AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER (this "AGREEMENT"), dated as of April 20,
2000, between RHH Acquisition Corp., a Delaware corporation ("PURCHASER"), and
Robertson-Ceco Corporation, a Delaware corporation (the "COMPANY").
RECITALS
WHEREAS, Purchaser beneficially owns, directly and through its affiliates,
an aggregate of 11,182,863 shares (the "PURCHASER SHARES") of common stock, par
value $.01 per share (the "SHARES" or the "COMMON STOCK"), of the Company,
constituting approximately 69.5% of the total outstanding Shares, and has
proposed to the Company that Purchaser acquire all of the remaining issued and
outstanding Shares;
WHEREAS, Purchaser is an indirect subsidiary of The Heico Companies, LLC;
WHEREAS, the board of directors of the Company (the "COMPANY BOARD")
established a special committee of one independent director to consider
Purchaser's proposal (the "SPECIAL COMMITTEE") and the Special Committee has
unanimously recommended that the Company Board approve the Offer (as defined
below), and approve and authorize the Merger (as defined below) and this
Agreement;
WHEREAS, in furtherance of Purchaser's acquisition of all the remaining
issued and outstanding Shares, it is proposed that Purchaser may elect to make a
cash tender offer (the "OFFER") in compliance with Section 14(d)(i) of the
Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"), to acquire any
and all of the issued and outstanding Shares for $11.50 per Share (the "PER
SHARE AMOUNT"), net to the sellers in cash, upon the terms and subject to the
conditions of this Agreement and the Offer;
WHEREAS, the respective boards of directors of Purchaser and the Company
have deemed it advisable and in the best interests of their respective
stockholders to consummate, and have approved, the merger of Purchaser with and
into the Company (the "MERGER"), upon the terms and subject to the conditions
set forth herein;
WHEREAS, the Company Board has approved the Offer and resolved to recommend
the Offer to the Company's stockholders; and
WHEREAS, the parties hereto desire to make certain representations,
warranties, covenants and agreements in connection with the transactions
contemplated by this Agreement.
NOW, THEREFORE, in consideration of the foregoing, and of the
representations, warranties, covenants and agreements contained herein, the
parties hereto hereby agree as follows:
ARTICLE 1
1. THE OFFER.
1.1. THE OFFER. (a) Subject to the provisions of this Agreement and
this Agreement not having been terminated, Purchaser shall commence, as promptly
as practicable, within the meaning of Rule 14d-2 under the Exchange Act, the
Offer. The obligation of Purchaser to commence the Offer and to accept for
payment, and to pay for any shares of Common Stock tendered pursuant to the
Offer shall be subject to the satisfaction of the conditions set forth in
EXHIBIT A and the terms and conditions of this Agreement (the "OFFER
CONDITIONS"). Subject to the provisions of this Agreement, the Offer shall
initially expire on the 20th business day from and after the date the Offer is
commenced, including the date of the commencement of the Offer as the first
business day in accordance with Rule 14d-2, unless this Agreement is terminated
in accordance with ARTICLE 8, in which case the Offer (whether or not previously
extended in accordance with the terms hereof) shall expire on such date of
termination.
(b) Purchaser expressly reserves the right to waive any condition set
forth on Exhibit A without the consent of the Company, and to make any other
changes in the terms and conditions of the Offer. However, without the prior
written consent of the Company, Purchaser shall not (i) reduce the maximum
number of Shares subject to the Offer, (ii) decrease the Per Share Amount, (iii)
change the form of consideration payable in the Offer, or (iv) amend or modify
the Offer Conditions in any manner adverse to the holders of Shares.
Notwithstanding the foregoing, Purchaser may, without the consent of the
Company, extend the Offer at any time and from time to time: (i) if at the then
scheduled expiration date of the Offer any of the Offer Conditions shall not
have been satisfied or waived, until such time as all such conditions shall have
been satisfied or waived; (ii) for any period required by any statute or rule,
regulation, interpretation or position of the Securities and Exchange Commission
(the "SEC") or its staff applicable to the Offer; (iii) for any period required
by applicable law in connection with an increase in the consideration to be paid
pursuant to the Offer; and (iv) from time to time, for an aggregate period of
not more than ten (10) business days (for all such extensions under this clause
(iv)) beyond the latest expiration date that would be permitted under clause
(i), (ii) or (iii) of this sentence. So long as this Agreement is in effect and
the Offer Conditions have not been satisfied or waived, Purchaser shall cause
the Offer not to expire. Subject to and in accordance with the terms and
conditions of the Offer and this Agreement (but subject to the right of
termination in accordance with ARTICLE 8), Purchaser shall accept for payment
and pay for, in accordance with the terms of the Offer, all Shares validly
tendered and not withdrawn pursuant to the Offer as soon as practicable after
the expiration of the Offer. In addition to the foregoing, Purchaser may provide
for a "subsequent offering period" to the extent provided in Rule 14d-11 under
the Exchange Act, as in effect as of January 24, 2000, after the purchase of
Shares pursuant to the Offer.
1.2. ACTIONS BY PURCHASER. (a) As soon as reasonably practicable following
execution of this Agreement, Purchaser shall file with the SEC a Tender Offer
Statement and a Rule 13e-3 Transaction Statement on Schedule TO, including all
exhibits thereto (together with all amendments and supplements thereto, the
"SCHEDULE TO") with respect to the Offer, the
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Merger and the other transactions contemplated hereby. The Schedule TO shall
contain or incorporate by reference an offer to purchase (the "OFFER TO
PURCHASE") and forms of the related letter of transmittal and any related
documents (the Schedule TO, the Offer to Purchase and such other documents,
together with all supplements or amendments thereto, collectively, the "OFFER
DOCUMENTS"). The Offer Documents shall comply in all material respects with the
requirements of the Exchange Act. On the date filed with the SEC and on the date
first published, sent or given to the Company's stockholders, the Offer
Documents shall not 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 were
made, not misleading, except that no representation is made by Purchaser with
respect to information supplied by the Company for inclusion in the Offer
Documents. Purchaser agrees to correct promptly, and the Company agrees to
notify Purchaser promptly as to, any information provided by it for use in the
Offer Documents, if and to the extent such information shall have become false
or misleading in any material respect, and Purchaser further agrees to take all
steps necessary to cause the Offer Documents as so corrected to be filed with
the SEC and to be disseminated to all of the holders of Shares, in each case as
and to the extent required by applicable federal securities laws. Purchaser
agrees to provide the Company and the Special Committee and its counsel in
writing any comments Purchaser or its counsel may receive from the SEC or its
staff with respect to the Offer Documents promptly after receipt of such
comments. Purchaser shall use its reasonable best efforts to respond to such
comments promptly and shall provide the Company copies of any written responses
and telephonic notification of any verbal responses by Purchaser or its counsel.
1.3. ACTIONS BY THE COMPANY. (a) The Company hereby approves the Offer and
represents and warrants that (i) the Special Committee has recommended that the
Company Board approve the Offer and the Merger, and approve and authorize this
Agreement, and the other transactions contemplated hereby and (ii) the Company
Board at a meeting duly called and held, has, based on the recommendation of the
Special Committee described in the preceding clause (i), duly adopted
resolutions: (A) approving the Offer and the Merger and approving and adopting
this Agreement, (B) determining that the Merger is advisable and that the terms
of the Offer and Merger are fair to, and in the best interests of, the Company
and the Company's stockholders, and (C) recommending that the Company's
stockholders accept the Offer and, if approval is required by applicable law,
approve the Merger and approve and adopt this Agreement. The Company hereby
consents to the inclusion in the Offer Documents of the recommendation of the
Company Board and the recommendation of the Special Committee described in the
first sentence of this SECTION 1.3(a). The Company shall provide for inclusion
in the Offer Documents any information reasonably requested by Purchaser, and to
the extent requested by Purchaser, the Company shall cooperate in the
preparation of the Offer Documents. The Company further represents and warrants
that (i) the Special Committee has been duly authorized and constituted, and
(ii) the Special Committee, at a meeting thereof duly called, determined that
this Agreement, the Merger and the Offer are fair to and in the best interests
of the stockholders of the Company (other than Purchaser and its affiliates).
(b) As soon as reasonably practicable on the date of the commencement
of the Offer, the Company shall file with the SEC a Solicitation/Recommendation
Statement on Schedule 14d-9 with respect to the Offer (such Schedule 14d-9,
together with all amendments
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and supplements thereto, "SCHEDULE 14D-9") containing the recommendations of the
Company Board and the Special Committee described in SECTION 1.3(a) and shall
disseminate the Schedule 14D-9 to the stockholders of the Company to the extent
required by Rule 14D-9 promulgated under the Exchange Act and any other
applicable federal or state securities laws. To the extent practicable, the
Company shall cooperate with Purchaser in mailing or otherwise disseminating the
Schedule 14D-9 with the appropriate Offer Documents to the Company's
stockholders. Purchaser and its counsel shall be given an opportunity to review
and comment upon the Schedule 14D-9 prior to the filing thereof with the SEC.
The Schedule 14D-9 shall comply in all material respects with the requirements
of the Exchange Act. On the date filed with the SEC and on the date first
published, sent or given to the Company's stockholders, the Schedule 14D-9 shall
not 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 were made,
not misleading, except that no representation is made by the Company with
respect to information supplied by Purchaser for inclusion in the Schedule 14D-
9. The Company agrees to correct promptly, and Purchaser agrees to notify the
Company promptly as to, any information provided by it for use in the Schedule
14D-9, if and to the extent such information shall have become false or
misleading in any material respect, and the Company further agrees to take all
steps necessary to cause the Schedule 14D-9 as so corrected to be filed with the
SEC and to be disseminated to all of the holders of Shares, in each case as and
to the extent required by applicable federal securities laws. The Company agrees
to provide Purchaser and its counsel in writing any comments the Company or its
counsel may receive from the SEC or its staff with respect to the Schedule 14D-9
promptly after the receipt of such comments. The Company agrees to use its
reasonable best efforts, after consultation with Purchaser, to respond promptly
to all such comments of and requests by the SEC. The Company shall provide
Purchaser copies of any written responses and telephonic notification of any
verbal responses by the Company and its counsel.
