Exhibit 2.1
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AGREEMENT AND PLAN OF MERGER
among
SUNBEAM CORPORATION
CAMPER ACQUISITION CORP.
and
THE COLEMAN COMPANY, INC.
Dated as of
February 27, 1998
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TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS
Section 1.1 Definitions............................................ 1
ARTICLE II
THE COMPANY MERGER
Section 2.1 The Company Merger....................................... 7
Section 2.2 Closing.................................................. 7
Section 2.3 Company Effective Time of the Company Merger............. 7
Section 2.4 Certificate of Incorporation............................. 7
Section 2.5 By-Laws.................................................. 7
Section 2.6 Directors................................................ 7
Section 2.7 Officers................................................. 8
ARTICLE III
CONVERSION OF SHARES
Section 3.1 Effect on Capital Stock................................... 8
Section 3.2 Exchange of Certificates Representing Shares.............. 10
Section 3.3 Dividends; Transfer Taxes................................. 10
Section 3.4 No Fractional Shares...................................... 11
Section 3.5 Termination of Exchange Fund.............................. 11
Section 3.6 Investment of Exchange Fund............................... 11
Section 3.7 Closing of Company Transfer Books......................... 11
Section 3.8 Dissenting Shares......................................... 11
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Section 4.1 Organization.............................................. 12
Section 4.2 Capitalization............................................ 12
Section 4.3 Subsidiaries.............................................. 13
Section 4.4 Authority Relative to this Agreement...................... 13
Section 4.5 Consents and Approvals; No Violations..................... 14
Section 4.6 Reports and Financial Statements.......................... 14
Section 4.7 Absence of Certain Changes or Events...................... 15
Section 4.8 Litigation................................................ 16
Section 4.9 Information in Disclosure Documents and Registration
Statement............................................... 17
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PAGE
Section 4.10 Taxes.................................................... 17
Section 4.11 Compliance with Applicable Law........................... 18
Section 4.12 Labor Matters............................................ 18
Section 4.13 ERISA Compliance......................................... 18
Section 4.14 Environmental Matters.................................... 20
Section 4.15 Intellectual Property.................................... 20
Section 4.16 Contracts................................................ 20
Section 4.17 Opinion of Financial Advisor............................. 21
Section 4.18 Takeover Statute......................................... 21
Section 4.19 Brokers.................................................. 21
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF LASER AND MERGER SUB
Section 5.1 Organization............................................. 21
Section 5.2 Capitalization........................................... 22
Section 5.3 Merger Sub............................................... 22
Section 5.4 Authority Relative to this Agreement..................... 22
Section 5.5 Consents and Approvals; No Violations.................... 23
Section 5.6 Reports and Financial Statements......................... 23
Section 5.7 Absence of Certain Changes or Events..................... 24
Section 5.8 Litigation............................................... 24
Section 5.9 Information in Disclosure Documents and Registration
Statement................................................ 24
Section 5.10 Taxes.................................................... 25
Section 5.11 Compliance with Applicable Law........................... 25
Section 5.12 Brokers.................................................. 25
ARTICLE VI
COVENANTS RELATING TO CONDUCT OF BUSINESS
Section 6.1 Conduct of Business by the Company....................... 26
Section 6.2 Other Actions............................................ 28
Section 6.3 Advice of Changes........................................ 28
Section 6.4 Conduct of Business of Merger Sub........................ 28
Section 6.5 The Section 14(f) Notice................................. 28
ARTICLE VII
ADDITIONAL AGREEMENTS
Section 7.1 Preparation of the Registration Statement, the
Information Statement, the Schedule 13E-3 and the
Section 14(f) Notice..................................... 29
Section 7.2 Access and Information; Confidentiality.................. 29
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PAGE
Section 7.3 Comfort Letters.......................................... 29
Section 7.4 Listing Application...................................... 30
Section 7.5 Affiliates............................................... 30
Section 7.6 HSR Act; Competition Laws................................ 30
Section 7.7 Employee Matters......................................... 31
Section 7.8 Continuance of Existing Indemnification Rights........... 32
Section 7.9 Expenses................................................. 34
Section 7.10 Public Announcements..................................... 34
Section 7.11 Reasonable Best Efforts.................................. 34
ARTICLE VIII
CONDITIONS TO CONSUMMATION OF THE MERGER
Section 8.1 Conditions to Each Party's Obligation to Effect
the Company Merger....................................... 35
ARTICLE IX
TERMINATION, AMENDMENT AND WAIVER
Section 9.1 Termination.............................................. 35
Section 9.2 Effect of Termination.................................... 35
Section 9.3 Amendment................................................ 35
Section 9.4 Extension; Waiver........................................ 36
ARTICLE IX
GENERAL PROVISIONS
Section 10.1 No Survival of Representations and Warranties............ 36
Section 10.2 Notices.................................................. 36
Section 10.3 Descriptive Headings..................................... 37
Section 10.4 Entire Agreement; No Third-Party Beneficiary............. 37
Section 10.5 Interpretation........................................... 37
Section 10.6 Severability............................................. 38
Section 10.7 Assignment.............................................. 38
Section 10.8 Disclosure Schedules..................................... 38
Section 10.9 Governing Law............................................ 38
Section 10.10 Specific Performance..................................... 38
Section 10.11 Counterparts............................................ 39
Section 10.12 Certain Terms........................................... 39
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AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER (this "Agreement"), dated as of February
27, 1998, among SUNBEAM CORPORATION, a Delaware corporation ("Laser"), CAMPER
ACQUISITION CORP. ("Merger Sub"), a Delaware corporation and a wholly owned
subsidiary of Laser, and THE COLEMAN COMPANY, INC., a Delaware corporation (the
"Company").
WHEREAS, the Boards of Directors of Laser, Merger Sub and the Company
deem it advisable and in the best interests of their respective stockholders
that Merger Sub merge with and into the Company (the "Company Merger"), and such
Boards of Directors have approved the Company Merger, upon the terms and subject
to the conditions set forth herein; and
WHEREAS, as a condition to the Company Merger, a newly formed, wholly
owned subsidiary of Laser will merge with and into CLN Holdings Inc.
("Holdings") with Holdings continuing as the surviving corporation and a wholly
owned subsidiary of Laser (the "Holdings Merger") pursuant to an Agreement and
Plan of Merger (the "Holdings Merger Agreement"), dated as of the date hereof,
among Laser, Laser Acquisition Corp., a Delaware corporation and a wholly owned
subsidiary of Laser, Coleman (Parent) Holdings Inc., a Delaware corporation
("Parent Holdings"), and Holdings; and
WHEREAS, the Board of Directors of the Company has approved the
Holdings Merger solely for purposes of rendering Section 203 of the DGCL
inapplicable to the transactions contemplated hereby; and
WHEREAS, Laser, Merger Sub and the Company desire to make certain
representations, warranties, covenants and agreements in connection with the
Company Merger and also to prescribe certain conditions to the Company Merger.
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements set forth herein, the
parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. As used in this Agreement, the following
terms shall have the following meanings, the definitions to be applicable to
both the singular and plural forms of each term defined to the extent that such
forms of such terms are used in this Agreement.
"Affiliate" shall mean, as to any Person (as hereinafter defined), any
other Person which, directly or indirectly, is in control of, is controlled by,
or is under common control with, such Person. The term "control" (including,
with correlative meanings, the terms "controlled by"
and "under common control with"), as applied to any Person, means the
possession, direct or indirect, of the power to direct or cause the direction of
the management and policies of such Person, whether through the ownership of
voting securities or other ownership interest, by contract or otherwise.
"Affiliate Agreements" shall mean any Contract, agreement or
understanding between the Company and any of its subsidiaries, on the one hand,
and Worldwide and any of its Affiliates (other than the Company and its
subsidiaries), on the other hand.
"Certificate of Incorporation" shall have the meaning ascribed to it
in Section 2.4.
"Certificate of Merger" shall have the meaning ascribed to it in
Section 2.3.
"Claim" shall have the meaning ascribed to it in Section 7.8(a).
"Closing" shall have the meaning ascribed to it in Section 2.2.
"Closing Date" shall have the meaning ascribed to it in Section 2.2.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commonly Controlled Entity" shall have the meaning ascribed to it in
Section 4.13(a).
"Company Balance Sheet Date" shall have the meaning ascribed to it in
Section 4.6(c).
"Company Business Personnel" shall have the meaning ascribed to it in
Section 4.12.
"Company Common Stock" shall mean the common stock, par value $.01 per
share, of the Company.
"Company Disclosure Schedule" shall have the meaning ascribed to it in
the Introduction to Article IV.
"Company Effective Time" shall have the meaning ascribed to it in
Section 2.3.
"Company Licenses" shall have the meaning ascribed to it in Section
4.11.
"Company Material Adverse Effect" shall have the meaning ascribed to
it in Section 4.1.
"Company Merger" shall have the meaning ascribed to it in the
Recitals.
"Company Plans" shall have the meaning ascribed to it in Section
4.13(a).
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"Company Preferred Stock" shall mean the preferred stock, par value
$.01 per share, of the Company.
"Company Rule 145 Affiliates" shall have the meaning ascribed to it in
Section 7.5.
"Company SEC Reports" shall have the meaning ascribed to it in Section
4.6(a).
"Company Stock Option Plans" shall mean The Coleman Company, Inc. 1996
Stock Option Plan, The Coleman Company, Inc. 1993 Stock Option Plan and The
Coleman Company, Inc. 1992 Stock Option Plan.
"Competition Laws" shall mean foreign statutes, rules, regulations,
orders, decrees, administrative and judicial doctrines, and other foreign Laws
that are designed or intended to prohibit, restrict or regulate actions having
the purpose or effect of monopolization, lessening of competition or restraint
of trade.
"Contract" shall mean any note, bond, mortgage, indenture, license,
contract, agreement or other instrument or obligation.
"Conversion Number" shall have the meaning ascribed to it in Section
3.1(a)(i).
"Credit Suisse First Boston" shall mean Credit Suisse First Boston
Corporation, the Company's financial advisor.
"DGCL" shall mean the General Corporation Law of the State of
Delaware.
"D&O Insurance" shall have the meaning ascribed to it in Section
7.8(c).
"Dissenting Shares" shall have the meaning ascribed to it in Section
3.8.
"Employee Stock Options" shall mean all employee and non-employee
director stock options issued pursuant to the Company Stock Option Plans.
"Environmental Claim" shall mean any claim, action, investigation or
written notice to the Company or any of its subsidiaries by any person or entity
alleging potential liability (including, without limitation, potential liability
for investigatory costs, cleanup costs, governmental response costs, natural
resource damages, personal injuries, or penalties) arising out of, based on, or
resulting from, (a) the presence, or release into the environment, of any
Hazardous Substance at any location, whether or not owned or operated by the
Company or any of its subsidiaries or (b) circumstances forming the basis of any
violation, or alleged violation of any applicable Environmental Law.
"Environmental Laws" shall mean all federal, state, local and foreign
Laws and regulations, as in effect and as interpreted as of the date of this
Agreement, relating to pollution or protection of the environment, including,
without limitation, Laws and regulations relating to emissions, discharges,
releases or threatened releases of Hazardous Substances, or otherwise
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relating to the manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of Hazardous Substances.
"Environmental Permits" shall have the meaning ascribed to it in
Section 4.14(a).
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Exchange Agent" shall have the meaning ascribed to it in Section
3.2(a).
"Exchange Fund" shall have the meaning ascribed to it in Section
3.2(a).
"Filed Company SEC Reports" shall have the meaning ascribed to it in
Section 4.6(a).
"Filed Laser SEC Reports" shall have the meaning ascribed to it in
Section 5.6(a).
"GAAP" shall mean United States generally accepted accounting
principles and practices in effect from time to time, consistently applied.
"Governmental Entity" shall mean any court, arbitral tribunal,
administrative agency or commission or other governmental or regulatory
authority or agency.
"Hazardous Substance" shall mean all substances defined as Oils,
Pollutants or Contaminants in the National Oil and Hazardous Substances
Pollution Contingency Plan, 40 C.F.R. [Section] 300.5, or defined as such by, or
regulated as such under, any Environmental Law, including any radon, asbestos
and oil and petroleum products, by-products and fractions.
"Holdings" shall have the meaning ascribed to it in the Recitals.
"Holdings Disclosure Schedule" shall mean the Disclosure Schedule
being delivered by Holdings concurrently with the execution of the Agreement and
Plan of Merger relating to the Holdings Merger.
"Holdings Effective Time" shall mean the date and time on which the
Holdings Merger is effected.
"Holdings Merger" shall have the meaning ascribed to it in the
Recitals.
