--------------------------------------------------------------------------------
Execution Copy
AGREEMENT AND PLAN OF MERGER
AMONG
Rexel S.A.
INTERNATIONAL TECHNICAL DISTRIBUTORS, INC.
AND
REXEL,INC.
OCTOBER 17, 1997
--------------------------------------------------------------------------------
Page 14 of 46
TABLE OF CONTENTS
Page
----
ARTICLE I THE OFFER...................................................... 2
SECTION 1.01. The Offer.................................... 2
SECTION 1.02. Company Action............................... 3
ARTICLE II THE MERGER..................................................... 4
SECTION 2.01. The Merger................................... 4
SECTION 2.02. Effective Time; Closing...................... 4
SECTION 2.03. Effect of the Merger......................... 5
SECTION 2.04. Restated Certificate of Incorporation;
By-laws..................................... 5
SECTION 2.05. Directors and Officers....................... 5
SECTION 2.06. Conversion of Securities..................... 5
SECTION 2.07. Options and Warrants......................... 6
SECTION 2.08. Dissenting Shares............................ 6
SECTION 2.09. Surrender of Shares; Stock Transfer Books.... 7
SECTION 2.10. Short-form Merger............................ 8
SECTION 2.11. Special Purpose Subsidiary................... 8
ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE
COMPANY...................................................... 8
SECTION 3.01. Organization and Qualification; Subsidiaries. 8
SECTION 3.02. Certificate of Incorporation and By-laws..... 9
SECTION 3.03. Capitalization............................... 9
SECTION 3.04. Authority Relative to this Agreement......... 9
SECTION 3.05. No Conflict; Required Filings and Consents... 10
SECTION 3.06. Compliance................................... 11
SECTION 3.07. SEC Filings; Financial Statements............ 11
SECTION 3.08. Offer Documents; Schedule 14D-9;
Schedule 13E-3; Proxy Statement............ 12
SECTION 3.09. Brokers...................................... 12
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF
PARENT AND MERGER SUBSIDIARY................................. 13
SECTION 4.01. Corporate Organization....................... 13
SECTION 4.02. Authority Relative to this
Agreement.................................. 13
SECTION 4.03. No Conflict; Required Filings and
Consents................................... 13
SECTION 4.04. Offer Documents; Proxy Statement............. 14
SECTION 4.05. Brokers...................................... 14
SECTION 4.06. Ownership of Merger Subsidiary............... 15
SECTION 4.07. Financing.................................... 15
i
Page 15 of 46
SECTION 4.08. Information Known by Parent or Certain
Subsidiaries............................... 15
ARTICLE V COVENANTS...................................................... 15
SECTION 5.01. Conduct of the Business Pending the Merger... 15
SECTION 5.02. Shareholders' Meeting; Voting of Shares...... 15
SECTION 5.03. Proxy Statement.............................. 16
SECTION 5.04. Access to Information; Confidentiality....... 16
SECTION 5.05. Directors' and Officers' Indemnification and
Insurance.................................. 16
SECTION 5.06. Notification of Certain Matters.............. 18
SECTION 5.07. Further Action; Best Efforts................. 18
SECTION 5.08. Public Announcements......................... 18
SECTION 5.09. Financing.................................... 19
ARTICLE VI CONDITIONS TO THE MERGER....................................... 19
SECTION 6.01. Conditions to the Merger..................... 19
ARTICLE VII TERMINATION, AMENDMENT AND WAIVER............................. 19
SECTION 7.01. Termination.................................. 19
SECTION 7.02. Effect of Termination........................ 21
SECTION 7.03. Amendment.................................... 21
SECTION 7.04. Waiver....................................... 21
ARTICLE VIII GENERAL PROVISIONS........................................... 21
SECTION 8.01. Non-Survival of Representations, Warranties
and Agreements............................. 21
SECTION 8.02. Notices...................................... 22
SECTION 8.03. Certain Definitions.......................... 23
SECTION 8.04. Severability................................. 24
SECTION 8.05. Entire Agreement; Assignment................. 24
SECTION 8.06. Parties in Interest.......................... 24
SECTION 8.07. Specific Performance......................... 24
SECTION 8.08. Fees and Expenses............................ 24
SECTION 8.09. Governing Law................................ 25
SECTION 8.10. Headings..................................... 25
SECTION 8.11. Counterparts................................. 25
SECTION 8.12. Consent to Jurisdiction; Appointment of Agent for
Service of Process......................... 25
ANNEX A: Conditions to Offer...............................................26
ii
Page 16 of 46
AGREEMENT AND PLAN OF MERGER, dated as of October 17, 1997 (this
"Agreement"), among REXEL S.A., a French societe anonyme (hereinafter "Parent"),
INTERNATIONAL TECHNICAL DISTRIBUTORS, INC., a New York corporation and a direct,
wholly owned subsidiary of Parent ("Merger Subsidiary"), and REXEL, INC., a New
York corporation (the "Company").
