Preview
Full Doc
 | 2002 |
Acquisition Agreement
Acquisition Agreement (368K)
Doc #121003: Click preview link for longer preview.
ACQUISITION AGREEMENT
AMONG
ALCOA INC.,
THE FAIRCHILD CORPORATION,
FAIRCHILD HOLDING CORP.
AND
SHEEPDOG, INC.
Dated as of July 16, 2002
--------------------------------------------------------------------------------
{PAGE}
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS.........................................................2
SECTION 1.1 "Actual Transferred Subsidiary Debt"....................2
SECTION 1.2 "Advisor"...............................................2
SECTION 1.3 "Affiliates"............................................2
SECTION 1.4 "After Tax Amount"......................................2
SECTION 1.5 "Agreement".............................................2
SECTION 1.6 "Airbus"................................................3
SECTION 1.7 "Allocation"............................................3
SECTION 1.8 "Ancillary Agreements"..................................3
SECTION 1.9 "Assigned Receivables"..................................3
SECTION 1.10 "Assumed Fastener Business Liabilities".................3
SECTION 1.11 "Authorizations"........................................4
SECTION 1.12 "Base Claim"............................................4
SECTION 1.13 "Bill of Sale"..........................................4
SECTION 1.14 "Boeing"................................................4
SECTION 1.15 "business day"..........................................4
SECTION 1.16 "Buyer" ................................................4
SECTION 1.17 "Buyer DB Plans"........................................4
SECTION 1.18 "Buyer Closing Receivables Notice"......................4
SECTION 1.19 "Buyer DC Plans"........................................4
SECTION 1.20 "Buyer Indemnified Parties".............................5
SECTION 1.21 "CERCLA"................................................5
SECTION 1.22 "Class A Common Stock"..................................5
SECTION 1.23 "Class B Common Stock"..................................5
SECTION 1.24 "Closing"...............................................5
SECTION 1.25 "Closing Date"..........................................5
SECTION 1.26 "Closing Date Balance Sheet"............................5
SECTION 1.27 "Code" .................................................5
SECTION 1.28 "Commercial Aircraft"...................................6
SECTION 1.29 "Confidentiality Agreement".............................6
SECTION 1.30 "Consideration".........................................6
SECTION 1.31 "Covenant Period".......................................6
SECTION 1.32 "CPR". .................................................6
SECTION 1.33 "Damages"...............................................6
SECTION 1.34 "Debt Tender Offer".....................................6
SECTION 1.35 "Department of Justice".................................6
SECTION 1.36 "DGCL" .................................................6
SECTION 1.37 "Direct Claim"..........................................7
SECTION 1.38 "Discontinued Operations"...............................7
SECTION 1.39 "Dispute"...............................................7
SECTION 1.40 "Draft Schedule 2.9"....................................7
SECTION 1.41 "Earn-Out"..............................................7
i
{PAGE}
SECTION 1.42 "Effective Time"........................................7
SECTION 1.43 "Environmental Action"..................................7
SECTION 1.44 "Environmental Contamination"...........................7
SECTION 1.45 "Environmental Claim"...................................7
SECTION 1.46 "Environmental Law".....................................7
SECTION 1.47 "Environmental Permits".................................7
SECTION 1.48 "ERISA" ................................................8
SECTION 1.49 "ERISA Affiliate".......................................8
SECTION 1.50 "Escrow Agreement"......................................8
SECTION 1.51 "Escrow Amount".........................................8
SECTION 1.52 "Estimated Transferred Fastener Subsidiary Debt"........8
SECTION 1.53 "Exchange Act"..........................................8
SECTION 1.54 "Excluded Assets".......................................8
SECTION 1.55 "Excluded Fastener Business Liabilities"................9
SECTION 1.56 "Fastener Business".....................................9
SECTION 1.57 "Fastener Business Acquisition Proposal"................9
SECTION 1.58 "Fastener Business Assets"..............................9
SECTION 1.59 "Fastener Business Bank Accounts"......................10
SECTION 1.60 "Fastener Business Books and Records"..................10
SECTION 1.61 "Fastener Business Contracts"..........................10
SECTION 1.62 "Fastener Business Employees"..........................11
SECTION 1.63 "Fastener Business Financial Statements"...............11
SECTION 1.64 "Fastener Business Intellectual Property"..............11
SECTION 1.65 "Fastener Business Intellectual Property Licenses".....12
SECTION 1.66 "Fastener Business Inventory"..........................12
SECTION 1.67 "Fastener Business Leases".............................12
SECTION 1.68 "Fastener Business Product Liability Insurance"........12
SECTION 1.69 "Fastener Business Real Properties"....................12
SECTION 1.70 "Fastener Environmental Condition".....................12
SECTION 1.71 "Fastener Environmental Liability".....................13
SECTION 1.72 "Final Allocation".....................................13
SECTION 1.73 "FTC" .................................................13
SECTION 1.74 "Fullerton Property"...................................13
SECTION 1.75 "GAAP" ................................................13
SECTION 1.76 "Government"...........................................13
SECTION 1.77 "Greenslet Report".....................................13
SECTION 1.78 "Hazardous Materials"..................................13
SECTION 1.79 "HSR Act"..............................................13
SECTION 1.80 "Indemnifiable Losses".................................13
SECTION 1.81 "Indemnifying Party"...................................14
SECTION 1.82 "Indemnitee"...........................................14
SECTION 1.83 "Indemnity Payment"....................................14
SECTION 1.84 "Independent Accountants"..............................14
SECTION 1.85 "Intercompany Accounts"................................14
SECTION 1.86 "IRS" .................................................14
ii
{PAGE}
SECTION 1.87 "best knowledge of the Sellers"........................14
SECTION 1.88 "Law" .................................................14
SECTION 1.89 "Licenses and Permits".................................14
SECTION 1.90 "Lien" ................................................15
SECTION 1.91 "March Pro Forma Balance Sheet"........................15
SECTION 1.92 "Material Adverse Effect"..............................15
SECTION 1.93 "Net Working Capital"..................................15
SECTION 1.94 "Newco California".....................................15
SECTION 1.95 "Noncompetition Agreement".............................15
SECTION 1.96 "Noncompetition and Consulting Agreement"..............15
SECTION 1.97 "Non-Conveyed Contracts"...............................16
SECTION 1.98 "Overdue Closing Receivables"..........................16
SECTION 1.99 "Parent"...............................................16
SECTION 1.100 "Parent Affiliates"....................................16
SECTION 1.101 "Parent Common Stock"..................................16
SECTION 1.102 "Parent DB Plans"......................................16
SECTION 1.103 "Parent DC Plans"......................................16
SECTION 1.104 "Parent Pension Plans".................................16
SECTION 1.105 "Parent SEC Filings"...................................16
SECTION 1.106 "Permitted Exceptions".................................16
SECTION 1.107 "Person"...............................................17
SECTION 1.108 "Fairchild Holding"....................................17
SECTION 1.109 "Plans" ...............................................17
SECTION 1.110 "Pre-Closing Off-Site Disposal Locations"..............17
SECTION 1.111 "Preliminary Closing Date Balance Sheet"...............17
SECTION 1.112 "Product Claim"........................................17
SECTION 1.113 "Proxy Statement"......................................17
SECTION 1.114 "Receivables"..........................................17
SECTION 1.115 "Receivables Certificate"..............................18
SECTION 1.116 "Release"..............................................18
SECTION 1.117 "Remedial Action"......................................18
SECTION 1.118 "Remediation Standards"................................18
SECTION 1.119 "Representative".......................................18
SECTION 1.120 "Remaining Cash".......................................18
SECTION 1.121 "Rules" ...............................................18
SECTION 1.122 "SDI" .................................................18
SECTION 1.123 "SEC" .................................................18
SECTION 1.124 "Securities Act".......................................18
SECTION 1.125 "Sellers"..............................................18
SECTION 1.126 "Shareholder Approval".................................18
SECTION 1.127 "Special Shareholders Meeting".........................19
SECTION 1.128 "Stockholder"..........................................19
SECTION 1.129 "Straddle Period"......................................19
SECTION 1.130 "subsidiary"...........................................19
SECTION 1.131 "Taxes" ...............................................19
iii
{PAGE}
SECTION 1.132 "Tax Benefit"..........................................19
SECTION 1.133 "Tax Indemnitee".......................................20
SECTION 1.134 "Tax Indemnitor".......................................20
SECTION 1.135 "Tax Returns"..........................................20
SECTION 1.136 "10 3/4% Indenture"....................................20
SECTION 1.137 "Third Party Claim"....................................20
SECTION 1.138 "Title IV Plans".......................................20
SECTION 1.139 "Transferred Employees"................................20
SECTION 1.140 "Transferred Fastener Subsidiaries"....................20
SECTION 1.141 "Transferred U.S. Employees"...........................20
SECTION 1.142 "Undertaking and Indemnity Agreement"..................21
SECTION 1.143 "Voting Agreement".....................................21
SECTION 1.144 "WARN" ................................................21
SECTION 1.145 "WARN Obligations".....................................21
ARTICLE II THE CLOSING.......................................................21
SECTION 2.1 Time and Place of Closing..............................21
SECTION 2.2 Purchase and Sale of the Fastener Business Assets......21
SECTION 2.3 Consideration Payable for the Fastener Business
Assets and the Stock and Membership Interests of
the Transferred Fastener Subsidiaries..................22
SECTION 2.4 Escrow Fund............................................22
SECTION 2.5 Deliveries by the Sellers..............................22
SECTION 2.6 Delivery by the Buyer..................................24
SECTION 2.7 Post-Closing Adjustments...............................25
SECTION 2.8 Earn-Out...............................................28
SECTION 2.9 Allocation of Consideration............................29
SECTION 2.10 Treatment of Accounts Receivable At the Closing........30
ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE SELLER.....................31
SECTION 3.1 Organization; Qualification............................31
SECTION 3.2 Capital Stock and Membership Interests of the
Transferred Fastener Subsidiaries......................31
SECTION 3.3 Equity Investments.....................................33
SECTION 3.4 Authority Relative to this Agreement...................33
SECTION 3.5 Consents and Approval; No Violation....................34
SECTION 3.6 Financial Statements & Parent SEC Filings..............34
SECTION 3.7 Absence of Undisclosed Liabilities.....................35
SECTION 3.8 Absence of Certain Changes or Events...................35
SECTION 3.9 Title and Related Matters..............................35
SECTION 3.10 Contracts..............................................36
SECTION 3.11 Leases ................................................36
SECTION 3.12 Intellectual Property..................................37
SECTION 3.13 Employee Benefit Plans; ERISA..........................39
SECTION 3.14 Government and Third Party Authorizations and
Regulations............................................41
SECTION 3.15 Assets Necessary to Business...........................42
SECTION 3.16 Litigation.............................................42
iv
{PAGE}
SECTION 3.17 Intentionally Omitted..................................42
SECTION 3.18 State Takeover Statutes................................42
SECTION 3.19 Voting Requirement.....................................42
SECTION 3.20 Intentionally Omitted..................................43
SECTION 3.21 Accounts Receivable....................................43
SECTION 3.22 Taxes .................................................43
SECTION 3.23 Insurance..............................................45
SECTION 3.24 Environmental Matters..................................45
SECTION 3.25 Fastener Business Inventory............................46
SECTION 3.26 Product Warranty.......................................47
SECTION 3.27 Product Liability......................................47
SECTION 3.28 No Conflict of Interest................................47
SECTION 3.29 Accounting Controls....................................48
SECTION 3.30 Indebtedness To and From Officers, Directors,
Stockholders and Others................................48
SECTION 3.31 Brokers ...............................................48
SECTION 3.32 Newco California Property..............................49
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE BUYER.......................49
SECTION 4.1 Organization...........................................49
SECTION 4.2 Ownership of the Parent Common Stock...................49
SECTION 4.3 Authority Relative to this Agreement...................49
SECTION 4.4 Consents and Approvals; No Violation...................50
SECTION 4.5 Financing..............................................50
SECTION 4.6 Brokers ...............................................51
ARTICLE V COVENANTS OF THE PARTIES...........................................51
SECTION 5.1 Conduct of Business of the Sellers.....................51
SECTION 5.2 Transfer of Excluded Assets............................54
SECTION 5.3 Access and Cooperation.................................54
SECTION 5.4 Expenses...............................................55
SECTION 5.5 Commercially Reasonable Efforts........................55
SECTION 5.6 Further Assurances.....................................57
SECTION 5.7 Disclosure Supplements; Schedules and Exhibits.........57
SECTION 5.8 Public Announcements...................................57
SECTION 5.9 Sales, Use and Transfer Taxes and Fees................58
SECTION 5.10 Noncompetition.........................................58
SECTION 5.11 No Solicitation........................................59
SECTION 5.12 Special Shareholders Meeting...........................61
SECTION 5.13 Proxy Statement........................................61
SECTION 5.14 Repayment of Debt......................................62
SECTION 5.15 Use of Fairchild Fastener Name.........................62
SECTION 5.16 Transfers Not Effected at the Closing..................62
SECTION 5.17 June 30, 2002 Audited Financial Statements.............63
SECTION 5.18 Takeover Statutes......................................63
SECTION 5.19 Product Liability Insurance............................63
SECTION 5.20 Post-Closing Treatment of Accounts Receivables.........64
v
{PAGE}
SECTION 5.21 Continued Existence....................................65
SECTION 5.22 Fairchild Fasteners Europe Simmonds....................65
SECTION 5.23 Environmental Permits..................................65
SECTION 5.24 United Kingdom Subsidiaries............................66
SECTION 5.25 Transfer of Fastener Business Real Property............66
SECTION 5.26 Accrued Expenses.......................................66
SECTION 5.27 Fullerton Property.....................................66
SECTION 5.28 Intellectual Property..................................66
ARTICLE VI SELLER EMPLOYEES..................................................67
SECTION 6.1 Employment.............................................67
SECTION 6.2 Assumption of Plans....................................68
ARTICLE VII CLOSING CONDITIONS...............................................72
SECTION 7.1 Conditions to Each Party's Obligations to Effect
the Transactions Contemplated Hereby ..................72
SECTION 7.2 Conditions to the Obligations of the Sellers to
Effect the Transactions Contemplated Hereby............73
SECTION 7.3 Conditions to the Obligations of the Buyer to
Effect the Transactions Contemplated Hereby............73
SECTION 7.4 Certificates...........................................74
ARTICLE VIII CERTAIN TAX MATTERS.............................................74
SECTION 8.1 Tax Returns............................................74
SECTION 8.2 Payment of Taxes.......................................75
SECTION 8.3 Allocation of Straddle Period Taxes....................75
SECTION 8.4 Refunds ...............................................76
SECTION 8.5 Tax Indemnification....................................76
SECTION 8.6 Certain Post-Closing Settlement Payments...............78
SECTION 8.7 Cooperation............................................78
SECTION 8.8 Contests...............................................79
SECTION 8.9 French SAS.............................................80
ARTICLE IX TERMINATION AND ABANDONMENT.......................................80
SECTION 9.1 Termination............................................80
SECTION 9.2 Procedure and Effect of Termination....................82
ARTICLE X MISCELLANEOUS PROVISIONS...........................................82
SECTION 10.1 Delivery of Schedules..................................83
SECTION 10.2 Amendment and Modification.............................83
SECTION 10.3 Waiver of Compliance; Consents.........................83
SECTION 10.4 No Third Party Beneficiary Rights......................83
SECTION 10.5 Notices ...............................................83
SECTION 10.6 Assignment.............................................84
SECTION 10.7 Designated Subsidiary..................................84
SECTION 10.8 Governing Law..........................................85
SECTION 10.9 Counterparts...........................................85
SECTION 10.10 Interpretation.........................................85
SECTION 10.11 Entire Agreement.......................................85
SECTION 10.12 Severability...........................................85
vi
{PAGE}
ARTICLE XI INDEMNIFICATION...................................................86
SECTION 11.1 Survival of Representations and Warranties.............86
SECTION 11.2 Indemnification........................................86
SECTION 11.3 Limitations on Liability...............................89
SECTION 11.4 Defense of Claims......................................89
SECTION 11.5 Exclusive Remedies.....................................91
SECTION 11.6 Seller Environmental Indemnity.........................91
SECTION 11.7 Resolution of Indemnification Disputes.................95
SECTION 11.8 Indemnity Tax Credit Amount............................95
Exhibit A Bill of Sale...........................................A-1
Exhibit B Undertaking and Indemnity Agreement....................B-1
Exhibit C Escrow Agreement.......................................C-1
vii
{PAGE}
ACQUISITION AGREEMENT
ACQUISITION AGREEMENT, dated as of July 16, 2002 (the "Agreement"), among
Alcoa Inc., a Pennsylvania corporation (the "Buyer"), The Fairchild Corporation,
a Delaware corporation (the "Parent"), Fairchild Holding Corp., a Delaware
corporation and an indirect, wholly owned subsidiary of the Parent ("Fairchild
Holding"), and Sheepdog, Inc., a Delaware corporation and an indirect, wholly
owned subsidiary of the Parent ("SDI" and, together with the Parent, Fairchild
Holding and the subsidiaries of the Parent set forth on Schedule 1.125,
collectively, the "Sellers").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Sellers are in the business of manufacturing, distributing,
selling, importing and exporting (i) fasteners and fastening systems, including,
without limitation, automatic fastening systems, blind bolts, special bolts,
fluid fittings, inserts, installation tooling, latches, clamps, nuts, panel
fasteners, pins, collars, rivets, screws, specials and studs, (ii) fastener
components, and (iii) latching devices, in each case for use in the construction
and maintenance of military and commercial aircraft, as well as in applications
for other industries, including, without limitation, the automotive industry,
the electronics industry, the installation-tooling industry and other
non-aerospace industries (such business being conducted by the Sellers being
referred to herein as the "Fastener Business");
WHEREAS, the Buyer wishes to acquire from the Sellers the Fastener Business
Assets;
WHEREAS, the Sellers are willing to transfer (i) the Fastener Business
Assets (other than the Fastener Business Assets owned or held by the Transferred
Fastener Subsidiaries, the capital stock and membership interests, as the case
may be, of which are being transferred directly or indirectly by Fairchild
Holding to the Buyer) and (ii) the capital stock and membership interests, as
the case may be, of the Transferred Fastener Subsidiaries to the Buyer in
exchange for (A) the assumption by the Buyer of the Assumed Fastener Business
Liabilities and (B) the payment to the Parent of (x) the Consideration and (y)
the Earn-Out;
WHEREAS, as a condition and inducement to the Buyer for entering into this
Agreement and incurring the obligations set forth herein, concurrently with the
execution and delivery of this Agreement, the Buyer is entering into a Voting
Agreement, dated as of the date hereof (the "Voting Agreement"), with certain
stockholders of the Parent (each, a "Stockholder"), pursuant to which, among
other things, each Stockholder has agreed to vote the shares of Parent Common
Stock then owned by such Stockholder in favor of the transactions contemplated
by this Agreement; and
WHEREAS, as a condition and inducement to the Buyer for entering into this
Agreement and incurring the obligations set forth herein, the Buyer is requiring
that certain executive officers of the Fastener Business enter into a
Noncompetition and
{PAGE}
Consulting Agreement with the Buyer, to be effective as of the Closing, pursuant
to which, among other things, such executive officers agree for a period of four
years (a) to provide consulting services to the Fastener Business, and (b) to
restrict their ability to compete with the Buyer in the Fastener Business (the
"Noncompetition and Consulting Agreement").
NOW, THEREFORE, in consideration of the foregoing premises and the
respective representations, warranties, covenants, agreements and conditions
hereinafter set forth, and intending to be legally bound hereby, the parties
hereto agree as follows:
ARTICLE I
DEFINITIONS
As used in this Agreement, each of the following terms shall have the
following meaning:
SECTION 1.1 "Actual Transferred Subsidiary Debt" shall have the meaning set
forth in Section 2.7(a)(iii).
SECTION 1.2 "Advisor" shall have the meaning set forth in Section 8.8(b).
SECTION 1.3 "Affiliates" shall mean, with respect to any Person, any other
Person directly or indirectly controlling, controlled by or under direct or
indirect common control with such Person. As used in this definition, "control"
(including, with its correlative meanings, "controlled by" and "under common
control with") shall mean the possession, directly or indirectly, of the power
to direct or cause the direction of management or policies of a Person, whether
through the ownership of securities or partnership interests, control of the
board or other governing body of the Person, or other ownership interests, by
operation of Law, operation of by-laws or articles or certificate of
incorporation, contract or otherwise.
SECTION 1.4 "After Tax Amount" shall have the meaning set forth in Section
8.5(d).
SECTION 1.5 "Agreement" shall have the meaning ascribed thereto in the
Introduction.
121003
|
ALCOA
As referenced in this Acquisition Agreement:
ALCOA –
{DOCUMENT}
{TYPE}EX-2.1
{SEQUENCE}3
--------------------------------------------------------------------------------
ACQUISITION AGREEMENT
AMONG
ALCOA INC.,
THE FAIRCHILD CORPORATION,
FAIRCHILD HOLDING CORP.
AND
SHEEPDOG, INC.
Dated as of July 16,
Alcoa – vii
{PAGE}
ACQUISITION AGREEMENT
ACQUISITION AGREEMENT, dated as of July 16, 2002 (the "Agreement"), among
Alcoa Inc., a Pennsylvania corporation (the "Buyer"), The Fairchild Corporation,
a Delaware corporation (the "Parent"), Fairchild
Alcoa – Attention: James J. Clark, Esq.
Luis R. Penalver, Esq.
(b) if to the Buyer, to
Alcoa Inc.
390 Park Avenue
New York, New York 10022-4608
Telecopy: (212) 836-2809
Attention:
ALCOA – be signed by their respective duly authorized officers as of the
date first above written.
ALCOA INC.
By: /s/ Barbara Jeremiah
-----------------------------------------------
Name: Barbara Jeremiah
Title: Executive Vice President
THE FAIRCHILD CORPORATION
Alcoa – the terms of the Acquisition Agreement, dated as of July 16,
2002 (the "Agreement"), between Alcoa Inc., a Pennsylvania corporation (the
"Buyer"), the Parent, Fairchild Holding and SDI, do hereby sell,
dt 26601
;
Fairchild
As referenced in this Acquisition Agreement:
FAIRCHILD CORP –
FAIRCHILD CORP
_____________
dt 1849504
;
Fairchild
As referenced in this Acquisition Agreement:
FAIRCHILD HOLDING CORP –
{DOCUMENT}
{TYPE}EX-2.1
{SEQUENCE}3
--------------------------------------------------------------------------------
ACQUISITION AGREEMENT
AMONG
ALCOA INC.,
THE FAIRCHILD CORPORATION,
FAIRCHILD HOLDING CORP .
AND
SHEEPDOG, INC.
Dated as of July 16, 2002
--------------------------------------------------------------------------------
{PAGE}
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS.........................................................2
SECTION 1.1 "Actual
_____________
Fairchild Holding Corp – as of July 16, 2002 (the "Agreement"), among
Alcoa Inc., a Pennsylvania corporation (the "Buyer"), The Fairchild Corporation,
a Delaware corporation (the "Parent"), Fairchild Holding Corp ., a Delaware
corporation and an indirect, wholly owned subsidiary of the Parent ("Fairchild
Holding"), and Sheepdog, Inc., a Delaware corporation and an
_____________
FAIRCHILD HOLDING CORP – Barbara Jeremiah
-----------------------------------------------
Name: Barbara Jeremiah
Title: Executive Vice President
THE FAIRCHILD CORPORATION
By: /s/ Jeffrey Steiner
----------------------------------------------
Name: Jeffrey Steiner
Title: Chief Executive Officer
FAIRCHILD HOLDING CORP .
By: /s/ Eric Steiner
----------------------------------------------
Name: Eric Steiner
Title: President
SHEEPDOG, INC.
By: /s/ Donald E. Miller
----------------------------------------------
Name: Donald E. Miller
Title: Vice
_____________
FAIRCHILD HOLDING CORP – CONVEYANCE, ASSIGNMENT, TRANSFER AND BILL OF SALE
RELATING TO CERTAIN PERSONAL PROPERTY
AND CAPITAL STOCK AND MEMBERSHIP INTERESTS OWNED BY
THE FAIRCHILD CORPORATION, FAIRCHILD HOLDING CORP .
AND SHEEPDOG, INC.
KNOW ALL PERSONS BY THESE PRESENT that The Fairchild Corporation, a
Delaware corporation (the "Parent"), Fairchild Holding Corp., a
_____________
Fairchild Holding Corp – FAIRCHILD CORPORATION, FAIRCHILD HOLDING CORP.
AND SHEEPDOG, INC.
KNOW ALL PERSONS BY THESE PRESENT that The Fairchild Corporation, a
Delaware corporation (the "Parent"), Fairchild Holding Corp ., a Delaware
corporation and an indirect, wholly owned subsidiary of the Parent ("Fairchild
Holding"), Sheepdog, Inc., a Delaware corporation and a direct,
_____________
dt 219082
;
|
Sheepdog
As referenced in this Acquisition Agreement:
SHEEPDOG, INC –
{DOCUMENT}
{TYPE}EX-2.1
{SEQUENCE}3
--------------------------------------------------------------------------------
ACQUISITION AGREEMENT
AMONG
ALCOA INC.,
THE FAIRCHILD CORPORATION,
FAIRCHILD HOLDING CORP.
AND
SHEEPDOG, INC .
Dated as of July 16, 2002
--------------------------------------------------------------------------------
{PAGE}
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS.........................................................2
SECTION 1.1 "Actual Transferred Subsidiary Debt"....................
_____________
Sheepdog, Inc – a Delaware corporation (the "Parent"), Fairchild Holding Corp., a Delaware
corporation and an indirect, wholly owned subsidiary of the Parent ("Fairchild
Holding"), and Sheepdog, Inc ., a Delaware corporation and an indirect, wholly
owned subsidiary of the Parent ("SDI" and, together with the Parent, Fairchild
Holding and the
_____________
SHEEPDOG, INC – By: /s/ Jeffrey Steiner
----------------------------------------------
Name: Jeffrey Steiner
Title: Chief Executive Officer
FAIRCHILD HOLDING CORP.
By: /s/ Eric Steiner
----------------------------------------------
Name: Eric Steiner
Title: President
SHEEPDOG, INC .
By: /s/ Donald E. Miller
----------------------------------------------
Name: Donald E. Miller
Title: Vice President
FAIRCHILD DATA CORP.
By: /s/ John Flynn
------------------------------------------------
Name: John Flynn
_____________
SHEEPDOG, INC – BILL OF SALE
RELATING TO CERTAIN PERSONAL PROPERTY
AND CAPITAL STOCK AND MEMBERSHIP INTERESTS OWNED BY
THE FAIRCHILD CORPORATION, FAIRCHILD HOLDING CORP.
AND SHEEPDOG, INC .
KNOW ALL PERSONS BY THESE PRESENT that The Fairchild Corporation, a
Delaware corporation (the "Parent"), Fairchild Holding Corp., a Delaware
corporation and
_____________
Sheepdog, Inc – Corporation, a
Delaware corporation (the "Parent"), Fairchild Holding Corp., a Delaware
corporation and an indirect, wholly owned subsidiary of the Parent ("Fairchild
Holding"), Sheepdog, Inc ., a Delaware corporation and a direct, wholly owned
subsidiary of the Parent ("SDI", and the subsidiaries of the Parent set forth on
_____________
dt 219084
;
 Salomon
As referenced in this Acquisition Agreement:
Salomon Smith Barney – available to pay the Consideration at the Closing Date and the Earn-Out when
due.