"HSR Act" shall mean the Hart-Scott-Rodino Antitrust Improvements Act
of 1976.
"Information Statement" shall have the meaning ascribed to it in
Section 4.9.
"Indemnified Person" shall have the meaning ascribed to it in Section
7.8(a).
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"Intellectual Property" shall mean all domestic and foreign patents,
patent applications, written invention disclosures to be filed or awaiting
filing determinations, trademark and service mark applications, registered
trademarks, registered service marks, registered copyrights, trademarks, service
marks and trade names.
"Laser Balance Sheet Date" shall have the meaning ascribed to it in
Section 5.6(c).
"Laser Common Stock" shall mean the common stock, par value $.01 per
share, of Laser.
"Laser Licenses" shall have the meaning ascribed to it in Section
5.11.
"Laser Material Adverse Effect" shall have the meaning ascribed to it
in Section 5.1.
"Laser Preferred Stock" shall mean the preferred stock, par value $.01
per share, of Laser.
"Laser SEC Reports" shall have the meaning ascribed to it in Section
5.6(a).
"Laser Shares" shall mean the shares of Laser Common Stock to be
issued in the Company Merger.
"Laser Stock Option Plans" shall have the meaning ascribed to it in
Section 5.2.
"Laser Stock Options" shall have the meaning ascribed to it in Section
5.2.
"Laws" shall mean any federal, state, local or foreign law, statute,
ordinance, rule, regulation, order, judgment or decree, administrative order or
decree, administrative or judicial decision, and any other executive or
legislative proclamation.
"Liens" shall mean all pledges, claims, liens, charges, encumbrances
and security interests of any kind or nature whatsoever.
"LYONs" shall mean the Liquid Yield Option[Trademark] Notes due 2013
of Worldwide.
"Merger Sub Common Stock" shall mean the common stock, par value $.01
per share, of Merger Sub.
"Morgan Stanley" shall mean Morgan Stanley & Co. Incorporated, Laser's
financial advisor.
"NYSE" shall mean the New York Stock Exchange, Inc.
"PBGC" shall mean the Pension Benefit Guaranty Corporation.
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"Pension Plan" shall have the meaning ascribed to it in Section
4.13(a).
"Per Share Merger Consideration" shall have the meaning ascribed to it
in Section 3.1(a)(i).
"Person" shall mean an individual, a corporation, a partnership, an
association, a trust or other entity or organization.
"Plans" shall have the meaning ascribed to it in Section 7.7(e).
"Properties" shall have the meaning ascribed to it in Section 4.14(c).
"Registration Statement" shall have the meaning ascribed to it in
Section 4.9.
"Release" shall mean any release, spill, emission, discharge, leaking,
pumping, injection, deposit, disposal, dispersal, leaching or migration into the
indoor or outdoor environment (including, without limitation, ambient air,
surface water, groundwater and surface or subsurface strata) or into or out of
any property, including the movement of Hazardous Materials through or in the
air, soil, surface water, groundwater or property.
"Schedule 13E-3" shall have the meaning ascribed to it in Section 4.9.
"Section 14(f) Notice" shall have the meaning ascribed to it in
Section 4.9.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"subsidiary" shall mean, with respect to any party, any corporation or
other organization, whether incorporated or unincorporated, of which (i) such
party or any other subsidiary of such party is a general partner or (ii) at
least 50% 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 or at
least 50% of the value of the outstanding equity 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.
"Surviving Corporation" shall have the meaning ascribed to it in
Section 2.1.
"Tax" (and, with correlative meaning, "Taxes" and "Taxable") shall
mean (i) any federal, state, local or foreign net income, gross income,
receipts, windfall profit, severance, property, production, sales, use, license,
excise, franchise, employment, payroll, withholding, alternative or add-on
minimum, ad valorem, transfer, stamp, or environmental tax, or any other tax,
custom, duty, governmental fee or other like assessment or charge of any kind
whatsoever, together with any interest or penalty, addition to tax or additional
amount imposed by any governmental authority; and (ii) any liability of Laser or
any Laser subsidiary or the Company or any of its subsidiaries, as applicable,
for the payment of amounts with respect to payments of a type described in
clause (i) as a result of being a member of an affiliated, consolidated,
combined or unitary group, or as a result of any obligation of Laser or any
Laser subsidiary or the Company
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or any of its subsidiaries, as the case may be, under any arrangement to share
liability for taxes or indemnify any other entity or person for taxes.
"Tax Return" shall mean any return, report or statement required to be
filed with respect to any Tax (including any attachments thereto), including,
without limitation, any information return, claim for refund, amended return or
declaration of estimated Tax.
"Welfare Plan" shall have the meaning ascribed to it in Section
4.13(a).
"Worldwide" shall mean Coleman Worldwide Corporation, a Delaware
corporation and a wholly owned subsidiary of Holdings.
ARTICLE II
THE COMPANY MERGER
Section 2.1 The Company Merger. Upon the terms and subject to the
conditions set forth herein, and in accordance with the DGCL, at the Company
Effective Time, Merger Sub shall be merged with and into the Company. Following
the Company Effective Time, the Company shall continue as the surviving
corporation (the "Surviving Corporation"), and the separate corporate existence
of Merger Sub shall cease. The Company Merger shall have the effects set forth
in Section 259 of the DGCL.
Section 2.2 Closing. The closing of the Company Merger (the "Closing")
will take place at 10:00 a.m. on a date to be specified by the parties (the
"Closing Date"), which shall be no later than the third NYSE trading day after
satisfaction or waiver of the conditions set forth in Section 8.1, at the
offices of Skadden, Arps, Slate, Meagher & Flom LLP, 919 Third Avenue, New York,
New York 10022, unless another time, date or place is agreed to in writing by
the parties hereto.
Section 2.3 Company Effective Time of the Company Merger. The Company
Merger shall become effective on the date and at the time at which a properly
executed certificate of merger (the "Certificate of Merger") is duly filed with
the Secretary of State of the State of Delaware. The Certificate of Merger shall
be filed as soon as practicable on or after the Closing Date. When used in this
Agreement, the term "Company Effective Time" shall mean the date and time on
which the Certificate of Merger is so filed.
Section 2.4 Certificate of Incorporation. From and after the Company
Effective Time, the certificate of incorporation of the Company as in effect at
the Company Effective Time (the "Certificate of Incorporation") shall be the
certificate of incorporation of the Surviving Corporation until amended as
provided by Law and the Certificate of Incorporation.
Section 2.5 By-Laws. From and after the Company Effective Time, the
by-laws of Merger Sub as in effect at the Company Effective Time shall be the
by-laws of the Surviving Corporation until amended as provided by the DGCL, the
Certificate of Incorporation and the terms thereof.
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Section 2.6 Directors. The directors of Merger Sub at the Company
Effective Time shall be the initial directors of the Surviving Corporation and
shall hold office from the Company Effective Time until their respective
successors are duly elected or appointed and qualify in the manner provided in
the Certificate of Incorporation and by-laws of the Surviving Corporation or as
otherwise provided by the DGCL (it being understood that the directors of the
Company shall resign upon the later of (i) the Holdings Effective Time and (ii)
the eleventh (11th) day following the date on which the Section 14(f) Notice
shall have been filed with the SEC and mailed to all stockholders of record of
the Company in accordance herewith).
Section 2.7 Officers. The officers of the Company at the Company
Effective Time shall be the initial officers of the Surviving Corporation and
shall hold office from the Company Effective Time until their respective
successors are duly elected or appointed and qualifies in the manner provided in
the Certificate of Incorporation and by-laws of the Surviving Corporation, or as
otherwise provided by Law.
ARTICLE III
CONVERSION OF SHARES
Section 3.1 Effect on Capital Stock. At the Company Effective Time, by
virtue of the Company Merger and without any action on the part of any holder
thereof:
(a) Conversion of Company Common Stock.
(i) Subject to Section 3.1(b) hereof, each share of Company
Common Stock issued and outstanding immediately prior to the Company
Effective Time (other than Dissenting Shares and Company Common Stock to be
cancelled in accordance with Section 3.1(c) hereof) shall be converted into
the right to receive (A) 0.5677 (the "Conversion Number") of a fully paid
and nonassessable share of Laser Common Stock and (B) $6.44 in cash,
without interest thereon (the consideration referred to in this Section
3.1(a) being sometimes referred to herein as the "Per Share Merger
Consideration").
(ii) If, prior to the Company Effective Time, Laser shall (A) pay
a dividend in, subdivide, combine into a smaller number of shares or issue
by reclassification of its shares, any shares of Laser Common Stock, the
Conversion Number shall be adjusted appropriately or (B) pay a dividend
(other than regular quarterly dividend payments, consistent with past
practice), whether in cash or property, the amount of the cash portion of
the Per Share Merger Consideration shall be appropriately adjusted such
that the amount of cash to be received with respect to each share of
Company Common Stock, or if a dividend shall have been paid in other
property, cash and other property to be received with respect to each share
of Company Common Stock, shall be equal to that which would have been
received in the aggregate with respect to each share of Company Common
Stock (on a per share equivalent basis) had the dividend been paid
following the Company Effective Time at a time when the Laser Shares to be
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issued pursuant hereto had been issued to the holders of the shares of
Company Common Stock.
(iii) Each of the shares of Company Common Stock converted in
accordance with paragraph (i) of this Section 3.1(a) shall no longer be
outstanding and shall automatically be cancelled and retired and shall
cease to exist, and each holder of a certificate representing any such
shares of Company Common Stock shall cease to have any rights with respect
thereto, except the right to receive the Per Share Merger Consideration and
cash in lieu of any fractional share of Laser Common Stock (determined in
accordance with Section 3.4 hereof), to be issued or paid in consideration
therefor upon the surrender of such certificate in accordance with Section
3.2 hereof, without interest.
(b) Company Common Stock Held by Worldwide or Holdings to Remain
Outstanding. Notwithstanding Section 3.1(a) hereof, at the Company Effective
Time all shares of Company Common Stock held by Worldwide or Holdings shall
remain outstanding and unchanged as a result of the Company Merger.
(c) Cancellation of Treasury Stock and Company Common Stock Held by
Laser and Company Subsidiaries. Each share of Company Common Stock, if any, held
in the treasury of the Company, by any subsidiary of the Company, by Laser or by
any subsidiary of Laser (other than Worldwide or Holdings) immediately prior to
the Company Effective Time shall be cancelled and retired and cease to exist.
(d) Cancellation of Merger Sub Common Stock. Each share of Merger Sub
Common Stock issued and outstanding immediately prior to the Company Effective
Time shall be cancelled and retired and cease to exist.
Section 3.2 Exchange of Certificates Representing Shares.
(a) As of the Company Effective Time, Laser shall deposit, or shall
cause to be deposited, with an exchange agent selected by Laser and reasonably
satisfactory to the Company (the "Exchange Agent"), for the benefit of the
holders of shares of Company Common Stock, for exchange in accordance with this
Article III: (i) certificates representing the number of Laser Shares issuable
in the Company Merger to be issued in respect of all shares of Company Common
Stock outstanding immediately prior to the Company Effective Time and which are
to be exchanged pursuant to the Company Merger (exclusive of shares to remain
outstanding pursuant to Section 3.1(b) hereof or to be canceled pursuant to
Section 3.1(c) hereof); and (ii) cash in an amount sufficient to make any cash
payment due under Sections 3.1(a)(i)(B) and 3.4 hereof (such cash and
certificates for Laser Shares being hereinafter referred to collectively as the
"Exchange Fund").
(b) As soon as reasonably practicable after the Company Effective
Time, Laser shall cause the Exchange Agent to mail (or deliver to its principal
office) to each holder of record of a certificate or certificates representing
shares of Company Common Stock (i) a letter of transmittal which shall specify
that delivery shall be effected, and risk of loss and title to the
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certificates for shares of Company Common Stock shall pass, only upon delivery
of the certificates for such shares of Company Common Stock to the Exchange
Agent and which shall be in such form and have such other provisions, including
appropriate provisions with respect to back-up withholding, as Laser may
reasonably specify, and (ii) instructions for use in effecting the surrender of
the certificates for shares of Company Common Stock. Upon surrender of a
certificate for shares of Company Common Stock for cancellation to the Exchange
Agent, together with such letter of transmittal, duly executed and completed in
accordance with the instructions thereto, the holder thereof shall be entitled
to receive in exchange therefor that portion of the Exchange Fund which such
holder has the right to receive pursuant to the provisions of this Article III,
after giving effect to any required withholding Tax, and the certificate for
shares of Company Common Stock so surrendered shall forthwith be cancelled. No
interest will be paid or accrued on the cash portion of the Exchange Fund. In
the event of any transfer of ownership of shares of Company Common Stock which
has not been registered in the transfer records of the Company, certificates
representing the proper number of shares of Laser Common Stock, if any, and a
check in an amount equal to the proper amount of the cash component, if any, of
the Exchange Fund, will be issued to the transferee of the certificate
representing the transferred shares of Company Common Stock, only upon
presentation to the Exchange Agent of a certificate or certificates representing
such shares of Company Common Stock, accompanied by all documents required to
evidence and effect the prior transfer thereof and to evidence that any
applicable stock transfer Taxes associated with such transfer were paid.
