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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
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Date of report (Date of earliest event reported): October 20, 1998
RUBBERMAID INCORPORATED
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(Exact name of registrant as specified in charter)
Ohio 1-4188 34-0628700
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(State or other jurisdiction (Commission File No.) (IRS Employer
of incorporation) Identification No.)
1147 Akron Road, Wooster, Ohio 44691-6000
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(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code: (330) 264-6464
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N/A
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(Former Name or Former Address, if Changed Since Last Report)
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ITEM 5. OTHER EVENTS
On October 20, 1998, Rubbermaid Incorporated, an Ohio corporation (the
"Company"), Newell Co., a Delaware corporation ("Newell"), and Rooster Company,
an Ohio corporation ("Merger Sub"), executed an Agreement and Plan of Merger
(the "Merger Agreement"), pursuant to which Merger Sub, a newly formed
acquisition subsidiary of Newell, will merge with and into the Company, with the
Company as the surviving corporation (the "Merger"). Pursuant to the Merger
Agreement, upon effectiveness of the Merger, each outstanding share of the
common stock, par value $1.00, of the Company will be converted into the right
to receive 0.7883 shares of common stock, $1.00 par value, of Newell.
Consummation of the Merger is subject to satisfaction or waiver by the parties
of certain conditions, including receipt of regulatory approvals and approvals
by the stockholders of the Company and Newell.
On October 21, 1998, the Company and Newell issued a joint press
release announcing the execution of the Merger Agreement. The Merger Agreement
and the press release are filed as exhibits hereto and are incorporated herein
by reference.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
(c) Exhibits.
2.1 Agreement and Plan of Merger, dated as of October
20, 1998, by and between Newell Co., Rooster
Company and Rubbermaid Incorporated.
99.1 Text of Joint Press Release, dated October 21, 1998.
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
RUBBERMAID INCORPORATED
By: /s/ James A. Morgan
------------------------------------------
Name: James A. Morgan
Title: Senior Vice President,
General Counsel and Secretary
Dated: October 21, 1998
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EXHIBIT INDEX
Rubbermaid Incorporated
Current Report on Form 8-K
Dated October 21, 1998
Exhibit No. Title
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2.1 Agreement and Plan of Merger, dated as of October
20, 1998, by and between Newell Co., Rooster
Company and Rubbermaid Incorporated.
99.1 Text of Joint Press Release, dated October 21, 1998.
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Exhibit 2.1
Pursuant to Regulation S-K, Item 601(b)(2), a summary table of contents for the
Schedules to the Merger Agreement is attached hereto. The Company agrees to
furnish a copy of each omitted Schedule to the Commission upon request.
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EXECUTION COPY
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AGREEMENT AND PLAN OF MERGER
by and between
NEWELL CO.,
ROOSTER COMPANY
and
RUBBERMAID INCORPORATED
Dated as of October 20, 1998
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TABLE OF CONTENTS
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PAGE
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ARTICLE 1
THE MERGER
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Section 1.1 The Merger..............................................................................1
Section 1.2 Closing.................................................................................2
Section 1.3 Effective Time..........................................................................2
Section 1.4 Effects of the Merger...................................................................2
Section 1.5 Articles of Incorporation and Code of Regulations.......................................2
Section 1.6 Directors and Officers of the Surviving Corporation.....................................2
ARTICLE 2
EFFECT OF THE MERGER ON THE CAPITAL STOCK
OF THE CONSTITUENT CORPORATIONS;
EXCHANGE OF CERTIFICATES
Section 2.1 Effect on Capital Stock.................................................................3
(a) Cancellation of Treasury Stock and Company-Owned Stock.............................3
(b) Conversion of Company Common Stock.................................................3
(c) Capital Stock of Merger Sub........................................................3
Section 2.2 Exchange of Certificates................................................................3
(a) Exchange Agent.....................................................................3
(b) Exchange Procedures................................................................4
(c) Distributions with Respect to Unexchanged Shares...................................4
(d) No Further Ownership Rights in Company Common Stock................................5
(e) No Fractional Shares...............................................................5
(f) Termination of Exchange Fund.......................................................6
(g) No Liability.......................................................................6
(h) Investment of Exchange Fund........................................................6
(i) Lost Certificates..................................................................6
Section 2.3 Certain Adjustments.....................................................................6
Section 2.4 Dissenters' Rights......................................................................7
Section 2.5 Further Assurances......................................................................7
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<TABLE>
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
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Section 3.1 Representations and Warranties of the Company...........................................7
(a) Organization, Standing and Corporate Power.........................................7
(b) Subsidiaries.......................................................................8
(c) Capital Structure..................................................................8
(d) Authority; Noncontravention........................................................9
(e) Reports; Undisclosed Liabilities..................................................10
(f) Information Supplied..............................................................11
(g) Absence of Certain Changes or Events..............................................11
(h) Compliance with Applicable Laws; Litigation.......................................12
(i) Absence of Changes in Benefit Plans...............................................12
(j) ERISA Compliance..................................................................12
(k) Taxes.............................................................................15
(l) Voting Requirements...............................................................16
(m) State Takeover Statutes...........................................................16
(n) Accounting Matters................................................................16
(o) Brokers...........................................................................16
(p) Ownership of Acquiror Capital Stock...............................................16
(q) Certain Contracts.................................................................16
(r) The Company Rights Agreement......................................................17
(s) Opinion of Financial Advisor......................................................17
(t) Environmental Matters.............................................................18
(u) Intellectual Property.............................................................19
Section 3.2 Representations and Warranties of Acquiror and Merger Sub..............................19
(a) Capitalization of Merger Sub......................................................20
(b) Organization, Standing and Corporate Power........................................20
(c) Subsidiaries......................................................................20
(d) Capital Structure.................................................................20
(e) Authority; Noncontravention.......................................................22
(f) Reports; Undisclosed Liabilities..................................................23
(g) Information Supplied..............................................................23
(h) Absence of Certain Changes or Events..............................................24
(i) Compliance with Applicable Laws; Litigation.......................................24
(j) Absence of Changes in Benefit Plans...............................................25
(k) ERISA Compliance..................................................................25
(l) Taxes.............................................................................27
(m) Voting Requirements...............................................................28
(n) State Takeover Statutes...........................................................28
(o) Accounting Matters................................................................28
(p) Brokers...........................................................................28
(q) Ownership of the Company Capital Stock............................................28
(r) Certain Contracts.................................................................29
(s) Opinion of Financial Advisor......................................................29
(t) Environmental Matters.............................................................29
(u) Intellectual Property.............................................................30
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<TABLE>
ARTICLE 4
COVENANTS RELATING TO CONDUCT OF BUSINESS
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Section 4.1 Conduct of Business....................................................................31
(a) Conduct of Business by the Company................................................31
(b) Conduct of Business by Acquiror...................................................35
(c) Coordination of Dividends.........................................................35
(d) Other Actions.....................................................................35
(e) Advice of Changes.................................................................35
(f) Control of Other Party's Business.................................................35
Section 4.2 No Solicitation by the Company....................................................35
Section 4.3 No Solicitation by Acquiror.......................................................37
ARTICLE 5
ADDITIONAL AGREEMENTS
Section 5.1 Preparation of the Form S-4 and the Joint Proxy Statement;
Stockholders Meetings..........................................................39
Section 5.2 Letters of the Company's Accountants..............................................41
Section 5.3 Letters of Acquiror's Accountants.................................................41
Section 5.4 Access to Information; Confidentiality............................................42
Section 5.5 Reasonable Best Efforts; Cooperation..............................................42
Section 5.6 Stock Options, Restricted Stock and Employment Agreements.........................43
Section 5.7 Indemnification...................................................................45
Section 5.8 Fees and Expenses.................................................................46
Section 5.9 Public Announcements..............................................................47
Section 5.10 Affiliates........................................................................48
Section 5.11 NYSE Listing......................................................................48
Section 5.12 Stockholder Litigation............................................................48
Section 5.13 Tax Treatment.....................................................................48
Section 5.14 Pooling of Interests..............................................................49
Section 5.15 Standstill Agreements; Confidentiality Agreements.................................49
Section 5.16 Employee Benefit Plans............................................................49
Section 5.17 Post-Merger Operations............................................................50
Section 5.18 Acquiror Corporate Office.........................................................50
Section 5.19 Acquiror Board of Directors; Acquiror Officers....................................50
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<TABLE>
ARTICLE 6
CONDITIONS PRECEDENT
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Section 6.1 Conditions to Each Party's Obligation to Effect the Merger........................51
(a) Stockholder Approvals.............................................................51
(b) Governmental and Regulatory Approvals.............................................51
(c) No Injunctions or Restraints......................................................51
(d) Form S-4..........................................................................52
(e) NYSE Listing......................................................................52
(f) Pooling...........................................................................52
(g) Dissenting Shares.................................................................52
(h) HSR Act...........................................................................52
Section 6.2 Conditions to Obligations of Acquiror.............................................52
(a) Representations and Warranties....................................................52
(b) Performance of Obligations of the Company.........................................52
(c) Tax Opinion.......................................................................52
(d) No Material Adverse Change........................................................52
Section 6.3 Conditions to Obligations of the Company..........................................53
(a) Representations and Warranties....................................................53
(b) Performance of Obligations of Acquiror............................................53
(c) Tax Opinion.......................................................................53
(d) No Material Adverse Change........................................................53
Section 6.4 Frustration of Closing Conditions.................................................53
ARTICLE 7
TERMINATION, AMENDMENT AND WAIVER
Section 7.1 Termination.......................................................................53
Section 7.2 Effect of Termination.............................................................54
Section 7.3 Amendment.........................................................................55
Section 7.4 Extension; Waiver.................................................................55
Section 7.5 Procedure for Termination, Amendment, Extension or Waiver.........................55
ARTICLE 8
GENERAL PROVISIONS
Section 8.1 Nonsurvival of Representations and Warranties.....................................55
Section 8.2 Notices...........................................................................55
Section 8.3 Definitions.......................................................................56
Section 8.4 Interpretation....................................................................57
Section 8.5 Counterparts......................................................................57
Section 8.6 Entire Agreement; No Third-Party Beneficiaries....................................57
Section 8.7 Governing Law.....................................................................57
Section 8.8 Assignment........................................................................58
Section 8.9 Consent to Jurisdiction...........................................................58
Section 8.10 Headings..........................................................................58
Section 8.11 Severability......................................................................58
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TABLE OF DEFINED TERMS
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TERM SECTION
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Acquiror...............................................................................................Recitals
Acquiror Acquisition Agreement...........................................................................4.3(b)
Acquiror Authorized Preferred Stock......................................................................3.2(d)
Acquiror Benefit Plans...................................................................................3.2(j)
Acquiror Board..........................................................................................5.19(a)
Acquiror Common Stock....................................................................................2.1(b)
Acquiror Disclosure Schedule................................................................................3.2
Acquiror Employee Stock Options..........................................................................3.2(d)
Acquiror Filed SEC Documents.............................................................................3.2(h)
Acquiror Intellectual Property........................................................................3.2(u)(i)
Acquiror Notice..........................................................................................4.3(a)
Acquiror Permits.........................................................................................3.2(i)
Acquiror Rights Agreement................................................................................3.2(d)
Acquiror SEC Documents...................................................................................3.2(f)
Acquiror Stock Plans.....................................................................................3.2(d)
Acquiror Stockholder Approval............................................................................3.2(m)
Acquiror Stockholder Meeting.............................................................................5.1(c)
Acquiror Superior Proposal...............................................................................4.3(b)
Acquiror Takeover Proposal...............................................................................4.3(a)
Acquiror Termination Fee.................................................................................5.8(c)
Adjusted Option..........................................................................................5.6(a)
Adjustment Event............................................................................................2.3
Affiliate................................................................................................8.3(a)
Agreement.............................................................................................Recitals
Certificates.............................................................................................2.2(b)
Certificate of Merger.......................................................................................1.3
Cleanup..............................................................................................3.1(t)(iv)
Closing.....................................................................................................1.2
Closing Date................................................................................................1.2
Code...................................................................................................Recitals
Company................................................................................................Recitals
Company Acquisition Agreement............................................................................4.2(b)
Company Authorized Preferred Stock.......................................................................3.1(c)
Company Award............................................................................................5.6(b)
Company Benefit Plans....................................................................................3.1(i)
Company Board...........................................................................................5.19(a)
Company Common Stock...................................................................................Recitals
Company Disclosure Schedule.................................................................................3.1
Company Employee Stock Options...........................................................................3.1(c)
Company Filed SEC Documents..............................................................................3.1(g)
Company Intellectual Property.........................................................................3.1(u)(i)
Company Notice...........................................................................................4.2(a)
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<TABLE>
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Company Permits..........................................................................................3.1(h)
Company Rights Agreement.................................................................................3.1(r)
Company SEC Documents....................................................................................3.1(e)
Company Stock Plan.......................................................................................3.1(c)
Company Stockholder Approval............................................................................3.1(l)
Company Stockholders Meeting.............................................................................5.1(b)
Company Superior Proposal................................................................................4.2(b)
Company Takeover Proposal................................................................................4.2(a)
Company Termination Fee..................................................................................5.8(b)
Confidentiality Agreement...................................................................................5.4
Control..................................................................................................8.3(a)
Dissenting Shares........................................................................................2.1(b)
Dissenting Stockholders..................................................................................2.1(b)
Effective Time..............................................................................................1.3
Environmental Claim...................................................................................3.1(t)(v)
Environmental Laws...................................................................................3.1(t)(vi)
ERISA.................................................................................................3.1(j)(i)
ERISA Affiliate.....................................................................................3.1(j)(iii)
Exchange Act.............................................................................................3.1(d)
Exchange Agent...........................................................................................2.2(a)
Exchange Fund............................................................................................2.2(a)
Exchange Ratio...........................................................................................2.1(b)
Foreign Antitrust Laws...................................................................................3.1(d)
Form S-4.................................................................................................3.1(f)
Governmental Entity......................................................................................3.1(d)
Hazardous Materials.................................................................................3.1(t)(vii)
HSR Act..................................................................................................3.1(d)
Incentive Compensation..................................................................................5.16(a)
Indemnified Liabilities..................................................................................5.7(a)
Indemnified Party(ies)...................................................................................5.7(a)
Joint Proxy Statement....................................................................................3.1(d)
Knowledge................................................................................................8.3(b)
Liens....................................................................................................3.1(b)
Material(ly).............................................................................................8.3(c)
Material Adverse Change..................................................................................8.3(c)
Material Adverse Effect..................................................................................8.3(c)
Material Company Trademarks...........................................................................3.1(u)(i)
Merger.................................................................................................Recitals
Merger Consideration.....................................................................................2.1(b)
Merger Sub.............................................................................................Recitals
Newell Rubbermaid Inc....................................................................................5.1(c)
NYSE.................................................................................................2.2(e)(ii)
OGCL........................................................................................................1.1
Person...................................................................................................8.3(d)
Pooling Affiliate.......................................................................................5.10(a)
Release............................................................................................3.1(t)(viii)
Restraints...............................................................................................6.1(c)
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<TABLE>
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SEC......................................................................................................3.1(b)
Securities Act...........................................................................................3.1(e)
Subsidiary...............................................................................................8.3(e)
Surviving Corporation.......................................................................................1.1
Takeover Statute.........................................................................................3.1(m)
Tax Certificates.........................................................................................5.5(c)
Taxes................................................................................................3.1(k)(iv)
Trust Documents..........................................................................................3.2(d)
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AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER (this "Agreement"), dated as of
October 20, 1998, among Rubbermaid Incorporated, an Ohio corporation (the
"Company"), Newell Co., a Delaware corporation ("Acquiror"), and Rooster
Company, an Ohio corporation and a wholly owned subsidiary of Acquiror ("Merger
Sub").
W I T N E S S E T H:
WHEREAS, the respective Boards of Directors of the Company,
Acquiror and Merger Sub have approved the merger of Merger Sub with and into the
Company (the "Merger"), upon the terms and subject to the conditions set forth
in this Agreement, whereby each issued and outstanding common share, par value
$1.00 per share, of the Company ("Company Common Stock"), other than Dissenting
Shares (as defined in Section 2.1(b)) and any shares owned by Acquiror, Merger
Sub or any direct or indirect subsidiary of the Company, Acquiror or Merger Sub
or any Company Common Stock held in the treasury of the Company, will be
converted into the right to receive the Merger Consideration (as defined in
Section 2.1(b));
WHEREAS, the respective Boards of Directors of the Company,
Acquiror and Merger Sub have each determined that the Merger and the other
transactions contemplated hereby are consistent with, and in furtherance of,
their respective business strategies and goals;
WHEREAS, the Company, Acquiror and Merger Sub desire to make
certain representations, warranties, covenants and agreements in connection with
the Merger and also to prescribe various conditions to the Merger;
WHEREAS, for federal income tax purposes, it is intended that
the Merger will qualify as a reorganization under the provisions of Section
368(a) of the Internal Revenue Code of 1986, as amended (the "Code"); and
WHEREAS, for financial accounting purposes, it is intended
that the Merger will be accounted for as a pooling-of-interests transaction.
NOW, THEREFORE, in consideration of the representations,
warranties, covenants and agreements contained in this Agreement, the parties
agree as follows:
ARTICLE 1
THE MERGER
Section 1.1 THE MERGER. Upon the terms and subject to the
conditions set forth in this Agreement, and in accordance with the Ohio General
Corporation Law (the "OGCL"), Merger Sub shall be merged with and into the
Company at the Effective Time (as defined in Section 1.3) and the separate
corporate existence of Merger Sub shall thereupon cease.
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Following the Effective Time, the Company shall be the surviving corporation
(the "Surviving Corporation"), and shall be a wholly owned subsidiary of
Acquiror.
Section 1.2 CLOSING. The closing of the Merger (the "Closing")
will take place at 10:00 a.m. on a date to be specified by the parties, which
shall be no later than the second business day after satisfaction or waiver
(subject to applicable law) of the conditions (excluding conditions that, by
their terms, cannot be satisfied until the Closing Date) set forth in Article 6,
unless another time or date is agreed to by the parties hereto. The Closing will
be held at the offices of Jones, Day, Reavis & Pogue, North Point, 901 Lakeside
Avenue, Cleveland, Ohio 44114 or such other location as the parties hereto shall
agree to in writing. The date on which the Closing occurs is hereinafter
referred to as the "Closing Date."
Section 1.3 EFFECTIVE TIME. Subject to the provisions of this
Agreement, as soon as practicable on or after the Closing Date, the parties
shall (i) file a Certificate of Merger (the "Certificate of Merger") in such
form as is required by and executed in accordance with the relevant provisions
of the OGCL and (ii) make all other filings or recordings required under the
OGCL. The Merger shall become effective at such time as the Certificate of
Merger is duly filed with the Secretary of State of the State of Ohio, or at
such subsequent date or time as the Company and Acquiror shall agree and specify
in the Certificate of Merger (the date and time the Merger becomes effective
being the "Effective Time").
Section 1.4 EFFECTS OF THE MERGER. The Merger shall have the
effects set forth in the OGCL. Without limiting the generality of the foregoing,
and subject thereto, at the Effective Time all the property, rights, privileges,
powers and franchises of the Company and Merger Sub shall be vested in the
Surviving Corporation, and all debts, liabilities and duties of the Company and
Merger Sub shall become the debts, liabilities and duties of the Surviving
Corporation.
Section 1.5 ARTICLES OF INCORPORATION AND CODE OF REGULATIONS.
The articles of incorporation and code of regulations of Merger Sub shall be the
articles of incorporation and code of regulations, respectively, of the
Surviving Corporation until thereafter changed or amended as provided therein or
by applicable law.
Section 1.6 DIRECTORS AND OFFICERS OF THE SURVIVING
CORPORATION. The directors of Merger Sub immediately prior to the Effective Time
shall be the directors of the Surviving Corporation and the officers of the
Company immediately prior to the Effective Time shall be the officers of the
Surviving Corporation, in each case, until the earlier of their death,
resignation or removal or until their respective successors are duly elected and
qualified, as the case may be.
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ARTICLE 2
EFFECT OF THE MERGER ON THE CAPITAL STOCK
OF THE CONSTITUENT CORPORATIONS;
EXCHANGE OF CERTIFICATES
Section 2.1 EFFECT ON CAPITAL STOCK. As of the Effective Time,
by virtue of the Merger and without any action on the part of the holder of any
shares of capital stock of the Company or Merger Sub:
(a) CANCELLATION OF TREASURY STOCK AND COMPANY-OWNED STOCK.
Each share of Company Common Stock that is owned by Acquiror, Merger Sub and any
direct or indirect subsidiary of the Company, Acquiror or Merger Sub and any
Company Common Stock held in the treasury of the Company shall automatically be
canceled and retired and shall cease to exist, and no consideration shall be
delivered in exchange therefor.
(b) CONVERSION OF COMPANY COMMON STOCK. Subject to Section
2.2(e), each issued and outstanding share of Company Common Stock (other than
shares to be canceled in accordance with Section 2.1(a) and shares ("Dissenting
Shares") that are owned by stockholders ("Dissenting Stockholders") that have
properly exercised appraisal rights pursuant to Section 1701.85 of the OGCL)
shall be converted into the right to receive 0.7883 (the "Exchange Ratio") fully
paid and nonassessable shares of common stock, par value $1.00 per share (the
"Acquiror Common Stock"), of Acquiror (the "Merger Consideration"). As of the
Effective Time, all such shares of Company Common Stock shall no longer be
outstanding and shall automatically be canceled and retired and shall cease to
exist, and each holder of a certificate representing any such shares of Company
Common Stock shall cease to have any rights with respect thereto, except the
right to receive the Merger Consideration and any cash in lieu of fractional
shares of Acquiror Common Stock to be issued or paid in consideration therefor
upon surrender of such certificate in accordance with Section 2.2, without
interest.
(c) CAPITAL STOCK OF MERGER SUB. At the Effective Time, each
share of common stock, no par value, of Merger Sub issued and outstanding
immediately prior to the Effective Time shall be converted into one share of
common stock of the Surviving Corporation.
Section 2.2 EXCHANGE OF CERTIFICATES.
(a) EXCHANGE AGENT. First Chicago Trust Company of New York,
or such other national bank or trust company as shall be designated by Acquiror
and the Company prior to the Effective Time, shall act as agent of Acquiror for
purposes of, among other things, mailing and receiving transmittal letters and
distributing certificates for Acquiror Common Stock, and cash in lieu of
fractional shares of Acquiror Common Stock, to the Company stockholders (the
"Exchange Agent"). As of the Effective Time, Acquiror and the Exchange Agent
shall enter into an agreement which shall provide that Acquiror shall deposit
with the Exchange Agent as of the Effective Time, for the benefit of the holders
of shares of Company Common Stock, for
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exchange in accordance with this Article 2, through the Exchange Agent,
certificates representing the shares of Acquiror Common Stock (such shares of
Acquiror Common Stock, together with any dividends or distributions with respect
thereto with a record date after the Effective Time, and any cash payable in
lieu of any fractional shares of Acquiror Common Stock being hereinafter
referred to as the "Exchange Fund") issuable pursuant to Section 2.1 in exchange
for outstanding shares of Company Common Stock.