50
{PAGE}
SECTION 4.6 Brokers. Except for Salomon Smith Barney Inc., no broker,
finder or investment banker is entitled to any brokerage, finder's or other fee
or commission in connection with the
_____________
Salomon
Smith Barney – fee
or commission in connection with the transactions contemplated by this
Agreement. The Buyer is solely responsible for all fees and expenses of Salomon
Smith Barney Inc. payable in connection with the transactions contemplated in
this Agreement.
ARTICLE V
COVENANTS OF THE PARTIES
SECTION 5.1 Conduct of Business
_____________
dt 87306
;
More... |
Preview
Full Doc
| 2002 |
Acquisition Agreement
Acquisition Agreement (338K)
Doc #121005: Click preview link for longer preview.
ACQUISITION AGREEMENT
ACQUISITION AGREEMENT, dated as of July 16, 2002 (the "Agreement"), among Alcoa Inc., a Pennsylvania corporation (the "Buyer"), The Fairchild Corporation, a Delaware corporation (the "Parent"), Fairchild Holding Corp., a Delaware corporation and an indirect, wholly owned subsidiary of the Parent ("Fairchild Holding"), and Sheepdog, Inc., a Delaware corporation and an indirect, wholly owned subsidiary of the Parent ("SDI" and, together with the Parent, Fairchild Holding and the subsidiaries of the Parent set forth on Schedule 1.125, collectively, the "Sellers").
W I T N E S S E T H:
WHEREAS, the Sellers are in the business of manufacturing, distributing, selling, importing and exporting (i) fasteners and fastening systems, including, without limitation, automatic fastening systems, blind bolts, special bolts, fluid fittings, inserts, installation tooling, latches, clamps, nuts, panel fasteners, pins, collars, rivets, screws, specials and studs, (ii) fastener components, and (iii) latching devices, in each case for use in the construction and maintenance of military and commercial aircraft, as well as in applications for other industries, including, without limitation, the automotive industry, the electronics industry, the installation-tooling industry and other non-aerospace industries (such business being conducted by the Sellers being referred to herein as the "Fastener Business");
WHEREAS, the Buyer wishes to acquire from the Sellers the Fastener Business Assets;
WHEREAS, the Sellers are willing to transfer (i) the Fastener Business Assets (other than the Fastener Business Assets owned or held by the Transferred Fastener Subsidiaries, the capital stock and membership interests, as the case may be, of which are being transferred directly or indirectly by Fairchild Holding to the Buyer) and (ii) the capital stock and membership interests, as the case may be, of the Transferred Fastener Subsidiaries to the Buyer in exchange for (A) the assumption by the Buyer of the Assumed Fastener Business Liabilities and (B) the payment to the Parent of (x) the Consideration and (y) the Earn-Out;
WHEREAS, as a condition and inducement to the Buyer for entering into this Agreement and incurring the obligations set forth herein, concurrently with the execution and delivery of this Agreement, the Buyer is entering into a Voting Agreement, dated as of the date hereof (the "Voting Agreement"), with certain stockholders of the Parent (each, a "Stockholder"), pursuant to which, among other things, each Stockholder has agreed to vote the shares of Parent Common Stock then owned by such Stockholder in favor of the transactions contemplated by this Agreement; and
WHEREAS, as a condition and inducement to the Buyer for entering into this Agreement and incurring the obligations set forth herein, the Buyer is requiring that certain executive officers of the Fastener Business enter into a Noncompetition and Consulting Agreement with the Buyer, to be effective as of the Closing, pursuant to
which, among other things, such executive officers agree for a period of four years (a) to provide consulting services to the Fastener Business, and (b) to restrict their ability to compete with the Buyer in the Fastener Business (the "Noncompetition and Consulting Agreement").
NOW, THEREFORE, in consideration of the foregoing premises and the respective representations, warranties, covenants, agreements and conditions hereinafter set forth, and intending to be legally bound hereby, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
As used in this Agreement, each of the following terms shall have the following meaning:
SECTION 1.1 "Actual Transferred Subsidiary Debt" shall have the meaning set forth in Section 2.7(a)(iii).
SECTION 1.2 "Advisor" shall have the meaning set forth in Section 8.8(b).
SECTION 1.3 "Affiliates" shall mean, with respect to any Person, any other Person directly or indirectly controlling, controlled by or under direct or indirect common control with such Person. As used in this definition, "control" (including, with its correlative meanings, "controlled by" and "under common control with") shall mean the possession, directly or indirectly, of the power to direct or cause the direction of management or policies of a Person, whether through the ownership of securities or partnership interests, control of the board or other governing body of the Person, or other ownership interests, by operation of Law, operation of by-laws or articles or certificate of incorporation, contract or otherwise.
SECTION 1.4 "After Tax Amount" shall have the meaning set forth in Section 8.5(d).
SECTION 1.5 "Agreement" shall have the meaning ascribed thereto in the Introduction.
SECTION 1.6 "Airbus" shall mean Airbus S.A.S., a company governed according to the laws of France, and its successors.
SECTION 1.7 "Allocation" shall have the meaning set forth in Section 2.9(a).
SECTION 1.8 "Ancillary Agreements" shall mean the Bill of Sale, the Undertaking and Indemnity Agreement, the Voting Agreement and the Escrow Agreement, collectively.
121005
|
ALCOA
As referenced in this Acquisition Agreement:
ALCOA – 2 4 dex992.htm ACQUISITION AGREEMENT
Table of Contents
EXHIBIT 99.2
ACQUISITION AGREEMENT
AMONG
ALCOA INC.,
THE FAIRCHILD CORPORATION,
FAIRCHILD HOLDING CORP.
AND
SHEEPDOG, INC.
Dated as of July 16,
Alcoa – of Contents
ACQUISITION AGREEMENT
ACQUISITION AGREEMENT, dated as of July 16, 2002 (the "Agreement"), among Alcoa Inc., a Pennsylvania corporation (the "Buyer"), The Fairchild Corporation, a Delaware corporation (the "Parent"), Fairchild
Alcoa – Attention: James J. Clark, Esq.
Luis R. Penalver, Esq.
(b) if to the Buyer, to
Alcoa Inc.
390 Park Avenue
New York, New York 10022-4608
Telecopy: (212) 836-2809
Attention:
ALCOA – be signed by their respective duly authorized officers as of the date first above written.
ALCOA INC.
By: /S/ BARBARA JEREMIAH
Name: Barbara Jeremiah
Title: Executive Vice President
THE FAIRCHILD CORPORATION
Alcoa – the terms of the Acquisition Agreement, dated as of July 16, 2002 (the "Agreement"), between Alcoa Inc., a Pennsylvania corporation (the "Buyer"), the Parent, Fairchild Holding and SDI, do hereby sell,
dt 26602
;
Fairchild
As referenced in this Acquisition Agreement:
FAIRCHILD HOLDING CORP – AGREEMENT
EX-99.2 4 dex992.htm ACQUISITION AGREEMENT
Table of Contents
EXHIBIT 99.2
ACQUISITION AGREEMENT
AMONG
ALCOA INC.,
THE FAIRCHILD CORPORATION,
FAIRCHILD HOLDING CORP .
AND
SHEEPDOG, INC.
Dated as of July 16, 2002
Table of Contents
TABLE OF CONTENTS
Page
ARTICLE I-DEFINITIONS
2
SECTION 1.
_____________
Fairchild Holding Corp – as of July 16, 2002 (the "Agreement"), among Alcoa Inc., a Pennsylvania corporation (the "Buyer"), The Fairchild Corporation, a Delaware corporation (the "Parent"), Fairchild Holding Corp ., a Delaware corporation and an indirect, wholly owned subsidiary of the Parent ("Fairchild Holding"), and Sheepdog, Inc., a Delaware corporation and an
_____________
FAIRCHILD HOLDING CORP – BARBARA JEREMIAH
Name: Barbara Jeremiah
Title: Executive Vice President
THE FAIRCHILD CORPORATION
By: /S/ JEFFREY STEINER
Name: Jeffrey Steiner
Title: Chief Executive Officer
FAIRCHILD HOLDING CORP .
By: /S/ ERIC STEINER
Name: Eric Steiner
Title: President
SHEEPDOG, INC.
By: /S/ DONALD E. MILLER
Name: Donald E. Miller
Title: Vice
_____________
FAIRCHILD HOLDING CORP – CONVEYANCE, ASSIGNMENT, TRANSFER AND BILL OF SALE
RELATING TO CERTAIN PERSONAL PROPERTY
AND CAPITAL STOCK AND MEMBERSHIP INTERESTS OWNED BY
THE FAIRCHILD CORPORATION, FAIRCHILD HOLDING CORP .
AND SHEEPDOG, INC.
KNOW ALL PERSONS BY THESE PRESENT that The Fairchild Corporation, a Delaware corporation (the "Parent"), Fairchild Holding Corp., a
_____________
Fairchild Holding Corp – FAIRCHILD CORPORATION, FAIRCHILD HOLDING CORP.
AND SHEEPDOG, INC.
KNOW ALL PERSONS BY THESE PRESENT that The Fairchild Corporation, a Delaware corporation (the "Parent"), Fairchild Holding Corp ., a Delaware corporation and an indirect, wholly owned subsidiary of the Parent ("Fairchild Holding"), Sheepdog, Inc., a Delaware corporation and a direct,
_____________
dt 219083
;
|
Sheepdog
As referenced in this Acquisition Agreement:
SHEEPDOG, INC – 4 dex992.htm ACQUISITION AGREEMENT
Table of Contents
EXHIBIT 99.2
ACQUISITION AGREEMENT
AMONG
ALCOA INC.,
THE FAIRCHILD CORPORATION,
FAIRCHILD HOLDING CORP.
AND
SHEEPDOG, INC .
Dated as of July 16, 2002
Table of Contents
TABLE OF CONTENTS
Page
ARTICLE I-DEFINITIONS
2
SECTION 1.1
"Actual Transferred
_____________
Sheepdog, Inc – a Delaware corporation (the "Parent"), Fairchild Holding Corp., a Delaware corporation and an indirect, wholly owned subsidiary of the Parent ("Fairchild Holding"), and Sheepdog, Inc ., a Delaware corporation and an indirect, wholly owned subsidiary of the Parent ("SDI" and, together with the Parent, Fairchild Holding and the
_____________
SHEEPDOG, INC – By: /S/ JEFFREY STEINER
Name: Jeffrey Steiner
Title: Chief Executive Officer
FAIRCHILD HOLDING CORP.
By: /S/ ERIC STEINER
Name: Eric Steiner
Title: President
SHEEPDOG, INC .
By: /S/ DONALD E. MILLER
Name: Donald E. Miller
Title: Vice President
FAIRCHILD DATA CORP.
By: /S/ JOHN FLYNN
Name: John Flynn
_____________
SHEEPDOG, INC – BILL OF SALE
RELATING TO CERTAIN PERSONAL PROPERTY
AND CAPITAL STOCK AND MEMBERSHIP INTERESTS OWNED BY
THE FAIRCHILD CORPORATION, FAIRCHILD HOLDING CORP.
AND SHEEPDOG, INC .
KNOW ALL PERSONS BY THESE PRESENT that The Fairchild Corporation, a Delaware corporation (the "Parent"), Fairchild Holding Corp., a Delaware corporation and
_____________
Sheepdog, Inc – Corporation, a Delaware corporation (the "Parent"), Fairchild Holding Corp., a Delaware corporation and an indirect, wholly owned subsidiary of the Parent ("Fairchild Holding"), Sheepdog, Inc ., a Delaware corporation and a direct, wholly owned subsidiary of the Parent ("SDI", and the subsidiaries of the Parent set forth on
_____________
dt 219085
;
Salomon
As referenced in this Acquisition Agreement:
Salomon Smith Barney – financial resources available to pay the Consideration at the Closing Date and the Earn-Out when due.
SECTION 4.6 Brokers. Except for Salomon Smith Barney Inc., no broker, finder or investment banker is entitled to any brokerage, finder's or other fee or commission in connection with the
_____________
Salomon Smith Barney – fee or commission in connection with the transactions contemplated by this Agreement. The Buyer is solely responsible for all fees and expenses of Salomon Smith Barney Inc. payable in connection with the transactions contemplated in this Agreement.
44
Table of Contents
ARTICLE V
COVENANTS OF THE PARTIES
SECTION 5.
_____________
dt 87307
;
More... |
Preview
Full Doc
| 2000 |
Acquisition Agreement
Acquisition Agreement (144K)
Doc #124762: Click preview link for longer preview.
ACQUISITION AGREEMENT
MEMORANDUM OF AGREEMENT made as of the 28th day of August, 2000
B E T W E E N :
UPM-KYMMENE CORPORATION,
a corporation existing under the laws of Finland
("UPM")
- and -
REPAP ENTERPRISES INC.,
a corporation existing under the laws of Canada
("Repap").
THIS AGREEMENT WITNESSES THAT in consideration of the respective covenants and agreements herein contained, the parties hereto covenant and agree as follows:
ARTICLE 1
INTERPRETATION
Section 1.1 Definitions
In this Agreement, unless there is something in the subject matter or context inconsistent therewith, the following terms shall have the following meanings respectively:
"Acquireco" means 3796477 Canada Inc., a corporation existing under the laws of Canada and a wholly-owned subsidiary of UPM;
"Acquisition Proposal" means any proposal or offer with respect to any merger, amalgamation, arrangement, business combination, liquidation, dissolution, recapitalization, take-over bid, tender offer, purchase of all or any material assets of, or any purchase of more than 20% of the equity (or rights thereto) of, or similar transactions involving, Repap or any Repap Material Subsidiary, excluding the Amalgamation;
"Affiliate" shall have the meaning ascribed thereto under the Securities Act;
"Amalco" means the corporation continuing as a result of the Amalgamation;
"Amalco Special Shares" means the redeemable special shares of Amalco to be issued on the Amalgamation and to be redeemed by Amalco on the Redemption Date at the Redemption Price;
"Amalgamation" means an amalgamation of Repap and Acquireco under Section 181 of the CBCA on the terms and subject to the conditions set out in the Amalgamation Agreement, subject to any amendments or variations thereto made in accordance with Section 6.1;
"Amalgamation Agreement" means the amalgamation agreement providing for the Amalgamation substantially in the form and content of Schedule A annexed hereto and any amendments or variations thereto made in accordance with Section 6.1;
"Amalgamation Resolution" means the special resolution of the Repap Shareholders, to be substantially in the form and content of Schedule B annexed hereto;
"Ancillary Documents" means the schedules hereto and any disclosure letters between the parties as contemplated herein;
"Articles of Amalgamation" means the articles of amalgamation of Repap and Acquireco in respect of the Amalgamation that are required by the CBCA to be filed with the Director;
"Berg Litigation" means the litigation relating to Mr. S. Berg disclosed in the documents Publicly Disclosed by Repap;
"Break Fee" shall have the meaning ascribed thereto in Section 6.4(1);
"Business Day" means any day on which commercial banks are generally open for business in Toronto, Ontario and Helsinki, Finland other than a Saturday, a Sunday or a day observed as a holiday in Toronto, Ontario or in Helsinki, Finland under applicable Laws;
124762
|
UPM-Kymmene
As referenced in this Acquisition Agreement:
UPM-KYMMENE – as of the 28th day of August, 2000
B E T W E E N :
UPM-KYMMENE CORPORATION,
a corporation existing under the laws of Finland
("UPM")
- and -
REPAP ENTERPRISES INC.,
a
UPM-KYMMENE – the parties hereto have executed this Acquisition Agreement as of the date first written above.
UPM-KYMMENE CORPORATION
By:
"Juha Niemel"
Authorized Signing Officer
By:
"Reko Aalto-Setl"
Authorized Signing Officer
REPAP
UPM-Kymmene – as described in Schedule 1 to this Agreement.
6.
Private Company Restrictions
Effective immediately upon UPM-Kymmene Corporation becoming the sole holder of shares of Amalco:
(a)
the right to transfer shares
UPM-Kymmene – acquisition agreement (the "Acquisition Agreement") dated as of August 28, 2000 between the Corporation and UPM-Kymmene Corporation, the full text of which is set forth in Schedule l to the Circular;
dt 27868
;
Nasdaq Stock Market Inc.
As referenced in this Acquisition Agreement:
Nasdaq Stock Market, Inc – central bank, court, tribunal, arbitral body, commission, board, bureau or agency, domestic or foreign, (b) self regulatory organization or stock exchange including The Nasdaq Stock Market, Inc . OTC Bulletin Board and The Toronto Stock Exchange, (c) subdivision, agent, commission, board, or authority of any of the foregoing, or (d)
_____________
dt 232336
;
Osler, Hoskin & Harcourt LLP;
| White & Case LLP;
Repap Enterprises Inc.
|
Preview
Full Doc
| 2003 |
Acquisition Agreement
Acquisition Agreement (160K)
Doc #171511: Click preview link for longer preview.
This Acquisition Agreement (this Agreement) is made and entered into as of December 7, 2003, by and between DENISON INTERNATIONAL PLC, a public limited company organized under the laws of England and Wales (the Company), and PARKER-HANNIFIN CORPORATION, an Ohio corporation (Purchaser).
W I T N E S S E T H:
WHEREAS, the respective Boards of Directors of the Company and Purchaser have each determined that it is in the best interests of their respective shareholders for Purchaser to acquire the Company upon the terms and subject to the conditions set forth herein;
WHEREAS, in furtherance thereof, it is proposed that Purchaser will make cash tender offers to acquire all of the issued and outstanding Ordinary Shares, $0.01 par value, of the Company (the Ordinary Shares), including those represented by American Depositary Shares (ADSs), and all of the issued and outstanding A Ordinary Shares, 8.00 par value, of the Company (the A Ordinary Shares and, together with the Ordinary Shares and the ADSs, the Shares), each in return for the payment by Purchaser of an amount equal to $24.00 per Share or such higher price as may be paid in the Offer (the Per Share Amount), in each case net to the seller in cash (the cash tender offers for the Ordinary Shares, including those represented by ADSs, and the A Ordinary Shares in accordance with the terms of this Agreement are hereinafter collectively referred to as the Offer);
WHEREAS, also in furtherance thereof, the respective Boards of Directors of the Company and Purchaser have each approved the Offer in accordance with the laws of England and Wales and the State of Ohio, respectively, and the provisions of this Agreement;
WHEREAS, pursuant to the resolutions adopted at the Meeting (as hereinafter defined), the Board of Directors of the Company has unanimously recommended the acceptance of the Offer to the holders of the Shares;
WHEREAS, as an inducement and a condition to Purchasers entering into this Agreement, contemporaneously with the execution and delivery of this Agreement, certain shareholders of the Company holding in the aggregate not less than 90% of the outstanding A Ordinary Shares have entered into Tender Agreements with Purchaser (the Tender Agreements), pursuant to which each such shareholder has, among other things, agreed to tender all of its Shares in the Offer; and
WHEREAS, the Company and Purchaser desire to make certain representations, warranties and agreements in connection with, and establish various conditions precedent to, the transactions contemplated hereby.
NOW, THEREFORE, in consideration of the foregoing and the representations, warranties, covenants and agreements hereinafter set forth, the parties hereto agree as follows:
ARTICLE I.
TENDER OFFER AND SQUEEZE-OUT
1.1. The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Section 6.1 hereof and none of the events set forth in Annex I hereto shall have occurred and are existing, Purchaser or a direct or indirect subsidiary thereof shall commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (the Securities Exchange Act)) the Offer as promptly as practicable following the public announcement of the execution of this Agreement, but in no event later than ten (10) business days following the execution of this Agreement, and shall use all reasonable commercial efforts to consummate the Offer. The obligation of Purchaser to accept for payment any Shares tendered in the Offer shall be subject to the satisfaction of only those conditions set forth in Annex I hereto. Except as set forth in Section 1.1(b) below, Purchaser expressly reserves the right to waive any such condition or to increase the Per Share Amount. The Per Share Amount shall be net to each seller in cash, subject to reduction only for any applicable federal back-up withholding or stock transfer taxes payable by such seller. The Company agrees that no Shares held by the Company or any of its subsidiaries will be tendered to Purchaser pursuant to the Offer.
(b) Without the prior written consent of the Company, Purchaser shall not (i) decrease the Per Share Amount or change the form of consideration payable in the Offer, (ii) decrease the number of Shares sought, (iii) except as expressly set forth in Annex I hereto, amend or waive satisfaction of the Minimum Condition (as defined in Annex I hereto) or (iv) impose additional conditions to the Offer or amend any other term of the Offer in any manner adverse to the holders of Shares. Upon the terms and subject to the conditions of the Offer, Purchaser will accept for payment and purchase, as soon as permitted under the terms of the Offer, all Shares validly tendered and not withdrawn prior to the expiration of the Offer.
(c) The Offer shall be made by means of an offer to purchase (the Offer to Purchase) having only the conditions set forth in Annex I hereto. As soon as practicable on the date the Offer is commenced, Purchaser shall file with the Securities and Exchange Commission (the SEC) a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, the Schedule TO) with respect to the Offer that will comply in all material respects with the provisions of, and satisfy in all material respects the requirements of, such Schedule TO and all applicable securities laws and will contain (including as an exhibit) or incorporate by reference the Offer to Purchase and forms of the related letter of transmittal, form of acceptance and summary advertisement (which documents, together with any supplements or amendments thereto, and any other SEC schedule or form which is filed in connection with the Offer and related transactions, are referred to collectively herein as the Offer Documents). Each of Purchaser and the Company agrees promptly to correct any information provided by it for use in the Schedule TO or the Offer Documents if and to the extent that it shall have become false or misleading in any material respect and to supplement the information provided by it specifically for use in the Schedule TO or the Offer Documents to include any information that shall become necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and Purchaser further agrees to take all steps necessary to cause the Schedule TO, as so corrected or supplemented, to be filed with the SEC
-2-
and the Offer Documents, as so corrected or supplemented, to be disseminated to holders of Shares, in each case, as and to the extent required by applicable securities laws. The Company and its counsel shall be given a reasonable opportunity to review and comment on any Offer Documents and any amendments thereto before they are filed with the SEC. Purchaser shall provide the Company and its legal counsel with any comments that Purchaser or its legal counsel may receive from the SEC or its staff with respect to the Schedule TO promptly after receipt of such comments and shall consult with the Company and its legal counsel prior to responding to any comments.
(d) The Offer to Purchase shall provide for an initial expiration date and time of 8:00 a.m., New York City time, on the twenty-first (21) business day (as defined in Rule 14d-1 under the Securities Exchange Act) following the date of commencement. Purchaser agrees that it shall not (x) subject to Purchasers right to terminate this Agreement and the Offer in accordance with the terms of Section 6.1 and Annex I hereof, terminate or withdraw the Offer, or (y) extend the expiration date of the Offer except that Purchaser may, without the consent of the Company, (i) extend the Offer (with each extension being for a period of not more than ten (10) business days) if at the expiration date of the Offer the conditions to the Offer described in Annex I hereto shall not have been satisfied or earlier waived; provided, however, that, if, and for so long as, all the conditions to the Offer described in Annex I hereto have been satisfied or waived other than the conditions set forth in clauses (ii) and/or (iii) of the preamble of Annex I, Purchaser shall be required to extend the expiration date of the Offer until the earlier of the date on which the Shares are accepted for payment as permitted under the terms of the Offer or the date on which this Agreement and the Offer is terminated in accordance with Section 6.1 or Annex I hereof, respectively; (ii) extend the Offer for any period required by any rule, regulation, interpretation or position of the SEC or the staff thereof or (iii) after the acceptance of and payment for the Shares pursuant to the Offer, extend the Offer for a further period of time by means of a subsequent offering period under Rule 14d-11 promulgated under the Exchange Act of not more than twenty (20) business days.
1.2. Company Action. (a) The Company hereby approves of and consents to the Offer and represents and warrants that the Board of Directors of the Company, at a meeting duly called and held on December 7, 2003 (the Meeting), at which all of the Directors were present (either in person or via tele-conference), unanimously (i) approved and adopted this Agreement and the transactions contemplated hereby, including the Offer and the Acquisition, (ii) recommended that the stockholders of the Company accept the Offer and tender their Shares pursuant to the Offer, and (iii) determined that this Agreement and the transactions contemplated hereby, including the Offer and the Acquisition, are fair to, and in the best interests of, the stockholders of the Company. Lazard Freres & Co. LLC (Lazard) has delivered to the Board of Directors of the Company its opinion that the Per Share Amount to be paid to the holders of Shares in the Offer is fair, from a financial point of view, to such holders. Subject to the provisions of Section 4.7(b), the Company hereby consents to the inclusion in the Offer Documents of the recommendation of the Board of Directors of Company in favor of the Offer.
(b) The Company shall file with the SEC, as promptly as practicable after the filing by Purchaser of the Schedule TO with respect to the Offer, a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 (together with any amendments or supplements thereto, the Schedule 14D-9) that will comply in all material respects with the
171511
|
Parker-Hannifin
As referenced in this Acquisition Agreement:
PARKER-HANNIFIN – dex1.htm ACQUISITION AGREEMENT, DATED DECEMBER 7, 2003
Exhibit (D)(1)
DENISON INTERNATIONAL PLC
and
PARKER-HANNIFIN CORPORATION
ACQUISITION AGREEMENT
Dated as of December 7, 2003
TABLE OF CONTENTS
Page
ARTICLE
PARKER-HANNIFIN – a public limited company organized under the laws of England and Wales (the Company), and PARKER-HANNIFIN CORPORATION, an Ohio corporation (Purchaser).
W I T N E S S E T
Parker-Hannifin – 9QQ
Attention: Charles McKenna, Esq.
Telecopy: 44-207-330-9999
(ii) if to Purchaser, to:
Parker-Hannifin Corporation
6035 Parkland Boulevard
Cleveland, OH 44124
-37-
Attention: General Counsel
Telecopy: (216) 896-
PARKER-HANNIFIN – and delivered by their respective duly authorized officers as of the date first above written.
PARKER-HANNIFIN CORPORATION
By:
/S/ DONALD E. WASHKEWICZ
Name: Donald E. Washkewicz
Title: President and Chief
dt 27128
;
 Jones Day
As referenced in this Acquisition Agreement:
Jones Day – Boulevard
Cleveland, OH 44124
-37-
Attention: General Counsel
Telecopy: (216) 896-4027
with copies to:
Jones Day
North Point
901 Lakeside Avenue
Cleveland, OH 44114-1190
Attention: Patrick J. Leddy, Esq.
dt 36063
;
|
Willkie Farr
As referenced in this Acquisition Agreement:
Willkie Farr – Marysville, OH 43040
Attention: Chief Financial Officer
Telecopy: (937) 642-3738
with a copy to:
Willkie Farr & Gallagher LLP
787 Seventh Avenue
New York, NY 10019
Attention: Laurence D. Weltman,
dt 32212
;
Denison International plc
|
Preview
Full Doc
| 2001 |
Acquisition Agreement
Acquisition Agreement (73K)
Doc #257944: Click preview link for longer preview.
ACQUISITION AGREEMENT
THIS ACQUISITION AGREEMENT (the "Agreement") is made and entered into
on November 15, 2000, but effective for all purposes as of January 1, 2001 (the
"Effective Date") by and among TARRAGON REALTY INVESTORS, INC., a Nevada
corporation ("Tarragon") and EILEEN A. SWENSON, ROBERT P. ROTHENBERG and SAUL
SPITZ, all individuals (each individually referred to herein by their last name
and all collectively referred to as the "Individuals"), each of whom is the
current owner and holder of an Interest as a Member in ACCORD PROPERTIES
ASSOCIATES, LLC ("Accord").