(c) In connection with the Offer, the Company shall promptly, or shall
cause its transfer agent to promptly, furnish Purchaser with mailing labels
containing the names and addresses of the record holders of Shares, each as of
the most recent date together with copies of all lists of stockholders and
security position listings and all other information in the Company's possession
or control regarding the beneficial owners of Common Stock, and shall furnish to
Purchaser such information and assistance (including updated lists of
stockholders, security position listings and computer files) as Purchaser may
reasonably request in communicating the Offer to the Company's stockholders.
Subject to the requirements of applicable law, and except for such steps as are
necessary to disseminate the Offer Documents and any other documents necessary
to consummate the Offer and the Merger, Purchaser shall hold in confidence the
information contained in any of such labels, lists and files, shall use such
information only in connection with the Offer and the Merger, and, if this
Agreement is terminated in accordance with Section 8.1, shall deliver to the
Company all copies of such information then in their possession.
(d) Contemporaneously with the consummation of the Offer, the Company
shall make a loan (the "LOAN") to the extent not prohibited by applicable law to
Purchaser in an amount sufficient to allow Purchaser to acquire all of the
shares of Common Stock pursuant to the Offer. Purchaser shall pledge all shares
of Common Stock held by Purchaser as security for
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the Loan to the extent such pledge is not prohibited by applicable law and to
the extent such pledge would not render the Loan violative of applicable law.
The Loan will bear interest at a rate equal to the Company's cost of funds which
shall be payable in arrears on maturity. The Loan will have a maturity of 120
days, unless extended by the Company and Purchaser.
ARTICLE 2
2. THE MERGER.
2.1. THE MERGER. At the Effective Time, subject to the terms and conditions
of this Agreement and the applicable provisions of the Delaware General
Corporation Law (the "DGCL"), Purchaser shall be merged with and into the
Company and the separate corporate existence of Purchaser shall thereupon cease.
The Company shall be the surviving corporation in the Merger (sometimes
hereinafter referred to as the "SURVIVING CORPORATION"). The Merger shall have
the effects specified in the DGCL.
2.2. THE CLOSING. Subject to the terms and conditions of this Agreement,
the closing of the Merger (the "CLOSING") shall take place at the offices of
McDermott, Will & Emery, 227 West Monroe Street, Chicago, Illinois 60606, at
10:00 a.m., local time, as soon as practicable following the satisfaction (or
waiver if permissible) of the conditions set forth in ARTICLE 7. The date on
which the Closing occurs is hereinafter referred to as the "CLOSING DATE."
2.3. EFFECTIVE TIME. If all the conditions to the Merger set forth in
ARTICLE 7 shall have been fulfilled or waived in accordance herewith and this
Agreement shall not have been terminated as provided in ARTICLE 8 (and subject
to SECTION 3.6), the parties hereto shall cause a certificate of merger meeting
the requirements of Section 251 of the DGCL ("CERTIFICATE OF MERGER") to be
properly executed and filed with the Secretary of State of the State of Delaware
in accordance with such Section on the Closing Date. The Merger shall become
effective at the time of filing of the Certificate of Merger with the Secretary
of State of the State of Delaware in accordance with the DGCL or at such later
time which the parties hereto shall have agreed upon and designated in such
filing as the effective time of the Merger (the "EFFECTIVE TIME").
2.4 CERTIFICATE OF INCORPORATION, BY-LAWS, DIRECTORS AND OFFICERS OF THE
SURVIVING CORPORATION. Unless otherwise agreed by the Company and Purchaser
prior to the Closing, at the Effective Time:
(a) The certificate of incorporation of Purchaser as in effect
immediately prior to the Effective Time shall be the certificate of
incorporation of the Surviving Corporation, until duly amended in accordance
with applicable law and the terms thereof;
(b) The by-laws of Purchaser as in effect immediately prior to the
Effective Time shall be the by-laws of the Surviving Corporation, until duly
amended in accordance with applicable law, the terms thereof, and the Surviving
Corporation's certificate of incorporation;
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(c) The officers of the Company immediately prior to the Effective
Time shall continue to serve in their respective offices of the Surviving
Corporation from and after the Effective Time, until their successors are duly
appointed or elected in accordance with applicable law and the Surviving
Corporation's certificate of incorporation and by-laws; and
(d) The directors of Purchaser immediately prior to the Effective Time
shall be the directors of the Surviving Corporation from and after the Effective
Time, until their successors are duly appointed or elected in accordance with
applicable law, and the Surviving Corporation's certificate of incorporation and
by-laws.
ARTICLE 3
3. EFFECT OF THE MERGER ON SECURITIES OF PURCHASER AND THE COMPANY.
3.1. PURCHASER STOCK. At the Effective Time, each share of common stock,
$.01 par value per share, of Purchaser that is outstanding immediately prior to
the Effective Time shall be converted into and exchanged for one validly issued,
fully paid and non-assessable share of common stock, $.01 par value per share,
of the Surviving Corporation.
3.2. COMPANY SECURITIES. (a) Other than as set forth in the immediately
following sentence, at the Effective Time, each share of Common Stock issued and
outstanding immediately prior to the Effective Time shall, by virtue of the
Merger and without any action on the part of Purchaser, the Company or the
holder thereof, be converted into the right to receive the Per Share Amount or
any higher per share price as may be paid in the Offer, without interest (the
"MERGER CONSIDERATION") in accordance with SECTION 3.3 upon the surrender of a
certificate or certificates (a "CERTIFICATE") representing such shares of Common
Stock. The following Shares shall not be converted into the right to receive the
Per Share Amount at the Effective Time: (i) shares of Common Stock owned by
Purchaser or held by the Company, all of which shall be canceled; and (ii)
Dissenting Shares (as defined below).
(b) Each Share issued and held in the Company's treasury at the
Effective Time, or held by Purchaser, or any wholly owned subsidiary of
Purchaser, shall, by virtue of the Merger and without any action on the part of
Purchaser, the Company or the holder thereof, cease to be outstanding and shall
be canceled and retired without payment of any consideration therefor.
(c) The Company shall, immediately prior to the Effective Time, (A)
terminate each Company stock option, stock appreciation rights, restricted stock
or similar plan, and any other plan, program or arrangement providing for the
issuance, grant or purchase of any other interest in respect of the capital
stock of the Company or any of its Subsidiaries (as defined below), and (B)
amend the provisions of any other Company Employee Benefit Plan (as defined
below), or related trust or funding vehicle, providing for the issuance,
holding, transfer or grant of any Shares, or any interest in respect of any
Shares (such plans set forth in clauses (A) or (B), collectively, the "COMPANY
STOCK PLANS"), to provide no continuing rights to acquire, hold, transfer, or
grant any Shares or any interest in any Shares. With respect to the Company's
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Long Term Incentive Plan, prior to the Effective Time, the Company shall cause
all vesting to be accelerated and all outstanding restricted stock thereunder to
be fully vested on a date no later than the date of the Effective Time.
3.3. EXCHANGE OF CERTIFICATES REPRESENTING COMMON STOCK. (a) Prior to the
Effective Time, Purchaser shall appoint a commercial bank or trust company,
subject to the reasonable satisfaction of the Company, to act as paying agent
hereunder for payment of the Merger Consideration upon surrender of Certificates
(the "PAYING AGENT"). Purchaser shall take all steps necessary to cause the
Surviving Corporation to provide the Paying Agent with cash in amounts necessary
to pay for all the shares of Common Stock pursuant to SECTION 3.2(a) and
pursuant to SECTION 3.2(c), as and when such amounts are needed by the Paying
Agent. Such amounts shall hereinafter be referred to as the "EXCHANGE FUND."
(b) As soon as practicable after the Effective Time, Purchaser shall
cause the Paying Agent to mail to each holder of record of shares of Common
Stock (i) a letter of transmittal which shall specify that delivery shall be
effected, and risk of loss and title to such Certificates shall pass, only upon
delivery of the Certificates to the Paying Agent and which letter shall be in
such form and have such other provisions as are customary for letters of this
nature and (ii) instructions for effecting the surrender of such Certificates in
exchange for the Merger Consideration. Upon surrender of a Certificate to the
Paying Agent together with such letter of transmittal, duly executed and
completed in accordance with the instructions thereto, and such other documents
as may be reasonably required by the Paying Agent, the holder of such
Certificate shall be entitled to receive in exchange therefor the amount of cash
into which shares of Common Stock theretofore represented by such Certificate
shall have been converted pursuant to SECTION 3.2, and the shares represented by
the Certificate so surrendered shall forthwith be canceled. No interest will be
paid or will accrue on the cash payable upon surrender of any Certificate. In
the event of a transfer of ownership of Shares that is not registered in the
transfer records of the Company, payment may be made with respect to such Common
Stock to such a transferee if the Certificate representing such shares of Common
Stock is presented to the Paying Agent, accompanied by all documents required to
evidence and effect such transfer and to evidence that any applicable stock
transfer taxes have been paid. Until surrendered as contemplated by this SECTION
3.3, each Certificate shall be deemed, at any time after the Effective Time, to
represent only the right to receive on such surrender the amount, without any
interest thereon, of cash into which shares of Common Stock theretofore
represented by such Certificate shall have been converted pursuant to SECTION
3.2.
(c) At or after the Effective Time, there shall be no transfers on the
stock transfer books of the Company of the Shares that were outstanding
immediately prior to the Effective Time. If, after the Effective Time,
Certificates are presented to the Surviving Corporation, they shall be canceled
and exchanged as provided in this ARTICLE 3.
(d) Any portion of the Exchange Fund (including the proceeds of any
interest and other income received by the Paying Agent in respect of all such
funds) that remains unclaimed by the former stockholders of the Company six
months after the Effective Time shall be delivered to the Surviving Corporation.
Any former stockholders of the Company who have not theretofore complied with
this ARTICLE 3 may thereafter look only to the Surviving
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Corporation for payment of any Merger Consideration, without any interest
thereon, that may be payable in respect of each share of Common Stock such
stockholder holds as determined pursuant to this Agreement.
