GROW GROUP, INC.
200 Park Avenue
New York, NY 10166
May 17, 1995
Imperial Chemical Industries PLC
9 Millbank
London SWIP 3JF
England
Attention: Mr. John Thompson
The Sherwin-Williams Company
101 Prospect Avenue, N.W.
Cleveland, OH 44115-1075
Attention: Louis Stellato, Esq.
Re: Rules and Procedures for Submission of
Proposals to Acquire Grow Group, Inc.
Gentlemen:
The Board of Directors of Grow Group, Inc. (the
"Company" or "Grow") has determined that under current
circumstances it is in the best interests of the
shareholders of the Company that there be instituted a
formal bidding process for the Company.
The Board of Directors of the Company (the "Board"
or "Board of Directors") has further determined that this
process must be conducted in a fair, impartial and
orderly manner. The interests of Grow's shareholders,
employees, and other constituencies can and will be best
served by such an approach. The Board of Directors
recognizes that the process in which the Company is
currently engaged presents certain risks, particularly if
the process is unduly prolonged, including disruption to
the Company's business and overall uncertainty among the
Company's constituencies as to the Company's future. In
order to mitigate these risks, the Board of Directors
believes that the most prudent course of action is to
bring this process to a prompt and orderly close.
Accordingly, the Board of Directors has established
the rules and procedures specified below to provide both
Imperial Chemical Industries PLC ("ICI") and The Sherwin-
Williams Company ("Sherwin-Williams") with the
opportunity to submit improved acquisition proposals to
acquire the Company ("Proposals"). The rules and
procedures are designed to constitute a single and final
round of bidding, and accordingly each of you should
submit your best and highest offer.
The purpose of this letter is to invite each of you
to submit Proposals, pursuant to the rules and procedures
set forth below. The Board of Directors believes that
agreement to such rules and procedures is in the best
interests of the Company and its shareholders and,
accordingly, submission of a Proposal will constitute for
all purposes an agreement to be bound by such rules and
procedures. The Board of Directors reserves the right
not to consider or recommend any Proposal made by a party
who has not agreed to the rules and procedures specified
below.
The following rules and procedures will govern the
submission of Proposals:
1. Proposals should be addressed and
delivered in a sealed envelope to the Board of Directors
of the Company: c/o Daniel E. Stoller, Esq., Skadden,
Arps, Slate, Meagher & Flom, 919 Third Avenue, 33rd
Floor, New York, New York 10022. Proposals must be
received on Sunday, May 21, 1995 by no later than 12:00
Noon, New York time (the "Submission Time"), unless
extended by notice to each of you.
2. Your Proposal must be stated as a single
cash amount (expressed in U.S. dollars and cents) per
share of Common Stock of the Company (the "Shares") and
may not make reference to, be contingent upon, or in any
way vary based upon, the terms (including the
consideration offered) of the other party's Proposal.
The submission of a Proposal will constitute your
agreement to be bound by these rules and procedures and
will also constitute your agreement that your Proposal is
irrevocable until midnight on Tuesday, May 23, 1995. You
may not make any Proposal, or modify or amend any pending
Proposal, to purchase the Company, except in accordance
with these rules and procedures.
3. Until the Company has accepted one of the
Proposals, the Company will not, except as may be
required by law, publicly disclose the terms of either of
your Proposals or communicate them to the other of you.
The Company reserves the right, however, to discuss any
Proposal with the party submitting it. Submission of
your Proposal constitutes a representation that you have
kept and will keep your Proposal confidential until 9:00
a.m., New York time, on Monday, May 22, 1995 and that you
have no knowledge of the other party's Proposal. In
addition, each of ICI and Sherwin-Williams agrees that
they and their respective representatives will not
directly or indirectly contact or communicate with the
other or the other's representatives concerning their or
the other party's Proposal or the submission of any
Proposal. By submitting a Proposal, ICI agrees to waive
the Company's notice obligation contained in Section 6.04
of the Agreement and Plan of Merger, dated as of April
30, 1995, by and among the Company, ICI and GDEN
Corporation (the "ICI Merger Agreement") with respect to
any Proposal submitted by Sherwin-Williams.