WHEREAS, Parent beneficially owns approximately 50.5% (the "Parent Shares")
of the Common Stock, par value $1.00 per share, of the Company (the "Shares");
WHEREAS, Parent has proposed that the Merger Subsidiary or, at the option
of the Parent, a direct, wholly owned subsidiary of the Merger Subsidiary
incorporated in New York for such purpose (the "Special Purpose Subsidiary"),
acquire all of the issued and outstanding Shares not beneficially owned by
Parent or the Merger Subsidiary (references to the Parent shall, where the
context so requires, be deemed to refer to the Merger Subsidiary and/or the
Special Purpose Subsidiary as well, and references to the Merger Subsidiary
shall, where the context so requires, be deemed to refer to the Special Purpose
Subsidiary as well);
WHEREAS, the Board of Directors of the Company (the "Board") and a special
committee comprised of three independent directors of the Board (the "Special
Committee") have determined that it is in the best interests of the Shareholders
of the Company to approve Parent's proposed acquisition and have voted (i) to
recommend that the shareholders of the Company accept the Offer (as defined
below) and tender their Shares pursuant to the Offer and (ii) to approve the
merger (the "Merger") of Merger Subsidiary with and into the Company, with the
Company being the surviving corporation, in accordance with the New York
Business Corporation Law (the "NYBCL") following consummation of the Offer;
WHEREAS, it is proposed that Parent will make a cash tender offer (the
"Offer") in compliance with Section 14(d)(1) of the Exchange Act (as defined
below) and the rules and regulations promulgated thereunder to acquire all the
issued and outstanding Shares for $22.50 per Share (such amount, or any greater
amount per Share paid pursuant to the Offer, being hereinafter referred to as
the "Per Share Amount") net to the seller in cash, upon the terms and subject to
the conditions of this Agreement; and that the Offer will be followed by the
Merger, pursuant to which each issued and outstanding Share not beneficially
owned by Parent will be converted into the right to receive the Per Share
Amount, upon the terms and subject to the conditions provided herein; and
WHEREAS, the Special Committee has received the opinion of ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ & Co., Inc. ("▇▇▇▇▇▇▇▇▇▇▇") that, based on, and subject to, the various
assumptions and qualifications set forth in such opinion, as of the date
thereof, the consideration to be received by the holders of Shares (other than
Parent and the Merger Subsidiary) pursuant to the Offer and the Merger is fair
to such holders from a financial point of view;
Page 17 of 46
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements herein contained, and intending to be legally bound hereby,
Parent, Merger Subsidiary and the Company hereby agree as follows:
ARTICLE I
THE OFFER
---------
SECTION 1.01. The Offer. (a) Provided that this Agreement shall not have
---------
been terminated in accordance with Section 7.01, Merger Subsidiary shall, and
Parent shall cause Merger Subsidiary to, commence within the meaning of
Rule 14d-2 under the Exchange Act (as hereinafter defined) the Offer as promptly
as practicable after the date hereof, but in no event later than five business
days after the initial public announcement of Parent's intention to commence the
Offer. The Offer shall have a scheduled Expiration date 20 business days
following commencement of the Offer (the "Initial Expiration Date").
Notwithstanding any contrary provision of this Agreement, Merger Subsidiary (i)
if so requested by the Company at the direction of the Special Committee, will
extend the Offer for up to ten business days following in the event upon the
Initial Expiration Date, Merger Subsidiary shall not have accepted for payment
Shares pursuant to the Offer as a result of one or more of the conditions set
forth in Annex A hereto not having been satisfied or waived by Merger Subsidiary
and (ii) at its discretion may determine from time to time to extend the Offer
for no more than an aggregate of ten business days following the later of the
Initial Expiration Date and the first expiration date thereafter on which all of
the conditions set forth in Annex A shall have been satisfied or waived, if
applicable, provided, however, that in the event that Parent extends the Offer
pursuant to this clause (ii) all of the conditions to the Offer shall be deemed
to have been irrevocably satisfied for all purposes of the Offer and shall not
be asserted by Parent as a basis for not consumating the Offer and (iii) may,
from time to time at its discretion, extend the Offer in increments of up to
ten business days each, if one or more of the conditions set forth in Annex A
shall not have been satisfied or waived. Parent shall not accept for payment any
Shares tendered pursuant to the Offer unless there shall have been validly
tendered and not withdrawn prior to the expiration of the Offer such number of
Shares which, constitutes at least a majority of the Shares not beneficially
owned by Parent or Merger Subsidiary on a fully diluted basis (the "Minimum
Condition"). In addition to the Minimum Condition, the obligation of Parent to
accept for payment and pay for Shares tendered pursuant to the Offer shall be
subject only to the satisfaction of the conditions set forth in Annex A hereto.
Parent expressly reserves the right to increase the Per Share Amount. Without
the prior consent of the Special Committee, Parent will not (i) decrease the Per
Share Amount (ii) change the number of Shares to be purchased in the Offer (iii)
change the form of the consideration payable in the Offer (iv) amend or add to
the conditions to the Offer set forth in Annex A hereto; or (v) make any other
change in the terms or conditions of the Offer which is adverse to the holders
of Shares. Under no circumstances shall Parent waive the Minimum Condition. The
Per Share Amount shall, subject to any applicable withholding of taxes, be net
to the seller in cash, upon the terms and subject to the conditions of the
Offer. Following the satisfaction or waiver of the conditions to the Offer,
Parent shall cause Merger Subsidiary to accept for payment and pay for, in
accordance with the terms of the Offer, all Shares validly tendered pursuant to
the Offer and not withdrawn, as soon as it is permitted to do so pursuant to
applicable law.
