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AGREEMENT AND PLAN OF MERGER
BY AND AMONG
TYCO INTERNATIONAL LTD.,
T11 ACQUISITION CORP.
and
UNITED STATES SURGICAL CORPORATION
Dated as of May 25, 1998
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TABLE OF CONTENTS
ARTICLE I
THE MERGER................................ 2
SECTION 1.01. The Merger............................................ 2
SECTION 1.02. Effective Time. ..................................... 2
SECTION 1.03. Effect of the Merger.................................. 2
SECTION 1.04. Certificate of Incorporation; By-Laws................. 2
SECTION 1.05. Directors and Officers................................ 3
SECTION 1.06. Effect on Capital Stock............................... 3
SECTION 1.07. Exchange of Certificates.............................. 5
SECTION 1.08. Stock Transfer Books.................................. 7
SECTION 1.09. No Further Ownership Rights in Company Common Stock... 7
SECTION 1.10. Lost, Stolen or Destroyed Certificates................ 7
SECTION 1.11. Tax and Accounting Consequences....................... 7
SECTION 1.12. Taking of Necessary Action; Further Action............ 7
SECTION 1.13. Material Adverse Effect............................... 8
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE COMPANY.............. 8
SECTION 2.01. Organization and Qualification; Subsidiaries.......... 8
SECTION 2.02. Certificate of Incorporation and By-Laws.............. 9
SECTION 2.03. Capitalization........................................ 9
SECTION 2.04. Authority Relative to this Agreement.................. 10
SECTION 2.05. No Conflict; Required Filings and Consents............ 10
SECTION 2.06. Compliance; Permits................................... 11
SECTION 2.07. SEC Filings; Financial Statements..................... 12
SECTION 2.08. Absence of Certain Changes or Events.................. 13
SECTION 2.09. No Undisclosed Liabilities............................ 13
SECTION 2.10. Absence of Litigation................................. 13
SECTION 2.11. Employee Benefit Plans; Employment Agreements......... 13
SECTION 2.12. Labor Matters......................................... 16
SECTION 2.13. Registration Statement; Proxy Statement/Prospectus.... 17
SECTION 2.14. Restrictions on Business Activities................... 17
SECTION 2.15. Title to Property..................................... 18
SECTION 2.16. Taxes................................................. 18
SECTION 2.17. Environmental Matters................................. 19
SECTION 2.18. Brokers............................................... 21
SECTION 2.19. Intellectual Property................................. 21
SECTION 2.20. Interested Party Transactions......................... 22
SECTION 2.21. Insurance............................................. 23
SECTION 2.22. Product Liability and Recalls......................... 23
SECTION 2.23. Opinion of Financial Advisor.......................... 23
SECTION 2.24. Pooling Matters....................................... 23
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SECTION 2.25. Tax Matters........................................... 23
SECTION 2.26 Accuracy of Information................................ 24
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF
PARENT AND MERGER SUB.......................... 24
SECTION 3.01. Organization and Qualification; Subsidiaries.......... 24
SECTION 3.02. Articles of Organization and By-Laws.................. 24
SECTION 3.03. Capitalization........................................ 25
SECTION 3.04. Authority Relative to this Agreement.................. 25
SECTION 3.05. No Conflict; Required Filings and Consents............ 26
SECTION 3.06. Compliance; Permits................................... 27
SECTION 3.07. SEC Filings; Financial Statements..................... 27
SECTION 3.08. Absence of Certain Changes or Events.................. 28
SECTION 3.09. No Undisclosed Liabilities............................ 28
SECTION 3.10. Absence of Litigation................................. 28
SECTION 3.11. Employee Benefit Plans; Employment Agreements......... 28
SECTION 3.12. Labor Matters......................................... 31
SECTION 3.13. Registration Statement; Proxy Statement/Prospectus... 31
SECTION 3.14. Restrictions on Business Activities................... 32
SECTION 3.15. Title to Property..................................... 32
SECTION 3.16. Taxes................................................. 33
SECTION 3.17. Environmental Matters................................. 34
SECTION 3.18. Brokers............................................... 35
SECTION 3.19. Intellectual Property................................. 35
SECTION 3.20. Interested Party Transactions......................... 35
SECTION 3.21. Insurance............................................. 35
SECTION 3.22. Product Liability and Recalls......................... 36
SECTION 3.23. Ownership of Merger Sub; No Prior Activities.......... 36
SECTION 3.24. Pooling Matters....................................... 36
SECTION 3.25. Tax Matters........................................... 36
SECTION 3.26. DGCL Section 203...................................... 36
SECTION 3.27 Accuracy of Information................................ 37
ARTICLE IV
CONDUCT OF BUSINESS PENDING THE MERGER.................. 37
SECTION 4.01. Conduct of Business by the Company Pending the Merger. 37
SECTION 4.02. No Solicitation....................................... 39
SECTION 4.03. Conduct of Business by Parent Pending the Merger...... 40
ARTICLE V
ADDITIONAL AGREEMENTS.......................... 41
SECTION 5.01. Proxy Statement/Prospectus; Registration Statement... 41
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SECTION 5.02. Company Shareholders Meeting.......................... 42
SECTION 5.03. Access to Information; Confidentiality................ 42
SECTION 5.04. Consents; Approvals................................... 42
SECTION 5.05. Agreements with Respect to Affiliates................. 42
SECTION 5.06. Indemnification and Insurance......................... 43
SECTION 5.07. Notification of Certain Matters....................... 44
SECTION 5.08. Further Action/Tax Treatment.......................... 45
SECTION 5.09. Public Announcements.................................. 45
SECTION 5.10. Listing of Parent Shares.............................. 45
SECTION 5.11. Conveyance Taxes...................................... 45
SECTION 5.12. Option Plans and Benefits, etc........................ 45
SECTION 5.13. Accountant's Letters.................................. 46
SECTION 5.14. Pooling Accounting Treatment.......................... 46
SECTION 5.15. Connecticut Transfer Act.............................. 47
SECTION 5.16. Director Appointment.................................. 47
ARTICLE VI
CONDITIONS TO THE MERGER......................... 47
SECTION 6.01. Conditions to Obligation of Each Party to
Effect the Merger................................... 47
SECTION 6.02. Additional Conditions to Obligations of
Parent and Merger Sub............................... 49
SECTION 6.03. Additional Conditions to Obligation of the Company.... 50
ARTICLE VII
TERMINATION............................... 50
SECTION 7.01. Termination........................................... 50
SECTION 7.02. Effect of Termination................................. 52
SECTION 7.03. Fees and Expenses..................................... 53
ARTICLE VIII
GENERAL PROVISIONS............................ 54
SECTION 8.01. Effectiveness of Representations, Warranties and
Agreements.......................................... 54
SECTION 8.02. Notices............................................... 54
SECTION 8.03. Certain Definitions................................... 56
SECTION 8.04. Amendment............................................. 57
SECTION 8.05. Waiver................................................ 57
SECTION 8.06. Headings.............................................. 57
SECTION 8.07. Severability.......................................... 57
SECTION 8.08. Entire Agreement...................................... 57
SECTION 8.09. Assignment; Merger Sub................................ 58
SECTION 8.10. Parties in Interest................................... 58
SECTION 8.11. Failure or Indulgence Not Waiver; Remedies Cumulative. 58
SECTION 8.12. Governing Law; Jurisdiction........................... 58
SECTION 8.13. Counterparts.......................................... 58
SECTION 8.14. WAIVER OF JURY TRIAL.................................. 58
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AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER, dated as of May 25, 1998 (this
"Agreement"), among TYCO INTERNATIONAL LTD., a Bermuda company ("Parent"), T11
ACQUISITION CORP., a Delaware corporation and a direct, wholly owned subsidiary
of Parent ("Merger Sub"), and UNITED STATES SURGICAL CORPORATION, a Delaware
corporation (the "Company").
W I T N E S S E T H:
WHEREAS, the Boards of Directors of Parent, Merger Sub and the
Company have each determined that it is advisable and in the best interests of
their respective shareholders, and consistent with and in furtherance of their
respective business strategies and goals, for Parent to cause Merger Sub to
merge with and into the Company upon the terms and subject to the conditions set
forth herein;
WHEREAS, in furtherance of such combination, the Boards of
Directors of Parent, Merger Sub and the Company have each approved the merger
(the "Merger") of Merger Sub with and into the Company in accordance with the
applicable provisions of the Delaware General Corporation Law (the "DGCL"), and
upon the terms and subject to the conditions set forth herein;
WHEREAS, Parent, Merger Sub and the Company intend, by approving
resolutions authorizing this Agreement, to adopt this Agreement as a plan of
reorganization within the meaning of Section 368 of the Internal Revenue Code of
1986, as amended (the "Code"), and the regulations promulgated thereunder;
WHEREAS, Parent, Merger Sub and the Company intend that the
Merger be accounted for as a pooling-of-interests for financial reporting
purposes; and
WHEREAS, pursuant to the Merger, each outstanding share (a
"Share") of the Company's Common Stock, par value $.10 per share (the "Company
Common Stock"), shall be converted into the right to receive the Merger
Consideration (as defined in Section 1.07(b)), upon the terms and subject to the
conditions set forth herein;
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements herein contained, and intending to be legally bound
hereby, Parent, Merger Sub and the Company hereby agree as follows:
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ARTICLE I
THE MERGER
SECTION 1.01. The Merger. (a) Effective Time. At the Effective
Time (as defined in Section 1.02 hereof), and subject to and upon the terms and
conditions of this Agreement and the DGCL, Merger Sub shall be merged with and
into the Company, the separate corporate existence of Merger Sub shall cease,
and the Company shall continue as the surviving corporation. The Company as the
surviving corporation after the Merger is hereinafter sometimes referred to as
the "Surviving Corporation."
(b) Closing. Unless this Agreement shall have been terminated and
the transactions herein contemplated shall have been abandoned pursuant to
Section 7.01, and subject to the satisfaction or waiver of the conditions set
forth in Article VI, the consummation of the Merger (the "Closing") will take
place as promptly as practicable (and in any event within two business days)
after satisfaction or waiver of the conditions set forth in Article VI, at the
offices of Kramer, Levin, Naftalis & Frankel, 919 Third Avenue, New York, New
York, unless another date, time or place is agreed to in writing by the parties
hereto.
SECTION 1.02. Effective Time. As promptly as practicable after
the satisfaction or waiver of the conditions set forth in Article VI, the
parties hereto shall cause the Merger to be consummated as of the day of the
Closing by filing a certificate of merger as contemplated by the DGCL (the
"Certificate of Merger"), together with any required related certificates, with
the Secretary of State of the State of Delaware, in such form as required by,
and executed in accordance with the relevant provisions of, the DGCL (the time
of such filing being the "Effective Time").
SECTION 1.03. Effect of the Merger. At the Effective Time, the
effect of the Merger shall be as provided in this Agreement, the Certificate of
Merger and the applicable provisions of the DGCL. Without limiting the
generality of the foregoing, and subject thereto, at the Effective Time all the
property, rights, privileges, powers and franchises of the Company and Merger
Sub shall vest in the Surviving Corporation, and all debts, liabilities and
duties of the Company and Merger Sub shall become the debts, liabilities and
duties of the Surviving Corporation.
SECTION 1.04. Certificate of Incorporation; By-Laws. (a)
Certificate of Incorporation. Unless otherwise determined by Parent prior to the
Effective Time, at the Effective Time the Certificate of Incorporation of the
Company, as in effect immediately prior to the Effective Time, shall be the
Certificate of Incorporation of the Surviving Corporation until thereafter
amended as provided by the DGCL and such Certificate of Incorporation; provided,
however, that Article FOURTH shall be amended and restated in its entirety to
provide that the capital stock of the Surviving Corporation shall consist of
1,000 shares of common stock, par value $.01 per share.
