Exhibit 2.1
EXECUTION COPY
AGREEMENT AND PLAN OF MERGER
by and among
COLLINS INDUSTRIES, INC.,
CS ACQUISITION CORP.,
and
STEEL PARTNERS II, L.P.
dated as of
September 26, 2006
TABLE OF CONTENTS
PAGE
ARTICLE I THE
MERGER...........................................................1
SECTION 1.1
THE MERGER.................................................1
SECTION 1.2
EFFECTIVE TIME.............................................1
SECTION 1.3
EFFECTS OF THE MERGER......................................2
SECTION 1.4
CONVERSION OF COMMON SHARES................................2
SECTION 1.5
INTENTIONALLY DELETED......................................2
SECTION 1.6
OPTIONS; STOCK PLANS.......................................2
SECTION 1.7
SHAREHOLDERS' MEETING......................................3
SECTION 1.8
CLOSING....................................................3
ARTICLE II THE SURVIVING
CORPORATION...........................................4
SECTION 2.1
ARTICLES OF INCORPORATION..................................4
SECTION 2.2
BYLAWS.....................................................4
SECTION 2.3
DIRECTORS..................................................4
SECTION 2.4
OFFICERS...................................................4
ARTICLE III DISSENTING SHARES; PAYMENT FOR
SHARES..............................4
SECTION 3.1
DISSENTING SHARES..........................................4
SECTION 3.2
PAYMENT FOR COMMON SHARES..................................5
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE
COMPANY.......................7
SECTION 4.1
ORGANIZATION AND QUALIFICATION; SUBSIDIARIES...............7
SECTION 4.2
CHARTER; BYLAWS AND RIGHTS AGREEMENT.......................7
SECTION 4.3
CAPITALIZATION.............................................7
SECTION 4.4
AUTHORITY..................................................9
SECTION 4.5
NO CONFLICT; REQUIRED FILINGS AND CONSENTS................10
SECTION 4.6
SEC REPORTS AND FINANCIAL STATEMENTS......................11
SECTION 4.7
ENVIRONMENTAL MATTERS.....................................12
SECTION 4.8
COMPLIANCE WITH APPLICABLE LAWS...........................13
SECTION 4.9
LITIGATION................................................14
SECTION 4.10
INFORMATION...............................................14
SECTION 4.11
CERTAIN APPROVALS.........................................14
SECTION 4.12
EMPLOYEE BENEFIT PLANS....................................14
SECTION 4.13
INTELLECTUAL PROPERTY.....................................16
SECTION 4.14
TAXES.....................................................17
SECTION 4.15
ABSENCE OF CERTAIN CHANGES................................19
SECTION 4.16
LABOR AND EMPLOYMENT MATTERS..............................20
SECTION 4.17
RIGHTS AGREEMENT..........................................22
SECTION 4.18
BROKERS...................................................22
SECTION 4.19
OPINION OF FINANCIAL ADVISOR..............................23
SECTION 4.20
MATERIAL CONTRACTS........................................23
SECTION 4.21
TITLE TO PROPERTIES.......................................23
i
SECTION 4.22
ACCOUNTS RECEIVABLE.......................................24
SECTION 4.23
RESTRICTIONS ON BUSINESS ACTIVITIES.......................24
SECTION 4.24
REPRESENTATIONS COMPLETE..................................24
ARTICLE V REPRESENTATIONS AND WARRANTIES OF PARENT AND THE
PURCHASER..........24
SECTION 5.1
ORGANIZATION AND QUALIFICATION............................24
SECTION 5.2
AUTHORITY.................................................25
SECTION 5.3
NO CONFLICT; REQUIRED FILINGS AND CONSENTS................25
SECTION 5.4
INFORMATION...............................................26
SECTION 5.5
FINANCING.................................................26
SECTION 5.6
STOCK OWNERSHIP...........................................26
SECTION 5.7
PURCHASER'S OPERATIONS....................................26
SECTION 5.8
REPRESENTATIONS COMPLETE..................................26
SECTION 5.9
SOLVENCY..................................................27
ARTICLE VI
COVENANTS..........................................................27
SECTION 6.1
CONDUCT OF BUSINESS OF THE COMPANY........................27
SECTION 6.2
ACCESS TO INFORMATION.....................................30
SECTION 6.3
EFFORTS...................................................31
SECTION 6.4
PUBLIC ANNOUNCEMENTS......................................32
SECTION 6.5
EMPLOYEE BENEFIT ARRANGEMENTS.............................32
SECTION 6.6
INDEMNIFICATION...........................................33
SECTION 6.7
NOTIFICATION OF CERTAIN MATTERS...........................34
SECTION 6.8
RIGHTS AGREEMENT..........................................34
SECTION 6.9
STATE TAKEOVER LAWS.......................................34
SECTION 6.10
NO SOLICITATION...........................................34
SECTION 6.11
SHAREHOLDER LITIGATION....................................36
SECTION 6.12
RESIGNATIONS..............................................36
SECTION 6.13
TERMINATION OF CERTAIN INSURANCE POLICIES.................36
SECTION 6.14
SEVERANCE PAYMENTS........................................36
SECTION 6.15
DISMISSAL OF LAWSUIT......................................36
ARTICLE VII CONDITIONS TO CONSUMMATION OF THE
MERGER..........................36
SECTION 7.1
CONDITIONS TO EACH PARTY'S OBLIGATIONS....................36
SECTION 7.2
CONDITIONS TO OBLIGATIONS OF THE PARENT...................37
SECTION 7.3
CONDITION TO OBLIGATIONS OF THE COMPANY...................38
SECTION 7.4
FRUSTRATION OF CONDITIONS.................................38
ARTICLE VIII TERMINATION; AMENDMENTS;
WAIVER..................................38
SECTION 8.1
TERMINATION...............................................38
SECTION 8.2
EFFECT OF TERMINATION.....................................39
SECTION 8.3
FEES AND EXPENSES.........................................40
SECTION 8.4
AMENDMENT.................................................40
SECTION 8.5
EXTENSION; WAIVER.........................................41
ii
ARTICLE IX
MISCELLANEOUS......................................................41
SECTION 9.1
NON-SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS.41
SECTION 9.2
ENTIRE AGREEMENT; ASSIGNMENT..............................41
SECTION 9.3
VALIDITY..................................................42
SECTION 9.4
NOTICES...................................................42
SECTION 9.5
GOVERNING LAW.............................................43
SECTION 9.6