(b) EXCHANGE PROCEDURES. As soon as reasonably practicable
after the Effective Time, the Exchange Agent shall mail to each holder of record
of a certificate or certificates which immediately prior to the Effective Time
represented outstanding shares of Company Common Stock (the "Certificates")
whose shares were converted into the right to receive the Merger Consideration
pursuant to Section 2.1(b), (i) a letter of transmittal (which shall specify
that delivery shall be effected, and risk of loss and title to the Certificates
shall pass, only upon delivery of the Certificates to the Exchange Agent and
shall be in such form and have such other provisions as the Company and Acquiror
may reasonably specify) and (ii) instructions for use in surrendering the
Certificates in exchange for the Merger Consideration. Upon surrender of a
Certificate for cancellation to the Exchange Agent, together with such letter of
transmittal, duly executed, and such other documents as may reasonably be
required by the Exchange Agent, the holder of such Certificate shall be entitled
to receive in exchange therefor a certificate representing that number of whole
shares of Acquiror Common Stock which such holder has the right to receive
pursuant to the provisions of this Article 2, certain dividends or other
distributions, if any, in accordance with Section 2.2(c) and cash in lieu of any
fractional share of Acquiror Common Stock in accordance with Section 2.2(e), and
the Certificate so surrendered shall forthwith be canceled. In the event of a
transfer of ownership of Company Common Stock which is not registered in the
transfer records of the Company, a certificate representing the proper number of
shares of Company Common Stock may be issued to a person other than the person
in whose name the Certificate so surrendered is registered if such Certificate
is properly endorsed or otherwise in proper form for transfer and the person
requesting such issuance pays any transfer or other taxes required by reason of
the issuance of shares of Acquiror Common Stock to a person other than the
registered holder of such Certificate or establishes to the satisfaction of
Acquiror that such tax has been paid or is not applicable. Until surrendered as
contemplated by this Section 2.2, each Certificate shall be deemed at any time
after the Effective Time to represent only the right to receive upon such
surrender the Merger Consideration that the holder thereof has the right to
receive in respect of such Certificate pursuant to the provisions of this
Article 2, certain dividends or other distributions, if any, in accordance with
Section 2.2(c) and cash in lieu of any fractional share of Acquiror Common Stock
in accordance with Section 2.2(e). No interest shall be paid or will accrue on
any cash payable to holders of Certificates pursuant to the provisions of this
Article 2.
(c) DISTRIBUTIONS WITH RESPECT TO UNEXCHANGED SHARES. No
dividends or other distributions with respect to Acquiror Common Stock with a
record date after the Effective Time shall be paid to the holder of any
unsurrendered Certificate with respect to the shares of Acquiror Common Stock
represented thereby, and, in the case of Certificates representing Company
Common Stock, no cash payment in lieu of
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fractional shares shall be paid to any such holder pursuant to Section 2.2(e),
and all such dividends, other distributions and cash in lieu of fractional
shares of Acquiror Common Stock shall be paid by Acquiror to the Exchange Agent
and shall be included in the Exchange Fund, in each case until the surrender of
such Certificate in accordance with this Article 2. Subject to the effect of
applicable escheat or similar laws, following surrender of any such Certificate
there shall be paid to the holder of the certificate representing whole shares
of Acquiror Common Stock issued in exchange therefor, without interest, (i) at
the time of such surrender, the amount of dividends or other distributions with
a record date after the Effective Time theretofore paid with respect to such
whole shares of Acquiror Common Stock and, in the case of Certificates
representing Company Common Stock, the amount of any cash payable in lieu of a
fractional share of Acquiror Common Stock to which such holder is entitled
pursuant to Section 2.2(e) and (ii) at the appropriate payment date, the amount
of dividends or other distributions with a record date after the Effective Time
but prior to such surrender and with a payment date subsequent to such surrender
payable with respect to such whole shares of Acquiror Common Stock.
(d) NO FURTHER OWNERSHIP RIGHTS IN COMPANY COMMON STOCK. All
shares of Acquiror Common Stock issued upon the surrender for exchange of
Certificates in accordance with the terms of this Article 2 (including any cash
paid pursuant to this Article 2) shall be deemed to have been issued (and paid)
in full satisfaction of all rights pertaining to the shares of Company Common
Stock, theretofore represented by such Certificates, subject, however, to
Acquiror's obligation to pay any dividends or make any other distributions with
a record date prior to the Effective Time which may have been declared or made
by the Company on such shares of Company Common Stock which remain unpaid at the
Effective Time, and there shall be no further registration of transfers on the
stock transfer books of the Surviving Corporation of the shares of Company
Common Stock which were outstanding immediately prior to the Effective Time. If,
after the Effective Time, Certificates are presented to the Surviving
Corporation or the Exchange Agent for any reason, they shall be canceled and
exchanged as provided in this Article 2, except as otherwise provided by law.
(e) NO FRACTIONAL SHARES.
(i) No certificates or scrip representing fractional shares of
Acquiror Common Stock shall be issued upon the surrender for exchange
of Certificates, no dividend or distribution of Acquiror shall relate
to such fractional share interests and such fractional share interests
will not entitle the owner thereof to vote or to any rights of a
stockholder of Acquiror.
(ii) Each holder of Company Common Stock entitled to receive a
fractional share of Acquiror Common Stock shall receive in lieu thereof
an amount in cash equal to the product obtained by multiplying (A) the
fractional share interest to which such former holder (after taking
into account all shares of Company Common Stock held at the Effective
Time by such holder) would otherwise be entitled by (B) the closing
price for a share of Acquiror Common Stock as reported on the New York
Stock Exchange, Inc. ("NYSE") Composite Transaction Tape (as reported
in The Wall Street Journal, or, if not reported thereby, any other
authoritative source) on the Closing Date.
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(iii) As soon as practicable after the determination of the
amount of cash, if any, to be paid to holders of Certificates formerly
representing Company Common Stock with respect to any fractional share
interests, the Exchange Agent shall make available such amounts to such
holders of Certificates formerly representing Company Common Stock
subject to and in accordance with the terms of Section 2.2(c).
(f) TERMINATION OF EXCHANGE FUND. Any portion of the Exchange
Fund which remains undistributed to the holders of the Certificates for six
months after the Effective Time shall be delivered to Acquiror, upon demand, and
any holders of the Certificates who have not theretofore complied with this
Article 2 shall thereafter look only to Acquiror for payment of their claim for
Merger Consideration, any dividends or distributions with respect to Acquiror
Common Stock and any cash in lieu of fractional shares of Acquiror Common Stock.
(g) NO LIABILITY. None of Acquiror, the Surviving Corporation
or the Exchange Agent shall be liable to any person in respect of any shares of
Acquiror Common Stock, any dividends or distributions with respect thereto, any
cash in lieu of fractional shares of Acquiror Common Stock or any cash from the
Exchange Fund, in each case, delivered to a public official pursuant to any
applicable abandoned property, escheat or similar law.
(h) INVESTMENT OF EXCHANGE FUND. The Exchange Agent shall
invest any cash included in the Exchange Fund, as directed by Acquiror, on a
daily basis. Any interest and other income resulting from such investments shall
be paid to Acquiror.
(i) LOST CERTIFICATES. If any Certificate shall have been
lost, stolen or destroyed, upon the making of an affidavit of that fact by the
person claiming such Certificate to be lost, stolen or destroyed and, if
required by the Surviving Corporation, the posting by such person of a bond in
such reasonable amount as the Surviving Corporation may direct as indemnity
against any claim that may be made against it with respect to such Certificate,
the Exchange Agent shall issue in exchange for such lost, stolen or destroyed
Certificate the Merger Consideration and, if applicable, any unpaid dividends
and distributions on shares of Acquiror Common Stock deliverable in respect
thereof and any cash in lieu of fractional shares, in each case, due to such
person pursuant to this Agreement.
Section 2.3 CERTAIN ADJUSTMENTS. If after the date hereof and
on or prior to the Effective Time the outstanding shares of Acquiror Common
Stock or Company Common Stock shall be changed into a different number of shares
by reason of any reclassification, recapitalization, split-up, combination or
exchange of shares, or any dividend payable in stock or other securities shall
be declared thereon with a record date within such period, or any similar event
shall occur (any such action, an "Adjustment Event"), the Exchange Ratio shall
be adjusted accordingly to provide to the holders of Company Common Stock the
same economic effect and percentage ownership of Acquiror Common Stock as
contemplated by this Agreement prior to such reclassification, recapitalization,
split-up, combination, exchange or dividend or similar event.
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Section 2.4 DISSENTERS' RIGHTS. No Dissenting Stockholder
shall be entitled to any portion of the Merger Consideration or cash in lieu of
fractional shares thereof or any dividends or other distributions pursuant to
this Article 2 unless and until the holder thereof shall have failed to perfect
or shall have effectively withdrawn or lost such holder's right to dissent from
the Merger under the OGCL, and any Dissenting Shareholder shall be entitled to
receive only the payment provided by Section 1701.85 of the OGCL with respect to
Company Common Stock owned by such Dissenting Stockholder. If any Person who
otherwise would be deemed a Dissenting Stockholder shall have failed to properly
perfect or shall have effectively withdrawn or lost the right to dissent with
respect to any Company Common Stock, such shares of Company Common Stock shall
thereupon be treated as though such Company Common Stock had been converted into
the right to receive the Merger Consideration with respect to such Company
Common Stock as provided in this Article 2. The Company shall give Acquiror (i)
prompt notice of any written demands for appraisal, attempted withdrawals of
such demands and any other instruments served pursuant to applicable law
received by the Company relating to stockholders' rights of appraisal and (ii)
the opportunity to direct all negotiations and proceedings with respect to
demand for appraisal under the OGCL. The Company shall not, except with the
prior written consent of Acquiror, voluntarily make any payment with respect to
any demands for appraisals of Dissenting Shares, offer to settle or settle any
such demands or approve any withdrawal of any such demands.
Section 2.5 FURTHER ASSURANCES. At and after the Effective
Time, the officers and directors of the Surviving Corporation will be authorized
to execute and deliver, in the name and on behalf of the Company or Merger Sub,
any deeds, bills of sale, assignments or assurances and to take and do, in the
name and on behalf of the Company or Merger Sub, any other actions and things to
vest, perfect or confirm of record or otherwise in the Surviving Corporation any
and all right, title and interest in, to and under any of the rights, properties
or assets acquired or to be acquired by the Surviving Corporation as a result
of, or in connection with, the Merger.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
Section 3.1 REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
Except as disclosed in the Company Filed SEC Documents (as defined in Section
3.1(g)) or as set forth on the Disclosure Schedule delivered by the Company to
Acquiror prior to the execution of this Agreement (the "Company Disclosure
Schedule"), the Company hereby represents and warrants to Acquiror and Merger
Sub as follows:
(a) ORGANIZATION, STANDING AND CORPORATE POWER. Each of the
Company and its subsidiaries (as defined in Section 8.3(e)) is a corporation or
other legal entity duly organized, validly existing and in good standing (with
respect to jurisdictions which recognize such concept) under the laws of the
jurisdiction in which it is organized and has the requisite corporate or other
power, as the case may be, and authority to carry on its business as now being
conducted, except, as to subsidiaries, for those jurisdictions where the failure
to be so organized,
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<PAGE> 17
existing or in good standing individually or in the aggregate would not have a
material adverse effect (as defined in Section 8.3(c)) on the Company. Each of
the Company and its subsidiaries is duly qualified or licensed to do business
and is in good standing (with respect to jurisdictions which recognize such
concept) in each jurisdiction in which the nature of its business or the
ownership, leasing or operation of its properties makes such qualification or
licensing necessary, except for those jurisdictions where the failure to be so
qualified or licensed or to be in good standing individually or in the aggregate
would not have a material adverse effect on the Company. The Company has made
available to Acquiror prior to the execution of this Agreement complete and
correct copies of its articles of incorporation and code of regulations, each as
amended to date.
(b) SUBSIDIARIES. Section 3.1(b) of the Company Disclosure
Schedule includes all the subsidiaries of the Company which as of the date of
this Agreement are Significant Subsidiaries (as defined in Rule 1-02 of
Regulation S-X of the Securities and Exchange Commission (the "SEC")). All the
outstanding shares of capital stock of, or other equity interests in, each
Significant Subsidiary (i) have been validly issued and are fully paid and
nonassessable, (ii) are owned directly or indirectly by the Company, free and
clear of all pledges, claims, liens, charges, encumbrances and security
interests of any kind or nature whatsoever (collectively, "Liens") and (iii) are
free of any other restriction (including any restriction on the right to vote,
sell or otherwise dispose of such capital stock or other ownership interests),
except in the case of clauses (ii) and (iii) for any Liens or restrictions that
would not have a material adverse effect on the Company.
(c) CAPITAL STRUCTURE. The authorized capital stock of the
Company consists of (i) 400,000,000 shares of Company Common Stock and (ii)
20,000,000 shares of preferred stock, without par value, of the Company
("Company Authorized Preferred Stock"). At the close of business on September
30, 1998: (i) 149,975,019 shares of Company Common Stock were issued and
outstanding; (ii) 12,702,063 shares of Company Common Stock were held by the
Company in its treasury; (iii) no shares of Company Authorized Preferred Stock
were issued or outstanding; and (iv) 3,210,548 shares of Company Common Stock
were subject to outstanding employee stock options to purchase Company Common
Stock granted under The Amended and Restated 1989 Stock Incentive and Option
Plan (the "Company Stock Plan") at September 30, 1998 (collectively, "Company
Employee Stock Options"). All outstanding shares of capital stock of the Company
are, and all shares which may be issued will be, when issued, duly authorized,
validly issued, fully paid and nonassessable and not subject to preemptive
rights. Except (i) as set forth in this Section 3.1(c), (ii) for changes since
September 30, 1998 resulting from the issuance of shares of Company Common Stock
pursuant to the Company Employee Stock Options, (iii) for outstanding rights
issued pursuant to the Company Rights Agreement, and (iv) as permitted by
Section 4.1(a)(ii), (x) there are not issued, reserved for issuance or
outstanding (A) any shares of capital stock or other voting securities of the
Company, (B) any securities of the Company convertible into or exchangeable or
exercisable for shares of capital stock or voting securities of the Company or
(C) any warrants, calls, options or other rights to acquire from the Company or
any Company subsidiary, and no obligation of the Company or any Company
subsidiary to issue, any capital stock, voting securities or securities
convertible into or exchangeable or exercisable for capital stock or voting
securities of the Company and (y) there
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<PAGE> 18
are no outstanding obligations of the Company or any Company subsidiary to
repurchase, redeem or otherwise acquire any such securities or, other than
agreements entered into with respect to the Company Stock Plan in effect as of
the close of business on September 30, 1998, to issue, deliver or sell, or cause
to be issued, delivered or sold, any such securities. Neither the Company nor
any Company subsidiary is a party to any voting agreement with respect to the
voting of any such securities. There are no outstanding (A) securities of the
Company or any Company subsidiary convertible into or exchangeable or
exercisable for shares of capital stock or other voting securities or ownership
interests in any Company subsidiary, (B) warrants, calls, options or other
rights to acquire from the Company or any Company subsidiary, and no obligation
of the Company or any Company subsidiary to issue, any capital stock, voting
securities or other ownership interests in, or any securities convertible into
or exchangeable or exercisable for any capital stock, voting securities or
ownership interests in, any Company subsidiary or (C) obligations of the Company
or any Company subsidiary to repurchase, redeem or otherwise acquire any such
outstanding securities of Company subsidiaries or to issue, deliver or sell, or
cause to be issued, delivered or sold, any such securities.
(d) AUTHORITY; NONCONTRAVENTION. The Company has all requisite
corporate power and authority to enter into this Agreement and, subject to the
Company Stockholder Approval (as defined in Section 3.1(l)), to consummate the
transactions contemplated by this Agreement. 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
on the part of the Company, subject, in the case of the Merger, to the Company
Stockholder Approval. This Agreement has been duly executed and delivered by the
Company and, assuming the due authorization, execution and delivery by Acquiror
and Merger Sub, constitutes a legal, valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms. The
execution and delivery of this Agreement does not, and the consummation of the
transactions contemplated by this Agreement and compliance with the provisions
of this Agreement will not, conflict with, or result in any violation of, or
default (with or without notice or lapse of time, or both) under, or give rise
to a right of termination, cancellation or acceleration of any obligation or
loss of a benefit under, or result in the creation of any Lien upon any of the
properties or assets of the Company or any of its subsidiaries under, (i) the
articles of incorporation or code of regulations of the Company or the
comparable organizational documents of any of its subsidiaries, (ii) any loan or
credit agreement, note, bond, mortgage, indenture, lease or other agreement,
instrument, permit, concession, franchise, license or similar authorization
applicable to the Company or any of its subsidiaries or their respective
properties or assets or (iii) subject to the governmental filings and other
matters referred to in the following sentence, any judgment, order, decree,
statute, law, ordinance, rule or regulation applicable to the Company or any of
its subsidiaries or their respective properties or assets, other than, in the
case of clauses (ii) and (iii), any such conflicts, violations, defaults,
rights, losses or Liens that individually or in the aggregate would not (x) have
a material adverse effect on the Company or (y) reasonably be expected to
materially impair or delay the ability of the Company to perform its obligations
under this Agreement. No consent, approval, order or authorization of, action by
or in respect of, or registration, declaration or filing with, any federal,
state, local or foreign government, any court, administrative, regulatory or
other governmental agency, commission or authority or any non-
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<PAGE> 19
governmental U.S. or foreign self-regulatory agency, commission or authority or
any arbitral tribunal (each, a "Governmental Entity") is required by the Company
or any of its subsidiaries in connection with the execution and delivery of this
Agreement by the Company or the consummation by the Company of the transactions
contemplated hereby, except for: (1) the filing with the SEC of (A) a proxy
statement relating to the Company Stockholders Meeting (as defined in Section
5.1(b)) (such proxy statement, together with the proxy statement relating to the
Acquiror Stockholders Meeting (as defined in Section 5.1(c)), in each case as
amended or supplemented from time to time, the "Joint Proxy Statement"), and (B)
such reports under Section 13(a), 13(d), 15(d) or 16(a) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), as may be required in
connection with this Agreement and the transactions contemplated hereby; (2) the
filing of the Certificate of Merger with the Secretary of State of the State of
Ohio and such filings with Governmental Entities to satisfy the applicable
requirements of state securities or "blue sky" laws; (3) the filing of a
premerger notification and report form by the Company under the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended ("HSR Act");
(4) such filings, consents, approvals, orders or authorizations required to be
made or obtained pursuant to the laws of any non-U.S. jurisdiction relating to
antitrust matters or competition ("Foreign Antitrust Laws"); and (5) such
consents, approvals, orders or authorizations the failure of which to be made or
obtained individually or in the aggregate would not (x) have a material adverse
effect on the Company or (y) reasonably be expected to materially impair or
delay the ability of Company to perform its obligations under this Agreement.
(e) REPORTS; UNDISCLOSED LIABILITIES. The Company has filed
all required reports, schedules, forms, statements and other documents
(including exhibits and all other information incorporated therein) with the SEC
since January 1, 1995 (the "Company SEC Documents"). As of their respective
dates, the Company SEC Documents complied in all material respects with the
requirements of the Securities Act of 1933, as amended (the "Securities Act"),
or the Exchange Act, as the case may be, and the rules and regulations of the
SEC promulgated thereunder applicable to such Company SEC Documents, and none of
the Company SEC Documents when filed contained any untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. Except to the extent
that information contained in any Company SEC Document has been revised or
superseded by a later filed Company SEC Document, none of the Company SEC
Documents contains any untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading. The financial statements of the Company included in the Company
SEC Documents comply as to form, as of their respective dates of filing with the
SEC, in all material respects with applicable accounting requirements and the
published rules and regulations of the SEC with respect thereto, have been
prepared in accordance with generally accepted accounting principles (except, in
the case of unaudited statements, as permitted by Form 10-Q of the SEC) applied
on a consistent basis during the periods involved (except as may be indicated in
the notes thereto) and fairly present in all material respects the consolidated
financial position of the Company and its consolidated subsidiaries as of the
dates thereof and the consolidated statement of earnings, cash flows and
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<PAGE> 20
shareholders' equity for the periods then ended (subject, in the case of
unaudited statements, to normal recurring year-end audit adjustments). Except
(A) as reflected in such financial statements or in the notes thereto or (B) for
liabilities incurred in connection with this Agreement or the transactions
contemplated hereby, neither the Company nor any of its subsidiaries has any
liabilities or obligations of any nature which, individually or in the
aggregate, would have a material adverse effect on the Company.
(f) INFORMATION SUPPLIED. None of the information supplied or
to be supplied by the Company specifically for inclusion or incorporation by
reference in (i) the registration statement on Form S-4 to be filed with the SEC
by Acquiror in connection with the issuance of Acquiror Common Stock in the
Merger (the "Form S-4") will, at the time the Form S-4 becomes effective under
the Securities Act, contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make the
statements therein not misleading or (ii) the Joint Proxy Statement will, at the
date it is first mailed to the Company's stockholders or at the time of the
Company Stockholders Meeting, contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances under which
they are made, not misleading. The Joint Proxy Statement will comply as to form
in all material respects with the requirements of the Exchange Act and the rules
and regulations thereunder, except that no representation or warranty is made by
the Company with respect to statements made or incorporated by reference therein
based on information supplied by Acquiror or Merger Sub specifically for
inclusion or incorporation by reference in the Joint Proxy Statement.
(g) ABSENCE OF CERTAIN CHANGES OR EVENTS. Except for
liabilities incurred in connection with this Agreement or the transactions
contemplated hereby, since December 31, 1997, the Company and its subsidiaries
have conducted their business only in the ordinary course or as disclosed in any
Company Filed SEC Document, and there has not been (1) any declaration, setting
aside or payment of any dividend or other distribution (whether in cash, stock
or property) with respect to any of the Company's capital stock, other than
regular quarterly cash dividends on the Company Common Stock, (2) any split,
combination or reclassification of any of the Company's capital stock or any
issuance or the authorization of any issuance of any other securities in respect
of, in lieu of or in substitution for shares of the Company's capital stock,
except for issuances of Company Common Stock upon the exercise of Company
Employee Stock Options awarded prior to September 30, 1998 in accordance with
their present terms or issued pursuant to Section 4.1(a) or in accordance with
the terms of the Company Stock Plan, (3) (A) any granting by the Company or any
of its subsidiaries to any current or former director, executive officer or
other key employee of the Company or its subsidiaries of any increase in
compensation, bonus or other benefits, except for normal increases in the
ordinary course of business or as was required under any employment agreements
in effect as of the date of the most recent audited financial statements
included in the Company SEC Documents filed and publicly available prior to the
date of this Agreement (as amended to the date of this Agreement, the "Company
Filed SEC Documents"), (B) any granting by the Company or any of its
subsidiaries to any such current or former director, executive officer or key
employee of any increase in severance or termination pay, except in the ordinary
course of business, or (C) any entry by the Company or any of its subsidiaries
into, or any amendment of, any employment, deferred
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compensation, consulting, severance, termination or indemnification agreement
with any such current or former director, executive officer or key employee,
other than in the ordinary course of business, (4) except insofar as may have
been disclosed in the Company Filed SEC Documents or required by a change in
generally accepted accounting principles, any change in accounting methods,
principles or practices by the Company materially affecting its assets,
liabilities or business or (5) except insofar as may have been disclosed in the
Company Filed SEC Documents, any tax election that individually or in the
aggregate would reasonably be expected to have a material adverse effect on the
Company or any of its tax attributes or any settlement or compromise of any
material income tax liability.