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(b) By-Laws. The By-Laws of the Company, as in effect immediately
prior to the Effective Time, shall be the By-Laws of the Surviving Corporation
until thereafter amended as provided by the DGCL, the Certificate of
Incorporation of the Surviving Corporation and such By-Laws.
SECTION 1.05. Directors and Officers. The directors of Merger Sub
immediately prior to the Effective Time shall be the initial directors of the
Surviving Corporation, each to hold office in accordance with the Certificate of
Incorporation and ByLaws of the Surviving Corporation, and the officers of the
Company immediately prior to the Effective Time shall be the initial officers of
the Surviving Corporation, in each case until their respective successors are
duly elected or appointed and qualified.
SECTION 1.06. Effect on Capital Stock. At the Effective Time, by
virtue of the Merger and without any action on the part of Parent, Merger Sub,
the Company or the holders of any of the following securities:
(a) Conversion of Securities. Each Share issued and outstanding
immediately prior to the Effective Time (excluding any Shares to be canceled
pursuant to Section 1.06(b)) shall be converted, subject to Section 1.06(f),
into the right to receive 0.7606 (the "Exchange Ratio") validly issued, fully
paid and nonassessable Parent Common Shares, par value $.20 ("Parent Common
Shares").
(b) Cancellation. Each Share held in the treasury of the Company
and each Share owned by Parent, Merger Sub or any direct or indirect wholly
owned subsidiary of the Company or Parent immediately prior to the Effective
Time shall, by virtue of the Merger and without any action on the part of the
holder thereof, cease to be outstanding, be canceled and retired without payment
of any consideration therefor and cease to exist.
(c) Assumption of Outstanding Stock Options, etc.. (1) Each
option outstanding at the Effective Time to purchase shares of Company Common
Stock (a "Stock Option") granted under (I) (i) the Company's 1990 Employee Stock
Option Plan, (ii) the Company's 1993 Employee Stock Option Plan, (iii) the
Company's 1996 Employee Stock Option Plan, (iv) the Company's 1997 Key
Management Equity Investment Plan, (v) the PAS Stock Option Plans, (vi) the
Company's 1997 Stock Option Purchase Agreement, (vii) the Company's Serviced
Based Stock Option Plan, and (viii) the Company's Outside Directors Stock Option
Plan, or (II) any other stock plan or agreement of the Company (collectively,
the "Company Stock Option Plans"), which by its terms is not extinguished in the
Merger, shall be assumed by Parent and shall constitute an option (an "Adjusted
Option") to acquire, on the same terms and conditions mutatis mutandis as were
applicable under such Stock Option prior to the Effective Time (but taking
account of the Merger), the number of Parent Common Shares (rounded to the
nearest whole Parent Common Share) as the holder of such Stock Option would have
been entitled to receive pursuant to the Merger had such holder exercised such
Stock Option in full immediately prior to the Effective Time, at a price per
share (rounded to the nearest whole cent) equal to (x) the aggregate exercise
price for Company Common Stock otherwise purchasable pursuant to such Stock
Option divided by (y) the number of Parent Common Shares deemed purchasable
pursuant to such Adjusted Option. The
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other terms of each such Stock Option, and the plans under which they were
issued,shall continue to apply in accordance with their terms, including, to the
extent provided therein, the acceleration of vesting of such Stock Options in
connection with the transactions contemplated hereby.
As soon as practicable after the Effective Time, Parent shall
cause to be delivered to each holder of an outstanding Stock Option an
appropriate notice setting forth such holder's rights pursuant thereto, and that
such Stock Option shall continue in effect on the same terms and conditions.
Parent shall cause to be taken all corporate action necessary to
reserve for issuance a sufficient number of Parent Common Shares for delivery
upon exercise of Stock Options in accordance with this Section 1.06(c)(1). As
soon as practicable following the Effective Time, Parent shall cause the Parent
Common Shares subject to the Adjusted Options to be registered under the
Securities Act of 1933, as amended, and the SEC's rules thereunder (the
"Securities Act") pursuant to a registration statement on Form S-8 (or any
successor or other appropriate form), and shall use at least such efforts as are
applied to Parent's other stock options generally to cause the effectiveness of
such registration statement or registration statements (and the current status
of the prospectus or prospectuses contained therein) to be maintained for so
long as the Adjusted Options remain outstanding (subject to interruptions of
such effectiveness or current status as may be reasonably required from time to
time, and are applicable to registration statements of Parent with respect to
its option plans generally, because of developments affecting Parent or
otherwise).
(2) The contingent obligations of the Company (the "PAS
Obligations") to issue shares of Company Common Stock to certain former
stockholders of Progressive Angioplasty Systems, Inc. ("PAS"), pursuant to
Section 2.07 and Section 2.08 of the Agreement and Plan of Merger dated February
4, 1997, by and among the Company, a wholly owned subsidiary of the Company and
PAS (as amended by the First Amendment dated as of August 6, 1997, the "PAS
Agreement") shall be assumed by Parent from and after the Effective Time and
shall constitute an obligation to issue, on the same terms and conditions
mutatis mutandis as were applicable under the PAS Agreement prior to the
Effective Time, Parent Common Shares (rounded to the nearest whole Parent Common
Share), and Parent Common Shares shall be substituted for Company Common Stock
in the definition of the term "Closing Price" for purposes of determining the
number of Parent Common Shares, if any, that may be issued in accordance with
the PAS Agreement as aforesaid.
As soon as reasonably practicable following the Effective Time,
Parent shall cause the Parent Common Shares that may be issued pursuant to the
PAS Obligations to be registered under the Securities Act pursuant to a resale
shelf registration statement on Form S-3 (or any successor or other appropriate
form) and shall use its commercially reasonable efforts, subject to the receipt
of information from and as to the relevant former PAS stockholders, to cause
such registration statement to become effective as promptly after filing as
practicable. The provisions of Sections 6.01 and 6.02 of the PAS Agreement shall
apply to such registration statement mutatis mutandis.
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(d) Capital Stock of Merger Sub. Each share of common stock, $.01
par value, of Merger Sub issued and outstanding immediately prior to the
Effective Time shall be converted into and exchanged for one validly issued,
fully paid and nonassessable share of common stock, $0.01 par value, of the
Surviving Corporation.
(e) Adjustments to Exchange Ratio. The Exchange Ratio shall be
appropriately adjusted to reflect fully the effect of any stock split, reverse
split, stock dividend (including any dividend or distribution of securities
convertible into Parent Common Shares), reorganization, recapitalization, split
up, combination or exchange of shares or other like event with respect to Parent
Common Shares or Company Common Stock occurring after the date hereof and prior
to the Effective Time.
(f) Fractional Shares. No certificates or scrip representing less
than one Parent Share shall be issued upon the surrender for exchange of a
certificate or certificates which immediately prior to the Effective Time
represented outstanding Shares (the "Certificates"). In lieu of any such
fractional share, each holder of Shares who would otherwise have been entitled
to a fraction of a Parent Common Share upon surrender of Certificates for
exchange shall be paid upon such surrender cash (without interest) in an amount
equal to such fraction multiplied by the Closing Price of the Parent Common
Shares on the date of the Effective Time. "Closing Price" shall mean, on any
day, the last reported sale price of one Parent Common Share on the NYSE
Composite Transaction Tape.
SECTION 1.07. Exchange of Certificates. (a) Exchange Agent. At
the Effective Time Parent shall cause to be supplied, to or for such bank or
trust company as shall be mutually designated by the Company and Parent (the
"Exchange Agent"), in trust for the benefit of the holders of Company Common
Stock, for exchange in accordance with this Section 1.07, through the Exchange
Agent, certificates evidencing the Parent Common Shares issuable pursuant to
Section 1.06 in exchange for outstanding Shares and the cash to be paid in lieu
of fractional shares.
(b) Exchange Procedures. As soon as reasonably practicable after
the Effective Time, Parent will cause the Exchange Agent to mail to each holder
of record of Certificates (i) a letter of transmittal (which shall specify that
delivery shall be effected, and risk of loss and title to the Certificates shall
pass, only upon proper delivery of the Certificates to the Exchange Agent and
shall be in such form and have such other provisions as Parent may reasonably
specify), and (ii) instructions to effect the surrender of the Certificates in
exchange for the certificates evidencing Parent Common Shares. Upon surrender of
a Certificate for cancellation to the Exchange Agent together with such letter
of transmittal, duly executed, and such other customary documents as may be
required pursuant to such instructions, the holder of such Certificate shall be
entitled to receive in exchange therefor (A) certificates evidencing that number
of whole Parent Common Shares which such holder has the right to receive in
accordance with the Exchange Ratio in respect of the Shares formerly evidenced
by such Certificate, (B) any dividends or other distributions to which such
holder is entitled pursuant to Section 1.07(c), and (C) cash in respect of
fractional shares as provided in Section 1.06(f) (the Parent Common Shares and
cash being, collectively, the "Merger Consideration"), and the Certificate so
surrendered shall forthwith be canceled. In the event of a transfer of ownership
of Shares which is not registered in the
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transfer records of the Company as of the Effective Time, Parent Common Shares,
dividends, distributions, and cash in respect of fractional shares, may be
issued and paid in accordance with this Article I to a transferee if the
Certificate evidencing such Shares is presented to the Exchange Agent,
accompanied by all documents required to evidence and effect such transfer
pursuant to this Section 1.07(b) and by evidence that any applicable stock
transfer taxes have been paid. Until so surrendered, each outstanding
Certificate that, prior to the Effective Time, represented Shares of the Company
Common Stock will be deemed from and after the Effective Time, for all corporate
purposes, other than the payment of dividends, to evidence the ownership of the
number of full Parent Common Shares, and cash in respect of fractional shares,
into which such shares of the Company Common Stock shall have been so converted.
(c) Distributions With Respect to Unexchanged Shares. No
dividends or other distributions declared or made after the Effective Time with
respect to Parent Common Shares with a record date after the Effective Time
shall be paid to the holder of any unsurrendered Certificate with respect to the
Parent Common Shares they are entitled to receive until the holder of such
Certificate shall surrender such Certificate in accordance with the provisions
of Section 1.07(b). Subject to applicable law, following surrender of any such
Certificate, there shall be paid to the record holder of the certificates
representing whole Parent Common Shares issued in exchange therefor, without
interest, at the time of such surrender, the amount of dividends or other
distributions with a record date after the Effective Time theretofore paid with
respect to such whole Parent Common Shares.
(d) Transfers of Ownership. If any certificate for Parent Common
Shares is to be issued in a name other than that in which the Certificate
surrendered in exchange therefor is registered, it will be a condition of the
issuance thereof that the Certificate so surrendered will be properly endorsed
and otherwise in proper form for transfer and that the person requesting such
exchange will have paid to Parent or any agent designated by it any transfer or
other taxes required by reason of the issuance of a certificate for Parent
Common Shares in any name other than that of the registered holder of the
certificate surrendered, or established to the satisfaction of Parent or any
agent designated by it that such tax has been paid or is not payable.
(e) No Liability. Neither Parent, Merger Sub nor the Company
shall be liable to any holder of Company Common Stock for any Merger
Consideration delivered to a public official pursuant to any applicable
abandoned property, escheat or similar law.
(f) Withholding Rights. Parent or the Exchange Agent shall be
entitled to deduct and withhold from the Merger Consideration otherwise payable
pursuant to this Agreement to any holder of Company Common Stock such amounts as
Parent or the Exchange Agent is required to deduct and withhold with respect to
the making of such payment under the Code, or any provision of state, local or
foreign tax law. To the extent that amounts are so withheld by Parent or the
Exchange Agent, such withheld amounts shall be treated for all purposes of this
Agreement as having been paid to the holder of the Shares in respect of which
such deduction and withholding was made by Parent or the Exchange Agent.