DESCRIPTIVE HEADINGS......................................43
SECTION 9.7
COUNTERPARTS..............................................43
SECTION 9.8
PARTIES IN INTEREST.......................................43
SECTION 9.9
DEFINITIONS...............................................43
SECTION 9.10
SPECIFIC PERFORMANCE......................................46
EXHIBITS
Exhibit A
Voting Agreement
SCHEDULES
SCHEDULE 4.1
ORGANIZATION AND QUALIFICATION OF SUBSIDIARIES
SCHEDULE 4.3(b)
OUTSTANDING OPTIONS
SCHEDULE 4.3(d)
RESTRICTED STOCK
SCHEDULE 4.3(h)
INDEBTEDNESS
SCHEDULE 4.3(j)
LIST OF SUBSIDIARIES; JOINT VENTURES; INDEMNITY AGREEMENTS
SCHEDULE 4.5(a)
COMPANY'S REQUIRED FILINGS AND CONSENTS
SCHEDULE 4.6(a)
SEC REPORTS
SCHEDULE 4.6(b)
BALANCE SHEET INFORMATION
SCHEDULE 4.6(c)
MATERIAL LIABILITIES
SCHEDULE 4.7
ENVIRONMENTAL MATTERS
SCHEDULE 4.9
LITIGATION
SCHEDULE 4.12(a)
EMPLOYEE BENEFIT PLANS
SCHEDULE 4.12(c)
QUALIFIED PLANS
SCHEDULE 4.12(e)
MULTIEMPLOYER PLANS
SCHEDULE 4.12(f)
RETIREE HEALTH AND WELFARE BENEFITS
SCHEDULE 4.12(h)
PAYMENTS OR BENEFITS TO COMPANY EMPLOYEES
SCHEDULE 4.12(i)
AMENDMENTS TO EMPLOYMENT AGREEMENTS OR STOCK OPTION AGREEMENTS
SCHEDULE 4.14(a)
TAXES
SCHEDULE 4.15(f)
ABSENCE OF CERTAIN CHANGES
SCHEDULE 4.16(a)
LABOR AND EMPLOYMENT CLAIMS
SCHEDULE 4.16(d)
OFFICER AND DIRECTOR INFORMATION
SCHEDULE 4.18
FEES AND EXPENSES
SCHEDULE 4.20
MATERIAL CONTRACTS
SCHEDULE 4.21
REAL PROPERTY
SCHEDULE 4.23
RESTRICTIONS ON BUSINESS ACTIVITIES
SCHEDULE 6.1
CONDUCT OF BUSINESS OF THE COMPANY
SCHEDULE 6.13
INSURANCE POLICIES
SCHEDULE 6.14
SEVERANCE EXPENSES
SCHEDULE 7.2(d)
CONSENTS
iii
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER (this "AGREEMENT"),
dated as of September
26, 2006, by and among STEEL PARTNERS II, L.P., a Delaware
limited
partnership
(the "PARENT"), CS ACQUISITION CORP., a Missouri corporation and a
subsidiary of
the
Parent
(the
"PURCHASER"),
and
COLLINS
INDUSTRIES,
INC.,
a
Missouri
corporation (the "COMPANY").
WHEREAS, the general partner of the Parent and the respective
Boards of
Directors of the Purchaser
and the Company have approved and adopted,
and deem
it advisable and in the best interests of their respective
limited partners and
shareholders
to
consummate,
the
merger
of the
Purchaser
with and into the
Company, as set forth herein (the "MERGER"),
in accordance with The General and
Business Corporation Law of Missouri (the "GBCL") and upon the
terms and subject
to the conditions set forth in this Agreement;
WHEREAS,
contemporaneously
with the
execution
and
delivery of this
Agreement, and as a condition and inducement to the Parent's and
the Purchaser's
willingness to enter into this
Agreement,
certain
shareholders of the Company
(each, a
"SHAREHOLDER")
are each entering into a Voting Agreement (the "VOTING
AGREEMENT")
in the form
attached
hereto as EXHIBIT A,
pursuant to which each
such
Shareholder
has agreed,
among other things,
to grant the Parent a proxy
with
respect to the voting of such Shares in favor of the Merger upon
the terms
and subject to the conditions set forth therein;
WHEREAS,
the Parent,
the
Purchaser
and the
Company
desire to make
certain representations, warranties and agreements in connection
with the Merger
and also to prescribe various conditions to the Merger.
NOW,
THEREFORE,
in
consideration of the foregoing and the respective
representations,
warranties and agreements
set forth herein,
the Parent,
the
Purchaser and the Company agree as follows:
ARTICLE I
THE MERGER
SECTION 1.1 THE MERGER.
Upon the
terms
and
subject
to the
satisfaction
or
waiver
of the
conditions hereof, and in accordance with the applicable provisions
of the GBCL,
at the Effective
Time the
Purchaser
will be merged with and into the Company.
Following the Merger,
the separate
corporate
existence of the Purchaser
will
cease and the Company will continue as the surviving corporation
(the "SURVIVING
CORPORATION").
SECTION
1.2
EFFECTIVE
TIME.
Subject to the provisions of this
Agreement,
on the Closing Date, the
parties hereto will
consummate the Merger,
in the manner required by the GBCL,
by
delivering
articles
of
merger to the
Secretary
of State of the State of
Missouri,
and take such other and further
actions as may be required by law to
cause the Merger to become
effective.
The time the Merger becomes effective is
referred to herein as the "EFFECTIVE TIME."
1
SECTION 1.3 EFFECTS OF THE MERGER.
The
Merger
will
have the
effects
set
forth in the
GBCL.
Without
limiting the generality of the foregoing,
and subject thereto, at the Effective
Time,
all the
properties,
rights,
privileges,
powers and
franchises of the
Company and the Purchaser will vest in the Surviving Corporation,
and all debts,
liabilities
and duties of the Company and the Purchaser
will become the debts,
liabilities and duties of the Surviving Corporation.
SECTION 1.4
CONVERSION OF COMMON
SHARES.
At the
Effective
Time, by virtue of the Merger and without any action
on the part of the Parent,
the Purchaser,
the Company or any holders
thereof,
each share of the Company's
common stock, par value $.10 per share (the "COMMON
SHARES")
and
the
one
share
of
Non-Redeemable
Common
Stock,
issued
and
outstanding
immediately
prior to the Effective Time (other than (i) Dissenting
Shares
and (ii) any
Common
Shares in the
treasury
of the
Company or by any
wholly owned
subsidiary of the Company,
which Common Shares,
by virtue of the
Merger
and
without
any
action
on the part of the
holder
thereof,
will be
cancelled
and retired
and will cease to exist with no payment
being made with
respect
thereto) will be cancelled
and retired and will be converted
into the
right to
receive
$12.50 in cash (the
"MERGER
PRICE"),
payable to the holder
thereof,
without interest thereon,
upon surrender of the certificate
formerly
representing such Common Share.
SECTION 1.5 INTENTIONALLY DELETED.
SECTION 1.6 OPTIONS;
STOCK PLANS.
Prior to the Effective Time, the Board of Directors of the Company
(the
"COMPANY
BOARD")
(or,
if
appropriate,
any
committee
thereof)
will
adopt
appropriate
resolutions
and take all
other
actions
necessary
or
desirable
(including effecting all necessary amendments to the Stock Plans
and Options and
obtaining
all
applicable
consents
from
optionees)
to
provide
for
the
cancellation,
effective at the Effective Time, of all of the outstanding
stock
options (the
"OPTIONS")
heretofore
granted
under any stock option or similar
plan of the Company
(the
"STOCK
PLANS") or under any
agreement,
without any
payment therefor except as otherwise provided in this Section 1.6.