Section 3.3 Dividends; Transfer Taxes. No dividends that are declared
on Laser Common Stock will be paid to persons entitled to receive certificates
representing shares of Laser Common Stock until such persons surrender their
certificates representing shares of Company Common Stock. Upon such surrender,
there shall be paid to the person in whose name the certificates representing
such shares of Laser Common Stock shall be issued, any dividends which shall
have become payable with respect to such shares of Laser Common Stock between
the Company Effective Time and the time of such surrender. In no event shall the
person entitled to receive such dividends be entitled to receive interest on
such dividends. If any certificates for any shares of Laser Common Stock are to
be issued in a name other than that in which the certificate representing shares
of Company Common Stock surrendered in exchange therefor is registered, it shall
be a condition of such exchange that the person requesting such exchange shall
pay to the Exchange Agent any transfer or other Taxes required by reason of the
issuance of certificates for such shares of Laser Common Stock in a name other
than that of the registered holder of the certificate surrendered or shall
establish to the satisfaction of the Exchange Agent that such Tax has been paid
or is not applicable. Notwithstanding the foregoing, (i) neither the Exchange
Agent nor any party hereto shall be liable to a holder of shares of Company
Common Stock for any shares of Laser Common Stock or dividends thereon, any cash
payments to be made pursuant to Section 3.1(a)(i)(B) hereof or, in accordance
with Section 3.4 hereof, any cash in lieu of fractional share interests, in each
case, delivered to a public official pursuant to applicable escheat Laws and
(ii) any shares of Laser Common Stock held by the Exchange Agent prior to
surrender of certificates representing shares of Company Common Stock shall not
be deemed issued.
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Section 3.4 No Fractional Shares. No certificates or scrip
representing fractional shares of Laser Common Stock shall be issued upon the
surrender for exchange of certificates representing shares of Company Common
Stock pursuant to this Article III, and no dividend, stock split or other change
in the capital structure of Laser shall relate to any fractional security, and
such fractional interests shall not entitle the owner thereof to vote or to any
rights of a security holder. In lieu of any such fractional shares of Laser
Common Stock, each holder of shares of Company Common Stock who would otherwise
have been entitled to a fraction of a share of Laser Common Stock upon surrender
of stock certificates for exchange pursuant to this Article III will be paid
cash upon such surrender in an amount equal to the product of such fraction
multiplied by the closing sale price of one share of Laser Common Stock on the
NYSE on the day of the Company Effective Time, or, if shares of Laser Common
Stock are not so traded on such day, the closing sale price of one such share on
the next preceding day on which such share was traded on the NYSE. For purposes
of this Section 3.4, shares of Company Common Stock of any holder represented by
two or more certificates shall be aggregated, and in no event shall any holder
be paid an amount of cash pursuant to this Section 3.4 in respect of more than
one share of Laser Common Stock.
Section 3.5 Termination of Exchange Fund. Any portion of the Exchange
Fund which remains undistributed to the holders of the Company Common Stock for
six (6) months after the Company Effective Time shall be delivered to Laser,
upon demand, and any holders of the Company Common Stock who have not
theretofore complied with this Article III shall thereafter look only to Laser
for payment of their claim for the shares of Laser Common Stock and cash and
dividends or other distributions, if any, pursuant to this Article III.
Section 3.6 Investment of Exchange Fund. Without prejudice to the
rights of any holder of Company Common Stock to receive the Per Share Merger
Consideration, the Exchange Agent shall invest any cash included in the Exchange
Fund, as directed by Laser, on a daily basis. Any interest and other income
resulting from such investments shall be paid to Laser.
Section 3.7 Closing of Company Transfer Books. At the Company
Effective Time, the stock transfer books of the Company shall be closed and no
transfer of shares of Company Common Stock shall thereafter be made. If, after
the Company Effective Time, certificates representing shares of Company Common
Stock are presented to the Surviving Corporation, they shall be cancelled and
exchanged for the Per Share Merger Consideration applicable thereto.
Section 3.8 Dissenting Shares. Each outstanding share of Company
Common Stock as to which a written demand for appraisal is filed in accordance
with Section 262 of the DGCL and not withdrawn, and with respect to which a
consent is not given in favor of the Company Merger shall not be converted into
or represent a right to receive the Per Share Merger Consideration unless and
until the holder thereof shall have failed to perfect, or shall have effectively
withdrawn or lost, the right to appraisal of and payment for each such share of
Company Common Stock under Section 262, at which time each such share shall be
converted into the right to receive the Per Share Merger Consideration. All such
shares of Company
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Common Stock as to which such a written demand for appraisal is so filed and not
withdrawn and with respect to which a consent is not given in favor of the
Company Merger, except any such shares of Company Common Stock the holder of
which, prior to the Company Effective Time, shall have effectively withdrawn or
lost such right to appraisal and payment for such shares of Company Common Stock
under Section 262, are herein referred to as "Dissenting Shares." The Company
shall give Laser prompt notice upon receipt by the Company of any written
demands for appraisal rights, withdrawal of such demands, and any other written
communications delivered to the Company pursuant to Section 262, and the Company
shall give Laser the opportunity, to the extent permitted by Law, to participate
in all negotiations and proceedings with respect to such demands. Except with
the prior written consent of Laser, the Company shall not voluntarily make any
payment with respect to any demands for appraisal rights and shall not settle or
offer to settle any such demands. Each holder of Dissenting Shares who becomes
entitled, pursuant to the provisions of Section 262, to payment for such shares
of Dissenting Shares under the provisions of Section 262 shall receive payment
therefor from the Surviving Corporation and such shares of Company Common Stock
shall be cancelled thereafter.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Except as otherwise disclosed to Laser in a schedule delivered to
Laser prior to the execution hereof (which schedule shall contain appropriate
references to identify the representations and warranties herein to which the
information in such schedule relates) (the "Company Disclosure Schedule"), the
Company represents and warrants to Laser and Merger Sub as follows:
Section 4.1 Organization. The Company is a corporation duly organized,
validly existing and in good standing under the Laws of the State of Delaware
and has the corporate power to carry on its business as it is now being
conducted. The Company is duly qualified as a foreign corporation to do
business, and is in good standing, in each jurisdiction where the character of
its properties owned or held under lease or the nature of its activities makes
such qualification necessary, except where the failure to be so qualified would
not individually or in the aggregate have a material adverse effect on the
business, results of operations or financial condition of the Company and its
subsidiaries, taken as a whole (a "Company Material Adverse Effect").
Section 4.2 Capitalization. The authorized capital stock of the
Company consists of 80,000,000 shares of Company Common Stock and 20,000,000
shares of Company Preferred Stock. As of February 23, 1998, (i) 53,488,170
shares of Company Common Stock were issued and outstanding; (ii) 3,282,930
shares of Company Common Stock were issuable upon exercise of Employee Stock
Options to acquire 3,282,930 shares of Company Common Stock outstanding under
the Company Stock Option Plans (of which options to acquire 2,399,380 were
vested); and (iii) no shares of Company Preferred Stock were issued or
outstanding. As of such date, no shares of Company Common Stock were held as
treasury shares. All of the issued and outstanding shares of Company Common
Stock are validly issued,
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fully paid and nonassessable and free of preemptive rights. As of the date
hereof, except as set forth above, there are no shares of capital stock of the
Company issued or outstanding or any options, warrants, subscriptions, calls,
rights, convertible securities or other agreements or commitments obligating the
Company to issue, transfer, sell, redeem, repurchase or otherwise acquire any
shares of its capital stock or securities. There are no notes, bonds, debentures
or other indebtedness of the Company having the right to vote (or convertible
into or exchangeable for securities having the right to vote) on any matters
upon which stockholders of the Company may vote.
Section 4.3 Subsidiaries. All the outstanding shares of capital stock
of, or other ownership interests in, each of the Company's subsidiaries have
been validly issued and are fully paid and nonassessable and such shares (other
than directors' qualifying shares and similar interests) are owned directly or
indirectly by the Company, free and clear of all Liens. Except for the capital
stock of the Company's subsidiaries and except as set forth in Section 4.3 of
the Company Disclosure Schedule, the Company does not own, directly or
indirectly, any capital stock or other ownership interest in any corporation,
partnership, limited liability company, joint venture or other entity. Each of
the Company's subsidiaries that is a corporation is a corporation duly
organized, validly existing and in good standing under the Laws of its
jurisdiction of incorporation. Each of the Company's subsidiaries that is a
partnership or a limited liability company is duly formed and validly existing
under the Laws of its jurisdiction of formation. Each of the Company's
subsidiaries has the corporate power or the partnership power, as the case may
be, to carry on its business as it is now being conducted or presently proposed
to be conducted. Each the Company's subsidiaries that is a corporation is duly
qualified as a foreign corporation to do business, and is in good standing, in
each jurisdiction where the character of its properties owned or held under
lease or the nature of its activities makes such qualification necessary, except
where the failure to be so qualified would not individually or in the aggregate
have a Company Material Adverse Effect. Each of the Company's subsidiaries that
is a partnership is duly qualified as a foreign partnership authorized to do
business, and is in good standing, in each jurisdiction where the character of
its properties owned or held under lease or the nature of its activities makes
such qualification necessary, except where the failure to be so qualified would
not individually or in the aggregate have a Company Material Adverse Effect.
Except as set forth in Section 4.2 hereof, there are no outstanding options,
warrants, subscriptions, calls, rights, convertible securities or other
agreements or commitments obligating the Company or any of its subsidiaries to
issue, transfer or sell any securities of any Company subsidiary. There are no
voting, stockholder or other agreements or understandings to which the Company
or any of the Company's subsidiaries is a party or is bound with respect to the
voting of the capital stock of the Company or any of the Company's subsidiaries.
Section 4.4 Authority Relative to this Agreement. The Company has the
corporate power and authority to enter into this Agreement and to perform its
obligations hereunder and to consummate the transactions contemplated hereby.
The execution and delivery of this Agreement by the Company and the consummation
by the Company of the transactions contemplated hereby have been duly authorized
by the Board of Directors of the Company, and no other corporate actions or
proceedings on the part of the Company (including any action on the part of its
stockholders) are necessary to authorize this Agreement or the transactions
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contemplated hereby. This Agreement has been duly executed and delivered by the
Company and, assuming the due authorization and valid execution and delivery by
Laser and Merger Sub, constitutes a valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms, subject to
bankruptcy, insolvency, reorganization, moratorium or similar Laws now or
hereafter in effect relating to creditors' rights generally and to general
principles of equity.
Section 4.5 Consents and Approvals; No Violations. Except for
applicable requirements of the HSR Act, the Securities Act, the Exchange Act,
Competition Laws and state securities or blue sky Laws, and the filing and
recordation of the Certificate of Merger as required by the DGCL, no filing
with, and no permit, authorization, consent or approval of, any governmental or
regulatory authority is necessary for the consummation by the Company of the
transactions contemplated by this Agreement, except for such filings, permits,
authorizations, consents or approvals the failure of which to be made or
obtained would not individually or in the aggregate have a Company Material
Adverse Effect. Except as set forth in Section 4.5 of the Company Disclosure
Schedule, neither the execution and delivery of this Agreement by the Company,
nor the consummation by the Company of the transactions contemplated hereby, nor
compliance by the Company with any of the provisions hereof, will (a) conflict
with or result in any breach of any provisions of the certificate of
incorporation or by-laws of the Company or the certificate of incorporation or
by-laws of any of the Company's subsidiaries; (b) 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, conditions or provisions of any material (as defined
for purposes of Form 10-K) Contract to which the Company or any of the Company's
subsidiaries is a party or by which any of them or any of their properties or
assets may be bound; or (c) violate any order, writ, injunction, decree,
statute, rule or regulation applicable to the Company, any of the Company's
subsidiaries or any of their properties or assets, except in the case of clauses
(b) and (c) for violations, breaches or defaults which would not individually or
in the aggregate have a Company Material Adverse Effect.
Section 4.6 Reports and Financial Statements.