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(g) Undistributed Certificates. Any portion of the certificates
evidencing the Parent Common Shares and the cash to be paid in lieu of
fractional shares supplied to the Exchange Agent which remains undistributed to
the holders of the Certificates for one year after the Effective Time shall be
delivered to Parent, upon demand, and any holders of the Certificates who have
not theretofore complied with this Section 1.07 shall thereafter look only to
Parent for payment of their claim for Merger Consideration, any dividends or
distributions with respect to Parent Common Stock and any cash in lieu of
fractional shares of Parent Common Stock.
SECTION 1.08. Stock Transfer Books. At the Effective Time, the
stock transfer books of the Company shall be closed, and there shall be no
further registration of transfers of the Company Common Stock thereafter on the
records of the Company.
SECTION 1.09. No Further Ownership Rights in Company Common
Stock. The Merger Consideration delivered upon the surrender for exchange of
Shares in accordance with the terms hereof shall be deemed to have been issued
in full satisfaction of all rights pertaining to such Shares, and there shall be
no further registration of transfers on the records of the Surviving Corporation
of Shares which were outstanding immediately prior to the Effective Time. If,
after the Effective Time, Certificates are presented to the Surviving
Corporation for any reason, they shall be canceled and exchanged as provided in
this Article I.
SECTION 1.10. Lost, Stolen or Destroyed Certificates. In the
event any Certificates shall have been lost, stolen or destroyed, the Exchange
Agent shall issue in exchange for such lost, stolen or destroyed Certificates,
upon the making of an affidavit of that fact by the holder thereof, such Parent
Common Shares as may be required pursuant to Section 1.06; provided, however,
that Parent may, in its discretion and as a condition precedent to the issuance
thereof, require the owner of such lost, stolen or destroyed Certificates to
deliver a bond in such sum as it may reasonably direct as indemnity against any
claim that may be made against Parent or the Exchange Agent with respect to the
Certificates alleged to have been lost, stolen or destroyed.
SECTION 1.11. Tax and Accounting Consequences. It is intended by
the parties hereto that the Merger shall (i) constitute a reorganization within
the meaning of Section 368 of the Code and (ii) subject to applicable accounting
standards, qualify for accounting treatment as a pooling of interests. The
parties hereto hereby adopt this Agreement as a "plan of reorganization" within
the meaning of Sections 1.368-2(g) and 1.368-3(a) of the United States Treasury
Regulations.
SECTION 1.12. Taking of Necessary Action; Further Action. Each of
Parent, Merger Sub and the Company will take all such reasonable and lawful
action as may be necessary or appropriate in order to effectuate the Merger and
the other transactions contemplated by this Agreement in accordance with this
Agreement as promptly as possible. If, at any time after the Effective Time, any
such further action is necessary or desirable to carry out the purposes of this
Agreement and to vest the Surviving Corporation with full right, title and
possession to all assets, property, rights, privileges, powers and franchises of
the Company and Merger Sub, the officers and directors of the Company and Merger
Sub
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immediately prior to the Effective Time are fully authorized in the name of
their respective corporations or otherwise to take, and will take, all such
lawful and necessary action.
SECTION 1.13. Material Adverse Effect. When used in connection
with the Company or any of its subsidiaries or Parent or any of its
subsidiaries, as the case may be, the term "Material Adverse Effect" means any
change, effect or circumstance that is or is reasonably likely to be materially
adverse to the business, assets (including intangible assets), financial
condition or results of operations of the Company and its subsidiaries or Parent
and its subsidiaries, as the case may be, in each case taken as a whole;
provided, however, that the following shall be excluded from the definition of
"Material Adverse Effect" and from any determination as to whether a Material
Adverse Effect has occurred or may occur with respect to the Company: the
effects of changes that are applicable to (A) the healthcare or medical device
industries generally, (B) the United States economy generally or (C) the United
States securities markets generally.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to Parent and Merger
Sub as follows:
SECTION 2.01. Organization and Qualification; Subsidiaries. Each
of the Company and its subsidiaries is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation and has the requisite corporate power and authority necessary to
own, lease and operate the properties it purports to own, operate or lease and
to carry on its business as it is now being conducted, except where the failure
to be so organized, existing and in good standing or to have such power or
authority would not reasonably be expected to have a Material Adverse Effect.
Each of the Company and its subsidiaries is duly qualified or licensed as a
foreign corporation to do business, and is in good standing, in each
jurisdiction where the character of its properties owned, leased or operated by
it or the nature of its activities makes such qualification or licensing
necessary, except for such failures to be so duly qualified or licensed and in
good standing that could not reasonably be expected to have a Material Adverse
Effect. A true and complete list of all of the Company's "significant"
subsidiaries, as defined in Regulation S-X, is included as an exhibit to the
Company's 1997 Annual Report on Form 10-K. The Company will furnish to Parent a
list of all subsidiaries of the Company together with the jurisdiction of
incorporation of each such subsidiary and the percentage of each such
subsidiary's outstanding capital stock owned by the Company or another
subsidiary on a supplement to the Company Disclosure Schedule (as defined below)
to be delivered to Parent not later than 14 days from the date of this Agreement
(the "Supplemental Company Disclosure Schedule"). Except as set forth in Section
2.01 of the written disclosure schedule previously delivered by the Company to
Parent (the "Company Disclosure Schedule") or the Company SEC Reports (as
defined in Section 2.07 below), the Company does not directly or indirectly own
any equity or similar interest in, or any interest convertible into or
exchangeable or exercisable for, any equity or similar interest in, any
corporation,
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partnership, joint venture or other business association or entity, with respect
to which interest the Company has invested or is required to invest $5,000,000
or more, excluding securities in any publicly traded company held for investment
by the Company and comprising less than five percent of the outstanding stock of
such company.
SECTION 2.02. Certificate of Incorporation and By-Laws. The
Company has heretofore made available to Parent a complete and correct copy of
its Certificate of Incorporation and By-Laws as amended to date, and has made
available to Parent the Certificate of Incorporation and By-Laws (or equivalent
organizational documents) of each of its material subsidiaries (the "Subsidiary
Documents"). Such Certificate of Incorporation, By-Laws and Subsidiary Documents
are in full force and effect. Neither the Company nor any of its subsidiaries is
in violation of any of the provisions of its Certificate of Incorporation or
such By-Laws or equivalent organizational documents, except for immaterial
violations of the documents which may exist.
SECTION 2.03. Capitalization. The authorized capital stock of the
Company consists of 250,000,000 shares of Company Common Stock and 5,000,000
shares of Preferred Stock, par value $5.00 per share (the "Company Preferred
Stock"). As of April 30, 1998, (i) 76,698,965 shares of Company Common Stock
were issued and outstanding, all of which are validly issued, fully paid and
nonassessable, and an additional 7,003,014 shares were held in treasury, (ii) no
shares of Company Preferred Stock were outstanding or held in treasury, (iii) no
shares of Company Common Stock or Company Preferred Stock were held by
subsidiaries of the Company, (iv) 24,348,700 shares of Company Common Stock were
reserved for existing grants and 3,799,689 shares were reserved for future
grants pursuant to the Company Stock Option Plans, and (v) not in excess of
294,928 shares of Company Common Stock were reserved and are available for
future issuance pursuant to the USCC Employees 1979 Stock Purchase Plan and the
Company's 1994 Employee Stock Purchase Plan (together, the "Stock Purchase
Plans"). The Company may be obligated to issue additional shares of Company
Common Stock pursuant to the PAS Obligations. Except as set forth in Section
2.03 of the Company Disclosure Schedule, no change in such capitalization has
occurred between April 30, 1998 and the date hereof, except for changes
resulting from the exercise of Stock Options and shares purchased under the
Stock Purchase Plans. Except as set forth in Section 2.01, this Section 2.03 or
Section 2.11 or in Section 2.03 or Section 2.11 of the Company Disclosure
Schedule or the Company SEC Reports, there are no options, warrants or other
rights, agreements, arrangements or commitments of any character binding on the
Company or any of its subsidiaries relating to the issued or unissued capital
stock of the Company or any of its subsidiaries or obligating the Company or any
of its subsidiaries to issue or sell any shares of capital stock of, or other
equity interests in, the Company or any of its subsidiaries. All shares of
Company Common Stock subject to issuance as aforesaid, upon issuance on the
terms and conditions specified in the instruments pursuant to which they are
issuable, shall be duly authorized, validly issued, fully paid and
nonassessable. Except as disclosed in Section 2.03 of the Company Disclosure
Schedule or the Company SEC Reports, there are no obligations, contingent or
otherwise, of the Company or any of its subsidiaries to repurchase, redeem or
otherwise acquire any shares of Company Common Stock or the capital stock of any
subsidiary or to provide funds to or make any investment (in the form of a loan,
capital contribution or otherwise) in any such subsidiary or any other entity
other than guarantees of bank obligations of subsidiaries
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entered into in the ordinary course of business. Except as set forth in Sections
2.01 and 2.03 of the Company Disclosure Schedule, all of the outstanding shares
of capital stock (other than directors' qualifying shares) of each of the
Company's subsidiaries is duly authorized, validly issued, fully paid and
nonassessable, and all such shares (other than directors' qualifying shares and
a de minimis number of shares owned by employees of such subsidiaries) are owned
by the Company or another subsidiary free and clear of all security interests,
liens, claims, pledges, agreements, limitations in the Company's voting rights,
charges or other encumbrances of any nature whatsoever.
SECTION 2.04. Authority Relative to this Agreement. The Company
has all necessary corporate power and authority to execute and deliver this
Agreement and to perform its obligations hereunder and to consummate the
transactions contemplated hereby. The execution and delivery of this Agreement
by the Company and the consummation by the Company of the transactions
contemplated hereby have been duly and validly authorized by all necessary
corporate action (including pursuant to Section 203 of the DGCL), and no other
corporate proceedings on the part of the Company are necessary to authorize this
Agreement or to consummate the transactions so contemplated (other than the
approval of the Merger and this Agreement by the holders of at least a majority
of the outstanding shares of Company Common Stock entitled to vote in accordance
with the DGCL and the Company's Certificate of Incorporation and By-Laws). As of
the date hereof, the Board of Directors of the Company has determined that it is
advisable and in the best interest of the Company's shareholders for the Company
to enter into this Agreement and to consummate the Merger upon the terms and
subject to the conditions of this Agreement. This Agreement has been duly and
validly executed and delivered by the Company and, assuming the due
authorization, execution and delivery by Parent and Merger Sub, as applicable,
constitutes a legal, valid and binding obligation of the Company.
SECTION 2.05. No Conflict; Required Filings and Consents. (a)
Section 2.05(a) of the Company Disclosure Schedule includes a list of (i) all
loan agreements, indentures, mortgages, pledges, conditional sale or title
retention agreements, security agreements, equipment obligations, guaranties,
standby letters of credit, equipment leases or lease purchase agreements, each
in an amount equal to or exceeding $10,000,000 to which the Company or any of
its subsidiaries is a party or by which any of them is bound; (ii) all
contracts, agreements, commitments or other understandings or arrangements to
which the Company or any of its subsidiaries is a party or by which any of them
or any of their respective properties or assets are bound or affected, but
excluding contracts, agreements, commitments or other understandings or
arrangements entered into in the ordinary course of business and involving, in
the case of any such contact, agreement, commitment, or other understanding or
arrangement, individual payments or receipts by the Company or any of its
subsidiaries of less than $5,000,000 over the term of such contract, commitment,
agreement, or other understanding or arrangement; and (iii) all agreements
which, as of the date hereof, are required to be filed as "material contracts"
with the Securities and Exchange Commission ("SEC") pursuant to the requirements
of the Securities Exchange Act of 1934, as amended, and the SEC's rules
thereunder (the "Exchange Act") but have not been so filed with the SEC as of
the date hereof.