(e) None of Purchaser, the Company, the Surviving Corporation, the
Paying Agent or any other Person shall be liable to any former holder of shares
of Common Stock for any amount properly delivered to a public official pursuant
to applicable abandoned property, escheat or similar laws.
(f) In the event any Certificate shall have been lost, stolen or
destroyed, upon the making of an affidavit of that fact by the Person claiming
such Certificate to be lost, stolen or destroyed and, if required by the
Surviving Corporation, the posting by such Person of a bond in such reasonable
amount as the Surviving Corporation may direct as indemnity against any claim
which may be made against it with respect to such Certificate, the Paying Agent
will issue in exchange for such lost, stolen or destroyed Certificate the Merger
Consideration payable in respect thereof pursuant to this Agreement.
3.4. ADJUSTMENT OF MERGER CONSIDERATION. In the event that, subsequent to
the date of this Agreement but prior to the Effective Time, the outstanding
shares of Common Stock shall have been changed into a different number of shares
or a different class as a result of a stock split, reverse stock split, stock
dividend, subdivision, reclassification, split, combination, exchange,
recapitalization or other similar transaction, the Merger Consideration shall be
appropriately adjusted to eliminate the effects of that event.
3.5. DISSENTING COMPANY STOCKHOLDERS. Notwithstanding any provision of this
Agreement to the contrary, if required by the DGCL, but only to the extent
required thereby, Shares that are issued and outstanding immediately prior to
the Effective Time and which are held by holders of such Shares who have
properly exercised appraisal rights with respect thereto in accordance with
Section 262 of the DGCL (the "DISSENTING SHARES") will not be exchangeable for
the right to receive the Merger Consideration. Each holder of such Dissenting
Shares will be entitled to receive payment of the appraised value of such Shares
in accordance with the provisions of such Section 262 unless and until such
holder fails to perfect or effectively waives, withdraws or loses his or her
rights to appraisal and payment under the DGCL. If, after the Effective Time,
any such holder fails to perfect or effectively waives, withdraws or loses such
right, such Shares will thereupon be treated as if they had been converted into
and to have become exchangeable for, at the Effective Time, the right to receive
the Merger Consideration, without any interest or dividends thereon. The Company
will give Purchaser prompt notice of any demands received by the Company for
appraisals of Shares prior to the Effective Time and, prior to the Effective
Time, the Purchaser shall have the right to participate in all negotiations and
proceedings with respect to such demands. The Company shall not, except with the
prior written consent of Purchaser, voluntarily make any payment with respect to
any demands for appraisal or offer to settle or settle any such demands.
3.6. MERGER WITHOUT MEETING OF STOCKHOLDERS. Notwithstanding the foregoing,
in the event that Purchaser, or any other direct or indirect subsidiary of
Purchaser, shall acquire at least 90 percent of the outstanding Shares, the
parties hereto shall take all
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necessary and appropriate action to cause the Merger to become effective as soon
as practicable after the expiration of the Offer without a meeting of
stockholders of the Company, in accordance with Section 253 of the DGCL.
ARTICLE 4
4. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company hereby
represents and warrants to Purchaser as of the date of this Agreement as
follows:
4.1. EXISTENCE; GOOD STANDING; CORPORATE AUTHORITY. Each of the Company and
each of its Subsidiaries is duly organized, validly existing and in good
standing under the laws of its jurisdiction of incorporation. Each of the
Company and each of its Subsidiaries has all requisite power and authority to
own or lease and operate its properties and carry on its business as now
conducted, except where the failure to have such power and authority would not
result, individually or in the aggregate, in a Material Adverse Effect (defined
below). The Company has heretofore made available to Purchaser true, accurate
and complete copies of the certificate of incorporation and by-laws, each as
amended to date as and currently in effect.
4.2. AUTHORIZATION, VALIDITY AND EFFECT OF AGREEMENTS. (a) The Company has
the requisite corporate power and authority to execute and deliver this
Agreement and all agreements and documents contemplated hereby (the "ANCILLARY
DOCUMENTS"), to perform its obligations hereunder and thereunder, and to
consummate the transactions contemplated hereby and thereby. The execution and
delivery of this Agreement and the Ancillary Documents by the Company and the
consummation by the Company of the transactions contemplated hereby and thereby
have been duly and validly authorized by all necessary corporate action
(including without limitation the approval of the Company Board), and no other
corporate proceedings on the part of the Company are necessary to authorize this
Agreement and the Ancillary Documents or to consummate the transactions
contemplated hereby and thereby (other than the approval of this Agreement by
the holders of a majority of the Shares if required by applicable law). This
Agreement has been, and any Ancillary Document at the time of execution will
have been, duly and validly executed and delivered by the Company, and (assuming
this Agreement and such Ancillary Documents to which Purchaser is a party each
constitutes a valid and binding obligation of Purchaser) constitutes and will
constitute valid and binding obligations of the Company, enforceable in
accordance with their respective terms, subject to applicable bankruptcy,
insolvency, moratorium or other similar laws relating to creditors' rights and
general principles of equity.
4.3. COMPLIANCE WITH LAWS. Neither the Company nor any of its Subsidiaries
is in violation of any order of any foreign, federal, state or local judicial,
legislative, executive, administrative or regulatory body or authority or any
court, arbitration board or tribunal ("GOVERNMENTAL ENTITY"), or any foreign,
federal, state or local law, statute, ordinance, rule, regulation, order,
judgment or decree ("LAWS") applicable to the Company or its Subsidiaries or any
of their respective properties or assets, except for violations which,
individually or in the aggregate, would not have or be likely to have a material
adverse effect on the business, operations, assets, or financial condition of
the Company (a "MATERIAL
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ADVERSE EFFECT") or prevent or delay or be likely to prevent or delay the
consummation of the transactions contemplated hereby.
4.4. CAPITALIZATION, ETC. The authorized capital stock of the Company
consists of 30,000,000 shares of Common Stock. As of the date hereof, (a)
16,096,550 shares of Common Stock are outstanding, (b) no shares of Common Stock
are held by the Company in its treasury, and (c) no shares of capital stock of
the Company are held by the Company's Subsidiaries. The Company has no
outstanding options to acquire Common Stock or bonds, debentures, notes or other
obligations entitling the holders thereof to vote (or which are convertible into
or exercisable for securities having the right to vote) with the holders of the
Common Stock on any matter. All issued and outstanding shares of Common Stock
are duly authorized, validly issued, fully paid, nonassessable and free of
preemptive rights. There are no other shares of capital stock or voting
securities of the Company, and no existing options, warrants, calls,
subscriptions, convertible securities, and no stock appreciation rights or
limited stock appreciation rights or other rights (including rights of first
refusal), agreements or commitments which obligate the Company or any of its
Subsidiaries to issue, transfer or sell any shares of capital stock of, or
equity interests in, or any material assets of, the Company or any of its
Subsidiaries. There are no outstanding obligations of the Company or any
Subsidiaries to repurchase, redeem or otherwise acquire any shares of capital
stock of the Company. After the Effective Time, the Surviving Corporation will
have no obligation to issue, transfer or sell any shares of capital stock of the
Company or the Surviving Corporation pursuant to any Company Employee Benefit
Plan. There are no voting trusts or other agreements or understandings to which
the Company or any of its Subsidiaries is a party with respect to the voting of
capital stock of the Company or any of its Subsidiaries.
4.5. NO VIOLATION. (a) Neither the execution and delivery by the Company of
this Agreement or any of the Ancillary Documents nor the consummation by the
Company of the transactions contemplated hereby or thereby (assuming requisite
shareholder approval is obtained) will: (i) violate, conflict with or result in
a breach of any provision of the certificate of incorporation or by-laws of the
Company or any Subsidiary; (ii) violate, conflict with, result in a breach of
any provision of, constitute a default (or an event which, with notice or lapse
of time or both, would constitute a default) under, result in the termination or
in a right of termination of, accelerate the performance required by or benefit
obtainable under, result in the triggering of any payment or other obligations
pursuant to, result in the creation of any lien, pledge, charge, assessment,
security interest, mortgage, claim, option, easement, imperfection of title,
tenancy or other legal or equitable right of others, or other encumbrance of any
character whatsoever (including, without limitation, right of first refusal)
(each an "ENCUMBRANCE") upon any of the properties of the Company or any of its
Subsidiaries under, or result in there being declared void, voidable, or without
further binding effect, any of the terms, conditions or provisions of any note,
bond, mortgage, indenture, deed of trust or any license, franchise, permit,
lease, contract, agreement or other instrument, commitment or obligation to
which the Company or any of its Subsidiaries is a party, or by which the Company
or any of its Subsidiaries or any of their respective properties is bound (each,
a "CONTRACT" and, collectively, "CONTRACTS"), except for any of the foregoing
matters specified in this clause (ii) which, individually or in the aggregate,
would not have or be likely to have a Material Adverse Effect or prevent or
delay or be likely to prevent or delay the consummation of the transactions
contemplated hereby; (iii)
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other than the filings provided for in SECTION 2.3 and the filings required
under the Exchange Act, require any consent, approval or authorization of, or
declaration, filing or registration with, any Governmental Entity, the lack of
which, individually or in the aggregate, would have or be likely to have a
Material Adverse Effect or, by law, prevent or delay the consummation of the
transactions contemplated hereby; or (iv) violate any Laws applicable to the
Company, any of its Subsidiaries or any of their respective assets.
(b) For purposes of this Agreement, a "SUBSIDIARY" means, with respect
to Purchaser, the Company or any other Person, any entity of which Purchaser,
the Company or such other Person, as the case may be (either alone or through or
together with any other Subsidiary), owns, directly or indirectly, stock or
other equity interests the holders of which are generally entitled to more than
50% of the vote for the election of the board of directors or other governing
body of such corporation or other legal entity.
4.6. COMPANY REPORTS; OFFER DOCUMENTS. (a) The Company has made available
to Purchaser each registration statement, report, proxy statement or information
statement (as defined under the Exchange Act) prepared by it since December 31,
1996, each in the form (including exhibits and any amendments thereto) filed
with the SEC (collectively, the "COMPANY REPORTS"). As of their respective
dates, the Company Reports (i) complied as to form in all material respects with
the applicable requirements of the Securities Act of 1933, as amended, the
Exchange Act, and the rules and regulations thereunder and (ii) did not contain
any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements made therein,
in the light of the circumstances under which they were made, not misleading.
