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AGREEMENT AND PLAN OF REORGANIZATION
AMONG
KONINKLIJKE PAKHOED N.V.
(ALSO KNOWN AS ROYAL PAKHOED N.V.),
UC ACQUISITION CORP.
AND
UNIVAR CORPORATION
DATED: MAY 31, 1996
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TABLE OF CONTENTS
Page
1. THE TENDER OFFER....................................................................................... 1
1.1 The Tender Offer.............................................................................. 1
1.2 Buyer's Filings............................................................................... 2
1.3 Company Action................................................................................ 3
1.4 Company Filings............................................................................... 3
1.5 Stock Plans................................................................................... 4
2. THE MERGER............................................................................................. 5
2.1 Effective Time................................................................................ 5
2.2 Closing....................................................................................... 5
2.3 Effect of the Merger.......................................................................... 6
3. CONVERSION AND CANCELLATION OF SHARES.................................................................. 6
3.1 Conversion of Shares.......................................................................... 6
3.2 Surrender of Shares........................................................................... 6
3.3 No Further Transfers of Shares................................................................ 7
4. COVENANTS OF THE PARTIES............................................................................... 7
4.1 Covenants of Parent and Buyer................................................................. 7
(a) Government Approvals................................................................. 7
(b) Notification of Breach of Representations, Warranties and Covenants.................. 7
(c) Press Releases....................................................................... 7
(d) Offer to Purchase Shares............................................................. 8
(e) Litigation Developments.............................................................. 8
(f) Indemnification and Insurance........................................................ 8
(g) Company Agreements and Plans......................................................... 9
4.2 Covenants of Company.......................................................................... 9
(a) Approval by Company Shareholders. ................................................... 9
(b) Acceptance of Tender Offer........................................................... 10
(c) Agreements of Officers and Directors, and Major Shareholder.......................... 10
(d) Government Approvals................................................................. 10
(e) Notification of Breach of Representations, Warranties and Covenants.................. 10
(f) Compensation......................................................................... 11
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(g) Conduct of Business in the Ordinary Course........................................... 11
(h) Press Releases....................................................................... 13
(i) No Merger or Solicitation............................................................ 14
(j) Dividends............................................................................ 15
(k) Accounting Methods................................................................... 15
(l) Additional Agreements................................................................ 15
(m) Litigation Developments.............................................................. 15
(n) Employment Agreements................................................................ 15
(o) Access to Properties, Books and Records; Confidentiality............................. 15
(p) Resignation and Appointment of Directors............................................. 16
(q) Approval of Merger................................................................... 16
(r) Deregistration....................................................................... 16
4.3 Covenants of the Parties...................................................................... 16
5. REPRESENTATIONS AND WARRANTIES OF COMPANY.............................................................. 17
5.1 Corporate Status and Power to Enter into Agreements........................................... 17
5.2 Execution and Delivery of the Agreement....................................................... 17
5.3 Capitalization................................................................................ 19
5.4 Employment Contracts and Benefits............................................................. 19
5.5 Legal Actions and Proceedings................................................................. 21
5.6 Retention of Broker or Consultant............................................................. 21
5.7 Accuracy of Representations and Warranties.................................................... 21
6. REPRESENTATIONS AND WARRANTIES OF PARENT AND BUYER ......................................................... 21
6.1 Corporate Status and Power to Enter into Agreements........................................... 21
6.2 Execution and Delivery of the Agreement....................................................... 22
6.3 Retention of Broker or Consultant............................................................. 22
6.4 Financing..................................................................................... 22
6.5 Accuracy of Representations and Warranties.................................................... 23
7. CONDITIONS TO THE MERGER............................................................................... 23
7.1 Conditions to the Obligations of Each Party................................................... 23
8. EXPENSES............................................................................................... 23
9. AMENDMENT; TERMINATION................................................................................. 24
9.1 Amendment..................................................................................... 24
9.2 Termination................................................................................... 24
9.3 Notice........................................................................................ 25
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9.4 Breach of Obligations......................................................................... 25
9.5 Termination and Expenses...................................................................... 25
10. MISCELLANEOUS.......................................................................................... 25
10.1 Notices....................................................................................... 25
10.2 Binding Agreement............................................................................. 26
10.3 Governing Law................................................................................. 27
10.4 Attorneys' Fees............................................................................... 27
10.5 Entire Agreement; Severability................................................................ 27
10.6 Counterparts.................................................................................. 27
10.7 Waivers....................................................................................... 27
10.8 Survival of Representations and Warranties.................................................... 28
Exhibits Initial Section Reference
A. Merger Agreement 1.1
B. Director Agreements 4.2(c)
C. Shareholder Agreement 4.2(c)
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AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION, dated as of May 31, 1996
("Agreement"), is among KONINKLIJKE PAKHOED N.V. (also known as Royal Pakhoed
N.V.), a limited liability company formed and existing under the laws of The
Netherlands ("Parent"), UC ACQUISITION CORP., a Washington corporation and an
indirect wholly owned subsidiary of Parent ("Buyer"), and UNIVAR CORPORATION, a
Washington corporation ("Company").
WITNESSETH:
The Boards of Directors of Buyer and Company and the Supervisory and
Management Boards of Parent deem it advisable and in the best interests of
Parent, Buyer and Company and their respective shareholders to consummate the
business combination provided for herein whereby Parent would acquire Company
and the goodwill associated therewith through a two step transaction. First,
Buyer will commence a tender offer for Company's Common Stock, no par value
("Share" or "Shares"), in conformity with the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), and the applicable regulations thereunder (the
"Tender Offer"), and, second, following the consummation of the Tender Offer,
Buyer will be merged into Company (the "Merger"), with Company as the surviving
corporation. Alternatively, at Parent's option, Company may be merged into Buyer
pursuant to Section 2.3 hereof. Pursuant to the Merger and subject to the terms
and conditions herein, each holder of Shares will receive, in exchange for each
Share, an amount in cash, as specified in Section 3.1 of this Agreement and each
holder of options to purchase Shares will receive, in cancellation of such
options, an amount in cash as specified in Section 1.5 of this Agreement.
This Agreement and the Merger Agreement, as defined herein, have been
approved by the Supervisory and Management Boards of Parent and the Boards of
Directors of Buyer and Company and will be submitted for approval by the
shareholders of Company at a special meeting of its shareholders, if required
pursuant to applicable law or the terms hereof.
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements provided for or contained
herein, the parties hereto agree as follows:
1. THE TENDER OFFER.
1.1 The Tender Offer. Provided that nothing shall have occurred that
would result in a failure to satisfy any of the conditions set forth in Annex I
hereto, Buyer shall, as promptly as practicable after the date hereof, but in no
event later than five (5) business days following the public announcement of the
terms of this Agreement, commence the Tender Offer to purchase all
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of the outstanding Shares pursuant to the terms thereof, at a price of Nineteen
Dollars and Forty-Five Cents ($19.45) per Share, in cash, as it may be adjusted
pursuant to the terms hereof (the "Price"). The Tender Offer shall be subject to
the condition that there shall be validly tendered in accordance with the terms
of the Tender Offer and not withdrawn prior to the expiration date of the Tender
Offer a number of Shares which, together with all Shares beneficially owned by
Parent and its "affiliates" and "associates" (as such terms are defined in Rule
12b-2 of the Exchange Act) (collectively, "Affiliates") represents at least a
majority of the Shares outstanding on a fully diluted basis (the "Minimum
Condition") and to the other conditions set forth in Annex I hereto. Unissued
Shares reserved for options which are cancelled pursuant to Section 1.5 shall
not be considered as outstanding Shares. Buyer will not, without the prior
written consent of Company, (a) decrease the Price; (b) decrease the number of
Shares sought pursuant to the Tender Offer; (c) impose additional conditions to
the Tender Offer; (d) change the expiration date of the Tender Offer so that the
Tender Offer ends less than thirty (30) "business days" (as defined in Rule
14d-1(c)(6) of the Exchange Act) from the date on which the Tender Offer is
first publicly announced or extend the expiration date beyond July 31, 1996,
provided that the expiration date of the Tender Offer may be extended by Buyer
to a date not later than August 31, 1996 if (i) any Government Approvals (as
defined in Section 4.1 hereof) shall not have been obtained by July 31, 1996, or
(ii) by July 26, 1996, less than eighty percent (80%) of the outstanding Shares
have been tendered for purchase pursuant to the Tender Offer, and Buyer
reasonably believes that eighty percent (80%) or more of the Shares will be
tendered, if the expiration date of the Tender Offer is extended; (e) waive or
modify the Minimum Condition; or (f) change the conditions to the Tender Offer
in any material respect, except that Buyer in its sole discretion may waive any
of the other conditions to the Tender Offer. In the event the Tender Offer is
extended beyond July 31, 1996 the Price shall be increased by an amount equal to
the product of the Price multiplied by the prime interest rate as announced by
Bank of America NW, N.A. (doing business as Seafirst Bank) in Seattle,
Washington as in effect on August 1, 1996, multiplied by the quotient of the
number of days that the Tender Offer is extended after July 31, 1996, divided by
three hundred and sixty-five (365). The foregoing limitations shall not be
applicable in the event this Agreement is terminated pursuant to Section 9.2(d),
in which event Buyer may modify its Tender Offer subject only to the limitations
of that certain Standstill Agreement among Parent, Pakhoed Investeringen, B.V.,
Pakhoed USA, Inc. and Company dated September 19, 1986 and amended June 3, 1992
(the "1986 Standstill Agreement").
1.2 Buyer's Filings. On or prior to the date the Tender Offer is
commenced, Buyer shall file with the Securities and Exchange Commission ("SEC")
a Tender Offer Statement on Schedule 14D-1 ("Schedule 14D-1") with respect to
the Tender Offer which will contain the offer to purchase and form of the
related letter of transmittal (which, together with any supplements or
amendments thereto, are collectively referred to herein as the "Tender Offer
Documents"), all in accordance with the requirements of the Exchange Act and
will disseminate the Tender Offer
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Documents to the holder of Shares. Buyer, Parent, and Company each agrees
promptly to correct any information provided by it for use in the Tender Offer
Documents if and to the extent that such information shall have become false or
misleading in any material respect. Buyer and Parent agree to take all steps
necessary to cause the Tender Offer Documents as so corrected to be filed with
the SEC and to be disseminated to holders of Shares, in each case as and to the
extent required by applicable federal securities laws. Company and its counsel
shall be given an opportunity to review and comment on the Schedule 14D-1 and
any amendments thereto prior to their being filed with the SEC. Buyer and Parent
each agrees to provide Company and its counsel in writing with any comments
Buyer, Parent or their counsel may receive from the SEC or its staff with
respect to the Tender Offer Documents promptly after the receipt thereof.
