Exhibit 99(a)(5)(iii)
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AGREEMENT AND PLAN OF MERGER
among
ELYO S.A.
T ACQUISITION CORP.
and
TRIGEN ENERGY CORPORATION
Dated as of January 19, 2000
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AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER (this "AGREEMENT"), dated as of
January 19, 2000, between Elyo S.A., a societe anonyme organized and existing
under the laws of the Republic of France ("PARENT"), T Acquisition Corp., a
Delaware corporation and an indirect, wholly owned subsidiary of Parent
("PURCHASER"), and Trigen Energy Corporation, a Delaware corporation (the
"COMPANY").
RECITALS
WHEREAS, Parent beneficially owns through its wholly and
majority owned subsidiaries, an aggregate of 6,507,944 shares (the "PARENT
SHARES") of common stock, par value $.01 per share (the "SHARES" or the "COMMON
STOCK"), of the Company, constituting approximately 52.7% of the total
outstanding Shares, and has proposed to the Company that Purchaser acquire all
of the remaining issued and outstanding Shares;
WHEREAS, on or prior to the Effective Time (as defined below)
Parent will cause the Parent Shares to be transferred to Purchaser;
WHEREAS, the special committee of the independent directors of
the board of directors of the Company (the "COMPANY BOARD") established to
consider Parent's proposal (the "SPECIAL COMMITTEE") has unanimously recommended
that the Company Board approve the Offer (as defined below), and approve and
authorize the Merger (as defined below) and this Agreement;
WHEREAS, in furtherance of Parent's acquisition of all the
remaining issued and outstanding Shares, it is proposed that Purchaser may elect
to make a cash tender offer (the "OFFER") in compliance with Section 14(d)(i) of
the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"), to acquire
any and all of the issued and outstanding Shares for $23.50 per Share (the "PER
SHARE AMOUNT"), net to the sellers in cash, upon the terms and subject to the
conditions of this Agreement and the Offer;
WHEREAS, the respective boards of directors of Parent,
Purchaser and the Company have deemed it advisable and in the best interests of
their respective stockholders to consummate, and have approved, the merger of
Purchaser with and into the Company (the "MERGER"), upon the terms and subject
to the conditions set forth herein;
WHEREAS, the Company Board has approved the Offer and resolved
to recommend the Offer to the Company's stockholders; and
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WHEREAS, the parties hereto desire to make certain
representations, warranties, covenants and agreements in connection with the
transactions contemplated by this Agreement.
NOW, THEREFORE, in consideration of the foregoing, and of the
representations, warranties, covenants and agreements contained herein, the
parties hereto hereby agree as follows:
ARTICLE 1
1. THE OFFER.
1.1 THE OFFER. (a) Subject to the provisions of this Agreement
and this Agreement not having been terminated, Purchaser shall commence, as
promptly as practicable, and Parent shall cause Purchaser to commence, within
the meaning of Rule 14d-2 under the Exchange Act, the Offer. The obligation of
Purchaser, and of Parent to cause Purchaser, to commence the Offer and to accept
for payment, and to pay for any shares of Common Stock tendered pursuant to the
Offer shall be subject to the satisfaction of the conditions set forth in
EXHIBIT A and the terms and conditions of this Agreement (the "OFFER
CONDITIONS"). Subject to the provisions of this Agreement, the Offer shall
initially expire on the 20th business day from and after the date the Offer is
commenced, including the date of the commencement of the Offer as the first
business day in accordance with Rule 14d-2, unless this Agreement is terminated
in accordance with ARTICLE 8, in which case the Offer (whether or not previously
extended in accordance with the terms hereof) shall expire on such date of
termination.
(b) Purchaser expressly reserves the right to waive any
condition set forth on Exhibit A without the consent of the Company, and to make
any other changes in the terms and conditions of the Offer. However, without the
prior written consent of the Company, Purchaser shall not (i) reduce the maximum
number of Shares subject to the Offer, (ii) decrease the Per Share Amount, (iii)
change the form of consideration payable in the Offer, or (iv) amend or modify
the Offer Conditions in any manner adverse to the holders of Shares.
Notwithstanding the foregoing, Purchaser may, without the consent of the
Company, extend the Offer at any time and from time to time: (i) if at the then
scheduled expiration date of the Offer any of the Offer Conditions shall not
have been satisfied or waived, until such time as all such conditions shall have
been satisfied or waived; (ii) for any period required by any statute or rule,
regulation, interpretation or position of the Securities and Exchange Commission
(the "SEC") or its staff applicable to the Offer; (iii) for any period required
by applicable law in connection with an increase in the consideration to be paid
pursuant to the Offer; and (iv) from time to time, for an aggregate period of
not more than ten (10) business days (for all such extensions under this clause
(iv)) beyond the latest expiration date that would be permitted under clause
(i), (ii) or (iii) of this sentence. So long as this Agreement is in effect and
the Offer
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Conditions have not been satisfied or waived, Purchaser shall, and Parent shall
cause Purchaser to, cause the Offer not to expire. Subject to and in accordance
with the terms and conditions of the Offer and this Agreement (but subject to
the right of termination in accordance with ARTICLE 8), Purchaser shall, and
Parent shall cause Purchaser to, accept for payment and pay for, in accordance
with the terms of the Offer, all Shares validly tendered and not withdrawn
pursuant to the Offer as soon as practicable after the expiration of the Offer.
In addition to the foregoing, Purchaser may provide for a "subsequent offering
period" to the extent provided in Rule 14d-11 under the Exchange Act, as in
effect as of January 24, 2000, after the purchase of Shares pursuant to the
Offer.
1.2. ACTIONS BY PARENT AND PURCHASER. (a) As soon as
reasonably practicable following execution of this Agreement, Parent and
Purchaser shall file with the SEC a Tender Offer Statement and a Rule 13e-3
Transaction Statement on Schedule TO, including all exhibits thereto (together
with all amendments and supplements thereto, the "SCHEDULE TO") with respect to
the Offer, the Merger and the other transactions contemplated hereby. The
Schedule TO shall contain or incorporate by reference an offer to purchase (the
"OFFER TO PURCHASE") and forms of the related letter of transmittal and any
related documents (the Schedule TO, the Offer to Purchase and such other
documents, together with all supplements or amendments thereto, collectively,
the "OFFER DOCUMENTS"). The Offer Documents shall comply in all material
respects with the requirements of the Exchange Act. On the date filed with the
SEC and on the date first published, sent or given to the Company's
stockholders, the Offer Documents shall not 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 light of the
circumstances under which they were made, not misleading, except that no
representation is made by Parent or Purchaser with respect to information
supplied by the Company for inclusion in the Offer Documents. Each of Parent and
Purchaser agrees to correct promptly, and the Company agrees to notify Parent
promptly as to, any information provided by it for use in the Offer Documents,
if and to the extent such information shall have become false or misleading in
any material respect, and each of Parent and Purchaser further agrees to take
all steps necessary to cause the Offer Documents as so corrected to be filed
with the SEC and to be disseminated to all of the holders of Shares, in each
case as and to the extent required by applicable federal securities laws. Parent
and Purchaser agree to provide the Company and the Special Committee and their
respective counsel in writing any comments Parent, Purchaser or their counsel
may receive from the SEC or its staff with respect to the Offer Documents
promptly after receipt of such comments. Parent and Purchaser shall use their
respective reasonable best efforts to respond to such comments promptly and
shall provide the Company copies of any written responses and telephonic
notification of any verbal responses by Parent, Purchaser or their counsel.
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(b) Parent shall provide or cause to be provided to Purchaser
all of the funds necessary to purchase any Shares that Purchaser becomes
obligated to purchase pursuant to the Offer.
1.3. ACTIONS BY THE COMPANY. (a) The Company hereby approves
of the Offer and represents and warrants that (i) the Special Committee has
recommended that the Company Board approve the Offer and the Merger, and approve
and authorize this Agreement, and the other transactions contemplated hereby and
(ii) the Company Board at a meeting duly called and held, has, by unanimous vote
of all directors and based on the recommendation of the Special Committee
described in the preceding clause (i) duly adopted resolutions: (A) approving
the Offer and the Merger and approving and adopting this Agreement, (B)
determining that the Merger is advisable and that the terms of the Offer and
Merger are fair to, and in the best interests of, the Company and the Company's
stockholders, (C) recommending that the Company's stockholders accept the Offer
and, if approval is required by applicable law, approve the Merger and approve
and adopt this Agreement, and (D) taking all actions necessary to render Section
203 of the Delaware General Corporation Law (the "DGCL") inapplicable to the
Offer, the Merger, this Agreement or any of the transactions contemplated
hereby. The Company hereby consents to the inclusion in the Offer Documents of
the recommendation of the Company Board and the recommendation of the Special
Committee described in the first sentence of this SECTION 1.3(A). The Company
shall provide for inclusion in the Offer Documents any information reasonably
requested by Parent or Purchaser, and to the extent requested by Parent or
Purchaser, the Company shall cooperate in the preparation of the Offer
Documents. The Company further represents and warrants that (i) the Special
Committee has been duly authorized and constituted, and (ii) the Special
Committee, at a meeting thereof duly called, determined that this Agreement, the
Merger and the Offer are fair to and in the best interests of the stockholders
of the Company (other than the Parent and its affiliates).
(b) As soon as reasonably practicable on the date of the
commencement of the Offer, the Company shall file with the SEC a
Solicitation/Recommendation Statement on Schedule 14D-9 with respect to the
Offer (such Schedule 14D-9, together with all amendments and supplements
thereto, "SCHEDULE 14D-9") containing the recommendations of the Company Board
and the Special Committee described in SECTION 1.3(A) and shall disseminate the
Schedule 14D-9 to the stockholders of the Company to the extent required by Rule
14d-9 promulgated under the Exchange Act and any other applicable federal or
state securities laws. To the extent practicable, the Company shall cooperate
with Purchaser and/or Parent in mailing or otherwise disseminating the Schedule
14D-9 with the appropriate Offer Documents to the Company's stockholders.
Parent, Purchaser and their counsel shall be given an opportunity to review and
comment upon the Schedule 14D-9 prior to the filing thereof with the SEC. The
Schedule 14D-9 shall comply in all material respects with the requirements of
the Exchange Act. On the
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date filed with the SEC and on the date first published, sent or given to the
Company's stockholders, the Schedule 14D-9 shall not 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 light of
the circumstances under which they were made, not misleading, except that no
representation is made by the Company with respect to information supplied by
Parent or Purchaser for inclusion in the Schedule 14D-9. The Company agrees to
correct promptly, and each of Parent and Purchaser agrees to notify the Company
promptly as to, any information provided by it for use in the Schedule 14D-9, if
and to the extent such information shall have become false or misleading in any
material respect, and the Company further agrees to take all steps necessary to
cause the Schedule 14D-9 as so corrected to be filed with the SEC and to be
disseminated to all of the holders of Shares, in each case as and to the extent
required by applicable federal securities laws. The Company agrees to provide
Parent and Purchaser and their counsel in writing any comments the Company or
its counsel may receive from the SEC or its staff with respect to the Schedule
14D-9 promptly after the receipt of such comments. The Company agrees to use its
reasonable best efforts, after consultation with Parent, to respond promptly to
all such comments of and requests by the SEC. The Company shall provide Parent
copies of any written responses and telephonic notification of any verbal
responses by the Company and its counsel.
(c) In connection with the Offer, the Company shall promptly,
or shall cause its transfer agent to promptly, furnish Purchaser with mailing
labels containing the names and addresses of the record holders of Shares, each
as of the most recent date together with copies of all lists of stockholders and
security position listings and all other information in the Company's possession
or control regarding the beneficial owners of Common Stock, and shall furnish to
Purchaser such information and assistance (including updated lists of
stockholders, security position listings and computer files) as Purchaser may
reasonably request in communicating the Offer to the Company's stockholders.
Subject to the requirements of applicable law, and except for such steps as are
necessary to disseminate the Offer Documents and any other documents necessary
to consummate the Offer and the Merger, Parent and Purchaser shall hold in
confidence the information contained in any of such labels, lists and files,
shall use such information only in connection with the Offer and the Merger,
and, if this Agreement is terminated in accordance with Section 8.1, shall
deliver to the Company all copies of such information then in their possession.
(d) Subject to the terms and conditions of this Agreement, if
there shall occur a change in law or in a binding judicial interpretation of
existing law which would, in the absence of action by the Company or the Company
Board, prevent the Purchaser, were it to acquire a specified percentage of the
shares of Common Stock then outstanding, from approving and adopting this
Agreement by its affirmative vote as the holder of a majority of shares of
Common Stock and without the affirmative vote of any
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other stockholder, the Company will use its best efforts to promptly take or
cause such action to be taken.
ARTICLE 2
2. THE MERGER.
2.1. THE MERGER. At the Effective Time, subject to the terms
and conditions of this Agreement and the applicable provisions of the DGCL,
Purchaser shall be merged with and into the Company and the separate corporate
existence of Purchaser shall thereupon cease. The Company shall be the surviving
corporation in the Merger (sometimes hereinafter referred to as the "SURVIVING
CORPORATION"). The Merger shall have the effects specified in the DGCL.
2.2. THE CLOSING. Subject to the terms and conditions of this
Agreement, the closing of the Merger (the "CLOSING") shall take place at the
offices of Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, One New York Plaza, New
York, New York, at 10:00 a.m., local time, as soon as practicable following the
satisfaction (or waiver if permissible) of the conditions set forth in ARTICLE
7. The date on which the Closing occurs is hereinafter referred to as the
"CLOSING DATE."
2.3. EFFECTIVE TIME. If all the conditions to the Merger set
forth in ARTICLE 7 shall have been fulfilled or waived in accordance herewith
and this Agreement shall not have been terminated as provided in ARTICLE 8 (and
subject to SECTION 3.6), the parties hereto shall cause a certificate of merger
meeting the requirements of Section 251 of the DGCL ("CERTIFICATE OF MERGER") to
be properly executed and filed with the Secretary of State of the State of
Delaware in accordance with such Section on the Closing Date. The Merger shall
become effective at the time of filing of the Certificate of Merger with the
Secretary of State of the State of Delaware in accordance with the DGCL or at
such later time which the parties hereto shall have agreed upon and designated
in such filing as the effective time of the Merger (the "EFFECTIVE TIME").
