CREDIT SUISSE GROUP
DIAMOND ACQUISITION CORP.
MERGER AGREEMENT
LETTER AMENDMENT
October 6, 2000
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
We refer to the Agreement and Plan of Merger (the "Merger
Agreement") dated as of August 30, 2000 among Credit Suisse Group, Diamond
Acquisition Corp. and ▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇, Inc. Capitalized terms used
but not otherwise defined herein shall have the respective meanings given such
terms in the Merger Agreement.
1. Parent, Purchaser and the Company hereby agree to amend the
Merger Agreement in accordance with Section 9.04 of the Merger Agreement to
provide that the payment for Shares occur on November 3, 2000 subject only to
the satisfaction of the conditions with respect to expiration of the waiting
period under the HSR Act, receipt of clearance under the EC Merger Regulation,
compliance with covenants in all material respects, the absence of an order or
injunction, and satisfaction or waiver of the conditions to closing under the
Stock Purchase Agreement, as follows:
(a) Section 2.01(a) of the Merger Agreement shall be amended
to insert the following sentence after the fifth sentence thereof:
"Notwithstanding the foregoing, Parent and Purchaser may
extend the expiration date of the Offer scheduled under Section 2.01 of the
Merger Agreement to 12:00 midnight, New York City time, on November 2, 2000, and
Parent and Purchaser agree that Purchaser shall accept for payment Shares
tendered pursuant to the Offer on the later of (i) November 3, 2000 and (ii)
satisfaction of each of the conditions set forth in Annex A hereto."
(b) Sections (ii)(a) and (ii)(b) of Annex A to the Merger
Agreement shall be amended and restated as follows:
(i) "(a) any Material Adverse Effect on the Company shall have
occurred as of 5:00 p.m., New York City time, on October 6, 2000;" and
(ii) "(b) any representation or warranty of the Company in the
Agreement shall not be true and correct as of 5:00 p.m., New York City time, on
October 6, 2000 except where the failure of such representation or warranty to
be true and correct (without giving effect to any limitation as to "materiality"
or "Material Adverse Effect" set forth herein) would not have a Material Adverse
Effect on the Company;".
2. Promptly after 5:00 p.m., New York City time, on October 6,
2000, the Company shall deliver to Parent and Purchaser a certificate of the
Chief Executive Officer and the Chief Financial Officer of the Company in form
and substance reasonably satisfactory to Parent certifying that:
(a) no Material Adverse Effect on the Company has occurred as
of 5:00 p.m., New York City time, on October 6, 2000;
(b) the representations and warranties of the Company in the
Merger Agreement are true and correct as of 5:00 p.m., New York City time, on
October 6, 2000 except where the failure of any such representation or warranty
to be true and correct (without giving effect to any limitation as to
"materiality" or "Material Adverse Effect" set forth herein) would not have a
Material Adverse Effect on the Company; and
(c) the Company has performed, in all material respects, all
material obligations and complied, in all material respects, with all material
agreements and covenants of the Company to be performed or complied with by it
under the Merger Agreement on or prior to 5:00 p.m., New York City time, on
October 6, 2000.
Parent and Purchaser hereby agree that, following the
commencement of the transfers contemplated by paragraph 3 hereof, the amendment
set forth in paragraph 1(b) hereof shall become effective, and following such
time and their receipt of the foregoing certificate, for all purposes under the
Merger Agreement (including, without limitation, Section 9.01(c) of the Merger
Agreement) the conditions set forth in Sections (ii)(a) and (ii)(b) of Annex A
to the Merger Agreement will be deemed satisfied, and the condition set forth in
Section (ii)(c) of Annex A to the Merger Agreement will be deemed satisfied with
respect to the period on or prior to 5:00 p.m., New York City time, on October
6, 2000.