(a) The Company has filed all reports, forms, registrations,
schedules, statements and other documents required to be filed by it with the
SEC since January 1, 1997 (the "Company SEC Reports"). As of their respective
dates, the Company SEC Reports complied in all material respects with the
requirements of the Securities Act or the Exchange Act, as the case may be, and
the applicable rules and regulations promulgated thereunder. Except to the
extent that information contained in any Company SEC Report has been amended,
revised or superseded by a later Company SEC Report filed and publicly available
prior to the date of this Agreement (as amended, revised or superseded by a
later Company SEC Report filed and publicly available prior to the date of this
Agreement, the "Filed Company SEC Reports"), none of the Filed Company SEC
Reports, when filed, contained any untrue statement of a material fact or
omitted to state any material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading.
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(b) The consolidated financial statements of the Company included in
the Filed Company SEC Reports complied as to form in all material respects with
the applicable accounting requirements and the published rules and regulations
of the SEC with respect thereto have been prepared in accordance with GAAP
(except, in the case of the unaudited statements, as permitted by Form 10-Q of
the SEC) applied on a consistent basis during the periods involved (except as
may be indicated therein or in the notes thereto) and fairly present the
consolidated financial position of the Company and its consolidated subsidiaries
as of the dates thereof and the consolidated results of their operations and
their consolidated cash flows for the periods then ended (subject, in the case
of the unaudited statements, to normal year-end audit adjustments and to any
other adjustments described therein).
(c) Except as set forth in the Filed Company SEC Reports and except
for liabilities and obligations incurred in the ordinary course of business
consistent with past practice since the date of the most recent consolidated
balance sheet included in the Filed Company SEC Reports (the "Company Balance
Sheet Date"), neither the Company nor any of its subsidiaries has any material
liabilities or obligations of any nature (whether accrued, absolute, contingent
or otherwise) required by GAAP to be recognized or disclosed on a consolidated
balance sheet of the Company and its consolidated subsidiaries or in the notes
thereto.
Section 4.7 Absence of Certain Changes or Events. Except as set forth
in the Filed Company SEC Reports, since the Company Balance Sheet Date, the
business of the Company and its subsidiaries has been conducted only in the
ordinary course of business consistent with past practice, and there has not
been any event, change or development which individually or in the aggregate has
had or would reasonably be expected to have a Company Material Adverse Effect or
would impair or delay the ability of the Company to consummate the transactions
contemplated by, or to satisfy its obligations under, this Agreement. Except as
set forth in Section 4.7 of the Company Disclosure Schedule, during the period
from the Company Balance Sheet Date through the date of this Agreement, neither
the Company nor any of its subsidiaries has:
(i) declared, set aside or paid any distributions (whether in
cash, stock or property) with respect to its capital stock or (y) split,
combined, or reclassified any of its capital stock or issued or authorized
the issuance of any other securities in respect of, in lieu of or in
substitution for shares of its capital stock (other than dividends or stock
issuances by a wholly owned subsidiary of the Company to the Company or
another wholly owned subsidiary of the Company);
(ii) issued, delivered, sold, pledged or otherwise encumbered any
shares of its capital stock, any other voting securities or any securities
convertible into, or any options, warrants or rights to acquire, any such
shares, voting securities or convertible securities (other than the
issuance of Company Common Stock upon the exercise of Employee Stock
Options in accordance with their terms and issuances by a wholly owned
subsidiary of the Company to the Company or another wholly owned subsidiary
of the Company);
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(iii) in the case of the Company, amended its certificate of
incorporation or by-laws;
(iv) acquired or agreed to acquire by merging or consolidating
with, or in purchasing a substantial portion of the assets of, or in any
other manner, any business or any corporation, limited liability company,
partnership, association or other business organization or division thereof
material to the Company;
(v) other than in the ordinary course of business, (x) incurred
any indebtedness or (y) made any loans, advances or capital contributions
to, or investments in, any other person (other than the Company or a
subsidiary of the Company), in any case in an amount material to the
Company;
(vi) other than in the ordinary course of business or consistent
with the Company's capital budgets heretofore disclosed to Laser, made or
agreed to make any capital expenditure or capital expenditures;
(vii) other than in the ordinary course of business, made any Tax
election or settled or compromised any material income Tax liability;
(viii) except in the ordinary course of business or except as
would not reasonably be expected to have a Company Material Adverse Effect,
entered into any Contracts or amended or terminated any material Contract
or agreement to which the Company or any of its subsidiaries is a party or
waived, released or assigned any material rights or claims thereunder;
(ix) except as required by Law or contractual obligation or in
the ordinary course of business consistent with past practice, (a)
increased the compensation of any of its employees, (b) entered into any
Contract with any of its employees regarding his or her employment,
compensation or benefits, or (c) adopted any plan, arrangement or policy
which would become a Company Plan or amended any Company Plan to the extent
such adoption or amendment would create or increase any material liability
or obligation on the part of the Company or its subsidiaries;
(x) entered into any transaction or Contract with, or (except
pursuant to the Affiliate Agreements) made any payment to, any Affiliate of
the Company (other than to the Company's subsidiaries or its or their
officers or directors in the ordinary course of business consistent with
past practice); or
(xi) agreed to do any of the foregoing.
Section 4.8 Litigation. Except as disclosed in the Filed Company SEC
Reports and as set forth in Section 4.8 of the Company Disclosure Schedule, as
of the date hereof, to the Company's knowledge there is no suit, action,
proceeding or investigation pending or, to the knowledge of the Company,
threatened against or affecting the Company or any of its
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subsidiaries that individually or in the aggregate would reasonably be expected
to (i) have a Company Material Adverse Effect (taking into account any reserve
therefor as of the Company Balance Sheet Date), or (ii) delay in any material
respect or prevent the consummation of any of the transactions contemplated by
this Agreement, nor is there any judgment, order, decree, statute, Law,
ordinance, rule or regulation of any Governmental Entity or arbitrator
outstanding against the Company or any of its subsidiaries having, or which
would reasonably be expected to have, any effect referred to in clause (i) or
(ii) above.
Section 4.9 Information in Disclosure Documents and Registration
Statement. None of the information to be supplied by the Company for inclusion
or incorporation by reference in the information statement to be distributed in
connection with the Company Merger (as amended or supplemented, the "Information
Statement") or the related filing on Schedule 13E-3 (as amended or supplemented,
the "Schedule 13E-3") or the notice to be provided to the Company's stockholders
pursuant to Section 14(f) of the Exchange Act (as amended or supplemented, the
"Section 14(f) Notice") or the registration statement on Form S-4 under the
Securities Act for the purpose of registering the shares of Laser Common Stock
to be issued in the Company Merger (as amended or supplemented, the
"Registration Statement") will, in the case of the Registration Statement, at
the time it becomes effective and at the Company Effective Time, 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, in the case of the Information Statement, the Schedule 13E-3, the Section
14(f) Notice, at the time of the mailing thereof and, in the case of the
Information Statement, the Schedule 13E-3 at the Company Effective Time, 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 Information Statement, the Schedule 13E-3 and the Section 14(f)
Notice will comply as to form in all material respects with the provisions of
the Exchange Act, and the rules and regulations promulgated thereunder.
Section 4.10 Taxes. Except as would not have a Company Material
Adverse Effect or as set forth in Section 4.10 of the Company Disclosure
Schedule:
(a) Each of the Company and each of its subsidiaries has (i) filed (or
there has been filed on its behalf) with the appropriate Governmental Entities
all Tax Returns required to be filed by it, and all such Tax Returns are true,
correct and complete and (ii) has paid all Taxes due by it;
(b) there is no action, suit, investigation, audit, claim or
assessment pending or proposed in writing or threatened in writing with respect
to Taxes of the Company or any of its subsidiaries and, to the best of the
Company's knowledge, no basis exists therefor;
(c) there are no Liens for Taxes upon the assets of the Company or any
of its subsidiaries except Liens relating to current Taxes not yet due;
(d) the United States federal income Tax Returns which include the
Company and the Company's subsidiaries have been examined, and such examinations
have been completed, by the Internal Revenue Service (or the applicable statutes
of limitation for the
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assessment of federal income Taxes for such periods have expired) for all
periods through and including 1985.
Section 4.11 Compliance with Applicable Law. Except as disclosed in
the Filed Company SEC Reports, the Company and its subsidiaries have received
such certificates, permits, licenses, franchises, consents, approvals, orders,
authorizations and clearances from appropriate Governmental Entities (the
"Company Licenses") as are necessary to own or lease and operate their
respective properties and to conduct their respective businesses substantially
in the manner described in the Company SEC Reports and as currently owned or
leased and conducted, and all such Company Licenses are valid and in full force
and effect, except for any such certificates, permits, licenses, franchises,
consents, approvals, orders, authorizations and clearances which the failure to
have or to be in full force and effect would not reasonably be expected to have,
individually or in the aggregate, a Company Material Adverse Effect. Except as
disclosed in Filed Company SEC Reports, the Company and the Company's
subsidiaries are in compliance with their respective obligations under the
Company Licenses, with only such exceptions as, individually or in the
aggregate, would not reasonably be expected to have a Company Material Adverse
Effect. Except as disclosed in the Filed Company SEC Reports, the Company and
its subsidiaries are in compliance with all judgments, orders, decrees,
statutes, Laws, ordinances, rules and regulations of any Governmental Entity
applicable to them, except for such noncompliance which individually or in the
aggregate would not have a Company Material Adverse Effect.
Section 4.12 Labor Matters. Except as disclosed in the Filed Company
SEC Reports, neither the Company nor any of the Company's subsidiaries has any
labor contracts, collective bargaining agreements or material employment or
consulting agreements with any persons employed by or otherwise performing
services primarily for the Company or any of the Company's subsidiaries (the
"Company Business Personnel") or any representative of any Company Business
Personnel. Except as set forth in the Filed Company SEC Reports, neither the
Company nor any of its subsidiaries has engaged in any unfair labor practice
with respect to Company Business Personnel, and there is no unfair labor
practice complaint pending against the Company or any of its subsidiaries with
respect to Company Business Personnel which, in either such case, would
reasonably be expected to have, individually or in the aggregate, a Company
Material Adverse Effect. Except as set forth in the Filed Company SEC Reports,
there is no material labor strike, dispute, slowdown or stoppage pending or, to
the knowledge of the Company, threatened against the Company or any of its
subsidiaries, and neither the Company nor any of its subsidiaries has
experienced any material primary work stoppage or other material labor
difficulty involving its employees during the last three (3) years.
Section 4.13 ERISA Compliance.
(a) The Company has delivered to Laser or will deliver to Laser prior
to the Company Effective Time each "employee pension benefit plan" (as defined
in Section 3(2) of ERISA) (a "Pension Plan"), each "employee welfare benefit
plan" (as defined in Section 3(1) of ERISA) (a "Welfare Plan"), each material
bonus, stock option, stock purchase, stock ownership, stock bonus, restricted
stock, deferred compensation plan or arrangement and each other material
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employee fringe benefit plan or arrangement maintained, contributed to or
required to be maintained or contributed to by the Company or any of its
subsidiaries or any other person or entity that, together with the Company, is
or was treated as a single employer under Section 414(b), (c), (m) or (o) of the
Code (each, a "Commonly Controlled Entity") which is currently in effect for the
benefit of any current or former directors, officers, employees or independent
contractors of the Company or any of its subsidiaries (collectively, the
"Company Plans"). The Company has delivered to Laser or will deliver to Laser
prior to the Company Effective Time true, complete and correct copies of (x) the
two most recent annual reports on Form 5500 filed with the Internal Revenue
Service with respect to each Company Plan (if any such report was required), (y)
the most recent summary plan description for each Company Plan for which such
summary plan description is required and (z) each currently effective trust
agreement, insurance or group annuity contract and each other material funding
or financing arrangement relating to any Company Plan.
(b) No Commonly Controlled Entity has incurred any liability under
Title IV of ERISA, other than for contributions not yet due to a defined benefit
pension plan subject to Title IV of ERISA and other than for the payment of
premiums to the PBGC not yet due, and no condition exists that presents a
material risk of incurring any such liability, which liability, to the extent
currently due, has not been fully paid as of the date hereof and would
individually or in the aggregate be reasonably likely to result in a Company
Material Adverse Effect.
(c) Except as set forth in Company SEC reports or in Section 4.13 of
the Company Disclosure Schedule, neither the Company nor any of its subsidiaries
has any obligation to provide any welfare benefits to employees or former
employees following termination of employment except (i) for benefits the cost
of which is borne entirely by the employee or former employee, (ii) as required
under Section 4980 of the Code or other applicable law or (iii) obligations to
provide such benefits to Company employees employed in non-U.S.
jurisdictions.
(d) No Commonly Controlled Entity has engaged in a transaction
described in Section 4069 of ERISA that could subject the Company or any of its
subsidiaries or Laser to liability at any time after the date hereof, which
liability would be reasonably likely to result in a Company Material Adverse
Effect.