2.4 CERTIFICATE OF INCORPORATION, BY-LAWS, DIRECTORS AND
OFFICERS OF THE SURVIVING CORPORATION. Unless otherwise agreed by the Company
and Parent prior to the Closing, at the Effective Time:
(a) The certificate of incorporation of the Surviving
Corporation shall be amended and restated in its entirety as set forth in
Exhibit B hereto, until duly amended in accordance with applicable law and the
terms thereof;
(b) The by-laws of Purchaser as in effect immediately prior to
the Effective Time shall be the by-laws of the Surviving Corporation, until duly
amended in
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accordance with applicable law, the terms thereof, and the Surviving
Corporation's certificate of incorporation;
(c) The officers of the Company immediately prior to the
Effective Time shall continue to serve in their respective offices of the
Surviving Corporation from and after the Effective Time, until their successors
are duly appointed or elected in accordance with applicable law and the
Surviving Corporation's certificate of incorporation and by-laws; and
(d) The directors of Purchaser immediately prior to the
Effective Time shall be the directors of the Surviving Corporation from and
after the Effective Time, until their successors are duly appointed or elected
in accordance with applicable law, and the Surviving Corporation's certificate
of incorporation and by-laws.
ARTICLE 3
3. EFFECT OF THE MERGER ON SECURITIES OF PURCHASER AND THE COMPANY.
3.1. PURCHASER STOCK. At the Effective Time, each share of
common stock, $.01 par value per share, of Purchaser that is outstanding
immediately prior to the Effective Time shall be converted into and exchanged
for one validly issued, fully paid and non-assessable share of common stock,
$.01 par value per share, of the Surviving Corporation.
3.2. COMPANY SECURITIES. (a) Other than as set forth in the
immediately following sentence, at the Effective Time, each share of Common
Stock issued and outstanding immediately prior to the Effective Time shall, by
virtue of the Merger and without any action on the part of Parent, Purchaser,
the Company or the holder thereof, be converted into the right to receive the
Per Share Amount or any higher per share price as may be paid in the Offer,
without interest (the "MERGER CONSIDERATION") in accordance with SECTION 3.3
upon the surrender of a certificate or certificates (a "CERTIFICATE")
representing such shares of Common Stock. The following Shares shall not be
converted into the right to receive the Per Share Amount at the Effective Time:
(i) Restricted Stock granted under and defined in the Trigen Energy Corporation
1994 Stock Incentive Plan, which, in accordance with Section 3.2(c)(ii), shall
be canceled immediately prior to the filing of the Certificate of Merger; (ii)
shares of Common Stock owned by Parent directly or by Purchaser or held by the
Company, all of which shall be canceled; and (iii) Dissenting Shares (as defined
below).
(b) Each Share issued and held in the Company's treasury at
the Effective Time, or held by Purchaser or by Parent directly, or any wholly
owned subsidiary of Parent or Purchaser, shall, by virtue of the Merger and
without any action on
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the part of Parent, Purchaser, the Company or the holder thereof, cease to be
outstanding and shall be canceled and retired without payment of any
consideration therefor.
(c) (i) The Company shall, immediately prior to the Effective
Time, (A) terminate each Company stock option, stock appreciation rights,
restricted stock or similar plan, and any other plan, program or arrangement
providing for the issuance, grant or purchase of any other interest in respect
of the capital stock of the Company or any of its Subsidiaries (as defined
below), and (B) amend the provisions of any other Company Employee Benefit Plan
(as defined below), or related trust or funding vehicle, providing for the
issuance, holding, transfer or grant of any Shares, or any interest in respect
of any Shares (such plans set forth in clauses (A) or (B), collectively, the
"COMPANY STOCK PLANS"), to provide no continuing rights to acquire, hold,
transfer, or grant any Shares or any interest in any Shares. With respect to the
1994 Employee Stock Purchase Plan, prior to the Effective Time, the Company
shall cause the "Exercise Date" for the current "Purchase Period" to be
accelerated and occur on a date no later than the date of the Effective Time.
(ii) All options to acquire Shares outstanding
immediately prior to the Effective Time under any Company Stock Plan or under
any agreement (an "OPTION"), whether or not then exercisable, shall (by all
necessary and appropriate action taken on or prior to the date of this
Agreement of the Company Board or such appropriate committee or committees of
the Company Board) be canceled at the Effective Time and each holder of an
Option shall promptly after the Effective Time receive from the Surviving
Corporation, for each share of Common Stock subject to an Option, an amount
in cash equal to the excess, if any, of the Merger Consideration over the per
share exercise price of such Option, without interest, in full settlement of
the Company's (and the Surviving Corporation's) obligations under each such
Option. To the extent that the per share exercise price of any Option equals
or exceeds the Merger Consideration, at the Effective Time such Option shall
be canceled and the holder of such Option shall not receive or be entitled to
receive any consideration from Parent, Purchaser or the Surviving
Corporation. The amount payable pursuant to this SECTION 3.2(C) shall be
subject to all applicable withholding of taxes.
(iii) Immediately prior to the filing of the
Certificate of Merger, all shares of Restricted Stock shall be canceled and
each holder of a share of Restricted Stock shall promptly after the Effective
Time receive from the Surviving Corporation, for each share of Restricted
Stock, an amount of cash equal to one-fourth of the Merger Consideration. In
connection with the foregoing, the Surviving Corporation intends, in
accordance with the Trigen Energy Corporation 1994 Stock Incentive Plan, to
implement an incentive plan following the Effective Time.
3.3. EXCHANGE OF CERTIFICATES REPRESENTING COMMON STOCK. (a)
Prior to the Effective Time, Parent shall appoint a commercial bank or trust
company, subject to
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the reasonable satisfaction of the Company, to act as paying agent hereunder for
payment of the Merger Consideration upon surrender of Certificates (the "PAYING
AGENT"). Parent shall take all steps necessary to cause the Surviving
Corporation to provide the Paying Agent with cash in amounts necessary to pay
for all the shares of Common Stock pursuant to SECTION 3.2(A) and, in connection
with the Options, pursuant to SECTION 3.2(C), as and when such amounts are
needed by the Paying Agent. Such amounts shall hereinafter be referred to as the
"EXCHANGE FUND."
(b) As soon as practicable after the Effective Time, Parent
shall cause the Paying Agent to mail to each holder of record of shares of
Common Stock (i) a letter of transmittal which shall specify that delivery shall
be effected, and risk of loss and title to such Certificates shall pass, only
upon delivery of the Certificates to the Paying Agent and which letter shall be
in such form and have such other provisions as are customary for letters of this
nature and (ii) instructions for effecting the surrender of such Certificates in
exchange for the Merger Consideration. Upon surrender of a Certificate to the
Paying Agent together with such letter of transmittal, duly executed and
completed in accordance with the instructions thereto, and such other documents
as may be reasonably required by the Paying Agent, the holder of such
Certificate shall be entitled to receive in exchange therefor the amount of cash
into which shares of Common Stock theretofore represented by such Certificate
shall have been converted pursuant to SECTION 3.2, and the shares represented by
the Certificate so surrendered shall forthwith be canceled. No interest will be
paid or will accrue on the cash payable upon surrender of any Certificate. In
the event of a transfer of ownership of Shares that is not registered in the
transfer records of the Company, payment may be made with respect to such Common
Stock to such a transferee if the Certificate representing such shares of Common
Stock is presented to the Paying Agent, accompanied by all documents required to
evidence and effect such transfer and to evidence that any applicable stock
transfer taxes have been paid. Until surrendered as contemplated by this SECTION
3.3, each Certificate shall be deemed, at any time after the Effective Time, to
represent only the right to receive on such surrender the amount, without any
interest thereon, of cash into which shares of Common Stock theretofore
represented by such Certificate shall have been converted pursuant to SECTION
3.2.
(c) At or after the Effective Time, there shall be no
transfers on the stock transfer books of the Company of the Shares that were
outstanding immediately prior to the Effective Time. If, after the Effective
Time, Certificates are presented to the Surviving Corporation, they shall be
canceled and exchanged as provided in this ARTICLE 3.
(d) Any portion of the Exchange Fund (including the proceeds
of any interest and other income received by the Paying Agent in respect of all
such funds) that remains unclaimed by the former stockholders of the Company six
months after the Effective Time shall be delivered to the Surviving Corporation.
Any former stockholders
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of the Company who have not theretofore complied with this ARTICLE 3 may
thereafter look only to the Surviving Corporation for payment of any Merger
Consideration, without any interest thereon, that may be payable in respect of
each share of Common Stock such stockholder holds as determined pursuant to this
Agreement.
(e) None of Parent, the Company, the Surviving Corporation,
the Paying Agent or any other Person shall be liable to any former holder of
shares of Common Stock for any amount properly delivered to a public official
pursuant to applicable abandoned property, escheat or similar laws.
(f) In the event any Certificate shall have been lost, stolen
or destroyed, upon the making of an affidavit of that fact by the Person
claiming such Certificate to be lost, stolen or destroyed and, if required by
the Surviving Corporation, the posting by such Person of a bond in such
reasonable amount as the Surviving Corporation may direct as indemnity against
any claim which may be made against it with respect to such Certificate, the
Paying Agent will issue in exchange for such lost, stolen or destroyed
Certificate the Merger Consideration payable in respect thereof pursuant to this
Agreement.
3.4. ADJUSTMENT OF MERGER CONSIDERATION. In the event that,
subsequent to the date of this Agreement but prior to the Effective Time, the
outstanding shares of Common Stock shall have been changed into a different
number of shares or a different class as a result of a stock split, reverse
stock split, stock dividend, subdivision, reclassification, split, combination,
exchange, recapitalization or other similar transaction, the Merger
Consideration shall be appropriately adjusted to eliminate the effects of that
event.
3.5. DISSENTING COMPANY STOCKHOLDERS. Notwithstanding any
provision of this Agreement to the contrary, if required by the DGCL but only to
the extent required thereby, Shares that are issued and outstanding immediately
prior to the Effective Time and which are held by holders of such Shares who
have properly exercised appraisal rights with respect thereto in accordance with
Section 262 of the DGCL (the "DISSENTING SHARES") will not be exchangeable for
the right to receive the Merger Consideration. Each holder of such Dissenting
Shares will be entitled to receive payment of the appraised value of such Shares
in accordance with the provisions of such Section 262 unless and until such
holder fails to perfect or effectively waive, withdraw or lose his or her rights
to appraisal and payment under the DGCL. If, after the Effective Time, any such
holder fails to perfect or effectively waives, withdraws or loses such right,
such Shares will thereupon be treated as if they had been converted into and to
have become exchangeable for, at the Effective Time, the right to receive the
Merger Consideration, without any interest or dividends thereon. The Company
will give Parent prompt notice of any demands received by the Company for
appraisals of Shares prior to the Effective Time and, prior to the Effective
Time, the Parent shall have the right to participate in all
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negotiations and proceedings with respect to such demands. The Company shall
not, except with the prior written consent of Parent, voluntarily make any
payment with respect to any demands for appraisal or offer to settle or settle
any such demands.
3.6. MERGER WITHOUT MEETING OF STOCKHOLDERS. Notwithstanding
the foregoing, in the event that Purchaser, or any other direct or indirect
subsidiary of Parent, shall acquire at least 90 percent of the outstanding
Shares, the parties hereto shall take all necessary and appropriate action to
cause the Merger to become effective as soon as practicable after the expiration
of the Offer without a meeting of stockholders of the Company, in accordance
with Section 253 of the DGCL.
ARTICLE 4
4. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company hereby
represents and warrants to Parent and Purchaser as of the date of this
Agreement as follows:
4.1. EXISTENCE; GOOD STANDING; CORPORATE AUTHORITY. Each of
the Company and each of its Subsidiaries is (i) duly organized, validly existing
and in good standing under the laws of its jurisdiction of incorporation and
(ii) is duly licensed or qualified to do business as a foreign corporation and
is in good standing under the laws of any other state of the United States in
which the character of the properties owned or leased by it or in which the
transaction of its business makes such qualification necessary, except where the
failure to be so qualified or to be in good standing would not have and would
not be likely to have, individually or in the aggregate, a material adverse
effect on the business, operations, or financial condition of the Company and
its Subsidiaries taken as a whole or the ability of the Company and its
Subsidiaries to conduct their business after the Closing consistent in all
material respects with the manner conducted in the past (a "MATERIAL ADVERSE
EFFECT"); provided, however, that "Material Adverse Effect" shall not include
any change, effect, condition, event or circumstance arising out of or
attributable to (i) any decrease in the market price of the Shares (but not any
change, effect, condition, event or circumstance underlying such decrease to the
extent that it would otherwise constitute a Material Adverse Effect), (ii)
changes, effects, conditions, events or circumstances that generally affect the
industries in which the Company or the Subsidiaries operate (including legal and
regulatory changes), (iii) general economic conditions or changes, effects,
conditions or circumstances affecting the securities markets generally or (iv)
changes arising from the consummation of the transactions contemplated hereby or
the announcement of the execution of this Agreement. Each of the Company and
each of its Subsidiaries has all requisite power and authority to own or lease
and operate its properties and carry on its business as now conducted. The
Company has heretofore made available to Parent true, accurate and complete
copies of
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the certificate of incorporation and by-laws, each as amended to date as and
currently in effect.
4.2. AUTHORIZATION, VALIDITY AND EFFECT OF AGREEMENTS. (a) The
Company has the requisite corporate power and authority to execute and deliver
this Agreement and all agreements and documents contemplated hereby (the
"ANCILLARY DOCUMENTS"), to perform its obligations hereunder and thereunder, and
to consummate the transactions contemplated hereby and thereby. The execution
and delivery of this Agreement and the Ancillary Documents by the Company and
the consummation by the Company of the transactions contemplated hereby and
thereby have been duly and validly authorized by all necessary corporate action
(including without limitation the unanimous approval of the independent
directors of the Company Board), and no other corporate proceedings on the part
of the Company are necessary to authorize this Agreement and the Ancillary
Documents or to consummate the transactions contemplated hereby and thereby
(other than the approval of this Agreement by the holders of a majority of the
Shares if required by applicable law). This Agreement has been, and any
Ancillary Document at the time of execution will have been, duly and validly
executed and delivered by the Company, and (assuming this Agreement and such
Ancillary Documents to which Parent and/or Purchaser is a party each constitutes
a valid and binding obligation of Parent and/or Purchaser as the case may be)
constitutes and will constitute valid and binding obligations of the Company,
enforceable in accordance with their respective terms, subject to applicable
bankruptcy, insolvency, moratorium or other similar laws relating to creditors'
rights and general principles of equity.
