Exhibit 2.1
EXECUTION COPY
AGREEMENT AND PLAN OF
MERGER
dated as of October 21, 2004
by and among
SOUTHERN PERU COPPER CORPORATION,
SPCC MERGER SUB, INC.
and
AMERICAS SALES COMPANY, INC.,
AMERICAS MINING CORPORATION,
MINERA MÉXICO S.A. DE C.V.
TABLE OF
CONTENTS
AGREEMENT AND PLAN OF
MERGER
THIS AGREEMENT AND PLAN OF MERGER,
dated as of October 21, 2004 (this “ Agreement
”), is made by and among Southern Peru Copper Corporation, a
Delaware Corporation (“ Parent ”), SPCC Merger
Sub, Inc., a Delaware corporation and wholly owned subsidiary of
Parent (“ Merger Sub ”), Americas Sales Company,
Inc., a Delaware corporation (“ ASC ”), Americas
Mining Corporation, a Delaware corporation (“ AMC
”), and Minera México S.A. de C.V., a corporation
(sociedad anónima de capital variable) organized under
the laws of the United Méxican States (“
México ”) and a subsidiary of ASC (the “
Company ”).
WHEREAS, Parent has authority to
issue a total of 100,000,000 shares of its capital stock, par value
$0.01 per share (the “ Parent Stock ”),
consisting of 65,900,833 shares of Class A Common Stock (the
“ Parent Class A Common Stock ”) and 34,099,167
shares of Common Stock (“ Parent Common Stock ”)
as of the date hereof;
WHEREAS, Affiliates of ASC have
proposed to the board of directors of Parent (the “ Parent
Board ”) a transaction pursuant to which Parent would,
among other things, acquire the outstanding shares of the Company
currently owned by ASC and AMC would acquire additional shares of
Parent Common Stock;
WHEREAS, AMC owns, through the
Guaranty Trust and directly, 763,034,355 shares of the Company,
representing approximately 99.1463% of the outstanding shares of
the Company (“ Company Common Stock ”), as of
the date hereof, and Parent and its Affiliates will own such shares
of Company Common Stock on the Closing Date;
WHEREAS, prior to the Closing Date,
AMC will contribute all the shares representing a 99.1463% interest
in the Company to ASC (the “ Contribution
”);
WHEREAS, for Méxican tax
purposes, it is intended that the Contribution shall be a taxable
transaction under Méxican Federal Income Tax Law;
WHEREAS, the Parent Board has
established a special committee of the Parent Board comprised
solely of directors unaffiliated with ASC or its Affiliates (the
“ Special Committee ”) to consider such proposal
and make a recommendation to the Parent Board with respect
thereto;
WHEREAS, the Special Committee,
after consultation with its independent financial advisors, legal
counsel and mining consultants, and the Parent Board, based on the
recommendation of the Special Committee, (a) have determined that
each of (i) the merger of Merger Sub with and into ASC, with ASC as
the surviving corporation (the “ Merger ”), upon
the terms and subject to the conditions set forth in this
Agreement, (ii) the issuance of Parent Common Stock in the Merger,
and (iii) the amendments to Parent’s restated certificate of
incorporation contemplated by this Agreement is advisable, fair to
and in the best interests of Parent’s stockholders (other
than Affiliates of ASC), and (b) have approved this Agreement, the
Merger and the other transactions contemplated hereby;
WHEREAS, the Special Committee and
the Parent Board, based on the recommendation of the Special
Committee, have resolved to recommend that Parent’s
stockholders approve the
issuance of shares of Parent Common Stock in the
Merger, and the amendments to Parent’s restated certificate
of incorporation contemplated by this Agreement;
WHEREAS, the board of directors of
ASC and Merger Sub have determined that this Agreement and the
Merger are advisable, fair to and in the best interests of their
respective corporation and stockholders (as applicable) and have
approved this Agreement and the Merger;
WHEREAS, for federal income tax
purposes, it is intended that the Merger shall qualify as a
reorganization within the meaning of Section 368(a) of the
Internal Revenue Code of 1986, as amended (the “ Code
”); and
WHEREAS, ASC, AMC, the Company,
Parent, and Merger Sub desire to make certain representations,
warranties, covenants and agreements in connection with the Merger
and also to prescribe various conditions to the Merger;
NOW, THEREFORE, in consideration of
the representations, warranties, covenants and agreements contained
in this Agreement, the parties agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
As used in this Agreement, the
following terms shall have the respective meanings set forth
below:
“ Affiliate ” of
a specified Person means a Person who, directly or indirectly,
through one or more intermediaries controls, is controlled by or is
under common control with such specified Person; provided
that as used in this Agreement with respect to ASC, or AMC the term
“Affiliate” or “Affiliates” means
Affiliates of such party, other than Parent and Parent’s
Subsidiaries. For purposes of this definition,
“control” (including, with correlative meanings, the
terms “controlled by” and “under common control
with”) means the possession, direct or indirect, of the power
to direct or cause the direction of the management and policies of
a Person, whether through the ownership of voting shares, by
contract or otherwise.
“ Affiliate Transaction
” shall mean any transaction, business dealing or material
financial interest in any transaction between ASC, the Company or
any of the Company’s Subsidiaries, on the one hand, and AMC
or any of its Affiliates (other than ASC, the Company or any of the
Company’s Subsidiaries), on the other hand.
“ Agreement ”
shall have the meaning set forth in the preamble.
“ AMC ” shall
have the meaning set forth in the preamble.
“ AMC Consolidated Net
Worth ” means the average of the sum of (i) the total
amount of all assets of AMC and its Subsidiaries, less (ii) the
total amount of all liabilities of AMC and its Subsidiaries, in
each case determined on a consolidated basis in
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accordance with GAAP and in accordance with a
balance sheet demonstrating compliance with Section 5.18 during
each fiscal year.
“ Article 190 ”
shall mean article 190 of the Méxican Federal Income Tax Law,
as in effect on the date of this Agreement.
“ ASC ” shall
have the meaning set forth in the preamble.
“ ASC Common Stock
” shall have the meaning set forth in Section
2.8(b).
“ ASC Securities
” shall have the meaning set forth in Section
3.2(b).
“ Authorized Share
Amendment ” shall have the meaning set forth in Section
5.1(a).
“ Benefit Plans ”
shall have the meaning set forth in Section 3.11(a).
“ Business Day ”
shall mean any day, other than a Saturday, Sunday or one on which
banks are authorized by law to be closed in New York, New York or
México City, México.