1.3 Company Action. In accordance with Section 2.8 of the 1986
Standstill Agreement, Company hereby consents to the Tender Offer and represents
and warrants that its Board of Directors, at a meeting duly called and held, has
(a) unanimously determined that this Agreement and the transactions contemplated
hereby, including the Tender Offer and the Merger, are fair to and in the best
interest of Company and its shareholders, and (b) unanimously approved this
Agreement and the transactions contemplated hereby, including the Tender Offer
and the Merger. Company further represents that Schroder Wertheim & Co.
Incorporated ("Schroder") has rendered to Company's Board of Directors its
opinion to be included in the Schedule 14D-9 (as defined in Section 1.4 hereof),
to the effect that the consideration to be received by the holders of the Shares
other than Parent and its affiliates pursuant to each of the Tender Offer and
the Merger is fair to such holders of Shares from a financial point of view.
Company will promptly furnish Parent with a list of its shareholders, mailing
labels and all available listings and computer files containing the names and
addresses of all record holders of Shares and lists of securities positions of
Shares held in stock depositories, in each case true and correct as of the most
recent practicable date (which shall not be more than ten (10) business days of
the date of this Agreement), and will promptly provide to Parent such additional
information (including, without limitation, updated lists of shareholders,
indicating the name and address of each record holder not previously furnished,
mailing labels and lists of securities positions) and such other assistance as
Parent may reasonably request in connection with the Tender Offer.
1.4 Company Filings. On or prior to the date that the Tender Offer is
commenced, Company will, in accordance with the requirements of the Exchange
Act, file with the SEC a Solicitation/Recommendation Statement on Schedule 14D-9
(the "Schedule 14D-9") which shall reflect the recommendations of Company's
Board of Directors referred to in Section 1.3 above. Company, Buyer and Parent
each agree promptly to correct any information provided by it for use in the
Schedule 14D-9 if and to the extent that such information shall have become
false or misleading in any material respect. Company 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 holders of
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Shares, in each case as and to the extent required by applicable federal
securities laws. Parent, Buyer and their counsel shall be given an opportunity
to review and comment on the Schedule 14D-9 and any amendments thereto prior to
their being filed with the SEC. Company agrees to provide Parent, Buyer and
their counsel in writing with any comments Company or its counsel may receive
from the SEC or its staff with respect to the Schedule 14D-9 and any amendments
thereto promptly after the receipt of such comments.
1.5 Stock Plans.
(a) Each outstanding employee or non-employee director stock
option to purchase Shares or restricted stock award granted under the Stock
Plans described in Section 4.2(g)(vi) may be surrendered by the holder thereof
to Company after the commencement of the Tender Offer and prior to the Effective
Time for the right to receive in exchange therefor an amount determined by
multiplying (i) the excess of the Price per Share paid pursuant to the Tender
Offer over the applicable exercise price, if any, of such option or award by
(ii) the sum of (x) the number of Shares the holder of such option(s) may
purchase (taking into account Shares the holder may conditionally purchase under
the Stock Plans in the event of a "Change of Control" as defined in such Stock
Plans) had such holder exercised such option in full immediately prior to the
Effective Time plus (y) the number of Shares owned by the holder under
restricted stock awards. Any "Deferred Cash Incentive" or other award of cash or
other property which becomes available to the holder from Company upon the
exercise of an option, pursuant to the terms of the Stock Plans, shall also
become payable. All such amounts shall be payable by Company at the time the
Shares are accepted for payment by Buyer if the Minimum Condition has been
satisfied (or at such later time as the option or award is surrendered to
Company, but not later than the Effective Time).
(b) Prior to the Effective Time, Company shall either (i)
obtain any consents from holders of options to purchase Shares granted under the
Stock Plans, or (ii) make any amendments to the terms of such Stock Plans that
are necessary to give effect to the transactions contemplated by Section 1.5(a).
Notwithstanding any other provision of this Section, payment may be withheld in
respect of any employee or non-employee director stock option or award until all
necessary consents in respect of such stock options or awards are obtained.
(c) The Stock Plans shall terminate as of the Effective Time,
and the provisions in any other plan or arrangement of Company or the Company
Subsidiaries (as defined in Section 4.1(f)) providing for the offering,
issuance, purchase, transfer or grant of any capital shares of Company or any
interest in respect of any capital shares of Company shall be terminated as of
the Effective Time, and Company shall ensure that following the Effective Time
no holder of an employee or non-employee director stock option or any
participant in any Stock Plan or other
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plan or arrangement of Company or the Company Subsidiaries shall have any right
thereunder to acquire any capital shares or any other interest in capital shares
of Company or the Surviving Corporation (as defined in Section 2.3). Any option
which remains unexercised as of the Effective Time shall be terminated,
cancelled and converted into the right to receive the cash payments provided for
in Section 1.5(a).
(d) Company and the Surviving Corporation shall have the right
to withhold from amounts payable pursuant to this Section any foreign, federal,
state or local income or other payroll related taxes required to be withheld
under applicable laws. The Surviving Corporation and Parent shall indemnify
holders of options and awards against any "Excise Tax" and shall also make a
"Gross-Up Payment" as those terms are defined in the Change of Control
Agreements, as amended, referenced in Section 5.4(a). The obligation to
indemnify against Excise Taxes and make a Gross-Up Payment shall apply to all
holders of options or awards who are subject to an Excise Tax or against whom an
Excise Tax is subsequently asserted regardless of whether an individual Change
of Control Agreement is executed in favor of the option or award holder provided
that such holder enters into an agreement with Company or the Surviving
Corporation regarding the terms of such indemnity substantially identical to the
form of the amendments to the Change of Control Agreements with certain
executive officers as of May 31, 1996. The Surviving Corporation shall properly
record, pay, and report all withheld taxes to the proper tax authorities and
furnish the employee with all required information reports. The Surviving
Corporation or Company shall have the right to condition any payments made to
holders of options and awards on the execution and delivery by such holders of a
mutually acceptable release of claims.
2. THE MERGER.
2.1 Effective Time. Subject to the terms and conditions of this
Agreement, upon the filing with the Washington Secretary of State of duly
executed Articles of Merger (including a Plan of Merger) as prescribed by the
Washington Business Corporation Act ("WBCA") substantially in the form attached
hereto as Exhibit A (the "Merger Agreement"), or at such time thereafter as is
provided in the Merger Agreement (the "Effective Time") on the date of such
filing or other date specified in the Merger Agreement (the "Effective Date")
the Merger shall become effective.
2.2 Closing. The closing of the Merger (the "Closing") will take place
as soon as practicable on the first (1st) business day after satisfaction of the
conditions set forth in Section 7 of this Agreement (the "Closing Date"), at the
offices of Graham & James LLP, 1001 Fourth Avenue Plaza, Suite 4500, Seattle,
Washington 98154-1065, unless another date or place is agreed to in writing by
the parties hereto.
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2.3 Effect of the Merger. Subject to the terms and conditions of this
Agreement and the Merger Agreement, at the Effective Time on the Effective Date,
Buyer shall be merged into Company, and Company shall be the surviving
corporation (the "Surviving Corporation") in the Merger. All assets, rights,
goodwill, privileges, immunities, powers, franchises and interests of Company
and Buyer in and to every type of property (real, personal and mixed) and choses
in action, as they exist as of the Effective Date, shall pass and be transferred
to and vest in the Surviving Corporation by virtue of the Merger at the
Effective Time without any deed, conveyance or other transfer. The separate
existence of Buyer shall cease and the corporate existence of Company as the
Surviving Corporation shall continue unaffected and unimpaired by the Merger;
and the Surviving Corporation shall be deemed to be the same entity as each of
Company and Buyer and shall be subject to all of their duties and liabilities of
every kind and description. At the sole election of Parent, the Merger may be
structured so that Company shall be merged with and into Buyer with the result
that Buyer shall be the "Surviving Corporation." The 1986 Standstill Agreement
and the Confidentiality and Standstill Agreement, dated April 12, 1996, by and
among Company, Parent and subsidiaries of Parent (the "Confidentiality
Agreement") shall be terminated at the Effective Time on the Effective Date.
3. CONVERSION AND CANCELLATION OF SHARES.
3.1 Conversion of Shares. At the Effective Time, by virtue of the
Merger and without any action on the part of the holder of any Shares, each of
the issued and outstanding Shares or fractional interests thereof (other than
any Shares owned by Buyer and its Affiliates and Shares as to which dissenters'
rights have been perfected) shall be converted into the right to receive an
amount in cash which shall be equal to the highest Price paid to holders of
Shares who tender their Shares in the Tender Offer. From and after the Effective
Time, all outstanding Shares shall no longer be outstanding and shall
automatically be canceled and retired and shall cease to exist, and the holders
of certificates formerly representing Shares (other than Shares held by Buyer
and its Affiliates) shall cease to have any rights with respect thereto other
than to receive the Price or any dissenters' rights they have perfected pursuant
to Section 23B.13.020 of the WBCA.
3.2 Surrender of Shares. Prior to the Effective Date, Buyer shall
appoint First Interstate Bank of Washington N.A. or Company's successor transfer
agent, or any other bank or trust company mutually acceptable to Buyer, Parent,
and Company, as exchange agent (the "Exchange Agent") for the purpose of
exchanging each certificate representing the Shares for the Price. As soon as
practicable after the Effective Date, each holder of Shares, upon surrender to
the Exchange Agent of one or more certificates for such Shares for cancellation,
will be entitled to receive a payment in cash of the Price for each Share or
fraction thereof.
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3.3 No Further Transfers of Shares. At the Effective Date, the stock
transfer books of Company shall be closed and no transfer of Shares theretofore
outstanding shall thereafter be made.