4.3. COMPLIANCE WITH LAWS. Neither the Company nor any of its
Subsidiaries is in violation of any order of any foreign, federal, state or
local judicial, legislative, executive, administrative or regulatory body or
authority or any court, arbitration board or tribunal ("GOVERNMENTAL ENTITY"),
or any foreign, federal, state or local law, statute, ordinance, rule,
regulation, order, judgment or decree ("LAWS") applicable to the Company or its
Subsidiaries or any of their respective properties or assets, except for
violations which, individually or in the aggregate, would not have or be likely
to have a Material Adverse Effect or prevent or delay or be likely to prevent or
delay the consummation of the transactions contemplated hereby.
4.4. CAPITALIZATION, ETC. The authorized capital stock of the
Company consists of 60,000,000 shares of Common Stock and 15,000,000 shares of
preferred stock, $.01 par value ("PREFERRED STOCK"). As of the date hereof, (a)
12,416,297 shares of Common Stock are outstanding, (b) no shares of Preferred
Stock are outstanding and no series of Preferred Stock has been established, (c)
9,670 shares of Common Stock are held by the Company in its treasury, and (d) no
shares of capital stock of the Company are held by the Company's Subsidiaries.
SECTION 4.4 of the disclosure letter, dated as of the date hereof, delivered by
the Company to Parent (the "COMPANY DISCLOSURE LETTER") sets
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forth a complete and accurate list, as of the date hereof, of (i) the number of
outstanding Options, (ii) the number of shares of Common Stock which can be
acquired upon the exercise of all outstanding Options, respectively, and (iii)
the exercise price of each outstanding Option. The Company has no outstanding
bonds, debentures, notes or other obligations entitling the holders thereof to
vote (or which are convertible into or exercisable for securities having the
right to vote) with the holders of the Common Stock on any matter. Except as set
forth in SECTION 4.4 of the Company Disclosure Letter, since September 30, 1999,
the Company (i) has not issued any shares of Common Stock other than upon the
exercise of Options, (ii) has granted no Options to purchase shares of Common
Stock under the Company Stock Plans to the executive officers of the Company,
(iii) has not granted any Award (as defined in the Trigen Energy Corporation
1994 Stock Incentive Plan) to any of the executive officers of the Company, and
(iv) has not split, combined or reclassified any of its shares of capital stock.
All issued and outstanding shares of Common Stock are duly authorized, validly
issued, fully paid, nonassessable and free of preemptive rights. Except as set
forth above in this SECTION 4.4 or in SECTION 4.4 of the Company Disclosure
Letter, there are no other shares of capital stock or voting securities of the
Company, and no existing options, warrants, calls, subscriptions, convertible
securities, and no stock appreciation rights or limited stock appreciation
rights or other rights (including rights of first refusal), agreements or
commitments which obligate the Company or any of its Subsidiaries to issue,
transfer or sell any shares of capital stock of, or equity interests in, or any
material assets of, the Company or any of its Subsidiaries. There are no
outstanding obligations of the Company or any Subsidiaries to repurchase, redeem
or otherwise acquire any shares of capital stock of the Company. At the
Effective Time, each outstanding Option, and each outstanding Award awarded or
granted under the Trigen Energy Corporation 1994 Stock Incentive Plan, shall be
canceled without the consent of any other party or the payment of any
consideration other than as provided in SECTION 3.2. After the Effective Time,
the Surviving Corporation will have no obligation to issue, transfer or sell any
shares of capital stock of the Company or the Surviving Corporation pursuant to
any Company Employee Benefit Plan. There are no voting trusts or other
agreements or understandings to which the Company or any of its Subsidiaries is
a party with respect to the voting of capital stock of the Company or any of its
Subsidiaries.
4.5. NO VIOLATION. (a) Except as set forth in SECTION 4.5 of
the Company Disclosure Letter, neither the execution and delivery by the Company
of this Agreement or any of the Ancillary Documents nor the consummation by the
Company of the transactions contemplated hereby or thereby will: (i) violate,
conflict with or result in a breach of any provision of the certificate of
incorporation or by-laws of the Company or any Subsidiary; (ii) violate,
conflict with, result in a breach of any provision of, constitute a default (or
an event which, with notice or lapse of time or both, would constitute a
default) under, result in the termination or in a right of termination of,
accelerate the performance required by or benefit obtainable under, result in
the triggering of any
-13-
payment or other obligations pursuant to, result in the creation of any lien,
pledge, charge, assessment, security interest, mortgage, claim, option,
easement, imperfection of title, tenancy or other legal or equitable right of
others, or other encumbrance of any character whatsoever (including, without
limitation, right of first refusal) (each an "ENCUMBRANCE") upon any of the
properties of the Company or any of its Subsidiaries under, or result in there
being declared void, voidable, or without further binding effect, any of the
terms, conditions or provisions of any note, bond, mortgage, indenture, deed of
trust or any license, franchise, permit, lease, contract, agreement or other
instrument, commitment 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
any of their respective properties is bound (each, a "CONTRACT" and,
collectively, "CONTRACTS"), except for any of the foregoing matters specified in
this clause (ii) which, individually or in the aggregate, would not have or be
likely to have a Material Adverse Effect or prevent or delay or be likely to
prevent or delay the consummation of the transactions contemplated hereby; (iii)
other than the filings provided for in SECTION 2.3 and the filings required
under the Exchange Act, require any consent, approval or authorization of, or
declaration, filing or registration with, any Governmental Entity, the lack of
which, individually or in the aggregate, would have or be likely to have a
Material Adverse Effect or, by law, prevent or delay the consummation of the
transactions contemplated hereby; or (iv) violate any Laws applicable to the
Company, any of its Subsidiaries or any of their respective assets, except for
violations which, individually or in the aggregate, would not have or be likely
to have a Material Adverse Effect or materially adversely affect or be likely to
materially adversely affect the ability of the Company to consummate the
transactions contemplated hereby, except for any of the foregoing matters
specified in clauses (ii), (iii) and (iv) which might result from either the
nature of Parent's other businesses or assets being such that the Company no
longer would qualify as an owner of a "Qualified Facility" or would be subject
to state regulatory requirements, including approvals, as a result of Parent's
or Purchaser's being a foreign controlled corporation.
(b) For purposes of this Agreement, a "Subsidiary" means, with
respect to the Parent, the Company or any other Person, any entity of which the
Parent, the Company or such other Person, as the case may be (either alone or
through or together with any other Subsidiary), owns, directly or indirectly,
stock or other equity interests the holders of which are generally entitled to
more than 50% of the vote for the election of the board of directors or other
governing body of such corporation or other legal entity; provided that for
purposes of this Agreement any joint venture with Cinergy Corp., a Delaware
corporation shall be a "Subsidiary" of Parent whether or not Parent owns 50% of
the stock or other equity interest of such joint venture.
4.6. COMPANY REPORTS; OFFER DOCUMENTS. (a) The Company has
made available to Parent each registration statement, report, proxy statement or
information statement (as defined under the Exchange Act) prepared by it since
December 31, 1996,
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each in the form (including exhibits and any amendments thereto) filed with the
SEC (collectively, the "COMPANY REPORTS"). As of their respective dates, the
Company Reports (i) complied as to form in all material respects with the
applicable requirements of the Securities Act of 1933, as amended, the Exchange
Act, and the rules and regulations thereunder and (ii) did not contain any
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements made therein, in the light
of the circumstances under which they were made, not misleading, except for such
untrue statements or omissions which, individually or in the aggregate, would
not have or be likely to have a Material Adverse Effect. Each of the
consolidated balance sheets of the Company included in the Company Reports
(including the related notes and schedules) fairly presented in all material
respects the consolidated financial position of the Company and its Subsidiaries
as of its date, and each of the consolidated statements of operations, cash
flows and stockholders' equity of the Company included in or incorporated by
reference into the Company Reports (including the related notes and schedules)
fairly presented in all material respects the results of operations, cash flows
and shareholders' equity of the Company and its Subsidiaries for the periods set
forth therein, in each case in accordance with generally accepted accounting
principles ("GAAP") consistently applied during the periods involved, except as
may be noted therein and except that the unaudited interim financial statements
are subject to normal year-end adjustments and do not contain all of the
footnote disclosures required by GAAP.
(b) None of the Schedule 14D-9, the information statement, if
any, filed by the Company in connection with the Offer pursuant to Rule 14f-1
under the Exchange Act (the "INFORMATION STATEMENT"), any schedule required to
be filed by the Company with the SEC or any amendment or supplement thereto, at
the respective times such documents are filed with the SEC or first published,
sent or given to the Company's stockholders, will contain any untrue statement
of a material fact or will 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 are made, not misleading except that no
representation is made by the Company with respect to information supplied by
the Parent or Purchaser specifically for inclusion in the Schedule 14D-9 or
Information Statement or any amendment or supplement. None of the information
supplied or to be supplied by the Company for inclusion or incorporation by
reference in the Offer Documents, at the time such documents are filed with the
SEC, or first published, sent or given to the Company's stockholders, will
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 light of the circumstances under which they were made, not
misleading. If at any time prior to the Effective Time the Company shall obtain
knowledge of any facts with respect to itself, any of its officers and directors
or any of its Subsidiaries that would require the supplement or amendment to the
Schedule 14D-9 or the information supplied by the Company for inclusion or
incorporation by reference in the Offer Documents in
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order to make the statements therein, in the light of the circumstances under
which they were made, not misleading, or to comply with applicable Laws, such
amendment or supplement shall be promptly filed with the SEC and, as required by
Law, disseminated to the stockholders of the Company, and in the event Parent
shall advise the Company as to its obtaining knowledge of any facts that would
make it necessary to supplement or amend any of the foregoing documents, the
Company shall promptly amend or supplement such document as required and
distribute the same to its stockholders.
4.7. LITIGATION. As of the date hereof, except as set forth in
the Company Reports or in SECTION 4.7 of the Company Disclosure Letter or as may
have been or may be brought as a result of Parent's offer to purchase the
Company and related transactions, (i) there are no claims, actions, suits,
proceedings, arbitrations, investigations or audits (collectively, "LITIGATION")
pending or, to the knowledge of the Company, threatened against the Company or
any of its Subsidiaries, at law or in equity (other than, in the case of
Litigation by non-Governmental Entities, in the ordinary course of business),
except Litigation which, individually or in the aggregate, would not have or be
likely to have a Material Adverse Effect or prevent or delay or be likely to
prevent or delay the consummation of the transactions contemplated hereby, nor
does the Company have knowledge of any facts or circumstances that it believes
would be likely to form the basis for any such claims, actions, suits,
proceedings, arbitrations, investigations or audits; (ii) no Governmental Entity
has indicated in writing an intention to conduct any audit, investigation or
other review with respect to the Company or any of its Subsidiaries, except for
audits, investigations or reviews which, individually or in the aggregate, would
not have or be likely to have a Material Adverse Effect or prevent or delay or
be likely to prevent or delay the consummation of the transactions contemplated
hereby, if adversely determined; and (iii) there is no material judgment,
decree, order, injunction, writ or rule of any court, governmental department,
commission, agency, instrumentality or authority or any arbitrator outstanding
against the Company or any Subsidiary (except that the Company makes no
representation with respect to any such items as may result from litigation
brought as a result of Parent's offer to purchase the Company and related
transactions).
4.8. ABSENCE OF CERTAIN CHANGES. Since September 30, 1999,
there has not been (i) any event, occurrence or condition, except any event,
occurrence or condition which, individually or in the aggregate, would not have
or be likely to have a Material Adverse Effect, (ii) any amendments or changes
in the certificate of incorporation or by-laws of the Company, (iii) any
material change by the Company or any of its Subsidiaries in its accounting
methods, principles or practices, (iv) any declaration, setting aside or payment
of any dividend or distribution in respect of any capital stock of the Company
or any redemption, repurchase or other acquisition of any of its securities
(other than regular quarterly dividends on the shares of Common Stock in an
amount no greater than $.035), or (v) other than pursuant to the contractual
arrangements referred to in Section 4.10, any
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increase in or establishment of any bonus, insurance, severance, deferred
compensation, pension, retirement, profit sharing, stock option (including,
without limitation, the granting of stock options, stock appreciation rights,
performance awards, or restricted stock awards), stock purchase or other
employee benefit plan, or any other increase in the compensation payable or to
become payable to any officers or key employees of the Company or any
Subsidiary, except in the ordinary course of business consistent with past
practice.
4.9. TAXES. Except as set forth in SECTION 4.9 of the Company
Disclosure Letter:
(a) The Company and its Subsidiaries have timely filed (taking
into account extensions) all material Tax Returns (as defined below) required to
be filed by any of them. All such Tax Returns are true, correct and complete,
except for such instances which, individually or in the aggregate, would not
have or be likely to have a Material Adverse Effect.
(b) The Company and its Subsidiaries have paid all Taxes (as
defined below) required to be paid by any of them or claimed or asserted by any
taxing authority to be due, except for failures to so pay which, individually or
in the aggregate, would not have or be likely to have a Material Adverse Effect,
and except for those Taxes being contested in good faith and for which adequate
reserves have been established in the financial statements included in the
Company Reports in accordance with GAAP.
(c) The most recent financial statements contained in the
Company Reports reflect full reserves for all Taxes payable by the Company and
its Subsidiaries for all Tax periods and portions thereof through the date of
such financial statements, except to the extent that any failure to so reserve,
individually or in the aggregate, would not have or be likely to have a Material
Adverse Effect.
For purposes of this Agreement,
"TAX" (and, with correlative meaning, "TAXES") means any federal,
state, local or foreign income, gross receipts, property, sales, use, license,
excise, franchise, employment, payroll, premium, withholding, alternative or
added minimum, ad valorem, transfer or excise tax, or any other tax, custom,
duty, governmental fee or other like assessment or charge of any kind
whatsoever, together with any interest or penalty, imposed by any Governmental
Entity.