“ Certificate of Merger
” shall have the meaning set forth in Section 2.2.
“ Certificate ”
shall have the meaning set forth in Section 2.8(b).
“ Claim Notice ”
shall have the meaning set forth in Section 8.1(b).
“ Closing ” shall
have the meaning set forth in Section 2.2.
“ Closing Date ”
shall have the meaning set forth in Section 2.2.
“ Code ” shall
have the meaning set forth in the recitals.
“ Common Agreement
” means that certain Common Agreement dated April 29,
2003, by and among the Company, the Company’s Subsidiaries,
Bank of America, N.A., HSBC Bank USA, The Bank of New York and the
other parties thereto.
“ Company ” shall
have the meaning set forth in the preamble.
“ Company 2003 Financial
Statements ” shall have the meaning set forth in
Section 3.4.
“ Company 2003 Form
20-F ” shall have the meaning set forth in Section
3.16.
“ Company Balance Sheet
” means the audited balance sheet for the period ended
December 31, 2003, contained in the Company 2003 Form 20-F, filed
with the SEC on July 14, 2004.
“ Company Common Stock
” shall have the meaning set forth in the
recitals.
“ Company Disclosure
Schedule ” means the schedule of disclosures delivered by
the Seller Parties to Parent and Merger Sub concurrent with the
execution of this Agreement.
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“ Company Financial
Statements ” shall have the meaning set forth in Section
3.4.
“ Company Intellectual
Property ” means the intellectual property rights used in
the conduct of the business of the Company or its Subsidiaries,
including all patents and patent applications, trademarks,
trademark registrations and applications, domain names, copyrights
and copyright registrations and applications, computer programs,
technology, know-how, trade secrets, proprietary processes,
inventions, service marks, original works of authorship and
formulae, all other proprietary rights, all copies and tangible
embodiments thereof (in whatever form or medium), together with the
goodwill associated with the foregoing and any rights in or
licenses to or from a third party in any of the foregoing, and any
past, present, or future claims or causes of actions arising out of
or related to any infringement or misappropriation of any of the
foregoing.
“ Company’s
Knowledge ” means the actual knowledge of Héctor
Nieto Castilla. For purposes of: (a) Section
3.12(b) (Labor Matters), the foregoing list shall also include
Gabino Páez González; (b) Section 3.15 (Absence of
Litigation), the foregoing list shall also include Ligia Sandoval
Parra and Armando F. Ortega Gómez; (c) Section
3.16(b) and Section 3.16(c) (Material Contracts), the foregoing
list shall also include Agustín Avila Martínez; and (d)
Section 3.17(b) (Environmental Laws and Regulations), the foregoing
list shall also include Rodolfo Rubio Campos and Vidal
Muhech Dip.
“ Company Material Adverse
Effect ” means any event, change, circumstance, effect or
state of facts that is or is reasonably expected to be materially
adverse to (a) the business, results of operations, condition
(financial or otherwise), prospects, assets or liabilities of ASC,
(b) the business, results of operations, condition (financial or
otherwise), prospects, assets or liabilities of the Company and its
Subsidiaries, taken as a whole, or (c) the ability of the Seller
Parties to consummate any of the transactions contemplated by this
Agreement, including the Merger, except to the extent that such
adverse effect results from (i) general economic conditions or
changes therein, (ii) financial or securities market fluctuations
or conditions, (iii) changes in, or events or conditions affecting,
the industries or businesses in which the Company and its
Subsidiaries operate, or (iv) the announcement of the transactions
contemplated by this Agreement.
“ Company Permits
” shall have the meaning set forth in Section
3.10.
“ Company SEC Documents
” shall have the meaning set forth in Section 3.4.
“ Company Securities
” shall have the meaning set forth in Section
3.2(a).
“ CONASEV ” means
the Peruvian National Supervisory Commission of Companies &
Securities (Comisión Nacionel Supervisora de Empresas y
Valores).
“ Contribution ”
shall have the meaning set forth in the recitals.
“ Corporate Governance
Amendments ” shall have the meaning set forth in Section
5.1(a).
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“ Damages ” shall
have the meaning set forth in Section 8.1(a). For purposes of
this Agreement, Damages shall not include any indirect or
consequential damages, including, without limitation, the effects
of any multiple of any direct Damage.
“ DGCL ” means
the General Corporation Law of the State of Delaware.
“ Effective Time
” shall have the meaning set forth in Section 2.2.
“ Environmental Claims
” shall mean all notices of violation, liens, claims,
demands, suits, or causes of action for any damage, including,
without limitation, personal injury or property damage, arising out
of or related to Environmental Conditions or pursuant to applicable
Environmental Laws. By way of example only (and not by way of
limitation), Environmental Claims include (i) claims under any
contract that establishes obligations under applicable
Environmental Laws with respect to Environmental Conditions between
the Company or its Subsidiaries and any other person,
(ii) claims for actual or threatened damages to natural
resources under applicable Environmental Laws, (iii) claims
for nuisance or its statutory equivalent under applicable
Environmental Laws, (iv) claims for the recovery of response
costs, or administrative or judicial orders directing the
performance of investigations, responses or remedial actions under
applicable Environmental Laws, (v) claims pursuant to
applicable Environmental Laws or with respect to Environmental
Conditions for restitution, contribution, or indemnity,
(vi) claims for fines, penalties or liens against real
property pursuant to applicable Environmental Laws or with respect
to Environmental Conditions, (vii) claims pursuant to
applicable Environmental Laws or arising out of Environmental
Conditions for injunctive relief or other orders or notices of
violation from any Governmental Entity, and (viii) with regard
to any present or former employees, claims relating to exposure to
or injury from Environmental Conditions.
“ Environmental
Conditions ” shall mean Releases into or present in the
environment, including natural resources ( e.g. , flora and
fauna), soil, surface water, ground water, any present or potential
drinking water supply, subsurface strata or ambient air of
Hazardous Substances, relating to or arising out of the use,
handling, storage, treatment, disposal, recycling, generation,
transportation, Release, or threatened Release of Hazardous
Substances. With respect to Environmental Claims by third
parties, Environmental Conditions also include the exposure of
persons to Hazardous Substances at the work place.
“ Environmental Laws
” means all applicable statutes, laws, ordinances, codes,
common law, licenses, permits, authorizations (including, without
limitation, licencia de funcionamiento ), rules,
regulations, or legally-binding administrative or judicial orders
relating to pollution or hazardous substances or protection of
human health or the environment (including ambient air, surface
water, ground water, land surface or subsurface strata) from
emission, discharges, releases, disposal or handling of any
pollutants or hazardous substances, each as amended or in effect on
the Closing Date.
