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AGREEMENT AND PLAN OF MERGER
AMONG
Balance Bar Company
(a Delaware Corporation)
Kraft Foods, Inc.,
(a Delaware corporation)
and its
wholly owned
subsidiary
BB Acquisition, Inc.,
(a Delaware corporation)
January 21, 2000
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TABLE OF CONTENTS
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1. DEFINED TERMS....................................................... 1
2. THE OFFER........................................................... 2
2.1 The Offer.................................................... 2
2.1.1 Commencement.......................................... 2
2.1.2 Waiver of Conditions.................................. 2
2.1.3 SEC Filings........................................... 3
2.2 Company Actions................................................ 4
2.2.1 Approval of Transactions.............................. 4
2.2.2 Company SEC Filings................................... 4
2.2.3 Company Information................................... 4
2.2.4 Directors............................................. 5
3. THE MERGER.......................................................... 6
3.1 The Merger................................................... 6
3.2 Stockholder Meeting.......................................... 6
3.2.1 Special Meeting....................................... 6
3.2.2 Recommendation........................................ 6
3.2.3 Proxy Statement....................................... 6
3.2.4 Short Form Merger..................................... 7
3.3 Consummation of the Merger................................... 7
3.3.1 Effects of the Merger................................. 7
3.3.2 Certificate of Incorporation and Bylaws............... 7
3.3.3 Directors and Officers................................ 7
3.3.4 Conversion of Shares.................................. 8
3.3.5 Equity Derivatives.................................... 8
3.3.6 Conversion of Merger Sub Common Stock................. 8
3.4 Dissenting Shares............................................ 8
3.5 Payment for Shares........................................... 9
3.5.1 Paying Agent.......................................... 9
3.5.2 Surrender of Certificates............................. 9
3.5.3 Payment of Merger Consideration....................... 9
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3.5.4 No Transfers.......................................... 9
3.5.5 Unclaimed Merger Consideration........................ 10
3.5.6 Tax on Merger Consideration........................... 10
4. REPRESENTATIONS AND WARRANTIES OF THE COMPANY........................ 10
4.1 Organization and Corporate Power............................. 11
4.2 Capital Stock and Related Matters............................ 11
4.3 Subsidiaries; Partnerships................................... 12
4.4 Authorization; No Breach..................................... 12
4.4.1 Authority............................................. 12
4.4.2 Board Approval........................................ 12
4.4.3 Financial Advisor Opinion............................. 12
4.4.4 Noncontravention...................................... 13
4.5 Financial Statements; SEC Filings............................ 13
4.5.1 SEC Filings........................................... 13
4.5.2 Financial Statements.................................. 14
4.5.3 Absence of Undisclosed Liabilities.................... 14
4.5.4 No Material Adverse Change............................ 14
4.6 Title........................................................ 15
4.7 Tax Matters.................................................. 15
4.8 Contracts and Commitments.................................... 15
4.8.1 Company Material Contracts............................ 16
4.8.2 No Default............................................ 17
4.9 Trademarks, Patents.......................................... 17
4.10 Litigation, Etc.............................................. 17
4.11 Insurance Coverage........................................... 18
4.12 Labor Relations.............................................. 18
4.13 Compliance with Laws......................................... 18
4.13.1 General.............................................. 18
4.13.2 Environmental and Safety Matters..................... 18
4.13.3 Governmental Authorizations and Regulations.......... 18
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4.14 Affiliated Transactions...................................... 19
4.15 Brokers...................................................... 19
4.16 ERISA; Employee Benefits..................................... 19
4.17 Required Vote of Company Stockholders........................ 21
4.18 State Takeover Laws.......................................... 21
5. REPRESENTATIONS AND WARRANTIES OF PURCHASER......................... 21
5.1 Organization................................................. 21
5.2 Authority.................................................... 21
5.3 Effect of Agreement.......................................... 21
5.4 Financing.................................................... 22
6. COVENANTS........................................................... 22
6.1 Conduct of Business of the Company........................... 22
6.1.1 Ordinary Course; Preserve Relationships............... 22
6.1.2 Insurance............................................. 23
6.1.3 Taxes and Liens....................................... 23
6.1.4 Contracts and Laws.................................... 23
6.1.5 Acquisition; Consolidation; Reorganization; Sale of
Assets................................................ 23
6.1.6 Limitations on Indebtedness; Investments; Contracts;
etc................................................... 23
6.1.7 Amendment to the Company's Certificate of
Incorporation and Bylaws.............................. 24
6.1.8 Equity Issuances...................................... 24
6.1.9 Dividends............................................. 24
6.1.10 Accounting Policies................................... 24
6.1.11 Litigation............................................ 24
6.1.12 Other Actions......................................... 25
6.2 Access and Information....................................... 25
6.2.2 Confidential Information.............................. 25
6.3 Certain Filings, Consents and Arrangements................... 25
6.3.1 Consents.............................................. 25
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6.3.2 Filings............................................... 25
6.4 Hart-Scott-Rodino............................................ 26
6.5 Press Releases............................................... 26
6.6 Non-Solicitation............................................. 26
6.6.1 Notice of Acquisition Proposal........................ 27
6.6.2 Board Approval........................................ 27
6.6.3 Board Recommendation.................................. 28
6.6.4 Other Confidential Agreements......................... 28
6.7 Notice of Claims............................................. 28
6.8 Additional Agreements........................................ 29
7. PURCHASER COVENANTS................................................. 29
7.1.1 Indemnification....................................... 29
7.1.2 Insurance............................................. 30
7.1.3 Survival.............................................. 30
7.2.1 Purchaser Will Honor.................................. 30
7.2.2 Audit of 1999 Plan.................................... 31
7.2.3 Years of Credit....................................... 31
7.2.4 Cooperation........................................... 31
8. CONDITIONS.......................................................... 31
8.1 Conditions to the Obligations of Purchaser, Merger Sub and
the Company.................................................. 31
8.1.1 Stockholder Approval.................................. 31
8.1.2 No Injunction......................................... 31
8.2 Conditions to the Obligations of Purchaser and Merger Sub.... 32
8.2.1 Performance by the Company............................ 32
8.2.2 Representations and Warranties........................ 32
8.2.3 Material Adverse Change............................... 32
8.2.4 No Injunction, Etc.................................... 32
8.2.5 No Material Adverse Effect............................ 32
8.2.6 Consents.............................................. 32
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8.2.7 Equity Derivatives.................................... 33
8.2.8 Company Certificate................................... 33
8.3 Condition to the Company's Obligation........................ 33
8.3.1 Performance by Purchaser's Merger Sub................. 33
8.3.2 Representations and Warranties........................ 33
8.3.3 Purchaser and Merger Sub Certificates................. 33
9. TERMINATION; PAYMENTS............................................... 33
9.1 Mutual Consent............................................... 34
9.2 By Purchaser or Company...................................... 34
9.2.1 Material Breach....................................... 34
9.2.2 Expiration............................................ 34
9.2.3 Governmental Prohibition.............................. 34
9.2.4 Company Directors Withdrawal of Approval.............. 34
9.3 By Purchaser................................................. 35
9.3.1 Other Ownership....................................... 35
9.3.2 Failure to Meet Offer Conditions...................... 35
9.3.3 Minimum Condition..................................... 35
9.3.4 Failure of Stockholder Vote........................... 35
9.3.5 Breach of Section 6.6................................. 35
9.4 By the Company............................................... 35
9.5 Termination Fees and Expense Payment......................... 36
9.5.1 Immediate Payment..................................... 36
9.5.2 Deferred Payment...................................... 36
9.6 Effect of Termination........................................ 37
10. MISCELLANEOUS....................................................... 37
10.1 Expenses Generally........................................... 37
10.2 Survival..................................................... 37
10.3 Additional Documents and Acts................................ 37
10.4 Waiver and Amendment......................................... 37
10.5 Complete Agreement........................................... 37
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10.6 Governing Law................................................ 38
10.7 Waiver of Right to Jury Trial................................ 38
10.8 Notices, etc................................................. 38
10.9 Counterparts................................................. 39
10.10 Certain Rules of Construction and Interpretation............. 39
10.10.1 Headings............................................ 39
10.10.2 No Presumption...................................... 39
10.10.3 Interpretation...................................... 39
10.11 Attorneys' Fees and Costs.................................... 40
10.12 Parties in Interest; Assignment.............................. 40
10.13 Specific Performance......................................... 40
10.14 Severability................................................. 40
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AGREEMENT AND PLAN OF MERGER
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AGREEMENT AND PLAN OF MERGER, dated as of January 21, 2000 among Kraft Foods,
Inc., a Delaware corporation ("Purchaser"), BB Acquisition, Inc., a Delaware
corporation and a wholly owned subsidiary of Purchaser ("Merger Sub"), and
Balance Bar Company, a Delaware corporation (the "Company").
BACKGROUND
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A. The Company and Purchaser have each determined that it is in their
respective best interests for Purchaser to acquire the Company as set forth
in this Agreement.
B. Purchaser, through Merger Sub, proposes to make a tender offer (as it may
be amended or extended from time to time as permitted under this Agreement,
the "Offer") to purchase all of the outstanding shares of common stock of
the Company (the "Shares") for $19.40 in cash, net to the stockholder (the
"Per Share Amount"), upon the terms and subject to the conditions set forth
in this Agreement. The Offer will be followed by merger of the Company and
Merger Sub under the Laws of the State of Delaware, as contemplated by this
Agreement (the "Merger"), with the Company surviving the Merger, all upon
the terms and subject to the conditions of this Agreement and in accordance
with the provisions of the Delaware General Corporation Law, as amended
(the "DGCL").
C. The Company's Board has determined that the Transactions (including the Per
Share Amount) are fair to the holders of the Shares and has adopted
resolutions approving the Offer and recommending that the Company's
stockholders accept the Offer and tender their respective Shares pursuant
to the Offer.
D. Contemporaneous with the execution of this Agreement each of Thomas R.
Davidson, Richard G. Lamb and James A. Wolfe have executed and delivered to
Purchaser and Merger Sub a Support Agreement in the form attached as
Exhibit C (the "Support Agreements").
E. Purchaser has, through appropriate corporate action, approved the
Transactions. The Offer, the Merger and the other transactions
contemplated by this Agreement are referred to collectively in this
Agreement as the "Transactions."
1. Defined Terms
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The definitions in Exhibit A apply to and are a part of this Agreement.