Each of the consolidated balance sheets of the Company included in the Company
Reports (including the related notes and schedules) fairly presented in all
material respects the consolidated financial position of the Company and its
Subsidiaries as of its date, and each of the consolidated statements of
operations, cash flows and stockholders' equity of the Company included in or
incorporated by reference into the Company Reports (including the related notes
and schedules) fairly presented in all material respects the results of
operations, cash flows and shareholders' equity of the Company and its
Subsidiaries for the periods set forth therein, in each case in accordance with
generally accepted accounting principles ("GAAP") consistently applied during
the periods involved, except as may be noted therein and except that the
unaudited interim financial statements are subject to normal year-end
adjustments and do not contain all of the footnote disclosures required by GAAP.
(b) None of the Schedule 14D-9, the information statement, if any,
filed by the Company in connection with the Merger pursuant to Rule 14F-1 under
the Exchange Act (the "INFORMATION STATEMENT"), any schedule required to be
filed by the Company with the SEC or any amendment or supplement thereto, at the
respective times such documents are filed with the SEC or first published, sent
or given to the Company's stockholders, will contain any untrue statement of a
material fact or will omit to state any material fact required to be stated
therein or necessary in order to make the statements therein, in the light of
the circumstances under which they are made, not misleading except that no
representation is made by the Company with respect to information supplied by
Purchaser specifically for inclusion in the Schedule 14D-9 or Information
Statement or any amendment or supplement. None of the information supplied or to
be supplied by the Company for inclusion or incorporation by
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reference in the Offer Documents, at the time such documents are filed with the
SEC, or first published, sent or given to the Company's stockholders, will
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 were made, not
misleading. If at any time prior to the Effective Time the Company shall obtain
knowledge of any facts with respect to itself, any of its officers and directors
or any of its Subsidiaries that would require the supplement or amendment to the
Schedule 14D-9 or the information supplied by the Company for inclusion or
incorporation by reference in the Offer Documents in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, or to comply with applicable Laws, such amendment or
supplement shall be promptly filed with the SEC and, as required by Law,
disseminated to the stockholders of the Company, and in the event Purchaser
shall advise the Company as to its obtaining knowledge of any facts that would
make it necessary to supplement or amend any of the foregoing documents, the
Company shall promptly amend or supplement such document as required and
distribute the same to its stockholders.
4.7. LITIGATION. As of the date hereof, except as set forth in the Company
Reports or in SECTION 4.7 of the disclosure letter delivered by the Company to
Purchaser as of the date of this Agreement (the "COMPANY DISCLOSURE LETTER") or
as may have been or may be brought as a result of Purchaser's offer to purchase
the Company and related transactions, (i) there are no claims, actions, suits,
proceedings, arbitrations, investigations or audits (collectively, "LITIGATION")
pending or, to the knowledge of the Company, threatened against the Company or
any of its Subsidiaries, except Litigation which, individually or in the
aggregate, would not have or be likely to have a Material Adverse Effect or
prevent or delay or be likely to prevent or delay the consummation of the
transactions contemplated hereby, nor does the Company have knowledge of any
facts or circumstances that it believes would be likely to form the basis for
any such claims, actions, suits, proceedings, arbitrations, investigations or
audits; (ii) no Governmental Entity has indicated in writing an intention to
conduct any audit, investigation or other review with respect to the Company or
any of its Subsidiaries; and (iii) there is no material judgment, decree, order,
injunction, writ or rule of any court, governmental department, commission,
agency, instrumentality or authority or any arbitrator outstanding against the
Company or any Subsidiary (except that the Company makes no representation with
respect to any such items as may result from litigation brought as a result of
Purchaser's offer to purchase the Company and related transactions).
4.8. ABSENCE OF CERTAIN CHANGES. Since December 31, 1999, there has not
been (i) any event, occurrence or condition, except any event, occurrence or
condition which, individually or in the aggregate, would not have or be likely
to have a Material Adverse Effect, (ii) any amendments or changes in the
certificate of incorporation or by-laws of the Company, (iii) any material
change by the Company or any of its Subsidiaries in its accounting methods,
principles or practices, (iv) any declaration, setting aside or payment of any
dividend or distribution in respect of any capital stock of the Company or any
redemption, repurchase or other acquisition of any of its securities, or (v) any
increase in or establishment of any bonus, insurance, severance, deferred
compensation, pension, retirement, profit sharing, stock option (including,
without limitation, the granting of stock options, stock appreciation rights,
performance awards, or restricted stock awards), stock purchase or other
employee benefit plan,
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or any other increase in the compensation payable or to become payable to any
officers or key employees of the Company or any Subsidiary, except in the
ordinary course of business consistent with past practice.
4.9. BROKERS. Except for CIBC World Markets Corp. (the "FINANCIAL
ADVISOR"), the arrangements of which have been disclosed to Purchaser in
writing, no broker, finder or financial advisor is entitled to any brokerage,
finder's or other fee or commission in connection with the transactions
contemplated by this Agreement that is based upon any arrangement made by or on
behalf of the Company.
4.10. OPINION OF FINANCIAL ADVISOR. The Special Committee has received the
opinion of the Financial Advisor to the effect that, as of the date of this
Agreement, the Per Share Amount to be received in the Offer and the Merger,
taken together, by the holders of Shares (other than Purchaser and its
affiliates) is fair, from a financial point of view, to such holders of Shares
(other than Purchaser and its affiliates) (the "OPINION"). The Company hereby
represents and warrants that it has been authorized by the Financial Advisor to
permit the inclusion of the Opinion and references thereto, subject to prior
review and consent by the Financial Advisor (such consent not to be unreasonably
withheld), in the Offer to Purchase, the Schedule TO, the Schedule 14D-9 and the
Information Statement (as defined above).
4.11. STATE TAKEOVER STATUTES. The Company Board has taken all necessary
action so that the restrictions contained in Section 203 of the DGCL applicable
to a "business combination" (as defined in such Section 203) will not apply to
the execution, delivery or performance of the Agreement or to the Offer, the
Merger or the transactions contemplated hereby.
4.12. REQUIRED VOTE OF COMPANY STOCKHOLDERS. Unless the Merger may be
consummated in accordance with Section 253 of the DGCL, the only vote of the
stockholders of the Company required to adopt this Agreement, the Ancillary
Documents and to approve the Merger and the transactions contemplated hereby and
thereby, is the affirmative vote of the holders of a majority of the outstanding
shares of Common Stock.
ARTICLE 5
5. REPRESENTATIONS AND WARRANTIES OF PURCHASER. Purchaser hereby represents
and warrants to the Company as of the date of this Agreement as follows:
5.1. EXISTENCE; GOOD STANDING; CORPORATE AUTHORITY. Purchaser is a
corporation duly incorporated, validly existing and in good standing under the
laws of its jurisdiction of incorporation and has all requisite corporate power
and authority to own, operate and lease its properties and carry on its business
as now conducted, except where the failure to have such power and authority,
individually or in the aggregate, would not materially adversely affect the
ability of Purchaser to consummate the transactions contemplated hereby and by
the Ancillary Documents.
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5.2. AUTHORIZATION, VALIDITY AND EFFECT OF AGREEMENTS. Purchaser has the
requisite corporate power and authority to execute and deliver this Agreement
and the Ancillary Documents and to consummate the transactions contemplated
hereby and thereby. The execution and delivery of this Agreement and the
Ancillary Documents and the consummation by Purchaser of the transactions
contemplated hereby and thereby have been duly and validly authorized by the
Boards of Directors of Purchaser and no other corporate proceedings on the part
of Purchaser are necessary to authorize this Agreement and the Ancillary
Documents or to consummate the transactions contemplated hereby and thereby.
This Agreement has been, and any Ancillary Documents at the time of execution
will have been, duly and validly executed and delivered by Purchaser, and
(assuming this Agreement and such Ancillary Documents each constitutes a valid
and binding obligation of the Company) constitutes and will constitute the valid
and binding obligations of Purchaser, enforceable in accordance with their
respective terms, subject to applicable bankruptcy, insolvency, moratorium or
other similar laws relating to creditors' rights and general principles of
equity.
5.3. NO VIOLATION. Neither the execution and delivery of this Agreement or
any of the Ancillary Documents by Purchaser, nor the consummation by it of the
transactions contemplated hereby or thereby, will (i) violate, conflict with or
result in any breach of any provision of the certificate of incorporation or by-
laws of Purchaser; (ii) other than the filings provided for in SECTION 2.3 and
the filings required under the Exchange Act, require any consent, approval or
authorization of, or declaration, filing or registration with, any Governmental
Entity, the lack of which, individually or in the aggregate, would have or be
likely to have a material adverse effect on the ability of Purchaser to
consummate the transactions contemplated hereby, (iii) violate any Laws
applicable to Purchaser or any of its assets, and (iv) violate, conflict with or
result in a breach of any provision of, constitute a default (or an event which,
with notice or lapse of time or both, would constitute a default) under, result
in the termination or in a right of termination of, accelerate the performance
required by or benefit obtainable under, result in the creation of any
Encumbrance upon any of the properties of Purchaser under, or result in there
being declared void, voidable, or without further binding effect, any of the
terms, conditions or provisions of any note, bond, mortgage, indenture, deed of
trust or any license, franchise, permit, lease, contract, agreement or other
instrument, commitment or obligation to which Purchaser is bound.
5.4. INTERIM OPERATIONS OF PURCHASER. Purchaser was formed solely for the
purpose of engaging in the transactions contemplated hereby, has engaged in no
other business activities and has conducted its operations as contemplated
hereby. Purchaser has no liabilities, other than liabilities arising pursuant to
this Agreement or in connection with the transactions contemplated hereby.
5.5. FINANCING. At the consummation of the Offer and at the Effective Time,
Purchaser will have funds available to it sufficient to consummate the Offer and
the Merger on the terms contemplated hereby.