(h) COMPLIANCE WITH APPLICABLE LAWS; LITIGATION. The Company,
its subsidiaries and employees hold all permits, licenses, variances,
exemptions, orders, registrations and approvals of all Governmental Entities
which are required for the operation of the businesses of Company and its
subsidiaries (collectively, the "Company Permits"), except where the failure to
have any such Company Permits individually or in the aggregate would not have a
material adverse effect on the Company. The Company and its subsidiaries are in
compliance with the terms of the Company Permits and all applicable statutes,
laws, ordinances, rules and regulations, except where the failure so to comply
individually or in the aggregate would not have a material adverse effect on the
Company. As of the date of this Agreement, except as disclosed in the Company
Filed SEC Documents, no action, demand, requirement or investigation by any
Governmental Entity and no suit, action or proceeding by any person, in each
case with respect to the Company or any of its subsidiaries or any of their
respective properties is pending or, to the knowledge (as defined in Section
8.3(b)) of the Company, threatened, other than, in each case, those the outcome
of which individually or in the aggregate would not (i) reasonably be expected
to have a material adverse effect on the Company or (ii) reasonably be expected
to materially impair or delay the ability of the Company to perform its
obligations under this Agreement.
(i) ABSENCE OF CHANGES IN BENEFIT PLANS. Since February 1,
1998, there has not been any (i) adoption by the Company or any of its
subsidiaries of any collective bargaining agreement or any material bonus,
pension, profit sharing, deferred compensation, incentive compensation, stock
ownership, stock purchase, stock option, phantom stock, retirement, vacation,
severance, disability, death benefit, hospitalization, medical, life, severance
or other plan, arrangement or understanding providing benefits to any current or
former employee, officer or director of Company or any of its wholly owned
subsidiaries (collectively, the "Company Benefit Plans") to which any of the
Company's executive officers is a participant or (ii) amendment to any Company
Benefit Plan that resulted in a material increase in the benefits received or to
be received thereunder by any executive officer of the Company. Since January 1,
1998, there has not been any material increase in the aggregate benefits
provided under the Company Benefit Plans.
(j) ERISA COMPLIANCE.
(i) With respect to the Company Benefit Plans, no event has
occurred and, to the knowledge of the Company, there exists no
condition or set of circumstances, in
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connection with which the Company or any of its subsidiaries could be
subject to any liability that individually or in the aggregate would
have a material adverse effect on the Company under the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), the Code
or any other applicable law.
(ii) Each Company Benefit Plan has been administered in
accordance with its terms, all applicable laws, including ERISA and the
Code, and the terms of all applicable collective bargaining agreements,
except for any failures so to administer any Company Benefit Plan that
individually or in the aggregate would not reasonably be expected to
have a material adverse effect on the Company. The Company, its
subsidiaries and all the Company Benefit Plans are in compliance with
the applicable provisions of ERISA, the Code and all other applicable
laws and the terms of all applicable collective bargaining agreements,
except for any failures to be in such compliance that individually or
in the aggregate would not reasonably be expected to have a material
adverse effect on the Company. Each Company Benefit Plan that is
intended to be qualified under Section 401(a) or 401(k) of the Code has
received a favorable determination letter from the IRS that it is so
qualified and each trust established in connection with any Company
Benefit Plan that is intended to be exempt from federal income taxation
under Section 501(a) of the Code has received a determination letter
from the IRS that such trust is so exempt. To the knowledge of the
Company, no fact or event has occurred since the date of any
determination letter from the IRS which is reasonably likely to affect
adversely the qualified status of any such Company Benefit Plan or the
exempt status of any such trust, except for any occurrence that
individually or in the aggregate would not reasonably be expected to
have a material adverse effect on the Company, and to the knowledge of
the Company, all contributions to, and payments from, such Plans which
are required to be made in accordance with such Plans, ERISA or the
Code have been timely made other than any failures that individually or
in the aggregate would not reasonably be expected to have a material
adverse effect on the Company.
(iii) Except as any of the following either individually or in
the aggregate would not reasonably be expected to have a material
adverse effect on the Company, (x) neither the Company nor any trade or
business, whether or not incorporated (an "ERISA Affiliate"), which
together with the Company would be deemed to be a "single employer"
within the meaning of Section 4001(b) of ERISA, has incurred any
liability under Title IV of ERISA and no condition exists that presents
a risk to the Company or any ERISA Affiliate of the Company of
incurring any such liability (other than liability for benefits or
premiums to the Pension Benefit Guaranty Corporation arising in the
ordinary course), (y) no Company Benefit Plan has incurred an
"accumulated funding deficiency" (within the meaning of Section 302 of
ERISA or Section 412 of the Code) whether or not waived and (z) to the
knowledge of the Company, there are not any facts or circumstances that
would materially change the funded status of any Company Benefit Plan
that is a "defined benefit" plan (as defined in Section 3(35) of ERISA)
since the date of the most recent actuarial report for such plan.
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(iv) Neither the Company nor any of its subsidiaries is a
party to any collective bargaining or other labor union contract
applicable to persons employed by the Company or any of its
subsidiaries and no collective bargaining agreement is being negotiated
by the Company or any of its subsidiaries, in each case that is
material to the Company and its subsidiaries taken as a whole. As of
the date of this Agreement, there is no labor dispute, strike or work
stoppage against the Company or any of its subsidiaries pending or, to
the knowledge of the Company, threatened which may interfere with the
respective business activities of the Company or any of its
subsidiaries, except where such dispute, strike or work stoppage
individually or in the aggregate would not reasonably be expected to
have a material adverse effect on the Company. As of the date of this
Agreement, (x) 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 practice in connection with
the operation of the respective businesses of the Company or any of its
subsidiaries, and (y) there is no charge or complaint against the
Company or any of its subsidiaries by the National Labor Relations
Board or any comparable governmental agency pending or threatened in
writing, except for any occurrence that individually or in the
aggregate would not reasonably be expected to have a material adverse
effect on the Company.
(v) No Company Benefit Plan provides medical benefits (whether
or not insured) with respect to current or former employees after
retirement or other termination of service the cost of which is
material to the Company and its subsidiaries taken as a whole.
(vi) The consummation of the transactions contemplated by this
Agreement will not, either alone or in combination with another event,
(A) entitle any current or former employee, officer or director of the
Company or any ERISA Affiliate of the Company to severance pay,
unemployment compensation or any other payment, except as expressly
provided in this Agreement, (B) accelerate the time of payment or
vesting, or increase the amount of compensation due any such employee,
officer or director or (C) constitute a "change of control" under any
Company Benefit Plan.
(vii) With respect to each Company Benefit Plan: (x) no
actions, suits, claims or disputes are pending or, to the knowledge of
the Company, threatened, other than claims for benefits made in
accordance with the terms of such Company Benefit Plan, except for such
actions, suits, claims or disputes that individually or in the
aggregate would not reasonably be expected to have a material adverse
effect on the Company; (y) no audits are pending with any governmental
or regulatory agency and to the knowledge of the Company there are no
facts which could give rise to any liability in the event of such an
audit that either individually or in the aggregate would have a
material adverse effect on the Company; and (z) to the knowledge of the
Company, all reports and returns required to be filed with any
governmental agency or distributed to any participant in any Company
Benefit Plan have been so duly filed or distributed other than any
failure to file or distribute such reports or returns that individually
or in the aggregate would not reasonably be expected to have a material
adverse effect on the Company.
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(viii) The Company has not incurred any liability under Code
Section 4975, and no fact exists which could result in a liability to
the Company under Code Section 4975 that would reasonably be expected
to have a material adverse effect on the Company.
(ix) Neither the Company nor any ERISA Affiliate contributes
to a multiemployer plan described in Section 3(37) of ERISA, no
withdrawal liability has been incurred with respect to any such plan
and no withdrawal liability would be incurred upon the withdrawal from
any such plan by the Company or any ERISA Affiliate as of the date
hereof, except for any withdrawal that individually or in the aggregate
would not have a material adverse effect on the Company.
(k) TAXES.
(i) Each of the Company and its subsidiaries has filed all
material tax returns and reports required to be filed by it and all
such returns and reports are complete and correct in all material
respects, or requests for extensions to file such returns or reports
have been timely filed, granted and have not expired, except to the
extent that such failures to file, to be complete or correct or to have
extensions granted that remain in effect individually or in the
aggregate would not have a material adverse effect on the Company. The
Company and each of its subsidiaries has paid (or the Company has paid
on its behalf) all taxes (as defined below) shown as due on such
returns, and the most recent financial statements contained in the
Company SEC Documents reflect an adequate reserve for all taxes payable
by the Company and its subsidiaries for all taxable periods and
portions thereof accrued through the date of such financial statements.
(ii) No deficiencies for any taxes have been proposed,
asserted or assessed against the Company or any of its subsidiaries
that are not adequately reserved for, except for deficiencies that
individually or in the aggregate would not have a material adverse
effect on the Company.
(iii) Neither the Company nor any of its subsidiaries has
taken any action or knows of any fact, agreement, plan or other
circumstance that is reasonably likely to prevent the Merger from
qualifying as a reorganization within the meaning of Section 368(a) of
the Code.
(iv) As used in this Agreement, "taxes" shall include all (x)
federal, state, local or foreign net and gross income, alternative or
add-on minimum, environmental, gross receipts, ad valorem, value added,
goods and services, capital stock, profits, license, single business,
employment, severance, stamp, unemployment, customs, property, sales,
excise, use, occupation, service, transfer, payroll, franchise,
withholding and other taxes or similar governmental duties, charges,
fees, levies or other assessments including any interest, penalties or
additions with respect thereto, (y) liability for the payment of any
amounts of the type described in clause (x) as a result of being a
member of an affiliated, consolidated, combined or unitary group, and
(z) liability for the payment of any amounts as a result of being party
to any tax sharing agreement or as a result of any express or
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<PAGE> 25
implied obligation to indemnify any other person with respect to the
payment of any amounts of the type described in clause (x) or (y).
(l) VOTING REQUIREMENTS. The affirmative vote of the holders
of two-thirds of the outstanding shares of Company Common Stock at the Company
Stockholders Meeting to adopt this Agreement (the "Company Stockholder
Approval") is the only vote of the holders of any class or series of the
Company's capital stock necessary to adopt and approve this Agreement and the
Merger and the transactions contemplated hereby. The Board of Directors of the
Company has duly and validly approved and taken all corporate action required to
be taken by the Company Board of Directors for the consummation of the
transactions contemplated by this Agreement.
(m) STATE TAKEOVER STATUTES. The Board of Directors of the
Company has taken all necessary action so that no "fair price," "moratorium,"
"control share acquisition" or other similar anti-takeover statute or regulation
(each, a "Takeover Statute") (including the control share acquisition provisions
codified in Sections 1701.831 et seq. of the OGCL and the moratorium provisions
codified in Section 1704.02 et seq. of the OGCL) or any applicable anti-takeover
provision in the Company's articles of incorporation or code of regulations is
applicable to the Merger and the other transactions contemplated by this
Agreement. To the knowledge of the Company, no other state takeover statute is
applicable to the Merger or the other transactions contemplated by this
Agreement.
(n) ACCOUNTING MATTERS. The Company has disclosed to its
independent public accountants all actions taken by it or its subsidiaries that
would impact the accounting of the business combination to be effected by the
Merger as a pooling of interests. As of the date hereof, the Company believes
that the Merger will qualify for "pooling of interests" accounting.
(o) BROKERS. Except for Goldman, Sachs & Co., no broker,
investment banker, financial advisor or other person is entitled to any
broker's, finder's, financial advisor's or other similar fee or commission in
connection with the transactions contemplated by this Agreement based upon
arrangements made by or on behalf of the Company.
(p) OWNERSHIP OF ACQUIROR CAPITAL STOCK. Except for shares
owned by the Company Benefit Plans or shares held or managed for the account of
another person or as to which the Company is required to act as a fiduciary or
in a similar capacity, as of the date hereof, neither the Company nor, to its
knowledge without independent investigation, any of its affiliates, (i)
beneficially owns (as defined in Rule 13d-3 under the Exchange Act), directly or
indirectly, or (ii) is party to any agreement, arrangement or understanding for
the purpose of acquiring, holding, voting or disposing of, in each case, shares
of capital stock of Acquiror.
(q) CERTAIN CONTRACTS. Except as set forth in the Company
Filed SEC Documents or as permitted pursuant to Section 4.1(a), neither the
Company nor any of its subsidiaries is a party to or bound by (i) any agreement
relating to the incurring of indebtedness (including sale and leaseback and
capitalized lease transactions and other similar financing transactions)
providing for payment or repayment in excess of $100.0 million, (ii) any
"material
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<PAGE> 26
contract" (as such term is defined in Item 601(b)(10) of Regulation S-K of the
SEC) or (iii) any non-competition agreement which purports to limit in any
material respect the manner in which, or the localities in which, all or any
substantial portion of the business of the Company and its subsidiaries, taken
as a whole, or, after the Effective Time, the business of Acquiror and its
subsidiaries, taken as a whole, is or would be conducted.
(r) THE COMPANY RIGHTS AGREEMENT. The Rights Agreement dated
June 25, 1996 between the Company and The First National Bank of Boston (the
"Company Rights Agreement") has been amended to (i) render the Company Rights
Agreement inapplicable to the Merger and the other transactions contemplated by
this Agreement, (ii) ensure that (x) none of Acquiror or its wholly owned
subsidiaries is an Acquiring Person (as defined in the Company Rights Agreement)
pursuant to the Company Rights Agreement, (y) a Distribution Date, a Triggering
Event or a Share Acquisition Date (as such terms are defined in the Company
Rights Agreement) does not occur solely by reason of the execution of this
Agreement, the consummation of the Merger, or the consummation of the other
transactions contemplated by this Agreement and (z) ensure that the Company
Rights Agreement will expire or otherwise terminate immediately prior to the
Effective Time.
(s) OPINION OF FINANCIAL ADVISOR. The Company has received the
opinion of Goldman, Sachs & Co., dated the date of this Agreement, to the effect
that, as of such date, the Exchange Ratio is fair from a financial point of view
to holders of shares of Company Common Stock (other than Acquiror and its
affiliates), a signed copy of which opinion will be made available to Acquiror
promptly after the date hereof.
(t) ENVIRONMENTAL MATTERS.
(i) During the three-year period immediately preceding the
date of this Agreement, neither the Company nor any of its subsidiaries
has received any written communication, whether from a Governmental
Entity, citizens' group, employee or otherwise, alleging that the
Company or any of its subsidiaries is not in compliance with applicable
Environmental Laws, other than those instances of alleged noncompliance
which individually or in the aggregate would not (x) reasonably be
expected to have a material adverse effect on the Company or (y)
reasonably be expected to materially impair or delay the ability of the
Company to perform its obligations under this Agreement.
(ii) There is no Environmental Claim pending or, to the
knowledge of the Company, threatened, against the Company or any of its
subsidiaries or, to the knowledge of the Company, against any person
whose liability for any Environmental Claim the Company or any of its
subsidiaries has or may have retained or assumed either contractually
or by operation of law, other than those Environmental Claims which
individually or in the aggregate would not (x) reasonably be expected
to have a material adverse effect on the Company or (y) reasonably be
expected to materially impair or delay the ability of the Company to
perform its obligations under this Agreement.
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<PAGE> 27
(iii) There are no present actions, activities, circumstances,
conditions, events or incidents, including, without limitation, the
Release or presence of any Hazardous Material at any property, that
could reasonably be expected to result in liability under any
Environmental Law for the Company or any of its subsidiaries or, to the
knowledge of the Company, for any person whose liability for any
Environmental Claim the Company or any of its subsidiaries has or may
have retained or assumed either contractually or by operation of law,
other than those liabilities which individually or in the aggregate
would not (x) reasonably be expected to have a material adverse effect
on the Company or (y) reasonably be expected to materially impair or
delay the ability of the Company to perform its obligations under this
Agreement.
(iv) As used herein, the term "Cleanup" means all actions
required to (w) cleanup, remove, treat, manage or remediate Hazardous
Materials in the indoor or outdoor environment; (x) prevent the Release
of Hazardous Materials so that they do not migrate, endanger or
threaten to endanger public health or welfare or the indoor or outdoor
environment; (y) perform pre-remedial studies and investigations and
post-remedial monitoring and care; or (z) respond to any government
requests for information or documents in any way relating to cleanup,
removal, treatment or remediation or potential cleanup, removal,
treatment or remediation of Hazardous Materials in the indoor or
outdoor environment.
(v) As used herein, the term "Environmental Claim" means any
claim, action, cause of action, investigation or written notice by any
person alleging potential liability or responsibility (including,
without limitation, potential liability for investigatory costs,
Cleanup costs, governmental response costs, natural resources damages,
property damages, personal injuries, fines or penalties) arising out
of, based on or resulting from (x) the presence or Release of any
Hazardous Materials at any location, whether or not owned or operated
by the Company or any of its subsidiaries or (y) circumstances forming
the basis of any violation of any Environmental Law.
(vi) As used herein, the term "Environmental Laws" means all
federal, state, local and foreign laws and regulations relating to
pollution or protection of the environment, including, without
limitation, laws relating to Releases of Hazardous Materials or
otherwise relating to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport or handling of Hazardous
Materials.
(vii) As used herein, the term "Hazardous Materials" means all
substances defined as Hazardous Substances, Hazardous Waste, Oils,
Pollutants or Contaminants in the National Oil and Hazardous Substances
Pollution Contingency Plan, 40 C.F.R. Section 300.5, or defined as such
by, or regulated as such under, any Environmental Law, including all
matters adversely affecting air, ground, ground water and/or
environmental quality or safety, including, without limitation,
petroleum, petroleum-derived products, underground storage tanks and
asbestos.
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<PAGE> 28
(viii) As used herein, the term "Release" means any release,
spill, emission, discharge, leaking, pumping, injection, deposit,
disposal, dispersal, leaching or migration into the environment
(including, without limitation, ambient air, surface water, groundwater
and surface or subsurface strata) or into or out of any property
(including the abatement or discarding of barrels or other containers
containing Hazardous Materials), including the movement of Hazardous
Materials through, on or in the air, soil, surface water, ground water
or property.
(u) INTELLECTUAL PROPERTY.
(i) The Company and its subsidiaries own or have a binding,
enforceable right to use all letters patent, patent applications, trade
names, brand names, trademarks, service marks, trademark and service
mark registrations and applications, copyright registrations and
applications, both domestic and foreign (collectively, the "Company
Intellectual Property") used in their businesses substantially as
currently conducted except for such Company Intellectual Property, the
failure of which to own or have a binding, enforceable right to use
individually or in the aggregate would not reasonably be expected to
have a material adverse effect on the Company. Neither the Company nor
any of its subsidiaries has received any written notice of infringement
of or conflict with and, to the knowledge of the Company, there are no
infringements of or conflicts with, the rights of others with respect
to the use of any Company Intellectual Property that individually or in
the aggregate, in either such case, would reasonably be expected to
have a material adverse effect on the Company or would reasonably be
expected to materially impair or delay the ability of the Company to
perform its obligations under this Agreement. Neither the Company nor
any of its subsidiaries has received any written notice that the
conduct of another person's business or the nature of any products sold
or services provided by another person infringes upon or conflicts with
the Company's registered trademarks set forth in its Annual Report on
Form 10-K for the fiscal year ended December 31, 1997 (the "Material
Company Trademarks") other than those infringements or conflicts that
individually or in the aggregate would not reasonably be expected to
(x) have a material adverse effect on the Company or (y) materially
impair or delay the ability of the Company to perform its obligations
under this Agreement.
(ii) The Company has conducted a comprehensive review of its
computer systems' ability to process properly year date codes after
December 31, 1999, has formulated a plan to modify or replace programs
where necessary and believes that all necessary reprogramming efforts
will be completed prior to December 31, 1999, except for any failures
to complete such reprogramming efforts as would not individually or in
the aggregate have a material adverse effect on the Company.
Section 3.2 REPRESENTATIONS AND WARRANTIES OF ACQUIROR AND
MERGER SUB. Except as disclosed in the Acquiror Filed SEC Documents (as defined
in Section 3.2(h)) or as set forth on the Disclosure Schedule delivered by
Acquiror to the Company prior to the execution of this Agreement (the "Acquiror
Disclosure Schedule"), Acquiror and Merger Sub each hereby represents and
warrants to the Company as follows:
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<PAGE> 29
(a) CAPITALIZATION OF MERGER SUB. The authorized capital stock
of Merger Sub consists of 100 shares of common stock, no par value, all of which
are validly issued and outstanding. All of the issued and outstanding capital
stock of Merger Sub is, and at the Effective Time will be, owned by Acquiror,
and there are (i) no other shares of capital stock or voting securities of
Merger Sub, (ii) no securities of Merger Sub convertible into or exchangeable
for shares of capital stock or voting securities of Merger Sub and (iii) no
options or other rights to acquire from Merger Sub, and no obligations of Merger
Sub to issue, any capital stock, voting securities or securities convertible
into or exchangeable for capital stock or voting securities of Merger Sub.
Merger Sub has not conducted any business prior to the date hereof and has no,
and prior to the Effective Time will have no, assets, liabilities or obligations
of any nature other than those incident to its formation and pursuant to this
Agreement and the Merger and the other transactions contemplated by this
Agreement.
(b) ORGANIZATION, STANDING AND CORPORATE POWER. Each of
Acquiror and its subsidiaries is a corporation or other legal entity duly
organized, validly existing and in good standing (with respect to jurisdictions
which recognize such concept) under the laws of the jurisdiction in which it is
organized and has the requisite corporate or other power, as the case may be,
and authority to carry on its business as now being conducted, except, as to
subsidiaries, for those jurisdictions where the failure to be so organized,
existing or in good standing individually or in the aggregate would not have a
material adverse effect on Acquiror. Each of Acquiror and its subsidiaries is
duly qualified or licensed to do business and is in good standing (with respect
to jurisdictions which recognize such concept) in each jurisdiction in which the
nature of its business or the ownership, leasing or operation of its properties
makes such qualification or licensing necessary, except for those jurisdictions
where the failure to be so qualified or licensed or to be in good standing
individually or in the aggregate would not have a material adverse effect on
Acquiror. Acquiror has made available to the Company prior to the execution of
this Agreement complete and correct copies of its certificate of incorporation
and bylaws and the articles of incorporation and code of regulations of Merger
Sub, each as amended to date.
