EXHIBIT 2.1
-----------
AGREEMENT AND PLAN OF MERGER
by and among
EIMO OYJ,
SPARTAN ACQUISITION CORP.
and
TRIPLE S PLASTICS, INC.
dated as of
July 13, 2000
TABLE OF CONTENTS
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AGREEMENT AND PLAN OF MERGER . . . . . . . . . . . . . . . . . . 1
ARTICLE I THE MERGER . . . . . . . . . . . . . . . . . . . . . . 2
SECTION 1.1 THE MERGER . . . . . . . . . . . . . . . . . 2
SECTION 1.2 EFFECTIVE TIME . . . . . . . . . . . . . . . 3
SECTION 1.3 CLOSING . . . . . . . . . . . . . . . . . . . 3
SECTION 1.4 DIRECTORS AND OFFICERS OF THE SURVIVING
CORPORATION . . . . . . . . . . . . . . . . . 3
SECTION 1.5 SUBSEQUENT ACTIONS . . . . . . . . . . . . . 3
SECTION 1.6 OTHER AGREEMENTS . . . . . . . . . . . . . . 4
ARTICLE II CONVERSION OF SECURITIES . . . . . . . . . . . . . 4
SECTION 2.1 CONVERSION OF CAPITAL STOCK . . . . . . . . . 4
SECTION 2.2 EXCHANGE OF CERTIFICATES . . . . . . . . . . . 6
ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE COMPANY . . . 10
SECTION 3.1 ORGANIZATION; QUALIFICATION; CHARTER
DOCUMENTS . . . . . . . . . . . . . . . . . 10
SECTION 3.2 SUBSIDIARIES AND AFFILIATES . . . . . . . . . 10
SECTION 3.3 CAPITALIZATION . . . . . . . . . . . . . . . 11
SECTION 3.4 AUTHORIZATION; VALIDITY OF AGREEMENT; COMPANY
ACTION . . . . . . . . . . . . . . . . . . . 12
SECTION 3.5 BOARD APPROVALS; TAKEOVER STATUTES . . . . . 12
SECTION 3.6 VOTE REQUIRED . . . . . . . . . . . . . . . . 12
SECTION 3.7 CONSENTS AND APPROVALS; NO VIOLATIONS . . . . 13
SECTION 3.8 SEC REPORTS AND FINANCIAL STATEMENTS . . . . 13
SECTION 3.9 NO UNDISCLOSED LIABILITIES . . . . . . . . . 14
SECTION 3.10 ABSENCE OF CERTAIN CHANGES . . . . . . . . . 14
SECTION 3.11 LITIGATION . . . . . . . . . . . . . . . . . 15
SECTION 3.12 EMPLOYEE BENEFIT PLANS . . . . . . . . . . . 15
SECTION 3.13 TAX MATTERS; GOVERNMENT BENEFITS . . . . . . 17
SECTION 3.14 TITLE TO PROPERTIES; ENCUMBRANCES . . . . . . 18
SECTION 3.15 ENVIRONMENTAL LAWS . . . . . . . . . . . . . 18
SECTION 3.16 INTELLECTUAL PROPERTY . . . . . . . . . . . . 19
SECTION 3.17 COMPLIANCE WITH LAWS . . . . . . . . . . . . . 19
SECTION 3.18 LABOR DIFFICULTIES . . . . . . . . . . . . . 20
SECTION 3.19 INFORMATION TO BE SUPPLIED . . . . . . . . . 20
SECTION 3.20 OPINION OF FINANCIAL ADVISOR . . . . . . . . 21
SECTION 3.21 BROKERS OR FINDERS . . . . . . . . . . . . . 21
SECTION 3.22 COMPANY AGREEMENTS . . . . . . . . . . . . . 21
SECTION 3.23 INTERESTED PARTY TRANSACTIONS . . . . . . . . 26
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PARENT AND PURCHASER . 21
SECTION 4.1 ORGANIZATION; QUALIFICATION; CHARTER
DOCUMENTS . . . . . . . . . . . . . . . . . 21
SECTION 4.2 SUBSIDIARIES AND AFFILIATES . . . . . . . . . 22
SECTION 4.3 CAPITALIZATION . . . . . . . . . . . . . . . 22
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SECTION 4.4 AUTHORIZATION; VALIDITY OF AGREEMENT;
NECESSARY ACTION . . . . . . . . . . . . . 23
SECTION 4.5 BOARD APPROVALS; TAKEOVER STATUTES . . . . . 24
SECTION 4.6 VOTE REQUIRED . . . . . . . . . . . . . . . 24
SECTION 4.7 CONSENTS AND APPROVALS; NO VIOLATIONS . . . . 24
SECTION 4.8 PARENT PUBLIC REPORTS AND FINANCIAL
STATEMENTS . . . . . . . . . . . . . . . . 25
SECTION 4.9 NO UNDISCLOSED LIABILITIES . . . . . . . . . 25
SECTION 4.10 ABSENCE OF CERTAIN CHANGES . . . . . . . . . 26
SECTION 4.11 LITIGATION . . . . . . . . . . . . . . . . . 26
SECTION 4.12 TAX MATTERS; GOVERNMENT BENEFITS . . . . . . 27
SECTION 4.13 TITLE TO PROPERTIES; ENCUMBRANCES . . . . . . 27
SECTION 4.14 ENVIRONMENTAL LAWS . . . . . . . . . . . . . 28
SECTION 4.15 INTELLECTUAL PROPERTY . . . . . . . . . . . . 28
SECTION 4.16 COMPLIANCE WITH LAWS . . . . . . . . . . . . 29
SECTION 4.17 LABOR DIFFICULTIES . . . . . . . . . . . . . 29
SECTION 4.18 INFORMATION TO BE SUPPLIED . . . . . . . . . 29
SECTION 4.19 MERGER SUB'S OPERATIONS . . . . . . . . . . . 30
SECTION 4.20 BROKERS OR FINDERS . . . . . . . . . . . . . 30
SECTION 4.21 PARENT AGREEMENTS . . . . . . . . . . . . . . 30
SECTION 4.22 INTERESTED PARTY TRANSACTIONS . . . . . . . . 31
SECTION 4.23 OPINION OF FINANCIAL ADVISOR . . . . . . . . 31
SECTION 4.24 ACCOUNTING MATTERS . . . . . . . . . . . . . 31
ARTICLE V COVENANTS . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 5.1 CONDUCT OF THE BUSINESS OF COMPANY . . . . . 31
SECTION 5.2 CONDUCT OF THE BUSINESS OF PARENT . . . . . . 35
SECTION 5.3 COMPANY SHAREHOLDER MEETING; PARENT
SHAREHOLDER MEETING; PREPARATION OF PROXY
STATEMENT/PROSPECTUS . . . . . . . . . . . 38
SECTION 5.4 ACCESS . . . . . . . . . . . . . . . . . . . 40
SECTION 5.5 CONFIDENTIALITY . . . . . . . . . . . . . . . 41
SECTION 5.6 REASONABLE BEST EFFORTS . . . . . . . . . . . 41
SECTION 5.7 EMPLOYEE STOCK OPTIONS . . . . . . . . . . . 43
SECTION 5.8 NO SOLICITATION BY THE COMPANY . . . . . . . 44
SECTION 5.9 NO SOLICITATION BY THE PARENT . . . . . . . . 46
SECTION 5.10 PUBLICITY . . . . . . . . . . . . . . . . . . 48
SECTION 5.11 NOTIFICATION OF CERTAIN MATTERS . . . . . . . 48
SECTION 5.12 STATE TAKEOVER LAWS . . . . . . . . . . . . . 48
SECTION 5.13 TAX AND ACCOUNTING TREATMENT . . . . . . . . 49
SECTION 5.14 GOVERNANCE MATTERS . . . . . . . . . . . . . 49
SECTION 5.15 MERGER SUB COMPLIANCE . . . . . . . . . . . . 50
SECTION 5.16 EMPLOYEE BENEFITS . . . . . . . . . . . . . . 50
SECTION 5.17 INDEMNIFICATION . . . . . . . . . . . . . . . 51
SECTION 5.18 CONTROL OF OTHER PARTY'S BUSINESS . . . . . . 53
SECTION 5.19 HSE LISTING AND NASDAQ LISTING; EXCHANGE ACT
REPORTS . . . . . . . . . . . . . . . . . . 53
SECTION 5.20 NO SERIES K SHARES . . . . . . . . . . . . . 53
ARTICLE VI CONDITIONS . . . . . . . . . . . . . . . . . . . . 53
SECTION 6.1 CONDITIONS PRECEDENT TO OBLIGATIONS OF PARENT
AND MERGER SUB . . . . . . . . . . . . . . 53
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SECTION 6.2 CONDITIONS PRECEDENT TO OBLIGATIONS OF THE
COMPANY . . . . . . . . . . . . . . . . . . 55
SECTION 6.3 FRUSTRATION OF CLOSING CONDITIONS . . . . . . 58
ARTICLE VII TERMINATION . . . . . . . . . . . . . . . . . . . 58
SECTION 7.1 TERMINATION. . . . . . . . . . . . . . . . . 58
SECTION 7.2 EFFECT OF TERMINATION . . . . . . . . . . . . 60
SECTION 7.3 PAYMENT OF CERTAIN FEES AND EXPENSES . . . . 60
ARTICLE VIII DEFINITIONS AND INTERPRETATION . . . . . . . . . . 61
SECTION 8.1 DEFINITIONS . . . . . . . . . . . . . . . . . 61
SECTION 8.2 INTERPRETATION . . . . . . . . . . . . . . . 71
ARTICLE IX MISCELLANEOUS . . . . . . . . . . . . . . . . . . 72
SECTION 9.1 AMENDMENT AND MODIFICATION . . . . . . . . . 72
SECTION 9.2 REPRESENTATIONS AND WARRANTIES . . . . . . . 72
SECTION 9.3 NOTICES . . . . . . . . . . . . . . . . . . . 72
SECTION 9.4 COUNTERPARTS; TELECOPIER . . . . . . . . . . 73
SECTION 9.5 ENTIRE AGREEMENT; NO THIRD PARTY
BENEFICIARIES . . . . . . . . . . . . . . . 73
SECTION 9.6 SEVERABILITY . . . . . . . . . . . . . . . . 73
SECTION 9.7 GOVERNING LAW . . . . . . . . . . . . . . . . 74
SECTION 9.8 ENFORCEMENT AND INTERPRETATION . . . . . . . 74
SECTION 9.9 WAIVER OF JURY TRIAL . . . . . . . . . . . . 74
SECTION 9.10 TIME OF ESSENCE . . . . . . . . . . . . . . . 74
SECTION 9.11 EXTENSION; WAIVER . . . . . . . . . . . . . . 74
SECTION 9.12 ASSIGNMENT . . . . . . . . . . . . . . . . . 74
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EXHIBITS
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1.1(a) Certificate of Merger - Michigan
1.1(b) Certificate of Merger - Delaware
1.6(a) Form of Company Shareholder Agreement
1.6(b) Form of Parent Shareholder Agreement
1.6(c) Form of Conversion Agreement
1.6(d)(i) Form of Employment Agreement of A. Christian Schauer
1.6(d)(ii) Form of Employment Agreement of Daniel B. Canavan
1.6(d)(iii) Form of Employment Agreement of Victor V. Valentine,
Jr.
1.6(e) Form of Lock-Up Agreement
6.2(m) Form of Liquidity and Registration Rights Agreement
SCHEDULES
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Parent Disclosure Schedule
Company Disclosure Schedule
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AGREEMENT AND PLAN OF MERGER
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AGREEMENT AND PLAN OF MERGER, dated as of July 13, 2000, by
and among EIMO OYJ, a company organized under the laws of the Republic
of Finland ("PARENT"), SPARTAN ACQUISITION CORP., a Delaware
corporation and a wholly-owned subsidiary of Parent ("MERGER SUB") and
TRIPLE S PLASTICS, INC., a Michigan corporation (the "COMPANY"). As
used in this Agreement, capitalized terms have the meanings ascribed
to them in Article VIII.
WHEREAS, the Board of Directors of each of Parent, Merger
Sub and the Company has approved, and deems it advisable and in the
best interests of its respective shareholders and consistent with and
in furtherance of its respective business strategies and goals, for
Parent to acquire all of the outstanding shares of the Company through
the merger of Merger Sub with and into the Company upon the terms and
subject to the conditions set forth herein;
WHEREAS, in furtherance thereof, the Board of Directors of
Parent has approved this Agreement and the Merger in accordance with
the laws of the Republic of Finland, upon the terms and subject to the
conditions set forth herein;
WHEREAS, in furtherance thereof, the respective Boards of
Directors of Merger Sub and the Company have approved this Agreement
and the Merger in accordance with the DGCL and the MBCA, respectively,
and upon the terms and subject to the conditions set forth herein;
WHEREAS, the parties hereto intend that the Merger shall
qualify for U.S. federal income tax purposes as a reorganization (a
"SECTION 368 REORGANIZATION") within the meaning of Section 368(a) of
the U.S. Internal Revenue Code of 1986, as amended (together with the
rules and regulations promulgated thereunder, the "CODE");
WHEREAS, the parties hereto intend that the Merger be
accounted for as a "pooling of interests" for financial reporting
purposes under Finnish GAAP;
WHEREAS, the Company, Parent and Merger Sub desire to make
certain representations, warranties, covenants and agreements in
connection with the Merger;
WHEREAS, as a condition and inducement to Parent's and
Merger Sub's entering into this Agreement and incurring the
obligations set forth herein, each of the Major Company Shareholders
and the other shareholders of the Company who are signatory thereto,
concurrently herewith, is entering into the Company Shareholder
Agreement dated as of the date hereof, with Parent and Merger Sub,
pursuant to which the Major Company Shareholders are agreeing, among
other things, to grant Parent a proxy with respect to the voting of
the Shares held by the Major Company Shareholders all upon the terms
and subject to the conditions set forth in the Company Shareholder
Agreement;
WHEREAS, as a condition and inducement to the Company's
entering into this Agreement and incurring the obligations set forth
herein, each of the Major Parent Shareholders, concurrently herewith,
is entering into the Parent Shareholder Agreement dated as of the date
hereof, with the Company, pursuant to which the Major Parent
Shareholders are agreeing, among other things, to grant the Company a
proxy with respect to the voting of the Parent Ordinary Shares and the
Parent Series K Shares held by the Major Parent Shareholders, all upon
the terms and subject to the conditions set forth in the Parent
Shareholder Agreement; and
WHEREAS, as a further condition and inducement to the
Company's entering into this Agreement and incurring the obligations
set forth herein, each of the Major Parent Shareholders, concurrently
herewith, is entering into the Conversion Agreement dated as of the
date hereof, with the Company, pursuant to which the Major Parent
Shareholders are agreeing, among other things, to convert the Parent
Series K Shares held by the Major Parent Shareholders into Parent
Ordinary Shares, effective as of the Effective Time, all upon the
terms and subject to the conditions set forth in the Conversion
Agreement.
NOW, THEREFORE, in consideration of the foregoing and the
mutual representations, warranties, covenants and agreements set forth
herein, intending to be legally bound hereby, the parties hereto agree
as follows:
ARTICLE I
THE MERGER
SECTION 1.1 THE MERGER. Subject to the terms and
conditions of this Agreement, at the Effective Time, the Company and
Merger Sub shall consummate a merger pursuant to which (a) Merger Sub
shall be merged with and into the Company and the separate corporate
existence of Merger Sub shall thereupon cease, (b) the Company shall
be the successor or surviving corporation in the Merger (the
"SURVIVING CORPORATION") and shall continue to be governed by the laws
of the State of Michigan, and (c) the separate corporate existence of
the Company with all its rights, privileges, immunities, powers and
franchises shall continue unaffected by the Merger, except as set
forth in this SECTION 1.1. Pursuant to the Merger, (x) the articles
of incorporation of the Company shall be amended at and as of the
Effective Time as set forth in the Certificates of Merger in the form
of EXHIBIT 1.1(a) and EXHIBIT 1.1(b) hereof (collectively, the
"CERTIFICATE OF MERGER"), and, as so amended, shall be the articles of
incorporation of the Surviving Corporation until thereafter amended as
provided by law and such articles of incorporation, and (y) the bylaws
of the Company shall be, at and as of the Effective Time, the bylaws
of the Surviving Corporation until thereafter amended as provided by
law, by the articles of incorporation or by such bylaws. The Merger
shall have the effects specified in the MBCA and the DGCL
2
SECTION 1.2 EFFECTIVE TIME. Subject to the terms of this
Agreement, Parent, Merger Sub and the Company will cause the Merger to
be consummated by causing the Certificate of Merger to be executed and
filed on the Closing Date (or on such other date as Parent and the
Company may agree) with the Department of Consumer and Industry
Services of the Corporation Division of the State of Michigan, as
provided in the MBCA, and with the Secretary of State of the State of
Delaware, as provided in the DGCL. The Merger shall become effective
on the later of (a) the time at which the Certificate of Merger is
duly filed with the Department of Consumer and Industry Services of
the Corporation Division of the State of Michigan, (b) the time at
which the Certificate of Merger is duly filed with the Secretary of
State of the State of Delaware, or (c) such other time as is agreed
upon by the parties and specified in the Certificate of Merger (the
"EFFECTIVE TIME").
SECTION 1.3 CLOSING. The closing of the Merger shall take
place at 10:00 a.m. on a date to be agreed upon by the parties, and if
such date is not agreed upon by the parties, the Closing shall occur
on the second Business Day after satisfaction or waiver of all of the
conditions set forth in Article VI, at the offices of Smith, Gambrell
& Russell, LLP, 1230 Peachtree Street, N.E., Atlanta, Georgia 30309,
or such other location as shall be agreed upon by the parties.
SECTION 1.4 DIRECTORS AND OFFICERS OF THE SURVIVING
CORPORATION. The directors of Merger Sub (plus two additional persons
acceptable to Parent in its sole discretion, one of which is to be
nominated by the Company and the other to be nominated by the Parent
prior to the Closing) and the officers of the Company immediately
prior to the Effective Time shall, from and after the Effective Time,
be the directors and officers, respectively, of the Surviving
Corporation until their successors shall have been duly elected or
appointed or qualified or until their earlier death, resignation or
removal in accordance with the articles of incorporation and the
bylaws of the Surviving Corporation. If, at the Effective Time, a
vacancy shall exist on the Company Board of Directors or in any office
of the Surviving Corporation, such vacancy may thereafter be filled in
the manner provided by law.
SECTION 1.5 SUBSEQUENT ACTIONS. If at any time after the
Effective Time the Surviving Corporation will consider or be advised
that any deeds, bills of sale, assignments, assurances or any other
actions or things are necessary or desirable to vest, perfect or
confirm of record or otherwise in the Surviving Corporation its right,
title or interest in, to or under any of the rights, properties or
assets of either of the Company or Merger Sub acquired or to be
acquired by the Surviving Corporation as a result of, or in connection
with, the Merger, or otherwise to carry out this Agreement, the
officers and directors of the Surviving Corporation shall be
authorized to execute and deliver, and shall execute and deliver, in
the name and on behalf of either the Company or Merger Sub, all such
deeds, bills of sale, instruments of conveyance, assignments and
3
assurances and to take and do, and shall take and do, in the name and
on behalf of each of such corporations or otherwise, all such other
actions and things as may be necessary or desirable to vest, perfect
or confirm any and all right, title and interest in, to and under such
rights, properties or assets in the Surviving Corporation or otherwise
to carry out this Agreement.
SECTION 1.6 OTHER AGREEMENTS. Simultaneously with the
execution and delivery of this Agreement, the following agreements
will be executed and delivered: (a) the Company Shareholder Agreement
in the form of EXHIBIT 1.6(a) hereto among Parent, Merger Sub and each
of the Major Company Shareholders and the other shareholders of the
Company who are signatory thereto, (b) the Parent Shareholder
Agreement in the form of EXHIBIT 1.6(b) hereto among the Company and
each of the Major Parent Shareholders, (c) the Conversion Agreement
in the form of EXHIBIT 1.6(c) hereto among the Company, Parent and
each of the Major Parent Shareholders (the "CONVERSION AGREEMENT"),
(d) the Employment Agreements in the form of EXHIBITS 1.6(d)(i), (ii)
and (iii) hereto between the Company and each of A. Christian Schauer,
Daniel B. Canavan and Victor V. Valentine, Jr., respectively
(collectively, the "EMPLOYMENT AGREEMENTS"), and (e) the Shareholder
Lock-Up Agreement in the form of EXHIBIT 1.6(e) (the "LOCK-UP
AGREEMENT"). For the avoidance of doubt, E.A.T Invest Oy, an entity
under common control of Parent, and Anja Paananen are not parties to
this Agreement, nor any agreement referred to in this section or
elsewhere in this Agreement.
ARTICLE II
CONVERSION OF SECURITIES
SECTION 2.1 CONVERSION OF CAPITAL STOCK. As of the
Effective Time, by virtue of the Merger and without any further action
on the part of the holders of any Shares or holders of Merger Sub
Common Stock:
(a) MERGER SUB COMMON STOCK. Each issued and outstanding
share of Merger Sub Common Stock shall be converted into and become
one fully paid and non-assessable share of common stock, no par value,
of the Surviving Corporation.
(b) CANCELLATION OF TREASURY STOCK AND PARENT-OWNED STOCK.
All Shares that are owned by the Company as treasury stock and any
Shares owned by Parent, Merger Sub or any other wholly-owned
Subsidiary of Parent shall be cancelled and retired and shall cease to
exist, and no consideration shall be delivered in exchange therefor.
(For the avoidance of doubt, this SECTION 2.1(b) shall not apply to
any Shares owned by E.A.T Invest Oy, an entity under common control
with Parent.
(c) CONVERSION OF SHARES. Each issued and outstanding
Share (other than Shares to be cancelled in accordance with SECTION
4
2.1(b)) shall be converted into the right to receive from Parent
pursuant to SECTION 2.1(e) a number of Parent Ordinary Shares equal to
the Exchange Ratio, which shall be delivered in the form of American
Depositary Shares (the "PARENT ADSs"), each representing the right to
receive (in book entry form) one Parent Ordinary Share (the "MERGER
CONSIDERATION"), evidenced by one or more American Depositary Receipts
("PARENT ADRs") issued in accordance with the Deposit Agreement,
PROVIDED, HOWEVER, that the ratio between the number of Parent Shares
represented by each ADS may be adjusted by Parent with the consent of
the Company, which consent shall not be unreasonably withheld or
delayed. At the Effective Time, all Shares shall no longer be
outstanding, shall be canceled and retired and shall cease to exist,
and each certificate (a "CERTIFICATE") formerly representing any of
such Shares shall thereafter represent only the right to receive the
Merger Consideration and the right, if any, to receive pursuant to
SECTION 2.2(f) cash in lieu of fractional Parent ADSs and any dividend
or distribution pursuant to SECTION 2.2(d), in each case without
interest. Parent shall, following the Closing, pay all stamp duties,
stamp duty reserve tax and other taxes and similar levies imposed in
connection with the issuance or creation of the Parent Ordinary
Shares, Parent ADSs and any Parent ADRs in connection therewith.
(d) EXCHANGE RATIO. The Exchange Ratio shall be determined
as follows:
(i) In the event that the Parent Average Price (as
defined below) is less than or equal to $5.00000, the Exchange Ratio
shall be 5.700.
(ii) In the event that the Parent Average Price is
greater than $5.00000 but less than $5.22500, the Exchange Ratio shall
be the number determined by dividing (X) $28.4699 by (Y) the Parent
Average Price, and rounding the result to the nearest thousandth of a
Parent Ordinary Share.
(iii) In the event that the Parent Average Price is
equal to or greater than $5.22500 but less than or equal to $6.18000,
the Exchange Ratio shall be 5.449.
(iv) In the event that the Parent Average Price is
greater than $6.18000 but less than or equal to $6.93738, the Exchange
Ratio shall be the number determined by dividing (X) $33.6463 by (Y)
the Parent Average Price, and rounding the result to the nearest
thousandth of a Parent Ordinary Share.
(v) In the event that the Parent Average Price is
greater than $6.93738, the Exchange Ratio shall be 4.850.
"PARENT AVERAGE PRICE" shall mean the average, for a period
consisting of the fifteen (15) consecutive Trading Days ending on (and
including) the third (3rd) Trading Day prior to the Closing Date, of
the volume-weighted daily average price, as reported in the Financial
5
Times, U.S. Edition, or if not reported therein, another authoritative
source, expressed in Euros for a single Parent Ordinary Share on the
HSE, converted into U.S. Dollars at the Exchange Rate for such date.
(e) ISSUANCE OF MERGER CONSIDERATION. In consideration of
the issuance to Parent by the Surviving Corporation of shares of
common stock of the Surviving Corporation pursuant to SECTION 2.1(a)
hereof, Parent shall issue to the depositary for the Parent ADSs such
number of Parent Ordinary Shares as is equal to the number of Shares
outstanding immediately prior to the Effective Time multiplied by the
Exchange Ratio under the Deposit Agreement to permit the issuance of
Parent ADSs.
