<PAGE>
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------------
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
The Securities Exchange Act of 1934
APRIL 6, 1998
Date of Report (Date of earliest event reported)
WHITE RIVER CORPORATION
(Exact Name of Registrant as Specified in its Charter)
DELAWARE 0-22604 93-1011071
(State or other Jurisdiction (Commission File Number) (IRS Employer
of Incorporation) Identification No.)
2 GANNETT DRIVE, SUITE 200 10604
WHITE PLAINS, NEW YORK (Zip Code)
(Address of Principal Executive Offices)
Registrant's telephone number, including area code: (914) 251-0237
<PAGE>
ITEM 5. OTHER EVENTS.
White River Corporation announced on April 7, 1998 the signing of Amendment
Number 1 to the Amended and Restated Agreement and Plan of Merger ("Amendment"),
dated as of April 6, 1998, by and among Demeter Holdings Corporation, WRC Merger
Corp., WRV Merger Corp. White River and White River Ventures, Inc. which
amended the Amended and Restated Agreement and Plan of Merger, dated as of
December 11, 1997, by and among the parties to the Amendment.
A copy of the Amendment is filed as Exhibit 2.1 and is incorporated herein by
reference.
A press release from White River with respect to the signing of the Amendment
was issued on April 7, 1998. A copy of such release is filed as Exhibit 99.1 and
is incorporated herein by reference.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(c) Exhibits
Exhibit 2.1. Amendment Number 1 to the Amended and Restated
Agreement and Plan of Merger, dated as of April 6,
1998.
Exhibit 99.1. Press release of White River Corporation dated April
7, 1998.
<PAGE>
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.
April 17, 1998
White River Corporation
/s/ Michael E.B. Spicer
--------------------------------------------
Name: Michael E.B. Spicer
Title: Chief Financial Officer, Corporate
Secretary and Treasurer
<PAGE>
EXHIBIT INDEX
Exhibit No. Description
- ----------- -----------
2.1 Amendment Number 1 to the Amended and Restated Agreement and
Plan of Merger, dated as of April 6, 1998.
99.1 Press release of White River Corporation dated April 7, 1998.
<PAGE>
EXHIBIT 2.1
AMENDMENT NUMBER 1
to the
AMENDED AND RESTATED AGREEMENT AND PLAN OF MERGER
The Amendment Number 1 to the Amended and Restated Agreement and Plan of
Merger (the "Merger Agreement") dated as of December 11, 1997 by and among
Demeter Holdings Corporation, WRC Merger Corp., WRV Merger Corp., White River
Corporation (the "Company") and White River Ventures, Inc. (collectively, the
"Parties") is made among the Parties as of April 6, 1998.
WHEREAS, the Parties entered into the Merger Agreement; and
WHEREAS, the Parties wish to amend the Merger Agreement as set forth below;
NOW, THEREFORE, for good and valuable consideration, the receipt of which
is hereby acknowledged, the Parties hereby agree to amend the Merger Agreement
as follows:
1. Amendment to RECITALS. The paragraph in the RECITALS beginning
---------------------
"WHEREAS, prior to the consummation of the Merger," and ending with "as the
'Asset Disposition'" is hereby deleted.
- ------ -----------
2. Amendment to 1.7(a). Clause (i) of Section 1.7(a) is hereby amended by
-------------------
deleting the phrase "(excluding any cash and cash equivalents included in the
Excluded Assets)".
3. Amendment to Section 1.11(a). Section 1.11 is hereby amended by
----------------------------
deleting "$399,850,000" and substituting "$442,000,000" therefor.