(b) As soon as reasonably practicable on the date of commencement of the
Offer, Parent shall file with the Securities and Exchange Commission (the "SEC")
(i) a Tender Offer Statement on Schedule 14D-1, including the exhibits thereto
(together with all amendments and
2
Page 18 of 46
supplements thereto, the "Schedule 14D-1"), including the exhibits thereto with
respect to the Offer and (ii) a Rule 13e-3 Transaction Statement on Schedule
13E-3, including the exhibits thereto (together with all amendments and
supplements thereto, the "Schedule 13E-3") with respect to the Offer and the
other transactions contemplated hereby (the "Transactions"). The Schedule 14D-1
and the Schedule 13E-3 shall contain or shall incorporate by reference an offer
to purchase (the "Offer to Purchase") and forms of the related letter of
transmittal and any related summary advertisement (the Schedule 14D-1, the
Schedule 13E-3, the Offer to Purchase and such other documents, together with
all supplements and amendments thereto, being referred to herein collectively as
the "Offer Documents"). Parent, Merger Subsidiary and the Company agree to
correct promptly any information provided by any of them for use in the Offer
Documents which shall have become materially incorrect or misleading, and Parent
and Merger Subsidiary further agree to take all steps necessary to cause the
Schedule 14D-1 and the Schedule 13E-3 as so corrected to be filed with the SEC
and the other Offer Documents as so corrected to be disseminated to holders of
Shares, in each case as and to the extent required by applicable Law (as defined
hereinafter). The Company, the Special Committee and their respective counsel
shall be given the opportunity to review and comment on the Offer Documents and
any amendments thereto prior to the filing thereof with the SEC. Parent and
Merger Subsidiary shall provide the Company, the Special Committee and their
respective counsel with a copy of any written comments or telephonic
notification of any oral comments Parent or Merger Subsidiary may receive from
the SEC or its staff with respect to the Offer Documents promptly after the
receipt thereof. Parent and its counsel shall provide the Company and the
Special Committee and their respective counsel with a reasonable opportunity to
participate in all communications with the SEC and its staff, including any
meetings and telephone conferences, relating to the Transactions or this
Agreement.
SECTION 1.02. Company Action. (a) The Company hereby consents to the
--------------
Offer and represents that (i) the Special Committee and the Board at meetings
duly called and held on October 17, 1997, have each, by unanimous vote of all
directors present and voting, (A) determined that each of the Offer and the
Merger, is fair to and in the best interests of the shareholders of the Company
(other than Parent and Merger Subsidiary), (B) approved this Agreement and the
Transactions and (C) resolved to recommend that the shareholders of the Company
accept the Offer and tender their Shares pursuant to the Offer and approve and
adopt this Agreement and the Merger; provided that such recommendation may be
--------
withdrawn, modified or amended to the extent the Board or the Special Committee
deems it necessary to do so in the exercise of its fiduciary duties, as advised
by independent counsel, and (ii) ▇▇▇▇▇▇▇▇▇▇▇ has delivered to the Special
Committee a written opinion that, based on, and subject to, the various
assumptions and qualifications set forth in such opinion, as of the date
thereof, the consideration to be received by the holders of Shares (other than
Parent and the Merger Subsidiary) pursuant to the Offer and the Merger is fair
to such holders from a financial point of view to the holders of Shares. A copy
of such opinion has been provided to Parent. The Company hereby consents to the
inclusion in the Offer Documents of the recommendations of the Special Committee
and the Board described in the immediately preceding sentence.
3
Page 19 of 46
(b) On the same day as the Parent first files the Schedule 14D-1 with the
SEC, the Company shall file with the SEC a Solicitation/Recommendation Statement
on Schedule 14D-9, including all exhibits thereto (together with all amendments
and supplements thereto, the "Schedule 14D-9"), containing the recommendations
of the Special Committee and the Board described in Section 1.02(a) and shall
disseminate the Schedule 14D-9 to the extent required by Rule 14d-9 promulgated
under the Exchange Act, and any other applicable federal securities laws or
regulations. The Company, Parent and Merger Subsidiary agree to correct
promptly any information provided by any of them for use in the Schedule 14D-9
which shall have become materially incorrect or misleading, and the Company
further agrees to take all steps necessary to cause the Schedule 14D-9 as so
corrected to be filed with than SEC and disseminated to holders of Shares, in
each case as and to the extent required by applicable federal securities laws.
Parent and its counsel shall be given the opportunity to review and comment on
the Schedule 14D-9 and any amendments thereto prior to the filing thereof with
the SEC. The Company shall provide Parent and its counsel with a copy of any
written comments or telephonic notification of any oral comments the Company may
receive from the SEC or its staff with respect to the Schedule 14D-9 promptly
after the receipt thereof. The Company and its counsel shall provide Parent and
its counsel with a reasonable opportunity to participate in all communications
with the SEC and its staff, including any meetings and telephone conferences,
relating to the Transactions or this Agreement.