(f) EXTRAORDINARY ADJUSTMENTS. In the event that,
subsequent to the date of this Agreement but prior to the Effective
Time, (x) the Company changes the number of Shares, or Parent changes
the number of Parent Ordinary Shares (other than as a result of
converting Series K Shares of Parent into Series A shares of Parent as
elsewhere described herein), issued and outstanding as a result of a
stock split, stock combination, dividend of stock or other securities
(or a record date within such period with respect to such a dividend),
recapitalization, redenomination of share capital or other similar
transaction, the Exchange Ratio and other items dependent thereon
shall be appropriately adjusted to provide to the holders of Shares
the same economic effect and percentage ownership of Parent Ordinary
Shares as contemplated by this Agreement prior to such stock split,
stock combination, dividend, recapitalization, redenomination or
similar transaction, or (y) the Company changes the number of Shares
issued and outstanding or issues additional Company Options, the
Exchange Ratio and other items dependent thereon shall be
appropriately reduced.
SECTION 2.2 EXCHANGE OF CERTIFICATES.
(a) APPOINTMENT OF EXCHANGE AGENT. Prior to the Effective
Time, Parent shall appoint a bank or trust company (which may be the
depositary under the Deposit Agreement) reasonably acceptable to the
Company as exchange agent (the "EXCHANGE AGENT") for the purposes of
exchanging the Certificates for Parent ADSs. Promptly after the
Effective Time, Parent will send, or will cause the Exchange Agent to
send, to each holder of record of Shares as of the Effective Time 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 customary form and have such other customary provisions as the
Company and Parent may reasonably specify) providing instructions for
use in effecting the surrender of Certificates in exchange for
certificates representing Parent ADRs which represent Parent ADSs and
cash in lieu of fractional Parent ADSs.
(b) EXCHANGE FUND. Within three Business Days following
the Effective Time, Parent shall make available to the Exchange Agent
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for exchange in accordance with this Article II, certificates for the
Parent ADRs representing the Parent ADSs issuable pursuant to SECTION
2.1(c) in exchange for outstanding Shares and cash in an amount
sufficient for payment in lieu of fractional Parent ADSs pursuant to
SECTION 2.2(f) and any dividends or distributions to which holders of
Shares may be entitled pursuant to SECTION 2.2(d). The cash amounts
payable pursuant to SECTION 2.2(d) and SECTION 2.2(f) are referred to
collectively as the "EXCHANGE FUND." The Exchange Agent shall invest
any cash included in the Exchange Fund as directed by the Surviving
Corporation on a daily basis; provided that no such investment or loss
thereon shall affect the amounts payable to the Company's shareholders
pursuant to this Article. Any interest and other income resulting
from such investments shall promptly be paid to the Surviving
Corporation. All Parent ADSs to be issued and delivered to the
holders of Shares in accordance with this Agreement shall, as of the
Effective Time, have been registered under the Securities Act pursuant
to a registration statement on Form F-6 declared effective by the SEC,
and the Parent Ordinary Shares underlying such Parent ADSs shall, as
of the Effective Time, have been registered under the Securities Act
pursuant to a registration statement on Form F-4 declared effective by
the SEC.
(c) EXCHANGE PROCEDURES. Upon surrender to the Exchange
Agent of a Certificate for cancellation, together with the letter of
transmittal referred to in SECTION 2.2(a) duly executed and completed
in accordance with its terms, the holder of such Certificate shall be
entitled to receive in exchange therefor (i) a certificate or
certificates representing one or more Parent ADRs representing, in the
aggregate, that whole number of Parent ADSs to be received in
accordance with SECTION 2.1(c), (ii) the amount of dividends or other
distributions, if any, with a record date on or after the Effective
Time which theretofore became payable with respect to such Parent ADSs
in accordance with SECTION 2.2(d), and (iii) the cash amount payable
in lieu of fractional Parent ADSs in accordance with SECTION 2.2(f),
in each case which such holder has the right to receive pursuant to
the provisions of this Article, and the Certificate so surrendered
shall forthwith be canceled. In no event shall the holder of any
Certificate be entitled to receive interest on any funds to be
received in the Merger. In the event of a transfer of ownership of
Shares which is not registered in the transfer records of the Company,
one or more Parent ADRs representing that whole number of Parent ADSs
to be received in accordance with SECTION 2.1(c), plus any dividends
or other distributions to which the transferor would otherwise be
entitled pursuant to SECTION 2.2(d), plus the cash amount payable in
lieu of fractional Parent ADSs in accordance with SECTION 2.2(f), may
be issued to a transferee if the Certificate representing such Shares
is presented to the Exchange Agent accompanied by all documents
required to evidence and effect such transfer and by evidence that any
applicable stock transfer taxes have been paid. Until surrendered as
contemplated by this Section, and subject to SECTION 2.2(d), each
Certificate shall, after the Effective Time, represent for all
purposes only the right to receive the whole number of Parent ADSs
7
into which the number of Shares shown thereon have been converted as
contemplated by this Article plus the cash amount payable in lieu of
fractional Parent ADSs in accordance with SECTION 2.2(f).
(d) DISTRIBUTIONS WITH RESPECT TO UNEXCHANGED SHARES. No
dividends or other distributions declared, made or paid after the
Effective Time with respect to Parent Ordinary Shares with a record
date on or after the Effective Time shall be paid to the holder of any
unsurrendered Certificate with respect to the Parent ADSs represented
thereby and no cash payment in lieu of fractional Parent ADSs shall be
paid to any such holder pursuant to SECTION 2.2(f) until the holder of
record of such Certificate shall surrender such Certificate in
accordance with this SECTION 2.2. Subject to the effect of applicable
laws, following surrender of any such Certificate, there shall be paid
to the record holder of the Parent ADRs which represent Parent ADSs
issued in exchange therefor, without interest, (i) at the time of such
surrender, the amount of dividends or other distributions, if any,
with a record date on or after the Effective Time which theretofore
became payable, but which were not paid by reason of the immediately
preceding sentence, with respect to such Parent ADSs, and (ii) at the
appropriate payment date, the amount of dividends or other
distributions with a record date on or after the Effective Time but
prior to surrender and a payment date subsequent to surrender payable
with respect to such Parent ADSs. Dividends or other distributions
with a record date on or after the Effective Time but prior to
surrender of Certificates by holders thereof payable in respect of
Parent ADSs held by the Exchange Agent shall be held in trust for the
benefit of such holders of Certificates.
(e) NO FURTHER OWNERSHIP RIGHTS IN SHARES. All Parent ADRs
(and the Parent ADSs represented by such Parent ADRs) issued upon the
surrender for exchange of Certificates in accordance with the terms
hereof (including any cash paid pursuant to SECTION 2.2(f)) shall be
deemed to have been issued at the Effective Time in full satisfaction
of all rights pertaining to the Shares represented thereby, subject,
however, to the Surviving Corporation's obligation to pay any
dividends which may have been declared by the Company on the Shares in
accordance with the terms of this Agreement and which remained unpaid
at the Effective Time. From and after the Effective Time, the stock
transfer books of the Company shall be closed and there shall be no
further registration of transfers thereon of the Shares which were
outstanding immediately prior to the Effective Time. If, after the
Effective Time, Certificates are presented to the Surviving
Corporation for any reason, they shall be canceled and exchanged as
provided in this Section.
(f) NO FRACTIONAL SHARES. No certificate or scrip
representing fractional Parent ADSs will be issued in the Merger upon
the surrender for exchange of Certificates, and such fractional Parent
ADS interests will not entitle the owner thereof to vote or to any
rights of a holder of Parent ADSs. In lieu of any such fractional
Parent ADS, each holder of Certificates who would otherwise have been
8
entitled to a fraction of a Parent ADS in exchange for such
Certificates (after taking into account all Certificates delivered by
such holder) pursuant to this Section shall receive from the Exchange
Agent a cash payment in lieu of such fractional Parent ADS, determined
by multiplying (A) the Parent Average Price by (B) the fractional
Parent ADS interest to which such holder would otherwise be entitled.
(g) TERMINATION OF EXCHANGE FUND. Any portion of the
Exchange Fund which remains undistributed to the shareholders of the
Company for one (1) year after the Effective Time shall be delivered
to or as directed by Parent, upon demand, and any holders of
Certificates who have not theretofore complied with this Article II
shall thereafter look only to Parent (subject to abandoned property,
escheat and other similar laws) as a general creditor for payment of
their claim for Parent ADSs, any cash in lieu of fractional Parent
ADSs and any dividends or distributions with respect to Parent ADSs.
Any amounts remaining unclaimed by any holder of Certificates formerly
representing Shares immediately prior to such time when such amounts
would otherwise escheat to or become the property of any Governmental
Entity (as hereinafter defined), shall, to the extent permitted by
applicable laws, become the property of Parent, free and clear of all
claims or interests of any Person previously entitled thereto.
Neither Parent, the Surviving Corporation nor the Exchange Agent shall
be liable to any holder of Certificates formerly representing Shares
with respect to any Parent ADRs (or dividends or distributions with
respect thereto), or cash payable in respect of fractional Parent
ADSs, delivered to a public official pursuant to any applicable
abandoned property, escheat or similar law, rule, regulation or Order.
(h) LOST, STOLEN OR DESTROYED 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 Parent in its
discretion and as a condition precedent to the issuance thereof, the
posting by such person of a bond in such reasonable amount as Parent
may direct as indemnity against any claim that may be made against
Parent, the Surviving Corporation or the Exchange Agent with respect
to such Certificate, the Exchange Agent will deliver in exchange for
such lost, stolen or destroyed Certificate the applicable Merger
Consideration with respect to the Shares formerly represented thereby,
any cash in lieu of fractional Parent ADSs, and unpaid dividends and
distributions in respect of or on Parent ADSs deliverable in respect
thereof, pursuant to this Agreement.
(i) WITHHOLDING RIGHTS. Each of the Surviving Corporation
and Parent shall be entitled to deduct and withhold from the Merger
Consideration (and any dividends or distributions thereon) otherwise
payable hereunder to any Person such amounts as it is required to
deduct and withhold with respect to the making of such payment under
any provision of federal, state, local or foreign income or other tax
law.
9
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Except as set forth in the Company Disclosure Schedule
prepared and signed by the Company and delivered to Parent and Merger
Sub simultaneously with the execution hereof, the Company represents
and warrants to Parent and Merger Sub that all of the statements
contained in this Article III are true and correct as of the date of
this Agreement (or, if made as of a specified date, as of such date).
Each exception set forth in the Company Disclosure Schedule is
identified by reference to a specific section of this Agreement and,
except as otherwise specifically stated with respect to such
exception, relates only to such section.
SECTION 3.1 ORGANIZATION; QUALIFICATION; CHARTER DOCUMENTS.
(a) The Company (i) is a corporation duly organized, validly existing
and in good standing under the laws of its state of incorporation;
(ii) has full corporate power and authority to carry on its business
as it is now being conducted and to own, lease and operate the
properties and assets it now owns, leases or operates or purports to
own, lease or operate; and (iii) is duly qualified or licensed to do
business as a foreign corporation in good standing in every
jurisdiction in which ownership of property or the conduct of its
business requires such qualification, except where the failure to have
such power and authority or to be so qualified, licensed or in good
standing could not reasonably be expected to, individually or in the
aggregate, have a Company Material Adverse Effect.
(b) The Company has heretofore delivered to Parent complete
and correct copies of the Charter Documents of the Company and each
Company Subsidiary as amended to date. All such Charter Documents are
in full force and effect, and neither the Company nor any Company
Subsidiary is in violation of any provision of its respective Charter
Documents except for breaches which would not materially restrict the
ability of Company to consummate the Merger or could not reasonably be
expected to have a Company Material Adverse Effect.
SECTION 3.2 SUBSIDIARIES AND AFFILIATES. The Company
Disclosure Schedule sets forth the name and jurisdiction of
incorporation of each Company Subsidiary and the jurisdictions in
which each such Company Subsidiary is qualified to do business. The
Company does not own, directly or indirectly, any capital stock or
other equity or similar interest in, or any interest convertible into
or exchangeable or exercisable for any equity or similar interest in,
any corporation or have any direct or indirect equity or ownership
interest in any business other than publicly traded securities
constituting less than one percent of the outstanding equity of the
issuing entity. All the outstanding capital stock of each Company
Subsidiary is owned directly or indirectly by the Company, free and
clear of all pledges, claims, liens, charges, options, agreements,
limitations on voting rights, encumbrances or security interests of
10
any kind (collectively, "LIENS"), and is validly issued, fully paid
and non-assessable, and there are no outstanding options, rights or
agreements of any kind relating to the issuance, sale or transfer of
any capital stock or other equity securities of any such Company
Subsidiary to any Person except the Company. Each Company Subsidiary
(i) is a corporation duly organized, validly existing and in good
standing under the laws of its state of incorporation; (ii) has full
corporate power and authority to carry on its business as it is now
being conducted and to own the properties and assets it now owns; and
(iii) is duly qualified or licensed to do business as a foreign
corporation in good standing in every jurisdiction in which ownership
of property or the conduct of its business requires such
qualification, except where the failure to have such power and
authority or to be so qualified, licensed or in good standing could
not reasonably be expected to, individually or in the aggregate, have
a Company Material Adverse Effect.
SECTION 3.3 CAPITALIZATION. (a) The authorized capital
stock of the Company consists of 10,200,000 shares of common stock, no
par value per share, and 1,000,000 shares of preferred stock, no par
value per share. As of the date hereof, (i) 3,763,549 Shares are
issued and outstanding, (ii) no Shares are held in the treasury of the
Company or by any Subsidiary of the Company, (iii) no shares of
preferred stock are issued and outstanding, (iv) an aggregate of
1,008,700 Shares are issuable upon exercise of outstanding Company
Options, including, without limitation, options under the Company's
"Employee Stock Option Plan," the "Outside Director Stock Option
Plan," the "Employee Stock Purchase Plan" and any Company Award
(collectively, the "COMPANY STOCK PLANS"), and (v) an aggregate of
1,320,000 shares (including the 1,008,700 shares referenced in clause
(iv)) are reserved for issuance in connection with the issuance of
Shares under Company Stock Plans. All the outstanding shares of the
Company's capital stock are, and all Shares which may be issued
pursuant to the exercise of outstanding Company Options will be, when
issued in accordance with the respective terms thereof, duly
authorized, validly issued, fully paid and non-assessable. There is no
Voting Debt of the Company or any Company Subsidiary issued and
outstanding. Except as set forth above and except for the
Transactions, as of the date hereof, (i) there are no shares of
capital stock of the Company authorized, issued or outstanding; (ii)
there are no existing options, warrants, calls, pre-emptive rights,
subscriptions or other rights, agreements, arrangements or commitments
of any character, relating to the issued or unissued capital stock of
the Company or any Company Subsidiary, obligating the Company or any
Company Subsidiary to issue, transfer or sell or cause to be issued,
transferred or sold any shares of capital stock or Voting Debt of, or
other equity interest in, the Company or any Company Subsidiary or
securities convertible into or exchangeable for such shares or equity
interests, or obligating the Company or any Company Subsidiary to
grant, extend or enter into any such option, warrant, call,
subscription or other right, agreement, arrangement or commitment and
(iii) there are no outstanding obligations (contingent or otherwise)
11
of the Company or any Company Subsidiary to repurchase, redeem or
otherwise acquire any Shares, or the capital stock of the Company, or
any Company Subsidiary or Affiliate of the Company.
(b) Except as expressly contemplated by this Agreement,
there are no voting trusts or other agreements or understandings to
which the Company or any Company Subsidiary is a party with respect to
the voting of the capital stock of the Company or any of the
Subsidiaries.
SECTION 3.4 AUTHORIZATION; VALIDITY OF AGREEMENT; COMPANY
ACTION. The Company has full corporate power and authority to execute
and deliver this Agreement, and, subject in the case of consummation
of the Merger to obtaining the Company Shareholder Approval, to
consummate the Transactions. The execution, delivery and performance
by the Company of this Agreement and the consummation by it of the
Transactions, have been duly and validly authorized by the Company
Board of Directors and, except for obtaining the Company Shareholder
Approval and the filing of merger documents as set forth herein, no
other corporate action on the part of the Company is necessary to
authorize the execution and delivery by the Company of this Agreement
or the consummation by it of the Transactions. This Agreement has
been duly executed and delivered by the Company and, assuming due and
valid authorization, execution and delivery thereof by Parent and
Merger Sub, this Agreement is a valid and binding obligation of the
Company enforceable against the Company in accordance with its terms,
subject to applicable bankruptcy, insolvency, moratorium and other
similar laws relating to creditors' rights and general principles of
equity.
SECTION 3.5 BOARD APPROVALS; TAKEOVER STATUTES. The
Company Board of Directors, at a meeting duly called and held, has (i)
unanimously determined that each of the Agreement and the Merger are
in the best interests of the Company and its shareholders, (ii)
adopted this Agreement, and approved the Merger and the other
Transactions, and (iii) resolved to recommend that the shareholders of
the Company approve this Agreement and the Merger, and none of the
aforesaid actions by the Company Board of Directors has been amended,
rescinded or modified. The Company Board of Directors has taken all
necessary action such that Chapters 7A and 7B of the MBCA, Article IX
of the Company's Articles of Incorporation, and Article II, Section 8
of the Company's Bylaws do not, and, unless the Agreement is
terminated, shall not in the future, to the extent within its control,
apply to this Agreement, the Merger or the other Transactions. To the
knowledge of the Company, no other state takeover statute is
applicable to the Merger or the other Transactions.
SECTION 3.6 VOTE REQUIRED. The affirmative vote of the
holders of a majority of the outstanding Shares is the only vote of
the holders of any class or series of the Company's capital stock
necessary to adopt this Agreement and approve the Merger and the other
Transactions.
12
SECTION 3.7 CONSENTS AND APPROVALS; NO VIOLATIONS. Except
for the filings, permits, authorizations, consents and approvals as
may be required under, and other applicable requirements of, the
Exchange Act, the HSR Act, Finnish corporation and securities law,
Non-U.S. Monopoly Laws, state securities or blue sky laws, the MBCA
and the DGCL, none of the execution, delivery or performance of this
Agreement by the Company or the consummation by the Company of the
Transactions will (i) conflict with or result in any breach of any
provision of the articles of incorporation, the bylaws or similar
organizational documents of the Company, (ii) require any filing with,
or permit, authorization, consent or approval of, any Governmental
Entity, (iii) result in a violation or breach of, or constitute (with
or without due notice or the passage of time or both) a default (or
give rise to any right of termination, amendment, cancellation or
acceleration) under, any of the terms, conditions or provisions of any
Company Agreement, or (iv) violate any Order, statute, rule or
regulation applicable to the Company, any Company Subsidiary or any of
their properties or assets, except, with respect to the foregoing
clauses (ii), (iii) and (iv), as could not reasonably be expected to,
individually or in the aggregate, have a Company Material Adverse
Effect. There are no third party consents or approvals required to be
obtained under the Company Agreements prior to the consummation of the
Transactions, except where the failure to obtain such consents or
approvals could not reasonably be expected to, individually or in the
aggregate, have a Company Material Adverse Effect.
SECTION 3.8 SEC REPORTS AND FINANCIAL STATEMENTS. The
Company has filed with the SEC true and complete copies of the Company
SEC Documents. As of their respective dates or, if amended, as of the
date of the last such amendment filed prior to the date hereof, the
Company SEC Documents, including, without limitation, any financial
statements or schedules included therein (a) did not contain any
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the
statements made therein, in the light of the circumstances under which
they were made, not misleading and (b) complied in all material
respects with the applicable requirements of the Exchange Act and the
Securities Act, as the case may be, and the applicable rules and
regulations of the SEC thereunder. None of the Company Subsidiaries
is required to file any forms, reports or other documents with the
SEC. The Company Financial Statements have been prepared from, and
are in accordance with, in each case, in all material respects, the
books and records of the Company and its consolidated Subsidiaries,
and comply as to form, as of their respective dates of filing with the
SEC, in all material respects with applicable accounting requirements
and with the published rules and regulations of the SEC with respect
thereto, have been prepared in accordance with U.S. GAAP (except, in
the case of unaudited financial statements, as permitted by Form 10-Q
of the SEC) applied on a consistent basis during the period involved
(except as may be stated in the notes thereto) and fairly present in
all material respects the consolidated financial position and the
consolidated results of operations and cash flows (and changes in
13
financial position, if any) of the Company and its consolidated
Subsidiaries as of the times and for the periods referred to therein,
subject, with respect to interim unaudited financial statements, to
normal and recurring year-end adjustments that are not reasonably
likely to be material in amount.
SECTION 3.9 NO UNDISCLOSED LIABILITIES. Except (a) as
disclosed in the Company Financial Statements and (b) for liabilities
and obligations (i) incurred in the ordinary course of business and
consistent with past practice since the Balance Sheet Date pursuant to
the terms of this Agreement, or (ii) incurred pursuant to, or in
furtherance of, this Agreement or the Transactions, neither the
Company nor any Company Subsidiary has any liabilities or obligations
of any nature, whether or not accrued, contingent or otherwise, which
could reasonably be expected to have, individually or in the
aggregate, a Company Material Adverse Effect.
SECTION 3.10 ABSENCE OF CERTAIN CHANGES. Since the Balance
Sheet Date, except as disclosed in the Company SEC Documents filed
prior to the date hereof, (i) the Company and each Company Subsidiary
has conducted its respective business only in the ordinary and usual
course, (ii) there have not occurred any events, changes, effects or
circumstances (including the incurrence of any liabilities of any
nature, whether or not accrued, contingent or otherwise) having or
which could reasonably be expected to have, individually or in the
aggregate, a Company Material Adverse Effect, and (iii) 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, (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 Options awarded prior to the date hereof, (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 identified
on the Company Disclosure Schedule in effect as of the date of the
date hereof, (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 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 SEC Documents or required by a change in U.S. GAAP, any change
in accounting methods, principles or practices by the Company
materially affecting its assets, liabilities or business or (5) except
14
insofar as may have been disclosed in the Company SEC Documents, any
tax election that individually or in the aggregate would reasonably be
expected to have a Company Material Adverse Effect on the Company or
any of its tax attributes or any settlement or compromise of any
material income tax liability.
SECTION 3.11 LITIGATION. There is no action, suit or
proceeding by or before any court or governmental or other regulatory
or administrative agency or commission pending or, to the best
knowledge of the Company, threatened against or involving the Company
or any Company Subsidiary; or which questions or challenges the
validity of this Agreement or any action taken or to be taken by the
Company or any Company Subsidiary pursuant to this Agreement or in
connection with the Transactions; other than, in each case, those the
outcome of which, individually or in the aggregate, would not (i)
reasonably be expected to have a Company Material Adverse Effect, or
(ii) reasonably be expected to materially impair or delay the ability
of the Company to perform its obligations under the Agreement.
SECTION 3.12 EMPLOYEE BENEFIT PLANS. (a) As used herein, "Plan"
shall mean each incentive compensation, stock purchase, stock option
and other equity compensation plan, program, agreement or arrangement;
each severance or termination pay, medical, surgical, hospitalization,
life insurance and other "welfare" plan, fund or program (within the
meaning of Section 3(1) of ERISA); each profit-sharing, stock bonus or
other "pension" plan, fund or program (within the meaning of Section
3(2) of ERISA); each employment, termination or severance agreement;
and each other employee benefit plan, fund, program, agreement or
arrangement, in each case, that is sponsored, maintained or
contributed to or required to be contributed to by the Company or by
any ERISA Affiliate, or to which the Company or an ERISA Affiliate is
party, for the benefit of any director, employee or former employee of
the Company or any Company Subsidiary.
(b) The Company has delivered or made available to the
Parent true, correct and complete copies of all documents relating to
the Plans, including but not limited to: (i) all Plan documents,
amendments and trust instruments; (ii) all insurance and annuity
contracts related to any Plans; (iii) COBRA notices and forms,
including election forms used to notify employees and their dependents
of their continuation coverage rights under the Company's group health
plans; (iv) the most recently filed Form 5500 annual reports; and (v)
actuarial reports, summary plan descriptions and favorable
determination letters for the Plans. Since the date these documents
were supplied to Parent, no Plan amendments have been adopted, no
changes to these documents have been made, and no amendments or
changes will be adopted or made prior to the Closing Date in each case
that could reasonably be expected to, individually or in the
aggregate, have a Company Material Adverse Effect.
(c) All of the Plans subject to ERISA comply in all
material respects and have been administered in compliance in all
15
material respects with (i) the provisions of ERISA, (ii) all
provisions of the Code, applicable to secure the intended tax
consequences, (iii) all applicable state and federal securities laws
and (iv) all other applicable laws, rules, regulations and collective
bargaining agreements, except where the failure to so comply or to be
so administered would not result in any Company Material Adverse
Effect. The Company has not received any written notice from any
Governmental Entity questioning or challenging such compliance that
could reasonably be expected to, individually or in the aggregate,
have a Company Material Adverse Effect.
(d) Neither the Company nor its ERISA Affiliates has
engaged in any transaction or acted or failed to act in any manner
that could subject the Company to any direct or indirect liability (by
indemnity or otherwise) for a breach of any fiduciary or co-fiduciary
duty under ERISA, or liability for a prohibited transaction (within
the meaning of ERISA Section 406 or Code Section 4975) that could
reasonably be expected to, individually or in the aggregate, have a
Company Material Adverse Effect.