4. Amendment to Section 1.11(b) and Section 1.11(d). Clause (i) of
------------------------------------------------
Section 1.11(b) is hereby amended to read in its entirety as follows: "the sum
of (x) expenditures after September 30, 1997 in connection with the acquisition
of other companies, partnerships or other business organizations or divisions
thereof (collectively, "Acquired Businesses") or investment assets in excess of
-------- ----------
$1,281,000 and (y) to the extent not duplicative of expenditures described in
clause (x), cash contributed to Hanover Accessories, Inc. ("Hanover") or Just
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Kiddie Rides, Inc. ("JKR") or their respective Subsidiaries after September 30,
---
1997 without the written consent of Parent in excess of $925,000." Section
1.11(d) is hereby amended by deleting $36,660,000 each time it appears and
substituting the phrase "the Benefits Threshold" therefore. Section 1.11(d) is
further amended by adding a sentence to the end of Section 1.11(d) that reads as
follows: "The 'Benefits Threshold' shall be the sum of (i) $36,660,000 and (ii)
------------------
product of (x) the lesser of (A) 123,000 and (B) the number of performance units
outstanding under the Incentive Plan as of the time payments are made thereunder
pursuant to Section 4.3(b) multiplied by (y) the excess, if any,
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(which may be zero) of (A) the lesser of (1) $90.67 and (2) the lowest actual
share price used by the Company to calculate payments under the Incentive Plan
made pursuant to Section 4.3(b) with respect to performance units outstanding
thereunder over (B) $82.02."
5. Deletion of Section 1.11(j). Section 1.11(j) is hereby deleted in its
---------------------------
entirety.
6. Amendments to Various Sections. Sections 1.11(b), 1.11(c), 2.4(a),
------------------------------
2.4(b), 2.5(c) and 2.5(d) are each hereby amended by deleting the phrase ", the
Asset Disposition" therefrom each time it appears. In addition, Section 1.11(c)
is hereby amended by removing ", other than Excluded Liabilities" therefrom.
7. Amendment to Section 2.4(b). Section 2.4(b) is hereby amended by
---------------------------
deleting therefrom all of the words following "approve and adopt this" and
substituting "Agreement and the Merger" therefor.
8. Amendments to Section 2.7(c). Section 2.7(c) is amended by deleting
----------------------------
from the first sentence thereof the phrase "including cash and cash equivalents
included in the Excluded Assets."
9. Amendment to Section 2.9. Section 2.9 is hereby amended by deleting
------------------------
"or (e) Excluded Liabilities" in the first sentence and substituting "or (e)
liabilities of Subsidiaries of the Company other than WRV for which neither the
Company nor WRV (i) provides credit support for or guarantees the payment or
performance of or (ii) is otherwise directly or indirectly liable or responsible
for." Section 2.9 is further amended hereby by deleting the second sentence.
10. Amendment to Section 2.11. Section 2.11 is hereby amended by deleting
-------------------------
"and the Asset Disposition" therefrom.
11. Amendment to Section 2.14. Section 2.14 is hereby amended by inserting
-------------------------
"Hanover, JKR," between "WRV," and "CCC" and by adding a second sentence that
reads as follows: "Immediately before the Effective Time, each of WRV, Hanover
and JKR shall be direct wholly-owned subsidiaries of the Company and CCC shall
be a direct subsidiary of WRV."
12. Amendment to Sections 4.1(c) and 4.1(d). Each of Sections 4.1(c) and
---------------------------------------
4.1(d) are hereby amended by deleting all of the words after and including
"provided, however," in each such section.
13. Amendment to Section 4.1(e). Section 4.1(e) is hereby amended by (a)
---------------------------
deleting the phrase ",and except for acquisitions by the Company which do not in
the aggregate consist of more than $20,000,000 of consideration paid by the
Company," (b) deleting clauses (vi) and (vii) in their entirety, and (c)
inserting "or" before the phrase "(v) enter into."
14. Amendment to Section 4.2(a). Section 4.2(a) is hereby amended by
---------------------------
deleting "and the Asset Disposition" from the last sentence thereof.
15. Amendment to Section 4.11. Section 4.11 is hereby amended to read in
-------------------------
its entirety
<PAGE>
as follows: "[Reserved]".