“ Exchange Act ”
means the Securities Exchange Act of 1934, as amended, and the
rules and regulations promulgated thereunder.
“ GAAP ” means
U.S. generally accepted accounting principles.
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“ Guaranty Trust
” shall mean the Mexican Trust Agreement ( Fideicomiso
Irrevocable de Garantía ) dated as of April 29, 2003
entered into by and between certain Affiliates of the Company as
grantors and GE Capital Bank, Sociedad Anónima,
Institución de Banca Múltiple GE Capital Grupo Financiero
as trustee, in order to guaranty the obligations of the Common
Agreement and the guaranty trust to be incorporated by the Company
and certain Affiliates of the Company as part of the refinancing
described in Section 5.16.
“ Governmental Entity
” shall have the meaning set forth in Section 3.6.
“ Hazardous Substance
” means any substance presently listed, defined, designated
or classified as hazardous, toxic, radioactive or dangerous, or
otherwise regulated, under any Environmental Law, including any
toxic waste, pollutant, contaminant, hazardous substance, toxic
substance, hazardous waste, special waste, industrial substance or
petroleum or any derivative or byproduct thereof, radon,
radioactive material, asbestos, or asbestos containing material,
urea formaldehyde, foam insulation or polychlorinated biphenyls,
lead or lead-based paints or materials.
“ IMPAC ” shall
have the meaning set forth in Section 3.14(b).
“ Indebtedness ”
of any Person means (a) all obligations of such Person for borrowed
money or for the deferred purchase price of property or services
(other than current trade liabilities incurred in the ordinary
course of business and payable in accordance with customary
practices, and excluding ordinary operating leases), (b) any other
obligations of such Person that are evidenced by a note, bond,
debenture or similar instrument, (c) all obligations under
conditional sale or other title retention agreements relating to
property purchased, (d) capital lease or sale-leaseback
obligations, (e) all liabilities secured by any Lien on any
property (other than ordinary operating leases), and (f) any
guarantee or assumption of any of the foregoing in clauses (a)
through (e) above or guaranty of minimum equity or capital or any
make-whole or similar obligation or any other guarantee of
indebtedness of a third party.
“ Indemnity Cap ”
shall equal $600,000,000 (six hundred million dollars).
“ Indemnity Deductible
” shall have the meaning set forth in Section
8.2(b).
“ Interim Balance Sheet
” shall mean the unaudited consolidated balance sheet of the
Company and the Company’s Subsidiaries, dated June 30,
2004.
“ Interim Financial
Statements ” shall mean the unaudited Interim Balance
Sheet and the related unaudited statements of income, retained
earnings and cash flows for the period ended June 30,
2004.
“ Lien ” means,
with respect to any asset (including any security), any security
interests, liens, claims, charges, title defects, deficiencies or
exceptions (including, with respect to real property leases,
subleases, assignments, licenses or other agreements granting to
any third party any interest in a real property lease or any right
to the use or occupancy of any leased real property), mortgages,
pledges, easements, encroachments, restrictions on use,
rights-of-way, rights of first refusal, options, conditional sales
or other title retention agreements, covenants,
6
conditions or other similar restrictions
(including restrictions on transfer) or other encumbrances of any
nature whatsoever in respect of such asset.
“ Material Contracts
” shall have the meaning set forth in Section
3.16(a).
“ Merger ” shall
have the meaning set forth in the recitals.
“ Merger Consideration
” shall have the meaning set forth in Section
2.8(b).
“ Merger Sub ”
shall have the meaning set forth in the preamble.
“ Méxican GAAP
” means Méxican generally accepted accounting
principles.
“ México ”
shall have the meaning set forth in the preamble.
“ MS Common Stock
” means shares of common stock, par value $.01 per share, of
Merger Sub.
“ NOLs ” shall
have the meaning set forth in Section 3.14(b).
“ NYSE ” means
the New York Stock Exchange.
“ Outside Date ”
shall mean the eight month anniversary of the date of execution of
this Agreement.
“ Parent ” shall
have the meaning set forth in the preamble.
“ Parent Amendment
” shall have the meaning set forth in Section
5.1(a).
“ Parent Board ”
shall have the meaning set forth in the recitals.
“ Parent Claims ”
shall have the meaning set forth in Section 8.1(a).
“ Parent Class A Common
Stock ” shall have the meaning set forth in the
recitals.
“ Parent Common Stock
” shall have the meaning set forth in the
recitals.
“ Parent Disclosure
Schedule ” means the schedule of disclosures delivered by
Parent to the Seller Parties concurrent with the execution of this
Agreement.
“ Parent Financial
Statements ” shall have the meaning set forth in Section
4.7.
“ Parent Issuance
” shall have the meaning set forth in Section
5.1(b).
“ Parent Material Adverse
Effect ” means any event, change, circumstance, effect or
state of facts that is or is reasonably expected to be materially
adverse to (a) the business, results of operations, condition
(financial or otherwise), prospects, assets or liabilities of
Parent, taken as a whole, or (b) the ability of Parent to
consummate the Merger, except to the extent that such adverse
effect results from (i) general economic conditions or changes
therein, (ii) financial or
7
securities market fluctuations or conditions,
(iii) changes in, or events or conditions affecting, the industries
or businesses in which Parent and its Subsidiaries operate, or (iv)
the announcement of the transactions contemplated by this
Agreement.
“ Parent Party ”
shall have the meaning set forth in Section 8.1(a).
“ Parent SEC Documents
” shall have the meaning set forth in Section 4.7.
“ Parent Stock ”
shall have the meaning set forth in the recitals.
“ Parent Stockholder
Approval ” means:
(a)
with respect to the Parent Issuance, the affirmative vote of a
majority of the votes cast thereon by the holders of the
outstanding shares of Parent Stock ( provided that the total
votes cast on the Parent Issuance represent at least a majority of
the total combined voting power of the outstanding shares of Parent
Stock entitled to vote thereon);
(b)
with respect to the Authorized Share Amendment: (i) the
affirmative vote of the holders of two-thirds (calculated without
giving effect to any super majority voting rights of the holders of
Parent Class A Common Stock) of the outstanding shares of Parent
Stock entitled to vote thereon; and (ii) the affirmative vote of
the holders of shares of Parent Stock representing a majority of
the total combined voting power of the outstanding shares of Parent
Stock entitled to vote thereon; and
(c)
with respect to the Corporate Governance Amendments, the
affirmative vote of the holders of shares of Parent Stock
representing a majority of the total combined voting power of the
outstanding shares of Parent Stock entitled to vote
thereon.