(c) SUBSIDIARIES. Section 3.2(c) of the Acquiror Disclosure
Schedule includes all the subsidiaries of Acquiror which as of the date of this
Agreement are Significant Subsidiaries (as defined in Rule 1-02 of Regulation
S-X of the SEC). All the outstanding shares of capital stock of, or other equity
interests in, each Significant Subsidiary (i) have been validly issued and are
fully paid and nonassessable, (ii) are owned directly or indirectly by Acquiror,
free and clear of all Liens and (iii) are free of any other restriction
(including any restriction on the right to vote, sell or otherwise dispose of
such capital stock or other ownership interests), except in the case of clauses
(ii) and (iii) for any Liens or restrictions that would not have a material
adverse effect on Acquiror.
(d) CAPITAL STRUCTURE. The authorized capital stock of
Acquiror consists of shares of (i) 400,000,000 shares of Acquiror Common Stock
and (ii) 10,000,000 shares of preferred stock of Acquiror, consisting of 10,000
shares without par value and 9,990,000 shares par value $1.00 per share
("Acquiror Authorized Preferred Stock"). At the close of business on September
30, 1998: (i) 162,634,182 shares of Acquiror Common Stock were issued and
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outstanding; (ii) 20,834 shares of Acquiror Common Stock in the aggregate were
held by Acquiror in its treasury; (iii) no shares of Acquiror Preferred Stock
were issued and outstanding; (iv) 2,147,237 shares of Acquiror Common Stock were
subject to outstanding employee stock options pursuant to the plans set forth in
Section 3.2(d)(iv) of the Acquiror Disclosure Schedule (collectively, the
"Acquiror Stock Plans") at September 30, 1998 (collectively, "Acquiror Employee
Stock Options"); and (v) 9,865,000 shares of Acquiror Common Stock were reserved
for issuance upon the conversion of outstanding convertible trust preferred
securities of a subsidiary trust of Acquiror pursuant to the Amended and
Restated Trust Agreement, dated as of December 12, 1997 among Newell Co., as
Depositor, The Chase Manhattan Bank, as Property Trustee, Chase Manhattan Bank
Delaware, as Delaware Trustee and C.R. Davenport, Brett E. Gries and Ronn L.
Claussen, as Administrative Trustees, the Junior Convertible Subordinated
Indenture for the 5.25% Convertible Subordinated Debentures, dated as of
December 12, 1997, among Newell Co. and The Chase Manhattan Bank, as Indenture
Trustee, and the Guaranty Agreement between Newell Co. and The Chase Manhattan
Bank, as Guaranty Trustee, dated December 12, 1997 (the "Trust Documents"). All
outstanding shares of capital stock of Acquiror are, and all shares which may be
issued will be, when issued, duly authorized, validly issued, fully paid and
nonassessable and not subject to preemptive rights. Except (i) as set forth in
this Section 3.2(d), (ii) for changes since September 30, 1998 resulting from
the issuance of shares of Acquiror Common Stock pursuant to the Acquiror
Employee Stock Options, (iii) for up to an aggregate of 9,865,000 shares of
Acquiror Common Stock authorized for issuance as of September 30, 1998 upon the
conversion of outstanding convertible trust preferred securities of a subsidiary
trust of Acquiror pursuant to the Trust Documents, (iv) for outstanding
preferred stock purchase rights issued pursuant to the Rights Agreement, dated
as of October 20, 1988, by and between Acquiror and First Chicago Trust Company
of New York (formerly known as Morgan Shareholders Service Trust Company) or the
Rights Agreement, dated as of August 6, 1998, by and between Acquiror and First
Chicago Trust Company (referred to herein collectively as the "Acquiror Rights
Agreement"), and (v) as permitted by Section 4.1(b)(ii), (x) there are not
issued, reserved for issuance or outstanding (A) any shares of capital stock or
other voting securities of Acquiror, (B) any securities of Acquiror convertible
into or exchangeable or exercisable for shares of capital stock or voting
securities of Acquiror or (C) any warrants, calls, options or other rights to
acquire from Acquiror or any Acquiror subsidiary, and no obligation of Acquiror
or any Acquiror subsidiary to issue, any capital stock, voting securities or
securities convertible into or exchangeable or exercisable for capital stock or
voting securities of Acquiror and (y) there are no outstanding obligations of
Acquiror or any Acquiror subsidiary to repurchase, redeem or otherwise acquire
any such securities or to issue, deliver or sell, or cause to be issued,
delivered or sold, any such securities. Neither Acquiror nor any Acquiror
subsidiary is a party to any voting agreement with respect to the voting of any
such securities. There are no outstanding (A) securities of Acquiror or any
Acquiror subsidiary convertible into or exchangeable or exercisable for shares
of capital stock or other voting securities or ownership interests in any
Acquiror subsidiary, (B) warrants, calls, options or other rights to acquire
from Acquiror or any Acquiror subsidiary, and no obligation of Acquiror or any
Acquiror subsidiary to issue, any capital stock, voting securities or other
ownership interests in, or any securities convertible into or exchangeable or
exercisable for any capital stock, voting securities or ownership interests in,
any Acquiror subsidiary or (C) obligations of Acquiror or any Acquiror
subsidiary to repurchase, redeem or otherwise acquire any such outstanding
securities of
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Acquiror subsidiaries or to issue, deliver or sell, or cause to be issued,
delivered or sold, any such securities.
(e) AUTHORITY; NONCONTRAVENTION. Each of Acquiror and Merger
Sub has all requisite corporate power and authority to enter into this Agreement
and, subject to the Acquiror Stockholder Approval (as defined in Section
3.2(m)), to consummate the transactions contemplated by this Agreement. The
execution and delivery of this Agreement by Acquiror and Merger Sub and the
consummation by Acquiror and Merger Sub of the transactions contemplated hereby
have been duly authorized by all necessary corporate action on the part of
Acquiror and Merger Sub, subject, in the case of the issuance of Acquiror Common
Stock in connection with the Merger, to the Acquiror Stockholder Approval. This
Agreement has been duly executed and delivered by Acquiror and Merger Sub and,
assuming the due authorization, execution and delivery by the Company,
constitutes a legal, valid and binding obligation of Acquiror and Merger Sub,
enforceable against Acquiror and Merger Sub in accordance with its terms. The
execution and delivery of this Agreement does not, and the consummation of the
transactions contemplated by this Agreement and compliance with the provisions
of this Agreement will not, conflict with, or result in any violation of, or
default (with or without notice or lapse of time, or both) under, or give rise
to a right of termination, cancellation or acceleration of any obligation or
loss of a benefit under, or result in the creation of any Lien upon any of the
properties or assets of Acquiror or Merger Sub or any of its subsidiaries under,
(i) the certificate of incorporation or by-laws of Acquiror or the comparable
organizational documents of any of its subsidiaries, (ii) any loan or credit
agreement, note, bond, mortgage, indenture, lease or other agreement,
instrument, permit, concession, franchise, license or similar authorization
applicable to Acquiror or any of its subsidiaries or their respective properties
or assets or (iii) subject to the governmental filings and other matters
referred to in the following sentence, any judgment, order, decree, statute,
law, ordinance, rule or regulation applicable to Acquiror or any of its
subsidiaries or their respective properties or assets, other than, in the case
of clauses (ii) and (iii), any such conflicts, violations, defaults, rights,
losses or Liens that individually or in the aggregate would not (x) have a
material adverse effect on Acquiror or (y) reasonably be expected to materially
impair or delay the ability of Acquiror or Merger Sub to perform its obligations
under this Agreement. No consent, approval, order or authorization of, action
by, or in respect of, or registration, declaration or filing with, any
Governmental Entity is required by Acquiror or any of its subsidiaries in
connection with the execution and delivery of this Agreement by Acquiror or the
consummation by Acquiror of the transactions contemplated hereby, except for:
(1) the filing with the SEC of the Joint Proxy Statement relating to the
Acquiror Stockholders Meeting; (2) the filing with and declaration of
effectiveness by the SEC of the Form S-4; (3) the filing with the SEC of such
reports under Section 13(a), 13(d), 15(d) or 16(a) of the Exchange Act as may be
required in connection with this Agreement and the transactions contemplated
hereby; (4) the filing of the Certificate of Merger with the Secretary of State
of the State of Ohio and such filings with Governmental Entities to satisfy the
applicable requirements of state securities or "blue sky" laws; (5) such filings
with and approvals of the NYSE to permit the shares of Acquiror Common Stock
that are to be issued in the Merger and under the Company Stock Plan to be
listed on the NYSE; (6) the filing of a premerger notification and report form
by Acquiror under the HSR Act; (7) such filings, consents, approvals, orders or
authorizations required to be made or obtained pursuant to Foreign Antitrust
Laws; and (8) such consents,
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approvals, orders or authorizations the failure of which to be made or obtained
individually or in the aggregate would not (x) have a material adverse effect on
Acquiror or (y) reasonably be expected to materially impair or delay the ability
of Acquiror or Merger Sub to perform its obligations under this Agreement.
(f) REPORTS; UNDISCLOSED LIABILITIES. Acquiror has filed all
required reports, schedules, forms, statements and other documents (including
exhibits and all other information incorporated therein) with the SEC since
January 1, 1995 (the "Acquiror SEC Documents"). As of their respective dates,
the Acquiror SEC Documents complied in all material respects with the
requirements of the Securities Act or the Exchange Act, as the case may be, and
the rules and regulations of the SEC promulgated thereunder applicable to such
Acquiror SEC Documents, and none of the Acquiror SEC Documents when filed
contained any untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading. Except to the extent that information contained in any Acquiror SEC
Document has been revised or superseded by a later filed Acquiror SEC Document,
none of the Acquiror SEC Documents contains any untrue statement of a material
fact or omits to state any material fact required to be stated therein or
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading. The financial statements of Acquiror
included in the Acquiror SEC Documents comply as to form, as of their respective
dates of filing with the SEC, in all material respects with applicable
accounting requirements and the published rules and regulations of the SEC with
respect thereto, have been prepared in accordance with generally accepted
accounting principles (except, in the case of unaudited statements, as permitted
by Form 10-Q of the SEC) applied on a consistent basis during the periods
involved (except as may be indicated in the notes thereto) and fairly present in
all material respects the consolidated financial position of Acquiror and its
consolidated subsidiaries as of the dates thereof and the consolidated
statements of income, stockholders' equity and cash flows for the periods then
ended (subject, in the case of unaudited statements, to normal recurring
year-end audit adjustments). Except (A) as reflected in such financial
statements or in the notes thereto or (B) for liabilities incurred in connection
with this Agreement or the transactions contemplated hereby, neither Acquiror
nor any of its subsidiaries has any liabilities or obligations of any nature
which, individually or in the aggregate, would have a material adverse effect on
Acquiror.
(g) INFORMATION SUPPLIED. None of the information supplied or
to be supplied by Acquiror specifically for inclusion or incorporation by
reference in (i) the Form S-4 will, at the time the Form S-4 becomes effective
under the Securities Act, contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary to
make the statements therein not misleading or (ii) the Joint Proxy Statement
will, at the date it is first mailed to Acquiror's stockholders or at the time
of the Acquiror Stockholders Meeting, contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary in order to make the statements therein, in light of the circumstances
under which they are made, not misleading. The Form S-4 and the Joint Proxy
Statement will comply as to form in all material respects with the requirements
of the Securities Act and the Exchange Act, respectively, and the rules and
regulations thereunder, except that no
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representation or warranty is made by Acquiror with respect to statements made
or incorporated by reference therein based on information supplied by the
Company specifically for inclusion or incorporation by reference in the Form S-4
or the Joint Proxy Statement.
(h) ABSENCE OF CERTAIN CHANGES OR EVENTS. Except for
liabilities incurred in connection with this Agreement or the transactions
contemplated hereby, since December 31, 1997, Acquiror and its subsidiaries have
conducted their business only in the ordinary course or as disclosed in any
Acquiror Filed SEC Document, and there has not been (1) any declaration, setting
aside or payment of any dividend or other distribution (whether in cash, stock
or property) with respect to any of Acquiror's capital stock, other than regular
quarterly cash dividends on the Acquiror Common Stock, (2) any split,
combination or reclassification of any of Acquiror's capital stock or any
issuance or the authorization of any issuance of any other securities in respect
of, in lieu of or in substitution for shares of Acquiror's capital stock, except
for issuances of Acquiror Common Stock upon the exercise of Acquiror Employee
Stock Options awarded prior to September 30, 1998 in accordance with their
present terms or issued pursuant to Section 4.1(b) or in accordance with the
terms of the Acquiror Stock Plans, (3) (A) any granting by Acquiror or any of
its subsidiaries to any current or former director, executive officer or other
key employee of Acquiror or its subsidiaries of any increase in compensation,
bonus or other benefits, except for normal increases in the ordinary course of
business or as was required under any employment agreements in effect as of the
date of the most recent audited financial statements included in the Acquiror
SEC Documents filed and publicly available prior to the date of this Agreement
(as amended to the date of this Agreement, the "Acquiror Filed SEC Documents"),
(B) any granting by Acquiror or any of its subsidiaries to any such current or
former director, executive officer or key employee of any increase in severance
or termination pay, except in the ordinary course of business or pursuant to the
Acquiror Stock Plans, or (C) any entry by Acquiror or any of its subsidiaries
into, or any amendment of, any employment, deferred compensation, consulting,
severance, termination or indemnification agreement with any such current or
former director, executive officer or key employee, other than in the ordinary
course of business, (4) except insofar as may have been disclosed in the
Acquiror Filed SEC Documents or required by a change in generally accepted
accounting principles, any change in accounting methods, principles or practices
by Acquiror materially affecting its assets, liabilities or business or (5)
except insofar as may have been disclosed in the Acquiror Filed SEC Documents,
any tax election that individually or in the aggregate would reasonably be
expected to have a material adverse effect on Acquiror or any of its tax
attributes or any settlement or compromise of any material income tax liability.
(i) COMPLIANCE WITH APPLICABLE LAWS; LITIGATION. Acquiror, its
subsidiaries and employees hold all permits, licenses, variances, exemptions,
orders, registrations and approvals of all Governmental Entities which are
required for the operation of the businesses of Acquiror and its subsidiaries
(collectively, the "Acquiror Permits") except where the failure to have any such
Acquiror Permits individually or in the aggregate would not have a material
adverse effect on Acquiror. Acquiror and its subsidiaries are in compliance with
the terms of the Acquiror Permits and all applicable statutes, laws, ordinances,
rules and regulations, except where the failure so to comply individually or in
the aggregate would not have a material adverse effect on Acquiror. As of the
date of this Agreement, except as disclosed in the Acquiror Filed
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SEC Documents, no action, demand, requirement or investigation by any
Governmental Entity and no suit, action or proceeding by any person, in each
case with respect to Acquiror or any of its subsidiaries or any of their
respective properties is pending or, to the knowledge of Acquiror, threatened,
other than, in each case, those the outcome of which individually or in the
aggregate would not (i) reasonably be expected to have a material adverse effect
on Acquiror or (ii) reasonably be expected to materially impair or delay the
ability of Acquiror or Merger Sub to perform its obligations under this
Agreement.
(j) ABSENCE OF CHANGES IN BENEFIT PLANS. Since February 1,
1998, there has not been any (i) adoption by Acquiror or any of its subsidiaries
of any collective bargaining agreement or any material bonus, pension, profit
sharing, deferred compensation, incentive compensation, stock ownership, stock
purchase, stock option, phantom stock, retirement, vacation, severance,
disability, death benefit, hospitalization, medical or other plan, arrangement
or understanding providing benefits to any current or former employee, officer
or director of Acquiror or any of its wholly owned subsidiaries (collectively,
the "Acquiror Benefit Plans") to which any of Acquiror's executive officers is a
participant or (ii) amendment to any Acquiror Benefit Plan that resulted in a
material increase in the benefits received or to be received thereunder by any
executive officer of Acquiror. Since January 1, 1998, there has not been any
material increase in the aggregate benefits provided under the Acquiror Benefits
Plans.
(k) ERISA COMPLIANCE.
(i) With respect to the Acquiror Benefit Plans, no event has
occurred and, to the knowledge of Acquiror, there exists no condition
or set of circumstances, in connection with which Acquiror or any of
its subsidiaries could be subject to any liability that individually or
in the aggregate would have a material adverse effect on Acquiror under
ERISA, the Code or any other applicable law.
(ii) Each Acquiror Benefit Plan has been administered in
accordance with its terms, all applicable laws, including ERISA and the
Code, and the terms of all applicable collective bargaining agreements,
except for any failures so to administer any Acquiror Benefit Plan that
individually or in the aggregate would not reasonably be expected to
have a material adverse effect on Acquiror. Acquiror, its subsidiaries
and all the Acquiror Benefit Plans are in compliance with the
applicable provisions of ERISA, the Code and all other applicable laws
and the terms of all applicable collective bargaining agreements,
except for any failures to be in such compliance that individually or
in the aggregate would not reasonably be expected to have a material
adverse effect on Acquiror. Each Acquiror Benefit Plan that is intended
to be qualified under Section 401(a) or 401(k) of the Code has received
a favorable determination letter from the IRS that it is so qualified
and each trust established in connection with any Acquiror Benefit Plan
that is intended to be exempt from federal income taxation under
Section 501(a) of the Code has received a determination letter from the
IRS that such trust is so exempt. To the knowledge of Acquiror, no fact
or event has occurred since the date of any determination letter from
the IRS which is reasonably likely to affect adversely the qualified
status of any such Acquiror Benefit Plan or the exempt status of any
such trust,
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except for any occurrence that individually or in the aggregate would
not reasonably be expected to have a material adverse effect on
Acquiror, and to the knowledge of Acquiror, all contributions to, and
payments from, such Plans which are required to be made in accordance
with such Plans, ERISA or the Code have been timely made other than any
failures that individually or in the aggregate would not reasonably be
expected to have a material adverse effect on Acquiror.
(iii) Except as any of the following either individually or in
the aggregate would not reasonably be expected to have a material
adverse effect on Acquiror, (x) neither Acquiror nor any ERISA
Affiliate of Acquiror, which together with Acquiror would be deemed to
be a "single employer" within the meaning of Section 4001(b) of ERISA,
has incurred any liability under Title IV of ERISA and no condition
exists that presents a risk to Acquiror or any ERISA Affiliate of
Acquiror of incurring any such liability (other than liability for
benefits or premiums to the Pension Benefit Guaranty Corporation
arising in the ordinary course), (y) no Acquiror Benefit Plan has
incurred an "accumulated funding deficiency" (within the meaning of
Section 302 of ERISA or Section 412 of the Code) whether or not waived
and (z) to the knowledge of Acquiror, there are not any facts or
circumstances that would materially change the funded status of any
Acquiror Benefit Plan that is a "defined benefit" plan (as defined in
Section 3(35) of ERISA) since the date of the most recent actuarial
report for such plan.
(iv) Neither Acquiror nor any of its subsidiaries is a party
to any collective bargaining or other labor union contract applicable
to persons employed by Acquiror or any of its subsidiaries and no
collective bargaining agreement is being negotiated by Acquiror or any
of its subsidiaries, in each case that is material to Acquiror and its
subsidiaries taken as a whole. As of the date of this Agreement, there
is no labor dispute, strike or work stoppage against Acquiror or any of
its subsidiaries pending or, to the knowledge of Acquiror, threatened
which may interfere with the respective business activities of Acquiror
or any of its subsidiaries, except where such dispute, strike or work
stoppage individually or in the aggregate would not reasonably be
expected to have a material adverse effect on Acquiror. As of the date
of this Agreement, to the knowledge of Acquiror, none of Acquiror, any
of its subsidiaries or any of their respective representatives or
employees has committed any unfair labor practice in connection with
the operation of the respective businesses of Acquiror or any of its
subsidiaries, and there is no charge or complaint against Acquiror or
any of its subsidiaries by the National Labor Relations Board or any
comparable governmental agency pending or threatened in writing, except
for any occurrence that individually or in the aggregate would not
reasonably be expected to have a material adverse effect on Acquiror.
(v) No Acquiror Benefit Plan provides medical benefits
(whether or not insured) with respect to current or former employees
after retirement or other termination of service the cost of which is
material to Acquiror and its subsidiaries taken as a whole.
(vi) No amounts payable under the Acquiror Benefit Plans
solely as a result of the consummation of the transactions contemplated
by this Agreement will fail to be
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deductible for federal income tax purposes by virtue of Section 280G of
the Code. The consummation of the transactions contemplated by this
Agreement will not, either alone or in combination with another event,
(A) entitle any current or former employee, officer or director of
Acquiror or any ERISA Affiliate of Acquiror to severance pay,
unemployment compensation or any other payment, except as expressly
provided in this Agreement (B) accelerate the time of payment or
vesting, or increase the amount of compensation due any such employee,
officer or director or (C) constitute a "change of control" under any
Acquiror Benefit Plan.
(vii) With respect to each Acquiror Benefit Plan: (x) no
actions, suits, claims or disputes are pending or, to the knowledge of
Acquiror, threatened, other than claims for benefits made in accordance
with the terms of such Acquiror Benefit Plan, except for such actions,
suits, claims or disputes that individually or in the aggregate would
not reasonably be expected to have a material adverse effect on
Acquiror; (y) no audits are pending with any governmental or regulatory
agency and to the knowledge of Acquiror there are no facts which could
give rise to any liability in the event of such an audit that either
individually or in the aggregate would have a material adverse effect
on the Acquiror; and (z) to the knowledge of Acquiror, all reports and
returns required to be filed with any governmental agency or
distributed to any participant in any Acquiror Benefit Plan have been
so duly filed or distributed other than any failure to file or
distribute such reports or returns that individually or in the
aggregate would not reasonably be expected to have a material adverse
effect on Acquiror.
(viii) Acquiror has not incurred any liability under Code
Section 4975, and no fact exists which could result in a liability to
Acquiror under Code Section 4975 that would reasonably be expected to
have a material adverse effect on the Company.
(ix) Neither Acquiror nor any ERISA Affiliate contributes to a
multiemployer plan described in Section 3(37) of ERISA, no withdrawal
liability has been incurred with respect to any such plan and no
withdrawal liability would be incurred upon the withdrawal from any
such plan by Acquiror or any ERISA Affiliate as of the date hereof,
except for any withdrawal that individually or in the aggregate would
not have a material adverse effect on Acquiror.
(l) TAXES.
(i) Each of Acquiror and its subsidiaries has filed all
material tax returns and reports required to be filed by it and all
such returns and reports are complete and correct in all material
respects, or requests for extensions to file such returns or reports
have been timely filed, granted and have not expired, except to the
extent that such failures to file, to be complete or correct or to have
extensions granted that remain in effect individually or in the
aggregate would not have a material adverse effect on Acquiror.