4. COVENANTS OF THE PARTIES.
4.1 Covenants of Parent and Buyer.
(a) Government Approvals. Prior to the Effective Date, Parent
and Buyer, with the cooperation of Company, shall take or cause to be taken as
promptly as practicable all such steps as shall be necessary to obtain all
authorizations, consents, orders or approvals of, or declarations or filings
with, or terminations or expirations of waiting periods imposed by any
government agencies, as are required by law or otherwise, necessary or required
to consummate the Tender Offer and the Merger (collectively, the "Government
Approvals"), including but not limited to the filing of the notification and
report form required under the Hart-Scott-Rodino Antitrust Improvements Act of
1976, as amended ("HSR Act"), the Exon-Florio Amendment to the Defense
Production Act of 1950 ("Exon-Florio"), the Competition Act (Canada) and the
Investment Canada Act and shall do any and all acts deemed by Company to be
reasonably necessary or appropriate in order to cause the Merger to be
consummated on the terms provided in this Agreement as promptly as practicable.
(b) Notification of Breach of Representations, Warranties and
Covenants. Parent and Buyer shall promptly give written notice to Company upon
becoming aware of the occurrence or impending or threatened occurrence of any
event which would cause or constitute a breach of any of the representations,
warranties, or covenants of Parent or Buyer contained or referred to in the
Merger Agreement or this Agreement and shall use its best efforts to prevent the
same or remedy the same promptly.
(c) Press Releases. Parent and Buyer shall not issue any press
release or written statement for general circulation to the public relating to
the Merger, this Agreement, or the Merger Agreement unless previously provided
to Company for review and approval (which approval will not be unreasonably
withheld or delayed) and shall cooperate with Company in the development and
distribution of all news releases and other public information disclosures with
respect to this Agreement, the Merger Agreement, and the Merger. Notwithstanding
the foregoing, Parent and Buyer may, without the consent of Company, issue any
press release or written statement for general circulation with regard to this
Agreement, the Merger Agreement, and the Merger that either Parent or Buyer
determines is required under any applicable law or regulation, provided that,
prior to such issuance, Parent and Buyer shall inform Company of their intent to
make such releases or statements, shall provide a copy thereof to Company and
shall
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provide Company with an opportunity to review and comment on the content of such
releases or statements.
(d) Offer to Purchase Shares. Parent and Buyer shall use their
best efforts in good faith to take or cause to be taken as promptly as
practicable all such steps as shall be necessary or appropriate in order to
complete the Tender Offer on the terms provided in the Tender Offer Documents
prior to the expiration thereof.
(e) Litigation Developments. Parent and Buyer agree to
promptly advise Company with respect to any and all material legal actions or
other proceedings or investigations that could impede the transactions
contemplated hereby and to promptly advise Company with respect to any
significant developments arising in connection with said actions, proceedings,
or investigations. In the event that any action, suit, proceeding or
investigation relating hereto or to the transactions contemplated hereby is
commenced, whether before or after the Effective Time, the parties hereto agree
to cooperate and use their best efforts to defend vigorously against and respond
thereto.
(f) Indemnification and Insurance. With respect to events
which occur prior to the Effective Time, Parent agrees that all rights to
indemnification existing in favor of the present or former directors, officers,
employees, fiduciaries and agents of (i) Company, (ii) any corporation,
partnership, limited liability company, or other entity in which Company owns,
directly or indirectly, any equity interest and whose financial statements are
consolidated for accounting purposes under generally accepted accounting
principles ("GAAP") (the "Company Subsidiaries") or (iii) any "Pension Plans"
(as defined in ERISA Section 3(2)) or "Employee Welfare Benefit Plans" (as
defined in ERISA Section 3(1)) which are sponsored by Company or the Company
Subsidiaries, as provided in Company's Articles of Incorporation or pursuant to
any agreements previously disclosed by Company to Parent in writing with
specific reference to this Section, or the articles of incorporation, bylaws,
Board resolutions or similar documents of the Company Subsidiaries as in effect
as of the date hereof shall survive the Merger and shall continue in full force
and effect for a period of not less than the statutes of limitations, if any,
applicable to such matters. Without limiting the foregoing, Company and, after
the Effective Time, Parent shall cause the Surviving Corporation to periodically
advance expenses as incurred with respect to the foregoing to the fullest extent
permitted under the provisions of Company's Articles of Incorporation or the
articles of incorporation of the Company Subsidiaries. As of the Effective Time,
Company shall, or in the event Company is unable to do so, Parent shall cause
the Surviving Corporation to convert the current policies for directors' and
officers' liability insurance and ERISA or employee plan fiduciary liability
insurance maintained by Company and the Company Subsidiaries to a policy or
policies for a term of six (6) years after the Effective Date which shall cover
events which occur prior to the Effective Date, provided that the incremental
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cost of such policy or policies, after applying all related prepaid insurance
premiums, shall not exceed two hundred thousand dollars ($200,000). To the
extent that the premium for such policy or policies exceeds two hundred thousand
dollars ($200,000), Company or the Surviving Corporation shall obtain reasonably
available policies for not less than such amount. Buyer and the Surviving
Corporation shall pay all expenses, including attorneys' fees, that may be
incurred by any present or former officer, director, employee, fiduciary or
agent of Company or the Company Subsidiaries in enforcing the indemnity and
other obligations provided for in this Section 4.1(f).
(g) Company Agreements and Plans. Parent, Buyer, and their
affiliates, shall cause the Surviving Corporation to honor and fully perform all
agreements and plans for the benefit of employees or non-employee directors
which are not terminated by the terms thereof or the terms hereof and continue
after the Effective Date, and which are disclosed to Parent and Buyer pursuant
to Section 5.4(a).
4.2 Covenants of Company.
(a) Approval by Company Shareholders. As soon as practicable
after the expiration date of the Tender Offer, (i) if Buyer and its affiliates
own or have the right to acquire less than ninety percent (90%) of Company
Shares, but more than fifty percent (50%), Company shall cause the Merger, this
Agreement, and the Merger Agreement to be submitted promptly for the approval of
its shareholders at a special meeting to be called and held in accordance with
applicable laws and Company bylaws; or (ii) if, as a result of the Tender Offer,
Buyer owns or has the right to acquire ninety percent (90%) or more of Company
Shares, then at Buyer's sole election, Company shall comply with all applicable
procedures, deliver all required disclosure documents, and cooperate with Buyer
to consummate a merger between Buyer and Company pursuant to Section 23B.11.040
of the WBCA (a "short form merger"). The Board of Directors of Company, in
authorizing the execution and delivery of this Agreement by Company, shall at
all times prior to the Effective Date, subject to the discharge of their
fiduciary duty, recommend to Company shareholders that this Agreement, the
Merger Agreement, and the Merger be approved. If a special meeting of Company
shareholders is necessary or required, Company shall use its best efforts to
cause such meeting of its shareholders to take place as soon as practicable. In
connection with the call of such meeting, Company shall cause such proxy
materials or information statements, with any amendments thereto that may in the
judgment of its counsel be necessary or desirable, to be mailed to its
shareholders (the proxy materials or information statements, together with any
amendments or supplements thereto, being herein referred to as the "Proxy
Statement"). In connection with the procedures to complete a short form merger,
Company shall cause such information statements, with any amendments thereto
that may in the judgment of its counsel be necessary or desirable, to be mailed
to its shareholders (the information statement, together with any supplements
thereto, being herein referred to as the "Information
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Statement"). Prior to mailing to its shareholders, Company shall give Parent and
Buyer and their counsel reasonable opportunity to review and comment on the
Proxy Statement and the Information Statement. Subject to the discharge of their
fiduciary duty, the Board of Directors of Company shall at all times prior to
and during such meeting of Company shareholders recommend that the transactions
contemplated hereby be adopted and approved and use its best efforts to cause
such adoption and approval.
(b) Acceptance of Tender Offer. Subject to the discharge of
their fiduciary duty, the Board of Directors of Company shall at all times prior
to the delivery of the Tender Offer Documents, and prior to the expiration of
the Tender Offer, recommend that the holders of Shares tender their Shares to
Buyer pursuant to the terms of the Tender Offer Documents and consent to and use
their best efforts to encourage the execution of agreements by a sufficient
number of Company shareholders to assure satisfaction of the Minimum Condition.
(c) Agreements of Officers and Directors, and Major
Shareholder. Company acknowledges and consents to the execution and delivery to
Buyer and Parent by (i) certain officers and members of its Board of Directors
of agreements in the form attached hereto as Exhibit B (the "Officer and
Director Agreements"), and (ii) The Dow Chemical Company ("Dow") of an agreement
in the form attached hereto as Exhibit C (the "Shareholder Agreement"). Subject
to the exercise of its fiduciary duties, Company covenants and agrees not to
take any action which would interfere with or prevent the performance of the
Officer and Director Agreements and the Shareholder Agreement.
(d) Government Approvals. Company shall cooperate in all
reasonable respects with Parent and Buyer in the performance of their
undertaking pursuant to Section 4.1(a) to obtain the Government Approvals. Prior
to the Effective Date, Company, with the cooperation of Parent and Buyer, shall
take or cause to be taken as promptly as practicable all such steps as shall be
necessary to obtain all Government Approvals and shall do any and all acts
deemed by Parent and Buyer to be reasonably necessary or appropriate in order to
cause the Merger to be consummated on the terms provided in this Agreement as
promptly as practicable.
(e) Notification of Breach of Representations, Warranties and
Covenants. Company shall promptly give written notice to Parent and Buyer upon
becoming aware of the occurrence or impending or threatened occurrence of any
event which would cause or constitute a breach of any of the representations,
warranties or covenants of Company contained or referred to in this Agreement
and shall use its best efforts to prevent the same or remedy the same promptly.
(f) Compensation. Except in accordance with budgets and plans
previously approved by Company's Compensation Committee, which have been
disclosed to Parent and
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Buyer, and in connection with the acceleration of stock options as provided for
in Section 1.5, and payments made under the Change of Control Agreements (as
amended) referred to in Section 5.4(a), neither Company nor any of the Company
Subsidiaries shall, prior to the Effective Date, make or approve any increase in
the compensation payable or to become payable to any of their directors,
officers, employees or agents with annual salaries in excess of $75,000 (or the
foreign equivalent) at the date hereof (including but not limited to
compensation through any profit sharing, pension, retirement, severance,
incentive or other employee benefit program or arrangement), nor shall any bonus
payment or any agreement or commitment to make a bonus payment be made nor shall
any stock option, warrant or other right to acquire capital shares be granted,
nor employment agreement (other than any such employment agreement that may
arise by operation of law upon the hiring of any new employee) nor consulting
agreement be entered into by Company with any such directors, officers,
employees or agents unless Parent or Buyer have given its prior written consent.