(c) In connection with the Transactions, the Company (i) shall promptly
furnish Parent with mailing labels containing the names and addresses of all
record holders of Shares and with security position listings of Shares held in
stock depositories, each as of a recent date, together with all other available
listings and computer files containing names, addresses and security position
listings of record holders and beneficial owners of Shares and (ii) shall
furnish Parent with such additional information, including, without limitation,
updated listings and computer files of shareholders, mailing labels and security
position listings, and such other assistance as Parent, Merger Subsidiary or
their agents may reasonably request in connection with the Offer and the Merger.
ARTICLE II
THE MERGER
----------
SECTION 2.01. The Merger. Upon the terms and subject to the conditions
----------
forth in this Agreement, and in accordance with the NYBCL, at the Effective
Time, as hereinafter defined, Merger Subsidiary shall be merged with and into
the Company. As a result of the Merger, the separate corporate existence of
Merger Subsidiary shall cease and the Company shall continue as the surviving
corporation of the Merger (the "Surviving Corporation").
SECTION 2.02. Effective Time; Closing. As promptly as practicable after
-----------------------
the satisfaction or, if permissible, waiver of the conditions set forth in
Article VI, the parties hereto shall cause the Merger to be consummated by
delivering to the Secretary of State of the State
4
Page 20 of 46
of New York the Certificate of Merger in such form as may be required by, and
executed and acknowledged in accordance with, the relevant provisions of the
NYBCL (such documents being referred to collectively as the "Merger Documents"),
and shall make all other filings and recordings required by applicable law in
connection with the Merger. The Merger shall become effective at the time of
filing of the appropriate Merger Documents with the Secretary of State of the
State of New York, or at such later time, which shall be as soon as reasonably
practicable, specified as the effective time in the Merger Documents (the
"Effective Time"). Prior to such filing, a closing shall be held at the offices
of ▇▇▇▇▇▇▇▇▇, Will & ▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇,
or such other place as the parties shall agree, for the purpose of confirming
the satisfaction or waiver, as the case may be, of the conditions set forth in
Article VI.
SECTION 2.03. Effect of the Merger. At the Effective Time, the effect of
--------------------
the Merger shall be as provided in the applicable provisions of the NYBCL.
Without limiting the generality of the foregoing, and subject thereto, at the
Effective Time all the property, rights, privileges, powers and franchises of
the Company and Merger Subsidiary shall vest in the Surviving Corporation, and
all debts, liabilities, obligations, restrictions, disabilities and duties of
the Company and Merger Subsidiary shall become the debts, liabilities,
obligations, restrictions, disabilities and duties of the Surviving Corporation.
SECTION 2.04. Restated Certificate of Incorporation; By-laws. (a) The
----------------------------------------------
Restated Certificate of Incorporation of the Company (the "Certificate of
Incorporation"), as in effect immediately prior to the Effective Time, shall be
the Certificate of Incorporation of the Surviving Corporation following the
Effective Time until thereafter amended as provided by the NYBCL.
(b) The By-laws of the Company, as in effect immediately prior to the
Effective Time, shall be the By-laws of the Surviving Corporation following the
Effective Time until thereafter amended as provided by law, the Certificate of
Incorporation of the Surviving Corporation and such By-laws.
SECTION 2.05. Directors and Officers. (a) The directors of the Company
----------------------
immediately prior to the Effective Time shall be the initial directors of the
Surviving Corporation, each to hold office in accordance with the Certificate of
Incorporation and By-laws of the Surviving Corporation.
(b) The officers of the Company immediately prior to the Effective Time
shall be the initial officers of the Surviving Corporation, in each case until
their respective successors are duly elected or appointed and qualified.
SECTION 2.06. Conversion of Securities. At the Effective Time, by virtue
------------------------
of the Merger and without any action on the part of Merger Subsidiary, the
Company or the holders of any of the following securities:
5
Page 21 of 46
(a) Each Share issued and outstanding immediately prior to the
Effective Time (other than Shares owned directly or indirectly by Parent,
Shares held in the treasury of the Company and Dissenting Shares (as
hereinafter defined)) shall be canceled and, subject to Section 2.08,
shall be converted automatically into the right to receive from the Company
an amount equal to the Per Share Amount in cash (the "Merger
Consideration") payable, without interest, to the holder of each such
Share, upon surrender, in the manner provided in Section 2.09, of the
certificate that formerly evidenced such Share;
(b) Each Share issued and outstanding immediately prior to the
Effective Time owned directly or indirectly by Parent shall remain issued
and outstanding and no payment or distribution shall be made with respect
thereto;
(c) Each share that is owned by the Company as treasury stock shall be
canceled and no payment or distribution shall be made with respect
thereto; and
(d) Each share of Common Stock, par value $.01 per share, of Merger
Subsidiary issued and outstanding immediately prior to the Effective Time
shall be canceled and no payment or distribution shall be made with
respect thereto.
