Exhibit 2b
O'SULLIVAN INDUSTRIES HOLDINGS, INC.
AMENDED AND RESTATED
STOCK EXCHANGE AGREEMENT
This AMENDED AND RESTATED STOCK EXCHANGE AGREEMENT (the
"Agreement") is made and entered into as of February 1, 1994,
between O'Sullivan Industries Holdings, Inc., a Delaware
corporation ("O'Sullivan"), and TE Electronics Inc., a
Delaware corporation ("TE").
RECITALS
WHEREAS, TE owns 100 shares of common stock, par value
$1.00 per share, of O'Sullivan Industries, Inc. (the "Old
O'Sullivan Stock"), a Delaware corporation ("Old
O'Sullivan"), such stock being all of the issued and
outstanding capital stock of Old O'Sullivan;
WHEREAS, TE desires to transfer the Old O'Sullivan Stock
to O'Sullivan in exchange for the issuance by O'Sullivan to
TE of 14,999,900 shares of common stock, par value $1.00 per
share, of O'Sullivan together with the Preferred Stock
Purchase Rights of O'Sullivan associated with such shares
(the "Common Stock"),and O'Sullivan desires to issue the
Common Stock to TE in exchange for the Old O'Sullivan Stock;
WHEREAS, following such issuance the issued and
outstanding capital stock of O'Sullivan will consist of
15,000,000 shares of Common Stock, all of which will be owned
by TE; and
WHEREAS, all of the shares of O'Sullivan Common Stock
issued to TE will be offered for sale in the Offerings
pursuant to the U.S. Purchase Agreement and International
Purchase Agreement, as such terms are defined in the
Prospectus (as amended from time to time, the "Prospectus")
constituting a part of the Registration Statement No.
33-72120 on Form S-1 filed by O'Sullivan with the Securities
and Exchange Commission on November 24, 1993 (as amended from
time to time, the "Registration Statement").
AGREEMENT
NOW, THEREFORE, in consideration of the premises and of
the mutual agreements, covenants, representations and
warranties contained herein, the above parties hereby agree,
subject to the terms and conditions hereinafter set forth, as
follows:
1. Terms of Purchase and Sale of Shares.
1.01 Purchase and Sale of Shares. At the closing (as
defined in Section 1.02): (i) O'Sullivan shall issue to TE
14,999,900 shares of the Common Stock and (ii) TE shall sell,
assign, transfer and convey to O'Sullivan (x) the Old
O'Sullivan Stock free and clear of all liens, encumbrances,
restrictions and claims whatsoever and (y) the right to
receive the Adjustment Date Payment Amount (as defined below)
if a negative number. As additional purchase price under
this Agreement, O'Sullivan shall pay to TE the Tax Benefit
Payments (as such term is defined in the Tax Sharing and Tax
Benefit Reimbursement Agreement, dated as of January 24,
1994, between Tandy, TE and O'Sullivan the ("Tax Sharing
Agreement")) and the right to receive the Adjustment Date
Payment Amount, if a positive number. "Adjustment Date
Payment Amount" shall have the meaning given to it in the
Closing Adjustment Agreement to be entered into by TE and
O'Sullivan.
1.02 Closing. The issuance of the Common Stock in
exchange for the Old O'Sullivan Stock contemplated by Section
1.01 (the "Closing") shall take place at the offices of TE
Electronics Inc., 200 Taylor Street, Suite 700, Fort Worth,
Texas 76102 at 12:01 a.m. on the date that the transactions
contemplated by the U.S. Purchase Agreement and the
International Purchase Agreement (the "Purchase Agreements")
close; or such earlier date as TE and O'Sullivan shall
mutually agree (the "Closing Date"); provided, however, that
the Closing shall not occur earlier than one day after the
date (the "Underwriting Date") that TE enters into the
Purchase Agreements committing TE to sell 15,000,000 shares
of Common Stock.
2. Representations and Warranties of O'Sullivan.
O'Sullivan hereby represents and warrants as
follows:
2.01 Organization, Standing and Power. O'Sullivan is a
corporation, duly organized, validly existing and in good
standing under the laws of the State of Delaware. O'Sullivan
has all requisite corporate power and authority to own, lease
and operate its properties and assets and to carry on its
business as now conducted and as proposed to be conducted
prior to or on the Closing Date and to execute, deliver and
perform this Agreement and to consummate the transactions
hereby contemplated.