"TAX RETURN" means any return, report or similar statement required to
be filed with respect to any Tax (including any attached schedules), including,
without limitation, any information return, claim for refund, amended return or
declaration of estimated Tax.
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4.10. EMPLOYEE BENEFIT PLANS. (a) For purposes of this
Agreement, "COMPANY EMPLOYEE BENEFIT PLANS" means all "employee benefit plans,"
as defined in Section 3(3) of the Employee Retirement Income Security Act of
1974, as amended ("ERISA"), and all other material employee benefit or
compensation arrangements, including, without limitation, any such arrangements
providing severance pay, sick leave, vacation pay, salary continuation for
disability, retirement benefits, deferred compensation, bonus pay, incentive
pay, stock options (including those held by directors, employees, and
consultants), hospitalization insurance, medical insurance, life insurance,
scholarships or tuition reimbursements, that are maintained by the Company or
any of its Subsidiaries or to which the Company or of its Subsidiaries is
obligated to contribute thereunder for current or former directors, employees,
independent contractors, consultants and leased employees of the Company or any
of its Subsidiaries.
(b) Except as set forth in SECTION 4.10 of the Company
Disclosure Letter, (i) the execution of, and performance of the transactions
contemplated in, this Agreement will not, either alone or upon the occurrence of
subsequent events, result in any payment (whether of severance pay or
otherwise), acceleration, forgiveness of indebtedness, vesting, distribution,
increase in benefits or obligation to fund benefits with respect to any employee
or Company Employee Benefit Plan, and (ii) there are no material employment or
severance agreements or severance policies applicable to the Company or any of
its Subsidiaries.
(c) The Company Employee Benefit Plans have been maintained in
all material respects in accordance with their terms and with all provisions of
ERISA and the Internal Revenue Code of 1986, as amended (including rules and
regulations thereunder) (the "CODE") and all other applicable federal and state
laws and regulations except for such failures to so maintain which, individually
or in the aggregate, would not have or be likely to have a Material Adverse
Effect.
4.11. LABOR AND EMPLOYMENT MATTERS. Except for such matters
which, individually or in the aggregate, would not have or be likely to have a
Material Adverse Effect, there is no (i) unfair labor practice, labor dispute
(other than routine individual grievances) or labor arbitration proceeding
pending or, to the knowledge of the Company, threatened against the Company or
any of its Subsidiaries relating to their businesses, (ii) activity or
proceeding by a labor union or representative thereof to organize any employees
of the Company or any of its Subsidiaries, or (iii) lockouts, strikes,
slowdowns, work stoppages or threats thereof by or with respect to such
employees. The Company is in compliance with all Laws regarding employment,
employment practices, terms and conditions of employment and wages and Laws,
except for such noncompliance which, either individually or in the aggregate,
would not have or be likely to have a Material Adverse Effect.
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4.12. BROKERS. Except for Credit Suisse First Boston
Corporation (the "FINANCIAL ADVISOR"), the arrangements of which have been
disclosed to Parent in writing, no broker, finder or financial advisor is
entitled to any brokerage, finder's or other fee or commission in connection
with the transactions contemplated by this Agreement that is based upon any
arrangement made by or on behalf of the Company.
4.13. PERMITS. The Company and its Subsidiaries are in
possession of all franchises, grants, authorizations, licenses, permits,
easements, variances, exceptions, consents, certificates, approvals and orders
of any Governmental Entity necessary for the Company and its Subsidiaries to
own, lease and operate its properties or to lawfully conduct their respective
businesses as presently conducted (the "COMPANY PERMITS"), except where the
failure to have any of the Company Permits, individually or in the aggregate,
would not have or be likely to have a Material Adverse Effect. As of the date
hereof, (a) no modification, revocation, suspension or cancellation of any of
the Company Permits is pending or, to the knowledge of the Company threatened,
and (b) no Company Permit is subject to any outstanding order, decree, judgment,
stipulation or investigation that would be likely to affect such Company Permit,
except, in the case of (a) or (b), any suspensions or cancellations which,
individually or in the aggregate, would not have or be likely to have a Material
Adverse Effect.
4.14. ENVIRONMENTAL MATTERS. (a) Except as set forth in the
Company Reports filed prior to the date hereof or as would not, individually or
in the aggregate, have or be likely to have a Material Adverse Effect:
(i) the Company and each of its Subsidiaries has at
all times been operated, and is, in compliance with all applicable Environmental
Laws (as defined below);
(ii) the Company and each of its Subsidiaries has
obtained or has applied for all applicable environmental, health and safety
permits, licenses, variances, approvals and authorizations required under
Environmental Laws (collectively, "ENVIRONMENTAL PERMITS") necessary for the
conduct of its operations, and such Environmental Permits are in effect or,
where applicable, a renewal application has been timely filed, and the Company
and its Subsidiaries are in compliance with all terms and conditions of such
Environmental Permits;
(iii) there is no Environmental Claim (as defined
below) pending or, to the knowledge of the Company, threatened against the
Company or any of its Subsidiaries;
(iv) to the knowledge of the Company, there have been
no Releases (as defined below) of any Hazardous Materials (as defined below)
that would be
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reasonably likely to form the basis of any Environmental Claim against the
Company, any of its Subsidiaries or any predecessor thereof; and
(v) none of the properties currently owned, leased or
operated, or, to the knowledge of the Company, formerly owned, leased or
operated, by the Company, its Subsidiaries or any predecessor thereof, are now,
or were in the past, listed on the National Priorities List of Superfund Sites,
any analogous state list or any database listing sites for the purpose of
investigation under Environmental Laws.
(b) For purposes of this Agreement:
(i) "ENVIRONMENTAL CLAIM" means any and all
administrative, regulatory or judicial actions, suits, demands, demand letters,
information requests, directives, claims, liens, investigations, proceedings or
notices of noncompliance, violation or status as a potentially responsible
Person or otherwise liable party by any Person (including any Governmental
Entity) relating to or alleging potential liability (including, without
limitation, potential responsibility for or liability for enforcement,
investigatory costs, cleanup costs, response costs, removal costs, natural
resources damages, property damages, personal injuries or penalties) relating to
(A) the presence, or Release or threatened Release into the environment, of any
Hazardous Materials at any location; or (B) circumstances forming the basis of
any violation or alleged violation of any Environmental Law; or (C) any and all
claims by any third party seeking damages, contribution, indemnification, cost
recovery, compensation or injunctive relief relating to any Environmental Laws.
(ii) "ENVIRONMENTAL LAWS" means all applicable
federal, state and local laws, rules, requirements, regulations and judicial or
administrative opinions, orders or decrees, and any common law causes of action,
in each case relating to pollution, the environment (including, without
limitation, ambient air, surface water, groundwater, land surface or subsurface
strata) or protection of human or employee health or safety including, without
limitation, laws and regulations relating to Releases of Hazardous Materials.
(iii) "HAZARDOUS MATERIALS" means (A) any petroleum
or any by-products or fractions thereof, asbestos or asbestos-containing
materials, urea formaldehyde foam insulation, any form of natural gas,
explosives, polychlorinated biphenyls ("PCBS"), radioactive materials, ionizing
radiation or electromagnetic field radiation; (B) any chemicals, materials or
substances which are included in the definition of "wastes," "hazardous
substances," "hazardous wastes," "hazardous materials," "extremely hazardous
substances," "toxic substances," "toxic pollutants," "pollutants,"
"contaminants," or words of similar import under any Environmental Law; and (C)
any other chemical, material or substance, regulated under any Environmental
Law.
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(iv) "RELEASE" means any release, spill, emission,
leaking, injection, deposit, disposal, discharge, dispersal, leaching or
migration into the environment (including without limitation ambient air,
atmosphere, soil, surface water, groundwater or property).
4.15. INSURANCE POLICIES. The Company and its Subsidiaries
have obtained and maintained in full force and effect insurance with insurance
companies or associations in such amounts, on such terms and covering such
risks, as is customarily carried by reasonably prudent persons conducting
businesses or owning or leasing assets similar to those conducted, owned or
leased by the Company, except any failures to obtain or maintain such insurance
which, individually or in the aggregate, would not have or be likely to have a
Material Adverse Effect.
4.16. OPINION OF FINANCIAL ADVISOR. The Special Committee has
received the written opinion of the Financial Advisor to the effect that, as of
the date hereof, the proposed consideration to be received, in the Offer and
Merger Agreement, taken together, by the holders of shares (other than Parent
and its affiliates) of the Company pursuant to the Offer and the Merger is fair
to such holders of shares (other than Parent and its affiliates) from a
financial point of view (the "OPINION"). The Company hereby represents and
warrants that it has been authorized by the Financial Advisor to permit the
inclusion of the Opinion and references thereto, subject to prior review and
consent by the Financial Advisor (such consent not to be unreasonably withheld),
in the Offer to Purchase, the Schedule TO, the Schedule 14D-9 and the Proxy
Statement (as defined below).
4.17. STATE TAKEOVER STATUTES. The Company Board has taken all
necessary action so that the restrictions contained in Section 203 of the DGCL
applicable to a "business combination" (as defined in such Section 203) will not
apply to the execution, delivery or performance of the Agreement or to the
Offer, the Merger or the transactions contemplated hereby or the letter
agreement, dated January 19, 2000 (the "▇▇▇▇▇▇ STOCK PURCHASE AGREEMENT"),
between ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇ and Parent relating to the purchase by Parent or
Purchaser of the Shares owned by ▇▇. ▇▇▇▇▇▇.
4.18. REQUIRED VOTE OF COMPANY STOCKHOLDERS. Unless the Merger
may be consummated in accordance with Section 253 of the DGCL, the only vote of
the stockholders of the Company required to adopt this Agreement, the Ancillary
Documents and to approve the Merger and the transactions contemplated hereby and
thereby, is the affirmative vote of the holders of a majority of the outstanding
shares of Common Stock.
4.19. REGULATION AS A UTILITY. The Company and/or the
Subsidiaries are regulated as a public utility in the states set forth on
SECTION 4.19 of the Company Disclosure Letter. Except as set forth on SECTION
4.19 of the Company Disclosure Letter, neither the Company nor any "subsidiary
company" or "affiliate" of the Company is
-21-
subject to regulation as a public utility or public service company (or similar
designation) by the United States or any state of the United States. All filings
required to be made by the Company or any of its Subsidiaries since December 31,
1998, under any applicable laws or orders relating to the regulation of public
utilities, have been filed with the appropriate public utility commission,
health agency or other appropriate governmental entity (including, without
limitation, to the extent required, the state public utility regulatory agencies
in the states identified in SECTION 4.19 of the Company Disclosure Letter), as
the case may be, including all forms, statements, reports, agreements (oral or
written) and all documents, exhibits, amendments and supplements appertaining
thereto, including but not limited to all rates, tariffs, franchises, service
agreements and related documents and all such filings complied, as of their
respective dates, with all applicable requirements of the appropriate laws or
orders, except any filings or failures to comply which, individually or in the
aggregate, would not have or be likely to have, a Material Adverse Effect.
Except as specified on SECTION 4.19 of the Company Disclosure Letter, no
approval of any public utilities regulatory authority (including all public
utility control or public service commissions and similar state regulatory
bodies) is required for the Company's execution and delivery of this Agreement
or the performance of its obligations under this Agreement or the consummation
of the transactions contemplated hereby.
4.20. YEAR 2000 COMPLIANCE. (a) The computer systems of the
Company and its Subsidiaries are Year 2000 Compliant, except for such failures
to be Year 2000 Compliant as would not, individually or in the aggregate, have
or be likely to have a Material Adverse Effect. All inventory, products and
independently developed applications of the Company and its Subsidiaries that
is, consists of, includes or uses computer software is Year 2000 Compliant,
except for such failures to be Year 2000 Compliant as would not, individually or
in the aggregate, have or be likely to have a Material Adverse Effect. To the
knowledge of the Company, any failures on the part of the customers of and
suppliers to the Company and its Subsidiaries to be Year 2000 Compliant will
not, individually or in the aggregate, have or be likely to have a Material
Adverse Effect.
(b) The term "YEAR 2000 COMPLIANT", with respect to a computer
system or software program, means that such computer system or program: (i) is
capable of recognizing, processing, managing, representing, interpreting and
manipulating correctly date-related data for dates earlier and later than
January 1, 2000; (ii) has the ability to provide date recognition for any data
element without limitation; (iii) has the ability to function automatically into
and beyond the year 2000 without human intervention and without any change in
operations associated with the advent of the year 2000; (iv) has the ability to
interpret data, dates and time correctly into and beyond the year 2000; (v) has
the ability not to produce noncompliance in existing data, nor otherwise corrupt
such data, into and beyond the year 2000; (vi) has the ability to process
correctly after January 1,
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2000, data containing dates before that date; and (vii) has the ability to
recognize all "leap year" dates, including February 29, 2000.
ARTICLE 5
5. REPRESENTATIONS AND WARRANTIES OF PARENT AND PURCHASER. Parent and
Purchaser hereby represent and warrant to the Company as of the date of this
Agreement as follows:
5.1. EXISTENCE; GOOD STANDING; CORPORATE AUTHORITY. Each of
Parent and Purchaser is a corporation duly incorporated, validly existing and in
good standing under the laws of its jurisdiction of incorporation and has all
requisite corporate power and authority to own, operate and lease its properties
and carry on its business as now conducted, except where the failure to have
such power and authority, individually or in the aggregate, would not materially
adversely affect the ability of Parent and Purchaser to consummate the
transactions contemplated hereby and by the Ancillary Documents.
5.2. AUTHORIZATION, VALIDITY AND EFFECT OF AGREEMENTS. Each of
Parent and Purchaser has the requisite corporate power and authority to execute
and deliver this Agreement and the Ancillary Documents and to consummate the
transactions contemplated hereby and thereby. The execution and delivery of this
Agreement and the Ancillary Documents and the consummation by Parent and
Purchaser of the transactions contemplated hereby and thereby have been duly and
validly authorized by the respective Boards of Directors of Parent and Purchaser
and by Parent as the sole stockholder of Purchaser and no other corporate
proceedings on the part of Parent or Purchaser are necessary to authorize this
Agreement and the Ancillary Documents or to consummate the transactions
contemplated hereby and thereby. This Agreement has been, and any Ancillary
Documents at the time of execution will have been, duly and validly executed and
delivered by Parent and Purchaser, and (assuming this Agreement and such
Ancillary Documents each constitutes a valid and binding obligation of the
Company) constitutes and will constitute the valid and binding obligations of
each of Parent and Purchaser, enforceable in accordance with their respective
terms, subject to applicable bankruptcy, insolvency, moratorium or other similar
laws relating to creditors' rights and general principles of equity.