(a)
Immediately
prior
to the
Effective
Time,
each of the
Options
(whether
vested or
unvested)
which are
listed in
SCHEDULE
4.3(B)
of the
disclosure
schedule
delivered
to the
Parent
by the
Company prior to the date hereof (the "COMPANY
DISCLOSURE
SCHEDULE"),
which
list
includes
all
outstanding
Options,
will be
vested
and
canceled,
to
the
extent
such
Option
remains
outstanding
as
of
immediately prior to the Effective Time (and to the extent
exercisable
will no longer be exercisable) and will entitle the holder thereof,
in
cancellation and settlement therefor,
to a payment, if any, in cash by
2
the
Company
(less
any
applicable
withholding
taxes)
equal to the
product of (i) the total number of Common Shares subject to such
Option
(without regard to whether such Option was vested or unvested) and
(ii)
the excess,
if any, of the Merger
Price over the
exercise
price per
Common
Share
subject
to such
Option
(the
"CASH
-----
Payment");
provided
that no such
payment will be due until
following
such time
that the Company has
delivered to the Parent a true and complete
list
of the Options which remain
outstanding as of immediately prior to the
Effective Time. If the exercise price per share of any Option
equals or
exceeds the Merger
Price,
the Cash
Payment
therefor
shall be zero.
Notwithstanding
the foregoing,
payment of the Cash Payment is subject
to
written
acknowledgment,
in a form
acceptable
to
the
Surviving
Corporation,
delivered
within five (5) days after the date hereof and
conditioned on Closing,
that no further
payment is due to such holder
on account of any Option
and all of such
holder's
rights
under such
Options have terminated.
(b) The Company represents, warrants and covenants that, prior
to the Effective Time, the Company Board will take all necessary
action
to terminate the 1995 Stock Option Plan and the 1997 Omnibus
Incentive
Plan,
and all
other
Stock
Plans
and any
other
plan,
program
or
arrangement,
including under employment agreements,
providing for the
issuance
or grant of Options or any other
interest
in respect of the
Capital Stock of the Company or any
subsidiary in each case
effective
prior to the Effective Time.
(c) The
Company and the Parent
agree that the Cash
Payments
are the sole
payments that will be made with respect to or in relation
to the Options.
SECTION 1.7
SHAREHOLDERS'
MEETING.
The Company, acting through the Company Board, will, in accordance
with
applicable law:
(a) duly
call,
give
notice of,
convene
and hold a special
meeting
of
its
shareholders
(the
"SPECIAL
Meeting")
as
soon
as
practicable
following the execution of this
Agreement for the purpose
of considering and taking action upon this Agreement;
(b)
prepare,
in
consultation
with
the
Parent,
a
proxy
statement (the "PROXY
STATEMENT") to be mailed to its
shareholders to
obtain the
necessary
approvals
of the Merger
and
adoption
of this
Agreement by its shareholders; and
(c) subject to Section 6.3(c),
include in the Proxy Statement
the
recommendation
of the
Company
Board
that
shareholders
of the
Company
vote in favor of the
approval
of the Merger and
adoption of
this Agreement.
SECTION 1.8
CLOSING.
The
closing of the
Merger
(the
"CLOSING")
will take place at 10:00
a.m.,
on a date
to be
specified
by the
parties,
which
will
be as soon as
practicable,
but
in
no
event
later
than
the
third
business
day,
after
satisfaction
or waiver of all of the conditions set forth in Article VII hereof
3
(the
"CLOSING
DATE"),
at the offices of Olshan
Grundman
Frome
Rosenzweig &
Wolosky LLP, or at such other time, date or place as the parties
may agree.
The
parties will use commercially
reasonable
efforts to cause the Closing to occur
on or before October 31, 2006.
ARTICLE II
THE SURVIVING CORPORATION
SECTION 2.1 ARTICLES OF INCORPORATION.
The
Articles
of
Incorporation
of
the
Purchaser,
as
in
effect
immediately
prior to the Effective Time, will be the Articles of
Incorporation
of the Surviving
Corporation
until
thereafter
amended in accordance with the
provisions
thereof and hereof and applicable law; provided that the name of
the
Surviving Corporation will be "Collins Industries, Inc."
SECTION 2.2 BYLAWS.
Subject to the provisions of Section 6.6 of this Agreement,
the Bylaws
of the
Purchaser
in effect
at the
Effective
Time will be the
Bylaws of the
Surviving
Corporation
until amended in accordance with the provisions
thereof
and applicable law.
SECTION 2.3 DIRECTORS.
Subject to applicable
law, the directors of the Purchaser
immediately
prior to the
Effective
Time will be the
initial
directors
of the
Surviving
Corporation
and will hold office
until their
respective
successors
are duly
elected and qualified, or their earlier death, resignation or
removal.
SECTION 2.4 OFFICERS.
The officers of the Company
immediately
prior to the
Effective
Time
will be the initial officers of the Surviving Corporation.
ARTICLE III
DISSENTING SHARES; PAYMENT FOR SHARES
SECTION 3.1
DISSENTING
SHARES.
Notwithstanding
Section 1.4,
Common
Shares
outstanding
immediately
prior to the
Effective
Time and held by a holder who has not voted in favor of
the Merger or consented
thereto in writing and who has demanded
appraisal
for
such Common Shares in accordance with the GBCL ("DISSENTING
SHARES") will not be
converted
into a right to receive the Merger Price and the holder
thereof will
be entitled
only to such rights as are granted by the GBCL,
unless such holder
fails to
perfect
or
withdraws
or
otherwise
loses
such
holder's
right to
appraisal. If after the Effective Time such holder fails to perfect
or withdraws
or loses such holder's right to appraisal, such Common Shares will
be treated as
if they had been
converted as of the Effective Time into a right to receive the
Merger
Price,
and such Common
Shares will not then be deemed to be Dissenting
Shares under this
Agreement.
The Company will give the Parent prompt notice of
any
demands
received by the Company
for
appraisal
of Common
Shares and any
4
objections
to the
Merger,
and the Parent
will have the right to conduct
all
negotiations and proceedings with respect to such demands. The
Company will not,
except
with the prior
written
consent of the Parent,
make any
payment
with
respect
to, or settle or offer to
settle,
or
otherwise
negotiate,
any such
demands.
SECTION 3.2 PAYMENT FOR COMMON SHARES.
(a) At Closing,
the Parent or the Purchaser will deposit,
or
cause to be
deposited,
in trust with such bank or trust company as is
mutually
acceptable to the Parent and the Company (the "PAYING AGENT")
the
aggregate
Merger Price to which
holders of Common Shares will be
entitled at the Effective
Time pursuant to Section 1.4. On the Closing
Date, the Paying Agent will invest the funds deposited with it
pursuant
to this Section in money market
securities or similar type investments
as the Parent may direct. From and after the Effective Time, the
Paying
Agent
will
effect
the
payment
of the
Merger
Price in
respect of
certificates
(the
"CERTIFICATES")
that, prior to the Effective Time,
represented
Common
Shares
entitled
to payment
of the Merger
Price
pursuant to Section 1.4.
(b) Promptly
after the Effective
Time, the Paying Agent will
mail to each record holder of
Certificates as of the Effective Time, a
form of letter of transmittal approved by the Parent which will
specify
that
delivery
will be
effected,
and risk of loss
and
title to the
Certificates
will pass, only upon proper delivery of the
Certificates
to the
Paying
Agent and
instructions
for use in
surrendering
such
Certificates
and receiving the Merger Price in respect
thereof.
