon
Purchaser's acceptance for payment of the Shares, the Purchaser must be able
to exercise full voting and other rights with respect to the Shares, including
voting at any meeting of Stockholders then scheduled.
A tender of Shares pursuant to any of the procedures described above will
constitute the tendering Stockholder's acceptance of the terms and conditions
of the Offer, as well as the tendering Stockholder's representation and
warranty to the Purchaser that (i) the Stockholder has a net long position in
the Shares being tendered, within the meaning of Rule 14e-4 under the Exchange
Act, and (ii) the tender of the Shares complies with Rule 14e-4. It is a
violation of Rule 14e-4 for a person, directly or indirectly, to tender Shares
for his own account, unless, at the time of tender, the person so tendering
(i) has a net long position equal to or greater than the amount of (a) Shares
tendered or (b) other securities immediately convertible into or exchangeable
or exercisable for the Shares tendered and that person will acquire the Shares
for tender by conversion, exchange or exercise and (ii) will cause the Shares
to be delivered in accordance with the terms of the Offer. Rule 14c-4
6
<PAGE>
provides a similar restriction applicable to the tender or guarantee of a
tender on behalf of another person. The Purchaser's acceptance for payment of
Shares tendered pursuant to the Offer will constitute a binding agreement
between the tendering Stockholder and the Purchaser upon the terms and
conditions of the Offer.
4. WITHDRAWAL RIGHTS
Tenders of Shares made pursuant to the Offer are irrevocable, except as
otherwise provided in this Section 4. Shares tendered pursuant to the Offer
may be withdrawn at any time prior to the Expiration Date and, unless
theretofore accepted for payment by the Purchaser as provided in this Offer to
Purchase, may also be withdrawn at any time after October 14, 1995. If the
Purchaser extends the Offer, is delayed in its purchase of or payment for
Shares or is unable to purchase or pay for Shares for any reason, then,
without prejudice to the rights of the Purchaser, tendered Shares may be
retained by the Depositary on behalf of the Purchaser and may not be
withdrawn, except to the extent that tendering Stockholders are entitled to
withdrawal rights as set forth in this Section 4.
The reservation by the Purchaser of the right to delay the acceptance or
purchase of or payment for Shares is subject to the provisions of Rule 14e-
1(c) under the Exchange Act, which requires the Purchaser to pay the
consideration offered or return Shares deposited by or on behalf of
Stockholders promptly after the termination or withdrawal of the Offer.
For a withdrawal to be effective, a written, telegraphic or facsimile
transmission 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.
Any such notice of withdrawal must specify the name of the persons who
tendered the Shares to be withdrawn, the number of Shares to be withdrawn and
the name of the registered holder, if different from that of the person who
tendered the Shares. If certificates evidencing Shares have been delivered or
otherwise identified to the Depositary, then, prior to the release of the
certificates, the tendering Stockholder must also submit the serial numbers
shown on the particular certificates evidencing the Shares to be withdrawn,
and the signature on the notice of withdrawal must be guaranteed by an
Eligible Institution (except in the case of Shares tendered for the account of
an Eligible Institution). If Shares have been tendered pursuant to the
procedure for book-entry transfer set forth in Section 3, the notice of
withdrawal must specify the name and number of the account at the applicable
Book-Entry Transfer Facility to be credited with the withdrawn Shares. 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,
whose determination will be final and binding on all parties. No withdrawal of
Shares will be deemed to have been properly made until all defects and
irregularities have been cured or waived. None of the Purchaser, the Parent,
Agrium U.S., the Depositary, the Information Agent 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 failing to give such
notification.
Any Shares properly withdrawn will be deemed not validly tendered for
purposes of the Offer, but may be tendered at any subsequent time prior to the
Expiration Date by following any of the procedures described in Section 3
above.
5. CERTAIN FEDERAL INCOME TAX CONSEQUENCES
The following is a summary of the principal federal income tax consequences
of the Offer and the Merger to Stockholders who receive cash from the
Purchaser for their Shares and hold their Shares as capital assets. The
discussion is based on the current provisions of the Internal Revenue Code of
1986, as amended (the "Code"), the applicable Treasury Regulations
("Regulations") and public administrative and judicial interpretations of the
Code and Regulations, all of which are subject to change, which changes could
be applied retroactively.
The tax consequences of the transfer of Shares by a Stockholder pursuant to
the Offer or the Merger will depend on the Stockholder's particular facts and
circumstances. This discussion is for general information only and may not
apply to particular categories of Stockholders who are subject to special
treatment under the Code, such as (but not limited to) foreign persons,
retirement plans, regulated investment companies and dealers in securities. It
does not cover the special tax consequences that may apply to holders who
acquired their Shares pursuant to the exercise of employee stock options or
otherwise as compensation.
7
<PAGE>
This summary does not discuss any aspects of state, local, foreign or other
tax laws. The discussion assumes that the Company is not a collapsible
corporation under section 341 of the Code and that the Company and the Parent
are not under 50% common control within the meaning of section 304 of the
Code.
The receipt of cash from the Purchaser for Shares pursuant to the Offer or
the Merger will be a taxable sale for federal income tax purposes (and
probably also will be a taxable sale under applicable state, local or foreign
tax laws). In general, a Stockholder will recognize gain or loss for federal
income tax purposes equal to the difference between the amount of cash
received for the Shares and the Stockholder's adjusted tax basis in such
Shares. Gain or loss must be determined separately for each identifiable block
of shares (i.e., shares acquired at the same time and at the same price in one
transaction) sold pursuant to the Offer or converted to cash in the Merger.
Provided the Shares constitute capital assets in the hands of the Stockholder,
such gain or loss will be capital gain or loss and will be long-term capital
gain or loss if, on the date of the sale pursuant to either the Offer or the
Merger, the Shares were held for more than one year. The deduction of any
capital loss may be limited under the Code.
Unless a Stockholder complies with certain reporting and certification
procedures or is an exempt recipient under applicable withholding provisions
of the Code and Regulations, such Stockholder may be subject to withholding
tax of 31% with respect to any cash payments received pursuant to the Offer or
the Merger. Stockholders should consult their brokers or the Depositary to
ensure compliance with such procedures. Foreign Stockholders should consult
their own tax advisors regarding withholding taxes in general.
THE PRECEDING DISCUSSION IS INTENDED ONLY AS A SUMMARY OF CERTAIN FEDERAL
INCOME TAX CONSEQUENCES OF THE OFFER AND THE MERGER AND DOES NOT PURPORT TO BE
A COMPLETE ANALYSIS OR DISCUSSION OF ALL THE POTENTIAL TAX EFFECTS RELEVANT
THERETO. THUS, STOCKHOLDERS ARE URGED AND EXPECTED TO CONSULT THEIR OWN TAX
ADVISORS TO DETERMINE THE SPECIFIC TAX CONSEQUENCES OF THE OFFER AND THE
MERGER TO THEM UNDER FEDERAL, STATE, LOCAL OR OTHER TAX LAWS AND THE EFFECT OF
ANY CHANGE IN THE APPLICABLE TAX LAWS SINCE THE DATE OF THIS OFFER.
6. PRICE RANGE OF THE VOTING SHARES; DIVIDENDS ON THE SHARES
The Voting Shares are traded on the Nasdaq National Market under the symbol
"FERT." The Company has never paid cash dividends on the Shares. The following
table sets forth, for the periods indicated, the high and low sale prices per
Voting Share on the Nasdaq National Market (adjusted to give effect to a 1 for
6 reverse stock split of the Shares in December 1994). The Nonvoting Common
Shares are not publicly traded.
<TABLE>
<CAPTION>
HIGH LOW
----- -----
<S> <C> <C>
Fiscal 1993:
First Quarter..................................................... $6.75 $3.00
Second Quarter.................................................... 7.50 3.75
Third Quarter..................................................... 4.50 2.44
Fourth Quarter.................................................... 4.19 1.50
Fiscal 1994:
First Quarter..................................................... 4.50 1.88
Second Quarter.................................................... 9.38 1.50
Third Quarter..................................................... 17.25 9.94
Fourth Quarter.................................................... 13.50 8.63
Fiscal 1995:
First Quarter..................................................... 12.38 9.00
Second Quarter.................................................... 10.88 5.38
Third Quarter..................................................... 14.88 8.13
Fourth Quarter.................................................... 14.50 9.13
Fiscal 1996:
First Quarter (through August 15)................................. 12.38 9.88
</TABLE>
8
<PAGE>
On August 9, 1995, the last full day before the public announcement of the
Purchaser's intention to acquire the Shares, the closing bid price per Voting
Share on the Nasdaq National Market was $12.00. On August 15, 1995, the last
full trading day before the commencement of the Offer, the closing bid price
per Voting Share on the Nasdaq National Market was $10.50 per Voting Share.
Stockholders are urged to obtain current market quotations for the Voting
Shares.
7. EFFECT OF THE OFFER ON THE MARKET FOR THE VOTING SHARES, NASDAQ NATIONAL
MARKET LISTING, EXCHANGE ACT REGISTRATION AND MARGIN SECURITIES
The purchase of Voting Shares pursuant to the Offer will reduce the number
of holders of Voting Shares and the number of Voting Shares that might
otherwise trade publicly and could adversely affect the liquidity and market
value of the remaining Voting Shares held by the public.
The extent of the public market for the Voting Shares and, according to the
published guidelines of the NASD, the continued trading of the Voting Shares
on the Nasdaq National Market, after commencement of the Offer, will depend
upon the number of holders of Voting Shares remaining at that time, the
interest in maintaining a market in the Voting Shares on the part of
securities firms, the possible termination of registration of the Voting
Shares under the Exchange Act, as described below, and other factors.
The Company has informed the Purchaser that, as of August 9, 1995, 7,453,258
Voting Shares were outstanding. If, as a result of the purchase of Voting
Shares pursuant to the Offer or otherwise, trading of the Voting Shares on the
Nasdaq National Market is discontinued, the liquidity of and market for the
Voting Shares could be adversely affected. The Purchaser cannot predict
whether or to what extent the reduction in the number of Voting Shares that
might otherwise trade publicly would have an adverse or beneficial effect on
the market price for or marketability of the Voting Shares or whether it would
cause future prices to be greater or less than the Offer Price.
The Voting Shares are currently registered under Section 12(g) of the
Exchange Act. Registration of the Voting Shares under the Exchange Act may be
terminated upon application by the Company to the Commission, if the Voting
Shares are neither listed on a national securities exchange nor held by more
than 300 holders of record. Termination of registration of the Voting Shares
under the Exchange Act would substantially reduce the information required to
be furnished by the Company to its Stockholders and to the Commission and
could 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 a proxy statement pursuant
to Section 14(a) of the Exchange Act in connection with Stockholders' meetings
and the related requirement of furnishing an annual report to Stockholders 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
securities pursuant to Rule 144 or 144A under the Securities Act of 1933 may
be impaired or eliminated.
The Purchaser intends to seek to cause the Company to terminate the
registration of the Voting Shares under the Exchange Act as soon after the
completion of the Offer as the requirements for termination are met. If
registration of the Voting Shares is not terminated prior to the Merger, the
registration of the Voting Shares under the Exchange Act will be terminated
following consummation of the Merger.
The Voting 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 loan value of the Voting Shares. Depending upon factors
similar to those described above regarding listing and market quotations, it
is possible that, following the Offer, the Voting Shares would no longer
constitute "margin securities" for the purpose of the margin regulations of
the Federal Reserve Board and therefore could no longer be used as collateral
for loans made by brokers. If registration of Voting Shares under the Exchange
Act were terminated, the Voting Shares would no longer be "margin securities"
or be eligible for listing on the Nasdaq National Market.
9
<PAGE>
8. CERTAIN INFORMATION CONCERNING THE COMPANY
The Company is a Delaware corporation with its principal executive offices
located at 8400 East Prentice Avenue, Suite 1320, Englewood, Colorado 80111.
According to the Company's Annual Report on Form 10-K for the fiscal year
ended June 30, 1994 (the "Company 10-K"), the Company is a producer of
concentrated phosphate fertilizer. From its mining and manufacturing
facilities located in southeastern Idaho, it supplies high-quality fertilizer
for markets primarily in western North America.
Set forth below is certain selected consolidated financial information, with
respect to the Company and its subsidiaries excerpted from the Company 10-K
and the Company's press release issued August 10, 1995 which reported selected
financial data for the year ended June 30, 1995. 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 and 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
should be obtainable in the manner set forth below under "Available
Information."
NU-WEST INDUSTRIES, INC.
SELECTED CONSOLIDATED FINANCIAL DATA
(IN THOUSANDS, EXCEPT PER SHARE INFORMATION)
CONSOLIDATED STATEMENT OF OPERATIONS DATA:
<TABLE>
<CAPTION>
YEAR ENDED JUNE 30,
--------------------
1995 1994
---------- ---------
<S> <C> <C>
Net sales................................................ $ 103,327 $ 94,104
Income before income taxes, minority interest and ex-
traordinary item........................................ 9,701 2,592
Provision for (benefit from) income taxes................ -- --
Extraordinary loss from early extinguishment of debt..... -- 1,660
Net income............................................... 9,701 988
PER SHARE INFORMATION:
Net earnings (loss) per common share..................... .72 (.38)
CONSOLIDATED BALANCE SHEET DATA:
<CAPTION>
AT JUNE 30,
--------------------
1995 1994
---------- ---------
<S> <C> <C>
Working capital.......................................... $ 24,833 $ 16,731
Total assets............................................. 91,629 84,185
Long term debt........................................... 63,711 65,851
Stockholders' equity..................................... 17,008 7,307
</TABLE>
For the first fiscal quarter 1996 the Company will report a one-time charge
to earnings of $9.7 million for the write-off of deferred loan fees and
prepayment penalties in connection with the refinancing of substantially all
of its long term debt. Of this amount, $8.7 million will have no current cash
effect, and is offset by an estimated $2.6 million in annual interest expense
savings based on current loan balances and interest rates.
Certain Company Projections. During the course of discussions between the
Purchaser and the Company that led to the execution of the Merger Agreement
(see Section 11 below), commencing in February 1995 the Company provided the
Purchaser and the Parent with certain non-public business and financial
information about
10
<PAGE>
the Company. Included among the information the Company provided the Purchaser
were projections for fiscal years 1996, 1997, 1998, 1999 and 2000 that
indicated results in the following ranges: income before taxes of $16.6-20.8
million, $19.9-30.1 million, $21.7-32.9 million, $23.6-35.9 million, and
$25.7-40.0 million, respectively, and revenues of $113.4-121.0 million,
$116.8-120.2 million, $120.3-123.8 million, $124.0-127.5 million and $127.7-
131.4 million, respectively. The Company has advised the Parent that these
projections were based on numerous assumptions (not all of which are stated in
the projections) and are subject to significant economic and competitive
uncertainties and contingencies, many of which are beyond the Company's
control, including commodity prices and the availability of financing for and
the ultimate effect of significant new capital expenditures. In particular,
the projections assumed increased net revenues for fiscal 1995 of $109 million
which did not occur because of decreased demand due to unusually wet weather
in the Company's market area. Projections beyond fiscal 1995 also assumed
annual price increases of 3% (despite volatile historical prices), additional
earnings resulting from capital expenditures of $3.7-7.7 million which are
still in the planning stages and the results or success of which are
uncertain, and the effect of various refinancing alternatives which were then
under consideration by the Company. In addition, the projections varied from
one another in the periods in which the capital expenditures and the earnings
therefrom were included. Because of the nature of the assumptions used for
these projections, the Company believes that actual future results will vary
substantially from these projected results.
THE PROJECTIONS WERE NOT PREPARED WITH A VIEW TO PUBLIC DISCLOSURE OR
COMPLIANCE WITH PUBLISHED GUIDELINES OF THE COMMISSION OR THE GUIDELINES
ESTABLISHED BY THE AMERICAN INSTITUTE OF CERTIFIED PUBLIC ACCOUNTANTS. THE
PROJECTIONS ARE INCLUDED IN THIS OFFER TO PURCHASE ONLY BECAUSE SUCH
INFORMATION WAS PROVIDED TO THE PARENT AND THE PURCHASER. NONE OF THE PARENT,
THE PURCHASER, OR ANY PARTY TO WHOM THE PROJECTIONS WERE PROVIDED ASSUMES ANY
RESPONSIBILITY FOR THE ACCURACY OF SUCH INFORMATION. WHILE PRESENTED WITH
NUMERICAL SPECIFICITY, THESE PROJECTIONS ARE BASED UPON A VARIETY OF
ASSUMPTIONS RELATING TO THE BUSINESSES OF THE COMPANY WHICH MAY NOT BE
REALIZED AND ARE SUBJECT TO SIGNIFICANT UNCERTAINTIES AND CONTINGENCIES, MANY
OF WHICH ARE BEYOND THE CONTROL OF THE COMPANY. THERE CAN BE NO ASSURANCE THAT
THE PROJECTIONS WILL BE REALIZED AND ACTUAL RESULTS MAY VARY SUBSTANTIALLY
FROM THOSE SHOWN. THE PROJECTIONS HAVE NOT BEEN EXAMINED OR COMPILED BY THE
COMPANY'S INDEPENDENT PUBLIC ACCOUNTANTS. FOR THESE REASONS, AS WELL AS THE
BASES ON WHICH SUCH PROJECTIONS WERE COMPILED, THERE CAN BE NO ASSURANCE THAT
SUCH PROJECTIONS WILL BE REALIZED, OR THAT ACTUAL RESULTS WILL NOT BE HIGHER
OR LOWER THAN THOSE ESTIMATED. THE INCLUSION OF SUCH PROJECTIONS HEREIN SHOULD
NOT BE REGARDED AS AN INDICATION THAT THE PARENT, THE PURCHASER OR ANY OTHER
PERSON WHO RECEIVED SUCH INFORMATION CONSIDERS IT AN ACCURATE PREDICTION OF
FUTURE EVENTS.
Certain Operating Relationships. The Company purchased approximately
$4,083,000, $3,768,000 and $3,647,000 of anhydrous ammonia from the Parent and
its affiliates and sold approximately $16,408,000, $13,877,000 and $14,755,000
of phosphate fertilizer products to the Parent and its affiliates during the
fiscal years ended June 30, 1995, 1994 and 1993, respectively.
Available Information. The Company is subject to the informational filing
requirements of the Exchange Act. In accordance with the Exchange Act, the
Company files periodic reports, proxy statements and other information with
the Commission relating to its business, financial condition and other
matters. The Company is required to disclose in such proxy statements certain
information, as of particular dates, concerning the Company's directors and
officers, their remuneration, stock options granted to them, the principal
holders of the Company's securities and any material interest of those persons
in transactions with the Company. Such reports, proxy statements and other
information may be inspected at the Commission's office at 450 Fifth Street,
N.W., Washington, D.C. 20549, and also should be available for inspection and
copying at the regional offices of the Commission located at Northwestern
Atrium Center, 500 West Madison Street, Suite 1400, Chicago, Illinois 60661-
2511; and 7 World Trade Center, 13th Floor, New York, New York 10048. Copies
may be obtained upon payment of the Commission's prescribed fees by writing to
its principal office at 450 Fifth Street, N.W., Washington, D.C. 20549. Such
material can also be obtained at the office of The National Association of
Securities Dealers, Inc., 1735 K Street, N.W., Washington, D.C. 20006-1506.
Except as otherwise stated in this Offer to Purchase, the information
concerning the Company contained in this Offer to Purchase has been taken from
or based upon publicly available documents on file with the Commission and
other publicly available information. Although the Purchaser, Agrium U.S. and
the Parent do
11
<PAGE>
not have any knowledge that any such information is untrue, neither the
Purchaser, Agrium U.S. nor the Parent 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 PARENT, AGRIUM U.S. AND THE PURCHASER
The Parent, a Canadian corporation, is one of North America's largest
integrated and diversified fertilizer companies. It is a major, growth-
oriented producer of nitrogen and potash fertilizers, a leading wholesale and
retail marketer of all four primary nutrients vital to plant growth; nitrogen,
phosphorus, potassium and sulphur, and a leader in the development of new
products and services. At the wholesale level, the Parent's products are sold
to a geographically-diverse group of approximately 1,500 customers from four
regional marketing centers in North America. Approximately one quarter of its
potash production is sold offshore. The Parent's retail subsidiaries supply
agricultural inputs and services to growers from more than 200 Farm Centers
located in 23 states across the agricultural heartland of the United States.
The Parent is based in Calgary, Canada and has facilities in Canada and the
United States. The Purchaser's common shares trade on the Toronto Stock
Exchange under the symbol AGU and on Nasdaq National Market under the symbol
AGMIF.
Agrium U.S. owns and operates the Parent's facilities and businesses in the
United States.
The Purchaser, a Delaware corporation, was formed solely for the purpose of
engaging in the transactions contemplated by the Merger Agreement, including
the merger of the Purchaser with and into the Company, and has not conducted
any unrelated activities since its formation. All the outstanding capital
stock of the Purchaser is owned by Agrium U.S., a wholly-owned subsidiary of
the Parent.
During the last five years, none of the Purchaser, Agrium U.S., the Parent
or, to the best knowledge of the Purchaser, Agrium U.S. and the Parent, any of
the persons listed in Schedule I, (i) has been convicted in a criminal
proceeding (excluding traffic violations and similar misdemeanors) or (ii) was
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
any violations of such laws. The name, business address, present principal
occupation or employment, five-year employment history and citizenship of each
director and executive officer of the Parent, Agrium U.S. and the Purchaser
are set forth in Schedule I.
The principal executive offices of the Parent, Agrium U.S. and the Purchaser
are located at Suite 426, 10333 Southport Road S.W., Calgary, Alberta, Canada
T2W 3X6.
12
<PAGE>
Set forth below is certain selected consolidated financial information with
respect to the Parent and its subsidiaries, including Agrium U.S.
AGRIUM INC.
SELECTED CONSOLIDATED FINANCIAL INFORMATION
(IN THOUSANDS, EXCEPT PER SHARE DATA)
(CDN$)
CONSOLIDATED STATEMENT OF OPERATIONS DATA:
<TABLE>
<CAPTION>
SIX MONTHS YEAR ENDED
ENDED -------------------------
JUNE 30, DECEMBER 31, DECEMBER 31,
1995 1994 1993
---------- ------------ ------------
<S> <C> <C> <C>
Sales...................................... $912,750 $1,070,035 $525,025
Earnings before income taxes............... 144,166 128,668 37,460
Income taxes............................... 52,569 41,623 11,605
Net earnings............................... 91,597 87,045 25,855
PER SHARE INFORMATION:
Basic earnings per common share............ 4.08 4.16 1.44
Fully diluted earnings per common share.... 3.86 4.11 1.43
CONSOLIDATED BALANCE SHEET DATA:
<CAPTION>
JUNE 30, DECEMBER 31, DECEMBER 31,
1995 1994 1993
---------- ------------ ------------
<S> <C> <C> <C>
Total current assets....................... $ 659,191 $376,685 $270,322
Total assets............................... 1,025,721 656,489 530,070
Total current liabilities.................. 401,513 167,760 142,189
Long-term debt, less current maturities.... 69,684 50,246 141,138
Total shareholders' equity................. 510,456 398,689 214,391
</TABLE>
The Parent's consolidated financial statements are prepared in accordance
with accounting principles generally accepted in Canada ("Canadian Basis").
These principles differ in certain respects from those applicable in the
United States ("U.S. Basis"). The approximate impact on the Parent's financial
statements is summarized below in millions of dollars:
<TABLE>
<CAPTION>
1994 1993
----- -----
<S> <C> <C>
Consolidated Statements of Operations
Net income--Canadian Basis...................................... $87.0 $25.9
Adjustment for income taxes..................................... (8.1) (4.6)
----- -----
Net Income--U.S. Basis.......................................... $78.9 $21.3
----- -----
Earnings per common share (in dollars)--U.S. Basis
Basic........................................................... $3.77 $1.18
----- -----
</TABLE>
Except as described in this Offer to Purchase, (i) none of the Purchaser,
the Parent, Agrium U.S., or, to the best knowledge of the Purchaser, the
Parent and Agrium U.S., any of the persons listed in Schedule I has any
contract, arrangement, understanding or relationship (whether or not legally
enforceable) with any other person with respect to any securities of the
Company, including, but not limited to, any contract, arrangement,
understanding or relationship concerning the transfer or the voting of any
such securities, joint ventures, loan or option arrangements, puts or calls,
guarantees of loans, guarantees against loss or the giving or withholding of
proxies and (ii) there have been no contacts, negotiations or transactions
between the Purchaser, the Parent, Agrium U.S., or any of their respective
subsidiaries or, to the best knowledge of the Purchaser, the Parent and Agrium
U.S., any of the persons listed in Schedule I, 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.
13
<PAGE>
10. SOURCE AND AMOUNT OF FUNDS
The total amount of funds required by the Purchaser, Agrium U.S. and the
Parent to consummate the Offer and the Merger and to pay related fees and
expenses is estimated to be approximately $100 million. The Purchaser intends
to obtain the funds required by it from capital contributions and/or loans from
the working capital of Parent and Agrium U.S.
11. BACKGROUND OF THE OFFER
In the Spring of 1994, following the completion of the recapitalization of
the Company in November 1993 and with fertilizer prices and demand steadily
improving, the Board of Directors of the Company began exploring alternatives
to enhance long-term stockholder value. On November 14, 1994, the Board of
Directors held a meeting, at which representatives of Kidder, Peabody & Co.
Incorporated ("Kidder, Peabody") were present, to discuss such alternatives,
including strategic relationships with other fertilizer producers, the sale or
merger of the Company, the formation of a joint venture or the continuation of
the Company as a stand-alone entity. The Board of Directors of the Company,
with the assistance of representatives of Kidder, Peabody, discussed the
possible process and timing for contacting potential acquirors.
In December 1994, following the announcement of the sale of certain assets of
Kidder, Peabody and its affiliates to the parent company of PaineWebber
Incorporated ("PaineWebber"), the Board of Directors of the Company informed
PaineWebber that it intended to engage PaineWebber as its exclusive financial
advisor. PaineWebber was so engaged by letter agreement dated as of January 11,
1995.
From mid-December 1994 through March 1995, pursuant to authorizations by the
Company, representatives of PaineWebber contacted twelve parties (including the
Parent) with respect to a possible business combination with the Company.
In mid-December 1994, representatives of the Parent received a telephone call
from representatives of PaineWebber, acting on behalf of the Company, inquiring
whether the Parent would have an interest in some form of business combination
with the Company. Later that month, the Parent was provided with certain non-
confidential information on the Company. In January 1995, representatives of
the Parent and PaineWebber had several telephone discussions concerning the
Parent's interest in potentially acquiring the Company. The Parent and the
Company entered into the Confidentiality Agreement effective February 1, 1995.
See "Other Arrangements" above.
On February 21, 1995, representatives of the Parent met in Denver with
representatives of the Company and PaineWebber and received a formal
presentation from senior management of the Company with respect to the Company.
On March 7, 1995, the Company publicly announced its decision to explore
alternatives to enhance long-term stockholder value, as well as the engagement
of PaineWebber as its exclusive financial advisor. Following this public
announcement, PaineWebber received nine unsolicited inquiries regarding the
Company. None of such inquiries resulted in due diligence reviews or
negotiations following the initial inquiry.
Throughout the period from mid-February through May, the Company provided
detailed information to the Parent and the Parent conducted its assessment and
valuation of the Company. The Board of Directors of the Parent was apprised of
the potential acquisition at its regularly scheduled meeting on May 10, 1995. A
plant and mine tour of the Company's facilities was attended by representatives
of the Parent on May 23, 1995. Four other potential acquirors of the Company,
who had also executed confidentiality agreements to facilitate further
exploration of a possible acquisition of the Company, attended separate
presentations by senior management of the Company. Three of such potential
purchasers also attended separate plant and mine tours.
14
<PAGE>
In late May 1995, following these further due diligence investigations,
three of the remaining four parties (including the Parent) continued to pursue
the possible acquisition of the Company. Pursuant to the Board of Directors'
instructions, PaineWebber invited these three potential acquirors (including
the Parent) to submit, on or before June 12, 1995, written proposals with
respect to the possible acquisition of the Company.
On May 31, 1995, the Parent submitted an acquisition proposal to the Company
conditioned upon, among other things, a commitment from WPG Affiliates to
support the transaction. By its terms, the proposal required acceptance by the
Company by the close of business on June 2, 1995 and would have prohibited
further negotiations with third parties for a period of time. On June 2, 1995,
the Executive Committee of the Board of Directors of the Company reviewed the
Parent's offer and concluded that the proposal did not justify termination of
the process of soliciting offers from the other interested parties and that
any discussions regarding a commitment from the WPG Affiliates should be held
directly with such WPG Affiliates. Following the June 2 meeting, PaineWebber
informed the Parent of the decision of the Executive Committee of the Board of
Directors and encouraged the Parent to submit a revised proposal.
On June 12, 1995, the Company received a revised proposal from the Parent.
After reviewing this proposal and a proposal from one other party, the Company
concluded that they were both unacceptable, because of inadequacy of price
and/or omissions of certain material terms, among other reasons. Accordingly,
PaineWebber was instructed to continue to solicit proposals for the Company
and to review other alternatives available to the Company to increase
stockholder liquidity, including a secondary offering.
On June 28, 1995, a representative of the Parent met with PaineWebber in New
York to evaluate whether there was any basis for continued discussions between
the parties.
On July 5, 1995, a special meeting of the Executive Committee of the Board
of Directors of the Parent was held to review the proposed acquisition and
consider the various financial, strategic and legal matters as well as the
status of negotiations.
Following that meeting, on July 6, 1995, the Parent submitted a further
proposal to the Company. Also in early July, the Company received a revised
proposal from the other interested party. On July 12, 1995, PaineWebber,
pursuant to instructions from the Company, advised the Parent that its
proposal was not the most attractive alternative available to the Company and
its stockholders, and the Parent was given an opportunity to present its best
and final proposal. On July 14, 1995 the Parent submitted a revised proposal
to acquire the Company pursuant to a one-step merger transaction at $10.55 per
Share in cash. Also on July 14, 1995, the other potential acquiror submitted a
revised proposal.
On July 17, 1995, the Board of Directors held a meeting, at which
representatives of PaineWebber were present, to review and compare the terms
of the two pending proposals. At this meeting, the Board of Directors
determined that the Parent's proposal appeared to represent the best
alternative available to the Company and its stockholders, authorized
PaineWebber to conduct discussions with representatives of the Parent in order
to clarify certain terms of the Parent's proposal and, subject to obtaining
such clarification, authorized an exclusive period for discussion with the
Parent to permit the Parent to complete due diligence with respect to the
Company and to negotiate a definitive agreement for the sale of the Company.
On July 20, 1995, the other party submitted a further revised proposal,
which the Company believed was substantially similar to such party's July 14,
1995 proposal. On July 24, 1995, the Company agreed to an exclusive period
with the Parent, expiring on August 9, 1995, previously authorized by the
Board of Directors of the Company.
From July 24 through August 8, 1995, representatives of the Company and the
Parent held numerous meetings in which the terms of the Merger Agreement were
negotiated and due diligence was conducted. Separately, the Parent and
representatives of the WPG Affiliates negotiated the terms of the Irrevocable
Proxies pursuant to which the WPG Affiliates would support the transaction,
subject to the right of the WPG Affiliates to terminate such support if the
Company terminated the transaction with the Parent. As a result of further
discussion regarding the Parent's due diligence review and the price and
structure of the transaction, the Parent
15
<PAGE>
and the Company agreed to reduce the consideration to be paid in the
acquisition transaction from $10.55 to $10.50 per share. In addition, the
Company and the Parent agreed to alter the structure of the proposed
acquisition from a one-step merger transaction to a two-step transaction
involving a tender offer followed by a merger. The Company preferred the
tender offer structure, which it believed would result in a higher present
value to holders of Shares because of the earlier receipt of consideration for
tendered Shares than would be expected in the one-step merger transaction.
On the evening of August 8, 1995, the Board of Directors of the Company met
to consider the final terms of the Merger Agreement. At this meeting,
PaineWebber delivered its opinion to the Board of Directors to the effect
that, as of such date, the $10.50 cash consideration proposed to be received
by the holders of the Shares pursuant to the Offer and the Merger was fair,
from a financial point of view, to such holders (other than stockholders that
are affiliates of Weiss, Peck & Greer, L.L.C.). At this meeting, the Board of
Directors of the Company unanimously approved and adopted the Merger Agreement
and resolved to recommend the Offer and the Merger to the Company's
stockholders.
On August 9, 1995, the respective Boards of Directors of the Parent and the
Purchaser met, considered and each unanimously approved and adopted the Merger
Agreement. The Parent, the Purchaser and the Company executed the Merger
Agreement in the evening of August 9, 1995 and issued a joint press release
announcing the transactions at 7:00 A.M. EDT on August 10, 1995. At the time
of the execution of the Merger Agreement, the Irrevocable Proxies were
executed in favor of the Purchaser by the parties thereto.