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(b) Except as set forth in Section 2.05(b) of the Company
Disclosure Schedule, the execution and delivery of this Agreement by the Company
does not, and the performance of this Agreement by the Company will not, (i)
conflict with or violate the Certificate of Incorporation or By-Laws of the
Company, (ii) conflict with or violate any law, rule, regulation, order,
judgment or decree applicable to the Company or any of its subsidiaries or by
which its or any of their respective properties is bound or affected, or (iii)
result in any breach of or constitute a default (or an event that with notice or
lapse of time or both would become a default), or impair the Company's or any of
its subsidiaries' rights or alter the rights or obligations of any third party
under, or give to others any rights of termination, amendment, acceleration or
cancellation of, or result in the creation of a lien or encumbrance on any of
the properties or assets of the Company or any of its subsidiaries pursuant to,
any note, bond, mortgage, indenture, contract, agreement, lease, license,
permit, franchise or other instrument or obligation to which the Company or any
of its subsidiaries is a party or by which the Company or any of its
subsidiaries or its or any of their respective properties is bound or affected,
except, in the case of clauses (ii) or (iii), for any such conflicts,
violations, breaches, defaults or other occurrences that would not reasonably be
expected, individually or in the aggregate, to have a Material Adverse Effect.
(c) The execution and delivery of this Agreement by the Company
does not, and the performance of this Agreement by the Company will not, require
any consent, approval, authorization or permit of, or filing with or
notification to, any governmental or regulatory authority, domestic or foreign
(each, a "Governmental Authority"), except (i) for applicable requirements, if
any, of the Securities Act, the Exchange Act, state securities laws ("Blue Sky
Laws"), the pre-merger notification requirements of the Hart-Scott-Rodino
Antitrust Improvements Act of 1976, as amended, and the rules and regulations
thereunder (the "HSR Act"), filings and consents under any applicable foreign
laws intended to prohibit, restrict or regulate actions having the purpose or
effect of monopolization or restraint of trade ("Foreign Monopoly Laws"),
filings and consents as may be required under any environmental, health or
safety law or regulation pertaining to any notification, disclosure or required
approval triggered by the Merger or the transactions contemplated by this
Agreement, and the filing and recordation of appropriate merger or other
documents as required by the DGCL, (ii) where the failure to obtain such
consents, approvals, authorizations or permits, or to make such filings or
notifications, would not prevent or materially delay consummation of the Merger,
or otherwise prevent or delay the Company from performing its material
obligations under this Agreement, or would not otherwise reasonably be expected,
individually or in the aggregate, to have a Material Adverse Effect, or (iii) as
to which any necessary consents, approvals, authorizations, permits, filings or
notifications have heretofore been obtained or filed, as the case may be, by the
Company.
SECTION 2.06. Compliance; Permits. (a) Except as disclosed in
Section 2.06(a) of the Company Disclosure Schedule or the Company SEC Reports,
neither the Company nor any of its subsidiaries is in conflict with, or in
default or violation of, (i) any law, rule, regulation, order, judgment or
decree applicable to the Company or any of its subsidiaries or by which its or
any of their respective properties is bound or affected or (ii) any note, bond,
mortgage, indenture, contract, agreement, lease, license, permit, franchise or
other instrument or obligation to which the Company or any of its subsidiaries
is a party or by which the Company or any of its subsidiaries or its or any of
their respective
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properties is bound or affected, except for any such conflicts, defaults or
violations which would not reasonably be expected, individually or in the
aggregate, to have a Material Adverse Effect.
(b) Except as disclosed in Section 2.06(b) of the Company
Disclosure Schedule or the Company SEC Reports, the Company and its subsidiaries
hold all permits, licenses, easements, variances, exemptions, consents,
certificates, orders and approvals from governmental authorities which are
material to the operation of the business of the Company and its subsidiaries
taken as a whole as it is now being conducted (collectively, the "Company
Permits") except where the failure to hold such Company Permits would not
reasonably be expected, individually or in the aggregate, to have a Material
Adverse Effect. The Company and its subsidiaries are in compliance with the
terms of the Company Permits, except as described in the Company SEC Reports or
where the failure to so comply would not reasonably be expected, individually or
in the aggregate, to have a Material Adverse Effect.
SECTION 2.07. SEC Filings; Financial Statements. (a) The Company
has filed all forms, reports and documents required to be filed with the SEC
since December 31, 1994 and has made available to Parent (i) its Annual Reports
on Form 10-K for the fiscal years ended December 31, 1995, 1996 and 1997, (ii)
its Quarterly Report on Form 10-Q for the quarter ended March 31, 1998 (the
"March 31, 1998 10-Q"), and, (iii) all proxy statements relating to the
Company's meetings of shareholders (whether annual or special) held since
December 31, 1994, (iv) all other reports or registration statements (other than
Reports on Form 10-Q not referred to in clause (ii) above filed by the Company
with the SEC since December 31, 1994, and (v) all amendments and supplements to
all such reports and registration statements filed by the Company with the SEC
(collectively, the "Company SEC Reports"). Except as disclosed in Section 2.07
of the Company Disclosure Schedule, the Company SEC Reports (i) were prepared in
all material respects in accordance with the requirements of the Securities Act
or the Exchange Act, as the case may be, and (ii) did not at the time they were
filed (or if amended or superseded by a filing prior to the date of this
Agreement, then on the date of such filing) contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. None of the Company's
subsidiaries is required to file any forms, reports or other documents with the
SEC.
(b) Each of the consolidated financial statements (including, in
each case, any related notes thereto) contained in the Company SEC Reports was
prepared in accordance with United States generally accepted accounting
principles ("GAAP") applied on a consistent basis throughout the periods
involved (except as may be indicated in the notes thereto or in the Company SEC
Reports), and each fairly presents in all material respects the consolidated
financial position of the Company and its subsidiaries as at the respective
dates thereof and the consolidated results of its operations and cash flows for
the periods indicated, except that the unaudited interim financial statements
were or are subject to normal and recurring year-end adjustments which were not
or are not expected to be material in amount.
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SECTION 2.08. Absence of Certain Changes or Events. Except as set
forth in Section 2.08 of the Company Disclosure Schedule or the Company SEC
Reports, between December 31, 1997 and the date hereof, the Company has
conducted its business in the ordinary course and there has not occurred: (i)
any changes, effects or circumstances constituting, individually or in the
aggregate, a Material Adverse Effect; (ii) any amendments or changes in the
Certificate of Incorporation or By-laws of the Company; (iii) any damage to,
destruction or loss of any asset of the Company (whether or not covered by
insurance) that would reasonably be expected, individually or in the aggregate,
to have a Material Adverse Effect; (iv) any material change by the Company in
its accounting methods, principles or practices; or (v) any sale of a material
amount of assets of the Company, except in the ordinary course of business.
SECTION 2.09. No Undisclosed Liabilities. Except as set forth in
Section 2.09 of the Company Disclosure Schedule or the Company SEC Reports,
neither the Company nor any of its subsidiaries has any liabilities (absolute,
accrued, contingent or otherwise), except liabilities (a) in the aggregate
adequately provided for in the Company's unaudited balance sheet (including any
related notes thereto) as of March 31, 1998 included in the Company's Quarterly
Report of Form 10-Q for the quarter ended March 31, 1998 (the "1998 Balance
Sheet"), (b) incurred in the ordinary course of business and not required under
GAAP to be reflected on the 1998 Balance Sheet, (c) incurred since March 31,
1998 in the ordinary course of business, (d) incurred in connection with this
Agreement or the Merger or the other transactions contemplated hereby, or (e)
which would not reasonably be expected, individually or in the aggregate, to
have a Material Adverse Effect.
SECTION 2.10. Absence of Litigation. Except as set forth in
Section 2.10 of the Company Disclosure Schedule or the Company SEC Reports,
there are no claims, actions, suits, proceedings or investigations pending or,
to the knowledge of the Company, overtly threatened against the Company or any
of its subsidiaries, or any properties or rights of the Company or any of its
subsidiaries, before any court, arbitrator or administrative, governmental or
regulatory authority or body, domestic or foreign, that would reasonably be
expected to have a Material Adverse Effect.
SECTION 2.11. Employee Benefit Plans; Employment Agreements. (a)
Section 2.11(a) of the Company Disclosure Schedule lists all employee pension
benefit plans (as defined in Section 3(2) of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA")), all employee welfare benefit plans
(as defined in Section 3(1) of ERISA), and all other bonus, stock option, stock
purchase, incentive, deferred compensation, supplemental retirement, severance
and other similar fringe or employee benefit plans, programs or arrangements
(including those which contain change of control provisions), and any
employment, executive compensation or severance agreements (including those
which contain change of control provisions), written or otherwise, as amended,
modified or supplemented, for the benefit of, or relating to, any former or
current employee, officer, director or consultant (or any of their
beneficiaries) of the Company or any other entity (whether or not incorporated)
which is a member of a controlled group including the Company or which is under
common control with the Company within the meaning of Sections 414(b), (c), (m)
or (o) of the Code or Section 4001(a) (14) or (b) of ERISA (a "Company ERISA
Affiliate"), or any subsidiary of the Company, as well as each plan with
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respect to which the Company or a Company ERISA Affiliate could incur liability
under Title IV of ERISA or Section 412 of the Internal Revenue Code of 1986, as
amended (the "Code") (together for the purposes of this Section 2.11, the
"Employee Plans"). The Company has made available to Parent, prior to the date
of this Agreement, or the Company will make available not later than 14 days
after the date of this Agreement, copies of (i) each such written Employee Plan
(or a written description of any Employee Plan which is not written) and all
related trust agreements, insurance and other contracts (including policies),
summary plan descriptions, summaries of material modifications and
communications distributed to plan participants, (ii) the three most recent
annual reports on Form 5500 series, with accompanying schedules and attachments,
filed with respect to each Employee Plan required to make such a filing, (iii)
the most recent actuarial valuation for each Employee Plan subject to Title IV
of ERISA, (iv) the latest reports which have been filed with the Department of
Labor with respect to each Employee Plan required to make such filing and (v)
the most recent favorable determination letters issued for each Employee Plan
and related trust which is subject to Parts 1, 2 and 4 of the Subtitle B of
Title I of ERISA (and, if an application for such determination is pending, a
copy of the application for such determination). For purposes of this Section
2.11, the term "material," when used with respect to (i) any Employee Plan,
shall mean that the Company or a Company ERISA Affiliate has incurred or may
incur obligations in an amount exceeding $500,000 with respect to such Employee
Plan, and (ii) any liability, obligation, breach or non-compliance, shall mean
that the Company or a Company ERISA Affiliate has incurred or may incur
obligations in an amount exceeding $500,000, with respect to any one such or
series of related liabilities, obligations, breaches, defaults, violations or
instances of non-compliance.