16. Amendment to Section 5.3. The first sentence of Section 5.3 is hereby
------------------------
amended by deleting "the Asset Disposition," therefrom.
17. Amendment to Section 6.1(a). Section 6.1(a) is hereby amended by
---------------------------
deleting "and the Asset Disposition" therefrom.
18. Amendment to Section 6.1(d). Section 6.1(d) is hereby amended by
---------------------------
replacing the phrase ", and the consideration to be received by the Company in
the Asset Disposition, are" with "is."
19. Amendment to Section 6.2(d). Section 6.2(d) is hereby amended by
--------------------------
deleting the phrase "from the Historic Public Trading Price" and substituting
therefore the phrase "the last public trading prices on March 31, 1998;"
provided, however, if Parent is delivered a Voting Agreement within five (5)
- -------- -------
calendar days of the date of this Amendment in substantially the form attached
hereto as Exhibit 1 satisfactory to Parent, executed by each of John J. Byrne,
Patrick M. Byrne, Robert Marto, each other director and officer of the Company
who beneficially owns or has the right to vote equity securities of the Company
and any affiliates of the foregoing that beneficially owns or has the right to
vote equity securities of the Company, then Section 6.2(d) instead shall be
amended by deleting the phrase "including without limitation a" and substituting
therefor the phrase "excluding any" and by inserting after the words "Northwest
Airlines Corp." the phrase "but including any event or change in circumstances
affecting or relating to the business, financial condition, assets or results of
operations of Northwest Airlines Corp., Cross Timbers Oil Company, CCC or CCC's
Subsidiaries that may have caused any such decrease."
20. Deletion of Section 6.2(g). Section 6.2(g) is hereby amended to read
--------------------------
in its entirety as follows: "[Reserved]."
21. Amendment to Sections 7.1(b) and 7.1(d). Each of Sections 7.1(b) and
---------------------------------------
7.1(d) are hereby amended by deleting "April 30" each time it appears and
substituting "June 30" therefor.
22. Amendment to Section 7.3(a). Section 7.3(a) is hereby amended to read
---------------------------
in its entirety as follows:
"(a) The Company shall pay Parent the sum of (i) Parent's, MergerCo's
and Merger Sub's (including their affiliates) out-of-pocket expenses up to
a maximum amount of $1.5 million and (ii) $15.0 million upon the
termination of this Agreement by Parent, MergerCo, Merger Sub, the Company
or WRV pursuant to Section 7.1(b) (unless the failure to consummate the
Merger was solely as a result of a breach by Parent or MergerCo of its
obligations under this Agreement), Section 7.1(c), Section 7.1(d) or
Section 7.1(e).
23. Amendment to Section 7.3(d). Section 7.3(d) is hereby amended to
---------------------------
replace the words "payment of expenses" with "payments."
<PAGE>
24. Amendment to Section 8.4. Section 8.4 is amended by deleting therefrom
------------------------
the following definitions: "Asset Disposition", "Excluded Assets", "Excluded
Asset Price", "Excluded Liabilities" and "Purchasing LLC."
25. Deletion of Exhibit A. Exhibit A is hereby deleted in its entirety.
---------------------
26. The representations and warranties made in Section 2.4 of the Merger
Agreement are hereby made by the Company to Parent and MergerCo. as of the date
of this Amendment with references to the "Agreement" in such section being read
as references to the "Merger Agreement" as amended hereby.
27. Except as otherwise amended hereby, all provisions of the Merger
Agreement will remain in full force and effect.
28. This Amendment may be executed in more than one counterpart, each of
which shall be deemed an original but all of which shall constitute one and the
same instrument.
IN WITNESS WHEREOF, the Parties have caused this Amendment to be executed
as of the date first written above by their respective officers thereunto duly
authorized.
WHITE RIVER CORPORATION
By: /s/ Gordon S. Macklin
--------------------------------------
Title: President and CEO
WHITE RIVER VENTURES, INC.