Acquiror and each of its subsidiaries has paid (or Acquiror has paid on
its behalf) all taxes shown as due on such returns, and the most recent
financial statements contained in the Acquiror SEC Documents reflect an
adequate reserve for all taxes payable by Acquiror and its
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subsidiaries for all taxable periods and portions thereof accrued
through the date of such financial statements.
(ii) No deficiencies for any taxes have been proposed,
asserted or assessed against Acquiror or any of its subsidiaries that
are not adequately reserved for, except for deficiencies that
individually or in the aggregate would not have a material adverse
effect on Acquiror.
(iii) Neither Acquiror nor any of its subsidiaries has taken
any action or knows of any fact, agreement, plan or other circumstance
that is reasonably likely to prevent the Merger from qualifying as a
reorganization within the meaning of Section 368(a) of the Code.
(m) VOTING REQUIREMENTS. The affirmative vote at the Acquiror
Stockholders Meeting (the "Acquiror Stockholder Approval") of the holders of a
majority of the voting power of all outstanding shares of Acquiror Common Stock
is the only vote of the holders of any class or series of Acquiror's capital
stock necessary to approve the issuance of Acquiror Common Stock to be issued
pursuant to this Agreement. The Board of Directors of Acquiror has duly and
validly approved and taken all corporate action required to be taken by the
Acquiror Board of Directors for the consummation of the transactions
contemplated by this Agreement.
(n) STATE TAKEOVER STATUTES. The Board of Directors of
Acquiror has taken all necessary action so that no Takeover Statute (including
the interested stockholder provisions codified in Section 203 of the Delaware
General Corporation Law) or any applicable anti-takeover provision in the
Acquiror's certificate of incorporation or by-laws is applicable to the Merger
and the other transactions contemplated by this Agreement. To the knowledge of
Acquiror, no other state takeover statute is applicable to the Merger or the
other transactions contemplated by this Agreement.
(o) ACCOUNTING MATTERS. Acquiror has disclosed to its
independent public accountants all actions taken by it or its subsidiaries that
would impact the accounting of the business combination to be effected by the
Merger as a pooling of interests. As of the date hereof, Acquiror believes that
the Merger will qualify for "pooling of interests" accounting.
(p) BROKERS. Except for Robert W. Baird & Co. Incorporated, no
broker, investment banker, financial advisor or other person is entitled to any
broker's, finder's, financial advisor's or other similar fee or commission in
connection with the transactions contemplated by this Agreement based upon
arrangements made by or on behalf of Acquiror or Merger Sub.
(q) OWNERSHIP OF THE COMPANY CAPITAL STOCK. Except for shares
owned by Acquiror Benefit Plans or shares held or managed for the account of
another person or as to which Acquiror is required to act as a fiduciary or in a
similar capacity, as of the date hereof, neither Acquiror nor, to its knowledge
without independent investigation, any of its affiliates, (i) beneficially owns
(as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, or
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(ii) is party to any agreement, arrangement or understanding for the purpose of
acquiring, holding, voting or disposing of, in each case, shares of capital
stock of the Company.
(r) CERTAIN CONTRACTS. Except as set forth in the Acquiror
Filed SEC Documents or as permitted pursuant to Section 4.1(b), neither Acquiror
nor any of its subsidiaries is a party to or bound by (i) any agreement relating
to the incurring of indebtedness (including sale and leaseback and capitalized
lease transactions and other similar financing transactions but excluding
commercial paper) providing for payment or repayment in excess of $100.0
million, (ii) any "material contract" (as such term is defined in Item
601(b)(10) of Regulation S-K of the SEC) or (iii) any non-competition agreement
which purports to limit in any material respect the manner in which, or
localities in which, all or any substantial portion of the business of Acquiror
and its subsidiaries, taken as a whole, is or would be conducted.
(s) OPINION OF FINANCIAL ADVISOR. Acquiror has received the
opinion of Robert W. Baird & Co. Incorporated, dated the date of this Agreement,
to the effect that, as of such date, the Exchange Ratio for the conversion of
Company Common Stock into Acquiror Common Stock pursuant to the Merger is fair
to Acquiror from a financial point of view, a signed copy of which opinion will
be made available to the Company promptly after the date hereof.
(t) ENVIRONMENTAL MATTERS.
(i) During the three-year period immediately preceding the
date of this Agreement, neither Acquiror nor any of its subsidiaries
has received any written communication, whether from a Governmental
Entity, citizens' group, employee or otherwise, alleging that Acquiror
or any of its subsidiaries is not in compliance with applicable
Environmental Laws, other than those instances of alleged noncompliance
which individually or in the aggregate would not (x) reasonably be
expected to have a material adverse effect on Acquiror or (y)
reasonably be expected to materially impair or delay the ability of
Acquiror to perform its obligations under this Agreement.
(ii) There is no Environmental Claim pending or, to the
knowledge of Acquiror, threatened, against Acquiror or any of its
subsidiaries or, to the knowledge of Acquiror, against any person whose
liability for any Environmental Claim Acquiror or any of its
subsidiaries has or may have retained or assumed either contractually
or by operation of law, other than those Environmental Claims which
individually or in the aggregate would not (x) reasonably be expected
to have a material adverse effect on Acquiror or (y) reasonably be
expected to materially impair or delay the ability of Acquiror to
perform its obligations under this Agreement.
(iii) There are no present actions, activities, circumstances,
conditions, events or incidents, including, without limitation, the
Release or presence of any Hazardous Material at any property, that
could reasonably be expected to result in liability under any
Environmental Law for Acquiror or any of its subsidiaries or, to the
knowledge of Acquiror, for any person whose liability for any
Environmental Claim Acquiror or any of
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its subsidiaries has or may have retained or assumed either
contractually or by operation of law, other than those liabilities
which individually or in the aggregate would not (x) reasonably be
expected to have a material adverse effect on Acquiror or (y)
reasonably be expected to materially impair or delay the ability of
Acquiror to perform its obligations under this Agreement.
(u) INTELLECTUAL PROPERTY.
(i) Acquiror and its subsidiaries own or have a binding,
enforceable right to use all letters patent, patent applications, trade
names, brand names, trademarks, service marks, trademark and service
mark registrations and applications, copyright registrations and
applications, both domestic and foreign (collectively, the "Acquiror
Intellectual Property") used in their businesses substantially as
currently conducted except for such Acquiror Intellectual Property, the
failure of which to own or have a binding, enforceable right to use
individually or in the aggregate would not reasonably be expected to
have a material adverse effect on Acquiror. Neither Acquiror nor any of
its subsidiaries has received any written notice of infringement of or
conflict with and, to the knowledge of the Acquiror, there are no
infringements of or conflicts with, the rights of others with respect
to the use of any Acquiror Intellectual Property that individually or
in the aggregate, in either such case, would reasonably be expected to
have a material adverse effect on Acquiror or would reasonably be
expected to materially impair or delay the ability of Acquiror to
perform its obligations under this Agreement. Neither Acquiror nor any
of its subsidiaries has received any written notice that the conduct of
another person's business or the nature of any of products sold or
services provided by another person infringes upon or conflicts with
Acquiror's registered trademarks set forth in its Annual Report on Form
10-K for the fiscal year ended December 31, 1997 other than those
infringements or conflicts that individually or in the aggregate would
not reasonably be expected to have a material adverse effect on
Acquiror or would not reasonably be expected to materially impair or
delay the ability of Acquiror to perform its obligations under this
Agreement.
(ii) Acquiror has conducted a comprehensive review of its
computer systems' ability to process properly year date codes after
December 31, 1999, has formulated a plan to modify or replace programs
where necessary and believes that all necessary reprogramming efforts
will be completed prior to December 31, 1999, except for any failures
to complete such reprogramming efforts as would not individually or in
the aggregate have a material adverse effect on Acquiror.
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ARTICLE 4
COVENANTS RELATING TO CONDUCT OF BUSINESS
Section 4.1 CONDUCT OF BUSINESS.
(a) CONDUCT OF BUSINESS BY THE COMPANY. Except as set forth in
Section 4.1(a) of the Company Disclosure Schedule, except as otherwise expressly
contemplated by this Agreement or except as consented to by Acquiror, such
consent not to be unreasonably withheld or delayed, during the period from the
date of this Agreement to the Effective Time, the Company shall, and shall cause
its subsidiaries to, carry on their respective businesses in the ordinary course
consistent with past practice and in compliance in all material respects with
all applicable laws and regulations and, to the extent consistent therewith, use
all reasonable efforts to preserve intact their current business organizations
(other than internal organizational realignments), use all reasonable efforts to
keep available the services of their current officers and other key employees
and preserve their relationships with those persons having business dealings
with them to the end that their goodwill and ongoing businesses shall be
unimpaired at the Effective Time. Without limiting the generality of the
foregoing (but subject to the above exceptions), during the period from the date
of this Agreement to the Effective Time, the Company shall not, and shall not
permit any of its subsidiaries to:
(i) other than dividends and distributions by a direct or
indirect wholly owned subsidiary of the Company to its parent, or by a
subsidiary that is partially owned by the Company or any of its
subsidiaries, provided that the Company or any such subsidiary receives
or is to receive its proportionate share thereof, and other than the
regular quarterly cash dividends with respect to the Company Common
Stock, (x) declare, set aside or pay any dividends on, or make any
other distributions in respect of, any of its capital stock, (y) split,
combine or reclassify any of its capital stock or issue or authorize
the issuance of any other securities in respect of, in lieu of or in
substitution for shares of its capital stock, except for issuances of
the Company Common Stock upon the exercise of the Company Employee
Stock Options under the Company Stock Plan or in connection with other
awards under the Company Stock Plan, in each case, outstanding as of
September 30, 1998 and in accordance with their present terms or issued
pursuant to Section 4.1(a)(ii) or (z) except pursuant to agreements
entered into with respect to the Company Stock Plan that are in effect
as of the close of business on September 30, 1998, purchase, redeem or
otherwise acquire any shares of capital stock of the Company or any of
its subsidiaries or any other securities thereof or any rights,
warrants or options to acquire any such shares or other securities;
(ii) issue, deliver, sell, pledge or otherwise encumber or
subject to any Lien any shares of its capital stock, any other voting
securities or any securities convertible into, or any rights, warrants
or options to acquire, any such shares, voting securities or
convertible securities, other than the issuance of Company Common Stock
upon the exercise of the Company Employee Stock Options or in
connection with other awards under the Company Stock Plan (I)
outstanding as of September 30, 1998 and in accordance with
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their present terms or granted after the date thereof in the ordinary
course of business consistent with past practice or (II) after
consulting with Acquiror, otherwise granted after the date hereof so
long as (x) the amount of the Company Common Stock subject to the
Company Employee Stock Options and/or other awards under the Company
Stock Plan granted after September 30, 1998 do not exceed 1,100,000
shares of Company Common Stock in the aggregate; and (y) the amount of
performance shares under the Company Stock Plan granted after September
30, 1998 do not exceed 125,000 performance shares in the aggregate;
PROVIDED, HOWEVER, that any such grants made after the date of this
Agreement shall not have terms that would impair the parties' ability
to obtain pooling of interests accounting treatment for the Merger
(including, without limitation, provisions for accelerated vesting upon
a "change of control" of the Company);
(iii) amend its articles of incorporation, code of regulations
or other comparable organizational documents, or, in the case of the
Company, merge or consolidate with any person;
(iv) acquire or agree to acquire by merging or consolidating
with, or by purchasing a substantial portion of the assets of, or by
any other manner, any business or any person, except for such
acquisitions for which the aggregate consideration (including
indebtedness directly or indirectly assumed) is less than $200.0
million;
(v) sell, lease, license, mortgage or otherwise encumber or
subject to any Lien or otherwise dispose of any of its properties or
assets (x) other than in the ordinary course of business consistent
with past practice or (y) for an aggregate consideration (including
indebtedness directly or indirectly assumed) in excess of $200.0
million; PROVIDED, HOWEVER, that, prior to effecting any such sale or
disposition, the Company obtains written assurance from its independent
public accountants that such sale or disposition will not impair the
parties' ability to obtain pooling of interests accounting treatment
for the Merger;
(vi) take any action that would cause the representations and
warranties set forth in clauses (3), (4) or (5) of Section 3.1(g) to no
longer be true and correct (with each reference in Section 3.1(g) to
"ordinary course of business" being deemed for purposes of this Section
4.1(a)(vi) to be immediately followed by "consistent with past
practice");
(vii) except as provided in Section 4.2, the Company shall not
amend, modify or waive any provision of the Company Rights Agreement,
and shall not take any action to redeem the rights issued thereunder or
render the rights issued thereunder inapplicable to a transaction,
other than to permit another transaction that the Board of Directors of
the Company has determined is a Company Superior Proposal;
(viii) license (other than pursuant to agreements outstanding
as of the date hereof), transfer or otherwise dispose of, or permit to
lapse, any rights in the Material Company Trademarks other than
licenses in the ordinary course of business consistent with past
practice; or
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(ix) authorize, or commit or agree to take, any of the
foregoing actions;
PROVIDED that the limitations set forth in this Section 4.1(a) (other than
clause (iii)) shall not apply to any transaction to which the only parties are
the Company and any wholly owned subsidiary or subsidiaries of the Company.
(b) CONDUCT OF BUSINESS BY ACQUIROR. Except as otherwise
expressly contemplated by this Agreement or except as consented to by the
Company, such consent not to be unreasonably withheld or delayed, during the
period from the date of this Agreement to the Effective Time, Acquiror shall,
and shall cause its subsidiaries to, carry on their respective businesses in the
ordinary course consistent with past practice and in compliance in all material
respects with all applicable laws and regulations and, to the extent consistent
therewith, use all reasonable efforts to preserve intact their current business
organizations (other than internal organizational realignments), use all
reasonable efforts to keep available the services of their current officers and
other key employees and preserve their relationships with those persons having
business dealings with them to the end that their goodwill and ongoing
businesses shall be unimpaired at the Effective Time. Without limiting the
generality of the foregoing (but subject to the above exceptions), during the
period from the date of this Agreement to the Effective Time, Acquiror shall
not, and shall not permit any of its subsidiaries to:
(i) other than dividends and distributions by a direct or
indirect wholly owned subsidiary of Acquiror to its parent, or by a
subsidiary that is partially owned by Acquiror or any of its
subsidiaries, provided that Acquiror or any such subsidiary receives or
is to receive its proportionate share thereof, and other than the
regular quarterly cash dividends with respect to the Acquiror Common
Stock, (x) declare, set aside or pay any dividends on, or make any
other distributions in respect of, any of its capital stock, (y) split,
combine or reclassify any of its capital stock or issue or authorize
the issuance of any other securities in respect of, in lieu of or in
substitution for shares of its capital stock, except for issuances of
Acquiror Common Stock upon the exercise of Acquiror Employee Stock
Options under the Acquiror Stock Plans or in connection with other
awards under the Acquiror Stock Plans, in each case, outstanding as of
September 30, 1998 and in accordance with their present terms or issued
pursuant to Section 4.1(b)(ii) or (z) purchase, redeem or otherwise
acquire any shares of capital stock of Acquiror or any of its
subsidiaries or any other securities thereof or any rights, warrants or
options to acquire any such shares or other securities;
(ii) issue, deliver, sell, pledge or otherwise encumber or
subject to any Lien any shares of its capital stock, any other voting
securities or any securities convertible into, or any rights, warrants
or options to acquire, any such shares, voting securities or
convertible securities, other than (x) the issuance of shares of
Acquiror Common Stock permitted by Section 4.1(b)(iv), (y) the issuance
of up to an aggregate of 9,865,000 shares of Acquiror Common Stock upon
the conversion of outstanding convertible trust preferred securities of
a subsidiary trust of Acquiror pursuant to the Trust Documents and (z)
the issuance of Acquiror Common Stock or options to purchase shares of
Acquiror Common Stock upon
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the exercise of Acquiror Employee Stock Options or in connection with
other awards under the Acquiror Stock Plans (I) outstanding as of
September 30, 1998 and in accordance with their present terms or
granted after the date thereof in the ordinary course of business
consistent with past practice or (II) after consulting with the
Company, otherwise granted after the date hereof so long as the amount
of Acquiror Common Stock subject to Acquiror Employee Stock Options
and/or other awards under the Acquiror Stock Plans granted after
September 30, 1998 do not exceed 1,100,000 shares of Acquiror Common
Stock in the aggregate; PROVIDED, HOWEVER, that any such grants made
after the date of this Agreement shall not have terms that would impair
the parties' ability to obtain pooling of interests accounting
treatment for the Merger;
(iii) amend its certificate of incorporation, by-laws or other
comparable organizational documents;
(iv) acquire or agree to acquire by merging or consolidating
with, or by purchasing a substantial portion of the assets of, or by
any other manner, any business or any person, except for such
acquisitions for which the aggregate consideration (including
indebtedness directly or indirectly assumed) is not more than $500.0
million, of which not more than $300.0 million may be paid through the
issuance of shares of Acquiror Common Stock which shall be valued at
the closing price of the Acquiror Common Stock on the NYSE on the day
prior to the announcement of any such acquisition;
(v) sell, lease, license, mortgage or otherwise encumber or
subject to any Lien or otherwise dispose of any of its properties or
assets (x) other than in the ordinary course of business consistent
with past practice or (y) for an aggregate consideration (including
indebtedness directly or indirectly assumed) in excess of $200.0
million; PROVIDED, HOWEVER, that, prior to effecting any such sale or
disposition, Acquiror obtains written assurance from its independent
public accountants that such sale or disposition will not impair the
parties' ability to obtain pooling of interests accounting treatment
for the Merger;
(vi) take any action that would cause the representations and
warranties set forth in clauses (3), (4) or (5) of Section 3.2(h) to no
longer be true and correct (with each reference in Section 3.2(h) to
"ordinary course of business" being deemed for purposes of this Section
4.l(b)(vi) to be immediately followed by "consistent with past
practice");
(vii) except as provided in Section 4.3, Acquiror shall not
amend, modify or waive any provision of the Acquiror Rights Agreement,
and shall not take any action to redeem the rights issued thereunder or
render the rights issued thereunder inapplicable to a transaction,
other than to permit another transaction that the Board of Directors of
Acquiror has determined is an Acquiror Superior Proposal; or
(viii authorize, or commit or agree to take, any of the
foregoing actions;
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PROVIDED that the limitations set forth in this Section 4.1(b) (other than
clause (iii)) shall not apply to any transaction to which the only parties are
Acquiror and any wholly owned subsidiary or subsidiaries of Acquiror.
(c) COORDINATION OF DIVIDENDS. Subject to Section 5.14, each
of Acquiror and the Company shall coordinate with the other regarding the
declaration and payment of dividends in respect of the Acquiror Common Stock and
the Company Common Stock and the record dates and payment dates relating
thereto, it being the intention of Acquiror and the Company that any holder of
the Company Common Stock or Acquiror Common Stock shall not receive two
dividends, or fail to receive one dividend, for any single calendar quarter with
respect to its shares of the Company Common Stock and/or shares of Acquiror
Common Stock, including shares of Acquiror Common Stock that a holder receives
in exchange for shares of the Company Common Stock pursuant to the Merger.
(d) OTHER ACTIONS. Except as required by law, the Company and
Acquiror shall not, and shall not permit any of their respective subsidiaries
to, voluntarily take any action that would reasonably be expected to result in
any of the conditions to the Merger set forth in Article 6 not being satisfied.
(e) ADVICE OF CHANGES. The Company and Acquiror shall promptly
advise the other party orally and in writing to the extent it has knowledge of
any change or event having, or which, insofar as can reasonably be foreseen,
would reasonably be expected to have a material adverse effect on such party or
on the truth of their respective representations and warranties or the ability
of the conditions set forth in Article 6 to be satisfied; PROVIDED, HOWEVER,
that no such notification shall affect the representations, warranties,
covenants or agreements of the parties (or remedies with respect thereto) or the
conditions to the obligations of the parties under this Agreement.
(f) CONTROL OF OTHER PARTY'S BUSINESS. Nothing contained in
this Agreement shall give Acquiror, directly or indirectly, the right to control
or direct the Company's operations prior to the Effective Time. Nothing
contained in this Agreement shall give the Company, directly or indirectly, the
right to control or direct Acquiror's operations prior to the Effective Time.
Prior to the Effective Time, each of Acquiror and the Company shall exercise,
consistent with the terms and conditions of this Agreement, complete control and
supervision over its respective operations.
Section 4.2 NO SOLICITATION BY THE COMPANY.
(a) The Company shall not, nor shall it permit any of its
subsidiaries to, nor shall it authorize or permit any of its directors, officers
or employees or any investment banker, financial advisor, attorney, accountant
or other representative retained by it or any of its subsidiaries to, directly
or indirectly through another person, (i) solicit, initiate or encourage
(including by way of furnishing information), or take any other action designed
to facilitate, any inquiries or the making of any proposal which constitutes any
Company Takeover Proposal (as defined below) or (ii) participate in any
discussions or negotiations regarding any Company
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Takeover Proposal; PROVIDED, HOWEVER, that if, at any time, the Board of
Directors of the Company determines in good faith, after consultation with
outside counsel, that it is necessary to do so in order to act in a manner
consistent with its fiduciary duties to the Company's stockholders under
applicable law, the Company may, in response to a Company Superior Proposal (as
defined in Section 4.2(b)) which was not solicited by it or which did not
otherwise result from a breach of this Section 4.2(a) and subject to providing
prior written notice of its decision to take such action to Acquiror (the
"Company Notice") and compliance with Section 4.2(c), following delivery of the
Company Notice (x) furnish information with respect to the Company and its
subsidiaries to any person making a Company Superior Proposal pursuant to a
customary confidentiality agreement (as determined by the Company after
consultation with its outside counsel) that is no less restrictive than the
Confidentiality Agreement and (y) participate in discussions or negotiations
regarding such Company Superior Proposal. For purposes of this Agreement,
"Company Takeover Proposal" means any inquiry, proposal or offer from any person
relating to any (w) direct or indirect acquisition or purchase of a business
that constitutes 15% or more of the net revenues, net income or the assets of
the Company and its subsidiaries, taken as a whole, (x) direct or indirect
acquisition or purchase of 15% or more of any class of equity securities of the
Company or any of its subsidiaries whose business constitutes 15% or more of the
net revenues, net income or assets of the Company and its subsidiaries, taken as
a whole, (y) tender offer or exchange offer that if consummated would result in
any person beneficially owning 15% or more of any class of equity securities of
the Company or any of its subsidiaries whose business constitutes 15% or more of
the net revenues, net income or assets of the Company and its subsidiaries,
taken as a whole, or (z) merger, consolidation, business combination,
recapitalization, liquidation, dissolution or similar transaction involving the
Company or any of its subsidiaries whose business constitutes 15% or more of the
net revenues, net income or assets of the Company and its subsidiaries, taken as
a whole, other than the transactions contemplated by this Agreement.