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2. The Offer
---------
2.1 The Offer.
---------
2.1.1 Commencement. Provided that none of the events set forth in Exhibit
------------
B has occurred and is continuing, and subject to the conditions set forth
on Exhibit B:
(a) Commence Offer. As promptly as practicable (but not later than five
--------------
business days after the date of this Agreement), Merger Sub will, and
Purchaser will cause Merger Sub to, commence, (within the meaning of
Rule 14d-2 under the Exchange Act) an Offer to purchase for cash all
of the Shares at a net price per share not less than the Per Share
Amount, and Purchaser will, subject to the terms and conditions of
this Agreement and the Offer, use all reasonable efforts to consummate
the Offer.
(b) Waiver of Conditions. Notwithstanding clause (a), Purchaser cannot,
--------------------
without the Company's consent, extend the Offer beyond April 30, 2000,
except that Purchaser can extend the Offer for up to ten business days
if, as of such date, there have not been tendered at least ninety
percent of the outstanding Shares, and can also extend the Offer
following acceptance of Shares for purchase to the extent permitted
under Rule 14d-11, if available. In addition, if at any scheduled
expiration date any of the conditions of the Offer has not been
satisfied or waived by Purchaser, but are capable of being satisfied,
Purchaser will from time to time extend the Offer until such
conditions are satisfied or waived, provided that Purchaser will not
be required to extend the Offer beyond April 30, 2000. Subject to the
foregoing restrictions, Purchaser has the right, (but is not
obligated), in its sole discretion, to extend the period during which
the Offer is open by giving oral or written notices of extension to
the depository in such offer and by making a public announcement of
such extension.
(c) Payment. Subject to the conditions of the Offer, Merger Sub will, and
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Purchaser will cause Merger Sub to, accept for payment and pay for the
Shares that are tendered pursuant to the Offer as soon as permitted
after the Offer commences.
2.1.2 Waiver of Conditions.
--------------------
(a) Consent Required. Neither Purchaser nor Merger Sub will, without the
----------------
prior consent of the Company, decrease the Per Share Amount or the
number of Shares sought pursuant to the Offer, or otherwise amend or
add any term or condition of or to the Offer, except as otherwise
expressly permitted in or contemplated by this Agreement. The Company
will not unreasonably withhold consent to a change in the
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expiration date of the Offer. Purchaser can waive any other condition
to the Offer in its discretion.
2.1.3 SEC Filings. Purchaser and Merger Sub will file timely with the SEC
-----------
a Tender Offer Statement on Schedule 14D-1 or successor form pursuant to
the Exchange Act with respect to the Offer (together with any amendments,
supplements and exhibit the "Schedule 14D-1"). It will contain an offer to
purchase and a related letter of transmittal. Such Schedule 14D-1 and the
documents included therein pursuant to which the Offer will be made,
together with any supplements, amendments and exhibits thereto, are the
"Offer Documents". Purchaser will assure that the Offer Documents will
comply as to form in all material respects with the requirements of the
Exchange Act and that they will not contain, on the date filed with the SEC
and when first published, sent or given to the Company's stockholders, 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
therein, in light of the circumstances under which they were made, not
misleading. Purchaser will, however, have no such obligation with respect
to information supplied by or on behalf of the Company expressly for
inclusion in the Offer Documents. The Company will assure that none of the
information supplied by the Company for inclusion in the Offer Documents
will contain, on the date filed with the SEC and when first published, sent
or given to the Company's stockholders, 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 therein, in light of the
circumstances under which they were made, not misleading. The Company and
Purchaser each agrees to correct promptly any information provided by it
for use in the Offer Documents if and to the extent that such information
becomes false or misleading in any material respect. Purchaser further
agrees to take all steps necessary to amend or supplement the Offer
Documents and to cause the Offer Documents as so amended or supplemented to
be filed with the SEC and to be disseminated to the Company's stockholders,
in each case as and to the extent required by applicable Laws. The Company
and its counsel will be given a reasonable opportunity to review and
comment upon the Offer Documents and all amendments and supplements thereto
before their filing with the SEC or dissemination to stockholders of the
Company. Purchaser will inform the Company and its counsel of any comments
Purchaser, Merger Sub or their counsel receives from the SEC or its staff
with respect to the Offer Documents promptly after the receipt of such
comments, and will give the Company and its counsel an opportunity to
participate in the response of Purchaser and/or Merger Sub to such
comments.
2.2 Company Actions.
---------------
2.2.1 Approval of Transactions. The Company approves of and consents to
------------------------
the Offer and has made representations with respect thereto in Section 4.4.
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2.2.2 Company SEC Filings. The Company will timely file with the SEC a
-------------------
statement on Schedule 14D-9 pursuant to the Exchange Act (together with any
amendments, supplements and exhibits the "Schedule 14D-9") with respect to
the Offer containing the recommendation described in Section 2.2.1 and will
mail the Schedule 14D-9 to the stockholders of the Company. The Company
will assure that the Schedule 14D-9 will comply as to form in all material
respects with the requirements of the Exchange Act and that it will not
contain on the date filed with the SEC and when first published, sent or
given to the Company's stockholders, 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 therein, in light of the
circumstances under which they were made, not misleading. The Company will,
however, have no such obligation with respect to information supplied by or
on behalf of Purchaser or Merger Sub expressly for inclusion in the
Schedule 14D-9. The Company and Purchaser each agrees to correct promptly
any information provided by it for use in the Schedule 14D-9 if and to the
extent that such information becomes false or misleading in any material
respect. The Company further agrees to take all steps necessary to amend or
supplement the Schedule 14D-9 and to cause the Schedule 14D-9 as so amended
or supplemented to be filed with the SEC and to be disseminated to the
Company's stockholders, in each case as and to the extent required by
applicable Laws. Purchaser and its counsel will be given a reasonable
opportunity to review and comment upon the Schedule 14D-9 and all
amendments and supplements thereto before their filing with the SEC or
dissemination to stockholders of the Company. The Company will inform
Purchaser and its counsel of any comments the Company or its counsel
receives from the SEC or its staff with respect to the Schedule 14D-9
promptly after the receipt of such comments, and will give Purchaser and
its counsel an opportunity to participate in the response of the Company to
such comments.
2.2.3 Company Information. In connection with the Offer, the Company
-------------------
will, or will cause its transfer agent to, furnish, not more than three
days after the date of this Agreement, to Purchaser: (a) a list, as of the
most recent practicable date, of the record holders of Shares and their
addresses; (b) mailing labels containing the names and addresses of all
record holders of Shares; and (c) lists of security positions of Shares
held in stock depositories. The Company will furnish Purchaser with such
additional or updated information and such other assistance as Purchaser or
its agents reasonably request in communicating the Offer to the record and
beneficial holders of Shares.
2.2.4 Directors.
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(a) Purchaser Designation of Directors. Subject to compliance with
----------------------------------
applicable law, promptly upon the payment by the Purchaser or Merger
Sub for Shares pursuant to the Offer, and from time to time
thereafter,
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Purchaser will be entitled to designate at least such number of
directors, rounded up to the next whole number, on the Company's Board
as is equal to the product of the total number of directors on the
Company's Board (determined after giving effect to the directors
elected pursuant to this sentence) multiplied by the percentage that
the aggregate number of Shares beneficially owned by Purchaser or its
affiliates bears to the total number of Shares then outstanding, and
the Company will, upon request of Purchaser promptly take all actions
necessary to cause Purchaser's designees to be so elected, including,
if necessary, seeking the resignations of one or more existing
directors; provided, however, that before the Effective Time, the
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Board will always have at least two members who are neither officers,
directors, stockholders or designees of the Purchaser or any of its
affiliates ("Purchaser Insiders"). In the event of any vacancy in one
of the directorships to be held by persons who are not Purchaser
Insiders (whether due to death, disability, resignation or other
reasons), the remaining director who is not a Purchaser Insider will
be entitled to fill such vacancy with a person who is not a Purchaser
Insider.
(b) Section 14(f) and Rule 14f-1. The Company's obligations to appoint
---------------------------
Purchaser's designees to the Board will be subject to Section 14(f) of
the Exchange Act and Rule 14f-1 thereunder. The Company will promptly
take all actions required pursuant to such Section and Rule in order
to fulfill its obligations under this Section 2.2.4 and, to the extent
reasonably practicable, will include in the Schedule 14D-9 such
information with respect to the Company and its officers and directors
as is required under such Section and Rule in order to fulfill its
obligations under this Section 2.2.4. Purchaser will supply any
information with respect to itself and its officers, directors and
affiliates required by such Section and Rule to the Company.
(c) Continuing Directors. Following the election or appointment of
--------------------
Purchaser's designees pursuant to this Section 2.2.4 and before the
Effective Time, any amendment or termination of this Agreement by the
Company, any extension by the Company of the time for the performance
of any of the obligations or other acts of the Purchaser or Merger Sub
or waiver of any of the Company's rights hereunder, or any other
action taken by the Company's Board in connection with this Agreement,
will require the concurrence of a majority of the directors of the
Company then in office who are not Purchaser Insiders if such
amendment, termination, extension, waiver or action would have an
adverse effect on the minority stockholders of the Company.
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3. The Merger
----------
3.1 The Merger. Merger Sub will be merged with and into the Company as soon as
----------
practicable following the satisfaction or waiver of each of the conditions
set forth in Section 8. Following the Merger, the Company will continue as
the Surviving Corporation, wholly-owned by Purchaser, and the separate
corporate existence of Merger Sub will cease.
3.2 Stockholder Meeting. If required by applicable Law to consummate the
-------------------
Merger, the Company, acting through the Company's Board, will take the
following steps:
3.2.1 Special Meeting. It will duly call, give notice of, convene and
---------------
hold the Special Meeting as soon as practicable following the expiration of
the Offer to approve and adopt this Agreement. At the Special Meeting, all
of the Shares then owned of record or beneficially by Purchaser, Merger Sub
or any other subsidiary of Purchaser will be voted in favor of the adoption
of this Agreement.
3.2.2 Recommendation. It will include in the Proxy Statement the
--------------
recommendation of the Company's Board that its stockholders vote in favor
of the adoption of this Agreement.