By: /s/ Gordon S. Macklin
--------------------------------------
Title: President and CEO
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DEMETER HOLDINGS CORPORATION
By: /s/ Mark A. Rosen
-----------------------------------------
Title: Authorized signatory
By: /s/ Michael Eisenson
-----------------------------------------
Title: Authorized signatory
WRC MERGER CORP.
By: /s/ Mark A. Rosen
-----------------------------------------
Title: Authorized signatory
By: /s/ Michael Eisenson
----------------------------------------
Title: President and CEO
WRV MERGER CORP.
By: /s/ Mark A. Rosen
-----------------------------------------
Title: Authorized signatory
By: /s/ Michael Eisenson
----------------------------------------
Title: President and CEO
<PAGE>
VOTING AGREEMENT
This VOTING AGREEMENT dated as of April 11, 1998 is made among WRC Merger
Co., a Delaware corporation ("MergerCo"), White River Corporation, a Delaware
--------
corporation (the "Company"), and the stockholders of the Company set forth on
-------
Schedule 1 hereto (collectively, the "Stockholders"). All capitalized terms
------------
used but not otherwise defined herein shall have the meanings ascribed to such
terms in the Amended and Restated Agreement and Plan of Merger dated as of
December 11, 1997 between the Company, MergerCo, Demeter Holdings Corporation, a
Massachusetts corporation, WRV Merger Corp., a Delaware corporation ("Merger
------
Sub"), and White River Ventures, a Delaware corporation ("WRV"), as amended on
---
April 6, 1998 (such Amended and Restated Agreement and Plan of Merger as
amended, the "Merger Agreement" and such amendment, the "Amendment").
---------------- ---------
RECITALS:
--------
WHEREAS, the Stockholders directly or Beneficially Own (as defined in
Section 1.01) as (i) the number of shares of common stock, par value $0.01 per
share, of the Company (the "Company Stock") set forth on Schedule 1 hereto;
-------------
WHEREAS, pursuant to the Merger Agreement, MergerCo will be merged with
and into the Company (the "Merger") with the Company being the surviving
------
corporation in the Merger, and Merger Sub will be merged with and into WRV with
WRV being the surviving corporation in the merger; and
WHEREAS, as an inducement and a condition to entering into the Amendment,
MergerCo required that the Stockholders agree, and the Stockholders have agreed,
(i) to vote their shares of Company Stock in accordance with, and grant a proxy
pursuant to, Article II hereof, (ii) to not sell, transfer or otherwise dispose
of their shares of Company Stock other than at the Effective Time and (iii) to
cooperate in and support the consummation of the transactions contemplated by
this Agreement and the Merger Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual premises,
representations, warranties, covenants and agreements contained herein, the
parties hereto, intending to be legally bound, hereby agree as follows:
29. DEFINITIONS
a. For purposes of this Agreement:
i. "Beneficially Own" or "Beneficial Ownership" with respect to any
---------------- --------------------
securities shall mean having "beneficial ownership" of such securities (as
determined pursuant to Rule 13d-3 under the Exchange Act, including pursuant to
any agreement, arrangement or understanding, whether or not in writing).
Without duplicative counting of the same securities by the same holder,
securities Beneficially Owned by a Person shall include securities Beneficially
Owned by all other Persons with whom such Person would constitute a "group"
within the meaning of
<PAGE>
Section 13(d)(3) of the Exchange Act.
ii. "Exchange Act" shall mean the Securities Exchange Act of 1934, as
------------
amended.
iii "Person" shall mean an individual, corporation, partnership, joint
------
venture, association, trust, incorporated organization or other entity.
iv. "Shares" shall mean all shares of Company Stock currently
------
Beneficially Owned or held of record by any Stockholder.