(b) Except as set forth in Section 2.11(b) of the Company
Disclosure Schedule or the Company SEC Reports, (i) none of the Employee Plans
promises or provides retiree medical or other retiree welfare benefits to any
person, and none of the Employee Plans is a "multiemployer plan" as such term is
defined in Section 3(37) of ERISA; (ii) no party in interest or disqualified
person (as defined in Section 3(14) of ERISA and Section 4975 of the Code) has
at any time engaged in a transaction with respect to any Employee Plan which
could subject the Company or any Company ERISA Affiliate, directly or
indirectly, to a tax, penalty or other material liability for prohibited
transactions under ERISA or Section 4975 of the Code; (iii) no fiduciary of any
Employee Plan has breached any of the responsibilities or obligations imposed
upon fiduciaries under Title I of ERISA, which breach would reasonably be
expected to result in any material liability to the Company or any Company ERISA
Affiliate; (iv) all Employee Plans have been established and maintained
substantially in accordance with their terms and have operated in compliance in
all material respects with the requirements prescribed by any and all statutes
(including ERISA and the Code), orders, or governmental rules and regulations
currently in effect with respect thereto (including all applicable requirements
for notification to participants or the Department of Labor, Internal Revenue
Service (the "IRS") or Secretary of the Treasury), and may by their terms be
amended and/or terminated at any time subject to applicable law and the terms of
each Employee Plan, and the Company and each of its subsidiaries have performed
all material obligations required to be performed by them under, are not in any
material respect in default under or violation of, and have no knowledge of any
default or violation by any other party to, any of the Employee Plans; (v) each
Employee Plan which is subject to Parts 1, 2 and 4 of Subtitle B of ERISA is the
subject of a favorable determination
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letter from the IRS, and nothing has occurred which may reasonably be expected
to impair such determination; (vi) all contributions required to be made with
respect to any Employee Plan pursuant to Section 412 of the Code, or the terms
of the Employee Plan or any collective bargaining agreement, have been made on
or before their due dates (including any extensions thereof); (vii) with respect
to each Employee Plan, no "reportable event" within the meaning of Section 4043
of ERISA (excluding any such event for which the 30 day notice requirement has
been waived under the regulations to Section 4043 of ERISA) or any event
described in Section 4062, 4063 or 4041 of ERISA has occurred for which there is
any material outstanding liability to the Company or any Company ERISA Affiliate
nor would the consummation of the transaction contemplated hereby (including the
execution of this agreement) constitute a reportable event for which the 30-day
requirement has not been waived; and (viii) neither the Company nor any Company
ERISA Affiliate has incurred or reasonably expects to incur any material
liability under Title IV of ERISA (other than liability for premium payments to
the Pension Benefit Guaranty Corporation (the "PBGC") arising in the ordinary
course).
(c) Section 2.11(c) of the Supplemental Company Disclosure
Schedule will set forth a true and complete list of each current or former
employee, officer or director of the Company or any of its subsidiaries who
holds (i) any option to purchase Company Common Stock as of the date hereof,
together with the number of shares of Company Common Stock subject to such
option, the option price of such option (to the extent determined as of the date
hereof), whether such option is intended to qualify as an incentive stock option
within the meaning of Section 422(b) of the Code (an "ISO"), and the expiration
date of such option; (ii) any shares of Company Common Stock that are
restricted; and (iii) any other right, directly or indirectly, to receive
Company Common Stock, together with the number of shares of Company Common Stock
subject to such right. Section 2.11(c) of the Company Disclosure Schedule sets
forth (x) the total number of any such ISOs and any such nonqualified options
and other such rights by exercise price and (y) the amount by which the value of
the Merger Consideration (using $42.50 as the value of the Merger Consideration)
exceeds the option or exercise price of all such ISOs, non-qualified options and
rights (including pursuant to the Company Stock Option Plan) in the aggregate
(such excess being the "Aggregate Option Exercise Spread").
(d) Section 2.11(d) of the Company Disclosure Schedule sets forth
a true and complete list of (i) all employment agreements with officers of the
Company or any of its subsidiaries; (ii) all agreements with consultants who are
individuals obligating the Company or any of its subsidiaries to make annual
cash payments in an amount exceeding $250,000; (iii) all agreements with respect
to the services of independent contractors or leased employees whether or not
they participate in any of the Employee Plans; (iv) all officers of the Company
or any of its subsidiaries who have executed a non-competition agreement with
the Company or any of its subsidiaries; (v) all severance agreements, programs
and policies of the Company or any of its subsidiaries with or relating to its
employees, in each case with outstanding commitments exceeding $150,000,
excluding programs and policies required to be maintained by law; and (vi) all
plans, programs, agreements and other arrangements of Company which contain
change in control provisions.
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(e) Except as set forth in Section 2.11(e) of the Company
Disclosure Schedule, no employee of the Company or any of its subsidiaries has
participated in any employee pension benefit plans (as defined in Section 3(2)
of ERISA) maintained by or on behalf of the Company. The PBGC has not instituted
proceedings to terminate any Employee Plan that is subject to Title IV of ERISA
(each, a "Defined Benefit Plan"). The Defined Benefit Plans have no accumulated
or waived funding deficiencies within the meaning of Section 412 of the Code nor
have any extensions of any amortization period within the meaning of Section 412
of the Code or 302 of ERISA been applied for with respect thereto. The present
value of the benefit liabilities (within the meaning of Section 4041 of ERISA)
of the Defined Benefit Plans, determined on a termination basis using actuarial
assumptions that would be used by the PBGC does not exceed by more than
$1,000,000 the value of the Defined Benefit Plans' assets. All applicable
premiums required to be paid to the PBGC with respect to the Defined Benefit
Plans have been paid. No facts or circumstances exist with respect to any
Defined Benefit Plan which would give rise to a lien on the assets of the
Company under Section 4068 of ERISA or otherwise. All the assets of the Defined
Benefit Plans are readily marketable securities or insurance contracts.
(f) Except as provided in Schedule 2.11(f) of the Company
Disclosure Schedule or as contemplated by this Agreement, (i) the Company has
never maintained an employee stock ownership plan (within the meaning of Section
4975(e)(7) of the Code) or any other Employee Plan that invests in Company
stock; (ii) since December 31, 1997, the Company has not proposed nor agreed to
any increase in benefits under any Employee Plan (or the creation of new
benefits) or change in employee coverage which would increase the expense of
maintaining any Employee Plan; (iii) the consummation of the transactions
contemplated by this Agreement will not result in an increase in the amount of
compensation or benefits or accelerate the vesting or timing of payment of any
benefits or compensation payable in respect of any employee; (iv) no person will
be entitled to any severance benefits under the terms of any Employee Plan
solely by reason of the consummation of this transaction contemplated by this
Agreement.
(g) Each Employee Plan covering non-U.S. employees (an
"International Plan") has been maintained in substantial compliance with its
terms and with the requirements prescribed by any and all applicable laws
(including any special provisions relating to registered or qualified plans
where such International Plan was intended to so qualify) and has been
maintained in good standing with applicable regulatory authorities. The fair
market value of the assets of each funded International Plan, if any, (or the
liability of each funded International Plan funded through insurance) is
sufficient to procure or provide for the benefits accrued thereunder through the
Effective Time according to the actuarial assumptions and valuations most
recently used to determine employer contributions to the International Plan.
(h) The Company has fiduciary liability insurance of at least
$1,500,000 in effect covering the fiduciaries of the Employee Plans (including
the Company) with respect to whom the Company may have liability.
SECTION 2.12. Labor Matters. Except as set forth in Section 2.12
of the Company Disclosure Schedule or the Company SEC Reports, (i) there are no
controversies
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pending or, to the knowledge of the Company, threatened, between the Company or
any of its subsidiaries and any of their respective employees, which
controversies have had, or would reasonably be expected, individually or in the
aggregate, to have a Material Adverse Effect; (ii) neither the Company nor any
of its subsidiaries is a party to any material collective bargaining agreement
or other labor union contract applicable to persons employed by the Company or
its subsidiaries, nor does the Company or any of its subsidiaries know of any
activities or proceedings of any labor union to organize any such employees; and
(iii) neither the Company nor any of its subsidiaries has any knowledge of any
strikes, slowdowns, work stoppages, lockouts, or threats thereof, by or with
respect to any employees of the Company or any of its subsidiaries which would
reasonably be expected, individually or in the aggregate, to have a Material
Adverse Effect.
SECTION 2.13. Registration Statement; Proxy Statement/Prospectus.
Subject to the accuracy of the representations of Parent in Section 3.13, the
information supplied by the Company in writing specifically for inclusion in the
Registration Statement (as defined in Section 3.13) shall not at the time the
Registration Statement is declared effective by the SEC contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading. The
information supplied by the Company for inclusion in the proxy
statement/prospectus to be sent to the shareholders of the Company in connection
with the meeting of the shareholders of the Company to consider the Merger (the
"Company Shareholders Meeting") (such proxy statement/prospectus as amended or
supplemented is referred to herein as the "Proxy Statement/Prospectus") will
not, on the date the Proxy Statement/Prospectus (or any amendment thereof or
supplement thereto) is first mailed to shareholders or at the time of the
Company Shareholders Meeting contain any statement which, at such time and in
light of the circumstances under which it shall be made, is false or misleading
with respect to any material fact, or omit to state any material fact necessary
in order to make the statements made therein not false or misleading; or omit to
state any material fact necessary to correct any statement in any earlier
communication with respect to the solicitation of proxies for the Company
Shareholders Meeting which has become false or misleading. If at any time prior
to the Effective Time any event relating to the Company or any of its respective
affiliates, officers or directors should be discovered by the Company which
should be set forth in an amendment to the Registration Statement or a
supplement to the Proxy Statement/Prospectus, the Company shall promptly inform
Parent and Merger Sub. The Proxy Statement/Prospectus shall comply in all
material respects with the requirements of the Securities Act, the Exchange Act
and the rules and regulations thereunder. Notwithstanding the foregoing, the
Company makes no representation or warranty with respect to any information
supplied by Parent or Merger Sub which is contained or incorporated by reference
in, or furnished in connection with the preparation of, the Proxy
Statement/Prospectus.
SECTION 2.14. Restrictions on Business Activities. Except for
this Agreement or as set forth in Section 2.14 of the Company Disclosure
Schedule or the Company SEC Reports, to the best of the Company's knowledge,
there is no agreement, judgment, injunction, order or decree binding upon the
Company or any of its subsidiaries which has or would reasonably be expected to
have the effect of prohibiting or impairing the conduct of business by the
Company or any of its subsidiaries as currently conducted by the
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Company or such subsidiary, except for any prohibition or impairment as would
not reasonably be expected, individually or in the aggregate, to have a Material
Adverse Effect.
SECTION 2.15. Title to Property. Except as set forth in Section
2.15 of the Company Disclosure Schedule, the Company and each of its
subsidiaries have good title to all of their real properties and other assets,
free and clear of all liens, charges and encumbrances, except liens for taxes
not yet due and payable and such liens or other imperfections of title, if any,
as do not materially detract from the value of or interfere with the present use
of the property affected thereby or which could not reasonably be expected,
individually or in the aggregate, to have a Material Adverse Effect, and except
for liens which secure indebtedness reflected in the 1998 Balance Sheet; and, to
the knowledge of the Company, all leases pursuant to which the Company or any of
its subsidiaries lease from others material amounts of real or personal
property, are in good standing, valid and effective in accordance with their
respective terms, and there is not, to the knowledge of the Company, under any
of such leases, any existing material default or event of default (or event
which with notice or lapse of time, or both, would constitute a material
default), except where the lack of such good standing, validity and
effectiveness or the existence of such default or event of default could not
reasonably be expected, individually or in the aggregate, to have a Material
Adverse Effect.
SECTION 2.16. Taxes. Except as would not reasonably be expected,
individually or in the aggregate, to have a Material Adverse Effect:
(a) The Company and each of its subsidiaries has timely and
accurately filed, or caused to be timely and accurately filed, all material Tax
Returns (as hereinafter defined) required to be filed by it, and has paid,
collected or withheld, or caused to be paid, collected or withheld, all material
amounts of Taxes (as hereinafter defined) required to be paid, collected or
withheld, other than such Taxes for which adequate reserves in the 1997 Balance
Sheet have been established or which are being contested in good faith. There
are no material claims or assessments pending against the Company or any of its
subsidiaries for any alleged deficiency in any Tax, there are no pending or
threatened audits or investigations for or relating to any liability in respect
of any Taxes, and the Company has not been notified in writing of any proposed
Tax claims or assessments against the Company or any of its subsidiaries (other
than in each case, claims or assessments for which adequate reserves in the 1997
Balance Sheet have been established or which are being contested in good faith
or are immaterial in amount). Neither the Company nor any of its subsidiaries
has executed any waivers or extensions of any applicable statute of limitations
to assess any material amount of Taxes. There are no outstanding requests by the
Company or any of its subsidiaries for any extension of time within which to
file any material Tax Return or within which to pay any material amounts of
Taxes shown to be due on any Tax Return. To the best knowledge of the Company,
there are no liens for material amounts of Taxes on the assets of the Company or
any of its subsidiaries except for statutory liens for current Taxes not yet due
and payable.