3. Subject to the parties not receiving a formal request for
additional information or documents under the HSR Act prior to 5:00 p.m., New
York City time, on October 6, 2000, in anticipation of the expected completion
of the Offer and the Merger, Parent, Purchaser and the Company hereby agree that
commencing immediately following the close of business on October 6, 2000 (a)(i)
the Company shall transfer to Credit Suisse First Boston Corporation ("CSFBC")
or any other designee of Parent for fair market value (as mutually agreed by
CSFBC and the Company) the consolidated proprietary institutional equities
portfolio and the consolidated proprietary fixed income portfolio (other than
the high yield, derivatives, mortgage whole loan and bank loan portfolios) of
the Company and (ii) CSFBC will transfer to the Company or any designee of the
Company for fair market value (as mutually agreed by CSFBC and the Company) the
proprietary high yield portfolio of CSFBC, and (b) the Company, Parent and CSFBC
shall enter into a master transfer agreement in the form attached hereto as
Exhibit A pursuant to which each of the Company and Parent shall transfer
certain of its and its subsidiaries' employees to the other party or its
subsidiaries.
4. (a) Parent and Purchaser hereby consent to the Company
acquiring and assuming all advances, commitments or other extensions of credit
of The Equitable Life Assurance Society of the United States or its affiliates
(other than the Company and its subsidiaries), as reflected in Schedule A
hereto, under the Amended and Restated Equitable Credit Facility dated as of
March 1, 1994 among The Equitable Life Assurance Society of the United States,
Equitable Variable Life Insurance Company, the Company, DLJ Investment Inc., DLJ
Capital Corporation and DLJ Bridge Finance Inc., as amended to the date hereof
(the "Equitable Bridge Facility"), by paying to such parties all principal
outstanding, and accrued and unpaid interest thereon, and any fees or other
similar amounts due as of the date of such payment under the Equitable Bridge
Facility or related credit agreements by 10:00 a.m., New York City time, on
November 15, 2000; and (b) the Company shall pay such amounts by 10:00 a.m., New
York City time, on November 15, 2000 and agrees that thereafter such facility
shall terminate and be of no further force and effect or that The Equitable Life
Assurance Society of the United States and its affiliates (other than the
Company and its subsidiaries) shall cease to be parties to such facility and
shall have no further obligations thereunder. Notwithstanding anything to the
contrary in Section 10.04 of the Merger Agreement, the provisions of this
paragraph 4 only are intended for the benefit of The Equitable Life Assurance
Society of the United States and may be enforced by it.
This Letter Amendment shall be governed by and construed in
accordance with, the laws of the State of New York applicable to contracts
executed in and to be performed in that State.
CREDIT SUISSE GROUP
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Attorney-in-Fact
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Attorney-in-Fact
DIAMOND ACQUISITION CORP.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
Consented to and acknowledged
as of the above date:
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, INC.
By: /s/ ▇.▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President
and Chief Financial Officer
Schedule A
Loans and Commitments under Equitable Bridge Facility
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($ millions)
Equitable
Funding Amount
Funded Entity/Industry Date Funded
---------------------- ---- ------
UIH Funding, Inc. Apr-99 $101.8
Broadband Communications
Citation Funding, Inc. Dec-99 65.8
Manufacturing-Steel Castings
Tin Funding, Inc. (United Biscuit) Apr-00 125.2 (UK pound loan)
Food
Formus Funding, Inc. May-00 15.5
Comm.-European wireless CLEC
Alfa Laval Funding, Inc. Aug-00 95.9 (EURO loan)
Manufacturing-Fluid Separation
Commitments as of 9/28/00
Independent Wireless One $85.0
Wireless Communications
EXHIBIT A
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MASTER TRANSFER AGREEMENT
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This Agreement ("Agreement") is made between Credit Suisse
Group, a Swiss Aktiengesellschaft ("CSG"), Credit Suisse First Boston
Corporation, a Massachusetts Corporation ("CSFBC") and ▇▇▇▇▇▇▇▇▇, Lufkin &
▇▇▇▇▇▇▇▇, Inc., a Delaware corporation ("DLJ") as of the date hereof to become
effective as of the opening of business on October 9, 2000 (the "Effective
Date").