(g) Conduct of Business in the Ordinary Course. Prior to the
Effective Time, Company and the Company Subsidiaries shall use reasonable
efforts to conduct their businesses and to maintain satisfactory relationships
with licensers, suppliers, distributors, and customers, all in accordance with
their ordinary and usual course of business. Prior to the Effective Time,
neither Company nor any of the Company Subsidiaries shall without the prior
written consent of Parent or Buyer or except as specifically contemplated by
this Agreement:
(i) amend its Articles of Incorporation or Bylaws;
(ii) authorize for issuance, issue, deliver, grant or
sell any additional capital shares, or securities convertible into such shares,
or issue or grant any rights, options or other commitments for the issuance of
such shares or convertible securities (other than the issuance of capital shares
and the conversion thereof or payment in lieu thereof pursuant to that certain
Agreement of Purchase and Sale of Stock between Company and Dow dated as of June
4, 1991 and amended as of May 13, 1994 (the "Dow Put/Call"), or of Shares
pursuant to the exercise of outstanding options, and the grant of any new
options in accordance with budgets and plans previously approved by Company's
Compensation Committee); and
(iii) split, combine, or reclassify any of its
capital shares or declare, set aside or pay any dividend (whether in cash,
stock, or property) in respect to its Shares or redeem or otherwise acquire any
of its Shares other than the repurchase, at cost, of Shares issued to employees
pursuant to the terms of employee restricted stock or share purchase agreements;
(iv) dispose of or acquire any material properties or
assets except in the ordinary course of business;
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(v) engage in any activities or transactions that are
outside the ordinary course of Company's business, other than funding with cash
or letters of credit the supplemental pension benefits plans as required under
the terms of such plans and the trusts for such plans;
(vi) materially amend any provision of Company's 1986
Long Term Incentive Stock Plan, as amended and restated, 1992 Long Term
Incentive Plan, amended and restated as of April 23, 1996, 1993 Non-Employee
Director Stock Option Plan, and 1995 Incentive Stock Plan (collectively, the
"Stock Plans"), Pension Plans, or Employee Welfare Benefit Plans; or
(vii) incur any indebtedness for borrowed money,
other than: (1) amounts borrowed pursuant to and in accordance with the terms
and conditions of its existing lines of credit, or (2) amounts pledged or
potentially owed in connection with letters of credit which may be obtained
naming as beneficiaries the trustees of the trusts for supplemental pension
benefits plans as required under the terms of such trusts and plans.
Notwithstanding anything in this Agreement to the contrary, Company and the
Company Subsidiaries may take any or all of the following actions with respect
to their Pension Plans prior to the Effective Time without prior consent of
Parent or Buyer:
(1) amend the Pension Plans or the trusts funding such plans to the
extent necessary or desirable to (a) obtain favorable determination letters from
the Internal Revenue Service as to the Pension Plans' tax-qualified status, (b)
maintain the Pension Plans' tax-qualified status, (c) make administrative
changes to the operations of the Pension Plans provided such changes do not
significantly increase the cost of such plans, (d) clarify the procedures for
the funding of supplemental pension benefits through contributions to trusts of
cash or letters of credit, or (e) permit Company, pursuant to a prohibitive
transaction exemption obtained from the U.S. Department of Labor, to guaranty
and provide loans to Company's Univar Corporation Uni$aver Tax Savings
Investment Plan ("Uni$aver Plan") with respect to a guaranteed investment
contract which was issued by Confederation Life Insurance Company and is held by
that plan ("GIC");
(2) obtain letters of credit which name as beneficiary the trustees of
trusts which fund supplemental pension benefits as required or permitted by the
terms of the supplemental benefits plans and trusts, and secure such letters of
credit with assets of Company or the Company Subsidiaries as required by the
bank(s) issuing the letters of credit;
(3) take whatever steps are necessary to obtain the approval of the
U.S. Department of Labor and the Internal Revenue Service for Company's
guarantee of the book value of the GIC
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and Company's promise to make loans to the Uni$aver Plan with respect to the GIC
to the extent such action does not have a material adverse effect on Company and
the Company Subsidiaries taken as a whole;
(4) make guarantee payments and loans to the Uni$aver Plan with respect
to the GIC; and
(5) establish a new supplemental benefits plan for Van Waters & Rogers
Ltd. which is similar to the existing supplemental benefits plan for Van Waters
& Rogers Ltd., except that it would be for those employees of Van Waters &
Rogers Ltd. who would participate in the Van Waters & Rogers Ltd. Supplemental
Benefits Plan but for the fact that they are U.S. citizens or residents,
establish a rabbi trust for such mirror plan which is similar to the rabbi trust
for Company, and take the actions described in (1) and (2) above with respect to
such mirror plan and rabbi trust.
(h) Press Releases. Company shall not issue any press release
or written statement for general circulation relating to this Agreement, the
Merger Agreement, or the Merger unless previously provided to Parent and Buyer
for review and approval (which approval will not be unreasonably withheld or
delayed) and shall cooperate with Parent and Buyer in the development and
distribution of all news releases and other public information disclosures with
respect to this Agreement, the Merger Agreement and the Merger. Notwithstanding
the foregoing, Company may, without the consent of Parent and Buyer, issue any
press release or written statement for general circulation with regard to this
Agreement, the Merger Agreement and the Merger that Company determines is
required under any applicable law or regulation, provided that, prior to such
issuance, Company shall inform Parent and Buyer of its intent to make such
releases or statements, shall provide a copy thereof to Parent and Buyer, and
shall provide Parent and Buyer with an opportunity to review and comment on the
content of such releases or statements.
(i) No Merger or Solicitation.
(i) Except as contemplated by this Agreement and
subject to the continuing fiduciary duties of the Board of Directors of Company,
prior to the Effective Time, Company and the Company Subsidiaries shall not
effect or agree to effect any Business Combination; except for (x) any Business
Combination unanimously approved by Company's Board of Directors, (y) any
Business Combination which does not require approval by Company's Board of
Directors, or (z) any Business Combination approved by a majority of the
disinterested directors of Company (i.e., unaffiliated with Parent) in
accordance with Section 4.2(i)(iii) below. As used in this Agreement, "Business
Combination" shall mean (except as explicitly contemplated
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in this Agreement) any tender or exchange offer, proposal for a merger,
consolidation, acquisition of assets or other takeover proposal or any offer or
proposal to acquire in any manner a ten percent (10%) or greater interest in, or
a substantial portion of outstanding capital shares of any party or any
proceedings for winding up and dissolution of Company or of any of the Company
Subsidiaries.
(ii) Prior to the Effective Date, neither Company nor
any officer, director or affiliate of Company, nor any investment banker,
attorney, accountant or other agent, advisor or representative retained by
Company shall solicit or encourage, directly or indirectly, any inquiries,
discussions or proposals for, nor propose any discussions or negotiations
looking toward, or enter into any agreement or understanding providing for, any
Business Combination.
(iii) In the event that the Board of Directors of
Company receives a bona fide unsolicited offer for a Business Combination or a
bona fide unsolicited indication of interest from any person, corporation, firm,
association, entity or group to engage in a Business Combination, and reasonably
determines, upon advice of counsel, that any duty to act or to refrain from
doing any act pursuant to this Agreement is inconsistent with the continuing
fiduciary duties of Company Board of Directors to the shareholders of Company,
Company shall within two (2) business days of receipt of such indication or
offer inform Parent of such interest or the terms of such offer and may: (a)
disclose the same nonpublic information as provided to Parent to such
corporation, firm, association, person or other entity or group concerning the
business and properties of Company and/or afford any such party the same access
as provided to Parent to the properties, books or records of Company and the
Company Subsidiaries or otherwise assist or encourage any such party in
connection with the foregoing, all on no more favorable terms and conditions as
set forth in the Confidentiality Agreement, provided that if requested, Company
Board of Directors may provide nonpublic information not provided to Parent
and/or agree to more favorable terms and conditions so long as it promptly
provides the same information to Parent and/or modifies the Confidentiality
Agreement so as to make available the same terms and conditions for Parent, or
(b) if Company Board of Directors determines that their continuing fiduciary
duties would require their approval of any such unsolicited bona fide offer for
a Business Combination with another entity because the terms of such offer are
more favorable to Company's shareholders than the terms set forth in this
Agreement, then Company may accept such offer, provided that prior to taking any
such actions Company shall provide Parent with not less than two (2) business
days to modify the terms of its Tender Offer and Tender Offer Documents and to
propose to Company any corresponding modifications to this Agreement.
(j) Dividends. Company shall not declare, set aside or pay any
dividend or other distribution in respect of the Shares (including, without
limitation, any stock dividend or
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distribution), except in the ordinary course of business and not in amounts
which materially exceed the amounts previously paid by Company.
(k) Accounting Methods. Company shall not change its methods
of accounting in effect at February 29, 1996, except as required by changes in
GAAP as concurred in by its independent auditors.
(l) Additional Agreements. In case at any time after the
Effective Time any further action is necessary or desirable to carry out the
purposes of this Agreement or to vest the Surviving Corporation with full title
to all properties, assets, rights, approvals, immunities and franchises of
Company, the proper officers and directors of each party to this Agreement shall
take all such necessary or appropriate action.
(m) Litigation Developments. Company agrees to promptly advise
Parent and Buyer with respect to any and all legal actions or other proceedings
or investigations that either seeks to enjoin the transactions contemplated
hereby or collect damages or impose a monetary payment which could reasonably be
expected to exceed $5,000,000, and to promptly advise Parent and Buyer with
respect to any significant developments arising in connection with said actions,
proceedings or investigations.
(n) Employment Agreements. Company agrees to permit and shall
give Parent and Buyer the opportunity to negotiate employment agreements with
Company executives, provided that any such agreement shall be subject to the
consummation of the Tender Offer.
(o) Access to Properties, Books and Records; Confidentiality.
Following the consummation of the Tender Offer, Company shall give Parent and
Buyer and their counsel and accountants reasonable access, during normal
business hours and upon reasonable request, to all of its properties, books,
contracts, commitments and records including, but not limited to, the corporate,
financial and operational records, papers, reports, instructions, procedures,
tax returns and filings, tax settlement letters, material contracts or
commitments, regulatory examinations and correspondence and shall allow Parent
and Buyer to make copies of such materials (to the extent not legally
prohibited) and shall furnish Parent and Buyer with all such information
concerning its affairs as Parent and Buyer may reasonably request. Company shall
also use its best efforts to cause Company's accountants to make available to
Parent and Buyer, their accountants, counsel and other agents, to the extent
reasonably requested in connection with such review, Company's accountants' work
papers and documentation relating to its work papers and its audits of the books
and records of Company. Any information requested by Parent and Buyer shall be
subject to the provisions of the Confidentiality Agreement.