Upon
the
surrender
of
each
such
Certificate
together
with a
properly
completed and executed letter of transmittal, the Paying Agent will
pay
to the holder of such
Certificate
the Merger Price
multiplied by the
number of Common Shares formerly
represented by such
Certificate,
in
consideration
therefor,
and
such
Certificate
will
forthwith
be
cancelled.
Until so
surrendered,
each such
Certificate
(other than
Dissenting
Shares or Certificates
representing
Common Shares held by
the Parent or the Purchaser,
any wholly owned subsidiary of the Parent
or the Purchaser, in the treasury of the Company or by any wholly
owned
subsidiary of the Company) will
represent
solely the right to receive
the aggregate Merger Price relating
thereto.
No interest or dividends
will be paid or accrued on the Merger
Price.
If the Merger
Price (or
any portion
thereof) is to be
delivered
to any person other than the
person in whose name the Certificate surrendered is registered, it
will
be a
condition
to such right to receive
such
Merger
Price that the
Certificate
so
surrendered
be properly
endorsed or
otherwise be in
proper
form
for
transfer
and
that
the
person
surrendering
such
Certificate
will pay to the Paying
Agent any
transfer or other taxes
required by reason of the payment of the Merger Price to a person
other
than the registered holder of the Certificate surrendered, or
establish
to the
satisfaction of the Paying Agent that such taxes have been paid
or are not applicable.
(c)
Promptly
after
the
Surviving
Corporation's
request
therefor
made at any time
following
the date which is 180 days after
the
Effective
Time,
the Paying Agent will
deliver to the
Surviving
Corporation
all
cash,
Certificates
and
other
documents
in
its
5
possession
relating to the
transactions
described in this Agreement,
and upon such
delivery
the
Paying
Agent's
duties
will
terminate.
Thereafter, each holder of a Certificate may surrender such
Certificate
to the
Surviving
Corporation
and
(subject to
applicable
abandoned
property,
escheat and similar laws) receive in consideration
therefor
the aggregate
Merger Price relating
thereto,
without any interest or
dividends thereon.
Notwithstanding the foregoing,
none of the Parent,
the
Purchaser,
the Company or the Paying
Agent will be liable to any
person in respect of any cash delivered to a public
official
pursuant
to any applicable abandoned property, escheat or similar law.
(d) After the
Effective
Time,
there will be no transfers on
the stock
transfer
books of the Surviving
Corporation
of any Common
Shares which were outstanding
immediately prior to the Effective Time.
If,
after
the
Effective
Time,
Certificates
are
presented
to the
Surviving Corporation or the Paying Agent, they will be surrendered
and
cancelled
in return for the
payment
of the
aggregate
Merger
Price
relating thereto, as provided in this Article III.
(e) In the event any Certificates shall have been lost, stolen
or
destroyed,
upon the
making
of an
affidavit
of that fact by the
person claiming such
Certificate(s)
to be lost,
stolen or destroyed,
the Paying Agent will
disburse the Merger Price
payable in respect of
the
Common
Shares
represented
by such
lost,
stolen
or
destroyed
Certificates.
(f) The Purchaser shall be entitled to deduct and withhold, or
cause the Paying
Agent to deduct and
withhold,
from the Merger Price
payable to a holder of Common
Shares
pursuant
to the Merger any such
amounts as are
required
under the Internal
Revenue Code of 1986,
as
amended (the "CODE"),
or any applicable
provision of state,
local or
foreign
Tax law.
To the extent
that
amounts
are so withheld by the
Purchaser or Paying Agent,
such withheld
amounts shall be treated for
all purposes of this Agreement as having been paid to the holder of
the
Common Shares in respect of which such
deduction and
withholding
was
made by the Purchaser.
(g) If, at any time after the
Effective
Time,
the Surviving
Corporation shall consider or be advised that any deeds, bills of
sale,
assignments, assurances or any other actions or things are
necessary or
desirable
to vest,
perfect or confirm of record or
otherwise
in the
Surviving
Corporation its right, title or interest in, to or under any
of the rights,
properties or assets of the Purchaser or the Company or
otherwise carry out this
Agreement,
the officers and directors of the
Surviving
Corporation
shall be authorized to execute and deliver,
in
the name and on behalf of the Purchaser or the Company, all such
deeds,
bills of sale,
assignments
and
assurances and to take and do, in the
name and on behalf of the
Purchaser
or the
Company,
all such
other
actions and things as may be necessary or desirable to vest,
perfect or
confirm
any and all right,
title and
interest
in, to and under such
rights,
properties or assets in the Surviving Corporation or otherwise
to carry out this Agreement.
6
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company makes these
representations
and
warranties
set forth in
this Article IV, except as set forth in the Company Disclosure
Schedules, to the
Parent and the
Purchaser.
Items
disclosed
in one
particular
section of the
Company Disclosure
Schedules shall be deemed to be constructively
disclosed or
listed in other sections of the Company Disclosure
Schedules to the extent that
it is reasonably
apparent that the disclosure
relates to such other
sections.
The fact that any item of
information
is contained
in the Company
Disclosure
Schedules
shall
not be
construed
as an
admission
of
liability
under
any
applicable law, or to mean that such information is material.
SECTION 4.1 ORGANIZATION AND QUALIFICATION;
SUBSIDIARIES.
The Company is a corporation
duly organized,
validly
existing and in
good
standing
under the laws of the State of Missouri.
Except as set forth in
SCHEDULE
4.1
of
the
COMPANY
DISCLOSURE
SCHEDULE,
each
of
the
Company's
subsidiaries
is a
corporation
duly
organized,
validly
existing and in good
standing under the laws of the
jurisdiction of its
incorporation.
The Company
and each of its subsidiaries has the requisite
corporate power and authority to
own,
operate or lease its
properties and to carry on its business as it is now
being
conducted,
and 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
properties owned,
operated or leased by it makes such qualification,
licensing
or good
standing
necessary,
except
where the
failure
to have such power or
authority,
or the failure to be so
qualified,
licensed
or in good
standing,
would not have a Material
Adverse
Effect on the
Company.
The term
"MATERIAL
ADVERSE EFFECT ON THE COMPANY," as used in this
Agreement,
means any change in
or
effect
on the
business,
financial
condition,
results
of
operation
or
prospects of the Company or any of its
subsidiaries
that could
reasonably
be
expected to have a material
adverse effect on the Company and its
subsidiaries
taken as a whole or could
reasonably be expected to prevent or materially delay
consummation
of the Merger;
provided that the foregoing
shall not include any
change or effect
that
results
or arises
from or
relates
to
changes in (A)
general
economic
or
market
conditions,
except
to the
extent
they
have a
disproportionate
impact on the
Company,
or
prevailing
interest
rates,
(B)
conditions
generally
affecting the industry in which the Company or any of its
subsidiaries
operates,
or
(C)
laws,
regulations
or
accounting
standards,
principles or interpretations.
SECTION
4.2
CHARTER;
BYLAWS AND RIGHTS
AGREEMENT.
The
Company
has
heretofore
made
available
to the
Parent
and the
Purchaser a complete and correct copy of the articles of
incorporation
and the
bylaws or comparable organizational documents, each as amended as
of the date of
this
Agreement,
of the
Company
and
each of its
subsidiaries
and has
made
available a complete and correct copy of the Rights
Agreement,
dated as of May
25, 2006 between the Company and Mellon
Investor
Services LLC, as Rights Agent
(as amended through the date hereof, the "RIGHTS AGREEMENT").