12. PURPOSE OF THE OFFER AND THE MERGER; PLANS FOR THE COMPANY; THE MERGER
AGREEMENT AND THE IRREVOCABLE PROXIES; THE CONFIDENTIALITY AGREEMENT; OTHER
MATTERS
PURPOSE OF THE OFFER AND THE MERGER
The purpose of the Offer and the Merger is to enable the Purchaser, Agrium
U.S. and the Parent to acquire, in one or more transactions, substantial
control of the Company and the entire equity interest in the Company.
The Offer is intended to increase the likelihood that the Merger will be
completed promptly. The Parent and Agrium U.S. regard the acquisition of the
Company as an attractive opportunity to acquire a significant and well-
established business. The Parent, Agrium U.S. and the Purchaser believe the
increased scale of the combined businesses will enable the Parent and Agrium
U.S. to compete more effectively in the fertilizer business both domestically
and internationally. The transaction provides the Purchaser with phosphate
fertilizer production capacity and secures its position as a fully integrated
producer of the three essential major plant nutrients: nitrogen, phosphate and
potash. The business of the Purchaser and the Company operate in similar
markets and geographies and the Merger is expected to provide considerable
synergies and enhance performance.
PLANS FOR THE COMPANY
Except as noted in this Offer to Purchase, the Purchaser, Parent and Agrium
U.S. have no present plans or proposals that would result in an extraordinary
corporate transaction, such as a merger, reorganization, liquidation or sale
or transfer of a material amount of assets, involving the Company or any
subsidiary or any other material changes in the Company's capitalization,
dividend policy, corporate structure, business or composition of its
management or Board.
THE MERGER AGREEMENT AND THE IRREVOCABLE PROXIES
The following is a summary of certain provisions of the Merger Agreement and
the Irrevocable Proxies. The summary is qualified in its entirety by reference
to the Merger Agreement and the Irrevocable Proxies which are incorporated
herein by reference. Capitalized terms not otherwise defined herein or in the
following summary shall have the meanings set forth in the Merger Agreement.
The Offer. The Merger Agreement provides that the Purchaser will commence
the Offer conditioned upon a sufficient number of Shares being properly
tendered and not withdrawn, which, when added together with any Shares owned
by the Parent and any of its subsidiaries or which the Purchaser and the
Parent have the right to
16
<PAGE>
acquire, will equal at least 60% of the Shares on a fully diluted basis. The
Merger Agreement provides that, without the prior written consent of the
Company, the Purchaser shall not decrease the Merger Price, decrease the
number of Shares being sought in the Offer, change the form of consideration
payable in the Offer, add additional conditions to the Offer or make any other
material change in the terms or conditions to the Offer. After the time that
the Purchaser's designees constitute at least a majority of the Board and
until the Effective Date, any amendment or termination of the Merger
Agreement, extension for the performance or waiver of the obligations or other
acts of the Purchaser or the Parent (except pursuant to the Merger Agreement)
or waiver of the Company's rights under the Merger Agreement, which amendment,
termination, extension or waiver would adversely affect the stockholders,
optionholders or employees of the Company, will also require the approval of a
majority (or such higher percentage as is required under the By-laws of the
Company) of the then serving directors, if any, who were directors as of
August 9, 1995 (the "Continuing Directors"). See section 14 for additional
conditions to the Purchaser's obligations to consummate the Offer.
The Merger Agreement provides that upon the acquisition of Shares pursuant
to the Offer, which, when added together with Shares owned by the Parent or
any of its direct or indirect subsidiaries, equal at least a majority of the
then outstanding shares of Voting Common Stock, the Company will fill any
vacancies and increase the size of its Board as necessary to enable the Parent
to designate at its option a majority of the Company's Board, and shall cause
the Purchaser's designees to be so elected and shall mail promptly the
information required by Section 14(f) of the Exchange Act and Rule 14f-1
promulgated thereunder.
The Merger. The Merger Agreement provides that, subject to the terms and
conditions thereof, the Purchaser shall be merged with and into the Company,
which shall be the surviving corporation (the Company in such capacity being
hereinafter sometimes called the "Surviving Corporation") on the Effective
Date (as defined in the Merger Agreement). Pursuant to the Merger, (x) the
Certificate of Incorporation of the Company will be the Certificate of
Incorporation of the Surviving Corporation until thereafter amended as
provided by law, and (y) the By-laws of the Company will be the By-laws of the
Surviving Corporation until thereafter amended. The directors of the Purchaser
on the Effective Date will become the directors of the Surviving Corporation
until their respective successors are duly elected and qualified. The officers
of the Company on the Effective Date will continue as the officers of the
Surviving Corporation, to serve in accordance with the By-Laws thereof until
their respective successors are duly elected and qualified. The Merger will
have the effects set forth in the DGCL.
Conversion of Shares. The Merger Agreement provides that each outstanding
Share (other than Shares which are held by the Company as treasury shares, all
authorized and unissued Shares and any Shares owned by the Purchaser, the
Parent or any other direct or indirect subsidiary of the Parent and Shares
held by stockholders who exercise their statutory dissenters' rights as
described below) will be converted into the right to receive $10.50 net in
cash or such higher amount per Share as may be paid to any holder of Shares
pursuant to the Offer (the "Merger Price").
The Merger Agreement provides that each issued and outstanding share of
capital stock of the Purchaser shall be converted into one validly issued,
fully paid and non-assessable share of Voting Common Stock, par value $.01 per
share, of the Surviving Corporation.
The Merger Agreement provides that any issued and outstanding shares of
capital stock of the Company held by a Stockholder who has not voted in favor
of nor consented to the Merger and who complies with all the provisions of the
DGCL concerning the right of holders of such stock to dissent from the Merger
and require appraisal of their shares (a "Dissenting Stockholder"), shall not
be converted as described above but shall become, at the Effective Date, by
virtue of the Merger and without any further action, the right to receive such
consideration as may be determined to be due to such Dissenting Stockholder
pursuant to the DGCL; provided, however, that Shares outstanding immediately
prior to the Effective Date and held by a Dissenting Stockholder who shall,
after the Effective Date, withdraw his demand for appraisal or lose his right
of appraisal, in either case pursuant to the DGCL, shall be deemed to be
converted as of the Effective Date, into the right to receive the Merger
Price. The Merger Agreement provides that the Company will not, without the
prior written consent of the Purchaser, voluntarily make any payment with
respect to, or settle, offer to settle or otherwise negotiate, any demands by
Dissenting Stockholders.
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Stockholders' Meeting. Pursuant to the Merger Agreement, the Company has
agreed to take all action necessary in accordance with applicable law and its
Certificate of Incorporation and By-Laws to convene a meeting of the holders
of the Voting Shares as promptly as practicable after the expiration of the
Offer to consider and vote upon the adoption of the Merger Agreement, if such
stockholder approval is required by applicable law. The Company has agreed
that in the Proxy Statement with respect to the meeting, the Company will,
through its Board, recommend that the Company's stockholders adopt the Merger
Agreement, if such vote is required, except to the extent that the Board of
Directors will have withdrawn or modified its approval or recommendation of
the Tender Offer or the Merger Agreement after determining that it has a duty
in the proper discharge of its fiduciary responsibilities under applicable law
to withdraw or modify such approval or recommendation. The Parent has agreed
that at any stockholders' meeting, it will vote or cause all of the Shares
acquired pursuant to the Offer or otherwise by Purchaser or any affiliate of
Parent to be voted in favor of the Merger.
Irrevocable Proxies. The Committing Stockholders, WPG Corporate Development
Associates III (Overseas), Ltd., Weiss, Peck & Greer Venture Associates, L.P.
Liquidating Trust, U/T/A dated December 30, 1994, WPG Corporate Development
Associates III, L.P. and WPG Corporate Development Associates II, L.P.
Liquidating Trust, U/T/A dated December 31, 1993, have agreed to tender the
4,614,281 Shares owned by them in the Offer and have appointed employees of
the Parent as proxies and attorneys-in-fact (with full power of substitution)
(i) to call a special meeting of stockholders of the Company to consider the
Merger and (ii) to vote (or, at their discretion, execute a written consent
with respect to) with or without the other, all the voting securities of the
Company owned by them ("Covered Shares") (A) in favor of the Merger and
adoption of the Merger Agreement, and (B) against any business combination
proposal or other matter that may interfere or be inconsistent with the Merger
or the Merger Agreement (including, without limitation, any Acquisition
Proposal (as defined below under "No Solicitation")), at any meeting of
stockholders of the Company (or consent in lieu thereof) and any adjournment
or adjournments thereof. The Committing Stockholders have agreed not to sell
or otherwise transfer or dispose of any of the Covered Shares unless the
following conditions are met: (i) prior written notice of the Irrevocable
Proxies is given to the transferee and the transferee agrees that the shares
transferred will remain subject to the Irrevocable Proxies and, in connection
therewith, executes and delivers to the Parent a proxy covering such shares in
form and substance satisfactory to the Parent, which proxy shall be in
substantially the form of the Irrevocable Proxies or (ii) the transfer is to
the Parent or its designee pursuant to the Offer. The Irrevocable Proxies will
terminate automatically on the earliest to occur of (i) the Effective Date,
(ii) termination of the Merger Agreement pursuant to Section 9.1 thereof
(including a termination by the Company upon a determination by its Board of
Directors that it has a duty in the proper discharge of its fiduciary
responsibilities to accept, recommend or take no position with respect to an
Acquisition Proposal) or (iii) amendment of the Merger Agreement with respect
to the Offer Price to be received upon consummation of the Merger or the
Offer.
Interim Operations of the Company. In the Merger Agreement, the Company has
agreed that, except as expressly provided in the Merger Agreement or consented
to in writing by the Parent or unless the failure to comply with any of the
following covenants results from actions by the Board which are approved by a
majority of the directors appointed by the Parent pursuant to the Merger
Agreement, prior to the Effective Date, (i) the businesses of the Company and
its subsidiaries will be conducted only in the ordinary and usual course of
business and (ii) the Company will not (A) (1) increase the compensation
payable to or to become payable to any director or executive officer, except
for increases in salary or wages payable or to become payable in the ordinary
course of business and consistent with past practice; (2) grant any severance
or termination pay (other than pursuant to the normal severance policy of the
Company or its subsidiaries as in effect on the date of the Merger Agreement)
to, or enter into or amend any employment or severance agreement with, any
director, officer or employee; (3) establish, adopt or enter into any new
employee benefit plan or arrangement; or (4) except as may be required by
applicable law and actions that are not inconsistent with the provisions of
the Merger Agreement, amend, or take any other actions (other than the
acceleration of vesting or waiving of performance criteria permitted pursuant
to the employee benefit plans upon a change in control of the Company) with
respect to, any of the Company's employee benefit plans; (B) declare or pay
any dividend on, or make any other distribution in respect of, outstanding
shares of capital stock, except for dividends by a subsidiary to the Company
or another subsidiary; (C) (1) except as described in the Company Disclosure
Schedule (as defined in the Merger Agreement), redeem, purchase or otherwise
acquire any shares of its or any of its subsidiaries' capital
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stock or any securities or obligations convertible into or exchangeable for
any shares of its or its subsidiaries' capital stock (other than any such
acquisition directly from any wholly owned subsidiary of the Company in
exchange for capital contributions or loans to such subsidiary), or any
options, warrants or conversion or other rights to acquire any shares of its
or its subsidiaries' capital stock or any such securities or obligations
(except in connection with the exercise of outstanding stock options or
warrants in accordance with their terms); (2) effect any reorganization or
recapitalization; or (3) split, combine or reclassify any of its or its
subsidiaries' capital stock or issue or authorize or propose the issuance of
any other securities in respect of, in lieu of or in substitution for, shares
of its or its subsidiaries' capital stock; (D) (1) except as described in the
Company Disclosure Schedule, issue, deliver, award, grant or sell, or
authorize or propose the issuance, delivery, award, grant or sale (including
the grant of any security interests, liens, claims, pledges, limitations in
voting rights, charges or other encumbrances) of, any shares of any class of
its or its subsidiaries' capital stock (including shares held in treasury),
any securities convertible into or exercisable or exchangeable for any such
shares, or any rights, warrants or options to acquire any such shares (except
as permitted for the issuance of shares upon the exercise of stock options
outstanding as of the date of this Agreement) other than the conversion of
Voting Shares and Nonvoting Shares as provided in the Company's Certificate of
Incorporation, the exercise of warrants or the exercise of options under the
Company's stock option plans; or (2) amend or otherwise modify the terms of
any such rights, warrants or options the effect of which shall be to make such
terms more favorable to the holders thereof; (E) acquire or agree to acquire,
by merging or consolidating with, by purchasing an equity interest in or a
portion of the assets of, or by any other manner, any business or any
corporation, partnership, association or other business organization or
division thereof, or otherwise acquire or agree to acquire any assets of any
other person (other than the purchase of assets from suppliers or vendors in
the ordinary course of business) in each case which are material, individually
or in the aggregate, to the Company and its subsidiaries, taken as a whole;
(F) sell, lease, exchange, mortgage, pledge, transfer or otherwise dispose of,
or agree to sell, lease, exchange, mortgage, pledge, transfer or otherwise
dispose of, any of its material assets or any material assets of any of its
subsidiaries, except for dispositions in the ordinary course of business and
consistent with past practice; (G) adopt or propose to adopt any amendments to
its charter or By-Laws which would alter the terms of its capital stock or
would have an adverse impact on the consummation of the transactions
contemplated by the Merger Agreement; (H) (1) change, in any material respect,
any of its methods of accounting in effect at June 30, 1995, or (2) make or
rescind any express or deemed election relating to taxes, settle or compromise
any claim, action, suit, litigation, proceeding, arbitration, investigation,
audit or controversy relating to taxes (except where the amount of such
settlements or controversies, individually or in the aggregate, would not have
a Company Material Adverse Effect (as defined in the Merger Agreement)), or
change any of its methods of reporting income or deductions for federal income
tax purposes from those employed in the preparation of the federal income tax
returns for the taxable year ending June 30, 1994, except, in each case, as
may be required by law or U.S. generally accepted accounting principles; (I)
other than as permitted by the Harris Loan (as defined in the Merger
Agreement), incur any material obligation for borrowed money or purchase money
indebtedness, whether or not evidenced by a note, bond, debenture or similar
instrument; (J) enter into any material arrangement, agreement or contract
with any third party (other than customers in the ordinary course of business)
that provides for an exclusive arrangement with that third party or is
substantially more restrictive on the Company or substantially less
advantageous to the Company than arrangements, agreements or contracts
existing on the date hereof unless such arrangement is entered into in the
ordinary course of business; or (K) agree in writing or otherwise to do any of
the foregoing.
No Solicitation. In the Merger Agreement, the Company has agreed that the
Company will not solicit, initiate or knowingly encourage any inquiries,
discussions or negotiations with any person (other than the Purchaser or the
Parent) concerning any Acquisition Proposal or solicit, initiate or knowingly
encourage any effort or attempt by any other person to do, make or seek an
Acquisition Proposal or, unless required in order for the Board to comply with
its fiduciary responsibilities, with a view to pursuing an Acquisition
Proposal with such person, engage in discussions or negotiations with or
disclose any nonpublic information relating to the Company or any of its
subsidiaries to such person or authorize or permit any of the officers,
directors or employees of the Company or any of its subsidiaries or any
investment banker, financial adviser, attorney, accountant or other
representative retained by the Company or any of its subsidiaries to take any
such action. The Company has agreed to immediately communicate to the Parent
in writing the terms of any Acquisition Proposal which it may receive. As used
in the Merger Agreement, "Acquisition Proposal" means any bona fide written
proposal or offer from a third party (each an "Acquisition Proposal") relating
to (i) the acquisition or
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purchase of all or substantially all of the assets of, or more than a 50%
equity interest (including any Shares theretofore acquired) in the Company,
(ii) a merger, consolidation or similar business combination with the Company
or (iii) a tender or exchange offer for the Company conditioned on ownership
of more than 50% of the outstanding Shares following such tender or exchange
offer.
Directors' and Officers' Indemnification. Pursuant to the Merger Agreement,
the Company must indemnify and hold harmless, and after the Effective Date,
the Parent and the Surviving Corporation must indemnify and hold harmless,
each present employee, agent, director or officer of the Company and the
Company's subsidiaries (the "Indemnified Parties") (a) with respect to any
losses, claims, damages, liabilities, costs and expenses, including reasonable
attorneys' and expert witness fees, arising out of or pertaining to any action
or omission occurring prior to the Effective Date (including any which arise
out of or pertain to the transactions contemplated by this Agreement) and (b)
as provided in their respective charters or by-laws in effect at the date
hereof (to the extent consistent with applicable law), which provisions will
survive the Merger and will continue in full force and effect for a period of
not less than five years from the Effective Date. In the event any claim or
claims (a "Claim or Claims") are asserted or made pursuant to the preceding
sentence within such five-year period, all rights to indemnification in
respect of any such Claim or Claims shall continue until disposition of any
and all such Claims. In the event that a claim is asserted against any
Indemnified Party with respect to any matter to which the indemnities
contained in this section relate, the Indemnified Party shall give prompt
written notice to the Surviving Corporation setting forth in reasonable detail
the basis for such claim for indemnification. The Surviving Corporation has
the right, at its election, to take over the defense or settlement of such
claim at its own expense by giving prompt notice to that effect to the
Indemnified Party. If the Surviving Corporation has assumed the defense of any
Claim, the Surviving Corporation is authorized to consent to a settlement of,
or the entry of any judgment arising from, any such Claim, without the prior
written consent of the Indemnified Party; provided, however, that a condition
to any such settlement will be a complete release of the Indemnified Party
with respect to such Claim. If the Surviving Corporation does not, within
thirty days after receipt of the Indemnified Party's notice of Claim, (x) give
such notice to take over the defense of such Claim and proceed to defend the
Claim or (y) object to such Claim in writing to the Indemnified Party, then
the Indemnified Party will have the right to undertake the defense of such
Claim and the Surviving Corporation will pay to the Indemnified Party the
reasonable fees and expenses of its counsel. The Surviving Corporation will
not be liable for any settlement effected without its consent, which consent
will not be unreasonably withheld. The Indemnified Party will at all times
have the right, at its option and expense, to participate fully in, but not to
control, any such defense. Without limiting the foregoing, the Company and,
after the Effective Date, the Surviving Corporation, to the extent permitted
by applicable law, will periodically advance reasonable expenses as incurred
with respect to the foregoing to the fullest extent permitted under applicable
law provided the person to whom the expenses are advanced provides an
undertaking to repay such advances if it is ultimately determined that such
person is not entitled to indemnification. In the event that within five years
from the Effective Date the Surviving Corporation consolidates or merges with
or into any other person or transfers all or substantially all of its assets
to any person and such person surviving such consolidation or merger or to
which such assets have been transferred is not a Delaware corporation, the
Surviving Corporation will enter into an agreement pursuant to which such
person must agree to provide indemnification substantially equivalent to that
required of the Company hereunder.
Compensation and Benefits. Pursuant to the Merger Agreement, the Parent and
the Surviving Corporation have agreed for a period of two years from the
Effective Date, to honor in accordance with their terms the Company's employee
benefit plans, in each case to the extent the same have been delivered or made
available to the Purchaser for review, provided however that the Parent and
the Purchaser may amend or terminate any such plan at any time after the
Effective Date to the extent the amendment or termination is deemed to be
necessary or appropriate to comply with the requirements of applicable law.
Representations and Warranties. In the Merger Agreement, the Company has
made customary representations and warranties to the Parent and the Purchaser
with respect to, among other things, its organization, authorization,
capitalization, potential conflicts, inventory, insurance, intellectual
property, financial statements, public filings, employee benefit plans,
defaults, information in the Proxy Statement, compliance with
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laws, litigation, tax matters, real and personal property, environmental
matters, consents and approvals, undisclosed liabilities and the absence of
certain events. None of the representations and warranties in the Merger
Agreement will survive the Effective Date of the Merger.
Conditions to the Merger. Pursuant to the terms of the Merger Agreement, the
obligations of each party to effect the Merger are subject to the fulfillment
at or prior to the Effective Date of the following conditions: (i) the holders
of the Voting Shares must have duly approved the Merger if required by
applicable law; (ii) no preliminary or permanent injunction or other order by
a court of competent jurisdiction which prevents the consummation of the
Merger shall have been issued and remain in effect (each party agreeing to use
its reasonable best efforts to have any such injunction lifted); (iii) no
action shall have been taken nor shall any statute, rule or regulation have
been enacted by the government of the United States or any state thereof that
makes the consummation of the Offer or the Merger illegal in any material
respect; and (iv) the applicable waiting period under the HSR Act with respect
to the transactions contemplated by this Agreement must have expired or been
terminated. The obligations of the Purchaser and the Parent to effect the
Merger shall be subject to the fulfillment at or prior to the Effective Date
of the following additional conditions: (i) the representations and warranties
of the Company set forth in the Merger Agreement must be true and correct in
all material respects on the Effective Date (or on such other date specified
in the Merger Agreement) with the same force and effect as though made on and
as of such date, and the Purchaser and the Parent must have received a
certificate to that effect from the Chief Executive Officer and the Treasurer
of the Company; (ii) all of the covenants and agreements of the Company to be
performed or complied with pursuant to the Merger Agreement prior to the
Effective Date must have been duly performed and complied with in all material
respects, and the Purchaser and the Parent must have received a certificate to
that effect from the Chief Executive Officer and the Treasurer of the Company;
(iii) holders of no more than 400,000 Shares, in the aggregate, shall have
filed with the Company a written objection to the Merger and made a written
demand for payment of the fair value of his shares in the manner permitted by
the DGCL; (iv) all of the Continuing Directors (as defined in the Merger
Agreement) of the Company on the Effective Date must have resigned; (v) since
the date of the Merger Agreement, there shall have been no Company Material
Adverse Effect (provided, however, that certain IRS Notices of Proposed
Adjustment will not be considered a Company Material Adverse Effect); and (vi)
other than taxes duly paid, withheld or reserved for by the Company, no taxes
shall be payable, or reasonably expected by the Company to be payable, with
respect to items or periods covered by the returns and reports referred to in
the Merger Agreement (whether or not shown on or reportable on such returns or
reports or with respect to any period prior to the Effective Date), other than
any such taxes which would not have a Company Material Adverse Effect. The
obligation of the Company to effect the Merger shall be subject to the
fulfillment at or prior to the Effective Date of the following additional
conditions: (i) the representations and warranties of the Purchaser and the
Parent set forth in the Merger Agreement shall be true and correct in all
material respects on the Effective Date (or on such other date specified in
the Merger Agreement) with the same force and effect as though made on and as
of such date, and the Company shall have received certificates to that effect
from the Chief Executive Officer and the Treasurer of the Parent and the
President of the Purchaser; (ii) all of the covenants and agreements of the
Purchaser and the Parent to be performed or complied with pursuant to the
Merger Agreement prior to the Effective Date shall have been duly performed
and complied with in all material respects, and the Company shall have
received certificates to that effect from the Chief Executive Officer and the
Treasurer of the Parent and the President of the Purchaser.
Termination. The Merger Agreement may be terminated at any time prior to the
Effective Date, whether before or after approval by the stockholders of the
Company, if required, (i) by mutual consent of the Parent and the Board; (ii)
by the Parent or the Company if the Merger shall not have been consummated on
or before December 15, 1995, which date may be extended by mutual agreement of
the boards of directors of the Company and the Parent; (iii) by the Company
if, prior to the Effective Date, the Company, its Board or its stockholders
shall receive an Acquisition Proposal and the Board determines that it has a
duty in the proper discharge of its fiduciary responsibilities under
applicable law to consider such other proposal or offer, and then such Board
either (A) accepts such proposal or offer, (B) recommends to the stockholders
acceptance of such proposal or offer or (C) in the case of a tender or
exchange offer, takes no position with respect thereto and all conditions
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(other than terminating the Merger Agreement) of such tender or exchange offer
have been satisfied, in which event the Merger Agreement shall be terminated
without any liability to the Company or the Company's Board as a result of
such termination other than payment of the (U.S.)$4,000,000 fee as set forth
below; (iv) by the Parent upon a breach of any material representation,
warranty, covenant or agreement on the part of the Company set forth in the
Merger Agreement or if any representation or warranty of the Company shall
have become untrue and such breach or untruth shall have caused a Company
Material Adverse Effect; (v) by the Company upon a breach of any material
representation, warranty, covenant or agreement on the part of the Parent set
forth in this Agreement or if any representation or warranty of the Parent
shall have become untrue and such breach or untruth shall have caused a Parent
Material Adverse Effect (as defined in the Merger Agreement). If the Merger
Agreement is terminated pursuant to (iii) above, the Company shall pay to
Parent (U.S.)$4,000,000 in cash. In the event of termination of the Merger
Agreement by the Parent, the Purchaser or the Company other than pursuant to
(iii) above, there shall be no liability under the Merger Agreement on the
part of either the Company, the Parent or the Purchaser or their respective
officers or directors, with certain exceptions as provided in the Merger
Agreement including failure to convene the meeting of Stockholders to vote on
the Merger, certain confidentiality provisions and a wilful breach of any
representation, warranty, covenant or agreement of the Purchaser, the Parent
or the Company contained in the Merger Agreement.
Amendment. The Merger Agreement may be amended by the parties thereto, by
action taken by the respective Boards of Directors of the Purchaser, the
Parent and the Company, at any time before or after approval hereof by the
stockholders of the Company, but, after any such approval, if required, no
amendment shall be made which changes the Merger Price without the further
approval of such stockholders. The Merger Agreement may not be amended except
by an instrument in writing signed on behalf of each of the parties thereto.
Timing. The exact timing and details for the Merger will depend upon legal
requirements and a variety of other factors, including the number of Shares
acquired by the Purchaser pursuant to the Offer. Although the Purchaser has
agreed to cause the Merger to be consummated on the terms set forth above,
there can be no assurance as to the timing of the Merger.
Delaware Law. The Board has approved the Merger Agreement and the
transactions contemplated by it, including the Offer, the Merger Agreement and
the Merger for purposes of Section 203 of the DGCL. Accordingly, the
restrictions of Section 203 do not apply to the transactions contemplated by
the Offer and the Merger Agreement. Section 203 of the DGCL prevents an
"interested stockholder" (generally, a stockholder owning 15% or more of a
corporation's outstanding voting stock or an affiliate or associate of that
stockholder) from engaging in a "business combination" (defined to include a
merger and certain other transactions) with a Delaware corporation for a
period of three years following the date on which the stockholder became an
interested stockholder, unless (i) prior to that date, the corporation's board
of directors approved either the business combination or the transaction that
resulted in the stockholder becoming an interested stockholder, (ii) upon
consummation of the transaction that resulted in the stockholder becoming an
interested stockholder, the interested stockholder owned at least 85% of the
corporation's voting stock outstanding at the time the transaction commenced
(excluding shares owned by certain employee stock plans and persons who are
directors and also officers of the corporation) or (iii) on or subsequent to
that date, the business combination is approved by the corporation's board of
directors and authorized at an annual or special meeting of stockholders, and
not by written consent, by the affirmative vote of at least 66 2/3% of the
outstanding voting stock not owned by the interested stockholder. As described
above, Section 203 of the DGCL does not apply to the Offer or the Merger.
THE CONFIDENTIALITY AGREEMENT
The Parent and the Company entered into a Confidentiality Agreement dated as
of February 1, 1995 (the "Confidentiality Agreement"), pursuant to which the
Parent and its Representatives (as defined in the Confidentiality Agreement)
agreed to keep confidential certain business and/or technical information of
the Company to be furnished to them in connection with the evaluation of a
possible business combination or other transaction. The Confidentiality
Agreement also provides, among other things, that, without the prior written
consent of the Company, for a period of one year neither the Parent nor its
affiliates or agents will attempt to employ any person who is at the time an
employee of the Company.
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In addition, the Confidentiality Agreement provides that, for a period of
eighteen months neither the Parent nor its affiliates will (or will assist or
encourage others to), without the prior written consent of the Company, (i)
acquire or agree to acquire, offer, seek or propose to acquire, or cause to be
acquired, ownership of any of the Company's assets or business or any voting
or debt securities or preferred stock issued by the Company or any rights or
options to acquire such ownership; (ii) seek or propose to influence or
control management or policies of the Company or to obtain representation on
the Company's Board, solicit or participate in the solicitation of any proxies
or consents with respect to any securities of the Company or make any public
announcement with respect to any of the foregoing; (iii) seek to negotiate or
influence the terms and conditions of employment of employees of the Company;
or (iv) enter into any discussions, negotiations, arrangements or
understandings with any third parties with respect to any of the foregoing.
OTHER MATTERS
Appraisal Rights. No appraisal rights are available to Stockholders in
connection with the Offer. However, if the Merger is consummated, a
Stockholder who did not tender will have certain rights under Section 262 of
the DGCL to dissent and demand appraisal of, and payment in cash for the fair
value of, that Stockholder's Shares. Those rights, if the statutory procedures
are complied with, could lead to a judicial determination of the fair value
(excluding any value arising from the Merger) required to be paid in cash to
dissenting Stockholders for their Shares. Any judicial determination of the
fair value of Shares could be based upon considerations other than or in
addition to the Offer Price and the market value of the Shares, including
asset values and the investment value of the Shares. The value so determined
could be more or less than the Offer Price or the Merger Consideration.
If a Stockholder who demands appraisal under Section 262 of the DGCL fails
to perfect, or effectively withdraws or loses, his right to appraisal, as
provided in the DGCL, the Shares of that Stockholder will be converted into
the Merger Consideration in accordance with the Merger Agreement. A
Stockholder may withdraw his demand for appraisal by delivering to the
Purchaser a written withdrawal of such demand for appraisal and acceptance of
the Merger.
Failure to follow the steps required by Section 262 of the DGCL for
perfecting appraisal rights may result in the loss of those rights.
Going Private Transactions. Rule 13e-3 under the Exchange Act is applicable
to certain "going-private" transactions. The Purchaser does not believe that
Rule 13e-3 will be applicable to the Merger, unless, among other things, the
Merger is completed more than one year after termination of the Offer. If
applicable, Rule 13e-3 would require, among other things, that certain
financial information regarding the Company and certain information regarding
the fairness of the Merger and the consideration offered to minority
Stockholders be filed with the Commission and disclosed to minority
Stockholders prior to consummation of the Merger.
13. DIVIDENDS AND DISTRIBUTIONS
If, on or after the date of the Merger Agreement, the Company should (i)
split, combine or otherwise change the Shares or its capitalization, (ii)
acquire currently outstanding Shares or otherwise cause a reduction in the
number of outstanding Shares or (iii) 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, then, subject to the provisions of Section 14
below, the Purchaser, in its sole discretion, may 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 declares or
pays any cash dividend on the Shares, makes other distributions on the Shares
or issues 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 Stockholders of
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record 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 Section 14 below, (i) the Offer Price may, in the
sole discretion of the Purchaser, be reduced by the amount of any cash
dividend or cash distribution and (ii) the whole of any non-cash dividend,
distribution or issuance to be received by the tendering Stockholders will (a)
be received and held by the tendering Stockholders for the account of the
Purchaser and will be required to be promptly remitted and transferred by each
tendering Stockholder to the Depositary for the account of the Purchaser,
accompanied by appropriate documentation of transfer or (b) at the direction
of the Purchaser, be exercised for the benefit of the Purchaser, in which case
the proceeds of exercise promptly will be remitted to the Purchaser. Pending
the remittance and subject to applicable law, the Purchaser will be entitled
to all rights and privileges as owner of any non-cash dividend, distribution,
issuance or proceeds and may withhold the entire Offer Price or deduct from
the Offer Price the amount or value of the non-cash dividend, distribution,
issuance or proceeds, as determined by the Purchaser in its sole discretion.
Pursuant to the terms of the Merger Agreement, the Company is prohibited
from taking any of the actions described in the two preceding paragraphs and
nothing in this Offer to Purchase shall constitute a waiver by the Purchaser
or the Parent of any of their rights under the Merger Agreement or a
limitation of remedies available to the Purchaser or the Parent for any breach
of the Merger Agreement, including termination of the Merger Agreement.