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(p) Resignation and Appointment of Directors. Upon the
execution of this Agreement, Company shall deliver to Parent and Buyer
contingent resignations of all directors of Company who were not nominated by
Parent. Such resignations shall be contingent on the consummation of the Tender
Offer. Upon the consummation of the Tender Offer, Company shall accept the
resignations of a sufficient number of such directors as determined by Parent
and Buyer to result in Parent having representation on the Board of Directors of
Company proportionate to the percentage shareholding of Parent and its
affiliated companies, provided that the Board of Directors (excluding directors
nominated by Parent) shall have the right but not the obligation to designate up
to four current members of the Special Committee of the Board of Directors who
shall remain directors after the consummation of the Tender Offer until the
Effective Date. On the Effective Date, Company shall accept the resignations of
any such directors determined by Parent and Buyer who have not previously
resigned.
(q) Approval of Merger. Subject to the discharge of their
fiduciary duty, the Board of Directors of Company shall at all times prior to
the Effective Date, recommend that the holders of Shares approve and consent to
this Agreement, the Merger and the Merger Agreement.
(r) Deregistration. Following the consummation of the Tender
Offer and if permitted by applicable rules and regulations, including the
Exchange Act, at the request of Parent or Buyer, Company shall take or cause to
be taken as promptly as practical any and all such steps as shall be necessary
to terminate the registration of the Shares under the Exchange Act and the
listing of the Shares on any stock exchange, including the New York Stock
Exchange.
4.3 Covenants of the Parties. Parent and Buyer acknowledge the
provisions of the Confidentiality Agreement and confirm that the provisions
thereof continue to apply. Company agrees to treat as confidential all
information provided by Parent and Buyer, which is designated as, or from the
content clearly intended as, confidential information in the same manner as
Company treats similar confidential information of its own, and if this
Agreement is terminated, Company shall continue to treat all such information as
confidential and to cause its employees to keep all such information
confidential and shall return such documents theretofore delivered by Parent and
Buyer as either of them shall request, and shall use such information, or cause
it to be used, solely for the purposes of evaluating and completing the
transactions contemplated hereby.
5. REPRESENTATIONS AND WARRANTIES OF COMPANY.
Company represents and warrants to Parent and Buyer that except as
disclosed to Parent and Buyer in writing on a separate disclosure statement
previously provided by Company (the "Company Disclosure Statement"):
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5.1 Corporate Status and Power to Enter into Agreements. Company (i) is
a corporation duly organized, validly existing and in good standing under the
laws of the state of Washington, and (ii) subject to the approval of this
Agreement and the Merger Agreement and the transaction contemplated hereby and
thereby by the shareholders of Company, it has all necessary corporate power to
enter into this Agreement and the Merger Agreement and to carry out all of the
terms and provisions hereof and thereof to be carried out by it. Company is duly
qualified to do business as a foreign corporation under the laws of each
jurisdiction in which the conduct of its business requires such qualification,
except for jurisdictions where failure to so qualify would not have a material
adverse effect on Company's business.
The Company Subsidiaries are each a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation. Each of the Company Subsidiaries is duly qualified to do business
as a foreign corporation under the laws of such jurisdiction in which the
conduct of its business requires such qualification, except for jurisdictions
where failure to so qualify would not have a material adverse effect on its
business.
5.2 Execution and Delivery of the Agreement.
(a) The execution and delivery of this Agreement has been duly
authorized by the Board of Directors of Company and, when this Agreement, the
Merger Agreement, and the Merger have been duly approved by the affirmative vote
of the holders of a majority of the outstanding Shares, this Agreement, the
Merger Agreement and the Merger will be duly and validly authorized by all
necessary corporate action on the part of Company.
(b) This Agreement has been duly executed and delivered by
Company and (assuming due execution and delivery by and enforceability against
Parent and Buyer) constitutes the legal and binding obligations of Company,
except as enforcement may be limited by applicable bankruptcy laws or other
similar laws affecting creditors' rights generally, and except that the
availability of equitable remedies may be limited.
(c) The execution and delivery by Company of this Agreement
and the consummation of the transactions contemplated hereby, including the
Tender Offer (i) do not violate any provision of the Articles of Incorporation
or Bylaws of Company, any provision of federal or state law, or any governmental
rule or regulation (assuming (x) receipt of the Government Approvals, (y)
receipt of the requisite Company shareholder approval referred to in this
Section 5.2, and (z) the accuracy of the representations of Parent and Buyer set
forth herein), and (ii) do not require any consent of any person under, conflict
with or result in a breach of, or accelerate the performance required by any of
the terms of any material debt instrument, lease, license, covenant, agreement,
or understanding to which Company or any of the Company
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Subsidiaries is a party or by which it is bound which are required to be
disclosed by Company in filings made by it pursuant to the Exchange Act or any
order, ruling, decree, judgment, arbitration award or stipulation to which
Company or any of the Company Subsidiaries is subject, or constitute a material
default thereunder or result in the creation of any lien, claim, security
interest, encumbrance, charge, restriction, or similar right of any third party
upon any of the properties or assets of Company or of any of the Company
Subsidiaries. Without limiting the generality of the foregoing, Company
represents and warrants that:
(i) All of the actions necessary or required pursuant to the terms
of the 1986 Standstill Agreement to permit the transactions contemplated hereby,
the Tender Offer Documents, and the Merger Agreement have been taken, including
but not limited to, advance approval of the Agreement, the Tender Offer, the
Officer and Director Agreements, and the Shareholder Agreement, from
five-eighths (5/8) of the Unaffiliated Directors (as defined in the 1986
Standstill Agreement) as required by Section 2.8 of the 1986 Standstill
Agreement;
(ii) the execution and delivery of this Agreement and the Merger
Agreement and the consummation of the transactions contemplated hereby and
thereby, including the Tender Offer, do not violate or breach any of the terms
of the 1986 Standstill Agreement; and
(iii) approval from only the majority of Company shareholders
entitled to vote is required in order to approve this Agreement, the Merger
Agreement and the Merger pursuant to Article IX of the Articles of Incorporation
of Company and to WBCA, and that the provisions of Article VII of such Articles
do not apply to this Agreement, the Merger Agreement and the Merger.
5.3 Capitalization. The authorized capital shares of Company consists of
105,000,000 shares, of which 100,000,000 are authorized as common stock, no par
value, 21,735,415 of which are validly issued, fully paid and nonassessable and
currently outstanding, and 5,000,000 preferred shares, 105,000 of which are
designated and authorized as Series A Junior Participating Convertible Preferred
Shares ("Series A Shares") and of which none are issued and currently
outstanding; provided that Dow has the right to require Company to sell and
Company has the right to require Dow to purchase up to 107,874 Series A Shares
pursuant to the Dow Put/Call. Said shares have been issued in compliance with
all applicable registration or qualification provisions of state and federal
securities laws. No other equity securities of Company have been authorized,
issued or are outstanding. There are currently outstanding options to purchase
1,741,072 Shares, at a weighted average exercise price of $ 11.1485 per Share,
issued pursuant to the Stock Plans. Said options were issued and, upon issuance
in accordance with the terms of the outstanding options, said Shares shall be
issued, in compliance with all applicable securities laws. Other than as set
forth in this Section 5.3, there are no outstanding options, agreements, calls
or
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commitments of any character which would obligate Company to issue, sell,
pledge, assign, or otherwise encumber or dispose of, or to purchase, redeem, or
otherwise acquire, any Shares or any other equity security of Company, or
warrants or options relating to, rights to acquire, or debt or equity securities
convertible into, Shares or any other equity security of Company. Company has
delivered to Parent a true and correct copy of its options outstanding report,
which summarizes options issued pursuant to the Stock Plans as of May 30, 1996.
5.4 Employment Contracts and Benefits.
(a) Company has delivered to Parent and Buyer an accurate list setting
forth all bonus, incentive compensation, profit-sharing, pension, retirement,
stock purchase, stock option, deferred compensation, severance, retiree medical
plan and other fringe benefit plans, trust agreements, arrangements and
commitments of Company and of each of the Company Subsidiaries which is
incorporated in one of the United States, and will deliver within fifteen (15)
business days of the date of this Agreement a list of such plans, agreements,
arrangements and commitments for those Company Subsidiaries which are not
incorporated in one of the United States, together with copies of all such
plans, agreements, arrangements and commitments requiring any payments or
acceleration of any rights to acquire any Shares or any other equity security of
Company upon a change of control (the "Change of Control Agreements").
(b) With respect to each employee benefit plan (as defined in Section
3(3) of ERISA) which is listed pursuant to Section 5.4(a) and which is subject
to the reporting, disclosure, and record retention requirements set forth in the
Internal Revenue Code of 1986, as amended (the "IRC"), and Part I of Subtitle B
of Title I of ERISA and the regulations thereunder, each of such requirements
has been fully met on a timely basis.
(c) With respect to each "Employee Benefit Plan" (as defined in Section
3(3) of ERISA) which is listed in Section 5.4(a) and which is subject to Part 4
of Subtitle B of Title I of ERISA, to the best of Company's knowledge, none of
the following now exists or has existed within the six-year period ending on the
date hereof:
(i) Any act or omission constituting a material violation of
Section 402 of ERISA;
(ii) Any act or omission constituting a violation of Section 403 of
ERISA;
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(iii) Any act or omission by Company or any of the Company
Subsidiaries, or by any director, officer or employee thereof, constituting a
violation of Sections 404 and 405 of ERISA;
(iv) Any act or omission by any other person constituting a
violation of Sections 404 or 405 of ERISA;
(v) Any act or omission which constitutes a material violation of
Sections 406 or 407 of ERISA and is not exempted by Section 408 of ERISA or
which constitutes a violation of Section 4975(c) of the IRC and is not exempted
by Sections 4975(c) or (d) of the IRC; or
(vi) Any act or omission constituting a violation of Sections 503,
510 or 511 of ERISA.