WHEREAS, each of the Individuals is presently the owner of an
"Interest" as a "Member" (as those terms are defined in the Operating Agreement
of Accord dated as of December 31, 1998) in Accord, each having originally made
a capital contribution of $11,316.67, and each holding a one third Interest as a
Member in Accord;
WHEREAS, Tarragon desires to acquire from the Individuals their entire
Interest as a Member in Accord, such that Tarragon or a subsidiary of Tarragon
shall become the only Member of Accord (which is permitted under Section
34-101(9) of the Connecticut Limited Liability Company Act), and each of the
Individuals desire to sell and convey to Tarragon, all upon the terms and
subject to the conditions set forth in this Agreement, all (but not less than
all) of the Member Interest in Accord, together with the business of Accord as a
going concern.
ACCORDINGLY, for and in consideration of the foregoing premises, the
mutual promises, covenants, representations and warranties contained herein, and
on the terms and subject to the conditions set forth herein, and for other good
and valuable consideration, the receipt, sufficiency and adequacy of which is
hereby acknowledged by all the parties hereto, Tarragon and the Individuals
hereby agree as follows:
{PAGE} 2
1. Adoption of Recitals. All of the recitals set forth above are hereby
adopted, ratified and confirmed in the same manner as if fully re-copied herein.
2. Procedural Items and Definitions.
2.01 Closing of this Agreement. The Closing of the transaction
contemplated by this Agreement (herein called the "Closing") shall take
place at a location mutually acceptable to Tarragon and the
Individuals, at such date and time as shall be fixed by mutual
agreement among the parties hereto, but in any event shall occur no
later than January 15, 2001. The date on which the Closing shall take
place shall be hereinafter referred to as the "Closing Date."
2.02 Certain Definitions. As used in this Agreement, the
following terms or phrases shall have the meanings set forth below:
(a) The term "Business Day" shall mean a day on which
business is regularly transacted by national banks in New York
City, New York, but shall not include any Saturday, Sunday or
national holiday.
(b) The term "Generally Accepted Accounting
Principles" shall mean those Generally Accepted Accounting
Principles and practices which are recognized as such by the
American Institute of Certified Public Accountants acting
through its Accounting Principles Board or by the Financial
Accounting Standards Board or through other appropriate boards
or committees thereof and which are consistently applied for
all periods after the date hereof so as to properly reflect
the financial condition and results of operation and changes
in financial position of the Person in question, except that
any accounting principal or practice required to be changed by
said Accounting Principles Board or Financial Accounting
Standards Board (or other appropriate boards or committees of
said Boards) in order to continue as a Generally Accepted
Accounting Principle or practice may be so changed.
257944
|
Accord Ventures
As referenced in this Acquisition Agreement:
Accord Ventures, Inc. – Closing Date, Tarragon shall assume and agree to pay in accordance with
their terms that certain promissory note in the original principal
amount of $60,000, payable by Accord to Accord Ventures, Inc. , and such
other reasonable obligations of Accord that are disclosed to Tarragon
in the Financial Statements prior to the Closing Date.
7. Survival of Representations, Warranties and Covenants. All
_____________
dt 1316620
;
|
Tarragon
As referenced in this Acquisition Agreement:
TARRAGON REALTY INVESTORS, – and entered into
on November 15, 2000, but effective for all purposes as of January 1, 2001 (the
"Effective Date") by and among TARRAGON REALTY INVESTORS, INC., a Nevada
corporation ("Tarragon") and EILEEN A. SWENSON, ROBERT P. ROTHENBERG and SAUL
SPITZ, all individuals (each individually referred to herein
_____________
TARRAGON REALTY INVESTORS, – WITNESS WHEREOF, the undersigned have caused this Agreement to be
executed as of the date and year first above written.
ADDRESS FOR NOTICES:
TARRAGON REALTY INVESTORS, INC.
1775 Broadway, 23rd Floor By: /s/ William S. Friedman
New York, New York 10019 ------------------------
212-949-5000 William S. Friedman
212-
_____________
dt 132529
|
Preview
Full Doc
| 2000 |
Acquisition Agreement
Acquisition Agreement (127K)
Doc #278484: Click preview link for longer preview.
ACQUISITION AGREEMENT
Acquisition Agreement dated as of July 7, 2000, by and between
BioShield Technologies, Inc., a Georgia corporation ("BioShield") and
Arrow-Magnolia International, Inc., a Texas corporation (the "Company").
INTRODUCTION
BioShield has offered to acquire up to 85% of the issued and
outstanding shares of common stock, par value $0.10 per share, of the Company
(the "Shares"), and the Board of Directors of the Company has unanimously
determined that such acquisition by BioShield would be fair to and in the best
interests of the Company and its shareholders. Therefore, it is proposed that
BioShield shall make an exchange offer (the "Offer") to exchange $4.41 in cash
and $0.59 in shares of common stock, no par value, of BioShield (the "BioShield
Common Stock") calculated in accordance with the provisions set forth herein,
for each outstanding Share, for up to a maximum of 2,761,281 of the 3,248,566
issued and outstanding Shares, in accordance with the terms provided in this
Agreement.
Simultaneously with the execution and delivery of this Agreement and as
a condition and inducement to the willingness of BioShield to enter into this
Agreement, BioShield and certain stockholders of the Company (collectively, the
"Stockholders") are entering into an agreement (the "Tender Agreement") pursuant
to which the Stockholders will agree to tender for exchange certain of their
Shares in the Offer and to take certain other actions in furtherance of the
transactions contemplated by this Agreement upon the terms and subject to the
conditions set forth in the Tender Agreement.
BioShield and the Company desire to make certain representations,
warranties, covenants and agreements in connection with the Offer and the other
transactions contemplated by this Agreement and also to prescribe various
conditions to the Offer and the other transactions contemplated by this
Agreement.
The parties therefore agree as follows:
ARTICLE I
THE OFFER
SECTION 1.1. THE OFFER. (a) Provided that (i) this Agreement shall not
have been terminated in accordance with Section 6.1 and (ii) none of the events
set forth in Annex I hereto shall have occurred or be existing, BioShield shall,
as promptly as practicable after the date hereof, commence the Offer. Each Share
accepted by BioShield in accordance with the Offer shall be exchanged for the
right to receive from BioShield (i) the sum of $4.41 in cash and (ii) the number
of fully paid and nonassessable shares of BioShield Common Stock calculated by
dividing the sum of $0.59 by the Average Closing Bid Price, as hereinafter
defined. The Average Closing Bid Price shall mean that price which shall be
computed as the arithmetic average of the Closing Bid Prices, as hereinafter
defined, for a share of BioShield Common Stock for the five (5) consecutive
trading days ending on the trading day immediately prior to the date BioShield
and the Company shall jointly make the first public announcement of the
transactions contemplated hereby; and Closing Bid Price shall mean, for any
trading day, the last closing bid price on the Nasdaq SmallCap Market (the
"Nasdaq-SM") as reported by Bloomberg Financial Markets ("Bloomberg"), or, if
the Nasdaq-SM is not the principal trading market for the BioShield Common
Stock, the last closing bid price for the BioShield Common Stock on the
principal securities exchange or trading market where such security is listed or
traded as reported by Bloomberg, or if the foregoing do not apply, the last
closing bid price of such security in the over-the-counter market on the pink
sheets or
{PAGE} 2
bulletin board for such security as reported by Bloomberg, or, if no closing bid
price is reported for such security by Bloomberg, the last closing trade price
of such security as reported by Bloomberg.
(b) The initial expiration date of the Offer shall be the twentieth
business day following commencement of the Offer. The Offer shall be subject to
the condition that there shall be validly tendered in accordance with the terms
of the Offer, prior to the expiration date of the Offer and not withdrawn, a
number of Shares which, together with any Shares then owned by BioShield,
represents at least a majority of the total number of outstanding Shares,
assuming the exercise of all outstanding options, rights and convertible
securities (if any) and the issuance of all Shares that the Company is obligated
to issue (such total number of outstanding Shares being hereinafter referred to
as the "Fully Diluted Shares") (the "Minimum Condition") and to the other
conditions set forth in Annex I hereto. BioShield expressly reserves the right
to waive the conditions to the Offer and to make any change in the terms or
conditions of the Offer; provided that, without the consent of the Company, no
change may be made which changes the form or amount of consideration to be paid
(other than by adding consideration), modifies the Offer to apply to less than
85% of the outstanding Shares, imposes conditions to the Offer in addition to
those set forth in Annex I, or makes any other change to any condition to the
Offer set forth in Annex I which is materially adverse to the holders of Shares.
Subject to the terms of the Offer and this Agreement and the satisfaction (or
waiver to the extent permitted by this Agreement) of the conditions to the
Offer, BioShield shall accept for payment all Shares validly tendered and not
withdrawn pursuant to the Offer as soon as practicable after the applicable
expiration date of the Offer and shall pay for all such Shares promptly after
acceptance; provided that BioShield may, in its discretion, extend the Offer if,
at the scheduled expiration date of the Offer or any extension thereof, any of
the conditions to the Offer shall not have been satisfied, until such time as
such conditions are satisfied or waived. In addition, BioShield may extend the
Offer after the acceptance of Shares thereunder for a further period of time by
means of a subsequent offering period in accordance with Rule 14d-11 promulgated
under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), of
not more than 20 business days to meet the objective (which is not a condition
to the Offer) that there be validly tendered, in accordance with the terms of
the Offer, prior to the expiration date of the Offer (as so extended) and not
withdrawn a number of Shares which represents at least 85% of the outstanding
Shares. Notwithstanding anything to the contrary set forth herein, no
certificates or scrip representing fractional shares of BioShield Common Stock
shall be issued in connection with the exchange of BioShield Common Stock for
Shares upon consummation of the Offer, and in lieu thereof each tendering
stockholder who would otherwise be entitled to a fractional share of BioShield
Common Stock in the Offer will be paid an amount in cash equal to the product
obtained by multiplying (A) the fractional share interest such holder (after
taking into account all Shares tendered by such holder) would otherwise be
entitled by (B) the Average Closing Bid Price.
(c) As soon as practicable after the date of this Agreement, BioShield
shall prepare and file with the U.S. Securities and Exchange Commission (the
"SEC") a registration statement on Form S-4 to register the offer and sale of
BioShield Common Stock pursuant to the Offer (the "Form S-4"). The Form S-4 will
include a preliminary prospectus containing the information required under Rule
14d-4(b) promulgated under the Exchange Act (the "Preliminary Prospectus"). As
soon as practicable on the date of commencement of the Offer, BioShield shall
(i) file with the SEC a Tender Offer Statement on Schedule TO with respect to
the Offer which will contain or incorporate by reference all or part of the
Preliminary Prospectus and the form of the related letter of transmittal
(together with any supplements or amendments thereto, collectively the "Offer
Documents") and (ii) cause the Offer Documents to be disseminated to holders of
Shares. BioShield and the Company each agree promptly to correct any information
provided by it for use in the Form S-4 or the Offer Documents if and to the
extent that it shall have become false or misleading in any material respect.
BioShield agrees to take all steps necessary to cause the Offer Documents as so
corrected to be filed with the SEC and to be disseminated to holders of Shares,
in each case as and to the extent required by applicable federal securities
laws. The Company and its counsel shall be given a reasonable opportunity to
review and comment on the Schedule TO, the Form S-4 and the Offer Documents
prior to its being filed with the SEC.
{PAGE} 3
SECTION 1.2. COMPANY ACTION. (a) The Company hereby consents to the
Offer and represents that its Board of Directors, at a meeting duly called and
held, has unanimously (i) determined that this Agreement and the transactions
contemplated hereby, including the Offer, are advisable and are fair to and in
the best interest of the Company's stockholders, (ii) approved this Agreement
and the transactions contemplated hereby, including the Offer, and the Tender
Agreement and the transactions contemplated thereby, and (iii) resolved to
recommend acceptance of the Offer by the Company's stockholders (such
recommendation is herein referred to as the "Recommendation"). The Company has
been advised that all of its directors and executive officers presently intend
to tender their Shares pursuant to the Offer. The Company will promptly furnish
BioShield with a list of its stockholders, mailing labels and any available
listing or computer file 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 as of the most recent practicable date, and will
provide to BioShield such additional information (including, without limitation,
updated lists of stockholders, mailing labels and lists of securities positions)
and such other assistance as BioShield may reasonably request in connection with
the Offer.
(b) On the day that the Offer is commenced, the Company will file with
the SEC and disseminate to holders of Shares a Solicitation/Recommendation
Statement on Schedule 14D-9 (the "Schedule 14D-9") which shall reflect the
Recommendation; provided that the Board of Directors of the Company may
withdraw, modify or change the Recommendation if but only if (i) it believes in
good faith, based on such matters as it deems relevant, including the advice of
the Company's financial advisors (if any), that a Superior Proposal (defined in
Section 3.5(b) hereof) has been made and (ii) it has determined in good faith,
after consultation with outside legal counsel, that the withdrawal, modification
or change of such Recommendation is, in the good faith judgment of the Board of
Directors, required by the Board to comply with its fiduciary duties imposed by
applicable law. The Company and BioShield each agree promptly to correct any
information provided by it for use in the Schedule 14D-9 if and to the extent
that it shall have become false or misleading in any material respect. The
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 Shares,
in each case as and to the extent required by applicable federal securities
laws. BioShield and its counsel shall be given a reasonable opportunity to
review and comment on the Schedule 14D-9 prior to its being filed with the SEC.
SECTION 1.3. DIRECTORS. (a) Effective upon the acceptance for payment
by BioShield of at least a majority of the outstanding Shares pursuant to the
Offer (the "Appointment Time"), BioShield shall be entitled to designate the
number of directors, rounded up to the next whole number, on the Company's Board
of Directors that equals the product of (i) the total number of directors on the
Company's Board of Directors (giving effect to the election of any additional
directors pursuant to this Section) and (ii) the percentage that the number of
Shares owned by BioShield (including Shares accepted for payment) bears to the
total number of Shares outstanding, and the Company shall take all action
legally available to the Company to cause BioShield's designees to be elected or
appointed to the Company's Board of Directors, including, without limitation,
seeking to increase the number of directors, or seeking and accepting
resignations of incumbent directors, or both. The Company will use its best
efforts to cause individuals designated by BioShield to constitute the same
percentage as such individuals represent on the Company's Board of Directors of
(x) each committee of the Board, (y) each board of directors of each subsidiary
and (z) each committee of each such board.
(b) The Company's obligations to appoint designees to the Board of
Directors shall be subject to Section 14(f) of the Exchange Act and Rule 14f-l
promulgated thereunder. The Company shall promptly take all actions required
pursuant to Section 14(f) and Rule 14f-l in order to fulfill its obligations
under this Section 1.3 and shall include in the Schedule 14D-9 such information
with respect to the Company and its officers and directors as is required under
Section 14(f) and Rule 14f-l to fulfill its obligations under this Section 1.3.
BioShield will supply to the Company in writing and be solely responsible for
any information with respect to itself and its nominees, officers, directors and
affiliates required by Section 14(f) and Rule 14f-1.
{PAGE} 4
SECTION 1.4. OPTIONS. BioShield shall offer to each holder of an
outstanding option or right listed in the Company Disclosure Schedule (a
"Company Option") to purchase Shares granted under any stock option plan,
warrant, program or agreement to which the Company or any of its subsidiaries is
a party (collectively, the "Company Stock Plans") to acquire such Company
Option, and agrees to purchase all Company Options from any holders who tender
Company Options, upon the consummation of the Offer in exchange for an amount in
cash equal to the product of (A) the excess, if any, of (x) the Purchase Price
(as hereinafter defined) over (y) the per share exercise price of such Company
Option multiplied by (B) the number of Shares subject to such Company Option
(whether or not then vested or exercisable). Any such payment shall be further
reduced by any income tax or employment tax withholding required under the
Internal Revenue Code of 1986, as amended (the "Code"). The Purchase Price shall
be $4.75.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
SECTION 2.1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. Each
exception set forth in the Company Disclosure Schedule (defined below in Section
2.1(b)) to the representations and warranties in this Section 2.1 and each other
response to this Agreement set forth in the Company Disclosure Schedule is
identified by reference to, or has been grouped under a heading referring to, a
specific individual Section of this Agreement and relates only to such Section,
except to the extent that one section of the Company Disclosure Schedule
specifically refers to another section thereof. Except as set forth in the
Company Disclosure Schedule, the Company represents and warrants to BioShield as
follows:
(a) ORGANIZATION, STANDING AND CORPORATE POWER. Each of the Company and
each of its subsidiaries is a corporation or other legal entity duly organized,
validly existing and in good standing under the laws of the jurisdiction in
which it is organized and has the requisite corporate or other power and
authority, as the case may be, to carry on its business as now being conducted.
Each of the Company and each of its subsidiaries is duly qualified or licensed
to do business and is in good standing in each jurisdiction in which the nature
of its business or the ownership or leasing of its properties makes such
qualification or licensing necessary, other than in such jurisdictions where the
failure to be so qualified or licensed (individually or in the aggregate) could
not reasonably be expected to have a material adverse effect on the condition
(financial or otherwise), business, assets or results of operations of the
Company and its subsidiaries taken as a whole (a "Company Material Adverse
Effect"). The Company has delivered or made available to BioShield complete and
correct copies of its certificate of incorporation and by-laws and the
certificates of incorporation and by-laws of its subsidiaries, in each case as
amended to the date of this Agreement. For purposes of this Agreement, a
"subsidiary" of any person means another person, an amount of the voting
securities, other voting ownership or voting partnership interests of which is
sufficient to elect at least a majority of its Board of Directors or other
governing body (or, if there are no such voting interests, 50% or more of the
equity interests of which) is owned directly or indirectly by such first person;
and a "Person" means an individual, corporation, partnership, limited liability
company, joint venture, association, trust, unincorporated organization or other
entity.
(b) SUBSIDIARIES. Section 2.1(b) of the disclosure schedule attached
hereto (the "Company Disclosure Schedule") lists each subsidiary of the Company
and its respective jurisdiction of incorporation. All the outstanding shares of
capital stock of each such subsidiary have been validly issued and are fully
paid and nonassessable and are owned by the Company, by another subsidiary of
the Company or by the Company and another such subsidiary, free and clear of all
pledges, claims, liens, charges, encumbrances and security interests of any kind
or nature whatsoever (collectively, "Liens") and free of any other limitation or
restriction (including any restriction on the right to vote, sell or otherwise
dispose of such capital stock). Except for the capital stock
{PAGE} 5
of its subsidiaries, the Company does not own, directly or indirectly, any
capital stock or other ownership interest in any person.
(c) CAPITAL STRUCTURE. The authorized capital stock of the Company
consists of 10,000,000 Shares and 500,000 shares of preferred stock, par value
$.10 per share (the "Company Preferred Stock"). As of June 30, 2000, (i)
3,248,566 Shares were issued and outstanding, (ii) 13,500 were issued and held
in treasury, (iii) no shares of the Company Preferred Stock were issued and
outstanding, and (iv) 885,600 Shares were reserved for issuance pursuant to the
Company Stock Plans (of which 848,613 are subject to outstanding options. Except
as set forth above, at the time of execution of this Agreement, no shares of
capital stock or other voting securities of the Company were issued, reserved
for issuance or outstanding. All outstanding shares of capital stock of the
Company are, and all shares which may be issued pursuant to the Company Stock
Plans will be, when issued, duly authorized, validly issued, fully paid and
nonassessable and not subject to preemptive rights. There are no outstanding
bonds, debentures, notes or other indebtedness or securities of the Company
having the right to vote (or convertible into, or exchangeable for, securities
having the right to vote) on any matters on which shareholders of the Company
may vote. Except as set forth above, there are no outstanding securities,
options, warrants, calls, rights, commitments, agreements or undertakings of any
kind to which the Company or any of its subsidiaries is a party or by which any
of them is bound obligating the Company or any of its subsidiaries to issue,
deliver or sell, or cause to be issued, delivered or sold, additional shares of
capital stock or other voting securities of the Company or of any of its
subsidiaries or obligating the Company or any of its subsidiaries to issue,
grant, extend or enter into any such security, option, warrant, call, right,
commitment, agreement, or undertaking. There are no outstanding rights,
commitments, agreements, or undertakings of any kind obligating the Company or
any of its subsidiaries to repurchase, redeem or otherwise acquire any shares of
capital stock or other voting securities of the Company or any of its
subsidiaries or any securities of the type described in the two immediately
preceding sentences. The Company has delivered or made available to BioShield
complete and correct copies of the Company Stock Plans and all forms of the
Company Options. Section 2.1(c) of the Company Disclosure Schedule sets forth a
complete and accurate list of all the Company Options outstanding as of the date
of this Agreement and the exercise price of each outstanding Company Option.
(d) AUTHORITY; NONCONTRAVENTION. The Company has the requisite corporate
power and authority to enter into this Agreement and to consummate the
transactions contemplated by this Agreement. The execution and delivery of this
Agreement by the Company and the consummation by the Company of the transactions
contemplated by this Agreement have been duly authorized by all necessary
corporate action on the part of the Company. This Agreement has been duly
executed and delivered by the Company and constitutes a valid and binding
obligation of the Company, enforceable against the Company in accordance with
its terms. Except as set forth in Section 2.1(d) of the Company Disclosure
Schedule, the execution and delivery of this Agreement do not, and the
consummation of the transactions contemplated by this Agreement and compliance
with the provisions of this Agreement will not, conflict with, or result in any
violation of, or default (with or without notice or lapse of time, or both)
under, or give rise to a right of termination, cancellation or acceleration of
any obligation or to loss of a material benefit under, or result in the creation
of any Lien upon any of the properties or assets of the Company or any of its
subsidiaries under, (i) the certificate of incorporation or by-laws of the
Company or the comparable charter or organizational documents of any of its
subsidiaries, (ii) any loan or credit agreement, note, bond, mortgage,
indenture, lease or other agreement, instrument, permit, concession, franchise
or license applicable to the Company or any of its subsidiaries or their
respective properties or assets or (iii) subject to the governmental filings and
other matters referred to in the following sentence, any judgment, order,
decree, statute, law, ordinance, rule or regulation applicable to the Company or
any of its subsidiaries or their respective properties or assets, other than, in
the case of clauses (ii) and (iii), any such conflicts, violations, defaults,
rights, losses or Liens that individually or in the aggregate could not
reasonably be expected to (x) have a Company Material Adverse Effect, (y) impair
the Company's ability to perform its obligations under this Agreement or (z)
prevent or materially delay the consummation of the transactions contemplated by
this Agreement. No consent, approval, order or authorization of, or
registration, declaration or filing with or
{PAGE} 6
exemption by (collectively, "Consents") any Federal, state or local government
or any court, administrative or regulatory agency or commission or other
governmental authority or agency, domestic or foreign (a "Governmental Entity"),
is required by or with respect to the Company or any of its subsidiaries in
connection with the execution and delivery of this Agreement by the Company or
the consummation by the Company of the transactions contemplated by this
Agreement, except for (i) the filing with the SEC of the Schedule 14D-9 and such
reports under the Securities Exchange Act of 1934, as amended (the "Exchange
Act") and the Securities Act of 1933, as amended (the "Securities Act") as may
be required in connection with this Agreement and the Tender Agreement and the
transactions contemplated hereby and thereby, (ii) such filings as may be
required under state securities or "blue sky" laws, and (iii) such other
consents, approvals, orders, authorizations, registrations, declarations and
filings the failure of which to be made or obtained individually or in the
aggregate could not reasonably be expected to (x) have a Company Material
Adverse Effect, (y) impair the Company's ability to perform its obligations
under this Agreement or (z) prevent or materially delay the consummation of the
transactions contemplated by this Agreement.
(e) SEC DOCUMENTS; FINANCIAL STATEMENTS; NO UNDISCLOSED LIABILITIES.
The Company has filed all required reports, schedules, forms, statements and
other documents with the SEC since December 31, 1997 (the "Company SEC
Documents"). As of their respective dates, except as set forth in Section 2.1(e)
of the Company Disclosure Schedule, the Company SEC Documents complied in all
material respects with the requirements of the Securities Act, or the Exchange
Act, as the case may be, and the rules and regulations of the SEC promulgated
thereunder applicable to such Company SEC Documents, and none of the Company SEC
Documents when filed contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading. The financial statements of the Company included
in the Company SEC Documents as of their respective dates comply as to form in
all material respects with applicable accounting requirements and the published
rules and regulations of the SEC with respect thereto, have been prepared in
accordance with generally accepted accounting principles (except, in the case of
unaudited statements, as permitted by Form 10-Q of the SEC) applied on a
consistent basis during the periods involved (except as may be indicated in the
notes thereto) and fairly present in all material respects the consolidated
financial position of the Company and its consolidated subsidiaries as of the
dates thereof and the consolidated results of their operations and cash flows
for the periods then ended (subject, in the case of unaudited statements, to
normal and recurring year-end audit adjustments not material in amount). Except
as reflected in the financial statements of the Company included in the Company
SEC Documents, neither the Company nor any of its subsidiaries has any
liabilities or obligations of any nature (whether accrued, absolute, contingent
or otherwise) which are required by generally accepted accounting principles to
be set forth on a consolidated balance sheet of the Company and its consolidated
subsidiaries or in the notes thereto other than any liabilities and obligations
incurred since March 31, 2000 in the ordinary course of business or which,
individually or in the aggregate, are not expected to have a Company Material
Adverse Effect.
(f) INFORMATION SUPPLIED. Neither the Schedule 14D-9, nor any of the
information supplied or to be supplied by the Company or its subsidiaries or
representatives for inclusion or incorporation by reference in the Form S-4 or
the Offer Documents will, at the respective times any such documents or any
amendments or supplements thereto are filed with the SEC, are first published,
sent or given to shareholders or become effective under the Securities Act,
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein
not misleading. The Schedule 14D-9 will comply as to form in all material
respects with the requirements of all applicable laws, including the Exchange
Act and the rules and regulations thereunder. No representation or warranty is
made by the Company with respect to statements made or incorporated by reference
therein based on information supplied by BioShield specifically for inclusion or
incorporation by reference therein.