WHEREAS, CSG, Diamond Acquisition Corp., a Delaware
corporation and wholly owned subsidiary of CSG, and DLJ entered into an
Agreement and Plan of Merger, dated August 30, 2000 (the "Merger Agreement");
and
WHEREAS, CSG and CSFBC wish to transfer the services of
certain personnel of CSFBC to DLJ and DLJ wishes to utilize the services of such
personnel as of the Effective Date and DLJ wishes to transfer the services of
certain personnel of DLJ to CSFBC and CSG and CSFBC wish to utilize the services
of such personnel as of the Effective Date, upon the terms set forth herein; and
whereas such transfers are believed by CSG, CSFBC, and DLJ to be essential and
critical to the effectiveness of the business combination contemplated by the
Merger Agreement, because of the business prospects of CSFBC and DLJ including
control of risk in the various similar trading books held by DLJ and CSFBC;
NOW, THEREFORE, in consideration of the mutual covenants
contained herein, the parties agree as follows:
1. Term. The term of this Agreement (the "Term") shall begin
on the date hereof and shall run from month to month, subject to termination by
either party in accordance with Section 6 hereof.
2. Secondment. During the Term, the employees listed on
Schedule A (the "CSFBC Employees") shall be transferred by CSG and CSFBC to DLJ
and the employees listed on Schedule B (the "DLJ Employees") shall be
transferred by DLJ to CSG and CSFBC where they shall be under the direction and
supervision of supervisory personnel listed on Schedules A and B and shall
perform such services and at such locations as DLJ or CSFBC, respectively, shall
require, consistent with the services previously performed by the CSFBC
Employees or DLJ Employees at CSFBC or DLJ, respectively, prior to the Effective
Time.
3. Compensation and Benefits. CSFBC or DLJ, respectively,
shall be solely responsible for payment of the CSFBC Employees' or DLJ
Employees' compensation and benefits, and the CSFBC Employees or DLJ Employees
shall not be entitled to any compensation and benefits from DLJ or CSFBC,
respectively, for services performed for DLJ or CSFBC, respectively. CSFBC or
DLJ, respectively, shall be solely responsible for the withholding and payment
of all taxes and any other sums required to be withheld or paid by an employer
pursuant to any and all laws applicable to the rendering of services by the
CSFBC Employees or DLJ Employees hereunder, including, without limitation,
carrying workers' compensation insurance.
4. Fee. DLJ agrees to pay CSFBC a monthly fee for the services
to be performed by the CSFBC Employees hereunder promptly upon the submission of
a monthly ▇▇▇▇ therefor by CSFBC, and CSFBC agrees to pay DLJ a monthly fee for
the services to be performed by the DLJ Employees hereunder promptly upon the
submission of a monthly ▇▇▇▇ therefor by ▇▇▇.
▇. ▇▇▇▇▇▇▇▇▇. ▇▇▇ agrees to indemnify CSFBC against any cost,
expense, damage or liability arising out of or in connection with the
performance of any services by the CSFBC Employees hereunder, and CSFBC agrees
to indemnify DLJ against any cost, expense, damage or liability arising out of
or in connection with the performance of any services by the DLJ Employees
hereunder.
6. Termination. Either party may terminate this Agreement with
respect to all or any specified CSFBC or DLJ Employees only upon written notice
to the other.
7. Governing Law. This Agreement shall be construed,
interpreted and governed in accordance with the law of New York without
reference to rules relating to conflict of law.
8. Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of October 9, 2000.
CREDIT SUISSE GROUP
By:
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Title:
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By:
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Title:
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CREDIT SUISSE FIRST BOSTON CORPORATION
By:
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Title:
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▇▇▇▇▇▇▇▇▇, LUFKIN & ▇▇▇▇▇▇▇▇, INC.
By:
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Title:
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SCHEDULE A
CSG and CSFBC Employees
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SCHEDULE B
DLJ Employees
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