4. Not later than 10:00 a.m. on Thursday, May
18, 1995, the Company will deliver to both of your
respective counsels copies of (i) a form of amendment to
the ICI Merger Agreement (the "ICI Form of Amendment")
and (ii) a form of Agreement and Plan of Merger among
Sherwin-Williams, GGI Acquisition, Inc., a wholly-owned
subsidiary of Sherwin-Williams ("GGI"), and the Company,
together with disclosure schedules (the "Sherwin-Williams
Form of Merger Agreement"). ICI's Proposal shall be
accompanied by an executed copy of the ICI Form of
Amendment, executed by ICI and GDEN Corporation, an
indirect wholly-owned subsidiary of ICI. Sherwin-
Williams' Proposal shall be accompanied by an executed
copy of the Sherwin-Williams Form of Merger Agreement.
The extent and nature of any changes proposed by ICI to
the ICI Form of Amendment or proposed by Sherwin-Williams
to the Sherwin-Williams Form of Merger Agreement will be
taken into consideration by the Board of Directors. If
either party makes changes to the form of agreement
furnished by the Company, the executed agreement shall be
accomplished by a marked copy which shows any such
changes.
5. The Sherwin-Williams Form of Merger
Agreement will contain a provision identical to the
provisions of Section 11.04(b) of the ICI Merger
Agreement. Both the Sherwin-Williams Form of Merger
Agreement and the ICI Form of Amendment will include a
provision in the form of Appendix A hereto, which
provides for the payment of an additional fee of $16
million, under circumstances specified therein, if an
Acquisition Transaction (as defined therein) has been
consummated within six months of termination of the
applicable merger agreement with ICI or Sherwin-Williams,
as the case may be.
6. It is the intention of the Board of
Directors that the winning Proposal will be accepted as
promptly as practicable after 12 Noon, New York time, on
Sunday, May 21, 1995. It is requested that each of you
and your financial and legal advisors be available
commencing at 12 Noon, New York time, on Sunday, May 21,
1995 and continuing through 9:00 a.m., New York time, on
Monday, May 22, 1995.
7. As soon as practicable following the
Submission Time, the Board of Directors, with the advice
and assistance of its financial and legal advisors, will
evaluate the Proposals. The Board intends to accept the
Proposal which it determines in its reasonable good faith
judgment is the best value reasonably obtainable for the
shareholders of the Company. A Proposal will be accepted
only by countersignature by the Company on the ICI Form
of Amendment or the Sherwin-Williams Form of Merger
Agreement, as the case may be.
8. The party whose Proposal is not accepted
agrees to immediately terminate its pending tender offer
to acquire Shares and to not purchase or offer to
purchase any Shares following the Submission Time.
9. Representatives of the Company and its
financial and legal advisors are prepared to meet with
either of you or your respective legal and financial
advisors to discuss these rules and procedures and to
discuss the provisions of the ICI Form of Amendment and
the Sherwin-Williams Form of Merger Agreement.
10. The Board of Directors reserves the right,
in its sole discretion, consistent with its fiduciary
duties and without stating a reason therefor, to modify
or terminate any or all of the rules and procedures set
forth in this letter. If the Board of Directors modifies
these rules and procedures, it intends promptly to notify
both of you orally, with subsequent confirmation in
writing.
Very truly yours,
ON BEHALF OF THE
BOARD OF DIRECTORS OF
GROW GROUP, INC.
By: /s/ Russell Banks
Russell Banks
cc: Paul R. Kingsley, Esq.
Davis, Polk & Wardwell
(Counsel to Imperial Chemical Industries PLC)
John A. Healy, Esq.
Rogers & Wells
(Counsel to The Sherwin-Williams Company)
Appendix A
The Company agrees to pay Buyer in respect of
Buyer's expenses and lost opportunity costs an amount in
immediately available funds equal to $16,000,000
promptly, but in no event later than two business days,
after the occurrence of the events specified below in
both clauses (A) and (B):
(A) A Trigger Event within the meaning of and
as specified in Section 11.04(b) of this Agreement shall
have occurred at any time from or after the date hereof
and, as a result thereof, this Agreement is terminated,
and (B) within six months after such termination of this
Agreement has occurred, an Acquisition Transaction shall
have been consummated with any Person (as defined in
Sections 3(a)(9) and 13(d)(3) of the Exchange Act) other
than Parent or a subsidiary or other Affiliate (as
defined in Rule 12b-2 under the Exchange Act) of Parent.
For purposes of this Section, "Acquisition
Transaction" shall mean (i) a merger or consolidation, or
any similar business combination transaction, involving
the Company; (ii) a purchase, lease or acquisition of all
or substantially all of the assets of the Company and its
subsidiaries taken as a whole; or (iii) the purchase or
acquisition by any Person of securities representing more
than 50% of the then outstanding Shares.