5.3. NO VIOLATION. Neither the execution and delivery of this
Agreement or any of the Ancillary Documents by the Parent and Purchaser, nor the
consummation by them of the transactions contemplated hereby or thereby, will
(i) violate, conflict with or result in any breach of any provision of the
respective certificates of incorporation or by-laws of the Parent or Purchaser;
(ii) other than the filings provided for in SECTION 2.3 and the filings required
under the Exchange Act, require any consent, approval or authorization of, or
declaration, filing or registration with, any Governmental Entity, the lack of
which, individually or in the aggregate, would have or be likely to have a
Material
-23-
Adverse Effect on the ability of the Parent or Purchaser to consummate the
transactions contemplated hereby, (iii) violate any Laws applicable to the
Parent or the Purchaser or any of their respective assets, except for violations
which, individually or in the aggregate, would not have or be likely to have a
Material Adverse Effect on the ability of the Parent or Purchaser to consummate
the transactions contemplated hereby, and (iv) violate, conflict with or result
in a breach of any provision of, constitute a default (or an event which, with
notice or lapse of time or both, would constitute a default) under, result in
the termination or in a right of termination of, accelerate the performance
required by or benefit obtainable under, result in the creation of any
Encumbrance upon any of the properties of the Parent or Purchaser under, or
result in there being declared void, voidable, or without further binding
effect, any of the terms, conditions or provisions of any note, bond, mortgage,
indenture, deed of trust or any license, franchise, permit, lease, contract,
agreement or other instrument, commitment or obligation to which the Parent or
Purchaser is bound, except for any of the foregoing matters which, individually
or in the aggregate, would not materially adversely affect the ability of Parent
and Purchaser to consummate the transactions contemplated hereby and by the
Ancillary Documents.
5.4. INTERIM OPERATIONS OF PURCHASER. Purchaser was formed
solely for the purpose of engaging in the transactions contemplated hereby, has
engaged in no other business activities and has conducted its operations as
contemplated hereby.
5.5. FINANCING. At the consummation of the Offer and at the
Effective Time, Parent will have or will cause the Purchaser to have funds
available to it sufficient to consummate the Offer and the Merger on the terms
contemplated hereby.
5.6 INFORMATION SUPPLIED. None of the Offer Documents or any
amendment or supplement thereto, at the respective times such documents are
filed with the SEC or first published, sent or given to the Company's
stockholders, will contain any untrue statement of a material fact or will 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 are made, not misleading except that no representation is made by the
Parent or Purchaser with respect to information supplied by the Company
specifically for inclusion in the Offer Documents or any amendment or
supplement. None of the information supplied or to be supplied by Parent or
Purchaser for inclusion or incorporation by reference in the Schedule 14D-9
will, at the time such documents are filed with the SEC or distributed to the
Company's stockholders, contains any untrue statements of a material fact or
omit to state any material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading. If at any time prior to the Effective Time the Parent
or Purchaser shall obtain knowledge of any facts with respect to itself, any of
its officers and directors or any of its Subsidiaries that would require the
supplement or amendment to the
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Offer Documents or the information supplied by Parent or Purchaser for inclusion
or incorporation by reference in the Schedule 14D-9 in order to make the
statements therein, in the light of the circumstances under which they are made,
not misleading, or to comply with applicable Laws, such amendment or supplement
shall be promptly filed with the SEC and, as required by Law, disseminated to
the stockholders of the Company, and in the event the Company shall advise
Parent or Purchaser as to its obtaining knowledge of any facts that would make
it necessary to supplement or amend any of the foregoing documents, Parent or
Purchaser shall promptly amend or supplement such document as required and
distribute the same to the Company's stockholders.
ARTICLE 6
6. COVENANTS.
6.1. ALTERNATIVE PROPOSALS. The Company agrees (a) that,
between the date hereof and the Effective Time, neither it nor any of its
Subsidiaries shall, and it shall direct and use its best efforts to cause its
officers, directors, employees, agents and representatives (including, without
limitation, any investment banker, attorney or accountant retained by it or any
of its Subsidiaries) not to, initiate, solicit or encourage, directly or
indirectly, any inquiries or the making or implementation of any proposal or
offer (including, without limitation, any proposal or offer to its stockholders)
with respect to a merger, acquisition, consolidation or similar transaction
involving, or any purchase of all or any significant portion of the assets or
any equity securities of, the Company or any of its Subsidiaries (any such
proposal or offer being hereinafter referred to as an "ALTERNATIVE PROPOSAL") or
engage in any negotiations concerning, or provide any confidential information
or data to, afford access to the properties, books or records of the Company or
any of its Subsidiaries to, or have any discussions with, any Person relating to
an Alternative Proposal, or otherwise facilitate any effort or attempt to make
or implement an Alternative Proposal; (b) that it will immediately cease and
cause to be terminated any existing activities, discussions or negotiations with
any parties conducted heretofore with respect to any of the foregoing, and it
will take the necessary steps to inform such parties of the obligations
undertaken in this SECTION 6.1; and (c) that it will notify Parent immediately
of the identity of the potential acquirer and the terms of such Person's or
entity's proposal if any such inquiries or proposals are received by, any such
information is requested from, or any such negotiations or discussions are
sought to be initiated or continued with, the Company; provided, however, that
nothing contained in this SECTION 6.1 shall prohibit the Company or its
Subsidiaries, upon approval of the Special Committee, from (i) prior to the
acceptance for payment of shares of Common Stock by Purchaser pursuant to the
Offer, furnishing information to, or entering into discussions or negotiations
with, any Person or entity that makes an unsolicited bona fide proposal to
acquire the Company pursuant to a merger, consolidation, share exchange,
purchase of substantially all of the assets of the Company, a business
combination or
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other similar transaction, if, and only to the extent that, (A) such proposal
was not initially solicited, encouraged or knowingly facilitated by the Company,
its Subsidiaries or their agents in violation of this SECTION 6.1, (B) such
proposal is not subject to a financing condition and involves consideration that
provides a higher value per share than the Merger Consideration, (C) the Company
Board, or the Company's directors constituting the Special Committee, determines
in good faith based on the advice of outside counsel that the failure to take
such action would be inconsistent with its fiduciary duties to stockholders
imposed by Law, and (D) prior to furnishing information to, or entering into
discussions or negotiations with, such Person or entity, the Company provides
written notice to Parent to the effect that it is furnishing information to, or
entering into discussions or negotiations with, such Person or entity. The
Company shall keep Parent immediately informed of the status of any such
discussions or negotiations (including the identify of such Person or entity and
the terms of any proposal); and (ii) to the extent applicable, complying with
Rule 14e-2(a) promulgated under the Exchange Act with regard to an Alternative
Proposal. Nothing in this SECTION 6.1 shall (x) permit the Company to terminate
this Agreement (except as specifically provided in ARTICLE 8 hereof), (y) permit
the Company to enter into any agreement with respect to an Alternative Proposal
during the term of this Agreement, or (z) affect any other obligation of the
Company under this Agreement. Notwithstanding anything to the contrary in this
SECTION 6.1, Parent and Purchaser have advised the Company Board that they have
no intention of selling the Parent Shares or the Shares acquired by Purchaser in
the Offer pursuant to such an Alternative Proposal.
6.2. INTERIM OPERATIONS. (a) From the date of this Agreement
until the Effective Time, except as set forth in SECTION 6.2 of the Company
Disclosure Letter, unless Parent has consented in writing thereto, the Company
shall, and shall cause its Subsidiaries to, (i) conduct its operations according
to its ordinary course of business consistent with past practice; (ii) use its
reasonable best efforts to preserve intact its business organizations and
goodwill, keep available the services of its officers and employees, and
maintain satisfactory relationships with those Persons having business
relationships with them; and (iii) upon the discovery thereof, promptly notify
Parent of the existence of any breach of any representation or warranty
contained herein (or, in the case of any representation or warranty that makes
no reference to Material Adverse Effect, any breach of such representation or
warranty in any material respect) or the occurrence of any event that would
cause any representation or warranty contained herein no longer to be true and
correct (or, in the case of any representation or warranty that makes no
reference to Material Adverse Effect, to no longer be true and correct in any
material respect).
(b) From and after the date of this Agreement until the
Effective Time, except as set forth in SECTION 6.2 of the Company Disclosure
Letter, unless Parent has
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consented in writing thereto, the Company shall not, and shall cause each of its
Subsidiaries not to:
(i) amend its certificate of incorporation or
by-laws;
(ii) issue, sell or pledge any shares of its
capital stock or other ownership interest in the Company (other than issuances
of Common Stock in respect of any exercise of stock options outstanding on the
date hereof and disclosed in SECTION 4.4 of the Company Disclosure Letter) or
its Subsidiaries, or any securities convertible into or exchangeable for any
such shares or ownership interest, or any rights, warrants or options to acquire
or with respect to any such shares of capital stock, ownership interest, or
convertible or exchangeable securities (or derivative instruments in respect of
the foregoing);
(iii) effect any stock split or otherwise change
its capitalization as it exists on the date hereof, or directly or indirectly
redeem, purchase or otherwise acquire any shares of its capital stock or
capital stock of its Subsidiaries;
(iv) (A) grant, confer or award any option, warrant,
convertible security or other right to acquire any shares of its capital stock
or take any action to cause to be exercisable any otherwise unexercisable option
under any Company Stock Plan (except as otherwise required by the terms of such
unexercisable options), (B) accelerate or waive any or all of the goals,
restrictions or conditions imposed under any Award, or (C) issue, sell, grant or
award any shares of capital stock or any right to acquire shares of capital
stock under any Company Stock Plan (except as otherwise required by such plan);
(v) declare, set aside or pay any dividend
or make any other distribution or payment with respect to any shares of its
capital stock or other ownership interests (other than such payments by the
Subsidiaries to the Company);
(vii) mortgage or otherwise encumber or subject
to any Encumbrance, or sell, lease or otherwise dispose of any of its property
or assets (including capital stock of its Subsidiaries), other than Encumbrances
that are incurred in the ordinary course of business, consistent with past
practice, the sale or disposition of inventory in the ordinary course of
business or the sale, lease, encumbrance or other disposition of assets which,
individually or in the aggregate, are obsolete or not material to the Company
and its Subsidiaries taken as a whole;
(viii) (A) acquire by merger, purchase or any other
manner, any business or entity or any division thereof for consideration in
excess of $1,000,000 in the aggregate; or (B) otherwise acquire any assets which
would be material, individually or in the aggregate, to the Company and its
Subsidiaries taken as a whole, except for purchases of inventory, supplies or
capital equipment in the ordinary course of business consistent
- 27 -
with past practice and the acquisition of assets for consideration in excess of
$1,000,000 in the aggregate;
(ix) except for borrowings under existing credit
facilities and excepting transactions between the Company and any Subsidiary,
incur or assume any long-term or short-term debt or issue any debt securities or
assume, guarantee or otherwise become liable or responsible (whether directly,
contingently or otherwise) for the debt or other obligations of any other
Person, other than obligations (other than debt) of its Subsidiaries incurred in
the ordinary course of business;
(x) (A) make any loans, advances or capital
continuations to, or investments in, any other Person (other than Subsidiaries),
except with respect to commitments outstanding as of the date hereof, or (B)
forgive any loans, advances or capital continuations to, or investments in, any
other Person (other than Subsidiaries), for an aggregate amount in excess of
$1,000,000 (as to clauses (A) and (B) collectively);
(xi) except as contemplated by this Agreement or
in the ordinary course of business consistent with past practices (A) increase
the compensation payable or to become payable to its officers or employees, (B)
other than in accordance with existing policies and arrangements, grant any
severance pay to its officers, directors or employees or (C) establish, adopt,
enter into or amend any collective bargaining, bonus, profit sharing, thrift,
compensation, stock option, restricted stock, pension, retirement, deferred
compensation, employment, termination, severance or other plan, agreement,
trust, fund, policy or arrangement for the benefit of any director, officer or
employee, except to the extent required by applicable law or the terms or a
collective bargaining agreement or a contractual obligation existing on the date
hereof;
(xii) change any of the accounting principles or
practices used by the Company, except as may be required by GAAP;
(xiii) pay, discharge or satisfy any material claims,
material liabilities or material obligations (absolute, accrued, asserted or
unasserted, contingent or otherwise), other than the payment, discharge or
satisfaction (A) of any such material claims, material liabilities or material
obligations in the ordinary course of business and consistent with past practice
or (B) of material claims, material liabilities or material obligations
reflected or reserved against in, or contemplated by, the consolidated financial
statements (or the notes thereto) contained in the Company Reports;
(xiv) agree to the settlement of any claim or
litigation, which settlement would have a Material Adverse Effect;
(xv) make, change or rescind any material Tax
election (other than recurring elections that customarily are made in connection
with the filing of any Tax
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Return; provided that any such elections are consistent with the past practices
of the Company or its Subsidiaries, as the case may be) or settle or compromise
any material Tax liability that is the subject of any audit, claim for
delinquent Taxes, examination, action, suit, proceeding or investigation by any
Taxing authority;
(xv) except to the extent required under
existing employee and director benefit plans, agreements or arrangements as in
effect on the date of this Agreement or as contemplated by this Agreement,
accelerate the payment, right to payment or vesting of any bonus, severance,
profit sharing, retirement, deferred compensation, stock option, insurance or
other compensation or benefits
(xix) enter into any agreement, understanding
or commitment that restrains, limits or impedes the ability of the Company or
any of its Subsidiaries to compete with or conduct any business or line of
business, including geographic limitations on the activities of the Company or
any of its Subsidiaries;
(xx) materially modify, amend or terminate
any material contract, or waive, relinquish, release or terminate any right or
claim, in each case, except in the ordinary course of business consistent with
past practice;
(xxi) other than with respect to commitments
outstanding as of the date hereof, make any capital expenditures in the
aggregate for the Company and its Subsidiaries in excess $1,000,000, in the
aggregate;
(xxii) take any action to cause the Common Stock to
be delisted from the New York Stock Exchange prior to the completion of the
offer; and
(xxiii) agree in writing or otherwise to take any of
the foregoing actions.