5.6. INFORMATION SUPPLIED. None of the Offer Documents or any amendment or
supplement thereto, at the respective times such documents are filed with the
SEC or first published, sent or given to the Company's stockholders, will
contain any untrue statement of a
-14-
material fact or will omit to state any material fact required to be stated
therein or necessary in order to make the statements therein, in the light of
the circumstances under which they are made, not misleading except that no
representation is made by Purchaser with respect to information supplied by the
Company specifically for inclusion in the Offer Documents or any amendment or
supplement. None of the information supplied or to be supplied by Purchaser for
inclusion or incorporation by reference in the Schedule 14D-9 will, at the time
such documents are filed with the SEC or distributed to the Company's
stockholders, contains any untrue statements of a material fact or omit to state
any material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading. If at any time prior to the Effective Time the Purchaser
shall obtain knowledge of any facts with respect to itself, any of its officers
and directors or any of its Subsidiaries that would require the supplement or
amendment to the Offer Documents or the information supplied by Purchaser for
inclusion or incorporation by reference in the Schedule 14D-9 in order to make
the statements therein, in the light of the circumstances under which they are
made, not misleading, or to comply with applicable Laws, such amendment or
supplement shall be promptly filed with the SEC and, as required by Law,
disseminated to the stockholders of the Company, and in the event the Company
shall advise Purchaser as to its obtaining knowledge of any facts that would
make it necessary to supplement or amend any of the foregoing documents,
Purchaser shall promptly amend or supplement such document as required and
distribute the same to the Company's stockholders.
ARTICLE 6
6. COVENANTS.
6.1. ALTERNATIVE PROPOSALS. The Company agrees (a) that, between the date
hereof and the Effective Time, neither it nor any of its Subsidiaries shall, and
it shall direct and use its best efforts to cause its officers, directors,
employees, agents and representatives (including, without limitation, any
investment banker, attorney or accountant retained by it or any of its
Subsidiaries) not to, initiate, solicit or encourage, directly or indirectly,
any inquiries or the making or implementation of any proposal or offer
(including, without limitation, any proposal or offer to its stockholders) with
respect to a merger, acquisition, consolidation or similar transaction
involving, or any purchase of all or any significant portion of the assets or
any equity securities of, the Company or any of its Subsidiaries (any such
proposal or offer being hereinafter referred to as an "ALTERNATIVE PROPOSAL") or
engage in any negotiations concerning, or provide any confidential information
or data to, afford access to the properties, books or records of the Company or
any of its Subsidiaries to, or have any discussions with, any Person relating to
an Alternative Proposal, or otherwise facilitate any effort or attempt to make
or implement an Alternative Proposal; (b) that it will immediately cease and
cause to be terminated any existing activities, discussions or negotiations with
any parties conducted heretofore with respect to any of the foregoing, and it
will take the necessary steps to inform such parties of the obligations
undertaken in this SECTION 6.1; and (c) that it will notify Purchaser
immediately of the identity of the potential acquirer and the terms of such
Person's or entity's proposal if any such inquiries or proposals are received
by, any such information is requested from, or any such negotiations or
discussions are sought to be initiated or continued with, the Company; provided,
however, that nothing contained in this SECTION 6.1 shall prohibit the Company
or its
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Subsidiaries, upon approval of the Special Committee, from (i) prior to the
acceptance for payment of shares of Common Stock by Purchaser pursuant to the
Offer, furnishing information to, or entering into discussions or negotiations
with, any Person or entity that makes an unsolicited bona fide proposal to
acquire the Company pursuant to a merger, consolidation, share exchange,
purchase of substantially all of the assets of the Company, a business
combination or other similar transaction, if, and only to the extent that, (A)
such proposal was not initially solicited, encouraged or knowingly facilitated
by the Company, its Subsidiaries or their agents in violation of this SECTION
6.1, (B) such proposal is not subject to a financing condition and involves
consideration that provides a higher value per share than the Merger
Consideration, (C) the Company Board, or the Company's directors constituting
the Special Committee, determines in good faith based on the advice of outside
counsel that the failure to take such action would be inconsistent with its
fiduciary duties to stockholders imposed by Law, and (D) prior to furnishing
information to, or entering into discussions or negotiations with, such Person
or entity, the Company provides written notice to Purchaser to the effect that
it is furnishing information to, or entering into discussions or negotiations
with, such Person or entity. The Company shall keep Purchaser informed of the
status of any such discussions or negotiations (including the identity of such
Person or entity and the terms of any proposal) and, to the extent applicable,
shall comply with Rule 14e-2(a) promulgated under the Exchange Act with regard
to an Alternative Proposal. Nothing in this SECTION 6.1 shall (x) permit the
Company to terminate this Agreement (except as specifically provided in ARTICLE
8 hereof), (y) permit the Company to enter into any agreement with respect to an
Alternative Proposal during the term of this Agreement, or (z) affect any other
obligation of the Company under this Agreement. Notwithstanding anything to the
contrary in this SECTION 6.1, Purchaser has advised the Company Board that it
has no intention of selling the Purchaser Shares or the Shares acquired by
Purchaser in the Offer pursuant to such an Alternative Proposal.
6.2. INTERIM OPERATIONS OF THE COMPANY. (a) From the date of this Agreement
until the Effective Time, unless Purchaser has consented in writing thereto, the
Company shall, and shall cause its Subsidiaries to, (i) conduct its operations
according to its ordinary course of business consistent with past practice; (ii)
use its reasonable best efforts to preserve intact its business organizations
and goodwill, keep available the services of its officers and employees, and
maintain satisfactory relationships with those Persons having business
relationships with them; and (iii) upon the discovery thereof, promptly notify
Purchaser of the existence of any breach of any representation or warranty
contained herein (or, in the case of any representation or warranty that makes
no reference to Material Adverse Effect, any breach of such representation or
warranty in any material respect) or the occurrence of any event that would
cause any representation or warranty contained herein no longer to be true and
correct (or, in the case of any representation or warranty that makes no
reference to Material Adverse Effect, to no longer be true and correct in any
material respect).
(b) From and after the date of this Agreement until the Effective
Time, unless Purchaser has consented in writing thereto or this Agreement has
been terminated pursuant to ARTICLE 8 hereof, the Company shall not, and shall
cause each of its Subsidiaries not to:
(i) amend its certificate of incorporation or by-laws;
-16-
(ii) issue, sell or pledge any shares of its capital stock or
other ownership interest in the Company or its Subsidiaries, or any
securities convertible into or exchangeable for any such shares or
ownership interest, or any rights, warrants or options to acquire or
with respect to any such shares of capital stock, ownership interest,
or convertible or exchangeable securities (or derivative instruments
in respect of the foregoing);
(iii) effect any stock split or otherwise change its
capitalization as it exists on the date hereof, or directly or
indirectly redeem, purchase or otherwise acquire any shares of its
capital stock or capital stock of its Subsidiaries;
(iv) (A) accelerate or waive any or all of the goals,
restrictions or conditions imposed under any restricted stock award,
or (B) issue, sell, grant or award any shares of capital stock or any
right to acquire shares of capital stock under any Company Stock Plan
(except as otherwise required by such plan);
(v) declare, set aside or pay any dividend or make any other
distribution or payment with respect to any shares of its capital
stock or other ownership interests (other than such payments by the
Subsidiaries to the Company);
(vi) mortgage or otherwise encumber or subject to any
Encumbrance, or sell, lease or otherwise dispose of any of its
property or assets (including capital stock of its Subsidiaries),
other than Encumbrances that are incurred in the ordinary course of
business, consistent with past practice, the sale or disposition of
inventory in the ordinary course of business or the sale, lease,
encumbrance or other disposition of assets which, individually or in
the aggregate, are obsolete or not material to the Company and its
Subsidiaries taken as a whole;
(vii) (A) acquire by merger, purchase or any other manner, any
business or entity or any division thereof for consideration in excess
of $500,000 in the aggregate; or (B) otherwise acquire any assets
which would be material, individually or in the aggregate, to the
Company and its Subsidiaries taken as a whole, except for purchases of
inventory, supplies or capital equipment in the ordinary course of
business consistent with past practice and the acquisition of assets
for consideration in excess of $500,000 in the aggregate;
(viii) except for borrowings under existing credit facilities and
excepting transactions between the Company and any Subsidiary, incur
or assume any long-term or short-term debt or issue any debt
securities or assume, guarantee or otherwise become liable or
responsible (whether directly, contingently or otherwise) for the debt
or other obligations of any other Person, other than obligations
(other than debt) of its Subsidiaries incurred in the ordinary course
of business;
-17-
(ix) (A) make any loans, advances or capital contributions to, or
investments in, any other Person (other than Subsidiaries), except
with respect to commitments outstanding as of the date hereof, or (B)
forgive any loans, advances or capital contributions to, or
investments in, any other Person (other than Subsidiaries), for an
aggregate amount in excess of $500,000 (as to clauses (A) and (B)
collectively);
(x) except as contemplated by this Agreement or in the ordinary
course of business consistent with past practices (A) increase the
compensation payable or to become payable to its officers or
employees, (B) other than in accordance with existing policies and
arrangements, grant any severance pay to its officers, directors or
employees or (C) establish, adopt, enter into or amend any collective
bargaining, bonus, profit sharing, thrift, compensation, stock option,
restricted stock, pension, retirement, deferred compensation,
employment, termination, severance or other plan, agreement, trust,
fund, policy or arrangement for the benefit of any director, officer
or employee, except to the extent required by applicable law or the
terms or a collective bargaining agreement or a contractual obligation
existing on the date hereof;
(xi) change any of the accounting principles or practices used by
the Company, except as may be required by GAAP;
(xii) pay, discharge or satisfy any material claims, material
liabilities or material obligations (absolute, accrued, asserted or
unasserted, contingent or otherwise), other than the payment,
discharge or satisfaction (A) of any such material claims, material
liabilities or material obligations in the ordinary course of business
and consistent with past practice or (B) of material claims, material
liabilities or material obligations reflected or reserved against in,
or contemplated by, the consolidated financial statements (or the
notes thereto) contained in the Company Reports;
(xiii) agree to the settlement of any claim or litigation, which
settlement would have a Material Adverse Effect;
(xiv) make, change or rescind any material Tax election (other
than recurring elections that customarily are made in connection with
the filing of any Tax Return; provided that any such elections are
consistent with the past practices of the Company or its Subsidiaries,
as the case may be) or settle or compromise any material Tax liability
that is the subject of any audit, claim for delinquent Taxes,
examination, action, suit, proceeding or investigation by any Taxing
authority;
(xv) except to the extent required under existing employee and
director benefit plans, agreements or arrangements as in effect on the
date of this Agreement or as contemplated by this Agreement,
accelerate the payment, right to
-18-
payment or vesting of any bonus, severance, profit sharing,
retirement, deferred compensation, stock option, insurance or other
compensation or benefits;
(xvi) enter into any agreement, understanding or commitment that
restrains, limits or impedes the ability of the Company or any of its
Subsidiaries to compete with or conduct any business or line of
business, including geographic limitations on the activities of the
Company or any of its Subsidiaries;
(xvii) materially modify, amend or terminate any material
contract, or waive, relinquish, release or terminate any right or
claim, in each case, except in the ordinary course of business
consistent with past practice;
(xviii) other than with respect to commitments outstanding as of
the date hereof, make any capital expenditures in the aggregate for
the Company and its Subsidiaries in excess $1,000,000, in the
aggregate;
(xix) take any action to cause the Common Stock to be delisted
from the New York Stock Exchange prior to the completion of the offer;
and
(xx) agree in writing or otherwise to take any of the foregoing
actions.