{PAGE} 7
(g) ABSENCE OF CERTAIN CHANGES OR EVENTS. Except as disclosed in the
Company SEC Documents or in Section 2.1(g) of the Company Disclosure Schedule
and except as expressly contemplated by this Agreement, since March 31, 2000,
the Company and its subsidiaries have conducted their business only in the
ordinary course consistent with past practice, and there has not been (i) as of
the date of this Agreement, any event, occurrence or development which has had
or could reasonably be expected to have a Company Material Adverse Effect, (ii)
any declaration, setting aside or payment of any dividend or other distribution
(whether in cash, stock or property) with respect to any of the Company's
capital stock or any repurchase, redemption or other acquisition by the Company
or any of its subsidiaries of any outstanding shares of capital stock or other
securities of the Company or any of its subsidiaries, (iii) any split,
combination or reclassification of any of its capital stock or any issuance or
the authorization of any issuance of any other securities in respect of, in lieu
of or in substitution for shares of its capital stock, (iv) (A) any granting by
the Company or any of its subsidiaries to any current or former director,
officer or employee of the Company or any of its subsidiaries of any increase in
compensation or benefits (including the acceleration in the exercisability of
options to purchase, or in the vesting of, Shares (or other property)), except
in the ordinary course of business consistent with past practice or as was
required under employment agreements in effect as of March 31, 2000, (B) any
granting by the Company or any of its subsidiaries to any such director, officer
or employee of any increase in severance or termination pay (including the
acceleration in the exercisability of options to purchase, or in the vesting of,
Shares (or other property)), except as was required under employment, severance
or termination agreements or plans in effect as of March 31, 2000, or (C) any
entry by the Company or any of its subsidiaries into any employment, deferred
compensation, severance or termination agreement with any such current or former
director, officer or employee, (v) any damage, destruction or loss, whether or
not covered by insurance, that has had or could reasonably be expected to have a
Company Material Adverse Effect, (vi) any change in accounting methods,
principles or practices by the Company or any of its subsidiaries, (vii) any
amendment of any material term of any outstanding security of the Company or any
of its subsidiaries, (viii) any incurrence, assumption or guarantee by the
Company or any of its subsidiaries of any indebtedness for borrowed money other
than in the ordinary course of business consistent with past practice, but in no
event in the amount of more than $200,000 in the aggregate, (ix) any creation or
assumption by the Company or any of its subsidiaries of any Lien on any asset
other than in the ordinary course of business consistent with past practice, but
in no event in the amount of more than $200,000 for any one transaction or
$500,000 in the aggregate, (x) any making of any loan, advance or capital
contributions to or investment in any person other than (A) loans, advances or
capital contributions to or investments in wholly-owned subsidiaries or entities
that became wholly-owned subsidiaries made in the ordinary course of business
consistent with past practice and (B) investments made in accordance with the
Company's investment guidelines, a copy of which has been made available to
BioShield, and in the ordinary course of business consistent with past practice,
(xi) any transaction or commitment made, or any contract or agreement entered
into, by the Company or any of its subsidiaries relating to its assets or
business (including the acquisition or disposition of any assets or the merger
or consolidation with any person) or any relinquishment by the Company or any of
its subsidiaries of any contract or other right, in either case, material to the
Company and its subsidiaries taken as a whole, other than transactions and
commitments in the ordinary course of business consistent with past practice and
those contemplated by this Agreement, but in the case of transactions or
commitments outside of the ordinary course of business in no event representing
commitments on behalf of the Company or any of its subsidiaries of more than
$50,000 for any transaction and $100,000 for any series of transactions, (xii)
any labor dispute, other than routine individual grievances, or any activity or
proceeding by a labor union or representative thereof to organize any employees
of the Company or any of its subsidiaries, which employees were not subject to a
collective bargaining agreement at March 31, 2000, or any lockouts, strikes,
slowdowns, work stoppages or threats thereof by or with respect to such
employees or (xiii) any agreement, commitment, arrangement or undertaking by the
Company or any of its subsidiaries to perform any action described in clauses
(i) through (xii) above.
(h) LITIGATION. Except as disclosed in the Company SEC Documents or in
Section 2.1(h) of the Company Disclosure Schedule, there is no suit, action or
proceeding pending or, to the knowledge of the Company, threatened against or
affecting the Company or any of its subsidiaries (and the Company is not aware
{PAGE} 8
of any basis for any such suit, action or proceeding) that, individually or in
the aggregate, could reasonably be expected to (i) have a Company Material
Adverse Effect, (ii) impair the ability of the Company to perform its
obligations under this Agreement or (iii) prevent or materially delay the
consummation of any of the transactions contemplated by this Agreement, nor is
there any judgment, decree, injunction, rule or order of any Governmental Entity
or arbitrator outstanding against the Company or any of its subsidiaries having,
or which, insofar as reasonably can be foreseen, in the future would have, any
such effect. Section 2.1(h) of the Company Disclosure Schedule sets forth, with
respect to any pending suit, action or proceeding to which the Company or any
its subsidiaries is a party and which involves claims which if adversely
determined would exceed $100,000, the forum, the parties thereto, the subject
matter thereof and the amount of damages claimed.
(i) ABSENCE OF CHANGES IN STOCK AND BENEFIT PLANS. Except as disclosed
in Section 2.1(g) and (i) of the Company Disclosure Schedule or as expressly
permitted by this Agreement, since March 31, 2000, there has not been (i) any
acceleration, amendment or change of the period of exercisability or vesting of
any the Company Options or restricted stock, stock bonus or other awards under
the Stock Plans (including any discretionary acceleration of the exercise
periods or vesting by the Company's Board of Directors or any committee thereof
or any other persons administering a Stock Plan) or authorization of cash
payments in exchange for any the Company Options, restricted stock, stock bonus
or other awards granted under any of such Stock Plans or (ii) any adoption or
amendment by the Company or any of its subsidiaries of any collective bargaining
agreement or any bonus, pension, profit sharing, deferred compensation,
incentive compensation, stock ownership, stock purchase, stock option, phantom
stock, stock appreciation right, retirement, vacation, severance, disability,
death benefit, hospitalization, medical, workers' compensation, supplementary
unemployment benefits or other plan, arrangement or understanding (whether or
not legally binding) providing benefits to any current or former employee,
officer or director of the Company or any of its subsidiaries or any beneficiary
thereof entered into, maintained or contributed to, as the case may be, by the
Company or any of its subsidiaries (collectively, "Benefit Plans").
(j) PARTICIPATION AND COVERAGE IN BENEFIT PLAN. Except with respect to
changes required by law, there has been no adoption of, amendment to, written
interpretation or announcement (whether or not written) by the Company or any of
its subsidiaries relating to, or change in employee participation or coverage
under, any Benefit Plan which would increase materially the expense of
maintaining such Benefit Plan above the level of the expense incurred in respect
thereof for the fiscal year ended on December 31, 1999.
(k) ERISA COMPLIANCE. (i) Section 2.1(k) of the Company Disclosure
Schedule contains a list of all "Employee Pension Benefit Plans" (defined in
Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended
("ERISA")), "Employee Welfare Benefit Plans" (defined in Section 3(l) of ERISA)
and all other material Benefit Plans maintained, or contributed to, by the
Company or any of its subsidiaries or ERISA affiliates (defined below) for the
benefit of any current or former employees, officers or directors of the Company
or any of its subsidiaries or ERISA affiliates or under which the Company or any
of its subsidiaries or ERISA affiliates has any material liability. The Company
has delivered or made available to BioShield complete and correct copies of (A)
each material Benefit Plan (or, in the case of any unwritten Benefit Plans,
descriptions thereof) and all amendments thereto and written interpretations
thereof, (B) the most recent summary plan description for each material Benefit
Plan for which such summary plan description is required and (C) each trust
agreement and group annuity or insurance contract relating to any Benefit Plan.
For purposes of this Agreement, "Erisa Affiliate" of the Company means any
person which, together with the Company or any of its subsidiaries, would be
treated as a single employer under Section 414 of the Code. The only Benefit
Plans which individually or collectively would constitute an "Employee Pension
Benefit Plan" defined in Section 3(2) of ERISA (the "Pension Plans") are
identified as such in Section 2.1(k) of the Company Disclosure Schedule.
(ii) Each Benefit Plan has been maintained and administered in
compliance with its terms in all material respects and with the requirements
prescribed by any and all applicable statutes, orders, rules and
{PAGE} 9
regulations, and is, to the extent required by applicable law or contract, fully
funded without having any deficit or unfunded actuarial liability. Any Benefit
Plan intended to be qualified under Section 401(a) of the Code has been
determined by the Internal Revenue Service to be so qualified and nothing has
occurred that could reasonably be expected to cause the loss of such qualified
status.
(iii) No Benefit Plan is covered by Title IV of ERISA and no
contributions to any Benefit Plan are required under Section 412 of the Code.
Neither the Company nor any of its subsidiaries has incurred or reasonably
expects to incur any liability under Title IV of ERISA or Section 4975 of the
Code or any material liability or penalty under Section 4980B of the Code or
Section 502(i) of ERISA.
(iv) To the knowledge of the Company, there are no pending or
anticipated material claims against or otherwise involving any of the Benefit
Plans and no suit, action or other litigation (excluding claims for benefits
incurred in the ordinary course of Benefit Plan activities) has been brought
against or with respect to any Benefit Plan.
(v) All material contributions, reserves or premium payments,
required to be made as of the date hereof to or with respect to the Benefit
Plans have been made or provided for.
(vi) Except as required by law, neither the Company nor any of
its subsidiaries has any obligations for post-retirement or post-termination
health and life benefits under any Benefit Plan.
(l) TAXES. As used in this Agreement, "Tax" or "Taxes" shall include
all Federal, state, local and foreign income, property, sales, excise and other
taxes, tariffs or governmental charges or assessments of any nature whatsoever
as well as any interest, penalties and additions thereto. Except as set forth in
Section 2.1(l) of the Company Disclosure Schedule:
(i) The Company and each of its subsidiaries have timely filed
all tax returns, statements, reports and forms required to be filed with any tax
authority (collectively, the "Tax Returns") and in accordance with all
applicable laws. All such Tax Returns are correct and complete in all respects.
All taxes shown as due and payable on the Tax Returns have been paid and all
other taxes of the Company or any of its subsidiaries have been adequately
reserved for in the financial statements included in the Company SEC Documents.
There are no Liens on any of the assets of the Company or any of its
subsidiaries that arose in connection with any failure (or alleged failure) to
pay any tax.
(ii) The Company and each of its subsidiaries has withheld and
timely paid all taxes required to have been withheld and paid in connection with
amounts paid or owing to any employee, independent contractor, creditor,
stockholder, or other third party.
(iii) No dispute or claim concerning any tax liability of the
Company or any of its subsidiaries has been proposed or claimed in writing or,
to the knowledge of the Company, threatened by any authority. The Company has
provided BioShield with correct and complete copies of its Federal income tax
returns for taxable years ending December 31, 1995 through December 31, 1999,
and examination reports, and statements of deficiencies with respect to Federal
income taxes, if any, assessed against or agreed to by the Company and any of
its subsidiaries with respect to Federal income taxes for taxable years ending
December 31, 1995 through December 31, 1999.
(iv) Neither the Company nor any of its subsidiaries has
waived any statute of limitations in respect of taxes or agreed to any extension
of time with respect to a tax assessment or deficiency.
(v) Neither the Company nor any of its subsidiaries has filed
a consent pursuant to Section
{PAGE} 10
341(f) of the Code concerning collapsible corporations. Neither the Company nor
any of its subsidiaries is a party to any tax allocation or sharing agreement.
Neither the Company nor any of its subsidiaries has any liability for the taxes
of any person (other than the Company and any of its subsidiaries that is
currently a member of the Company's affiliated group filing a consolidated
federal income tax return) under Treas. Reg. ss.1.1502-6 (or any similar
provision of state, local, or foreign law), as a transferee or successor, by
contract, or otherwise.
(vi) As of the date of the most recent financial statements
included in the Company SEC Documents, the unpaid taxes of the Company and its
subsidiaries did not exceed the liability for taxes (rather than any reserve for
deferred taxes established to reflect timing differences between book and tax
income) set forth on the face of such financial statements.
(vii) Neither the Company nor any of its subsidiaries is
required to include in income any adjustment pursuant to Section 481(a) of the
Code (or similar provisions of other law or regulations) in its current or in
any future taxable period by reason of a change in accounting method nor does
the Company or any of its subsidiaries have any knowledge that the Internal
Revenue Service (or other taxing authority) has proposed or is considering
proposing, any such change in accounting method.
(viii) Neither the Company nor any of its subsidiaries is a
party to any agreement, contract, or arrangement that, individually or
collectively, could give rise to the payment of any amount (whether in cash or
property, including Shares) that would not be deductible pursuant to the terms
of Section 162(m), 280G or, to the knowledge of the Company, 162(a)(i) of the
Code.
(ix) Neither the Company nor any of its subsidiaries has
constituted either a "Distributing Corporation" or a "Controlled Corporation"
(within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of
stock qualifying for tax-free treatment under Section 355 of the Code (A) in the
two years prior to the date of this Agreement, or (B) in a distribution that
could otherwise constitute part of a "Plan" or "Series Of Related Transactions"
(within the meaning of Section 355(e) of the Code) in conjunction with the
Offer.
(m) [deliberately omitted]
(n) BROKERS; SCHEDULE OF FEES AND EXPENSES. No broker, investment
banker, financial advisor or other person is entitled to any broker's, finder's,
financial advisor's or other similar fee or commission in connection with the
transactions contemplated by this Agreement or the Tender Agreement based upon
arrangements made by or on behalf of the Company or any of its subsidiaries. No
such engagement letter obligates the Company to continue to use the services or
pay fees or expenses in connection with any future transaction.
(o) PERMITS; COMPLIANCE WITH LAWS; ENVIRONMENTAL MATTERS. (i) Each of
the Company and its subsidiaries has in effect all Federal, state, local and
foreign governmental approvals, authorizations, certificates, filings,
franchises, licenses, notices, permits and rights ("Permits") necessary for it
to own, lease or operate its properties and assets and to carry on its business
as now conducted, and there has occurred no default under any such Permit,
except for the absence of Permits and for defaults under Permits which,
individually or in the aggregate, could not reasonably be expected to have a
Company Material Adverse Effect. The Company and its subsidiaries have been, and
are, in compliance with all applicable statutes, laws, ordinances, regulations,
rules, judgments, decrees or orders of any Governmental Entity, and neither the
Company nor any of its subsidiaries has received any notice from any
Governmental Entity or any other person that either the Company or any of its
subsidiaries is in violation of, or has violated, any applicable statutes, laws,
ordinances, regulations, rules, judgments, decrees or orders, except such
failures to comply or violations as, individually or in the aggregate, could not
reasonably be expected to have a Company Material Adverse Effect.
{PAGE} 11
(ii) Except as set forth in Section 2.1(o) of the Company
Disclosure Schedule, the Company has complied in all material respects with all
applicable Environmental Laws (as defined below). There is no pending or, to the
knowledge of the Company, threatened civil or criminal litigation, written
notice of violation, formal administrative proceeding, or investigation, inquiry
or information request by any Governmental Entity, relating to any Environmental
Law involving the Company. For purposes of this Agreement, "Environmental Law"
means any federal, state or local law, statute, rule or regulation or the common
law relating to the protection of human health or the environment, including
without limitation CERCLA (as defined below), the Resource Conservation and
Recovery Act of 1976, any statute, regulation or order pertaining to (A)
treatment, storage, disposal, generation and transportation of industrial, toxic
or hazardous materials or substances or solid or hazardous waste; (B) air, water
and noise pollution; (C) groundwater and soil contamination; (D) the release or
threatened release into the environment of industrial, toxic or hazardous
materials or substances, or solid or hazardous waste, including without
limitation, emissions, discharges, injections, spills, escapes or dumping of
pollutants, contaminants, or chemicals; (E) the protection of wild life, marine
life and wetlands, including without limitation all endangered and threatened
species; (F) storage tanks, vessels, abandoned or discarded barrels, containers
and other closed receptacles; (G) health and safety of employees and other
persons; and (H) manufacture, processing, use, distribution, treatment, storage,
disposal, transportation or handling of pollutants, contaminants, toxic or
hazardous materials or substances or oil or petroleum products or solid or
hazardous waste. As used in this Section, the terms "release" and "environment"
shall have the meaning set forth in the federal Comprehensive Environmental
Response, Compensation and Liability Act of 1980 ("CERCLA"). Except as set forth
in Section 2.1(o) of the Company Disclosure Schedule, to the best knowledge of
the Company, neither the Company nor any third party has released any Materials
of Environmental Concern (as defined below) into the environment at any parcel
of real property or any facility formerly or currently owned, operated or
controlled by the Company. Except as set forth in Section 2.1(o) of the Company
Disclosure Schedule, the Company is not aware of any releases of Materials of
Environmental Concern at parcels or real property of facilities other than those
owned, operated or controlled by the Company that could reasonably be expected
to have an impact on the real property or facilities owned, operated or
controlled by the Company. For purposes of this Agreement, "Materials of
Environmental Concern" means any chemicals, pollutants or contaminants,
hazardous substances (as such term is defined under CERCLA), solid wastes and
hazardous wastes (as such terms are defined under the federal Resource
Conservation and Recovery Act), toxic materials, oil or petroleum and petroleum
products, or any other material subject to regulation under any Environmental
Law. The Company is not aware of any material environmental liability of the
solid and hazardous waste transporters and treatment, storage and disposal
facilities that have been utilized by the Company. Set forth in Section 2.1(o)
of the Company Disclosure Schedule is a list of all environmental reports,
investigations and audits of which the Company is aware (whether conducted by or
on behalf of the Company or a third party, and whether done at the initiative of
the company or directed by a Governmental Entity or other third party) issued or
conducted during the five years preceding the date hereof relating to premises
currently or previously owned or operated by the Company. Complete and accurate
copies of each such report, or the results of each such investigation or audit,
have been provided to counsel for BioShield.
(p) CONTRACTS; DEBT INSTRUMENTS. (i) Except as otherwise disclosed in
Section 2.1(p) of the Company Disclosure Schedule, neither the Company nor any
of its subsidiaries is a party to or subject to:
(A) any union contract, or any employment, consulting,
severance, termination, or indemnification agreement, contract or
arrangement providing for future payments, written or oral, with any
current or former officer or director which (1) exceeds $100,000 per
annum or (2) requires aggregate annual payments or total payments over
the life of such agreement, contract or arrangement to such current or
former officer, consultant, director or employee in excess of $100,000
or $250,000, respectively, and is not terminable by it or its
subsidiary on 30 days' notice or less without penalty or obligation to
make payments related to such termination;
{PAGE} 12
(B) any joint venture contract or similar arrangement or any
other agreement not in the ordinary course of business which has
involved or is expected to involve a sharing of revenues of $250,000
per annum or more with other persons;
(C) any lease for real or personal property in which the
amount of payments which the Company is required to make on an annual
basis exceeds $500,000;
(D) to the knowledge of the Company, any material agreement,
contract, policy, license, Permit, document, instrument, arrangement or
commitment involving revenues to the Company in excess of $500,000
which has not been terminated or performed in its entirety and not
renewed which may be, by its terms, terminated by reason of the
execution of this Agreement or the Tender Agreement or the consummation
of the Offer or the other transactions contemplated by this Agreement
or the Tender Agreement; or
(E) any agreement, contract, policy, license, Permit,
document, instrument, arrangement or commitment that provides for an
express non-competition covenant with any person or in any geographic
area and which limits in any material respect the ability of the
Company to compete in its current business lines.
(ii) All contracts, policies, agreements, leases, licenses,
Permits, documents, instruments, arrangements and other commitments listed in
Section 2.1(p) of the Company Disclosure Schedule or otherwise disclosed in the
Company SEC Documents are valid and binding agreements of the Company or a
subsidiary of the Company and are in full force and effect, and neither the
Company, any of its subsidiaries nor, to the knowledge of the Company, any other
party thereto, is in default in any material respect under the terms of any such
contract, plan, arrangement, agreement, lease, license, Permit, instrument or
other commitment.
(iii) Neither the Company nor any subsidiary of the Company is
in default in any material respect under the terms of any exclusive license or
distribution agreement or arrangement that, by its terms, provides for payments
to the Company or any of its subsidiaries of $500,000 or more per annum, or any
other material license or distribution agreement or arrangement. To the
knowledge of the Company, none of the parties to any of the contracts identified
in Section 2.1(p) of the Company Disclosure Schedule or otherwise disclosed in
the Company SEC Documents has terminated, or materially reduced the amount of
its business with the Company or any of its subsidiaries in the future.
(iv) Set forth in Section 2.1(p) of the Company Disclosure
Schedule is (A) a list of all loan or credit agreements, notes, bonds,
mortgages, indentures and other agreements and instruments pursuant to which any
indebtedness of the Company or any of its subsidiaries in an aggregate principal
amount in excess of $500,000 is outstanding or may be incurred and (B) the
respective principal amounts currently outstanding thereunder. For purposes of
this Section 2.1(p), "Indebtedness" shall mean, with respect to any person,
without duplication, (A) all obligations of such person for borrowed money, or
with respect to deposits or advances of any kind to such person, (B) all
obligations of such person evidenced by bonds, debentures, notes or similar
instruments, (C) all obligations of such person upon which interest charges are
customarily paid, (D) all obligations of such person under conditional sale or
other title retention agreements relating to property purchased by such person,
(E) all obligations of such person issued or assumed as the deferred purchase
price of property or services (excluding obligations of such person to creditors
for raw materials, inventory, services and supplies incurred in the ordinary
course of such person's business), (F) all capitalized lease obligations of such
person, (G) all obligations of others secured by any Lien on property or assets
owned or acquired by such person, whether or not the obligations secured thereby
have been assumed, (H) all obligations of such person under interest rate or
currency swap transactions (valued at the termination value thereof), (I) all
letters of credit issued for the
{PAGE} 13
account of such person (excluding letters of credit issued for the benefit of
suppliers to support accounts payable to suppliers incurred in the ordinary
course of business), (J) all obligations of such person to purchase securities
(or other property) which arises out of or in connection with the sale of the
same or substantially similar securities or property, and (K) all guarantees and
arrangements having the economic effect of a guarantee of such person of any
indebtedness of any other person.
(q) TITLE TO PROPERTIES. (i) Each of the Company and its subsidiaries
has good and marketable title to, or valid leasehold interests in, all its
properties and assets, free and clear of all Liens, except for defects in title,
easements, restrictive covenants and similar encumbrances or impediments that,
in the aggregate, do not and could not reasonably be expected to have a Company
Material Adverse Effect.
(ii) Each of the Company and its subsidiaries has complied in
all material respects with the terms of all leases to which it is a party and
under which it is in occupancy, and all such leases are in full force and
effect. Each of the Company and each of its subsidiaries enjoys peaceful and
undisturbed possession under all such leases.
(r) [DELIBERATELY OMITTED.]
(s) INTERESTS OF OFFICERS AND DIRECTORS. Except as described in the
Company SEC Documents or as set forth in Section 2.1(s) of the Company
Disclosure Schedule, none of the Company's officers or directors has any
material direct or indirect interest in any material property, real or personal,
tangible or intangible, including inventions, patents, copyrights, trademarks,
trade names, trade secrets or know-how, used in or pertaining to the business of
the Company or that of its subsidiaries, or any supplier, distributor or
customer of the Company or any of its subsidiaries, except for the normal rights
of a stockholder and rights under existing employee benefit plans.
(t) INTELLECTUAL PROPERTY. (i) For purposes of this Section 2.1(t),
"Intellectual Property" shall mean all software, patents, trademarks, trade
names, service marks, and domain names and registered copyrights and material
non-registered copyrights used by the Company or any subsidiary of the Company
in connection with the conduct of the Company's business, and all registrations
of or applications for registration of any of the foregoing, including any
additions thereto or extensions, continuations, renewals or divisions thereof,
together with all trade dress, trade secrets, processes, formulae, designs,
know-how and other intellectual property rights that are so used. BioShield has
heretofore been furnished with a true and correct summary of each U.S. and
foreign registration or application for U.S. and foreign registration of
patents, trademarks and tradenames which is registered with, or in respect of
which any application for registration has been filed with, any Governmental
entity. All such registrations and applications are valid and subsisting, in
full force and effect, and have not been cancelled, expired or abandoned (except
as otherwise noted in such reports). The Company is listed in the records of the
appropriate Governmental Entity or foreign government equivalent entity as the
sole owner of record for each such application and registration.
(ii) The Intellectual Property includes all of the
intellectual property rights owned, licensed, or used by the Company and its
subsidiaries that are reasonably necessary to conduct the Company's business as
it is now conducted. Except as specified in Section 2.1(t) of the Company
Disclosure Schedule, (A) the Company, directly or through its subsidiaries, has
good, marketable and exclusive title to, and the valid power and right to use,
the Intellectual Property owned by the Company or its subsidiaries free and
clear of all Liens and (B) no person or entity other than the Company and its
subsidiaries has any right or interest of any kind or nature in or with respect
to the Intellectual Property or any portion thereof or any rights to use, market
or exploit the Intellectual Property or any portion thereof other than pursuant
to agreements entered into in the ordinary course of business.
{PAGE} 14
(iii) To the extent set forth in Section 2.1(f) of the Company
Disclosure Schedule, the Company and its subsidiaries take reasonable measures
to protect the confidentiality of its material trade secrets, know-how or other
confidential information, including by generally requiring independent sales
representatives having access thereto to execute written non-disclosure
agreements that adequately protect the Company's and its subsidiaries'
proprietary interests in and to such trade secrets, know-how and other
confidential information.
(u) NO INFRINGEMENT. (i) Except as specified in Section 2.1(u)
of the Company Disclosure Schedule, neither the existence nor the sale, license,
lease, transfer, use, reproduction, distribution, modification or other
exploitation by the Company or any subsidiary of the Company of any Intellectual
Property, as Intellectual Property, as the case may be, is or was, or is
currently contemplated to be, sold, licensed, leased, transferred, used or
otherwise exploited by such persons, does, did or will (i) infringe on any
patent, trademark, copyright or other right of any person, (ii) constitute a
misuse or misappropriation of any trade secret, know-how, process, proprietary
information or other right of any other person, or (iii) entitle any other
person to any interest therein, or right to compensation from the Company, any
subsidiary of the Company or any of their respective successors or assigns, by
reason thereof (it being understood and agreed that, insofar as the foregoing
representation and warranty relates to Intellectual Property that is licensed to
the Company or any subsidiary of the Company by any third party, or as it
relates to patents and trademarks, such representation and warranty is made only
to the Company's knowledge). Excep
278484
|
Arrow-Magnolia
As referenced in this Acquisition Agreement:
Arrow-Magnolia – PAGE} 1
ACQUISITION AGREEMENT
Acquisition Agreement dated as of July 7, 2000, by and between
BioShield Technologies, Inc., a Georgia corporation ("BioShield") and
Arrow-Magnolia International, Inc., a Texas corporation (the "Company").
INTRODUCTION
BioShield has offered to acquire up to 85% of the issued and
outstanding shares
_____________
Arrow-Magnolia – 310
1000 Abernathy Road, NE
Atlanta, Georgia 30028
Attention: Raymond L. Moss, Esq.
Facsimile: (770) 481-7210
(b) if to the Company, to:
Arrow-Magnolia International, Inc.
2646 Rodney Lane
Dallas, Texas 75229
Attention: Morris Shwiff
Facsimile: (972) 484-2896
with a copy to (which shall not
_____________
ARROW-MAGNOLIA – be
signed by their respective officers thereunto duly authorized, all as of the
date first written above.
BIOSHIELD TECHNOLOGIES, INC.
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
ARROW-MAGNOLIA INTERNATIONAL, INC.
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
{PAGE} 30
ANNEX I
CONDITIONS TO THE OFFER
Notwithstanding any other provision of the Offer, subject to
_____________
dt 202198
;
| BioShield Technologies, Inc.
|
Preview
Full Doc
| 2002 |
Acquisition Agreement
Acquisition Agreement (304K)
Doc #353208: Click preview link for longer preview.
ACQUISITION AGREEMENT
AMONG
ALCOA INC.,
THE FAIRCHILD CORPORATION,
FAIRCHILD HOLDING CORP.
AND
SHEEPDOG, INC.