(b) Except as expressly permitted by this Section 4.2, neither
the Board of Directors of the Company nor any committee thereof shall (i)
withdraw or modify, or propose publicly to withdraw or modify, in a manner
adverse to Acquiror, the approval or recommendation by such Board of Directors
or such committee of the Merger or this Agreement, (ii) approve or recommend, or
propose publicly to approve or recommend, any Company Takeover Proposal or (iii)
cause the Company to enter into any letter of intent, agreement in principle,
acquisition agreement or other similar agreement (each, a "Company Acquisition
Agreement") related to any Company Takeover Proposal. Notwithstanding the
foregoing, in the event that the Board of Directors of the Company determines in
good faith, after consultation with outside counsel, that in light of a Company
Superior Proposal it is necessary to do so in order to act in a manner
consistent with its fiduciary duties to the Company's stockholders under
applicable law, the Board of Directors of the Company may (subject to this and
the following sentences) terminate this Agreement in order to concurrently enter
into such Company Acquisition Agreement with respect to a Company Superior
Proposal; PROVIDED, HOWEVER, that the Company may not terminate this Agreement
pursuant to this Section 4.2(b) unless and until (i) three business days have
elapsed following the delivery to Acquiror of a written notice of such
determination by the Board of Directors of the Company and (x) the Company has
delivered to Acquiror the written notice required by Section 4.2(c) below, and
(y) during such three business
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day period, the Company otherwise cooperates with Acquiror with respect to the
Company Takeover Proposal that constitutes a Company Superior Proposal with the
intent of enabling Acquiror to engage in good faith negotiations so that the
transactions contemplated hereby may be effected and (ii) at the end of such
three business day period the Board of Directors of the Company continues
reasonably to believe that the Company Takeover Proposal constitutes a Company
Superior Proposal. For purposes of this Agreement, a "Company Superior Proposal"
means any proposal made by a third party to acquire, directly or indirectly,
including pursuant to a tender offer, exchange offer, merger, consolidation,
business combination, recapitalization, liquidation, dissolution or similar
transaction, for consideration consisting of cash and/or securities, more than
50% of the combined voting power of the shares of Company Common Stock then
outstanding or all or substantially all the assets of the Company and otherwise
on terms which the Board of Directors of the Company determines in its good
faith judgment (based on the advice of a financial advisor of nationally
recognized reputation) to be more favorable to the Company's stockholders than
the Merger and for which financing, to the extent required, is then committed or
which, in the good faith judgment of the Board of Directors of the Company, is
reasonably capable of being obtained by such third party.
(c) In addition to the obligations of the Company set forth in
paragraphs (a) and (b) of this Section 4.2, the Company shall immediately advise
Acquiror orally and in writing of any request for information or of any Company
Takeover Proposal, the material terms and conditions of such request or Company
Takeover Proposal and the identity of the person making such request or Company
Takeover Proposal. The Company will keep Acquiror reasonably informed of the
status and details (including amendments and proposed amendments) of any such
request or Company Takeover Proposal.
(d) Nothing contained in this Section 4.2 shall prohibit the
Company from taking and disclosing to its stockholders a position contemplated
by Rule 14e-2(a) promulgated under the Exchange Act or from making any
disclosure to the Company's stockholders if, in the good faith judgment of the
Board of Directors of the Company, after consultation with outside counsel,
failure so to disclose would be inconsistent with its obligations under
applicable law; PROVIDED, HOWEVER, that, except as expressly permitted by
paragraph (a) of this Section 4.2 in connection with a Company Superior
Proposal, neither the Company nor its Board of Directors nor any committee
thereof shall withdraw or modify, or propose publicly to withdraw or modify, its
position with respect to this Agreement or the Merger or approve or recommend,
or propose publicly to approve or recommend, a Company Takeover Proposal.
Section 4.3 NO SOLICITATION BY ACQUIROR.
(a) Acquiror shall not, nor shall it permit any of its
subsidiaries to, nor shall it authorize or permit any of its directors, officers
or employees or any investment banker, financial advisor, attorney, accountant
or other representative retained by it or any of its subsidiaries to, directly
or indirectly through another person, (i) solicit, initiate or encourage
(including by way of furnishing information), or take any other action designed
to facilitate, any inquiries or the making of any proposal which constitutes any
Acquiror Takeover Proposal (as defined below) or (ii) participate in any
discussions or negotiations regarding any Acquiror Takeover Proposal;
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PROVIDED, HOWEVER, that if, at any time, the Board of Directors of Acquiror
determines in good faith, after consultation with outside counsel, that it is
necessary to do so in order to act in a manner consistent with its fiduciary
duties to Acquiror's stockholders under applicable law, Acquiror may, in
response to an Acquiror Superior Proposal (as defined in Section 4.3(b)) which
was not solicited by it or which did not otherwise result from a breach of this
Section 4.3(a) and subject to providing prior written notice of its decision to
take such action to the Company (the "Acquiror Notice") and compliance with
Section 4.3(c), following delivery of the Acquiror Notice (x) furnish
information with respect to Acquiror and its subsidiaries to any person making
an Acquiror Superior Proposal pursuant to a customary confidentiality agreement
(as determined by Acquiror after consultation with its outside counsel) that is
no less restrictive than the Confidentiality Agreement and (y) participate in
discussions or negotiations regarding such Acquiror Superior Proposal. For
purposes of this Agreement, "Acquiror Takeover Proposal" means any inquiry,
proposal or offer from any person relating to any (w) direct or indirect
acquisition or purchase of a business that constitutes 15% or more of the net
revenues, net income or the assets of Acquiror and its subsidiaries, taken as a
whole, (x) direct or indirect acquisition or purchase of 15% or more of any
class of equity securities of Acquiror or of 15% or more of any class of equity
securities of any of its subsidiaries whose business constitutes 15% or more of
the net revenues, net income or assets of Acquiror and its subsidiaries, taken
as a whole, (y) tender offer or exchange offer that if consummated would result
in any person beneficially owning 15% or more of any class of equity securities
of Acquiror or any of its subsidiaries whose business constitutes 15% or more of
the net revenues, net income or assets of Acquiror and its subsidiaries, taken
as a whole, or (z) merger, consolidation, business combination,
recapitalization, liquidation, dissolution or similar transaction involving
Acquiror or any of its subsidiaries whose business constitutes 15% or more of
the net revenues, net income or assets of Acquiror and its subsidiaries, taken
as a whole, other than the transactions contemplated by this Agreement.
(b) Except as expressly permitted by this Section 4.3, neither
the Board of Directors of Acquiror nor any committee thereof shall (i) withdraw
or modify, or propose publicly to withdraw or modify, in a manner adverse to the
Company, the approval or recommendation by such Board of Directors or such
committee of the Merger, this Agreement or the issuance of Acquiror Common Stock
in connection with the Merger, (ii) approve or recommend, or propose publicly to
approve or recommend, any Acquiror Takeover Proposal or (iii) cause Acquiror to
enter into any letter of intent, agreement in principle, acquisition agreement
or other similar agreement (each, an "Acquiror Acquisition Agreement") related
to any Acquiror Takeover Proposal. Notwithstanding the foregoing, in the event
that the Board of Directors of Acquiror determines in good faith, after
consultation with outside counsel, that in light of an Acquiror Superior
Proposal it is necessary to do so in order to act in a manner consistent with
its fiduciary duties to Acquiror's stockholders under applicable law, the Board
of Directors of Acquiror may (subject to this and the following sentences)
terminate this Agreement in order to concurrently enter into such Acquiror
Acquisition Agreement with respect to an Acquiror Superior Proposal; PROVIDED,
HOWEVER, that Acquiror may not terminate this Agreement pursuant to this Section
4.3(b) unless and until (i) three business days have elapsed following the
delivery to the Company of a written notice of such determination by the Board
of Directors of Acquiror and (x) Acquiror has delivered to the Company the
written notice required by Section 4.3(c) below, and (y) during such three
business day period, Acquiror otherwise cooperates with the Company with respect
to
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an Acquiror Takeover Proposal that constitutes an Acquiror Superior Proposal
with the intent of enabling the Company to engage in good faith negotiations so
that the transactions contemplated hereby may be effected and (ii) at the end of
such three business day period the Board of Directors of Acquiror continues
reasonably to believe that the Acquiror Takeover Proposal constitutes an
Acquiror Superior Proposal. For purposes of this Agreement, an "Acquiror
Superior Proposal" means any proposal made by a third party to acquire, directly
or indirectly, including pursuant to a tender offer, exchange offer, merger,
consolidation, business combination, recapitalization, liquidation, dissolution
or similar transaction, for consideration consisting of cash and/or securities,
more than 50% of the combined voting power of the shares of Acquiror Common
Stock then outstanding or all or substantially all the assets of Acquiror and
otherwise on terms which the Board of Directors of Acquiror determines in its
good faith judgment (based on the advice of a financial advisor of nationally
recognized reputation) to be more favorable to Acquiror's stockholders than the
Merger and for which financing, to the extent required, is then committed or
which, in the good faith judgment of the Board of Directors of Acquiror, is
reasonably capable of being obtained by such third party.
(c) In addition to the obligations of Acquiror set forth in
paragraphs (a) and (b) of this Section 4.3, Acquiror shall immediately advise
the Company orally and in writing of any request for information or of any
Acquiror Takeover Proposal, the material terms and conditions of such request or
Acquiror Takeover Proposal and the identity of the person making such request or
Acquiror Takeover Proposal. Acquiror will keep the Company reasonably informed
of the status and details (including amendments and proposed amendments) of any
such request or Acquiror Takeover Proposal.
(d) Nothing contained in this Section 4.3 shall prohibit
Acquiror from taking and disclosing to its stockholders a position contemplated
by Rule 14e-2(a) promulgated under the Exchange Act or from making any
disclosure to Acquiror's stockholders if, in the good faith judgment of the
Board of Directors of Acquiror, after consultation with outside counsel, failure
so to disclose would be inconsistent with its obligations under applicable law;
PROVIDED, HOWEVER, that, except as expressly permitted by paragraph (a) of this
Section 4.3 in connection with an Acquiror Superior Proposal, neither Acquiror
nor its Board of Directors nor any committee thereof shall withdraw or modify,
or propose publicly to withdraw or modify, its position with respect to this
Agreement, the Merger, the issuance of Acquiror Common Stock in connection with
the Merger, or approve or recommend, or propose publicly to approve or
recommend, an Acquiror Takeover Proposal.
ARTICLE 5
ADDITIONAL AGREEMENTS
Section 5.1 PREPARATION OF THE FORM S-4 AND THE JOINT PROXY
STATEMENT; STOCKHOLDERS MEETINGS.
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(a) As soon as practicable following the date of this
Agreement, the Company and Acquiror shall prepare and file with the SEC the
Joint Proxy Statement and Acquiror shall prepare and file with the SEC the Form
S-4, in which the Joint Proxy Statement will be included as a prospectus. Each
of the Company and Acquiror shall use reasonable best efforts to have the Form
S-4 declared effective under the Securities Act as promptly as practicable after
such filing. The Company will use all reasonable best efforts to cause the Joint
Proxy Statement to be mailed to the Company's stockholders, and Acquiror will
use all reasonable best efforts to cause the Joint Proxy Statement to be mailed
to Acquiror's stockholders, in each case as promptly as practicable after the
Form S-4 is declared effective under the Securities Act. Acquiror shall also
take any action (other than qualifying to do business in any jurisdiction in
which it is not now so qualified or to file a general consent to service of
process) required to be taken under any applicable state securities laws in
connection with the issuance of Acquiror Common Stock in the Merger and the
Company shall furnish all information concerning the Company and the holders of
the Company Common Stock as may be reasonably requested in connection with any
such action. No filing of, or amendment or supplement to, the Form S-4 will be
made by Acquiror or to the Joint Proxy Statement will be made by Acquiror or the
Company without providing the other party the opportunity to review and comment
thereon. Acquiror will advise the Company, promptly after it receives notice
thereof, of the time when the Form S-4 has become effective or any supplement or
amendment has been filed, the issuance of any stop order, the suspension of the
qualification of the Acquiror Common Stock issuable in connection with the
Merger for offering or sale in any jurisdiction, or any request by the SEC for
amendment of the Joint Proxy Statement or the Form S-4 or comments thereon and
responses thereto or requests by the SEC for additional information. If at any
time prior to the Effective Time any information relating to the Company or
Acquiror, or any of their respective affiliates, officers or directors, should
be discovered by the Company or Acquiror which should be set forth in an
amendment or supplement to any of the Form S-4 or the Joint Proxy Statement, so
that any of such documents would not include any misstatement of a material fact
or omit to state any material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading, the party
which discovers such information shall promptly notify the other party hereto
and an appropriate amendment or supplement describing such information shall be
promptly filed with the SEC and, to the extent required by law, disseminated to
the stockholders of the Company and Acquiror.
(b) The Company shall, as soon as practicable following the
date of this Agreement, duly call, give notice of, convene and hold a meeting of
its stockholders (the "Company Stockholders Meeting") for the purpose of
obtaining the Company Stockholder Approval and shall, through its Board of
Directors, recommend to its stockholders the approval and adoption of this
Agreement, the Merger and the other transactions contemplated hereby. Without
limiting the generality of the foregoing but subject to its rights pursuant to
Section 4.2 and Section 7.1(f), the Company agrees that its obligations pursuant
to the first sentence of this Section 5.1(b) shall not be affected by the
commencement, public proposal, public disclosure or communication to the Company
of any Company Takeover Proposal.
(c) Acquiror shall, as soon as practicable following the date
of this Agreement, duly call, give notice of, convene and hold a meeting of its
stockholders (the "Acquiror Stockholders Meeting") for the purposes of obtaining
the Acquiror Stockholder Approval and the
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change of Acquiror's name to "Newell Rubbermaid Inc." and shall, through its
Board of Directors, recommend to its stockholders the approval of the issuance
of Acquiror Common Stock to be issued pursuant to this Agreement. Without
limiting the generality of the foregoing but subject to its rights pursuant to
Section 4.3 and Section 7.1(d), Acquiror agrees that its obligations pursuant to
the first sentence of this Section 5.1(c) shall not be affected by the
commencement, public proposal, public disclosure or communication to Acquiror of
any Acquiror Takeover Proposal.
(d) Acquiror and the Company will use all reasonable efforts
to hold the Company Stockholders Meeting and the Acquiror Stockholders Meeting
on the same date and as soon as practicable after the date hereof.
Section 5.2 LETTERS OF THE COMPANY'S ACCOUNTANTS.
(a) The Company shall use reasonable best efforts to cause to
be delivered to Acquiror two letters from the Company's independent accountants,
one dated a date within two business days before the date on which the Form S-4
shall become effective and one dated a date within two business days before the
Closing Date, each addressed to Acquiror, in form and substance reasonably
satisfactory to Acquiror and customary in scope and substance for comfort
letters delivered by independent public accountants in connection with
registration statements similar to the Form S-4.
(b) The Company shall use reasonable best efforts to cause to
be delivered to Acquiror and Acquiror's independent accountants two letters from
the Company's independent accountants addressed to Acquiror and the Company, one
dated as of the date the Form S-4 is effective reporting that, as of the date of
the letter, the Company qualifies as a "combining company" under Opinion 16 of
the Accounting Principles Board and applicable SEC rules and regulations, and
one dated as of the Closing Date reporting that the Merger will qualify as a
"pooling of interests" transaction under Opinion 16 of the Accounting Principles
Board and applicable SEC rules and regulations.
Section 5.3 LETTERS OF ACQUIROR'S ACCOUNTANTS.
(a) Acquiror shall use reasonable best efforts to cause to be
delivered to the Company two letters from Acquiror's independent accountants,
one dated a date within two business days before the date on which the Form S-4
shall become effective and one dated a date within two business days before the
Closing Date, each addressed to the Company, in form and substance reasonably
satisfactory to the Company and customary in scope and substance for comfort
letters delivered by independent public accountants in connection with
registration statements similar to the Form S-4.
(b) Acquiror shall use reasonable best efforts to cause to be
delivered to the Company and the Company's independent accountants two letters
from Acquiror's independent accountants addressed to the Company and Acquiror,
one dated as of the date the Form S-4 is effective reporting that, as of the
date of the letter, Acquiror qualifies as a "combining company" under Opinion 16
of the Accounting Principles Board and applicable SEC rules and regulations,
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and one dated as of the Closing Date reporting that the Merger will qualify as a
"pooling of interests" transaction under Opinion 16 of the Accounting Principles
Board and applicable SEC rules and regulations.
Section 5.4 ACCESS TO INFORMATION; CONFIDENTIALITY. To the
extent permitted by applicable law and subject to the Agreement dated October 2,
1998, between Acquiror and the Company (the "Confidentiality Agreement"), each
of the Company and Acquiror shall, and shall cause each of its respective
subsidiaries to, afford to the other party and to the officers, employees,
accountants, counsel, financial advisors and other representatives of such other
party, reasonable access during normal business hours during the period prior to
the Effective Time to all their respective properties, books, contracts,
commitments, personnel and records and, during such period, each of the Company
and Acquiror shall, and shall cause each of its respective subsidiaries to,
furnish promptly to the other party (a) a copy of each report, schedule,
registration statement and other document filed by it during such period
pursuant to the requirements of federal or state securities laws and (b) all
other information concerning its business, properties and personnel as such
other party may reasonably request. Any review pursuant to this Section 5.4
shall be for the purposes of confirming the accuracy of any representation or
warranty contained in this Agreement given by Acquiror and Merger Sub to the
Company, or by the Company to Acquiror and Merger Sub and facilitating
transition planning. Each of the Company and Acquiror will hold, and will cause
its respective officers, employees, accountants, counsel, financial advisors and
other representatives and affiliates to hold, any nonpublic information in
accordance with the terms of the Confidentiality Agreement.
Section 5.5 REASONABLE BEST EFFORTS; COOPERATION.
(a) Upon the terms and subject to the conditions set forth in
this Agreement, each of the parties agrees to use reasonable best efforts to
take, or cause to be taken, all actions, and to do, or cause to be done, and to
assist and cooperate with the other parties in doing, all things necessary,
proper or advisable to consummate and make effective, in the most expeditious
manner practicable, the Merger and the other transactions contemplated by this
Agreement, including (i) the obtaining of all necessary actions or nonactions,
waivers, consents and approvals from Governmental Entities and the making of all
necessary registrations and filings and the taking of all steps as may be
necessary to obtain an approval or waiver from, or to avoid an action or
proceeding by, any Governmental Entity, (ii) the obtaining of all necessary
consents, approvals or waivers from third parties, (iii) the defending of any
lawsuits or other legal proceedings, whether judicial or administrative,
challenging this Agreement or the consummation of the transactions contemplated
hereby, including seeking to have any stay or temporary restraining order
entered by any court or other Governmental Entity vacated or reversed, and (iv)
the execution and delivery of any additional instruments necessary to consummate
the transactions contemplated by, and to fully carry out the purposes of, this
Agreement. Nothing set forth in this Section 5.5(a) will limit or affect actions
permitted to be taken pursuant to Sections 4.2 and 4.3.
(b) In connection with and without limiting the foregoing, the
Company and Acquiror shall (i) take all action necessary to ensure that no state
takeover statute or similar statute or regulation is or becomes applicable to
the Merger, this Agreement or any of the other
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transactions contemplated hereby and (ii) if any state takeover statute or
similar statute or regulation becomes applicable to the Merger, this Agreement
or any of the other transactions contemplated hereby, take all action necessary
to ensure that the Merger and the other transactions contemplated hereby may be
consummated as promptly as practicable on the terms contemplated by this
Agreement and otherwise to minimize the effect of such statute or regulation on
the Merger and the other transactions contemplated by this Agreement.
(c) Each of Acquiror and the Company shall cooperate with each
other in obtaining opinions of Schiff Hardin & Waite, counsel to Acquiror, and
Jones, Day, Reavis & Pogue, counsel to the Company, dated as of the Closing
Date, to the effect that the Merger will constitute a reorganization within the
meaning of Section 368(a) of the Code. In connection therewith, each of Acquiror
and the Company shall deliver to Schiff Hardin & Waite and Jones, Day, Reavis &
Pogue customary representation letters in form and substance reasonably
satisfactory to such counsel and the Company shall obtain any representation
letters from appropriate stockholders and shall deliver any such letters
obtained to Schiff Hardin & Waite and Jones, Day, Reavis & Pogue (the
representation letters referred to in this sentence are collectively referred to
as the "Tax Certificates").
(d) Each of Acquiror and the Company shall consult and
cooperate with the other with respect to significant developments in its
business and shall give reasonable consideration to the other's views with
respect thereto.
(e) Each of Acquiror and the Company shall (i) make the
filings required of such party under the HSR Act with respect to the Merger and
the other transactions contemplated by this Agreement within ten days after the
date of this Agreement, (ii) comply at the earliest practicable date with any
request under the HSR Act for additional information, documents or other
materials received by such party from the Federal Trade Commission or the
Department of Justice or any other Governmental Entity in respect of such
filings or the Merger and the other transactions contemplated by this Agreement,
and (iii) cooperate with the other party in connection with making any filing
under the HSR Act and in connection with any filings, conferences or other
submissions related to resolving any investigation or other inquiry by any such
Governmental Authority under the HSR Act with respect to the Merger and the
other transactions contemplated by this Agreement.
Section 5.6 STOCK OPTIONS, RESTRICTED STOCK AND EMPLOYMENT
AGREEMENTS.
(a) As of the Effective Time, (i) each outstanding Company
Employee Stock Option shall be converted into an option (an "Adjusted Option")
to purchase the number of shares of Acquiror Common Stock equal to the number of
shares of Company Common Stock subject to such Company Employee Stock Option
immediately prior to the Effective Time multiplied by the Exchange Ratio
(rounded to the nearest whole number of shares of Acquiror Common Stock), at an
exercise price per share equal to the exercise price for each such share of
Company Common Stock subject to such option divided by the Exchange Ratio
(rounded down to the nearest whole cent), and all references in each such option
to the Company shall be deemed to refer to Acquiror, where appropriate, and (ii)
Acquiror shall assume the obligations of the Company under the
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Company Stock Plan. The other terms of each Adjusted Option, and the plans or
agreements under which they were issued, shall continue to apply in accordance
with their terms. The date of grant of each Adjusted Option shall be the date on
which the corresponding Company Employee Stock Option was granted.
(b) To the extent that there are any outstanding awards
(including restricted stock, deferred stock and performance shares) (each, a
"Company Award") under the Company Stock Plan at the Effective Time, then, as of
the Effective Time, (i) each such Company Award shall be converted into the same
instrument of Acquiror, in each case with such adjustments (and no other
adjustments) to the terms of such Company Awards as are necessary to preserve
the value inherent in such Company Awards with no detrimental effects on the
holder thereof and (ii) Acquiror shall assume the obligations of the Company
under the Company Awards. The other terms of each Company Award, and the plans
or agreements under which they were issued, shall continue to apply in
accordance with their terms.