“ Permitted Liens
” means (a) mechanics’, carriers’,
workers’, repairers’, materialmen’s,
warehousemen’s, and other similar Liens arising in the
ordinary course of business and either (i) for sums not yet
due and payable or (ii) such Liens as are less than $5,000,000 in
amount and are being contested in good faith and by appropriate
proceedings, (b) Liens under any credit agreement in existence
on the date hereof, (c) Liens for current Taxes not yet due or
payable or being contested in good faith or for supplemental Taxes
for which a written notice of assessment has not been received, and
(d) any other covenants, conditions, restrictions,
reservations, rights and non-monetary Liens incurred or suffered in
the ordinary course of business and that (i) do not materially
detract from the current use of the applicable real property and
(ii) individually or in the aggregate, has not had and would
not reasonably be expected to have a Company Material Adverse
Effect or a Parent Material Adverse Effect, as
applicable.
“ Person ” means
an individual, corporation, limited liability company, partnership,
association, trust, unincorporated organization, other entity or
“group” (as defined in the Exchange Act).
“ Personnel ”
shall mean, with respect to the Company and its Subsidiaries, all
employees on a full or part-time basis of the Company or any of its
Subsidiaries.
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“ Pre-Closing
Environmental Matters ” shall mean Remediation at any
time to the extent relating to or arising out of any fact, event,
or condition existing on or prior to the Closing Date; provided,
however, that Pre-Closing Environmental Matters shall not include
Remediation with respect to matters set forth in Section 3.17 of
the Company Disclosure Schedule or Remediation to the extent
required as a result of (i) a change in Environmental Law
(including without limitation, any standards for Remediation) after
the Closing Date; or (ii) closure of any mine or mining operation,
which closure was not itself required by Environmental Law as in
effect on or prior to the Closing Date; and provided, further,
however, that Pre-Closing Environmental Matters shall be deemed to
include the Scheduled Items.
“ Proxy Statement
” shall have the meaning set forth in Section 5.2.
“ Release ” shall
mean any past or present releasing, spilling, leaking, pumping,
pouring, emitting, emptying, discharging, injecting, escaping,
leaching, disposing, or dumping into the environment or the
workplace of any Hazardous Substance.
“ Remediation ”
shall mean an action of any kind by the Company or any of its
Subsidiaries required to respond to an Environmental Claim and/or
to comply with Environmental Laws, including but not limited to the
following activities: (i) monitoring, investigation,
assessment, treatment, cleanup, containment, removal, mitigation,
response or restoration work required under Environmental Law;
(ii) responding to and/or defending any Environmental Claim
alleging potential liability for property damage (including claims
for interference with use and diminution in value) or death or
injury to Persons; (iii) negotiating with or obtaining any permits,
consents, approvals or authorizations from any Governmental Entity
necessary to address, correct or respond to an Environmental Claim
and/or comply with Environmental Laws; (iv) actions necessary to
obtain a written notice from a Governmental Entity with
jurisdiction over the real property or at an off-site location
under Environmental Laws that no material additional work is
required by such Governmental Entity under any Environmental Laws;
(v) the use, implementation, application, installation, operation
or maintenance on the real property or an off-site location of
remedial technologies applied to the surface or subsurface soils,
excavation and treatment or disposal of soils at an off-site
location, systems for long-term treatment of surface water or
groundwater, replacement, removal or encapsulation of friable or
damaged asbestos-containing materials, engineering controls or
institutional controls required to comply with Environmental Laws;
(vi) the design, acquisition and installation of pollution control
equipment required under Environmental Laws; and (vii) the
discontinuation or modification of certain operations as required
to comply with Environmental Laws.
“ Representative
” shall mean, with respect to any Person, any officer,
director, principal, attorney, employee, agent, consultant,
accountant or other representative of such Person.
“ Restricted Period
” shall have the meaning set forth in Section
5.18.
“ Scheduled
Items ” shall mean the matters set forth on Schedule
8.1(a)(i)(3) of the Company Disclosure Schedule.
“ SEC ” means the
U.S. Securities and Exchange Commission.
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“ Securities Act
” means the Securities Act of 1933, as amended, and the rules
and regulations promulgated thereunder.
“ Seller Parties
” means, collectively, AMC, ASC and the Company.
“ Special Committee
” shall have the meaning set forth in the
recitals.
“ Special Independent
Directors ” shall have the meaning ascribed to it in the
Parent Amendment.
“ Stockholders Meeting
” shall have the meaning set forth in Section 5.1.
“ Subsidiary ”
means, with respect to any Person, any other Person, whether
incorporated or unincorporated or domestic or foreign to the United
States, of which (a) such first Person or any other Subsidiary of
such first Person is a general partner (excluding such partnerships
where such first Person or any Subsidiary of such first Person does
not have a majority of the voting interest in such partnership) or
(b) at least a majority of the securities or other interests having
by their terms ordinary voting power to elect a majority of the
board of directors or others performing similar functions with
respect to such corporation or other organization is, directly or
indirectly, owned or controlled by such first Person or by any one
or more of its Subsidiaries, or by such first Person and one or
more of its Subsidiaries.
“ Subsidiary
Transaction ” shall mean any transaction either (i)
between the Company and any of its Subsidiaries, or (ii) between
Subsidiaries of the Company.
“ Surviving Corporation
” shall have the meaning set forth in Section 2.1.
“ Tax Returns ”
means all reports, returns, information returns, claims for refund,
elections, estimated Tax filings or payments, requests for
extension, documents, statements, declarations and certifications
and other information required to be filed with respect to Taxes,
including attachments thereto and amendments thereof.
“ Taxes ” means
any and all taxes, charges, fees, levies, tariffs, duties,
liabilities, impositions or other assessments of any kind imposed
by any Governmental Entity, including income, alternative or add-on
minimum tax, gross receipts, sales, use, value-added, transfer,
gains, ad valorem, franchise, profits, license, withholding,
payroll, employment, excise, severance, stamp, occupation, premium,
property, environmental or windfall profit tax, custom, duty or
other tax, or other like assessment or charge, together with any
related interest, penalty, addition to tax or additional amount,
and shall include any liability for the Taxes of any other Person
under Treasury Regulation Section 1.1502-6 (or any similar
provision of state, local, or foreign law), or as a transferee or
successor, by contract, or otherwise.