6.3. COMPANY STOCKHOLDER APPROVAL; PROXY STATEMENT. (a) If
approval or action in respect of the Merger by the stockholders of the Company
is required by applicable Law, the Company, acting through the Company Board,
shall (i) call a meeting of its stockholders (the "STOCKHOLDERS MEETING") for
the purpose of voting upon this Agreement and the transactions contemplated
hereby, (ii) hold the Stockholders Meeting as soon as practicable following the
purchase of shares of Common Stock pursuant to the Offer, and (iii) unless
taking such action would be inconsistent with the fiduciary duties of the
directors of the Company or of the Company's directors constituting the Special
Committee, as determined by such directors in good faith, and after consultation
with independent legal counsel, recommend to its stockholders the approval of
this Agreement and the transactions contemplated hereby. In the event a
Stockholders Meeting is called, the Company shall use its reasonable best
efforts to solicit from the stockholders of the Company proxies in favor of the
approval and adoption of this Agreement, and the
- 29 -
transactions contemplated hereby and to secure the vote or consent of
stockholders required by the DGCL to approve and adopt this Agreement, unless
otherwise required by the applicable fiduciary duties of the directors of the
Company or of the Company's directors constituting the Special Committee, as
determined by such directors in good faith, and after consultation with
independent legal counsel. This Agreement must be submitted to the stockholders
of the Company whether or not the Company Board determines at any time
subsequent to declaring its advisability that the Agreement is no longer
advisable and recommends that the stockholders reject it.
(b) If required by applicable Law, the Company will, as soon
as practicable following the expiration of the Offer, prepare and file a
preliminary Proxy Statement (such proxy statement, and any amendments or
supplements thereto, the "PROXY STATEMENT") or, if applicable, an Information
Statement with the SEC with respect to the Stockholders Meeting and will use its
best efforts to respond to any comments of the SEC or its staff and to cause the
Proxy Statement to be cleared by the SEC. The Company will notify Parent of the
receipt of any comments from the SEC or its staff and of any request by the SEC
or its staff for amendments or supplements to the Proxy Statement or for
additional information and will supply Parent promptly with copies of all
correspondence between the Company or any of its representatives, on the one
hand, and the SEC, on the other hand. The Company shall give Parent and its
counsel the opportunity to review the Proxy Statement prior to it being filed
with the SEC and shall give Parent and its counsel the opportunity to review all
amendments and supplements to the Proxy Statement and all responses to requests
for additional information and replies to comments prior to their being filed
with, or sent to, the SEC. Each of the Company and Parent agrees to use its best
efforts, after consultation with the other parties hereto, to respond promptly
to all such comments of and requests by the SEC. As promptly as practicable
after the Proxy Statement has been cleared by the SEC, the Company shall mail
the Proxy Statement to the stockholders of the Company. If at any time prior to
the approval of this Agreement by the Company's stockholders there shall occur
any event which should be set forth in an amendment or supplement to the Proxy
Statement, the Company will prepare and mail to its stockholders such an
amendment or supplement.
(c) The Company represents and warrants that the Proxy
Statement will comply in all material respects with the Exchange Act and, at the
respective times filed with the SEC and distributed to stockholders of the
Company, will not 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; provided that the Company makes no representation or
warranty as to any information included in the Proxy Statement that was provided
by Parent or Purchaser. The Parent represents and warrants that none of the
information supplied by Parent or Purchaser for inclusion in the Proxy Statement
will, at the respective times filed with the SEC and distributed to stockholders
of the Company,
- 30 -
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. Parent agrees that Parent will promptly inform the Company of the
discovery by it or Purchaser of any information that should be set forth in an
amendment or supplement to the Proxy Statement.
(d) The Company shall use its best efforts to obtain the
necessary approvals by its stockholders of the Merger, this Agreement and the
transactions contemplated hereby.
(e) Parent agrees to cause all shares of Common Stock
purchased by Purchaser pursuant to the Offer and all other shares of Common
Stock owned by Parent, Purchaser or any other subsidiary or affiliate of Parent
to be voted in favor of the approval of the Merger.
6.4. COMPANY BOARD REPRESENTATION; SECTION 14(f). (a) Promptly
upon the purchase of shares of Common Stock pursuant to the Offer, Parent shall
be entitled to designate such number of directors, rounded up to the next whole
number, as will give Parent representation on the Company Board equal to the
product of (i) the number of directors on the Company Board and (ii) the
percentage that the number of shares of Common Stock owned by Purchaser or
Parent bears to the number of shares of Common Stock then outstanding (the
"Percentage"), and the Company shall, upon request by Parent, promptly increase
the size of the Company Board and/or exercise its best efforts to secure the
resignations of such number of directors as is necessary to enable the Parent's
designees to be elected to the Company Board and shall cause the Parent's
designees to be so elected; provided, however, that until the Effective Time,
the Company Board shall have at least one member who is not designated by Parent
or Purchaser. At the request of Parent, the Company will use its best efforts to
cause such individuals designated by Parent to constitute the same Percentage of
(i) each committee of the Company Board, (ii) the board of directors of each
Subsidiary and (iii) each committee of each Subsidiary's board of directors. The
Company's obligations to appoint designees to the Company Board shall be subject
to Section 14(f) of the Exchange Act. The Company shall take, at its expense,
all action necessary to effect any such election, and shall include in the
Schedule 14D-9 the information required by Section 14(f) of the Exchange Act and
Rule 14f-1 promulgated thereunder. Parent will supply to Company in writing, and
be solely responsible for, any information with respect to itself and its
nominees, directors and affiliates that is required by Section 14(f) and Rule
14f-1.
(b) Following the election or appointment of Parent's
designees pursuant to this SECTION 6.4 and prior to the Effective Time, the
approval of a majority of the directors of the Company then in office who are
not designated by Parent shall be required to authorize any permitted
termination of this Agreement by the Company, any amendment of this Agreement
requiring action by the Company Board, any extension of
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time for the performance of any of the obligations or other acts of Parent or
Purchaser, and any waiver of compliance with any of the agreements or conditions
contained herein for the benefit of the Company.
6.5. FILINGS; OTHER ACTION. Subject to the terms and
conditions herein provided, the Company, Parent, and Purchaser shall: (a) use
their reasonable best efforts to cooperate with one another in (i) determining
which filings other than under the Exchange Act are required to be made prior to
the expiration of the Offer or the Effective Time with, and which consents,
approvals, permits or authorizations are required to be obtained prior to the
Effective Time from, Governmental Entities or other third parties in connection
with the execution and delivery of this Agreement and any other Ancillary
Documents and the consummation of the transactions contemplated hereby and
thereby and (ii) timely making all filings under the Exchange Act and all such
other filings and timely seek all required consents, approvals, permits,
authorizations and waivers; and (b) use their reasonable best efforts to take,
or cause to be taken, all other action and do, or cause to be done, all other
things necessary, proper or appropriate to consummate and make effective the
transactions contemplated by this Agreement. If, at any time after the Effective
Time, any further action is necessary or desirable to carry out the purpose of
this Agreement, the proper officers and directors of Parent and the Surviving
Corporation shall take all such necessary action.
6.6. ACCESS TO INFORMATION. (a) From the date of this
Agreement until the Closing, the Company shall, and shall cause its Subsidiaries
to, (i) give Parent and its authorized representatives reasonable access, upon
reasonable notice and during reasonable business hours to all books, records,
personnel, offices and other facilities and properties of the Company and its
Subsidiaries and their accountants and accountants' work papers, (ii) permit
Parent to make such copies and inspections thereof as Parent may reasonably
request and (iii) furnish Parent with such financial and operating data and
other information with respect to the business and properties of the Company and
its Subsidiaries as Parent may from time to time reasonably request; provided
that no investigation or information furnished pursuant to this SECTION 6.6
shall affect any representation or warranty made herein by the Company or the
conditions to the obligations of Parent to consummate the transactions
contemplated by this Agreement.
(b) Parent shall hold all information furnished on a
confidential basis by or on behalf of the Company or any of the Company's
Subsidiaries or representatives pursuant to Section 6.6(a) in confidence.
6.7. PUBLICITY. The initial press release relating to this
Agreement shall be issued jointly by the Company and Parent. Thereafter, the
Company and Parent shall obtain the prior consent of each other before issuing
any press release or otherwise making public statements with respect to the
transactions contemplated hereby, except as
- 32 -
may be required by Law or any listing agreement with any national securities
exchange with respect thereto.
6.8. FURTHER ACTION. Each party hereto shall, subject to the
fulfillment at or before the Effective Time of each of the conditions of
performance set forth herein or the waiver thereof, perform such further acts
and execute such documents as may be reasonably required to effect the
transactions contemplated hereby, including the Merger.
6.9. INSURANCE; INDEMNITY. (a) Purchaser will (and the
Surviving Corporation as successor to the Purchaser as a result of the Merger
will) maintain in effect for not less than six years after the Effective Time,
the Company's current directors and officers insurance policies, if such
insurance is obtainable (or policies of at least the same coverage containing
terms and conditions no less advantageous to the current and all former
directors and officers of the Company) with respect to acts or failures to act
prior to the Effective Time, including acts relating to the transactions
contemplated by this Agreement; provided, however, that in order to maintain or
procure such coverage, the Surviving Corporation shall not be required to
maintain or obtain policies providing such coverage except to the extent such
coverage can be provided at an annual cost of no greater than 2 times the most
recent annual premium paid by the Company prior to the date hereof (the "Cap");
and provided, further, that if equivalent coverage cannot be obtained, or can be
obtained only by paying an annual premium in excess of the Cap, Purchaser or the
Surviving Corporation shall only be required to obtain as much coverage as can
be obtained by paying an annual premium equal to the Cap.
(b) To the extent, if any, not provided by an existing right
of indemnification or the agreement or policy, from and after the Effective
Time, Purchaser and following the Merger, the Surviving Corporation shall
indemnify and hold harmless each Person who is, or has been at any time prior to
the date hereof or who becomes prior to the Effective Time, an officer or
director of the Company or any of its Subsidiaries (each, an "INDEMNIFIED
PARTY"), against all losses, expenses, claims, damages or liabilities or,
subject to the last sentence of this paragraph, amounts paid in settlement,
arising in connection with any claim, action, suit, proceeding or investigation
(an "ACTION") arising out of or pertaining to acts or omissions by such Person
in their capacities as an officer or director, as the case may be, of the
Company, which acts or omissions occurred prior to the Effective Time, whether
asserted or claimed prior to, at or after the Effective Time to the fullest
extent permitted by law. In the event of any such Action, the Surviving
Corporation shall control the defense of such Action with counsel selected by
the Surviving Corporation, which counsel shall be reasonably acceptable to the
Indemnified Party; provided, however, that the Indemnified Party shall be
permitted to participate in the defense of such Action through counsel selected
by the Indemnified Party, which counsel shall be reasonably acceptable to the
Surviving Corporation, at the Indemnified Party's expense. Notwithstanding the
foregoing, if there is any conflict between the
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Surviving Corporation and any Indemnified Parties or there are additional
defenses available to any Indemnified Parties, the Indemnified Parties shall be
permitted to participate in the defense of such Action with counsel selected by
the Indemnified Parties, which counsel shall be reasonably acceptable to the
Surviving Corporation, and Purchaser shall cause the Surviving Corporation to
pay the reasonable fees and expenses of such counsel, as accrued and in advance
of the final disposition of such Action to the fullest extent permitted by
applicable law; provided, however, that the Surviving Corporation shall not be
obligated to pay the reasonable fees and expenses of more than one counsel for
all Indemnified Parties in any single Action except to the extent that, in the
opinion of counsel for the Indemnified Parties, two or more of such Indemnified
Parties have conflicting interests in the outcome of such Action. Parent and
Purchaser acknowledge that the members of the Special Committee shall be
entitled to select their own counsel pursuant to the preceding sentence with
respect to any litigation related to the transactions contemplated hereby;
provided, however, that such counsel must be reasonably acceptable to Parent.
Any Indemnified Party wishing to claim indemnification under this SECTION 6.9,
upon learning of any such claim, action, suit, proceeding or investigation
eligible for indemnification under this SECTION 6.9, shall notify the Surviving
Corporation, but failure to notify the Surviving Corporation shall not relieve
it from any liability which it may have under this SECTION 6.9, except to the
extent that such failure results in the forfeiture of substantive rights or
defenses. The Surviving Corporation shall not be liable for any settlement
effected without its written consent, which consent shall not unreasonably be
withheld.
(c) Purchaser will, and following the Merger, will cause the
Surviving Corporation to, keep in effect all provisions in the Surviving
Corporation's certificate of incorporation and by-laws that provide for
exculpation of director and officer liability and indemnification (and
advancement of expenses related thereto) of the past and present officers and
directors of the Company at least to the extent they are presently indemnified
by the Company and such provisions shall not be amended except as either
required by applicable Law or to make changes permitted by Law that would
enhance the rights of past or present officers and directors to indemnification
or advancement of expenses.
(d) If the Surviving Corporation or any of its successors or
assigns (i) shall consolidate with or merge into any other corporation or other
entity and shall not be the continuing or surviving corporation or entity of the
consolidation or merger or (ii) shall transfer all or substantially all of its
properties and assets to any individual, corporation or other entity, then and
in each such case, proper provisions shall be made so that the successors and
assigns of the Surviving Corporation shall assume all of the obligations set
forth in this SECTION 6.9.
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(e) The provisions of this SECTION 6.9 are intended to be for
the benefit of, and shall be enforceable by, each of the Indemnified Parties,
their heirs and their representatives.
6.10. CERTAIN EMPLOYEE AGREEMENTS. Subject to Section 6.11,
Parent, Purchaser and the Company and its Subsidiaries shall honor, without
modification, all contracts, agreements, collective bargaining agreements and
commitments of the parties prior to the date hereof which apply to any current
or former employee or current or former director of the Company or its
Subsidiaries; provided, however, that this undertaking does not prevent Parent,
Purchaser or the Company from enforcing or complying with such contracts,
agreements, collective bargaining agreements and commitments in accordance with
their terms, including, without limitation, exercising any right to amend,
modify, suspend, revoke or terminate any such contract, agreement, collective
bargaining agreement or commitment under any such contract, agreement,
collective bargaining agreement or commitment or under applicable law. Any
workforce reductions carried out following the Effective Time by Parent or the
Company and their subsidiaries shall be done in accordance with all applicable
collective bargaining agreements, and all laws and regulations governing the
employment relationship and termination thereof, including, without limitation,
the Worker Adjustment and Retraining Notification Act and regulations
promulgated thereunder, and any comparable state or local law.