(c) The Company and Acquiror agree that each of the Company
Stock Plan and Acquiror Stock Plans shall be amended, to the extent necessary,
to reflect the transactions contemplated by this Agreement, including, but not
limited to the conversion of shares of the Company Common Stock held or to be
awarded or paid pursuant to such benefit plans, programs or arrangements into
shares of Acquiror Common Stock on a basis consistent with the transactions
contemplated by this Agreement. The Company and Acquiror agree to submit the
amendments to the Acquiror Stock Plans or the Company Stock Plan to their
respective stockholders, if such submission is determined to be necessary by
counsel to the Company or Acquiror after consultation with one another;
PROVIDED, HOWEVER, that such approval shall not be a condition to the
consummation of the Merger.
(d) Acquiror shall (i) reserve for issuance the number of
shares of Acquiror Common Stock that will become subject to the benefit plans,
programs and arrangements referred to in this Section 5.6 and (ii) issue or
cause to be issued the appropriate number of shares of Acquiror Common Stock
pursuant to applicable plans, programs and arrangements, upon the exercise or
maturation of rights existing thereunder on the Effective Time or thereafter
granted or awarded. No later than the Effective Time, Acquiror shall prepare and
file with the SEC a registration statement on Form S-8 (or other appropriate
form) registering a number of shares of Acquiror Common Stock necessary to
fulfill Acquiror's obligations under this Section 5.6. Such registration
statement shall be kept effective (and the current status of the prospectus
required thereby shall be maintained) for at least as long as Adjusted Options
or the Company Awards remain outstanding.
(e) As soon as practicable after the Effective Time, Acquiror
shall deliver to the holders of the Company Employee Stock Options and Company
Awards appropriate notices setting forth such holders' rights pursuant to the
Company Stock Plan and the agreements evidencing the grants of such Company
Employee Stock Options and Company Awards and that such Company Employee Stock
Options and Company Awards and the related agreements shall be assumed by
Acquiror and shall continue in effect on the same terms and conditions (subject
to the adjustments required by this Section after giving effect to the Merger).
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(f) Following the Effective Time, (i) Acquiror shall cause the
Surviving Corporation to honor in accordance with their terms all written
employment, severance and other compensation agreements of the Company and its
subsidiaries and (ii) Acquiror shall cause the Surviving Corporation to provide
severance benefits to employees of the Surviving Corporation in accordance with
Section 5.6(f) of the Acquiror Disclosure Schedule.
Section 5.7 INDEMNIFICATION.
(a) From and after the Effective Time, Acquiror shall, to the
fullest extent not prohibited by applicable law, indemnify, defend and hold
harmless each person who is now, or has been at any time prior to the date
hereof, or who becomes prior to the Effective Time, an officer, director or
employee of the Company or any of its subsidiaries (each, an "Indemnified Party"
and collectively, the "Indemnified Parties") against (i) all losses, expenses
(including reasonable attorneys' fees and expenses), claims, damages or
liabilities or, subject to the proviso of the next succeeding sentence, amounts
paid in settlement, arising out of actions or omissions occurring at or prior to
the Effective Time (and whether asserted or claimed prior to, at or after the
Effective Time) that are, in whole or in part, based on or arising out of the
fact that such person is or was a director, officer or employee of the Company
or any of its subsidiaries or served as a fiduciary under or with respect to any
employee benefit plan (within the meaning of Section 3(3) of ERISA) at any time
maintained by or contributed to by the Company or any of its subsidiaries
("Indemnified Liabilities"), and (ii) all Indemnified Liabilities to the extent
they are based on or arise out of or pertain to the transactions contemplated by
this Agreement. In the event of any such loss, expense, claim, damage or
liability (whether or not arising before the Effective Time), (i) Acquiror shall
pay the reasonable fees and expenses of counsel selected by the Indemnified
Parties, which counsel shall be reasonably satisfactory to Acquiror, promptly
after statements therefor are received and otherwise advance to such Indemnified
Party upon request reimbursement of documented expenses reasonably incurred,
(ii) Acquiror and the Company will cooperate in the defense of such matter and
(iii) any determination required to be made with respect to whether an
Indemnified Party's conduct complies with the standards set forth under
applicable law and the articles of incorporation or code of regulations shall be
made by independent counsel mutually acceptable to Acquiror and the Indemnified
Party; PROVIDED, HOWEVER, that Acquiror shall not be liable for any settlement
effected without its written consent (which consent shall not be unreasonably
withheld or delayed). In the event that any Indemnified Party is required to
bring any action to enforce rights or to collect moneys due under this Agreement
and is successful in such action, Acquiror shall reimburse such Indemnified
Party for all of its expenses in bringing and pursuing such action. Each
Indemnified Party shall be entitled to the advancement of expenses to the full
extent contemplated in this Section 5.7(a) in connection with any such action.
In addition, from and after the Effective Time, directors and officers of the
Company who become directors or officers of Acquiror will be entitled to
indemnification under Acquiror's Restated Certificate of Incorporation and
Bylaws, as the same may be amended from time to time in accordance with their
terms and applicable law, and to all other indemnity rights and protections as
are afforded to other directors and officers of Acquiror.
(b) In the event that Acquiror or any of its successors or
assigns (i) consolidates with or merges into any other person and is not the
continuing or surviving
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corporation or entity of such consolidation or merger or (ii) transfers or
conveys all or substantially all of its properties and assets to any person,
then, and in each such case, proper provision will be made so that the
successors and assigns of Acquiror assume the obligations set forth in this
Section 5.7.
(c) For six years after the Effective Time, Acquiror shall
maintain in effect the Company's current directors' and officers' liability
insurance covering acts or omissions occurring prior to the Effective Time with
respect to those persons who are currently covered by the Company's directors'
and officers' liability insurance policy on terms with respect to such coverage
and amount no less favorable than those of such policy in effect on the date
hereof, PROVIDED that Acquiror may substitute therefor policies of Acquiror or
its subsidiaries containing terms with respect to coverage and amount no less
favorable to such directors or officers; PROVIDED, FURTHER, that in no event
shall Acquiror be required to pay aggregate premiums for insurance under this
Section 5.7(c) in excess of 200% of the aggregate premiums paid by the Company
in 1998 for such purpose; PROVIDED, further, that if the annual premiums of such
insurance coverage exceed such amount, Acquiror shall be obligated to obtain a
policy with the best coverage available, in the reasonable judgment of the Board
of Directors of Acquiror, for a cost up to but not exceeding such amount. In
addition, for six years after the Effective Time, Acquiror shall maintain in
effect the Company's current fiduciary liability insurance policies for
employees who serve or have served as fiduciaries under or with respect to any
employee benefit plans described in Section 5.7(a) with coverages and in amounts
no less favorable than those of such policy in effect on the date hereof.
(d) The provisions of this Section 5.7 (i) are intended to be
for the benefit of, and will be enforceable by, each indemnified party, his or
her heirs and his or her representatives and (ii) are in addition to, and not in
substitution for, any other rights to indemnification or contribution that any
such person may have by contract or otherwise.
Section 5.8 FEES AND EXPENSES.
(a) Except as provided in this Section 5.8, all fees and
expenses incurred in connection with the Merger, this Agreement and the
transactions contemplated hereby shall be paid by the party incurring such fees
or expenses, whether or not the Merger is consummated, except that each of
Acquiror and the Company shall bear and pay one-half of the costs and expenses
incurred in connection with the filing, printing and mailing of the Form S-4 and
the Joint Proxy Statement (including SEC filing fees).
(b) In the event that (i) this Agreement is terminated by the
Company pursuant to Section 7.1(f), then the Company shall promptly, but in no
event later than two days after the date of termination pursuant to this clause
(i), pay Acquiror a fee equal to $140.0 million (the "Company Termination Fee"),
payable by wire transfer of same day funds, or (ii)(x) a Company Takeover
Proposal shall have been made known to the Company or any of its subsidiaries or
has been made directly to its stockholders generally or any person shall have
publicly announced an intention (whether or not conditional) to make a Company
Takeover Proposal which, in any such case, has not been publicly withdrawn prior
to the Company Stockholders Meeting, (y) thereafter,
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this Agreement is terminated by either the Company or Acquiror pursuant to
Section 7.1(b)(ii), and (z) within 18 months of such termination the Company or
any of its subsidiaries enters into any Company Acquisition Agreement or
consummates any Company Takeover Proposal (for the purposes of the foregoing
proviso the terms "Company Acquisition Agreement" and "Company Takeover
Proposal" shall have the meanings assigned to such terms in Section 4.2 except
that the references to "15%" in the definition of "Company Takeover Proposal" in
Section 4.2(a) shall be deemed to be references to "35%" and "Company Takeover
Proposal" shall only be deemed to refer to a transaction involving the Company,
or with respect to assets (including the shares of any subsidiary), the Company
and its subsidiaries, taken as a whole, and not any of its subsidiaries alone),
then the Company shall pay Acquiror the Company Termination Fee, payable by wire
transfer of same day funds, no later than two days after the first to occur of
the execution of a Company Acquisition Agreement or the consummation of a
Company Takeover Proposal. The Company acknowledges that the agreements
contained in this Section 5.8(b) are an integral part of the transactions
contemplated by this Agreement, and that, without these agreements, Acquiror
would not enter into this Agreement.
(c) In the event that (i) this Agreement is terminated by
Acquiror pursuant to Section 7.1(d), then Acquiror shall promptly, but in no
event later than two days after the date of such termination, pay the Company a
fee equal to $140.0 million (the "Acquiror Termination Fee"), payable by wire
transfer of same day funds, or (ii) (x) an Acquiror Takeover Proposal shall have
been made known to Acquiror or any of its subsidiaries or has been made directly
to its stockholders generally or any person shall have publicly announced an
intention (whether or not conditional) to make an Acquiror Takeover Proposal
which, in any such case, has not been publicly withdrawn prior to the Acquiror
Stockholders Meeting, (y) thereafter, this Agreement is terminated by either the
Company or Acquiror pursuant to Section 7.1(b)(iii), and (z) within 18 months of
such termination Acquiror or any of its subsidiaries enters into any Acquiror
Acquisition Agreement or consummates any Acquiror Takeover Proposal (for the
purposes of the foregoing proviso the terms "Acquiror Acquisition Agreement" and
"Acquiror Takeover Proposal" shall have the meanings assigned to such terms in
Section 4.3 except that the references to "15%" in the definition of "Acquiror
Takeover Proposal" in Section 4.3(a) shall be deemed to be references to "35%"
and "Acquiror Takeover Proposal" shall only be deemed to refer to a transaction
involving Acquiror, or with respect to assets (including the shares of any
subsidiary), Acquiror and its subsidiaries, taken as a whole, and not any of its
subsidiaries alone), then Acquiror shall pay the Company the Acquiror
Termination Fee, payable by wire transfer of same day funds, no later than two
days after the first to occur of the execution of an Acquiror Acquisition
Agreement or the consummation of an Acquiror Takeover Proposal. Acquiror
acknowledges that the agreements contained in this Section 5.8(c) are an
integral part of the transactions contemplated by this Agreement, and that,
without these agreements, the Company would not enter into this Agreement.
Section 5.9 PUBLIC ANNOUNCEMENTS. Acquiror and the Company
will consult with each other before issuing, and provide each other the
opportunity to review, comment upon and concur with, any press release or other
public statements with respect to the transactions contemplated by this
Agreement, including the Merger, and shall not issue any such press release or
make any such public statement prior to such consultation, except as either
party may
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determine is required by applicable law, court process or by obligations
pursuant to any listing agreement with any national securities exchange. The
parties agree that the initial press release to be issued with respect to the
transactions contemplated by this Agreement shall be in the form heretofore
agreed to by the parties.
Section 5.10 AFFILIATES.
(a) Not less than 45 days prior to the Effective Time, the
Company shall deliver to Acquiror a list of names and addresses of each person
who, in the Company's reasonable judgment, is an affiliate within the meaning of
Rule 145 of the rules and regulations promulgated under the Securities Act or
otherwise applicable SEC accounting releases with respect to pooling of
interests accounting treatment (each such person, a "Pooling Affiliate") of the
Company. The Company shall provide Acquiror such information and documents as
Acquiror shall reasonably request for purposes of reviewing such list. The
Company shall deliver or cause to be delivered to Acquiror, not later than 30
days prior to the Effective Time, an affiliate letter in the form attached
hereto as Exhibit 5.10(a), executed by each of the Pooling Affiliates of the
Company identified in the foregoing list. Acquiror shall be entitled to place
legends as specified in such affiliate letters on the certificates evidencing
any of the Acquiror Common Stock to be received by the Pooling Affiliates of the
Company pursuant to the terms of this Agreement, and to issue appropriate stop
transfer instructions to the transfer agent for the Acquiror Common Stock,
consistent with the terms of such letters.
(b) Not less than 45 days prior to the Effective Time,
Acquiror shall deliver to the Company a list of names and addresses of each
person who, in Acquiror's reasonable judgment is a Pooling Affiliate of
Acquiror. Acquiror shall provide the Company such information and documents as
the Company shall reasonably request for purposes of reviewing such list.
Acquiror shall deliver or cause to be delivered to the Company, not later than
30 days prior to the Effective Time, an affiliate letter in the form attached
hereto as Exhibit 5.10(b), executed by each Pooling Affiliate of Acquiror
identified in the foregoing list.
Section 5.11 NYSE LISTING. Acquiror shall use its reasonable
best efforts to cause the Acquiror Common Stock issuable to the Company's
stockholders as contemplated by this Agreement to be approved for listing on the
NYSE, subject to official notice of issuance, as promptly as practicable after
the date hereof, and in any event prior to the Closing Date.
Section 5.12 STOCKHOLDER LITIGATION. Each of the Company and
Acquiror shall give the other the reasonable opportunity to participate in the
defense of any stockholder litigation against the Company or Acquiror, as
applicable, and its directors relating to the transactions contemplated by this
Agreement.
Section 5.13 TAX TREATMENT. Each of Acquiror and the Company
shall use reasonable best efforts to cause the Merger to qualify as a
reorganization under the provisions of Section 368(a) of the Code and to obtain
the opinions of counsel referred to in Sections 6.2(c) and 6.3(c), including,
without limitation, forebearing from taking any action that would cause the
Merger not to qualify as a reorganization under the provisions of Section 368(a)
of the Code.
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Section 5.14 POOLING OF INTERESTS. Each of the Company and
Acquiror shall use their respective reasonable best efforts to cause the
transactions contemplated by this Agreement, including the Merger, to be
accounted for as a pooling of interests under Opinion 16 of the Accounting
Principles Board and applicable SEC rules and regulations, and such accounting
treatment to be accepted by each of the Company's and Acquiror's independent
certified public accountants, respectively, and to be accepted by the SEC, and
each of the Company and Acquiror agrees that, notwithstanding any action
permitted by Section 4.1(a) or 4.1(b), it will not knowingly take any action
that would cause such accounting treatment not to be obtained.
Section 5.15 STANDSTILL AGREEMENTS; CONFIDENTIALITY
AGREEMENTS. During the period from the date of this Agreement through the
Effective Time, neither the Company nor Acquiror shall terminate, amend, modify
or waive any provision of any confidentiality or standstill agreement to which
it or any of its respective subsidiaries is a party, other than (a) the
Confidentiality Agreement, pursuant to its terms or by written agreement of the
parties thereto, (b) confidentiality agreements under which the Company or
Acquiror, as the case may be, does not provide any confidential information to
third parties or (c) standstill agreements that do not relate to the equity
securities of the Company or any of its subsidiaries or Acquiror or any of its
subsidiaries, as the case may be. During such period, the Company or Acquiror,
as the case may be, shall enforce, to the fullest extent permitted under
applicable law, the provisions of any such agreement, including by obtaining
injunctions to prevent any breaches of such agreements and to enforce
specifically the terms and provisions thereof in any court of the United States
of America or of any state having jurisdiction.
Section 5.16 EMPLOYEE BENEFIT PLANS.
(a) For a period of at least three years after the Effective
Time but subject to the next sentence, Acquiror shall, or shall cause the
Surviving Corporation and each subsidiary of the Surviving Corporation to,
provide employees of the Company and each subsidiary of the Company with either
benefits that are substantially similar to those provided under the Company
Benefit Plans as of the date hereof or benefits that are substantially similar
to those provided to similarly situated employees of the Acquiror. For a period
of at least one year after the Effective Time, Acquiror shall, or shall cause
the Surviving Corporation and each subsidiary of the Surviving Corporation to,
provide to each continuing employee of the Company and each subsidiary of the
Company: (i) annual salary compensation in an amount not less than the annual
salary compensation such employee was entitled to receive from the Company or
such subsidiary of the Company immediately prior to the Effective Time based on
such employee's base salary then in effect, and (ii) payments under incentive
bonus and profit sharing plans with respect to the year ended December 31, 1999,
including, without limitation, the Company's ISP Plan (the "Incentive
Compensation"), based on the greater of: (A) the Incentive Compensation to which
such employee would have been entitled pursuant to the Company's Incentive
Compensation plans in effect immediately prior to the Effective Time, or (B) the
Incentive Compensation to which such employee would be entitled pursuant to any
alternative Incentive Compensation plan as to which such employee may become
entitled to participate, at the option of the Acquiror, after the Effective
Time.
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(b) For purposes of (i) eligibility to participate, (ii)
vesting and (iii) eligibility for early retirement under Acquiror's defined
benefit pension plans (but not for benefit accrual or any other purposes),
employees of the Company and its subsidiaries as of the Effective Time shall
receive credit under any employee benefit plan, program or arrangement
established or maintained by Acquiror or the Surviving Corporation or any of its
subsidiaries and made available to such employees for service accrued prior to
the Effective Time with the Company or any of its subsidiaries.
Section 5.17 POST-MERGER OPERATIONS.
(a) For a period of at least two years after the Effective
Time, Acquiror and its subsidiaries shall provide charitable contributions
within the service areas of the Company and its subsidiaries at levels
substantially comparable to the levels of charitable contributions provided by
the Company and its subsidiaries within the two-year period immediately prior to
the Effective Time.
(b) Acquiror and the Company acknowledge that after the
Effective Time and in connection with the integration process Acquiror will
undertake a study of all of the plants and headquarters of Acquiror and its
subsidiaries in an effort to rationalize the operations of Acquiror and its
subsidiaries. Any decision as part of this process that would materially
adversely affect the communities in which the headquarters of each of the
Company's Home, Juvenile, Infant and Commercial operating divisions are located
must be approved or ratified by the Acquiror Board.
Section 5.18 ACQUIROR CORPORATE OFFICE. Promptly after the
date hereof, Acquiror and the Company will undertake a study to (i) determine a
new location for Acquiror's corporate offices for its senior executive officers
and (ii) develop a timetable pursuant to which the move of Acquiror's
corporation offices for its senior executive officers to such new location will
be effected. The Company and Acquiror acknowledge that such new location will
not be Wooster, Ohio, Freeport, Illinois or Beloit, Wisconsin.
Section 5.19 ACQUIROR BOARD OF DIRECTORS; ACQUIROR OFFICERS.
(a) Prior to the Effective Time, Acquiror's Board of Directors
(the "Acquiror Board") shall take such action as may be necessary to cause the
number of directors comprising the Acquiror Board at the Effective Time to be 15
persons, consisting of (i) 9 persons designated by the Chairman of the
Nominating Committee of the Acquiror Board and (ii) 6 persons designated by the
Chairman of the Nominating Committee of the Company Board of Directors ("Company
Board") and reasonably acceptable to the Chairman of the Nominating Committee of
Acquiror. Acquiror shall take such action as may be necessary to cause such
persons to become directors of Acquiror. In furtherance thereof, Acquiror shall
use its reasonable best efforts to obtain the resignation of such directors of
Acquiror as is necessary to permit the Company's designees to be elected to the
Acquiror Board. The initial designation of the Company's director designees
among the three classes of the Acquiror Board shall be as designated by the
Chairman of the Nominating Committee of Acquiror and reasonably acceptable to
the Chairman of the Nominating Committee of the Company. If, prior to the
Effective Time, any Company director
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designee shall decline or be unable to serve, the Company shall designate
another person to serve in such person's stead.
(b) Effective as of the Effective Time, William P. Sovey shall
be Chairman of the Acquiror Board, John J. McDonough shall be Vice Chairman of
the Acquiror Board and Chief Executive Officer of Acquiror and Wolfgang R.
Schmitt shall be Vice Chairman - Integration and Strategy of the Acquiror Board,
in each case, until the earlier of their death, resignation or removal or until
their respective successors are duly elected and qualified, as the case may be.
ARTICLE 6
CONDITIONS PRECEDENT
Section 6.1 CONDITIONS TO EACH PARTY'S OBLIGATION TO EFFECT
THE MERGER. The respective obligation of each party to effect the Merger is
subject to the satisfaction or waiver on or prior to the Closing Date of the
following conditions:
(a) STOCKHOLDER APPROVALS. Each of the Company Stockholder
Approval and the Acquiror Stockholder Approval shall have been obtained.
(b) GOVERNMENTAL AND REGULATORY APPROVALS. All consents,
approvals and actions of, filings with and notices to any Governmental Entity
required of the Company, Acquiror or any of their subsidiaries to consummate the
Merger and the other transactions contemplated hereby, the failure of which to
be obtained or taken is reasonably expected to have a material adverse effect on
the Surviving Corporation and its subsidiaries, taken as a whole, shall have
been obtained in form and substance reasonably satisfactory to each of Acquiror
and the Company.
(c) NO INJUNCTIONS OR RESTRAINTS. No judgment, order, decree,
statute, law, ordinance, rule or regulation, entered, enacted, promulgated,
enforced or issued by any court or other Governmental Entity of competent
jurisdiction or other legal restraint or prohibition (collectively,
"Restraints") shall be in effect (i) preventing the consummation of the Merger,
(ii) prohibiting or limiting the ownership or operation by the Company or
Acquiror and their respective subsidiaries of any material portion of the
business or assets of the Company or Acquiror and their respective subsidiaries
taken as a whole, or compelling the Company or Acquiror and their respective
subsidiaries to dispose of or hold separate any material portion of the business
or assets of the Company or Acquiror and their respective subsidiaries, taken as
a whole, as a result of the Merger or any of the other transactions contemplated
by this Agreement or (iii) which otherwise is reasonably likely to have a
material adverse effect on the Company or Acquiror, as applicable; PROVIDED,
HOWEVER, that each of the parties shall have used its reasonable best efforts to
prevent the entry of any such Restraints and to appeal as promptly as possible
any such Restraints that may be entered.
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(d) FORM S-4. The Form S-4 shall have become effective under
the Securities Act and shall not be the subject of any stop order or proceedings
seeking a stop order.
(e) NYSE LISTING. The shares of Acquiror Common Stock issuable
to the Company's stockholders as contemplated by this Agreement shall have been
approved for listing on the NYSE, subject to official notice of issuance.
(f) POOLING. Each of Acquiror and the Company shall have
received a letter of its independent public accountants, dated as of the Closing
Date, in form and substance reasonably satisfactory, in each case, to Acquiror
and the Company, stating that the Merger will qualify as a "pooling of
interests" transaction under Opinion 16 of the Accounting Principles Board and
applicable SEC rules and regulations.