“ Third-Party Claim
” shall have the meaning set forth in Section
8.1(b).
“ Trading Day ”
shall mean a day on which the NYSE is open for the transaction of
business.
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“ Transaction Dividend
” shall mean a cash dividend in the fixed amount of $100
million payable to all of the holders of Parent Stock, such
dividend as declared by the Parent Board out of funds legally
available for such purpose.
Section
2.1
The Merger . Subject to the conditions of this
Agreement and in accordance with the DGCL, the parties hereto shall
consummate the Merger pursuant to which (a) Merger Sub shall merge
with and into ASC and the separate corporate existence of Merger
Sub shall thereupon cease, (b) ASC shall be the surviving
corporation in the Merger (sometimes referred to as the “
Surviving Corporation ”) and shall continue to be
governed by the laws of the State of Delaware, and (c) the
corporate existence of ASC, with all of its rights, privileges,
immunities, powers and franchises, shall continue unaffected by the
Merger.
Section
2.2
Effective Time; Closing .
(a)
As soon as practicable after the satisfaction or waiver (to the
extent permitted by applicable law) of the conditions set forth in
Article VI, the parties hereto shall cause a certificate of merger
(the “ Certificate of Merger ”) to be executed
and filed on the Closing Date (or on such other date as Parent and
ASC may agree) with the Secretary of State of the State of Delaware
in such form as required by, and executed in accordance with, the
relevant provisions of the DGCL. The closing of the Merger
(the “ Closing ”) will take place (i) at the
offices of Milbank, Tweed, Hadley & McCloy LLP, 1 Chase
Manhattan Plaza, New York, New York at 10:00 a.m. New York City
time as soon as reasonably practicable (but in any event no later
than the third business day) after satisfaction or waiver (to the
extent permitted by applicable law) of the conditions set forth in
Article VI (other than those conditions that are to be satisfied at
the Closing, but subject to the satisfaction or waiver (to the
extent permitted by applicable law) of such other conditions), or
(ii) at such other place or time and/or such other date as the
parties may agree. The date on which the Closing occurs is
referred to in this Agreement as the “ Closing Date
.” The Merger shall become effective at such time as
the Certificate of Merger is duly filed with the Secretary of State
of the State of Delaware or at such later date and time as the
parties shall agree and as shall be specified in the Certificate of
Merger (the time the Merger becomes effective, the “
Effective Time ”).
(b)
At the Closing, the parties shall deliver the items provided in
Sections 2.9 and 2.10, respectively.
Section
2.3
Effects of the Merger . The Merger shall have the
effects as set forth in the applicable provisions of the
DGCL. Without limiting the generality of the foregoing, and
subject thereto, at the Effective Time, all the properties, rights,
privileges, powers and franchises of ASC and Merger Sub shall vest
in the Surviving Corporation, and all debts, liabilities and duties
of ASC and Merger Sub shall become the debts, liabilities and
duties of the Surviving Corporation.
11
Section
2.4
Certificate of Incorporation and Bylaws . (a) The
certificate of incorporation of Merger Sub in effect immediately
prior to the Effective Time, shall be the certificate of
incorporation of the Surviving Corporation until amended in
accordance with its terms and applicable law.
(b)
The bylaws of Merger Sub in effect immediately prior to the
Effective Time shall be the bylaws of the Surviving Corporation
until amended in accordance with their terms and applicable
law.
Section
2.5
Directors . The directors of ASC immediately prior to
the Effective Time shall be the initial directors of the Surviving
Corporation, each to hold office in accordance with the certificate
of incorporation and bylaws of the Surviving Corporation until such
director’s successor is duly elected or appointed and
qualified.
Section
2.6
Officers . The officers of ASC immediately prior to
the Effective Time shall be the initial officers of the Surviving
Corporation, each to hold office in accordance with the certificate
of incorporation and bylaws of the Surviving Corporation until such
officer’s successor is duly elected or appointed and
qualified.
Section
2.7
Subsequent Actions . If, at any time after the
Effective Time, the Surviving Corporation shall determine in good
faith 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 either of ASC or Merger
Sub acquired or to be acquired by the Surviving Corporation as a
result of, or in connection with the Merger or otherwise to 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 either ASC or Merger Sub, all such deeds, bills of
sale, assignments and assurances and to take and do, in the name
and on behalf of each of such corporations or otherwise, 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.
Section
2.8
Effect on the Capital Stock . As of the Effective
Time, by virtue of the Merger and without any action on the part of
ASC, Parent, Merger Sub or any holder of any shares of capital
stock of Merger Sub:
(a)
Each share of MS Common Stock issued and outstanding immediately
prior to the Effective Time shall be converted into one share of
the Surviving Corporation following the Merger.
(b)
All of the shares of ASC common stock issued and outstanding
immediately prior to the Effective Time (the “ ASC Common
Stock ”) shall be converted into the right to receive
67,207,640 (sixty-seven million, two hundred and seven thousand and
six hundred and forty) shares of Parent Common Stock (the “
Merger Consideration ”). The Merger
Consideration shall be payable to the holder of shares of ASC
Common Stock, without interest thereon, upon the surrender of the
certificate or certificates formerly representing the shares
of
12
ASC Common Stock (each, a
“ Certificate ”) in the manner provided in
Sections 2.9 and 2.10. From and after the Effective Time, all
such shares of ASC Common Stock so converted into the Merger
Consideration shall no longer be outstanding and shall be deemed to
be canceled and retired and shall cease to exist, and each holder
of a Certificate or Certificates shall cease to have any rights
with respect thereto, except the right to receive the Merger
Consideration therefor upon the surrender of such Certificate or
Certificates in accordance with Section 2.9 and 2.10.
Section
2.9
Deliveries by ASC . (a) At the Closing, ASC
shall deliver or cause to be delivered to Parent (unless delivered
previously) the following:
(i)
the Certificate
or Certificates representing the ASC Common Stock;
(ii)
the
officer’s certificate referred to in Section 6.1(b)(iv)
hereof;
(iii)
the minute books,
stock books, stock ledgers and corporate seal of the
ASC;
(iv)
all other
documents, certificates, instruments or writings, in form and
substance reasonably satisfactory to Parent, required to be
delivered by ASC at or prior to the Closing pursuant to this
Agreement or otherwise reasonably required in connection herewith;
and
(v)
the documents
referred to in Section 5.11(b) in form and substance
reasonably satisfactory to Parent.