Dated as of July 16, 2002
________________________________________________________________________________
{PAGE}
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS.........................................................2
SECTION 1.1 "Actual Transferred Subsidiary Debt"....................2
SECTION 1.2 "Advisor"...............................................2
SECTION 1.3 "Affiliates"............................................2
SECTION 1.4 "After Tax Amount"......................................2
SECTION 1.5 "Agreement".............................................2
SECTION 1.6 "Airbus"................................................2
SECTION 1.7 "Allocation"............................................2
SECTION 1.8 "Ancillary Agreements"..................................3
SECTION 1.9 "Assigned Receivables"..................................3
SECTION 1.10 "Assumed Fastener Business Liabilities".................3
SECTION 1.11 "Authorizations"........................................3
SECTION 1.12 "Base Claim"............................................4
SECTION 1.13 "Bill of Sale"..........................................4
SECTION 1.14 "Boeing"................................................4
SECTION 1.15 "business day"..........................................4
SECTION 1.16 "Buyer".................................................4
SECTION 1.17 "Buyer DB Plans"........................................4
SECTION 1.18 "Buyer Closing Receivables Notice"......................4
SECTION 1.19 "Buyer DC Plans"........................................4
SECTION 1.20 "Buyer Indemnified Parties".............................4
SECTION 1.21 "CERCLA"................................................4
SECTION 1.22 "Class A Common Stock"..................................4
SECTION 1.23 "Class B Common Stock"..................................4
SECTION 1.24 "Closing"...............................................4
SECTION 1.25 "Closing Date"..........................................4
SECTION 1.26 "Closing Date Balance Sheet"............................5
SECTION 1.27 "Code"..................................................5
SECTION 1.28 "Commercial Aircraft"...................................5
SECTION 1.29 "Confidentiality Agreement".............................5
SECTION 1.30 "Consideration".........................................5
SECTION 1.31 "Covenant Period".......................................5
SECTION 1.32 "CPR"...................................................5
SECTION 1.33 "Damages"...............................................5
SECTION 1.34 "Debt Tender Offer".....................................5
SECTION 1.35 "Department of Justice".................................5
SECTION 1.36 "DGCL"..................................................6
SECTION 1.37 "Direct Claim"..........................................6
SECTION 1.38 "Discontinued Operations"...............................6
SECTION 1.39 "Dispute"...............................................6
SECTION 1.40 "Draft Schedule 2.9"....................................6
SECTION 1.41 "Earn-Out"..............................................6
SECTION 1.42 "Effective Time"........................................6
SECTION 1.43 "Environmental Action"..................................6
SECTION 1.44 "Environmental Contamination"...........................6
SECTION 1.45 "Environmental Claim"...................................6
SECTION 1.46 "Environmental Law".....................................6
SECTION 1.47 "Environmental Permits".................................6
SECTION 1.48 "ERISA".................................................6
SECTION 1.49 "ERISA Affiliate".......................................6
SECTION 1.50 "Escrow Agreement"......................................6
SECTION 1.51 "Escrow Amount".........................................7
SECTION 1.52 "Estimated Transferred Fastener Subsidiary Debt"........7
SECTION 1.53 "Exchange Act"..........................................7
SECTION 1.54 "Excluded Assets".......................................7
SECTION 1.55 "Excluded Fastener Business Liabilities"................8
SECTION 1.56 "Fastener Business".....................................8
SECTION 1.57 "Fastener Business Acquisition Proposal"................8
SECTION 1.58 "Fastener Business Assets"..............................8
SECTION 1.59 "Fastener Business Bank Accounts".......................9
SECTION 1.60 "Fastener Business Books and Records"...................9
SECTION 1.61 "Fastener Business Contracts"...........................9
SECTION 1.62 "Fastener Business Employees"...........................9
SECTION 1.63 "Fastener Business Financial Statements"................9
SECTION 1.64 "Fastener Business Intellectual Property"...............9
SECTION 1.65 "Fastener Business Intellectual Property Licenses".....10
SECTION 1.66 "Fastener Business Inventory"..........................10
SECTION 1.67 "Fastener Business Leases".............................10
SECTION 1.68 "Fastener Business Product Liability Insurance"........11
SECTION 1.69 "Fastener Business Real Properties"....................11
SECTION 1.70 "Fastener Environmental Condition".....................11
SECTION 1.71 "Fastener Environmental Liability".....................11
SECTION 1.72 "Final Allocation".....................................11
SECTION 1.73 "FTC"..................................................11
SECTION 1.74 "Fullerton Property"...................................11
SECTION 1.75 "GAAP".................................................11
SECTION 1.76 "Government"...........................................11
SECTION 1.77 "Greenslet Report".....................................11
SECTION 1.78 "Hazardous Materials"..................................11
SECTION 1.79 "HSR Act"..............................................11
SECTION 1.80 "Indemnifiable Losses".................................12
SECTION 1.81 "Indemnifying Party"...................................12
SECTION 1.82 "Indemnitee"...........................................12
SECTION 1.83 "Indemnity Payment"....................................12
SECTION 1.84 "Independent Accountants"..............................12
SECTION 1.85 "Intercompany Accounts"................................12
SECTION 1.86 "IRS"..................................................12
SECTION 1.87 "best knowledge of the Sellers"........................12
SECTION 1.88 "Law"..................................................12
SECTION 1.89 "Licenses and Permits".................................12
SECTION 1.90 "Lien".................................................12
SECTION 1.91 "March Pro Forma Balance Sheet"........................12
SECTION 1.92 "Material Adverse Effect"..............................12
SECTION 1.93 "Net Working Capital"..................................13
SECTION 1.94 "Newco California".....................................13
SECTION 1.95 "Noncompetition Agreement".............................13
353208
|
ALCOA
As referenced in this Acquisition Agreement:
ALCOA INC – {DOCUMENT}
{TYPE}EX-2
{SEQUENCE}3
{FILENAME}exh21.txt
{DESCRIPTION}ACQUISITION AGREEMENT
{TEXT}
________________________________________________________________________________
ACQUISITION AGREEMENT
AMONG
ALCOA INC .,
THE FAIRCHILD CORPORATION,
FAIRCHILD HOLDING CORP.
AND
SHEEPDOG, INC.
Dated as of July 16, 2002
________________________________________________________________________________
{PAGE}
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS.........................................................2
SECTION 1.1 "Actual
_____________
Alcoa Inc – A-1
Exhibit B Undertaking and Indemnity Agreement...................B-1
Exhibit C Escrow Agreement......................................C-1
{PAGE}
ACQUISITION AGREEMENT
ACQUISITION AGREEMENT, dated as of July 16, 2002 (the "Agreement"),
among Alcoa Inc ., a Pennsylvania corporation (the "Buyer"), The Fairchild
Corporation, a Delaware corporation (the "Parent"), Fairchild Holding Corp., a
Delaware corporation and an indirect, wholly owned subsidiary of the Parent
("Fairchild
_____________
Alcoa Inc – Cahill Gordon & Reindel
80 Pine Street
New York, New York 10005
Telecopy: (212) 269-5420
Attention: James J. Clark, Esq.
Luis R. Penalver, Esq.
(b) if to the Buyer, to
Alcoa Inc .
390 Park Avenue
New York, New York 10022-4608
Telecopy: (212) 836-2809
Attention: General Counsel
with a copy to
Skadden, Arps, Slate, Meagher & Flom LLP
Four Times Square
_____________
ALCOA INC – IN WITNESS WHEREOF, the Buyer and each of the Sellers have caused this
Agreement to be signed by their respective duly authorized officers as of the
date first above written.
ALCOA INC .
By: /s/ Barbara Jeremiah
----------------------
Name: Barbara Jeremiah
Title: Executive Vice President
THE FAIRCHILD CORPORATION
By: /s/ Jeffrey Steiner
----------------------
Name: Jeffrey Steiner
Title: Chief Executive Officer
FAIRCHILD HOLDING CORP.
By: /
_____________
dt 750855
;
Fairchild
As referenced in this Acquisition Agreement:
FAIRCHILD HOLDING CORP. – {DOCUMENT}
{TYPE}EX-2
{SEQUENCE}3
{FILENAME}exh21.txt
{DESCRIPTION}ACQUISITION AGREEMENT
{TEXT}
________________________________________________________________________________
ACQUISITION AGREEMENT
AMONG
ALCOA INC.,
THE FAIRCHILD CORPORATION,
FAIRCHILD HOLDING CORP.
AND
SHEEPDOG, INC.
Dated as of July 16, 2002
________________________________________________________________________________
{PAGE}
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS.........................................................2
SECTION 1.1 "Actual Transferred Subsidiary Debt"....................2
SECTION 1.
_____________
Fairchild Holding Corp. – 1
{PAGE}
ACQUISITION AGREEMENT
ACQUISITION AGREEMENT, dated as of July 16, 2002 (the "Agreement"),
among Alcoa Inc., a Pennsylvania corporation (the "Buyer"), The Fairchild
Corporation, a Delaware corporation (the "Parent"), Fairchild Holding Corp. , a
Delaware corporation and an indirect, wholly owned subsidiary of the Parent
("Fairchild Holding"), and Sheepdog, Inc., a Delaware corporation and an
indirect, wholly owned subsidiary of the Parent ("
_____________
FAIRCHILD HOLDING CORP. – first above written.
ALCOA INC.
By: /s/ Barbara Jeremiah
----------------------
Name: Barbara Jeremiah
Title: Executive Vice President
THE FAIRCHILD CORPORATION
By: /s/ Jeffrey Steiner
----------------------
Name: Jeffrey Steiner
Title: Chief Executive Officer
FAIRCHILD HOLDING CORP.
By: /s/ Eric Steiner
---------------------
Name: Eric Steiner
Title: President
SHEEPDOG, INC.
By: /s/ Donald E. Miller
---------------------
Name: Donald E. Miller
Title: Vice President
FAIRCHILD DATA CORP.
By: /s/ John
_____________
dt 753099
;
|
Sheepdog
As referenced in this Acquisition Agreement:
SHEEPDOG, INC – 2
{SEQUENCE}3
{FILENAME}exh21.txt
{DESCRIPTION}ACQUISITION AGREEMENT
{TEXT}
________________________________________________________________________________
ACQUISITION AGREEMENT
AMONG
ALCOA INC.,
THE FAIRCHILD CORPORATION,
FAIRCHILD HOLDING CORP.
AND
SHEEPDOG, INC .
Dated as of July 16, 2002
________________________________________________________________________________
{PAGE}
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS.........................................................2
SECTION 1.1 "Actual Transferred Subsidiary
_____________
Sheepdog, Inc – a Delaware corporation (the "Parent"), Fairchild Holding Corp., a
Delaware corporation and an indirect, wholly owned subsidiary of the Parent
("Fairchild Holding"), and Sheepdog, Inc ., a Delaware corporation and an
indirect, wholly owned subsidiary of the Parent ("SDI" and, together with the
Parent, Fairchild Holding and the
_____________
SHEEPDOG, INC – By: /s/ Jeffrey Steiner
----------------------
Name: Jeffrey Steiner
Title: Chief Executive Officer
FAIRCHILD HOLDING CORP.
By: /s/ Eric Steiner
---------------------
Name: Eric Steiner
Title: President
SHEEPDOG, INC .
By: /s/ Donald E. Miller
---------------------
Name: Donald E. Miller
Title: Vice President
FAIRCHILD DATA CORP.
By: /s/ John Flynn
---------------------
Name: John Flynn
_____________
dt 721261
;
Salomon
As referenced in this Acquisition Agreement:
Salomon Smith Barney Inc – 5 Financing. The Buyer will have sufficient financial resources
available to pay the Consideration at the Closing Date and the Earn-Out when
due.
SECTION 4.6 Brokers. Except for Salomon Smith Barney Inc ., no broker,
finder or investment banker is entitled to any brokerage, finder's or other fee
or commission in connection with the transactions contemplated by this
Agreement. The Buyer
_____________
Salomon
Smith Barney Inc – to any brokerage, finder's or other fee
or commission in connection with the transactions contemplated by this
Agreement. The Buyer is solely responsible for all fees and expenses of Salomon
Smith Barney Inc . payable in connection with the transactions contemplated in
this Agreement.
ARTICLE V
COVENANTS OF THE PARTIES
SECTION 5.1 Conduct of Business of the Sellers. Except as otherwise
contemplated
_____________
dt 728624
;
More... |
Preview
Full Doc
| 2002 |
Acquisition Agreement
Acquisition Agreement (368K)
Doc #353222: Click preview link for longer preview.
ACQUISITION AGREEMENT
AMONG
ALCOA INC.,
THE FAIRCHILD CORPORATION,
FAIRCHILD HOLDING CORP.
AND
SHEEPDOG, INC.
Dated as of July 16, 2002
--------------------------------------------------------------------------------
{PAGE}
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS.........................................................2
SECTION 1.1 "Actual Transferred Subsidiary Debt"....................2
SECTION 1.2 "Advisor"...............................................2
SECTION 1.3 "Affiliates"............................................2
SECTION 1.4 "After Tax Amount"......................................2
SECTION 1.5 "Agreement".............................................2
SECTION 1.6 "Airbus"................................................3
SECTION 1.7 "Allocation"............................................3
SECTION 1.8 "Ancillary Agreements"..................................3
SECTION 1.9 "Assigned Receivables"..................................3
SECTION 1.10 "Assumed Fastener Business Liabilities".................3
SECTION 1.11 "Authorizations"........................................4
SECTION 1.12 "Base Claim"............................................4
SECTION 1.13 "Bill of Sale"..........................................4
SECTION 1.14 "Boeing"................................................4
SECTION 1.15 "business day"..........................................4
SECTION 1.16 "Buyer" ................................................4
SECTION 1.17 "Buyer DB Plans"........................................4
SECTION 1.18 "Buyer Closing Receivables Notice"......................4
SECTION 1.19 "Buyer DC Plans"........................................4
SECTION 1.20 "Buyer Indemnified Parties".............................5
SECTION 1.21 "CERCLA"................................................5
SECTION 1.22 "Class A Common Stock"..................................5
SECTION 1.23 "Class B Common Stock"..................................5
SECTION 1.24 "Closing"...............................................5
SECTION 1.25 "Closing Date"..........................................5
SECTION 1.26 "Closing Date Balance Sheet"............................5
SECTION 1.27 "Code" .................................................5
SECTION 1.28 "Commercial Aircraft"...................................6
SECTION 1.29 "Confidentiality Agreement".............................6
SECTION 1.30 "Consideration".........................................6
SECTION 1.31 "Covenant Period".......................................6
SECTION 1.32 "CPR". .................................................6
SECTION 1.33 "Damages"...............................................6
SECTION 1.34 "Debt Tender Offer".....................................6
SECTION 1.35 "Department of Justice".................................6
SECTION 1.36 "DGCL" .................................................6
SECTION 1.37 "Direct Claim"..........................................7
SECTION 1.38 "Discontinued Operations"...............................7
SECTION 1.39 "Dispute"...............................................7
SECTION 1.40 "Draft Schedule 2.9"....................................7
SECTION 1.41 "Earn-Out"..............................................7
i
{PAGE}
SECTION 1.42 "Effective Time"........................................7
SECTION 1.43 "Environmental Action"..................................7
SECTION 1.44 "Environmental Contamination"...........................7
SECTION 1.45 "Environmental Claim"...................................7
SECTION 1.46 "Environmental Law".....................................7
SECTION 1.47 "Environmental Permits".................................7
SECTION 1.48 "ERISA" ................................................8
SECTION 1.49 "ERISA Affiliate".......................................8
SECTION 1.50 "Escrow Agreement"......................................8
SECTION 1.51 "Escrow Amount".........................................8
SECTION 1.52 "Estimated Transferred Fastener Subsidiary Debt"........8
SECTION 1.53 "Exchange Act"..........................................8
SECTION 1.54 "Excluded Assets".......................................8
SECTION 1.55 "Excluded Fastener Business Liabilities"................9
SECTION 1.56 "Fastener Business".....................................9
SECTION 1.57 "Fastener Business Acquisition Proposal"................9
SECTION 1.58 "Fastener Business Assets"..............................9
SECTION 1.59 "Fastener Business Bank Accounts"......................10
SECTION 1.60 "Fastener Business Books and Records"..................10
SECTION 1.61 "Fastener Business Contracts"..........................10
SECTION 1.62 "Fastener Business Employees"..........................11
SECTION 1.63 "Fastener Business Financial Statements"...............11
SECTION 1.64 "Fastener Business Intellectual Property"..............11
SECTION 1.65 "Fastener Business Intellectual Property Licenses".....12
SECTION 1.66 "Fastener Business Inventory"..........................12
SECTION 1.67 "Fastener Business Leases".............................12
SECTION 1.68 "Fastener Business Product Liability Insurance"........12
SECTION 1.69 "Fastener Business Real Properties"....................12
SECTION 1.70 "Fastener Environmental Condition".....................12
SECTION 1.71 "Fastener Environmental Liability".....................13
SECTION 1.72 "Final Allocation".....................................13
SECTION 1.73 "FTC" .................................................13
SECTION 1.74 "Fullerton Property"...................................13
SECTION 1.75 "GAAP" ................................................13
SECTION 1.76 "Government"...........................................13
SECTION 1.77 "Greenslet Report".....................................13
SECTION 1.78 "Hazardous Materials"..................................13
SECTION 1.79 "HSR Act"..............................................13
SECTION 1.80 "Indemnifiable Losses".................................13
SECTION 1.81 "Indemnifying Party"...................................14
SECTION 1.82 "Indemnitee"...........................................14
SECTION 1.83 "Indemnity Payment"....................................14
SECTION 1.84 "Independent Accountants"..............................14
SECTION 1.85 "Intercompany Accounts"................................14
SECTION 1.86 "IRS" .................................................14
ii
353222
|
ALCOA
As referenced in this Acquisition Agreement:
ALCOA INC – {DOCUMENT}
{TYPE}EX-2.1
{SEQUENCE}3
{FILENAME}fairchildex21.txt
{DESCRIPTION}ACQUISITION AGREEMENT
{TEXT}
--------------------------------------------------------------------------------
ACQUISITION AGREEMENT
AMONG
ALCOA INC .,
THE FAIRCHILD CORPORATION,
FAIRCHILD HOLDING CORP.
AND
SHEEPDOG, INC.
Dated as of July 16, 2002
--------------------------------------------------------------------------------
{PAGE}
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS.........................................................2
SECTION 1.1 "Actual Transferred
_____________
Alcoa Inc – 1
Exhibit B Undertaking and Indemnity Agreement....................B-1
Exhibit C Escrow Agreement.......................................C-1
vii
{PAGE}
ACQUISITION AGREEMENT
ACQUISITION AGREEMENT, dated as of July 16, 2002 (the "Agreement"), among
Alcoa Inc ., a Pennsylvania corporation (the "Buyer"), The Fairchild Corporation,
a Delaware corporation (the "Parent"), Fairchild Holding Corp., a Delaware
corporation and an indirect, wholly owned subsidiary of the Parent ("Fairchild
_____________
Alcoa Inc – Cahill Gordon & Reindel
80 Pine Street
New York, New York 10005
Telecopy: (212) 269-5420
Attention: James J. Clark, Esq.
Luis R. Penalver, Esq.
(b) if to the Buyer, to
Alcoa Inc .
390 Park Avenue
New York, New York 10022-4608
Telecopy: (212) 836-2809
Attention: General Counsel
with a copy to
Skadden, Arps, Slate, Meagher & Flom LLP
Four Times Square
_____________
ALCOA INC – IN WITNESS WHEREOF, the Buyer and each of the Sellers have caused this
Agreement to be signed by their respective duly authorized officers as of the
date first above written.
ALCOA INC .
By: /s/ Barbara Jeremiah
-----------------------------------------------
Name: Barbara Jeremiah
Title: Executive Vice President
THE FAIRCHILD CORPORATION
By: /s/ Jeffrey Steiner
----------------------------------------------
Name: Jeffrey Steiner
Title: Chief Executive Officer
FAIRCHILD HOLDING CORP.
By: /
_____________
Alcoa Inc – and valuable
consideration (receipt of which is hereby acknowledged), pursuant to and in
accordance with the terms of the Acquisition Agreement, dated as of July 16,
2002 (the "Agreement"), between Alcoa Inc ., a Pennsylvania corporation (the
"Buyer"), the Parent, Fairchild Holding and SDI, do hereby sell, convey, assign,
transfer and deliver unto the Buyer and its designated subsidiaries under
Section 10.
_____________
dt 750859
;
Fairchild
As referenced in this Acquisition Agreement:
FAIRCHILD HOLDING CORP. – {DOCUMENT}
{TYPE}EX-2.1
{SEQUENCE}3
{FILENAME}fairchildex21.txt
{DESCRIPTION}ACQUISITION AGREEMENT
{TEXT}
--------------------------------------------------------------------------------
ACQUISITION AGREEMENT
AMONG
ALCOA INC.,
THE FAIRCHILD CORPORATION,
FAIRCHILD HOLDING CORP.
AND
SHEEPDOG, INC.
Dated as of July 16, 2002
--------------------------------------------------------------------------------
{PAGE}
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS.........................................................2
SECTION 1.1 "Actual Transferred Subsidiary Debt"....................2
SECTION 1.2 "
_____________
Fairchild Holding Corp. – vii
{PAGE}
ACQUISITION AGREEMENT
ACQUISITION AGREEMENT, dated as of July 16, 2002 (the "Agreement"), among
Alcoa Inc., a Pennsylvania corporation (the "Buyer"), The Fairchild Corporation,
a Delaware corporation (the "Parent"), Fairchild Holding Corp. , a Delaware
corporation and an indirect, wholly owned subsidiary of the Parent ("Fairchild
Holding"), and Sheepdog, Inc., a Delaware corporation and an indirect, wholly
owned subsidiary of the Parent ("
_____________
FAIRCHILD HOLDING CORP. – first above written.
ALCOA INC.
By: /s/ Barbara Jeremiah
-----------------------------------------------
Name: Barbara Jeremiah
Title: Executive Vice President
THE FAIRCHILD CORPORATION
By: /s/ Jeffrey Steiner
----------------------------------------------
Name: Jeffrey Steiner
Title: Chief Executive Officer
FAIRCHILD HOLDING CORP.
By: /s/ Eric Steiner
----------------------------------------------
Name: Eric Steiner
Title: President
SHEEPDOG, INC.
By: /s/ Donald E. Miller
----------------------------------------------
Name: Donald E. Miller
Title: Vice President
FAIRCHILD DATA CORP.
By: /s/ John
_____________
FAIRCHILD HOLDING CORP. – Flynn
Title: Director
98
{PAGE}
Exhibit A
CONVEYANCE, ASSIGNMENT, TRANSFER AND BILL OF SALE
RELATING TO CERTAIN PERSONAL PROPERTY
AND CAPITAL STOCK AND MEMBERSHIP INTERESTS OWNED BY
THE FAIRCHILD CORPORATION, FAIRCHILD HOLDING CORP.
AND SHEEPDOG, INC.
KNOW ALL PERSONS BY THESE PRESENT that The Fairchild Corporation, a
Delaware corporation (the "Parent"), Fairchild Holding Corp., a Delaware
corporation and an indirect, wholly owned
_____________
Fairchild Holding Corp. – STOCK AND MEMBERSHIP INTERESTS OWNED BY
THE FAIRCHILD CORPORATION, FAIRCHILD HOLDING CORP.
AND SHEEPDOG, INC.
KNOW ALL PERSONS BY THESE PRESENT that The Fairchild Corporation, a
Delaware corporation (the "Parent"), Fairchild Holding Corp. , a Delaware
corporation and an indirect, wholly owned subsidiary of the Parent ("Fairchild
Holding"), Sheepdog, Inc., a Delaware corporation and a direct, wholly owned
subsidiary of the Parent ("SDI",
_____________
dt 753104
;
|
Sheepdog
As referenced in this Acquisition Agreement:
SHEEPDOG, INC – 2.1
{SEQUENCE}3
{FILENAME}fairchildex21.txt
{DESCRIPTION}ACQUISITION AGREEMENT
{TEXT}
--------------------------------------------------------------------------------
ACQUISITION AGREEMENT
AMONG
ALCOA INC.,
THE FAIRCHILD CORPORATION,
FAIRCHILD HOLDING CORP.
AND
SHEEPDOG, INC .
Dated as of July 16, 2002
--------------------------------------------------------------------------------
{PAGE}
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS.........................................................2
SECTION 1.1 "Actual Transferred Subsidiary Debt"....................
_____________
Sheepdog, Inc – a Delaware corporation (the "Parent"), Fairchild Holding Corp., a Delaware
corporation and an indirect, wholly owned subsidiary of the Parent ("Fairchild
Holding"), and Sheepdog, Inc ., a Delaware corporation and an indirect, wholly
owned subsidiary of the Parent ("SDI" and, together with the Parent, Fairchild
Holding and the
_____________
SHEEPDOG, INC – By: /s/ Jeffrey Steiner
----------------------------------------------
Name: Jeffrey Steiner
Title: Chief Executive Officer
FAIRCHILD HOLDING CORP.
By: /s/ Eric Steiner
----------------------------------------------
Name: Eric Steiner
Title: President
SHEEPDOG, INC .
By: /s/ Donald E. Miller
----------------------------------------------
Name: Donald E. Miller
Title: Vice President
FAIRCHILD DATA CORP.
By: /s/ John Flynn
------------------------------------------------
Name: John Flynn
_____________
SHEEPDOG, INC – BILL OF SALE
RELATING TO CERTAIN PERSONAL PROPERTY
AND CAPITAL STOCK AND MEMBERSHIP INTERESTS OWNED BY
THE FAIRCHILD CORPORATION, FAIRCHILD HOLDING CORP.
AND SHEEPDOG, INC .
KNOW ALL PERSONS BY THESE PRESENT that The Fairchild Corporation, a
Delaware corporation (the "Parent"), Fairchild Holding Corp., a Delaware
corporation and
_____________
Sheepdog, Inc – Corporation, a
Delaware corporation (the "Parent"), Fairchild Holding Corp., a Delaware
corporation and an indirect, wholly owned subsidiary of the Parent ("Fairchild
Holding"), Sheepdog, Inc ., a Delaware corporation and a direct, wholly owned
subsidiary of the Parent ("SDI", and the subsidiaries of the Parent set forth on
_____________
dt 721265
;
Salomon
As referenced in this Acquisition Agreement:
Salomon Smith Barney Inc – The Buyer will have sufficient financial resources
available to pay the Consideration at the Closing Date and the Earn-Out when
due.
50
{PAGE}
SECTION 4.6 Brokers. Except for Salomon Smith Barney Inc ., no broker,
finder or investment banker is entitled to any brokerage, finder's or other fee
or commission in connection with the transactions contemplated by this
Agreement. The Buyer
_____________
Salomon
Smith Barney Inc – to any brokerage, finder's or other fee
or commission in connection with the transactions contemplated by this
Agreement. The Buyer is solely responsible for all fees and expenses of Salomon
Smith Barney Inc . payable in connection with the transactions contemplated in
this Agreement.
ARTICLE V
COVENANTS OF THE PARTIES
SECTION 5.1 Conduct of Business of the Sellers. Except as otherwise
contemplated
_____________
dt 728629
;
More... |
Preview
Full Doc
| 2000 |
Acquisition Agreement
Acquisition Agreement (178K)
Doc #364490: Click preview link for longer preview.