(e) No Commonly Controlled Entity has withdrawn from any multiemployer
plan where such withdrawal has resulted in any actual or potential "withdrawal
liability" (as defined in Section 4201 of ERISA) that has not been fully paid,
which liability would be reasonably likely to result in a Company Material
Adverse Effect.
(f) Except as set forth in Section 4.13 of the Company Disclosure
Schedule or as specifically provided in this Agreement, the transactions
contemplated by this Agreement will not, either alone or in connection with
another event, cause there to be paid or become payable any additional benefits
or any acceleration of the time of payment or vesting of any benefits under any
Company Plan or under any employment, severance, termination or compensation
agreement to which the Company is a party as of the Company Effective Time.
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Section 4.14 Environmental Matters.
(a) Except as disclosed in the Filed Company SEC Reports, the Company
and its subsidiaries are in compliance with all applicable Environmental Laws,
which compliance includes the possession of permits and governmental
authorizations required under applicable Environmental Laws ("Environmental
Permits") and compliance with the terms and conditions thereof, except where
such non-compliance would not result in a Company Material Adverse Effect.
(b) Except as disclosed in the Filed Company SEC Reports, there are no
Environmental Claims pending or, to the knowledge of the Company, threatened
against the Company or any of its subsidiaries that would reasonably be expected
to result in a Company Material Adverse Effect.
(c) Except as disclosed in the Filed Company SEC Reports, the
properties presently or to the knowledge of the Company formerly owned, leased
or operated by the Company or its subsidiaries (including groundwater under the
properties) (the "Properties") do not contain any Hazardous Substance other than
as permitted under applicable Environmental Law; provided, however, that with
respect to Properties formerly owned, leased or operated by the Company or its
subsidiaries, such representation is limited to the period prior to the
disposition of such Properties by the Company or its subsidiaries.
(d) Except as disclosed in the Filed Company SEC Reports, to the
knowledge of the Company, no Hazardous Substance has been disposed of or
transported from any of the Properties during the time any such Property was
owned, leased or operated by the Company or any of its subsidiaries, other than
as permitted under applicable Environmental Law and in effect at the time of
such disposal or transportation.
(e) Except as disclosed in the Filed Company SEC Reports, to the
knowledge of the Company, the Company and its subsidiaries have not become
obligated, whether by operation of Law or through contractual agreement, to
indemnify any other person or otherwise to assume liability for any claim
brought pursuant to any Environmental Law which could reasonably be expected to
have a Company Material Adverse Effect.
Section 4.15 Intellectual Property. The Company has previously
delivered to Laser a list, which, to the knowledge of the Company, is true and
correct as of the date hereof in all material respects, of all material issued
patents and registered trademarks of the Company. Except as set forth in Section
4.15 of the Company Disclosure Schedule, the Company and its subsidiaries own or
have sufficient rights to use all material Intellectual Property used in
connection with the business of the Company and its subsidiaries as currently
conducted. As used in this Section 4.15, the term "material," when applied to
Intellectual Property, means that such Intellectual Property is used in a
significant manner to conduct the business of the Company and its subsidiaries
as it is currently conducted.
Section 4.16 Contracts. Except as set forth in Section 4.16 of the
Company Disclosure Schedule, neither the Company nor any of its subsidiaries is
a party to or bound by
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any material Contract, other than (i) the Affiliate Agreements listed in Section
4.10 of the Holdings Disclosure Schedule, (ii) any Contract filed or
incorporated by reference as an exhibit to any Filed Company SEC Report or (iii)
any Contract (other than the Affiliate Agreements listed in Section 4.10 of the
Holdings Disclosure Schedule) entered into in the ordinary course of business
consistent with past practice.
Section 4.17 Opinion of Financial Advisor. The Board of Directors of
the Company has received the opinion of Credit Suisse First Boston, dated the
date hereof to the effect that the Per Share Merger Consideration is fair to the
holders of shares of Company Common Stock (other than Worldwide) from a
financial point of view.
Section 4.18 Takeover Statute. The Board of Directors of the Company
has approved the Holdings Merger solely for the purpose of rendering
inapplicable, and such approval is sufficient to render inapplicable, to the
Company Merger and the other transactions contemplated by this Agreement the
provisions of Section 203 of the DGCL. To the best of the Company's knowledge,
no other state takeover statute or similar statute or regulation applies or
purports to apply to the Company Merger, this Agreement or any of the
transactions contemplated hereby, and no provision of the certificate of
incorporation or by-laws of the Company or certificates of incorporation or
by-laws (or comparable organizational documents) of any subsidiary of the
Company would, directly or indirectly, restrict or impair the ability of Laser
to vote, or otherwise to exercise the rights of a stockholder with respect to,
shares of capital stock of the Company or any of its subsidiaries that may be
acquired or controlled by Laser.
Section 4.19 Brokers. No broker, investment banker or other person,
other than Credit Suisse First Boston, the fees and expenses of which will be
paid by the Company (as reflected in an agreement between Credit Suisse First
Boston and the Company, a copy of which has been furnished to Laser), is
entitled to any broker's, finder's or other similar fee or commission in
connection with the transactions contemplated by this Agreement based upon
arrangements made by or on behalf of the Company.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF LASER AND MERGER SUB
Laser and Merger Sub represent and warrant to the Company as follows:
Section 5.1 Organization. Laser is a corporation duly organized,
validly existing and in good standing under the Laws of the State of Delaware
and has the corporate power to carry on its business as it is now being
conducted. Laser is duly qualified as a foreign corporation to do business, and
is in good standing, in each jurisdiction where the character of its properties
owned or held under lease or the nature of its activities makes such
qualification necessary, except where the failure to be so qualified would not
individually or in the aggregate have a material adverse effect on the business,
results of operations or financial condition of Laser and its subsidiaries,
taken as a whole (a "Laser Material Adverse Effect").
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Section 5.2 Capitalization. The authorized capital stock of Laser
consists of 200,000,000 shares of Laser Common Stock, and 2,000,000 shares of
Laser Preferred Stock. As of February 23, 1998, (i) 85,988,627 shares of Laser
Common Stock were issued and outstanding; (ii) 16,129,197 shares of Laser Common
Stock were issuable upon exercise of employee and non-employee stock options
(the "Laser Stock Options") outstanding under all stock option plans of Laser
(the "Laser Stock Option Plans") or granted pursuant to employment agreements;
and (iii) no shares of Laser Preferred Stock were issued and outstanding. As of
such date, 4,568,959 shares of Laser Common Stock were held as treasury shares.
All of the issued and outstanding shares of Laser Common Stock are validly
issued, fully paid and nonassessable and free of preemptive rights. All of the
shares of Laser Common Stock issuable as consideration in the Company Merger at
the Company Effective Time in accordance with this Agreement will be, when so
issued, duly authorized, validly issued, fully paid and nonassessable and free
of preemptive rights. As of such date, except as set forth above, there are no
shares of capital stock of Laser issued or outstanding or, as of such date or as
of the date hereof, except as set forth above, any options, warrants,
subscriptions, calls, rights, convertible securities or other agreements or
commitments obligating Laser to issue, transfer, sell, redeem, repurchase or
otherwise acquire any shares of its capital stock or securities, or the capital
stock or securities of Laser. There are no notes, bonds, debentures or other
indebtedness of Laser having the right to vote (or convertible into or
exchangeable for securities having the right to vote) on any matters upon which
stockholders of Laser may vote.
Section 5.3 Merger Sub. Merger Sub is a corporation duly organized,
validly existing and in good standing under the Laws of the State of Delaware.
Merger Sub is a newly incorporated company formed solely for purposes of
consummating the transactions contemplated by this Agreement and has engaged in
no activity other than as provided in, or contemplated by, this Agreement. The
authorized capital stock of Merger Sub consists of 1,000 shares of Merger Sub
Common Stock, all of which are validly issued, fully paid and nonassessable and
are owned by Laser. Except as set forth above there are no shares of capital
stock of Merger Sub issued or outstanding or any options, warrants,
subscription, calls, rights, convertible securities or other agreements or
commitments obligating Merger Sub to issue, transfer, sell, redeem, repurchase
or otherwise acquire any shares of its capital stock or securities.
Section 5.4 Authority Relative to this Agreement. Each of Laser and
Merger Sub has the corporate power and authority to enter into this Agreement
and to perform its obligations hereunder and to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement by Laser and
Merger Sub and the consummation by Laser and Merger Sub of the transactions
contemplated hereby have been duly authorized by the Boards of Directors of
Laser and Merger Sub, and no other corporate action or proceedings on the part
of Laser or Merger Sub (including any action on the part of its stockholders) is
necessary to authorize this Agreement or the transactions contemplated hereby.
This Agreement has been duly executed and delivered by Laser and Merger Sub and,
assuming it is a valid and binding obligation of the Company, constitutes a
valid and binding agreement of Laser and Merger Sub, enforceable against Laser
and Merger Sub in accordance with its terms, except that such enforcement may be
subject to any bankruptcy, insolvency, reorganization, moratorium or similar
Laws now or hereafter in effect relating to creditors' rights generally and
other forms of
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equitable relief may be subject to equitable defenses and the discretion of the
court before which any proceedings therefor may be brought.
Section 5.5 Consents and Approvals; No Violations. Except for
applicable requirements of the HSR Act, the Securities Act, the Exchange Act,
Competition Laws, and state securities or blue sky Laws, and the filing of the
Certificate of Merger in such form as required by, and executed in accordance
with the relevant provisions of, the DGCL, no filing with, and no permit,
authorization, consent or approval of, any governmental or regulatory authority
is necessary for the consummation by Laser or Merger Sub of the transactions
contemplated by this Agreement, except for such filings, permits,
authorizations, consents or approvals the failure of which to be made or
obtained would not (i) individually or in the aggregate have a Laser Material
Adverse Effect or (ii) delay in any material respect or prevent the consummation
of any of the transactions contemplated by this Agreement. Neither the execution
and delivery of this Agreement by Laser or Merger Sub nor the consummation by
Laser or Merger Sub of the transactions contemplated hereby, nor compliance by
Laser with any of the provisions hereof, will (a) conflict with or result in any
breach of any provisions of the certificate of incorporation or by-laws of Laser
or Merger Sub; (b) 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,
conditions or provisions of any material (as defined for purposes of Form 10-K)
Contract to which Laser, Merger Sub or any of their subsidiaries is a party or
by which any of them or any of their properties or assets may be bound; or (c)
violate any order, writ, injunction, decree, statute, rule or regulation
applicable to Laser, Merger Sub, any of their subsidiaries or any of their
properties or assets, except, in the case of clauses (b) and (c), for
violations, breaches or defaults which would not individually or in the
aggregate have a Laser Material Adverse Effect.
Section 5.6 Reports and Financial Statements.
(a) Laser has filed all reports, forms, registrations, schedules,
statements and other documents required to be filed by it with the SEC since
January 1, 1997 (the "Laser SEC Reports"). As of their respective dates, the
Laser SEC Reports complied in all material respects with the requirements of the
Securities Act or the Exchange Act, as the case may be, and the applicable rules
and regulations promulgated thereunder. Except to the extent that information
contained in any Laser SEC Report has been amended, revised or superseded by a
later Laser SEC Report filed and publicly available prior to the date of this
Agreement (as amended, revised or superseded by a later filed Laser SEC Report
to the date of this Agreement, the "Filed Laser SEC Reports"), none of the Filed
Laser SEC Reports, when filed, contained any untrue statement of a material fact
or omitted to state any material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances under which they
were made, not misleading.
(b) The consolidated financial statements of Laser included in the
Filed Laser SEC Reports complied as to form in all material respects with the
applicable accounting requirements and the published rules and regulations of
the SEC with respect thereto, have been prepared in accordance with GAAP
(except, in the case of the unaudited statements, as permitted
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by Form 10-Q of the SEC) applied on a consistent basis during the periods
involved (except as may be indicated therein or in the notes thereto) and fairly
present the consolidated financial position of Laser and its consolidated
subsidiaries as of the dates thereof and the consolidated results of their
operations and their consolidated cash flows for the periods then ended
(subject, in the case of the unaudited statements, to normal year-end audit
adjustments and to any other adjustments described therein).
(c) Except as set forth in the Filed Laser SEC Reports and except for
liabilities and obligations incurred in the ordinary course of business
consistent with past practice since the date of the most recent consolidated
balance sheet included in the Filed Laser SEC Reports (the "Laser Balance Sheet
Date"), neither Laser nor any of the Laser subsidiaries has any material
liabilities or obligations of any nature (whether accrued, absolute, contingent
or otherwise) required by GAAP to be recognized or disclosed on a consolidated
balance sheet of Laser and its consolidated subsidiaries or in the notes
thereto.