(d) All contributions, premiums or other payments due from Company and
the Company Subsidiaries to (or under) any plan listed in Section 5.4(a) have
been fully paid or adequately provided for on the audited financial statements
of Company for the year ended February 29, 1996. All accruals thereon
(including, where appropriate, proportional accruals for partial periods) have
been made in accordance with GAAP consistently applied on a reasonable basis.
(e) Each plan listed pursuant to Section 5.4(a) complies in all
material respects with all applicable requirements of (i) the Age Discrimination
in Employment Act of 1967, as amended, and the regulations thereunder, (ii)
Title VII of the Civil Rights Act of 1964, as amended, and the regulations
thereunder, (iii) Titles I and IV of ERISA, and (iv) Section 401(a) of the IRC.
(f) Each plan listed pursuant to Section 5.4(a) complies in all
material respects with all applicable requirements of the health care
continuation coverage provisions of the Consolidated Omnibus Budget
Reconciliation Act of 1985, and the regulations thereunder.
5.5 Legal Actions and Proceedings. Neither Company nor any of the Company
Subsidiaries is a party to, nor threatened with, any legal action or other
proceeding or investigation before any court, any arbitrator of any kind, or any
government agency, which have not been disclosed to Parent and Buyer and, which
to the best of Company's knowledge, (i) could result in damages or impose a
monetary payment which could reasonably be expected to exceed $5,000,000, or
(ii) could impede the transactions contemplated hereby. There is no labor
dispute, strike, slow-down, or stoppage pending or, to the best of the knowledge
of Company, threatened
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against Company or any of the Company Subsidiaries which would have a material
adverse effect on Company and any of the Company Subsidiaries taken as a whole.
5.6 Retention of Broker or Consultant. No broker, agent, finder,
consultant, or other party (other than legal, auditing, tax and accounting
advisors) has been retained by Company or is entitled to be paid based upon any
agreements, arrangements, or understandings made by Company in connection with
any of the transactions contemplated by this Agreement, except that Company has
engaged Schroder to act as its financial advisor and to render an opinion
regarding the fairness of the Price and the Merger from a financial point of
view. Company has provided Parent and Buyer with a true and accurate copy of its
agreement with Schroder.
5.7 Accuracy of Representations and Warranties. No representation or
warranty by Company, and no statement by Company in the Company Disclosure
Statement or any certificate, agreement, schedule, the Tender Offer Documents,
the Proxy Statement, the Information Statement, or Schedule 14D-9 furnished in
connection with the transactions contemplated by this Agreement or the Merger
Agreement, contains or will contain any untrue statement of a material fact or
omits or will omit to state any material fact necessary to make such
representation, warranty, or statement not misleading; provided, however, that
information as of a later date shall automatically modify information as of an
earlier date.
6. REPRESENTATIONS AND WARRANTIES OF PARENT AND BUYER.
Parent and Buyer jointly and severally represent and warrant to Company
that:
6.1 Corporate Status and Power to Enter into Agreements. Parent is a
limited liability company duly organized, validly existing and in good standing
under the laws of The Netherlands and has all necessary corporate power to enter
into this Agreement and the Merger Agreement and to carry out all of the terms
and provisions hereof and thereof to be carried out by it. Buyer is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Washington and has all necessary corporate power to enter into
this Agreement and the Merger Agreement and to carry out all of the terms and
provisions hereof and thereof to be carried out by it.
6.2 Execution and Delivery of the Agreement.
(a) The execution and delivery of this Agreement and the Merger
Agreement has been duly and validly authorized by the Supervisory and Management
Boards of Parent and the Board of Directors of Buyer.
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(b) This Agreement has been duly executed and delivered by each of
Parent and Buyer and (assuming due execution and delivery by and enforceability
against Company) constitutes a legal and binding obligation of each of Parent
and Buyer except as enforcement may be limited by applicable bankruptcy laws or
other similar laws affecting creditors' rights generally, and except that the
availability of equitable remedies may be limited.
(c) The execution and delivery by each of Parent and Buyer of this
Agreement and the Merger Agreement and the consummation of transactions
contemplated hereby, including the Tender Offer (i) do not violate any provision
of the applicable articles, bylaws, or other charter documents of Parent or
Buyer, any provision of foreign, federal, or state law or any governmental rule
or regulation (assuming (x) receipt of the Government Approvals, and (y)
accuracy of the representations of Company set forth herein), and (ii) do not
require any consent of any person under, conflict with, or result in a breach
of, or accelerate the performance required by any of the terms of, any material
debt instrument, lease, license, covenant, agreement, or understanding to which
either Parent or Buyer is a party or by which it is bound or any order, ruling,
decree, judgment, arbitration, award, or stipulation to which Parent or Buyer is
subject, or constitute a material default thereunder or result in the creation
of any lien, claim, security interest, encumbrance, charge, restriction, or
similar right of any third party upon any of the properties or assets of Parent
or Buyer.
6.3 Retention of Broker or Consultant. No broker, agent, finder, consultant
or other party (other than legal, auditing, tax and accounting advisers and
consultants disclosed to Company) has been retained by Parent or Buyer or is
entitled to be paid based upon any agreements, arrangements or understandings
made by Parent or Buyer in connection with any of the transactions contemplated
by this Agreement.
6.4 Financing. Parent has, or will have, sufficient funds available to
enable Buyer to purchase all of the Shares outstanding and to pay all related
contractual obligations, fees and expenses pursuant to, or becoming payable by
the Surviving Corporation as a result of, this Agreement, the Tender Offer, and
the Merger and shall make such funds available to Buyer or the Surviving
Corporation to consummate the Tender Offer, the Merger, and related transactions
as promptly as practicable following Buyer's becoming obligated to purchase
Shares pursuant to the Tender Offer or Merger.
6.5 Accuracy of Representations and Warranties. No representation or
warranty by Parent or Buyer and no statement by Parent or Buyer in the Tender
Offer Documents or any certificate, agreement or schedule furnished in
connection with the transactions contemplated by this Agreement or the Merger
Agreement, contains or will contain any untrue statement of material fact or
omits or will omit to state any material fact necessary to make such
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representation, warranty, or statement not misleading to Company; provided,
however, that information as of a later date shall be deemed to modify
information as of an earlier date.
7. CONDITIONS TO THE MERGER.
7.1 Conditions to the Obligations of Each Party. The obligations of
Company, Parent and Buyer to consummate the Merger are subject to the
satisfaction of the following conditions:
(a) no provision of any applicable law or regulation and no judgment,
injunction, order, or decree shall prohibit or restrain the consummation of the
Merger;
(b) all Governmental Approvals shall have been obtained, with such
exceptions as would not, individually or in the aggregate, have a material
adverse effect on Parent's or Company's business; and
(c) Buyer shall have purchased Shares pursuant to the Tender Offer
which satisfies the Minimum Condition.
8. EXPENSES.
Parent, Buyer, and Company each agree to pay, without right of
reimbursement from the other party and whether or not the transactions
contemplated by this Agreement or the Merger Agreement shall be consummated, the
costs incurred by each such party incident to the performance of its obligations
under this Agreement and the Merger Agreement, including without limitation,
costs incident to the preparation of this Agreement, the Merger Agreement, the
Tender Offer Documents, the Schedule 14D-9, the Proxy or the Information
Statement (as the case may be) and incident to the consummation of the Merger
and of the other transactions contemplated herein and in the Merger Agreement,
including the fees and disbursements of counsel, accountants, consultants, and
financial advisers employed by such party in connection therewith. Without
limiting the foregoing, Company shall bear its own costs of preparing and
distributing (including postage) the Proxy Statement or the Information
Statement to its shareholders and other information relating to these
transactions.
9. AMENDMENT; TERMINATION.
9.1 Amendment. This Agreement and the Merger Agreement may be amended in
writing by Parent, Buyer and Company at any time prior to the purchase of Shares
pursuant to the Tender Offer.
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9.2 Termination. This Agreement and the Merger Agreement may be terminated
as follows:
(a) By the mutual consent of Parent, Buyer, and Company at any time
prior to the purchase of Shares pursuant to the Tender Offer.
(b) By either Company or Parent, if (i) as a result of the occurrence
of any of the conditions set forth in Annex I hereto, (a) Buyer shall have
failed to commence the Tender Offer within ten (10) days following the date
hereof or (b) the Tender Offer shall have terminated or expired in accordance
with its terms without Buyer having purchased Shares satisfying the Minimum
Condition, or (ii) the Tender Offer has not been consummated by August 31, 1996,
or such other mutually agreed to date.
(c) By Parent, if any person, entity, or "group" (as defined in Section
13(d)(3) of the Exchange Act) other than Parent and Buyer or Dow acquires
beneficial ownership of ten percent (10%) (except in bona fide arbitrage
transactions) or more of the outstanding Shares.
(d) By Parent, Buyer or Company, if prior to the Effective Time, except
for the transactions contemplated by this Agreement, Company and the Company
Subsidiaries shall have, pursuant to Section 4.2(i)(iii), effected or agreed to
effect any Business Combination, and the two (2) business days provided for in
Section 4.2(i)(iii)(b) shall have expired without a modification to this
Agreement which is approved by Company Board of Directors.
(e) By Parent, if prior to the Effective Time, the Board of Directors
of Company shall have withdrawn or materially modified its approval or
recommendation of the Tender Offer, this Agreement, or the Merger.
9.3 Notice. The power of termination hereunder may be exercised by Parent,
Buyer, or Company, as the case may be, only by giving written notice, signed on
behalf of Company by its Chairman of the Board or President, or on behalf of
Parent and Buyer signed by Parent's Chairman of either its Supervisory or
Management Boards.
9.4 Breach of Obligations. If there has been a material breach by either
party in the performance of any of the obligations herein which shall not have
been cured within ten (10) business days after written notice thereof has been
given to the defaulting party, the nondefaulting party shall have the right to
terminate this Agreement upon written notice to the other party. In any event,
the nondefaulting party shall have no obligation to consummate any transaction
or take any further steps toward such consummation contemplated hereunder until
such breach is cured.