7
SECTION 4.3 CAPITALIZATION.
(a) The
authorized
capital stock of the Company
consists of
Seventeen
Million
(17,000,000)
Common
Shares,
One
(1)
share
of
Non-Redeemable
Common Stock and Two Million
Nine Hundred
Ninety-Nine
Thousand Nine Hundred Ninety-Nine
(2,999,999) shares of Capital Stock,
par value $.10 per share (the "CAPITAL STOCK"),
of which Seven Hundred
Fifty
Thousand
(750,000)
shares
are
designated
as Series A Junior
Participating Preferred Stock, par value $.10 per share (the
"PREFERRED
STOCK").
As of the close of
business
on the date of this
Agreement,
6,343,375 Common Shares were issued and
outstanding,
all of which are
entitled to vote on this
Agreement,
and no Common Shares were held in
treasury.
As of the close of
business
on the date of this
Agreement
there were no shares of Capital Stock issued and outstanding. As of
the
close of business on the date of this Agreement there were no
shares of
Preferred
Stock
issued and
outstanding.
The
Company
has no shares
reserved for issuance,
except that, as of the date of this
Agreement,
there were 113,300
Common
Shares
reserved
for issuance
pursuant to
outstanding
Options granted under the Stock Plans and there were Seven
Hundred Fifty Thousand
shares of Preferred Stock reserved for issuance
upon
exercise of the rights
issued
pursuant to the Rights
Agreement
(the "Rights").
(b) SCHEDULE
4.3(B) of the COMPANY
DISCLOSURE
SCHEDULE sets
forth the holder of each
outstanding
Option and the number of shares,
exercise price and expiration date of each grant to such holder.
Except
as set forth in
SCHEDULE
4.3(B) of the COMPANY
DISCLOSURE
SCHEDULE,
since June 30, 2006,
the Company has not granted any Options or issued
any shares of Capital Stock except
pursuant to the exercise of Options
outstanding as of such date. All the outstanding Common Shares are,
and
all Common
Shares
which may be issued
pursuant
to the
exercise
of
outstanding
Options
will be, when
issued and paid for in
accordance
with the respective
terms thereof,
duly
authorized,
validly issued,
fully
paid and
nonassessable
and are not
subject
to, nor were they
issued in violation of, any preemptive rights.
(c)
There
are
no
bonds,
debentures,
notes
or
other
indebtedness
having
general
voting
rights
(or
convertible
into
securities having such rights) ("VOTING DEBT") of the Company or
any of
its subsidiaries issued and outstanding.
(d)
Except as set forth
above or in
SCHEDULE
4.3(D) of the
COMPANY
DISCLOSURE
SCHEDULES
or for the
Rights
and
except for the
transactions
contemplated
by this
Agreement,
there are no
existing
options,
warrants, calls,
subscriptions or other rights,
agreements,
arrangements or commitments of any character, relating to the
issued or
unissued
capital
stock
of the
Company
or any of its
subsidiaries,
obligating the Company or any of its subsidiaries to issue,
transfer or
sell or cause to be issued,
transferred
or sold, or providing for the
vesting
of, any shares of
capital
stock or Voting
Debt of, or other
equity
interest
in,
the
Company
or
any
of
its
subsidiaries
or
securities
convertible
into or exchangeable for such shares or equity
interests
and
neither
the
Company
nor any of its
subsidiaries
is
obligated
to grant,
extend or enter
into any such
option,
warrant,
call,
subscription
or
other
right,
agreement,
arrangement
or
commitment.
(e) Except as
contemplated
by this
Agreement
or the Rights
Agreement,
there are no
outstanding
contractual
obligations
of the
Company or any of its
subsidiaries to repurchase,
redeem or otherwise
acquire any Common Shares or the capital stock of the Company or
any of
its subsidiaries.
8
(f) Except as
contemplated
by this
Agreement
or the Voting
Agreements,
there
are
no
voting
trusts
or
other
agreements
or
understandings
to which the
Company
is a party
with
respect to the
voting of the Company's Common Shares.
(g) At and after the Effective Time, no holder of Options will
have any right to
receive
shares of
capital
stock of the
Surviving
Corporation upon exercise of Options.
(h) Except as
disclosed
in
SCHEDULE
4.3(H) of the
COMPANY
DISCLOSURE SCHEDULE, no Indebtedness of the Company or its
subsidiaries
contains any prohibition of, or prepayment penalty upon, the
prepayment
of
any
of
such
Indebtedness.
As
used
in
this
Section
4.3(h),
"Indebtedness" means (A) all indebtedness for borrowed money or for
the
deferred
purchase
price of
property
or
services
including
unpaid
installments
of the purchase
price for fixed assets
purchased
under
installment arrangements (other than current trade liabilities
incurred
in the
ordinary
course of
business
and payable in
accordance
with
customary practices), (B) any other indebtedness that is evidenced
by a
note, bond, debenture or similar instrument,
(C) all obligations under
financing leases,
(D) all obligations in respect of acceptances issues
or
created,
and
(E)
all
liabilities
secured
by any
lien
on any
property.
(i)
Except
for the
right of first
refusal
granted
to the
Company with respect to the
redeemable
Common Shares
pursuant to the
articles
of
incorporation
of the
Company,
each of the
outstanding
shares of capital
stock of the
Company
and of each of the
Company's
subsidiaries
is
duly
authorized,
validly
issued,
fully
paid
and
nonassessable,
and 100% of such shares of the
Company's
subsidiaries
are owned by the Company or by a subsidiary of the Company in each
case
free and clear of any lien, claim, option,
charge,
security interest,
limitation,
encumbrance
and
restriction
of
any
kind
(any
of the
foregoing being a "LIEN").
(j) Set forth in
SCHEDULE
4.3(J) of the
COMPANY
DISCLOSURE
SCHEDULE
is a complete
and
correct
list of each
subsidiary
of the
Company and each joint venture or
partnership
in which the Company or
any
of
its
subsidiaries
has
an
interest
(and
the
amounts
and
percentages
of any such
interests)
and each such
subsidiary,
joint
venture
and
partnership
that
has
been
closed
or sold
(i) in the
five-year
period
preceding
the
date
hereof
or (ii) to the
actual
knowledge of the Company, in respect of which the Company or any of
its
subsidiaries provided
indemnities,
for representations and warranties
(including
as
to
environmental
matters)
or
otherwise
for
which
liabilities remain outstanding as of the date of this Agreement.
SECTION 4.4 AUTHORITY.
The Company has all necessary
corporate power and authority to execute
and deliver this
Agreement
and to
consummate
the
transactions
contemplated
hereby.
The
execution
and
delivery of this
Agreement by the Company and the
consummation by the Company of the
transactions
contemplated
hereby have been
duly and validly
authorized
and
approved
by the
Company
Board and no other
9
corporate
proceedings
on the part of the Company are necessary to authorize or
approve this Agreement or to consummate the transactions
contemplated hereby and
thereby,
other
than the
approval
of this
Agreement
and the
Merger
by the
affirmative
vote of the holders of
two-thirds of the then
outstanding
Common
Shares entitled to vote thereon (the "REQUISITE VOTE").