3.2.3 Proxy Statement. It will use its commercially reasonable efforts
---------------
to: (a) obtain and furnish the information required to be included by it in
the Proxy Statement; (b) respond promptly to any comments made by the SEC
with respect to the Proxy Statement and any preliminary version of it after
consultation with the Purchaser; (c) cause the Proxy Statement to be mailed
to the Company's stockholders at the earliest practicable time following
the expiration of the Offer; and (d) obtain any necessary adoption of this
Agreement by the Company's stockholders. The Company will assure that the
Proxy Statement complies as to form in all material respects with the
requirements of the Exchange Act and that it does not contain on the date
filed with the SEC and when first published, sent or given to the Company's
stockholders, 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 therein, in light of the circumstances under which they were
made, not misleading. The Company will, however, have no such obligation
with respect to information supplied by or on behalf of Purchaser or Merger
Sub expressly for inclusion in the Proxy Statement. The Company and
Purchaser each agrees to correct promptly any information provided by it
for use in the Proxy Statement if and to the extent that such information
becomes false or misleading in any material respect. The Company further
agrees to take all steps necessary to amend or supplement the Proxy
Statement and to cause the Proxy Statement as so amended or supplemented to
be filed with the SEC and to be disseminated to the Company's stockholders,
in each case as and
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to the extent required by applicable Laws. Purchaser and its counsel will
be given a reasonable opportunity to review and comment upon the Proxy
Statement and all amendments and supplements thereto before their filing
with the SEC or dissemination to stockholders of the Company. The Company
will inform Purchaser and its counsel of any comments the Company or its
counsel receives from the SEC or its staff with respect to the Proxy
Statement promptly after the receipt of such comments, and will give
Purchaser and its counsel an opportunity to participate in the response of
the Company to such comments.
3.2.4 Short Form Merger. Notwithstanding the foregoing, if Purchaser,
-----------------
Merger Sub and/or any other subsidiary of Purchaser acquires at least
ninety percent (90%) of the outstanding Shares of the Company, the Company
and Purchaser will take all necessary and appropriate action to cause the
Merger to become effective, in accordance with Section 253 of the DGCL, as
soon as reasonably practicable after such acquisition.
3.3 Consummation of the Merger. As soon as practicable after consummation of
--------------------------
the Offer, and, if required by applicable Law, after the vote of the
requisite number of Shares in favor of the adoption of this Agreement has
been obtained, the Company (and/or Purchaser or Merger Sub, if appropriate)
will execute and deliver to the Delaware Secretary of State a Merger
Certificate.
3.3.1 Effects of the Merger. The Merger will have the effects set forth
---------------------
in the DGCL. As of the Effective Time, the Company will become a wholly
owned subsidiary of Purchaser.
3.3.2 Certificate of Incorporation and Bylaws. As of the Effective Time,
---------------------------------------
the Certificate of Incorporation and Bylaws of Merger Sub will become the
Certificate of Incorporation and Bylaws of the Surviving Corporation.
3.3.3 Directors and Officers. The Board of Directors of Merger Sub at the
----------------------
Effective Time will become the Board of Directors of the Surviving
Corporation, and the officers of Merger Sub at the Effective Time will
continue as the officers of the Surviving Corporation, in each case until
their respective successors are duly elected or appointed.
3.3.4 Conversion of Shares. Each Share outstanding immediately before the
--------------------
Effective Time (other than Shares owned beneficially or of record by
Purchaser or any subsidiary of Purchaser or held in the treasury of the
Company, all of which will be cancelled, and Shares owned by any Dissenting
Stockholder) will, by virtue of the Merger and without any action on the
part of the holder thereof, be converted into the right to receive the Per
Share Amount.
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3.3.5 Equity Derivatives. Equity Derivatives that have not been
------------------
cancelled as of the Effective Time, whether or not then exercisable or
vested, will be cancelled, redeemed or repurchased by the Company, and each
holder of any such Equity Derivative will be entitled to receive, and will
receive, in settlement thereof a cash payment from the Company in an
amount, if any (subject to any applicable withholding Tax), equal to (a)
the Per Share Amount minus (b) the exercise or purchase price per Share
specified in the Equity Derivative multiplied by the number of shares of
Company common stock covered by such Equity Derivative.
3.3.6 Conversion of Merger Sub Common Stock. All of the shares of common
-------------------------------------
stock of Merger Sub issued and outstanding immediately before the Effective
Time will, by virtue of the Merger and without any action on the part of
the holder thereof, be converted into and exchangeable for one newly issued
share of common stock of the Surviving Corporation.
3.4 Dissenting Shares. Notwithstanding anything in this Agreement to the
-----------------
contrary, Shares that are issued and outstanding immediately before the
Effective Time and that are held by stockholders who have (a) not voted
such Shares in favor of the Merger (or consented thereto in writing), (b)
delivered a written objection to the Merger and a demand for appraisal of
such Shares in accordance with Section 262 of the DGCL (insofar as such
Section is applicable to the Merger and provides for appraisal rights with
respect to it) and (c) not failed to perfect or have not effectively
withdrawn or lost their rights to appraisal and payment under the DGCL (the
"Dissenting Shares"), will not be converted into the right to receive the
Per Share Amount as provided in Section 3.3.4. Instead, ownership of such
Shares will entitle the holder thereof to receive the consideration
determined pursuant to Section 262 of the DGCL; provided, however, that if
such holder fails to perfect or effectively withdraws such holder's right
to appraisal and payment under the DGCL, each of such Shares will thereupon
be deemed to have been converted, at the Effective Time, into the right to
receive the Per Share Amount, without any interest thereon, upon surrender
of the Certificate or Certificates in the manner provided in Section 3.5.2.
The Company will give Purchaser (d) prompt notice (and in any event within
24 hours) of any demands (or withdrawals of demands) for appraisal received
by the Company pursuant to the applicable provisions of the DGCL and any
other instruments served pursuant to the DGCL and received by the Company
and (e) the opportunity to participate in all negotiations and proceedings
with respect to demands for appraisal under the DGCL. The Company will not,
except with the prior consent of Purchaser (which consent will not be
unreasonably withheld), make any payment with respect to any such demands
for appraisal or offer to settle, or settle, any such demands.
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3.5 Payment for Shares.
------------------
3.5.1 Paying Agent. Before the Effective Time, Purchaser will designate a
------------
United States bank or trust company to act as Paying Agent in the Merger
(the "Paying Agent"). At or before the Effective Time, Purchaser will
deposit, or cause Merger Sub to deposit, in trust with the Paying Agent
immediately available funds (the "Funds") in an amount necessary to make
the payments for Shares and Equity Derivatives required by this Agreement
on a timely basis.
3.5.2 Surrender of Certificates. Promptly after the Effective Time,
-------------------------
Purchaser and the Surviving Corporation will cause the Paying Agent to mail
and/or make available to each record holder, as of the Effective Time,
(other than Purchaser or Merger Sub) of a certificate or certificates that
immediately before the Effective Time represented Shares (the
"Certificates"), a notice and letter of transmittal and instructions in
standard form for use in effecting the surrender of the Certificates in
exchange for the Merger Consideration.
3.5.3 Payment of Merger Consideration. Upon surrender to the Paying Agent
-------------------------------
of a Certificate, together with such letter of transmittal duly executed
and completed, the holder of such Certificate will receive the Merger
Consideration attributable to the number of Shares represented by such
Certificate, and such Certificate will be cancelled. Until surrendered in
accordance with the provisions of this Section 3.5, each Certificate (other
than Certificates representing Shares owned by Dissenting Stockholders)
will represent for all purposes only the right to receive the Merger
Consideration.
3.5.4 No Transfers. After the Effective Time, there will be no transfers
------------
of Shares on the stock transfer books of the Surviving Corporation. If,
after the Effective Time, Certificates are presented to the Surviving
Corporation, they will be cancelled and exchanged for the Merger
Consideration as provided in Section 3.5.5.
3.5.5 Unclaimed Merger Consideration.
------------------------------
(a) Transfer to Surviving Corporation. Any portion of the Merger
---------------------------------
Consideration that remains unclaimed by the stockholders of the
Company 180 days after the Effective Time will be transferred to the
Surviving Corporation. Any stockholder of the Company who has not
theretofore complied with Section 3.5.2 will thereafter look only to
the Surviving Corporation for payment of such stockholder's claim for
the Merger Consideration. The Paying Agent will be authorized, at the
request of Purchaser, to invest any Funds held by it in investment
grade money market instruments having maturities not to exceed thirty
days as designated by Purchaser, with any interest earned thereon
being paid to
9
<PAGE>
Purchaser at the earlier of (i) payment in full of the Merger
Consideration to all stockholders and (ii) 180 days after the
Effective Time.
(b) No Escheat of Remaining Funds. None of Purchaser, Merger Sub, 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. If any Certificates have
not been surrendered before seven years after the Effective Time (or
immediately before such earlier date on which any payment pursuant to
this Section 3.5.5 would otherwise escheat to or become the property
of any Government Entity), the Merger Consideration in respect of such
Certificate will, unless otherwise provided by applicable Law, become
the property of the Surviving Corporation, free and clear of all
claims or interest of any Person previously entitled thereto.
3.5.6 Tax on Merger Consideration. The right of any stockholder to
---------------------------
receive the Merger Consideration will be subject to and reduced by the
amount of any required Tax withholding obligation.
4. Representations And Warranties Of The Company
---------------------------------------------
The Company represents and warrants that, except as expressly disclosed in
the applicable corresponding section of the disclosure schedule delivered to
Purchaser concurrently herewith (the "Disclosure Schedule") or except where such
disclosure is either cross-referenced to an applicable corresponding section of
the Disclosure Schedule or the substance and applicability of such disclosure to
another section of the Disclosure Schedule or the Agreement is reasonably
evident from such disclosure and its context, the following statements are true
and correct; provided that no disclosure on the Disclosure Schedule will be
deemed to modify the representation contained in the first sentence of Section
4.2. Unless the context otherwise requires, the term "Company" in this Section
4 refers to the Company together with its wholly owned subsidiary, JC Holdings,
Inc., a Delaware corporation.
4.1 Organization and Corporate Power. The Company: (a) is a corporation duly
--------------------------------
organized, validly existing and in good standing under the Laws of the
State of Delaware; (b) is qualified to do business in every jurisdiction in
which its ownership of property or conduct of business requires it to
qualify, except where the failure to so qualify would not reasonably be
expected to have a Material Adverse Effect on the Company; and (c) has the
requisite corporate power and authority and the legal right to (i) own,
pledge, mortgage or otherwise encumber and operate its properties, (ii)
lease the property it operates under lease, (iii) conduct its business as
now conducted and as presently proposed to be conducted, and (iv) enter
into this Agreement, perform its obligations hereunder and carry out the
Transactions. The Company's Amended and Restated Certificate of
Incorporation (the "Certificate of Incorporation") and the Company's Bylaws
(the "Bylaws") on
10
<PAGE>
file with the SEC as of the date of this Agreement are true and correct and
no further amendments have been made to them. The minute books of the
Company accurately reflect in all material respects all material corporate
actions held or taken since December 31, 1998 of its stockholders and its
Board (including committees of the Board).