(b) For purposes of this Agreement, the term "Tax" shall mean any
federal, state, local, foreign or provincial income, gross receipts, property,
sales, use, license, excise, franchise, employment, payroll, alternative or
add-on minimum, ad valorem,
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transfer or excise tax, or any other tax, custom, duty, governmental fee or
other like assessment or charge imposed by any Governmental Authority, together
with any interest or penalty imposed thereon. The term "Tax Return" shall mean a
report, return or other information (including any attached schedules or any
amendments to such report, return or other information) required to be supplied
to or filed with a governmental entity with respect to any Tax, including an
information return, claim for refund, amended return or declaration or estimated
Tax.
(c) Except as set forth in Section 2.16 of the Company Disclosure
Schedule: (i) Neither the Company nor any of its subsidiaries has ever been a
member of an affiliated group within the meaning of Section 1504 of the Code or
filed or been included in a combined, consolidated or unitary Tax Return, other
than of the Company and its subsidiaries; (ii) other than with respect to the
Company and its subsidiaries, neither the Company nor any of its subsidiaries is
liable for Taxes of any other Person, or is currently under any contractual
obligation to indemnify any person with respect to Taxes (except for customary
agreements to indemnify lenders or security holders in respect of taxes other
than income taxes), or is a party to any tax sharing agreement or any other
agreement providing for payments by the Company or any of its subsidiaries with
respect to Taxes; (iii) neither the Company nor any of its subsidiaries is a
party to any joint venture, partnership or other arrangement or contract which
could be treated as a partnership for federal income tax purposes; (iv) neither
the Company nor any of its subsidiaries has entered into any sale leaseback or
any leveraged lease transaction that fails to satisfy the requirements of
Revenue Procedure 75-21 (or similar provisions of foreign law); (v) neither the
Company nor any of its subsidiaries has agreed or is required, as a result of a
change in method of accounting or otherwise, to include any adjustment under
Section 481 of the Code (or any corresponding provision of state, local or
foreign law) in taxable income; (vi) neither the Company nor any of its
subsidiaries is a party to any agreement, contract, arrangement or plan that
would result (taking into account the transactions contemplated by this
Agreement), separately or in the aggregate, in the payment of any "excess
parachute payments" within the meaning of Section 280G of the Code; (vii) the
prices for any property or services (or for the use of property) provided by the
Company or any of its subsidiaries to any other subsidiary or to the Company
have been arm's length prices, determined using a method permitted by the
Treasury Regulations under Section 482 of the Code; (viii) neither the Company
nor any of its subsidiaries is liable with respect to any indebtedness the
interest of which is not deductible for applicable federal, foreign, state or
local income tax purposes; (ix) neither the Company nor any of its subsidiaries
is a "consenting corporation" under Section 341(f) of the Code or any
corresponding provision of state, local or foreign law; and (x) none of the
assets owned by the Company or any of its subsidiaries is property that is
required to be treated as owned by any other person pursuant to Section
168(g)(8) of the Internal Revenue Code of 1954, as amended, as in effect
immediately prior to the enactment of the Tax Reform Act of 1986, or is
"tax-exempt use property" within the meaning of Section 168(h) of the Code.
SECTION 2.17. Environmental Matters. (a) Except as set forth in
Section 2.17(a) to the Company Disclosure Schedule or in the Company SEC Reports
or as would not reasonably be expected, individually or in the aggregate, to
have a Material Adverse Effect, the operations and properties of the Company and
its subsidiaries are in material compliance with the Environmental Laws (as
hereinafter defined), which compliance
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includes the possession by the Company and its subsidiaries of all material
permits and governmental authorizations required under applicable Environmental
Laws, and material compliance with the terms and conditions thereof.
(b) Except as set forth in Section 2.17(b) of the Company
Disclosure Schedule or the Company SEC Reports or as would not reasonably be
expected, individually or in the aggregate, to have a Material Adverse Effect,
there are no Environmental Claims (as hereinafter defined), including claims
based on "arranger liability," pending or, to the best knowledge of the Company,
threatened against the Company or any of its subsidiaries or against any person
or entity whose liability for any Environmental Claim the Company or any of its
subsidiaries has retained or assumed either contractually or by operation of
law.
(c) There are no past or present actions, inactions, activities,
circumstances, conditions, events or incidents, including the release, emission,
discharge, presence or disposal of any Material of Environmental Concern (as
hereinafter defined), that would form the basis of any Environmental Claim
against the Company or any of its subsidiaries or against any person or entity
whose liability for any Environmental Claim the Company or any of its
subsidiaries have retained or assumed either contractually or by operation of
law, except for such Environmental Claims that would not reasonably be expected,
individually or in the aggregate, to have a Material Adverse Effect.
(d) Except as would not reasonably be expected, individually or
in the aggregate, to have a Material Adverse Effect, (i) no off-site locations
where the Company or any of its subsidiaries has stored, disposed or arranged
for the disposal of Materials of Environmental Concern has been listed on the
National Priority List, CERCLIS, state Superfund site list or state analog to
CERCLIS, and the Company and its subsidiaries have not been notified that either
of them is a potentially responsible party at any such location; (ii) there are
no underground storage tanks located on property owned or leased by the Company
or any of its subsidiaries; (iii) there is no asbestos containing material
contained in or forming part of any building, building component, structure or
office space owned, leased or operated by the Company or any of its
subsidiaries; and (iv) there are no polychlorinated biphenyls (PCB's) or
PCB-containing items contained in or forming part of any building, building
component, structure or office space owned, leased or operated by the Company or
any of its subsidiaries.
(e) For purposes of this Agreement:
(i) "Environmental Claim" means any claim, action, cause of
action, investigation or written notice by any person or entity alleging
potential liability (including potential liability for investigatory costs,
cleanup costs, governmental response costs, natural resources damages, property
damages, personal injuries, or penalties) arising out of, based on or resulting
from the presence, or release into the environment, of any Material of
Environmental Concern at any location, whether or not owned or operated by the
Company or any of its subsidiaries.
(ii) "Environmental Laws" means all Federal, state, local and
foreign laws, regulations, codes, ordinances, any guidance or directive relating
to pollution or protection of
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human health and the environment (including ambient air, surface water, ground
water, land surface or sub-surface strata), including laws and regulations
relating to emissions, discharges, releases or threatened releases of Materials
of Environmental Concern, or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
Materials of Environmental Concern, including, but not limited to CERCLA, RCRA,
TSCA, OSHA, the Clean Air Act, the Clean Water Act, each as amended or
supplemented, and any applicable transfer statutes or laws.
(iii) "Materials of Environmental Concern" means chemicals,
pollutants, contaminants, hazardous materials, hazardous substances and
hazardous wastes, medical waste, toxic substances, petroleum and petroleum
products, asbestos-containing materials, poly chlorinated biphenyls, and any
other chemicals, pollutants or substances regulated under any Environmental Law.
SECTION 2.18. Brokers. No broker, finder or investment banker
(other than Chase Securities Inc. ("Chase"), the fees and expenses of whom will
be paid by the Company) is entitled to any brokerage, finder's or other fee or
commission in connection with the transactions contemplated by this Agreement
based upon arrangements made by or on behalf of the Company.
SECTION 2.19. Intellectual Property. (a) As used herein, the term
"Intellectual Property Assets" shall mean all worldwide intellectual property
rights, including, without limitation, patents, trademarks, service marks and
copyrights, and registrations and applications therefor, trade names, know-how,
trade secrets, computer software programs or applications and proprietary
information. As used herein, "Company Intellectual Property Assets" shall mean
the Intellectual Property Assets used or owned by the Company or any of its
subsidiaries.
(b) The Company and/or each of its subsidiaries owns, or is licensed or
otherwise possesses legally enforceable rights to use all Intellectual Property
Assets that are used in the business of the Company and its subsidiaries as
currently conducted, without conflict with the rights of others, except as would
not reasonably be expected, individually or in the aggregate, to have a Material
Adverse Effect.
(c) Except as disclosed in Section 2.19(c) of the Supplemental Company
Disclosure Schedule or as would not reasonably be expected, individually or in
the aggregate, to have a Material Adverse Effect, no claims with respect to the
Company Intellectual Property Assets, or the Intellectual Property Assets of a
third party (the "Third Party Intellectual Property Assets") to the extent
arising out of any use, reproduction or distribution of such Third Party
Intellectual Property Assets by or through the Company or any of its
subsidiaries, are currently pending or, to the knowledge of the Company, are
threatened by any person.
(d) Except as disclosed in Section 2.19(d) of the Company Disclosure
Schedule or as would not reasonably be expected to have a Material Adverse
Effect, neither the Company nor any of its subsidiaries knows of any valid
grounds for any bona fide claim to the effect that the manufacture, sale,
licensing or use of any product now used, sold or licensed or
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proposed for use, sale, license by the Company or any of its subsidiaries
infringes on any Third Party Intellectual Property Assets.
(e) Section 2.19(e) of the Supplemental Company Disclosure Schedule will
set forth a list of (i) all patents and patent applications owned by the Company
and/or each of its subsidiaries worldwide; (ii) all trademark and service mark
registrations and all trademark and service mark applications and all trade
names owned by the Company and/or each of its subsidiaries worldwide; (iii) all
copyright registrations and copyright applications owned by the Company and/or
each of its subsidiaries worldwide; and (iv) all licenses owned by the Company
and/or each of its subsidiaries in which the Company and/or each of its
subsidiaries is (A) a licensor with respect to any of the patents, trademarks,
service marks, trade names or copyrights listed in the Company Disclosure
Schedule; or (B) a licensee of any other person's patents, trade names,
trademarks, service marks or copyrights material to the Company except for any
licenses of software programs that are publicly available. To its knowledge, the
Company has heretofore made available to Parent a list of all such patents,
patent applications, trademark and service mark registrations, trademark and
service mark applications, trade names, copyright registrations, copyright
applications and licenses. The Company and/or each of its subsidiaries has made
all necessary filings and recordations to protect and maintain its interest in
the patents, patent applications, trademark and service mark registrations,
trademark and service mark applications, trade names, copyright registrations
and copyright applications and licenses set forth in the Company Disclosure
Schedule, except where the failure to so protect or maintain would not
reasonably be expected, individually or in the aggregate, to have a Material
Adverse Effect.
(f) Except as set forth in Section 2.19(f) of the Company Disclosure
Schedule or the Company SEC Reports or as would not reasonably be expected,
individually or in the aggregate, to have a Material Adverse Effect: (i) each
patent, patent application, trademark or service mark registration, and
trademark or service mark application and copyright registration or copyright
application of the Company and/or each of its subsidiaries is valid and
subsisting and (ii) each license of Company Intellectual Property Assets is
valid, subsisting and enforceable.
(g) Except as set forth in Section 2.19(g) of the Company Disclosure
Schedule, to the Company's knowledge: there is no material unauthorized use,
infringement or misappropriation of any of the Company's Intellectual Property
Assets by any third party, including any employee, former employee, independent
contractor or consultant of the Company or any of its subsidiaries.