14. CERTAIN CONDITIONS OF THE OFFER
Notwithstanding any other provision of the Offer, the Purchaser shall not be
required to accept for payment, purchase or pay for any Shares tendered and
may terminate or (subject to the terms of the Merger Agreement) amend the
Offer or may postpone the acceptance for payment, purchase of or payment for
Shares tendered, if before acceptance for payment for any such Shares (whether
or not any Shares have theretofore been accepted for payment or paid for
pursuant to the Offer) (i) the Minimum Tender Condition has not been met, (ii)
any waiting period under the HSR Act applicable to the purchase of Shares
pursuant to the Tender Offer shall not have expired or been terminated, or
(iii) any of the following shall occur: (i) any representation or warranty of
the Company in the Merger Agreement shall have been untrue or incorrect in any
material respect as of the date of the Merger Agreement and the date of
consummation of the Offer with the same force and effect as though made on and
as of the date of consummation of the Offer, or there has been a breach by the
Company of any covenant or agreement set forth in the Merger Agreement which
breach shall not be remedied within five days (or by the Expiration Date if
sooner) of written notice specifying such breach in reasonable detail and
demanding that same be remedied (except where such failure to be true and
correct or such breach would not reasonably be expected to have a Company
Material Adverse Effect); (ii) there shall be any action taken, or any
statute, rule, regulation, decree, order or injunction promulgated, enacted,
entered into or enforced by any state, federal or foreign government or
governmental agency or authority or by any court (domestic or foreign) that
would (A) make the acceptance for payment of, the payment for, or the purchase
of, some or all of the Shares by the Purchaser illegal or otherwise prohibit
consummation of the Offer or the Merger, (B) prohibit the ability of the
Purchaser, or render the Purchaser unable, to accept for payment, pay for or
purchase some or all of the Shares in a manner that is adverse in any material
respect to the transactions contemplated by the Offer or the Merger, (C)
require the divestiture by the Purchaser, the Parent or the Company or any of
their respective subsidiaries of all or any material portion of the business,
assets or property of any of them or any Shares, or impose any material
limitation on the ability of any of them to conduct their business and own
such assets, properties and Shares, (D) impose material limitations on the
ability of the Parent or the Purchaser to acquire or hold or to exercise
effectively all rights of ownership of Shares, including, without limitation,
the right to vote any Shares purchased by the Purchaser on all matters
properly presented to the stockholders of the Company or (E) impose any
material limitations on the ability of the Purchaser or the Parent or any of
their respective subsidiaries effectively to control in any material respect
the business or operations of the Company and its subsidiaries; (iii) since
the date of the Merger Agreement there shall have been a Company Material
Adverse Effect; (iv) the Merger Agreement shall have been terminated in
accordance with its terms; or (v) the Company's Board shall have withdrawn,
modified or amended in any respect materially adverse to the Purchaser or the
Parent its recommendation of the Offer and the Merger or resolved to do so.
24
<PAGE>
The foregoing conditions are for the sole benefit of the Purchaser, the
Parent and their affiliates and may be asserted by the Purchaser or the Parent
regardless of the circumstances (including, without limitation, any action or
inaction by the Purchaser, the Parent or any of their affiliates) giving rise
to any of the conditions or may be waived by the Purchaser or the Parent, in
whole or in part, from time to time in its sole discretion, except as
otherwise provided in the Merger Agreement. The failure by the Purchaser or
the Parent at any time to exercise any of the foregoing rights will not be
deemed a waiver of any of those rights and each of those rights will be deemed
an ongoing right and 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, but without any independent
investigation, neither the Purchaser, Agrium U.S. nor the Parent 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 as contemplated in this
Offer to Purchase or of any approval or other action by any governmental
authority that would be required for the acquisition or ownership of Shares by
the Purchaser as contemplated in this Offer to Purchase. Should any such
approval or other action be required, the Purchaser, Agrium U.S. and the
Parent presently 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 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 decline to accept
for payment or pay for any Shares tendered. See Section 14 above for certain
conditions to the Offer.
Certain Litigation Relating to the Offer. Since the announcement of the
Offer, three class action complaints have been filed in the Delaware Chancery
Court on behalf of all persons who own Shares against the Company and certain
of its directors. In the suits, filed as Civil Action Nos. 11468, 11469 and
14477, respectively, the plaintiffs have alleged, among other things, that the
defendants have breached their fiduciary duties to holders of the Shares by,
among other things, entering into an agreement with the Purchaser and failing
to attempt to maximize shareholder value. Each suit seeks various remedies,
including an injunction to prevent consummation of the transaction, and
damages, costs and disbursements of the action.
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, stockholders, executive offices or places of business in those
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 stockholders, provided
that the laws were applicable only under certain conditions.
Section 203 of the DGCL limits the ability of a Delaware corporation to
engage in business combinations with "interested stockholders" (defined as any
beneficial owner of 15% or more of the outstanding voting stock of the
corporation) unless, among other things, the corporation's board of directors
has given its prior approval of either the business combination or the
transaction which resulted in the stockholder becoming an "interested
stockholder." The Company has represented in the Merger Agreement that it
properly approved, among other things, the Offer and the Merger for purposes
of Section 203 of the DGCL.
25
<PAGE>
Based on information supplied by the Company and the Company's
representations in the Merger Agreement, the Purchaser does not believe that
any state takeover statutes apply to the Offer or the Merger. Neither the
Purchaser, Agrium U.S. nor the Parent 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 that
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,
Agrium U.S. and the Parent 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 for payment or pay
for any Shares tendered pursuant to the Offer.
Antitrust. Under the provisions of the HSR Act applicable to the Offer, the
purchase of Shares under the Offer may be consummated following the expiration
of a 15-calendar-day waiting period following the filing by the Purchaser of a
Notification and Report Form with respect to the Offer with the Antitrust
Division of the Department of Justice (the "Antitrust Division") and the
Federal Trade Commission (the "FTC"), unless the Purchaser receives a request
for additional information or documentary material from the Antitrust Division
or the FTC or unless early termination of the waiting period is granted. The
Purchaser expects that such filing will be made on or about August 16, 1995
and such waiting period will expire at 11:59 p.m. on or about August 31, 1995.
If, within the initial 15-day waiting period, either the Antitrust Division or
the FTC requests additional information or documentary material from the
Purchaser concerning the Offer, the waiting period will be extended and would
expire 11:59 P.M., New York City time, on the tenth calendar day after the
date of substantial compliance by the Purchaser with such request. Only one
extension of the waiting period pursuant to a request for additional
information is authorized by the HSR Act. Thereafter, the waiting period may
be extended only by court order or with the consent of the Purchaser. In
practice, complying with a request for additional information or documentary
material can 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 the negotiations
continue.
The FTC and the Antitrust Division 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
purchase 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 Purchaser or its subsidiaries, or the Company 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 of that challenge.
16. FEES AND EXPENSES
The Purchaser has retained D.F. King & Co., Inc. to act as the Information
Agent, and Chemical Mellon Shareholder Services to act as the Depositary, in
connection with the Offer. The Information Agent and the Depositary each will
receive reasonable and customary compensation for its services, will be
reimbursed for certain reasonable out-of-pocket expenses and will be
indemnified against certain liabilities and expenses in connection therewith,
including certain liabilities under the federal securities laws.
Except as set forth above, the Purchaser will not pay any fees or
commissions to any broker or dealer or other person for soliciting tenders of
Shares pursuant to the Offer. Brokers, dealers, commercial banks and trust
companies will be reimbursed by the Purchaser for customary mailing and
handling expenses incurred by them in forwarding the offering materials to
their customers.
26
<PAGE>
17. MISCELLANEOUS
The Offer is not being made to (nor will tenders be accepted from or on
behalf of) holders of Shares residing in any jurisdiction in which the making
of the Offer or the acceptance thereof would not be in compliance with the
securities, blue sky or other laws of the jurisdiction. However, the Purchaser
may, in its discretion, take such action as it may deem necessary to make the
Offer in any jurisdiction and extend the Offer to holders of Shares in that
jurisdiction. In any jurisdiction where the securities, blue sky or other laws
require the Offer to be made by a licensed broker or dealer, the Offer will be
deemed to be made on behalf of the Purchaser by one or more registered brokers
or dealers that are licensed under the laws of the jurisdiction.
The Purchaser has filed with the Commission the Schedule 14D-1 pursuant to
Rule 14d-1 under the Exchange Act containing certain additional information
with respect to the Offer. The Schedule and any amendments to the Schedule,
including exhibits, may be examined and copies may be obtained from the
principal office of the Commission in the manner set forth in Section 8 above
(except that they will not be available at the regional offices of the
Commission).
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR MAKE ANY
REPRESENTATION ON BEHALF OF THE PURCHASER NOT CONTAINED IN THE OFFER TO
PURCHASE OR IN THE LETTER OF TRANSMITTAL AND, IF GIVEN OR MADE, THE
INFORMATION OR REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN
AUTHORIZED.
Agrium Acquisition Corporation
August 16, 1995
27
<PAGE>
SCHEDULE I
DIRECTORS AND EXECUTIVE OFFICERS OF THE PARENT, AGRIUM U.S. AND THE PURCHASER
A. DIRECTORS AND EXECUTIVE OFFICERS OF THE PARENT
The following tables set forth the name, address, present principal
occupation or employment and material occupation, positions, offices or
employment for the past five years of each director and executive officer of
the Parent. Unless otherwise indicated below, the business address of each
director and officer is: Suite 426, 10333 Southport S.W., Calgary, Alberta
Canada T2W 3X6 and each such person is a citizen of Canada.
Directors
<TABLE>
<CAPTION>
PRINCIPAL OCCUPATION
--------------------
<S> <C>
Carroll G. Brunthaver (U.S. citizen)......................................... President, Sparks Companies, Inc. (agricultural
889 Ridge Lake Boulevard research and consulting company)
Memphis, Tennessee 38120
D. Grant Devine.............................................................. Farmer and agricultural consultant
#1000, 1777 Victoria Ave.
Regina, Saskatchewan,
S4P 4K5
G. Woodward MacLaren......................................................... Chairman, Macluan Capital Corporation (private
Suite 940, 1040 West Georgia Street international investment company)
Vancouver, British Columbia
V6E 4H1
Frank W. Proto............................................................... President and Chief Executive Officer, Wascana
1777 Victoria Avenue Energy Inc. (natural resource company)
Regina, Saskatchewan, S4P 3C4
William J. Robertson......................................................... Senior Vice President and Chief Operating Officer,
200 Burrard Street Cominco Ltd. (mining and smelting company)
Vancouver, British Columbia V6C 3L7
T. Don Stacy (U.S. and Canadian citizen)..................................... President, Amoco Eurasia Petroleum Company (oil
501 WestLake Park Boulevard and gas company)
Houston, Texas 77253-3092
Robert R. Stone.............................................................. Vice President, Finance and Chief Financial Officer,
200 Burrard Street Cominco Ltd.
Vancouver, British Columbia
V6C 3L7
John M. Van Brunt............................................................ President and Chief Executive Officer of the Parent
</TABLE>
During the past five years, each director's principal occupation has been as
identified above with the exceptions of Mr. Devine who, prior to May, 1995 was
a Member of the Legislative Assembly of the Province of Saskatchewan and prior
to October, 1991, was Premier of the Province of Saskatchewan; Mr. Proto, who
prior to January 1, 1994 was Senior Vice President of AEC; Mr. Robertson who
prior to July, 1993 was Vice President, Metal Production, Cominco Ltd.; Mr.
Stacy who prior to November, 1993 was Chairman and Chief Executive Officer of
Amoco Canada Petroleum Company Ltd. (natural resource company) and Mr. Van
Brunt who was Senior Vice President and Chief Operating Officer, and prior to
August, 1991 was Vice President, Operations, of Cominco Fertilizers, a
division of Cominco Ltd. prior to its spin-off in connection with the
formation of the Parent.
I-1
<PAGE>
Officers
<TABLE>
<CAPTION>
PRINCIPAL OCCUPATION
--------------------
<S> <C>
John M. Van Brunt................................................................ President and Chief Executive Officer of the
Parent; Chairman and Chief Executive Officer of
Agrium U.S.
Dorothy E.A. Bower (Canadian and U.S. citizen).................................. General Counsel and Corporate Secretary of the
Parent and Agrium U.S.; Director of Agrium U.S.;
President, Secretary and sole Director of the
Purchaser
Gary L. Carstens (U.S. citizen).................................................. Vice President, Operations of the Parent and
Agrium U.S.; Director of Agrium U.S.
Larry A. Collins................................................................. Vice President, Business Development of the Parent
and Agrium U.S.
Michael J. Klein (Canadian and U.S. citizen).................................... Vice President, Human Resources and Administration
of the Parent and Agrium U.S.; Director of Agrium
U.S.
Dale W. Massie (U.S.citizen).................................................... Vice President, Marketing of the Parent and Agrium
U.S.; Director of Agrium U.S.
Larry B. Thiessen.............................................................. Vice President, Finance and Chief Financial
Officer of the Parent and Agrium U.S.; Director of
Agrium U.S.
Herman T. Wilson (U.S. citizen)................................................ Vice President, Retail of the Parent; President of
2787 W. Bullard Avenue Agrium U.S.
Suite 101
Fresno, California 93715
</TABLE>
All of the officers of the Corporation have held the office and principal
occupation identified above or a substantially similar position with the
fertilizer division of Cominco Ltd. prior to its spin-off in connection with
the formation of the Parent for not less than five years with the exception of
Mr. Thiessen who prior to July, 1992 was Senior Vice President, Finance and
Chief Financial Officer of BP Canada Inc., prior to July, 1990 was Vice
President Financial Services of the Calgary General Hospital; Mr. Wilson, who
prior to January, 1995 was owner and Chief Executive Officer of Western Farmco
Holdings, Inc.
I-2
<PAGE>
B. DIRECTORS AND EXECUTIVE OFFICERS OF AGRIUM U.S.
The following table sets forth the name, address, present principal
occupation or employment and material occupation, positions, offices or
employment for the past five years of each director and executive officer of
Agrium U.S. Unless otherwise indicated below, the business address of each
director and officer is: Suite 426, 10333 Southport S.W., Calgary, Alberta
Canada T2W 3X6 and each such person is a citizen of Canada.
<TABLE>
<CAPTION>
PRINCIPAL OCCUPATION
--------------------
<S> <C>
John M. Van Brunt.......................................... See above.
Herman T. Wilson (U.S. citizen)............................ See above.
Dale W. Massie (U.S. citizen).............................. See above.
Michael J. Klein (Canadian and U.S. citizen)............... See above.
Larry B. Thiessen.......................................... See above.
Larry A. Collins........................................... See above.
Gary L. Carstens (U.S. citizen)............................ See above.
Dorothy E.A. Bower (Canadian and U.S. citizen)............. See above.
</TABLE>
C. DIRECTORS AND EXECUTIVE OFFICERS OF THE PURCHASER
The following table sets forth the name, present principal occupation or
employment and material occupation, positions, offices or employment for the
past five years of the sole director and executive officer of the Purchaser.
The business address of Ms. Bower is: Suite 426, 10333 Southport S.W.,
Calgary, Alberta Canada T2W 3X6 and she is a citizen of Canada and the U.S.
<TABLE>
<CAPTION>
PRINCIPAL OCCUPATION
--------------------
<S> <C>
Dorothy E.A. Bower (Canadian and U.S. citizen)............. See above.
</TABLE>
D. INITIAL DESIGNEES OF THE PURCHASER TO THE BOARD AFTER THE CONSUMMATION OF
THE OFFER
The following table sets forth the name, present principal occupation or
employment and material occupations, positions, offices or employment for the
past five years of each of the initial designees of the Purchaser to the Board
after the consummation of the Offer. Unless otherwise indicated below, the
address of each person is: Suite 426, 10333 Southport S.W., Calgary, Alberta
Canada T2W 3X6 and each such person is a citizen of Canada.
<TABLE>
<CAPTION>
PRESENT PRINCIPAL OCCUPATION
OR EMPLOYMENT AND FIVE-YEAR
NAME AND BUSINESS ADDRESS EMPLOYMENT HISTORY
------------------------- ----------------------------
<S> <C>
Dale W. Massie (U.S. citizen)............................ See above.
Dorothy E.A. Bower (U.S. and Canadian citizen)........... See above.
Larry A. Collins......................................... See above.
</TABLE>
I-3
<PAGE>
Facsimile copies of the Letter of Transmittal, properly completed and duly
signed, will be accepted. The Letter of Transmittal, certificates for Shares
and any other required documents should be sent or delivered by each
Stockholder of the Company or his broker, dealer, commercial bank, trust
company or other nominee to the Depositary, at one of the addresses set forth
below:
THE DEPOSITARY IS:
CHEMICAL MELLON SHAREHOLDER SERVICES
By Mail: By Facsimile Transmission:
Chemical Mellon Shareholder (for Eligible Institutions
Services only):
Reorganization Department (201) 296-4293
P.O. Box 837
Midtown Station Confirm by Telephone:
New York, New York 10018 (201) 296-4209
By Hand:
Chemical Mellon Shareholder
Services
Reorganization Department
120 Broadway, 13th Floor
New York, New York 10271
By Overnight Delivery:
Chemical Mellon Shareholder Services
85 Challenger Road
Ridgefield Park, New Jersey 07660
Questions and requests for assistance may be directed to the Information
Agent at its address and telephone number listed below. Additional copies of
this Offer to Purchase, the Letter of Transmittal and other tender offer
materials may be obtained from the Information Agent as set forth below and
will be furnished promptly at the Purchaser's expense. You may also contact
your broker, dealer, commercial bank, trust company or other nominee for
assistance concerning the Offer.
THE INFORMATION AGENT FOR THE OFFER IS:
D.F. King & Co., Inc.
77 Water Street
New York, New York 10005
Banks and Brokers Call Collect: (212) 269-5550
All Others Call Toll-free: (800) 829-6551
<PAGE>
Exhibit (a)(2)
LETTER OF TRANSMITTAL
TO TENDER SHARES OF VOTING AND NONVOTING COMMON STOCK
OF
NU-WEST INDUSTRIES, INC.
PURSUANT TO THE OFFER TO PURCHASE DATED AUGUST 16, 1995
BY
AGRIUM ACQUISITION CORPORATION
A WHOLLY-OWNED SUBSIDIARY OF AGRIUM U.S. INC.,
A WHOLLY-OWNED SUBSIDIARY OF
AGRIUM INC.
------------------------------------------------------------------------------
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK
CITY TIME, ON THURSDAY, SEPTEMBER 14, 1995, UNLESS EXTENDED.
------------------------------------------------------------------------------
The Depositary for the Offer:
CHEMICAL MELLON SHAREHOLDER SERVICES
By Mail By Facsimile Transmission By Hand
Chemical Mellon (for Eligible Chemical Mellon
Shareholder Services Institutions Only): Shareholder Services
Reorganization (201) 296-4293 Reorganization
Department Department
P.O. Box 837 120 Broadway
Midtown Station Confirm by Telephone to: 13th Floor
New York, NY 10018 (201) 296-4209 New York, NY 10271
By Overnight Courier
Chemical Mellon Shareholder Services
Reorganization Department
85 Challenger Road
Ridgefield Park, NJ 07660
DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN AS SET FORTH
ABOVE OR TRANSMISSION OF INSTRUCTIONS VIA A FACSIMILE TRANSMISSION TO A NUMBER
OTHER THAN AS SET FORTH ABOVE WILL NOT CONSTITUTE A VALID DELIVERY. YOU MUST
SIGN THIS LETTER OF TRANSMITTAL IN THE APPROPRIATE SPACE THEREFOR PROVIDED
BELOW AND COMPLETE THE SUBSTITUTE FORM W-9 SET FORTH BELOW.
THE INSTRUCTIONS ACCOMPANYING THIS LETTER OF TRANSMITTAL SHOULD BE READ
CAREFULLY BEFORE THIS LETTER OF TRANSMITTAL IS COMPLETED.
This Letter of Transmittal is to be completed by holders of Shares (as
defined below) of Nu-West Industries, Inc. (the "Stockholders") if
certificates evidencing Shares ("Certificates") are to be forwarded with this
Letter of Transmittal or if delivery of Shares is to be made by book-entry
transfer to an account maintained by Chemical Mellon Shareholder Services (the
"Depositary") at The Depository Trust Company ("DTC"), Midwest Securities
Trust Company ("MSTC") or Philadelphia Depository Trust Company ("PDTC") (each
a "Book-Entry Transfer Facility") pursuant to the procedures set forth in
section 3 of the Offer to Purchase (as defined below).
Stockholders whose Certificates are not immediately available or who cannot
deliver either their Certificates for, or a Book-Entry Confirmation (as
defined in section 3 of the Offer to Purchase) with respect to, their Shares
and all other required documents to the Depositary prior to the Expiration
Date (as defined in section 1 of the Offer to Purchase) may tender their
Shares according to the guaranteed delivery procedure set forth in section 3
of the Offer to Purchase. See Instruction 2 of this Letter of Transmittal.
Delivery of documents to a Book-Entry Transfer Facility does not constitute
delivery to the Depositary.
<PAGE>
[_]CHECK HERE IF TENDERED SHARES ARE BEING DELIVERED BY BOOK-ENTRY TRANSFER
MADE TO AN ACCOUNT MAINTAINED BY THE DEPOSITARY WITH A BOOK-ENTRY TRANSFER
FACILITY, AND COMPLETE THE FOLLOWING (ONLY PARTICIPANTS IN A BOOK-ENTRY
TRANSFER FACILITY MAY DELIVER SHARES BY BOOK-ENTRY TRANSFER).
Name of Tendering Institution:
Check Box of Book-Entry Transfer Facility:
[_] DTC [_] MSTC [_] PDTC
Account Number:
Transaction Code Number:
[_]CHECK HERE IF SHARES ARE BEING DELIVERED PURSUANT TO A NOTICE OF GUARANTEED
DELIVERY PREVIOUSLY SENT TO THE DEPOSITARY AND COMPLETE THE FOLLOWING.
PLEASE ENCLOSE A PHOTOCOPY OF SUCH NOTICE OF GUARANTEED DELIVERY.
Name(s) of Registered Holder(s):
Window Ticket Number (if any):
Date of Execution of Notice of Guaranteed Delivery:
Name of Institution Which Guaranteed Delivery:
If delivered by book-entry transfer, check box of Applicable Book-Entry
Transfer Facility:
[_] DTC [_] MSTC [_] PDTC
Account Number:
Transaction Code Number:
-------------------------------------------------------------------------------
DESCRIPTION OF SHARES TENDERED
--------------------------------------------------------------------------------
<TABLE>
<CAPTION>
NAME(S) AND ADDRESS(ES) OF REGISTERED HOLDER(S) SHARE NUMBER OF SHARES NUMBER OF
(PLEASE FILL IN, IF BLANK, EXACTLY AS NAME(S) Certificates REPRESENTED BY SHARES
APPEAR(S) ON THE CERTIFICATES(S)) NUMBER(S) CERTIFICATE(S)(1) TENDERED(2)
----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
------------------------------------------------------------
------------------------------------------------------------
------------------------------------------------------------
------------------------------------------------------------
------------------------------------------------------------
TOTAL SHARES
----------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Need not be completed by holders of Shares delivering Shares by Book-
Entry Transfer.
(2) Unless otherwise indicated, it will be assumed that all Shares
represented by Certificates delivered to the Depositary are being
tendered. See Instruction 4.
-------------------------------------------------------------------------------
<PAGE>
Ladies and Gentlemen:
The undersigned hereby tenders to Agrium Acquisition Corporation, a Delaware
corporation (the "Purchaser"), a wholly-owned subsidiary of Agrium U.S. Inc.,
a Colorado corporation, which is a wholly-owned subsidiary of Agrium Inc., a
Canadian corporation, the above-described shares of Voting Common Stock, $.01
par value, and Nonvoting Common Stock, $.01 par value (the "Shares"), of Nu-
West Industries, Inc., a Delaware corporation (the "Company"), for $10.50 per
Share, net to the seller in cash, upon the terms and subject to the conditions
set forth in the Offer to Purchase, dated August 16, 1995 (the "Offer to
Purchase"), receipt of which is hereby acknowledged, and in this Letter of
Transmittal (which together constitute the "Offer"). The undersigned
understands that the Purchaser reserves the right to transfer or assign, in
whole or from time to time in part, to one or more of its affiliates, the
right to purchase all or any portion of the Shares tendered pursuant to the
Offer, but any such transfer or assignment will not relieve the Purchaser of
its obligations under the Offer or prejudice the rights of tendering holders
of the Shares ("Stockholders") to receive payment for Shares validly tendered
and accepted for payment pursuant to the Offer.
Subject to, and effective upon, acceptance for payment of, or payment for,
Shares tendered with this Letter of Transmittal in accordance with the terms
and subject to the conditions of the Offer (including, if the Offer is
extended or amended, the terms or conditions of any such extension or
amendment), the undersigned hereby sells, assigns and transfers to, or upon
the order of, the Purchaser all right, title and interest in and to all of the
Shares that are being tendered hereby and any and all other Shares or other
securities issued or issuable in respect of such Shares on or after August 16,
1995 (a "Distribution") and irrevocably constitutes and appoints the
Depositary the true and lawful agent and attorney-in-fact of the undersigned
with respect to such Shares (and any Distributions), with full power of
substitution (such power of attorney being deemed to be an irrevocable power
coupled with an interest), to (i) deliver Certificates evidencing such Shares
(and any Distributions), or transfer ownership of such Shares (and all
Distributions) on the account books maintained by a Book-Entry Transfer
Facility together, in any such case, with all accompanying evidences of
transfer and authenticity to, or upon the order of, the Purchaser, upon
receipt by the Depositary, as the undersigned's agent, of the purchase price
with respect to such Shares, (ii) present such Shares (and any Distributions)
for transfer on the books of the Company and (iii) receive all benefits and
otherwise exercise all rights of beneficial ownership of such Shares (and any
Distributions), all in accordance with the terms and subject to the conditions
of the Offer.
The undersigned hereby irrevocably appoints each designee of the Purchaser
as the attorney-in-fact and proxy of the undersigned, each with full power of
substitution, to the full extent of the undersigned's rights with respect to
all Shares tendered hereby and accepted for payment and paid for by the
Purchaser (and any Distributions), including without limitation, the right to
vote such Shares (and any Distributions) in such manner as each such attorney
and proxy or his substitute shall, in his sole discretion, deem proper. All
such powers of attorney and proxies, being deemed to be irrevocable, shall be
considered coupled with an interest in the Shares tendered with this Letter of
Transmittal. Such appointment will be effective when, and only to the extent
that, the Purchaser accepts such Shares for payment. Upon such acceptance for
payment, all prior powers of attorney and proxies given by the undersigned
with respect to such Shares (and any Distributions) will be revoked, without
further action, and no subsequent powers of attorneys and proxies may be given
with respect thereto (and, if given, will be deemed ineffective). The
designees of the Purchaser will, with respect to the Shares (and any
Distributions) for which such appointment is effective, be empowered to
exercise all voting and other rights of the undersigned with respect to such
Shares (and any Distributions) as they in their sole discretion may deem
proper. The Purchaser reserves the absolute right to require that, in order
for Shares to be deemed validly tendered, immediately upon the acceptance for
payment of such Shares, the Purchaser or its designees are able to exercise
full voting rights with respect to such Shares (and any Distributions).
All authority conferred or agreed to be conferred in this Letter of
Transmittal shall be binding upon the successors, assigns, heirs, executors,
administrators and legal representatives of the undersigned and shall not be
affected by, and shall survive, the death or incapacity of the undersigned.
Except as stated in the Offer to Purchase, this tender is irrevocable.
<PAGE>
The undersigned hereby represents and warrants that the undersigned has full
power and authority to tender, sell, assign and transfer the Shares tendered
hereby (and any Distributions) and that, when the same are accepted for
payment and paid for by the Purchaser, the Purchaser will acquire good,
marketable and unencumbered title thereto, free and clear of all liens,
restrictions, charges and encumbrances, and that the Shares tendered hereby
(and any Distributions) will not be subject to any adverse claim. The
undersigned, upon request, will execute and deliver any additional documents
deemed by the Depositary or the Purchaser to be necessary or desirable to
complete the sale, assignment and transfer of Shares tendered hereby (and any
Distributions). In addition, the undersigned shall promptly remit and transfer
to the Depositary for the account of the Purchaser any and all Distributions
issued to the undersigned on or after August 16, 1995 in respect of the Shares
tendered hereby, accompanied by appropriate documentation of transfer, and
pending such remittance and transfer or appropriate assurance thereof, the
Purchaser shall be entitled to all rights and privileges as owner of any such
Distributions and may withhold the entire purchase price or deduct from the
purchase price the amount of value thereof, as determined by the Purchaser in
its sole discretion.
The undersigned understands that the valid tender of Shares pursuant to any
one of the procedures described in section 3 of the Offer to Purchase and in
the instructions to this Letter of Transmittal will constitute a binding
agreement between the undersigned and the Purchaser with respect to such
Shares upon the terms and subject to the conditions of the Offer.
The undersigned recognizes that, under certain circumstances set forth in
the Offer to Purchase, the Purchaser may not be required to accept for payment
any of the Shares tendered hereby or may accept for payment fewer than all of
the Shares tendered hereby.
Unless otherwise indicated in this Letter of Transmittal under "Special
Payment Instructions," please issue the check for the purchase price and/or
return any Certificates evidencing Shares not tendered or not accepted for
payment in the name(s) of the registered holder(s) appearing under
"Description of Shares Tendered." Similarly, unless otherwise indicated under
"Special Delivery Instructions," please mail the check for the purchase price
and/or return any Certificates evidencing Shares not tendered or not accepted
for payment (and accompanying documents, as appropriate) to the address(es) of
the registered holder(s) appearing under "Description of Shares Tendered." In
the event that both the "Special Payment Instructions" and the "Special
Delivery Instructions" are completed, please issue the check for the purchase
price and/or return any such Certificates evidencing Shares not tendered or
not accepted for payment (and accompanying documents, as appropriate) in the
name(s) of, and deliver such check and/or return such Certificates (and
accompanying documents, as appropriate) to the person(s) so indicated. Unless
otherwise indicated in this Letter of Transmittal under "Special Payment
Instructions," in the case of a book-entry delivery of Shares, please credit
the account maintained at the Book-Entry Transfer Facility indicated above
with respect to any Shares not accepted for payment. The undersigned
recognizes that the Purchaser has no obligation pursuant to the "Special
Payment Instructions" to transfer any Shares from the name of the registered
holder if the Purchaser does not accept for payment any of the Shares tendered
hereby.
<PAGE>
SPECIAL PAYMENT INSTRUCTIONS SPECIAL DELIVERY INSTRUCTIONS
(SEE INSTRUCTIONS 1, 5, 6 AND 7) (SEE INSTRUCTIONS 1, 5, 6 AND 7)
To be completed ONLY if Certifi- To be completed ONLY if Certifi-
cates for Shares not tendered or cates for Shares not tendered or
not accepted for payment and/or not accepted for payment and/or
the check for the purchase price the check for the purchase price
of Shares accepted for payment of Shares accepted for payment
are to be issued in the name of are to be sent to someone other
someone other than the under- than the undersigned or to the
signed, or if Shares delivered by undersigned at an address other
book-entry transfer that are not than that shown above.
accepted for payment are to be
returned by credit to an account
maintained at a Book-Entry Trans-
fer Facility, other than to the
account indicated above.
Issue (check appropriate box(es): Mail Check/Certificate(s) to:
[_] Check to: Name: ____________________________
[_] Certificate(s) to: (PLEASE TYPE OR PRINT)
Address: _________________________
Name: ____________________________
(PLEASE TYPE OR PRINT) __________________________________
Address: _________________________ __________________________________
__________________________________ (TAX IDENTIFICATION OR SOCIAL
__________________________________ SECURITY NO.)
(TAX IDENTIFICATION OR SOCIAL
SECURITY NO.)
(SEE SUBSTITUTE FORM W-9)
Credit unpurchased Shares deliv-
ered by book-entry transfer to
the Book-Entry Transfer Facility
account set forth below:
[_] DTC [_] MSTC [_] PDTC
(CHECK ONE)
(DTC/MSTC/PDTC Account Number)
NOTE: SIGNATURE(S) MUST BE PROVIDED BELOW
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY
<PAGE>
IMPORTANT
STOCKHOLDER: SIGN HERE AND COMPLETE SUBSTITUTE FORM W-9 ON REVERSE
-------------------------------------------------------------------------------
(SIGNATURE(S) OF STOCKHOLDER(S))
Dated: _____________, 1995
(Must be signed by the registered holder(s) exactly as name(s) appear(s) on
the Certificate or on a security position listing or by person(s) authorized
to become registered holder(s) by certificates and documents transmitted
herewith. If signature is by trustees, executors, administrators, guardians,
attorneys-in-fact, agents, officers or corporations or others acting in a
fiduciary or representative capacity, please provide the following
information. See Instruction 5.)