4.2 Capital Stock and Related Matters. The authorized capital stock of the
---------------------------------
Company consists of (a) 24,000,000 shares of common stock, of which
12,646,296 shares are issued and outstanding, and 1,186,942 shares are
reserved for issuance upon exercise of the Company's outstanding Equity
Derivatives; and (b) 12,000,000 shares of Series A Convertible Preferred
Stock, of which no shares are issued and outstanding. All of the Shares are
duly authorized and validly issued, fully paid and nonassessable. The
Disclosure Schedule sets forth a list of all Equity Derivatives as of the
date of this Agreement. The Company does not have outstanding any other
Equity Derivative or any obligation (contingent or otherwise) to repurchase
or otherwise acquire or retire any of its capital stock. There are no
statutory or contractual stockholders' preemptive rights with respect to
any securities of the Company. As of the date of this Agreement, no shares
of the Company's Common Stock or Preferred Stock are reserved for issuance,
except for 1,186,942 shares of Common Stock reserved for issuance in
connection with the Equity Derivatives set forth on the Disclosure
Schedule. Since December 31, 1998, the Company has not issued any shares of
its capital stock or any securities convertible into or exercisable for any
shares of its capital stock, other than in connection with the Equity
Derivatives granted before such date. In no event will the aggregate number
of shares of the Company's Common Stock outstanding at the Effective Time
exceed 12,646,296 shares other then through the exercise of stock options
listed on the Disclosure Schedule. The authorized capital stock of JC
Holdings, Inc. consists of 1,000 shares of common stock, of which ten
shares are issued and outstanding, and no shares are reserved for issuance
upon exercise of outstanding Equity Derivatives. The Company owns, directly
or indirectly, all of the issued and outstanding shares of capital stock of
JC Holdings, Inc., free and clear of any Liens, and all of such shares are
duly authorized and validly issued and are fully paid and nonassessable. JC
Holdings, Inc. does not have outstanding any Equity Derivative or any
obligation (contingent or otherwise) to repurchase or otherwise acquire or
retire any of its capital stock. There are no statutory or contractual
stockholders' preemptive rights with respect to any securities of JC
Holdings, Inc.
4.3 Subsidiaries; Partnerships. The Company has no Subsidiaries, is not a
--------------------------
partner in any partnership, and holds no stock in any other Person.
11
<PAGE>
4.4 Authorization; No Breach.
------------------------
4.4.1 Authority. The Company has duly authorized by all necessary
---------
corporate action (a) the execution, delivery and performance of this
Agreement and (b) the Transactions, and no other corporate proceeding on
its part is necessary to authorize the execution, delivery or performance
of this Agreement by Company. This Agreement constitutes a valid and
binding obligation of the Company.
4.4.2 Board Approval. This Agreement, the Offer and the Merger have been
--------------
unanimously approved by the Company's Board. The Company's Board and any
appropriate Committee has adopted resolutions: (a) determining that the
Offer and Merger are fair to the holders of the Shares and in the best
interests of the Company and such holders; (b) approving this Agreement,
the Support Agreements and the Offer and Merger; (c) determining that this
Agreement is advisable, in accordance with the DGCL; (d) directing that the
Agreement be submitted to holders of Shares for their adoption and
approval, to the extent required under applicable Law; (e) recommending
acceptance of the Offer, the approval and adoption of this Agreement and
approval of the Merger by the holders of the Shares; and (f) taking such
action with respect to the Company's Equity Derivatives as is necessary to
achieve the results contemplated by Section 3.3.5. The Company consents
to the inclusion in the Offer Documents of the recommendation of the
Company's Board. Other than as contemplated herein, no other corporate
proceeding on the part of the Company, its Board or the holders of Shares
is necessary to approve and adopt this Agreement and to consummate the
Transactions contemplated hereby.
4.4.3 Financial Advisor Opinion. Salomon Smith Barney Inc. ("SSB"), the
-------------------------
Company's financial advisor, has rendered an opinion to the Company's Board
(subject to the qualifications and assumptions set forth therein) to the
effect that, as of the date of this Agreement, the Per Share Amount to be
received in the Offer and the Merger, taken together, by the holders of the
Shares is fair, from a financial point of view.
4.4.4 Noncontravention. The execution and delivery by the Company of this
----------------
Agreement, and the fulfillment of and compliance with the respective terms
hereof by the Company, and the consummation of the Transactions, do not and
will not: (a) conflict with or result in any breach of any provision of
the Certificate of Incorporation or Bylaws; (b) 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 or acceleration or Lien) under, any of the provisions of any
note, bond, mortgage, indenture, lease, license, contract, agreement or
other instrument or obligation to which the Company is a party; or (c)
violate any Law applicable to the Company, except, in the case of clauses
(b) or (c), for violations, breaches or defaults
12
<PAGE>
that either individually or in the aggregate would not have a Material
Adverse Effect on the Company. The consummation by the Company of the
Transactions will not require the consent or approval of or filing with any
Government Entity or other Third Party, except for: (i) applicable
requirements, if any, of the Exchange Act, the Securities Act and the
securities Laws of the various jurisdictions in which holders of Shares
reside; (ii) the filing of the Merger Certificate and related requirements
pursuant to the DGCL; (iii) any filings and approvals required under the
HSR Act; and (iv) applicable requirements, if any, of the Code and state,
local and foreign Tax Laws. In addition, the foregoing sentence is
qualified to the extent that the failure to obtain such consents,
approvals, authorizations or permits, or to make such filings or
notifications, would not: (w) prevent or delay consummation of the
Transactions in any material respect; (x) otherwise prevent the Company
from performing its obligations under this Agreement in any material
respect; (y) reasonably be expected to have, either individually or in the
aggregate, a Material Adverse Effect on the Company; or (z) materially
hinder or make materially more burdensome the consummation of the
Transactions.
4.5 Financial Statements; SEC Filings.
---------------------------------
4.5.1 SEC Filings. From the date the Company first became registered
-----------
under the Exchange Act, the Company has filed with the SEC all Annual
Reports on Form 10-K, Quarterly Reports on Form 10-Q, Current Reports on
Form 8-K, proxy materials, registration statements and other filings
required to be filed by it pursuant to the federal securities laws,
(collectively, the "SEC Filings"). The SEC Filings did not (as of their
respective filing dates, mailing dates or effective dates, as the case may
be) contain any untrue statement of a material fact or omit 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. The Company Material Contracts filed as
exhibits to the SEC Filings are complete and correct, except where portions
have been redacted pursuant to a request for confidentiality.
4.5.2 Financial Statements. The audited and unaudited consolidated
--------------------
financial statements of the Company included in the SEC Filings and the
unaudited consolidated financial statements of the Company for the calendar
year period ending December 31, 1999 and as of December 31, 1999 included
in the Disclosure Schedule were each prepared in accordance with GAAP
applied on a consistent basis (except as stated in such financial
statements) and fairly present in all material respects the financial
position of the Company as of the respective dates thereof and the results
of its operations and cash flow for the respective periods covered by such
financial statements. The foregoing sentence is subject, in the case of
the unaudited financial statements, to normal year-end audit adjustments
that, in the case of the 1999 unaudited financial statements will not
result in a material change in the Company's financial condition or results
of operations.
13
<PAGE>
4.5.3 Absence of Undisclosed Liabilities. The Company has no liabilities
----------------------------------
(whether accrued, absolute, contingent, unliquidated or otherwise, whether
due or to become due and regardless of when asserted) other than: (a)
liabilities adequately reserved or provided for in the Balance Sheet; (b)
liabilities entered into in the ordinary course of business that are not
required to be accounted for in the Balance Sheet under GAAP; and (c)
liabilities that have arisen, and obligations under agreements entered
into, after the date of the Balance Sheet in the ordinary course of
business.
4.5.4 No Material Adverse Change. Since the date of the Balance Sheet,
--------------------------
the Company has operated its business in the ordinary course and there has
not been: (a) any change in the business, assets, operations, condition
(financial or otherwise), results of operations, properties, earnings,
customer and supplier relations (including co-packers), considered as a
whole, or employee or sales representative relations of the Company,
considered as a whole, that would reasonably be expected to have, either
individually or in the aggregate, a Material Adverse Effect on the Company;
(b) any damage, destruction or loss, whether covered by insurance or not,
that would reasonably be expected to have a Material Adverse Effect on the
Company; (c) any declaration, setting aside or payment of any dividend
(whether in cash, stock or property) with respect to the capital stock of
the Company; (d) any new employment agreement calling for aggregate annual
compensation in excess of $100,000; (e) any increase in the compensation
payable by the Company to its directors or executive officers outside the
ordinary course of the Company's business, except as required by contracts
or plans set forth on the Disclosure Schedule; (f) any new severance,
termination of employment, bonus, insurance, pension or other employee
benefit plan, payment or arrangement made to, for or with any such
executive officers or key employees, except for (i) salary increases,
effective January 1, 2000, for all employees other than executive officers;
(ii) benefit plan modifications, effective January 1, 2000, for all
employees, excluding bonus plans; and (iii) payments required by the
Company's 1999 Bonus Plan in the approximate amount set forth on the
Disclosure Schedule; (g) any incurrence of any material liability or
obligation (indirect, direct or contingent), or any new material oral or
written agreement or other transaction, that is not in the ordinary course
of business or that would reasonably be expected to have, either
individually or in the aggregate, a Material Adverse Effect on the Company;
or (h) any preparation or filing of any Tax Return inconsistent in any
material respect with past practice or, on any such Tax Return, the taking
of any position, the making of any election, or the adoption of any method
that is inconsistent with positions taken, elections made or methods used
in preparing or filing similar Tax Returns in prior periods.
4.6 Title. Except for: (a) properties and assets disposed of in the ordinary
-----
course of business since the date of the Balance Sheet; (b) Liens disclosed
on the Balance Sheet; or (c) assets used or held under license or similar
14
<PAGE>
arrangements with third parties, the Company has good and marketable title
to, or a valid leasehold interest in, the properties and assets shown on
the Balance Sheet or acquired thereafter, and all assets necessary for the
conduct of its businesses as presently conducted, free and clear of all
Liens, except for equipment leases that aggregate less than $25,000.
4.7 Tax Matters. The Company has filed all Tax Returns that it is required to
-----------
file with any Tax Authority, and all such Tax Returns are complete and
correct in all material respects; the Company has paid all Taxes due and
owing by it, and has not waived any statute of limitations with respect to
Taxes or agreed to any extension of time with respect to a Tax assessment
or deficiency. No Tax audits are pending or being conducted with respect
to the Company, no information related to Tax matters has been requested by
any Tax Authority, and no notice indicating an intent to open an audit or
other review has been received by the Company from any Tax Authority. The
Company has withheld and paid all Taxes required to have been withheld and
paid in connection with amounts paid or owing to any employee, independent
contractor, creditor, stockholder or other third party.