(e) No Plan is subject to Title IV of ERISA, and neither
the Company nor any of its ERISA Affiliates has incurred any liability
under Title IV of ERISA arising in connection with the termination of
any plan covered or previously covered by Title IV of ERISA that could
become, after the Closing Date, an obligation of the Company or any of
its ERISA Affiliates, in each case, that could reasonably be expected
to, individually or in the aggregate have a Company Material Adverse
Effect.
(f) Neither the Company nor any of its ERISA Affiliates has
ever established, maintained, contributed to or otherwise participated
in, or had an obligation to maintain, contribute to, or otherwise
participate in, any multi-employer plan within the meaning of ERISA
Section 4001(a)(3).
(g) To the Company's knowledge, none of the Plans provides
welfare benefits, including, without limitation, death or medical
benefits (whether or not insured), with respect to current or former
employees beyond their retirement or other termination of service
(other than coverage required by COBRA or any similar state law).
(h) Except as described in the Company Disclosure Schedule,
there are no insurance reserves, trusts or escrow accounts that have
been established to provide for payments under welfare plans within
the meaning of Section 3(1) of ERISA.
(i) Each Plan which is intended to be qualified under Code
Section 401(a) ("Qualified Retirement Plan") has received from the
Internal Revenue Service a favorable determination letter to the
effect that the plan in form satisfies the requirements for
qualification under Code Section 401(a) (taking into account the
provisions of the Tax Reform Act of 1986). To the Company's
16
knowledge, no event has occurred or circumstances exist that will or
could give rise to disqualification of a Qualified Retirement Plan and
no amendment to any Qualified Retirement Plan made since applying for
such determination letter could cause a disqualification of such Plan.
(j) The Company has the right pursuant to the terms of each
Plan that is a welfare plan within the meaning of Section 3(1) of
ERISA and all agreements related to such Plan unilaterally to
terminate such Plan (or its participation in such Plan) or to amend
the terms of such Plan at any time.
(k) The transactions contemplated by this Agreement will
not result in any additional payments to or benefit accruals for, or
any increase in the vested interest of, any current or former officer,
employee or director or their dependents under any Plan. The Company
is not obligated to reimburse or increase the compensation of or
payments to any current or former officer, employee or director of the
Company in order to make such person whole for any excise tax such
person may pay under Section 4999 of the Code due to an excess
parachute payment under Section 280G of the Code.
(l) Except as expressly provided in this Agreement, there
is no pending or, to the knowledge of the Company, threatened
complaint, claim (other than a routine claim for benefits),
proceeding, audit, or investigation of any kind in or before any
Governmental Entity with respect to any Plan that could reasonably be
expected to result in a Company Material Adverse Effect.
SECTION 3.13 TAX MATTERS; GOVERNMENT BENEFITS.
(a) The Company and each of its Subsidiaries has filed all
Tax Returns that are required to be filed by the Company and its
Subsidiaries, and all such Tax Returns 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 failure to file, to be complete or correct or
to have extensions granted that remain in effect individually or in
the aggregate would not reasonably be expected to have a Company
Material Adverse Effect. The Company and each of its Subsidiaries
have duly paid or caused to be duly paid in full or made provision in
accordance with U.S. GAAP (or there has been paid or provision has
been made on their behalf) for the payment of all Taxes (as
hereinafter defined) shown as due on such Tax Returns. The most
recent financial statements contained in the Company SEC Documents
reflect an adequate reserve for all Taxes payable by the Company and
the Company Subsidiaries for all taxable periods and portions thereof
accrued through the date of such financial statements.
(b) No notification has been received by the Company or by
any Company Subsidiary that an audit, examination or other proceeding
is pending or, to the Company's knowledge, threatened with respect to
17
any Taxes due from or with respect to or attributable to the Company
or any Company Subsidiary or any Tax Return filed by or with respect
to the Company or any Company Subsidiary, except for those that would
not reasonably be expected to have a Company Material Adverse Effect.
(c) 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.
(d) None of the Company or any Company Subsidiary has been
a member of any affiliated group within the meaning of Section 1504(a)
of the Code, or any similar affiliated or consolidated group for tax
purposes under state, local or foreign law (other than a group, the
common parent of which is the Company), or has any liability for Taxes
of any person (other than the Company and its Subsidiaries) under
Treasury Regulation Section 1.1502-6 or any similar provision of
state, local or foreign law as a transferee or successor, by contract
or otherwise.
SECTION 3.14 TITLE TO PROPERTIES; ENCUMBRANCES. Except as
set forth in the Company's Annual Report on Form 10-K for the fiscal
year ended March 31, 2000, each of the Company and the Company
Subsidiaries has good and valid title to, or has valid leasehold
interests in or valid rights under contract to use, all the tangible
properties and assets which it purports to own or use, including all
the tangible properties and assets reflected in the Balance Sheet
(except for properties and assets disposed of since the date of the
Balance Sheet in the ordinary course of business consistent with past
practice), in each case, free and clear of all title defects or
objections, liens, claims, charges, security interests or other
encumbrances of any nature whatsoever except, with respect to all such
properties and assets, for (a) liens shown on the Balance Sheet as
securing specified liabilities or obligations and liens incurred in
connection with the purchase of property and/or assets, if such
purchase was effected after the date of the Balance Sheet, with
respect to which no default exists; (b) minor imperfections of title,
if any, none of which are substantial in amount, detract from the
value or impair the use of the property subject thereto, or impair the
operations of the Company or any Company Subsidiary and which have
arisen only in the ordinary course of business and consistent with
past practice since the date of the Balance Sheet; (c) liens for
current taxes not yet due; and (d) such title defects, failure to have
valid leasehold interest in, or objections, liens, claims, charges,
security interests or other encumbrances of any nature whatsoever, if
any, as individually or in the aggregate could not reasonably be
expected to have a Company Material Adverse Effect.
SECTION 3.15 ENVIRONMENTAL LAWS. Except as disclosed in
the Company SEC Documents (a) the Company and each Company Subsidiary
is in compliance with all Environmental Laws, including compliance
18
with any permits or other governmental authorizations or the terms and
conditions thereof, except in the case of the matters covered by this
sentence where the failure to be in compliance with such laws could
not, individually or in the aggregate, reasonably be expected to have
a Company Material Adverse Effect; (b) in the past five (5) years,
neither the Company nor any Company Subsidiary has received any
communication or notice, whether from a governmental authority or
otherwise, alleging any violation of or noncompliance with any
Environmental Laws by the Company or any Company Subsidiary or for
which any of them is responsible, and there is no pending or, to the
Company's knowledge, threatened Environmental Claim, except where such
communication, notice or Environmental Claim could not reasonably be
expected to, individually or in the aggregate, have a Company Material
Adverse Effect; and (c) to the Company's knowledge, there are no past
or present facts or circumstances that could form the basis of any
Environmental Claim against the Company or any Company Subsidiary or
against any person or entity whose liability for any Environmental
Claim the Company or any Company Subsidiary has retained or assumed
either contractually or by operation of law, except where such
Environmental Claim, if made, could not reasonably be expected to,
individually or in the aggregate, have a Company Material Adverse
Effect.
SECTION 3.16 INTELLECTUAL PROPERTY. Except as could not,
individually or in the aggregate, reasonably be expected to have a
Company Material Adverse Effect, (i) either the Company or a Company
Subsidiary owns, or is licensed or otherwise possesses legally
enforceable rights to use the Company Intellectual Property, (ii) to
the Company's knowledge, the conduct of the business of the Company
and the Company Subsidiaries with the Company Intellectual Property
does not infringe any Intellectual Property rights or any other
proprietary right of any Person, and neither the Company nor any
Company Subsidiary has received any written notice from any other
Person pertaining to or challenging the right of the Company or any
Company Subsidiary to use any of the Company Intellectual Property,
and (iii) neither the Company nor any Company Subsidiary has made any
claim of a violation or infringement by others of its rights to or in
connection with the Company Intellectual Property which is still
pending.
SECTION 3.17 COMPLIANCE WITH LAWS. The Company and its
Subsidiaries are in compliance with each applicable law, rule or
regulation of any United States federal, state, local, or foreign
government or agency thereof which affects the business, properties or
assets of the Company and its Subsidiaries, and no notice, charge,
claim, action or assertion has been received by the Company or any
Company Subsidiary or has been filed, commenced or, to the Company's
knowledge, threatened against the Company or any Company Subsidiary
alleging any such violation, except for any matter otherwise covered
by this sentence which could not reasonably be expected to,
individually or in the aggregate, have a Company Material Adverse
Effect. All licenses, permits and approvals required under such laws,
19
rules and regulations are in full force and effect, and the Company is
in compliance with the terms thereof, except where the failure to be
in full force and effect or to be in such compliance could not
reasonably be expected to, individually or in the aggregate, have a
Company Material Adverse Effect.
SECTION 3.18 LABOR DIFFICULTIES. (a) There is no unfair
labor practice complaint against the Company or any Company Subsidiary
pending before the National Labor Relations Board, except for any
occurrence that individually or in the aggregate could not reasonably
be expected to have a Company Material Adverse Effect; (b) there is no
labor strike, dispute, slowdown or stoppage actually pending or, to
the knowledge of the Company, threatened against or affecting the
Company or any Company Subsidiary, except where such strike, dispute,
slowdown or stoppage could not reasonably be expected to have a
Company Material Adverse Effect; (c) to the Company's knowledge, there
is no organizational effort presently being made or threatened by or
on behalf of any labor union with respect to employees of the Company
and its Subsidiaries; and (d) no grievance which might have,
individually or in the aggregate, a Company Material Adverse Effect,
arising out of or under collective bargaining agreements is pending.
SECTION 3.19 INFORMATION TO BE SUPPLIED. None of the
information to be supplied by the Company specifically for inclusion
or incorporation by reference (i) in the registration statement on
Form F-4 or on Form F-6 to be filed with the SEC by Parent in
connection with the issuance of Parent ADSs in the Merger (the
"REGISTRATION STATEMENT") will, at the time the Registration Statement
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, (ii) in any filing by Parent or Merger Sub
with the Finnish Financial Supervision or the HSE in respect of the
Merger (including, without limitation, any listing particulars under
the Securities Market Act of 1989, as amended (the "MARKET ACT"),
Chapter 2, Section 3 relating to Parent Ordinary Shares (the "LISTING
PARTICULARS") and any shareholder circular to be distributed to the
shareholders of Parent) (together with any amendments or supplements
thereto, the "PARENT DISCLOSURE DOCUMENTS"), or (iii) in the Proxy
Statement will, at the date it is first mailed to the Company's
shareholders or at the time of the Company Shareholder 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 Proxy Statement will comply as to
form in all material respects with the requirements of the Exchange
Act and the rules and regulations hereunder and all applicable state
laws, 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 Parent specifically for inclusion or
incorporation by reference in the Proxy Statement.
20
SECTION 3.20 OPINION OF FINANCIAL ADVISOR. The Company has
received the opinion of its investment advisor, Pacific Crest
Securities Inc., dated the date hereof, to the effect that, as of such
date, the Exchange Ratio is fair to the Company's shareholders from a
financial point of view, and a copy of such opinion has been provided
to the Parent.
SECTION 3.21 BROKERS OR FINDERS. No agent, broker,
investment banker, financial advisor or other firm or Person acting on
behalf of the Company is or will be entitled to any brokers' or
finder's fee or any other commission or similar fee in connection with
any of the Transactions except for Pacific-Crest Securities, Inc.
SECTION 3.22 COMPANY AGREEMENTS. Except as set forth in
the Company SEC Documents or as permitted pursuant to this Agreement,
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 $500,000, (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 the localities in which, all
or any portion of the business of the Company and its Subsidiaries,
taken as a whole, is or would be conducted (collectively, the "COMPANY
AGREEMENTS").
SECTION 3.23 INTERESTED PARTY TRANSACTIONS. To the
Company's knowledge, since the Company's proxy statement dated June 7,
1999, no event has occurred that would be required to be reported as a
"Certain Relationship" or "Related Transaction" pursuant to Item 404
of Regulation S-K promulgated by the SEC.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PARENT AND PURCHASER
Except as set forth in the Parent Disclosure Schedule
prepared and signed by the Parent and delivered to the Company
simultaneously with the execution hereof, the Parent represents and
warrants to the Company that all of the statements contained in this
ARTICLE IV are true and correct as of the date of this Agreement (or,
if made as of a specified date, as of such date). Each exception set
forth in the Parent Disclosure Schedule is identified by reference to
a specific section of this Agreement and, except as otherwise
specifically stated with respect to such exception, relates only to
such section.
SECTION 4.1 ORGANIZATION; QUALIFICATION; CHARTER
DOCUMENTS. (a) Each of Parent and Merger Sub (i) is a corporation
duly organized, validly existing and in good standing under the laws
of its jurisdiction of incorporation; (ii) has full corporate power
21
and authority to carry on its business as it is now being conducted
and to own, lease and operate the properties and assets it now owns,
leases or operates or purports to own, lease or operate; and (iii) is
duly qualified or licensed to do business as a foreign corporation in
good standing in every jurisdiction in which ownership of property or
the conduct of its business requires such qualification, except where
the failure to have such power and authority or to be so qualified,
licensed or in good standing could not reasonably be expected to,
individually or in the aggregate, have a Parent Material Adverse
Effect.
(b) Parent has heretofore delivered or made available to
the Company complete and correct copies of the Charter Documents of
Parent and each Parent Subsidiary, as amended to date. All such
Charter Documents are in full force and effect, and neither Parent nor
any Parent Subsidiary is in violation of any provision of its
respective Charter Documents except for breaches which would not
materially restrict the ability of Parent to consummate the Merger or
could not reasonably be expected to have a Parent Material Adverse
Effect.
SECTION 4.2 SUBSIDIARIES AND AFFILIATES. The Parent
Disclosure Schedule sets forth the name and jurisdiction of
incorporation of each Parent Subsidiary and the jurisdictions in which
each Parent Subsidiary is qualified to do business. The Parent does
not own, directly or indirectly, any capital stock or other equity or
similar interest in, or any interest convertible into or exchangeable
or exercisable for any equity or similar interest in, any corporation
or have any direct or indirect equity or ownership interest in any
business other than publicly traded securities constituting less than
one percent of the outstanding equity of the issuing entity. All the
outstanding capital stock of each Parent Subsidiary is owned directly
or indirectly by the Parent free and clear of all Liens, and is
validly issued, fully paid and non-assessable, and there are no
outstanding options, rights or agreements of any kind relating to the
issuance, sale or transfer of any capital stock or other equity
securities of any such Parent Subsidiary to any person except the
Parent. Each Parent Subsidiary (i) is a corporation duly organized,
validly existing and in good standing under the laws of its
jurisdiction of incorporation; (ii) has full corporate power and
authority to carry on its business as it is now being conducted and to
own the properties and assets it now owns; and (iii) is duly qualified
or licensed to do business as a foreign corporation in good standing
in every jurisdiction in which ownership of property or the conduct of
its business requires such qualification, except where the failure to
have such power and authority or to be so qualified, licensed or in
good standing could not reasonably be expected to, individually or in
the aggregate, have a Parent Material Adverse Effect.
SECTION 4.3 CAPITALIZATION. (a) The authorized capital
stock of the Parent consists of 160,000,000 Parent Ordinary Shares
and 25,000,000 Series K Shares. As of the date hereof, (i)
22
39,200,000 Parent Ordinary Shares are issued and outstanding, (ii) no
Parent Ordinary Shares are held in the treasury of the Parent or held
by any Subsidiary of Parent, (iii) 7,200,000 Series K Shares are
issued and outstanding, and (iv) 1,200,000 Parent Ordinary Shares are
issuable under the Parent's 1999 Warrant Plan. Immediately after the
Effective Time as contemplated by the Conversion Agreement, no Series
K Shares will be outstanding. All the outstanding shares of the
Parent's capital stock are, and all Parent Ordinary Shares which may
be issued pursuant to the exercise of outstanding Parent Options or
upon conversion of Series K Shares into Parent Ordinary Shares will
be, when issued in accordance with the respective terms thereof, duly
authorized, validly issued, fully paid and non-assessable and, except
as set forth on the Parent Disclosure Schedule, are free of any pre-
emptive or other similar rights. There is no Voting Debt of the
Parent or any Parent Subsidiary issued and outstanding. Except as set
forth above and except for the Transactions, as of the date hereof,
(i) there are no shares of capital stock of the Parent authorized,
issued or outstanding; (ii) except for warrants issued under the 1999
Warrant Plan, or as expressly contemplated by this Agreement, there
are no existing options, warrants, calls, preemptive rights,
subscriptions or other rights, agreements, arrangements or commitments
of any character, relating to the issued or unissued capital stock of
the Parent or any Parent Subsidiary, obligating the Parent or any
Parent Subsidiary to issue, transfer or sell or cause to be issued,
transferred or sold any shares of capital stock or Voting Debt of, or
other equity interest in, the Parent or any Parent Subsidiary or
securities convertible into or exchangeable for such shares or equity
interests, or obligating the Parent or any Parent Subsidiary to grant,
extend or enter into any such option, warrant, call, subscription or
other right, agreement, arrangement or commitment and (iii) there are
no outstanding obligations (contingent or otherwise) of the Parent or
any Parent Subsidiary to repurchase, redeem or otherwise acquire any
Parent Ordinary Shares, the Series K Shares, or the other capital
stock of the Parent, or any Parent Subsidiary or Affiliate of the
Parent.
(b) Except as expressly contemplated by this Agreement, there
are no voting trusts or other agreements or understandings to which
the Parent or any Parent Subsidiary is a party with respect to the
voting of the capital stock of the Parent or any of the Parent
Subsidiaries.
(c) The Parent Ordinary Shares underlying the Parent ADSs to be
issued as part of the Merger Consideration, when issued and delivered
in accordance with the terms of this Agreement, will have been duly
authorized, validly issued, fully paid and non-assessable and will be
free of any preemptive or other similar rights, except as set forth on
the Parent Disclosure Schedule.
SECTION 4.4 AUTHORIZATION; VALIDITY OF AGREEMENT; NECESSARY
ACTION. Each of Parent and Merger Sub has full corporate power and
authority to execute and deliver this Agreement and, with respect to
23
Parent, subject in the case of consummation of the Merger to obtaining
the Parent Shareholder Approval, to consummate the Transactions. The
execution, delivery and performance by Parent and Merger Sub of this
Agreement and the consummation of the Merger and the Transactions have
been duly and validly authorized by the Boards of Directors of Parent
and Merger Sub, and by Parent as the sole shareholder of Merger Sub,
and no other corporate action on the part of Parent and Merger Sub is
necessary to authorize the execution and delivery by Parent and Merger
Sub of this Agreement or, except with respect to Parent for obtaining
the Parent Shareholder Approval and the filing of merger documents as
set forth herein, the consummation of the Transactions. This
Agreement has been duly executed and delivered by Parent and Merger
Sub, and, assuming due and valid authorization, execution and delivery
hereof by the Company, is a valid and binding obligation of each of
Parent and Merger Sub, enforceable against each of them in accordance
with its terms, subject to applicable bankruptcy, insolvency,
moratorium and other similar laws relating to creditors' rights and
general principles of equity.
SECTION 4.5 BOARD APPROVALS; TAKEOVER STATUTES. The Parent
Board of Directors, at a meeting duly called and held, has (i)
unanimously determined that each of the Agreement and the Merger are
in the best interests of the Parent and its shareholders, (ii) adopted
this Agreement and approved the Merger and the other Transactions, and
(iii) resolved to recommend that the shareholders of the Parent
approve this Agreement and the Merger, and none of the aforesaid
actions by the Parent Board of Directors has been amended, rescinded
or modified. To the knowledge of Parent, no Finnish takeover statute
is applicable to the Merger or the other Transactions.
SECTION 4.6 VOTE REQUIRED. The affirmative vote of the
holders of two-thirds of the Parent Ordinary Shares and the Series K
Shares, voting as a single class, represented at a meeting of
shareholders of Parent is the only vote of the holders of any class or
series of the Parent's capital stock necessary to adopt this Agreement
and approve the Merger and the other Transactions.
SECTION 4.7 CONSENTS AND APPROVALS; NO VIOLATIONS. Except
for the filings, permits, authorizations, consents and approvals as
may be required under, and other applicable requirements of, the
Exchange Act, the HSR Act, Non-U.S. Monopoly Laws, Finnish corporation
law, the Finnish Companies Act and Finnish and other securities law,
the MBCA and the DGCL, none of the execution, delivery or performance
of this Agreement by Parent or Merger Sub or the consummation by
Parent or Merger Sub of the Transactions will (i) conflict with or
result in any breach of any provision of the respective articles of
association or bylaws or similar organizational documents of Parent or
Merger Sub, (ii) require any filing with, or permit, authorization,
consent or approval of, any Governmental Entity, (iii) result in a
violation or breach of, or constitute (with or without due notice or
lapse of time or both) a default (or give rise to any right of
termination, cancellation or acceleration) under, any of the terms,
24
conditions or provisions of any note, bond, mortgage, indenture,
lease, license, contract, agreement or other instrument or obligation
to which Parent, or any of its Subsidiaries or Merger Sub is a party
or by which any of them or any of their respective properties or
assets may be bound, or (iv) violate any Order, statute, rule or
regulation applicable to Parent, any of its Subsidiaries or any of
their properties or assets, except, with respect to the foregoing
clauses (ii), (iii) and (iv), as could not reasonably be expected to,
individually or in the aggregate, have a Parent Material Adverse
Effect. There are no third party consents or approvals required to be
obtained under the Parent Agreements prior to the consummation of the
Transactions, except where the failure to obtain such consents or
approvals could not reasonably be expected to, individually or in the
aggregate, have a Parent Material Adverse Effect.
SECTION 4.8 PARENT PUBLIC REPORTS AND FINANCIAL STATEMENTS.
The Parent has filed, and has heretofore made available to the
Company, true and complete copies of, all reports, filings,
registration statements and other documents required to be filed by it
with the HSE, the Finnish Trade Registry, the Finnish Financial
Supervision and the Decision of the Ministry of Finance since March
23, 1999. As of their respective dates or, if amended, as of the date
of the last such amendment filed prior to the date hereof, the Parent
Public Reports, including, without limitation, any financial
statements or schedules included therein (a) did not contain any
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the
statements made therein, in the light of the circumstances under which
they were made, not misleading and (b) complied as to form in all
material respects with the applicable requirements of the Finnish
Companies Act and the Market Act, as the case may be, and the
applicable rules and regulations of the HSE and the Finnish Trade
Registry. None of the Parent Subsidiaries is required to file any
forms, reports or other documents with the Finnish Trade Registry or
the Finnish Financial Supervision or under the Market Act or the
Finnish Companies Act. The Parent Financial Statements have been
prepared from, and are in accordance with, the books and records of
the Parent and its consolidated Subsidiaries, comply in all material
respects with applicable accounting requirements and with the
published rules and regulations of the HSE, the Market Act and the
Finnish Companies Act with respect thereto, have been prepared in
accordance with Finnish GAAP applied on a consistent basis during the
period involved (except as may be stated in the notes thereto) and
fairly present in all material respects the consolidated financial
position and the consolidated results of operations and cash flows
(and changes in financial position, if any) of the Parent and its
consolidated Subsidiaries as of the times and for the periods referred
to therein.
SECTION 4.9 NO UNDISCLOSED LIABILITIES. Except (a) as
disclosed in the Parent Financial Statements, (b) for liabilities and
obligations incurred in the ordinary course of business and consistent
25
with past practice since the Parent Balance Sheet Date pursuant to the
terms of this Agreement, or (c) incurred pursuant to, or in
furtherance of, this Agreement or the Transactions, neither the Parent
nor any Parent Subsidiary has any liabilities or obligations of any
nature, whether or not accrued, contingent or otherwise, which could
reasonably be expected to, individually or in the aggregate, have a
Parent Material Adverse Effect.
SECTION 4.10 ABSENCE OF CERTAIN CHANGES. Since the Parent
Balance Sheet Date, except as disclosed in the Parent Public Reports
filed prior to the date hereof, (i) the Parent and each Parent
Subsidiary has conducted its respective business only in the ordinary
and usual course, (ii) there have not occurred any events, changes,
effects or circumstances (including the incurrence of any liabilities
of any nature, whether or not accrued, contingent or otherwise) having
or which could reasonably be expected to, individually or in the
aggregate, have a Parent Material Adverse Effect, and (iii) 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 Parent's capital stock except as set forth on the
Parent Disclosure Schedule, (2) any split, combination or
reclassification of any of Parent'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 Parent's capital
stock, except for issuances of Parent Ordinary Shares upon the
exercise of Parent Options awarded prior to the date hereof, (3) (A)
any granting by Parent or any of its Subsidiaries to any current or
former director, executive officer or other key employee of Parent 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 date hereof, (B) any granting by Parent 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
Parent 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 Parent
Public Reports or required by a change in Finnish GAAP, any change in
accounting methods, principles or practices by Parent materially
affecting its assets, liabilities or business or (5) except insofar as
may have been disclosed in Parent Public Reports, any tax election
that individually or in the aggregate would reasonably be expected to
have a Parent Material Adverse Effect on Parent or any of its tax
attributes or any settlement or compromise of any income tax
liability.