2.02 Authority. The execution, delivery and
performance by O'Sullivan of this Agreement and the
consummation by O'Sullivan of the transactions contemplated
hereby have been duly and validly authorized by all necessary
corporate action on the part of the Company (including
without limitation; the approval of its Board of Directors
and any approval or consent of stockholders required by law
or by its Certificate of Incorporation or By-laws). This
Agreement is the legal, valid and binding obligation of
O'Sullivan, enforceable in accordance with its terms, except
to the extent that such enforceability may be limited by
bankruptcy, insolvency or other similar laws relating to
creditors' rights generally, and is subject to general
principles of equity.
2.03 No Conflicts. Neither the execution and delivery
of this Agreement nor the consummation of the transactions
contemplated hereby nor compliance by O'Sullivan with any of
the provisions hereof, will:
(a) conflict with or result in a breach of any
provision of O'Sullivan's Certificate of Incorporation or
By-laws; or
(b) constitute or result in the breach of any
term, condition or provision of, or constitute a default
under, or give rise to any right of termination, cancellation
or acceleration with respect to, or result in the creation of
any lien, charge or encumbrance upon any property or asset of
O'Sullivan pursuant to, any note, bond, mortgage, indenture,
license, agreement or other instrument or obligation to which
O'Sullivan is a party or by which O'Sullivan or any of its
properties or assets may be bound and which is material to
the operations of O'Sullivan except for such conflicts,
breaches or defaults as to which written waivers or consents
shall have been obtained by O'Sullivan on or prior to the
Closing Date; or
(c) violate any order, writ, injunction, decree,
statute, rule or regulation applicable to O'Sullivan or any
of its properties or assets.
2.04 Capital Structure.
(a) Upon consummation of the transaction
contemplated hereby, the authorized capital stock of
O'Sullivan will consist of:
(i) 100,000,000 shares of Common Stock, par
value $1.00 per share, of which 15,000,000 shares will be
validly issued and outstanding; and
(ii) 20,000,000 shares of preferred stock,
par value $1.00 per share, of which no shares will be validly
issued and outstanding.
(b) All outstanding shares of O'Sullivan's capital
stock will have been duly authorized and validly issued, will
be fully paid and non-assessable, and will not have been
issued in violation of any pre-emptive rights.
(c) Except as set forth on Schedule 2.04, there is
outstanding no security, option, warrant, right, call,
subscription, agreement, commitment or understanding of any
nature whatsoever, fixed or contingent, that directly or
indirectly:
(i) calls for the issuance, sale, pledge or
other disposition of any shares or of any other capital stock
of O'Sullivan or any securities convertible into, or other
rights to acquire, any such shares or other capital stock of
O'Sullivan; or
(ii) obligates O'Sullivan to grant, offer or
enter into any of the foregoing; or
(iii) relates to the voting or control of
such shares, capital stock, securities or rights.
2.05 Certificate of Incorporation; By-laws.
O'Sullivan's Certificate of Incorporation, as certified by
the appropriate official of the State of Delaware, and its
By-laws are attached hereto as Exhibit A. Such Certificate
and By-laws are complete and correct, and are in full force
and effect, and O'Sullivan is not in violation of any of the
provisions of either such document.
2.06 Title to Shares. Upon issuance and delivery to TE
of the O'Sullivan Common Stock, and subject to the terms of
the Purchase Agreements, O'Sullivan will convey to TE legal
and valid title to the Common Stock free and clear of all
liens, encumbrances and claims whatsoever.
2.07 Consents and Approvals. Except as set forth on
Schedule 2.07, no authorization, consent, order or approval
of or notice to or filing with, any federal, state or local
governmental authority is required in connection with the
execution, delivery and performance by O'Sullivan of the
transactions contemplated hereby.
2.08 Formation. O'Sullivan has been formed prior to
the Closing solely to permit registration of its common stock
with the Securities and Exchange Commission and to enable it
to acquire all of the Old O'Sullivan stock at the Closing.
Except for activities incident to these actions, prior to
Closing, O'Sullivan will have engaged in no activities and
will have carried on no business.