30. VOTING AGREEMENT
a. Agreement to Vote Shares. At every meeting of the stockholders of the
Company called with respect to any of the following, and at every adjournment
thereof, and on every action or approval by written consent of the stockholders
of the Company with respect to any of the following, each Stockholder shall vote
all or cause to be voted the shares of Company Stock that it owns directly or
Beneficially Owns on the record date of any such vote: (i) in favor of the
Merger and the transactions contemplated by the Merger Agreement, the adoption
of the Merger Agreement and the approval of the terms thereof and (ii) against
the following actions (other than the Merger and the transactions contemplated
by the Merger Agreement): (1) any merger, consolidation or other business
combination involving the Company or its Subsidiaries; (2) a sale, lease or
transfer of a material amount of the stock or assets of the Company or its
Subsidiaries or a reorganization, recapitalization, dissolution or liquidation
of the Company or its Subsidiaries that under applicable law requires the
approval of the Company's stockholders; (3) (a) any change in the majority of
the board of directors of the Company; (b) any material change in the present
capitalization of the Company or any amendment of the Company's Certificate of
Incorporation that under applicable law requires the approval of the Company's
stockholders; (c) any other material change in the Company's corporate structure
or business that under applicable law requires the approval of the Company's
stockholders; or (d) any other action that under applicable law requires the
approval of the Company's stockholders which is intended, or could reasonably be
expected, to impede, interfere with, delay, postpone, or materially adversely
affect the consummation of the Merger or the transactions contemplated by the
Merger Agreement or this Agreement.
b. Irrevocable Proxy. EACH STOCKHOLDER HEREBY GRANTS TO AND APPOINTS
MERGERCO AND THE PRESIDENT OF MERGERCO AND THE TREASURER OF MERGERCO, IN THEIR
RESPECTIVE CAPACITIES AS OFFICERS OF MERGERCO, AND ANY INDIVIDUAL WHO SHALL
HEREAFTER SUCCEED TO ANY SUCH OFFICE OF MERGERCO, AND ANY OTHER DESIGNEE OF
MERGERCO, AND EACH OF THEM INDIVIDUALLY, SUCH STOCKHOLDER'S PROXY AND ATTORNEY-
IN-FACT (WITH FULL POWER OF SUBSTITUTION) TO VOTE OR ACT BY WRITTEN CONSENT WITH
RESPECT TO THE SHARES OF COMPANY STOCK DIRECTLY OR BENEFICIALLY OWNED BY SUCH
STOCKHOLDER SOLELY WITH RESPECT TO THE MATTERS IN CLAUSES (i) and (ii) OF, AND
SOLELY IN ACCORDANCE WITH, SECTION 2.01 HEREOF. THIS PROXY IS COUPLED WITH AN
INTEREST AND SHALL BE
<PAGE>
IRREVOCABLE, AND EACH STOCKHOLDER WILL TAKE SUCH FURTHER ACTION OR EXECUTE SUCH
OTHER INSTRUMENTS AS MAY BE NECESSARY TO EFFECTUATE THE INTENT OF THIS PROXY AND
HEREBY REVOKES ANY PROXY PREVIOUSLY GRANTED BY IT WITH RESPECT TO THE SHARES OF
COMPANY STOCK DIRECTLY OR BENEFICIALLY OWNED BY SUCH STOCKHOLDER.