Name(s): ______________________________________________________________________
_______________________________________________________________________________
(PLEASE TYPE OR PRINT)
Capacity (Full Title): ________________________________________________________
(SEE INSTRUCTION 5)
Address: ______________________________________________________________________
_______________________________________________________________________________
(INCLUDE A ZIP CODE)
Area Code and Telephone Number: _______________________________________________
(HOME)
_______________________________________________________________________________
(BUSINESS)
Taxpayer Identification or Social Security No.: _______________________________
(COMPLETE SUBSTITUTE FORM W-9 ON REVERSE)
GUARANTEE OF SIGNATURE(S)
(SEE INSTRUCTIONS 1 AND 5)
_______________________________________________________________________________
(AUTHORIZED SIGNATURE(S))
_______________________________________________________________________________
(NAME)
_______________________________________________________________________________
(NAME OF FIRM)
_______________________________________________________________________________
_______________________________________________________________________________
(ADDRESS INCLUDING ZIP CODE)
_______________________________________________________________________________
(AREA CODE AND TELEPHONE NUMBER)
Dated: _____________, 1995
<PAGE>
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE OFFER
1. GUARANTEE OF SIGNATURES. Except as otherwise provided below, signatures
on this Letter of Transmittal must be guaranteed by a member firm of a
registered national securities exchange (registered under Section 6 of the
Securities Exchange Act of 1934 (the "Exchange Act")), by a member firm of the
National Association of Securities Dealers, Inc., by a commercial bank or
trust company having an office or correspondent in the United States or by any
other "Eligible Guarantor Institution" (bank, stockholder, savings and loan
association or credit union with membership approved signature guarantee
medallion program) as defined in Rule 17Ad-15 under the Exchange Act (each of
the foregoing constituting an "Eligible Institution"), unless the Shares
tendered hereby are tendered (i) by the registered holder (which term, for
purposes of this document, shall include any participant in a Book-Entry
Transfer Facility whose name appears on a security position listing as the
owner of Shares) of such Shares who has completed neither the box entitled
"Special Payment Instructions" nor the box entitled "Special Delivery
Instructions" in this Letter of Transmittal or (ii) for the account of an
Eligible Institution. See Instruction 5. If the Certificates are registered in
the name of a person other than the signer of this Letter of Transmittal, or
if payment is to be made or delivered to, or Certificates evidencing
unpurchased Shares are to be issued or returned to, a person other than the
registered owner, then the tendered Certificates must be endorsed or
accompanied by duly executed stock powers, in either case signed exactly as
the name or names of the registered owner or owners appear on the
Certificates, with the signatures on the Certificates or stock powers
guaranteed by an Eligible Institution as provided in this Letter of
Transmittal. See Instruction 5.
2. REQUIREMENTS OF TENDER. This Letter of Transmittal is to be completed by
Stockholders if Certificates evidencing Shares are to be forwarded with this
Letter of Transmittal or if delivery of Shares is to be made pursuant to the
procedures for book-entry transfer set forth in section 3 of the Offer to
Purchase. For a Stockholder to validly tender Shares pursuant to the Offer,
either (a) a properly completed and duly executed Letter of Transmittal (or a
manually signed facsimile), with any required signature guarantees and any
other required documents, must be received by the Depositary at one of its
addresses set forth in this Letter of Transmittal on or prior to the
Expiration Date and either (i) Certificates for tendered Shares must be
received by the Depositary at one of those addresses on or prior to the
Expiration Date or (ii) Shares must be delivered pursuant to the procedures
for book-entry transfer set forth in section 3 of the Offer to Purchase and a
Book-Entry Confirmation must be received by the Depositary on or prior to the
Expiration Date or (b) the tendering Stockholder must comply with the
guaranteed delivery procedures set forth below and in section 3 of the Offer
to Purchase.
Stockholders whose Certificates are not immediately available or who cannot
deliver their Certificates and all other required documents to the Depositary
or complete the procedures for book-entry transfer on or prior to the
Expiration Date may tender their Shares by properly completing and duly
executing a Notice of Guaranteed Delivery pursuant to the guaranteed delivery
procedures set forth in section 3 of the Offer to Purchase. Pursuant to such
procedure: (i) tender must be made by or through an Eligible Institution, (ii)
a properly completed and duly executed Notice of Guaranteed Delivery,
substantially in the form made available by Purchaser, must be received by the
Depositary prior to the Expiration Date, and (iii) Certificates representing
all tendered Shares in proper form for transfer, or a Book-Entry Confirmation
with respect to all the tendered Shares, together with a Letter of Transmittal
(or a manually signed facsimile), properly completed and duly executed, with
any required signature guarantees and any other documents required by this
Letter of Transmittal, must be received by the Depositary within three NASDAQ
National Market trading days after the date of such Notice of Guaranteed
Delivery. If Certificates are forwarded separately to the Depositary, a
properly completed and duly executed Letter of Transmittal (or a manually
signed facsimile) must accompany each delivery.
This method of delivery of Certificates, this Letter of Transmittal and any
other required documents, is at the option and sole risk of the tendering
Stockholder and the delivery will be deemed made only when actually received
by the Depositary. If delivery is by mail, registered mail with return receipt
requested, properly insured, is recommended. In all cases, sufficient time
should be allowed to ensure timely delivery.
No alternative, conditional or contingent tenders will be accepted and no
fractional Shares will be purchased. All tendering Stockholders, by execution
of this Letter of Transmittal (or a facsimile), waive any right to receive any
notice of the acceptance of their Shares for payment.
3. INADEQUATE SPACE. If the space provided in this Letter of Transmittal is
inadequate, the information required under "Description of Shares Tendered"
should be listed on a separate signed schedule attached to this Letter of
Transmittal.
<PAGE>
4. PARTIAL TENDERS. If fewer than all of the Shares represented by any
Certificates delivered to the Depositary with this Letter of Transmittal are
to be tendered, fill in the number of Shares which are to be tendered in the
box entitled "Number of Shares Tendered." In such cases, a new Certificate for
the remainder of the Shares that were evidenced by your old certificate(s)
will be sent, without expense, to the person(s) signing this Letter of
Transmittal, unless otherwise provided in the box entitled "Special Payment
Instructions" or the box entitled "Special Delivery Instructions" on this
Letter of Transmittal, as soon as practicable after the Expiration Date. All
Shares represented by certificate(s) delivered to the Depositary will be
deemed to have been tendered unless otherwise indicated.
5. SIGNATURES ON LETTER OF TRANSMITTAL, INSTRUMENTS OF TRANSFER AND
ENDORSEMENTS. If this Letter of Transmittal is signed by the registered
holder(s) of the Shares tendered hereby, the signature(s) must correspond
exactly with the name(s) as written on the face of the Certificate(s) without
alteration, enlargement or any change whatsoever.
If any of the Shares tendered hereby are owned of record by two or more
joint owners, all the owners must sign this Letter of Transmittal.
If any of the tendered Shares are registered in different names on several
Certificates, it will be necessary to complete, sign and submit as many
separate Letters of Transmittal as there are different registrations of
Certificates.
If this Letter of Transmittal or any Certificates or instruments of transfer
are signed by a trustee, executor, administrator, guardian, attorney-in-fact,
officer of a corporation or other person acting in a fiduciary or
representative capacity, that person should so indicate when signing, and
proper evidence satisfactory to the Purchaser of that person's authority to so
act must be submitted.
If this Letter of Transmittal is signed by the registered holder(s) of the
Shares listed and transmitted hereby, no endorsements of Certificates or
separate instruments of transfer are required unless payment is to be made, or
Certificates not tendered or not purchased are to be issued or returned, to a
person other than the registered holder(s). Signatures on the Certificates or
instruments of transfer must be guaranteed by an Eligible Institution.
If this Letter of Transmittal is signed by a person other than the
registered holder(s) of the Shares evidenced by the Certificate(s) listed and
transmitted hereby, the Certificate(s) must be endorsed or accompanied by
appropriate instruments of transfer, in either case signed exactly as the
name(s) of the registered holder(s) appear on the Certificate(s). Signatures
on the Certificate(s) or instruments of transfer must be guaranteed by an
Eligible Instruction.
6. TRANSFER TAXES. Except as set forth in this Instruction 6, the Purchaser
will pay or cause to be paid any transfer taxes with respect to the transfer
and sale of Shares to it or its order pursuant to the Offer. If, however,
payment of the purchase price is to be made to, or (in the circumstances
permitted hereby) if Certificates for Shares not tendered or not purchased are
to be registered in the name of, any person other than the registered
holder(s), or if tendered Certificates are registered in the name of any
person other than the person(s) signing this Letter of Transmittal, the amount
of any transfer taxes (whether imposed on the registered holder(s) or such
person) payable on account of the transfer to such person will be deducted
from the purchase priced unless satisfactory evidence of the payment of such
taxes or exemption therefrom is submitted.
Except as provided in this Instruction 6, it will not be necessary for
transfer tax stamps to be affixed to the Certificate(s) listed in this Letter
of Transmittal.
7. SPECIAL PAYMENT AND DELIVERY INSTRUCTIONS. If a check and/or Certificates
for unpurchased Shares are to be issued in the name of a person other than the
signer of this Letter of Transmittal or if a check is to be sent and/or
Certificates are to be returned to someone other than the signer of this
Letter of Transmittal or to an address other than that shown above, the
appropriate boxes on this Letter of Transmittal should be completed. If any
tendered Shares are not purchased for any reason and the Shares are delivered
by Book-Entry Transfer Facility, the Shares will be credited to an account
maintained at the appropriate Book-Entry Transfer Facility.
8. REQUESTS FOR ASSISTANCE OR ADDITIONAL COPIES. Questions and requests for
assistance may be directed to the Information Agent at its address or
telephone number set forth below and requests for additional copies of the
Offer to Purchase, this Letter of Transmittal and the Notice of Guaranteed
Delivery may be directed to the Information Agent or brokers, dealers,
commercial banks and trust companies and such materials will be furnished at
Purchaser's expense.
<PAGE>
9. WAIVER OF CONDITIONS. The conditions of the Offer may be waived by the
Purchaser, in whole or in part, at any time or from time to time, in the
Purchaser's sole discretion.
10. BACKUP WITHHOLDING TAX. Each tendering Stockholder is required to
provide the Depositary with a correct Taxpayer Identification Number ("TIN")
on Substitute Form W-9, which is provided under "Important Tax Information"
below and to certify that the Stockholder is not subject to backup
withholding. Failure to provide the information on the Substitute Form W-9 may
subject the tendering Stockholder to 31% federal income tax backup withholding
on the payment of the purchase price for the Shares. The tendering Stockholder
should indicate in the box in Part III of the Substitute Form W-9 if the
tendering Stockholder has not been issued a TIN and has applied for a TIN or
intends to apply for a TIN in the near future. If the Stockholder has
indicated in the box in Part III that a TIN has been applied for and the
Depositary is not provided with a TIN by the time of payment, the Depositary
will withhold 31% of all payments of the purchase price, if any, made
thereafter pursuant to the Offer until a TIN is provided to the Depositary.
11. LOST OR DESTROYED CERTIFICATES. If any Certificate(s) representing
Shares has been lost or destroyed, the holders should promptly notify the
Company's transfer agent, American Stock Transfer Company. The holders will
then be instructed as to the procedure to be followed in order to replace the
Certificate(s). This Letter of Transmittal and related documents cannot be
processed until the procedures for replacing lost or destroyed Certificates
have been followed.
IMPORTANT: THIS LETTER OF TRANSMITTAL OR A MANUALLY SIGNED FACSIMILE
(TOGETHER WITH CERTIFICATES OR A BOOK-ENTRY CONFIRMATION FOR SHARES AND ANY
OTHER REQUIRED DOCUMENTS) MUST BE RECEIVED BY THE DEPOSITARY, OR A NOTICE OF
GUARANTEED DELIVERY MUST BE RECEIVED BY THE DEPOSITARY, ON OR PRIOR TO THE
EXPIRATION DATE.
IMPORTANT TAX INFORMATION
Under federal income tax law, a Stockholder whose tendered Shares are
accepted for payment is required to provide the Depositary (as payor) with
such Stockholder's correct TIN on Substitute Form W-9 below. If such
Stockholder is an individual, the TIN is his social security number. If the
tendering Stockholder has not been issued a TIN and has applied for a TIN or
intends to apply for a TIN in the near future, the Stockholder should so
indicate on the Substitute Form W-9. See Instruction 10. If the Depositary is
not provided with the correct TIN, the Stockholder may be subject to a $50
penalty imposed by the Internal Revenue Service. In addition, payments that
are made to the Stockholder with respect to Shares purchased pursuant to the
Offer may be subject to backup federal income tax withholding.
Certain Stockholders (including, among others, all corporations and certain
foreign individuals) are not subject to these backup withholding and reporting
requirements. In order for a foreign individual to qualify as an exempt
recipient, that Stockholder must submit a statement, signed under penalties of
perjury, attesting to that individual's exempt status. Forms for such
statements can be obtained from the Depositary. See the enclosed Guidelines
for Certificates of Taxpayer Identification Number on Substitute Form W-9 for
additional instructions.
If backup withholding applies, the Depositary is required to withhold 31% of
any payments made to the Stockholder. Backup withholding is not an additional
tax. Rather, the tax liability of persons subject to backup withholding will
be reduced by the amount of tax withheld. If withholding results in an
overpayment of taxes, a refund may be obtained from the Internal Revenue
Service.
PURPOSE OF SUBSTITUTE FORM W-9
To prevent backup federal income tax withholding with respect to payment of
the purchase price for Shares purchased pursuant to the Offer, a Stockholder
must provide the Treasury with his correct TIN by completing the Substitute
Form W-9 below, certifying that the TIN provided on Substitute Form W-9 is
correct (or that the Stockholder is awaiting a TIN) and that (1) the
Stockholder has not been notified by the Internal Revenue Service that he is
subject to backup withholding as a result of failure to report all interest or
dividends or (2) the Internal Revenue Service has notified the Stockholder
that he is no longer subject to backup withholding.
WHAT NUMBER TO GIVE THE DEPOSITARY
The Stockholder is required to give the Depositary the social security
number or employer identification number of the record holder of the Shares
tendered hereby. If the Shares are registered in more than one name or are not
in the name of the actual owner, consult the enclosed Guidelines for
Certification of Taxpayer Identification Number on Substitute Form W-9 for
additional guidance on which number to report.
<PAGE>
<TABLE>
<CAPTION>
PAYER'S NAME: CHEMICAL MELLON SHAREHOLDER SERVICES
-------------------------------------------------------------------------------------------------
<S> <C> <C>
PART I--PLEASE PROVIDE PART III--Social Security Number or
YOUR TIN IN THE BOX AT Employer Identification Number
RIGHT AND CERTIFY BY
SIGNING AND DATING BELOW. -------------------------------------
(If awaiting TIN write "Applied For")
SUBSTITUTE
FORM W-9 -----------------------------------------------------------------------------------------------------
DEPARTMENT OF PART II--For Payees exempt from backup withholding, see the enclosed
THE TREASURY Guidelines for Certification of Taxpayer Identification Number
INTERNAL REVENUE SERVICE on Substitute Form W-9 and complete as instructed therein
Certifications--Under penalties of perjury, I certify that:
PAYER'S REQUEST FOR TAXPAYER (1) The Number shown on this form is my correct Taxpayer Identification (or I am waiting
IDENTIFICATION NUMBER (TIN) for a number to be issued to me); and
(2) I am not subject to backup withholding either because I have not been notified by the
Internal Revenue Service (IRS) that I am subject to backup withholding as a result of a
failure to report all interest or dividends, or the IRS has notified me that I am no longer
subject to backup withholding.
-----------------------------------------------------------------------------------------------------
Certification Instructions--You must cross out item (2) above if you have been notified by
the IRS that you are subject to backup withholding because of underreporting interest or
dividends on your tax return. However, if after being notified by the IRS that you are subject
to backup withholding, you receive another notification from the IRS that you were no longer
subject to backup withholding, do not cross out item (2). (Also see instructions in the enclosed
guidelines).
SIGNATURE _____________________ DATE ______
</TABLE>
------------------------------------------------------------------------------
NOTE: FAILURE TO COMPLETE AND RETURN THIS SUBSTITUTE FORM W-9 MAY RESULT IN
BACKUP WITHHOLDING OF 31% OF ANY PAYMENTS MADE TO YOU PURSUANT TO THE
OFFER TO PURCHASE. PLEASE REVIEW THE ENCLOSED GUIDELINES FOR CERTIFICATION
OF TAXPAYER IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 FOR ADDITIONAL
DETAILS.
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU CHECKED THE BOX IN PART
3 OF THE SUBSTITUTE FORM W-9.
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify under penalty of perjury that a taxpayer identification number has
not been issued to me, and either (1) I have mailed or delivered an
application to receive a taxpayer identification number to the appropriate
Internal Revenue Service Center or Social Security Administration Office or
(2) I intend to mail or deliver an application in the near future. I
understand that if I do not provide a taxpayer identification number by the
time of payment, 31% of all payments of the Offer Price made to me thereafter
will be withheld until I provide a number.
Signature _________________________ Date __________________________________ .
THE INFORMATION AGENT FOR THE OFFER IS:
D.F. KING & CO., INC.
77 WATER STREET
NEW YORK, NEW YORK 10005-4495
CALL TOLL-FREE (800) 829-6551
August 16, 1995
<PAGE>
EXHIBIT (a)(3)
NOTICE OF GUARANTEED DELIVERY
FOR
TENDER OF SHARES OF VOTING AND NONVOTING COMMON STOCK
OF
NU-WEST INDUSTRIES, INC.
-------------------------------------------------------------------------------
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK
CITY TIME, ON THURSDAY, SEPTEMBER 14, 1995, UNLESS EXTENDED.
-------------------------------------------------------------------------------
This Notice of Guaranteed Delivery or one substantially equivalent hereto
must be used to accept the Offer (as defined below) if certificates
representing the voting and nonvoting common stock, $.01 par value (the
"Shares"), of Nu-West Industries, Inc., a Delaware corporation, are not
immediately available or the procedure for book-entry transfer cannot be
completed on a timely basis or time will not permit all required documents to
reach Chemical Mellon Shareholder Services (the "Depositary") prior to the
Expiration Date (as defined in the Offer to Purchase). This Notice of
Guaranteed Delivery may be delivered by hand or transmitted by facsimile
transmission or mail to the Depositary. See Section 3 of the Offer to
Purchase.
The Depositary for the Offer is:
CHEMICAL MELLON SHAREHOLDER SERVICES
By Mail By Facsimile Transmission By Hand
Chemical Mellon (for Eligible Institutions Only): Chemical Mellon
Shareholder Services 201-296-4293 Shareholder Services
Reorganization Reorganization
Department Department
P.O. Box 837 Confirm by Telephone to: 120 Broadway
Midtown Station (201-296-4209) 13th Floor
New York, NY 10018 New York, NY 10271
By Overnight Courier
Chemical Mellon Shareholder Services
Reorganization Department
85 Challenger Road
Ridgefield Park, NJ 07660
DELIVERY OF THIS NOTICE OF GUARANTEED DELIVERY TO AN ADDRESS OTHER THAN AS
SET FORTH ABOVE OR TRANSMISSION OF INSTRUCTIONS VIA A FACSIMILE TRANSMISSION
TO A NUMBER OTHER THAN AS SET FORTH ABOVE WILL NOT CONSTITUTE A VALID
DELIVERY.
This Notice of Guaranteed Delivery is not to be used to guarantee
signatures. If a signature on a Letter of Transmittal is required to be
guaranteed by an "Eligible Institution" under the instructions to the Letter
of Transmittal, such signature guarantee must appear in the applicable space
provided in the signature box on the Letter of Transmittal.
The Eligible Institution that completes this form must communicate the
guarantee to the Depositary and must deliver the Letter of Transmittal and
certificates for Shares to the Depositary within the time period shown in this
Notice of Guaranteed Delivery. Failure to do so could result in a financial
loss to the Eligible Institution.
THE GUARANTEE ON THE REVERSE SIDE MUST BE COMPLETED
<PAGE>
Ladies and Gentlemen:
The undersigned hereby tenders to Agrium Acquisition Corporation, a Delaware
corporation (the "Purchaser"), upon the terms and subject to the conditions
set forth in the Offer to Purchase, dated August 16, 1995 (the "Offer to
Purchase"), and in the related Letter of Transmittal (which together
constitute the "Offer"), receipt of each of which is hereby acknowledged, the
number of Shares indicated below pursuant to the guaranteed delivery
procedures set forth in Section 3 of the Offer to Purchase.
Number of Shares: ___________________ Names of Record Holder(s): __________
Certificate Nos. (if available): ____ _____________________________________
(PLEASE TYPE OR PRINT)
Check ONE box if Shares will be Address(es): ________________________
tendered
by book-entry transfer:
[_] DTC _____________________________________
[_] MSTC
[_] PDTC _____________________________________
(ZIP CODE)
Account Number: _____________________ Area Code and Tel. No.: _____________
Dated: , 1995 Signature(s): _______________________
THE GUARANTEE SET FORTH BELOW MUST BE COMPLETED
GUARANTEE
(NOT TO BE USED FOR SIGNATURE GUARANTEE)
The undersigned, an Eligible Institution (as such term is defined in Section
3 of the Offer to Purchase), hereby guarantees to deliver to the Depositary
the certificates representing the Shares tendered hereby, in proper form for
transfer, or a Book-Entry Confirmation (as defined in Section 3 of the Offer
to Purchase) with respect to such Shares, in either case together with a
properly completed and duly executed Letter of Transmittal (or a manually
signed facsimile), with any required signature guarantees, and any other
documents required by the Letter of Transmittal, all within three Nasdaq
National Market trading days after the date hereof.
Name of Firm: _______________________ _____________________________________
(AUTHORIZED SIGNATURE)
Address: ____________________________ Name: _______________________________
(PLEASE TYPE OR PRINT)
_____________________________________ Title: ______________________________
(ZIP CODE)
Area Code and Tel. No.: _____________ Date: _______________________________
NOTE: DO NOT SEND CERTIFICATES FOR SHARES WITH THIS NOTICE OF GUARANTEED
DELIVERY. CERTIFICATES FOR SHARES SHOULD BE SENT ONLY TOGETHER WITH
YOUR LETTER OF TRANSMITTAL.
<PAGE>
Exhibit (a)(4)
OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING SHARES OF VOTING AND NONVOTING COMMON STOCK
OF
NU-WEST INDUSTRIES, INC.
AT
$10.50 NET PER SHARE
BY
AGRIUM ACQUISITION CORPORATION
A WHOLLY-OWNED SUBSIDIARY OF AGRIUM U.S. INC.,
A WHOLLY-OWNED SUBSIDIARY OF AGRIUM INC.
-------------------------------------------------------------------------------
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY
TIME, ON THURSDAY, SEPTEMBER 14, 1995, UNLESS EXTENDED.
-------------------------------------------------------------------------------
August 16, 1995
To Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees:
We have been appointed by Agrium Acquisition Corporation, a Delaware
corporation (the "Purchaser"), to act as Information Agent in connection with
Purchaser's offer to purchase for cash all of the outstanding shares of voting
and nonvoting common stock, $.01 par value (the "Shares"), of Nu-West
Industries, Inc., a Delaware corporation (the "Company"), for $10.50 per
Share, net to the seller in cash, upon the terms and subject to the conditions
set forth in the Offer to Purchase dated August 16, 1995 (the "Offer to
Purchase"), and in the related Letter of Transmittal (which together with the
Offer to Purchase constitute the "Offer") enclosed.
Please furnish copies of the enclosed materials to those of your clients for
whose accounts you hold Shares in your name or in the name of your nominee.
Enclosed herewith for your information and forwarding to your clients are
copies of the following documents:
1. The Offer to Purchase dated August 16, 1995.
2. The Letter of Transmittal to tender Shares for your use and for the
information of your clients. Facsimile copies of the Letter of Transmittal
may be used to tender Shares.
3. A letter to stockholders of the Company from Craig D. Harlen,
President and Chief Executive Officer, together with a
Solicitation/Recommendation Statement on Schedule 14D-9 filed with the
Securities and Exchange Commission by the Company and mailed to
stockholders of the Company.
4. The Notice of Guaranteed Delivery for Shares to be used to accept the
Offer if neither of the two procedures for tendering Shares set forth in
the Offer to Purchase can be completed on a timely basis.
5. A printed form of letter which may be sent to your clients for whose
accounts you hold Shares registered in your name or in the name of your
nominee, with space provided for obtaining such clients' instructions with
regard to the Offer.
<PAGE>
6. Guidelines of the Internal Revenue Service for Certification of
Taxpayer Identification Number on Substitute Form W-9.
7. A return envelope addressed to Chemical Mellon Shareholder Services,
the Depositary.
YOUR PROMPT ACTION IS REQUESTED. WE URGE YOU TO CONTACT YOUR CLIENTS AS
PROMPTLY AS POSSIBLE. PLEASE NOTE THAT THE OFFER AND WITHDRAWAL RIGHTS EXPIRE
AT 12:00 MIDNIGHT, NEW YORK CITY TIME, ON THURSDAY, SEPTEMBER 14, 1995, UNLESS
THE OFFER IS EXTENDED.
Please note the following:
1. The tender price is $10.50 per Share, net to the seller in cash.
2. The Offer is subject to there being validly tendered and not properly
withdrawn prior to the expiration of the Offer 60% of the Shares on a
fully-diluted basis and certain other conditions. See the Introduction and
Sections 1 and 14 of the Offer to Purchase.
3. The Offer is being made for all of the outstanding Shares.
4. Tendering stockholders will not be obligated to pay brokerage fees or
commissions or, except as otherwise provided in Instruction 6 of the Letter
of Transmittal, transfer taxes on the purchase of Shares by the Purchaser
pursuant to the Offer. However, federal income tax backup withholding at a
rate of 31% may be required, unless an exemption is provided or unless the
required tax identification information is provided. See Instruction 10 of
the Letter of Transmittal.
5. The Offer and withdrawal rights will expire at 12:00 midnight, New
York City time, on Thursday, September 14, 1995, unless the Offer is
extended.
6. The board of directors of the Company has unanimously determined that
each of the Offer and the Merger (as defined in the Offer to Purchase) is
fair to, and in the best interests of, the stockholders of the Company, has
approved the Merger Agreement (as defined in the Offer to Purchase) and the
transactions contemplated by the Merger Agreement, including the Offer and
the Merger, and recommends that all holders of the Shares accept the Offer
and tender all their Shares pursuant to the Offer.
7. Notwithstanding any other provision of the Offer, payment for Shares
accepted for payment pursuant to the Offer will in all cases be made only
after timely receipt by the Depositary of (a) Certificates pursuant to the
procedures set forth in Section 3 of the Offer to Purchase, or a timely
Book-Entry Confirmation (as defined in the Offer to Purchase) with respect
to such Shares, (b) the Letter of Transmittal (or a manually signed
facsimile), properly completed and duly executed, with any required
signature guarantees, and (c) any other documents required by the Letter of
Transmittal. Accordingly, payment may not be made to all tendering
stockholders at the same time depending upon when Certificates are actually
received by the Depositary.
In order to take advantage of the Offer, (i) a duly executed and properly
completed Letter of Transmittal (or a manually signed facsimile) and any
required signature guarantees or other required documents should be sent to
the Depositary and (ii) Certificates representing the tendered Shares or a
timely Book-Entry Confirmation (as defined in the Offer to Purchase) should be
delivered to the Depositary in accordance with the instructions set forth in
the Letter of Transmittal and the Offer to Purchase.
If holders of Shares wish to tender, but it is impracticable for them to
forward their Certificates or other required documents or complete the
procedures for book-entry transfer prior to the Expiration Date, a tender may
be effected by following the guaranteed delivery procedures specified in
Section 3 of the Offer to Purchase.
The Purchaser will not pay any fees or commissions to any broker, dealer or
other person for soliciting tenders of Shares pursuant to the Offer (other
than the Depositary and the Information Agent as described in the Offer to
Purchase). The Purchaser will, however, upon request, reimburse you for
customary mailing and handling expenses incurred by you in forwarding any of
the enclosed materials to your clients. The Purchaser
2
<PAGE>
will pay or cause to be paid any transfer taxes payable on the transfer of
Shares to it, except as otherwise provided in Instruction 6 of the Letter of
Transmittal.
Any inquiries you may have with respect to the Offer should be addressed to
D.F. King & Co., Inc., the Information Agent for the Offer, at 77 Water
Street, New York, New York 10005-4495, (212) 269-5550 (collect) or (800) 829-
6551 (toll-free).
Requests for copies of the enclosed materials may also be directed to the
Information Agent at the above address and telephone number.
Very truly yours,
D.F. KING & CO., INC.
NOTHING CONTAINED HEREIN OR IN THE ENCLOSED DOCUMENTS SHALL CONSTITUTE YOU
OR ANY OTHER PERSON THE AGENT OF THE PURCHASER, THE COMPANY, THE DEPOSITARY,
THE INFORMATION AGENT OR ANY AFFILIATE OF ANY OF THEM, OR AUTHORIZE YOU OR ANY
OTHER PERSON TO MAKE ANY STATEMENT OR USE ANY DOCUMENT ON BEHALF OF ANY OF
THEM IN CONNECTION WITH THE OFFER OTHER THAN THE ENCLOSED DOCUMENTS AND THE
STATEMENTS CONTAINED THEREIN.
3
<PAGE>
Exhibit (a)(5)
OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING SHARES OF VOTING AND NONVOTING COMMON STOCK
OF
NU-WEST INDUSTRIES, INC.
AT
$10.50 NET PER SHARE
BY
AGRIUM ACQUISITION CORPORATION
A WHOLLY-OWNED SUBSIDIARY OF AGRIUM U.S. INC.,
A WHOLLY-OWNED SUBSIDIARY OF AGRIUM INC.
-------------------------------------------------------------------------------
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY
TIME, ON THURSDAY, SEPTEMBER 14, 1995, UNLESS EXTENDED.
-------------------------------------------------------------------------------
August 16, 1995
To Our Clients:
Enclosed for your consideration are the Offer to Purchase, dated August 16,
1995 (the "Offer to Purchase"), and the related Letter of Transmittal (which
together constitute the "Offer") relating to the offer by Agrium Acquisition
Corporation (the "Purchaser"), a Delaware corporation and a wholly-owned
subsidiary of Agrium U.S. Inc., a Colorado corporation and a wholly-owned
subsidiary of Agrium Inc., a Canadian corporation, to purchase all the
outstanding shares of voting and nonvoting common stock, $.01 per value (the
"Shares"), of Nu-West Industries, Inc., a Delaware corporation (the
"Company"), at a purchase price of $10.50 per Share, net to the seller in
cash, upon the terms and subject to the conditions set forth in the Offer.
Holders of Shares whose certificates for such Shares (the "Certificates") are
not immediately available or who cannot deliver their Certificates and all
other required documents to the depositary (the "Depositary") or complete the
procedures for book-entry transfer prior to the Expiration Date (as defined in
the Offer to Purchase) must tender their Shares according to the guaranteed
delivery procedures set forth in Section 3 of the Offer to Purchase.
WE ARE (OR OUR NOMINEE IS) THE HOLDER OF RECORD OF SHARES HELD BY US FOR
YOUR ACCOUNT. A TENDER OF SUCH SHARES CAN BE MADE ONLY BY US AS THE HOLDER OF
RECORD AND PURSUANT TO YOUR INSTRUCTIONS. THE LETTER OF TRANSMITTAL IS
FURNISHED TO YOU FOR YOUR INFORMATION ONLY AND CANNOT BE USED BY YOU TO TENDER
SHARES HELD BY US FOR YOUR ACCOUNT.
Accordingly, we request instruction as to whether you wish to have us tender
on your behalf any or all Shares held by us for your account pursuant to the
terms and conditions set forth in the Offer.
Please note the following:
1. The tender price is $10.50 per Share, net to the seller in cash.
2. The Offer is subject to there being validly tendered and not properly
withdrawn prior to the expiration of the Offer 60% of the Shares on a
fully-diluted basis and certain other conditions. See the Introduction and
Sections 1 and 14 of the Offer to Purchase.
<PAGE>
3. The Offer is being made for all of the outstanding Shares.
4. Tendering stockholders will not be obliged to pay brokerage fees or
commissions or, except as otherwise provided in Instruction 6 of the Letter
of Transmittal, transfer taxes on the purchase of Shares by Purchaser
pursuant to the Offer. However, federal income tax backup withholding at a
rate of 31% may be required, unless an exemption is provided or unless the
required taxpayer identification information is provided. See Instruction
10 of the Letter of Transmittal.
5. The Offer and withdrawal rights will expire at 12:00 midnight, New
York City time, on Thursday, September 14, 1995, unless the Offer is
extended.
6. The board of directors of the Company has unanimously determined that
each of the Offer and the Merger (as defined in the Offer to Purchase) is
fair to, and in the best interest of, the stockholders of the Company, has
approved the Merger Agreement (as defined in the Offer to Purchase) and the
transactions contemplated thereby, including the Offer and the Merger, and
recommends that all holders of the Shares accept the Offer and tender all
of their Shares pursuant to the Offer.