3. Representations and Warranties of TE.
TE hereby represents and warrants as follows:
3.01 Organization, Standing and Power of TE. TE is a
corporation, duly organized, validly existing and in good
standing under the laws of the State of Delaware. TE has all
requisite corporate power and authority to own, lease and
operate its properties and assets and to carry on its
business as now conducted and as proposed to be conducted
prior to the Closing Date and to execute, deliver and perform
this Agreement and to consummate the transactions hereby
contemplated.
3.02 Organization of Old O'Sullivan. Old O'Sullivan is
a corporation, duly organized, validly existing and in good
standing under the laws of the State of Delaware.
3.03 Authority. The execution, delivery and performance
by TE of this Agreement and the consummation by TE of the
transactions contemplated hereby have been duly and
validly authorized by all necessary corporate action on the
part of TE (including without limitation; the approval of its
Board of Directors and the approval or consent of its
stockholder). This Agreement is the legal, valid and binding
obligation of TE, enforceable in accordance with its terms,
except to the extent that such enforceability may be limited
by bankruptcy, insolvency or other similar laws relating to
creditors' rights generally, and is subject to general
principles of equity.
3.04 No Conflicts. Neither the execution and delivery
of this Agreement nor the consummation of the transactions
contemplated hereby nor compliance by TE with any of the
provisions hereof, will:
(a) conflict with or result in a breach of any
provision of TE's Certificate of Incorporation or By-laws; or
(b) constitute or result in the breach of any
term, condition or provision of, or constitute a default
under, or give rise to any right of termination, cancellation
or acceleration with respect to, or result in the creation of
any lien, charge or encumbrance upon any property or asset of
TE pursuant to, any note, bond, mortgage, indenture, license,
agreement or other instrument or obligation to which TE is a
party or by which TE or any of its respective properties or
assets may be bound and which is material to the operations
of TE except for such conflicts, breaches or defaults as to
which written waivers or consents shall have been obtained by
TE on or prior to the Closing Date; or
(c) violate any order, writ, injunction, decree,
statute, rule or regulation applicable to TE or any of its
properties or assets.
3.05 Capital Structure of Old O'Sullivan.
(a) The authorized capital structure of Old
O'Sullivan consists of 100 shares of Common Stock, par value
$1.00 per share, of which 100 shares are validly issued and
outstanding; and
(b) All outstanding shares of Old O'Sullivan's
capital stock have been duly authorized and validly issued,
are fully paid and non-assessable, and have not been issued
in violation of any pre- emptive rights.
(c) Except as set forth on Schedule 3.05, there is
outstanding no security, option, warrant, right, call,
subscription, agreement, commitment or understanding of any
nature whatsoever, fixed or contingent, that directly or
indirectly:
(i) calls for the issuance, sale, pledge or
other disposition of any shares or of any other capital stock
of Old O'Sullivan or any securities convertible into, or
other rights to acquire, any such shares or other capital
stock of Old O'Sullivan; or
(ii) obligates Old O'Sullivan to grant, offer
or enter into any of the foregoing; or
(iii) relates to the voting or control of
such shares, capital stock, securities or rights.
3.06 Certificate of Incorporation; By-laws. TE's
Certificate of Incorporation, as certified by the appropriate
official of the State of Delaware, and its By-laws are
attached hereto as Exhibit B. Such Certificate and By-laws
are complete and correct, and are in full force and effect,
and TE is not in violation of any of the provisions of either
such document.
3.07 Title to Shares. Upon the sale and delivery to
O'Sullivan of the Old O'Sullivan Stock, TE will convey to
O'Sullivan legal and valid title to the Old O'Sullivan Stock
free and clear of all liens, encumbrances and claims
whatsoever.
3.08 Consents and Approvals. Except as set forth on
Schedule 3.08, no authorization, consent, order or approval
of or notice to or filing with, any federal, state or local
governmental authority is required in connection with the
execution, delivery and performance by TE of the transactions
contemplated hereby.
4. Certain Covenants of the Parties.
O'Sullivan and TE hereby covenant to and agree with one
another as follows:
4.01 Conduct of Business. O'Sullivan will take such
action that is necessary to effect the offering and sale of
Common Stock pursuant to the Purchase Agreements.