31. COVENANTS OF THE STOCKHOLDERS
a. No Solicitation. Each Stockholder shall not, directly or indirectly,
solicit (including by way of furnishing information) or respond to any inquiries
regarding the making of any Acquisition Proposal (as defined in the Merger
Agreement) or enter into or maintain or continue discussions or negotiate with
any Person in furtherance of such inquiries or to obtain an Acquisition Proposal
or agree to or endorse any Acquisition Proposal, or authorize or permit any of
its officers, directors or employees or affiliates (other than the Company) to
take any such action unless such action or actions would be permissible under
Section 4.2(b) of the Merger Agreement if undertaken by the Board of Directors
of the Company. Each Stockholder will, except as explicitly permitted pursuant
to Section 4.2(b) of the Merger Agreement, immediately cease and cause to be
terminated any existing activities, discussions or negotiations with any parties
conducted heretofore with respect to any of the foregoing. Nothing contained in
this Section 3.01 shall prevent the Board of Directors of the Company from
considering, negotiating, discussing, approving and recommending to the
stockholders of the Company a bona fide Acquisition Proposal not solicited in
violation of this Agreement or the Merger Agreement, provided the Board of
Directors of the Company determines in good faith (upon written advice of
outside counsel) that it is required to do so in order to discharge properly its
fiduciary duties.
b. Restriction on Transfer and Non-Interference. Except as applicable in
connection with the transactions contemplated by the Merger Agreement or Article
II hereof, no Stockholder shall, directly or indirectly (i) offer for sale,
sell, transfer, tender, pledge, encumber, assign or otherwise dispose of, or
enter into any contract, option or other arrangement or understanding with
respect to, or consent to, an offer for sale, sale, transfer, tender, pledge,
encumbrance, assignment or other disposition of, any or all of its Shares or any
interest therein or (ii) take any action that would make any representation or
warranty of the Stockholder contained herein untrue or incorrect or have the
effect of preventing or disabling the Stockholder from performing such
Stockholder's obligations under this Agreement.
c. Cooperation; Further Assistance. From time to time, at the request of
MergerCo and without further consideration, each Stockholder shall execute and
deliver such additional documents and take all such further lawful action as may
be necessary or desirable to carry out, in the most expeditious manner
practicable, the provisions of this Agreement and the Merger Agreement. Subject
to the last sentence of Section 3.01, the Company and the Stockholder agree to
cooperate in and support the consummation of the transactions contemplated by
the Merger Agreement.
<PAGE>
32. REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS
Each Stockholder represents and warrants to MergerCo that:
d. Ownership of Shares; Voting Power. The Stockholder is the record or
Beneficial Owner of the number of Shares shown next to such Stockholder's name
on Schedule 1 hereto, and on the date hereof such Shares constitute all of the
Shares of Company Stock owned of record or Beneficially Owned by the
Stockholder; the Stockholder has good title to all of such Shares, free of all
claims, liens, options, charges, security interests or other legal or equitable
rights and encumbrances (other than any of the foregoing arising out of an
action or omission of MergerCo) of whatsoever nature, and with no restriction on
the voting rights pertaining thereto; and the Stockholder has sole voting power
and sole power to issue instructions with respect to the matters set forth in
Article II hereof, sole power of disposition, sole power of conversion, sole
power to demand appraisal rights and sole power to agree to all of the matters
set forth in this Agreement, in each case with respect to all of such Shares,
with no limitations, qualifications or restrictions on such rights, subject to
applicable securities laws and the terms of this Agreement.
e. Power; Binding Agreement. The Stockholder has the legal capacity,
power and authority to enter into and perform all of its obligations under this
Agreement and the execution, delivery and performance of this Agreement by the
Stockholder will not violate any other agreement to which the Stockholder is a
party including, without limitation, any voting agreement, stockholder agreement
or voting trust. This Agreement has been duly and validly executed and
delivered by the Stockholder and constitutes a valid and binding agreement of
the Stockholder, enforceable against the Stockholder in accordance with its
terms. There is no beneficiary or holder of a voting trust certificate or other
interest of any trust of which the Stockholder is trustee whose consent is
required for the execution and delivery of this Agreement or the consummation by
the Stockholder of the transactions contemplated hereby.