SECTION 4.11 LITIGATION. There is no action, suit, or
proceeding by or before any court or governmental or other regulatory
or administrative agency or commission pending or, to the best
26
knowledge of the Parent, threatened against or involving the Parent or
any Parent Subsidiary, or which questions or challenges the validity
of this Agreement or any action taken or to be taken by the Parent or
any Parent Subsidiary pursuant to this Agreement or in connection with
the Transactions, other than, in each case, the outcome of which,
individually or in the aggregate, would not (i) reasonably be expected
to have a Parent Material Adverse Effect, or (ii) reasonably be
expected to materially impair or delay the ability of the Company to
perform its obligations under this Agreement.
SECTION 4.12 TAX MATTERS; GOVERNMENT BENEFITS.
(a) The Parent and each of its Subsidiaries have filed all
Tax Returns that are required to be filed by the Parent and its
Subsidiaries, and all such Tax Returns 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 failure to file, to be complete or correct or
to have extensions granted that remain in effect individually or in
the aggregate would not reasonably be expected to have a Parent
Material Adverse Effect. The Parent and each of its Subsidiaries have
duly paid or caused to be duly paid in full or made provision in
accordance with Finnish GAAP (or there has been paid or provision has
been made on their behalf) for the payment of all Taxes shown as due
on such Tax Returns.
(b) No notification has been received by the Parent or by
any Parent Subsidiary that an audit, examination or other proceeding
is pending or, to the Parent's knowledge, threatened with respect to
any Taxes due from or with respect to or attributable to the Parent or
any Parent Subsidiary or any Tax Return filed by or with respect to
the Parent or any Parent Subsidiary where there is a reasonable
possibility of a materially adverse determination.
(c) Neither the Parent 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.
SECTION 4.13 TITLE TO PROPERTIES; ENCUMBRANCES. Each of
the Parent and the Parent Subsidiaries has good and valid title to, or
has valid leasehold interests in or valid rights under contract to
use, all the tangible properties and assets which it purports to own
or use, including, without limitation, all the tangible properties and
assets reflected in the Parent Balance Sheet (except for properties
and assets disposed of since the date of the Parent Balance Sheet in
the ordinary course of business consistent with past practice), in
each case, free and clear of all title defects or objections, liens,
claims, charges, security interests or other encumbrances of any
nature whatsoever except, with respect to all such properties and
assets, for (a) liens shown on the Parent Balance Sheet as securing
27
specified liabilities or obligations and liens incurred in connection
with the purchase of property and/or assets, if such purchase was
effected after the date of the Parent Balance Sheet, with respect to
which no default exists; (b) minor imperfections of title, if any,
none of which are substantial in amount, materially detract from the
value or impair the use of the property subject thereto, or impair the
operations of the Parent or any Parent Subsidiary and which have
arisen only in the ordinary course of business and consistent with
past practice since the date of the Parent Balance Sheet; (c) liens
for current taxes not yet due; and (d) such title defects or
objections, liens, claims, charges, security interests or other
encumbrances of any nature whatsoever, if any, as individually or in
the aggregate could not reasonably be expected to have a Parent
Material Adverse Effect.
SECTION 4.14 ENVIRONMENTAL LAWS. Except as disclosed in
the Parent Public Reports (a) the Parent and each Parent Subsidiary
are in compliance with all Environmental Laws, including, but not
limited to, compliance with any permits or other governmental
authorizations or the terms and conditions thereof, except in the case
of the matters covered by this sentence where the failure to be in
compliance with such laws could not, individually or in the aggregate,
reasonably be expected to have a Parent Material Adverse Effect; (b)
in the past five (5) years neither the Parent nor any Parent
Subsidiary has received any communication or notice, whether from a
governmental authority or otherwise, alleging any violation of or
noncompliance with any Environmental Laws by the Parent or any Parent
Subsidiary or for which any of them is responsible, and there is no
pending or, to the Parent's knowledge, threatened Environmental Claim,
except where such communication, notice or Environmental Claim could
not reasonably be expected to, individually or in the aggregate, have
a Parent Material Adverse Effect; and (c) to the Parent's knowledge,
there are no past or present facts or circumstances that could form
the basis of any Environmental Claim against the Parent or any Parent
Subsidiary or against any person or entity whose liability for any
Environmental Claim the Parent or any Parent Subsidiary has retained
or assumed either contractually or by operation of law, except where
such Environmental Claim, if made, could not reasonably be expected
to, individually or in the aggregate, have a Parent Material Adverse
Effect.
SECTION 4.15 INTELLECTUAL PROPERTY. Except as could not,
individually or in the aggregate, reasonably be expected to have a
Parent Material Adverse Effect, (i) either the Parent or a Parent
Subsidiary owns, or is licensed or otherwise possesses legally
enforceable rights to use the Parent Intellectual Property, (ii) to
the Parent's knowledge, the conduct of the business of the Parent and
the Parent Subsidiaries with the Parent Intellectual Property does not
infringe any Intellectual Property rights or any other proprietary
right of any Person, and neither the Parent nor any Parent Subsidiary
has received any written notice from any other Person pertaining to or
challenging the right of the Parent or any Parent Subsidiary to use
28
any of the Parent Intellectual Property, and (iii) neither the Parent
nor any Parent Subsidiary has made any claim of a violation or
infringement by others of its rights to or in connection with the
Parent Intellectual Property which is still pending.
SECTION 4.16 COMPLIANCE WITH LAWS. The Parent and its
Subsidiaries are in compliance with each applicable law, rule or
regulation of any United States federal, state, local, Finnish, or
other foreign government or agency thereof which affects the business,
properties or assets of the Parent and its Subsidiaries, and no
notice, charge, claim, action or assertion has been received by the
Parent or any Parent Subsidiary or has been filed, commenced or, to
the Parent's knowledge, threatened against the Parent or any Parent
Subsidiary alleging any such violation, except for any matter
otherwise covered by this sentence which could not reasonably be
expected to, individually or in the aggregate, have a Parent Material
Adverse Effect. All licenses, permits and approvals required under
such laws, rules and regulations are in full force and effect, and
each of Parent and its Subsidiaries is in compliance with the terms
thereof, except where the failure to be in full force and effect or to
be in such compliance could not reasonably be expected to,
individually or in the aggregate, have a Parent Material Adverse
Effect.
SECTION 4.17 LABOR DIFFICULTIES. (a) There is no unfair
labor practice complaint against the Parent or any Parent Subsidiary
pending before any Finnish governmental or administrative agency,
except for any occurrence that individually or in the aggregate could
not reasonably be expected to have a Parent Material Adverse Effect;
(b) there is no labor strike, dispute, slowdown or stoppage actually
pending or, to the knowledge of Parent, threatened against or
affecting the Parent or any Parent Subsidiary, except where such
strike, dispute, slowdown or stoppage could not reasonably be expected
to have a Parent Material Adverse Effect; (d) to the Parent's
knowledge, there is no organizational effort presently being made or
threatened by or on behalf of any labor union with respect to
employees of the Parent and its Subsidiaries; and (e) no grievance
which might have, individually or in the aggregate, a Parent Material
Adverse Effect, arising out of or under collective bargaining
agreements is pending.
SECTION 4.18 INFORMATION TO BE SUPPLIED. (a) None of the
information supplied or to be supplied by Parent specifically for
inclusion or incorporation by reference in (i) the Registration
Statement will, at the time the Registration Statement 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 Proxy Statement will, at the date it is first mailed to the
Company's shareholders or at the time of the Company Shareholder
Meeting, contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary in
29
order to make the statements therein, in light of the circumstances
under which they are made, not misleading. The Registration Statement
and the Proxy Statement will comply as to form in all material
respects with the requirements of the Securities Act and the Exchange
Act and the rules and regulations thereunder, except that no
representation or warranty is made by Parent 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 Registration Statement or the Proxy
Statement.
(b) The Parent Disclosure Documents will, at all relevant
times, include all information relating to Parent and its Subsidiaries
which is required to enable the Parent Disclosure Documents and the
parties hereto to comply in all material respects with all Finnish
statutory and other legal and regulatory provisions (including,
without limitation, the Market Act and the rules and regulations made
thereunder, and the rules and requirements of the HSE) and all such
information contained in such documents will, as of the date of such
filing, be in all material respects, in accordance with the facts and
will not omit anything materially likely to affect the import of such
information.
(c) Notwithstanding the foregoing provisions of this
Section, no representation or warranty is made by Parent with respect
to statements made or incorporated by reference in the Registration
Statement or the Listing Particulars based on information supplied by
the Company expressly for inclusion or incorporation by reference
therein.
SECTION 4.19 MERGER SUB'S OPERATIONS. Merger Sub was
formed solely for the purpose of engaging in the Transactions and has
not engaged in any business activities or conducted any operations
other than in connection with the Transactions.
SECTION 4.20 BROKERS OR FINDERS. No agent, broker,
investment banker, financial advisor or other firm or Person acting on
behalf of Parent or Merger Sub is or will be entitled to any brokers'
or finders' fee or any other commission or similar fee in connection
with any of the Transactions, except Conventum Corporate Finance Oy.
SECTION 4.21 PARENT AGREEMENTS. Except as set forth in the
Parent Public Reports or as permitted pursuant to this Agreement,
neither the Parent 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 $500,000, (ii) any "material contract" (as such
term is defined in Item 601(b)(10) of Regulation S-K of the SEC,
exclusive of any compensation agreements which would otherwise be
included in such term with respect to a U.S. registrant) or (iii) any
non-competition agreement which purports to limit in any material
30
respect the manner in which, or the localities in which, all or any
portion of the business of the Parent and its Subsidiaries, taken as a
whole is conducted (collectively, the "PARENT AGREEMENTS").
SECTION 4.22 INTERESTED PARTY TRANSACTIONS. Section 4.22 of
the Parent Disclosure Schedule sets forth a description of any event
that, to Parent's Knowledge, exists or has occurred since January 1,
1999 that would be required to be reported as a "Certain Relationship"
or "Related Transaction" pursuant to Item 404 of Regulation S-K
promulgated by the SEC, assuming, for purposes of this section only,
that the Parent was and is subject to the reporting requirements of
the Securities Act and the Exchange Act.
SECTION 4.23 OPINION OF FINANCIAL ADVISOR. The Parent has
received the opinion of its investment advisor, Conventum Corporate
Finance Oy, dated the date hereof, to the effect that, as of such
date, the Exchange Ratio is recommended to the Parent from a financial
point of view, and a copy of such opinion has been provided to the
Company.
SECTION 4.24 ACCOUNTING MATTERS. The Parent has (a)
engaged independent public accountants to advise it on the
qualification of the Merger for "pooling of interests" accounting
under Finnish GAAP, (b) consulted with such accountants concerning the
requirements therefor, and (c) disclosed to such accountants all
actions taken by it or its Subsidiaries that it, in each case,
reasonably believes, based on such consultations, are likely to affect
the accounting of the business combination to be effected by the
Merger as a pooling of interests. As of the date hereof and based
upon consultation with its accountants, the Parent reasonably believes
that the Merger will qualify for "pooling of interests" accounting
under Finnish GAAP.
ARTICLE V
COVENANTS
SECTION 5.1 CONDUCT OF THE BUSINESS OF COMPANY.
The Company agrees that, except as set forth in the Company
Disclosure Schedule, or as permitted, required or specifically
contemplated by, or otherwise described in, this Agreement or
otherwise consented to or approved in writing by Parent (which consent
or approval shall not be unreasonably withheld or delayed), during the
period commencing on the date hereof until the earlier of the
termination of this Agreement or the Effective Time:
(a) the Company and each of its Subsidiaries shall conduct
their respective operations in all material respects only according to
their ordinary and usual course of business consistent with past
practice and shall use their reasonable best efforts to preserve
intact their respective business organization, keep available the
31
services of their officers, employees and consultants and maintain
satisfactory relationships with licensors, suppliers, distributors,
clients, joint venture partners and others having significant business
relationships with them;
(b) by way of illustration and not limitation, neither the
Company nor any of its Subsidiaries shall:
(i) make any change in or amendment to the Company's
Charter Documents or increase the number of members on the Company
Board of Directors beyond a total of eight members;
(ii) issue, sell, pledge, dispose of or encumber, or
authorize to issue or sell, pledge, dispose of or encumber, any shares
of its capital stock or any other securities, or issue or sell, or
authorize to issue or sell, any securities convertible into, or
options, warrants, convertible securities or other rights to purchase
or subscribe to, or enter into any arrangement or contract with
respect to the issuance or sale of, any shares of its capital stock or
any other securities, or make any other changes in its capital
structure, other than (i) the issuance of Shares upon the exercise of
Company Options outstanding on the date hereof, in accordance with
their present terms or (ii) issuances by a wholly-owned Subsidiary of
the Company of capital stock to such Subsidiary's parent, the Company
or another wholly-owned Subsidiary of the Company.
(iii) declare, pay or set aside any dividend or
other distribution (whether in cash, stock or property or any
combination thereof) or payment with respect to, or split, combine,
redeem or reclassify, or purchase or otherwise acquire, any shares of
its capital stock or its other securities, other than dividends
payable by a wholly-owned Subsidiary of the Company to the Company or
another wholly-owned Subsidiary of the Company;
(iv) other than in connection with transactions
permitted by SECTION 5.1(b)(v), incur any capital expenditures or any
obligations or liabilities in respect thereof, except for those (A)
contemplated by the capital expenditure budgets for the Company and
its Subsidiaries made available to Parent prior to the date hereof,
(B) incurred in the ordinary course of business of the Company and its
Subsidiaries or (C) not otherwise described in clauses (A) and (B)
which, as to this SUBSECTION (C), do not exceed $1,000,000 in the
aggregate;
(v) acquire (whether pursuant to merger, stock or
asset purchase or otherwise) in one transaction or series of related
transactions (A) any assets (including any equity interests) having a
fair market value in excess of $1,000,000, in the aggregate, other
than acquisitions of inventory in the ordinary course of business
consistent with past practice, or (B) all or substantially all of the
equity interests of any Person or any business or division of any
Person having a fair market value in excess of $1,000,000, in the
aggregate;
32
(vi) (A) grant any options under the Company Stock
Plans or otherwise grant any Company Option or Company Award, or (B)
establish, adopt, enter into or amend any bonus, profit sharing or
similar plan, agreement, trust, fund, policy or arrangement, or (C)
except in the ordinary course of business consistent with past
practice and except to the extent required under existing employee and
director benefit plans, agreements or arrangements as in effect on the
date of this Agreement, increase the compensation or fringe benefits
of any of its directors, officers or employees or grant any severance
or termination pay not currently required to be paid under existing
severance plans or enter into any employment, consulting or severance
agreement or arrangement with any present, former or prospective
director, officer or other employee of the Company or any of its
Subsidiaries, or establish, adopt, enter into or amend in any material
respect or terminate any collective bargaining, thrift, compensation,
stock option, restricted stock, pension, retirement, deferred
compensation, employment, termination, severance or other plan,
agreement, trust, fund, policy or arrangement for the benefit of any
directors, officers or employees, except as may be required by law;
(vii) transfer, lease, license, guarantee, sell,
mortgage, pledge, renovate, rehabilitate, dispose of, encumber or
subject to any Lien, any assets of the Company or any of its
Subsidiaries except for (A) sales of assets or Liens made or granted
in the ordinary course of business, and (B) sales of assets which are
not, individually or in the aggregate, material to the Company and its
Subsidiaries, taken as a whole);
(viii) except as required by applicable law or U.S.
GAAP and after notice to Parent, take any action to change accounting
policies or procedures (including, without limitation, procedures with
respect to revenue recognition, payments of accounts payable and
collection of accounts receivable);
(ix) adopt or enter into a plan of complete or partial
liquidation, dissolution, merger, consolidation, restructuring,
recapitalization or other reorganization of the Company or any of its
Subsidiaries (other than the Merger) or any agreement relating to a
Company Acquisition Proposal, except as provided for in SECTION
7.1(c)(iv);
(x) (A) incur any material indebtedness for borrowed
money, issue any debt securities, or assume or guarantee any such
indebtedness of another Person (other than indebtedness owing to or
guarantees of indebtedness owing to the Company or any direct or
indirect wholly-owned Subsidiary of the Company) or endorse or
otherwise become responsible for the obligations of any Person or (B)
make any loans or advances to any other Person, other than to the
Company or to any direct or indirect wholly-owned Subsidiary of the
Company, except, in the case of clause (A), for borrowings (1) in the
33
ordinary course of business consistent with past practice, including
without limitation borrowings under existing credit facilities in the
ordinary course of business consistent with past practice, (2) in
connection with the Transactions, or (3) in connection with financing
activities relating to activities described in SECTION 5.1(b) of the
Company Disclosure Schedule;
(xi) accelerate the payment, right to payment or
vesting of any bonus, severance, profit sharing, retirement, deferred
compensation, stock option (including any options issued pursuant to
the Company Stock Plans or under any Company Award), insurance or
other compensation or benefits, or amend the terms or change the
period of exercisability of, purchase, repurchase, redeem or otherwise
acquire, or permit any Subsidiary to amend the terms or change the
period of exercisability of, purchase, repurchase, redeem or otherwise
acquire, any of its securities or any securities of its subsidiaries,
including, without limitation, Shares, or any option, warrant or
right, directly or indirectly, to acquire any such securities;
(xii) settle, pay or discharge any claim, suit or
other action brought or threatened against the Company with respect to
or arising out of a shareholder's equity interest in the Company, or
pay, discharge or satisfy any claims, liabilities or obligations
(absolute, accrued, asserted or unasserted, contingent or otherwise)
over $250,000, individually or in the aggregate, other than the
payment, discharge or satisfaction (A) of any such claims, liabilities
or obligations in the ordinary course of business and consistent with
past practice or (B) of claims, liabilities or obligations reflected
or reserved against in, or contemplated by, the consolidated financial
statements (or the notes thereto) contained in the Company SEC
Documents; provided, in each case, that any such settlement provides
for a complete release of the Company and its Subsidiaries and imposes
no obligation on the Company or its Subsidiaries other than the
payment of money;
(xiii) enter into any agreement, understanding or
commitment that materially restrains, limits or impedes the Company's
or any of its Subsidiaries' ability to compete with or conduct any
business or line of business, including, but not limited to,
geographic limitations on the Company's or any of its Subsidiaries'
activities;
(xiv) plan, announce, implement or effect any
material reduction in labor force, lay-off, early retirement program,
severance program or other program or effort concerning the
termination of employment of employees of the Company or its
Subsidiaries, provided, however, that routine employee terminations
for cause shall not be considered subject to this clause (xiv);
(xv) knowingly take any action or fail to take any
action which action or failure to act would prevent, or would be
reasonably likely to prevent, the Merger from qualifying (A) for
34
"pooling of interests" accounting treatment under Finnish GAAP or (B)
as a Section 368 Reorganization;
(xvi) take any action including, without
limitation, the adoption of any shareholder rights plan or amendments
to its Certificate of Incorporation or By-Laws (or comparable
governing documents), which would, directly or indirectly, restrict or
impair the ability of Parent to vote, or otherwise to exercise the
rights and receive the benefits of a shareholder with respect to,
securities of the Company that may be acquired or controlled by Parent
or Merger Sub or permit any shareholder to acquire securities of the
Company on a basis not available to Parent or Merger Sub in the event
that Parent or Merger Sub were to acquire any shares of the Company
Common Stock;
(xvii) materially modify, amend or terminate any
material contract to which it is a party or waive any of its material
rights or claims except, in each case, in the ordinary course of
business consistent with past practice;
(xviii) make any tax election or settle or compromise
any United States federal, state, local or non-United States tax
liability if the effect thereof would be adverse in any material
respect to the Company; or
agree, in writing or otherwise, to take any of the
foregoing actions.
SECTION 5.2 CONDUCT OF THE BUSINESS OF PARENT. The Parent
agrees that, except as set forth in the Parent Disclosure Schedule, or
as permitted, required or specifically contemplated by, or otherwise
described in, this Agreement or otherwise consented to or approved in
writing by the Company (which consent or approval shall not be
unreasonably withheld or delayed), during the period commencing on the
date hereof until the earlier of the termination of this Agreement or
the Effective Time:
(a) the Parent and each of its Subsidiaries shall conduct
their respective operations in all material respects only according to
their ordinary and usual course of business consistent with past
practice and shall use their reasonable best efforts to preserve
intact their respective business organization, keep available the
services of their officers, employees and consultants and maintain
satisfactory relationships with licensors, suppliers, distributors,
clients, joint venture partners and others having significant business
relationships with them;
(b) by way of illustration and not limitation, neither the
Parent nor any of its Subsidiaries shall:
(i) except as contemplated in the Conversion
Agreement, make any change in or amendment to the Parent's articles of
association, by-laws, or similar organizational documents;
35
(ii) except pursuant to the terms of the Conversion
Agreement, issue, sell, pledge, dispose of or encumber, or authorize
to issue or sell, pledge, dispose of or encumber, any shares of its
capital stock or any other securities, or issue or sell, or authorize
to issue or sell, any securities convertible into, or options,
warrants, convertible securities or other rights to purchase or
subscribe to, or enter into any arrangement or contract with respect
to the issuance or sale of, any shares of its capital stock or any
other securities, or make any other changes in its capital structure,
other than (i) the issuance of Parent Ordinary Shares upon the
exercise of Parent Options outstanding on the date hereof, in
accordance with their present terms or (ii) issuances by a wholly-
owned Subsidiary of the Parent of capital stock to such Subsidiary's
parent, the Parent or another wholly-owned Subsidiary of the Parent;
(iii) declare, pay or set aside any dividend or
other distribution (whether in cash, stock or property or any
combination thereof) or payment with respect to, or split, combine,
redeem or reclassify, or purchase or otherwise acquire, any shares of
its capital stock or its other securities, other than dividends
payable by a wholly-owned Subsidiary of the Parent to the Parent or
another wholly-owned Subsidiary of the Parent;
(iv) other than in connection with transactions
permitted by SECTION 5.2(b)(v), incur any capital expenditures or any
obligations or liabilities in respect thereof, except for those (A)
contemplated by the capital expenditure budgets for the Parent and its
Subsidiaries made available to the Company prior to the date hereof,
(B) incurred in the ordinary course of business of the Parent and its
Subsidiaries, or (C) not otherwise described in clauses (A) and (B)
which, as to this SUBSECTION (C), in the aggregate, do not exceed
$1,000,000 in the aggregate;
(v) acquire (whether pursuant to merger, stock or
asset purchase or otherwise) in one transaction or series of related
transactions (A) any assets (including any equity interests) having a
fair market value in excess of $1,000,000, in the aggregate, other
than acquisition of inventory in the ordinary course of business
consistent with past practice, or (B) all or substantially all of the
equity interests of any Person or any business or division of any
Person having a fair market value in excess of $1,000,000, in the
aggregate;
(vi) transfer, lease, license, guarantee, sell,
mortgage, pledge, renovate, rehabilitate, dispose of, encumber or
subject to any Lien, any assets of the Parent or any of its
Subsidiaries (except for (A) sales of assets or Liens made or granted
in the ordinary course of business, (B) sales of assets which are not,
individually or in the aggregate, material to the Parent and its
Subsidiaries, taken as a whole, and mortgagees, pledgees and similar
36
encumbrances in connection with the Parent's financing activities
consistent with past practice and which could not reasonably be
expected to result in a Parent Material Adverse Effect;
(vii) adopt or enter into a plan of complete or
partial liquidation, dissolution, merger, consolidation,
restructuring, recapitalization or other reorganization of the Parent
or any of its Subsidiaries (other than the Merger) or any agreement
relating to a Parent Acquisition Proposal, except as provided for in
SECTION 7.1(b)(iv);
(viii) (A) incur any material indebtedness for
borrowed money, issue any debt securities, or assume or guarantee any
such indebtedness of another Person (other than indebtedness owing to
or guarantees of indebtedness owing to the Parent or any direct or
indirect wholly-owned Subsidiary of the Parent) or endorse or
otherwise become responsible for the obligations of any Person or (B)
make any loans or advances to any other Person, other than to the
Parent or to any direct or indirect wholly-owned Subsidiary of the
Parent, except for borrowings (1) in the ordinary course of business
consistent with past practice, including without limitation borrowings
under existing credit facilities or for working capital, (2) in
connection with the Transactions, (3) in connection with financing
relating to activities described in item 5.2(1), (2) and (4) of the
Parent Disclosure Schedule, and (4) which are not otherwise described
in subclauses (1), (2) or (3) of this clause (viii) and do not exceed
$10,000,000 in the aggregate;
(ix) accelerate the payment, right to payment or
vesting of any bonus, severance, profit sharing, retirement, deferred
compensation, stock option (including any options issued pursuant to
the Parent 1999 Warrant Plan, under any award (including restricted
stock, deferred stock, phantom stock, stock equivalent or stock unit)
for capital stock of the Parent, or otherwise), insurance or other
compensation or benefits, or amend the terms or change the period of
exercisability of, purchase, repurchase, redeem or otherwise acquire,
or permit any Subsidiary to amend the terms or change the period of
exercisability of, purchase, repurchase, redeem or otherwise acquire,
any of its securities or any securities of its subsidiaries,
including, without limitation, Parent Ordinary Shares, or any option,
warrant or right, directly or indirectly, to acquire any such
securities;
(x) settle, pay or discharge any claim, suit or other
action brought or threatened against the Parent with respect to or
arising out of a shareholder's equity interest in the Parent, or pay,
discharge or satisfy any claims, liabilities or obligations (absolute,
accrued, asserted or unasserted, contingent or otherwise) over
$250,000, individually or in the aggregate, other than the payment,
discharge or satisfaction (A) of any such claims, liabilities or
obligations in the ordinary course of business and consistent with
past practice or (B) of claims, liabilities or obligations reflected
37
or reserved against in, or contemplated by, the consolidated financial
statements (or the notes thereto) contained in the Parent Public
Reports; provided, in each case, that any such settlement provides for
a complete release of the Parent and its Subsidiaries and imposes no
obligation on the Parent or its Subsidiaries other than the payment of
money;
(xi) enter into any agreement, understanding or
commitment that materially restrains, limits or impedes the Parent's
or any of its Subsidiaries' ability to compete with or conduct any
business or line of business, including, but not limited to,
geographic limitations on the Parent's or any of its Subsidiaries'
activities;
(xii) knowingly take any action or fail to take any
action which action or failure to act would prevent, or would be
reasonably likely to prevent, the Merger from qualifying (A) for
"pooling of interests" accounting treatment under Finnish GAAP or (B)
as a Section 368 Reorganization;
(xiii) take any action including, without
limitation, the adoption of any shareholder rights plan or amendments
to its articles of association or bylaws (or comparable governing
documents), which would, directly or indirectly, restrict or impair
the ability of the Company's shareholders to vote, or otherwise to
exercise the rights and receive the benefits of a shareholder with
respect to, securities of the Parent that may be acquired by the
Company's shareholders in the Merger;
(xiv) materially modify, amend or terminate any
material contract to which the Parent or any of its Subsidiaries is a
party or waive any of their material rights or claims except, in each
case, in the ordinary course of business consistent with past
practice;
(xv) agree, in writing or otherwise, to take any of
the foregoing actions; or
(xvi) amend the Parent's 1999 Warrant Plan or any
Parent Option.