SECTION 2.07. Options and Warrants. Immediately prior to the Effective
--------------------
Time, each outstanding option to purchase Shares (in each case, an "Option"),
whether or not then exercisable, shall be canceled and each holder of a canceled
Option shall be entitled to receive a payment (the "Exercise Amount") in cash
from the Company, in consideration for the cancellation of each such Option, at
the same time as the Merger Consideration is received by the holders of Shares,
equal to the product of (i) the number of Shares to be issued upon the exercise
of such Option and (ii) the excess, if any, of the amount paid per Share
pursuant to the Offer over the exercise price per Share previously subject to
such Option.
SECTION 2.08. Dissenting Shares. (a) Notwithstanding any provision of
-----------------
this Agreement to the contrary, Shares that are outstanding immediately prior to
the Effective Time and which are held by shareholders who shall have neither
voted in favor of the Merger nor consented thereto in writing and who shall have
filed with the Company, prior to the vote on the Merger by the Company's
shareholders, a written notice of intention to demand that such shareholder be
paid the fair value for his Shares if the proposed action is effected and
thereafter demanded properly in writing payment of fair value for such Shares in
accordance with, and otherwise complied in all respects with, Section 623 of the
NYBCL (collectively, the "Dissenting Shares") shall be canceled but not be
converted into or represent the right to receive the Merger Consideration. Such
shareholders shall be entitled instead to receive payment of the court
determined fair value of such Shares (which may be more than, equal to, or less
than the Merger Consideration) in accordance with the provisions of such Section
623, except that all Dissenting Shares held by shareholders who shall have
failed to perfect or who effectively shall have withdrawn or lost their rights
to fair value for such Shares under such Section 623 shall thereupon be deemed
to have been converted into and to have become exchangeable for, as of
6
Page 22 of 46
the Effective Time, the right to receive the Merger Consideration, without any
interest thereon, upon surrender, in the manner provided in Section 2.09, of the
certificate or certificates that formerly evidenced such Shares.
(b) The Company shall give Parent (i) prompt notice of any demands for
payment of fair value received by the Company, withdrawals of such demands, and
any other instruments served pursuant to the NYBCL and received by the Company
and (ii) the opportunity to direct all negotiations and proceedings with respect
to demands for payment of fair value under the NYBCL. The Company shall not,
except with the prior written consent of Parent, make any payment with respect
to any demands for payment of fair value or offer to settle or settle any such
demands.
SECTION 2.09. Surrender of Shares; Stock Transfer Books. (a) Prior to the
-----------------------------------------
Effective Time, Parent shall designate a bank or trust company to act as agent
(the "Paying Agent") for the holders of Shares in connection with the Merger to
receive the funds to which holders of Shares shall become entitled pursuant to
Section 2.06(a). Such funds shall be deposited with the Paying Agent by the
Surviving Corporation promptly following the Effective Time and shall be
invested by the Paying Agent as directed by the Surviving Corporation.
(b) As soon as practicable after the Effective Time, the Surviving
Corporation shall cause to be mailed to each person who was, at the Effective
Time, a holder of record of Shares entitled to receive the Merger Consideration
pursuant to Section 2.06(a) a form of letter of transmittal (which shall specify
that delivery shall be effected, and risk of loss and title to the certificates
evidencing such Shares (the "Certificates") shall pass, only upon proper
delivery of the Certificates to the Paying Agent) and instructions for use in
effecting the surrender of the Certificates pursuant to such letter of
transmittal. Upon surrender to the Paying Agent of a Certificate, together with
such letter of transmittal, duly completed and validly executed in accordance
with the instructions thereto, and such other documents as may be required
pursuant to such instructions, the holder of such Certificate shall be entitled
to receive in exchange therefor the Merger Consideration for each Share formerly
evidenced by such Certificate. No interest shall accrue or be paid on the
Merger Consideration payable upon the surrender of any Certificate for the
benefit of the holder of such Certificate. If payment of the Merger
Consideration is to be made to a person other than the person in whose name the
surrendered Certificate is registered on the stock transfer books of the
Company, it shall be a condition of payment that the Certificate so surrendered
shall be endorsed properly or otherwise be in proper form for transfer and that
the person requesting such payment shall have paid all transfer and other taxes
required by reason of the payment of the Merger Consideration to a person other
than the registered holder of the Certificate surrendered or shall have
established to the satisfaction of the Surviving Corporation that such taxes
either have been paid or are not applicable.
(c) At any time commencing 180 days after the Effective Time, the Surviving
Corporation shall be entitled to require the Paying Agent to deliver to it any
funds which had been made available to the Paying Agent and not disbursed to
holders of Shares (including,
7
Page 23 of 46
without limitation, all interest and other income received by the Paying Agent
in respect of all funds made available to it), and thereafter such holders shall
be entitled to look to the Surviving Corporation (subject to abandoned property,
escheat and other similar laws) only as general creditors thereof with respect
to any Merger Consideration that may be payable upon due surrender of the
Certificates held by them. Notwithstanding the foregoing, neither Parent, the
Company nor the Paying Agent shall be liable to any holder of a Share for any
Merger Consideration delivered in respect of such Share to a public official
pursuant to any abandoned property, escheat or other similar law.