f. No Conflicts. No filing with, and no permit, authorization, consent
or approval of, any state or federal public body or authority is necessary for
the execution of this Agreement by the Stockholder and the consummation by the
Stockholder of the transactions contemplated hereby and none of the execution
and delivery of this Agreement by the Stockholder, the consummation by the
Stockholder of the transactions contemplated hereby or compliance by the
Stockholder with any of the provisions hereof shall (1) conflict with or result
in any breach of any applicable organizational documents applicable to the
Stockholder, (2) result in a violation or breach of, or constitute (with or
without notice or lapse of time or both) a default (or give rise to any third
party's right of termination, cancellation, material modification or
acceleration) under any of the terms, conditions or provisions of any note,
bond, mortgage, indenture, license, contract, instrument or obligation of any
kind to which the Stockholder is a party or by which the Stockholder or any of
the Stockholder's properties or assets may be bound or (3) violate any order,
writ, injunction, decree, judgment, order, statute, rule or regulation
applicable to the Stockholder or any of the Stockholder's properties or assets.
g. No Finder's Fees. 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
<PAGE>
connection with this Agreement.
h. Reliance by MergerCo. The Stockholder understands and acknowledges
that MergerCo's willingness to enter into the Amendment is subject to the
Stockholder's execution and delivery of this Agreement and the Stockholder's
performance of all of its obligations hereunder.
33. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to MergerCo and the Stockholders that
the Company has all necessary power and authority to enter into this Agreement
and to consummate the transactions contemplated hereby. The execution and
delivery of this Agreement have been duly and validly authorized by the Company
and no other corporate proceedings on the part of the Company are necessary to
authorize this Agreement. This Agreement has been duly and validly executed and
delivered by the Company and constitutes a valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms.
34. MISCELLANEOUS
i. Termination. Except as provided in Section 6.12 hereof, this
Agreement shall terminate on and be of no further force or effect upon the
termination of the Merger Agreement for any reason; provided, however, that the
termination of this Agreement shall not relieve any party hereto from any
liability or obligation in respect of any breach of this Agreement by such party
prior to the termination of this Agreement.
j. Entire Agreement. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter hereof and supersedes all
other prior agreements and understandings, both written and oral, between the
parties with respect to the subject matter hereof.
k. Certain Events. The Stockholders agree that this Agreement and the
obligations hereunder shall attach to the Shares and shall be binding upon any
Person to which legal or Beneficial Ownership of such Shares shall pass, whether
by operation of law or otherwise. Notwithstanding any transfer of Shares, the
transferor shall remain liable for the performance of all obligations under this
Agreement of the transferor.
l. Assignment. This Agreement shall not be assigned by the Stockholders
or the Company by operation of law or otherwise without the prior written
consent of MergerCo.
m. Amendments, Waivers, Etc. This Agreement may not be amended, changed,
supplemented, waived or otherwise modified or terminated, except upon the
execution and delivery of a written agreement executed by each of the relevant
parties hereto, delivered as follows:
If to any Stockholder, to such Stockholder at its respective address
indicated on Schedule 1 hereto.
<PAGE>
If to MergerCo: WRC Merger Corp.
c/o Harvard Private Capital Group, Inc.
600 Atlantic Avenue, 26th Floor
Boston, MA 02210
(617) 523-4400 (telephone)
(617) 523-1063 (telecopier)
Attn: Michael R. Eisenson
copy to: Ropes & Gray
One International Place
Boston, MA 02110
(617) 951-7000 (telephone)
(617) 951-7050 (telecopier)
Attn: Larry J. Rowe, Esq.
If to Company: White River Corporation
Two Gannett Drive, Suite 200
White Plains, NY 10604
(914) 251-0237 (telephone)
(914) 251-0313 (telecopier)
Attn: Michael E.B. Spicer
copy to: LeBoeuf, Lamb, Greeve & MacRae, L.L.P.