7. Notwithstanding any other provision of the Offer, payment for Shares
accepted for payment pursuant to the Offer will in all cases be made only
after timely receipt by the Depositary of (a) Certificates pursuant to the
procedures set forth in Section 3 of the Offer to Purchase, or a timely
Book-Entry Confirmation (as defined in the Offer to Purchase) with respect
to such Shares, (b) the Letter of Transmittal (or a manually signed
facsimile), properly completed and duly executed, with any required
signature guarantees, and (c) any other documents required by the Letter of
Transmittal. Accordingly, payment may not be made to all tendering
stockholders at the same time depending upon when Certificates are actually
received by the Depositary.
If you wish to have us tender any or all of the Shares held by us for your
account, please so instruct us by completing, executing, detaching and
returning to us the instruction form set forth below. If you authorize the
tender of your Shares, all such Shares will be tendered unless otherwise
specified below. An envelope to return your instructions to us is enclosed.
Your instructions should be forwarded to us in ample time to permit us to
submit a tender on your behalf prior to the expiration of the Offer.
The Offer is not being made to (nor will tenders be accepted from or on
behalf of) holders of Shares residing in any jurisdiction in which the making
of the Offer or the acceptance thereof would not be in compliance with the
securities, blue sky or other laws of such jurisdiction. However, the
Purchaser may, in its discretion, take such action as it may deem necessary to
make the Offer in any jurisdiction and extend the Offer to holders of Shares
in such jurisdiction.
In any jurisdiction where the securities, blue sky or other laws require the
Offer to be made by a licensed broker or dealer, the Offer will be deemed to
be made on behalf of the Purchaser by one or more registered brokers or
dealers that are licensed under the laws of such jurisdiction.
2
<PAGE>
INSTRUCTIONS WITH RESPECT TO THE
OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING SHARES OF
VOTING AND NONVOTING COMMON STOCK
OF
NU-WEST INDUSTRIES, INC.
The undersigned acknowledge(s) receipt of your letter and the enclosed Offer
to Purchase dated August 16, 1995 and the related Letter of Transmittal in
connection with the offer by Agrium Acquisition Corporation (the "Purchaser"),
a Delaware corporation and a wholly-owned subsidiary of Agrium U.S. Inc., a
Colorado corporation and a wholly-owned subsidiary of Agrium Inc., a Canadian
corporation, to purchase all outstanding shares of voting and nonvoting common
stock, par value $.01 per share ("Shares"), of Nu-West Industries, Inc., a
Delaware corporation.
This will instruct you to tender to the Purchaser the number of Shares
indicated below (or if no number is indicated below, all Shares) which are
held by you for the account of the undersigned, upon the terms and subject to
the conditions set forth in the Offer.
Number of Shares to be Tendered*: _____________________________________________
Date: _________________________________________________________________________
SIGN HERE
Signature(s): _________________________________________________________________
(Print Name(s)): ______________________________________________________________
(Print Address(es)): __________________________________________________________
(Area Code and Telephone Number(s)): __________________________________________
(Taxpayer Identification or Social Security Number(s)): _______________________
*Unless otherwise indicated, it will be assumed that all Shares held by us for
your account are to be tendered.
3
<PAGE>
Exhibit (a)(6)
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9
Guidelines for Determining the Proper Identification Number to Give the
Payor--Social Security numbers have nine digits separated by two hyphens:
i.e., 000-00-0000. Employer identification numbers have nine digits separated
by one hyphen: i.e., 00-0000000. The table below will help determine the
number to give the payor.
-----------------------------------------------------------------------------
GIVE THE
FOR THIS TYPE OF ACCOUNT: SOCIAL SECURITY
NUMBER OF--
-----------------------------------------------------------------------------
1. Individual The individual
2. Two or more individuals The actual owner of the account or,
(joint account) if combined funds, the first
individual on the account/1/
3. Custodian account of a minor The minor/2/
(Uniform Gift to Minors Act)
4. a. The usual revocable savings The grantor-trustee/1/
trust (grantor is also trustee)
b. So-called trust account that The actual owner/1/
is not a legal or valid trust
under State law
5. Sole proprietorship The owner/3/
6. Sole proprietorship The owner/3/
-----------------------------------------------------------------------------
GIVE THE EMPLOYER
FOR THIS TYPE OF ACCOUNT: IDENTIFICATION
NUMBER OF--
-----------------------------------------------------------------------------
7. A valid trust, estate or The legal entity/4/
pension trust
8. Corporate The corporation
9. Association, club, religious, The organization
charitable, educational or
other tax-exempt
organization
10. Partnership The partnership
11. A broker or registered The broker or nominee
nominee
12. Account with the The public entity of Agriculture in
Department the name of a public entity (such
as a state or local government, school
district, or prison) that receives
agricultural program payments
--------------------------------------------------------------------------------
/1/ List first and circle the name of the person whose number you furnish.
/2/ Circle the minor's name and furnish the minor's social security number.
/3/ Show your individual name. You may also enter your business name. You may
use your SSN or EIN.
/4/ List first and circle the name of the valid trust, estate or pension trust.
(Do not furnish the identifying number of the personal representative or
trustee unless the legal entity itself is not designated in the account
title.)
NOTE: If no name is circled when there is more than one name, the number will
be considered to be that of the first name listed.
<PAGE>
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER (TIN) ON SUBSTITUTE FORM W-9
(SECTION REFERENCES ARE TO THE INTERNAL REVENUE CODE)
PAGE 2
NAME
If you are an individual, you must generally provide the name shown on your
social security card. However, if you have changed your last name, for in-
stance, due to marriage, without informing the Social Security Administration
of the name change, please enter your first name, the last name shown on your
social security card, and your new last name.
OBTAINING A NUMBER
If you don't have a taxpayer identification number ("TIN"), apply for one im-
mediately. To apply, obtain Form SS-5, Application for a Social Security Card,
from your local office of the Social Security Administration, or Form SS-4,
Application for Employer Identification Number, from your local Internal Reve-
nue Service (the "IRS") office.
PAYEES AND PAYMENTS EXEMPT FROM BACKUP WITHHOLDING
The following is a list of payees exempt from backup withholding and for which
no information reporting is required. For interest and dividends, all listed
payees are exempt except item (9). For broker transactions, payees listed in
(1) through (13) and a person registered under the Investment Advisers Act of
1940 who regularly acts as a broker are exempt. Payments subject to reporting
under sections 6041 and 6041A are generally exempt from backup withholding
only if made to payees described in items (1) through (7), except that a cor-
poration that provides medical and health care services or bills and collects
payments for such services is not exempt from backup withholding or informa-
tion reporting.
(1) A corporation.
(2) An organization exempt from tax under section 501(a), or an individual
retirement plan ("IRA"), or a custodial account under section 403(b)(7).
(3) The United States or any of its agencies or instrumentalities.
(4) A state, the District of Columbia, a possession of the United States, or
any of their political subdivisions or instrumentalities.
(5) A foreign government or any of its political subdivisions, agencies or
instrumentalities.
(6) An international organization or any of its agencies or instrumentali-
ties.
(7) A foreign central bank of issue.
(8) A dealer in securities or commodities required to register in the U.S.
or a possession of the U.S.
(9) A futures commission merchant registered with the Commodity Futures
Trading Commission.
(10) A real estate investment trust.
(11) An entity registered at all times during the tax year under the Invest-
ment Company Act of 1940.
(12) A common trust fund operated by a bank under section 584(a).
(13) A financial institution.
(14) A middleman known in the investment community as a nominee or listed in
the most recent publication of the American Society of Corporate Secre-
taries, Inc., Nominee List.
(15) A trust exempt from tax under section 664 or described in section 4947.
Payments of dividends generally not subject to backup withholding include the
following:
. Payments to nonresident aliens subject to withholding under section 1441.
. Payments to partnerships not engaged in a trade or business in the U.S.
and that have at least one nonresident partner.
. Payments made by certain foreign organizations.
Payments of interest generally not subject to backup withholding include the
following:
. Payments of interest on obligations issued by individuals.
NOTE: YOU MAY BE SUBJECT TO BACKUP WITHHOLDING IF THIS INTEREST IS $600 OR
MORE AND IS PAID IN THE COURSE OF THE PAYOR'S TRADE OR BUSINESS AND YOU
HAVE NOT PROVIDED YOUR CORRECT TIN TO THE PAYOR.
. Payments of tax-exempt interest (including exempt-interest dividends under
section 852).
. Payments described in section 6049(b)(5) to nonresident aliens.
. Payments on tax-free covenant bonds under section 1451.
. Payments made by certain foreign organizations.
. Mortgage interest paid by you.
Payments that are not subject to information reporting are also not subject to
backup withholding. For details, see sections 6041, 6041A(a), 6042, 6044,
6045, 6049, 6050A, and 6050N, and the regulations under those sections.
PRIVACY ACT NOTICE.--Section 6109 requires you to furnish your correct TIN to
persons who must file information returns with the IRS to report interest,
dividends, and certain other income paid to you, mortgage interest you paid,
the acquisition or abandonment of secured property, or contributions you made
to an IRA. The IRS uses the numbers for identification purposes and to help
verify the accuracy of your tax return. You must provide your TIN whether or
not you are qualified to file a tax return. Payors must generally withhold 31%
of taxable interest, dividend, and certain other payments to a payee who does
not furnish a TIN to a payor. Certain penalties may also apply.
PENALTIES
(1) FAILURE TO FURNISH TIN.--If you fail to furnish your correct TIN to a re-
quester (the person asking you to furnish your TIN), you are subject to a pen-
alty of $50 for each such failure unless your failure is due to reasonable
cause and not to willful neglect.
(2) CIVIL PENALTY FOR FALSE INFORMATION WITH RESPECT TO WITHHOLDING.--If you
make a false statement with no reasonable basis that results in no backup
withholding, you are subject to a $500 penalty.
(3) CRIMINAL PENALTY FOR FALSIFYING INFORMATION.--Willfully falsifying certi-
fications or affirmations may subject you to criminal penalties including
fines and/or imprisonment.
FOR ADDITIONAL INFORMATION CONTACT YOUR TAX CONSULTANT OR THE IRS
<PAGE>
EXHIBIT (A)(7)
AUGUST 10, 1995
AGRIUM / NU-WEST
NEWS
FOR IMMEDIATE RELEASE
JOINT PRESS RELEASE--
AUGUST 10, 1995
AGRIUM INC. AND NU-WEST INDUSTRIES INC. ANNOUNCE AGREEMENT TO MERGE
Calgary, Alberta and Englewood, Colorado--Agrium Inc.
(TSE:AGU/NASDAQ/NM:AGMIF) and Nu-West Industries, Inc. (NASDAQ/NM:FERT)
announced today that they have entered into a definitive merger agreement
which provides for the acquisition of Nu-West by Agrium. Agrium will pay
US$10.50 in cash for each share of Nu-West common stock.
The announcement was made jointly by John Van Brunt, President and C.E.O. of
Agrium and Craig Harlen, President and C.E.O. of Nu-West.
Agrium will make a cash tender offer for all of the common shares of Nu-West.
The tender offer will be conditional upon the tender of at least 60% of the
approximately 9.4 million common shares on a fully diluted basis and upon the
expiration of the waiting period under the Hart-Scott-Rodino Anti-Trust
Improvements Act. Agrium expects to take up and pay for the common shares
under the offer by mid-September. The merger agreement provides that any
untendered shares will be converted into the right to receive US$10.50 per
share in cash as soon as practical after the completion of the tender.
The Board of Directors of Nu-West has unanimously approved the merger
agreement and the transaction. Paine Webber Incorporated has acted as
financial advisor to Nu-West and has rendered a fairness opinion in connection
with the transaction. The Board of Directors of Agrium has also unanimously
approved the merger agreement and the transaction.
Agrium also announced that Nu-West shareholders owning approximately 4.6
million common shares have agreed to tender into the offer.
<PAGE>
Mr. Van Brunt, commenting on the prospective merger, said "This merger creates
a strong strategic business combination for the production and sale of the
three primary plant nutrients; phosphate, nitrogen and potash. In addition,
Nu-West's products are sold into Agrium's primary western United States and
Canadian wholesale markets and strengthens the phosphate supply position to
our large U.S. retail subsidiaries and our Elephant Brand dealer network in
Canada."
Mr. Harlen stated, "This transaction is the next logical step in securing a
positive future for Nu-West and its various constituents. Over the last few
years we have established ourselves as a significant phosphate producer and
now seek to expand our horizons through a strategic relationship that will
strengthen and enhance our marketing and production. This merger will better
position both companies for the global marketplace that is upon us."
Agrium, based in Calgary, Alberta, is one of North America's largest
integrated and diversified fertilizer companies.
Nu-West is engaged in the manufacture and sale of phosphate fertilizer
products.
AGRIUM CONTACTS: NU-WEST CONTACTS:
---------------- -----------------
LARRY THIESSEN MARK SANDERS
Phone (403) 258-4615 Phone (208) 547-4381
DICK NICHOLS STEVEN W. GAMPP
Phone (403) 258-5746 Phone (303) 721-1396
<PAGE>
EXHIBIT (C)(1)
AGREEMENT AND PLAN OF MERGER
DATED AS OF AUGUST 9, 1995
BY AND AMONG
AGRIUM INC.,
AGRIUM ACQUISITION CORPORATION
AND NU-WEST INDUSTRIES, INC.
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<C> <S> <C>
ARTICLE I THE TENDER OFFER................................................ 1
Section 1.1 The Tender Offer........................................ 1
Section 1.2 Action by the Company................................... 2
Section 1.3 Continuing Directors.................................... 2
ARTICLE II THE MERGER..................................................... 2
Section 2.1 The Merger.............................................. 2
Section 2.2 Consummation of the Merger.............................. 2
ARTICLE III CERTIFICATE OF INCORPORATION AND BY-LAWS OF THE SURVIVING
CORPORATION.................................................... 3
Section 3.1 Certificate of Incorporation............................ 3
Section 3.2 By-Laws................................................. 3
Section 3.3 Officers and Board of Directors......................... 3
ARTICLE IV CONVERSION OF SHARES........................................... 3
Section 4.1 Conversion of Shares.................................... 3
Section 4.2 Payment for Shares...................................... 3
Section 4.3 Shares of Dissenting Stockholders....................... 4
Section 4.4 Closing of the Company's Transfer Books................. 4
Section 4.5 Status of Share Certificates............................ 4
ARTICLE V REPRESENTATIONS AND WARRANTIES OF PURCHASER AND ACQUISITION..... 4
Section 5.1 Organization............................................ 4
Section 5.2 Authority Relative to this Agreement.................... 4
Section 5.3 No Conflicts; Required Filings and Consents............. 4
Section 5.4 Information............................................. 5
Section 5.5 Litigation.............................................. 6
Section 5.6 Financing............................................... 6
Section 5.7 Ownership of Capital Stock.............................. 6
ARTICLE VI REPRESENTATIONS AND WARRANTIES OF THE COMPANY.................. 6
Section 6.1 Organization and Qualification; Subsidiaries............ 6
Section 6.2 Charter and By-Laws..................................... 6
Section 6.3 Capitalization.......................................... 7
Section 6.4 Authority............................................... 8
Section 6.5 No Conflict; Required Filings and Consents.............. 8
Section 6.6 Permits; Compliance..................................... 8
Section 6.7 Reports; Financial Statements........................... 9
Section 6.8 Absence of Certain Changes or Events.................... 9
Section 6.9 Absence of Litigation................................... 10
Section 6.10 Employee Plans; Labor Matters........................... 10
Section 6.11 Taxes................................................... 12
Section 6.12 Environmental Matters................................... 12
Section 6.13 Delaware Law............................................ 13
Section 6.14 Inventory; Accounts Receivable.......................... 13
Section 6.15 Insurance............................................... 14
</TABLE>
i
<PAGE>
<TABLE>
<CAPTION>
PAGE
----
<C> <S> <C>
Section 6.16 Properties............................................. 14
Section 6.17 Certain Contracts and Restrictions..................... 14
Section 6.18 Information Supplied................................... 14
Section 6.19 Opinion of Financial Advisor........................... 14
Section 6.20 Futures Trading and Fixed Price Exposure............... 14
Section 6.21 Intellectual Property.................................. 14
Section 6.22 Contributions, Etc..................................... 15
Section 6.23 Easements.............................................. 15
Section 6.24 Information............................................ 15
ARTICLE VII COVENANTS.................................................... 15
Section 7.1 Conduct of Business by the Company Pending the Merger.. 15
Section 7.2 Stockholders' Meeting and Proxy Statement.............. 17
Section 7.3 Certain Filings and Consents........................... 17
Section 7.4 Access................................................. 17
Section 7.5 Expenses............................................... 18
Section 7.6 Employee Stock Options; Warrant........................ 18
Section 7.7 Indemnification and Insurance.......................... 18
Section 7.8 Employee Benefits...................................... 19
Section 7.9 Maintenance of Financing............................... 19
Section 7.10 Resignation of Directors............................... 19
Section 7.11 Board of Directors..................................... 19
ARTICLE VIII CONDITIONS.................................................. 19
Section 8.1 Conditions to Each Party's Obligation to Effect the
Merger................................................. 19
Section 8.2 Conditions to Obligations of Purchaser and Acquisition
to Effect the Merger................................... 20
Section 8.3 Conditions to Obligation of the Company to Effect the
Merger................................................. 20
ARTICLE IX TERMINATION, AMENDMENT AND WAIVER............................. 21
Section 9.1 Termination............................................ 21
Section 9.2 Break-Up Fee; Effect of Termination.................... 21
Section 9.3 Amendment.............................................. 21
Section 9.4 Waiver................................................. 22
ARTICLE X GENERAL PROVISIONS............................................. 22
Section 10.1 Notice of Breach....................................... 22
Section 10.2 Cooperation............................................ 22
Section 10.3 Non-Survival of Representations and Warranties......... 22
Section 10.4 Brokers................................................ 22
Section 10.5 Entire Agreement....................................... 22
Section 10.6 Applicable Law......................................... 22
Section 10.7 Interpretation; Headings............................... 22
Section 10.8 Assignment............................................. 22
Section 10.9 Separability........................................... 23
Section 10.10 Publicity.............................................. 23
Section 10.11 Notices................................................ 23
Section 10.12 Counterparts........................................... 23
Section 10.13 No Third Party Beneficiaries........................... 23
Section 10.14 Schedules.............................................. 24
</TABLE>
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AGREEMENT AND PLAN OF MERGER
Agreement and Plan of Merger dated as of August 9, 1995 (this "Agreement")
by and among Agrium Inc., a Canadian corporation ("Purchaser"), Agrium
Acquisition Corporation, a Delaware corporation and wholly-owned subsidiary of
Purchaser ("Acquisition"), and Nu-West Industries, Inc., a Delaware
corporation (the "Company"). (Acquisition and the Company are hereinafter
collectively referred to as the "Constituent Corporations.")
Whereas, Purchaser and the Boards of Directors of the Constituent
Corporations (a) desire to enter into this Agreement and (b) have approved the
merger of Acquisition with and into the Company (the "Merger"), all upon the
terms and subject to the conditions set forth herein.
Now, Therefore, the parties hereto agree as follows:
ARTICLE I
Tender Offer
Section 1.1 The Tender Offer.
(a) As long as none of the events set forth in Exhibit A hereto shall have
occurred or be existing, Acquisition shall, and Purchaser shall cause
Acquisition to, commence as promptly as practicable, but in no event later
than five business days after the date hereof, a tender offer (as amended or
extended from time to time, the "Tender Offer") subject to the conditions set
forth in Exhibit A hereto, for all outstanding shares of Voting Common Stock,
par value $.01, and Nonvoting Common Stock, par value $.01 (collectively, the
"Shares") of the Company, which Tender Offer is conditioned upon a sufficient
number of Shares being properly tendered and not withdrawn, which, when added
together with any Shares owned by Purchaser and any of its subsidiaries or
which Purchaser and Acquisition have the right to acquire, will equal at least
60% of the Shares on a fully diluted basis. The per Share price to be paid in
the Tender Offer, which shall be paid net to the sellers in cash, shall be
$10.50. Purchaser agrees, subject to the terms and conditions of the Tender
Offer, to pay for all Shares tendered that it is obligated to purchase as soon
as legally permissible.
(b) Without the prior written consent of the Company, Acquisition shall not
decrease the Merger Price (as defined in Section 4.1), decrease the number of
Shares being sought in the Tender Offer, change the form of consideration
payable in the Tender Offer, add additional conditions to the Tender Offer or
make any other material change in the terms or conditions to the Tender Offer.
(c) On the date the Tender Offer is commenced, Purchaser and Acquisition
shall file with the Securities and Exchange Commission (the "SEC") a tender
offer statement on Schedule 14D-1 (together with all amendments and
supplements thereto, the "Schedule 14D-1") with respect to the Tender Offer.
The Schedule 14D-1 shall contain (included as an exhibit) or shall incorporate
by reference the Offer to Purchase (or portions thereof) and forms of the
related Letter of Transmittal and summary advertisement and shall comply as to
form in all material respects with the requirements of the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), and the rules and regulations
promulgated thereunder (the "Rules and Regulations"). If at any time prior to
the expiration or termination of the Tender Offer any event occurs which is
required by the Act and the Rules and Regulations to be described in an
amendment to the Schedule 14D-1 or any supplement thereto, Purchaser and
Acquisition will file and disseminate, as required, an amendment or supplement
which complies in all material respects with the Act and the Rules and
Regulations. The Company and its counsel shall be given an opportunity to
review the Schedule 14D-1 and any amendment or supplement thereto prior to its
being filed with the SEC. Purchaser and Acquisition agree to provide the
Company and its counsel with any written comments (and to inform the Company
and its counsel of the tenor of any oral comments) Purchaser and Acquisition
or their counsel may receive from the SEC with respect to the Offer Documents
(as defined in Section 5.4) is made promptly after the receipt of such
comments.
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Section 1.2 Action by the Company. The Company hereby represents that the
Board of Directors of the Company, in connection with its approval of this
Agreement, by resolution has (a) approved the Tender Offer and the Merger and
(b) resolved to recommend acceptance of the Tender Offer and approval and
adoption of the Merger and this Agreement by the holders of the Shares if such
approval and adoption is required by the General Corporation Law of the State
of Delaware (the "GCL"). On the date the Schedule 14D-1 is filed with the SEC,
the Company shall file with the SEC a Solicitation/Recommendation Statement on
Schedule 14D-9 (together with all amendments and supplements thereto, the
"Schedule 14D-9") and shall mail the Schedule 14D-9 to the stockholders of the
Company. The Schedule 14D-9 shall comply as to form in all material respects
with the requirements of the Act and the Rules and Regulations. Purchaser,
Acquisition and their counsel shall be given the opportunity to review the
Schedule 14D-9 and any amendment or supplement thereto prior to its filing
with the SEC. The Company agrees to provide Purchaser and Acquisition and
their counsel with any written comments (and to inform them of the tenor of
any oral comments) that the Company or its counsel receive from the SEC with
respect to the Schedule 14D-9 promptly after the receipt of such comments. If
at any time prior to the expiration or termination of the Tender Offer any
event occurs which is required by applicable law to be described in an
amendment to the Schedule 14D-9 or any supplement thereto, the Company will
file and disseminate, as required, an amendment or supplement which complies
in all material respects with the Act, the Rules and Regulations and any other
applicable laws. In connection with the Tender Offer, the Company will or will
cause its transfer agent to furnish Purchaser with a list of stockholders and
mailing labels containing the names and addresses of all record holders of the
Shares held in stock depositories, each as of a recent date. The Company shall
furnish Purchaser with any additional information, including an updated list
of stockholders, mailing labels and lists of security positions, and any
assistance as Purchaser may reasonably request in communicating the Tender
Offer to the record and beneficial holders of the Shares.
Section 1.3 Continuing Directors. After the time that Acquisition's
designees constitute at least a majority of the Board of Directors of the
Company and until the Effective Date (as defined in Section 2.2), any
amendment or termination of this Agreement, extension for the performance or
waiver of the obligations or other acts of Purchaser or Acquisition (except
pursuant to this Agreement) or waiver of the Company's rights hereunder, which
amendment, termination, extension or waiver would adversely affect the
stockholders, optionholders or employees of the Company, shall also require
the approval of a majority (or such higher percentage as is required under the
By-laws of the Company) of the then serving directors, if any, who are
directors as of the date hereof (the "Continuing Directors"). If the number of
Continuing Directors prior to the Effective Date is reduced below two for any
reason, the remaining Continuing Directors or Continuing Director shall be
entitled to designate persons to fill such vacancies who shall be deemed
Continuing Directors for all purposes of this Agreement.
ARTICLE II
The Merger
Section 2.1 The Merger. Upon the terms and subject to the conditions hereof,
on the Effective Date, Acquisition shall be merged with and into the Company,
which shall be the surviving corporation (the Company in such capacity being
hereinafter sometimes called the "Surviving Corporation"). From and after the
Effective Date, the status, rights and liabilities of, and the effect of the
Merger on, each of the Constituent Corporations in the Merger and the
Surviving Corporation shall be as provided in Section 259 of the GCL. At any
time, and from time to time after the Effective Date, the last acting officers
of Acquisition, or the corresponding officers of the Surviving Corporation,
may, in the name of Acquisition, execute and deliver all such proper deeds,
assignments, and other instruments and take or cause to be taken all such
further or other action as the Surviving Corporation may deem necessary or
desirable in order to vest, perfect or confirm in the Surviving Corporation
title to and possession of all of the Company's property, rights, privileges,
powers, franchises, immunities and interests and otherwise to carry out the
purposes of this Agreement and the Merger.
Section 2.2 Consummation of the Merger. As soon as practicable (but in any
event within five business days) after the receipt of any required approval of
the Company's stockholders and Board of Directors (or, if
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such approval is not required, all other corporate action required as a
precondition to effect the Merger), and subject to the conditions hereinafter
set forth, the parties hereto shall cause the Merger to be consummated by the
approval and filing with the Secretary of the State of Delaware of a
certificate of merger (or a certified copy of this Agreement) in such form as
required by and executed in accordance with the relevant provisions of
applicable law (the time of such filing being the "Effective Date").
ARTICLE III
Certificate of Incorporation and By-Laws
of the Surviving Corporation
Section 3.1 Certificate of Incorporation. The Certificate of Incorporation
of the Company in effect on the Effective Date shall be the Certificate of
Incorporation of the Surviving Corporation, until thereafter amended as
provided by law.
Section 3.2 By-Laws. The By-Laws of the Company in effect on the Effective
Date shall be the By-Laws of the Surviving Corporation, until thereafter
amended as provided by law and the Surviving Corporation's Certificate of
Incorporation.
Section 3.3 Officers and Board of Directors. The directors of Acquisition on
the Effective Date shall become the directors of the Surviving Corporation
until their respective successors are duly elected and qualified. The officers
of the Company on the Effective Date shall continue as the officers of the
Surviving Corporation, to serve in accordance with the By-Laws thereof until
their respective successors are duly elected and qualified.
ARTICLE IV
Conversion of Shares
Section 4.1 Conversion of Shares. As of the Effective Date, by virtue of the
Merger and without any action on the part of Purchaser, Acquisition, the
Company or the holders of any securities of the Company:
(a) All Shares which are held by the Company as treasury shares, all
authorized and unissued Shares and any Shares owned by Purchaser,
Acquisition or any other direct or indirect subsidiary of Purchaser, shall
be canceled.
(b) Each other outstanding Share (other than Shares held by Dissenting
Stockholders (as defined in Section 4.3)) shall be converted into the right
to receive (U.S.)$10.50 net in cash or such higher amount per Share as may
be paid to any holder of Shares pursuant to the Tender Offer (the "Merger
Price").
(c) Each issued and outstanding share of capital stock of Acquisition
shall be converted into one validly issued, fully paid and non-assessable
share of Voting Common Stock, par value $.01 per share, of the Surviving
Corporation.
(d) Except as provided in Section 7.6 and as set forth in Schedule 4.1,
all notes and other debt or equity instruments of the Company which are
outstanding at the Effective Date shall continue to be outstanding
subsequent to the Effective Date as debt or equity instruments of the
Surviving Corporation, subject to their respective terms and provisions.
Section 4.2 Payment for Shares. Purchaser shall authorize one or more
persons to act as paying agent in connection with the Merger (the "Paying
Agent"). Upon or as soon as practicable after the Effective Date, Purchaser
shall make available and each former holder of Shares shall be entitled to
receive pursuant to Section 4.1(b), upon surrender to the Paying Agent of the
certificate or certificates, which immediately prior to the Effective Date
represented such outstanding Shares, for cancellation, the aggregate amount of
cash into which those Shares shall have been converted in the Merger. Until so
surrendered, each certificate, which immediately prior to the Effective Date
represented outstanding Shares, shall represent solely the right to receive,
upon
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surrender, the aggregate amount of cash into which the Shares represented
thereby shall have been converted. No interest shall accrue or be paid on the
cash payable upon the surrender of the certificate or certificates. Purchaser
shall pay on the Effective Date the amounts due in respect of the stock
options referred to in Section 7.6.
Section 4.3 Shares of Dissenting Stockholders. Notwithstanding anything in
this Agreement to the contrary, any issued and outstanding shares of capital
stock of the Company held by a stockholder who has not voted in favor of nor
consented to the Merger and who complies with all the provisions of the GCL
concerning the right of holders of such stock to dissent from the Merger and
require appraisal of their shares (a "Dissenting Stockholder"), shall not be
converted as described in Section 4.1 but shall become, at the Effective Date,
by virtue of the Merger and without any further action, the right to receive
such consideration as may be determined to be due to such Dissenting
Stockholder pursuant to the GCL; provided, however, that Shares outstanding
immediately prior to the Effective Date and held by a Dissenting Stockholder
who shall, after the Effective Date, withdraw his demand for appraisal or lose
his right of appraisal, in either case pursuant to the GCL, shall be deemed to
be converted as of the Effective Date, into the right to receive the Merger
Price. The Company shall give Purchaser (a) prompt notice of any written
demands for appraisal of shares of capital stock of the Company received by
the Company and (b) the opportunity to direct all negotiations and proceedings
with respect to any such demands. The Company shall not, without the prior
written consent of Purchaser, voluntarily make any payment with respect to, or
settle, offer to settle or otherwise negotiate, any such demands.
Section 4.4 Closing of the Company's Transfer Books. Upon the Effective
Date, the stock transfer books of the Company shall be closed and no transfer
of Shares (other than shares of Voting Common Stock, par value $.01 per share,
into which the capital stock of Acquisition is to be converted pursuant to the
Merger) shall thereafter be made.
Section 4.5 Status of Share Certificates. From and after the Effective Date,
the holders of certificates evidencing ownership of Shares outstanding
immediately prior to the Effective Date shall cease to have any rights with
respect to such Shares except as otherwise provided for herein or by
applicable law.
ARTICLE V
Representations and Warranties of Purchaser and Acquisition
Purchaser and Acquisition jointly and severally represent and warrant to the
Company as follows:
Section 5.1 Organization. Purchaser is a corporation duly organized, validly
existing and in good standing under the laws of Canada and has the requisite
corporate power to carry on its business as it is now being conducted.
Acquisition is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware and is a wholly-owned
subsidiary of Purchaser.
Section 5.2 Authority Relative to this Agreement. Purchaser and Acquisition
have the requisite corporate power and authority to make the Tender Offer,
execute and deliver this Agreement, to perform their obligations hereunder and
to consummate the transactions contemplated hereby. The execution and delivery
of this Agreement by Purchaser and Acquisition and the consummation by
Purchaser and Acquisition of the transactions contemplated hereby have been
duly authorized by all necessary corporate and, to the extent necessary,
stockholder action of Purchaser and Acquisition and no other acts or corporate
proceedings on the part of Purchaser or Acquisition are necessary to authorize
the Tender Offer, the Merger or this Agreement or to consummate the
transactions contemplated hereby. This Agreement has been duly executed and
delivered by Purchaser and Acquisition and is a valid and binding obligation
of Purchaser and Acquisition, enforceable against them in accordance with its
terms.
Section 5.3 No Conflicts; Required Filings and Consents.
(a) The execution and delivery of this Agreement by Purchaser and
Acquisition does not, and the consummation of the transactions contemplated
hereby will not (i) conflict with or violate the charter or By-
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Laws, or the equivalent organizational documents, in each case as amended or
restated, of Purchaser or any of its subsidiaries, (ii) in any material
respect, conflict with or violate any federal, state, foreign or local law,
statute, ordinance, rule, regulation, order, judgment or decree (collectively,
"Laws") applicable to Purchaser or any of its subsidiaries or by which any of
their respective properties is bound or subject or (iii) result in any
material breach of or constitute a material default (or an event that with
notice or lapse of time or both would become a material default) under, or
give to others any rights of termination, amendment, acceleration or
cancellation of, or require payment under, or result in the creation of a lien
or encumbrance on any of the properties or assets of Purchaser or any of its
subsidiaries pursuant to, any note, bond, mortgage, indenture, contract,
agreement, lease, license, permit, franchise or other instrument or obligation
to which Purchaser or any of its subsidiaries is a party or by or to which
Purchaser or any of its subsidiaries or any of their respective properties is
bound or subject, except for any such conflicts, violations, breaches,
defaults, events, rights of termination, amendment, acceleration or
cancellation, payment obligations or liens or encumbrances described in
clauses (ii) or (iii) that would not, in the aggregate, prevent the Purchaser
and Acquisition from performing, in any material respect, their respective
obligations under this Agreement (a "Purchaser Material Adverse Effect").