This Agreement has been
duly and validly executed and delivered by the Company and,
assuming the due and
valid authorization,
execution and delivery of this Agreement by the Parent and
the
Purchaser,
constitutes
a valid
and
binding
obligation
of the
Company
enforceable against the Company in accordance with its terms.
SECTION 4.5 NO CONFLICT; REQUIRED FILINGS AND CONSENTS.
(a)
Assuming
(i)
the
filings
required
under
the
Hart-Scott-Rodino
Antitrust
Improvements Act of 1976, as amended, and
the rules and
regulations
thereunder (the "HSR ACT") are made and the
waiting periods
thereunder have been terminated or have expired,
(ii)
the
filing of the
articles
of merger
and other
appropriate
merger
documents, if any, as required by the GBCL, is made, and (iii)
approval
of this
Agreement by the Requisite Vote of the
shareholders,
none of
the
execution
and
delivery of this
Agreement
by the
Company,
the
consummation by the Company of the transactions
contemplated hereby or
compliance
by the Company with any of the
provisions
hereof will (A)
conflict with or violate the articles of incorporation or bylaws of
the
Company
or
the
comparable
organizational
documents
of
any of its
subsidiaries, (B) except as set forth in SCHEDULE 4.5(A) of the
COMPANY
DISCLOSURE
SCHEDULE,
result
in a breach or
violation
of, a default
under or the
triggering
of any
payment or the
increase in any other
obligations pursuant to, any of the Company's existing Employee
Benefit
Arrangements (as hereinafter
defined) or any grant or award made under
any of the Employee Benefit
Arrangements,
(C) to the actual knowledge
of the Company, conflict with or violate any statute,
ordinance, rule,
regulation,
order,
judgment,
decree, permit or license applicable to
the Company or any of its subsidiaries,
or by which any of them or any
of their respective
properties or assets may be bound or affected,
or
(D) except as set forth in SCHEDULE
4.5(A) of the
COMPANY
DISCLOSURE
SCHEDULE,
require the consent
from or the giving of notice to a third
party
pursuant to,
result in a violation or breach of or constitute a
default
(or an event
which with notice or lapse of time or both would
become a default)
under,
or give to others any rights of termination,
amendment,
acceleration or
cancellation
of, or result in any loss of
any benefit,
the
triggering of any payment by, or the increase in any
other
obligation
of, the
Company or any of its
subsidiaries
or the
creation of any Lien on any of the property or assets of the
Company or
any of its
subsidiaries
(any of the
foregoing
referred to in clause
(B),
(C) or this
clause
(D)
being a
"VIOLATION")
pursuant
to any
Material Contract.
(b) To
the
actual
knowledge
of the
Company,
none
of the
execution
and
delivery
of
this
Agreement
by
the
Company,
the
consummation by the Company of the transactions
contemplated hereby or
compliance
by the
Company
with
any of the
provisions
hereof
will
require any consent, waiver,
approval,
authorization or permit of, or
registration
or filing with or
notification
to (any of the foregoing
with respect to any Governmental Entity (as hereinafter defined) or
any
other third party being a "CONSENT"),
any
government
or
subdivision
thereof, or any administrative, governmental, legislative or
regulatory
authority,
agency,
commission,
tribunal,
court
or
body,
(a
10
"GOVERNMENTAL
ENTITY"),
except for (i) the filing of the
articles of
merger pursuant to the GBCL, (ii) compliance with the HSR Act, or
(iii)
those
situations
in which the failure to obtain such
Consent,
or to
make such filing or
notification,
would not,
individually
or in the
aggregate,
be
material
to
the
operations
of
the
Company
or its
subsidiaries.
SECTION 4.6 SEC REPORTS AND FINANCIAL STATEMENTS.
(a) The Company
has filed with the
Securities
and
Exchange
Commission
(the
"SEC") all forms,
reports,
schedules,
registration
statements and definitive proxy
statements
required to be filed by it
with the SEC since January 1, 2003 (as amended,
restated or superseded
since
the
time
of
their
filing
and
prior
to
the
date
hereof,
collectively,
the "SEC
REPORTS").
Except
as set
forth in
SCHEDULE
4.6(A) of the COMPANY DISCLOSURE SCHEDULE,
the SEC Reports (including,
but not limited to, any financial
statements or schedules
included or
incorporated by reference
therein),
complied in all material respects
with the
requirements
of the
Securities
Exchange
Act of
1934,
as
amended
(the
"EXCHANGE
ACT"),
or the
Securities
Act of
1933,
as
amended,
including the rules and
regulations
promulgated
thereunder
(the
"SECURITIES
Act")
applicable,
as the case may be,
to such SEC
Reports
and
the
Sarbanes-Oxley
Act of
2002,
and
none
of the SEC
Reports,
including
those filed after January 19, 2006,
contained any
untrue statement of a material fact or omitted to state a material
fact
required to be stated therein or necessary to make the statements
made
therein,
in light of the circumstances under which they were made, not
misleading.
(b)
Except as set
forth in
SCHEDULE
4.6(B) of the
COMPANY
DISCLOSURE SCHEDULE the (i) audited
consolidated
balance sheets as of
October 31, 2005 (the "BALANCE
SHEET DATE" and the balance sheet as of
such date,
the
"BALANCE
SHEET") and October 31, 2004 and the audited
consolidated
statements of operations,
shareholders'
equity and cash
flows for each of the three years in the period ended
October 31, 2005
(including the related notes and schedules
thereto) of the Company and
(ii) the unaudited consolidated balance sheet as of August 31, 2006
and
the
unaudited
consolidated
statements of
operations,
shareholders'
equity and cash flows for the ten-month period ended August 31,
2006 of
the
Company
delivered
to
the
Parent
were
prepared
from,
are in
accordance with and accurately
reflect in all material
respects,
the
Company's
books
and
records
as of the
times
and for
the
periods
referred
to
therein,
present
fairly in all
material
respects
the
consolidated
financial
position
and
the
consolidated
results
of
operations and cash flows of the Company and its subsidiaries as of
the
dates
or for the
periods
presented
therein
and
were
prepared
in
accordance with United States generally accepted accounting
principles
("GAAP")
consistently
applied during the periods
involved (except as
set forth in the notes
contained
therein and subject,
in the case of
unaudited
statements,
to recurring audit adjustments normal in nature
and amount).
The financial
statements
referred to in clauses (i) and
(ii) hereof are referred to herein as the "COMPANY FINANCIALS."
(c) Except as reserved
against in the unaudited
consolidated
balance sheet as of August 31, 2006 or as set forth in SCHEDULE
4.6(C)
of the COMPANY DISCLOSURE SCHEDULE, as of the date hereof,
neither the
11
Company nor any of its
subsidiaries
have any material
liabilities or
obligations (absolute,
accrued, fixed, contingent or otherwise), other
than liabilities incurred in the ordinary course of business
consistent
with past practice since August 31, 2006.
SECTION
4.7
ENVIRONMENTAL
MATTERS.