(d) At the Effective Time, the stock transfer books of the Company shall be
closed and thereafter there shall be no further registration of transfers of
Shares on the records of the Company. From and after the Effective Time, except
for Parent, the holders of Shares outstanding immediately prior to the Effective
Time shall cease to have any rights with respect to such Shares except as
otherwise provided herein or by applicable law.
SECTION 2.10. Short-form Merger. If, following the termination of the
-----------------
Offer, the Merger Subsidiary, together with all Shares held by Parent if the
same shall have been transferred to the Merger Subsidiary, shall have acquired
ownership of at least 90% of the Shares, then in lieu of effecting the Merger,
the Board of Directors and shareholder of the Merger Subsidiary may cause the
Merger Subsidiary to be merged with and into the Company in accordance with
NYBCL Section 905. In such event, the foregoing provisions of this Article II
shall apply, mutatis mutandis.
SECTION 2.11. Special Purpose Subsidiary. At the option of the Parent,
--------------------------
the Merger may be effected through the Special Purpose Subsidiary in lieu of the
Merger Subsidiary. Should the Parent so elect all references to the Merger
Subsidiary in this Article II and elsewhere in this Agreement, shall, if
required to effect such election, be deemed to refer to the Special Purpose
Subsidiary.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
---------------------------------------------
The Company hereby represents and warrants to Parent and Merger Subsidiary
that:
SECTION 3.01. Organization and Qualification; Subsidiaries. Each of the
--------------------------------------------
Company and each material subsidiary of the Company (a "Subsidiary") is a
corporation duly organized, validly existing and in good standing under the laws
of the jurisdiction of its organization and has the requisite power and
authority and all necessary governmental approvals to own, lease and operate its
properties and to carry on its business as it is now being conducted, except
where the failure to be so organized, existing or in good standing or to have
such power, authority and governmental approvals would not, individually or in
the aggregate, have a Material Adverse Effect (as defined below). The Company
and each Subsidiary is duly qualified or licensed as
8
Page 24 of 46
a foreign corporation to do business, and is in good standing, in each
jurisdiction where the character of the properties owned, leased or operated by
it or the nature of its business makes such qualification or licensing
necessary, except for such failures to be so qualified or licensed and in good
standing that would not, individually or in the aggregate, have a Material
Adverse Effect. The term "Material Adverse Effect" means any change or effect
that is or is reasonably likely to have a material adverse effect on the
business, results of operations or financial condition of the Company and the
Subsidiaries taken as a whole.
SECTION 3.02. Certificate of Incorporation and By-laws. The Company has
----------------------------------------
heretofore furnished to Parent a complete and correct copy of the Certificate of
Incorporation and the By-laws or equivalent organizational documents, each as
amended to date, of the Company. Such Certificate of Incorporation, By-laws or
equivalent organizational documents are in full force and effect, and neither
the Company nor any Subsidiary is in violation of any provision of its
Certificate of Incorporation, By-laws or equivalent organizational documents.
SECTION 3.03. Capitalization. The authorized capital stock of the Company
--------------
consists of 45,000,000 Shares and 2,000,000 shares of preferred stock, par value
$1.00 per share. As of September 30, 1997, 26,055,290 Shares are issued and
outstanding, all of which are validly issued, fully paid and nonassessable, and
as of October 16, 1997, 628,000 options were outstanding pursuant to the
Company's employee stock option plans, each such option entitling the holder
thereof to purchase one Share. Except as set forth above, there are no options,
warrants or other rights, agreements, arrangements or commitments of any
character issued or authorized by the Company relating to the issued or unissued
capital stock of the Company or any Subsidiary or obligating the Company or any
Subsidiary to issue or sell any shares-of capital stock of, or other equity
interests in, the Company or any Subsidiary. All Shares subject to issuance as
aforesaid, upon issuance on the terms and conditions specified in the
instruments pursuant to which they are issuable, will be duly authorized,
validly issued, fully paid and nonassessable. There are no outstanding
contractual obligations of the Company or any Subsidiary to repurchase, redeem
or otherwise acquire any Shares or any capital stock of any Subsidiary or to
provide funds to, or make any investment (in the form of a loan, capital
contribution or otherwise) in, any person. Each outstanding share of capital
stock of each Subsidiary is duly authorized, validly issued, fully paid and
nonassessable and each such share owned by the Company or another Subsidiary is
free and clear of all security interests, liens, claims, pledges, options,
rights of first refusal, agreements, limitations on the Company's or such other
Subsidiary's voting rights, charges and other encumbrances of any nature
whatsoever.
SECTION 3.04. Authority Relative to this Agreement. The Company has all
------------------------------------
necessary corporate power and authority to execute and deliver this Agreement,
to perform its obligations hereunder and to consummate the Transactions. The
execution and delivery of this Agreement by the Company, the performance by the
Company of its obligations hereunder and the consummation by the Company of the
Transactions have been duly and validly authorized by all necessary corporate
action and no other corporate proceedings on the part of the Company are
necessary to authorize this Agreement or to consummate the Transactions (other
than, with respect to the Merger, the approval and adoption of this Agreement by
the holders of a majority
9
Page 25 of 46
of the then outstanding Shares if and to the extent required by applicable law,
and the filing and recordation of appropriate merger documents as required by
the NYBCL). This Agreement has been duly and validly executed and delivered by
the Company and, assuming the due authorization, execution and delivery by
Parent and Merger Subsidiary, constitutes a legal, valid and binding obligation
of the Company enforceable against the Company in accordance with its terms,
subject to applicable bankruptcy, reorganization, insolvency, moratorium and
other laws affecting creditors' rights generally from time to time in effect and
to general equitable principles. The restrictions on business combinations
contained in Section 912 of the NYBCL have been satisfied with respect to the
Transactions.