125 West 55th Street
New York, NY 10019
(212) 424-8000 (telephone)
(212) 424-8500 (telecopier)
Attn: Alexander M. Dye, Esq.
or to such other address as the Person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above.
n. Severability. Whenever possible, each provision or portion of any
provisions of this Agreement will be interpreted in such manner as to be
effective and valid under applicable law, but if any provision or portion of any
provision of this Agreement is held to be invalid, illegal or unenforceable in
any respect under any applicable law or rule in any jurisdiction, such
invalidity, illegality or unenforceability will not affect any other provision
or portion of any provision in such jurisdiction, and this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provisions or portion of any provision had never been
contained herein.
o. Specific Performance. Each of the parties hereto recognizes and
acknowledges that a breach by it of any covenants or agreements contained in
this Agreement will cause the other party to sustain damages for which it would
not have an adequate remedy at law for money damages, and therefore each of the
parties hereto agrees that in the event of any such breach the
<PAGE>
aggrieved party shall be entitled to the remedy of specific performance of such
covenants and agreements and injunctive and other equitable relief in addition
to any other remedy to which it may be entitled, at law or in equity.
p. Remedies Cumulative. All rights, powers and remedies provided under
this Agreement or otherwise available in respect hereof at law or in equity
shall be cumulative and not alternative, and the exercise of any thereof by any
party shall not preclude the simultaneous or later exercise of any other such
right, power or remedy by such party.
q. No Waiver. The failure of any party hereto to exercise any right,
power or remedy provided under this Agreement or otherwise available in respect
hereof at law or in equity, or to insist upon compliance by any other party
hereto with its obligations hereunder, any custom or practice of the parties at
variance with the terms hereof, shall not constitute a waiver by such party of
its rights to exercise any such or other right, power or remedy or to demand
such compliance.
r. Governing Law. This Agreement shall be governed and construed in
accordance with the laws of the State of Delaware, without giving effect to the
principles of conflicts of law thereof.
s. Waiver of Jury Trial. Each party hereto hereby waives any right to a
trial by jury in connection with any such action, suit or proceeding.
t. Survival of Representations and Warranties. All representations and
warranties contained herein which are made by the parties hereto shall survive
the Effective Time and the termination of this Agreement.
u. Descriptive Headings. The descriptive headings used herein are
inserted for convenience of reference only and are not intended to be part of or
to affect the meaning or interpretation of this Agreement.
v. Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed to be an original, but all of which, taken together, shall
constitute one and the same Agreement.
[Remainder of this page intentionally left blank]
<PAGE>
IN WITNESS WHEREOF, MergerCo, the Company and the Stockholders have caused
this Agreement to be duly executed as of the day and year first above written.
WRC MERGER CORP.
By:_____________________________
Name:
Title:
WHITE RIVER CORPORATION
By:_____________________________
Name:
Title:
________________________________
John J. Byrne
________________________________
Patrick M. Byrne
________________________________
Robert Marto
________________________________
Name:
________________________________
Name:
________________________________
Name:
________________________________
Name:
<PAGE>
Schedule 1
----------
STOCKHOLDERS
Name and Address of Stockholder Shares of Company Stock Held
- ------------------------------- ----------------------------
<PAGE>
[LETTERHEAD OF WHITE RIVER CORPORATION APPEARS HERE]
EXHIBIT 99.1
CONTACT: (914) 251-0311
FOR IMMEDIATE RELEASE
WHITE PLAINS, New York, April 7, 1998 -- White River Corporation ("White River")
announced today that it has reached an agreement to amend its pending merger
agreement with an affiliate of Harvard Private Capital Group, Inc. ("Harvard").
Under the terms of the amended agreement, Harvard, among other things, will
increase the merger consideration to be paid to White River shareholders from
$82.02 per share in cash to $90.67 per share in cash, in each case subject to
adjustment which could result in a higher or lower price at closing. In
addition, White River has agreed to pay Harvard a termination fee of $15
million, plus up to $1.5 million in reimbursable expenses, in the event that the
merger agreement is terminated under certain circumstances.
White River's common stock trades on the Nasdaq National Market tier of the
NASDAQ Stock Market under the symbol "WHRC".