4.02 Fees and Expenses. TE shall pay all of the fees
and expenses incurred by O'Sullivan, Old O'Sullivan or TE in
connection with (a) the registration and sale of shares of
O'Sullivan Common Stock and (b) the sale of any shares sold
by O'Sullivan pursuant to the exercise of the over-allotment
options (as such term is defined in the Prospectus).
4.03 Tax Covenants.
(a) O'Sullivan agrees that for at least a three
(3) year period following the Closing, neither O'Sullivan nor
Old O'Sullivan shall cease to remain in existence as separate
corporations.
(b) No later than two (2) business days after the
Closing, TE will sell all of the Common Stock to the U.S.
Underwriters and the Managers, as such terms are defined in
the Prospectus, pursuant to the Purchase Agreements.
4.04 Sale of Shares. TE acknowledges that all of the
shares of O'Sullivan Common Stock may be resold only upon
registration under the Securities Act of 1933 or pursuant to
an exemption from registration thereunder.
5. Conditions Precedent to Obligations of O'Sullivan.
The obligations of O'Sullivan to consummate the
transactions contemplated hereby shall be subject to the
satisfaction on or prior to the Closing Date of all of the
following conditions, except such conditions as O'Sullivan
may waive (other than the condition contained in Section
5.03, which condition O'Sullivan shall not be entitled to
waive):
5.01 Representations, Warranties and Covenants of TE.
TE shall have complied in all material respects with all of
its agreements and covenants contained herein required to be
complied with at or prior to the Closing Date, and all the
representations and warranties of TE contained herein shall
be true in all material respects on and as of the Closing
Date with the same effect as though made on and as of the
Closing Date, except to the extent that such representations
and warranties expressly make reference to a specified date
and as to such representations and warranties the same shall
continue on the Closing Date to have been true in all
material respects as of the specified date. O'Sullivan shall
have received a certificate executed by or on behalf of TE,
and dated as of the Closing Date, (a) certifying as to the
fulfillment of the conditions set forth in this Section 5.01
and (b) attaching thereto a certified copy of the resolutions
of TE's Board of Directors and sole stockholder approving
this Agreement.
5.02 No Governmental or Other Proceeding. No order of
any court or governmental or regulatory authority or body
which restrains or prohibits the transactions contemplated
hereby shall be in effect on the Closing Date and no suit or
investigation by any government agency to enjoin the
transactions contemplated hereby or seek damages or other
relief as a result thereof shall be pending or threatened as
of the Closing Date.
5.03 Purchase Agreement. TE and O'Sullivan shall have
executed the Purchase Agreements, in substantially the forms
thereof attached hereto as Exhibit C, and TE's obligation to
sell the Common Stock pursuant to the Purchase Agreements
shall be a legal, valid and binding obligation of TE.
5.04 Tax Sharing Agreement. Tandy shall have executed
the Tax Sharing Agreement.
6. Conditions Precedent to Obligations of TE.
The obligations of TE to consummate the transactions
contemplated hereby shall be subject to the satisfaction on
or prior to the Closing Date of all of the following
conditions, except such conditions as TE may waive (other
than the conditions set forth in Section 6.03, which
condition may not be waived):
6.01 Warranties, Representations and Covenants of
O'Sullivan. O'Sullivan shall have complied in all material
respects with all of its agreements and covenants contained
herein required to be complied with at or prior to the
Closing Date, and all the representations and warranties of
O'Sullivan contained herein shall be true in all material
respects on and as of the Closing Date with the same effect
as though made on and as of the Closing Date, except to the
extent that such representations and warranties expressly
make reference to a specified date and as to such
representations and warranties the same shall continue on the
Closing Date to have been true in all material respects as of
the specified date. TE shall have received a certificate
executed by or on behalf of O'Sullivan, and dated as of the
Closing Date, (a) certifying as to the fulfillment of the
conditions set forth in this Section 6.01 and (b) attaching
thereto a certified copy of the resolutions of O'Sullivan's
Board of Directors approving this Agreement.
6.02 No Governmental or Other Proceeding. No order of
any court or governmental or regulatory authority or body
which restrains or prohibits the transactions contemplated
hereby shall be in effect on the Closing Date and no suit or
investigation by any government agency to enjoin the
transactions contemplated hereby or seek damages or other
relief as a result thereof shall be pending or threatened as
of the Closing Date.