4.8 Contracts and Commitments.
-------------------------
4.8.1 Company Material Contracts The Disclosure Schedule sets forth a
--------------------------
complete and accurate list of (and, other than documents filed as exhibits
to the SEC Filings, Purchaser has been provided complete and correct copies
of) any of the following contracts to which the Company is a party or by
which the Company is bound (each, a "Company Material Contract"):
(a) all written management, compensation, employment or other contracts
entered into with any executive officer, director or key employee of
the Company;
(b) all contracts under which the Company has any outstanding
indebtedness, obligation or liability for borrowed money or the
deferred purchase price of property or has the right or obligation to
incur any such indebtedness, obligation or liability, in each case in
an amount greater than $100,000 and in the aggregate more than
$1,000,000;
(c) all bonds or agreements of guarantee or indemnification under which
the Company acts as surety, guarantor or indemnitor with respect to
any obligation (fixed or contingent) in an individual amount or
potential amount greater than $100,000 or in the aggregate more than
$1,000,000;
(d) all noncompete or similar agreements;
(e) all partnership and joint venture agreements;
15
<PAGE>
(f) all agreements relating to material acquisitions or dispositions of
any business or product line;
(g) all insurance policies currently in effect and covering the Company,
its operations or personnel;
(h) all bonus, profit sharing, compensation, severance, termination, stock
option, pension, retirement, deferred compensation, employment or
other employee benefit agreements, trusts, plans, funds or other
arrangements for the benefit or welfare of any director, officer or
employee of the Company;
(i) all agreements pursuant to which the Company has agreed to pay any
rebates;
(j) all private label agreements with any of the Company's customers;
(k) all supply agreements with any of the Company's suppliers including
co-packers, together with any modification thereof or subsequent
agreement related thereto; and
(l) all agreements, together with any modification thereof or subsequent
agreement related thereto, pursuant to which the Company has licensed
from, or to, a third party any product formulations, inventions, trade
secrets, know-how, trademarks, trademark registrations, trade names,
copyrights or other intellectual property that are material,
individually or in the aggregate, to the Company.
The term Company Material Contract does not include any purchase
orders having a duration of one year or less for products, services or
inventory issued or received in the ordinary course of business.
4.8.2 No Default. The Company is not in default under the terms of any
----------
Company Material Contract in a manner that permits the other party to
adversely alter or terminate any rights of the Company or to collect
damages, that would either individually or in the aggregate, have a
Material Adverse Effect on the Company. To the Knowledge of the Company,
(a) no other party thereto is in default in any material respect under the
terms of any Company Material Contract and (b) each Company Material
Contract is valid, binding and enforceable in accordance with its terms.
The Company has not assigned any of its rights or obligations under any
Company Material Contract, nor received any notice of termination with
respect to any Company Material Contract.
4.9 Trademarks, Patents. The Company owns all material product formulations,
-------------------
inventions, trade secrets, know-how, trademarks, trademark registrations,
service marks, service mark registrations, trade names, copyrights and
other
16
<PAGE>
intellectual property necessary for the conduct of its business, including
any of the foregoing described in its Annual Report on Form 10-K for the
year ended December 31, 1998, as supplemented in the Disclosure Schedule.
The Company has not received any notice of, and has no Knowledge of, any
infringement of or conflict with the Company's rights by third parties with
respect to any product formulations, inventions, trade secrets, know-how,
trademarks, service marks, trade names or copyrights or other intellectual
property. The Company has not received any notice of, and has no Knowledge
of, any infringement of or conflict with rights of third parties with
respect to any product formulations, inventions, trade secrets, know-how,
trademarks, service marks, trade names or copyrights or other intellectual
property that, either individually or in the aggregate, if the subject of
an unfavorable decision, ruling or finding, would be material to the
business of the Company.
4.10 Litigation, Etc. There are no Actions pending or, to the Company's
----------------
Knowledge, threatened against the Company with respect to the Company's
business that if adversely determined, would reasonably be expected to
have, either individually or in the aggregate, a Material Adverse Effect on
the Company. The Company is not subject to any judgment, order or decree
of any Government Entity that in any of such cases would reasonably be
expected to have, either individually or in the aggregate, a Material
Adverse Effect on the Company.
4.11 Insurance Coverage. The Company has in full force and effect the insurance
------------------
policies listed in the Disclosure Schedule. Such policies will not
terminate or otherwise materially be affected solely as a result of
consummation of the Transactions.
4.12 Labor Relations. There is no pending or, to the Company's Knowledge,
---------------
threatened strike, slowdown, work stoppage, lockout or other collective
labor action affecting the Company or efforts to unionize the Company's
employees.
4.13 Compliance with Laws.
--------------------
4.13.1 General. The Company has not violated any Laws, which violation
-------
has had or would reasonably be expected to have, either individually or in
the aggregate, a Material Adverse Effect on the Company, and the Company
has no Knowledge of any such violation.
4.13.2 Environmental and Safety Matters. Neither the Company nor, to
--------------------------------
Company's Knowledge, any Third Party, has disposed of, released or caused
any contamination by any Hazardous Materials on or about any properties at
any time owned, leased or occupied by the Company that in any of such cases
would reasonably be expected to have, either individually or in the
aggregate, a Material Adverse Effect on the Company. To the Company's
Knowledge, it
17
<PAGE>
has not disposed of any materials at any site that could be expected to
require remediation or that is being investigated or remediated for
contamination or possible contamination of the environment. To the
Company's Knowledge, it has conducted its business in compliance with all
applicable Environmental and Safety Requirements. Company has no Knowledge
of any notice of any investigation, claim or proceeding against Company
relating to any Environmental and Safety Requirements or to Hazardous
Materials and, to the Company's Knowledge, the Company has not taken any
action that would reasonably be expected to involve Company in any
environmental litigation, proceeding, investigation or claim or impose any
environmental liability upon Company.
4.13.3 Governmental Authorizations and Regulations. The Company holds all
-------------------------------------------
governmental licenses, permits and other authorizations necessary for its
business, except where the failure to hold the same would not reasonably be
expected to have, either individually or in the aggregate, a Material
Adverse Effect on the Company. Such governmental licenses, permits and
other authorizations are valid and sufficient in all material respects for
all business presently carried on by the Company, and, to the Company's
Knowledge, there is no threatened suspension, cancellation or invalidation
of any such license, permit or other authorization, that, if suspended,
cancelled or invalidated, would reasonably be expected, either individually
or in the aggregate, to have a Material Adverse Effect on the Company.
4.14 Affiliated Transactions. To the Company's Knowledge, and except as
-----------------------
disclosed in the SEC Filings, no Affiliate of the Company or any director,
officer or key employee of the Company, or any individual related by blood
or marriage to any such Person, or any entity in which, to the Company's
Knowledge, any such Person, directly or indirectly, owns any material
beneficial interest, is a party to any material contract, transaction or
proposed transaction with the Company or has any material interest in any
property necessary for the Company's operations.
4.15 Brokers. The Company has not employed any broker or finder or incurred any
-------
liability for any brokerage fees, commissions, or finder's fees in
connection with the Transactions, except that SSB has been employed as
financial advisor to the Company.
4.16 ERISA; Employee Benefits.
------------------------
(a) Type of Employee Benefit Plans. Except as set forth on the Disclosure
------------------------------
Schedule, the Company neither maintains, contributes to nor has any
liability or potential liability with respect to (i) any employee
benefit plan (as defined in Section 3(3) of ERISA), or (ii) any other
plan, program, policy, practice, arrangement or contract providing
benefits or payments to current or former employees (or to their
beneficiaries or dependents) of
18
<PAGE>
the Company, including any bonus plan, plan for deferred compensation,
nonqualified retirement plan, equity or stock-based incentive plan,
severance plan, employee health or other welfare benefit plan or other
arrangement. For purposes of this Section 4.16(a), the "Company" will
be deemed to include any entity required to be aggregated in a
controlled group or affiliated service group with the Company for
purposes of ERISA or the Code (including under Section 414(b), (c),
(m) or (o) of the Code or Section 4001 of ERISA), at any relevant
time. For purposes of this Agreement, each such item listed on the
Disclosure Schedule is a "Benefit Plan".
(b) Qualified Plans. Each Benefit Plan that is intended to be qualified
---------------
within the meaning of Section 401(a) of the Code (i) has received a
determination from the Internal Revenue Service (the "IRS") that such
Benefit Plan is qualified under Section 401(a) of the Code, and, to
the Knowledge of the Company, nothing has occurred since the date of
such determination that could adversely affect the qualification of
such Benefit Plan, or (ii) is within the remedial amendment period for
requesting such determination letter.
(c) No Liability, etc. The Company has no liability or potential
------------------
liability with respect to (i) any "employee pension benefit plan" (as
such term is defined in Section 3(2) of ERISA) that is subject to
Section 302 of ERISA and Section 412 of the Code or (ii) any Multi-
Employer Plan. The Company has complied in all material respects with
the health care continuation requirements of Part 6 of Subtitle B of
Title I of ERISA and Section 4980B of the Code ("COBRA"); and the
Company has no obligation under any Benefit Plan or otherwise to
provide post employment health or life insurance benefits to current
or former employees of the Company or to any other person, except as
specifically required by COBRA. No Benefit Plan provides severance
benefits to any current or former employees.
(d) Change in Control Payments. None of the Benefit Plans obligates the
--------------------------
Company to pay any separation, severance, termination or similar
benefit, or accelerate any option or vesting schedule, solely as a
result of a change of control or ownership within the meaning of any
Benefit Plan or Section 280G of the Code. All change-in-control
payments are listed on the Disclosure Schedule.
(e) Compliance With Laws. Each Benefit Plan and any related trust,
--------------------
insurance contract or fund has been maintained, funded and
administered in compliance in all material respects with its
respective terms and with all applicable Laws including ERISA and the
Code. There are no pending or, to the Knowledge of the Company,
threatened actions, suits, investigations or claims with respect to
any Benefit Plan.
19
<PAGE>
No employee of the Company is a "leased employee" as defined in
Section 414(n) of the Code.
(f) Payments Made. With respect to each Benefit Plan, all required or
-------------
recommended (in accordance with historical practices) payments,
premiums, contributions, reimbursements or accruals for all prior
periods (or partial periods) have been made or properly accrued. None
of the Benefit Plans has any unfunded liabilities which have not been
property accrued.
(g) Disability; Leaves of Absence. No current or former employee of the
-----------------------------
Company (i) is eligible for long-term disability or short-term
disability benefits, (ii) is on an approved leave of absence or (iii)
is receiving or has filed a claim for workers' compensation benefits.