6.3. COMPANY STOCKHOLDER APPROVAL; INFORMATION STATEMENT. (a) If approval
or action in respect of the Merger by the stockholders of the Company is
required by applicable Law, the Company, acting through the Company Board, shall
(i) call a meeting of its stockholders (the "STOCKHOLDERS MEETING") for the
purpose of voting upon this Agreement and the transactions contemplated hereby,
(ii) unless Purchaser or other stockholders execute consents in lieu of a
meeting adequate to approve the Merger, hold the Stockholders Meeting as soon as
practicable following the purchase of shares of Common Stock pursuant to the
Offer, and (iii) unless taking such action would be inconsistent with the
fiduciary duties of the directors of the Company or of the Company's directors
constituting the Special Committee, as determined by such directors in good
faith, and after consultation with independent legal counsel, recommend to its
stockholders the approval of this Agreement and the transactions contemplated
hereby. In the event a Stockholders Meeting is called, unless Purchaser or other
stockholders execute consents in lieu of a meeting adequate to approve the
Merger, the Company shall use its reasonable best efforts to solicit from the
stockholders of the Company proxies in favor of the approval and adoption of
this Agreement, and the transactions contemplated hereby and to secure the vote
or consent of stockholders required by the DGCL to approve and adopt this
Agreement, unless otherwise required by the applicable fiduciary duties of the
directors of the Company or of the Company's directors constituting the Special
Committee, as determined by such directors in good faith, and after consultation
with independent legal counsel. Unless Purchaser or other stockholders execute
consents in lieu of a meeting adequate to approve the Merger, this Agreement
must be submitted to the stockholders of the Company whether or not the Company
Board determines at any time subsequent to declaring its advisability that the
Agreement is no longer advisable and recommends that the stockholders reject it.
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(b) If required by applicable Law, the Company will, as soon as practicable
following the expiration of the Offer, prepare and file a preliminary Proxy
Statement (such proxy statement, and any amendments or supplements thereto, the
"PROXY STATEMENT") or, if applicable, an Information Statement with the SEC with
respect to the Stockholders Meeting and will use its best efforts to respond to
any comments of the SEC or its staff and to cause the Proxy Statement or, if
applicable, Information Statement, to be cleared by the SEC. The Company will
notify Purchaser of the receipt of any comments from the SEC or its staff and of
any request by the SEC or its staff for amendments or supplements to the Proxy
Statement or, if applicable, Information Statement, or for additional
information and will supply Purchaser promptly with copies of all correspondence
between the Company or any of its representatives, on the one hand, and the SEC,
on the other hand. The Company shall give Purchaser and its counsel the
opportunity to review the Proxy Statement or, if applicable, Information
Statement, prior to it being filed with the SEC and shall give Purchaser and its
counsel the opportunity to review all amendments and supplements to the Proxy
Statement and all responses to requests for additional information and replies
to comments prior to their being filed with, or sent to, the SEC. Each of the
Company and Purchaser agrees to use its best efforts, after consultation with
the other parties hereto, to respond promptly to all such comments of and
requests by the SEC. As promptly as practicable after the Proxy Statement or, if
applicable, Information Statement, has been cleared by the SEC, the Company
shall mail the Proxy Statement or, if applicable, Information Statement, to the
stockholders of the Company. If at any time prior to the approval of this
Agreement by the Company's stockholders there shall occur any event which should
be set forth in an amendment or supplement to the Proxy Statement or, if
applicable, Information Statement, the Company will prepare and mail to its
stockholders such an amendment or supplement.
(c) The Company represents and warrants that the Proxy Statement or, if
applicable, Information Statement, will comply in all material respects with the
Exchange Act and, at the respective times filed with the SEC and distributed to
stockholders of the Company, will not 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 the light of the
circumstances under which they were made, not misleading; provided that the
Company makes no representation or warranty as to any information included in
the Proxy Statement that was provided by Purchaser. Purchaser represents and
warrants that none of the information supplied by Purchaser for inclusion in the
Proxy Statement or, if applicable, Information Statement, will, at the
respective times filed with the SEC and distributed to stockholders of the
Company, 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 the light of the circumstances under which they were
made, not misleading. Purchaser agrees that Purchaser will promptly inform the
Company of the discovery by Purchaser of any information that should be set
forth in an amendment or supplement to the Proxy Statement or, if applicable,
Information Statement.
(d) Subject to the terms of this Agreement, the Company shall use its best
efforts to obtain the necessary approvals by its stockholders of the Merger,
this Agreement and the transactions contemplated hereby.
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(e) Purchaser agrees to cause all shares of Common Stock purchased by
Purchaser pursuant to the Offer and all other shares of Common Stock owned by
Purchaser or any other subsidiary or affiliate of Purchaser to be voted in favor
of the approval of the Merger or to sign a written consent in lieu of a meeting
in favor of approval of the Merger.
6.4. FILINGS; OTHER ACTION. Subject to the terms and conditions herein
provided, the Company, and Purchaser shall: (a) use their reasonable best
efforts to cooperate with one another in (i) determining which filings other
than under the Exchange Act are required to be made prior to the expiration of
the Offer or the Effective Time with, and which consents, approvals, permits or
authorizations are required to be obtained prior to the Effective Time from,
Governmental Entities or other third parties in connection with the execution
and delivery of this Agreement and any other Ancillary Documents and the
consummation of the transactions contemplated hereby and thereby and (ii) timely
making all filings under the Exchange Act and all such other filings and timely
seek all required consents, approvals, permits, authorizations and waivers; and
(b) use their reasonable best efforts to take, or cause to be taken, all other
action and do, or cause to be done, all other things necessary, proper or
appropriate to consummate and make effective the transactions contemplated by
this Agreement. If, at any time after the Effective Time, any further action is
necessary or desirable to carry out the purpose of this Agreement, the proper
officers and directors of Purchaser and the Surviving Corporation shall take all
such necessary action.
6.5. ACCESS TO INFORMATION. (a) From the date of this Agreement until the
Closing, the Company shall, and shall cause its Subsidiaries to, (i) give
Purchaser and its authorized representatives reasonable access, upon reasonable
notice and during reasonable business hours to all books, records, personnel,
offices and other facilities and properties of the Company and its Subsidiaries
and their accountants and accountants' work papers, (ii) permit Purchaser to
make such copies and inspections thereof as Purchaser may reasonably request and
(iii) furnish Purchaser with such financial and operating data and other
information with respect to the business and properties of the Company and its
Subsidiaries as Purchaser may from time to time reasonably request; provided
that no investigation or information furnished pursuant to this SECTION 6.5
shall affect any representation or warranty made herein by the Company or the
conditions to the obligations of Purchaser to consummate the transactions
contemplated by this Agreement.
(b) Purchaser shall hold all information furnished on a confidential basis
by or on behalf of the Company or any of the Company's Subsidiaries or
representatives pursuant to Section 6.5(a) in confidence.
6.6. PUBLICITY. The initial press release relating to this Agreement shall
be issued jointly by the Company and Purchaser. Thereafter, the Company and
Purchaser shall obtain the prior consent of each other before issuing any press
release or otherwise making public statements with respect to the transactions
contemplated hereby, except as may be required by Law or any listing agreement
with any national securities exchange with respect thereto.
6.7. FURTHER ACTION. Each party hereto shall, subject to the fulfillment at
or before the Effective Time of each of the conditions of performance set forth
herein or the waiver
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thereof, perform such further acts and execute such documents as may be
reasonably required to effect the transactions contemplated hereby, including
the Merger.
6.8. INSURANCE. (a) Purchaser will (and the Surviving Corporation as
successor to the Purchaser as a result of the Merger will) maintain in effect
for not less than six years after the Effective Time, the Company's current
directors and officers insurance policies, if such insurance is obtainable (or
policies of at least the same coverage containing terms and conditions no less
advantageous to the current and all former directors and officers of the
Company) with respect to acts or failures to act prior to the Effective Time,
including acts relating to the transactions contemplated by this Agreement;
provided, however, that in order to maintain or procure such coverage, the
Surviving Corporation shall not be required to maintain or obtain policies
providing such coverage except to the extent such coverage can be provided at an
annual cost of no greater than 200% of the most recent annual premium paid by
the Company prior to the date hereof (the "CAP"); and provided, further, that if
equivalent coverage cannot be obtained, or can be obtained only by paying an
annual premium in excess of the Cap, Purchaser or the Surviving Corporation
shall only be required to obtain as much coverage as can be obtained by paying
an annual premium equal to the Cap.
(b) Purchaser agrees that all rights to indemnification for acts or
omissions occurring prior to the Effective Time now existing in favor of the
current or former directors or officers of the Company and its Subsidiaries (the
"INDEMNIFIED PARTIES") as provided in their respective articles of incorporation
or by-laws (or similar organizational documents) shall survive the Offer and the
Merger and shall continue in full force and effect in accordance with their
respective terms. The provisions of this SECTION 6.8 are intended to be for the
benefit of, and shall be enforceable by, each of the Indemnified Parties, their
heirs and their representatives.