ACQUISITION AGREEMENT
DATED
August 28, 2000
--------------------------------------------------------------------------------
OSLER, HOSKIN & HARCOURT LLP
-
WHITE & CASE LLP
{PAGE}
TABLE OF CONTENTS
Page
ARTICLE 1
INTERPRETATION....................................................... 1
Section 1.1 Definitions.......................................... 1
Section 1.2 Interpretation Not Affected by Headings, etc......... 6
Section 1.3 Currency............................................. 6
Section 1.4 Number, etc...........................................6
Section 1.5 Date For Any Action...................................6
Section 1.6 Entire Agreement......................................7
Section 1.7 Schedules.............................................7
Section 1.8 Accounting Matters....................................7
Section 1.9 Knowledge.............................................7
ARTICLE 2
THE AMALGAMATION......................................................7
Section 2.1 Implementation Steps by Repap.........................7
Section 2.2 Articles of Amalgamation..............................8
Section 2.3 Repap Circular........................................8
Section 2.4 Preparation of Filings, etc...........................8
ARTICLE 3
REPRESENTATIONS AND WARRANTIES........................................9
Section 3.1 Representations and Warranties of Repap...............9
Section 3.2 Representations and Warranties of UPM................23
Section 3.3 Survival.............................................25
ARTICLE 4
COVENANTS............................................................25
Section 4.1 Retention of Goodwill................................25
Section 4.2 Covenants of Repap...................................25
Section 4.3 Covenants of UPM.....................................29
Section 4.4 Treatment of Repap Stock Options.....................30
Section 4.5 Covenants Regarding Non-Solicitation.................30
Section 4.6 Notice by Repap of Superior Proposal Determination...32
Section 4.7 Access to Information................................33
Section 4.8 Closing Matters......................................33
Section 4.9 Indemnification......................................33
ARTICLE 5
CONDITIONS...........................................................34
Section 5.1 Mutual Conditions Precedent..........................34
Section 5.2 Additional Conditions Precedent to the
Obligations of UPM...................................35
Section 5.3 Additional Conditions Precedent to the
Obligations of Repap.................................36
Section 5.4 Notice and Cure Provisions...........................36
Section 5.5 Satisfaction of Conditions...........................37
ARTICLE 6
AMENDMENT AND TERMINATION............................................37
Section 6.1 Amendment............................................37
Section 6.2 [Intentionally Deleted]..............................38
Section 6.3 Termination..........................................38
Section 6.4 Break and Other Fees; Option.........................39
Section 6.5 Remedies.............................................39
ARTICLE 7
GENERAL..............................................................40
Section 7.1 Notices..............................................40
Section 7.2 Assignment...........................................41
Section 7.3 Binding Effect.......................................42
Section 7.4 Waiver and Modification..............................42
Section 7.5 Further Assurances...................................42
Section 7.6 Expenses.............................................42
Section 7.7 Consultation.........................................42
Section 7.8 Governing Laws.......................................43
Section 7.9 Time of Essence......................................43
Section 7.10 Counterparts.........................................43
SCHEDULE A - AMALGAMATION AGREEMENT
SCHEDULE B - SPECIAL RESOLUTION OF THE REPAP SHAREHOLDERS
SCHEDULE C - REGULATORY APPROVALS
SCHEDULE D - CONFIDENTIALITY PROVISIONS
SCHEDULE E - OPTION AGREEMENT
{PAGE}
ACQUISITION AGREEMENT
MEMORANDUM OF AGREEMENT made as of the 28th day of August, 2000
B E T W E E N :
UPM-KYMMENE CORPORATION,
a corporation existing under the laws of Finland
("UPM")
- and -
REPAP ENTERPRISES INC.,
a corporation existing under the laws of Canada
("Repap").
THIS AGREEMENT WITNESSES THAT in consideration of the respective covenants
and agreements herein contained, the parties hereto covenant and agree as
follows:
ARTICLE 1
Interpretation
Section 1.1 Definitions
In this Agreement, unless there is something in the subject matter or
context inconsistent therewith, the following terms shall have the following
meanings respectively:
"Acquireco" means 3796477 Canada Inc., a corporation existing under the
laws of Canada and a wholly-owned subsidiary of UPM;
"Acquisition Proposal" means any proposal or offer with respect to any
merger, amalgamation, arrangement, business combination, liquidation,
dissolution, recapitalization, take-over bid, tender offer, purchase of all
or any material assets of, or any purchase of more than 20% of the equity
(or rights thereto) of, or similar transactions involving, Repap or any
Repap Material Subsidiary, excluding the Amalgamation;
"affiliate" shall have the meaning ascribed thereto under the Securities
Act;
"Amalco" means the corporation continuing as a result of the Amalgamation;
"Amalco Special Shares" means the redeemable special shares of Amalco to be
issued on the Amalgamation and to be redeemed by Amalco on the Redemption
Date at the Redemption Price;
"Amalgamation" means an amalgamation of Repap and Acquireco under Section
181 of the CBCA on the terms and subject to the conditions set out in the
Amalgamation Agreement, subject to any amendments or variations thereto
made in accordance with Section 6.1;
"Amalgamation Agreement" means the amalgamation agreement providing for the
Amalgamation substantially in the form and content of Schedule A annexed
hereto and any amendments or variations thereto made in accordance with
Section 6.1;
"Amalgamation Resolution" means the special resolution of the Repap
Shareholders, to be substantially in the form and content of Schedule B
annexed hereto;
"ancillary documents" means the schedules hereto and any disclosure letters
364490
|
Nasdaq Stock Market Inc.
As referenced in this Acquisition Agreement:
Nasdaq Stock
Market, Inc – or other government, governmental or
public department, central bank, court, tribunal, arbitral body,
commission, board, bureau or agency, domestic or foreign, (b) self
regulatory organization or stock exchange including The Nasdaq Stock
Market, Inc . OTC Bulletin Board and The Toronto Stock Exchange, (c)
subdivision, agent, commission, board, or authority of any of the
foregoing, or (d) quasi-governmental or private body exercising any
_____________
dt 797915
;
|
Sullivan
As referenced in this Acquisition Agreement:
Sullivan & Cromwell
– with a copy to:
Stikeman Elliott
1155 Rene-Levesque Blvd. W.
40th Floor
Montreal, Quebec
H3B 3V2
Attention: Pierre Raymond
Facsimile No.: (514) 397-3222
and with a copy to:
Sullivan & Cromwell
125 Broad Street
New York, New York 10004
Attention: Andrew Soussloff
Facsimile No.: (212) 558-3588
or at such other address of which any party may, from time to
_____________
dt 773631
;
White & Case
As referenced in this Acquisition Agreement:
WHITE & CASE – {DOCUMENT}
{TYPE}EX-10.1
{SEQUENCE}3
{FILENAME}0003.txt
{DESCRIPTION}ACQUISITION AGREEMENT
{TEXT}
--------------------------------------------------------------------------------
ACQUISITION AGREEMENT
DATED
August 28, 2000
--------------------------------------------------------------------------------
OSLER, HOSKIN & HARCOURT LLP
-
WHITE & CASE LLP
{PAGE}
TABLE OF CONTENTS
Page
ARTICLE 1
INTERPRETATION....................................................... 1
Section 1.1 Definitions.......................................... 1
Section 1.2 Interpretation Not Affected by Headings, etc......... 6
Section 1.3 Currency............................................. 6
_____________
White & Case – to:
Osler, Hoskin & Harcourt LLP
P.O. Box 50
1 First Canadian Place
Toronto, Ontario
M5X 1B8
Attention: Dale Ponder
Facsimile No.: (416) 862-6666
and with a copy to:
White & Case LLP
1155 Avenue of the Americas
New York, New York 10036
Attention: Timothy B. Goodell
Facsimile No.: (212) 354-8113
(b) If to Repap at:
Repap Enterprises Inc.
300 Atlantic
_____________
dt 761829
|
Preview
Full Doc
| 2001 |
Acquisition Agreement [Amended and Restated]
Acquisition Agreement [Amended and Restated] (292K)
Doc #367046: Click preview link for longer preview.
AMENDED AND RESTATED
ACQUISITION AGREEMENT
BY AND AMONG
PURICO (IOM) LIMITED,
RF & SON INC.,
RFS US INC.
AND
RFS ECUSTA INC.
AS BUYERS
AND
P. H. GLATFELTER COMPANY
AND
MOLLANVICK, INC.
AS SELLERS
AUGUST 9, 2001
{PAGE} 2
EXECUTION COPY
TABLE OF CONTENTS
{TABLE}
{CAPTION}
Page
----
{S} {C}
ARTICLE I DEFINITIONS ............................................................................ 2
1.1. Defined Terms .................................................................. 2
ARTICLE II THE TRANSACTION .......................................................................12
2.1. Purchase and Sale ..............................................................12
2.2. Excluded Assets. ...............................................................15
2.3. Assumed Liabilities; Excluded Liabilities. .....................................16
2.4. The Closing. ...................................................................18
2.5. Purchase Price. ................................................................18
2.6. Purchase Price Adjustment ......................................................19
2.7. Escrow Account. ................................................................20
2.8. Consent of Third Parties; Further Assurances ...................................20
2.9. Shared Contracts. ..............................................................22
2.10. Customer Billing. ..............................................................22
ARTICLE III REPRESENTATIONS AND WARRANTIES OF SELLERS ............................................22
3.1. Organization and Authority .....................................................22
3.2. Authorization; Binding Obligation ..............................................23
3.3. No Violations. .................................................................23
3.4. Financial Statements. ..........................................................23
3.5. Absence of Changes .............................................................24
3.6. Assets. ........................................................................25
3.7. Personal Property. .............................................................25
3.8. Permits, Licenses ..............................................................25
3.9. Compliance with Laws and Litigation. ...........................................26
3.10. Employee Matters. ..............................................................26
3.11. Agreements .....................................................................32
3.12. Environmental Matters ..........................................................32
3.13. No Undisclosed Liabilities .....................................................34
3.14. Warranty Claims. ...............................................................35
3.15. Inventory; Purchased Assets. ...................................................35
3.16. Real Estate ....................................................................35
3.17. Ownership of Subsidiaries. .....................................................40
3.18. Tax Matters. ...................................................................40
3.19. Business Intellectual Property .................................................41
3.20. Books and Records ..............................................................43
3.21. Accounts .......................................................................43
3.22. Disclosure .....................................................................43
{/TABLE}
i
{PAGE} 3
{TABLE}
{S} {C}
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF BUYERS ...............................................43
4.1. Organization and Authority ......................................................44
4.2. Authorization; Binding Obligation ...............................................44
4.3. No Violations. ..................................................................44
4.4. Litigation. .....................................................................44
4.5. Financing .......................................................................45
ARTICLE V CERTAIN COVENANTS .......................................................................45
5.1. Information .....................................................................45
5.2. Ancillary Agreements. ...........................................................46
5.3. Tax Reporting and Allocation of Consideration. ..................................47
5.4. Tax Matters. ....................................................................47
5.5. Employees and Employee Benefits .................................................50
5.6. Affiliate Matters. ..............................................................58
5.7. Notice. .........................................................................58
5.8. Conduct of the Business .........................................................59
5.9. Covenant Not to Compete; Nonsolicitation. .......................................60
5.10. Material Consents ...............................................................61
5.11. Notice to Customers .............................................................61
5.12. Confidentiality .................................................................61
5.13. Estoppel Certificates. ..........................................................62
5.14. Title Policies ..................................................................62
5.15. Survey ..........................................................................63
5.16. Accounts Receivable and Related Claims ..........................................63
5.17. Real Property Compliance Certificate ............................................63
5.18. Ecusta Stock. ...................................................................64
5.19. Asbestos Removal ................................................................64
ARTICLE VI CLOSING ................................................................................64
6.1. Conditions Precedent to Each Party's Obligations. ...............................65
6.2. Conditions Precedent to Buyers' Obligations. ....................................65
6.3. Conditions Precedent to Sellers' Obligations ....................................67
6.4. Sellers' Closing Deliveries .....................................................68
6.5. Buyers' Closing Deliveries. .....................................................72
ARTICLE VII INDEMNIFICATION AND SURVIVAL ..........................................................73
7.1. Survival. .......................................................................73
7.2. Indemnification By Sellers ......................................................73
7.3. Limitations of Indemnification By Sellers .......................................73
7.4. No Reliance .....................................................................75
7.5. Indemnification by Buyers .......................................................75
7.6. General Indemnification Procedures ..............................................75
7.7. Insurance Recoveries From Third Parties. ........................................77
7.8. Sole Remedies ...................................................................77
ARTICLE VIII TERM AND TERMINATION .................................................................77
8.1. Exclusive Dealing. ..............................................................77
{/TABLE}
ii
{PAGE} 4
{TABLE}
{S} {C} {C}
8.2. Term. ...........................................................................78
8.3. Termination. ....................................................................78
8.4. Procedures and Effect of Termination. ...........................................79
ARTICLE IX MISCELLANEOUS ..........................................................................79
9.1. Notices .........................................................................79
9.2. Expenses ........................................................................81
9.3. Entire Agreement. ...............................................................81
9.4. Assignment; Binding Effect; Severability ........................................81
9.5. Governing Law ...................................................................81
9.6. Execution in Counterparts .......................................................82
9.7. Public Announcement. ............................................................82
9.8. No Third Party Beneficiaries ....................................................82
9.9. Headings ........................................................................82
9.10. Further Assurances ..............................................................82
9.11. Amendment and Waiver ............................................................82
{/TABLE}
EXHIBITS
1.1 Sharing Agreement
2.1(e) License and Cross-License Agreement
2.3(a) Assumption Agreement
2.7 Escrow Agreement
3.10(o) Form of 1992 LTIP Award Agreement
6.2(j) Supply and Service Agreement
6.2(k) Administrative Services Agreement
6.4(g) Bill of Sale
iii
{PAGE} 5
SCHEDULES
1.1-A Accounts Payable
1.1-B Business Products
1.1-C Legal Description of the Parking Lot
2.1 Permitted Encumbrances
2.1(c)(ii) Principal Equipment
2.1(c)(iii) Motor Vehicles
2.1(d)(i) Inventory
2.1(d)(iii) Contracts
2.1(d)(vi) Governmental Permits
2.1(d)(x) Miscellaneous Purchased Assets
2.2(d) Excluded Equipment
2.2(e) Excluded Contracts
2.2(f) Insurance Proceeds
2.3(a) Assumed Liabilities
2.3(b) Medical and Disability Plan and Workers' Compensation Claims
2.9 Shared Contracts
3.1 Organization of Sellers
3.3 Violations and Consents
3.4 Financial Statements and Accounting Principals
3.5 Absence of Changes
3.6 Title to Assets
3.7 Condition of Personal Property
3.8 Permits and Licenses
3.9 Compliance with Laws and Litigation
3.10(a) Agreements with Employees
3.10(b) Employee Benefit Plans
3.10(d) Benefit Plan Claims
3.10(f) Payments to Employees
3.10(g) Post-Retirement Benefits
3.10(h) Compliance with Employment Laws
3.10(i) Labor Disputes
3.10(l) Loss Report
3.10(o) Exception to 1992 LTIP Awards
3.10(p) Employment Agreements Not Terminable
3.10(r) Consultancy Contracts
3.11 Contracts
3.12(a) Environmental Permits and Compliance with Laws
3.12(b) Environmental Complaints
3.12(c) Environmental Notices
3.12(d) Hazardous Substances
3.12(e) CERCLA Sites
3.12(f) Released Hazardous Substances
3.12(g) Notice of Release of a Hazardous Substance
3.12(i) Environmental Assessments
iv
{PAGE} 6
3.13 Undisclosed Liabilities
3.14 Warranty Claims
3.15(a) Location of Inventory
3.16(a)(i) Owned Real Estate
3.16(a)(iii) Owned Real Estate Notices
3.16(b)(i) Leased Real Estate
3.16(b)(ii) Possession of Leased Real Estate
3.16(b)(iii) Leased Real Estate Zoning Notices
3.16(b)(iv) Brokerage Fees Relating to Leases
3.16(b)(v) Leased Real Estate Termination
3.16(c)(i) Space Leases
3.16(d) Rights of First Refusal
3.17 Organization of Subsidiaries
3.18 Tax Matters
3.19(a) Business Intellectual Property
3.19(b) Enforcement
3.19(c) Infringement
3.19(e) Intellectual Property
3.19(g) Computer Software Matters
3.21 Accounts Receivable
4.1 Organization of Buyers
5.5(a) Employees
5.5(f) Actuarial Assumptions
6.2(l) Employment Agreements
v
{PAGE} 7
AMENDED AND RESTATED ACQUISITION AGREEMENT
THIS AMENDED AND RESTATED ACQUISITION AGREEMENT (the
"Agreement") is dated as of August 9, 2001 by and among P. H. Glatfelter
Company, a Pennsylvania corporation ("Glatfelter"), and Mollanvick, Inc., a
Delaware corporation ("Mollanvick" and, together with Glatfelter, the "Sellers"
and each, individually, a "Seller"), and Purico (IOM) Limited, an Isle of Man
limited liability company ("Purico"), RF & Son Inc., a Delaware corporation
("RF"), RFS US Inc., a Delaware corporation ("RFS US"), and RFS Ecusta Inc., a
Delaware corporation ("RFS Ecusta" and, together with Purico, RF and RFS US, the
"Buyers" and each, individually, a "Buyer").
Background
A. Glatfelter is, among other things, engaged in the
manufacture and sale of tobacco papers, lightweight printing papers and other
specialty paper products through its Ecusta Division paper mill located in
Pisgah Forest near Asheville, North Carolina, U.S.A. (the "Ecusta Division") and
its wholly owned subsidiaries Ecusta Fibres Ltd., a Manitoba corporation
("Ecusta Canada"), and Ecusta Australia Pty. Limited, an Australian corporation
("Ecusta Australia" and, together with Ecusta Canada, the "Ecusta Subsidiaries")
(the "Business"), and Glatfelter has determined to sell the Business, including
the manufacturing and supply of cigarette papers, to Buyers.
B. Sellers and Buyers (other than RF) and Robert Fletcher &
Son Limited, a limited liability company organized under the laws of England,
entered into an Acquisition Agreement dated as of May 16, 2001 and now wish to
amend and restate that agreement and the disclosure schedules attached thereto
such that Sellers will transfer certain assets and liabilities of the Business
and all of the capital stock of the Ecusta Subsidiaries to Buyers and Buyers
will accept such assets and capital stock and assume such liabilities from
Sellers on the terms and conditions set forth herein. Sellers and Buyers are
simultaneously entering into a supply and service agreement, an intellectual
property agreement, an escrow agreement, a proceeds sharing agreement and other
ancillary agreements regarding certain actions relating to implementation of the
transactions contemplated hereby (the "Ancillary Agreements").
Terms
In consideration of the mutual representations, warranties,
covenants and agreements, and upon the terms and subject to the conditions
hereinafter set forth, the parties, intending to be legally bound, hereby agree
as follows:
{PAGE} 8
ARTICLE I
DEFINITIONS
1.1. Defined Terms. For the purposes of this Agreement, the following
words and phrases shall have the following meanings:
"Accounting Principles" shall have the meaning set forth in
Section 3.4.
"Accounts Payable" means all liabilities or obligations
outstanding as of the Effective Date that would be included in the net book
value of accounts payable related to the Ecusta Division that would be set forth
on a balance sheet of the Business as of the Effective Date prepared on a basis
consistent with the Accounting Principles, including those identified as of June
30, 2001 on Schedule 1.1-A and the Intercompany Payables, such accounts payable
to be recorded as current liabilities on the balance sheet of the Business as of
the Effective Date.
"Accounts Receivable" shall have the meaning set forth in
Section 2.1(d)(ii).
"Accrued Expenses" means all liabilities or obligations in
respect of the Business set forth on the Balance Sheet.
"Adjusted Transfer Amount" shall have the meaning set forth in
Section 5.5(f)(i).
"Administrative Services Agreement" shall have the meaning set
forth in Section 6.2(k).
"Affiliate" of a Person means any Person controlling,
controlled by, or under common control with, such Person. For purposes of this
definition, "control" means the power to direct the management and policies of a
Person, whether through the ownership of voting securities, by agreement or
otherwise.
"Agreement" shall have the meaning set forth in the
Introduction.
"Ancillary Agreements" shall have the meaning set forth in the
Introduction.
"Asbestos Removal Work" shall have the meaning set forth in
Section 5.19.
"Asset Acquisition Statement" shall have the meaning set forth
in Section 5.3.
"Assignment and Assumption of Leases" shall have the meaning
set forth in Section 6.4(h).
"Assumed Contracts" means the Contracts assumed by Buyer
pursuant to Section 2.1(d)(iii).
"Assumed Liabilities" shall have the meaning set forth in
Section 2.3(a).
2
{PAGE} 9
"Assumption Agreement" shall have the meaning set forth in
Section 2.3(a).
"Balance Sheet" shall mean the pro forma balance sheet as of
December 31, 2000 relating to the Business and attached hereto on Schedule 3.4.
"Beneficiary" means the person(s) or entity designated by an
employee, by operation of law or otherwise as the party entitled to
compensation, benefits, insurance coverage, payments, indemnification or any
other goods or services as a result of any liability, or claim under any Plans
or under any other employee benefit plan, program or policy.
"Bill of Sale" shall have the meaning set forth in Section
6.4(g).
"Break Fee" shall have the meaning set forth in Section
8.1(b).
"Business" shall have the meaning set forth in the
Introduction.
"Business Day" means a day which is not a Saturday, a Sunday
or a statutory or civic holiday in the Commonwealth of Pennsylvania.
"Business Employees" means all employees of the Business as of
the Closing Date, including those on Leaves of Absence or receiving workers'
compensation benefits, but excluding any employees of the Ecusta Subsidiaries
and Bob Wise, Bill Alverson and Mark Keller.
"Business Financial Statements" shall have the meaning set
forth in Section 3.4.
"Business Intellectual Property" means Intellectual Property
used or held for use primarily in connection with the Business.
"Business Products" means all products currently or proposed
by Sellers and the Ecusta Subsidiaries to be designed, developed, manufactured
or marketed by Sellers and the Ecusta Subsidiaries in connection with the
Business as of the Effective Date, including, without limitation, the products
set forth in Schedule 1.1-B.
"Business Records" shall have the meaning set forth in Section
2.1(d)(v).
"Buyers" shall have the meaning set forth in the Introduction.
"CERCLA" shall have the meaning set forth in Section 3.12(e).
"Claim Notice" shall have the meaning set forth in Section
7.6(a).
"Claim Response" shall have the meaning set forth in Section
7.6(a).
"Closing" means the closing of the transactions described in
Article VI.
3
{PAGE} 10
"Closing Date" means the date of the Closing as determined
pursuant to Section 2.4.
"Closing Inventory Amount" means the net book value of the
Inventory included in the Purchased Assets on the Effective Date.
"Closing Net Working Capital" shall have the meaning set forth
in Section 2.6(a).
"Closing Net Working Capital Statement" shall have the meaning
set forth in Section 2.6(a).
"Code" means the Internal Revenue Code of 1986, as amended.
"Contracts" shall have the meaning set forth in Section
2.1(d)(iii).
"Computer Software" means computer software including (to the
extent possessed by Glatfelter) source code, object code, firmware, operating
systems manuals, and specifications.
"Current Assets" shall mean any of the Purchased Assets which
are items of the type identified as current assets on the Balance Sheet.
"Current Liabilities" shall mean items of the type identified
as current liabilities on the Balance Sheet.
"Damage" means any and all losses, liabilities, damages,
penalties, obligations, awards, fines, deficiencies, diminution in value,
interest, claims (including third party claims, whether or not meritorious),
costs and expenses whatsoever (including reasonable attorneys', accountants' and
environmental consultants' fees and disbursements).
"Defense Notice" shall have the meaning set forth in Section
7.6(c).
"Disputed Items" shall have the meaning assigned in Section
2.6(b).
"Effective Date" shall mean the end of business on July 31,
2001.
"Encumbrance" shall mean any title encumbrance of any kind
whatsoever and includes any charge, title claim, security interest, community
property interest, mortgage, deed of trust, Lien, judgment, tax lien, sewer
rent, assessment, mechanics' or materialmen's liens, hypothecation, pledge, upon
the use, occupancy, operation or ownership of the property, assignment,
easement, servitude, right of way, restriction, tenancy, encroachment or burden
367046
|
P.H. Glatfelter
As referenced in this Acquisition Agreement [Amended and Restated]:
P.H. Glatfelter Co – 1(a)(6) of the
Worker Adjustment and Retraining Notification Act, 29 U.S.C. Section 2101(a)(6).
(m) No Transferred Employee is eligible to participate in (i)
the P.H. Glatfelter Co mpany Supplemental Executive Retirement Plan or (ii) the
P.H. Glatfelter Company Salaried Employee Stock Ownership Plan. With respect to
any Transferred Employee, there are no accrued, unpaid liabilities with
_____________
P.H. Glatfelter Co – 29 U.S.C. Section 2101(a)(6).
(m) No Transferred Employee is eligible to participate in (i)
the P.H. Glatfelter Company Supplemental Executive Retirement Plan or (ii) the
P.H. Glatfelter Co mpany Salaried Employee Stock Ownership Plan. With respect to
any Transferred Employee, there are no accrued, unpaid liabilities with respect
to the Profit-Sharing Plan of P.H. Glatfelter Company (
_____________
P.H. Glatfelter Co – the
P.H. Glatfelter Company Salaried Employee Stock Ownership Plan. With respect to
any Transferred Employee, there are no accrued, unpaid liabilities with respect
to the Profit-Sharing Plan of P.H. Glatfelter Co mpany (Ecusta Salaried Group)
and Buyers shall have no obligations with respect to such plan.
(n) Sellers have provided true and correct copies of all Plans
and other programs, policies
_____________
P.H. Glatfelter Co – complete list as of
May 16, 2001 showing the names, title, hire date and current annual salary
rates, commissions and incentive compensation (including, without limitation,
outstanding awards under the LTIP, P.H. Glatfelter Co mpany Management Incentive
Plan ("MIP") and any retention agreements), as applicable, total 2000 earnings,
status (full or part-time, active or inactive, whether as a result of a Leave of
_____________
P.H. Glatfelter Co – to the extent Sellers
recognized such service.
(ii) Notwithstanding the foregoing Section 5.5(b)(i),
subject to any applicable legal restrictions, Buyers shall assume the Collective
Bargaining Agreement between P.H. Glatfelter Co . Ecusta Division Pisgah Forest,
North Carolina and United Paperworkers International Union AFL-CIO and Its
Affiliated Local No. 1971 (effective October 7, 1996 to October 1, 2001).
52
{PAGE}
_____________
dt 1363949
;
|
Dechert
As referenced in this Acquisition Agreement [Amended and Restated]:
Dechert, – and
(xxi) any liability or obligation designated as an
Excluded Liability on any Schedule to this Agreement.
2.4. The Closing. The Closing shall take place at the offices of
Dechert, 1717 Arch Street, Philadelphia, Pennsylvania on such date as shall be
mutually agreed upon by the parties hereto (such date being herein called the
"Closing Date") and the effective
_____________
Dechert
– 44.162.9983
With copies to:
Melton Medes Limited
Environment House
6 Union Road
Nottingham
NG3 1FH
United Kingdom
Attn: N. R. Puri
Fax No.: 011.44.115.901.3100
Dechert
4000 Bell Atlantic Tower
1717 Arch Street
Philadelphia, PA 19103
Attn: Christopher G. Karras, Esq.
Fax No.: 215.994.2222
80
{PAGE} 87
9.2. Expenses. Except as otherwise
_____________
dt 1404030
|
Preview
Full Doc
| 2004 |
Acquisition Agreement
Acquisition Agreement (229K)
Doc #367163: Click preview link for longer preview.
ACQUISITION AGREEMENT
relating to the sale by
INTERNATIONAL PAPER COMPANY
of the only issued and outstanding share of
WELDWOOD OF CANADA LIMITED
to
WEST FRASER TIMBER CO. LTD.