To the actual
knowledge of the senior
officers
and
directors of the
Company, except as set forth in SCHEDULE 4.7 of the COMPANY
DISCLOSURE SCHEDULE:
(a)
The
Company
and
its
subsidiaries
have
complied
and
currently comply with all Environmental Laws;
(b) Neither the
Company
nor any of its
subsidiaries
is the
subject of any federal, state, local or foreign investigation,
decree,
order or judgment
and neither the Company nor any of its
subsidiaries
has
received
any
written
notice
or
claim,
or
entered
into
any
negotiations or agreements with any person, relating to compliance
with
or to
any
liability,
investigation
or
remedial
action
under
any
Environmental Laws;
(c)
Neither
the
Company
nor
any of its
subsidiaries
has
manufactured,
treated,
stored, disposed of, arranged for or permitted
the disposal of, generated, handled or released any Hazardous
Substance
in a manner that is in violation of any
Environmental
Law or owned or
operated
any
property
or facility
in a manner in
violation
of any
Environmental
Law that has given or would
reasonably
be
expected to
give rise to any liability, including any liability for response
costs,
corrective
action costs,
personal injury,
property
damage,
natural
resources damages or attorney fees pursuant to any Environmental
Laws;
(d) No
Hazardous
Substances
or other
conditions
have been
released or
otherwise
come to be located at any
property or facility
owned,
operated
or used by on
behalf
of the
Company
or any of its
subsidiaries in a manner that is in violation of any
Environmental Law
or has given or will give rise to liability under Environmental
Laws or
against
any
person
whose
liability
the
Company
or
any
of
its
subsidiaries
retained or assumed either
contractually or by operation
of law;
(e) The Company and each of its
subsidiaries
holds and is in
compliance
with all
permits
required
to conduct
its
business
and
operations under all applicable Environmental Laws;
(f)
Neither
the
Company
nor
any of its
subsidiaries
has
received any written
Environmental
Claim against it, nor has any such
Environmental Claim been threatened in writing;
(g) Neither the Company nor any of its subsidiaries has failed
to timely file all reports and notifications
required to be filed with
respect to all of its property and facilities or has failed to
generate
and
maintain
all
required
records
and data
under
all
applicable
Environmental Laws; and
12
(h)
Neither
the
Company
nor
any of its
subsidiaries
has
entered
into any
contract
wherein
it has
continuing
liability
or
responsibility
relating to
environmental
matters with respect to any
real property that is no longer owned or leased by any of them.
"ENVIRONMENTAL CLAIM" means any claim, demand, action, suit,
complaint,
proceeding,
directive,
investigation,
lien,
demand
letter
or
notice
of
noncompliance,
violation
or
liability
by any person
asserting
liability or
potential liability (including liability or potential liability for
enforcement,
investigatory
costs,
cleanup
costs,
governmental
response
costs,
natural
resource damages,
property damage, personal injury, fines or penalties) arising
out of,
based on or
resulting
from
(x) the
presence,
discharge,
emission,
release or threatened
release of any Hazardous
Substance at any location;
(y)
circumstances
forming the basis of any
violation
or alleged
violation of any
Environmental
Law or any permit
issued
under any
Environmental
Law;
or (z)
otherwise relating to obligations or liabilities under any
Environmental Law.
"ENVIRONMENTAL
LAWS" means any and all
applicable
federal,
state or
local statutes, regulations,
ordinances, guidelines, codes, decrees, permits or
other legally
enforceable
requirement
of any foreign
government,
the United
States, or any state, local, municipal or other governmental
entity, regulating,
relating to or imposing liability or standards of conduct
concerning
protection
of
the
environment
(including
indoor
air,
ambient
air,
surface
water,
groundwater,
land surface,
subsurface
strata,
or plant or animal species) or
human health as affected by the environment or Hazardous
Substances
(including
employee health and safety).
"HAZARDOUS
SUBSTANCE"
means all explosive or radioactive
substances,
materials
or
wastes,
hazardous
or toxic
substances,
materials
or
wastes,
asbestos,
asbestos-containing
materials,
mold,
pollutants
and
contaminants
(including
petroleum
or
any
fraction
thereof)
and
all
other
substances,
materials or wastes, whether or not defined as such, that are
regulated pursuant
to or that could result in liability under any applicable
Environmental Law.
Notwithstanding any of the representations and warranties contained
elsewhere in
this
Agreement,
all
environmental
matters are governed
exclusively
by this
Section 4.7.
SECTION 4.8 COMPLIANCE WITH APPLICABLE LAWS.
(a)
The
Company
and
its
subsidiaries
hold
all
material
permits, licenses,
variances,
exemptions, orders and approvals of all
Governmental
Entities (the "Company Permits") required in order to own
their assets and to conduct
their
respective
businesses as currently
conducted,
except where the failure to hold such Company Permits would
not, individually or in the aggregate, be material to the
operations of
the Company or its subsidiaries, and are in compliance with all
Company
Permits,
except where the failure to comply would not, individually or
in the
aggregate,
be material to the operations of the Company or its
subsidiaries.
The operations of the Company and its subsidiaries
have
been
conducted
in
compliance
with
all
material
applicable
laws,
ordinances
and
regulations
of
any
Governmental
Entity,
except
violations which are not, individually or in the aggregate,
material to
the operations of the Company or its subsidiaries.
13
(b) This
Section
4.8 does not
relate
to (i)
environmental
matters,
which are instead the subject of Section 4.7,
(ii)
employee
benefits
matters,
which are instead the subject of Section
4.12,
or
(iii) tax matters, which are instead the subject of Section 4.14.
SECTION
4.9
LITIGATION.
Except as set forth in SCHEDULE 4.9 of the COMPANY DISCLOSURE
SCHEDULE,
there is no suit,
claim,
action,
proceeding or
investigation
("LITIGATION")
pending or, to the knowledge of the Company,
threatened
against the Company or
any of its
subsidiaries
which,
if adversely
determined,
would be reasonably
expected to result in a liability to the Company in excess of Two
Hundred
Fifty
Thousand
Dollars
($250,000) in the aggregate.
Except as set forth in SCHEDULE
4.9 of the
COMPANY
DISCLOSURE
SCHEDULE,
neither
the
Company nor any of its
subsidiaries is subject to any material
outstanding order, writ,
injunction or
decree.
Except as disclosed in SCHEDULE 4.9 of the COMPANY DISCLOSURE
SCHEDULE,
there is no litigation that the Company or its subsidiaries have
pending against
other parties.
SECTION 4.10
INFORMATION.
None of the
information
supplied or to be supplied by the Company for
inclusion in (i) the Proxy Statement or (ii) any other document to
be filed with
any Governmental Entity in connection with the transactions
contemplated by this
Agreement (the "OTHER
FILINGS")
will, at the
respective
times filed with any
Governmental Entity and, in addition, in the case of the Proxy
Statement, at the
date it or any amendment or supplement is mailed to shareholders,
at the time of
the Special Meeting and at Closing,
contain any untrue
statement of a material
fact or omit to state
any
material
fact
required
to be
stated
therein
or
necessary
in
order
to make
the
statements
made
therein,
in
light of the
circumstances
under
which
they were
made,
not
misleading,
except
that no
representation
is made by the Company with respect to
statements
made therein
based on information
supplied by the Parent or the Purchaser
specifically
for
inclusion in the Proxy Statement.
SECTION 4.11 CERTAIN APPROVALS.
The
Company
Board
has taken any and all
necessary
and
appropriate
action to render the
provisions
of
Sections
351.407
and 351.459 of the GBCL
inapplicable to the Merger and the transactions
contemplated by this Agreement.