6.11. EMPLOYEE BENEFIT PLANS.
(a) MAINTENANCE OF THE COMPANY BENEFIT PLANS. Each of the
Company Employee Benefit Plans (other than Company Stock Plans) in effect at the
date hereof shall be maintained in effect with respect to the employees or
former employees of the Company and any of its Subsidiaries, who are covered by
any such benefit plan immediately prior to the Effective Time (the "AFFILIATED
EMPLOYEES") until Parent, Purchaser or the Company otherwise determine after the
Effective Time; provided, however, that nothing herein contained shall limit any
right contained in any such Company Employee Benefit Plan or under applicable
law to amend, modify, suspend, revoke or terminate any such plan; provided
further, however, that Parent, Purchaser or the Company or their subsidiaries
shall provide benefits to the Affiliated Employees for a period of not less than
one year following the Effective Time which are no less favorable in the
aggregate than those provided under the Company Employee Benefit Plans (other
than Company Stock Plans) (with respect to employees and former employees of the
Company and its Subsidiaries). Without limitation of the foregoing, with respect
to any benefit plan established to replace any Company Employee Benefit Plan
(other than Company Stock Plans); each participant in any such Company Employee
Benefit Plan shall receive credit for purposes of eligibility to participate and
vesting under any benefit plan of the Company or any of its Subsidiaries or
affiliates for service credited for the
- 35 -
corresponding purpose under such benefit plan; provided, however, that such
crediting of service shall not operate to duplicate any benefit to any such
participant or the funding for any such benefit or cause any such Company
Employee Benefit Plan to fail to comply with the applicable provisions of the
Code or ERISA.
(b) WELFARE BENEFITS PLANS. With respect to any welfare
benefit plan established to replace any Company Employee Benefit Plan which is a
welfare benefit plan in which Affiliated Employees may be eligible to
participate after the Effective Time, other than limitations, exclusions or
waiting periods that are already in effect with respect to such Affiliated
Employees and that have not been satisfied as of the Effective Time, such
replacement plans shall waive all limitations to pre-existing conditions,
exclusions and waiting periods with respect to participation and coverage
requirements and provide each Affiliated Employee with credit for other
co-payments and deductibles paid prior to the Effective Time in satisfying any
applicable deductible or out-of-pocket requirements applicable to the same
calendar year under any welfare plans that such Affiliated Employees are
eligible to participate in after the Effective Time.
ARTICLE 7
7. CONDITIONS.
7.1. CONDITIONS TO EACH PARTY'S OBLIGATION TO EFFECT THE
MERGER. The respective obligation of each party to effect the Merger shall be
subject to the satisfaction or waiver, where permissible, prior to the Effective
Time, of the following conditions:
(a) If approval of this Agreement and the Merger by the
holders of Common Stock is required by applicable Law, this Agreement and the
Merger shall have been approved by the requisite vote of such holders.
(b) Any review or approval required by governmental
authorities in countries in which the Company or its Subsidiaries have
operations material to the Company and its Subsidiaries, taken as a whole, shall
have been completed or obtained.
(c) No United States federal or state or Republic of France
governmental authority or other agency or commission or court of competent
jurisdiction shall have enacted, issued, promulgated, enforced or entered any
law, rule, regulation, executive order decree, injunction or other order which
is in effect and prohibits or has the effect of prohibiting the consummation of
the Merger or makes such consummation illegal.
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ARTICLE 8
8. TERMINATION.
8.1. TERMINATION. This Agreement, notwithstanding approval
thereof by the stockholders of the Company, may be terminated at any time prior
to the Effective Time:
(a) by mutual written consent of the Board of Directors of
the Parent and the Special Committee;
(b) by the Parent or the Special Committee:
(i) if either (i) the purchase of Shares
pursuant to the Offer has not been consummated on or before March 15, 2000, or
the Effective Time shall not have occurred on or before June 30, 2000 (provided
that the right to terminate this Agreement pursuant to this clause (i) shall not
be available to any party whose failure to fulfill any obligation under this
Agreement has been the cause of or resulted in the failure of the Effective Time
to occur on or before such date); or
(ii) if there shall be any Law that makes
consummation of the Offer or the Merger illegal or prohibited, or if any court
of competent jurisdiction in the United States or the Republic of France shall
have issued an order, judgment, decree or ruling, or taken any other action
restraining, enjoining or otherwise prohibiting the Merger and such order,
judgment, decree, ruling or other action shall have become final and
non-appealable;
(c) by the Special Committee,
(i) if there is an Alternative Proposal which
the Special Committee in good faith determines is more favorable from a
financial point of view to the stockholders of the Company as compared to the
Offer and the Merger, and the Special Committee determines in good faith based
upon advice of outside counsel, that the failure to take such action would be
inconsistent with its fiduciary duties to stockholders imposed by Law; provided,
however, that the right to terminate this Agreement pursuant to this SECTION
8.1(C) shall not be available (i) if the Company has breached its obligations
under SECTION 6.1, or (ii) if the Alternative Proposal (x) is subject to a
financing condition or (y) involves consideration that is not entirely cash or
does not permit stockholders to receive the payment of the offered consideration
in respect of all shares at the same time, unless the Special Committee has been
furnished with a written opinion of the Financial Advisor or other nationally
recognized investment banking firm to the effect that (in the case of clause
(x)) the Alternative Proposal is readily financeable and (in the case of clause
(y)) that such offer provides a higher value per share than the
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consideration per share pursuant to the Offer or the Merger, or (iii) if, prior
to or concurrently with any purported termination pursuant to this SECTION
8.1(C), the Company shall not have paid the fees and expenses contemplated by
SECTION 8.2, or (iv) if the Company has not provided Parent and Purchaser with
five business days prior written notice of its intent to so terminate this
Agreement and delivered to the Parent and Purchaser a copy of the written
agreement embodying the Alternative Proposal in its then most definitive form;
(ii) if Parent or Purchaser shall have breached
in any material respect any of their respective representations, warranties or
covenants contained in this Agreement;
(d) by the Parent,
(i) prior to the acceptance of any shares of
Common Stock under the Offer, if due to an occurrence or circumstance that would
result in the failure of any condition specified in Exhibit A, Parent shall have
terminated the Offer without having accepted any Shares for payment thereunder
unless such occurrence or circumstance that would result in the failure of any
such condition shall have been caused by or resulted from the failure of Parent
or Purchaser to perform any obligation of either of them contained in this
Agreement; or
(ii) prior to the purchase of any Common Stock
validly tendered pursuant to the Offer, the Special Committee shall have
withdrawn or modified in a manner that is, materially adverse to Parent or
Purchaser, its approval or recommendation of this Agreement, the Offer, the
Merger or any other transaction contemplated hereby or shall have recommended
another merger, consolidation or business combination involving, or acquisition
of, the Company or its assets or another tender offer for Common Stock, or shall
have resolved to do any of the foregoing.
8.2. EFFECT OF TERMINATION AND ABANDONMENT. In the event of
termination of this Agreement and the abandonment of the Merger pursuant to this
ARTICLE 8, all obligations of the parties hereto shall terminate, except the
obligations of the parties pursuant to this SECTION 8.2 and SECTIONS 6.6(B), 9.5
and 9.6, and there shall be no liability on the part of the Company, the Parent,
Purchaser or their respective officers or directors, except for any breach of a
party's obligations under such provisions. If this Agreement shall terminate
pursuant to Section 8.1(b)(i) as a result of the failure of the Company to
satisfy the condition set forth in paragraphs (f) of EXHIBIT A, or pursuant to
8.1(C) or 8.1(D)(II), the Company shall promptly, but in no event later than two
business days after any such termination, reimburse Parent and its affiliates
for the out-of-pocket expenses of Parent and its affiliates, incurred in
connection with or arising out of the Offer, the Merger or the transactions
contemplated hereby or by the Ancillary Documents, including reasonable
attorneys' fees. If this Agreement shall terminate pursuant to
- 38 -
Section 8.1(c)(ii), Parent shall promptly, but in no event later than two
business days after any such termination, reimburse the Company its
out-of-pocket expenses incurred in connection with or arising out of the Offer,
the Merger or the transactions contemplated hereby or by the Ancillary
Documents, including reasonable attorneys' fees. The parties agree that such
reimbursement of expenses shall be Parent's and Purchaser's exclusive remedy for
any loss, liability, damage or claim arising out of or in connection with any
such termination of this Agreement. The Company acknowledges that the agreements
contained in this SECTION 8.2 are an integral part of the transactions
contemplated by this Agreement, and that, without these agreements, Parent and
Purchaser would not enter into this Agreement. Notwithstanding the foregoing, no
party hereto shall be relieved from liability for any willful, material breach
of this Agreement.
8.3. AMENDMENT. To the extent permitted by applicable law,
this Agreement may be amended by action taken by or on behalf of the board of
directors of each of the parties hereto and, in the case of the Company, with
the approval of the Special Committee at any time before or after adoption of
this Agreement by the stockholders of the Company (if required); PROVIDED,
HOWEVER, that after any such stockholder approval (if required), no amendment
shall be made which decreases the Merger Consideration or which adversely
affects the rights of, or the income tax consequences to, the Company's
stockholders (other than Parent and its Affiliates) hereunder without the
approval of such stockholders. This Agreement may not be amended except by an
instrument in writing signed on behalf of all of the parties.
8.4. EXTENSION; WAIVER. At any time prior to the Effective
Time, any party hereto, by action taken by its board of directors, may, to the
extent legally allowed, (a) extend the time for the performance of any of the
obligations or other acts of the other parties hereto, (b) waive any
inaccuracies in the representations and warranties made to such party contained
herein or in any document delivered pursuant hereto and (c) waive compliance
with any of the agreements or conditions for the benefit of such party contained
herein; PROVIDED, HOWEVER, that, if the Company seeks to make such extension or
waiver as provided in (a), (b) or (c) above, it must first obtain the approval
of the Special Committee. Any agreement on the part of a party hereto to any
such extension or waiver shall be valid only if set forth in an instrument in
writing signed on behalf of such party.
- 39 -
ARTICLE 9
9. GENERAL PROVISIONS.
9.1. NONSURVIVAL OF REPRESENTATIONS AND WARRANTIES. None of
the representations and warranties in this Agreement, or in any instrument
delivered pursuant to this Agreement, shall survive the Effective Time.
9.2. NOTICES. All notices and other communications given or
made pursuant hereto shall be in writing and shall be deemed to have been duly
given or made as of the date of receipt and shall be delivered personally or
mailed by registered or certified mail (postage prepaid, return receipt
requested), sent by overnight courier or sent by facsimile, to the applicable
party at the following addresses or facsimile numbers (or at such other address
or telecopy number for a party as shall be specified by like notice):
If to Parent or Purchaser:
Elyo S.A.
235 Avenue ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇
Facsimile: 01 41 20 10 10
Attention: Michel Caillard
with a copy to:
Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
If to the Company:
Trigen Energy Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
- 40 -
With a copy to:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP
Bank of America Plaza
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Jr., Esq.
9.3. ASSIGNMENT; BINDING EFFECT. Neither this Agreement nor
any of the rights, interests or obligations hereunder shall be assigned by any
of the parties hereto (whether by operation of law or otherwise) without the
prior written consent of the other parties; provided, however, that either
Parent or Purchaser (or both) may assign its rights hereunder (including,
without limitation, the right to make the Offer and/or to purchase shares of
Common Stock pursuant to the Offer) to a wholly owned subsidiary of Parent; and,
further provided that nothing shall relieve the assignor from its obligations
hereunder. Subject to the preceding sentence, this Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
successors and assigns. Notwithstanding anything contained in this Agreement to
the contrary, except for the provisions of SECTION 6.9 which may be enforced
directly by the beneficiaries thereof, nothing in this Agreement, expressed or
implied, is intended to confer on any Person other than the parties hereto or
their respective heirs, successors, executors, administrators and assigns any
rights, remedies, obligations or liabilities under or by reason of this
Agreement.
9.4. ENTIRE AGREEMENT. This Agreement, the Company Disclosure
Letter, the Exhibits, the Ancillary Documents and any other documents delivered
by the parties in connection herewith constitute the entire agreement among the
parties with respect to the subject matter hereof and supersede all prior
agreements and understandings among the parties with respect thereto.
9.5. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware without regard to
its rules of conflict of laws. Each of the Company, Parent and Purchaser hereby
irrevocably and unconditionally consents to submit to the exclusive jurisdiction
of the United States District Court for the State of Delaware or any court of
the State of Delaware (the "DELAWARE COURTS") for any litigation arising out of
or relating to this Agreement and the transactions contemplated hereby (and
agrees not to commence any litigation relating thereto except in such courts),
waives any objection to the laying of venue of any such litigation in the
Delaware Courts and agrees not to plead or claim in any Delaware Court that such
litigation brought therein has been brought in an inconvenient forum. Parent
hereby appoints The Corporation Trust Company as agent for service of process.
The
- 41 -
address of such agent for service of process is Corporation Trust Center, ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
9.6. FEES AND EXPENSES. Except as otherwise provided in
SECTION 8.2, whether or not the Merger is consummated, all fees, costs and
expenses incurred in connection with this Agreement and the transactions
contemplated hereby shall be paid by the party incurring such fees, costs and
expenses.
9.7. CERTAIN DEFINITIONS. For purposes of this
Agreement, the following terms shall have the following meanings:
(i) "AFFILIATE" of a Person means a Person that
directly or indirectly, through one or more intermediaries, controls, is
controlled by, or is under common control with, the first mentioned Person.
(ii) "KNOWLEDGE" of any party hereto shall
mean the knowledge of any of the executive officers of that party.
(iii) "PERSON" means an individual, corporation,
partnership, limited liability company, association, trust, unincorporated
organization, entity or group (as defined in the Exchange Act).