The Disclosure Schedule includes all material claims for worker's
compensation benefits.
4.17 Required Vote of Company Stockholders The affirmative vote of the holders
-------------------------------------
of a majority of the outstanding shares of the Company's Common stock is
required to adopt this Agreement. No other vote of the stockholders of the
Company is required by law, the Certificate of Incorporation or By-Laws or
otherwise in order for the Company to consummate the Merger and the
Transactions.
4.18 State Takeover Laws. The Company's Board has, to the extent such statute
-------------------
is applicable, taken all action (including appropriate approvals of the
Company's Board) necessary to exempt the Purchaser and Merger Sub and their
respective affiliates, the Merger, this Agreement, the Transactions, and
the Support Agreements from Section 203 of the DGCL. To the Knowledge of
the Company, no other state takeover statutes are applicable to the Merger,
this Agreement, or the Transactions.
5. Representations And Warranties Of Purchaser
-------------------------------------------
Purchaser represents and warrants to the Company as follows:
5.1 Organization. Purchaser is a corporation duly organized, validly existing,
------------
and in good standing under the Laws of the State of Delaware. Merger Sub
is a corporation duly organized, validly existing, and in good standing
under the Laws of the State of Delaware.
5.2 Authority. Each of Purchaser and Merger Sub has the requisite corporate
---------
power and authority to enter into this Agreement and to perform its
obligations hereunder. The execution, delivery and performance by
Purchaser and Merger Sub of this Agreement and the Transactions have been
duly authorized by all necessary corporate action and no other corporate
proceedings on either of their part are necessary to authorize the
execution,
20
<PAGE>
delivery or performance of this Agreement by Purchaser or Merger Sub. This
Agreement constitutes the valid and binding agreement of Purchaser.
5.3 Effect of Agreement. The execution, delivery and performance of this
-------------------
Agreement and the consummation of the Transactions, including the making of
the Offer by Purchaser and Merger Sub, will not constitute a breach or
violation of or a default under (a) the charter documents or the bylaws of
Purchaser or Merger Sub; (b) any applicable Law; (c) any judgment, decree,
order, governmental permit or license binding on Purchaser or Merger Sub;
or (d) any indenture, agreement or instrument to which Purchaser or Merger
Sub is subject, other than, in the case of (a) through (d) above, a breach,
violation or default that would not reasonably be expected to prevent,
materially hinder or make materially more burdensome the consummation by
Purchaser or Merger Sub of the Transactions. The consummation by Purchaser
and Merger Sub of the Transactions will not require the consent or approval
of or filing with any Government Entity or other Third Party, except for
(i) applicable requirements, if any, of the Exchange Act, the Securities
Act and the securities Laws of the various jurisdictions in which holders
of Shares reside, (ii) the filing of the Merger Certificate and related
requirements pursuant to the DGCL, (iii) any filings and approvals required
under the HSR Act, and (iv) applicable requirements, if any, of the Code
and state, local and foreign Tax Laws. In addition, the foregoing sentence
is qualified to the extent that the failure to obtain such consents,
approvals, authorizations or permits, or to make such filings or
notifications, would not (w) prevent or delay consummation of the
Transactions in any material respect, (x) otherwise prevent Purchaser from
performing its obligations under this Agreement in any material respect,
(y) reasonably be expected to have, either individually or in the
aggregate, a Material Adverse Effect on Purchaser, or (z) the failure to
obtain such consent or approval or make such filing would prevent,
materially hinder or make materially more burdensome the consummation of
the Transactions.
5.4 Financing. Purchaser has adequate liquid resources to pay the Merger
---------
Consideration and the amounts necessary to cancel the Equity Derivatives as
contemplated by this Agreement without recourse to Third Party financing
(other than existing definitive financial arrangements that are not
conditional upon due diligence by such Third Parties with respect to the
Company).
6. Covenants
---------
6.1 Conduct of Business of the Company. During the period from the date of
----------------------------------
this Agreement to the Effective Time, except as specifically contemplated
by this Agreement or as described on the Disclosure Schedule, or as
otherwise approved by Purchaser, the Company will at all times (a) conduct
its business in a manner such that at the Effective Time, the closing
conditions in Section 8 will be met, including the continued truth and
accuracy of the
21
<PAGE>
representations and warranties set forth herein, and (b) comply at all
times with the following covenants.
6.1.1 Ordinary Course; Preserve Relationships. The Company will conduct
---------------------------------------
its business only in the usual and ordinary course and in compliance with
this Agreement, and use commercially reasonable efforts to: (a) maintain,
preserve and renew all customer and supplier (including co-packer)
relationships, material contracts, licenses, authorizations and permits
necessary to the conduct of its business; (b) keep available the services
of key employees; (c) preserve the goodwill of those having business
relationships with it; and (d) pay and otherwise satisfy its obligations
within the time periods required by the Company's contractual obligations.
6.1.2 Insurance. The Company will continue the Insurance Policies in
---------
full force.
6.1.3 Taxes and Liens. The Company will pay and discharge when payable
---------------
all (a) Taxes imposed upon its properties or upon the income or profits
therefrom (in each case before the same becomes delinquent and before
penalties accrue thereon) and (b) material claims for labor, materials or
supplies that if unpaid might by Law become a Lien upon any of its
property, unless and to the extent that the same are being contested in
good faith and by appropriate proceedings and adequate reserves (as
determined in accordance with GAAP) have been established on its books with
respect thereto. The Company will not and will not agree to commit or make
any material Tax election or take any position on any Tax Return filed on
or after the date of this Agreement or adopt any method therefore that is
inconsistent with elections made, positions taken or methods used in
preparing or filing similar Tax Returns in prior periods in each case
without the prior consent of Purchaser, such consent not to be unreasonably
withheld.
6.1.4 Contracts and Laws. The Company will (a) comply with all other
------------------
obligations that it presently has and all other obligations that it incurs
pursuant to any Company Material Contract, as such obligations become due,
unless and to the extent that the same are being contested in good faith
and by appropriate proceedings and adequate reserves (as determined in
accordance with GAAP) have been established on its books with respect
thereto and (b) comply in all material respects with all applicable Laws.
6.1.5 Acquisition; Consolidation; Reorganization; Sale of Assets. The
----------------------------------------------------------
Company will not and will not agree or commit to: (a) merge or consolidate
with any Person or acquire, directly or indirectly through Subsidiaries,
assets (other than in the ordinary course of business); (b) liquidate,
dissolve or effect a reorganization in any form of transaction; or (c)
sell, lease, transfer or otherwise dispose of any of its properties or
assets, except in the ordinary
22
<PAGE>
course of business consistent with past practice or, in the case of events
described under clauses (a), (b) or (c) above, as permitted under Section
6.6.
6.1.6 Limitations on Indebtedness; Investments; Contracts; etc. The
--------------------------------------------------------
Company will not: (a) incur any indebtedness for borrowed money or issue
any debt securities or assume, guarantee or endorse or otherwise as an
accommodation become responsible for, the obligations of any other Person,
other than under the Company's existing credit line listed in the
Disclosure Schedule; (b) make any loans, advances, or capital contributions
to, or investments in any other Person (other than advances to employees,
and the maintenance of its cash reserves, in the ordinary course of
business consistent with past practice); (c) enter into any contract that
would be a Company Material Contract other than in the ordinary course of
business consistent with past practice; (d) make any capital expenditures
or purchases of fixed assets that are not currently budgeted and that in
the aggregate exceeds $250,000; (e) terminate or amend in any material
respect any Company Material Contract other than as required in the
Company's ordinary course of business; or (f) enter into or amend any
contract, agreement, commitment or arrangement to effect any of the matters
prohibited hereunder.
6.1.7 Amendment to the Company's Certificate of Incorporation and Bylaws.
------------------------------------------------------------------
The Company will not amend its Certificate of Incorporation or Bylaws in
any manner.
6.1.8 Equity Issuances. Except as expressly contemplated by this
----------------
Agreement, the Company will not (a) authorize, issue or enter into any
contract providing for the issuance (contingent or otherwise) of, any
capital stock or other Equity Derivatives; (b) enter into any contract with
respect to the purchase or voting of shares of its capital stock or Equity
Derivatives; (c) adjust, split, combine, reclassify or amend any material
term of its Shares; or (d) make any other changes in its capital structure.
6.1.9 Dividends. The Company will not declare, set aside, pay or make any
---------
dividend or other distribution or payment (whether in cash, stock or
property) with respect to, or purchase or redeem, any capital stock or
Equity Derivatives.
6.1.10 Accounting Policies. The Company will not take, agree or commit to
-------------------
take or fail to take any action with respect to accounting policies or
procedures that are inconsistent with past practice (other than in the
ordinary course of business or as required by changes in GAAP.
6.1.11 Litigation. The Company will not, without the consent of Purchaser
----------
settle or compromise, or agree or commit to settle or compromise, any suit
or claim or threatened suit or claim (including any claim of the type
referred to in Section 3.4) for an amount that individually or when
aggregated with all
23
<PAGE>
settlements occurring during the term of this Agreement would exceed $1
million.
6.1.12 Other Actions. The Company will not take, agree or commit to take
-------------
or fail to take any action that would result in any of the representations
and warranties of the Company contained herein being untrue or any of the
Company's covenants to be breached (a) as of the date of such action or
inaction or (b) as of the Effective Time.
6.2 Access and Information.
----------------------
6.2.1 Company Records. Subject to applicable Laws and fiduciary and
---------------
privacy obligations, the Company will permit Purchaser, Merger Sub and
their respective representatives to have reasonable access during normal
business hours, upon reasonable notice, to all of the Company's properties,
books, records, Tax Returns, and all other information with respect to the
Company's business as Purchaser may from time to time reasonably request,
and to discuss the Company's business with the Company's directors,
officers, employees, accountants, counsel, suppliers (including co-
packers), customers, and creditors, as Purchaser reasonably considers
necessary or appropriate in connection with the Transactions. Any such
investigation will be conducted in such manner as not to interfere
unreasonably with the operation of the business of the Company. No
investigation pursuant to this Section 6.2.1 or otherwise will affect or be
deemed to modify any representations or warranties made in this Agreement
or the conditions to the obligations of the parties to consummate the
Merger.
6.2.2 Confidential Information. Notwithstanding any provision in this
------------------------
Agreement to the contrary, all Confidential Information will be treated by
each of Purchaser, Merger Sub and the Company as set forth in the
Confidentiality Agreement, which will remain in full force and effect.