Section 5.7 Absence of Certain Changes or Events. Except as set forth
in the Filed Laser SEC Reports, since the Laser Balance Sheet Date, the business
of Laser and its subsidiaries has been conducted only in the ordinary course of
business consistent with past practice, and there has not been any event, change
or development which individually or in the aggregate has had or would
reasonably be expected to have a Laser Material Adverse Effect or would impair
or delay the ability of Laser to consummate the transactions contemplated by, or
to satisfy its obligations under, this Agreement.
Section 5.8 Litigation. Except as disclosed in the Filed Laser SEC
Reports, there is no suit, action, proceeding or investigation pending or, to
the knowledge of Laser, threatened against or affecting Laser or any of its
subsidiaries that individually or in the aggregate would reasonably be expected
to (i) have a Laser Material Adverse Effect (taking into account any reserve
therefor as of the most recent balance sheet included in the Filed Laser SEC
Reports) or (ii) delay in any material respect or prevent the consummation of
any of the transactions contemplated by this Agreement, nor is there any
judgment, order, decree, statute, Law, ordinance, rule or regulation of any
Governmental Entity or arbitrator outstanding against Laser or any of its
subsidiaries having, or which would reasonably be expected to have, any effect
referred to in clause (i) or (ii) above.
Section 5.9 Information in Disclosure Documents and Registration
Statement. None of the information to be supplied by Laser for inclusion or
incorporation by reference in (a) the Registration Statement or (b) the
Information Statement, the Schedule 13E-3 or the Section 14(f) Notice will, in
the case of the Registration Statement, at the time it becomes effective and at
the Company Effective Time 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, in the case of the Information
Statement, the Schedule 13E-3 and the Section 14(f) Notice, at the time of the
mailing thereof and, in the case of the Information Statement and the Schedule
13E-3, at the Company Effective Time, 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.
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The Registration Statement will comply as to form in all material respects with
the provisions of the Securities Act and the rules and regulations promulgated
thereunder. The Schedule 13E-3 will comply as to form in all material respects
with the provisions of the Exchange Act and the rules and regulations
promulgated thereunder.
Section 5.10 Taxes.
(a) Laser and its subsidiaries have filed (or there have been filed on
their behalf) with the appropriate governmental authorities all material Tax
Returns required to be filed by them and such Tax Returns are true, correct and
complete in all material respects and disclose all Taxes required to be paid by
them for the periods covered thereby; and
(b) all material Taxes (whether or not shown on any Tax Return) owed
by Laser and its subsidiaries and required to be paid on or before the Closing
Date have been (or will be) timely paid or, in the case of Taxes which Laser or
any of its subsidiaries is presently contesting in good faith, an adequate
reserve has been established for such Taxes in accordance with GAAP.
Section 5.11 Compliance with Applicable Law. Except as disclosed in
the Filed Laser SEC Reports, Laser and its subsidiaries have received such
certificates, permits, licenses, franchises, consents, approvals, orders,
authorizations and clearances from appropriate Governmental Entities (the "Laser
Licenses") as are necessary to own or lease and operate their respective
properties and to conduct their respective businesses substantially in the
manner described in the Laser SEC Reports and as currently owned or leased and
conducted, and all such Laser Licenses are valid and in full force and effect,
except for any such certificates, permits, licenses, franchises, consents,
approvals, orders, authorizations and clearances which the failure to have or to
be in full force and effect would not reasonably be expected to have,
individually or in the aggregate, a Laser Material Adverse Effect. Except as
disclosed in the Filed Laser SEC Reports, Laser and its subsidiaries are in
compliance in all material respects with their respective obligations under the
Laser Licenses, with only such exceptions as, individually or in the aggregate,
would not reasonably be expected to have a Laser Material Adverse Effect. Except
as disclosed in the Filed Laser SEC Reports, Laser and its subsidiaries are in
compliance with all judgments, orders, decrees, statutes, Laws, ordinances,
rules and regulations of any Governmental Entity applicable to them, except for
such noncompliance which individually or in the aggregate would not have a Laser
Material Adverse Effect.
Section 5.12 Brokers. No broker, investment banker or other person,
other than Morgan Stanley, the fees and expenses of which will be paid by Laser
(as reflected in an agreement between Morgan Stanley and Laser) is entitled to
any broker's, finder's or other similar fee or commission in connection with the
transactions contemplated by this Agreement based upon arrangements made by or
on behalf of Laser.
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ARTICLE VI
COVENANTS RELATING TO CONDUCT OF BUSINESS
Section 6.1 Conduct of Business by the Company. During the period
from the date of this Agreement to the Holdings Effective Time, except as
expressly permitted by this Agreement or with the prior written consent of Laser
or as set forth in Section 6.1 of the Company Disclosure Schedule, the Company
shall, and shall cause its subsidiaries to, carry on the business of the Company
and its subsidiaries in the usual, regular and ordinary course in substantially
the same manner as heretofore conducted and in compliance in all material
respects with all applicable Laws and regulations and, to the extent consistent
therewith, use all reasonable efforts to preserve intact the current business
organizations of the Company and its subsidiaries, and to preserve its
relationships with those persons having business dealings with the Company and
its subsidiaries to the end that the goodwill and ongoing businesses of the
Company and its subsidiaries shall be unimpaired at the Holdings Effective Time.
Without limiting the generality of the foregoing, during the period from the
date of this Agreement to the Holdings Effective Time, the Company agrees as to
itself and its subsidiaries that, except as expressly permitted by this
Agreement or with the prior written consent of Laser or as set forth in Section
6.1 of the Company Disclosure Schedule:
(i) Neither the Company nor any of its subsidiaries shall (x)
declare, set aside or pay any distributions (whether in cash, stock or
property) with respect to its capital stock or (y) split, combine, or
reclassify any of its capital stock or issue or authorize the issuance of
any other securities in respect of, in lieu of or in substitution for
shares of its capital stock (other than dividends or stock issuances by a
wholly owned subsidiary of the Company to the Company or another wholly
owned subsidiary of the Company);
(ii) Neither the Company nor any of its subsidiaries shall issue,
deliver, sell, pledge or otherwise encumber any shares of its capital
stock, any other voting securities or any securities convertible into, or
any options, warrants or rights to acquire, any such shares, voting
securities or convertible securities (other than the issuance of Company
Common Stock upon the exercise of Employee Stock Options in accordance with
their terms and issuances by a wholly owned subsidiary of the Company to
the Company or another wholly owned subsidiary of the Company);
(iii) The Company shall not amend its certificate of
incorporation or by-laws;
(iv) Other than as would not be material to the Company, the
Company and its subsidiaries shall not acquire or agree to acquire (x) by
merging or consolidating with, or by purchasing a substantial portion of
the assets of, or in any other manner, any business or any corporation,
limited liability company, partnership, joint venture, association or other
business organization or division thereof or (y) any assets that
individually or in the aggregate are material to the Company and its
subsidiaries;
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(v) Other than as would not be material to the Company, the
Company and its subsidiaries shall not sell, lease, license or otherwise
encumber or subject to any Lien or otherwise dispose of any of the
properties or assets of the Company and its subsidiaries, other than in the
ordinary course of business consistent with past practice or pursuant to
existing contractual obligations, if any, set forth in Section 6.1 of the
Company Disclosure Schedule;
(vi) Other than in the ordinary course of business or as would
not be material to the Company, the Company and its subsidiaries shall not
(x) incur any indebtedness or (y) make any loans, advances or capital
contributions to, or investments in, any other person (other than the
Company or a subsidiary of the Company), other than to officers and
employees of the Company and its subsidiaries for travel, business or
relocation expenses in the ordinary course of business;
(vii) Other than in the ordinary course of business or consistent
with the Company's 1998 capital budget;
(viii) Other than in the ordinary course of business, the Company
and its subsidiaries shall not make any material Tax election or settle or
compromise any material income Tax liability;
(ix) Except in the ordinary course of business or except as would
not reasonably be expected to have a Company Material Adverse Effect, the
Company and its subsidiaries (i) shall not enter into any Contracts and
(ii) shall not modify, amend or terminate any material Contract or
agreement to which the Company or any of its subsidiaries is, or as of the
Company Effective Time will be, a party or waive, release or assign any
material rights or claims thereunder;
(x) Except as required by Law or previously existing contractual
arrangements, in the ordinary course of business consistent with past
practice or as disclosed or otherwise provided in this Agreement, the
Company will not, nor will it permit any of its subsidiaries to, (a)
increase the compensation of any of its employees, (b) enter into any
Contract with any of its employees regarding his or her employment,
compensation or benefits, or (c) adopt any plan, arrangement or policy
which would become a Company Plan or amend any Company Plan to the extent
such adoption or amendment would create or materially increase any material
liability or obligation on the part of the Company or its subsidiaries;
(xi) The Company and its subsidiaries shall not make any change
to their accounting methods, principles or practices, except as may be
required by GAAP or Regulation S-X promulgated by the SEC or by Law;
(xii) The Company shall not, and shall not permit any of its
subsidiaries to, create, incur, suffer to exist or assume any material Lien
on any of their assets, except as would not have a Company Material Adverse
Effect or materially impair the
-27-
Company's conduct of the business and operations of the Company and its
subsidiaries, as presently conducted;
(xiii) The Company shall not, and shall not permit any of its
subsidiaries to enter into any transaction or contract with, or (except
pursuant to the Affiliate Agreements) make any payment to, any Affiliate of
the Company (other than the Company's subsidiaries or its or their officers
or directors in the ordinary course of business consistent with past
practice); and
(xiv) The Company and its subsidiaries shall not authorize, or
commit or agree to take, any of the foregoing actions.
Section 6.2 Other Actions. During the period from the date hereof to
the Holdings Effective Time, the Company and Laser shall not, and shall not
permit any of their respective subsidiaries to, take any action that would, or
that could reasonably be expected to, result in (i) any of the representations
and warranties of such party set forth in this Agreement that are qualified as
to materiality becoming untrue, (ii) any of such representations and warranties
that are not so qualified becoming untrue in any material respect or (iii) any
of the conditions to the Company Merger set forth in Article VIII hereof not
being satisfied.
Section 6.3 Advice of Changes. Upon obtaining knowledge of any such
occurrence, the Company and Laser shall promptly advise the other party orally
and in writing of (i) any representation or warranty made by it contained in
this Agreement that is qualified as to materiality becoming untrue or inaccurate
in any respect or any such representation or warranty that is not so qualified
becoming untrue or inaccurate in any material respect, (ii) the failure by it to
comply with or satisfy in any material respect any covenant, condition or
agreement to be complied with or satisfied by it under this Agreement or (iii)
any change or event (x) having, or which, insofar as can reasonably be foreseen,
would have, in the case of Laser, a Laser Material Adverse Effect and, in the
case of the Company, a Company Material Adverse Effect, (y) having, or which,
insofar as can reasonably be foreseen, would have, the effect set forth in
clause (i) above or (z) which has resulted, or which, insofar as can reasonably
be foreseen, would result, in any of the conditions set forth in Article VIII
hereof not being satisfied; provided, however, that no such notification shall
affect the representations, warranties, covenants or agreements of the parties
or the conditions to the obligations of the parties under this Agreement.
Section 6.4 Conduct of Business of Merger Sub. From the date hereof to
the Company Effective Time, Merger Sub shall not (i) engage in any activities of
any nature, (ii) acquire any assets, or (iii) incur any indebtedness or assume
any liabilities or obligations, in each case, except as provided in or
contemplated by this Agreement.
Section 6.5 Section 14(f) Notice. Promptly after the date hereof,
Laser shall provide to the Company in writing the information with respect to
the Laser Designees (as defined in the Holdings Merger Agreement) required by
Section 14(f) of the Exchange Act and Rule 14f-1 of the SEC. Promptly after its
receipt of such information, the Company shall file with the SEC and mail to all
stockholders of record of the Company the Section 14(f) Notice.