No other
state
takeover
statute or
similar
domestic
or foreign
statute or
regulation
applies
or
purports
to apply to the
Merger
or the
transactions
contemplated by this Agreement.
SECTION 4.12 EMPLOYEE BENEFIT PLANS.
(a)
SCHEDULE
4.12(A)
of
the
COMPANY
DISCLOSURE
SCHEDULE
includes
a
complete
list of all
material
employee
benefit
plans,
programs,
agreements and other arrangements
providing benefits to any
former or current
employee,
officer or director of the Company or any
of its
subsidiaries or any beneficiary or dependent
thereof,
whether
covering one person or more than one person, sponsored or
maintained by
the Company or any of its
subsidiaries
or to which the Company or any
of its
subsidiaries
contributes or is obligated to contribute for the
benefit of U.S. employees of the Company and its subsidiaries
("LISTED
14
PLANS").
Without
limiting the generality of the
foregoing,
the term
"Listed Plans"
includes all employee
welfare benefit plans within the
meaning of Section 3(1) of the Employee
Retirement Income Security Act
of
1974,
as
amended,
and
the
regulations
promulgated
thereunder
("ERISA") and all employee
pension benefit plans within the meaning of
Section
3(2)
of
ERISA
and
all
other
material
employee
benefit,
employment,
bonus, incentive,
profit sharing,
thrift,
compensation,
restricted stock,
retirement,
savings,
deferred compensation,
stock
purchase,
stock
option,
termination,
severance,
change in control,
fringe
benefit
and
other
similar
plans,
programs,
agreements
or
arrangements.
(b) With
respect to each
Listed
Plan,
the Company has made
available to the Parent a true,
correct and complete copy of: (i) each
writing
constituting
a part of such Listed Plan,
including,
without
limitation,
all plan documents,
benefit schedules,
trust agreements,
and
insurance
contracts
and other
funding
vehicles;
(ii) the most
recent Annual Report (Form 5500 Series) and accompanying
schedule,
if
any;
(iii) the current
summary
plan
description
(and any
material
modification to such description),
if any; (iv) the most recent annual
financial report, if any; (v) the most recent actuarial report, if
any;
and (vi) the most recent determination letter from the Internal
Revenue
Service (the "IRS"), if any.
(c)
SCHEDULE
4.12(C)
of
the
COMPANY
DISCLOSURE
SCHEDULE
identifies
each Listed Plan that is intended to be a "qualified
plan"
within
the
meaning of Section
401(a) of the Code,
and the
Treasury
Regulations
thereunder
("QUALIFIED
PLANS").
The
IRS has
issued
a
favorable
determination
letter
(or,
with
respect
to
standardized
prototype plans, an opinion letter) with respect to each Qualified
Plan
that has not been revoked,
and, to the Company's knowledge,
there are
no existing
circumstances nor any events that have occurred that could
reasonably be expected to adversely
affect the qualified status of any
Qualified Plan or the related trust. No Listed Plan is intended to
meet
the
requirements
of Section
501(c)(9) of the Code. No Listed Plan is
subject to Title IV or Section 302 of ERISA.
(d) Each Listed Plan has been operated and administered in all
material
respects in
accordance
with its terms and
applicable
law,
including
but not limited to ERISA and the Code.
With respect to each
Listed Plan, no event has occurred and there exists no condition or
set
of
circumstances in connection with which the Company could be subject
to
any
liability
that,
individually
or
in
the
aggregate,
would
reasonably
be
expected
to
have a
Material
Adverse
Effect
on the
Company.
(e) Except as set forth in
SCHEDULE
4.12(E)
of the
COMPANY
DISCLOSURE
SCHEDULE,
neither the Company nor any of its
subsidiaries
contributes to or has ever contributed to any multiemployer plan
within
the meaning of Section 4001(a)(3) of ERISA ("MULTIEMPLOYER PLAN").
With
respect to each Multiemployer Plan in which the Company, any
subsidiary
or any ERISA Affiliate
participates or has
participated,
(i) none of
the
Company,
any
of its
subsidiaries
or any
ERISA
Affiliate
has
withdrawn,
partially withdrawn, or received any notice of any claim or
demand for withdrawal liability or partial withdrawal
liability;
(ii)
none of the Company nor any of its
subsidiaries or any ERISA Affiliate
has received any notice that any such plan is in
reorganization,
that
increased
contributions
may be required to avoid a reduction
in plan
benefits or the
imposition of any excise tax, or that any such plan is
or
may
become
insolvent;
(iii)
none
of
the
Company,
any of its
subsidiaries
or any ERISA
Affiliate
has failed to make any
required
15
contributions; (iv) to the Company's knowledge, no such plan is a
party
to any
pending
merger
or asset
or
liability
transfer;
(v) to the
Company's knowledge, there are no PBGC proceedings against or
affecting
any such plan; and (vi) none of the Company, any of its
subsidiaries or
any ERISA Affiliate has any withdrawal liability by reason of a
sale of
assets
pursuant
to
Section
4204
of
ERISA.
With
respect
to each
Multiemployer
Plan,
as of its last
valuation
date,
the
amount
of
potential
withdrawal liability of the Company, any of its subsidiaries
and any ERISA
Affiliates
would not
reasonably
be expected to have a
Material
Adverse
Effect on the Company.
To the best knowledge of the
Company,
nothing
has
occurred
or is
expected
to occur
that would
materially
increase
the
amount
of the
total
potential
withdrawal
liability
for any such
plan
over
the
amount
shown in the
Company
Disclosure Schedule.
(f) Except as set forth in SCHEDULE
4.12(F) of the
COMPANY'S
DISCLOSURE
SCHEDULE,
neither the Company nor any of its
subsidiaries
has any liability for life,
health,
medical or other welfare benefits
to former employees or beneficiaries or dependents thereof,
except for
health
continuation
coverage as required by Section 4980B of the Code
or Part 6 of Title I of ERISA or applicable
state law at no expense to
the Company and its subsidiaries.
(g) There are no pending or, to the
knowledge of the Company,
threatened
claims
(other
than claims for
benefits
in the
ordinary
course),
lawsuits,
arbitrations or other alternate dispute resolution
proceedings
which have been asserted or instituted
against the Listed
Plans,
any
fiduciaries
thereof
with
respect to their duties to the
Listed Plans or the assets of any of the trusts under any of the
Listed
Plans which could
reasonably be expected to result in any liability of
the Company or any of its
subsidiaries to any Listed Plan
participant
or beneficiary, the PBGC, the Department of Treasury, the
Department of
Labor or any Multiemployer Plan.
(h) Other than as disclosed in SCHEDULE 4.12(H) of the COMPANY
DISCLOSURE
SCHEDULE,
neither
the
execution
and
delivery
of
this
Agreement nor the consummation of the transactions
contemplated hereby
will (either alone or in conjunction
with any other act required to be
taken in connection with the transactions
contemplated
hereby) result
in,
cause the
accelerated
vesting or delivery
of, or
increase
the
amount or value of,
any
payment or
benefit
to any
employee
of the
Company or any of its
subsidiaries,
or to fund any
"rabbi"
trust or
similar trust.
(i) Except as