(g) DISSENTING SHARES. Dissenting Shares shall not exceed 9%
of the shares of Company Common Stock outstanding on the Closing Date.
(h) HSR ACT. The waiting or similar period (including any
extension thereof) applicable to the consummation of the Merger under the HSR
Act and any applicable Foreign Antitrust Law shall have expired or been
terminated.
Section 6.2 CONDITIONS TO OBLIGATIONS OF ACQUIROR. The
obligation of Acquiror to effect the Merger is further subject to satisfaction
or waiver of the following conditions:
(a) REPRESENTATIONS AND WARRANTIES. The representations and
warranties of the Company set forth herein shall be true and correct both when
made and at and as of the Closing Date, as if made at and as of such time
(except to the extent expressly made as of an earlier date, in which case as of
such date), except where the failure of such representations and warranties to
be so true and correct (without giving effect to any limitation as to
"materiality" or "material adverse effect" set forth therein) would not have,
individually or in the aggregate, a material adverse effect on the Company.
(b) PERFORMANCE OF OBLIGATIONS OF THE COMPANY. The Company
shall have performed in all material respects all obligations required to be
performed by it under this Agreement at or prior to the Closing Date.
(c) TAX OPINION. Acquiror shall have received from Schiff
Hardin & Waite, counsel to Acquiror, an opinion dated as of the Closing Date, to
the effect that the Merger will constitute a "reorganization" within the meaning
of Section 368(a) of the Code, and Acquiror and the Company will each be a party
to such reorganization within the meaning of Section 368(b) of the Code. In
rendering such opinion, counsel for Acquiror may require delivery of, and rely
upon, the Tax Certificates.
(d) NO MATERIAL ADVERSE CHANGE. At any time after the date of
this Agreement there shall not have occurred any material adverse change
relating to the Company; provided that this condition shall no longer be
applicable following Acquiror Stockholder Approval.
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Section 6.3 CONDITIONS TO OBLIGATIONS OF THE COMPANY. The
obligation of the Company to effect the Merger is further subject to
satisfaction or waiver of the following conditions:
(a) REPRESENTATIONS AND WARRANTIES. The representations and
warranties of Acquiror set forth herein shall be true and correct both when made
and at and as of the Closing Date, as if made at and as of such time (except to
the extent expressly made as of an earlier date, in which case as of such date),
except where the failure of such representations and warranties to be so true
and correct (without giving effect to any limitation as to "materiality" or
"material adverse effect" set forth therein) would not have, individually or in
the aggregate, a material adverse effect on Acquiror.
(b) PERFORMANCE OF OBLIGATIONS OF ACQUIROR. Acquiror shall
have performed in all material respects all obligations required to be performed
by it under this Agreement at or prior to the Closing Date.
(c) TAX OPINION. The Company shall have received from Jones,
Day, Reavis & Pogue, counsel to the Company, an opinion dated as of the Closing
Date, to the effect that the Merger will constitute a "reorganization" within
the meaning of Section 368(a) of the Code, and Acquiror and the Company will
each be a party to such reorganization within the meaning of Section 368(b) of
the Code. In rendering such opinion, counsel for the Company may require
delivery of, and rely upon, the Tax Certificates.
(d) NO MATERIAL ADVERSE CHANGE. At any time after the date of
this Agreement there shall not have occurred any material adverse change
relating to Acquiror; provided that this condition shall no longer be applicable
following the Company Stockholder Approval.
Section 6.4 FRUSTRATION OF CLOSING CONDITIONS. Neither
Acquiror nor the Company may rely on the failure of any condition set forth in
Section 6.1, 6.2 or 6.3, as the case may be, to be satisfied if such failure was
caused by such party's failure to use reasonable best efforts to consummate the
Merger and the other transactions contemplated by this Agreement, as required by
and subject to Section 5.5.
ARTICLE 7
TERMINATION, AMENDMENT AND WAIVER
Section 7.1 TERMINATION. This Agreement may be terminated at
any time prior to the Effective Time, whether before or after the Company
Stockholder Approval or the Acquiror Stockholder Approval:
(a) by mutual written consent of Acquiror and the
Company;
(b) by either Acquiror or the Company:
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<PAGE> 63
(i) if the Merger shall not have been consummated by June 30,
1999; PROVIDED, HOWEVER, that the right to terminate this Agreement
pursuant to this Section 7.1(b)(i) shall not be available to any party
whose failure to perform any of its obligations under this Agreement
results in the failure of the Merger to be consummated by such time;
(ii) if the Company Stockholder Approval shall not have been
obtained at a Company Stockholders Meeting duly convened therefor or at
any adjournment or postponement thereof,
(iii) if the Acquiror Stockholder Approval shall not have been
obtained at an Acquiror Stockholders Meeting duly convened therefor or
at any adjournment or postponement thereof, or
(iv) if any Restraint having any of the effects set forth in
Section 6.1(c) shall be in effect and shall have become final and
nonappealable; PROVIDED, that the party seeking to terminate this
Agreement pursuant to this Section 7.1(b)(iv) shall have used
reasonable best efforts to prevent the entry of and to remove such
Restraint;
(c) by Acquiror, if the Company shall have breached or failed
to perform in any material respect any of its representations, warranties,
covenants or other agreements contained in this Agreement, which breach or
failure to perform would give rise to a material adverse change relating to the
Company and (A) is not cured within 30 days after written notice thereof or (B)
is incapable of being cured by the Company;
(d) by Acquiror in accordance with Section 4.3(b); PROVIDED
that, in order for the termination of this Agreement pursuant to this paragraph
(d) to be deemed effective, Acquiror shall have complied with all provisions
contained in Section 4.3, including the notice provisions therein, and the
applicable requirements, including the payment of the Acquiror Termination Fee,
of Section 5.8;
(e) by the Company, if Acquiror shall have breached or failed
to perform in any material respect any of its representations, warranties,
covenants or other agreements contained in this Agreement, which breach or
failure to perform would give rise to a material adverse change relating to
Acquiror and (A) is not cured within 30 days after written notice thereof or (B)
is incapable of being cured by Acquiror; or
(f) by the Company in accordance with Section 4.2(b); PROVIDED
that, in order for the termination of this Agreement pursuant to this Section
7.1(f) to be deemed effective, the Company shall have complied with all
provisions of Section 4.2, including the notice provisions therein, and the
applicable requirements, including the payment of the Company Termination Fee,
of Section 5.8.
Section 7.2 EFFECT OF TERMINATION. In the event of termination
of this Agreement by either the Company or Acquiror as provided in Section 7.1,
this Agreement shall forthwith become void and have no effect, without any
liability or obligation on the part of
54
<PAGE> 64
Acquiror or the Company, other than the provisions of Section 3.1(o), Section
3.2(p), the last sentence of Section 5.4, Section 5.8, this Section 7.2 and
Article 8, which provisions survive such termination, PROVIDED, HOWEVER, that
nothing herein shall relieve any party from any liability for any willful and
material breach by such party of any of its representations, warranties,
covenants or agreements set forth in this Agreement.
Section 7.3 AMENDMENT. This Agreement may be amended by the
parties at any time before or after the Company Stockholder Approval or the
Acquiror Stockholder Approval; PROVIDED, HOWEVER, that after any such approval,
there shall not be made any amendment that by law requires further approval by
the stockholders of the Company or Acquiror 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.
Section 7.4 EXTENSION; WAIVER. At any time prior to the
Effective Time, a party may (a) extend the time for the performance of any of
the obligations or other acts of the other party, (b) waive any inaccuracies in
the representations and warranties of the other party contained in this
Agreement or in any document delivered pursuant to this Agreement or (c) subject
to the proviso of Section 7.3, waive compliance by the other party with any of
the agreements or conditions contained in this Agreement. Any agreement on the
part of a party to any such extension or waiver shall be valid only if set forth
in an instrument in writing signed on behalf of such party. The failure of any
party to this Agreement to assert any of its rights under this Agreement or
otherwise shall not constitute a waiver of such rights.
Section 7.5 PROCEDURE FOR TERMINATION, AMENDMENT, EXTENSION OR
WAIVER. A termination of this Agreement pursuant to Section 7.1 shall, in order
to be effective, require, in the case of Acquiror or the Company, action by its
Board of Directors or, with respect to any amendment to this Agreement, the duly
authorized committee of its Board of Directors to the extent permitted by law.
ARTICLE 8
GENERAL PROVISIONS
Section 8.1 NONSURVIVAL OF REPRESENTATIONS AND WARRANTIES.
None of the representations and warranties in this Agreement or in any
instrument delivered pursuant to this Agreement shall survive the Effective
Time. This Section 8.1 shall not limit any covenant or agreement of the parties
which by its terms contemplates performance after the Effective Time.
Section 8.2 NOTICES. All notices, requests, claims, demands
and other communications under this Agreement shall be in writing and shall be
deemed given if delivered personally, telecopied (which is confirmed) or sent by
overnight courier (providing proof of delivery) to the parties at the following
addresses (or at such other address for a party as shall be specified by like
notice):
55
<PAGE> 65
<TABLE>
<S> <C> <C>
(a) if to the Company, to: Rubbermaid Incorporated
1147 Akron Road
Wooster, Ohio 44691
Telecopy No.: (330) 287-2982
Attention: Chief Executive Officer
with a copy to: Jones, Day, Reavis & Pogue
North Point
901 Lakeside Avenue
Cleveland, Ohio 44114
Telecopy No.: (216) 579-0212
Attention: Lyle G. Ganske, Esq.
(b) if to Acquiror or
Merger Sub, to Newell Co.
4000 Auburn Street
Rockford, Illinois 61101
Telecopy No.: (815) 969-6106
Attention: General Counsel
with a copy to: Schiff Hardin & Waite
6600 Sears Tower
Chicago, Illinois 60606
Telecopy No.: (312) 258-5600
Attention: Frederick L. Hartmann, Esq.
</TABLE>
Section 8.3 DEFINITIONS. For purposes of this Agreement:
(a) an "affiliate" of any person means another person that
directly or indirectly, through one or more intermediaries, controls, is
controlled by, or is under common control with, such first person, where
"control" means the possession, directly or indirectly, of the power to direct
or cause the direction of the management policies of a person, whether through
the ownership of voting securities, by contract or otherwise;
(b) "knowledge" of any person which is not an individual means
the knowledge of such person's executive officers;
(c) "material adverse change" or "material adverse effect"
means, when used in connection with the Company, Acquiror or Merger Sub, any
change, effect, event, occurrence or state of facts that is, or would reasonably
be expected to be, materially adverse to the business, financial condition or
results of operations of such party and its subsidiaries taken as a whole, other
than any change, effect, event or occurrence (i) relating to the economy or
securities markets of the United States or any other region in general, (ii)
resulting from entering into this Agreement or the consummation of the
transactions contemplated hereby or the announcement thereof, or (iii) relating
to its business, financial condition or results of operations that has been
disclosed in
56
<PAGE> 66
writing to the other party prior to the date of this Agreement, and the terms
"material" and "materially" have correlative meanings;
(d) "person" means an individual, corporation, partnership,
limited liability company, joint venture, association, trust, unincorporated
organization or other entity; and
(e) a "subsidiary" of any person means another person, an
amount of the voting securities, other voting ownership or voting partnership
interests of which is sufficient to elect at least a majority of its Board of
Directors or other governing body (or, if there are no such voting interests,
50% or more of the equity interests of which) is owned directly or indirectly by
such first person.
Section 8.4 INTERPRETATION. When a reference is made in this
Agreement to an Article, Section or Exhibit, such reference shall be to an
Article or Section of, or an Exhibit to, this Agreement unless otherwise
indicated. The table of contents and headings contained in this Agreement are
for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. Whenever the words "include", "includes" or
"including" are used in this Agreement, they shall be deemed to be followed by
the words "without limitation". The words "hereof", "herein" and "hereunder" and
words of similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this Agreement. All
terms defined in this Agreement shall have the defined meanings when used in any
certificate or other document made or delivered pursuant hereto unless otherwise
defined therein. The definitions contained in this Agreement are applicable to
the singular as well as the plural forms of such terms and to the masculine as
well as to the feminine and neuter genders of such term. Any agreement,
instrument or statute defined or referred to herein or in any agreement or
instrument that is referred to herein means such agreement, instrument or
statute as from time to time amended, modified or supplemented, including (in
the case of agreements or instruments) by waiver or consent and (in the case of
statutes) by succession of comparable successor statutes and references to all
attachments thereto and instruments incorporated therein. References to a person
are also to its permitted successors and assigns.
Section 8.5 COUNTERPARTS. This Agreement may be executed in
one or more counterparts, all of which shall be considered one and the same
agreement and shall become effective when one or more counterparts have been
signed by each of the parties and delivered to the other parties.
Section 8.6 ENTIRE AGREEMENT: NO THIRD-PARTY BENEFICIARIES.
This Agreement (including the documents and instruments referred to herein), and
the Confidentiality Agreement (a) constitute the entire agreement, and supersede
all prior agreements and understandings, both written and oral, among the
parties with respect to the subject matter of this Agreement and (b) except for
the provisions of Article 2, Section 5.6 and Section 5.7, are not intended to
confer upon any person other than the parties any rights or remedies.
Section 8.7 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF OHIO,
57
<PAGE> 67
REGARDLESS OF THE LAWS THAT MIGHT OTHERWISE GOVERN UNDER APPLICABLE PRINCIPLES
OF CONFLICT OF LAWS THEREOF.
Section 8.8 ASSIGNMENT. Neither this Agreement nor any of the
rights, interests or obligations under this Agreement shall be assigned, in
whole or in part, by operation of law or otherwise by either of the parties
hereto without the prior written consent of the other party. Any assignment in
violation of the preceding sentence shall be void. Subject to the preceding two
sentences, this Agreement will be binding upon, inure to the benefit of, and be
enforceable by, the parties and their respective successors and assigns.
Section 8.9 CONSENT TO JURISDICTION. Each of the parties
hereto (a) consents to submit itself to the personal jurisdiction of any federal
court located in the State of New York or any New York state court, in either
case located in the Southern District of New York, in the event any dispute
arises out of this Agreement or any of the transactions contemplated by this
Agreement, (b) agrees that it will not attempt to deny or defeat such personal
jurisdiction by motion or other request for leave from any such court, and (c)
agrees that it will not bring any action relating to this Agreement or any of
the transactions contemplated by this Agreement in any court other than a
federal court sitting in the State of New York or a New York state court, in
either case located in the Southern District of New York.
Section 8.10 HEADINGS. 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 8.11 SEVERABILITY. If any term or other provision of
this Agreement is invalid, illegal or incapable of being enforced by any rule of
law or public policy, all other conditions and provisions of this Agreement
shall nevertheless remain in full force and effect. Upon such determination that
any term or other provision is invalid, illegal or incapable of being enforced,
the parties hereto shall negotiate in good faith to modify this Agreement so as
to effect the original intent of the parties as closely as possible to the
fullest extent permitted by applicable law in an acceptable manner to the end
that the transactions contemplated hereby are fulfilled to the extent possible.
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<PAGE> 68
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement and Plan of Merger to be signed by their respective officers thereunto
duly authorized, all as of the date first written above.
RUBBERMAID INCORPORATED
By: /s/ James A. Morgan
----------------------------
Name: James A. Morgan
Title: Sr. V.P., General Counsel
& Secretary
NEWELL CO.
By: /s/ William T. Alldredge
----------------------------
Name: William T. Alldredge
Title: Vice President
ROOSTER COMPANY
By: /s/ Dale L. Matschullat
----------------------------
Name: Dale L. Matschullat
Title: Vice President
<PAGE> 69
INDEX TO THE COMPANY DISCLOSURE SCHEDULES FOR THE
AGREEMENT AND PLAN OF MERGER,
DATED AS OF OCTOBER 20, 1998,
AMONG NEWELL CO., ROOSTER COMPANY AND
RUBBERMAID INCORPORATED
DATED AS OF OCTOBER 20, 1998
Section 3.1(b) Significant Subsidiaries
Section 3.1(c) Capital Structure
Section 3.1(d) Authority; Noncontravention
Section 3.1(h) Compliance with Applicable Laws; Litigation
Section 3.1(j) ERISA Compliance
Section 3.1(q) Certain Contracts
<PAGE> 1
EXHIBIT 99.1
CONTACTS FOR NEWELL CO.: CONTACTS FOR RUBBERMAID INCORPORATED:
MEDIA AND INVESTORS: MEDIA:
Names: William T. Alldredge Name: Lorrie Paul Crum
Ross A. Porter, Jr. Phone: (330) 264-6464 Ext. 2970
Phone: (815) 969-6113 INVESTORS:
Name: William H. Pfund
Phone: (330) 264-6464 Ext. 2477
NEWELL AND RUBBERMAID IN $14 BILLION COMBINATION
CREATES CONSUMER PRODUCTS POWERHOUSE
FREEPORT, IL AND WOOSTER, OH -- OCTOBER 21, 1998 -- Newell Co. [NYSE, CSE:
NWL] and Rubbermaid Incorporated [NYSE: RBD] today announced that they have
approved a definitive agreement to merge through a tax-free exchange of shares
valued at approximately $5.8 billion. The combined company, which will be
called Newell Rubbermaid Inc., joins the powerful brand franchises of
Rubbermaid with the exceptional financial performance and superior customer
service of Newell. Newell Rubbermaid would have pro forma 1998 sales in excess
of $6 billion and a total equity market capitalization of approximately $14
billion.
The merger agreement, which has been approved unanimously by the boards of
directors of both companies, calls for Rubbermaid shareholders to receive
0.7883 shares of Newell common stock for each share of Rubbermaid common stock
they own. Based on the closing stock price of Newell on October 20, 1998, this
represents $38.68 per Rubbermaid share, or a premium of 49 percent over
Rubbermaid's closing stock price of $25.88. Newell will issue approximately 118
million shares of common stock to Rubbermaid stockholders and will assume
approximately $500 million in net debt. Rubbermaid stockholders will own
approximately 40 percent of the combined company.
Newell Rubbermaid will have leading brand names in housewares, hardware and
home furnishings, office, infant/juvenile and commercial products. Its roster
of leading brands will include Rubbermaid(R), Anchor Hocking(R), Calphalon(R),
Century(R), Curver(R), Goody(R), Graco(R), Kirsch(R), Levolor(R), Little
Tikes(R), Mirro(R), Rolodex(R) and Sanford(R). These brands offer a full palette
of internal and acquisition growth opportunities on a global basis.
<PAGE> 2
-2-
"Rubbermaid and Newell are a terrific strategic fit," said John J. McDonough,
vice chairman and chief executive officer of Newell. "The Rubbermaid brands are
universally recognized and synonymous with value for customers. Their reputation
for innovation and new product development is legendary. In addition, they bring
us further breadth of distribution, increased shelf space and an enhanced
presence in Europe. This combination is totally consistent with our strategy and
we are fully confident in our ability to integrate Rubbermaid into our operating
and customer service systems. Newell Rubbermaid will be a company with great
global strengths, enhanced internal growth prospects and broader acquisition
opportunities."
"Newell is the ideal strategic partner for Rubbermaid," said Wolfgang R.
Schmitt, chairman and chief executive officer of Rubbermaid. "No one manages the
blocking and tackling of consumer products customer service better than Newell.
Their disciplines and systems are exactly what we need if we're to optimize the
value of our brands and innovations. This transaction provides superior value
for our shareholders and we look forward to working with the Newell team to
realize the major upside potential stemming from the power of this combination.
In the competitive arena for global retailers, together we will be an invaluable
resource to our customers and create exciting new products for consumers."
Once the transaction has been completed, Newell will begin the systematic
process of integrating Rubbermaid operations and practices through the process,
known colloquially, as "Newellization." This process is intended to produce 98
percent on-time and line-fill performance and a minimum 15 percent pretax
profit margin. As a result, the company intends to meaningfully improve
Rubbermaid operating efficiency and margins. The companies also expect that the
merger will create revenue and other operating synergies through the leveraging
of the Newell Rubbermaid brands; innovative product development; improved
service performance; stronger combined presence in dealing with common
customers; broader acquisition opportunities; and increased ability to serve
European markets. By 2000, these efforts and opportunities are expected to
produce increases over anticipated 1998 results of $300 million to $350 million
in operating income for the combined company.
William P. Sovey, chairman of the board of Newell, will become chairman of
Newell Rubbermaid. Mr. John J. McDonough, vice chairman and chief executive
officer of Newell, will become vice chairman and chief executive officer of
Newell Rubbermaid, and Mr. Wolfgang R. Schmitt, chairman and chief executive
officer of Rubbermaid, will become vice chairman of Newell Rubbermaid. The
Newell Rubbermaid board of directors will consist of fifteen members, nine
representing Newell and six representing Rubbermaid, reflecting the respective
ownership of the company.
The transaction is subject to normal regulatory approvals and to the approval of
Rubbermaid and Newell shareholders. Newell expects to continue its current $0.18
per share quarterly dividend on the shares of the combined company.
<PAGE> 3
-3-
Robert W. Baird & Co. Incorporated acted as financial advisor and provided a
fairness opinion to Newell. Goldman, Sachs & Co. acted as financial advisor and
provided a fairness opinion to Rubbermaid.
Rubbermaid Incorporated, headquartered in Wooster, Ohio, is a multi-national,
leading-brand manufacturer and marketer of high-quality, innovative products,
including Rubbermaid(R) consumer and commercial products; Little Tikes(R)
traditional toys and commercial play systems, and Graco(R) and Century(R)
infant furnishings. The company employs about 12,000 people around the world.
Based in Freeport, Illinois, Newell Co. is a multi-national manufacturer and
marketer of high-volume staple consumer products with 1997 sales exceeding $3
billion and net income of almost $300 million. Their products are sold through
a variety of retail and wholesale distribution channels. Product groups include
hardware and home furnishings, including Amerock(R) cabinet hardware,
Bulldog(R) home hardware, EZ Paintr(R) paint applicators, BernzOmatic(R)
torches, Kirsch(R), Levolor(R) and Newell(R) window treatments, Intercraft(R),
Decorel(R) and Holson Burnes(R) picture frames and LeeRowan home storage;
housewares, including Mirro(R), WearEver(R), PanEx(R) and Calphalon(R)
cookware, Anchor Hocking(R) glassware and Goody(R) hair accessories; and
office products such as Sanford(R), Berol(R), Eberhard Faber(R) and Rotring
writing instruments and Eldon(R) and Rolodex(R) office storage and organization
products. The company has approximately 32,000 employees.
# # #
Safe Harbor Statement under the Private Securities Litigation Act of 1995:
The statements contained in this press release that are not historical in nature
are forward-looking statements. Forward-looking statements are not guarantees
since there are inherent difficulties in predicting future results, and actual
results could differ materially from those expressed or implied in the
forward-looking statements. These factors include, without limitation, those
disclosed in the Form 10-K filings with the Securities and Exchange Commission
for Rubbermaid and Newell.