(b) The execution and delivery of this Agreement by Purchaser and
Acquisition does not, and consummation of the transactions contemplated hereby
will not, require either Purchaser or Acquisition to obtain any consent,
license, permit, approval, waiver, authorization or order of, or to make any
filing with or notification to, any governmental or regulatory authority,
domestic or foreign (collectively, "Governmental Entities"), except (i) for
applicable requirements, if any, of the Securities Act of 1933, as amended
(the "Securities Act"), the Exchange Act, state securities or blue sky laws
("Blue Sky Laws"), and the Hart-Scott-Rodino Antitrust Improvements Act of
1976, as amended (the "Hart-Scott-Rodino Act"), and the filing and recordation
of appropriate merger documents as required by the GCL, and (ii) where the
failure to obtain such consents, licenses, permits, approvals, waivers,
authorizations or orders, or to make such filings or notifications, would not,
either individually or in the aggregate, constitute a Purchaser Material
Adverse Effect.
Section 5.4 Information. (a) The documents pursuant to which the Tender
Offer is made, including a Schedule 14D-1, an Offer to Purchase and a related
Letter of Transmittal and any amendments thereof or supplements thereto (the
"Offer Documents"), will not at the respective times such documents are filed
with the SEC, contain any untrue statement of a material fact or omit to state
any material fact (other than information with respect to the Company supplied
by the Company, with respect to which no representation is made) required to
be stated therein or necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading. None of
the information to be supplied by Purchaser or Acquisition for inclusion in a
proxy statement in connection with the meeting of the Company's stockholders,
if required, described in Section 7.2 hereof (the "Proxy Statement") or in an
information statement mailed to the Company's stockholders (the "Information
Statement") or any amendments thereof or supplements thereto, will, at the
time of the meeting of stockholders to be held in connection with the Merger
or the mailing to stockholders, as the case may be, contain any untrue
statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in light of the circumstances under
which they were made, not misleading.
(b) Since their inception, Purchaser and its subsidiaries have filed all
forms, reports, statements and other documents required to be filed with
applicable Canadian and United States securities authorities, except where the
failure to file such documents would not have a Purchaser Material Adverse
Effect (all such forms, reports, statements and other documents being referred
to herein, collectively, as the "Purchaser Reports"). The Purchaser Reports,
including all Purchaser Reports filed after the date of this Agreement and
prior to the Effective Date, (i) were or will be prepared in all material
respects in accordance with the requirements of applicable Law and (ii) did
not at the time they were filed, or will not at the time they are filed,
contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading, except where any such statement or omission would not have a
Purchaser Material Adverse Effect. Notwithstanding this Section 5.4(b),
Purchaser shall not be deemed to represent or warrant the preparation or
accuracy of any Purchaser Report, statement, document or other information
included in the Purchaser Reports that were provided to the Purchaser for
inclusion therein by a third party.
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Section 5.5 Litigation. There is no claim, action, suit, litigation,
proceeding, arbitration or, to the knowledge of Purchaser, any investigation
of any kind at law or in equity (including actions or proceedings seeking
injunctive relief), pending or, to the knowledge of Purchaser, threatened
against Purchaser or any of its subsidiaries or any properties or rights of
Purchaser or any of its subsidiaries (except for claims, actions, suits,
litigation, proceedings, arbitrations or investigations which would not
reasonably be expected to have a Purchaser Material Adverse Effect), and
neither Purchaser nor any of its subsidiaries is subject to any continuing
order of, consent decree, settlement agreement or other similar written
agreement with, any Governmental Entity, or any judgment, order, writ,
injunction, decree or award of any Governmental Entity or arbitrator,
including, without limitation, cease and desist or other orders, except for
matters which would not have a Purchaser Material Adverse Effect.
Section 5.6 Financing. Purchaser and Acquisition have funds available to
them sufficient to consummate the Tender Offer and the Merger on the terms
contemplated hereby.
Section 5.7 Ownership of Capital Stock. As of the date hereof, each of
Purchaser, Acquisition and their respective affiliates is not an interested
stockholder of the Company (as defined in Section 203 of the GCL).
ARTICLE VI
Representations and Warranties of the Company
The Company represents and warrants to Purchaser and Acquisition as follows:
Section 6.1 Organization and Qualification; Subsidiaries. Each of the
Company and its subsidiaries (as defined in Section 10.7) is duly organized,
validly existing and in good standing under the laws of the jurisdiction of
its incorporation or organization, has all requisite corporate or partnership
power and authority to own, lease and operate its properties and to carry on
its business as it is now being conducted and is duly qualified and in good
standing to do business in each jurisdiction in which the nature of the
business conducted by it or the ownership or leasing of its properties makes
such qualification necessary, other than where the failure to be so duly
qualified and in good standing would not have a Company Material Adverse
Effect. The term "Company Material Adverse Effect" as used in this Agreement
shall mean any change or effect that, individually or when taken together with
all other such changes or effects, would be materially adverse to the
financial condition, results of operations or fair market value of the Company
and its subsidiaries, taken as a whole. Schedule 6.1 of the disclosure
schedule delivered to Purchaser by the Company on the date hereof (the
"Company Disclosure Schedule") sets forth, as of the date of this Agreement, a
true and complete list of all the Company's subsidiaries and investments in
business entities together with (A) the jurisdiction of incorporation or
organization of each subsidiary and the percentage of each subsidiary's
outstanding capital stock or other equity interests owned by the Company or
another subsidiary of the Company, and (B) an indication of whether each such
subsidiary is a "Significant Subsidiary" as defined in Rule 1-02 of Regulation
S-X of the SEC. Neither the Company nor any of its subsidiaries owns or has
owned since its inception (other than Nu-South Industries, Inc., a Delaware
corporation, the Conda Partnership, an Idaho general partnership and Nu-Gulf
Industries, Inc., a Delaware corporation), an equity interest in any other
corporation, partnership or joint venture arrangement or other business entity
that is or was material to the financial condition, results of operations or
fair market value of the Company and its subsidiaries, taken as a whole.
Section 6.2 Charter and By-Laws. The Company has heretofore furnished to
Purchaser complete and correct copies of the charter and the By-Laws or the
equivalent organizational documents, in each case as amended or restated, of
the Company and each of its subsidiaries. Neither the Company nor any of its
subsidiaries is in violation of any of the provisions of its charter or any
material provision of its By-Laws (or equivalent organizational documents).
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Section 6.3 Capitalization.
(a) The authorized capital stock of the Company consists of 14,666,667
shares of Voting Common Stock, par value $.01 per share, of which 7,453,258
shares are issued and outstanding; 2,000,000 shares of Nonvoting Common Stock,
par value $.01 per share, of which 633,105 shares are issued and outstanding;
290,000 shares of Class A Preferred Stock, par value $100 per share, of which
290,000 shares are issued and outstanding; 20,000 shares of Class B Preferred
Stock, par value $100 per share, of which 344 shares are issued and
outstanding; and 500,000 shares of Serial Preferred Stock, par value $1.00 per
share, none of which is issued and outstanding. Except as described in this
Section 6.3 or in Schedule 6.3(a) of the Company Disclosure Schedule, as of
the date of this Agreement, no shares of capital stock of the Company are
reserved for any purpose. Each of the outstanding shares of capital stock of,
or other equity interests in, each of the Company and its subsidiaries is duly
authorized, validly issued and, in the case of shares of capital stock, fully
paid and nonassessable, and has not been issued in violation of (nor are the
authorized shares of capital stock of any of such corporate entities subject
to) any preemptive or similar rights created by statute, the charter or By-
Laws (or the equivalent organizational documents) of the Company or any of its
subsidiaries, or any agreement to which the Company or any of its subsidiaries
is a party or bound, and such outstanding shares or other equity interests
owned by the Company or a subsidiary of the Company are owned free and clear
of all security interests, liens, claims, pledges, agreements, limitations on
the Company's or such subsidiaries' voting rights, charges or other
encumbrances of any nature whatsoever, except as set forth in the Second
Amended and Restated Agreement of Limited Partnership of NuTec Mineral &
Chemical Company, a Colorado limited partnership, dated as of January 1, 1994,
and as provided in the documents evidencing the Company's credit facility with
Harris Trust and Savings Bank (the "Harris Loan").
(b) There are no existing options, warrants, calls, subscriptions,
convertible securities or other securities, agreements, commitments or
obligations which would require the Company to issue or sell Shares except
pursuant to (a) the 1988 Employee Stock Option Plan and the Company's 1994
Employee Stock Incentive Plan (collectively, the "Stock Option Plans") under
which, as of the close of business on the date hereof, 497,721 Shares were
issuable and reserved for issuance pursuant to outstanding options, (b) the
Company's Nonemployee Director Stock Option Plan (the "Nonemployee Plan")
under which, as of the close of business on the date hereof, 4,167 Shares were
issuable and reserved for issuance pursuant to outstanding options, (c) the
warrant issued September 18, 1989 by the Company to GE Capital Corporation
(the "GE Warrant") under which, as of the close of business on the date
hereof, 111,541 Shares were issuable and reserved for issuance, and (d) the
warrants issued November 2, 1993 by the Company originally to Indosuez CM II,
Inc. under which, as of the close of business on the date hereof, 677,626
Shares were issuable and reserved for issuance (together with the GE Warrant,
the "Warrants"). Except as set forth in Section 6.3 or in Schedule 6.3(b) to
the Company Disclosure Schedule, there are no obligations, contingent or
otherwise, of the Company or any of its subsidiaries (i) to repurchase, redeem
or otherwise acquire any shares of the capital stock of the Company, or the
capital stock or other equity interests of any subsidiary of the Company or
(ii) (other than advances to subsidiaries in the ordinary course of business)
to provide material funds to, or make any material investment in (in the form
of a loan, capital contribution or otherwise), or provide any guarantee with
respect to the obligations of, any subsidiary of the Company or any other
person. Except as described in Schedule 6.3(b) to the Company Disclosure
Schedule, neither the Company nor any of its subsidiaries (x) directly or
indirectly owns, (y) has agreed to purchase or otherwise acquire or (z) holds
any interest convertible into or exchangeable or exercisable for, 5% or more
of the capital stock of any corporation, partnership, joint venture or other
business association or entity (other than the subsidiaries of the Company set
forth in Schedule 6.1 of the Company Disclosure Schedule). Except as set forth
in Schedule 6.3(b) of the Company Disclosure Schedule and except for any
agreements, arrangements or commitments between the Company and its
subsidiaries or between such subsidiaries, there are no agreements,
arrangements or commitments of any character (contingent or otherwise)
pursuant to which any person is or may be entitled to receive any payment
based on the revenues or earnings, or calculated in accordance therewith, of
the Company or any of its subsidiaries. There are no voting trusts, proxies or
other agreements or understandings to which the Company or any of its
subsidiaries is a party or by which the Company or any of its subsidiaries is
bound with respect to the voting of any shares of capital stock of the Company
or any of its subsidiaries.
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(c) The Company has delivered to Purchaser complete and correct copies of
the Stock Option Plans and the Nonemployee Plan and each form of option issued
thereunder and the Warrants, including all amendments thereto, and the Company
has delivered a complete and correct list of all outstanding awards under the
Stock Option Plans and the Nonemployee Plan, setting forth as of the date
hereof (i) the number and type of awards outstanding, (ii) the exercise price
of each outstanding option, (iii) the number of options exercisable, and
(iv) assuming no amendment or waiver of the terms thereof, the number of
options which will become exercisable, and the number of shares of restricted
stock with respect to which the restrictions will lapse, on account of the
Tender Offer, the Merger or any other transaction contemplated hereby.
Section 6.4 Authority. The Company has all requisite corporate power and
authority to execute and deliver this Agreement, to perform its obligations
hereunder and to consummate the transactions contemplated hereby (subject to
the approval of the Merger, this Agreement and the transactions contemplated
hereby by the affirmative vote of the holders of a majority of the outstanding
shares of Voting Common Stock of the Company ("Stockholder Approval")). The
Company's Board of Directors has unanimously recommended approval and adoption
of this Agreement by the Company's stockholders entitled to vote on the
Merger. Subject to Stockholder Approval, the execution and delivery of this
Agreement by the Company and the consummation by the Company of the
transactions contemplated hereby have been duly authorized by all necessary
corporate action and no other corporate proceedings on the part of the Company
are necessary to authorize this Agreement or to consummate the transactions
contemplated hereby. This Agreement has been duly executed and delivered by
the Company and is a valid and binding obligation of the Company, enforceable
against it in accordance with its terms.
Section 6.5 No Conflict; Required Filings and Consents.
(a) The execution and delivery of this Agreement by the Company does not,
and the consummation of the transactions contemplated hereby will not (i)
conflict with or violate the charter or By-Laws, or the equivalent
organizational documents, in each case as amended or restated, of the Company
or any of its subsidiaries, (ii) in any material respect, conflict with or
violate any Laws applicable to the Company or any of its subsidiaries or by
which any of their respective properties is bound or subject or (iii) except
as described in Schedule 6.5 to the Company Disclosure Schedule, result in any
breach of or constitute a default (or an event that with notice or lapse of
time or both would become a default) under, or give to others any rights of
termination, amendment, acceleration or cancellation of, or require payment
under, or result in the creation of a lien or encumbrance on any of the
properties or assets of the Company or any of its subsidiaries pursuant to,
any note, bond, mortgage, indenture, contract, agreement, lease, license,
permit, franchise or other instrument or obligation to which the Company or
any of its subsidiaries is a party or by or to which the Company or any of its
subsidiaries or any of their respective properties is bound or subject, except
for any such conflicts, violations, breaches, defaults, events, rights of
termination, amendment, acceleration or cancellation, payment obligations or
liens or encumbrances described in clauses (ii) or (iii) that would not have a
Company Material Adverse Effect.
(b) The execution and delivery of this Agreement by the Company does not,
and consummation of the transactions contemplated hereby will not, require the
Company to obtain any consent, license, permit, approval, waiver,
authorization or order of, or to make any filing with or notification to any
Governmental Entities, except (i) for applicable requirements, if any, of the
Securities Act, the Exchange Act, state securities or Blue Sky Laws, and the
Hart-Scott-Rodino Act, and the filing and recordation of appropriate merger
documents as required by the GCL and (ii) where the failure to obtain such
consents, licenses, permits, approvals, waivers, authorizations or orders, or
to make such filings or notifications, would not, either individually or in
the aggregate, prevent the Company from performing, in any material respect,
its obligations under this Agreement and would not have a Company Material
Adverse Effect.
Section 6.6 Permits; Compliance. Each of the Company and its subsidiaries is
in possession of all franchises, grants, authorizations, licenses, permits,
easements, variances, exemptions, consents, certificates, approvals and orders
(other than any thereof covered by Section 6.12) necessary to own, lease and
operate its properties and to carry on its business as it is now being
conducted (collectively, the "Company Permits"), and
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there is no action, proceeding or investigation pending or, to the knowledge
of the Company, threatened regarding suspension or cancellation of any of the
Company Permits, except where the failure to possess, or the suspension or
cancellation of, such Company Permits, or such action, proceeding or
investigation, would not have a Company Material Adverse Effect. Neither the
Company nor any of its subsidiaries is in conflict with, or in default or
violation of (a) any Law applicable to the Company or any of its subsidiaries
or by or to which any of their material respective properties is bound or
subject or (b) any of the Company Permits, except for any such conflicts,
defaults or violations which would not have a Company Material Adverse Effect.
During the period commencing on June 30, 1991 and ending on the date hereof,
neither the Company nor any of its subsidiaries has received from any
Governmental Entity any written notification, asserting that the Company was
in possible default or violation of any Laws, except as described in Schedule
6.6 to the Company Disclosure Schedule, and except for defaults or violations
that would not have a Company Material Adverse Effect.
Section 6.7 Reports; Financial Statements.
(a) Since June 30, 1991, the Company and its subsidiaries have filed all
forms, reports, statements and other documents required to be filed with (A)
the SEC including, without limitation, (1) all Annual Reports on Form 10-K,
(2) all Quarterly Reports on Form 10-Q, (3) all proxy statements relating to
meetings of stockholders (whether annual or special), (4) all Current Reports
on Form 8-K and (5) all other reports, schedules, registration statements or
other documents (collectively referred to as the "Company SEC Reports") and
(B) any applicable state securities authorities, except where the failure to
file such documents would not have a Company Material Adverse Effect (all such
forms, reports, statements and other documents being referred to herein,
collectively, as the "Company Reports"). The Company Reports, including all
Company Reports filed after the date of this Agreement and prior to the
Effective Date, (i) were or will be prepared in all material respects in
accordance with the requirements of applicable Law (including, with respect to
the Company SEC Reports, the Securities Act and the Exchange Act, as the case
may be, and the rules and regulations of the SEC thereunder applicable to such
Company SEC Reports) and (ii) did not at the time they were filed, or will not
at the time they are filed, contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances under
which they were made, not misleading. Notwithstanding this Section 6.7(a), the
Company shall not be deemed to represent or warrant the preparation or
accuracy of any form, report, statement, document or other information
included in the Company Reports that were provided to the Company for
inclusion therein by a third party.
(b) Each of the consolidated financial statements (including, in each case,
any related notes thereto) contained in the Company SEC Reports filed since
June 30, 1991, (i) have been or will be prepared in accordance with the
published rules and regulations of the SEC and U.S. generally accepted
accounting principles ("GAAP") applied on a consistent basis throughout the
periods involved (except (A) to the extent required by changes in U.S. GAAP
and (B) with respect to the Company SEC Reports filed prior to the date of
this Agreement, as may be indicated in the notes thereto) and (ii) fairly
present or will fairly present the consolidated financial position of the
Company and its subsidiaries as of the respective dates thereof and the
consolidated results of operations and cash flows for the periods indicated
(including reasonable estimates of normal and recurring year-end adjustments),
except that any unaudited interim financial statements were or will be subject
to normal and recurring year-end adjustments.
Section 6.8 Absence of Certain Changes or Events. Except as disclosed in the
Company SEC Reports filed prior to the date of this Agreement or as
contemplated by this Agreement or as set forth in Schedule 6.8 of the Company
Disclosure Schedule, since June 30, 1994 the Company and its subsidiaries have
conducted their respective businesses only in the ordinary course and there
has not been: (i) any damage, destruction or loss (whether or not covered by
insurance) with respect to any assets of the Company or any of its
subsidiaries which would have a Company Material Adverse Effect; (ii) any
material change by the Company or its subsidiaries in their accounting
methods, principles or practices; (iii) except for dividends by a subsidiary
to the Company or another subsidiary, any declaration, setting aside or
payment of any dividends or distributions in respect of shares of the
Company's capital stock or the shares of stock of, or other equity interests
in, any subsidiary, or any
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redemption, purchase or other acquisition by the Company or any of its
subsidiaries of any of the Company's securities or any of the securities of
any subsidiary; (iv) except in the ordinary course of business and consistent
with past practice, any increase in the benefits under, or the establishment
or amendment of, any bonus, insurance, severance, deferred compensation,
pension, retirement, profit sharing, stock purchase or other employee Plan (as
defined in Section 6.10) or any increase in the compensation payable or to
become payable to directors, officers or employees of the Company or its
subsidiaries, (v) any grant of stock options other than grants prior to March
31, 1995; (vi) any revaluation by the Company or any of its subsidiaries of
any of their assets, including the writing down of the value of inventory or
the writing down or off of notes or accounts receivable, other than in the
ordinary course of business; (vii) any entry by the Company or any of its
subsidiaries into any commitment or transaction material to the Company and
its subsidiaries, taken as a whole (other than this Agreement and the
transactions contemplated hereby); (viii) except pursuant to the Harris Loan,
any material increase in indebtedness for borrowed money; or (ix) a Company
Material Adverse Effect other than a Company Material Adverse Effect that is
caused by changes in the market price of raw materials, feedstocks or finished
goods.
Section 6.9 Absence of Litigation. Except as disclosed in the Company SEC
Reports filed prior to the date of this Agreement or as set forth in Schedule
6.9 to the Company Disclosure Schedule, there is no claim, action, suit,
litigation, proceeding, arbitration or, to the knowledge of the Company,
investigation of any kind, at law or in equity (including actions or
proceedings seeking injunctive relief), pending or, to the knowledge of the
Company, threatened against the Company or any of its subsidiaries or any
properties or rights of the Company or any of its subsidiaries (except for
claims, actions, suits, litigation, proceedings, arbitrations or
investigations which would not reasonably be expected to have a Company
Material Adverse Effect), and neither the Company nor any of its subsidiaries
is subject to any continuing order of, consent decree, settlement agreement or
other similar written agreement with any Governmental Entity, or any judgment,
order, writ, injunction, decree or award of any Government Entity or
arbitrator, including, without limitation, cease and desist or other orders,
except for matters which would not have a Company Material Adverse Effect.
Section 6.10 Employee Plans; Labor Matters.
(a) Schedule 6.10 of the Company Disclosure Schedule sets forth, and the
Company has made available to Purchaser true and correct copies of, (i) all
employment agreements with officers of the Company or its subsidiaries and all
increases in their compensation and benefits since December 31, 1994; (ii) all
agreements with consultants of the Company or its subsidiaries obligating the
Company or any subsidiary to make annual cash payments in an amount exceeding
$50,000; (iii) all non-competition agreements with the Company or a subsidiary
executed by officers of the Company; and (iv) all material plans, programs,
agreements and other arrangements of the Company or its subsidiaries with or
relating to its employees.
(b) Except for the plans and arrangements set forth on Schedule 6.10 to the
Company Disclosure Schedule (the "Scheduled Plans"), neither the Company nor
any member of the Controlled Group now maintains, has ever maintained or
contributed to, or has any plans or commitments for, any employee Plans (as
such term is defined in the Employee Retirement Income Security Act of 1974,
as amended ("ERISA") (S) 3(3)) or any other retirement, pension, stock option,
stock appreciation right, profit sharing, incentive compensation, deferred
compensation, savings, thrift, vacation pay, severance pay, or other employee
compensation or Plan, agreement, practice, or arrangement, whether written or
unwritten, whether or not legally binding (collectively, the "Plans"). For
purposes of this Agreement, "Controlled Group" means a controlled or
affiliated group within the meaning of the Internal Revenue Code of 1986, as
amended ("Code") (S) 414(b), (c), (m), or (o) of which the Company is a
member. The Company has made available to Purchaser correct and complete
copies of all Scheduled Plans (including a detailed written description of any
Scheduled Plan that is unwritten, including a description of eligibility
criteria, participation, vesting, benefits, funding arrangements and assets
and any other provisions relating to the Company) and, with respect to each
Scheduled Plan, a copy of each of the following: (i) the most recent favorable
determination letter, (ii) materials submitted to the Internal Revenue Service
in support of a pending determination letter request, (iii) the most recent
letter issued by the Internal Revenue Service recognizing tax exemption, (iv)
each insurance contract, trust agreement, or other funding vehicle, (v) the
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most recently filed Forms 5500 plus all schedules and attachments, and (vi)
each summary plan description or other general explanation or communication
distributed or otherwise provided to employees with respect to each Scheduled
Plan that describes the terms of the Scheduled Plan.
(c) Each Scheduled Plan has at all times been in compliance, in form and in
operation, in all material respects with all applicable requirements of law
and regulations, including without limitation ERISA. Each Scheduled Plan that
is intended to be a qualified plan has received a favorable determination
letter from the Internal Revenue Service; nothing has occurred since the date
of the most recent favorable determination letter that would cause the loss of
the Scheduled Plan's qualification; and each such Scheduled Plan has at all
times been in compliance, in form and in operation, in all material respects
with the applicable requirement of the Code and the applicable Treasury
Regulations.
(d) Neither the Company nor any party in interest (as such term is defined
in ERISA (S) 3(14)) nor any disqualified person (as such term is defined in
Code (S) 4975) has engaged in any prohibited transaction within the meaning of
ERISA (S) 406 or Code (S) 4975 that would have a Company Material Adverse
Effect.
(e) All contributions to Scheduled Plans for all periods ending prior to the
Effective Date (including periods from the first day of the current plan year
to the Effective Date) will be made prior to or accrued as of the Effective
Date by the Company in accordance with past practice.
(f) All insurance premiums with respect to each Scheduled Plan have been
paid in full or accrued, subject only to normal retrospective adjustments in
the ordinary course for policy years or other applicable policy periods ending
on or before the Effective Date.
(g) Neither the Company nor any member of the Controlled Group has any
liability for failure to comply with ERISA or the Code for any action or
failure to act in connection with the administration or investment of any
Scheduled Plan, except where such liability would not have a Company Material
Adverse Effect.
(h) Neither the Company nor any member of the Controlled Group has ever
maintained, contributed to, or been obligated to contribute to any plan that
is subject to Title IV of ERISA or the minimum funding requirements of Code
(S) 412. Neither the Company nor any member of the Controlled Group has ever
contributed to or been obligated to contribute to a multiemployer plan (as
such term is defined in ERISA (S) 3(37)).
(i) With respect to each Scheduled Plan and Plan, there are no material
actions, suits, grievances, arbitrations or other manner of litigation or
material claims, with respect to any Scheduled Plan (except for routine claims
for benefits made in the ordinary course of plan administration for which plan
administrative procedures have not been exhausted) pending or, to the
Company's knowledge, threatened against or with respect to any Scheduled Plan
or Plan, any plan sponsor, or any fiduciary (as such term is defined in ERISA
(S) 3(21)) of such Scheduled Plan or Plan, other than actions, suits,
grievances, claims, arbitrations or other manner of litigation that would not
have a Company Material Adverse Effect.
(j) Except as set forth in Schedule 6.10 to the Company Disclosure Schedule,
neither the Company nor any member of the Controlled Group has any liability
for post-retirement welfare benefits except for the continuation coverage
required by Part 6 of Title I of ERISA.
(k) Neither the Company nor any of its subsidiaries is a party to any
collective bargaining or other labor union contracts. No collective bargaining
agreement is being negotiated by the Company or any of its subsidiaries. To
the Company's knowledge, there is no pending or threatened labor dispute,
strike or work stoppage against the Company or any of its subsidiaries which
may materially interfere with the respective business activities of the
Company or any of its subsidiaries. To the knowledge of the Company, none of
the Company, any of its subsidiaries or any of their respective
representatives or employees has committed any unfair labor practices in
connection with the operation of the respective businesses of the Company or
its subsidiaries and, to the knowledge of the Company, there is no pending or
threatened charge or complaint against
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the Company or any of its subsidiaries by the National Labor Relations Board
or any comparable state agency that would have a Company Material Adverse
Effect.
Section 6.11 Taxes. The Company has prepared and duly filed (and to its
knowledge has done so accurately and correctly) all material federal, state,
county and local income, franchise, use, real property and personal property
tax returns and reports (including all attached statements and schedules)
required to be filed as of the date hereof with respect to the Company and its
subsidiaries and has duly paid, withheld or reserved for all taxes, penalties
and other governmental charges required to be paid that have been assessed or
levied against or upon the Company and its subsidiaries or any of their
properties, assets, income, franchises, licenses or sales including without
limitation income, gross receipt and property taxes. To the extent that any
such taxes relate to periods on or prior to June 30, 1994, such taxes have
either been paid or are reflected as a liability on the Company's June 30,
1994 audited financial statements. If not paid, the Company is contesting such
amount in good faith by appropriate proceedings. In the event the Company is
contesting such amounts in good faith, the Company has set aside on its books
adequate reserves in accordance with U.S. GAAP with respect thereto and all of
such matters involving an amount in excess of $100,000 are described in
Schedule 6.11 to the Company Disclosure Schedule. Except as set forth in
Schedule 6.11 to the Company Disclosure Schedule, the Company does not know of
any proposal by any taxing authority for material additional taxes or
assessments against or upon the Company. Except as set forth in Schedule 6.11
to the Company Disclosure Schedule, to the knowledge of the Company all monies
required to be withheld by the Company from employees for income taxes, social
security taxes and unemployment insurance taxes have been collected or
withheld or either paid to the respective governmental agencies or set aside
in cash for such purpose. Except as set forth in Schedule 6.11 to the Company
Disclosure Schedule, the Company has not entered into any agreement for the
extension of time for the assessment of any tax or tax delinquency. The
Company has made available to Purchaser an accurate, correct and complete copy
of each return or statement filed by, on behalf of or including the Company
for federal income tax purposes or state and local income or franchise tax
purposes for the tax years of the Company ended June 30, 1992, June 30, 1993
and June 30, 1994. The Company is not subject to any joint venture,
partnership or other arrangement or contract that is treated as a partnership
for federal income tax purposes, except for NuTec Mineral & Chemical Company.
The net operating losses, net operating loss carry forwards and other tax
attributes of the Company as shown in the federal corporate income tax return
of the Company for the year ended June 30, 1994 are not subject to any
limitation under Code Sections 381, 382, 383 or 384, or any other provision of
the Code or the federal consolidated return regulations (or any predecessor
provision of any Code section or the regulations), and, to the knowledge of
the Company, no event has occurred since June 30, 1994 that would prevent the
Company from utilizing these net operating losses, net operating loss carry
forwards or other tax attributes if it had sufficient income. For purposes of
the prior sentence "any limitation" shall not include the specific tax issues
regarding the Company's net operating losses that have been raised by the
Internal Revenue Service in written communications to the Company that have
been provided to the Purchaser.
Section 6.12 Environmental Matters. Except for matters disclosed in the
Company SEC Reports or Schedule 6.12 to the Company Disclosure Schedule and
except for matters that would not result in a Company Material Adverse Effect,
to the knowledge of the Company, (i) the properties, operations and activities
of the Company and its subsidiaries are in compliance with all applicable
Environmental Laws; (ii) the Company and its subsidiaries and the properties
and operations of the Company and its subsidiaries are not subject to any
existing, pending or threatened action, suit, investigation, inquiry or
proceeding by or before any governmental authority under any Environmental Law
and neither the Company nor its subsidiaries have received any notice that
they are responsible or potentially responsible for clean up of any property;
(iii) all notices, permits, licenses, or similar authorizations, if any,
required to be obtained or filed by the Company or any of its subsidiaries
under any Environmental Law in connection with any aspect of the business of
the Company or its subsidiaries, including without limitation those relating
to the treatment, storage, disposal or release of a hazardous substance, have
been duly obtained or filed and the Company and its subsidiaries are in
compliance, in all material respects, with the terms and conditions of all
such notices, permits, licenses and similar authorizations; (iv) the Company
and its subsidiaries have satisfied and are currently in compliance with all
financial responsibility requirements applicable to their operations and
imposed by any governmental authority under any Environmental Law, and
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the Company and its subsidiaries have not received any notice of material
noncompliance with any such financial responsibility requirements; (v) there
are no physical or environmental conditions existing on any property of the
Company or its subsidiaries or resulting from the Company's or such
subsidiaries' operations or activities, past or present, at any location, that
would be reasonably likely to give rise to any on-site or off-site remedial
obligations imposed on the Company or any of its subsidiaries under any
Environmental Laws; (vi) since the effective date of the relevant requirements
of applicable Environmental Laws and to the extent required by such applicable
Environmental Laws, all hazardous substances and wastes generated by the
Company and its subsidiaries have been handled and stored in compliance with
Environmental Laws, transported only by carriers authorized under
Environmental Laws to transport such substances and wastes, and disposed of
only at treatment, storage, and disposal facilities authorized under
Environmental Laws to treat, store or dispose of such substances and wastes;
(vii) there has been no exposure of any person or property to hazardous
substances or any pollutant or contaminant, nor has there been any release of
hazardous substances, or any pollutant or contaminant into the environment by
the Company or its subsidiaries or in connection with their properties or
operations that could reasonably be expected to give rise to any claim against
the Company or any of its subsidiaries for costs, damages or compensation;
(viii) the Company and its subsidiaries have made available to Purchaser or
its agents all internal and external environmental audits and studies and all
correspondence on substantial environmental matters or liabilities in the
possession of the Company or its subsidiaries relating to any of the current
or former properties or operations of the Company and its subsidiaries (except
that in the case of any written materials for which the Company asserts an
attorney client privilege, the Company shall provide Purchaser with a list of
such materials and a summary of their contents, and the Company shall
cooperate with Purchaser to provide Purchaser with access to such materials if
such access can be provided without violation of the attorney client
privilege); and (ix) neither the Company nor its subsidiaries are subject to
or have entered into any agreement requiring that they pay to, defend,
indemnify or hold harmless any person for or against any environmental
liabilities and costs other than agreements disclosed in the Company SEC
Reports and the Harris Loan. For purposes of this Agreement, the term
"Environmental Laws" shall mean any and all laws, statutes, ordinances, rules,
regulations, or orders of any Governmental Entity pertaining to health or the
environment currently in effect in any and all jurisdictions in which the
party in question and its subsidiaries own property or conduct business,
including without limitation, the Clean Air Act, as amended, the Comprehensive
Environmental, Response, Compensation, and Liability Act of 1980 ("CERCLA"),
as amended, the Federal Water Pollution Control Act, as amended, the
Occupational Safety and Health Act of 1970, as amended, the Resource
Conservation and Recovery Act of 1976 ("RCRA"), as amended, the Safe Drinking
Water Act, as amended, the Toxic Substances Control Act, as amended, the
Hazardous Materials Transportation Act, as amended, any state laws
implementing the foregoing federal laws, and any similar state laws, and all
other federal, state and local environmental conservation or protection laws.