9.8. HEADINGS. Headings of the Articles and Sections of this
Agreement are for the convenience of the parties only, and shall be given no
substantive or interpretive effect whatsoever. The table of contents contained
in this Agreement is for reference purposes only and shall not affect in any way
the meaning or interpretation of this Agreement.
9.9. INTERPRETATION. In this Agreement, unless the context
otherwise requires, words describing the singular number shall include the
plural and vice versa, and words denoting any gender shall include all genders
and words denoting natural Persons shall include corporations and partnerships
and vice versa. Whenever the words "include," "includes" or "including" are used
in this Agreement, they shall be understood to be followed by the words "without
limitation."
9.10. WAIVERS. No action taken pursuant to this Agreement,
including, without limitation, any investigation by or on behalf of any party,
shall be deemed to constitute a waiver by the party taking such action of
compliance with any representations, warranties, covenants or agreements
contained in this Agreement or in any of the Ancillary Documents. The waiver by
any party hereto of a breach of any provision hereunder shall not operate or be
construed as a waiver of any prior or subsequent breach of the same or any other
provision hereunder.
- 42 -
9.11. SEVERABILITY. Any term or provision of this Agreement
that is invalid or unenforceable in any jurisdiction shall, as to that
jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without rendering invalid or unenforceable the remaining terms
and provisions of this Agreement or affecting the validity or enforceability of
any of the terms or provisions of this Agreement in any other jurisdiction. If
any provision of this Agreement is so broad as to be unenforceable, the
provision shall be interpreted to be only so broad as is enforceable.
9.12. ENFORCEMENT OF AGREEMENT. The parties hereto agree that
irreparable damage would occur in the event that any of the provisions of this
Agreement were not performed in accordance with its specific terms or was
otherwise breached. It is accordingly agreed that the parties shall be entitled
to an injunction or injunctions to prevent breaches of this Agreement and to
enforce specifically the terms and provisions hereof in any New York Court, this
being in addition to any other remedy to which they are entitled at law or in
equity.
9.13. COUNTERPARTS. This Agreement may be executed by the
parties hereto in separate counterparts, each of which, when so executed and
delivered, shall be an original. All such counterparts shall together constitute
one and the same instrument. Each counterpart may consist of a number of copies
hereof, each signed by less than all, but together signed by all, of the parties
hereto.
- 43 -
IN WITNESS WHEREOF, the parties have executed this Agreement and
caused the same to be duly delivered on their behalf on the day and year first
written above.
TRIGEN ENERGY CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President
ELYO S.A.
By: /s/ Olivier Degos
---------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Corporate Vice President
T ACQUISITION CORP.
By: /s/ Olivier Degos
---------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Secretary
TABLE OF CONTENTS
Page
ARTICLE 1.....................................................................................................2
1. The Offer.........................................................................................2
1.1 The Offer...............................................................................2
1.2. Actions by Parent and Purchaser........................................................3
1.3. Actions by the Company.................................................................4
ARTICLE 2.....................................................................................................6
2. The Merger........................................................................................6
2.1. The Merger.............................................................................6
2.2. The Closing............................................................................6
2.3. Effective Time.........................................................................6
2.4 Certificate of Incorporation, Bylaws, Directors and
Officers of the Surviving Corporation.......................................... 7
ARTICLE 3.....................................................................................................7
3. Effect of the Merger on Securities of Purchaser and the Company...................................7
3.1. Purchaser Stock........................................................................7
3.2. Company Securities.....................................................................7
3.3. Exchange of Certificates Representing Shares...........................................9
3.4. Adjustment of Merger Consideration.....................................................10
3.5. Dissenting Company Stockholders........................................................11
3.6. Merger Without Meeting of Stockholders.................................................11
ARTICLE 4.....................................................................................................11
4. Representations and Warranties of the Company.....................................................11
4.1. Existence; Good Standing; Corporate Authority..........................................12
4.2. Authorization, Validity and Effect of Agreements.......................................12
4.3. Compliance with Laws...................................................................13
4.4. Capitalization, etc....................................................................13
4.5. No Violation...........................................................................14
4.6. Company Reports; Offer Documents.......................................................15
4.7. Litigation.............................................................................17
4.8. Absence of Certain Changes.............................................................17
4.9. Taxes................................................................................ 18
4.10. Employee Benefit Plans................................................................19
4.11. Labor and Employment Matters..........................................................19
4.12. Brokers...............................................................................20
4.13. Permits...............................................................................20
4.14. Environmental Matters.................................................................20
4.15. Insurance Policies....................................................................22
4.16. Opinion of Financial Advisor..........................................................22
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4.17. State Takeover Statutes...............................................................22
4.18. Required Vote of Company Stockholders.................................................23
4.19. Regulation as a Utility...............................................................23
4.20. Year 2000 Compliance,.................................................................24
ARTICLE 5.....................................................................................................24
5. Representations and Warranties of Parent and Purchaser............................................24
5.1. Existence; Good Standing; Corporate Authority..........................................24
5.2. Authorization, Validity and Effect of Agreements.......................................25
5.3. No Violation...........................................................................25
5.4. Interim Operations of Purchaser........................................................26
5.5. Financing..............................................................................26
5.6. Information Supplied...................................................................26
ARTICLE 6.....................................................................................................27
6. Covenants.........................................................................................27
6.1. Alternative Proposals..................................................................27
6.2. Interim Operations.....................................................................28
6.3. Company Stockholder Approval; Proxy Statement..........................................31
6.4. Company Board Representation; Section 14(f)............................................33
6.5. Filings; Other Action..................................................................34
6.6. Access to Information..................................................................34
6.7. Publicity..............................................................................35
6.8. Further Action.........................................................................35
6.9. Insurance; Indemnity...................................................................35
6.10. Certain Employee Agreements...........................................................37
6.11. Employee Benefit Plans................................................................37
ARTICLE 7.....................................................................................................38
7. Conditions........................................................................................38
7.1. Conditions to Each Party's Obligation to Effect the Merger.............................38
ARTICLE 8.....................................................................................................39
8. Termination.......................................................................................39
8.1. Termination............................................................................39
8.2. Effect of Termination and Abandonment..................................................41
8.3. Amendment..............................................................................41
8.4. Extension; Waiver......................................................................41
ARTICLE 9.....................................................................................................42
9. General Provisions................................................................................42
9.1. Nonsurvival of Representations and Warranties..........................................42
9.2. Notices.42
9.3. Assignment; Binding Effect.............................................................43
9.4. Entire Agreement.......................................................................43
9.5. Governing Law..........................................................................44
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9.6. Fee and Expenses.......................................................................44
9.7. Certain Definitions....................................................................44
9.8. Headings...............................................................................44
9.9. Interpretation.........................................................................45
9.10. Waivers...............................................................................45
9.11. Severability..........................................................................45
9.12. Enforcement of Agreement..............................................................45
9.13. Counterparts..........................................................................45
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EXHIBIT A
CONDITIONS OF THE OFFER
Notwithstanding any other term of the Offer or this Agreement,
Purchaser shall not be required to accept for payment or to pay for any shares
of Common Stock not theretofore accepted for payment or paid for, and may
terminate or amend the Offer if at any time on or after the date of this
Agreement and before the acceptance of such Shares for payment or the payment
therefor, any of the following conditions exist or shall occur and remain in
effect:
(a) there shall have been instituted, pending or
threatened any litigation by the Government of the United States or the
Republic of France or by any agency or instrumentality thereof or by
any other third Person or nongovernmental entity that would be
reasonably likely to (i) restrict the acquisition by Parent or
Purchaser (or any of its affiliates) of shares of Common Stock pursuant
to the Offer or restrain, prohibit or delay the making or consummation
of the Offer or the Merger, (ii) make the purchase of or payment for
some or all of the shares of Common Stock pursuant to the Offer or the
Merger illegal, (iii) impose limitations on the ability of Parent or
Purchaser (or any of their affiliates) effectively to acquire or hold,
or to require Parent, Purchaser or the Company or any of their
respective affiliates or subsidiaries to dispose of or hold separate,
any portion of their assets or the business of any one of them, (iv)
impose material limitations on the ability of Parent, Purchaser or
their affiliates to exercise full rights of ownership of the shares of
Common Stock purchased by it, including, without limitation, the right
to vote the shares purchased by it on all matters properly presented to
the stockholders of the Company, (v) limit or prohibit any material
business activity by Parent, Purchaser or any of their affiliates,
including, without limitation, requiring the prior consent of any
Person or entity (including the Government of the United States of
America and the Republic of France, and any instrumentality thereof) to
future transactions by Parent, Purchaser or any of their affiliates
(Parent and Purchaser acknowledge that the regulatory nature of some of
the Company's assets and businesses may result in the limitation of
Parent's and its affiliates in certain utility-related areas) or (vi)
make materially more costly (A) the making of the Offer, (B) the
acceptance for payment of, or payment for, some or all of the Shares
pursuant to the Offer, (C) the purchase of Shares pursuant to the Offer
or (D) the consummation of the Merger; or
(b) there shall have been a subsequent development in
any action or proceeding relating to the Company or any of its
Subsidiaries that would (i) be reasonably likely to be materially
adverse either to Parent and Purchaser or to
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Company and its Subsidiaries taken as a whole or (ii) make materially
more costly (A) the making of the Offer, (B) the acceptance for
payment of, or payment for, some or all of the shares pursuant to the
Offer, (C) the purchase of shares pursuant to the Offer or (D) the
consummation of the Merger; or
(c) there shall have been any action taken, or any
Law promulgated, enacted, entered, enforced or deemed applicable to the
Offer or the Merger by any Governmental Entity that could directly or
indirectly result in any of the consequences referred to in subsection
(a) above; or
(d) this Agreement shall have been terminated in
accordance with its terms; or
(e) the Tender and Voting Agreement, dated as of
January 19, 2000, among Parent, Purchaser, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, or the ▇▇▇▇▇▇ Stock Purchase Agreement, shall not be
in effect; or
(f) (i) any of the representations and warranties
made by the Company in this Agreement that are qualified by materiality
or Material Adverse Effect shall not have been true and correct in all
respects when made, or shall thereafter have ceased to be true and
correct in all respects as if made at the scheduled or extended
expiration of the Offer (except to the extent that any such
representation or warranty refers specifically to another date, in
which case such representation or warranty shall be true and correct in
all respects as of such other date), or the other representations and
warranties made by the Company in this Agreement shall not have been
true and correct in all material respects when made, or shall
thereafter have ceased to be true and correct in all material respects
as if made at the scheduled or extended expiration of the Offer (except
to the extent that any such representation or warranty refers
specifically to another date, in which case such representation or
warranty shall be true and correct in all material respects as of such
other date) or (ii) the Company shall have breached or failed to comply
in any material respect with any of its obligations under this
Agreement; or
(g) Parent and the Special Committee shall have
agreed that Parent shall terminate the Offer or postpone the acceptance
for payment of or payment for Shares thereunder; or
(h) there shall have occurred (i) any general
suspension of, or limitation on prices for, trading in securities on
any national securities exchange or in the over the counter market in
the United States, (ii) a declaration of any banking moratorium by
federal or state authorities or any suspension of payments in respect
of banks or any limitation (whether or not mandatory) imposed by
federal or state authorities on the extension of credit by lending
institutions in the
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United States or the Republic of France, (iii) any mandatory
limitation by the federal government that has a material adverse
effect generally on the extension of credit by banks and other
financial institutions generally, (iv) a commencement of a war, armed
hostilities or any other international or national calamity directly
or indirectly involving the United States or the Republic of France,
or (v) in the case of any of the foregoing existing at the time of the
commencement of the Offer, in the sole judgment of the Parent, a
material acceleration or worsening thereof.
The foregoing conditions are for the sole benefit of Parent
and Purchaser and may be asserted by Parent or Purchaser regardless of the
circumstances giving rise to any such condition and may be waived by Parent or
Purchaser, in whole or in part, at any time and from time to time, in the sole
discretion of Parent. The failure by Parent or Purchaser at any time to exercise
any of the foregoing rights will not be deemed a waiver of any right, the waiver
of such right with respect to any particular facts or circumstances shall not be
deemed a waiver with respect to any other facts or circumstances, and each right
will be deemed an ongoing right which may be asserted at any time and from time
to time.
Should the Offer be terminated pursuant to the foregoing
provisions, all tendered shares of Common Stock not theretofore accepted for
payment shall promptly be returned by the depositary to the tendering
stockholders.
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EXHIBIT B
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
TRIGEN ENERGY CORPORATION
************
FIRST: The name of the Corporation is Trigen Energy
Corporation.
SECOND: The address of the Corporation's registered office in
the State of Delaware is Corporation Trust Center, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ in the
City of Wilmington, County of ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇. The name of its
registered agent at such address is The Corporation Trust Company.
THIRD: The purpose of the Corporation is to engage in any
lawful act or activity for which corporations may be organized under the General
Corporation Law of Delaware.
FOURTH: The total number of shares which the Corporation shall
have authority to issue is 100 shares of Common Stock, par value $.01 per share.
FIFTH: The Board of Directors is expressly authorized to
adopt, amend, or repeal the by-laws of the Corporation.
SIXTH: Elections of directors need not be by written ballot
unless the by-laws of the Corporation shall otherwise provide.
SEVENTH: A director of the Corporation shall not be
personally liable to the Corporation or its stockholders for monetary damages
for breach of fiduciary duty as a director; PROVIDED, HOWEVER, that the
foregoing shall not eliminate or limit the liability of a director (i) for
any breach of the director's duty of loyalty to the Corporation or its
stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) under Section 174
of the General Corporation Law of Delaware, or (iv) for any transaction from
which the director derived
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an improper personal benefit. If the General Corporation Law of Delaware is
hereafter amended to permit further elimination or limitation of the personal
liability of directors, then the liability of a director of the Corporation
shall be eliminated or limited to the fullest extent permitted by the General
Corporation Law of Delaware as so amended. Any repeal or modification of this
Article SEVENTH by the stockholders of the Corporation or otherwise shall not
adversely affect any right or protection of a director of the Corporation
existing at the time of such repeal or modification.
EIGHTH: The Corporation reserves the right to amend, alter,
change, or repeal any provision contained in this Certificate of Incorporation,
in the manner now or hereafter prescribed by statute, and all rights conferred
upon stockholders herein are granted subject to this reservation.
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