6.03 Purchase Agreement. TE and O'Sullivan shall have
executed the Purchase Agreements, in substantially the forms
thereof attached hereto as Exhibit C, and TE's obligation to
sell the Common Stock pursuant to the Purchase Agreements
shall be a legal, valid and binding obligation of TE.
6.04 Tax Sharing Agreement. O'Sullivan shall have
executed the Tax Sharing Agreement.
7. Deliveries at Closing.
7.01 Deliveries by O'Sullivan. At the Closing,
O'Sullivan shall deliver, or cause to be delivered, to TE the
following:
(a) one or more stock certificates representing an
aggregate of 14,999,900 shares of O'Sullivan Common Stock,
duly executed and indicating TE as holder thereof;
(b) the certificate referred to in Section 6.01.
7.02 Deliveries by TE. At the Closing, TE shall
deliver, or cause to be delivered, to O'Sullivan thefollowing:
(a) stock certificates representing 100 shares of
Old O'Sullivan Stock, duly endorsed in blank or accompanied
by appropriate stock transfer powers executed by TE;
(b) the certificate referred to in Section 5.01.
8. Termination Prior to Closing.
8.01 Termination of Agreement. This Agreement may be
terminated prior to the Closing in any of the following ways:
(a) By the mutual written consent of O'Sullivan
and TE;
(b) By termination of the Purchase Agreements;
(c) By either party in writing, against the other,
if one or the other, as the case may be, shall (i) fail to
perform in any material respect its agreements contained
herein required to be performed prior to the Closing Date or
(ii) materially breach any of its representations,
warranties, covenants or agreements contained herein, which
failure or breach is not cured within five days after the
party seeking to terminate has notified the other party of
its intent to terminate this Agreement pursuant to this
clause;
(d) On the Closing Date by O'Sullivan in writing,
if any of the conditions set forth in Article V hereof shall
not have been met and, if not so met, has not been waived by
O'Sullivan in writing;
(e) On the Closing Date by TE in writing, if any
of the conditions set forth in Article VI hereof shall not
have been met and, if not so met, has not been waived by TE
in writing; or
(f) By either party in writing if the Closing
shall not have occurred on or before February 28, 1994 or
such other date to which the Agreement has been extended
pursuant to Section 1.02; provided, however, that this
Agreement may not be terminated by a party pursuant to this
Section 8.01(f) if the failure of the Closing to occur on or
before such date is due to the breach by such party of any of
its obligations hereunder.
8.02 Automatic Termination. This Agreement shall be
terminated if the Purchase Agreements have not been executed
on or before February 15, 1994.
9. Miscellaneous.
9.01 Severability. A determination that any provision
of this Agreement is unenforceable or invalid shall not
affect the enforceability or validity of any other provision
and a determination that the application of any provision of
this Agreement to any person or circumstance is illegal or
unenforceable shall not affect the enforceability or validity
of such provision as it may apply to other persons or
circumstances.
9.02 Successors and Assigns. The terms and conditions
of this Agreement shall inure to the benefit of and be
binding upon the respective successors of the parties hereto;
provided, however, that this Agreement may not be assigned by
any party without the prior written consent of the other
party hereto; and provided further, that, notwithstanding the
prior proviso, TE may, at its election and without the prior
written consent of O'Sullivan, assign this Agreement to any
direct or indirect wholly-owned subsidiary or any other
affiliate of TE so long as the representations and warranties
of TE made herein are equally true of such assignee. If this
Agreement is assigned with such consent or pursuant to such
exception, the terms and conditions hereof shall be binding
upon and shall inure to the benefit of the parties hereto and
their respective assigns; provided, however, that no
assignment of this Agreement or any of the rights or
obligations hereof shall relieve any party of its obligations
under this Agreement. With the exception of the parties to
this Agreement, there shall exist no right of any person to
claim a beneficial interest in this Agreement or any rights
occurring by virtue of this Agreement.
9.03 Survival. The representations, warranties,
covenants and agreements contained herein to be performed or
complied with after the Closing shall survive without
limitation as to time, unless the covenant or agreement
specifies a term, in which case such covenant or agreement
shall survive until the expiration of such specified term.