(b)
Post-Closing Deliveries . AMC shall deliver to the
Company, on the following dates, certified copies of the following
documents submitted to the competent Méxican tax
authorities:
(i)
No later than 16 Business Days after the Closing Date, an income
tax return relating to the Contribution filed by the appointed tax
representative of AMC; and
(ii)
No later than 15 Business Days after the income tax return referred
to in Section 2.9(b)(i) has been filed with the competent Mexican
tax authorities, a notice of election to file a tax report
submitted jointly by the appointed tax representative of AMC and
the independent public accountant described in Section
5.11(b)(i)(2).
(iii)
No later than 31 Business Days after the income tax return referred
to in Section 2.9(b)(i) has been filed with the competent
Méxican tax authorities, a tax report submitted by the
appointed tax representative of AMC as described in
Section 5.11(b)(i)(2).
Section
2.10
Deliveries by Parent . At the Closing, Parent shall
deliver or cause to be delivered to ASC (unless delivered
previously) the following:
(a)
a certified copy of the Parent Amendment from the Secretary of
State of the state of Delaware;
13
(b)
upon surrender of the Certificate or Certificates for cancellation,
a certificate registered in the name of the stockholders of ASC
representing the number of duly authorized, validly issued, fully
paid and non-assessable shares of Parent Common Stock equal to the
Merger Consideration;
(c)
the officer’s certificate referred to in
Section 6.1(a)(iii) hereof; and
(d)
all other documents, certificates, instruments or writings in form
and substance reasonably satisfactory to ASC, required to be
delivered by Parent or Merger Sub at or prior to the Closing
pursuant to this Agreement or otherwise required in connection
herewith.
Section
2.11
United States Federal Income Tax Treatment . It is
intended by the parties hereto that the Merger qualify as a
“reorganization” within the meaning of
Section 368(a) of the Code. This Agreement is intended
to constitute, and the parties hereto hereby adopt this Agreement
as, a “plan of reorganization” within the meanings of
Sections 1.368-2(g) and 1.368-3(a) of the U.S. Treasury
Regulations promulgated under the Code.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE SELLER PARTIES
Except as set forth in Company SEC
Documents filed on or prior to the date hereof or in the Company
Disclosure Schedule (it being understood that any matter set forth
in any section of the Company Disclosure Schedule shall be deemed
disclosed with respect to any other section of the Company
Disclosure Schedule to the extent such matter is disclosed in a way
as to make its relevance to the information called for by such
other section reasonably clear on its face), each of the Seller
Parties hereby, jointly and severally, represents and warrants to
Parent and Merger Sub as of the date hereof and as of the Closing
Date, as follows:
Section
3.1
Organization and Qualification; Subsidiaries .
(a) Each of the Seller Parties is a corporation
duly organized, validly existing and, if applicable, in good
standing under the laws of the jurisdiction of its incorporation
and has all requisite corporate or other power and authority and
all necessary governmental approvals to own, lease and operate its
properties and to carry on its businesses as now being conducted,
except where the failure to be in good standing or to have such
power, authority and governmental approvals, individually or in the
aggregate, has not had and would not reasonably be expected to have
a Company Material Adverse Effect. The Seller Parties have
heretofore delivered to Parent accurate and complete copies of the
certificate of incorporation and bylaws (or other constituent
documents), as currently in effect, of ASC, the Company and the
Company’s Subsidiaries. Section 3.1(a) of the Company
Disclosure Schedule sets forth a complete list of the
Company’s Subsidiaries.
(b)
Each of the Seller Parties is duly qualified or licensed and, if
applicable, in good standing to do business in each jurisdiction in
which the property owned, leased or operated by it or the nature of
the business conducted by it makes such qualification or licensing
necessary, except where the failure to be so qualified would not
reasonably be expected to affect the validity of this Agreement or
in such jurisdictions where the failure to be so duly qualified
or
14
licensed and in good
standing, individually or in the aggregate, has not had and would
not reasonably be expected to have a Company Material Adverse
Effect.
(c)
ASC and the Company do not own, directly or indirectly, any equity
(other than equity of Subsidiaries) or debt (other than debt of
Subsidiaries and other than short-term investments of the
Company’s working capital in high-grade commercial paper or
similar high-grade, short-term instruments) or similar interest in
any Person.
Section
3.2
Capitalization of ASC, the Company and the Company’s
Subsidiaries .
(a)
The authorized capital stock of the Company consists of 769,604,346
shares of Company Common Stock, of which 769,604,346 are issued and
outstanding. As of the date hereof, AMC is, and at the
Closing, ASC will be, the record and beneficial owner, directly and
through the Guaranty Trust, of at least 763,034,355 shares of
Company Common Stock, representing approximately 99.1463% of the
Company Common Stock, and all such shares have been validly issued,
fully paid and nonassessable, have been issued free of preemptive
rights or in compliance with preemptive rights required by
applicable law and are owned free and clear of any Lien.
Except as set forth above, there are no outstanding (i) securities
of the Company or any of its Subsidiaries convertible into or
exchangeable for shares of capital stock or voting securities of
the Company, (ii) options or other rights to acquire from the
Company or any of its Subsidiaries, or obligations of the Company
or any of its Subsidiaries to issue or sell, any capital stock,
voting securities or securities convertible into or exchangeable
for capital stock or voting securities of the Company, or (iii)
equity equivalents, interests in the ownership or earnings of the
Company or other similar rights (collectively, “ Company
Securities ”). Other than as contemplated by this
Agreement, there are no outstanding obligations of the Company or
any of its Subsidiaries to repurchase, redeem or otherwise acquire
any Company Securities.
(b)
The authorized capital stock of ASC consists of: 100 shares
of ASC Common Stock, of which 100 shares are issued and
outstanding. AMC is the record and beneficial owner of all of
the outstanding shares of ASC Common Stock, and all such shares
have been validly issued, fully paid and non-assessable, have been
issued free of preemptive rights and are owned free and clear of
any Lien. Except as set forth above, there are no outstanding
(i) securities of ASC or any of its Subsidiaries convertible into
or exchangeable for shares of capital stock or voting securities of
ASC, (ii) options or other rights to acquire from ASC or any of its
Subsidiaries, or obligations of ASC or any of its Subsidiaries to
issue or sell, any capital stock, voting securities or securities
convertible into or exchangeable for capital stock or voting
securities of ASC, or (iii) equity equivalents, interests in the
ownership or earnings of ASC or other similar rights (collectively,
“ASC Securities”). Other than as contemplated by
this Agreement, there are no outstanding obligations of ASC or any
of its Subsidiaries to repurchase, redeem or otherwise acquire any
ASC Securities.