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9.5 Termination and Expenses. If this Agreement is terminated pursuant to
Section 9.2, this Agreement shall become void and of no effect with no liability
on the part of any party hereto (unless such termination is the result of a
breach of this Agreement by such party). The termination of this Agreement shall
have no effect on the 1986 Standstill Agreement or the Confidentiality Agreement
(including without limitation the Tender Offer Protocol attached as Exhibit B
thereto). Termination of this Agreement shall not terminate or affect the
obligations of the parties to pay expenses as provided in Section 8, to maintain
the confidentiality of the other party's information pursuant to Section 4.3 or
the Confidentiality Agreement, or the provisions of this Section 9.5 or of
Sections 10.1, 10.3 or 10.4 or the second sentence of Section 10.2 below and
shall not affect any agreement after such termination. If this Agreement shall
be terminated by Parent pursuant to Section 9.2(d), or if any of the events
specified in Section 9.2(d) occurs within twelve (12) months following
termination of this Agreement pursuant to Section 9.2, Company shall pay to
Parent and Buyer, on demand, the aggregate sum of $4,000,000. Any payment
required pursuant to the preceding sentence shall be paid no more than two (2)
business days after demand by wire transfer of immediately available funds.
Company, Parent and Buyer agrees that any termination of this Agreement or any
payment made pursuant to this Section 9.5 shall not in any manner release or be
construed as so releasing the nonterminating party or parties from any liability
or damage to the other party or parties arising out of, in connection with or
otherwise relating to, directly or indirectly, such parties' failure in
performance of any of its covenants or agreements hereunder.
10. MISCELLANEOUS.
10.1 Notices. Any notice or other communication required or permitted under
this Agreement shall be effective only if it is in writing and delivered
personally, or by overnight express or by facsimile or sent by internationally
recognized courier, shipping charges prepaid, addressed as follows:
To Parent and Buyer:
Koninklijke Pakhoed, N.V.
333 Blaak
3011 GB Rotterdam
The Netherlands
Attn: N.J. Westdijk, Chairman, Board of Management
Facsimile No.: 011-31-10-213-0512
With a copy to:
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Nicholas C. Unkovic, Esq.
Graham & James LLP
One Maritime Plaza, Suite 300
San Francisco, California 94111-3492
Facsimile No.: (415) 391-2493
To Company:
Univar Corporation
6100 Carillon Point
Kirkland, Washington 98033
Attn: Paul H. Hough, President and Chief Executive Officer
Facsimile No.: (206) 889-4100
With a copy to:
Richard B. Dodd, Esq.
Preston Gates & Ellis
5000 Columbia Center
701 Fifth Avenue
Seattle, WA 98104-7078
Facsimile No.: (206) 623-7022
or to such other address as either party may designate by notice to the other,
and shall be deemed to have been given upon receipt.
10.2 Binding Agreement. This Agreement is binding upon and is for the
benefit of Parent, Buyer, Company, and the shareholders, officers, directors,
and employees of Company and their respective successors and permitted assigns.
This Agreement is not made for the benefit of any person, firm, corporation, or
association not a party hereto, and no other person, firm, corporation or
association shall acquire or have any right under or by virtue of this
Agreement. No party may assign this Agreement or any of its rights, privileges,
duties, or obligations hereunder without the prior written consent of the other
parties to this Agreement.
10.3 Governing Law. This Agreement shall be governed by and construed in
accordance with the substantive laws of the State of Washington, without giving
effect to such State's choice-of-law principles.
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10.4 Attorneys' Fees. In any action at law or suit in equity in relation to
this Agreement, the Merger Agreement, or the Merger, the prevailing party in
such action or suit shall be entitled to receive a reasonable sum for its
attorneys' fees and all other reasonable costs and expenses incurred in such
action or suit.
10.5 Entire Agreement; Severability. This Agreement, the Confidentiality
Agreement (other than the Tender Offer Protocol attached as Exhibit B thereto),
the 1986 Standstill Agreement and the documents, certificates, agreements,
letters, schedules, and exhibits attached or required to be delivered pursuant
hereto set forth the entire agreement and understanding of the parties in
respect of the transactions contemplated hereby, and supersede all other prior
agreements, arrangements, and understandings relating to the subject matter
hereof. Each provision of this Agreement shall be interpreted in a manner to be
effective and valid under applicable law, but if any provision hereof shall be
prohibited or ruled invalid under applicable law, the validity, legality, and
enforceability of the remaining provisions shall not, except as otherwise
required by law, be affected or impaired as a result of such prohibition or
ruling.
10.6 Counterparts. This Agreement may be executed in several counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
10.7 Waivers. Prior to or at the Effective Time, each of Parent, Buyer, and
Company shall have the right to waive any default in the performance of any term
of this Agreement by the other, to waive or extend the time for the compliance
or fulfillment by the other of any and all of the other's obligations under this
Agreement and to waive any or all of the conditions precedent to its obligations
under this Agreement, except any condition which, if not satisfied, would result
in the violation of any law or applicable governmental regulation. No failure to
exercise and no delay in exercising any right, remedy, or power hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise of any
right, remedy, or power hereunder preclude any other or further exercise thereof
or the exercise of any other right, remedy, or power provided herein or by law
or in equity. The waiver by any party of the time for performance of any act or
condition hereunder does not constitute a waiver of the act or condition itself.
10.8 Survival of Representations and Warranties. The representations and
warranties contained herein and in any certificate or other writings delivered
pursuant hereto shall survive the purchase of Shares pursuant to the Tender
Offer but shall not survive the consummation of the Merger or the termination of
this Agreement. This Section 10.8 shall not limit any covenant or agreement of
the parties hereto which by its terms contemplates performance after the
Effective Time.
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[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, Parent, Buyer, and Company have each caused this
Agreement and Plan of Reorganization to be signed, effective as of the date
written above.
KONINKLIJKE PAKHOED N.V.
By:_______________________________________
N. J. Westdijk, Chairman, Board
of Management
UNIVAR CORPORATION
By:_______________________________________
Paul H. Hough, President and
Chief Executive Officer
UC ACQUISITION CORP.
By:_______________________________________
N. J. Westdijk, Chairman and
President
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[Signature Page for Agreement and Plan of Reorganization]
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ANNEX I
Notwithstanding any other provision of the Tender Offer, Buyer shall not be
required to accept for payment or, subject to any applicable rules and
regulations of the SEC, including Rule 14e-1(c) under the Exchange Act (relating
to Buyer's obligation to pay for or return tendered Shares after the termination
or withdrawal of the Tender Offer), to pay for any Shares, and may terminate the
Tender Offer, if (i) the Minimum Condition has not been satisfied, (ii)
Governmental Approvals have not been obtained or (iii) at any time on or after
May 31, 1996 and prior to the acceptance for payment of Shares, any of the
following conditions shall occur and be continuing:
(a) there shall be instituted or pending any action or proceeding by any
government or governmental authority or agency, domestic or foreign (i)
challenging or seeking to make illegal, to delay materially or otherwise
directly or indirectly to restrain or prohibit the making of the Tender Offer,
the acceptance for payment of or payment for some of or all the Shares by Buyer
or the consummation by Buyer of the Merger, (ii) seeking to restrain or prohibit
Buyer's ownership or operation (or that of its respective subsidiaries or
affiliates) of all or any material portion of the business or assets of Company
and the Company Subsidiaries, taken as a whole, or of Parent and its
subsidiaries, taken as a whole, or to compel Buyer or any of its subsidiaries or
affiliates to dispose of or hold separate all or any material portion of the
business or assets of Company and the Company Subsidiaries, taken as a whole, or
of Parent and its subsidiaries, taken as a whole, (iii) seeking to impose or
confirm material limitations on the ability of Parent or any of its subsidiaries
or affiliates to effectively exercise full rights of ownership of the Shares,
including, without limitation, the right to vote any Shares acquired or owned by
Parent or any of its subsidiaries or affiliates on all matters properly
presented to Company's shareholders, (iv) seeking to require divestiture by
Parent or any of its subsidiaries or affiliates of any Shares, or (v) that
otherwise is likely to materially adversely affect Company and the Company
Subsidiaries, taken as a whole, or Parent and its subsidiaries, taken as a
whole;
(b) there shall be any action taken, or any statute, rule, regulation,
injunction, order or decree proposed, enacted, enforced, promulgated, issued or
deemed applicable to Company or any of the Company Subsidiaries or the Tender
Offer or the Merger, by any court, government or governmental authority or
agency, domestic or foreign other than the application of the waiting period
provisions of the HSR Act or Exon-Florio to the Tender Offer or the Merger, that
is likely, directly or indirectly, to result in any of the consequences referred
to in clauses (i) through (v) of paragraph (a) above;
(c) there shall have occurred (i) any general suspension of trading in, or
limitation on prices for, securities on the New York Stock Exchange, which
suspension or limitation shall
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continue for at least three consecutive trading days, (ii) a declaration of a
banking moratorium or any suspension of payments in respect of banks in the
United States, The Netherlands, Japan or France, which declaration or suspension
shall continue for at least three consecutive business days (iii) any limitation
(whether or not mandatory) by any government, domestic, foreign or
supranational, or Governmental Entity on, or other event that, in the reasonable
judgment of Parent, might affect, the extension of credit by banks or other
lending institutions, (iv) a commencement of a war or armed hostilities or other
national or international calamity directly or indirectly involving the United
States, The Netherlands, Japan or France, (v) in the case of any of the
foregoing existing at the time of the commencement of the Tender Offer, a
material acceleration or worsening thereof; or (vii) any significant change in
United States, The Netherlands, Japan or France currency exchange rates or any
suspension of, or limitation on, the markets therefor (whether or not
mandatory);
(d) subject to the provisions of Section 9.4 of the Agreement, Company
shall have breached or failed to perform in any material respect, any of its
covenants or agreements under this Agreement or the Merger Agreement, or any of
the representations and warranties of Company set forth in the Merger Agreement
shall not be true in any respect which is material to Company and the Company
Subsidiaries as a whole, in each case when made or at any time prior to
consummation of the Tender Offer as if made at and as of such time, provided,
however, that for purposes of this Annex I, Company shall not be deemed to have
breached its representation and warranty contained in Section 5.5 with respect
to any legal action or other proceeding or investigation which arises after May
31, 1996 which it is not required to disclose pursuant to filings made by it
pursuant to the Exchange Act without regard to any time periods covered by, or
due dates of, such filings;
(e) the Agreement shall have been terminated in accordance with its terms;
or
(f) the Board of Directors of Company shall have withdrawn or materially
modified its approval or recommendation of the Tender Offer, the Agreement or
the Merger;
which, in the reasonable judgment of Parent in any such case, and regardless of
the circumstances giving rise to any such condition, makes it inadvisable to
proceed with such acceptance for payment or payment.
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ARTICLES OF MERGER
OF
UC ACQUISITION CORP.