SECTION 5.3 COMPANY SHAREHOLDER MEETING; PARENT SHAREHOLDER
MEETING; PREPARATION OF PROXY STATEMENT/PROSPECTUS.
(a) THE COMPANY SHAREHOLDER MEETING. The Company, acting
through its Board of Directors, shall, in accordance with applicable
law, duly call, convene and hold a meeting of the holders of the
Shares (the "COMPANY SHAREHOLDER MEETING") as soon as reasonably
practicable for the purpose of voting upon the approval and adoption
of this Agreement and the Merger, and the Company agrees that this
Agreement and the Merger shall be submitted at such meeting. Except
as provided in SECTION 5.8: (i) the Company Board of Directors shall
38
recommend approval and adoption by its shareholders of this Agreement
(the "COMPANY RECOMMENDATION"), and (ii) neither the Company's Board
of Directors nor any committee thereof shall amend, modify, withdraw,
condition or qualify the Company Recommendation in a manner adverse to
Parent.
(b) PARENT SHAREHOLDER MEETING. Parent, acting through its
Board of Directors, shall, in accordance with applicable law, duly
call, convene and hold a meeting of the holders of Parent Ordinary
Shares (the "PARENT SHAREHOLDER MEETING") at approximately the same
time as the Company Shareholder Meeting, but in no event later than
one (1) Business Day after such Company Shareholder Meeting for the
purpose of voting upon the Transactions, including the Merger and the
issuance of Parent Ordinary Shares hereunder and Parent agrees that
this Agreement and the issuance of Parent Ordinary Shares hereunder
shall be submitted at such meeting. Except as provided in SECTION
5.9: (i) Parent's Board of Directors shall recommend approval by its
shareholders of the Transactions, including the issuance of Parent
Ordinary Shares pursuant to the Merger and the election of A.
Christian Schauer as a member of the Parent's Board of Directors as
contemplated by SECTION 5.14 (the "PARENT RECOMMENDATION"), and (ii)
neither Parent's Board of Directors nor any committee thereof shall
amend, modify, withdraw, condition or qualify the Parent
Recommendation in a manner adverse to the Company.
(c) PREPARATION OF REGISTRATION STATEMENT AND PROXY
STATEMENT/PROSPECTUS. Promptly after the date hereof, Parent and the
Company shall prepare and Parent shall file with the SEC the
Registration Statement, in which the Proxy Statement (which also shall
be filed by the Company under separate cover) and the Prospectus will
be included. Each of the Company and Parent shall use all reasonable
efforts to have the Registration Statement declared effective under
the Securities Act as promptly as practicable after such filing and to
keep the Registration Statement effective as long as is necessary to
consummate the Merger. The Company shall mail the Proxy Statement
(including the Prospectus) to its shareholders as promptly as
practicable after the Registration Statement is declared effective
under the Securities Act, comply in all material respects with the
proxy solicitation rules and regulations under the Exchange Act in
connection with the solicitation of such shareholders and, if
necessary, after the Proxy Statement shall have been so mailed,
promptly circulate amended, supplemental or supplemented proxy
material, and, if required in connection therewith, resolicit proxies.
Parent shall also take any action required to be taken under any
applicable state securities or blue sky laws in connection with the
issuance of Parent ADSs in the Merger. No filing of, or amendment or
supplement to the Proxy Statement, the Prospectus or the Registration
Statement will be made by the Company or Parent without the approval
of the other party, which will not be unreasonably withheld or
delayed. Each party will advise the other party, promptly after it
receives notice thereof, of the time when the Registration Statement
has become effective or any supplement or amendment has been filed,
39
the issuance of any stop order, the suspension of the qualification of
Parent ADSs issuable in connection with the Merger for offering or
sale in any jurisdiction, or any request by the SEC for amendment of
the Proxy Statement, the Prospectus or the Registration Statement or
comments thereon and responses thereto or requests by the SEC for
additional information. If at any time prior to the Effective Time,
the Company or Parent discovers any information relating to either
party, or any of their respective Affiliates, officers or directors,
that should be set forth in an amendment or supplement to the Proxy
Statement, the Prospectus or the Registration Statement, so that such
document 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 that discovers such information shall promptly
notify the other parties hereto and an appropriate amendment or
supplement describing such information shall be promptly filed with
the SEC and, to the extent required by law or regulation, disseminated
to the shareholders of the Company and Parent.
(d) PREPARATION AND FILING OF FORM F-6. Parent shall
promptly prepare and cause the depositary under the Deposit Agreement
to file with the SEC a registration statement on Form F-6 (the "FORM
F-6") with respect to the registration of the Parent ADSs under the
Securities Act and use its reasonable best efforts to have the Form F-
6 declared effective as promptly as possible.
SECTION 5.4 ACCESS.
(a) The Company shall (and shall cause each of its
Subsidiaries to) afford to the officers, employees, accountants,
counsel and other representatives of Parent, reasonable access during
normal business hours during the period prior to the Closing Date, to
all its properties, books, contracts, commitments and records and,
during such period, the Company shall (and shall cause each of its
Subsidiaries to) furnish promptly to the Parent (i) a copy of each
report, schedule, registration statement and other document filed or
received by it during such period pursuant to the requirements of
federal securities laws and (ii) all other information concerning its
business, properties and personnel as Parent may reasonably request
for purposes consistent with this Agreement and the Transactions
contemplated hereby.
(b) The Parent shall (and shall cause each of its
Subsidiaries to) afford to the officers, employees, accountants,
counsel and other representatives of the Company, reasonable access
during normal business hours during the period prior to the Closing
Date, to all its properties, books, contracts, commitments and records
and, during such period, the Parent shall (and shall cause each of its
Subsidiaries to) furnish promptly to the Company (i) a copy of each
report, schedule, registration statement and other document filed or
received by it during such period pursuant to the requirements of
federal securities laws, and (ii) all other information concerning its
40
business, properties and personnel as the Company may reasonably
request for purposes consistent with this Agreement and the
Transactions contemplated hereby.
(c) Any investigation pursuant to this Section shall be
conducted in a manner which will not interfere unreasonably with the
conduct of the business of the other party.
SECTION 5.5 CONFIDENTIALITY. Information concerning (a)
the Company and its Subsidiaries obtained by the Parent and Merger Sub
and (b) the Parent and its Subsidiaries obtained by the Company and
its Subsidiaries, in each case, through their respective officers,
employees, accountants, counsel and other representatives pursuant to
SECTION 5.4 or otherwise, shall be subject to the provisions of the
Confidentiality Agreement by and between the Company and Parent dated
June 1, 2000 (the "CONFIDENTIALITY AGREEMENT"), the provisions of
which shall continue through the earlier of the Effective Time or two
(2) years after the termination of this Agreement, subject to all
duties applicable to trade secrets.
SECTION 5.6 REASONABLE BEST EFFORTS.
(a) Prior to the Closing, upon the terms and subject to the
conditions of this Agreement, Parent, Merger Sub and the Company agree
to use their respective reasonable best efforts to take, or cause to
be taken, all actions, and to do, or cause to be done, all things
necessary, proper or advisable (subject to any applicable laws) to
consummate and make effective the Merger and the other Transactions as
promptly as practicable including, but not limited to (i) the
preparation and filing of all forms, registrations and notices
required to be filed to consummate the Merger and the other
Transactions and the taking of such actions as are necessary to obtain
any requisite approvals, consents, orders, exemptions or waivers by
any third party or Governmental Entity, and (ii) the satisfaction of
that party's and the other parties' conditions to Closing.
(b) Prior to the Closing, each party shall promptly consult
with the other parties hereto with respect to, provide any necessary
information with respect to, and provide the other parties (or their
respective counsel) with copies of, all filings made by such party
with any Governmental Entity or any other information supplied by such
party to a Governmental Entity in connection with this Agreement, the
Merger and the other Transactions. Each party hereto shall promptly
inform the other of any communication from any Governmental Entity
regarding any of the Transactions. If any party hereto or Affiliate
thereof receives a request for additional information or documentary
material from any such Governmental Entity with respect to any of the
Transactions, then such party shall endeavor in good faith to make, or
cause to be made, as soon as reasonably practicable and after
consultation with the other parties, an appropriate response in
compliance with such request. To the extent that transfers,
amendments or modifications of permits (including environmental
41
permits) are required as a result of the execution of this Agreement
or consummation of any of the Transactions, each party shall use its
reasonable best efforts to effect such transfers, amendments or
modifications.
(c) The Company and Parent shall file as soon as
practicable notifications under the HSR Act and respond as promptly as
practicable to any inquiries received from the Federal Trade
Commission and the Antitrust Division of the Department of Justice for
additional information or documentation and respond as promptly as
practicable to all inquiries and requests received from any State
Attorney General or other Governmental Entity in connection with
antitrust matters. Concurrently with the filing of notifications
under the HSR Act or as soon thereafter as practicable, the Company
and Parent shall each request early termination of the HSR Act waiting
period, and each shall use its reasonable best efforts to take such
action as may be required to cause the expiration of the waiting
period under the HSR Act or other Non-U.S. Monopoly Laws with respect
to the Transactions as promptly as practicable after the execution of
this Agreement. Each of the Company and the Parent shall use all
reasonable efforts to resolve such objections, if any, as may be
asserted by any Governmental Entity with respect to the Transactions
under the HSR Act, the Sherman Act, as amended, the Clayton Act, as
amended, the Federal Trade Commission Act, as amended, and any Non-
U.S. Monopoly Laws (collectively, "Antitrust Laws"). In connection
with the filings under the Antitrust Laws, if any administrative or
judicial action or proceeding is instituted (or threatened to be
instituted) challenging any Transaction as violative of any Antitrust
Law, each of Parent and the Company shall cooperate and use all
reasonable efforts to contest and resist any such action or proceeding
and to have vacated, lifted, reversed or overturned any Order, that is
in effect and that prohibits, prevents or restricts consummation of
the Merger or any other Transactions, unless either party, in good
faith, determines that litigation is not in their respective best
interests. Notwithstanding the provisions of the immediately
preceding sentence, it is expressly understood and agreed that neither
the Company nor Parent shall have any obligation to litigate or
contest any administrative or judicial action or proceeding or any
Order beyond the date of a ruling preliminarily enjoining the Merger
issued by a court of competent jurisdiction.
(d) Notwithstanding anything to the contrary in SECTION
5.6(a), (b) or (c), (i) neither Parent nor any of its Subsidiaries
shall be required to divest or hold separate any of their respective
businesses, product lines or assets, or to take or agree to take any
other action or agree to any limitation, that could reasonably be
expected to have a Parent Material Adverse Effect on Parent or on
Parent combined with the Company after the Effective Time, and (ii)
for purposes of this Section, neither the Company nor any of its
Subsidiaries shall be entitled to divest, nor shall it commit to
divest, any of their respective businesses, product lines or assets,
or to take or agree to take any other action or agree to any
42
limitation, that could reasonably be expected to have a Company
Material Adverse Effect on the Company or on the Company combined with
the Parent after the Effective Time.
SECTION 5.7 EMPLOYEE STOCK OPTIONS. (a) As of the
Effective Time (i) each outstanding Company Employee Stock Option, and
any other Company Option (together, the "Adjusted Options") shall be
exchanged for an option to purchase the number of Parent ADSs derived
by multiplying the number of Shares subject to such Company Employee
Stock Option or other Company Option immediately prior to the
Effective Time by the Exchange Ratio (rounded to the nearest whole
number of Parent ADSs), at an exercise price per share equal to the
exercise price for each such Share 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 Parent, where appropriate, and (ii) Parent shall assume the
obligations of the Company under the Company Stock Plans. The other
terms of each Adjusted Option, and the plans under which they were
issued, shall continue to apply in accordance with their terms,
subject to SECTION 5.7(d).
(b) As of the Effective Time, each outstanding award
(including restricted stock, deferred stock, phantom stock, stock
equivalents and stock units) ("COMPANY AWARD") under any Company Stock
Plan shall be exchanged for a similar instrument of Parent, 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, taken as a whole, on
the holder thereof, and the Parent 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 are issued, shall
continue to apply in accordance with their terms subject to SECTION
5.7(d).
(c) The Company and Parent agree that each of the Company
Stock Plans and Parent Stock Plans shall be amended, to the extent
necessary and appropriate to reflect the transactions contemplated by
this Agreement, including, but not limited to the exchange of Shares
held or to be awarded or paid pursuant to such benefit plans, programs
or arrangements into Parent ADSs on a basis consistent with the
transactions contemplated by this Agreement. The actions to be taken
by the Company and Parent pursuant to this SECTION 5.7(c) shall
include the submission by the Company or Parent of the amendments to
the Parent Stock Plans or the Company Stock Plans to their respective
shareholders, if such submission is determined to be necessary by
counsel to the Company or Parent after consultation with one another;
provided, however, that such approval shall not be a condition to the
consummation of the Merger.
(d) Notwithstanding anything in subsection (a) or (b) above
to the contrary, if the exchange or conversion of any Adjusted Option
or Company Award shall be prohibited or restricted under any
43
applicable law, rule or regulation applicable to Parent, Parent shall,
in lieu thereof, provide the holder at the Effective Time with
substantially the same economic benefit calculated as of the Effective
Time.
(e) Parent shall (i) reserve for issuance the number of
Parent Ordinary Shares underlying Parent ADSs that will become subject
to the benefit plans, programs and arrangements referred to in this
Section and (ii) issue or cause to be issued the appropriate number of
Parent Ordinary Shares to be represented by Parent ADSs 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, the
Parent shall prepare and file with the SEC a registration statement on
Form S-8 (or other appropriate form) registering a number of Parent
Ordinary Shares underlying Parent ADSs necessary to fulfill Parent's
obligations under this Section. For such period as the Parent shall
be a reporting company under the Exchange Act, Parent shall use its
reasonable best efforts to keep such registration statement effective
(and the current status of the prospectus required thereby to be
maintained) for as long as Adjusted Options or the Company Awards
remain outstanding.
(f) As soon as practicable after the Effective Time, Parent
shall deliver to the holders of Company Options and Company Awards
appropriate notices setting forth such holders' rights pursuant to the
Company Stock Plans and the agreements evidencing the grants of such
Company Options and Company Awards and that such Company Options and
Company Awards and the related agreements shall be assumed by Parent
and shall continue in effect on the same terms and conditions (subject
to the adjustments required by this SECTION 5.7 after giving effect to
the Merger).
SECTION 5.8 NO SOLICITATION BY THE COMPANY.
(a) Neither the Company nor any Company Subsidiary shall
(and the Company shall cause the officers, directors, employees,
representatives and agents of the Company and each Company Subsidiary,
including, but not limited to, investment bankers, attorneys and
accountants, not to), directly or indirectly, encourage, solicit,
participate in or initiate discussions or negotiations with, or
provide any information to, any Person or group (other than Parent,
any of its Affiliates or representatives) concerning any Company
Acquisition Proposal, except that nothing contained in this SECTION
5.8(a) or any other provision hereof shall prohibit the Company or the
Company Board of Directors from (i) taking and disclosing to the
Company's shareholders a position with respect to a tender or exchange
offer by a third party pursuant to Rules 14d-9 and 14e-2 promulgated
under the Exchange Act, or (ii) making any disclosure to the Company's
shareholders if, in the good faith judgment of the Board, after
consultation with outside counsel, failure to make such disclosures
would be contrary to its obligations under applicable law, provided
44
that the Company may not, except as permitted by SECTION 5.8(c),
withdraw or modify, or propose to withdraw or modify, its position
with respect to the Merger. Upon execution of this Agreement, the
Company will immediately cease any existing activities, discussions or
negotiations with any parties conducted heretofore with respect to any
of the foregoing. Notwithstanding the foregoing, prior to the
approval of the Merger and this Agreement at the Company Shareholders
Meeting (or, if the Merger has not been consummated within thirty (30)
days after the Company Shareholders Meeting (except by reason of the
Company's failure to fulfill any obligation under this Agreement),
such actions occur more than thirty (30) days after the Company
Shareholder Meeting), the Company may furnish information concerning
its business, properties or assets to any Person pursuant to
appropriate confidentiality agreements, and may negotiate and
participate in discussions and negotiations with such entity or group
concerning a Company Acquisition Proposal if such proposal is a
Company Superior Proposal not solicited in violation of this
Agreement. A Company Acquisition Proposal will be a Company Superior
Proposal only if:
(x) a Person has, on an unsolicited basis, submitted a
written proposal to the Company Board of Directors relating to
any Company Acquisition Proposal which the Board determines in
good faith (based on the advice of a financial adviser of
nationally recognized reputation) to be more favorable to the
Company and its shareholders and for which financing, to the
extent required, is then committed or which in the good faith
judgment of the Company Board of Directors, is reasonably capable
of being obtained by such Person; and
(y) the Company Board of Directors determines in good
faith, after consultation with outside counsel, that such action
is required to act in a manner consistent with the Board's
fiduciary duties to the Company's shareholders under applicable
law.
(b) The Company will immediately notify Parent, orally and
in writing, of the existence of any Company Acquisition Proposal, or
any modification of or amendment to any Company Acquisition Proposal,
or any request for nonpublic information relating to the Company or
any of its Subsidiaries in connection with a Company Acquisition
Proposal, and the Company will immediately communicate to Parent,
orally and in writing, the terms of any Company Acquisition Proposal,
modification or request which it may receive, the identity of the
party making such Company Acquisition Proposal, modification or
request, and whether the Company is providing or intends to provide
the Person making the Company Acquisition Proposal, modification or
request with access to information concerning the Company, and will
immediately provide to Parent copies of any written materials received
by the Company describing or stating such Company Acquisition
Proposal. The Company will promptly provide to Parent any non-public
information concerning the Company provided to any other party which
was not previously provided to Parent.
45
(c) Except as set forth in this SECTION 5.8(c), neither the
Company Board of Directors nor any committee thereof shall (i)
withdraw or modify, or propose to withdraw or modify, in a manner
adverse to Parent or Merger Sub, the approval or recommendation by
such Board of Directors or any such committee of this Agreement or the
Merger, (ii) approve or recommend or propose to approve or recommend,
any Company Acquisition Proposal, or (iii) enter into any agreement
with respect to any Company Acquisition Proposal. Notwithstanding the
foregoing, prior to the Effective Time, the Company Board of Directors
may withdraw or modify its approval or recommendation of this
Agreement or the Merger, approve or recommend a Company Superior
Proposal, or enter into an agreement with respect to a Company
Superior Proposal, and may terminate this Agreement in order to
concurrently enter into an agreement with respect to such Company
Superior Proposal, in each case at any time after the fifth (5th)
Business Day following delivery to Parent of written notice from the
Company advising Parent that the Company Board of Directors has
received a Company Superior Proposal which it intends to accept,
specifying the material terms and conditions of such Company Superior
Proposal, and identifying the Person making such Company Superior
Proposal, but only if the Company shall have caused its financial and
legal advisors to, if requested by the Parent, negotiate with Parent
to make such adjustments in the terms and conditions of this Agreement
as would enable the Company to proceed with the transactions
contemplated herein on such adjusted terms and, at the end of such
five (5) Business Day period, the Company Board of Directors, in good
faith continues reasonably to believe, that the Company Acquisition
Proposal constitutes a Company Superior Proposal.
SECTION 5.9 NO SOLICITATION BY THE PARENT. (a) Neither the
Parent nor any Parent Subsidiary shall (and the Parent shall cause the
officers, directors, employees, representatives and agents of the
Parent and each Parent Subsidiary, including, but not limited to,
investment bankers, attorneys and accountants, not to), directly or
indirectly, encourage, solicit, participate in or initiate discussions
or negotiations with, or provide any information to, any Person or
group (other than the Company, any of its Affiliates or
representatives) concerning any Parent Acquisition Proposal, except
that nothing contained in this SECTION 5.9(a) or any other provision
hereof shall prohibit the Parent or the Parent Board of Directors from
making any disclosure to the Parent's shareholders if, in the good
faith judgment of the Board, failure to so disclose would be
inconsistent with the best interests of its shareholders; PROVIDED
THAT the Parent may not, except as permitted by SECTION 5.9(c),
withdraw or modify, or propose to withdraw or modify, its position
with respect to the Merger. Upon execution of this Agreement, the
Parent will immediately cease any existing activities, discussions or
negotiations with any parties conducted heretofore with respect to any
of the foregoing. Notwithstanding the foregoing, prior to the
Effective Time, the Parent may furnish information concerning its
46
business, properties or assets to any Person pursuant to appropriate
confidentiality agreements, and may negotiate and participate in
discussions and negotiations with such entity or group concerning a
Parent Acquisition Proposal if such proposal is a Parent Inclusive
Superior Proposal. A Parent Acquisition Proposal will be a Parent
Superior Proposal only if a Person has, on an unsolicited basis,
submitted a written proposal to the Parent's Board of Directors
relating to any Parent Acquisition Proposal which the Board reasonably
determines in good faith (based on the advice of a financial adviser
of a recognized reputation) to recommend to Parent's shareholders. A
Parent Superior Proposal will be a Parent Inclusive Superior Proposal
only if such Parent Superior Proposal does not contemplate, provide
for, or require termination of this Agreement as a condition to such
proposal, and expressly permits (but need not require) Parent to
consummate the Merger without modification in any adverse respect of
this Agreement or the Transactions. If at any time a Parent Superior
Proposal becomes a Parent Exclusive Superior Proposal, Parent will
immediately cease any then existing activities, discussions or
negotiations with respect thereto until after the earlier of the
termination of the Merger Agreement, the Effective Time or such date
as any Parent Superior Proposal ceases to be a Parent Exclusive
Superior Proposal. For purposes of this Agreement, a Parent Exclusive
Superior Proposal means any Parent Superior Proposal that is not a
Parent Inclusive Superior Proposal
(b) The Parent will immediately notify the Company, orally
and in writing, of the existence of any Parent Acquisition Proposal,
or any modification of or amendment to any Parent Acquisition
Proposal, or any request for nonpublic information relating to the
Parent or any of its Subsidiaries in connection with a Parent
Acquisition Proposal and the Parent will immediately communicate to
the Company, orally and in writing, the terms of any Parent
Acquisition Proposal, modification or request which it may receive,
the identity of the party making such Parent Acquisition Proposal,
modification or request, and whether the Parent is providing or
intends to provide the Person making the Parent Acquisition Proposal,
modification or request with access to information concerning the
Parent, and will immediately provide to the Company copies of any
written materials received by Parent describing or stating such Parent
Acquisition Proposal. The Parent will promptly provide to the Company
any non-public information concerning the Parent provided to any other
party which was not previously provided to the Company.