(c)
All of the outstanding capital stock of, or other ownership
interests in, each Subsidiary of the Company, is owned by the
Company, directly or indirectly, free and clear of any Lien.
All such shares have been validly issued, fully paid and
nonassessable, and have been issued free of preemptive rights or in
compliance with preemptive rights required by applicable law.
There are no outstanding securities of the Company or any of its
Subsidiaries convertible into or exchangeable for shares of capital
stock or voting securities of any Subsidiary
15
of the Company, no options
or other rights to acquire from the Company or any of its
Subsidiaries, and no other contract, understanding, arrangement or
obligation (whether or not contingent) providing for the issuance
or sale, directly or indirectly, of, any capital stock or other
ownership interests in, or any other securities of, any Subsidiary
of the Company. There are no outstanding equity equivalents,
interests in the ownership or earnings or similar rights of any
Subsidiary of the Company. There are no contractual
obligations of the Company or any of its Subsidiaries to
repurchase, redeem or otherwise acquire any outstanding shares of
capital stock or other ownership interests in any Subsidiary of the
Company.
Section
3.3
Authority Relative to this Agreement . Each of the
Seller Parties has all the necessary corporate power and authority
to execute and deliver this Agreement, as applicable, and to
consummate the transactions contemplated hereby, as applicable, in
accordance with the terms hereof. The execution, delivery and
performance of this Agreement by each of the Seller Parties and the
consummation of the transactions contemplated hereby have been duly
and validly authorized by all necessary corporate action, and no
other corporate action or corporate proceeding on the part of any
of the Seller Parties, as applicable, is necessary to authorize the
execution and delivery by it of this Agreement and the consummation
by it of the transactions contemplated hereby. This Agreement
has been duly and validly executed and delivered by each of the
Seller Parties and, assuming due and valid authorization, execution
and delivery by Parent and Merger Sub, constitutes a valid, legal
and binding agreement of each of the Seller Parties, as applicable,
enforceable against each of the Seller Parties in accordance with
its terms, except that such enforcement may be subject to (i) any
bankruptcy, insolvency, reorganization, moratorium, fraudulent
transfer or other laws, now or hereafter in effect, affecting
creditors’ rights generally, and (ii) the effect of general
principles of equity (regardless of whether enforceability is
considered in a proceeding of law or equity).
Section
3.4
SEC Reports; Company Financial Statements . Since
January 1, 2002, the Company has filed with the SEC all forms,
reports, schedules, statements and other documents required to be
filed by it under the Securities Act and the Exchange Act (any such
documents filed since such date and prior to the Closing Date
collectively, including all exhibits and schedules thereto and
documents incorporated by reference therein, the “ Company
SEC Documents ”). The Company SEC Documents,
including any financial statements or schedules included therein,
at the time filed, or, in the case of registration statements, on
their respective effective dates, (i) complied in all material
respects with the applicable requirements of the Securities Act and
the Exchange Act, as the case may be and (ii) did not at the time
filed (or, in the case of registration statements, at the time of
effectiveness), contain any untrue statement of a material fact or
omit to state a 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.
No Subsidiary of the Company is required to file any form, report
or other document with the SEC pursuant to Section 13 or 15(d) of
the Exchange Act. The financial statements included in the
Company SEC Documents (the “ Company Financial
Statements ”) (i) have been prepared from, and are
in accordance with, the books and records of the Company and its
Subsidiaries, (ii) complied on the date of filing and
effectiveness thereof in all material respects with applicable
accounting requirements and with the published rules and
regulations of the SEC with respect thereto on the date of filing
and effectiveness thereof, and (iii) fairly present 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 times and for the periods
16
referred to therein, except that any Company
Financial Statements that are unaudited, interim financial
statements were or are subject to normal and recurring year end
adjustments which were not and are not expected, individually or in
the aggregate, to be material in amount. The Company
Financial Statements included in the Company 2003 Form 20-F (the
“ Company 2003 Financial Statements ”) have been
prepared in accordance with GAAP applied on a consistent basis
during the periods involved (except as may be indicated in the
notes thereto). The Company Financial Statements other than
the Company 2003 Financial Statements, have been (i) prepared in
accordance with Méxican GAAP, as in effect as of the dates of
such financial statements, applied on a consistent basis during the
periods involved (except as may be indicated in the notes thereto
and, in the case of unaudited statements, as permitted by the rules
and regulations of the SEC during the periods involved) and (ii)
reconciled to GAAP to the extent required by the rules and
regulations of the SEC during the periods involved. To the
extent the Interim Financial Statements are not included in the
Company Financial Statements, the Interim Financial Statements (i)
have been prepared from, and are in accordance with, the books and
records of the Company and its Subsidiaries, (ii) have been
prepared in accordance with GAAP applied on a consistent basis
during the periods involved (except as may be indicated in the
notes thereto and as permitted by the rules and regulations of the
SEC during the period involved), and (iii) fairly present 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 times and for the periods referred
to therein, except that the Interim Financial Statements are
subject to normal and recurring year end adjustments which are not
expected, individually or in the aggregate, to be material in
amount.
Section
3.5
Certifications . Since August 30, 2002, each Company
SEC Document was accompanied by the certifications of the
Company’s chief executive officer and chief financial officer
to the extent required under Sections 302 and 906 of the
Sarbanes-Oxley Act of 2002, and each of the Seller Parties hereby
reaffirms, represents and warrants to Parent and Merger Sub, the
matters and statements made in such certifications.