For purposes of this Agreement, the terms "hazardous substance" shall mean
hazardous substance as defined in CERCLA, petroleum, and any other chemical or
material regulated under any Environmental Laws, "release" shall have the
meanings specified in CERCLA, and "disposal" shall have the meaning specified
in RCRA; provided, however, that to the extent the current laws of the state
in which the property is located have established a meaning for "hazardous
substance," "release," or "disposal" that is broader than that specified in
either CERCLA or RCRA, such broader meaning shall apply.
Section 6.13 Delaware Law. The Board of Directors of the Company has
approved the Tender Offer, the Merger and this Agreement, and such approval is
sufficient to render inapplicable the restrictions on business combinations
set forth in Section 203 of the GCL, to the Tender Offer, the Merger, this
Agreement, the transactions contemplated by this Agreement and any additional
acquisitions of the Shares by Purchaser or Acquisition.
Section 6.14 Inventory; Accounts Receivable. The inventory of the Company
and its subsidiaries consists of raw materials, work in process and finished
goods and supplies, all of which is merchantable and fit, in all material
respects, for the purpose for which it was procured or manufactured, and none
of which is slow-moving, obsolete, damaged or defective, subject only to the
reserve for inventory writedown provided for in the Company's March 31, 1995
financial statements, as adjusted for operations and transactions through the
date hereof in accordance with the past custom and practice of the Company and
its subsidiaries. All notes and
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accounts receivable of the Company and its subsidiaries are reflected properly
on their books and records in all material respects.
Section 6.15 Insurance. The Company and each of its subsidiaries are
currently insured for reasonable amounts against such risks as companies
engaged in a similar business would, in accordance with good business
practice, customarily be insured.
Section 6.16 Properties. Except for liens and encumbrances (a) referred to
in the reports described in Schedule 6.16 to the Company Disclosure Schedule,
(b) granted by a subsidiary of the Company to the Company or another
subsidiary, (c) granted pursuant to the Harris Loan, or (d) arising in the
ordinary course of business and for properties and assets disposed of in the
ordinary course of business after June 30, 1994, the Company and its
subsidiaries have defensible title or leasehold interest, free and clear of
all liens, the existence of which would have a Company Material Adverse
Effect, to all their material properties and assets, whether tangible or
intangible, real, personal or mixed. All buildings, and all fixtures,
equipment and other property and assets which are material to its business on
a consolidated basis, held under leases by any of the Company or its
subsidiaries are, to the Company's knowledge, held under valid instruments
enforceable by the Company or its subsidiaries in accordance with their
respective terms. In all material respects, the Company's and its
subsidiaries' plant and equipment have been maintained consistently with
industry standards and are in good and serviceable condition, reasonable wear
and tear excepted.
Section 6.17 Certain Contracts and Restrictions. The Company SEC Reports or
Schedule 6.17 to the Company Disclosure Schedule list, as of the date of this
Agreement, each agreement, contract or commitment (other than any thereof
entered into in the ordinary course of business) of a duration in excess of
six months to which the Company or any of its subsidiaries is a party or by
which the Company or any of its subsidiaries is bound pursuant to which the
Company or its subsidiaries paid consideration during the previous twelve
months in excess of $1,000,000, or which is otherwise material to the
financial condition or results of operations of the Company and its
subsidiaries, taken as a whole. The Amendment to Ore Purchase Agreement,
effective as of June 1, 1995, between Rhone-Poulenc, Inc. and the Company
remains in effect and has not been amended or otherwise modified.
Section 6.18 Information Supplied. Without limiting any of the
representations and warranties contained herein, no representation or warranty
of the Company set forth herein contains any untrue statement of material
fact, or, at the date thereof, omits to state a material fact necessary in
order to make the statements contained therein, in light of the circumstances
under which such statements are made, not misleading.
Section 6.19 Opinion of Financial Advisor. The Company has received the
opinion of PaineWebber Incorporated to the effect that, as of August 8, 1995,
the consideration to be received by the holders of the Shares (other than
stockholders of the Company affiliated with Weiss, Peck & Greer) in the Tender
Offer and/or the Merger is fair, from a financial point of view, to such
holders.
Section 6.20 Futures Trading and Fixed Price Exposure. Except as set forth
in Schedule 6.20 of the Company Disclosure Schedule and except as contemplated
by the Harris Loan, none of the Company or any of its subsidiaries engages in
any futures or options trading or is a party to any price swaps, hedges,
futures or similar investments.
Section 6.21 Intellectual Property. Schedule 6.21 to the Company Disclosure
Schedule contains a complete list as of the date of this Agreement of all
material (i) patents owned or used by the Company or patent applications filed
by the Company, (ii) trademarks, service marks, tradenames, Company
copyrights, or applications therefor, owned or used by the Company. Schedule
6.21 of the Company Disclosure Schedule lists all officers of the Company who
have executed technology rights agreements with the Company. To the Company's
knowledge, no patents, patent applications, trademarks, trademark
applications, service marks, service mark applications, trade secrets,
tradenames, copyrights, licenses, inventions, drawings, designs, customer
lists, proprietary know how or information or other rights with respect
thereto (collectively referred to
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as "Proprietary Rights"), are necessary to or presently being used in the
business of the Company other than those which have been lawfully obtained or
applied for; and to the Company's knowledge, the operations of the Company do
not in any material respect conflict with or infringe on the rights of any
third party. Any person who has asserted that the Company's operations
conflict with or infringe upon any of such person's rights, or any Proprietary
Rights owned, possessed or used by such other person has been disclosed.
Section 6.22 Contributions, Etc. The Company annually inquires of at least
its executive officers concerning conduct of the business including use of
funds for unlawful contributions, gifts, entertainment, or other unlawful
expenses relating to political activities unlawful payments to foreign or
domestic government officials, political parties, or campaigns and no material
violation or unlawful activity has been identified.
Section 6.23 Easements. The business of the Company and its subsidiaries has
been operated in a manner that does not violate the material terms of any
easements, rights of way, permits, servitudes, licenses, leasehold estates and
similar rights relating to real property used by the Company and its
subsidiaries in such business (collectively, "Easements") material to such
business. All material Easements are valid and enforceable and grant the
rights purported to be granted thereby and all rights necessary thereunder for
the current operation of such business.
Section 6.24 Information. Neither (a) the Proxy Statement or Information
Statement (other than information provided by Purchaser or Acquisition, as to
which no representation is made), nor (b) any information provided by the
Company for inclusion in any amendments or supplements to the Offer Documents,
nor (c) the Schedule 14D-9 to be filed by the Company in connection with the
Tender Offer and any amendments thereof or supplements thereto will contain,
at the respective times such documents are filed with the SEC, and, in the
case of the Proxy Statement or Information Statement or any amendments thereof
or supplements thereto, at the time of the meeting of stockholders to be held
in connection with the Merger, if required, or at the time of mailing to
stockholders, as the case may be, any untrue statement of a material fact or
will omit to state any material fact required to be stated therein or
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. The Schedule 14D-9,
the Proxy Statement or Information Statement, as the case may be, and any
amendments of or supplements to any of the foregoing, will comply as to form
in all material respects with the provisions of the Exchange Act.
ARTICLE VII
Covenants
Section 7.1 Conduct of Business by the Company Pending the
Merger. Subsequent to the date hereof and prior to the Effective Date, unless
Purchaser shall otherwise agree in writing or unless the failure to comply
with any of the following covenants results from actions by the Board of
Directors of the Company which are approved by a majority of the directors
appointed by Purchaser pursuant to Section 7.11 hereof and except as otherwise
specifically contemplated by this Agreement:
(a) the businesses of the Company and its subsidiaries shall be conducted
only in, and neither the Company nor any of its subsidiaries shall take any
action except in, the ordinary and usual course of business.
(b) the Company shall not
(i) increase the compensation payable to or to become payable to any
director or executive officer, except for increases in salary or wages
payable or to become payable in the ordinary course of business and
consistent with past practice; (ii) grant any severance or termination
pay (other than pursuant to the normal severance policy of the Company
or its subsidiaries as in effect on the date of this Agreement) to, or
enter into or amend any employment or severance agreement with, any
director, officer or employee; (iii) establish, adopt or enter into any
new employee Plan or arrangement; or (iv) except as may be required by
applicable law and actions that are not inconsistent with the
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provisions of Section 6.10 of this Agreement, amend, or take any other
actions (other than the acceleration of vesting or waiving of
performance criteria permitted pursuant to the Plans upon a change in
control of the Company) with respect to, any of the Plans;
(2) declare or pay any dividend on, or make any other distribution in
respect of, outstanding shares of capital stock, except for dividends
by a subsidiary to the Company or another subsidiary;
(3) (i) except as described in Schedule 7.1(b)(3) to the Company
Disclosure Schedule, redeem, purchase or otherwise acquire any shares
of its or any of its subsidiaries' capital stock or any securities or
obligations convertible into or exchangeable for any shares of its or
its subsidiaries' capital stock (other than any such acquisition
directly from any wholly owned subsidiary of the Company in exchange
for capital contributions or loans to such subsidiary), or any options,
warrants or conversion or other rights to acquire any shares of its or
its subsidiaries' capital stock or any such securities or obligations
(except in connection with the exercise of outstanding stock options or
Warrants in accordance with their terms); (ii) effect any
reorganization or recapitalization; or (iii) split, combine or
reclassify any of its or its subsidiaries' capital stock or issue or
authorize or propose the issuance of any other securities in respect
of, in lieu of or in substitution for, shares of its or its
subsidiaries' capital stock;
(4) (i) except as described in Schedule 7.1(b)(4) to the Company
Disclosure Schedule, issue, deliver, award, grant or sell, or authorize
or propose the issuance, delivery, award, grant or sale (including the
grant of any security interests, liens, claims, pledges, limitations in
voting rights, charges or other encumbrances) of, any shares of any
class of its or its subsidiaries' capital stock (including shares held
in treasury), any securities convertible into or exercisable or
exchangeable for any such shares, or any rights, warrants or options to
acquire any such shares (except as permitted for the issuance of shares
upon the exercise of stock options outstanding as of the date of this
Agreement) other than (a) the conversion of Voting Common Stock and
Nonvoting Common Stock as provided in paragraph 4(D) of Section 2 of
Article IV of the Company's Certificate of Incorporation, (b) the
exercise of the Warrants or (c) the exercise of options under the Stock
Option Plans or the Nonemployee Plan; or (ii) amend or otherwise modify
the terms of any such rights, warrants or options the effect of which
shall be to make such terms more favorable to the holders thereof;
(5) acquire or agree to acquire, by merging or consolidating with, by
purchasing an equity interest in or a portion of the assets of, or by
any other manner, any business or any corporation, partnership,
association or other business organization or division thereof, or
otherwise acquire or agree to acquire any assets of any other person
(other than the purchase of assets from suppliers or vendors in the
ordinary course of business) in each case which are material,
individually or in the aggregate, to the Company and its subsidiaries,
taken as a whole;
(6) sell, lease, exchange, mortgage, pledge, transfer or otherwise
dispose of, or agree to sell, lease, exchange, mortgage, pledge,
transfer or otherwise dispose of, any of its material assets or any
material assets of any of its subsidiaries, except for dispositions in
the ordinary course of business and consistent with past practice;
(7) solicit, initiate or knowingly encourage any inquiries,
discussions or negotiations with any person (other than Purchaser or
Acquisition) concerning any Acquisition Proposal (as defined in Section
9.1(c)) or solicit, initiate or knowingly encourage any effort or
attempt by any other person to do, make or seek an Acquisition Proposal
or, unless required in order for the Board of Directors of the Company
to comply with its fiduciary responsibilities, with a view to pursuing
an Acquisition Proposal with such person, engage in discussions or
negotiations with or disclose any nonpublic information relating to the
Company or any of its subsidiaries to such person or authorize or
permit any of the officers, directors or employees of the Company or
any of its subsidiaries or any investment banker, financial adviser,
attorney, accountant or other representative retained by the Company or
any of its subsidiaries to take any such action. The Company shall
immediately communicate to Purchaser in writing the terms of any
Acquisition Proposal which it may receive;
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(8) adopt or propose to adopt any amendments to its charter or By-
Laws, which would alter the terms of its capital stock or would have an
adverse impact on the consummation of the transactions contemplated by
this Agreement;
(9) (i) change, in any material respect, any of its methods of
accounting in effect at June 30, 1995, or (ii) make or rescind any
express or deemed election relating to taxes, settle or compromise any
claim, action, suit, litigation, proceeding, arbitration,
investigation, audit or controversy relating to Taxes (except where the
amount of such settlements or controversies, individually or in the
aggregate, would not have a Company Material Adverse Effect), or change
any of its methods of reporting income or deductions for federal income
tax purposes from those employed in the preparation of the federal
income tax returns for the taxable year ending June 30, 1994, except,
in each case, as may be required by Law or U.S. GAAP;
(10) other than as permitted by the Harris Loan, incur any material
obligation for borrowed money or purchase money indebtedness, whether
or not evidenced by a note, bond, debenture or similar instrument;
(11) enter into any material arrangement, agreement or contract with
any third party (other than customers in the ordinary course of
business) that provides for an exclusive arrangement with that third
party or is substantially more restrictive on the Company or
substantially less advantageous to the Company than arrangements,
agreements or contracts existing on the date hereof unless such
arrangement is entered into in the ordinary course of business; or
(12) agree in writing or otherwise to do any of the foregoing.
Section 7.2 Stockholders' Meeting and Proxy Statement. Except as provided in
Section 9.1 of this Agreement, the Company shall take all action necessary in
accordance with applicable law and its Certificate of Incorporation and By-
Laws to convene a meeting of the holders of the shares of Voting Common Stock
of the Company as promptly as practicable after the expiration of the Tender
Offer to consider and vote upon the adoption of the Merger Agreement, if such
stockholder approval is required by applicable law. In connection with any
stockholders' meeting, if required, the Company shall prepare and file the
Proxy Statement with the SEC and Purchaser shall furnish all information
concerning Purchaser and Acquisition as the Company may reasonably request in
connection with the preparation of the Proxy Statement. At any stockholders'
meeting, Purchaser agrees to vote or cause all of the Shares acquired pursuant
to the Tender Offer or otherwise by Acquisition or any affiliate of Purchaser
to be voted in favor of the Merger. The Company shall in the Proxy Statement,
through its Board of Directors, recommend that the Company's stockholders
adopt the Merger Agreement, if such vote is required, except to the extent
that the Board of Directors shall have withdrawn or modified its approval or
recommendation of the Tender Offer or the Merger Agreement as contemplated by
Section 9.1(c).
Section 7.3 Certain Filings and Consents. Purchaser, Acquisition and the
Company shall (a) cooperate with each other in determining whether any filings
are required to be made or consents, approvals, permits or authorizations are
required to be obtained under any federal or state law or regulation or
whether any consents, approvals or waivers are required to be obtained from
other parties to loan agreements or other contracts material to the business
of the Company and its subsidiaries taken as a whole in connection with the
consummation of the Merger and (b) actively assist each other in making any
such filings and obtaining any consents, permits, authorizations, approvals or
waivers that are required.
Section 7.4 Access. Upon reasonable notice, the Company shall, and shall
cause each of its subsidiaries to, afford Purchaser and Acquisition, and their
respective representatives, full access during normal business hours until the
Effective Date to all of its properties, books, contracts, commitments and
records (including, but not limited to, tax returns) and, during that period,
the Company and each of its subsidiaries shall furnish promptly to Purchaser
and Acquisition, and their respective representatives, all information
concerning its business, properties, assets, liabilities, operations,
financial condition and personnel as Purchaser or Acquisition
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may reasonably request; except that in the case of all written materials for
which the Company asserts an attorney client privilege, the Company shall
provide Purchaser with a list of such materials and a summary of their
contents, and the Company shall cooperate with Purchaser to provide Purchaser
with access to such materials if such access can be provided without violation
of the attorney client privilege. Purchaser and Acquisition shall, and shall
use their reasonable best efforts to cause their consultants and advisors to,
hold in confidence all such information until such time as such information is
otherwise publicly available (unless otherwise required to disclose such
information by law), and if this Agreement is terminated, Purchaser and
Acquisition shall deliver to the Company all documents, work papers and other
material obtained by them from the Company pursuant to the terms of this
Agreement.
Section 7.5 Expenses.
(a) Except as provided in Section 9.2(a) of this Agreement, all Expenses (as
defined in Section 7.5(b) hereof) incurred by the parties hereto shall be
borne solely and entirely by the party which has incurred such Expenses.
(b) "Expenses" as used in this Agreement shall include all out-of-pocket
expenses (including, without limitation, all fees and expenses of counsel,
accountants, investment bankers, experts and consultants to a party hereto and
its affiliates) incurred by a party or on its behalf in connection with or
related to the authorization, preparation, negotiation, execution and
performance of the Tender Offer, this Agreement, the preparation, printing,
filing and mailing of the Offer Documents, the Schedule 14D-1, the Schedule
14D-9, the Proxy Statement, the Information Statement, the solicitation of
stockholder approvals and all other matters related to the consummation of the
transactions contemplated hereby; provided, however, that "Expenses" shall not
include any fees of legal counsel or advisors of any stockholder of any party.
Section 7.6 Employee Stock Options; Warrant. On or before the Effective Date
of the Merger, the Company shall take all steps necessary for all outstanding
options granted under the Stock Option Plans and the Nonemployee Plan to be
converted by the Merger into the right to receive for each Share covered
thereby a cash amount equal to the excess of the Merger Price over the option
exercise price. Such amount shall be paid by Purchaser on the Effective Date.
On the Effective Date of the Merger, all rights under the Warrants shall be
converted by the Merger into the right to receive for each Share covered
thereby the right to receive the Merger Price upon payment to the Company of
the applicable Warrant exercise price. The Company shall take no action, or
allow any action to be taken, or fail to take any action, that would cause or
result in any acceleration of exercisability of outstanding options granted
under the Stock Option Plans and the Nonemployee Plan.
Section 7.7 Indemnification and Insurance. The Company shall indemnify and
hold harmless, and after the Effective Date, Purchaser and the Surviving
Corporation shall indemnify and hold harmless, each present employee, agent,
director or officer of the Company and the Company's subsidiaries (the
"Indemnified Parties") (a) with respect to any losses, claims, damages,
liabilities, costs and expenses, including reasonable attorneys' and expert
witness fees, arising out of or pertaining to any action or omission occurring
prior to the Effective Date (including any which arise out of or pertain to
the transactions contemplated by this Agreement) and (b) as provided in their
respective charters or by-laws in effect at the date hereof (to the extent
consistent with applicable law), which provisions shall survive the Merger and
shall continue in full force and effect for a period of not less than five
years from the Effective Date. In the event any claim or claims (a "Claim or
Claims") are asserted or made pursuant to the preceding sentence within such
five-year period, all rights to indemnification in respect of any such Claim
or Claims shall continue until disposition of any and all such Claims. In the
event that a claim is asserted against any Indemnified Party with respect to
any matter to which the indemnities contained in this section relate, the
Indemnified Party shall give prompt written notice to the Surviving
Corporation setting forth in reasonable detail the basis for such claim for
indemnification. The Surviving Corporation shall have the right, at its
election, to take over the defense or settlement of such claim at its own
expense by giving prompt notice to that effect to the Indemnified Party. If
the Surviving Corporation shall have so assumed the defense of any Claim, the
Surviving Corporation shall be authorized to consent to a settlement of, or
the entry of any judgment arising from, any such Claim, without the prior
written consent of the Indemnified Party; provided,
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however, that a condition to any such settlement shall be a complete release
of the Indemnified Party with respect to such Claim. If the Surviving
Corporation does not, within thirty days after receipt of the Indemnified
Party's notice of Claim, (x) give such notice to take over the defense of such
Claim and proceed to defend the Claim or (y) object to such Claim in writing
to the Indemnified Party, then the Indemnified Party shall have the right to
undertake the defense of such Claim and the Surviving Corporation shall pay to
the Indemnified Party the reasonable fees and expenses of its counsel. The
Surviving Corporation shall not be liable for any settlement effected without
its consent, which consent shall not be unreasonably withheld. The Indemnified
Party shall at all times have the right, at its option and expense, to
participate fully in, but not to control, any such defense. Without limiting
the foregoing, the Company and, after the Effective Date, the Surviving
Corporation, to the extent permitted by applicable law, will periodically
advance reasonable expenses as incurred with respect to the foregoing to the
fullest extent permitted under applicable law provided the person to whom the
expenses are advanced provides an undertaking to repay such advances if it is
ultimately determined that such person is not entitled to indemnification. In
the event that within five years from the Effective Date the Surviving
Corporation shall consolidate or merge with or into any other person or shall
transfer all or substantially all of its assets to any person and such person
surviving such consolidation or merger or to which such assets shall have been
transferred is not a Delaware corporation, the Surviving Corporation shall
enter into an agreement pursuant to which such person shall agree to provide
indemnification substantially equivalent to that required of the Company
hereunder.
Section 7.8 Employee Benefits. For a period of two years from the Effective
Date, Purchaser and the Surviving Corporation agree to honor in accordance
with their terms the Company's employee benefit plans, in each case to the
extent the same have been delivered or made available to Purchaser for review,
provided however that Purchaser or the Surviving Corporation may amend or
terminate any such plan at any time after the Effective Date to the extent the
amendment or termination is deemed to be necessary or appropriate to comply
with the requirements of applicable law.
Section 7.9 Maintenance of Financing. Purchaser and Acquisition shall at all
times have available to them funds sufficient to consummate the Tender Offer
and the Merger on the terms contemplated by this Agreement.
Section 7.10 Resignation of Directors. The Company will obtain the
resignations of all of the Continuing Directors of the Company on the
Effective Date.
Section 7.11 Board of Directors. Upon the acquisition of Shares pursuant to
the Tender Offer, which, when added together with Shares owned by Purchaser or
any of its direct or indirect subsidiaries, equal at least a majority of the
then outstanding shares of Voting Common Stock, the Company shall fill any
vacancies and increase the size of its Board of Directors as necessary to
enable Purchaser to designate at its option a majority of the Company's Board
of Directors, and shall cause Purchaser's designees to be so elected and shall
mail promptly the information required by Section 14(f) of the Act and Rule
14f-1 promulgated thereunder.
ARTICLE VIII
Conditions
Section 8.1 Conditions to Each Party's Obligation to Effect the Merger. The
respective obligations of each party to effect the Merger shall be subject to
the fulfillment at or prior to the Effective Date of the following conditions:
(a) The holders of the Voting Common Stock of the Company entitled to
vote shall have duly approved the Merger if required by applicable law.
(b) No preliminary or permanent injunction or other order by a court of
competent jurisdiction which prevents the consummation of the Merger shall
have been issued and remain in effect (each party agreeing to use its
reasonable best efforts to have any such injunction lifted).
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(c) No action shall have been taken nor shall any statute, rule or
regulation have been enacted by the government of the United States or any
state thereof that makes the consummation of the Tender Offer or the Merger
illegal in any material respect.
(d) The applicable waiting period under the Hart-Scott-Rodino Act with
respect to the transactions contemplated by this Agreement shall have
expired or been terminated.
Section 8.2 Conditions to Obligations of Purchaser and Acquisition to Effect
the Merger. The obligations of Purchaser and Acquisition to effect the Merger
shall be subject to the fulfillment at or prior to the Effective Date of the
following additional conditions:
(a) The representations and warranties of the Company set forth in
Article VI shall be true and correct in all material respects on the
Effective Date (or on such other date specified in Article VI) with the
same force and effect as though made on and as of such date, and Purchaser
and Acquisition shall have received a certificate to that effect from the
Chief Executive Officer and the Treasurer of the Company.
(b) All of the covenants and agreements of the Company to be performed or
complied with pursuant to this Agreement prior to the Effective Date shall
have been duly performed and complied with in all material respects, and
Purchaser and Acquisition shall have received a certificate to that effect
from the Chief Executive Officer and the Treasurer of the Company.
(c) Holders of no more than 400,000 Shares, in the aggregate, shall have
filed with the Company a written objection to the Merger and made a written
demand for payment of the fair value of his shares in the manner permitted
by the GCL.
(d) All of the Continuing Directors of the Company on the Effective Date
shall have resigned.
(e) Since the date of this Agreement, there shall have been no Company
Material Adverse Effect; provided, however, that an IRS Notice of Proposed
Adjustment (to the extent it relates to specific tax issues regarding the
Company's net operating losses that have been raised by the Internal
Revenue Service in a written communication referred to in the last sentence
of Section 6.11) shall not be considered a Company Material Adverse Effect
for this purpose.
(f) Other than taxes duly paid, withheld or reserved for by the Company,
no taxes are payable, or reasonably expected by the Company to be payable,
with respect to items or periods covered by the returns and reports
referred to in Section 6.11 (whether or not shown on or reportable on such
returns or reports or with respect to any period prior to the Effective
Date), other than any such taxes which would not have a Company Material
Adverse Effect.
Section 8.3 Conditions to Obligation of the Company to Effect the
Merger. The obligation of the Company to effect the Merger shall be subject to
the fulfillment at or prior to the Effective Date of the following additional
conditions.
(a) The representations and warranties of Purchaser and Acquisition set
forth in Article V shall be true and correct in all material respects on
the Effective Date (or on such other date specified in Article V) with the
same force and effect as though made on and as of such date, and the
Company shall have received certificates to that effect from the Chief
Executive Officer and the Treasurer of Purchaser and the President of
Acquisition.
(b) All of the covenants and agreements of Purchaser and Acquisition to
be performed or complied with pursuant to this Agreement prior to the
Effective Date shall have been duly performed and complied with in all
material respects, and the Company shall have received certificates to that
effect from the Chief Executive Officer and the Treasurer of Purchaser and
the President of Acquisition.
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ARTICLE IX
Termination, Amendment and Waiver
Section 9.1 Termination. This Agreement shall be subject to termination at
any time prior to the Effective Date, whether before or after approval by the
stockholders of the Company, if required, as follows:
(a) by mutual consent of Purchaser and the Board of Directors of the
Company;
(b) by Purchaser or the Company if the Merger shall not have been
consummated on or before December 15, 1995, which date may be extended by
mutual agreement of the Boards of Directors of the Company and Purchaser;
(c) by the Company if, prior to the Effective Date, the Company, its
Board of Directors or its stockholders shall receive a bona fide written
proposal or offer from a third party (each an "Acquisition Proposal")
relating to:
(i) the acquisition or purchase of all or substantially all of the
assets of, or more than a 50% equity interest (including any Shares
theretofore acquired) in the Company;
(ii) a merger, consolidation or similar business combination with the
Company;
(iii) a tender or exchange offer for the Company conditioned on
ownership of more than 50% of the outstanding Shares following such
tender or exchange offer;
and the Board of Directors of the Company determines that it has a duty in
the proper discharge of its fiduciary responsibilities under applicable law
to consider such other proposal or offer, and then such Board of Directors
either (A) accepts such proposal or offer, (B) recommends to the
stockholders acceptance of such proposal or offer, or (C) in the case of a
tender or exchange offer, takes no position with respect thereto and all
conditions (other than terminating this Agreement) of such tender or
exchange offer have been satisfied, in which event this Agreement shall be
terminated without any liability to the Company or the Company's Board of
Directors as a result of such termination other than as set forth in
Section 9.2(a).
(d) by Purchaser upon a breach of any material representation, warranty,
covenant or agreement on the part of the Company set forth in this
Agreement or if any representation or warranty of the Company shall have
become untrue and such breach or untruth shall have caused a Company
Material Adverse Effect.
(e) by the Company upon a breach of any material representation,
warranty, covenant or agreement on the part of the Purchaser set forth in
this Agreement or if any representation or warranty of the Purchaser shall
have become untrue and such breach or untruth shall have caused a Purchaser
Material Adverse Effect.
Section 9.2 Break-Up Fee; Effect of Termination.
(a) If the Agreement is terminated pursuant to Section 9.1(c), the Company
shall pay to Purchaser U.S. $4,000,000 in cash. Any payment required to be
made pursuant to this Section 9.2(a) shall be made as promptly as practicable
but not later than three business days after termination of this Agreement,
and shall be made by wire transfer of immediately available funds to an
account designated by Purchaser.
(b) In the event of termination of this Agreement by Purchaser, Acquisition
or the Company (other than pursuant to Section 9.1(c)), there shall be no
liability under this Agreement on the part of either the Company, Purchaser or
Acquisition or their respective officers or directors, except for any breach
of the provisions of Section 7.2 and the confidentiality provisions of Section
7.4, and except for any termination pursuant to Section 9.1(d) or (e) as a
result of a wilful breach of any representation, warranty, covenant or
agreement of Purchaser, Acquisition or the Company contained herein.
Section 9.3 Amendment. This Agreement may be amended by the parties hereto,
by action taken by the respective Boards of Directors of Purchaser,
Acquisition and the Company, at any time before or after approval hereof by
the stockholders of the Company, but, after any such approval, if required, no
amendment shall be made which changes the Merger Price without the further
approval of such stockholders. This Agreement may not be amended except by an
instrument in writing signed on behalf of each of the parties hereto.
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Section 9.4 Waiver. At any time prior to the Effective Date, the parties
hereto, by action taken by the respective Boards of Directors of Purchaser,
Acquisition or the Company, may (a) extend, for a reasonable time, the time
for the performance of any of the obligations or other acts of the other
parties hereto, (b) waive any inaccuracies in the representations and
warranties contained herein or in any document delivered pursuant hereto and
(c) waive compliance with any of the agreements or conditions contained
herein. Any agreement on the part of the party hereto to any such extension or
waiver shall be valid if set forth in an instrument in writing signed on
behalf of such party.
ARTICLE X
General Provisions
Section 10.1 Notice of Breach. Each party shall promptly give written notice
to the other parties upon becoming aware of the occurrence, or impending or
threatened occurrence, of any event which would cause or constitute a breach
of any of its representations, warranties of covenants contained or referred
to in this Agreement and shall use its reasonable best efforts to prevent or
promptly remedy the same.
Section 10.2 Cooperation. Subject to the terms and conditions herein
provided, each of the parties hereto agrees to use its reasonable best efforts
to take, or cause to be taken, all action and to do, or cause to be done, all
things necessary, proper or advisable under applicable laws and regulations to
consummate and make effective the Merger and the other transactions
contemplated by this Agreement. In case at any time after the Effective Date
any further action is necessary or desirable to carry out the purpose of this
Agreement, the proper officers and/or directors of Purchaser, Acquisition or
the Company shall take, or cause to be taken, all such necessary action.
Purchaser shall cause Acquisition to comply with all of Acquisition's
obligations hereunder.
Section 10.3 Non-Survival of Representations and Warranties. None of the
representations and warranties in this Agreement shall survive the Effective
Date of the Merger.
Section 10.4 Brokers. The Company represents and warrants that, except for
its financial advisor, PaineWebber Incorporated, no broker, finder or
investment banker is entitled to any brokerage, finder's or other fee or
commission in connection with the Tender Offer or the Merger.
Section 10.5 Entire Agreement. Other than the Confidentiality Agreement,
dated February 1, 1995, between the Company and Purchaser, this Agreement
contains the entire agreement among Purchaser, Acquisition and the Company
with respect to the Tender Offer, the Merger and the other transactions
contemplated hereby, and supersedes all prior agreements, understandings,
representations, and warranties with respect to the subject matter.
Section 10.6 Applicable Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware (without giving
effect to its choice of laws principles).
Section 10.7 Interpretation; Headings. When a reference is made in this
Agreement to subsidiaries of the Company or Purchaser, the word "subsidiaries"
means any corporation, partnership, limited liability company or other entity
more than 50% of whose outstanding voting securities are directly or
indirectly owned by the Company or Purchaser, as the case may be. The headings
contained in this Agreement are for reference purposes only and shall not
affect in any way the meaning or interpretation of this Agreement.