(h) Except as set forth on Schedule 2.19(h) on the Company Disclosure
Schedule, the disclosure under the heading "IMPACT OF THE YEAR 2000 ISSUE"
contained in the Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1997 is accurate and correct in all material respects.
SECTION 2.20. Interested Party Transactions. Except as set forth
in Section 2.20 of the Company Disclosure Schedule or the Company SEC Reports or
for events as to which the amounts involved do not, in the aggregate, exceed
$300,000, since the date of the Company's proxy statement dated March 30, 1998
(the "1998 Company Proxy Statement"),
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no event has occurred that would be required to be reported as a Certain
Relationship or Related Transaction, pursuant to Item 404 of Regulation S-K
promulgated by the SEC.
SECTION 2.21. Insurance. Except as disclosed in Section 2.21 of
the Company Disclosure Schedule or the Company SEC Reports, all material fire
and casualty, general liability, business interruption, product liability and
sprinkler and water damage insurance policies maintained by the Company or any
of its subsidiaries are with reputable insurance carriers, provide full and
adequate coverage for all normal risks incident to the business of the Company
and its subsidiaries and their respective properties and assets and are in
character and amount appropriate for the businesses conducted by the Company,
except as would not reasonably be expected to have a Material Adverse Effect.
SECTION 2.22. Product Liability and Recalls. (a) Except as
disclosed in Section 2.22(a) of the Company Disclosure Schedule or the Company
SEC Reports, the Company is not aware of any claim, pending or threatened,
against the Company or any of its subsidiaries for injury to person or property
of employees or any third parties suffered as a result of the sale of any
product or performance of any service by the Company or any of its subsidiaries,
including claims arising out of the defective or unsafe nature of its products
or services, which would reasonably be expected, individually or in the
aggregate, to have a Material Adverse Effect.
(b) Except as disclosed in Section 2.22(b) of the Company
Disclosure Schedule or the Company SEC Reports, there is no pending or, to the
knowledge of the Company, overtly threatened recall or investigation of any
product sold by the Company, which recall or investigation would reasonably be
expected, individually or in the aggregate, to have a Material Adverse Effect.
SECTION 2.23. Opinion of Financial Advisor. The Company has been
advised by its financial advisor, Chase, to the effect that in its opinion, as
of the date hereof, the Exchange Ratio is fair from a financial point of view to
the holders of Shares.
SECTION 2.24. Pooling Matters. To the Company's knowledge and
based upon consultation with its independent accountants, the Company has
provided to Parent and its independent accountants all information concerning
actions taken or agreed to be taken by the Company or any of its affiliates on
or before the date of this Agreement that would reasonably be expected to
adversely affect the ability of Parent to account for the business combination
to be effected by the Merger as a pooling of interests, and the Company has no
knowledge that such business combination cannot be accounted for in that manner.
For purposes of this Section 2.24, "to the Company's knowledge" means to the
actual knowledge of the Company's Chairman and Chief Executive Officer,
President and Chief Operating Officer or Chief Financial Officer.
SECTION 2.25. Tax Matters. The representations, statements and
covenants set forth in paragraph 2 through 18 of Exhibit A hereto are true and
correct in all material respects.
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SECTION 2.26 Accuracy of Information. The Company acknowledges
that none of Parent, its subsidiaries or any of their respective directors,
officers, employees, affiliates, agents, advisors or representatives makes any
representation or warranty, either express or implied, as to the accuracy or
completeness of any of the information provided or made available to the Company
or its agents or representatives including, without limitation, any estimations,
projections or other statement regarding future performance, except to the
extent set forth in this Agreement (including the Parent Disclosure Schedule).
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB
Parent and Merger Sub hereby, jointly and severally, represent
and warrant to the Company as follows:
SECTION 3.01. Organization and Qualification; Subsidiaries. Each
of Parent and its subsidiaries is a corporation duly organized and validly
existing under the laws of the jurisdiction of its incorporation and has the
requisite corporate power and authority necessary to own, lease and operate the
properties it purports to own, operate or lease and to carry on its business as
it is now being conducted, except where the failure to be so organized and
existing or to have such power or authority would not reasonably be expected to
have a Material Adverse Effect. Each of Parent and its subsidiaries is duly
qualified or licensed as a foreign corporation to do business, and is in good
standing, in each jurisdiction where the character of its properties owned,
leased or operated by it or the nature of its activities makes such
qualification or licensing necessary, except for such failures to be so duly
qualified or licensed and in good standing that could not reasonably be expected
to have a Material Adverse Effect. A true and complete list of all of Parent's
subsidiaries, together with the jurisdiction of incorporation of each subsidiary
and the percentage of each subsidiary's outstanding capital stock owned by
Parent or another subsidiary, is set forth in Section 3.01 of the written
disclosure schedule previously delivered by Parent to the Company (the "Parent
Disclosure Schedule"). Except as set forth in Section 3.01 of the Parent
Disclosure Schedule or the Parent SEC Reports (as defined in Section 3.07
below), Parent does not directly or indirectly own any equity or similar
interest in, or any interest convertible into or exchangeable or exercisable
for, any equity or similar interest in, any corporation, partnership, joint
venture or other business association or entity, with respect to which Parent
has invested or is required to invest $3,000,000 or more, excluding securities
in any publicly traded company held for investment by Parent and comprising less
than five percent of the outstanding capital stock of such company.
SECTION 3.02. Articles of Organization and By-Laws. Parent has
heretofore made available to the Company a complete and correct copy of its
Memorandum of Association and Bye-Laws, as amended to date. Such Memorandum of
Association and Bye-Laws are in full force and effect. Neither Parent nor Merger
Sub is in violation of any of the provisions of its Memorandum of Association
(or Certificate of Incorporation) or by-laws.
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SECTION 3.03. Capitalization. (a) The authorized capital stock of
Parent consists of 1,503,750,000 Parent Common Shares and 125,000,000 Preference
Shares, $1.00 par value per share ("Parent Preferred Shares"). (i) As of April
23, 1998, (I) 583,096,885 Parent Common Shares were issued and outstanding, all
of which are validly issued, fully paid and non-assessable, (II) no Parent
Preferred Shares were outstanding and (III) no more than 5,000,000 Parent Common
Shares and no Parent Preferred Shares were held by subsidiaries of Parent; (ii)
as of March 31, 1998, warrants to purchase 185,933 Parent Common Shares were
outstanding; and (iii) as of September 30, 1997, approximately 44 million Parent
Common Shares were reserved for issuance upon exercise of stock options issued
under the Tyco International Ltd. Long Term Incentive Plan. No material change
in such capitalization has occurred between such dates and the date hereof other
than as a result of the exercise of options or warrants outstanding as of such
dates. Except as set forth in Section 3.03 of the Parent Disclosure Schedule or
the Parent SEC Reports, there are no options, warrants or other rights,
agreements arrangements or commitments of any character binding on Parent or any
of its subsidiaries relating to the issued or unissued capital stock of Parent
or any of its subsidiaries or obligating Parent or any of its subsidiaries to
issue or sell any shares of capital stock of, or other equity interests in,
Parent or any of its subsidiaries. Except as set forth in Section 3.03 of the
Parent Disclosure Schedule or the Parent SEC Reports, there are no obligations,
contingent or otherwise, of Parent or any of its subsidiaries to repurchase,
redeem or otherwise acquire any Parent Common Shares or the capital stock of any
subsidiary or to provide funds to or make any investment (in the form of a loan,
capital contribution or otherwise) in any such subsidiary other than guarantees
of bank obligations of subsidiaries entered into in the ordinary course of
business. Except as set forth in Section 3.01 or 3.03 of the Parent Disclosure
Schedule, all of the outstanding shares of capital stock (other than directors'
qualifying shares) of each of Parent's subsidiaries is duly authorized, validly
issued, fully paid and nonassessable and all such shares (other than directors'
qualifying shares) are owned by Parent or another subsidiary free and clear of
all security interests, liens, claims, pledges, agreements, limitations in
Parent's voting rights, charges or other encumbrances of any nature whatsoever.
(b) The Parent Common Shares to be issued pursuant to the Merger
will be duly authorized, validly issued, fully paid and nonassessable and shall
be listed, upon official notice of issuance, for trading on the NYSE.
SECTION 3.04. Authority Relative to this Agreement. Each of
Parent and Merger Sub has all necessary corporate power and authority to execute
and deliver this Agreement and to perform its obligations hereunder and to
consummate the transactions contemplated hereby. The execution and delivery of
this Agreement by Parent and Merger Sub and the consummation by Parent and
Merger Sub of the transactions contemplated hereby have been duly and validly
authorized by all necessary corporate action on the part of Parent and Merger
Sub, and no other corporate proceedings on the part of Parent or Merger Sub are
necessary to authorize this Agreement or to consummate the transactions
contemplated hereby. The Board of Directors of Parent has determined that it is
advisable and in the best interest of Parent's shareholders for Parent to enter
into this Agreement and to consummate the Merger upon the terms and subject to
the conditions of this Agreement. This Agreement has been duly and validly
executed and delivered by Parent and Merger Sub
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and, assuming the due authorization, execution and delivery by the Company,
constitutes a legal, valid and binding obligation of Parent and Merger Sub.
SECTION 3.05. No Conflict; Required Filings and Consents. (a)
Section 3.05(a) of the Parent Disclosure Schedule includes a list of (i) all
loan agreements, indentures, mortgages, pledges, conditional sale or title
retention agreements, security agreements, equipment obligations, guaranties,
standby letters of credit, equipment leases or lease purchase agreements to
which Parent or any of its subsidiaries is a party or by which any of them is
bound, each in an amount exceeding $25,000,000, but excluding any such agreement
between Parent and its wholly-owned subsidiaries or between two or more
wholly-owned subsidiaries of Parent; (ii) all contracts, agreements, commitments
or other understandings or arrangements to which Parent or any of its
subsidiaries is a party or by which any of them or any of their respective
properties or assets are bound or affected, but excluding contracts, agreements,
commitments or other understandings or arrangements entered into in the ordinary
course of business and involving, in each case, payments or receipts by Parent
or any of its subsidiaries of less than $20,000,000 in any single instance; and
(iii) all agreements which, as of the date hereof, are required to be filed with
the SEC pursuant to the requirements of the Exchange Act as "material contracts"
but have not been so filed with the SEC as of the date hereof.
(b) Except as set forth in Section 3.05(b) of the Parent
Disclosure Schedule, the execution and delivery of this Agreement by Parent and
Merger Sub do not, and the performance of this Agreement by Parent and Merger
Sub will not, (i) conflict with or violate the Memorandum of Association (or
Certificate of Incorporation) or by-laws of Parent or Merger Sub, (ii) conflict
with or violate any law, rule, regulation, order, judgment or decree applicable
to Parent or any of its subsidiaries or by which its or their respective
properties are bound or affected, or (iii) result in any breach of or constitute
a default (or an event which with notice or lapse of time or both would become a
default) under, or impair Parent's or any of its subsidiaries' rights or alter
the rights or obligations of any third party under, or give to others any rights
of termination, amendment, acceleration or cancellation of, or result in the
creation of a lien or encumbrance on any of the properties or assets of Parent
or any of its subsidiaries pursuant to, any note, bond, mortgage, indenture,
contract, agreement, lease, license, permit, franchise or other instrument or
obligation to which Parent or any of its subsidiaries is a party or by which
Parent or any of its subsidiaries or its or any of their respective properties
are bound or affected, except, in the case of clauses (ii) or (iii), for any
such conflicts, violations, breaches, defaults or other occurrences that would
not reasonably be expected, individually or in the aggregate, to have a Material
Adverse Effect.