Section
3.6
Consents and Approvals, No Violations . No filing with
or notice to, and no permit, authorization, consent or approval of,
any federal, state, local or foreign court or tribunal or
administrative, governmental, arbitral or regulatory body, agency
or authority (a “ Governmental Entity ”), is
required on the part of any of the Seller Parties for the
execution, delivery and performance of this Agreement or the
consummation of the transactions contemplated hereby, as
applicable, except (a) pursuant to the applicable requirements of
the Securities Act and the Exchange Act, (b) the filing of the
Certificate of Merger pursuant to the DGCL, (c) where the failure
to obtain such permits, authorizations, consents or approvals or to
make such filings or give such notice, individually or in the
aggregate, has not had and would not reasonably be expected to have
a Company Material Adverse Effect, and (d) as set forth in Section
3.6 of the Company Disclosure Schedule. Neither the
execution, delivery and performance of this Agreement by any of the
Seller Parties, nor the consummation of the transactions
contemplated hereby, as applicable, will (i) conflict with or
result in any breach of any provision of the respective certificate
of incorporation or bylaws (or similar governing documents) of any
of the Seller Parties, (ii) result in a violation or breach of, or
constitute (with or without due notice or lapse of time or both) a
default (or give rise to any right of termination, amendment,
cancellation, alteration or acceleration, or result in the creation
of a Lien on any property or asset of ASC, the Company or any of
the Company’s Subsidiaries, or trigger any
17
rights of first refusal) under, any of the
terms, conditions or provisions of any note, bond, mortgage,
indenture, lease, license, contract, agreement or other instrument
or obligation to which ASC, the Company or any of the
Company’s Subsidiaries is a party or by which any of them or
any of their respective properties, capital stock or assets may be
bound or (iii) violate any order, writ, injunction, decree, law,
statute, rule or regulation applicable to ASC, the Company or any
of the Company’s Subsidiaries or any of their respective
properties or assets, except in the case of (ii) or (iii) above for
violations, breaches, defaults or other occurrences that,
individually or in the aggregate, has not had and would not
reasonably be expected to have a Company Material Adverse
Effect.
Section
3.7
No Default . None of ASC, the Company or any of the
Company’s Subsidiaries is in default, breach or violation
(and no event has occurred that with notice or the lapse of time or
both would constitute a default, breach or violation) of any term,
condition or provision of (a) its certificate of incorporation or
bylaws (or similar governing documents), (b) any note, bond,
mortgage, indenture, lease, license, contract, agreement or other
instrument or obligation to which ASC, the Company or any of the
Company’s Subsidiaries is now a party or by which any of them
or any of their respective properties or assets may be bound or (c)
any order, writ, injunction, decree, law, statute, rule or
regulation applicable to ASC, the Company, any of the
Company’s Subsidiaries or any of their respective properties
or assets, except in the case of (b) or (c) above for violations,
breaches or defaults that, individually or in the aggregate, has
not had and would not reasonably be expected to have a Company
Material Adverse Effect.
Section
3.8
No Undisclosed Liabilities; Absence of Changes . (a)
Except (i) for liabilities incurred since December 31, 2003 in the
ordinary course of business consistent with past practice, or (ii)
for liabilities and obligations reasonably required by the Merger
or any other transactions contemplated by this Agreement, neither
the Company nor any of its Subsidiaries has, or has incurred since
such date, any material liabilities or obligations of any nature,
whether or not absolute, accrued, contingent or otherwise, that
would be required to be reflected or reserved against on a
consolidated balance sheet, or in the notes thereto, of the Company
and its Subsidiaries prepared in accordance with GAAP. Since
December 31, 2003, there has not been any Company Material
Adverse Effect.
(b)
Other than as reasonably required by this Agreement, since December
31, 2003, and prior to the date hereof, the Company and its
Subsidiaries have conducted their businesses in the ordinary course
of business consistent with past practice.
Section
3.9
ASC . Except as is necessary to consummate the Merger,
ASC is not subject to any liabilities or obligations of any nature,
whether or not absolute, accrued, contingent or otherwise.
Except as related to transactions with Parent, the Company or any
of their Subsidiaries, ASC has not: (i) engaged in any activities;
(ii) owned any assets; or (iii) been subject to any liabilities
(including, without limitation, Tax liabilities), except in the
case of (i) or (ii) above for consummation of the Contribution and
its ownership of Company Common Stock.
Section
3.10
Compliance with Applicable Law . Except as,
individually or in the aggregate, has not had and would not
reasonably be expected to have a Company Material Adverse
Effect: (a) the Company and its Subsidiaries hold all
permits, licenses, variances, exemptions, orders and approvals of
all Governmental Entities necessary for them to own,
lease
18
or operate their properties and assets and to
carry on their businesses as now conducted (“Company
Permits”); (b) there has not occurred any default under, or
violation of, or failure of compliance under, any such Company
Permit; and (c) the businesses of the Company and its Subsidiaries
are not being, and have not been, conducted in violation of any
law, ordinance, regulation, order, judgment, injunction, writ or
decree of any Governmental Entity.
Section
3.11
Employee Benefit Matters . (a) Section 3.11(a) of the
Company Disclosure Schedule sets forth a complete list of all
material plans, programs, arrangements, agreements or commitments
which are an employment, consulting, termination or deferred
compensation agreement, or an executive compensation, incentive
bonus or other bonus, employee pension, profit-sharing, savings,
retirement, stock option, stock purchase, severance pay, life,
health, disability or accident insurance plan, or vacation, or
other employee benefit plan, program, arrangement, agreement or
commitment, including any “employee benefit plan,”
covering any Personnel, to which the Company or any of its
Subsidiaries has any obligation to contribute, or with respect to
which any such entity has any liability (including any liability
arising out of an indemnification, guarantee, hold harmless or
similar agreement), including, but not limited to, any
“savings fund” ( fondo de ahorro o caja de
ahorro ), any “profit sharing guarantee agreement”
( convenio de pago garantizado de reporto de utilidades ) or
“golden parachute severance payments” and any material
bonus, incentive, deferred compensation, vacation, stock purchase,
stock option, severance, termination, indemnity, employment, change
of control or fringe benefit plan, program, arrangement or
agreement that provides benefits to any current or former employee
or director of the Company or any of its Subsidiaries or any
beneficiary or dependent thereof or with respect to which the
Company or any of its Subsidiaries could have a material liability
and excluding any plan, program, arrangement, agreement or
commitment established, created or imposed by applicable law (any
such plan, a “ Benefit Plan ” and collectively,
the “ Benefit Plans ”). The Company has
made available to Parent for each Benefit Plan, if applicable, true
and complete copies of (i) each Benefit Plan (or, in the case of
any unwritten Benefit Plan, a description thereof) and any
amendment thereto, and (ii) the most recent actuarial report.
Except as set forth on Schedule 3.11(a), there are no Benefit
Plans of the Company or any of its Subsidiaries that are pension
plans in the nature of excess or supplemental plans.
(b)
The consummation of the transactions contemplated by this Agreement
will not (either alone or upon the occurrence of any additional or
subsequent events) (i) constitute an event under any Benefit Plan
that will or may result in any payment (whether of severance pay
or