Dated the 21st day of July, 2004
{PAGE}
TABLE OF CONTENTS
{TABLE}
{CAPTION}
Page
----
{S} {C}
PART 1 INTERPRETATION................................................................1
RULES OF INTERPRETATION AND DEFINITIONS...........................................1
SCHEDULES AND APPENDIX............................................................1
PART 2 PURCHASE AND SALE.............................................................2
PURCHASE AND SALE OF PURCHASED SHARE..............................................2
PURCHASE PRICE....................................................................2
PAYMENT OF PURCHASE PRICE.........................................................4
SECTION 116 CERTIFICATE...........................................................5
CLOSING PAYMENT STATEMENT.........................................................8
CLOSING DATE STATEMENTS...........................................................8
NO DUPLICATION....................................................................9
DISPUTE RESOLUTION................................................................9
TAX RETURNS......................................................................10
REIMBURSEMENT OF VENDOR PAID EXPENSES............................................10
REIMBURSEMENT OF TRIGGERING EVENT ADJUSTMENT AMOUNT..............................11
PART 3 REPRESENTATIONS AND WARRANTIES...............................................11
REPRESENTATIONS AND WARRANTIES OF THE VENDOR.....................................11
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER..................................11
PART 4 SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS AND INDEMNIFICATION....11
EXPIRATION OF REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE VENDOR............11
EXPIRATION OF THE REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE PURCHASER.....12
INDEMNITY........................................................................12
LIMITATIONS ON INDEMNITY.........................................................15
EXCEPTIONS TO LIMITATIONS........................................................15
NO SPECIAL DAMAGES...............................................................16
NOTICE OF CLAIM..................................................................16
DIRECT CLAIMS....................................................................16
CONTROL OF THIRD PARTY CLAIMS....................................................16
SETTLEMENT OF THIRD PARTY CLAIMS.................................................17
COOPERATION......................................................................17
SUBROGATION......................................................................17
CLAIMS TO BE NET OF INSURANCE AND NET TAX CONSEQUENCES...........................17
ADDITIONAL PROVISIONS FOR ENVIRONMENT MATTERS....................................18
ADDITIONAL PROVISIONS FOR TAX MATTERS............................................20
LIMITATION RE APPLICABLE PLANS...................................................21
EXCLUSIVE REMEDY.................................................................22
PART 5 COVENANTS OF THE PARTIES.....................................................22
INVESTIGATION OF BUSINESS........................................................22
CONDITIONS OF DISCLOSURE.........................................................23
PERSONAL INFORMATION.............................................................23
DISCLOSURE STATEMENT.............................................................24
NOTICE OF CERTAIN MATTERS........................................................24
PRELIMINARY PROSPECTUS...........................................................25
CONDUCT PRIOR TO CLOSING (TARGET)................................................25
DELIVERY OF AUTHORIZING DOCUMENTATION............................................26
PURCHASER'S CONDUCT PRIOR TO CLOSING.............................................26
COMPETITION ACT FILING...........................................................27
{/TABLE}
{PAGE}
-ii-
{TABLE}
{S} {C}
INVESTMENT CANADA ACT FILING.....................................................27
COLLECTION OF PRE-CLOSING DATE DUTY REFUNDS......................................27
ELECTIONS AND DESIGNATIONS.......................................................28
PART 6 PRE-CLOSING MATTERS..........................................................28
LOSS BEFORE CLOSING..............................................................28
CLAIM AFTER CLOSING..............................................................28
REIMBURSEMENT....................................................................29
INDEMNIFICATION..................................................................29
NOTICE OF LOSS...................................................................29
PURCHASER'S OPTION...............................................................30
CLOSING POSTPONED................................................................30
NO SOLICITATION..................................................................30
PART 7 TERMINATION OF AGREEMENT.....................................................31
TERMINATION......................................................................31
AUTOMATIC TERMINATION............................................................33
FAILURE TO GIVE NOTICE...........................................................33
EFFECT OF STATUS OF AGREEMENT AFTER TERMINATION..................................33
PART 8 CONDITIONS OF CLOSING........................................................33
CONDITIONS OF CLOSING IN FAVOUR OF THE PURCHASER.................................33
CONDITIONS OF CLOSING IN FAVOUR OF THE VENDOR....................................34
MUTUAL CONDITIONS PRECEDENT......................................................34
PART 9 CLOSING ARRANGEMENTS.........................................................35
PLACE OF CLOSING.................................................................35
TRANSFER.........................................................................35
DELIVERY OF BOOKS AND RECORDS....................................................36
DELAWARE SALES COMPANY BOOKS AND RECORDS.........................................36
FUTURE ACCESS TO BOOKS, RECORDS AND EMPLOYEES....................................36
CLOSING DOCUMENTS................................................................37
INTERIM SERVICES.................................................................37
EXECUTIVE PENSION AGREEMENTS.....................................................38
POST-CLOSING COVENANTS...........................................................38
TAX APPEAL.......................................................................38
PHANTOM PLAN.....................................................................38
MANAGEMENT INCENTIVE PLAN........................................................38
FURTHER ASSURANCES...............................................................39
PART 10 MISCELLANEOUS...............................................................39
NOTICES..........................................................................39
CONSULTATION.....................................................................40
COMMERCIALLY REASONABLE EFFORTS..................................................40
COUNTERPARTS.....................................................................40
NON-MERGER.......................................................................41
EXPENSES.........................................................................41
INTEREST.........................................................................41
{/TABLE}
{PAGE}
ACQUISITION AGREEMENT
THIS AGREEMENT is made July 21, 2004
BETWEEN:
INTERNATIONAL PAPER COMPANY, a New York corporation with an office at
400 Atlantic Street, Stamford, Connecticut 06921
(the "Vendor")
AND:
WEST FRASER TIMBER CO. LTD., a British Columbia corporation with an
office at 1000 - 1100 Melville Street, Vancouver, British Columbia V6E
4A6
(the "Purchaser")
WHEREAS:
(A) The Vendor is the registered and beneficial owner of the Purchased Share;
and
(B) The Vendor wishes to sell to the Purchaser and the Purchaser wishes to
purchase from the Vendor the Purchased Share on the terms and conditions set out
in this Agreement;
THEREFORE THIS AGREEMENT WITNESSES THAT the Parties agree as follows:
PART 1
INTERPRETATION
Rules of Interpretation and Definitions
1.1 The rules of interpretation set out in Part A of Appendix 1 apply to this
Agreement. Terms and expressions defined in Part B of Appendix 1 have those
meanings when used in this Agreement.
Schedules and Appendix
1.2 The following Schedules and Appendix are attached to and form part of this
Agreement:
Schedule A - Prohibited Activity
Schedule 3.1 - Representations and Warranties of the Vendor
{PAGE}
-2-
Schedule 3.2 - Representations and Warranties of the Purchaser
Schedule 3.7 - Subsidiaries and Other Ownership Interests
Schedule 5.7(g) - Target Information and Financial Data
Schedule 7.1(c) - Vendor's Bring Down Certificate (Due
Diligence Satisfaction Date)
Schedule 7.1(d) - Purchaser's Bring Down Certificate
Schedule 7.1(j) - Vendor's Bring Down Certificate (Closing Date)
Appendix 1 - Part A - Rules of Interpretation
Appendix 1 - Part B - Definitions
PART 2
PURCHASE AND SALE
Purchase and Sale of Purchased Share
2.1 On the Closing Date the Vendor will sell, assign and transfer to the
Purchaser and the Purchaser will purchase from the Vendor the Purchased Share
free and clear of all Encumbrances.
Purchase Price
2.2
Purchase Price Calculation
(a) The purchase price (the "Purchase Price") payable by the Purchaser to
the Vendor for the Purchased Share will be an amount equal to the total of:
(i) $1,260,000,000 less,
(A) the Triggering Event Adjustment Amount; and
(B) the Vendor Paid Expenses;
(ii) the Duty Refund Amount;
(iii) the Pulp Amount; and
(iv) the Tax Refund Amount.
subject to adjustment as provided in Section 2.2(b).
Net Worth Adjustment
(b) If the Closing Date Net Worth is greater than the Target Net Worth, the
Purchase Price will be increased by the amount of such excess (the "Net
Worth Positive Adjustment Amount"). If the Target Net Worth is greater than
the Closing Date Net
{PAGE}
-3-
Worth, the Purchase Price will be decreased by the amount of such excess
(the "Net Worth Negative Adjustment Amount").
Definitions
(c) In this Part 2, except as otherwise expressly provided or unless the
context otherwise requires,
(i) "Adjusted Closing Date Statements" has the meaning set out in
Section 2.6.
(ii) "Adjustment Date" means the later of the date on which the
Closing Date Statements or the Adjusted Closing Date Statements have
been finalized as provided in Section 2.6.
(iii) "Closing Date Balance Sheet" means the consolidated balance
sheet of the Target Companies as of the Closing Date included in the
Closing Date Statements or, if applicable, the Adjusted Closing Date
Statements.
(iv) "Closing Date Net Worth" means the amount that is the
Shareholder's Equity as set out in the Closing Date Balance Sheet.
(v) "Closing Date Statements" has the meaning set out in Section 2.6.
(vi) "Closing Payment Statement" has the meaning set out in Section
2.5.
(vii) "Duty Refund Amount" means 64.38% of any Pre-Closing Date Duty
Refunds received from time to time by the Target after the Closing
Date.
(viii) "Net Worth Negative Adjustment Amount" has the meaning set out
in Section 2.2(b).
(ix) "Net Worth Positive Adjustment Amount" has the meaning set out in
Section 2.2(b).
(x) "Pre-Closing Cash Dividends" means cash dividends paid by the
Target during the period commencing on the Execution Date and ending
at the Time of Closing, other than (1) any dividend in kind of the
shares of the Finance Company or (2) any dividend funded out of
amounts received on or prior to the Closing Date from the Finance
Company.
(xi) "Pulp Amount" means $50,000,000; provided that if the sum of the
Periodic Amounts for the Pulp Periods is less than $50,000,000, the
Pulp Amount will be reduced by such difference.
(xii) "Target Net Worth" means $750,000,000.
(xiii) "Triggering Event Adjustment Amount" has the meaning set out in
Part 3 of the Disclosure Statement.
{PAGE}
-4-
(xiv) "Vendor Paid Expenses" means the sum of
(A) 64.38% of the amounts paid by any of the Target Companies
after the Closing Date, to the extent not reflected in the
Closing Date Balance Sheet, under any employee retention
agreement entered into between any of the Target Companies and
any of its employees prior to the Closing Date in connection with
the transactions contemplated under this Agreement; and
(B) 64.38% of the legal and other expenses (including any
non-refundable Taxes imposed on such expenses) paid by any of the
Target Companies after the Closing Date, to the extent not
reflected in the Closing Date Balance Sheet, in connection with
the transactions contemplated under this Agreement, including the
Finance Company Reorganization, but excluding any such expenses
(I) to be paid by the Purchaser under the terms of this
Agreement;
(II) incurred prior to the Closing Date at the written
request of the Purchaser; or
(III) incurred after the Closing Date.
Payment of Purchase Price
2.3 The Purchase Price will be paid by the Purchaser to the Vendor as follows:
Closing Date Payment
(a) on the Closing Date, the Purchaser will pay to the Vendor by way of
wire transfer to such bank account as is designated by the Vendor in a
notice given to the Purchaser before the Closing,
(i) if there is a Net Worth Positive Adjustment Amount, $1,260,000,000
plus the Vendor's reasonable estimate of the Net Worth Positive
Adjustment Amount as set out in the Closing Payment Statement, or
(ii) if there is a Net Worth Negative Adjustment Amount,
$1,260,000,000 minus the Vendor's reasonable estimate of the Net Worth
Negative Adjustment Amount as set out in the Closing Payment
Statement;
Payment on Adjustment Date
(b) on the Adjustment Date the Purchaser will pay to the Vendor, or the
Vendor will pay to the Purchaser, any difference between the Net Worth
Positive Adjustment Amount or the Net Worth Negative Adjustment Amount, as
the case may be, as set out in the
{PAGE}
-5-
Closing Date Statements or, if applicable, the Adjusted Closing Date
Statements, and the reasonable estimate of such amounts included in the
Closing Payment Statement;
Payment of Duty Refund Amount
(c) subject to Section 5.12, amounts in respect of the Duty Refund Amount
will be paid by the Purchaser to the Vendor not later than the 10th
Business Day after the day on which the corresponding Pre-Closing Date Duty
Refund is received, or, if funds are initially received by a Target Company
under conditions that do not qualify the funds as Pre-Closing Date Duty
Refunds on the basis of the impediments set out in the definition thereof,
not later than the 10th Business Day after the day on which such funds
become Pre-Closing Date Duty Refunds;
Payment of Tax Refund Amount
(d) amounts in respect of the Tax Refund Amount will be paid by the
Purchaser to the Vendor not later than the 10th Business Day after the day
on which a Tax Refund Amount arises; and
Payment of Pulp Amount
(e) in respect of the Pulp Amount, the Purchaser will pay to the Vendor its
reasonable estimate of the Periodic Amount for each Pulp Period on or
before the 10th Business Day following the Pulp Period and will make any
payment or withholding required to adjust such estimate to the actual
Periodic Amount concurrently with the payment made in respect of the
immediately succeeding Pulp Period, and the Parties will make such
adjustment in respect of the final Pulp Period not later than 30 Business
Days following the end of the final Pulp Period.
Section 116 Certificate
2.4 (a) If the Vendor does not deliver to the Purchaser on or before Closing an
appropriate certificate under subsection 116(2) of the Tax Act (a "S 116(2)
Certificate") in respect of the sale of the Purchased Share to the
Purchaser (the "Share Sale") specifying a "certificate limit" at least
equal to the Purchaser's Cost (as defined in Section 2.4(h)) for purposes
of subsection 116(5) of the Tax Act, the Vendor may deliver to the
Purchaser on Closing an irrevocable, unconditional letter of credit drawn
on a global commercial bank with a credit rating of not less than AA- or
equivalent, payable in Canadian dollars ("Letter of Credit") in an amount
(the "Potential Remittance Amount") equal to 25% of the amount by which the
Purchaser's Cost exceeds the certificate limit, if any, of any appropriate
certificate under subsection 116(2) of the Tax Act in respect of the Share
Sale delivered by the Vendor to the Purchaser on or before Closing. Such
Letter of Credit will not be drawn upon except as provided below.
(b) If the Vendor does not provide the Letter of Credit under Section
2.4(a), the Purchaser will withhold from the Purchase Price an amount equal
to the Potential Remittance Amount and deposit such amount at Closing into
escrow pursuant to an escrow agreement to be entered into by the Parties at
Closing, in form and substance satisfactory
{PAGE}
-6-
to the Parties, acting reasonably and reflecting the provisions of this
Section 2.4 and preserving the Purchaser's ability to satisfy the Potential
Remittance Amount in full at the time or times as required under the Tax
Act with income from the escrowed funds (subject to withholding) being for
the benefit of the Vendor (the "Escrow Agreement").
(c) Subject to Section 2.4(e) below:
(i) if after Closing and on or before the 29th day of the month
following the calendar month during which the Closing Date occurred
(the "Deadline Date"), the Vendor delivers to the Purchaser either:
(A) a S 116(2) Certificate with a certificate limit at least
equal to the Purchaser's Cost, or
(B) an appropriate certificate under subsection 116(4) of the Tax
Act in respect of the Share Sale referencing proceeds of
disposition not less than the Purchaser's Cost (a "S 116(4)
Certificate")
the Purchaser will return the Letter of Credit, or release the
Potential Remittance Amount held under the Escrow Agreement to the
Vendor, as applicable; and
(ii) if neither a S 116(2) Certificate with certificate limit equal to
the Purchaser's Cost nor an appropriate S 116(4) Certificate is
delivered by the Vendor to the Purchaser on or before the Deadline
Date, the Purchaser will be entitled to draw under the Letter of
Credit or under the Escrow Agreement as applicable and remit to the
Receiver General for Canada ("Receiver General") immediately following
the Deadline Date for the account of the Vendor an amount equal to the
lesser of:
(A) the Potential Remittance Amount, and
(B) 25% of the excess of the Purchaser's Cost over the
certificate limit of a S 116(2) Certificate, if any, in respect
of the Share Sale delivered by the Vendor to the Purchaser on or
before Deadline Date;
(d) The Purchaser will provide to the Vendor a copy of a receipt of the
Receiver General in respect of any payment under Section 2.4(c) and will
either (i) return the Letter of Credit forthwith to the Vendor for
cancellation if less than the full amount has been drawn; or (ii) release
the amount, if any, remaining under the Escrow Agreement to the Vendor.
(e) The Letter of Credit will not be drawn nor any amount released to the
Purchaser from under the Escrow Agreement and no amount will be remitted by
the Purchaser to the Receiver General under Section 2.4(c)(ii) if the
Vendor delivers to the Purchaser, or the Purchaser otherwise receives, on
or before the Deadline Date (as extended from time to time under this
Section 2.4(e)), one or more appropriate comfort letters (each, a "Comfort
Letter") issued by CRA from time to time extending the time period within
which the Purchaser is required to remit an amount in respect of the
Purchase Price on behalf of the
{PAGE}
-7-
Vendor and the latest of such Comfort Letters has not been withdrawn or
cancelled or otherwise ceases to have effect. In such case, the Deadline
Date will be deemed to be the second Business Day before the date, or the
end of any time period, specified in the latest of such Comfort Letters.
(f) If the Canadian Institute of Chartered Accountants issues any
accounting rules applicable to the Purchaser which, when implemented, would
have a material adverse effect on the Purchaser's financial reporting
status as a result of the Purchaser holding the Letter of Credit, the
Purchaser will give to the Vendor not less than 20 Business Days notice
requiring the Vendor to take commercially reasonable steps to replace the
Letter of Credit by either implementing the Escrow Agreement, or taking
other measures that are satisfactory to the Purchaser, acting reasonably,
and which alleviate or avoid the material adverse effect. If, at the end of
such period, or a reasonable extension thereof taking into account the
implementation date for the accounting rules, the Vendor has not
implemented measures as contemplated herein, the Purchaser may draw on the
Letter of Credit and make the remittance described in Section 2.4(c)(ii).
(g) If at any time the aggregate of the amounts paid or then payable by the
Purchaser on account of the Purchase Price under Section 2.3 exceeds the
Purchaser's Cost, the Purchaser will be entitled to deduct and withhold 25%
of any such excess if and to the extent the Purchaser is liable to pay an
amount on behalf of the Vendor under the Tax Act. If such deduction is made
and the Parties do not enter into alternative arrangements in form and
substance satisfactory to the Parties acting reasonably preserving the
Purchaser's ability to satisfy its obligations in respect of the amount so
deducted in full at the time or times as required under the Tax Act, the
367163
| | |
Preview
Full Doc
| 2002 |
Acquisition Agreement
Acquisition Agreement (338K)
Doc #377704: Click preview link for longer preview.
ACQUISITION AGREEMENT
AMONG
ALCOA INC.,
THE FAIRCHILD CORPORATION,
FAIRCHILD HOLDING CORP.
AND
SHEEPDOG, INC.
Dated as of July 16, 2002
377704
|
ALCOA
As referenced in this Acquisition Agreement:
ALCOA INC –
Prepared by R.R. Donnelley Financial -- ACQUISITION AGREEMENT
EX-99.2 4 dex992.htm ACQUISITION AGREEMENT
Table of Contents
EXHIBIT 99.2
ACQUISITION AGREEMENT
AMONG
ALCOA INC .,
THE FAIRCHILD CORPORATION,
FAIRCHILD HOLDING CORP.
AND
SHEEPDOG, INC.
Dated as of July 16, 2002
Table of Contents
TABLE OF CONTENTS
Page
ARTICLE IDEFINITIONS
2
SECTION 1.1
Actual
_____________
Alcoa Inc – B
Undertaking and Indemnity Agreement
B-1
Exhibit C
Escrow Agreement
C-1
vii
Table of Contents
ACQUISITION AGREEMENT
ACQUISITION AGREEMENT, dated as of July 16, 2002 (the Agreement), among Alcoa Inc ., a Pennsylvania corporation (the Buyer), The Fairchild Corporation, a Delaware corporation (the Parent), Fairchild Holding Corp., a Delaware corporation and an indirect, wholly owned subsidiary of the Parent (Fairchild
_____________
Alcoa Inc – Cahill Gordon & Reindel
80 Pine Street
New York, New York 10005
Telecopy: (212) 2695420
Attention: James J. Clark, Esq.
Luis R. Penalver, Esq.
(b) if to the Buyer, to
Alcoa Inc .
390 Park Avenue
New York, New York 10022-4608
Telecopy: (212) 836-2809
Attention: General Counsel
with a copy to
Skadden, Arps, Slate, Meagher & Flom LLP
Four Times
_____________
ALCOA INC – IN WITNESS WHEREOF, the Buyer and each of the Sellers have caused this Agreement to be signed by their respective duly authorized officers as of the date first above written.
ALCOA INC .
By: /S/ BARBARA JEREMIAH
Name: Barbara Jeremiah
Title: Executive Vice President
THE FAIRCHILD CORPORATION
By: /S/ JEFFREY STEINER
Name: Jeffrey Steiner
Title: Chief Executive Officer
FAIRCHILD HOLDING CORP.
By: /
_____________
Alcoa Inc – and valuable consideration (receipt of which is hereby acknowledged), pursuant to and in accordance with the terms of the Acquisition Agreement, dated as of July 16, 2002 (the Agreement), between Alcoa Inc ., a Pennsylvania corporation (the Buyer), the Parent, Fairchild Holding and SDI, do hereby sell, convey, assign, transfer and deliver unto the Buyer and its designated subsidiaries under Section 10.
_____________
dt 1508644
;
Fairchild
As referenced in this Acquisition Agreement:
FAIRCHILD HOLDING CORP. – Prepared by R.R. Donnelley Financial -- ACQUISITION AGREEMENT
EX-99.2 4 dex992.htm ACQUISITION AGREEMENT
Table of Contents
EXHIBIT 99.2
ACQUISITION AGREEMENT
AMONG
ALCOA INC.,
THE FAIRCHILD CORPORATION,
FAIRCHILD HOLDING CORP.
AND
SHEEPDOG, INC.
Dated as of July 16, 2002
Table of Contents
TABLE OF CONTENTS
Page
ARTICLE IDEFINITIONS
2
SECTION 1.1
Actual Transferred Subsidiary Debt
2
SECTION 1.
_____________
Fairchild Holding Corp. – of Contents
ACQUISITION AGREEMENT
ACQUISITION AGREEMENT, dated as of July 16, 2002 (the Agreement), among Alcoa Inc., a Pennsylvania corporation (the Buyer), The Fairchild Corporation, a Delaware corporation (the Parent), Fairchild Holding Corp. , a Delaware corporation and an indirect, wholly owned subsidiary of the Parent (Fairchild Holding), and Sheepdog, Inc., a Delaware corporation and an indirect, wholly owned subsidiary of the Parent (
_____________
FAIRCHILD HOLDING CORP. – first above written.
ALCOA INC.
By: /S/ BARBARA JEREMIAH
Name: Barbara Jeremiah
Title: Executive Vice President
THE FAIRCHILD CORPORATION
By: /S/ JEFFREY STEINER
Name: Jeffrey Steiner
Title: Chief Executive Officer
FAIRCHILD HOLDING CORP.
By: /S/ ERIC STEINER
Name: Eric Steiner
Title: President
SHEEPDOG, INC.
By: /S/ DONALD E. MILLER
Name: Donald E. Miller
Title: Vice President
FAIRCHILD DATA CORP.
By: /S/ JOHN
_____________
FAIRCHILD HOLDING CORP. – Director
88
Table of Contents
EXHIBIT A
CONVEYANCE, ASSIGNMENT, TRANSFER AND BILL OF SALE
RELATING TO CERTAIN PERSONAL PROPERTY
AND CAPITAL STOCK AND MEMBERSHIP INTERESTS OWNED BY
THE FAIRCHILD CORPORATION, FAIRCHILD HOLDING CORP.
AND SHEEPDOG, INC.
KNOW ALL PERSONS BY THESE PRESENT that The Fairchild Corporation, a Delaware corporation (the Parent), Fairchild Holding Corp., a Delaware corporation and an indirect, wholly owned
_____________
Fairchild Holding Corp. – STOCK AND MEMBERSHIP INTERESTS OWNED BY
THE FAIRCHILD CORPORATION, FAIRCHILD HOLDING CORP.
AND SHEEPDOG, INC.
KNOW ALL PERSONS BY THESE PRESENT that The Fairchild Corporation, a Delaware corporation (the Parent), Fairchild Holding Corp. , a Delaware corporation and an indirect, wholly owned subsidiary of the Parent (Fairchild Holding), Sheepdog, Inc., a Delaware corporation and a direct, wholly owned subsidiary of the Parent (SDI,
_____________
dt 1026264
;
|
Sheepdog
As referenced in this Acquisition Agreement:
SHEEPDOG, INC – Donnelley Financial -- ACQUISITION AGREEMENT
EX-99.2 4 dex992.htm ACQUISITION AGREEMENT
Table of Contents
EXHIBIT 99.2
ACQUISITION AGREEMENT
AMONG
ALCOA INC.,
THE FAIRCHILD CORPORATION,
FAIRCHILD HOLDING CORP.
AND
SHEEPDOG, INC .
Dated as of July 16, 2002
Table of Contents
TABLE OF CONTENTS
Page
ARTICLE IDEFINITIONS
2
SECTION 1.1
Actual Transferred Subsidiary Debt
2
SECTION 1.2
Advisor
2
_____________
Sheepdog, Inc – Pennsylvania corporation (the Buyer), The Fairchild Corporation, a Delaware corporation (the Parent), Fairchild Holding Corp., a Delaware corporation and an indirect, wholly owned subsidiary of the Parent (Fairchild Holding), and Sheepdog, Inc ., a Delaware corporation and an indirect, wholly owned subsidiary of the Parent (SDI and, together with the Parent, Fairchild Holding and the subsidiaries of the Parent set forth on
_____________
SHEEPDOG, INC – Title: Executive Vice President
THE FAIRCHILD CORPORATION
By: /S/ JEFFREY STEINER
Name: Jeffrey Steiner
Title: Chief Executive Officer
FAIRCHILD HOLDING CORP.
By: /S/ ERIC STEINER
Name: Eric Steiner
Title: President
SHEEPDOG, INC .
By: /S/ DONALD E. MILLER
Name: Donald E. Miller
Title: Vice President
FAIRCHILD DATA CORP.
By: /S/ JOHN FLYNN
Name: John Flynn
Title: Vice President
87
Table of Contents
_____________
SHEEPDOG, INC – Contents
EXHIBIT A
CONVEYANCE, ASSIGNMENT, TRANSFER AND BILL OF SALE
RELATING TO CERTAIN PERSONAL PROPERTY
AND CAPITAL STOCK AND MEMBERSHIP INTERESTS OWNED BY
THE FAIRCHILD CORPORATION, FAIRCHILD HOLDING CORP.
AND SHEEPDOG, INC .
KNOW ALL PERSONS BY THESE PRESENT that The Fairchild Corporation, a Delaware corporation (the Parent), Fairchild Holding Corp., a Delaware corporation and an indirect, wholly owned subsidiary of the
_____________
Sheepdog, Inc – PERSONS BY THESE PRESENT that The Fairchild Corporation, a Delaware corporation (the Parent), Fairchild Holding Corp., a Delaware corporation and an indirect, wholly owned subsidiary of the Parent (Fairchild Holding), Sheepdog, Inc ., a Delaware corporation and a direct, wholly owned subsidiary of the Parent (SDI, and the subsidiaries of the Parent set forth on Schedule 1.125 of the Agreement (such
_____________
dt 1053097
;
Salomon
As referenced in this Acquisition Agreement:
Salomon Smith Barney Inc – 5 Financing. The Buyer will have sufficient financial resources available to pay the Consideration at the Closing Date and the Earn-Out when due.