6.3 Certain Filings, Consents and Arrangements.
------------------------------------------
6.3.1 Consents. Purchaser, Merger Sub and the Company will use their
--------
commercially reasonable efforts to obtain any necessary consents, permits,
authorizations, approvals and waivers to permit the consummation of the
Transactions.
6.3.2 Filings. Purchaser, Merger Sub and the Company will cooperate with
-------
one another (a) in promptly determining whether any filings are required to
be made or consents, approvals, permits or authorizations are required to
be obtained under any Law from other parties in connection with the
consummation of the Transactions and (b) in promptly making any such
filings, furnishing information required in connection therewith and
seeking timely to obtain any such consents, permits, authorizations,
approvals or waivers.
24
<PAGE>
6.4 Hart-Scott-Rodino. Each party will as promptly as practicable and
-----------------
in any event within five business days from the date of this Agreement make
all filings necessary under the HSR Act to obtain any required regulatory
approvals of the Transactions. Each party will use its commercially
reasonable efforts to resolve such objections, if any, as the Anti-Trust
Division of the Department of Justice or the Federal Trade Commission
assert with respect to the Transactions. Notwithstanding any other
provision of this Agreement, in connection with seeking any approval of a
Governmental Entity relating to this Agreement or the consummation of the
Transactions, without the other party's prior written consent, neither
party will, and neither party will be required to, commit to any
divestiture transaction, agree to sell or hold separate, before or after
the Effective Time, any of its businesses, product lines, properties or
assets, in any such case, if such divestiture or such restrictions in the
operation of such businesses, product lines, properties or assets, would,
individually or in the aggregate, be reasonably expected to affect any
material portion of the Company's business or assets after giving effect to
the Merger or give rise to any of the effects described in Section 4(b) of
Exhibit B.
6.5 Press Releases. Each of the parties agrees that it will not, nor will any
--------------
of its respective Affiliates, issue or cause the publication of any press
release or other public announcement with respect to the Offer, the Merger,
this Agreement or the Transactions without the prior approval of the other
party, except such disclosure as may be required by Law or by any listing
agreement with NASDAQ or the New York Stock Exchange. If any such
disclosure is so required, such disclosure will not be made without a good
faith effort to confer with the other parties to this Agreement in advance
of, and with respect to the substance of, such disclosure.
6.6 Non-Solicitation. The Company will not, directly or indirectly, through
----------------
any subsidiary, officer, director, employee, financial advisor,
representative or agent
(a) solicit, initiate, or encourage any Acquisition Proposal;
(b) except as permitted by clause (c) below, engage in negotiations or
substantive discussions with any Third Party concerning, provide any
non-public information to any person or entity relating to, or take
any other action to facilitate inquiries or the making or any proposal
that constitutes, an Acquisition Proposal; or
(c) enter into any agreement with respect to any Acquisition Proposal;
provided, however, that nothing contained in this Section 6.6 will
-----------------
prevent the Company or the Company's Board from furnishing, at any
time before the closing of the Offer, non-public information to, or
entering into discussions or negotiations with, any Third Party in
connection with an
25
<PAGE>
unsolicited bona fide written proposal for an Acquisition Proposal by
such Third Party, if and only to the extent that the Company Board
determines after consultation with counsel that doing so is required
by its fiduciary duties to its stockholders, and
(i) such Third Party has made a written proposal to the Company's
Board to consummate an Acquisition Proposal, which proposal identifies
a price or range of values to be paid for the outstanding securities
or substantially all of the assets of the Company,
(ii) the Company's Board determines in good faith, after consultation
with its advisors (including SSB), that such Acquisition Proposal is
reasonably capable of being completed on substantially the terms
proposed, and would, if consummated, result in a transaction that
would provide greater value to the holders of the Shares than the
transaction contemplated by this Agreement (and any revised proposal
made by Purchaser, if any) (a "Superior Proposal"), and
(iii) before furnishing such non-public information to, or entering
into discussions or negotiations with, such person or entity, the
Company's Board receives from such Person an executed confidentiality
and standstill agreement with material terms in the aggregate no less
favorable to such person than those contained in the Confidentiality
Agreement.
6.6.1 Notice of Acquisition Proposal. The Company will notify Purchaser
------------------------------
promptly, and in any event within twenty-four hours, after receipt by the
Company, or to the Company's Knowledge, the receipt by any of its advisors,
of any Acquisition Proposal or any request for non-public information in
connection with an Acquisition Proposal or for access to the properties,
books or records of the Company by any Person that informs such party that
it is considering making or has made an Acquisition Proposal. The Company
will keep Purchaser informed on a current basis of the status of any such
Acquisition Proposal or request for non-public information.
6.6.2 Board Approval.
--------------
(a) Company Prohibitions. Except as permitted by clause (b) below,
--------------------
neither the Company's Board nor any committee thereof will: (a)
withdraw or modify, or propose to withdraw or modify, in a manner
adverse to Purchaser, the approval or recommendation by the Company's
Board or any such committee of this Agreement or the Merger; (b)
approve or cause the Company to enter into an Acquisition Agreement;
or (c) approve or recommend, or propose to publicly approve or
recommend, any Acquisition Proposal.
26
<PAGE>
(b) Exception for Superior Proposal. Notwithstanding anything to the
-------------------------------
contrary appearing in this Agreement, if the Company has received a
Superior Proposal, the Company's Board may, to the extent that the
Company's Board determines, after consultation with counsel, that
doing so is required by its fiduciary duties to its stockholders,
before the closing of the Offer terminate this Agreement pursuant to
Section 9.2.4, but only at a time that is more than five days
following receipt by Purchaser of written notice advising Purchaser
that the Company's Board is prepared to accept such Superior Proposal,
specifying the material terms and conditions of such Superior
Proposal, and identifying the Third Party making such Superior
Proposal.
6.6.3 Board Recommendation. Nothing contained in this Section 6 will
--------------------
prohibit the Company from taking and disclosing to its stockholders a
position contemplated by Rule 14e-2(a) promulgated under the Securities
Exchange Act or from making any disclosure to the Company's stockholders if
such disclosure is required by the Company's Board's fiduciary duties to
its stockholders, as concluded by the Company's Board in good faith after
consultation with its advisors.
6.6.4 Other Confidential Agreements. During the period from the date of
-----------------------------
this Agreement through the Effective Time, the Company shall not terminate,
amend, modify or waive any provision of any confidentiality, standstill or
similar agreement to which it or any of its Subsidiaries is a party and
which relates to any transaction that could constitute an Acquisition
Proposal or that has as a counterparty any Person making an Acquisition
Proposal.
6.7 Notice of Claims. The Company shall promptly notify Purchaser of any
----------------
actions, suits, claims, investigations or proceedings commenced or, to the
Knowledge of the Company, threatened against, relating to or involving or
otherwise affecting the Company which, if pending on the date of this
Agreement, would have been required to have been disclosed pursuant to
Section 4.10 or which relate to the consummation of the Transactions. In
addition, the Company shall promptly notify Purchaser of (a) (i) it
becoming aware of any fact or event which would be reasonably likely to
demonstrate that any of its representations or warranties contained in this
Agreement was or is untrue or inaccurate in any material respect as of the
date of this Agreement or (ii) the occurrence of non-occurrence of any fact
or event which would be reasonably likely to cause any material covenant,
condition or agreement of the Company under this Agreement not to be
complied with or satisfied in all material respects and (b) the Company's
failure to comply with or satisfy any covenant, condition or agreement to
be complied with or satisfied by it hereunder in any material respect;
provided, however, that no such notification shall affect the
representations or warranties of any party or the conditions to the
obligations of any party hereunder.
27
<PAGE>
6.8 Additional Agreements. Each party will take, or cause to be taken, all
---------------------
actions and promptly to do, or cause to be done, all things reasonably
necessary, proper or advisable to consummate the Transactions.
7. Purchaser Covenants
-------------------
7.1 Indemnification and Insurance.
-----------------------------
7.1.1 Indemnification. From and after the Effective Time, Purchaser will
---------------
cause the Surviving Corporation to indemnify, defend and hold harmless, to
the fullest extent that the Company would be required under its presently
existing Certificate of Incorporation, presently existing bylaws and any
applicable Laws, each Person who is now or was before the date hereof an
officer or director of the Company (individually, an "Indemnified Party"
and collectively, the "Indemnified Parties"), against all losses, claims,
damages, liabilities, costs or expenses (including attorneys' fees),
judgments, fines, penalties and amounts paid in settlement in connection
with any Action arising out of or pertaining to acts or omissions, or
alleged acts or omissions, by them in their capacities as such occurring at
or before the Effective Time. Any Indemnified Party wishing to claim
indemnification will promptly notify the Surviving Corporation thereof
(provided that failure to so notify the Surviving Corporation will not
affect the obligations of the Surviving Corporation except to the extent
that the Surviving Corporation is materially prejudiced as a result of such
failure). With respect to any Action for which relief under this Section
7.1.1 is requested, the Surviving Corporation will be entitled to
participate therein at its own expense and, except as otherwise provided
below, to the extent that it may wish, the Surviving Corporation may assume
the defense thereof, with counsel reasonably satisfactory to the
Indemnified Party. After notice from the Surviving Corporation to the
Indemnified Party of its election to assume the defense of an Action, the
Surviving Corporation will not, during the period that such defense is
being actively maintained, be liable to the Indemnified Party for any legal
or other expenses subsequently incurred by the Indemnified Party in
connection with the defense thereof, other than as provided below. The
Surviving Corporation will not settle any Actions without the consent of
the Indemnified Party where such settlement includes an admission of civil,
criminal or administrative liability, or censure or sanction on behalf of
an Indemnified Party or requires any payment to be made by the Indemnified
Party. The Indemnified Party will have the right to employ counsel in any
Action, but the fees and expenses of such counsel incurred after notice
from the Surviving Corporation of its assumption of the defense thereof
will be at the expense of the Indemnified Party unless (a) the employment
of counsel by the Indemnified Party has been authorized by the Surviving
Corporation in writing; (b) the Indemnified Party has reasonably concluded
upon the advice of counsel that there may be a conflict of interest between
the Indemnified Party and the Surviving Corporation in the conduct of the
defense of an Action; or (c) the Surviving Corporation has not in fact
employed counsel to assume
28
<PAGE>
the defense of an Action. In each of the foregoing cases the reasonable
fees and expenses of counsel selected by the Indemnified Party will be at
the expense of the Surviving Corporation. Notwithstanding the foregoing,
the Surviving Corporation will not be liable for any settlement effected
without its written consent, which will not be unreasonably withheld,
conditioned or delayed, and the Surviving Corporation will not be obligated
pursuant to this Section 7.1.1 to pay the fees and disbursements of more
than one counsel (in addition to any local counsel) for all Indemnified
Parties in any single Action, except to the extent two or more of such
Indemnified Parties have conflicting interests in the outcome of such
action.