AND
UNIVAR CORPORATION
To the Secretary of State
State of Washington
Pursuant to the provisions of the Washington Business Corporation Act
("WBCA"), the domestic business corporations herein named do hereby submit the
following Articles of Merger.
1. Annexed hereto and made a part hereof is the Plan of Merger for
merging UC Acquisition Corp. with and into Univar Corporation as adopted by
resolution at a meeting by the Board of Directors of UC Acquisition Corp. on
___________, 1996 and by resolution adopted at a meeting by the Board of
Directors of Univar Corporation on ____________, 1996.
2. The merger was duly approved by the shareholders of UC Acquisition
Corp. and of Univar Corporation pursuant to WBCA 23B.11.030.
3. The effective time and date of the merger herein provided for shall
be the date that the Articles of Merger are filed with the Washington Secretary
of State.
Executed on _________________, 1996.
UNIVAR CORPORATION
By:____________________________
Name:
Capacity:
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EXHIBIT 4
PLAN OF MERGER
PLAN OF MERGER adopted by UC Acquisition Corp., a business corporation
organized under the laws of the State of Washington, by resolution of its Board
of Directors on _________________, 1996, and adopted by Univar Corporation, a
business corporation organized under the laws of the State of Washington, by
resolution of its Board of Directors on _________________, 1996.
1. UC Acquisition Corp. and Univar Corporation shall, pursuant to the
provisions of the Washington Business Corporation Act, be merged with and into a
single corporation, to wit, Univar Corporation. Univar Corporation shall be
the surviving corporation at the effective time and date of the merger and is
sometimes hereinafter referred to as the "surviving corporation," and shall
continue to exist as said surviving corporation under its present name pursuant
to the provisions of the Washington Business Corporation Act. The separate
existence of UC Acquisition Corp., which is sometimes hereinafter referred to as
the "non-surviving corporation," shall cease at the effective time and date of
the merger in accordance with the provisions of the Washington Business
Corporation Act.
2. The articles of incorporation of the surviving corporation shall be
the Amended and Restated Articles of Incorporation of said surviving corporation
at the effective time and date of the merger, a copy of which is attached hereto
as Exhibit A.
3. The bylaws of the surviving corporation shall be the Amended and
Restated Bylaws of said surviving corporation at the effective time and date of
the merger and will continue in full force and effect until changed, altered, or
amended as therein provided and in the manner prescribed by the provisions of
the Washington Business Corporation Act.
4. The effective date of merger shall be the date upon which the
Articles of Merger are filed with the Secretary of State. Upon the effective
date of the merger: the separate corporate existence of UC Acquisition Corp.
shall cease; title to all real estate and other property owned by UC Acquisition
Corp. or Univar Corporation shall be vested in Univar Corporation without
reversion or impairment; and the surviving corporation shall have all
liabilities of UC Acquisition Corp. and Univar Corporation. Any proceeding
pending by or against UC Acquisition Corp. or Univar Corporation may be
continued as if such merger did not occur, or the surviving corporation may be
substituted in the proceeding for UC Acquisition Corp.
5. Each issued share of the non-surviving corporation shall, at the
effective time and date of the merger, be converted into one share of the
surviving corporation. The issued
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shares of the surviving corporation existing prior to the merger shall be
cancelled and retired and shall cease to exist, and holders of certificates
formerly representing shares of the surviving corporation, other than those
shares held by UC Acquisition Corp. and its affiliates, shall cease to have any
rights with respect thereto other than a right to receive [$____] per share or
any dissenters' rights they have perfected pursuant to Section 23B.13.210 of the
Washington Business Corporations Act. Any shares of Univar Corporation in the
treasury of Univar Corporation on the effective date of the merger shall be
surrendered to the surviving corporation for cancellation,and no shares of the
surviving corporation shall be issued in respect thereof.
6. Any shareholder of Univar Corporation who has the right to dissent
from this merger as provided in Section 23B.13.020 of the Washington Business
Corporation Act and who so dissents in accordance with the requirements of
Sections 23B.11.020 through 23B.13.280 of the Washington Business Corporation
Act, shall be entitled, upon surrender of the certificate or certificates
representing certificated shares or upon imposition of restrictions of transfer
of uncertificated shares, to receive payment of the fair value of such
shareholder's shares as provided pursuant to Section 23B.13.250 of the
Washington Business Corporation Act.
7. Unless the conditions of Section 23B.11.040 of the Washington
Business Corporation Act are satisfied, the Plan of Merger herein made and
approved shall be submitted to the shareholders of the non-surviving corporation
and the shareholders of the surviving corporation for their approval or
rejection in the manner prescribed by the provisions of the Washington Business
Corporation Act.
8. In the event that the Plan of Merger shall have been approved by the
shareholders entitled to vote of the non-surviving corporation and by the
shareholders entitled to vote of the surviving corporation in the manner
prescribed by the provisions of the Washington Business Corporation Act, the
non-surviving corporation and the surviving corporation hereby stipulate that
they will cause to be executed and filed and/or recorded any document or
documents prescribed by the laws of the State of Washington, and that they will
cause to be performed all necessary acts therein and elsewhere to effectuate the
merger.
9. The Board of Directors and the proper officers of the non-surviving
corporation and of the surviving corporation, respectively, are hereby
authorized, empowered, and directed to do any and all acts and things, and to
make, execute, deliver, file, and/or record any and all instruments, papers, and
documents which shall be or become necessary, proper, or convenient to carry out
or put into effect any of the provisions of this Plan of Merger or of the merger
herein provided for.
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10. The address of the registered office of the surviving corporation
shall be _______________________________________________________________.
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EXHIBIT B
OFFICER AND DIRECTOR AGREEMENT
May 31, 1996
Koninklijke Pakhoed, N.V.
333 Blaak
3011 GB Rotterdam
The Netherlands
Gentlemen:
In consideration for the proposed business combination in which Univar
Corporation ("Company") will be merged with an indirect wholly owned subsidiary
("Buyer") of Koninklijke Pakhoed, N.V. ("Parent") (the "Merger"), the
undersigned Company officer or member of the Board of Directors of Company
hereby agrees that subject to the discharge of his fiduciary responsibilities,
in his capacity as an Officer and/or a member of the Board of Directors, he
will, as applicable:
(a) vote in favor of the Merger, and the execution and delivery of the
Agreement and Plan of Reorganization among Parent, Company, and Buyer
(the "Merger Agreement") and all related agreements and all actions
contemplated thereby;
(b) vote to recommend to Company shareholders acceptance of the Tender
Offer to be made by Buyer for Company Common Shares pursuant to
Buyer's proposed Offer to Purchase Shares and use his reasonable
efforts to cause the shareholders of Company to tender Company Common
Shares pursuant to such Offer to Purchase Shares;
(c) use his reasonable efforts to cause the shareholders of Company to
adopt and approve the Merger Agreement and the transactions
contemplated thereby; and
(d) vote to authorize Company to consent to and/or encourage the execution
of agreements by a sufficient number of Company shareholders to assure
satisfaction of the Minimum Condition of Buyer's proposed Offer to
Purchase Shares.
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The undersigned acknowledges that Parent has entered into the Merger Agreement
in reliance on the agreements herein set forth and on that basis covenants and
agrees that he will tender all Company Common Shares held of record or
beneficially by him (representing all shares as to which the undersigned and/or
his spouse have sole voting power) as of the date hereof or hereinafter acquired
to Buyer pursuant to Buyer's proposed Offer to Purchase Shares; provided that
notwithstanding the foregoing this letter agreement shall terminate and have no
further effect if the Board of Directors of Company approves another "Business
Combination" as permitted by Section 4.2(i) of the Merger Agreement. All terms
not otherwise defined in this letter agreement shall have the same meaning as in
the Merger Agreement
Sincerely yours,
_________________________________
Print Name:
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EXHIBIT C
SHAREHOLDER AGREEMENT
MAY 31, 1996
Koninklijke Pakhoed, N.V.
333 Blaak
3011 G.B. Rotterdam
The Netherlands
Gentlemen:
In consideration for the proposed tender offer for shares of Common Shares of
Univar Corporation ("Company") to be made by a subsidiary of yours (the "Buyer")
and to be followed by the merger of Company with Buyer (the "Merger"), the
undersigned agrees that, in its capacity as a shareholder of Company, it will:
(a) tender all shares of Company Common Shares held of record or beneficially
by it (representing all shares as to which the undersigned has sole or
shared voting power) as of the date hereof or hereinafter acquired to Buyer
pursuant to Buyer's proposed Offer to Purchase Shares;
(b) provide all consents and approvals pursuant to the Distributor Agreement by
and between the undersigned and Van Waters & Rogers, Inc., dated March 8,
1996, required to consummate the Merger and the transactions contemplated
by the Agreement and Plan of Reorganization among you, Company and Buyer;
and
(c) only at your request, (i) exercise its option to purchase all or such
portion required of the 101,874 shares of Series A Junior Participating
Convertible Preferred Shares (the "Preferred Shares"), which the
undersigned is entitled to purchase pursuant to the Amended and Restated
Agreement of Purchase and Sale of Stock (the "Stock Purchase Agreement")
entered into by and between the undersigned and Company, dated May 13,
1994, (ii) convert all the Preferred Shares the undersigned acquires
pursuant to the Stock Purchase Agreement into Company Common Shares, and
(iii) tender all shares of Company Common Shares acquired pursuant to such
conversion of the Preferred Shares to Buyer pursuant to Buyer's proposed
Offer to Purchase Shares. If such request is not made and the option is not
exercised, you will pay to us or cause the surviving corporation to pay us
on consummation of the Merger, the difference between the aggregate
exercise price of the option to acquire the Preferred Shares and the
aggregate price that would
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have been paid in the tender offer for the shares of Common Shares which
would have been issued pursuant to the conversion of the Preferred Shares.
Notwithstanding any other provision of this letter, the undersigned will be
relieved of its obligations under paragraphs (a), (b) and (c) above if (i) a
competing offer to purchase Company and/or its shares of Common Shares at a
price greater than $19.45 per share is made by a third party prior to
consummation of the Merger, or (ii) Buyer's price for the purchase of the
undersigned's shares of Common Stock pursuant to the Offer to Purchase is
adjusted to a price which is less than $19.45 per share.
Sincerely yours,
THE DOW CHEMICAL COMPANY
By: ___________________________
Name: ________________________
Title: ________________________
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