SECTION 4.6 Brokers. Except for Salomon Smith Barney Inc ., no broker, finder or investment banker is entitled to any brokerage, finders or other fee or commission in connection with the transactions contemplated by this Agreement. The Buyer is
_____________
Salomon Smith Barney Inc – entitled to any brokerage, finders or other fee or commission in connection with the transactions contemplated by this Agreement. The Buyer is solely responsible for all fees and expenses of Salomon Smith Barney Inc . payable in connection with the transactions contemplated in this Agreement.
44
Table of Contents
ARTICLE V
COVENANTS OF THE PARTIES
SECTION 5.1 Conduct of Business of the Sellers.
_____________
dt 1050201
;
Skadden
As referenced in this Acquisition Agreement:
Skadden, Arps – II
THE CLOSING
SECTION 2.1 Time and Place of Closing. Subject to the terms and conditions of this Article II, the Closing will take place at the offices of Skadden, Arps , Slate, Meagher & Flom LLP, Four Times Square, New York, New York, at 9:30 A.M. (local time) on the Closing Date or at such other place or
_____________
Skadden, Arps – Penalver, Esq.
(b) if to the Buyer, to
Alcoa Inc.
390 Park Avenue
New York, New York 10022-4608
Telecopy: (212) 836-2809
Attention: General Counsel
with a copy to
Skadden, Arps , Slate, Meagher & Flom LLP
Four Times Square
New York, New York 10036-6522
Telecopy: (212) 735-2000
Attention: J. Michael Schell, Esq.
Margaret L. Wolff, Esq.
SECTION 10.
_____________
Skadden, Arps – of Contents
(ii) if to the Buyer, to:
Alcoa Inc.
390 Park Avenue
New York, New York 10022-4608
Telecopy: (212) 836-2809
Attention: General Counsel
with a copy to:
Skadden, Arps , Slate, Meagher & Flom LLP
Four Times Square
New York, New York 10036-6522
Telecopy: (212) 735-2000
Attention: J. Michael Schell, Esq.
Margaret L. Wolff, Esq.
(iii) if
_____________
dt 1023552
|
Preview
Full Doc
| 2004 |
Acquisition Agreement
Acquisition Agreement (156K)
Doc #379988: Click preview link for longer preview.
Execution Version
ACQUISITION AGREEMENT
THIS ACQUISITION AGREEMENT (the ?Agreement?) dated December 23, 2004.
BETWEEN:
GOLDCORP INC.,
a corporation existing under the laws of the
Province of Ontario, Canada
(?Goldcorp?)
? and ?
WHEATON RIVER MINERALS LTD.,
a corporation existing under the laws of the
Province of Ontario, Canada
(?Wheaton?)
WHEREAS Goldcorp and Wheaton wish to enter into a business combination that would . . .
379988
|
Glamis Gold
As referenced in this Acquisition Agreement:
Glamis Gold Ltd – proposed transaction (by purchase, merger, amalgamation, arrangement, business combination, liquidation, dissolution, recapitalization, take-over bid or otherwise, including, for greater certainty, the proposed offer for Goldcorp Common Shares announced by Glamis Gold Ltd . on December 16, 2004, that could result in any person (or group of persons acting jointly or in concert), other than the other party and its affiliates, acquiring or
_____________
Glamis Gold Ltd – under this Agreement.
(d)
Goldcorp represents and warrants that the board of directors of Goldcorp has determined by formal resolution that the proposed offer for Goldcorp Common Shares announced by Glamis Gold Ltd . on December 16, 2004 is not a Superior Proposal and accordingly, the parties agree that such proposal is not a Superior Proposal for the purposes of this Agreement.
8.
_____________
dt 1051920
;
Goldcorp
As referenced in this Acquisition Agreement:
GOLDCORP INC –
exv99wxdyx1y
EX-99.(D)(1) 6 t14978bexv99wxdyx1y.htm EX-(D)(1)
Execution Version
ACQUISITION AGREEMENT
THIS ACQUISITION AGREEMENT (the Agreement) dated December 23, 2004.
BETWEEN:
GOLDCORP INC .,
a corporation existing under the laws of the
Province of Ontario, Canada
(Goldcorp)
and
WHEATON RIVER MINERALS LTD.,
a corporation existing under the laws of the
Province of Ontario,
_____________
Goldcorp, inc – of which such entitlement to elect directors is not exercised by the specified body corporate as a result of any existing contract, agreement or commitment, and, in the case of Goldcorp, inc ludes the Goldcorp Subsidiaries and, in the case of Wheaton, includes the Wheaton Subsidiaries.
Subsidiary Bidco means a wholly-owned subsidiary of Goldcorp that is incorporated under the laws of
_____________
GOLDCORP INC – the other party.
IN WITNESS WHEREOF Goldcorp and Wheaton have caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized.
GOLDCORP INC .
By:
/s/ Robert McEwen
WHEATON RIVER MINERALS LTD.
By:
/s/ Ian Telfer
SCHEDULE A
CONDITIONS OF THE OFFER
Goldcorp may withdraw the Offer (in which event the Offeror shall
_____________
dt 1416980
;
|
Wheaton River
As referenced in this Acquisition Agreement:
WHEATON RIVER MINERALS LTD – Execution Version
ACQUISITION AGREEMENT
THIS ACQUISITION AGREEMENT (the Agreement) dated December 23, 2004.
BETWEEN:
GOLDCORP INC.,
a corporation existing under the laws of the
Province of Ontario, Canada
(Goldcorp)
and
WHEATON RIVER MINERALS LTD .,
a corporation existing under the laws of the
Province of Ontario, Canada
(Wheaton)
WHEREAS Goldcorp and Wheaton wish to enter into a business combination that would be favourable to
_____________
WHEATON RIVER MINERALS LTD – Goldcorp and Wheaton have caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized.
GOLDCORP INC.
By:
/s/ Robert McEwen
WHEATON RIVER MINERALS LTD .
By:
/s/ Ian Telfer
SCHEDULE A
CONDITIONS OF THE OFFER
Goldcorp may withdraw the Offer (in which event the Offeror shall not be required to take up or pay
_____________
dt 1047967
|
Preview
Full Doc
| 2004 |
Acquisition Agreement
Acquisition Agreement (156K)
Doc #379995: Click preview link for longer preview.
Execution Version
ACQUISITION AGREEMENT
THIS ACQUISITION AGREEMENT (the ?Agreement?) dated December 23, 2004.
BETWEEN:
GOLDCORP INC.,
a corporation existing under the laws of the
Province of Ontario, Canada
(?Goldcorp?)
? and ?
WHEATON RIVER MINERALS LTD.,
a corporation existing under the laws of the
Province of Ontario, Canada
(?Wheaton?)
WHEREAS Goldcorp and Wheaton wish to enter into a business combination that would . . .
379995
|
Glamis Gold
As referenced in this Acquisition Agreement:
Glamis Gold Ltd – proposed transaction (by purchase, merger, amalgamation, arrangement, business combination, liquidation, dissolution, recapitalization, take-over bid or otherwise, including, for greater certainty, the proposed offer for Goldcorp Common Shares announced by Glamis Gold Ltd . on December 16, 2004, that could result in any person (or group of persons acting jointly or in concert), other than the other party and its affiliates, acquiring or
_____________
Glamis Gold Ltd – under this Agreement.
(d)
Goldcorp represents and warrants that the board of directors of Goldcorp has determined by formal resolution that the proposed offer for Goldcorp Common Shares announced by Glamis Gold Ltd . on December 16, 2004 is not a Superior Proposal and accordingly, the parties agree that such proposal is not a Superior Proposal for the purposes of this Agreement.
8.
_____________
dt 1051922
;
Goldcorp
As referenced in this Acquisition Agreement:
GOLDCORP INC –
exv4w5
EX-4.5 6 t14978aexv4w5.htm EX-4.5
Execution Version
ACQUISITION AGREEMENT
THIS ACQUISITION AGREEMENT (the Agreement) dated December 23, 2004.
BETWEEN:
GOLDCORP INC .,
a corporation existing under the laws of the
Province of Ontario, Canada
(Goldcorp)
and
WHEATON RIVER MINERALS LTD.,
a corporation existing under the laws of the
Province of Ontario,
_____________
Goldcorp, inc – of which such entitlement to elect directors is not exercised by the specified body corporate as a result of any existing contract, agreement or commitment, and, in the case of Goldcorp, inc ludes the Goldcorp Subsidiaries and, in the case of Wheaton, includes the Wheaton Subsidiaries.
Subsidiary Bidco means a wholly-owned subsidiary of Goldcorp that is incorporated under the laws of
_____________
GOLDCORP INC – the other party.
IN WITNESS WHEREOF Goldcorp and Wheaton have caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized.
GOLDCORP INC .
By:
/s/ Robert McEwen
WHEATON RIVER MINERALS LTD.
By:
/s/ Ian Telfer
SCHEDULE A
CONDITIONS OF THE OFFER
Goldcorp may withdraw the Offer (in which event the Offeror shall
_____________
dt 1416981
;
|
Wheaton River
As referenced in this Acquisition Agreement:
WHEATON RIVER MINERALS LTD – Execution Version
ACQUISITION AGREEMENT
THIS ACQUISITION AGREEMENT (the Agreement) dated December 23, 2004.
BETWEEN:
GOLDCORP INC.,
a corporation existing under the laws of the
Province of Ontario, Canada
(Goldcorp)
and
WHEATON RIVER MINERALS LTD .,
a corporation existing under the laws of the
Province of Ontario, Canada
(Wheaton)
WHEREAS Goldcorp and Wheaton wish to enter into a business combination that would be favourable to
_____________
WHEATON RIVER MINERALS LTD – Goldcorp and Wheaton have caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized.
GOLDCORP INC.
By:
/s/ Robert McEwen
WHEATON RIVER MINERALS LTD .
By:
/s/ Ian Telfer
SCHEDULE A
CONDITIONS OF THE OFFER
Goldcorp may withdraw the Offer (in which event the Offeror shall not be required to take up or pay
_____________
dt 1047972
|
Preview
Full Doc
| 2003 |
Acquisition Agreement
Acquisition Agreement (160K)
Doc #383224: Click preview link for longer preview.
DENISON INTERNATIONAL PLC
and
PARKER-HANNIFIN CORPORATION
ACQUISITION AGREEMENT
Dated as of December 7, 2003
TABLE OF CONTENTS
Page
ARTICLE I. TENDER OFFER AND SQUEEZE-OUT
2
1.1.
The Offer
2
1.2.
. . .
383224
|
Jones Day
As referenced in this Acquisition Agreement:
Jones Day – Telecopy: 44-207-330-9999
(ii) if to Purchaser, to:
Parker-Hannifin Corporation
6035 Parkland Boulevard
Cleveland, OH 44124
-37-
Attention: General Counsel
Telecopy: (216) 896-4027
with copies to:
Jones Day
North Point
901 Lakeside Avenue
Cleveland, OH 44114-1190
Attention: Patrick J. Leddy, Esq.
Telecopy: (216) 579-0212
and
Eversheds LLP
Senator House
85 Queen Victoria Street
London EC4V
_____________
dt 1028038
;
|
Willkie Farr
As referenced in this Acquisition Agreement:
Willkie Farr – by like notice):
(i) if to the Company, to:
Denison International plc
14249 Industrial Parkway
Marysville, OH 43040
Attention: Chief Financial Officer
Telecopy: (937) 642-3738
with a copy to:
Willkie Farr & Gallagher LLP
787 Seventh Avenue
New York, NY 10019
Attention: Laurence D. Weltman, Esq.
Telecopy: 212-728-8111
and
Allen & Overy
One New Change
London
EC4M 9QQ
_____________
dt 1004182
|
| Full Doc
| 2003 |
Acquisition Agreement
Acquisition Agreement (4K)
Doc #383225: This document is immediately available for purchase, but does not have a preview available for viewing.
383225
| | |
Preview
Full Doc
| 2003 |
Acquisition Agreement
Acquisition Agreement (160K)
Doc #383230: Click preview link for longer preview.
DENISON INTERNATIONAL PLC
and
PARKER-HANNIFIN CORPORATION
ACQUISITION AGREEMENT
Dated as of December 7, 2003
TABLE OF CONTENTS
Page
ARTICLE I. TENDER OFFER AND SQUEEZE-OUT
5
1.1.
The Offer
5
1.2.
. . .
383230
|
Jones Day
As referenced in this Acquisition Agreement:
Jones Day – Telecopy: 44-207-330-9999
(ii) if to Purchaser, to:
Parker-Hannifin Corporation
6035 Parkland Boulevard
Cleveland, OH 44124
-37-
Attention: General Counsel
Telecopy: (216) 896-4027
with copies to:
Jones Day
North Point
901 Lakeside Avenue
Cleveland, OH 44114-1190
Attention: Patrick J. Leddy, Esq.
Telecopy: (216) 579-0212
and
Eversheds LLP
Senator House
85 Queen Victoria Street
London EC4V
_____________
dt 1028040
;
|
Willkie Farr
As referenced in this Acquisition Agreement:
Willkie Farr – by like notice):
(i) if to the Company, to:
Denison International plc
14249 Industrial Parkway
Marysville, OH 43040
Attention: Chief Financial Officer
Telecopy: (937) 642-3738
with a copy to:
Willkie Farr & Gallagher LLP
787 Seventh Avenue
New York, NY 10019
Attention: Laurence D. Weltman, Esq.
Telecopy: 212-728-8111
and
Allen & Overy
One New Change
London
EC4M 9QQ
_____________
dt 1004184
|
Preview
Full Doc
| 2003 |
Acquisition Agreement
Acquisition Agreement (362K)
Doc #388976: Click preview link for longer preview.
ACQUISITION AGREEMENT
By and Between
ROYAL GROUP, INC.
and
ALLEGHANY INSURANCE HOLDINGS LLC
Dated as of June 6, 2003
--------------------------------------------------------------------------------
{PAGE}
TABLE OF CONTENTS
{TABLE}
{CAPTION}
Page
----
{S} {C}
ARTICLE I THE CLOSING................................................................................... 2
Section 1.1 Sale and Purchase............................................................... 2
Section 1.2 Transfer of Acquired Assets..................................................... 2
Section 1.3 Excluded Assets, Excluded Contracts and Retained Liabilities.................... 2
Section 1.4 Quota Share Reinsurance Agreements.............................................. 3
Section 1.5 Administrative Services Agreements.............................................. 3
Section 1.6 Claims Servicing Agreement...................................................... 4
Section 1.7 Renewal Rights Agreement........................................................ 4
Section 1.8 Transition Services Agreement................................................... 4
Section 1.9 Intellectual Property Agreements................................................ 4
Section 1.10 Employee Leasing Agreement...................................................... 4
Section 1.11 Managing General Agency Agreement............................................... 5
Section 1.12 Substitution and Indemnification Agreement...................................... 5
Section 1.13 Assignment of Reinsurance Recoverables.......................................... 5
Section 1.14 Terrorism Treaty Cost Allocation................................................ 5
Section 1.15 RSA SLISI Purchase Agreement.................................................... 5
Section 1.16 Closing......................................................................... 5
Section 1.17 Consideration................................................................... 6
Section 1.18 Purchase Price Adjustment....................................................... 6
Section 1.19 Transfer of Unearned Premium Reserves........................................... 9
Section 1.20 Sharing of Profit Contingency Commissions for the Property Surplus Share
Contracts....................................................................... 10
Section 1.21 Closing Items................................................................... 11
ARTICLE II REPRESENTATIONS AND WARRANTIES OF SELLER..................................................... 14
Section 2.1 Organization and Standing....................................................... 14
Section 2.2 Authority....................................................................... 14
Section 2.3 Noncontravention................................................................ 15
Section 2.4 Litigation...................................................................... 15
Section 2.5 Title to the RSUI Shares........................................................ 16
Section 2.6 Brokers and Finders............................................................. 16
ARTICLE III REPRESENTATIONS AND WARRANTIES RELATING TO ROYAL INSURER AFFILIATES......................... 16
Section 3.1 Organization and Standing....................................................... 16
Section 3.2 Authority....................................................................... 16
Section 3.3 Noncontravention................................................................ 17
Section 3.4 Permits......................................................................... 18
Section 3.5 Litigation...................................................................... 18
Section 3.6 Compliance with Applicable Law.................................................. 18
{/TABLE}
i
{PAGE}
{TABLE}
{S} {C}
ARTICLE IV REPRESENTATIONS AND WARRANTIES RELATING TO RSUI.............................................. 19
Section 4.1 Organization and Standing....................................................... 19
Section 4.2 Noncontravention................................................................ 19
Section 4.3 Capitalization.................................................................. 20
Section 4.4 Financial Statements............................................................ 20
Section 4.5 Accounts........................................................................ 21
Section 4.6 Working Capital................................................................. 21
Section 4.7 Administration of Fiduciary Accounts............................................ 21
Section 4.8 Compliance with Applicable Law.................................................. 21
Section 4.9 Permits......................................................................... 22
Section 4.10 Litigation...................................................................... 22
Section 4.11 All Necessary Assets............................................................ 22
Section 4.12 Absence of Certain Changes...................................................... 22
Section 4.13 Taxes........................................................................... 22
Section 4.14 Employee Benefit Plans; ERISA................................................... 23
Section 4.15 Intellectual Property........................................................... 26
Section 4.16 Material Business Contracts..................................................... 28
Section 4.17 Intercompany Agreements; Transactions with Affiliates; Intercompany Accounts.... 29
Section 4.18 Insurance Coverage.............................................................. 30
Section 4.19 Books and Records............................................................... 30
ARTICLE V REPRESENTATIONS AND WARRANTIES RELATING TO THE BUSINESS....................................... 30
Section 5.1 RSUI-Produced Insurance Contracts............................................... 30
Section 5.2 Producer Relationships.......................................................... 31
Section 5.3 Third Party Reinsurance Contracts............................................... 32
ARTICLE VI REPRESENTATIONS AND WARRANTIES OF PURCHASER.................................................. 33
Section 6.1 Organization and Standing....................................................... 33
Section 6.2 Authority....................................................................... 33
388976
|
Goldman, Sachs
As referenced in this Acquisition Agreement:
Goldman, Sachs &
Co. – Shares, free and clear of all Liens. At the Closing, Purchaser will acquire the
RSUI Shares, free and clear of all Liens.
Section 2.6 Brokers and Finders. Except for Goldman, Sachs &
Co. , the fees and expenses of which will be paid by Seller (the "Seller's Fee"),
no broker, investment banker, financial advisor or other Person (an "Investment
Broker") is entitled
_____________
dt 1488921
;
Merrill Lynch
As referenced in this Acquisition Agreement:
Merrill Lynch &
Co – the availability to Purchaser or any of its Affiliates of any reinsurance,
debt or equity or other financing in any amount whatsoever.
Section 6.7 Brokers and Finders. Except for Merrill Lynch &
Co ., Inc., the fees and expenses of which will be paid by Purchaser (the
"Purchaser's Fee"), no Investment Broker is entitled to any broker's, finder's,
financial advisor'
_____________
dt 1467714
;
|
Dewey Ballantine
As referenced in this Acquisition Agreement:
Dewey Ballantine – 212) 752-1356
Facsimile No.: (212) 759-8149
with a copy to (which shall not constitute notice to
Purchaser for purposes of this Section 17.5):
Aileen C. Meehan, Esq.
Dewey Ballantine LLP
1301 Avenue of the Americas
New York, New York 10019
Telephone No.: (212) 259-8000
Telecopy No.: (212) 259-6333
or to such other address as the Person
_____________
dt 1329227
;
Skadden
As referenced in this Acquisition Agreement:
Skadden, Arps – shall be entitled to delay the
Closing to a Closing Date not later than July 31, 2003 (the "Extended Closing
Date"). The Closing shall be held at the offices of Skadden, Arps , Slate,
Meagher & Flom LLP, Four Times Square, New York, New York 10036, or such other
place as the parties may mutually agree in writing.
(b) If the Closing does
_____________
Skadden, Arps – 704) 522-2851
Facsimile No.: (704) 522-2313
with a copy to (which shall not constitute notice to
Seller for purposes of this Section 17.5):
Robert J. Sullivan, Esq.
Skadden, Arps , Slate, Meagher & Flom LLP
Four Times Square
New York, New York 10036
Telephone No.: (212) 735-3000
Facsimile No.: (212) 735-2000
If to Purchaser:
Robert M. Hart, Esq.
_____________
dt 1430938
|
Preview
Full Doc
| 2004 |
Acquisition Agreement
Acquisition Agreement (135K)
Doc #856156: Click preview link for longer preview.
ACQUISITION AGREEMENT
between
ISPAT INTERNATIONAL N.V.
and
RICHMOND INVESTMENT HOLDINGS LIMITED
Dated as of October 24, 2004
1
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
SECTION 1.01
Certain Defined Terms
6
SECTION 1.02
Additional Definitions
10
SECTION 1.03
Certain Defined Terms
11
ARTICLE II
SHARE EXCHANGE
. . .
856156
|
Ispat Int'l
As referenced in this Acquisition Agreement:
ISPAT INTERNATIONAL N – EX-99.2
EX-99.2 3 y04128exv99w2.htm EX-99.2 ACQUISITION AGREEMENT
EXHIBIT 2
ACQUISITION AGREEMENT
between
ISPAT INTERNATIONAL N .V.
and
RICHMOND INVESTMENT HOLDINGS LIMITED
Dated as of October 24, 2004
1
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
SECTION 1.01
Certain Defined Terms
6
SECTION 1.
_____________
ISPAT INTERNATIONAL N – F LNM Corporate Structure Chart
Exhibit G Material Purchaser Subsidiaries
4
Exhibit H Form of Instrument of Transfer
5
ACQUISITION AGREEMENT, dated as of October 24, 2004 (this Agreement), between ISPAT INTERNATIONAL N .V., a company organized under the laws of The Netherlands (the Purchaser) and RICHMOND INVESTMENT HOLDINGS LIMITED, a company organized under the laws of the British Virgin Islands (the
_____________
Ispat International N – in such industry, (iv) the public announcement or pendency of the Transactions or (v) changes in generally accepted accounting principles or official interpretations thereof.
Purchaser Stock Option Plan means the Ispat International N .V. Global Stock Option Plan, dated September 15, 1999, as amended.
Regulatory Approval means any approval, consent or confirmation of any Governmental Authority, Euronext or the NYSE.
Seller Compliance
_____________
Ispat International N – with respect to certain environmental, intellectual property and real property matters and listed in Exhibit B hereto.
Shareholders Agreement means the Shareholders Agreement, dated as of August 13, 1997, among Ispat International N .V., Ispat International Investments, S.L., Sociedad Unipersonal and Mr. Lakshmi N. Mittal.
Subsidiary or Subsidiaries of LNM, the Purchaser or any other Person means an Affiliate controlled by
_____________
Ispat International N – the following addresses (or at such other address for a Party as shall be specified in a notice given in accordance with this Section 10.01):
if to the Purchaser:
Ispat International N .V.
15th Floor, Hofplein 20
3032 AC Rotterdam
The Netherlands
Facsimile No.:+31-10-217-8850
Attention: Company Secretary
with a copy to:
Ispat International N.V.
Berkeley Square
_____________
dt 1404657
;
CSFB LLC
As referenced in this Acquisition Agreement:
Credit Suisse First Boston LLC – a copy of which opinion will be delivered to the Seller promptly after the date of this Agreement.
SECTION 4.16 Brokers. No broker, finder or investment banker (other than Credit Suisse First Boston LLC ) is entitled to any brokerage, finders or other fee or commission in connection with the Transactions based upon arrangements made by or on behalf of the Purchaser.
ARTICLE V
_____________
dt 1351040
;
|
Cleary Gottlieb
As referenced in this Acquisition Agreement:
Cleary, Gottlieb – Jeffrey Lawrence
43
if to the Seller:
Richmond Investment Holdings Limited
Roadtown
Tortola
British Vigin Islands
Facsimile No.:+44-20-7355-2105
Attention: Sudhir Maheshwari, Director
with a copy to:
Cleary, Gottlieb , Steen & Hamilton
Level 5
City Place House
55 Basinghall Street
London EC2V 5EH
United Kingdom
Facsimile No.:+44-20-7600-1698
Attention: Simon Jay
SECTION 10.02 Severability.
_____________
dt 1401727
|
Preview
Full Doc
| 2004 |
Acquisition Agreement
Acquisition Agreement (157K)
Doc #1057424: Click preview link for longer preview.
6
t14978bexv99wxdyx1y.htm
EX-(D)(1)
exv99wxdyx1y
Execution Version
ACQUISITION AGREEMENT
THIS ACQUISITION AGREEMENT (the “Agreement”) dated December 23, 2004.
BETWEEN:
GOLDCORP INC.,
a corporation existing under the laws of the
Province of Ontario, Canada
(“Goldcorp”)
– and –
WHEATON RIVER MINERALS LTD.,
a corporation existing under the laws of the
Province of Ontario, . . .
1057424
|
Glamis Gold
As referenced in this Acquisition Agreement:
Glamis Gold Ltd – proposed transaction (by purchase, merger, amalgamation, arrangement,
business combination, liquidation, dissolution, recapitalization, take-over bid or
otherwise, including, for greater certainty, the proposed offer for Goldcorp Common
Shares announced by Glamis Gold Ltd . on December 16, 2004, that could result in any
person (or group of persons acting jointly or in concert), other than the other
party and its affiliates, acquiring or
_____________
Glamis Gold Ltd – under this Agreement.
(d)
Goldcorp represents and warrants that the board of directors of
Goldcorp has determined by formal resolution that the proposed offer for
Goldcorp Common Shares announced by Glamis Gold Ltd . on December 16, 2004 is
not a Superior Proposal and accordingly, the parties agree that such proposal
is not a Superior Proposal for the purposes of this Agreement.
8.
_____________
dt 1536557
;
|
Goldcorp
As referenced in this Acquisition Agreement:
GOLDCORP INC –
exv99wxdyx1y
Execution Version
ACQUISITION AGREEMENT
THIS ACQUISITION AGREEMENT (the “Agreement”) dated December 23, 2004.
BETWEEN:
GOLDCORP INC .,
a corporation existing under the laws of the
Province of Ontario, Canada
(“Goldcorp”)
– and –
WHEATON RIVER MINERALS LTD.,
a corporation existing under the laws of
_____________
Goldcorp, inc – of which such entitlement to elect directors
is not exercised by the specified body corporate as a result of any existing
contract, agreement or commitment, and, in the case of Goldcorp, inc ludes the
Goldcorp Subsidiaries and, in the case of Wheaton, includes the Wheaton
Subsidiaries.
“Subsidiary Bidco” means a wholly-owned subsidiary of Goldcorp that is incorporated
under the
_____________
GOLDCORP INC – the other party.
IN WITNESS WHEREOF Goldcorp and Wheaton have caused this Agreement to be executed as of the
date first written above by their respective officers thereunto duly authorized.
GOLDCORP INC .
By:
/s/
Robert McEwen
WHEATON RIVER MINERALS LTD.
By:
/s/
Ian Telfer
SCHEDULE A
CONDITIONS OF THE OFFER
Goldcorp may withdraw the Offer (in which event the Offeror shall
_____________
dt 1416988
|