(c) Except as set forth below in this SECTION 5.9(C),
neither the Parent's Board of Directors nor any committee thereof
shall (i) withdraw or modify, or propose to withdraw or modify, in a
manner adverse to the Company, the approval or recommendation by such
Board of Directors or any such committee of this Agreement or the
Merger, (ii) approve or recommend or propose to approve or recommend,
any Parent Acquisition Proposal, or (iii) enter into any agreement
with respect to any Parent Acquisition Proposal. Notwithstanding the
foregoing, prior to the Effective Time, (i) the Parent's Board of
47
Directors may withdraw or modify its approval or recommendation of
this Agreement or the Merger, approve or recommend a Parent Inclusive
Superior Proposal, or enter into an agreement with respect to a Parent
Inclusive Superior Proposal, and (ii) may terminate this Agreement in
order to concurrently enter into an agreement with respect to such
Parent Inclusive Superior Proposal, in each case at any time after the
fifth (5th) Business Day following delivery to the Company of written
notice from the Parent advising the Company that the Parent's Board of
Directors has received a Parent Inclusive Superior Proposal which it
intends to accept, specifying the terms and conditions of such Parent
Inclusive Superior Proposal, and identifying the Person making such
Parent Inclusive Superior Proposal. In the event the Company has not
advised Parent in writing that the Company objects to the Parent
Inclusive Superior Proposal prior to the expiration of the five (5)
Business Day period referred to above, the Company will be presumed to
have not objected to the Parent Inclusive Superior Proposal and Parent
may proceed to consummate the Merger and the Transactions and the
Parent Inclusive Superior Proposal. In the event the Company objects
to the Parent Inclusive Superior Proposal, the Parent shall within two
(2) Business Days thereafter either (A) abandon the Parent Inclusive
Superior Proposal and immediately provide written notice to the
Company of such abandonment, or (B) terminate this Agreement and pay
to the Company the Termination Fee and Expenses as provided in SECTION
7.3 .
SECTION 5.10 PUBLICITY. The initial press release with
respect to the execution of this Agreement shall be a joint press
release acceptable to Parent and the Company. Thereafter, until the
Effective Time or the date the Transactions are terminated or
abandoned pursuant to ARTICLE VII, neither the Company, Parent nor any
of their respective Affiliates shall issue or cause the publication of
any press release or other announcement with respect to the Merger,
this Agreement or the other Transactions without prior written
approval of the other party, except for references to earlier releases
or announcements and except as may be required by law or by any
listing agreement with a national securities exchange or trading
market.
SECTION 5.11 NOTIFICATION OF CERTAIN MATTERS. Each of the
Company and the Parent shall give prompt notice to the other of (i)
the occurrence or non-occurrence of any event, the occurrence or non-
occurrence of which would cause any representation or warranty
contained in this Agreement to be untrue or inaccurate in any material
respect at or prior to the Effective Time and (ii) any material
failure of such party to comply with or satisfy any covenant,
condition or agreement to be complied with or satisfied by it
hereunder; PROVIDED, HOWEVER, that the delivery of any notice pursuant
to this SECTION 5.11 shall not limit or otherwise affect the remedies
available hereunder to the party receiving such notice.
SECTION 5.12 STATE TAKEOVER LAWS. If any state takeover
statute other than Chapter 7A and Chapter 7B of the MBCA becomes or is
48
deemed to become applicable to the Agreement, the acquisition of
Shares or the related voting power pursuant to the Merger or the other
Transactions, the Company and the Parent shall take all action
necessary to render such statute inapplicable to all of the foregoing.
SECTION 5.13 TAX AND ACCOUNTING TREATMENT. (a) Prior to
the Effective Time, each party shall use its reasonable best efforts
to cause the Merger to qualify as a Section 368 Reorganization and to
qualify for "pooling of interests" accounting treatment under Finnish
GAAP, and will not take any action reasonably likely to cause the
Merger not so to qualify.
(b) Each of the Parent and the Company shall cooperate with
each other in obtaining the opinion of Schiff Hardin & Waite, 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 the Company and
the Parent shall deliver to Schiff Hardin & Waite customary
representation letters in form and substance reasonably satisfactory
to such counsel, and the Company shall obtain any representation
letters from appropriate shareholders and shall deliver any such
letters obtained to Schiff Hardin & Waite (the representation letters
referred to in this sentence are collectively referred to as the "TAX
CERTIFICATES").
(c) The Company shall prepare and timely file all reports,
forms, returns, or other information required to be filed by it in
order for the Merger to qualify for an exception to the general rule
of Section 367(a)(1) of the Code. After the Merger, Parent shall
cause the Surviving Corporation to prepare and timely file (to the
extent legally entitled to do so) all reports, forms, returns, or
other information required to be filed by the Company after the Merger
in order for the Merger to qualify for an exception to the general
rule of Section 367(a)(1) of the Code.
(d) After the Merger, Parent agrees that it shall provide
the information required to be provided by it under Treasury
Regulation Section 1.367(a)-8(b) for the applicable period in order to
ensure that any holder of Company Common Stock that is a five-percent
transferee shareholder (as defined in Treasury Regulation Section
1.367(a)-3(c)(5)(ii)) that filed a gain recognition agreement (as
defined in Treasury Regulation Section 1.367(a)-(8)) with respect to
the Merger is entitled to non-recognition treatment for U.S. federal
income tax purposes.
(e) Parent shall not take, and, after the Merger, Parent
shall cause the Company not to take, any position with respect to
Taxes that is inconsistent with the treatment of the Merger as a
Section 368 Reorganization.
SECTION 5.14 GOVERNANCE MATTERS. Prior to the Effective
Time, the Board of Directors of Parent shall take all action necessary
49
to appoint A. Christian Schauer to serve as a member of such Board of
Directors, effective as of the Effective time, until the first annual
meeting of Parent Shareholders following the Effective Time.
SECTION 5.15 MERGER SUB COMPLIANCE. Parent shall cause
Merger Sub to comply with all of its obligations under or related to
this Agreement.
SECTION 5.16 EMPLOYEE BENEFITS. (a) As of the Effective
Time, and subject to subsection (b) Parent shall either (i) cause the
Company Plans (as defined in SECTION 3.12 of this Agreement) in effect
at the date of this Agreement, to remain in effect as of the Effective
Time, or (ii) maintain employee benefit plans which, in the aggregate,
provide a substantially similar level of benefits as those provided
under comparable Company Plans with respect to employees of the
Company covered under such plans as of the date of this Agreement;
PROVIDED, HOWEVER, that the foregoing shall not apply to any
provisions of any Company Plan under which employees may receive, or
under which employee benefits are based on, Company Common Stock or to
the extent inconsistent with any employment agreement with any
employee.
(b) Except as set forth in the Employment Agreements to be
entered into with A. Christian Schauer, Daniel B. Canavan, and Victor
V. Valentine, Jr., Parent has no current plans to institute any
salary reduction program applicable to the employees of the Surviving
Corporation. From and after the Effective Time, Parent shall, or
shall cause the Surviving Corporation to, provide to each continuing
employee of the Company and each Company Subsidiary annual salary
(excluding any cash bonus which shall be governed by the next sentence
hereof) in an amount not less than the annual salary such employee was
entitled to receive from the Company or Company Subsidiary for the
twelve month period ended June 30, 2000, plus such annualized
increases in such compensation (if any) instituted prior to the
Effective Time, in good faith, in the ordinary course of business
consistent with past practices, except, in no event shall such
increases exceed ten percent (10%) of an employee's cash salary
payable during the twelve month period ended June 30, 2000. Parent
shall, or shall cause the Surviving Corporation to, provide to each
continuing employee of the Company and each Company Subsidiary
payments under the Company bonus and incentive Plans with respect to
the fiscal year ending March 31, 2001, based on the greater of (A) the
bonus and incentive compensation to which such employee would have
been entitled pursuant to the Company bonus and incentive Plans in
effect immediately prior to the Effective Time; or (B) the bonus and
incentive compensation to which such employee would be entitled
pursuant to any alternative bonus plan as to which such employee may
become entitled to participate, at the option of the Parent, after the
Effective Time. Notwithstanding the foregoing, nothing in this
Agreement shall in any way restrict or limit Parent or the Surviving
Corporation with respect to their ability to terminate one or more of
the employees of the Surviving Corporation from and after the
50
Effective Date or be deemed in any way to create an employment
contract or condition of employment.
(c) Employees of the Company and each Company Subsidiary as
of the Effective Time shall be credited with service accrued prior to
the Effective Time with the Company and any Company Subsidiary for
purposes of determining eligibility to participate, vesting,
eligibility for early retirement and vacation and paid time off
entitlement under any employee benefit plan or arrangement established
or maintained by Parent or the Surviving Corporation and made
available to such employees.
SECTION 5.17 INDEMNIFICATION. (a) From and after the
Effective Time, the Parent 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") 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 each case,
until the expiration of the applicable statute of limitations. In the
event of any such loss, expense, claim, damage or liability (whether
or not arising before the Effective Time), (i) the Parent shall,
subject to the limitations set forth herein, pay the reasonable fees
and expenses of counsel selected by the Indemnified Parties, which
counsel shall be reasonably satisfactory to the Parent, promptly after
statements therefor are received and otherwise advance to such
Indemnified Party upon request reimbursement of documented expenses
reasonably incurred, (ii) the Parent 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 bylaws shall be made by independent counsel mutually
acceptable to the Parent and the Indemnified Party; PROVIDED, HOWEVER,
that the Parent 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, the Parent
shall reimburse such Indemnified Party for all of its expenses in
51
bringing and pursuing such action. Each Indemnified Party shall be
entitled to the advancement of expenses to the full extent
contemplated in this SECTION 5.17(a) in connection with any such
action, provided that the person to whom expenses are advanced
provides an undertaking to repay such advance if it is ultimately
determined that such person is not entitled to indemnification. The
Indemnified Parties, as a group, may retain only one law firm to
represent them in each applicable jurisdiction with respect to any
single action unless there is, under applicable standards of
professional conduct, a conflict on any significant issue between the
positions of any two or more Indemnified Parties, in which case each
Indemnified Person with respect to whom such a conflict exists (or
group of such Indemnified Persons who, among them, have no such
conflict) may retain one separate law firm in each applicable
jurisdiction. In addition, from and after the Effective Time,
directors and officers of the Company who become directors or officers
of the Parent will be entitled to indemnification under the Parent's
Charter Documents, 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 the Parent.
(b) In the event that the Parent or any of its successors
or assigns (i) consolidates with or merges into any other person and
is not the continuing or surviving 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 the Parent assume the obligations set forth
in this SECTION 5.17.
(c) For six years after the Effective Time, the Parent
shall maintain in effect (x) the Company's current directors' and
officers' liability insurance or other directors' and officers'
liability insurance with a reputable and financially sound insurer
that provides coverage that is no less favorable than the Company's
current policy, in each case, 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,
and (y) 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 5.17(a)
with coverages and in amounts no less favorable than those of such
policy in effect on the date hereof; PROVIDED, that in no event shall
the Parent be required to pay aggregate premiums for insurance under
this SECTION 5.17(c) in excess of 150% of the aggregate premiums paid
by the Company for its year ended March 31, 2000 for such insurance;
PROVIDED, FURTHER, that if the annual premiums of such insurance
coverage exceed such amount, the Parent shall be obligated to obtain a
policy with the best coverage reasonably available, in the reasonable
52
judgment of the Board of Directors of the Parent, for a cost up to but
not exceeding such amount.
(d) The provisions of this SECTION 5.17 (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 5.18 CONTROL OF OTHER PARTY'S BUSINESS. Nothing
contained in this Agreement shall give the Parent, 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 the Parent's operations prior to the Effective Time. Prior
to the Effective Time, each of the Parent and the Company shall
exercise, consistent with the terms and conditions of this Agreement,
complete control and supervision over its respective operations.
SECTION 5.19 HSE LISTING AND NASDAQ LISTING; EXCHANGE ACT
REPORTS. The Parent shall use its reasonable best efforts (i) to
cause the Parent Ordinary Shares underlying the Parent ADSs issuable
to the Company's shareholders as contemplated by this Agreement to be
approved for listing on the HSE and (ii) to cause the Parent ADSs
issuable to the Company's shareholders as contemplated by this
Agreement to be approved for listing on the Nasdaq National Market, in
each case, prior to the Closing Date. The Parent shall use its best
efforts to keep the Parent ADSs listed on the Nasdaq National Market
(or, if not then eligible for listing thereon, on the Nasdaq SmallCap
Market, or, if then eligible for listing thereon), for not less than
eighteen months following the Closing Date, and shall, during such
period, use its best efforts to file all reports required under the
Exchange Act.
SECTION 5.20 NO SERIES K SHARES. The Parent shall not, at
any time after the Closing, issue any Series K Shares.
ARTICLE VI
CONDITIONS
SECTION 6.1 CONDITIONS PRECEDENT TO OBLIGATIONS OF PARENT
AND MERGER SUB. The respective obligations of Parent and Merger Sub
to effect the Merger shall be subject to the satisfaction or waiver at
or prior to the Effective Time, of each of the following conditions:
(a) SHAREHOLDER APPROVAL. Each of the Company Shareholder
Approval and the Parent Shareholder Approval shall have been obtained;
(b) ANTITRUST APPROVALS. All waiting periods (and any
extension thereof) under the HSR Act and the Non-U.S. Monopoly Laws
applicable to the Merger shall have expired or been terminated, and
53
all consents, waivers, approvals and authorizations required to be
obtained, and all filings or notices required to be made by the
parties hereto with any Governmental Entity pursuant to the HSR Act
and the Non-U.S. Monopoly Laws shall have been obtained or made;
(c) INJUNCTION. No preliminary or permanent injunction or
other order shall have been issued by any federal, state or foreign
court or by any federal, state or foreign governmental or regulatory
agency, body or authority and be in effect at the Effective Time which
prohibits, restrains, restricts or enjoins the consummation of the
Merger, provided, however, that, in the case of an injunction or other
order, each of the parties shall have used reasonable best efforts to
prevent the entry of any such injunction or other order and to appeal
as promptly as possible any such injunction or other order that may
have been entered;
(d) STATUTES. No federal, state or foreign statute, rule,
regulation, executive order, decree or order of any kind shall have
been enacted, entered, promulgated or enforced by any court or
governmental authority which prohibits, restrains, restricts or
enjoins the consummation of the Merger or has the effect of making the
Merger illegal;
(e) NO MATERIAL ADVERSE EFFECT. Since the date hereof, no
event shall have occurred that has had, or could reasonably be
expected to have, individually or in the aggregate, a Company Material
Adverse Effect;
(f) HSE LISTING AND NASDAQ LISTING. The Parent Ordinary
Shares to be issued in the Merger shall have been authorized for
listing on the HSE following the due issuance thereof, and the Parent
ADSs representing such Parent Ordinary Shares shall have been approved
for quotation on the Nasdaq National Market;
(g) POOLING LETTER. Parent shall have received a letter
its auditors, Idman & Vilen Oy, dated as of the Closing Date and
addressed to Parent and the Company stating that such firm believes
that the Merger should be treated as a "pooling of interests" in
conformity with Finnish GAAP and such letter shall not have been
withdrawn or modified in any material respect;
(h) REGISTRATION STATEMENT. Each of the Registration
Statement and the Form F-6 shall have become effective in accordance
with the provisions of the Securities Act, no stop order suspending
the effectiveness of either the Registration Statement or the Form F-6
shall have been issued by the SEC and no proceedings for that purpose
shall have been initiated by the SEC and not concluded or withdrawn;
(i) REPRESENTATIONS AND WARRANTIES TRUE. (A) The
representations and warranties of the Company contained herein that
are qualified by reference to a Company Material Adverse Effect shall
be true and correct when made and on the Closing Date (except for
54
representations and warranties made as of a specified date, which need
be true and correct only as of the specified date), as if made on and
as of such date, (B) all other representations and warranties of the
Company shall have been true and correct when made and on and as of
the Closing Date, except for representations and warranties made as of
a specified date, which need be true and correct only as of the
specified date, as if made on and as of such date, in each case, where
the failure of such representations and warranties to be true or
correct could not reasonably be expected to, individually or in the
aggregate, result in a Company Material Adverse Effect, and (C) the
failure of any representations and warranties of the Company contained
in this Agreement to be true and correct (disregarding for purposes of
this SECTION 6.1(i)(C), all qualifications therein which reference a
Company Material Adverse Effect) shall not have, or be reasonably
likely to have, in the aggregate, a Company Material Adverse Effect;
(j) PERFORMANCE. The Company shall have performed or
complied in all material respects with all material agreements,
covenants and undertakings (or, if any such agreement, covenant or
undertaking is qualified as to materiality then the Company shall have
performed or complied with such agreement or covenant or undertaking
in all respects in accordance with its terms) contained herein
required to be performed or complied with by it prior to or at the
time of the Closing;
(k) COMPLIANCE CERTIFICATE. The Company shall have
delivered to Parent a certificate, dated the date of the Closing,
signed by the Chief Executive Officer or Chief Financial Officer of
the Company, certifying as to the fulfillment of the conditions
specified in SECTION 6.1(i) and SECTION 6.1(j);
(l) LOCK-UP AGREEMENT. Parent and each of A. Christian
Schauer, Daniel B. Canavan and Victor V. Valentine, Jr. shall have
entered into the Lock-Up Agreement;
(m) LIQUIDITY AND REGISTRATION RIGHTS AGREEMENT. Parent
and each of the Major Shareholders shall have entered into the
Liquidity and Registration Rights Agreement in substantially the form
set forth as EXHIBIT 6.2(m) attached hereto; and
(n) CONSENTS OBTAINED. All material consents, waivers,
approvals, authorizations or orders required to be obtained, and all
filings required to be made by the Company for the authorization,
execution and delivery of this Agreement and the consummation by it of
the transactions contemplated hereby shall have been obtained and made
by the Company, except where the failure to receive such consents,
waivers, approvals, authorizations or orders would not, individually
or in the aggregate with all other such failures, have a Company
Material Adverse Effect.
SECTION 6.2 CONDITIONS PRECEDENT TO OBLIGATIONS OF THE
COMPANY. The obligations of the Company to effect the Merger shall be
55
subject to the satisfaction or waiver at or prior to the Effective
Time, of each of the following conditions:
(a) SHAREHOLDER APPROVAL. Each of the Company Shareholder
Approval and the Parent Shareholder Approval shall have been obtained;
(b) ANTITRUST APPROVALS. All waiting periods (and any
extension thereof) under the HSR Act and the Non-U.S. Monopoly Laws
applicable to the Merger shall have expired or been terminated, and
all consents, waivers, approvals and authorizations required to be
obtained, and all filings or notices required to be made by the
parties hereto with any Governmental Entity pursuant to the HSR Act
and the Non-U.S. Monopoly Laws shall have been obtained or made;
(c) INJUNCTION. No preliminary or permanent injunction or
other order shall have been issued by any federal, state or foreign
court or by any federal, state or foreign governmental or regulatory
agency, body or authority and be in effect at the Effective Time which
prohibits, restrains, restricts or enjoins the consummation of the
Merger, provided, however, that, in the case of an injunction or other
order, each of the parties shall have used reasonable best efforts to
prevent the entry of any such injunction or other order and to appeal
as promptly as possible any such injunction or other order that may
have been entered;
(d) STATUTES. No federal, state or foreign statute, rule,
regulation, executive order, decree or order of any kind shall have
been enacted, entered, promulgated or enforced by any court or
governmental authority which prohibits, restrains, restricts or
enjoins the consummation of the Merger or has the effect of making the
Merger illegal;
(e) NO MATERIAL ADVERSE EFFECT. Since the date hereof, no
event shall have occurred that has had, or could reasonably be
expected to have, individually or in the aggregate, a Parent Material
Adverse Effect;
(f) HSE LISTING AND NASDAQ LISTING. The Parent Ordinary
Shares to be issued in the Merger shall have been authorized for
listing on the HSE following the due issuance thereof, and the Parent
ADSs representing such Parent Ordinary Shares shall have been approved
for quotation on the Nasdaq National Market;
(g) POOLING LETTERS. The Company shall have received a
letter from Parent's auditors, Idmar & Vilen Oy, dated as of the
Closing Date and addressed to Parent and the Company stating that such
firm believes that the Merger should be treated as a "pooling of
interests" in conformity with Finnish GAAP and such letter shall not
have been withdrawn or modified in any material respect;
(h) REGISTRATION STATEMENT. Each of the Registration
Statement and the Form F-6 shall have become effective in accordance
56
with the provisions of the Securities Act, no stop order suspending
the effectiveness of either the Registration Statement or the Form F-6
shall have been issued by the SEC and no proceedings for that purpose
shall have been initiated by the SEC and not concluded or withdrawn;
(i) TAX OPINION. The Company shall have received an
opinion of Schiff Hardin & Waite in form and substance reasonably
satisfactory to the Company on the basis of certain facts,
representations and assumptions set forth in such opinion, dated as of
the Closing Date, to the effect that (i) the Merger will be treated
for U.S. federal income tax purposes as a Section 368 Reorganization
and (ii) each of Parent and the Company will be a party to the
reorganization within the meaning of Section 368(b) of the Code. In
rendering such opinion, such counsel shall be entitled to rely upon
the Tax Certificates;
(j) REPRESENTATIONS AND WARRANTIES TRUE. (A) The
representations and warranties of the Parent contained herein that are
qualified by reference to a Parent Material Adverse Effect shall be
true and correct when made and on the Closing Date (except for
representations and warranties made as of a specified date, which need
be true and correct only as of the specified date), as if made on and
as of such date, (B) all other representations and warranties of the
Parent shall have been true and correct when made and on and as of the
Closing Date, except for representations and warranties made as of a
specified date, which need be true and correct only as of the
specified date, as if made on and as of such date, in each case, where
the failure of such representations and warranties to be true or
correct could not reasonably be expected to, individually or in the
aggregate, result in a Parent Material Adverse Effect, and (C) the
failure of any representations and warranties of the Parent contained
in this Agreement to be true and correct disregarding for purposes of
this SECTION 6.2(j)(C), all qualifications therein which reference a
Parent Material Adverse Effect), shall not have, or be reasonably
likely to have, in the aggregate, a Parent Material Adverse Effect;
(k) PERFORMANCE. Parent shall have performed or complied
in all material respects with all material agreements, undertakings
and covenants (or, if any such agreement, covenant or undertaking is
qualified as to materiality then the Company shall have performed or
complied with such agreement or covenant or undertaking in all
respects) contained herein required to be performed or complied with
by it prior to or at the time of the Closing;
(l) COMPLIANCE CERTIFICATE. Parent shall have delivered to
the Company a certificate, dated the date of the Closing, signed by
the Chief Executive Officer or Chief Financial Officer of Parent,
certifying as to the fulfillment of the conditions specified in
SECTION 6.2(j) and SECTION 6.2(k);
(m) LIQUIDITY AND REGISTRATION RIGHTS AGREEMENT. Parent
and each of the Major Company Shareholders shall have entered into the
57
Liquidity and Registration Rights Agreement in substantially the form
set forth as Exhibit 6.2(m) attached hereto;
(n) CONSENTS OBTAINED. All material consents, waivers,
approvals, authorizations or orders required to be obtained, and all
filings required to be made, by Parent or Merger Sub for the
authorization, execution and delivery of this Agreement and the
consummation by them of the transactions contemplated hereby shall
have been obtained and made by Parent or Merger Sub, except where the
failure to receive such consents, waivers, approvals, authorizations
or orders would not, individually or in the aggregate with all other
such failures, have a Parent Material Adverse Effect; and
(o) LOCK-UP AGREEMENT. Parent and each of Jalo Paananen,
Elmar Paananen, Annamari Jukko and Topi Paananen shall have entered
into the Lock-Up Agreement.
SECTION 6.3 FRUSTRATION OF CLOSING CONDITIONS. Neither the
Parent nor the Company may rely on the failure of any condition set
forth in SECTION 6.1 or SECTION 6.2, 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, as required by and subject to SECTION 5.6.
ARTICLE VII
TERMINATION
SECTION 7.1 TERMINATION. This Agreement may be terminated
at any time prior to the Effective Time, whether before or after the
Company Shareholder Approval or the Parent Shareholder Approval:
(a) by mutual written consent duly authorized by the
respective Boards of Directors of Parent and the Company; or
(b) by Parent:
(i) if, prior to the Effective Time, the Company has
breached in any material respect any representation, warranty,
covenant or other agreement contained in this Agreement, which (A)
would give rise to the failure of a condition set forth in clause (i)
or (j) of SECTION 6.1, (ii) which is not cured within thirty (30) days
after written notice thereof or is incapable of being cured by the
Company, or (B) has not been waived by Parent pursuant to the
provisions hereof;
(ii) if the Company willfully and materially breaches its
obligations under SECTION 5.8;
(iii) if at the Company Shareholder Meeting (including
any adjournment or postponement thereof) the Company Shareholder
Approval shall not have been obtained; or
58
(iv) in accordance with SECTION 5.9(c); PROVIDED, that, in
order for the termination of this Agreement pursuant to this SECTION
7.1(b)(iv) to be deemed effective, Parent shall have complied with all
provisions contained in SECTION 5.9 and SECTION 7.3, including the
payment of the Termination Fee and Expenses as provided therein.
(c) by the Company:
(i) if, prior to the Effective Time, Parent or Merger
Sub has breached in any material respect any representation, warranty,
covenant or other agreement contained in this Agreement which (A)
would give rise to the failure of a condition set forth in clauses
(j) and (k) of SECTION 6.2, which is not cured within thirty (30)
days after written notice thereof or is incapable of being cured by
the Parent; or (B) has not been waived by the Company pursuant to the
provisions hereof;
(ii) if the Parent willfully and materially breaches its
obligations under SECTION 5.9;
(iii) if at the Parent Shareholder Meeting (including
any adjournment or postponement thereof), the Parent Shareholder
Approval shall not have been obtained; or
(iv) in accordance with SECTION 5.8(c); PROVIDED, that,
in order for the termination of this Agreement pursuant to this
SECTION 7.1(c)(iv), to be deemed effective, the Company shall have
complied with all provisions contained in SECTION 5.8 and SECTION 7.3,
including the payment of the Termination Fee and Expenses as provided
therein.