(c) The execution and delivery of this Agreement by Parent and
Merger Sub does not, and the performance of this Agreement by Parent and Merger
Sub will not, require any consent, approval, authorization or permit of, or
filing with or notification to, any Governmental Authority, except (i) for
applicable requirements, if any, of the Securities Act, the Exchange Act, the
Blue Sky Laws, the pre-merger notification requirements of the HSR Act, Foreign
Monopoly Laws, and the filing and recordation of appropriate merger or other
documents as required by the DGCL, (ii) where the failure to obtain such
consents, approvals, authorizations or permits, or to make such filings or
notifications, would not prevent or materially delay consummation of the Merger,
or otherwise prevent Parent or
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Merger Sub from performing their respective material obligations under this
Agreement, and would not otherwise be reasonably expected, individually or in
the aggregate, to have a Material Adverse Effect or (iii) as to which any
necessary consents, approvals, authorizations, permits, filings or notifications
have heretofore been obtained or filed, as the case may be, by Parent.
SECTION 3.06. Compliance; Permits. (a) Except as disclosed in
Section 3.06(a) of the Parent Disclosure Schedule or the Parent SEC Reports,
neither Parent nor any of its subsidiaries is in conflict with, or in default or
violation of, (i) any law, rule, regulation, order, judgment or decree
applicable to Parent or any of its subsidiaries or by which its or any of their
respective properties is bound or affected or (ii) any note, bond, mortgage,
indenture, contract, agreement, lease, license, permit, franchise or other
instrument or obligation to which Parent or any of its subsidiaries is a party
or by which Parent or any of its subsidiaries or its or any of their respective
properties is bound or affected, except for any such conflicts, defaults or
violations which would not reasonably be expected, individually or in the
aggregate, to have a Material Adverse Effect.
(b) Except as disclosed in Section 3.06(b) of the Parent
Disclosure Schedule or the Parent SEC Reports, Parent and its subsidiaries hold
all permits, licenses, easements, variances, exemptions, consents, certificates,
orders and approvals from governmental authorities which are material to the
operation of the business of the Parent and its subsidiaries taken as a whole as
it is now being conducted (collectively, the "Parent Permits" except where the
failure to hold such Parent Permits would not reasonably be expected,
individually or in the aggregate, to have a Material Adverse Effect). Parent and
its subsidiaries are in compliance with the terms of Parent Permits, except as
described in the Parent SEC Reports or where the failure to so comply would not
reasonably be expected, individually or in the aggregate, to have a Material
Adverse Effect.
SECTION 3.07. SEC Filings; Financial Statements. (a) Parent has
filed all forms, reports and documents required to be filed with the SEC since
December 31, 1994, and has heretofore delivered to the Company, in the form
filed with the SEC, (i) its Annual Reports on Form 10-K for the fiscal years
ended December 31, 1995 and 1996 and its Transition Report on Form 10-K for the
nine month period ended September 30, 1997, (ii) its Quarterly Reports on Form
10-Q for the quarterly periods ending December 31, 1997, and March 31, 1998,
(iii) all proxy statements relating to Parent's meetings of shareholders
(whether annual or special) held since December 31, 1996, (iv) all other reports
or registration statements (other than Reports on Form 10-Q not referred to in
clause (ii) above) filed by Parent with the SEC since December 31, 1994, and (v)
all amendments and supplements to all such reports and registration statements
filed by Parent with the SEC (collectively, the "Parent SEC Reports"). The
Parent SEC Reports (i) were prepared in all material respects in accordance with
the requirements of the Securities Act or the Exchange Act, as the case may be,
and (ii) did not at the time they were filed (or if amended or superseded by a
filing prior to the date of this Agreement, then on the date of such filing)
contain any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading. None of Parent's subsidiaries is required to file any forms, reports
or other documents with the SEC.
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(b) Each of the consolidated financial statements (including, in
each case, any related notes thereto) contained in the Parent SEC Reports has
been prepared in accordance with GAAP applied on a consistent basis throughout
the periods involved (except as may be indicated in the notes thereto or in the
Parent SEC Reports) and each fairly presents in all material respects the
consolidated financial position of Parent and its subsidiaries as at the
respective dates thereof and the consolidated results of its operations and cash
flows for the periods indicated, except that the unaudited interim financial
statements were or are subject to normal and recurring year-end adjustments
which were not or are not expected to be material in amount.
SECTION 3.08. Absence of Certain Changes or Events. Except as set
forth in Section 3.08 of the Parent Disclosure Schedule or the Parent SEC
Reports, between December 31, 1997 and the date hereof, Parent has conducted its
business in the ordinary course and there has not occurred: (i) any changes,
effects or changed circumstances constituting, individually or in the aggregate,
a Material Adverse Effect; (ii) any amendments or changes in the Memorandum of
Association or Bye-Laws of Parent; (iii) any damage to, destruction or loss of
any assets of the Parent (whether or not covered by insurance) that would
reasonably be expected, individually or in the aggregate, to have a Material
Adverse Effect; (iv) any material change by Parent in its accounting methods; or
(v) any sale of a material amount of assets of Parent, except in the ordinary
course of business.
SECTION 3.09. No Undisclosed Liabilities. Except as is disclosed
in Section 3.09 of the Parent Disclosure Schedule and the Parent SEC Reports,
neither the Parent nor any of its subsidiaries has any liabilities (absolute,
accrued, contingent or otherwise), except liabilities (a) in the aggregate
adequately provided for in the Parent's unaudited balance sheet (including any
related notes thereto) as of March 31, 1998 included in Parent's Quarterly
Report on Form 10-Q for the three months ended March 31, 1998 (the "1998 Balance
Sheet"), (b) incurred in the ordinary course of business and not required under
GAAP to be reflected on the 1998 Balance Sheet, (c) incurred since March 31,
1998 in the ordinary course of business, (d) incurred in connection with this
Agreement, or the Merger or the other transactions contemplated hereby, or (e)
which would not reasonably be expected, individually or in the aggregate, to
have a Material Adverse Effect.
SECTION 3.10. Absence of Litigation. Except as set forth in
Section 3.10 of the Parent Disclosure Schedule, there are no claims, actions,
suits, proceedings or investigations pending or, to the knowledge of the Parent,
threatened against the Parent or any of its subsidiaries, or any properties or
rights of the Parent or any of its subsidiaries, before any court, arbitrator or
administrative, governmental or regulatory authority or body, domestic or
foreign, that would reasonably be expected to have a Material Adverse Effect.
SECTION 3.11. Employee Benefit Plans; Employment Agreements. (a)
Section 3.11(a) of the Parent Disclosure Schedule lists all employee pension
benefit plans (as defined in Section 3(2) of ERISA), all employee welfare
benefit plans (as defined in Section 3(1) of ERISA), and all other bonus, stock
option, stock purchase, incentive, deferred compensation, supplemental
retirement, severance and other similar fringe or employee benefit plans,
programs or arrangements, and any employment, executive compensation or
severance agreements, written or otherwise, as amended, modified or
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supplemented, for the benefit of, or relating to, any former or current
employee, officer, director or consultant (or any of their beneficiaries) of
Parent or any entity (whether or not incorporated) which is a member of a
controlled group including Parent or which is under common control with Parent
within the meaning of Sections 414(b), (c), (m) or (o) of the Code or Section
4001(a) (14) or (b) of ERISA ("Parent ERISA Affiliate"), or any subsidiary of
Parent, as well as each plan with respect to which Parent or a Parent ERISA
Affiliate could incur liability under Title IV of ERISA or Section 412 of the
Code (together for the purposes of this Section 3.11, the "Employee Plans").
Prior to the date of this Agreement, Parent has made available to the Company
copies of (i) each such written Employee Plan (or a written description of any
Employee Plan which is not written) and all related trust agreements, insurance
and other contracts (including policies), summary plan descriptions, summaries
of material modifications and communications distributed to plan participants,
(ii) the three most recent annual reports on Form 5500 series, with accompanying
schedules and attachments, filed with respect to each Employee Plan required to
make such a filing, (iii) the most recent actuarial valuation for each Employee
Plan subject to Title IV of ERISA, (iv) the latest reports which have been filed
with the Department of Labor with respect to each Employee Plan required to make
such filing and (v) the most recent favorable determination letters issued for
each Employee Plan and related trust which is subject to Parts 1, 2 and 4 of the
Subtitle B of Title I of ERISA (and, if an application for such determination is
pending, a copy of the application for such determination). For purposes of this
Section 3.11, the term "material," when used with respect to (i) any Employee
Plan, shall mean that Parent or a Parent ERISA Affiliate has incurred or may
incur obligations in an amount exceeding $5,000,000 with respect to such
Employee Plan, and (ii) any liability, obligation, breach or non-compliance,
shall mean that Parent or a Parent ERISA Affiliate has incurred or may incur
obligations in an amount exceeding $3,000,000, with respect to any one such or
series of related liabilities, obligations, breaches, defaults, violations or
instances of non-compliance.
(b) Except as set forth in Section 3.11(b) of the Parent
Disclosure Schedule or the Parent SEC Reports, (i) none of the Employee Plans
promises or provides retiree medical or other retiree welfare benefits to any
person, and none of the Employee Plans is a "multiemployer plan" as such term is
defined in Section 3(37) of ERISA; (ii) no party in interest or disqualified
person (as defined in Section 3(14) of ERISA and Section 4975 of the Code) has
at any time engaged in a transaction with respect to any Employee Plan which
could subject Parent or any Parent ERISA Affiliate, directly or indirectly, to a
tax, penalty or other material liability for prohibited transactions under ERISA
or Section 4975 of the Code; (iii) no fiduciary of any Employee Plan has
breached any of the responsibilities or obligations imposed upon fiduciaries
under Title I of ERISA, which breach would reasonably be expected to result in
any material liability to Parent or any Parent ERISA Affiliate; (iv) all
Employee Plans have been established and maintained substantially in accordance
with their terms and have operated in compliance in all material respects with
the requirements prescribed by any and all statutes (including ERISA and the
Code), orders, or governmental rules and regulations currently in effect with
respect thereto (including all applicable requirements for notification to
participants or the Department of Labor, IRS or Secretary of the Treasury), and
may by their terms be amended and/or terminated at any time subject to
applicable law and the terms of each Employee Plan, and Parent and each of its
subsidiaries have performed all material obligations required to be performed by
them under, are not in
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any material respect in default under or violation of, and have no knowledge of
any default or violation by any other party to, any of the Employee Plans; (v)
each Employee Plan which is subject to Parts 1, 2 and 4 of Subtitle B of ERISA
is the subject of a favorable determination letter from the IRS, and nothing has
occurred which may reasonably be expected to impair such determination; (vi) all
contributions required to be made with respect to any Employee Plan pursuant to
Section 412 of the Code, or the terms of the Employee Plan or any collective
bargaining agreement, have been made on or before their due dates (including any
extensions thereof); (vii) with respect to each Employee Plan, no "reportable
event" within the meaning of Section 4043 of ERISA (excluding any such event for
which the 30 day notice requirement has been waived under the regulations to
Section 4043 of ERISA) or any event described in Section 4062, 4063 or 4041 of
ERISA has occurred for which there is any material outstanding liability to
Parent or any Parent ERISA Affiliate nor would the consummation of the
transaction contemplated hereby (including the execution of this agreement)
constitute a reportable event for which the 30-day requirement has not been
waived; and (viii) neither Parent nor any Parent ERISA Affiliate has incurred or
reasonably expects to incur any material liability under Title IV of ERISA
(other than liability for premium payments to the PBGC arising in the ordinary
course).
(c) Section 3.11(c) of the Parent Disclosure Schedule sets forth
a true and complete list of the aggregate number of (i) options to purchase
Parent Common Shares as of the date hereof, together with the number of shares
of Parent Common Shares subject to such options, the option prices of such
options (to the extent determined as of the date hereof), whether such options
are intended to qualify as ISOs, and the expiration date of such options; (ii)
any shares o