6.9. INTERIM OPERATIONS OF PURCHASER. From the date of this Agreement until
the Effective Time, Purchaser shall not incurr any liabilities, other than
liabilities arising pursuant to this Agreement or in connection with the
transactions contemplated hereby.
ARTICLE 7
7. CONDITIONS.
7.1. CONDITIONS TO EACH PARTY'S OBLIGATION TO EFFECT THE MERGER. The
respective obligation of each party to effect the Merger shall be subject to the
satisfaction or waiver, where permissible, prior to the Effective Time, of the
following conditions:
(a) If approval of this Agreement and the Merger by the holders of Common
Stock is required by applicable Law, this Agreement and the Merger shall have
been approved by the requisite vote of such holders.
(b) No United States federal or state governmental authority or other
agency or commission or court of competent jurisdiction shall have enacted,
issued, promulgated, enforced or entered any law, rule, regulation, executive
order decree, injunction or other order which is in
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effect and prohibits or has the effect of prohibiting the consummation of the
Merger or makes such consummation illegal.
ARTICLE 8
8. TERMINATION.
8.1. TERMINATION. This Agreement, notwithstanding approval thereof by the
stockholders of the Company, may be terminated at any time prior to the
Effective Time:
(a) by mutual written consent of Purchaser and the Special Committee; or
(b) by the Purchaser or the Special Committee:
(i) if either (x) the purchase of Shares pursuant to the Offer has not
been consummated on or before June 19, 2000, or (y) the Effective Time shall not
have occurred on or before September 18, 2000 (provided that the right to
terminate this Agreement pursuant to this clause (i) shall not be available to
any party whose failure to fulfill any obligation under this Agreement has been
the cause of or resulted in the failure of consummation of the purchase of
Shares pursuant to the Offer on or before June 19, 2000 or the Effective Time to
occur on or before September 18, 2000) or
(ii) if there shall be any Law that makes consummation of the Offer or
the Merger illegal or prohibited, or if any court of competent jurisdiction in
the United States shall have issued an order, judgment, decree or ruling, or
taken any other action restraining, enjoining or otherwise prohibiting the
Merger and such order, judgment, decree, ruling or other action shall have
become final and non-appealable; or
(c) by the Special Committee:
(i) if there is an Alternative Proposal which the Special Committee in
good faith determines is more favorable from a financial point of view to the
stockholders of the Company as compared to the Offer and the Merger, and the
Special Committee determines in good faith based upon advice of outside counsel,
that the failure to take such action would be inconsistent with its fiduciary
duties to stockholders imposed by Law; provided, however, that the right to
terminate this Agreement pursuant to this SECTION 8.1(c) shall not be available
(i) if the Company has breached its obligations under SECTION 6.1, or (ii) if
the Alternative Proposal (x) is subject to a financing condition or (y) involves
consideration that is not entirely cash or does not permit stockholders to
receive the payment of the offered consideration in respect of all shares at the
same time, unless the Special Committee in good faith determines after
consultation with the Financial Advisor or other nationally recognized
investment banking firm that (in the case of clause (x)) the Alternative
Proposal is financeable and (in the case of clause (y)) that such offer provides
a higher value per share than the consideration per share pursuant to the Offer
or the Merger, or (iii) if, prior to or concurrently with any purported
termination pursuant to this SECTION 8.1(c), the Company shall not have paid the
fees and expenses contemplated by SECTION 8.2, or (iv) if the Company has not
provided Purchaser
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with five business days prior written notice of its intent to so terminate this
Agreement and delivered to Purchaser a copy of the written agreement embodying
the Alternative Proposal in its then most definitive form; or
(ii) if Purchaser shall have breached in any material respect any of
its representations, warranties or covenants contained in this Agreement; or
(d) by Purchaser:
(i) prior to the acceptance of any shares of Common Stock under the
Offer, if due to an occurrence or circumstance that would result in the failure
of any condition specified in Exhibit A, Purchaser shall have terminated the
Offer without having accepted any Shares for payment thereunder unless such
occurrence or circumstance that would result in the failure of any such
condition shall have been caused by or resulted from the failure of Purchaser to
perform any obligation of either of them contained in this Agreement; or
(ii) prior to the purchase of any Common Stock validly tendered
pursuant to the Offer, if the Special Committee shall have withdrawn or
modified, in a manner that is materially adverse to Purchaser, its approval or
recommendation of this Agreement, the Offer, the Merger or any other transaction
contemplated hereby or shall have recommended another merger, consolidation or
business combination involving, or acquisition of, the Company or its assets or
another tender offer for Common Stock, or shall have resolved to do any of the
foregoing.
8.2. EFFECT OF TERMINATION AND ABANDONMENT. In the event of termination of
this Agreement and the abandonment of the Merger pursuant to this ARTICLE 8, all
obligations of the parties hereto shall terminate, except the obligations of the
parties pursuant to this SECTION 8.2 and SECTIONS 6.5(b), 9.5 and 9.6, and there
shall be no liability on the part of the Company, Purchaser or their respective
officers or directors, except for any breach of a party's obligations under such
provisions. If this Agreement shall terminate pursuant to Section 8.1(b)(i) as a
result of the failure of the Company to satisfy the condition set forth in
paragraphs (e) of EXHIBIT A, or pursuant to 8.1(c) or 8.1(d)(ii), the Company
shall promptly, but in no event later than two business days after any such
termination, reimburse Purchaser and its affiliates for the out-of-pocket
expenses of Purchaser and its affiliates, incurred in connection with or arising
out of the Offer, the Merger or the transactions contemplated hereby or by the
Ancillary Documents, including reasonable attorneys' fees. If this Agreement
shall terminate pursuant to Section 8.1(c)(ii), Purchaser shall promptly, but in
no event later than two business days after any such termination, reimburse the
Company its out-of-pocket expenses incurred in connection with or arising out of
the Offer, the Merger or the transactions contemplated hereby or by the
Ancillary Documents, including reasonable attorneys' fees. The parties agree
that such reimbursement of expenses shall be Purchaser's exclusive remedy for
any loss, liability, damage or claim arising out of or in connection with any
such termination of this Agreement. The Company acknowledges that the agreements
contained in this SECTION 8.2 are an integral part of the transactions
contemplated by this Agreement, and that, without these agreements, Purchaser
would not enter into this Agreement. Notwithstanding the foregoing, no party
hereto shall be relieved from liability for any willful, material breach of this
Agreement.
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8.3. AMENDMENT. To the extent permitted by applicable law, this Agreement
may be amended by action taken by or on behalf of the board of directors of each
of the parties hereto and, in the case of the Company, with the approval of the
Special Committee at any time before or after adoption of this Agreement by the
stockholders of the Company (if required); PROVIDED, HOWEVER, that after any
such stockholder approval (if required), no amendment shall be made which
decreases the Merger Consideration or which adversely affects the rights of, or
the income tax consequences to, the Company's stockholders (other than Purchaser
and its Affiliates) hereunder without the approval of such stockholders. This
Agreement may not be amended except by an instrument in writing signed on behalf
of all of the parties.
8.4. EXTENSION; WAIVER. At any time prior to the Effective Time, any party
hereto, by action taken by its board of directors, may, to the extent legally
allowed, (a) extend the time for the performance of any of the obligations or
other acts of the other parties hereto, (b) waive any inaccuracies in the
representations and warranties made to such party contained herein or in any
document delivered pursuant hereto and (c) waive compliance with any of the
agreements or conditions for the benefit of such party contained herein;
PROVIDED, HOWEVER, that, if the Company seeks to make such extension or waiver
as provided in (a), (b) or (c) above, it must first obtain the approval of the
Special Committee. Any agreement on the part of a party hereto to any such
extension or waiver shall be valid only if set forth in an instrument in writing
signed on behalf of such party.
ARTICLE 9
9. GENERAL PROVISIONS.
9.1. NONSURVIVAL OF REPRESENTATIONS AND WARRANTIES. None of the
representations and warranties in this Agreement, or in any instrument delivered
pursuant to this Agreement, shall survive the Effective Time.
9.2. NOTICES. All notices and other communications given or made pursuant
hereto shall be in writing and shall be deemed to have been duly given or made
as of the date of receipt and shall be delivered personally or mailed by
registered or certified mail (postage prepaid, return receipt requested), or
sent by overnight courier or sent by facsimile, to the applicable party at the
following addresses or facsimile numbers (or at such other address or telecopy
number for a party as shall be specified by like notice):
If to Purchaser:
c/o The Heico Companies, LLC
5600 Three First National
Chicago, IL 60602
Facsimile: (312) 419-9417
Attention: Michael Heisley
with a copy to:
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McDermott, Will & Emery
227 West Monroe Street
Suite 4400
Chicago, IL 60606-5096
Facsimile: (312) 984-3669
Attention: Helen R. Friedli, P.C.
If to the Company:
Robertson-Ceco Corporation
5000 Executive Parkway, Suite 425
San Ramon, CA 94583
Facsimile: (925) 543-7597
Attention: E. A. Roskovensky
With a copy to:
Winthrop, Stimson, Putnam & Roberts
One Battery Park Plaza
New York, NY 10004
Facsimile: (212) 858-1500
Attention: Stephen R. Rusmisel, Esq.
9.3. ASSIGNMENT; BINDING EFFECT. Neither this Agreement nor any of the
rights, interests or obligations hereunder shall be assigned by any of the
parties hereto (whether by operation of law or otherwise) without the prior
written consent of the other parties; provided, however, that either Purchaser
may assign its rights hereunder (including, without limitation, the right to
make the Offer and/or to purchase shares of Common Stock pursuant to the Offer)
to a wholly owned subsidiary of Purchaser; and, further provided that nothing
shall relieve the assignor from its obligations hereunder. Subject to the
preceding sentence, this Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective successors and assigns.