Section 10.8 Assignment. Purchaser and Acquisition shall have the right (a)
to assign to Purchaser or any direct or indirect wholly-owned subsidiary of
Purchaser any and all of the rights and obligations of Acquisition or
Purchaser under this Agreement, including, without limitation, the right to
substitute in Acquisition's place such a subsidiary as one of the Constituent
Corporations in the Merger (such subsidiary assuming all of the obligations of
Acquisition in connection with the Merger) and (b) to transfer to Purchaser or
to one or more
22
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directly or indirectly wholly-owned subsidiaries of Purchaser the right to
purchase Shares tendered pursuant to the Tender Offer.
Section 10.9 Separability. Any term or provision of this Agreement which is
invalid or unenforceable in any jurisdiction, shall, as to such jurisdiction,
be ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement in any other jurisdiction. If any provision of this Agreement is so
broad as to be unenforceable, such provision shall be interpreted to be only
so broad as is enforceable.
Section 10.10 Publicity. Except as required by law or the rules of any
exchange on which the shares of Purchaser or Company are traded, as long as
this Agreement is in effect, neither the Company nor Purchaser shall issue or
cause the publication of any press release or other announcement with respect
to the Tender Offer, the Merger or this Agreement without the prior consent of
the other, which consent shall not be unreasonably withheld.
Section 10.11 Notices. All notices or other communications hereunder shall
be in writing and shall be deemed to have been duly given if delivered
personally or sent by first-class mail, postage prepaid, with return receipt
requested, addressed as follows:
If to Purchaser or Acquisition, to:
D.E.A. Bower, General Counsel
10333 Southport Road SW, Suite 426
Calgary, Alberta T2W 3X6
Fax # 403-258-5761
with copies to:
Thomas A. Richardson
Holme Roberts & Owen LLC
1700 Lincoln, Suite 4100
Denver, CO 80203
Fax # 303-866-0200
If to the Company, to:
Nu-West Industries, Inc.
3010 Conda Road
Soda Springs, Idaho 83276
Attn: Craig D. Harlen
Fax # 208-547-2550
with copies to:
Davis, Graham & Stubbs, L.L.C.
370 17th Street
Suite 4700
Denver, Colorado 80202
Attn: John L. McCabe, Esq.
Fax # 303-893-1379
Section 10.12 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original but all of which
together shall constitute one agreement.
Section 10.13 No Third Party Beneficiaries. No provision of this Agreement
is intended to benefit any person other than the parties hereto.
23
<PAGE>
Section 10.14 Schedules. Inclusion of, or reference to, matters in a schedule
to this Agreement does not constitute an admission of what is material or the
materiality of such matter.
In Witness Whereof, Purchaser, Acquisition and the Company have caused this
Agreement to be signed by their respective officers thereunto duly authorized
all as of the date first written above.
Agrium Inc.
/s/ Dorothy E.A. Bower
By: _________________________________
Title: Secretary and General Counsel
Agrium Acquisition Corporation
/s/ Dorothy E.A. Bower
By: _________________________________
Title: Secretary and Treasurer
Nu-West Industries, Inc.
/s/ Steven Gampp
By: _________________________________
Title: Vice President
24
<PAGE>
EXHIBIT A
The capitalized terms used herein have the meanings set forth in the
Agreement and Plan of Merger dated as of August 9, 1995 (the "Merger
Agreement") to which this Exhibit A is attached.
CONDITIONS OF THE OFFER
Notwithstanding any other provision of the Tender Offer, Acquisition shall
not be required to accept for payment, purchase or pay for any Shares tendered
and may terminate or (subject to the terms of the Merger Agreement) amend the
Tender Offer or may postpone the acceptance for payment, purchase of or
payment for Shares tendered, if before acceptance for payment for any such
Shares (whether or not any Shares have theretofore been accepted for payment
or paid for pursuant to the Tender Offer) (i) there shall not have been
validly tendered and not properly withdrawn pursuant to the Tender Offer at
least 60% of the Shares on a fully diluted basis (the "Minimum Condition"),
(ii) any waiting period under the Hart-Scott-Rodino Act applicable to the
purchase of Shares pursuant to the Tender Offer shall not have expired or been
terminated, or (iii) any of the following shall occur:
(a) Any representation or warranty of the Company in the Merger Agreement
shall have been untrue or incorrect in any material respect as of the date
of the Merger Agreement and the date of consummation of the Tender Offer
with the same force and effect as though made on and as of the date of
consummation of the Tender Offer, or there has been a breach by the Company
of any covenant or agreement set forth in the Merger Agreement which breach
shall not be remedied within five days (or by the Expiration Date if
sooner) of written notice specifying such breach in reasonable detail and
demanding that same be remedied (except where such failure to be true and
correct or such breach would not reasonably be expected to have a Company
Material Adverse Effect).
(b) There shall be any action taken, or any statute, rule, regulation,
decree, order or injunction promulgated, enacted, entered into or enforced
by any state, federal or foreign government or governmental agency or
authority or by any court (domestic or foreign) that would (i) make the
acceptance for payment of, the payment for, or the purchase of, some or all
of the Shares by Acquisition illegal or otherwise prohibit consummation of
the Tender Offer or the Merger, (ii) prohibit the ability of Acquisition,
or render Acquisition unable, to accept for payment, pay for or purchase
some or all of the Shares in a manner that is adverse in any material
respect to the transactions contemplated by the Tender Offer or the Merger,
(iii) require the divestiture by Purchaser, Acquisition or the Company or
any of their respective subsidiaries of all or any material portion of the
business, assets or property of any of them or any Shares, or impose any
material limitation on the ability of any of them to conduct their business
and own such assets, properties and Shares, (iv) impose material
limitations on the ability of Acquisition or Purchaser to acquire or hold
or to exercise effectively all rights of ownership of Shares, including,
without limitation, the right to vote any Shares purchased by Acquisition
on all matters properly presented to the stockholders of the Company or (v)
impose any material limitations on the ability of Purchaser or Acquisition
or any of their respective subsidiaries effectively to control in any
material respect the business or operations of the Company and its
subsidiaries.
(c) Since the date of the Merger Agreement there shall have been a
Company Material Adverse Effect.
(d) The Merger Agreement shall have been terminated in accordance with
its terms.
(e) The Company's Board of Directors shall have withdrawn, modified or
amended in any respect materially adverse to Purchaser or Acquisition its
recommendation of the Tender Offer and the Merger or resolved to do so.
A-1
<PAGE>
EXHIBIT (C)(2)
IRREVOCABLE PROXY
This irrevocable proxy (the "Proxy") is granted as of August 9, 1995.
Whereas, pursuant to an Agreement and Plan of Merger dated of even date
herewith (the "Merger Agreement") among Agrium Inc., a Canadian corporation
("Agrium"), Agrium Acquisition Corporation, a Delaware corporation and wholly-
owned subsidiary of Agrium ("Merger Sub"), and Nu-West Industries, Inc., a
Delaware corporation ("Nu-West"), providing for the merger of Merger Sub with
and into Nu-West (as defined in the Merger Agreement, the "Merger"), Nu-West
will become a wholly-owned subsidiary of Agrium and each share of common
stock, $.01 par value per share, of Nu-West ("Nu-West Common Stock") held by
the undersigned as of the Effective Time (as defined in the Merger Agreement)
of the Merger will be converted into the right to receive $10.50; and
Whereas, to induce Agrium and Merger Sub to enter into the Merger Agreement
and at the request of Agrium, the undersigned has agreed to appoint and
irrevocably grant a proxy to Dale W. Massie, Dorothy E.A. Bower and Ian Noble,
as designated employees of Agrium, with respect to all Nu-West Common Stock
beneficially owned by the undersigned on the date hereof and all voting
securities of Nu-West acquired from time to time by the undersigned after the
date hereof (such Nu-West Common Stock and securities being referred to herein
as the "Covered Shares");
Now, Therefore, in consideration of the foregoing, the undersigned hereby
agrees as follows:
1. Grant of Proxy. The undersigned hereby revokes all prior proxies with
respect to the Covered Shares and appoints Dale W. Massie, Dorothy E. A. Bower
and Ian Noble, in their respective capacities as employees of Agrium, and each
of them individually, as the undersigned's proxy and attorney-in-fact (with
full power of substitution), for and in the name, place and stead of the
undersigned, (i) to call a special meeting of stockholders of Nu-West to
consider the Merger, and (ii) to vote (or, at their discretion, execute a
written consent with respect to) with or without the other, all the Covered
Shares (A) in favor of the Merger and adoption of the Merger Agreement, and
(B) against any business combination proposal or other matter that may
interfere or be inconsistent with the Merger or the Merger Agreement
(including, without limitation, an Acquisition Proposal, as defined in the
Merger Agreement), at any meeting of stockholders of Nu-West (or consent in
lieu thereof) and any adjournment or adjournments thereof.
2. Representations and Warranties. The undersigned hereby represents and
warrants to Agrium as follows: the undersigned has full power and authority to
grant this Proxy, and neither the execution or delivery of this Proxy nor the
performance of the undersigned's obligations hereunder will (A) conflict with
or result in a breach, default or violation of any agreement, proxy, document,
instrument, judgement, decree, order, governmental permit, certificate,
license, law, statute, rule or regulation to which he is a party or to which
the undersigned is subject, (B) result in the creation of any lien, charge or
other encumbrance on any Covered Shares (except for any encumbrance created by
this Proxy) or (C) require the undersigned to obtain the consent of any
private nongovernmental third party. The undersigned further represents and
warrants to Agrium that (i) as of the date hereof, the undersigned is the sole
record and beneficial owner of the number of Covered Shares set forth opposite
the undersigned's name below, free and clear of any lien, charge, proxy (other
than this Proxy) or other encumbrance, and that such Covered Shares constitute
all of the voting securities of Nu-West owned beneficially or of record by the
undersigned, and (ii) except as expressly provided in this Proxy, no consent,
action, approval or authorization of, or registration, declaration or filing
with, any governmental department, commission, agency or other instrumentality
or any other person or entity is required to authorize, or is otherwise
required in connection with, the execution and delivery of this Proxy or the
undersigned's performance of the terms of this Proxy or the validity or
enforceability of this Proxy (other than any required amendment to any
Statement on Schedule 13D of the undersigned caused by the existence and terms
of this Proxy).
3. Proxy Irrevocable. The undersigned agrees and acknowledges that, as a
stockholder of Nu-West, he will receive substantial consideration in
connection with the Merger, and that this Proxy is given in consideration
<PAGE>
of, and as an inducement to, the execution of the Merger Agreement by Agrium
and Agrium Sub, and that the proxy granted hereby is and shall be deemed to be
coupled with an interest and is not revocable, and shall not be terminated
(other than in accordance with Section 5 hereof) by any act of the undersigned
or by operation of law, whether by the death or incapacity of the undersigned
or by the occurrence of any other event or events whatsoever. The undersigned
further agrees that he will not grant any proxy or proxies inconsistent with
this Proxy. If requested by Agrium, the undersigned agrees that he will enter
into a voting agreement or similar arrangement with Agrium or its designee
relating to the Covered Shares, which agreement or arrangement will commit the
undersigned to vote the Covered Shares as specified in Section 1 hereof and
will contain substantially similar representations, restrictions on transfer
or disposition and termination provisions as this Proxy.
4. Transferability of Covered Shares. The undersigned will not sell or
otherwise transfer or dispose of any of the Covered Shares unless the
following conditions are met:
(a) prior written notice of this Proxy is given to the transferee and the
transferee agrees that the shares transferred will remain subject to this
Proxy and, in connection therewith, executes and delivers to Agrium a proxy
covering such shares in form and substance satisfactory to Agrium, which
proxy shall be in substantially the form of this Proxy; or
(b) the transfer is to Agrium or its designee pursuant to the tender
offer described in the Merger Agreement, it being agreed that the
undersigned will, subject to Section 5, tender the Covered Shares in such
tender offer.
5. Termination of Proxy. This Proxy (including the obligation referred to in
Section 4 to tender the Covered Shares) shall terminate automatically on the
earliest to occur of (i) the Effective Time, (ii) termination of the Merger
Agreement pursuant to Section 9.1 thereof, or (iii) amendment of the Merger
Agreement with respect to the price per share to be received upon the merger
tender.
6. Miscellaneous. The undersigned understands and agrees that Agrium is
relying on this Proxy and may enforce its terms against the undersigned, and
that irreparable damage would occur in the event of breach of any provision of
the Proxy. The undersigned agrees that, in the event of such breach, Agrium
shall be entitled to specific performance of the terms hereof, in addition to
any other remedies that may be available at law or in equity. This Proxy shall
be governed by, and construed in accordance with, the laws of the State of
Delaware, regardless of the laws that might otherwise govern under applicable
principles of conflicts of law.
In Witness Whereof, the undersigned has executed this Proxy as of the date
first set forth above.
Number of Covered Shares: 217,999 WPG Corporate Development Associates
------- III (Overseas), Ltd.
/s/ Robin Jarvis
By: _________________________________
ROBIN JARVIS DIRECTOR
2
<PAGE>
EXHIBIT (C)(3)
IRREVOCABLE PROXY
This irrevocable proxy (the "Proxy") is granted as of August 9, 1995.
Whereas, pursuant to an Agreement and Plan of Merger dated of even date
herewith (the "Merger Agreement") among Agrium Inc., a Canadian corporation
("Agrium"), Agrium Acquisition Corporation, a Delaware corporation and wholly-
owned subsidiary of Agrium ("Merger Sub"), and Nu-West Industries, Inc., a
Delaware corporation ("Nu-West"), providing for the merger of Merger Sub with
and into Nu-West (as defined in the Merger Agreement, the "Merger"), Nu-West
will become a wholly-owned subsidiary of Agrium and each share of common
stock, $.01 par value per share, of Nu-West ("Nu-West Common Stock") held by
the undersigned as of the Effective Time (as defined in the Merger Agreement)
of the Merger will be converted into the right to receive $10.50; and
Whereas, to induce Agrium and Merger Sub to enter into the Merger Agreement
and at the request of Agrium, the undersigned has agreed to appoint and
irrevocably grant a proxy to Dale W. Massie, Dorothy E.A. Bower and Ian Noble,
as designated employees of Agrium, with respect to all Nu-West Common Stock
beneficially owned by the undersigned on the date hereof and all voting
securities of Nu-West acquired from time to time by the undersigned after the
date hereof (such Nu-West Common Stock and securities being referred to herein
as the "Covered Shares");
Now, Therefore, in consideration of the foregoing, the undersigned hereby
agrees as follows:
1. Grant of Proxy. The undersigned hereby revokes all prior proxies with
respect to the Covered Shares and appoints Dale W. Massie, Dorothy E. A. Bower
and Ian Noble, in their respective capacities as employees of Agrium, and each
of them individually, as the undersigned's proxy and attorney-in-fact (with
full power of substitution), for and in the name, place and stead of the
undersigned, (i) to call a special meeting of stockholders of Nu-West to
consider the Merger, and (ii) to vote (or, at their discretion, execute a
written consent with respect to) with or without the other, all the Covered
Shares (A) in favor of the Merger and adoption of the Merger Agreement, and
(B) against any business combination proposal or other matter that may
interfere or be inconsistent with the Merger or the Merger Agreement
(including, without limitation, an Acquisition Proposal, as defined in the
Merger Agreement), at any meeting of stockholders of Nu-West (or consent in
lieu thereof) and any adjournment or adjournments thereof.
2. Representations and Warranties. The undersigned hereby represents and
warrants to Agrium as follows: the undersigned has full power and authority to
grant this Proxy, and neither the execution or delivery of this Proxy nor the
performance of the undersigned's obligations hereunder will (A) conflict with
or result in a breach, default or violation of any agreement, proxy, document,
instrument, judgement, decree, order, governmental permit, certificate,
license, law, statute, rule or regulation to which he is a party or to which
the undersigned is subject, (B) result in the creation of any lien, charge or
other encumbrance on any Covered Shares (except for any encumbrance created by
this Proxy) or (C) require the undersigned to obtain the consent of any
private nongovernmental third party. The undersigned further represents and
warrants to Agrium that (i) as of the date hereof, the undersigned is the sole
record and beneficial owner of the number of Covered Shares set forth opposite
the undersigned's name below, free and clear of any lien, charge, proxy (other
than this Proxy) or other encumbrance, and that such Covered Shares constitute
all of the voting securities of Nu-West owned beneficially or of record by the
undersigned, and (ii) except as expressly provided in this Proxy, no consent,
action, approval or authorization of, or registration, declaration or filing
with, any governmental department, commission, agency or other instrumentality
or any other person or entity is required to authorize, or is otherwise
required in connection with, the execution and delivery of this Proxy or the
undersigned's performance of the terms of this Proxy or the validity or
enforceability of this Proxy (other than any required amendment to any
Statement on Schedule 13D of the undersigned caused by the existence and terms
of this Proxy).
3. Proxy Irrevocable. The undersigned agrees and acknowledges that, as a
stockholder of Nu-West, he will receive substantial consideration in
connection with the Merger, and that this Proxy is given in consideration
<PAGE>
of, and as an inducement to, the execution of the Merger Agreement by Agrium
and Agrium Sub, and that the proxy granted hereby is and shall be deemed to be
coupled with an interest and is not revocable, and shall not be terminated
(other than in accordance with Section 5 hereof) by any act of the undersigned
or by operation of law, whether by the death or incapacity of the undersigned
or by the occurrence of any other event or events whatsoever. The undersigned
further agrees that he will not grant any proxy or proxies inconsistent with
this Proxy. If requested by Agrium, the undersigned agrees that he will enter
into a voting agreement or similar arrangement with Agrium or its designee
relating to the Covered Shares, which agreement or arrangement will commit the
undersigned to vote the Covered Shares as specified in Section 1 hereof and
will contain substantially similar representations, restrictions on transfer
or disposition and termination provisions as this Proxy.
4. Transferability of Covered Shares. The undersigned will not sell or
otherwise transfer or dispose of any of the Covered Shares unless the
following conditions are met:
(a) prior written notice of this Proxy is given to the transferee and the
transferee agrees that the shares transferred will remain subject to this
Proxy and, in connection therewith, executes and delivers to Agrium a proxy
covering such shares in form and substance satisfactory to Agrium, which
proxy shall be in substantially the form of this Proxy; or
(b) the transfer is to Agrium or its designee pursuant to the tender
offer described in the Merger Agreement, it being agreed that the
undersigned will, subject to Section 5, tender the Covered Shares in such
tender offer.
5. Termination of Proxy. This Proxy (including the obligation referred to in
Section 4 to tender the Covered Shares) shall terminate automatically on the
earliest to occur of (i) the Effective Time, (ii) termination of the Merger
Agreement pursuant to Section 9.1 thereof, or (iii) amendment of the Merger
Agreement with respect to the price per share to be received upon the merger
tender.
6. Miscellaneous. The undersigned understands and agrees that Agrium is
relying on this Proxy and may enforce its terms against the undersigned, and
that irreparable damage would occur in the event of breach of any provision of
the Proxy. The undersigned agrees that, in the event of such breach, Agrium
shall be entitled to specific performance of the terms hereof, in addition to
any other remedies that may be available at law or in equity. This Proxy shall
be governed by, and construed in accordance with, the laws of the State of
Delaware, regardless of the laws that might otherwise govern under applicable
principles of conflicts of law.
In Witness Whereof, the undersigned has executed this Proxy as of the date
first set forth above.
Number of Covered Shares: 880,563 Weiss, Peck & Greer Venture
------- Associates, L.P. Liquidating Trust
U/T/A dated December 30, 1994
By: Weiss, Peck & Greer, L.L.C.
/s/ Wesley W. Lang, Jr.
By: _________________________________
WESLEY W. LANG, JR.
ATTORNEY-IN-FACT
2
<PAGE>
EXHIBIT (C)(4)
IRREVOCABLE PROXY
This irrevocable proxy (the "Proxy") is granted as of August 9, 1995.
Whereas, pursuant to an Agreement and Plan of Merger dated of even date
herewith (the "Merger Agreement") among Agrium Inc., a Canadian corporation
("Agrium"), Agrium Acquisition Corporation, a Delaware corporation and wholly-
owned subsidiary of Agrium ("Merger Sub"), and Nu-West Industries, Inc., a
Delaware corporation ("Nu-West"), providing for the merger of Merger Sub with
and into Nu-West (as defined in the Merger Agreement, the "Merger"), Nu-West
will become a wholly-owned subsidiary of Agrium and each share of common
stock, $.01 par value per share, of Nu-West ("Nu-West Common Stock") held by
the undersigned as of the Effective Time (as defined in the Merger Agreement)
of the Merger will be converted into the right to receive $10.50; and
Whereas, to induce Agrium and Merger Sub to enter into the Merger Agreement
and at the request of Agrium, the undersigned has agreed to appoint and
irrevocably grant a proxy to Dale W. Massie, Dorothy E.A. Bower and Ian Noble,
as designated employees of Agrium, with respect to all Nu-West Common Stock
beneficially owned by the undersigned on the date hereof and all voting
securities of Nu-West acquired from time to time by the undersigned after the
date hereof (such Nu-West Common Stock and securities being referred to herein
as the "Covered Shares");
Now, Therefore, in consideration of the foregoing, the undersigned hereby
agrees as follows:
1. Grant of Proxy. The undersigned hereby revokes all prior proxies with
respect to the Covered Shares and appoints Dale W. Massie, Dorothy E. A. Bower
and Ian Noble, in their respective capacities as employees of Agrium, and each
of them individually, as the undersigned's proxy and attorney-in-fact (with
full power of substitution), for and in the name, place and stead of the
undersigned, (i) to call a special meeting of stockholders of Nu-West to
consider the Merger, and (ii) to vote (or, at their discretion, execute a
written consent with respect to) with or without the other, all the Covered
Shares (A) in favor of the Merger and adoption of the Merger Agreement, and
(B) against any business combination proposal or other matter that may
interfere or be inconsistent with the Merger or the Merger Agreement
(including, without limitation, an Acquisition Proposal, as defined in the
Merger Agreement), at any meeting of stockholders of Nu-West (or consent in
lieu thereof) and any adjournment or adjournments thereof.
2. Representations and Warranties. The undersigned hereby represents and
warrants to Agrium as follows: the undersigned has full power and authority to
grant this Proxy, and neither the execution or delivery of this Proxy nor the
performance of the undersigned's obligations hereunder will (A) conflict with
or result in a breach, default or violation of any agreement, proxy, document,
instrument, judgement, decree, order, governmental permit, certificate,
license, law, statute, rule or regulation to which he is a party or to which
the undersigned is subject, (B) result in the creation of any lien, charge or
other encumbrance on any Covered Shares (except for any encumbrance created by
this Proxy) or (C) require the undersigned to obtain the consent of any
private nongovernmental third party. The undersigned further represents and
warrants to Agrium that (i) as of the date hereof, the undersigned is the sole
record and beneficial owner of the number of Covered Shares set forth opposite
the undersigned's name below, free and clear of any lien, charge, proxy (other
than this Proxy) or other encumbrance, and that such Covered Shares constitute
all of the voting securities of Nu-West owned beneficially or of record by the
undersigned, and (ii) except as expressly provided in this Proxy, no consent,
action, approval or authorization of, or registration, declaration or filing
with, any governmental department, commission, agency or other instrumentality
or any other person or entity is required to authorize, or is otherwise
required in connection with, the execution and delivery of this Proxy or the
undersigned's performance of the terms of this Proxy or the validity or
enforceability of this Proxy (other than any required amendment to any
Statement on Schedule 13D of the undersigned caused by the existence and terms
of this Proxy).
3. Proxy Irrevocable. The undersigned agrees and acknowledges that, as a
stockholder of Nu-West, he will receive substantial consideration in
connection with the Merger, and that this Proxy is given in consideration
<PAGE>
of, and as an inducement to, the execution of the Merger Agreement by Agrium
and Agrium Sub, and that the proxy granted hereby is and shall be deemed to be
coupled with an interest and is not revocable, and shall not be terminated
(other than in accordance with Section 5 hereof) by any act of the undersigned
or by operation of law, whether by the death or incapacity of the undersigned
or by the occurrence of any other event or events whatsoever. The undersigned
further agrees that he will not grant any proxy or proxies inconsistent with
this Proxy. If requested by Agrium, the undersigned agrees that he will enter
into a voting agreement or similar arrangement with Agrium or its designee
relating to the Covered Shares, which agreement or arrangement will commit the
undersigned to vote the Covered Shares as specified in Section 1 hereof and
will contain substantially similar representations, restrictions on transfer
or disposition and termination provisions as this Proxy.
4. Transferability of Covered Shares. The undersigned will not sell or
otherwise transfer or dispose of any of the Covered Shares unless the
following conditions are met:
(a) prior written notice of this Proxy is given to the transferee and the
transferee agrees that the shares transferred will remain subject to this
Proxy and, in connection therewith, executes and delivers to Agrium a proxy
covering such shares in form and substance satisfactory to Agrium, which
proxy shall be in substantially the form of this Proxy; or
(b) the transfer is to Agrium or its designee pursuant to the tender
offer described in the Merger Agreement, it being agreed that the
undersigned will, subject to Section 5, tender the Covered Shares in such
tender offer.
5. Termination of Proxy. This Proxy (including the obligation referred to in
Section 4 to tender the Covered Shares) shall terminate automatically on the
earliest to occur of (i) the Effective Time, (ii) termination of the Merger
Agreement pursuant to Section 9.1 thereof, or (iii) amendment of the Merger
Agreement with respect to the price per share to be received upon the merger
tender.
6. Miscellaneous. The undersigned understands and agrees that Agrium is
relying on this Proxy and may enforce its terms against the undersigned, and
that irreparable damage would occur in the event of breach of any provision of
the Proxy. The undersigned agrees that, in the event of such breach, Agrium
shall be entitled to specific performance of the terms hereof, in addition to
any other remedies that may be available at law or in equity. This Proxy shall
be governed by, and construed in accordance with, the laws of the State of
Delaware, regardless of the laws that might otherwise govern under applicable
principles of conflicts of law.
In Witness Whereof, the undersigned has executed this Proxy as of the date
first set forth above.
Number of Covered Shares: 1,027,714 WPG Corporate Development Associates
--------- III, L.P.
By: WPG CDA III, L.P.
/s/ Wesley W. Lang, Jr.
By: _________________________________
WESLEY W. LANG, JR.
2
<PAGE>
EXHIBIT (C)(5)
IRREVOCABLE PROXY
This irrevocable proxy (the "Proxy") is granted as of August 9, 1995.
Whereas, pursuant to an Agreement and Plan of Merger dated of even date
herewith (the "Merger Agreement") among Agrium Inc., a Canadian corporation
("Agrium"), Agrium Acquisition Corporation, a Delaware corporation and wholly-
owned subsidiary of Agrium ("Merger Sub"), and Nu-West Industries, Inc., a
Delaware corporation ("Nu-West"), providing for the merger of Merger Sub with
and into Nu-West (as defined in the Merger Agreement, the "Merger"), Nu-West
will become a wholly-owned subsidiary of Agrium and each share of common
stock, $.01 par value per share, of Nu-West ("Nu-West Common Stock") held by
the undersigned as of the Effective Time (as defined in the Merger Agreement)
of the Merger will be converted into the right to receive $10.50; and
Whereas, to induce Agrium and Merger Sub to enter into the Merger Agreement
and at the request of Agrium, the undersigned has agreed to appoint and
irrevocably grant a proxy to Dale W. Massie, Dorothy E.A. Bower and Ian Noble,
as designated employees of Agrium, with respect to all Nu-West Common Stock
beneficially owned by the undersigned on the date hereof and all voting
securities of Nu-West acquired from time to time by the undersigned after the
date hereof (such Nu-West Common Stock and securities being referred to herein
as the "Covered Shares");
Now, Therefore, in consideration of the foregoing, the undersigned hereby
agrees as follows:
1. Grant of Proxy. The undersigned hereby revokes all prior proxies with
respect to the Covered Shares and appoints Dale W. Massie, Dorothy E. A. Bower
and Ian Noble, in their respective capacities as employees of Agrium, and each
of them individually, as the undersigned's proxy and attorney-in-fact (with
full power of substitution), for and in the name, place and stead of the
undersigned, (i) to call a special meeting of stockholders of Nu-West to
consider the Merger, and (ii) to vote (or, at their discretion, execute a
written consent with respect to) with or without the other, all the Covered
Shares (A) in favor of the Merger and adoption of the Merger Agreement, and
(B) against any business combination proposal or other matter that may
interfere or be inconsistent with the Merger or the Merger Agreement
(including, without limitation, an Acquisition Proposal, as defined in the
Merger Agreement), at any meeting of stockholders of Nu-West (or consent in
lieu thereof) and any adjournment or adjournments thereof.
2. Representations and Warranties. The undersigned hereby represents and
warrants to Agrium as follows: the undersigned has full power and authority to
grant this Proxy, and neither the execution or delivery of this Proxy nor the
performance of the undersigned's obligations hereunder will (A) conflict with
or result in a breach, default or violation of any agreement, proxy, document,
instrument, judgement, decree, order, governmental permit, certificate,
license, law, statute, rule or regulation to which he is a party or to which
the undersigned is subject, (B) result in the creation of any lien, charge or
other encumbrance on any Covered Shares (except for any encumbrance created by
this Proxy) or (C) require the undersigned to obtain the consent of any
private nongovernmental third party. The undersigned further represents and
warrants to Agrium that (i) as of the date hereof, the undersigned is the sole
record and beneficial owner of the number of Covered Shares set forth opposite
the undersigned's name below, free and clear of any lien, charge, proxy (other
than this Proxy) or other encumbrance, and that such Covered Shares constitute
all of the voting securities of Nu-West owned beneficially or of record by the
undersigned, and (ii) except as expressly provided in this Proxy, no consent,
action, approval or authorization of, or registration, declaration or filing
with, any governmental department, commission, agency or other instrumentality
or any other person or entity is required to authorize, or is otherwise
required in connection with, the execution and delivery of this Proxy or the
undersigned's performance of the terms of this Proxy or the validity or
enforceability of this Proxy (other than any required amendment to any
Statement on Schedule 13D of the undersigned caused by the existence and terms
of this Proxy).
3. Proxy Irrevocable. The undersigned agrees and acknowledges that, as a
stockholder of Nu-West, he will receive substantial consideration in
connection with the Merger, and that this Proxy is given in consideration
<PAGE>
of, and as an inducement to, the execution of the Merger Agreement by Agrium
and Agrium Sub, and that the proxy granted hereby is and shall be deemed to be
coupled with an interest and is not revocable, and shall not be terminated
(other than in accordance with Section 5 hereof) by any act of the undersigned
or by operation of law, whether by the death or incapacity of the undersigned
or by the occurrence of any other event or events whatsoever. The undersigned
further agrees that he will not grant any proxy or proxies inconsistent with
this Proxy. If requested by Agrium, the undersigned agrees that he will enter
into a voting agreement or similar arrangement with Agrium or its designee
relating to the Covered Shares, which agreement or arrangement will commit the
undersigned to vote the Covered Shares as specified in Section 1 hereof and
will contain substantially similar representations, restrictions on transfer
or disposition and termination provisions as this Proxy.
4. Transferability of Covered Shares. The undersigned will not sell or
otherwise transfer or dispose of any of the Covered Shares unless the
following conditions are met:
(a) prior written notice of this Proxy is given to the transferee and the
transferee agrees that the shares transferred will remain subject to this
Proxy and, in connection therewith, executes and delivers to Agrium a proxy
covering such shares in form and substance satisfactory to Agrium, which
proxy shall be in substantially the form of this Proxy; or
(b) the transfer is to Agrium or its designee pursuant to the tender
offer described in the Merger Agreement, it being agreed that the
undersigned will, subject to Section 5, tender the Covered Shares in such
tender offer.
5. Termination of Proxy. This Proxy (including the obligation referred to in
Section 4 to tender the Covered Shares) shall terminate automatically on the
earliest to occur of (i) the Effective Time, (ii) termination of the Merger
Agreement pursuant to Section 9.1 thereof, or (iii) amendment of the Merger
Agreement with respect to the price per share to be received upon the merger
tender.
6. Miscellaneous. The undersigned understands and agrees that Agrium is
relying on this Proxy and may enforce its terms against the undersigned, and
that irreparable damage would occur in the event of breach of any provision of
the Proxy. The undersigned agrees that, in the event of such breach, Agrium
shall be entitled to specific performance of the terms hereof, in addition to
any other remedies that may be available at law or in equity. This Proxy shall
be governed by, and construed in accordance with, the laws of the State of
Delaware, regardless of the laws that might otherwise govern under applicable
principles of conflicts of law.
In Witness Whereof, the undersigned has executed this Proxy as of the date
first set forth above.
Number of Covered Shares: 2,488,005 WPG Corporate Development Associates
--------- II, L.P. Liquidating Trust U/T/A,
dated December 31, 1993
By: Weiss, Peck & Greer, L.L.C., the
sole trustee
/s/ Wesley W. Lang, Jr.
By: _________________________________
WESLEY W. LANG, JR. PRINCIPAL
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