(d) by either Parent or the Company:
(i) if the Effective Time of the Merger has not
occurred on or prior toFebruary 28, 2001 (the "TERMINATION DATE");
provided, that the right to terminate this Agreement pursuant to this
clause shall not be available to any party whose failure to fulfill
any material obligation of this Agreement or other material breach of
this Agreement has been the cause of, or resulted in, the failure of
the Effective Time of the Merger to have occurred on or prior to the
aforesaid date; or
(ii) if any court of competent jurisdiction or any
Governmental Entity having authority with respect thereto shall have
issued an order, decree or ruling or taken any other action
permanently restricting, enjoining, restraining or otherwise
prohibiting the Transactions and such order, decree, ruling or other
action shall have become final and non-appealable and prior to such
termination and subject to the exclusions under SECTION 5.6(c), the
parties shall have used reasonable best efforts to resist, resolve, or
lift, as applicable, such judgment, injunction, order or decree.
59
SECTION 7.2 EFFECT OF TERMINATION. In the event of
termination of this Agreement by Parent or the Company, as provided in
SECTION 7.1, this Agreement shall forthwith become void and there
shall be no liability or obligation hereunder on the part of the
Company, Parent or Merger Sub or their respective officers or
directors (except as set forth in SECTION 3.21, SECTION 4.20, SECTION
5.5, this SECTION 7.2 and SECTIONS 7.3, 9.3, 9.5, 9.6, 9.7, 9.8, 9.9
and SECTION 9.10, which shall survive the termination); provided,
however, that nothing contained in this SECTION 7.2 or in SECTION 7.3
shall relieve any party hereto 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 PAYMENT OF CERTAIN FEES AND EXPENSES. (a)
Except as set forth in this SECTION 7.3, all fees and expenses
incurred by Parent and/or Merger Sub in connection with this Agreement
and the Transactions contemplated hereby shall be paid by Parent
and/or Merger Sub, and all fees and expenses incurred by the Company
in connection with this Agreement and the Transactions contemplated
hereby shall be paid by the Company, in each case, whether or not the
Merger is consummated; PROVIDED, HOWEVER, that Parent and the Company
shall share equally all SEC filing fees and printing expenses incurred
in connection with the printing and filing of the Proxy Statement
(including any preliminary materials related thereto), the
Registration Statement, and, in each case, any amendments or
supplements thereto.
(b) If this Agreement is terminated by Parent in accordance
with SECTION 7.1(b)(i) as a result of a willful breach by the Company,
or is terminated by Parent in accordance with SECTION 7.1(b)(ii),
SECTION 7.1(b)(iii), or SECTION 7.1(b)(iv), then the Company shall pay
to Parent the Termination Fee and its Expenses. If this Agreement is
terminated by Parent in accordance with SECTION 7.1(b)(i) hereof as a
result of a non-willful breach by Company, then the Company shall pay
to Parent its Expenses.
(c) If this Agreement is terminated by the Company pursuant
to SECTION 7.1(c)(i) as a result of a willful breach by Parent or is
terminated by the Company in accordance with SECTION 7.1(c)(ii),
SECTION 7.1(c)(iii) or SECTION 7.1(c)(iv), then Parent shall pay to
the Company the Termination Fee and its Expenses. If this Agreement
is terminated by the Company in accordance with SECTION 7.1(c)(i) as a
result of a non-willful breach by Parent, then Parent shall pay the
Company its Expenses.
(d) The parties acknowledge that the agreements contained
in this SECTION 7.3(b) and SECTION 7.3(c) are an integral part of the
transactions contemplated by this Agreement, and that, without these
agreements, the Company and Parent would not enter into this
Agreement.
60
(e) Any payment of the Termination Fee and/or the
Expenses pursuant to this SECTION 7.3 shall be made:
in the case of a termination pursuant to SECTION 7.1(b)(i),
SECTION 7.1(b)(ii), SECTION 7.1(b)(iii), SECTION 7.1(c)(i) ,
SECTION 7.1(c)(ii) or SECTION 7.1(c)(iii), within one Business
Day after termination of this Agreement,
in the case of a termination pursuant to Section 7.1(b)(iv),
$5.0 million of the Termination Fee will be paid within one
Business Day after termination of this Agreement, and, if a
Parent Inclusive Superior Proposal is consummated within one year
from the date of such termination, the remaining $1.4 million of
the Termination Fee, and the Expenses of the Company, will be
paid upon the consummation of the Company Superior Proposal,
in the case of a termination pursuant to SECTION
7.1(c)(iv), $5 million of the Termination Fee will be paid
within one Business Day after termination of this Agreement,
and, if a Company Proposal is consummated within one (1)
year from the date of such termination, the remaining $1.4
million of the Termination Fee, and the Expenses of the
Parent and Merger Sub, will be paid upon the consummation of
the Company Superior Proposal.
(f) If either party fails to pay to (or reimburse) the
other party any fee or expense due hereunder (including the
Termination Fee), such party shall pay the costs and expenses
(including legal fees and expenses) in connection with any action,
including the filing of any lawsuit or other legal action, taken to
collect payment, together with interest on the amount of any unpaid
fee and/or expense at the publicly announced prime rate of Citibank,
N.A. from the date such fee was required to be paid to the date it is
paid.
ARTICLE VIII
DEFINITIONS AND INTERPRETATION
SECTION 8.1 DEFINITIONS. For all purposes of this
Agreement, except as otherwise expressly provided or unless the
context clearly requires otherwise:
"ADJUSTED OPTION" shall have the meaning set forth in
Section 5.7(a).
"AFFILIATE" shall have the meaning set forth in Rule 12b-2
of the Exchange Act.
"AGREEMENT" or "THIS AGREEMENT" shall mean this Agreement
and Plan of Merger, together with the Exhibits hereto and the Parent
Disclosure Schedule and the Company Disclosure Schedule.
61
"ANTITRUST LAWS" shall have the meaning set forth in SECTION
5.6(c).
"BALANCE SHEET" shall mean the most recent audited balance
sheet of the Company and its consolidated subsidiaries included in the
Company Financial Statements.
"BALANCE SHEET DATE" shall mean the date of the Balance
Sheet.
"BUSINESS DAY" means a day other than a Saturday, a Sunday
or a day on which banks in New York, New York or Helsinki, Finland are
permitted or required to close.
"CERTIFICATE" shall have the meaning set forth in SECTION
2.1(c).
"CHARTER DOCUMENTS" means as to any Person the articles of
incorporation and bylaws or comparable organizational documents.
"CLOSING" shall mean the closing referred to in SECTION 1.3.
"CLOSING DATE" shall mean the date on which the Closing
occurs.
"CODE" shall have the meaning set forth in the fifth
"whereas" clause of this Agreement.
"COMPANY" shall have the meaning set forth in the first
paragraph of this Agreement.
"COMPANY ACQUISITION PROPOSAL" shall mean any proposal or
offer to acquire not less than 100% of the business or properties of
the Company or a corresponding portion of the capital stock of the
Company, whether by merger, tender offer, exchange offer, sale of
securities or assets, or similar transactions involving the Company or
any Subsidiary, division or operating or principal business unit of
the Company.
"COMPANY AGREEMENTS" shall have the meaning set forth in
SECTION 3.22.
"COMPANY AWARD" shall have the meaning set forth in SECTION
5.7(b).
"COMPANY BOARD OF DIRECTORS" shall mean the board of
directors of the Company.
"COMPANY DISCLOSURE SCHEDULE" shall mean the disclosure
schedule of even date herewith prepared by the Company and delivered
to Parent simultaneously with the execution hereof.
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"COMPANY FINANCIAL STATEMENTS" shall mean the financial
statements (including any related notes thereto) of the Company
included in the Company SEC Documents.
"COMPANY INTELLECTUAL PROPERTY" shall mean all Intellectual
Property that is necessary to conduct the business of the Company and
its Subsidiaries as presently conducted.
"COMPANY MATERIAL ADVERSE EFFECT" shall mean any event,
change, occurrence, effect, fact or circumstance that is or may
reasonably be expected to be materially adverse to (i) the ability of
the Company to perform its obligations under this Agreement or to
consummate the Transactions, or (ii) the business, tangible assets,
liabilities, results of operations or financial condition of the
Company and its Subsidiaries, taken as a whole, other than any event,
change, occurrence, effect, fact or circumstance (A) relating to the
economy or securities markets of the United States or any other region
in general, (B) relating to changes in conditions generally applicable
to the industries in which the Company and its Subsidiaries are
involved, (C) resulting from entering into this Agreement or the
consummation of the Transactions or the announcement thereof, or (D)
relating to its business, financial condition or results of operations
that has been disclosed in writing to the other party prior to the
date of this Agreement.
"COMPANY OPTION" shall mean an option or other right to
purchase Shares which has been granted by the Company and which is
outstanding at the Effective Time.
"COMPANY RECOMMENDATION" shall have the meaning set forth in
SECTION 5.3(a).
"COMPANY SEC DOCUMENTS" shall mean each form, report,
schedule, statement and other document required to be filed by the
Company since March 31, 1999 under the Exchange Act or the Securities
Act.
"COMPANY SHAREHOLDER AGREEMENT" shall mean the agreement,
dated as of the date hereof, among the Major Company Shareholders,
Parent and Merger Sub, pursuant to which each Major Company
Shareholder has granted Parent a proxy with respect to the voting of
all of the Shares held by the Major Company Shareholders upon the
terms and subject to the conditions set forth therein.
"COMPANY SHAREHOLDER MEETING" shall have the meaning set
forth in SECTION 5.3(a).
"COMPANY STOCK PLANS" shall have the meaning set forth in
SECTION 3.3(a).
63
"COMPANY SUBSIDIARY" shall mean each Person which is a
Subsidiary of the Company.
"COMPANY SUPERIOR PROPOSAL" shall mean an Acquisition
Proposal which satisfies both subsection (x) and subsection (y) of
SECTION 5.8(a).
"COMPANY'S KNOWLEDGE" or "best knowledge of the Company"
shall mean the actual knowledge of A. Christian Schauer, Daniel B.
Canavan and Victor V. Valentine, Jr.
"CONFIDENTIALITY AGREEMENT" shall have the meaning set forth
in SECTION 5.5.
"CONVERSION AGREEMENT" shall have the meaning set forth in
SECTION 1.6(c).
"COPYRIGHTS" shall mean U.S. and foreign registered and
unregistered copyrights (including, but not limited to, those in
computer software and databases), rights of publicity and all
registrations and applications to register the same.
"DEPOSIT AGREEMENT" shall mean the Deposit Agreement to be
entered into among Parent, and either Citibank N.A., The Bank of New
York, or Morgan Guaranty Trust Company, as Parent may select, as
depositary, and all holders and beneficial owners from time to time of
the Parent ADSs, which agreement shall be reasonably acceptable to the
Company.
"DGCL" shall mean the Delaware General Corporation Law, as
amended.
"EFFECTIVE TIME" shall have the meaning set forth in SECTION
1.2.
"EMPLOYMENT AGREEMENTS" shall have the meaning set forth in
SECTION 1.6.
"ENVIRONMENTAL CLAIM" shall mean any claim, action,
investigation or notice by any person or entity alleging potential
liability for investigatory, cleanup or governmental response costs,
or natural resources or property damages relating to (i) the presence,
or release into the environment, of any Materials of Environmental
Concern at any location owned or operated by the Company or any
Company Subsidiary, or the Parent or any Parent Subsidiary, as the
case may be, or (ii) any violation of any Environmental Law.
"ENVIRONMENTAL LAW" shall mean each federal, state, local
and foreign law and regulation relating to pollution, protection or
preservation of human health or the environment, including, without
limitation, each law and regulation relating to emissions, discharges,
64
releases or threatened releases of Materials of Environmental Concern,
or otherwise relating to the generation, storage, containment (whether
above ground or underground), disposal, transport or handling of
Materials of Environmental Concern, or the preservation of the
environment or mitigation of adverse effects thereon and each law and
regulation with regard to record keeping, notification, disclosure and
reporting requirements respecting Materials of Environmental Concern.
"ERISA" shall mean the Employee Retirement Income Security
Act of 1974, as amended.
"ERISA AFFILIATE" shall mean any trade or business, whether
or not incorporated, that together with the Company would be deemed a
"single employer" within the meaning of Section 4001(b) of ERISA.
"EXCHANGE ACT" shall mean the Securities Exchange Act of
1934, as amended.
"EXCHANGE AGENT" shall have the meaning set forth in SECTION
2.2(a).
"EXCHANGE FUND" shall have the meaning set forth in SECTION
2.2(b).
"EXCHANGE RATE" for any date shall mean the official
exchange rate between U.S. Dollars and Euros, as announced by the Bank
of Finland on such date.
"EXPENSES" shall mean the reasonable and documented expenses
of a party incurred in connection with the negotiation and execution
of this Agreement and the transactions contemplated hereby (including
but not limited to, reasonable fees and expenses of counsel and
accountants, and out-of-pocket expenses and reasonable fees of
financial advisors), but not exceeding the sum of $1,000,000 in the
aggregate.
"FINNISH COMPANIES ACT" shall mean the Companies Act of
1978, as amended, in Finland.
"FINNISH FINANCIAL SUPERVISION" shall mean the Financial
Supervision Authority of Finland.
"FINNISH GAAP" shall mean generally accepted accounting
principles of the Republic of Finland, as in effect from time to time.
"FINNISH TRADE REGISTRY" shall mean the Trade Register
Department of Finnish National Board of Patents and Registration.
"FORM F-4" shall have the meaning set forth in SECTION
3.19(a).
65
"GOVERNMENTAL ENTITY" shall mean a court, arbitral tribunal,
administrative agency or commission or other governmental or other
regulatory authority or agency.
"HSE" shall mean the Helsinki Exchanges.
"HSR ACT" shall mean the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended.
"INDEMNIFIED LIABILITIES" shall have the meaning set forth
in SECTION 5.17(a).
"INDEMNIFIED PARTY" shall have the meaning set forth in
SECTION 5.17(a).
"INTELLECTUAL PROPERTY" shall mean all of the following:
Trademarks, Patents, Copyrights and Trade Secrets.
"LIENS" shall have the meaning set forth in SECTION 3.2.
"LISTING PARTICULARS" shall have the meaning set forth in
SECTION 3.19.
"LOCK-UP AGREEMENT" shall have the meaning set forth in
SECTION 1.6(e).
"MAJOR COMPANY SHAREHOLDERS" shall mean A. Christian
Schauer, Daniel B. Canavan and Victor V. Valentine, Jr.
"MAJOR PARENT SHAREHOLDERS" shall mean Jalo Paananen, Elmar
Paananen, Annamarie Jukko and Topi Paananen.
"MARKET ACT" shall have the meaning set forth in SECTION
3.19.
"MATERIALS OF ENVIRONMENTAL CONCERN" shall mean toxic or
hazardous substances, materials or wastes, solid wastes; petroleum,
petroleum derivatives and petroleum products; asbestos or asbestos-
containing materials; polychlorinated biphenyls; radon or lead or
lead-based paints or materials.
"MBCA" shall mean the Michigan Business Corporation Act, as
amended.
"MERGER" shall mean the merger of Merger Sub into the
Company described in SECTION 1.1.
"MERGER CONSIDERATION" shall have the meaning set forth in
SECTION 2.1(c).
"MERGER SUB" shall have the meaning set forth in the first
paragraph of this Agreement.
66
"MERGER SUB COMMON STOCK" shall mean common stock, par value
$.01 per share, of Merger Sub.
"NON-U.S. MONOPOLY LAWS" shall mean any applicable non-U.S.
laws intended to prohibit, restrict or regulate actions having the
purpose or effect of monopolization or restraint of trade.
"ORDER" means any decree, judgment, injunction, writ or
similar judicial or administrative action and whether temporary,
preliminary or permanent
"PARENT" shall have the meaning set forth in the first
paragraph of this Agreement.
"PARENT ACQUISITION PROPOSAL" shall mean any proposal or
offer to acquire all or a substantial part of the business or
properties of the Parent or all or a substantial portion of the
capital stock of the Parent, whether by merger, tender offer, exchange
offer, sale of securities or assets, or similar transactions involving
the Parent or any Subsidiary, division or operating or principal
business unit of the Parent.
"PARENT ADRs" shall have the meaning set forth in SECTION
2.1(c).
"PARENT ADSs" shall have the meaning set forth in SECTION
2.1(c).
"PARENT AGREEMENTS" shall have the meaning set forth in
SECTION 4.21.
"PARENT AVERAGE PRICE" shall have the meaning set forth in
SECTION 2.1(d).
"PARENT BALANCE SHEET DATE" shall mean the date of the most
recent audited balance sheet of the Parent and its consolidated
subsidiaries included in the Parent Financial Statements.
"PARENT DISCLOSURE DOCUMENTS" shall have the meaning set
forth in SECTION 3.19.
"PARENT DISCLOSURE SCHEDULE" shall mean the disclosure
schedule of even date herewith prepared and signed by Parent and
delivered to the Company simultaneously with the execution hereof.
"PARENT EXCLUSIVE SUPERIOR PROPOSAL" shall have the meaning
set forth in SECTION 5.9(a).
"PARENT FINANCIAL STATEMENTS" shall mean the financial
statements (including any related notes thereto) of the Parent
included in the Parent Public Reports.
67
"PARENT INCLUSIVE SUPERIOR PROPOSAL" shall have the meaning
set forth in SECTION 5.9(a).
"PARENT INTELLECTUAL PROPERTY" shall mean all Intellectual
Property that is necessary to conduct the business of Parent and its
Subsidiaries as presently conducted.
"PARENT MATERIAL ADVERSE EFFECT" shall mean any event,
change, occurrence, effect, fact or circumstance that is or may
reasonably be expected to be materially adverse to (i) the ability of
Parent to perform its obligations under this Agreement or to
consummate the Transactions, or (ii) the business, tangible assets,
liabilities, results of operations or financial condition of Parent
and its Subsidiaries, taken as a whole, other than any event, change,
occurrence, effect, fact or circumstance (A) relating to the economy
or securities markets of Finland or any other region in general, (B)
relating to changes in conditions generally applicable to the
industries in which Parent and its Subsidiaries are involved, (C)
resulting from entering into this Agreement or the consummation of the
Transactions or the announcement thereof, or (D) relating to its
business, financial condition or results of operations that has been
disclosed in writing to the other party prior to the date of this
Agreement.
"PARENT OPTION" shall mean an option to purchase Parent
Ordinary Shares, including warrants issued under the Parent's 1999
Warrant Plan.
"PARENT ORDINARY SHARES" shall mean validly issued, fully
paid and non-assessable ordinary A shares of Parent.
"PARENT PUBLIC REPORTS" shall mean (i) Parent's annual
reports for its fiscal year ended December 31, 1999, as filed with the
Finnish Trade Registry, (ii) Parent's quarterly reports for each
fiscal quarter subsequent to December 31, 1999 as submitted to the
Finnish Financial Supervision, (iii) the Parent Disclosure Documents,
and (iv) all other reports, schedules, registration statements and
other documents filed by Parent with the Finnish Trade Registry or the
Finnish Financial Supervision or the HSE.
"PARENT RECOMMENDATION" shall have the meaning set forth in
SECTION 5.3(b).
"PARENT SHAREHOLDER AGREEMENT" shall mean the agreement,
dated as of the date hereof, among the Major Parent Shareholders and
the Company pursuant to which each Major Parent Shareholder has
granted the Company a proxy with respect to the voting of the Parent
Ordinary Shares and the Parent Series K Shares upon the terms and
subject to the conditions set forth therein.
"PARENT SHAREHOLDER MEETING" shall have the meaning set
forth in SECTION 5.3(b).
68
"PARENT SUPERIOR PROPOSAL" shall mean a Parent Acquisition
Proposal which satisfies both subsection (x) and subsection (y) of
SECTION 5.9(a).
"PARENT'S KNOWLEDGE" or "BEST KNOWLEDGE OF THE PARENT" shall
mean the actual knowledge of Elmar Paananen and Jalo Paananen.
"PATENTS" shall mean issued U.S. and foreign patents and
pending patent applications, patent disclosures, and any and all
divisions, continuations, continuations-in-part, reissues,
reexaminations, and extension thereof, any counterparts claiming
priority therefrom, utility models, patents of
importation/confirmation, certificates of invention and like statutory
rights.
"PERSON" shall mean a natural person, partnership,
corporation, limited liability company, business trust, joint stock
company, trust, unincorporated association, joint venture,
Governmental Entity or other entity or organization.
"PLAN" shall have the meaning set forth in SECTION 3.12(a).
"PROSPECTUS" shall mean the prospectus of Parent to be
prepared by Parent and included in the Registration Statement filed by
Parent with the SEC pursuant to SECTION 5.3(c), together with all
amendments and supplements thereto and including the exhibits thereto.
"PROXY STATEMENT" shall mean the proxy statement of the
Company prepared by the Company and included in the Registration
Statement to be filed by Parent with the SEC pursuant to SECTION
5.3(c), together with all amendments and supplements thereto and
including the exhibits thereto.
"REGISTRATION STATEMENT" shall have the meaning set forth in
SECTION 3.19.
"SEC" shall mean the United States Securities and Exchange
Commission.
"SECTION 368 REORGANIZATION" shall have the meaning set
forth in the fifth "whereas" clause of this Agreement.
"SECURITIES ACT" shall mean the Securities Act of 1933, as
amended.
"SERIES K SHARES" shall mean validly issued, fully paid and
non-assessable Series K shares of Parent.
"SHARES" shall mean shares of common stock, no par value,
issued by the Company.
69
"SUBSIDIARY" shall mean, with respect to any party, any
corporation or other organization, whether incorporated or
unincorporated, of which (a) at least a majority of the securities or
other interests having by their terms ordinary voting power to elect a
majority of the Board of Directors or others performing similar
functions with respect to such corporation or other organization is
directly or indirectly owned or controlled by such party or by any one
or more of its Subsidiaries, or by such party and one or more of its
Subsidiaries or (b) such party or any other Subsidiary of such party
is a general partner (excluding any such partnership where such party
or any Subsidiary of such party does not have a majority of the voting
interest in such partnership).
"SURVIVING CORPORATION" shall have the meaning set forth in
SECTION 1.1.
"TAX" or "TAXES" shall mean all taxes, charges, fees,
duties, levies, penalties or other assessments imposed by any federal,
state, local or foreign governmental authority, including, but not
limited to, income, gross receipts, excise, property, sales, gain,
use, license, custom duty, unemployment, capital stock, transfer,
franchise, payroll, withholding, social security, minimum estimated,
and other taxes, and shall include interest, penalties or additions
attributable thereto.
"TAX CERTIFICATES" shall have the meaning set forth in
SECTION 5.13(b).
"TAX RETURN" shall mean any material return or report
relating to Taxes.
"TERMINATION DATE" shall have the meaning set forth in
SECTION 7.1(d)(i).
"TERMINATION FEE" shall mean the sum of $6,400,000 in U.S.
currency.
"TITLE IV PLAN" shall mean a Plan that is subject to Section
302 or Title IV of ERISA or Section 412 of the Code.
"TRADEMARKS" shall mean U.S. and foreign registered and
unregistered trademarks, trade dress, service marks, logos, trade
names, corporate names and all registrations and applications to
register the same.
"TRADE SECRETS" shall mean all categories of trade secrets
as defined in the Uniform Trade Secrets Act including, but not limited
to, business information.
"TRADING DAY" shall mean any day on which securities are
traded on the HSE.
70
"TRANSACTIONS" shall mean the transactions provided for or
contemplated by this Agreement, including, without limitation, the
Company Shareholder Agreement, the Parent Shareholder Agreement, the
Conversion Agreement and the Merger.
"U.S. GAAP" shall mean United States generally accepted
accounting principles.
"VOTING DEBT" shall mean indebtedness having general voting
rights and debt convertible into securities having such rights.
SECTION 8.2 INTERPRETATION.
(a) When a reference is made in this Agreement to a
section or article, such reference shall be to a section or article of
this Agreement unless otherwise clearly indicated to the contrary.
(b) Whenever the words "INCLUDE", "INCLUDES" or
"INCLUDING" are used in this Agreement they shall be deemed to be
followed by the words "without limitation."
(c) The words "HEREOF", "HEREIN" and "HEREWITH" and
words of similar import shall, unless otherwise stated, be construed
to refer to this Agreement as a whole and not to any particular
provision of this Agreement, and article, section, paragraph, exhibit
and schedule references are to the articles, sections, paragraphs,
exhibits and schedules of this Agreement unless otherwise specified.
(d) The plural of any defined term shall have a
meaning correlative to such defined term, and words denoting any
gender shall include all genders. Where a word or phrase is defined
herein, each of its other grammatical forms shall have a corresponding
meaning.
(e) A reference to any party to this Agreement or any
other agreement or document shall include such party's successors and
permitted assigns.
(f) A reference to any legislation or to any provision
of any legislation shall include any modification or re-enactment
thereof, any legislative provision substituted therefor and all
regulations and statutory instruments issued thereunder or pursuant
thereto.
(g) The parties have participated jointly in the
negotiation and drafting of this Agreement. In the event an ambiguity
or question of intent or interpretation arises, this Agreement shall
be construed as if drafted jointly by the parties, and no presumption
or burden of proof shall arise favoring or disfavoring any party by
virtue of the authorship of any provisions of this Agreement.