Notwithstanding anything contained in this Agreement to the contrary, except for
the provisions of SECTION 6.8 which may be enforced directly by the
beneficiaries thereof, nothing in this Agreement, expressed or implied, is
intended to confer on any Person other than the parties hereto or their
respective heirs, successors, executors, administrators and assigns any rights,
remedies, obligations or liabilities under or by reason of this Agreement.
9.4. ENTIRE AGREEMENT. This Agreement, the Company Disclosure Letter, the
Exhibits, the Ancillary Documents and any other documents delivered by the
parties in connection herewith constitute the entire agreement among the parties
with respect to the subject matter hereof and supersede all prior agreements and
understandings among the parties with respect thereto.
9.5. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware without regard to its rules of
conflict of laws.
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Each of the Company and Purchaser hereby irrevocably and unconditionally
consents to submit to the exclusive jurisdiction of the United States District
Court for the State of Delaware or any court of the State of Delaware (the
"DELAWARE COURTS") for any litigation arising out of or relating to this
Agreement and the transactions contemplated hereby (and agrees not to commence
any litigation relating thereto except in such courts), waives any objection to
the laying of venue of any such litigation in the Delaware Courts and agrees not
to plead or claim in any Delaware Court that such litigation brought therein has
been brought in an inconvenient forum. Purchaser hereby appoints The Corporation
Trust Company as agent for service of process. The address of such agent for
service of process is Corporation Trust Center, 1209 Orange Street, Wilmington,
Delaware 19801.
9.6. FEES AND EXPENSES. Except as otherwise provided in SECTION 8.2,
whether or not the Merger is consummated, all fees, costs and expenses incurred
in connection with this Agreement and the transactions contemplated hereby shall
be paid by the party incurring such fees, costs and expenses.
9.7. CERTAIN DEFINITIONS. For purposes of this Agreement, the following
terms shall have the following meanings:
(i) "AFFILIATE" of a Person means a Person that directly or
indirectly, through one or more intermediaries, controls, is controlled by, or
is under common control with, the first mentioned Person.
(ii) "KNOWLEDGE" of any party hereto shall mean the knowledge of any
of the executive officers of that party.
(iii) "PERSON" means an individual, corporation, partnership, limited
liability company, association, trust, unincorporated organization, entity or
group (as defined in the Exchange Act).
9.8. HEADINGS. Headings of the Articles and Sections of this Agreement are
for the convenience of the parties only, and shall be given no substantive or
interpretive effect whatsoever. The table of contents contained in this
Agreement is for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
9.9. INTERPRETATION. In this Agreement, unless the context otherwise
requires, words describing the singular number shall include the plural and vice
versa, and words denoting any gender shall include all genders and words
denoting natural Persons shall include corporations and partnerships and vice
versa. Whenever the words "include," "includes" or "including" are used in this
Agreement, they shall be understood to be followed by the words "without
limitation."
9.10. WAIVERS. No action taken pursuant to this Agreement, including,
without limitation, any investigation by or on behalf of any party, shall be
deemed to constitute a waiver by the party taking such action of compliance with
any representations, warranties, covenants or agreements contained in this
Agreement or in any of the Ancillary Documents. The waiver by
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any party hereto of a breach of any provision hereunder shall not operate or be
construed as a waiver of any prior or subsequent breach of the same or any other
provision hereunder.
9.11. SEVERABILITY. Any term or provision of this Agreement that is invalid
or unenforceable in any jurisdiction shall, as to that jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement or affecting the validity or enforceability of any of the terms or
provisions of this Agreement in any other jurisdiction. If any provision of this
Agreement is so broad as to be unenforceable, the provision shall be interpreted
to be only so broad as is enforceable.
9.12. ENFORCEMENT OF AGREEMENT. The parties hereto agree that irreparable
damage would occur in the event that any of the provisions of this Agreement
were not performed in accordance with its specific terms or was otherwise
breached. It is accordingly agreed that the parties shall be entitled to an
injunction or injunctions to prevent breaches of this Agreement and to enforce
specifically the terms and provisions hereof in any Delaware Court, this being
in addition to any other remedy to which they are entitled at law or in equity.
9.13. COUNTERPARTS. This Agreement may be executed by the parties hereto in
separate counterparts, each of which, when so executed and delivered, shall be
an original. All such counterparts shall together constitute one and the same
instrument. Each counterpart may consist of a number of copies hereof, each
signed by less than all, but together signed by all, of the parties hereto.
IN WITNESS WHEREOF, the parties have executed this Agreement and caused the
same to be duly delivered on their behalf on the day and year first written
above.
ROBERTSON-CECO CORPORATION
By: /s/ E.A. Roskovensky
-----------------------------------------
Name: E.A. Roskovensky
---------------------------------------
Title: President and Chief Operating Officer
--------------------------------------
RHH ACQUISITION CORP.
By: /s/ Stanley H. Meadows
--------------------------------
Name: Stanley H. Meadows
------------------------------
Title: Assistant Secretary
-----------------------------
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EXHIBIT A
CONDITIONS OF THE OFFER
Notwithstanding any other term of the Offer or this Agreement, Purchaser
shall not be required to accept for payment or to pay for any shares of Common
Stock not theretofore accepted for payment or paid for, and may terminate or
amend the Offer if at any time on or after the date of this Agreement and before
the acceptance of such Shares for payment or the payment therefor, any of the
following conditions exist or shall occur and remain in effect:
(a) there shall have been instituted, pending or threatened any
litigation by the Government of the United States or by any agency or
instrumentality thereof or by any other third Person or nongovernmental
entity that would be reasonably likely to (i) restrict the acquisition by
Purchaser (or any of its affiliates) of shares of Common Stock pursuant to
the Offer or restrain, prohibit or delay the making or consummation of the
Offer or the Merger, (ii) make the purchase of or payment for some or all
of the shares of Common Stock pursuant to the Offer or the Merger illegal,
(iii) impose limitations on the ability of Purchaser (or any of its
affiliates) effectively to acquire or hold, or to require Purchaser or the
Company or any of their respective affiliates or subsidiaries to dispose of
or hold separate, any portion of their assets or the business of any one of
them, (iv) impose material limitations on the ability of Purchaser or its
affiliates to exercise full rights of ownership of the shares of Common
Stock purchased by it, including, without limitation, the right to vote the
shares purchased by it on all matters properly presented to the
stockholders of the Company, (v) limit or prohibit any material business
activity by Purchaser or any of its affiliates, including, without
limitation, requiring the prior consent of any Person or entity (including
the Government of the United States of America and any instrumentality
thereof) to future transactions by Purchaser or any of its affiliates or
(vi) make materially more costly (A) the making of the Offer, (B) the
acceptance for payment of, or payment for, some or all of the Shares
pursuant to the Offer, (C) the purchase of Shares pursuant to the Offer or
(D) the consummation of the Merger; or
(b) there shall have been a subsequent development in any action or
proceeding relating to the Company or any of its Subsidiaries that would
(i) be reasonably likely to be materially adverse to Purchaser or to
Company and its Subsidiaries taken as a whole or (ii) make materially more
costly (A) the making of the Offer, (B) the acceptance for payment of, or
payment for, some or all of the shares pursuant to the Offer, (C) the
purchase of shares pursuant to the Offer or (D) the consummation of the
Merger; or
(c) there shall have been any action taken, or any Law promulgated,
enacted, entered, enforced or deemed applicable to the Offer or the Merger
by any
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Governmental Entity that could directly or indirectly result in any of the
consequences referred to in subsection (a) above; or
(d) this Agreement shall have been terminated in accordance with its
terms; or
(e) (i) any of the representations and warranties made by the Company
in this Agreement that are qualified by materiality or Material Adverse
Effect shall not have been true and correct in all respects when made, or
shall thereafter have ceased to be true and correct in all respects as if
made at the scheduled or extended expiration of the Offer (except to the
extent that any such representation or warranty refers specifically to
another date, in which case such representation or warranty shall be true
and correct in all respects as of such other date), or the other
representations and warranties made by the Company in this Agreement shall
not have been true and correct in all material respects when made, or shall
thereafter have ceased to be true and correct in all material respects as
if made at the scheduled or extended expiration of the Offer (except to the
extent that any such representation or warranty refers specifically to
another date, in which case such representation or warranty shall be true
and correct in all material respects as of such other date) or (ii) the
Company shall have breached or failed to comply in any material respect
with any of its obligations under this Agreement; or
(f) Purchaser and the Special Committee shall have agreed that
Purchaser shall terminate the Offer or postpone the acceptance for payment
of or payment for Shares thereunder; or
(g) there shall have occurred (i) any general suspension of, or
limitation on prices for, trading in securities on any national securities
exchange or in the over the counter market in the United States, (ii) a
declaration of any banking moratorium by federal or state authorities or
any suspension of payments in respect of banks or any limitation (whether
or not mandatory) imposed by federal or state authorities on the extension
of credit by lending institutions in the United States, (iii) a
commencement of a war, armed hostilities or any other international or
national calamity directly or indirectly involving the United States, or
(iv) in the case of any of the foregoing existing at the time of the
commencement of the Offer, in the sole judgment of Purchaser, a material
acceleration or worsening thereof; or
(h) there shall not have been validly tendered and not withdrawn prior
to the expiration of the Offer, a number of shares of Common Stock which,
when combined with the Shares owned by Purchaser, would result in Purchaser
owning at least 90% of the shares of Common Stock issued and outstanding on
the date of purchase; or
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(i) there shall have been a Material Adverse Effect with respect to
the Company, or there shall have been a change or event which could
reasonably be expected to have a Material Adverse Effect on the Company.
The foregoing conditions are for the sole benefit of Purchaser and may be
asserted by Purchaser regardless of the circumstances giving rise to any such
condition and may be waived by Purchaser, in whole or in part, at any time and
from time to time, in the sole discretion of Purchaser. The failure by Purchaser
at any time to exercise any of the foregoing rights will not be deemed a waiver
of any right, the waiver of such right with respect to any particular facts or
circumstances shall not be deemed a waiver with respect to any other facts or
circumstances, and each right will be deemed an ongoing right which may be
asserted at any time and from time to time.
Should the Offer be terminated pursuant to the foregoing provisions, all
tendered shares of Common Stock not theretofore accepted for payment shall
promptly be returned by the depositary to the tendering stockholders.
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