7.1.2 Insurance. For a period of six years after the Effective Time, the
---------
Surviving Corporation will maintain officers' and directors' liability
insurance covering the Indemnified Parties who are currently covered by the
Company's existing officers' and directors' liability insurance policies on
terms substantially no less advantageous to the Indemnified Parties than
such existing insurance. The Surviving Corporation will not, however, be
required, in order to maintain or procure such coverage, to pay premiums on
an annualized basis in excess of 200% of the current annual premium paid by
the Company for its existing coverage (the "Cap"). If equivalent coverage
cannot be obtained, or can be obtained only by paying an annual premium in
excess of the Cap, the Surviving Corporation will only be required to
obtain as much coverage as can be obtained by paying premiums on an
annualized basis equal to the Cap.
7.1.3 Survival. The provisions of this Section 7.1 will survive the
--------
consummation of the Merger and expressly are intended to benefit each of
the Indemnified Parties. They are in addition to, and not in replacement or
waiver of, any other rights or remedies any Indemnified Person may have
under Law, contract, or otherwise.
7.2 Employee Compensation Arrangements.
----------------------------------
7.2.1 Purchaser Will Honor. Purchaser and Merger Sub will honor all
--------------------
legally imposed obligations relating to employment matters. Purchaser and
Merger Sub intend to cause the Surviving Corporation to provide benefits to
employees of the Surviving Corporation that are no less favorable in the
aggregate to such employees than those in effect on the date hereof and
listed on the Disclosure Schedule (other than the stock based compensation
plans). Nothing herein will obligate Purchaser to provide such employees
with any stock based compensation (including stock options or stock
appreciation rights) after the Effective Time. The foregoing will not limit
or restrict the right of the Surviving Corporation to terminate the
employment of such employees or subsequently to modify the benefits or
other terms of employment of such employees, to the extent permitted by
applicable Law.
29
<PAGE>
7.2.2 Audit of 1999 Plan. Purchaser will engage Arthur Andersen, the
------------------
Company's independent accountants, to conduct an audit of the Company's
financial statements (in accordance with GAAP) for the fiscal year ending
December 31, 1999 for purposes of calculating payments owing under the 1999
Bonus Plan, as in effect and disclosed on the Disclosure Schedule (the
"Plan"). Purchaser will pay the Company's employees 1999 annual bonuses as
soon as possible after such accountants deliver their audit opinion
regarding the Company's 1999 financial statements based upon such financial
statements.
7.2.3 Years of Credit. All service credited to each employee by the
---------------
Company through the Effective Time will be recognized by Purchaser for
purposes of eligibility and vesting (but not for level or accrual of
benefits) under any employee benefit plan provided by the Surviving
Corporation or Purchaser for the benefit of employees in which such
employees of the Company participate.
7.2.4 Cooperation. The Company and Purchaser will cooperate in good faith
-----------
in (a) communicating with Company employees with regard to the Merger and
any personnel or employee benefits matters related thereto and (b)
facilitating any necessary transitions in connection with the Merger with
respect to Company benefit plans, payroll administration, or similar
matters.
8. Conditions
----------
8.1 Conditions to the Obligations of Purchaser, Merger Sub and the Company.
----------------------------------------------------------------------
The obligations of Purchaser, Merger Sub and the Company to consummate the
Merger are subject to the satisfaction, at or before the Effective Time, of
each of the following conditions:
8.1.1 Stockholder Approval. The stockholders of the Company must have
--------------------
duly adopted this Agreement and approved the Merger, if required by
applicable Law.
8.1.2 No Injunction. The consummation of the Merger must not have been
-------------
precluded by any order or injunction of a court of competent jurisdiction,
and there must not have been any Law enacted, promulgated or deemed
applicable to the Merger by any Government Entity, that makes consummation
of the Merger illegal.
8.2 Conditions to the Obligations of Purchaser and Merger Sub. The obligations
---------------------------------------------------------
of Purchaser and Merger Sub to consummate the Merger are subject to the
satisfaction, at or before the Effective Time, of the following additional
conditions:
30
<PAGE>
8.2.1 Performance by the Company. The Company must have performed in all
--------------------------
material respects the covenants and agreements set forth herein to be
performed by it at or before the Effective Time.
8.2.2 Representations and Warranties. The representations and warranties
------------------------------
of the Company in this Agreement that are qualified as to materiality must
be true and correct and representations and warranties that are no so
qualified, taken together, must be true and correct in all material
respects, in each case, as though made on the Effective Date (except for
such representations and warranties made as of a specific date, which must
be true and correct as of such date) with the same force and effect as
though made on and as of such date.
8.2.3 Material Adverse Change. There must not have occurred after the
-----------------------
completion of the Offer any material adverse change in the condition
(financial or otherwise), results of operations, business, prospects or
contractual rights of the Company, except for such changes that are caused
by the Company's compliance with the terms of this Agreement and the Offer
or that are contemplated hereby.
8.2.4 No Injunction, Etc. No Action shall have been commenced after
-------------------
completion of the Offer that (a) in the opinion of Purchaser's counsel is
more likely than not to be successful, and (b) either (i) seeks an
injunction, a restraining order or any other order seeking to prohibit,
restrain, invalidate or set aside consummation of the Merger or (ii) if
successful, would reasonably be expected to have, either individually or in
the aggregate, a Material Adverse Effect on the Company, Purchaser or the
Surviving Corporation.
8.2.5 No Material Adverse Effect. From the date of this Agreement through
--------------------------
the Effective Time, there shall not have been any condition, event or
occurrence that has resulted in, or that would reasonably be expected to
result in, either individually or in the aggregate, a Material Adverse
Effect on the Company.
8.2.6 Consents. The Company must have obtained all material consents,
--------
waivers, approvals, authorizations or orders and made all filings required
in connection with the authorization, execution and delivery of this
Agreement by the Company and the consummation by it of the Transactions,
and all applicable notice periods shall have expired.
8.2.7 Equity Derivatives. The Company must have taken any action
------------------
necessary to provide that Equity Derivatives will be treated as provided in
Section 3.3.5.
8.2.8 Company Certificate. The Company must have delivered to Purchaser
-------------------
and Merger Sub a certificate, as of the Effective Time, executed by
31
<PAGE>
a senior executive officer of the Company, to the effect that to the best
of such officer's Knowledge the conditions set forth in Section 8.1 have
been fulfilled.
8.3 Condition to the Company's Obligation. The obligation of the Company to
-------------------------------------
consummate the Merger is subject to the satisfaction, at or before the
Effective Time, of the following additional conditions:
8.3.1 Performance by Purchaser's Merger Sub. Purchaser and Merger Sub
-------------------------------------
must have performed in all material respects the covenants and agreements
set forth herein to be performed by them at or before the Effective Time.
8.3.2 Representations and Warranties. The representations and warranties
------------------------------
of Purchaser and Merger Sub set forth in this Agreement that are qualified
as to materiality must be true and correct and representations and
warranties that are not so qualified, taken together, must be true and
correct in all material respects, in each case, as though made on the
Effective Date (except for such representations and warranties made as of a
specific date, which must be true and correct as of such date) with the
same force and effect as though made on and as of such date.
8.3.3 Purchaser and Merger Sub Certificates. Purchaser and Merger Sub
-------------------------------------
must have each delivered to the Company a certificate, dated the date of
the Effective Time and executed in each case by, a senior executive officer
thereof, to the effect that to the best of such officer's Knowledge the
conditions set forth in this Section 8 required to be met by such officer's
corporation have been fulfilled.
9. Termination; Payments
---------------------
This Agreement can be terminated before the Effective Time (notwithstanding
any approval of this Agreement by the stockholders of the Company), only as
set forth in this Section 9.
9.1 Mutual Consent. By the mutual consent of Purchaser, Merger Sub and the
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Company.
9.2 By Purchaser or Company.
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9.2.1 Material Breach. By Purchaser or the Company if there has been any
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material breach of any representation, warranty, covenant or agreement set
forth in this Agreement on the part of the non-terminating party, which
breach will cause the conditions set forth in Section 8.1 or Section 8.3
(in the case of the Company) Section 8.1 or Section 8.2 (in the case of
Purchaser) not to be satisfied, and the same shall not have been cured (if
reasonably capable of cure) within five days after notice to the party in
breach.
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9.2.2 Expiration. By Purchaser or the Company if the Merger has not been
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consummated by June 30, 2000 (but this Section 9.2.2 will not be available
to any party whose breach results in failure of the Merger to be
consummated by such time).
9.2.3 Governmental Prohibition. By Purchaser or the Company if any
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Government Entity has issued a final order, decree or ruling or taken any
other final action restraining, enjoining or otherwise prohibiting the
consummation of the Offer or the Merger and such order, decree or ruling or
other action has become nonappealable.
9.2.4 Company Directors Withdrawal of Approval.
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(a) By the Company. By the Company at any time before the closing of the
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Offer, upon notice to Purchaser, if:
(i) under the circumstances permitted by Section 6.6 the Company's
Board has withdrawn, or modified in a manner materially adverse to
the Purchaser, approval or recommendation by the Company's Board of
this Agreement, the Offer or the Merger; or
(ii) concurrently with the execution of an Acquisition Agreement
under the circumstances permitted by Section 6.6 in connection with
a Superior Proposal, provided that such termination under this
clause (ii) will not be effective unless the Company and its Board
have complied with their obligations under Section 6.6 in connection
with such Superior Proposal.
(b) By Purchaser. By Purchaser upon notice to Company, if:
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(i) the Company's Board has failed to recommend or withdrawn, or
modified or publicly announced an intention to withdraw or modify in
a manner materially adverse to the Purchaser, approval or
recommendation by Company's Board of this Agreement, the Offer or
the Merger; or
(ii) the Company's Board approves, recommends or enters into any
Acquisition Proposal (including any Superior Proposal) or publicly
announced its intention to do so.
9.3 By Purchaser.
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9.3.1 Other Ownership. By Purchaser if another Person or Group acquires
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beneficial ownership of Shares representing more than fifty percent of the
Shares.
9.3.2 Failure to Meet Offer Conditions. By Purchaser if it is not in
--------------------------------
breach of this Agreement and, because of a failure of any of the conditions
set forth on
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Exhibit B, Purchaser has: (a) failed to commence the Offer within the time
required by Regulation 14D under the Exchange Act; (b) terminated the Offer
without purchasing and Shares pursuan