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ARTICLE VII
ADDITIONAL AGREEMENTS
Section 7.1 Preparation of the Registration Statement, the
Information Statement, the Schedule 13E-3 and the Section 14(f) Notice. As
soon as reasonably practicable following the date of this Agreement, Laser and
the Company shall prepare and file with the SEC the Information Statement and
Laser shall prepare and file with the SEC the Registration Statement, in which
the Information Statement will be included as a prospectus (including the
financial statements and pro forma financial information required to be set
forth therein), and the Schedule 13E-3 and the Section 14(f) Notice. Laser shall
use all reasonable best efforts to have the Registration Statement declared
effective under the Securities Act and the Schedule 13E-3 and the Section 14(f)
Notice cleared by the SEC and mailed as promptly as practicable after such
filing. The Company will use all reasonable best efforts to cause the
Information Statement and the Schedule 13E-3 and the Section 14(f) Notice to be
mailed to the Company's stockholders as promptly as practicable after it has
been cleared by the SEC. Each of Laser and the Company shall also take any
action (other than qualifying to do business in any jurisdiction in which it is
not now so qualified or to file a general consent to service of process)
required to be taken under any applicable state securities Laws in connection
with the issuance of Laser Common Stock in connection with the Company Merger
and the Holdings Merger. The Company shall furnish all information concerning
the Company, its subsidiaries and the holders of the Company Common Stock and
Laser shall furnish all information concerning Laser and its subsidiaries, in
each case, as may be reasonably requested in connection with any such action.
Section 7.2 Access and Information; Confidentiality. The Company and
Laser shall each afford to the other and to the other's financial advisors,
legal counsel, accountants, consultants and other representatives full access at
all reasonable times throughout the period prior to the Company Effective Time
to all of its books, records, properties, plants and personnel (provided that
all such access shall be on reasonable advance notice and shall not disrupt
normal business operations) and, during such period, each shall furnish promptly
to the other (a) a copy of each report, schedule and other document filed or
received by it pursuant to the requirements of federal or state securities Laws,
and (b) all other information as such other party may reasonably request,
provided that no investigation pursuant to this Section 7.2 shall affect any
representations or warranties made herein or the conditions to the obligations
of the respective parties to consummate the Company Merger. Each party and their
respective affiliates, representatives and agents shall hold in confidence all
nonpublic information in accordance with the terms of the Confidentiality
Agreements between Laser and the Company dated February 4, 1998 and February 23,
1998.
Section 7.3 Comfort Letters.
(a) The Company shall use its reasonable best efforts to cause to be
delivered to Laser "comfort" letters of Ernst & Young, LLP, the Company's
independent public accountants, dated the date on which the Registration
Statement shall become effective and as of the date on which the Information
Statement is mailed to the Company's stockholders, and addressed to
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Laser and the Company, in form and substance reasonably satisfactory to Laser
and as is reasonably customary in scope and substance for letters delivered by
independent public accountants in connection with transactions such as those
contemplated by this Agreement.
(b) Laser shall use its reasonable best efforts to cause to be
delivered to the Company "comfort" letters of Arthur Andersen, LLP, Laser's
independent public accountants, dated the date on which the Registration
Statement shall become effective and as of the date on which the Information
Statement is mailed to the Company's stockholders, and addressed to the Company
and Laser, in form and substance reasonably satisfactory to the Company and as
is reasonably customary in scope and substance for letters delivered by
independent public accountants in connection with transactions such as those
contemplated by this Agreement.
Section 7.4 Listing Application. Laser shall prepare and submit to the
NYSE a listing application covering the Laser Shares to be issued in connection
with the Company Merger, and shall use its reasonable best efforts to obtain,
prior to the Company Effective Time, approval for the listing of such Laser
Shares, subject to official notice of issuance.
Section 7.5 Affiliates. Prior to the Company Effective Time, the
Company shall cause to be prepared and delivered to Laser a list (reasonably
satisfactory to counsel for Laser) identifying each person who, at the time the
Information Statement is mailed to the Company's stockholders, may be deemed to
be an "affiliate" of the Company, as such term is used in paragraphs (c) and (d)
of Rule 145 under the Securities Act (the "Company Rule 145 Affiliates"). The
Company shall use its reasonable best efforts to cause such person who is
identified as a Company Rule 145 Affiliate in such list to deliver to Laser on
or prior to the Company Effective Time a written agreement, in customary form,
that such Company Rule 145 Affiliate will not (i) sell, pledge, transfer or
otherwise dispose of, or in any other way reduce such Company Rule 145
Affiliate's risk relative to, any Laser Shares issued to such Company Rule 145
Affiliate in connection with the Company Merger, except pursuant to an effective
registration statement or in compliance with such Rule 145 or another exemption
from the registration requirements of the Securities Act or (ii) sell or in any
other way reduce such Rule 145 Affiliate's risk relative to any Laser Shares
received in the Company Merger (within the meaning of Section 201.01 of the
SEC's Financial Reporting Release No. 1) during the period commencing thirty
(30) days prior to the Company Effective Time and ending at such time as the
financial results (including combined sales and net income) covering at least
thirty (30) days of post-Merger operations have been published, except as
permitted by Staff Accounting Bulletin No. 76 issued by the SEC.
Section 7.6 HSR Act; Competition Laws. As soon as reasonably
practicable, the Company, Laser and Merger Sub shall make or cause to be made
all filings and submissions under the HSR Act (if applicable) and any other
applicable Competition Laws as may be reasonably required to be made in
connection with this Agreement and the transactions contemplated hereby. Subject
to Section 7.2 hereof, the Company will furnish to Laser and Laser will furnish
to the Company, such information and assistance as the other may reasonably
request in connection with the preparation of any such filings or submissions.
Subject to Section 7.2 hereof, the Company will provide Laser, and Laser will
provide the Company, with copies of
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all correspondence, filings or communications (or memoranda setting forth the
substance thereof) between such party or any of its representatives, on the one
hand, and any governmental agency or authority or members of their respective
staffs, on the other hand, with respect to this Agreement and the transactions
contemplated hereby. The Company and Laser shall consult with one another with
respect to any such correspondence, filings or communications and shall engage
in discussions with any Governmental Entity on a joint basis.
Section 7.7 Employee Matters.
(a) From and after the Holdings Effective Time, Laser shall honor, and
shall cause the Company to honor, all employment, severance, termination,
consulting and retirement agreements to which the Company is a party as of the
Holdings Effective Time; provided, however, that (i) neither Laser nor the
Company shall have any responsibility for the Company's obligations under that
certain employment agreement entered into as of October 1, 1997, between the
Company and Jerry W. Levin (except for the incentive payment provided for in
section 3.2(b) thereof (relating to the divestiture of Coleman Safety & Security
Products, Inc.), which shall be the responsibility of the Company and paid in
accordance with the terms of section 3.2(b) thereof), and (ii) neither Laser nor
the Company shall have any responsibility for the Company's obligations under
that certain employment agreement entered into as of July 1, 1997, between the
Company and Paul E. Shapiro. Except as provided in the first sentence of Section
7.7(b) or the proviso to this sentence, from and after the Holdings Effective
Time, Laser will cause the Company to allow Company employees to participate in
Laser employee benefit plans on substantially the same basis as similarly
situated Laser employees; provided, however, that Laser will cause the Company
to continue the Company Plans for at least six (6) months following the Holdings
Effective Time. Laser will or will cause the Company to give Company employees
full credit for purposes of eligibility and vesting of benefits and benefit
accrual for service with the Company and its affiliates prior to the Holdings
Effective Time under each Laser employee benefit plan; provided, however, that
no such crediting of service results in duplication of benefits. With respect to
any welfare benefit plans maintained for the benefit of Company employees from
and after the Holdings Effective Time, Laser shall (i) cause there to be waived
any pre-existing condition limitations and (ii) give effect, in determining any
deductible and maximum out-of-pocket limitations, to claims incurred and amounts
paid by, and amounts reimbursed to, such employees with respect to similar plans
maintained by the Company for such employee's benefit immediately prior to the
Holdings Effective Time. Laser acknowledges that, for the purposes of certain of
such Company Plans and certain of such other employment, severance, termination,
consulting and retirement agreements to which the Company is currently a party,
the consummation of the Holdings Merger will constitute a "change in control" of
the Company (as such term is defined in such plans and agreements). Laser agrees
to cause the Company, after the Holdings Effective Time, to pay all amounts
provided under such Company Plans and agreements as a result of a change in
control of the Company in accordance with their respective terms and to honor,
and to cause the Company to honor, all rights, privileges and modifications to
or with respect to any such Company Plans or agreements which become effective
as a result of such change in control.
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(b) Laser shall cause the Company to continue the Company's Executive
Annual Incentive Policy for the remainder of 1998, and participants therein
shall not be eligible for participation in an analogous Laser incentive plan in
respect of 1998. Laser shall honor, and shall cause the Company to honor, the
Company's Executive Severance Policy without any amendment adverse to
participants. Laser shall provide severance benefits for employees of the
Company, who are not participants in Company's Executive Severance Policy and
who do not have employment agreements with the Company, under the Laser
severance policy on the same basis as similarly situated Laser employees
provided that severance benefits shall be no less than those set forth on
Schedule 7.7(b).
(c) Effective as of the ninety-first (91st) day following the Holdings
Effective Time, the participants in the Executive Severance Policy set forth on
Schedule 7.7(c) may voluntarily terminate their employment, which termination
will be deemed to be for "Good Reason" under the Executive Severance Policy as a
result of the consummation of the Holdings Merger.
(d) Laser and the Company agree to take all necessary action to
provide that, effective as of the Holdings Effective Time, all outstanding
Employee Stock Options shall be vested and exercisable as of the Holdings
Effective Time, and between the Holdings Effective Time and the Company
Effective Time, Laser shall cause the Company to maintain a broker-dealer
cashless exercise procedure for the exercise of Employee Stock Options. Laser
and the Company agree to take all other actions necessary to provide for the
cancellation, effective at the Company Effective Time, of each outstanding
Employee Stock Option and, in settlement therefor, a payment to the holder of
the Employee Stock Option in cash by Laser or the Company at the Company
Effective Time equal to the product of (i) the total number of shares of Company
Common Stock subject to such Employee Stock Option, and (ii) the excess of
$27.50 over the exercise price per share of Company Common Stock subject to such
Employee Stock Option, less any applicable withholding taxes.
(e) Laser agrees that, at or prior to the Holdings Effective Time,
Holdings may cause the Company to (i) assume sponsorship of the pension,
retirement, savings, retiree health care and life insurance and other plans
maintained by New Coleman Holdings, Inc. that are reflected in footnotes 7 and
12 to the 1996 financial statements included in the Company's 1996 Annual Report
on SEC Form 10-K (as such plans may have been changed in the ordinary course of
business since December 31, 1996) (the "Plans"), and (ii) assume the liabilities
and obligations of New Coleman Holdings, Inc. under the Plans to the extent
reflected in such footnotes (as such liabilities and obligations may have
changed in the ordinary course of business since December 31, 1996). The
documents used to effect such assumption shall be in form and substance
reasonably satisfactory to Parent Holdings and Laser.
Section 7.8 Continuance of Existing Indemnification Rights.
(a) For six (6) years after the Company Effective Time (and during the
period following the Holdings Effective Time but prior to the Company Effective
Time), Laser shall, or shall cause the Surviving Corporation to, indemnify,
defend and hold harmless any person who is
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now, or has been at any time prior to the date hereof, or who becomes prior to
the Company Effective Time, a director or officer of the Company (an
"Indemnified Person") against all losses, claims, damages, liabilities, costs
and expenses (including attorneys' fees and expenses), judgments, fines, losses
and amounts paid in settlement in connection with any actual or threatened
action, suit, claim, proceeding or investigation (each, a "Claim") to the extent
that any such Claim is based on, or arises out of: (i) the fact that such
Indemnified Person is or was a director or officer of the Company or is or was
serving at the request of the Company as a director, officer, employee or agent
of another corporation, partnership, joint venture, trust or other enterprise;
or (ii) this Agreement or the Holdings Merger Agreement or any of the
transactions contemplated hereby or thereby, in each case to the extent that any
such Claim pertains to any matter or fact arising, existing or occurring prior
to or at the Company Effective Time, regardless of whether such Claim is
asserted or claimed prior to, at or after the Company Effective Time, to the
full extent permitted under the DGCL, the Company's certificate of incorporation
or by-laws or any indemnification agreement in effect at the date hereof,
including provisions relating to advancement of expenses incurred in the defense
of any such Claim; provided, however, that neither Laser nor the Surviving
Corporation shall be required to indemnify any Indemnified Person in connection
with any proceeding (or portion thereof) involving any Claim initiated by such
Indemnified Person against the Company unless the initiation of such proceeding
(or portion thereof) was authorized by the Board of Directors of the Company or
unless such proceeding is brought by an Indemnified Person to enforce rights
under this Section 7.8; and provided further that in the event any Claim is
asserted or made within such period, all such rights, liabilities and
limitations in respect of any such Claim shall continue until disposition
thereof. Without limiting the generality of the preceding sentence, in the event
any Indemnified Person becomes involved in any Claim after the Company Effective
Time, Laser shall, or shall cause the Surviving Corporation to, periodically
advance to such Indemnified Person its legal and other expenses (including the
cost of any investigation and preparation incurred in connection therewith),
subject to the providing by such Indemnified Person of an undertaking to
reimburse all amounts so advanced in the event of a final non-appealable
determination by a court of competent jurisdiction that such Indemnified Person
is not entitled thereto.