SECTION 3.05. No Conflict; Required Filings and Consents. (a) Except as
------------------------------------------
disclosed on Schedule 3.05 of the disclosure letter from the Company to
Merger Subsidiary dated as of the date hereof (the "Disclosure Letter"), the
execution and delivery of this Agreement by the Company do not, and the
performance of this Agreement by the Company will not (i) conflict with or
violate the Certificate of Incorporation or By-laws or equivalent organizational
documents of the Company or any Subsidiary (ii) to the best knowledge of the
Company, and subject to compliance with the Laws (as defined below) and filings
referred to in clause (i) of Section 3.05(b) hereof, conflict with or violate
any United States federal, state or local or any foreign statute, law, rule,
regulation, ordinance, code, order, or any other requirement or rule of law (a
"Law"), applicable to the Company or any Subsidiary or by which any property or
asset of the Company or any Subsidiary is bound or affected, or (iii) to the
best knowledge of the Company result in any breach of or constitute a default
(or an event which with notice or lapse of time or both would become a default)
under, or give to others any right of termination, amendment, acceleration or
cancellation of, or result in the creation of a lien or other encumbrance on any
property or asset of the Company or any Subsidiary pursuant to, any note, bond,
mortgage, indenture, contract, agreement, lease, license, permit, franchise or
other instrument or obligation to which the Company or any Subsidiary is a party
or by which the Company or any Subsidiary or any property or asset of either of
them is bound or affected, except in the case of each of clauses (ii) and (iii)
above, for any such conflicts, violations, breaches, defaults or other
occurrences which would not, individually or in the aggregate, have a Material
Adverse Effect or prevent or materially delay the performance by the Company of
its obligations under this Agreement or the consummation of the Offer, the
Merger and the short-form merger referred to in Section 2.10 ("Short-Form
Merger").
(b) The execution and delivery of this Agreement by the Company do not, and
the performance of this Agreement by the Company will not, require any consent,
approval, authorization or permit of, or filing with or notification to, any
United States federal, state or local or any foreign government or any court,
administrative or regulatory agency or commission or other governmental
authority or agency, domestic or foreign (a "Governmental Entity"), except (i)
for applicable requirements, if any, of the Exchange Act, French securities
laws, state securities or "blue sky" laws ("Blue Sky Laws") and state takeover
laws and the filing of the applicable Merger Documents with the Secretary of
State of the State of New York and (ii) where failure to obtain such consents,
approvals, authorizations or permits, or to make such filings or notifications,
would not, individually or in the aggregate have a Material Adverse
10
Page 26 of 46
Effect or prevent or materially delay the performance by the Company of any of
its obligations under this Agreement or the consummation of any of the
Transactions.
SECTION 3.06. Compliance. Except as previously disclosed to Parent,
----------
neither the Company nor any Subsidiary is in conflict with, or in default or
violation of (i) any Law applicable to the Company or any Subsidiary or by which
any property or asset of the Company or any Subsidiary is bound or affected, or
(ii) any note, bond, mortgage, indenture, contract, agreement, lease, license,
permit, franchise or other instrument or obligation to which the Company or any
Subsidiary is a party or by which the Company or any Subsidiary or any property
or asset of the Company or any Subsidiary is bound or affected, except for any
such conflicts, defaults or violations that would not, individually or in the
aggregate, have a Material Adverse Effect or prevent or materially delay the
performance by the Company of any of its obligations under this Agreement or the
consummation of the Offer, the Merger and the Short-Form Merger.
SECTION 3.07. SEC Filings; Financial Statements. (a) The Company has
---------------------------------
filed all forms, reports and documents required to be filed by it with the SEC
since December 31, 1995 (collectively, the "SEC Reports"). To the best
knowledge of the Company, the SEC Reports (i) were prepared in all material
respects in accordance with the applicable requirements of the Securities Act of
1933, as amended (the "Securities Act"), and the Exchange Act, as the case may
be, and the rules and regulations thereunder and (ii) did not at the time they
were filed contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to make the
statements made therein, in the light of the circumstances under which they were
made, not misleading. No Subsidiary is required to file any form, report or
other document with the SEC.
(b) To the best knowledge of the Company, each of the consolidated
financial statements (including, in each case, any notes thereto) contained in
the SEC Reports was prepared in accordance with United States generally accepted
accounting principles applied on a consistent basis throughout the periods
indicated (except as may be indicated in the notes thereto or, in the case of
the unaudited interim financial statements, as permitted by Form 10-Q under the
Exchange Act) and each fairly presented the consolidated financial position,
results of operations and changes in financial position of the Company and the
consolidated Subsidiaries as at the respective dates thereof and for the
respective periods indicated therein, in all material respects except that the
unaudited interim financial statements are subject to normal and recurring year-
end adjustments which are not expected to be material in amounts.