71
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 AMENDMENT AND MODIFICATION. This Agreement may
be amended by the parties at any time before or after the Company
Shareholder Approval or the Parent Shareholder Approval; PROVIDED,
HOWEVER, that after any such approval, there shall not be made any
amendment that by law requires further approval by the shareholders of
the Company or the Parent without the further approval of such
shareholders. This Agreement may not be amended except by an
instrument in writing signed on behalf of each of the parties.
SECTION 9.2 REPRESENTATIONS AND WARRANTIES. None of the
representations and warranties in this Agreement or in any schedule,
instrument or other document delivered pursuant to this Agreement
shall survive the Effective Time. The foregoing sentence shall not
limit any covenant or agreement of the parties which by its terms
contemplates performance after the Effective Time.
SECTION 9.3 NOTICES. All notices and other communications
hereunder shall be in writing and shall be deemed given if delivered
personally, telecopied (which is confirmed) or sent by an overnight
courier service, such as Federal Express, to the parties at the
following addresses (or at such other address for a party as shall be
specified by like notice):
(a) if to Parent or Merger Sub, to:
Eimo Oyj
Norokatv 5
FIN-15101 Lahti
FINLAND
Attention: Elmar Paananen
Telephone No.:011-358-3850-5430
Telecopy No.: 011-3583-850-5405
with a copy (which shall not constitute notice) to:
Smith, Gambrell & Russell, LLP
1230 Peachtree Street, N.E.
Promenade II, Suite 3100
Atlanta, Georgia 30309
Attention: John D. Saunders, Esq.
Telephone No.: (404) 815-3500
Telecopy No.: (404) 685-6982
and
72
if to the Company, to:
Triple S Plastics, Inc.
14320 Portage Road
Vicksburg, MI 49097-0905
Attention: A. Christian Schauer
Telephone No.: 616-383-0770
Telecopy No.: 616-649-3427
with a copy (which shall not constitute notice) to:
Schiff Hardin & Waite
6600 Sears Tower
Chicago, Illinois 60606
Attention: John F. Adams, Esq.
Telephone No.: (312) 258-5541
Telecopy No.: (312) 258-5700
SECTION 9.4 COUNTERPARTS; TELECOPIER. This Agreement and
the agreements referred to herein may be executed in one or more
counterparts, all of which together shall be considered one and the
same agreement. Transmission by telecopier of an executed counterpart
of the Agreement and such other agreements shall be deemed to
constitute due and sufficient delivery of such counterparts.
SECTION 9.5 ENTIRE AGREEMENT; NO THIRD PARTY BENEFICIARIES.
This Agreement and the Confidentiality Agreement (including the
documents and the instruments referred to herein and therein): (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 hereof and thereof, and (b) except as provided
in ARTICLE II, SECTION 5.7, SECTION 5.16, SECTION 5.17 and SECTION
5.19 are not intended to confer upon any person other than the parties
hereto and thereto any rights or remedies hereunder.
SECTION 9.6 SEVERABILITY. Any term or provision of this
Agreement that is held by a court of competent jurisdiction or other
authority to be invalid, void or unenforceable in any situation in any
jurisdiction shall not affect the validity or enforceability of the
remaining terms and provisions hereof or the validity or
enforceability of the offending term or provision in any other
situation or in any other jurisdiction. 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 are fulfilled
to the extent possible.
73
SECTION 9.7 GOVERNING LAW. This Agreement shall be
governed by and construed and interpreted in accordance with the laws
of the State of Delaware without giving effect to the principles of
conflicts of law thereof.
SECTION 9.8 ENFORCEMENT AND INTERPRETATION. The parties
agree that irreparable damage would occur in the event that any of the
provisions of this Agreement were not performed in accordance with
their specific terms or were otherwise breached. It is accordingly
agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to interpret or
enforce specifically the terms and provisions of this Agreement in any
court of the United States located in the State of Delaware or in
Delaware state court, this being in addition to any other remedy to
which they are entitled at law or in equity. In addition, each of the
parties hereto (a) consents to submit itself to the exclusive personal
jurisdiction of any Federal court located in the State of Delaware or
any Delaware state court 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 or state court sitting in the State of
Delaware.
SECTION 9.9 WAIVER OF JURY TRIAL. EACH OF PARENT, MERGER
SUB AND THE COMPANY HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY LAW, ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM (WHETHER BASED UPON CONTRACT, TORT OR
OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OF THE
TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 9.10 TIME OF ESSENCE. Each of the parties hereto
hereby agrees that, with regard to all dates and time periods set
forth or referred to in this Agreement, time is of the essence.
SECTION 9.11 EXTENSION; WAIVER. At any time prior to the
Effective Time, the parties may (a) extend the time for the
performance of any of the obligations or other acts of the other
parties, (b) waive any inaccuracies in the representations and
warranties of the other parties contained in this Agreement or in any
document delivered pursuant to this Agreement or (c) waive compliance
by the other parties 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 those rights.
SECTION 9.12 ASSIGNMENT. Neither this Agreement not any of
the rights, interests or obligations hereunder shall be assigned by
74
any of the parties hereto (whether by operation of law or otherwise)
without the prior written content of the other parties, except that
Merger Sub may assign, in its sole discretion, any or all of its
rights, interests and obligations hereunder to Parent or to any direct
or indirect wholly owned Subsidiary of Parent. Subject to the
preceding sentence, this Agreement will be binding upon, inure to the
benefit of and be enforceable by the parties and their respective
successors and assigns.
IN WITNESS WHEREOF, Parent, Merger Sub and the Company have
caused this Agreement to be signed by their respective officers
thereunto duly authorized as of the date first written above.
EIMO OYJ
By /s/ Elmar Paananen
----------------------------------
Name: Elmar Paananen
Title: Executive Vice Chairman
SPARTAN ACQUISITION CORP.
By /s/ Elmar Paananen
----------------------------------
Name: Elmar Paananen
Title: President and Secretary
TRIPLE S PLASTICS, INC.
By /s/ A. Christian Schauer
----------------------------------
Name: A. Christian Schauer
Title: Chief Executive Officer
75
EXHIBIT 1.1(a)
CERTIFICATE OF MERGER
OF
SPARTAN ACQUISITION CORP.
(a Delaware corporation)
INTO
TRIPLE S PLASTICS, INC.
(a Michigan corporation)
The undersigned, a duly authorized officer of Triple S Plastics,
Inc., a Michigan corporation, as surviving corporation of the merger,
pursuant to Section 450.1707 of the Michigan Business Corporation Act
("MBCA"), as amended, hereby executes this Certificate of Merger:
ARTICLE I.
The names of the corporations which are parties to the
merger are Triple S Plastics, Inc., a Michigan corporation
(sometimes referred to herein as "TSSS"), and Spartan
Acquisition Corp., a Delaware corporation (sometimes
referred to herein as "Spartan" and collectively with TSSS,
the "Constituent Corporations"). The laws of the
jurisdiction of each of the Constituent Corporations permit
this merger and each of the Constituent Corporations has
complied with those laws in effecting the merger.
ARTICLE II.
The Agreement and Plan of Merger (the "Merger
Agreement") has been approved, adopted, certified, executed
and acknowledged by each of the Constituent Corporations in
accordance with each of Sections 450.1701 and 450.1703(a) of
the MBCA and Section 252(c) of the Delaware General
Corporation Law ("DGCL").
ARTICLE III.
The name of the surviving corporation is TSSS, a
Michigan corporation (the "Surviving Corporation").
ARTICLE IV.
The authorized capital stock of TSSS consists of
10,200,000 shares of common stock, no par value per share,
and 1,000,000 shares of preferred stock, no par value per
share. As of the date hereof, 3,763,549 shares are issued
and outstanding, each share is entitled to one vote and a
majority of votes by the outstanding shares is required to
approve the Merger.
ARTICLE V.
The outstanding capital stock of Spartan consists of
1,000 shares of common stock, $.01 par value per share. As
of the date hereof, 1,000 shares are issued and outstanding,
each share is entitled to one vote and a majority of votes
by the outstanding shares is required to approve the merger.
ARTICLE VI
Each issued and outstanding share of TSSS shall be
converted into the right to receive from Eimo Oyj, a Company
organized under the laws of the Republic of Finland (the
"Parent"), pursuant to the Merger Agreement, a number of
Parent Ordinary A Shares equal to the Exchange Ratio
(provided in the Merger Agreement), which shall be delivered
in the form of American Depositary Shares, each representing
the right to receive one Ordinary Parent A Share, evidenced
by one or more American Depositary Receipts.
Each issued and outstanding share of Spartan common
stock shall be converted into and become one full paid, non-
assessable share of common stock, no par value, of the
Surviving Corporation.
ARTICLE VII
The Certificate of Incorporation of TSSS, a Michigan
corporation which is surviving the merger, shall be amended
and restated as seen in Exhibit A.
ARTICLE VIII.
The executed Merger Agreement is on file at the
principal place of business of the Surviving Corporation
located at 1430 Portage Road, Vicksburg, Michigan 49097.
ARTICLE IX.
A copy of the Merger Agreement will be furnished by the
Surviving Corporation, on request and without cost, to any
shareholder of any Constituent Corporation.
* * * * * * * * * *
[SIGNATURE PAGES FOLLOW]
2
IN WITNESS WHEREOF, TSSS, a Michigan corporation, as the
Surviving Corporation, has caused this Certificate of Merger to be
executed as of this ____ day of _________, 2000.
TRIPLE S PLASTICS, INC.,
a Michigan corporation
By: ________________________________
Name: ______________________________
Title: _____________________________
ATTEST:
By: ______________________________
Name: ____________________________
3
EXHIBIT A
---------
THIRD
RESTATED AND AMENDED
ARTICLES OF INCORPORATION
OF
TRIPLE S PLASTICS, INC.
The following Third Restated Articles of Incorporation are
executed by the undersigned Corporation pursuant to the provisions of
Sections 641-643, Act 284, Public Acts of 1972, as amended.
1. The present name of the Corporation is Triple S Plastics,
Inc.
2. The Corporation Identification Number (CID) assigned by the
Bureau is: 131-782.
3. All former names of the Corporation are: Triple S Plastics,
Inc.
4. The date of filing of the original Articles of Incorporation
was July 11, 1969.
The following Third Restated and Amended Articles of
Incorporation supersedes the Second Restated and Amended Articles of
Incorporation, as previously amended and restated, and shall be the
Articles of Incorporation of the Corporation.
I.
The name of the Corporation is Triple S Plastics, Inc.
(hereinafter the "Corporation").
II.
The address of the registered office, which is the same as the
mailing address, is 14320 Portage Road, Vicksburg, Michigan 49097.
The name of the resident agent is Daniel B. Canavan.
III.
The purpose, or purposes, for which the Corporation is organized
is to engage in any activity within the purposes for which
corporations may be organized under the Michigan Business Corporation
Act ("MBCA").
4
IV.
The total number of shares of stock which the Corporation shall
have authority to issue is 1,000 shares of Common Stock, each having a
par value of one penny ($.01).
V.
The following provisions are inserted for the management of the
business and the conduct of the affairs of the Corporation, and for
further definition, limitation and regulation of the powers of the
Corporation and of its directors and stockholders:
(1) The business and affairs of the Corporation shall be managed
by or under the direction of the Board of Directors.
(2) The directors shall have concurrent power with the
stockholders to make, alter, amend, change, add to or repeal
the By-Laws of the Corporation.
(3) The number of directors of the Corporation shall be as from
time to time fixed by, or in the manner provided in, the By-
Laws of the Corporation. Election of directors need not be
by written ballot unless the By-Laws so provide.
(4) No director of the Corporation shall be personally liable to
the Corporation or its stockholders for monetary damages for
breach of fiduciary duty as a director; provided, however,
that this Article V shall not eliminate or limit the
liability of a director (i) for any breach of the director's
duty of loyalty to the Corporation or its stockholders, (ii)
for acts or omissions not in good faith or which involve
intentional misconduct or knowing violation of law, (iii)
any breach of duty, act or omission for which the
elimination or limitation of liability is not permitted by
the MBCA, as amended from time to time, or (iv) for any
transaction from which the director derived an improper
personal benefit. If the MBCA is hereafter amended to
authorize corporate action further eliminating or limiting
the personal liability of directors, then the liability of
each director of the Corporation shall be eliminated or
limited to the fullest extent permitted by the MBCA, as so
amended. Neither the amendment nor repeal of this Article
V, nor the adoption of any provision of these Third Restated
and Amended Articles of Incorporation inconsistent with this
Article V, shall eliminate or reduce any right or protection
of a director of the Corporation existing at the time of
such amendment or repeal in respect of any acts or omissions
occurring prior to such amendment, repeal or adoption of any
inconsistent provision.
5
(5) In addition to the powers and authority hereinbefore or by
statute expressly conferred upon them, the directors are
hereby empowered to exercise all such powers and do all such
acts and things as may be exercised or done by the
Corporation, subject, nevertheless, to the provisions of the
MBCA, these Third Restated and Amended Articles of
Incorporation, and any By-Laws adopted by the stockholders;
provided, however, that no By-Laws hereafter adopted by the
stockholders shall invalidate any prior act of the directors
which would have been valid if such By-Laws had not been
adopted.
VI.
Directors and executive officers of the Corporation shall be
indemnified as of right to the fullest extent now or hereafter
permitted by law in connection with any actual or threatened civil,
criminal, administrative or investigative action, suit or proceeding
(whether brought by or in the name of the Corporation, a subsidiary or
otherwise) in which a director or executive officer is a witness or
which is brought against a director or executive officer in his or her
capacity as a director, officer, employee, agent or fiduciary of the
Corporation or of any corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise which the director or
executive officer was serving at the request of the Corporation.
Persons who are not directors or executive officers of the Corporation
may be similarly indemnified in respect of such service to the extent
authorized at any time by the Board of Directors of the Corporation.
The Corporation may purchase and maintain insurance to protect itself
and any such director, executive officer or other person against any
liability asserted against him or her and incurred by him or her in
respect of such service whether or not the Corporation would have the
power to indemnify him or her against such liability by law or under
the provisions of this Article VI. The provisions of this Article VI
shall inure to the benefit of the heirs, executors and administrators
of the directors, executive officers and other persons referred to in
this Article VI. The right of indemnity provided pursuant to this
Article VI shall not be exclusive, and the Corporation may provide
indemnification to any person, by agreement or otherwise, on such
terms and conditions as the Board of Directors may approve. Any
agreement for indemnification of any director, executive officer,
employee or other person may provide indemnification rights which are
broader than or otherwise different from those set forth in, or
provided pursuant to, or in accordance with, this Article VI. Any
amendment, alteration, modification, repeal or adoption of any
provision in the Articles of Incorporation inconsistent with this
Article VI shall not adversely affect any indemnification right or
protection of a director or executive officer of the Corporation
existing at the time of such amendment, alteration, modification,
repeal or adoption.
6
VII.
Meetings of stockholders may be held within or without the State
of Michigan, as the By-Laws may provide. The books of the Corporation
may be kept (subject to any provision contained in the MBCA) outside
the State of Michigan at such place or places as may be designated
from time to time by the Board of Directors or in the By-Laws of the
Corporation.
VIII.
The corporation reserves the right to amend, alter, change or
repeal any provision contained in these Third Restated and Amended
Articles of Incorporation, in the manner now or hereafter prescribed
by statute, and all rights conferred upon stockholders herein are
granted subject to this reservation.
These Third Restated and Amended Articles of Incorporation were
duly adopted by the shareholders of the Corporation. The necessary
number of shares as required by statute were voted in favor of the
adoption of these Third Restated and Amended Articles of
Incorporation.
7
EXHIBIT 1.1(b)
CERTIFICATE OF MERGER
OF
SPARTAN ACQUISITION CORP.
(a Delaware corporation)
INTO
TRIPLE S PLASTICS, INC.
(a Michigan corporation)
The undersigned, a duly authorized officer of Triple S Plastics,
Inc., a Michigan corporation, as surviving corporation of the merger,
pursuant to Section 252 of the Delaware General Corporation Law
("DGCL"), as amended, hereby executes this Certificate of Merger:
ARTICLE I.
The names of the corporations which are parties to the
merger are Triple S Plastics, Inc., a Michigan corporation
(sometimes referred to herein as "TSSS"), and Spartan
Acquisition Corp., a Delaware corporation (sometimes
referred to herein as "Spartan" and collectively with TSSS,
the "Constituent Corporations"). The laws of the
jurisdiction of each of the Constituent Corporations permit
this merger and each of the Constituent Corporations has
complied with those laws in effecting the merger.
ARTICLE II.
The Agreement and Plan of Merger (the "Merger
Agreement") has been approved, adopted, certified, executed
and acknowledged by each of the Constituent Corporations in
accordance with Section 252(c) of the DGCL and each of
Sections 450.1701 and 450.1703(a) of the Michigan Business
Corporation Act, as amended.
ARTICLE III.
The name of the surviving corporation is Triple S
Plastics, Inc., a Michigan corporation (the "Surviving
Corporation").
ARTICLE IV.
The Certificate of Incorporation of TSSS, a Michigan
corporation which is surviving the merger, shall be amended
and restated as seen in Exhibit A.
ARTICLE V.
The executed Merger Agreement is on file at the
principal place of business of the Surviving Corporation
located at 14320 Portage Road, Vicksburg, Michigan 49097.
ARTICLE VI.
A copy of the Merger Agreement will be furnished by the
Surviving Corporation, on request and without cost, to any
stockholder of any Constituent Corporation.
ARTICLE VII.
The Surviving Corporation agrees that it may be served
with process in the State of Delaware in any proceeding for
enforcement of any obligation of any Constituent Corporation
of this State, as well as for enforcement of any obligation
of the Surviving Corporation arising from the merger,
including any suit or other proceeding to enforce the rights
of any stockholders as determined in appraisal proceedings
pursuant to the provisions of Section 262 of the DGCL, and
shall irrevocably appoint the Secretary of State of Delaware
as its agent to accept service of process in any such suit
or other proceedings. The address to which a copy of the
process shall be mailed by the Secretary of State of
Delaware is 14320 Portage Road, Vicksburg, Michigan 49097.
* * * * * * * * * *
[SIGNATURE PAGES FOLLOW]
2
IN WITNESS WHEREOF, TSSS, a Michigan corporation, as the
Surviving Corporation, has caused this Certificate of Merger to be
executed as of this ____ day of July, 2000.
TRIPLE S PLASTICS, INC.,
a Michigan corporation
By: ________________________________
Name: ______________________________
Title: _____________________________
ATTEST:
By: ______________________________
Name: ____________________________
Title: Secretary
3
EXHIBIT A
---------
THIRD
RESTATED AND AMENDED
ARTICLES OF INCORPORATION
OF
TRIPLE S PLASTICS, INC.
The following Third Restated Articles of Incorporation are
executed by the undersigned Corporation pursuant to the provisions of
Sections 641-643, Act 284, Public Acts of 1972, as amended.
1. The present name of the Corporation is Triple S Plastics,
Inc.
2. The Corporation Identification Number (CID) assigned by the
Bureau is: 131-782.
3. All former names of the Corporation are: Triple S Plastics,
Inc.
4. The date of filing of the original Articles of Incorporation
was July 11, 1969.
The following Third Restated and Amended Articles of
Incorporation supersedes the Second Restated and Amended Articles of
Incorporation, as previously amended and restated, and shall be the
Articles of Incorporation of the Corporation.
I.
The name of the Corporation is Triple S Plastics, Inc.
(hereinafter the "Corporation").
II.
The address of the registered office, which is the same as the
mailing address, is 14320 Portage Road, Vicksburg, Michigan 49097.
The name of the resident agent is Daniel B. Canavan.
III.
The purpose, or purposes, for which the Corporation is organized
is to engage in any activity within the purposes for which
corporations may be organized under the Michigan Business Corporation
Act ("MBCA").
4
IV.
The total number of shares of stock which the Corporation shall
have authority to issue is 1,000 shares of Common Stock, each having a
par value of one penny ($.01).
V.
The following provisions are inserted for the management of the
business and the conduct of the affairs of the Corporation, and for
further definition, limitation and regulation of the powers of the
Corporation and of its directors and stockholders:
(1) The business and affairs of the Corporation shall be managed
by or under the direction of the Board of Directors.
(2) The directors shall have concurrent power with the
stockholders to make, alter, amend, change, add to or repeal
the By-Laws of the Corporation.
(3) The number of directors of the Corporation shall be as from
time to time fixed by, or in the manner provided in, the By-
Laws of the Corporation. Election of directors need not be
by written ballot unless the By-Laws so provide.
(4) No director of the Corporation shall be personally liable to
the Corporation or its stockholders for monetary damages for
breach of fiduciary duty as a director; provided, however,
that this Article V shall not eliminate or limit the
liability of a director (i) for any breach of the director's
duty of loyalty to the Corporation or its stockholders, (ii)
for acts or omissions not in good faith or which involve
intentional misconduct or knowing violation of law, (iii)
any breach of duty, act or omission for which the
elimination or limitation of liability is not permitted by
the MBCA, as amended from time to time, or (iv) for any
transaction from which the director derived an improper
personal benefit. If the MBCA is hereafter amended to
authorize corporate action further eliminating or limiting
the personal liability of directors, then the liability of
each director of the Corporation shall be eliminated or
limited to the fullest extent permitted by the MBCA, as so
amended. Neither the amendment nor repeal of this Article
V, nor the adoption of any provision of these Third Restated
and Amended Articles of Incorporation inconsistent with this
Article V, shall eliminate or reduce any right or protection
of a director of the Corporation existing at the time of
such amendment or repeal in respect of any acts or omissions
occurring prior to such amendment, repeal or adoption of any
inconsistent provision.
5
(5) In addition to the powers and authority hereinbefore or by
statute expressly conferred upon them, the directors are
hereby empowered to exercise all such powers and do all such
acts and things as may be exercised or done by the
Corporation, subject, nevertheless, to the provisions of the
MBCA, these Third Restated and Amended Articles of
Incorporation, and any By-Laws adopted by the stockholders;
provided, however, that no By-Laws hereafter adopted by the
stockholders shall invalidate any prior act of the directors
which would have been valid if such By-Laws had not been
adopted.
VI.
Directors and executive officers of the Corporation shall be
indemnified as of right to the fullest extent now or hereafter
permitted by law in connection with any actual or threatened civil,
criminal, administrative or investigative action, suit or proceeding
(whether brought by or in the name of the Corporation, a subsidiary or
otherwise) in which a director or executive officer is a witness or
which is brought against a director or executive officer in his or her
capacity as a director, officer, employee, agent or fiduciary of the
Corporation or of any corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise which the director or
executive officer was serving at the request of the Corporation.
Persons who are not directors or executive officers of the Corporation
may be similarly indemnified in respect of such service to the extent
authorized at any time by the Board of Directors of the Corporation.
The Corporation may purchase and maintain insurance to protect itself
and any such director, executive officer or other person against any
liability asserted against him or her and incurred by him or her in
respect of such service whether or not the Corporation would have the
power to indemnify him or her against such liability by law or under
the provisions of this Article VI. The provisions of this Article VI
shall inure to the benefit of the heirs, executors and administrators
of the directors, executive officers and other persons referred to in
this Article VI. The right of indemnity provided pursuant to this
Article VI shall not be exclusive, and the Corporation may provide
indemnification to any person, by agreement or otherwise, on such
terms and conditions as the Board of Directors may approve. Any
agreement for indemnification of any director, executive officer,
employee or other person may provide indemnification rights which are
broader than or otherwise different from those set forth in, or
provided pursuant to, or in accordance with, this Article VI. Any
amendment, alteration, modification, repeal or adoption of any
provision in the Articles of Incorporation inconsistent with this
Article VI shall not adversely affect any indemnification right or
protection of a director or executive officer of the Corporation
existing at the time of such amendment, alteration, modification,
repeal or adoption.
6
VII.
Meetings of stockholders may be held within or without the State
of Michigan, as the By-Laws may provide. The books of the Corporation
may be kept (subject to any provision contained in the MBCA) outside
the State of Michigan at such place or places as may be designated
from time to time by the Board of Directors or in the By-Laws of the
Corporation.
VIII.
The corporation reserves the right to amend, alter, change or
repeal any provision contained in these Third Restated and Amended
Articles of Incorporation, in the manner now or hereafter prescribed
by statute, and all rights conferred upon stockholders herein are
granted subject to this reservation.
These Third Restated and Amended Articles of Incorporation were
duly adopted by the shareholders of the Corporation. The necessary
number of shares as required by statute were voted in favor of the
adoption of these Third Restated and Amended Articles of
Incorporation.
7
Additional exhibits to the Agreement and Plan of Merger include
the following documents, each of which is filed as an exhibit to this
Form 8-K:
- Conversion Agreement 8K Exhibit #10.1
- Lock-Up Agreement 8K Exhibit #10.2
- Form of Liquidity and
Registration Rights Agreement 8K Exhibit #10.3
- Company Shareholders' Agreement 8K Exhibit #10.4
- Parent Shareholders' Agreement 8K Exhibit #10.5
- Employment Agreement 8K Exhibit #10.6
- Employment Agreement 8K Exhibit #10.7
- Employment Agreement 8K Exhibit #10.8