(b) Laser and the Company agree that all rights to indemnification,
and all limitations with respect thereto, existing in favor of any Indemnified
Person, as provided in the Company's certificate of incorporation or by-laws and
any indemnification agreement in effect at the date hereof, shall survive the
Holdings Merger and the Company Merger and shall continue in full force and
effect, without any amendment thereto, for a period of six (6) years from the
Company Effective Time (and during the period following the Holdings Effective
Time but prior to the Company Effective Time) to the extent such rights and
limitations are consistent with the DGCL; provided, however, that in the event
any Claim is asserted or made within such period, all such rights, liabilities
and limitations in respect of any such Claim shall continue until disposition
thereof; provided further that any determination required to be made with
respect to whether an Indemnified Person's conduct complies with the standards
set forth under the DGCL, the Company's certificate of incorporation or by-laws
or any such agreement, as the case may be, shall be made by independent legal
counsel selected by such Indemnified Person and reasonably
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acceptable to Laser; and provided further that nothing in this Section 7.8 shall
impair any rights or obligations of any current or former director or officer of
the Company.
(c) Laser or the Surviving Corporation shall use reasonable best
efforts to obtain a liability insurance policy ("D&O Insurance") for the benefit
of the Company's existing and former directors and officers commencing at the
Holdings Effective Time and for a period of not less than six (6) years after
the Company Effective Time providing substantially similar coverage in amounts
and on terms no less advantageous than that currently provided to such existing
and former directors and officers; provided further that neither Laser nor the
Surviving Corporation shall be required to pay an annual premium for D&O
Insurance in excess of 200% of the last annual premium paid prior to the date
hereof, but in such case shall purchase as much coverage as possible for such
amount.
(d) The provisions of this Section 7.8 are intended to be for the
benefit of, and shall be enforceable by, each Indemnified Person, his or her
heirs and his or her personal representatives.
Section 7.9 Expenses. Whether or not the Company Merger is
consummated, all costs and expenses incurred in connection with this Agreement
and the transactions contemplated hereby shall be paid by the party incurring
such expenses.
Section 7.10 Public Announcements. Laser and the Company shall consult
with each other before issuing their respective initial press releases to be
issued with respect to the transactions contemplated by this Agreement and the
Holdings Merger.
Section 7.11 Reasonable Best Efforts. Upon the terms and subject to
the conditions set forth in this Agreement, each of the parties hereto agrees to
use its reasonable best efforts to take, or cause to be taken, all actions, and
to do, or cause to be done, and to assist and cooperate with the other parties
in doing, all things necessary, proper or advisable, to consummate and make
effective, in the most expeditious manner practicable, the Company Merger and
the other transactions contemplated by this Agreement, including, but not
limited to: (i) the obtaining of all necessary actions or nonactions, waivers,
consents and approvals from all Governmental Entities and the making of all
necessary registrations and filings with, and the taking of all other reasonable
steps as may be necessary to obtain an approval or waiver from, or to avoid an
action or proceeding by, any Governmental Entity (including those in connection
with the HSR Act, if applicable); (ii) the obtaining of all necessary consents,
approvals or waivers from persons other than Governmental Entities; (iii) the
defending of any lawsuits or other legal proceedings, whether judicial or
administrative, challenging this Agreement or the consummation of the
transactions contemplated hereby, including seeking to have any stay or
temporary restraining order entered by any court or other Governmental Entity
vacated or reversed; and (iv) the execution and delivery of any additional
instruments necessary to consummate the transactions contemplated by this
Agreement. Notwithstanding the foregoing, nothing in this Agreement shall be
deemed to require any party hereto to enter into any agreement with any
Governmental Entity or to consent to any order, decree or judgment requiring
such party to hold, separate or divest, or to restrict the dominion or control
of such
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party or any of its Affiliates over, any of the assets, properties or businesses
of such party or its Affiliates in existence on the date hereof.
ARTICLE VIII
CONDITIONS TO CONSUMMATION OF THE MERGER
Section 8.1 Conditions to Each Party's Obligation to Effect the
Company Merger. The respective obligations of each party to effect the Company
Merger shall be subject to the satisfaction or waiver, to the extent permitted
by Law, at or prior to the Company Effective Time of the following conditions:
(a) The Registration Statement shall have become effective in
accordance with the provisions of the Securities Act and no stop order
suspending the effectiveness of the Registration Statement shall be in effect
and no proceeding for such purpose shall be pending before or threatened by the
SEC; and all applicable time periods required under the Securities Act and the
Exchange Act following the mailing of the Information Statement to the Company's
stockholders shall have lapsed.
(b) The Laser Shares shall have been approved for listing on the NYSE,
subject to official notice of issuance.
(c) No preliminary or permanent injunction or other order by any
federal or state court in the United States of competent jurisdiction which
prohibits the consummation of the Company Merger shall have been issued and
remain in effect.
(d) The Holdings Merger shall have been consummated in accordance with
its terms and the applicable provisions of the DGCL.
ARTICLE IX
TERMINATION, AMENDMENT AND WAIVER
Section 9.1 Termination. This Agreement shall terminate automatically
upon the termination of the Holdings Merger Agreement in accordance with its
terms.
Section 9.2 Effect of Termination. In the event of termination of this
Agreement as provided in Section 9.1 hereof, this Agreement shall forthwith
become void and there shall be no liability on the part of any of the parties;
provided that the provisions of Sections 7.2 and 7.9 and of this Article IX
shall continue and that nothing herein shall relieve any party from liability
for any willful breach hereof.
Section 9.3 Amendment. This Agreement may be amended by the parties
pursuant to a writing adopted by action taken by all of the parties at any time
prior to (but not
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following) the consummation of the Holdings Merger. This Agreement may not be
amended except by an instrument in writing signed by all the parties hereto.
Section 9.4 Extension; Waiver. At any time prior to (but not
following) the consummation of the Holdings Merger any party hereto 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 contained herein or in any document delivered pursuant hereto and (c)
waive compliance with any of the agreements or conditions contained herein. Any
agreement on the part of a party to any such extension or waiver shall be valid
only as against such party and only if set forth in an instrument in writing
signed by such party. The failure of any party to this Agreement to assert any
of its rights under this Agreement or otherwise shall not constitute a waiver of
such rights.
ARTICLE X
GENERAL PROVISIONS
Section 10.1 No Survival of Representations and Warranties. No
representations or warranties contained herein shall survive beyond the Company
Effective Time. This Section 10.1 shall not limit any covenant or agreement of
the parties which by its terms contemplates performance after the Company
Effective Time.
Section 10.2 Notices. All notices or other communications hereunder
shall be deemed to have been duly given and made if in writing and if served by
personal delivery upon the party for whom it is intended, if delivered by
registered or certified mail, return receipt requested, or by a national courier
service, or if sent by telecopier; provided that the telecopy is promptly
confirmed by telephone confirmation thereof, to the person at the address set
forth below, or such other address as may be designated in writing hereafter, in
the same manner, by such person:
(a) If to Laser, to:
Sunbeam Corporation
1615 South Congress Avenue
Suite 200
Delray Beach, Florida 33445
Facsimile: (561) 243-2191
Attention: David C. Fannin, Esq.
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with a copy to:
Skadden, Arps, Slate, Meagher
& Flom LLP
One Rodney Square
Wilmington, Delaware 19801
Facsimile: (302) 651-3001
Attention: Richard L. Easton, Esq.
(b) If to the Company, to:
CLN Holdings Inc.
5900 North Andrews Avenue, Suite #700-A
Fort Lauderdale, Florida 33309
Facsimile: (954) 772-3352
Attention: General Counsel
with a copy to:
Wachtell, Lipton, Rosen & Katz
51 West 52nd Street
New York, New York 10019
Facsimile: (212) 403-2000
Attention: Adam O. Emmerich, Esq.
Any such notification shall be deemed delivered (i) upon receipt, if delivered
personally, (ii) on the next business day, if sent by national courier service
for next business day delivery or (iii) the business day received, if sent by
telecopier.
Section 10.3 Descriptive Headings. The headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
Section 10.4 Entire Agreement; No Third-Party Beneficiary. This
Agreement (including the Exhibits, Disclosure Schedules and other documents and
instruments referred to herein) (a) constitutes the entire agreement and
supersedes all other prior agreements and understandings, both written and oral,
among the parties or any of them, with respect to the subject matter hereof; (b)
except for the provisions of Sections 7.7(c) and 7.8 hereof, is not intended to
confer upon any other person any rights or remedies hereunder.
Section 10.5 Interpretation. When a reference is made in this
Agreement to an Article, Section or Annex, such reference shall be to an Article
or Section of, or an Annex to, this Agreement unless otherwise indicated.
Whenever the words "include", "includes" or "including" are used in this
Agreement, they shall be deemed to be followed by the words "without
limitation". The words "hereof", "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular
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provision of this Agreement. The phrase "made available" in this Agreement shall
mean that the information referred to has been made available if requested by
the party to whom such information is to be made available. All terms defined in
this Agreement shall have the defined meanings used in any certificate or other
document made or delivered pursuant hereto unless otherwise defined therein. The
definitions contained in this Agreement are applicable to the singular as well
as the plural forms of such terms and to the masculine as well as to the
feminine and neuter genders of such term. Any agreement, instrument or statute
defined or referred to herein or in any agreement or instrument that is referred
to herein means such agreement, instrument or statute as from time to time
amended, modified or supplemented, including (in the case of agreements or
instruments) by waiver or consent and (in the case of statutes) by succession of
comparable successor statutes and references to all attachments thereto and
instruments incorporated therein. References to a person are also to its
permitted successors and assigns and, in the case of an individual, to his heirs
and estate, as applicable.
Section 10.6 Severability. If any provision of this Agreement or the
application thereof to any person or circumstance is determined by a court of
competent jurisdiction to be invalid, void or unenforceable, the remaining
provisions hereof, or the application of such provision to persons or
circumstances other than those as to which it has been held invalid or
unenforceable, shall remain in full force and effect and shall in no way be
affected, impaired or invalidated thereby. Upon any such determination, the
parties shall negotiate in good faith in an effort to agree upon a suitable and
equitable substitute provision to effect original intent of the parties.
Section 10.7 Assignment. Neither this Agreement nor any of the rights,
interests or obligations under this Agreement shall be assigned, in whole or in
part, by operation of Law or otherwise by any of the parties without the prior
written consent of the other parties. Any assignment in violation of the
preceding sentence shall be void. 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.
Section 10.8 Disclosure Schedules. Matters reflected on the Company
Disclosure Schedule are not necessarily limited to matters required by this
Agreement to be reflected therein and the inclusion of such matters shall not be
deemed an admission that such matters were required to be reflected on the
Company Disclosure Schedule. Such additional matters are set forth for
informational purposes only and do not necessarily include other matters of a
similar nature. Capitalized terms used in the Company Disclosure Schedule but
not otherwise defined therein shall have the respective meanings assigned to
such terms in this Agreement.
Section 10.9 Governing Law. This Agreement shall be governed by and
construed in accordance with the Laws of the State of Delaware without giving
effect to the provisions thereof relating to conflicts of Law.
Section 10.10 Specific Performance. The parties hereto agree that
irreparable damage would occur in the event any of the provisions of this
Agreement were not performed in
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accordance with the terms hereof and that the parties shall be entitled to
specific performance of the terms hereof, in addition to any other remedy at Law
or equity.
Section 10.11 Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed to be an original but all of
which shall constitute one and the same agreement.
Section 10.12 Certain Terms. As used herein, (i) the term
"material adverse effect" (including as used in any definition), with respect to
any Person, shall exclude any change, event, effect or circumstance (a) arising
in connection with the announcement or performance of the transactions
contemplated by this Agreement or the Holdings Merger Agreement and (b)
affecting the United States economy generally or such Person's industries
generally; and (ii) "to the knowledge of the Company" shall mean to the actual
knowledge of Paul E. Shapiro, Jerry W. Levin and Steven R. Isko.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed on its behalf by its officers thereunto duly
authorized, all as of the date first above written.
SUNBEAM CORPORATION
By:/s/ Russell A. Kersch
Name: Russell A. Kersch
Title: Executive Vice President
CAMPER ACQUISITION CORP.
By:/s/ Russell A. Kersch
Name: Russell A. Kersch
Title:
THE COLEMAN COMPANY, INC.
By:/s/ Paul E. Shapiro
Name: Paul E. Shapiro
Title: Executive Vice President
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