9.04 Notices. Any notice, request, instruction or
other document (each, a "notice") to be given hereunder by
any party hereto to any other party hereto shall be in
writing and shall be deemed to have been duly given if
delivered personally, sent by facsimile transmission, or
registered or certified mail, postage prepaid, to the parties
hereto at the following addresses or to such other addresses
as any party hereto shall hereafter specify by notice to the
other party or parties hereto:
(a) if to O'Sullivan to:
O'Sullivan Industries Holdings, Inc.
1900 Gulf Street
Lamar, Missouri 64759
Attention: Daniel F. O'Sullivan
with a copy to General Counsel
(b) if to TE to:
TE Electronics Inc.
200 Taylor Street, Suite 700
Fort Worth, TX 76102
Attention: Frederick W. Padden
Any such notice, request, instruction or document shall
be deemed to have been received on the date of delivery
thereof.
9.05 Governing Law. The validity, performance and
enforcement of this Agreement and any agreement entered into
pursuant hereto, unless expressly provided to the contrary,
will be governed by the laws of the State of New York,
without giving effect to the principles of conflicts of law
thereof.
9.06 Descriptive Headings. The descriptive headings
herein are inserted for convenience of reference only and are
not intended to be part of, or to affect the meaning or
interpretation of any provision of, this Agreement.
9.07 Word Usage. Whenever required by the context and
as used in this Agreement, the singular shall include the
plural and pronouns and any variation thereof shall be deemed
to refer to the masculine, feminine, neuter, singular or
plural, as the identification of the party in question may
require.
9.08 Counterparts; Modification. This Agreement (a)
may be executed in two or more counterparts, each of which
shall be deemed to be an original, but all of which shall
constitute one and the same agreement and (b) may be amended
only by an instrument in writing intended for that purpose
executed jointly by an authorized representative of each
party hereto.
9.09 Entire Agreement. This Agreement constitutes the
entire agreement among the parties hereto with respect to the
subject matter hereof, and supersedes any and all other prior
agreements and understandings among the parties hereto with
respect to this subject matter.
9.10 Further Assurances. From and after the Closing
Date, each party, at the request of the other party and at
the requesting party's expense, will each take all such
action and deliver all such documents as shall be reasonably
necessary or appropriate to confirm and vest title to the
Common Stock in TE and otherwise enable O'Sullivan and TE to
enjoy the respective benefits contemplated by this Agreement.
9.11 Public Announcements. Except as required by law
or any other provision of this Agreement, O'Sullivan and TE
shall consult with each other before issuing any press
releases or otherwise making any public statements with
respect to this Agreement and the transactions contemplated
hereby and shall not issue any such press release or make any
public statement prior to such consultation.
9.12 Specific Performance. O'Sullivan and TE each
acknowledges that the other will be irreparably harmed and
that there will be no adequate remedy at law in the event of
a violation by it of any of its covenants or agreements which
are contained in this Agreement. It is accordingly agreed
that, in addition to any other remedies which may be
available upon the breach of such covenants and agreements,
O'Sullivan or TE, as the case may be, shall have the right to
obtain injunctive relief to restrain any breach or threatened
breach of, or otherwise to obtain specific performance of,
the other's covenants or agreements contained in thisAgreement.
IN WITNESS WHEREOF, each of the parties has caused this
Agreement to be executed on its behalf by its officers
thereunto duly authorized, all as of the day and year first
above mentioned.
O ' SULLIVAN INDUSTRIES HOLDINGS, INC.
/s/ Rowland H. Geddie, III
Rowland H. Geddie, III
Vice President, General Counsel and Secretary
TE ELECTRONICS INC.
/s/ Frederick W. Padden
Frederick W. Padden
Vice President-General Counsel and Secretary
Schedule 2.04
This Stock Exchange Agreement
The U.S. Purchase Agreement and U.S. Pricing Agreement to
be entered into among the Company, TE and the Underwriters
named therein.
The International Purchase Agreement and International
Pricing Agreement to be entered into among the Company, TE
and the Underwriters named therein.
The Management Purchase Agreement to be entered into between
the Company and certain members of the management of the
Company and their affiliates.
The O'Sullivan Incentive Stock Plan.
The O'Sullivan Stock Purchase Program
The O'Sullivan Stockholder Rights Plan.
Schedule 3.05
This Stock Exchange Agreement