(c) To the best knowledge of the Company, except as and to the extent set
forth on the consolidated balance sheet of the Company and the consolidated
Subsidiaries at December 31, 1996, including the notes thereto, included in the
Company's Annual Report on Form 10-K for the fiscal year then ended, or on the
unaudited consolidated balance sheet of the Company and the consolidated
Subsidiaries at June 30, 1997, including the notes thereto, included in the
Company's Quarterly Report on Form 10-Q for the period then ended or in any
other SEC Report filed prior to the date hereof, the Company and the
consolidated Subsidiaries have no liability or obligation of any nature (whether
accrued,
11
Page 27 of 46
absolute, contingent or otherwise) which would be required to be reflected on a
consolidated balance sheet, or in the notes thereto, prepared in accordance with
generally accepted accounting principles, except for liabilities and obligations
incurred in the ordinary course of business consistent with past practice since
June 30, 1997 or liabilities and obligations which would not have a Material
Adverse Effect.
SECTION 3.08. Offer Documents; Schedule 14D-9; Schedule 13E-3; Proxy
------------------------------------------------------
Statement. None of the information supplied by the Company specifically for
---------
inclusion in the Schedule 14D-9, the Offer Documents or the Schedule 13E-3
shall, at the respective times the Schedule 14D-9, the Offer Documents, the
Schedule 13E-3 or any amendments or supplements thereto are filed with the SEC
or are first published, sent or given to shareholders of the Company, as the
case may be, 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 made therein, in the light of the circumstances under which they
are made, not misleading. Neither the proxy statement to be sent to the
shareholders of the Company in connection with the Shareholders' Meeting (as
hereinafter defined) nor the information statement to be sent to such
shareholders, as appropriate (such proxy statement or information statement, as
amended or supplemented, being referred to herein as the "Proxy Statement"),
shall, at the date the Proxy Statement (or any amendment or supplement thereto)
is first mailed to shareholders of the Company or at the time of the
Shareholders' Meeting contain any untrue statement with respect to any material
fact, or omit to state any material fact required to be stated therein or
necessary in order to make the statements made therein, in the light of the
circumstances under which they are made, not misleading or necessary to correct
any statement in any earlier communication with respect to the solicitation of
proxies for the Shareholders' Meeting which shall have become materially
incorrect or misleading. Notwithstanding the foregoing, the Company makes no
representation and warranty with respect to information supplied by Parent,
Merger Subsidiary or any of their representatives which is contained in any of
the foregoing documents or the Offer Documents. The Schedule 14D-9 and the
Proxy Statement shall comply in all material respects as to form with the
requirements of the Exchange Act.
SECTION 3.09. Brokers. No broker, finder or investment banker (other than
-------
▇▇▇▇▇▇▇▇▇▇▇) is entitled to any brokerage, finder's or other fee or commission
in connection with the Transactions based upon arrangements made by or on behalf
of the Company. The Company has heretofore furnished to Parent a complete and
correct copy of all agreements between the Company and ▇▇▇▇▇▇▇▇▇▇▇ pursuant to
which such firm would be entitled to any payment relating to the Transactions.
12
Page 28 of 46
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
OF PARENT AND MERGER SUBSIDIARY
-------------------------------
Parent and Merger Subsidiary hereby, jointly and severally, represent
and warrant to the Company that:
SECTION 4.01. Corporate Organization. Parent is a societe anonyme
----------------------
duly organized and validly existing under the laws of the Republic of France and
Merger Subsidiary is a corporation duly organized, validly existing and in good
standing under the laws of the State of New York.
SECTION 4.02. Authority Relative to this Agreement. Each of Parent
------------------------------------
and Merger Subsidiary has all necessary corporate power and authority to execute
and deliver this Agreement, to perform its obligations hereunder and to
consummate the Transactions. The execution and delivery of this Agreement by
Parent and Merger Subsidiary, the performance by Parent and Merger Subsidiary of
their respective obligations hereunder and the consummation by Parent and Merger
Subsidiary of the Transactions have been duly and validly authorized by all
necessary corporate action and no other corporate proceedings on the part of
Parent or Merger Subsidiary are necessary to authorize this Agreement or to
consummate the Transactions (other than, with respect to the Merger, the filing
and recordation of appropriate Merger Documents as required by the NYBCL). This
Agreement has been duly and validly executed and delivered by Parent and Merger
Subsidiary and, assuming the due authorization, execution and delivery by the
Company, constitutes a legal, valid and binding obligation of each of Parent and
Merger Subsidiary enforceable against each of Parent and Merger Subsidiary in
accordance with its terms, subject to applicable bankruptcy, reorganization,
insolvency, moratorium and other laws affecting creditors' rights generally from
time to time in effect and to general equitable principles.
SECTION 4.03. No Conflict; Required Filings and Consents. (a) The
------------------------------------------
execution and delivery of this Agreement by Parent and Merger Subsidiary do not,
and the performance of this Agreement by Parent and Merger Subsidiary will not
(i) conflict with or violate the statuts (By-laws) of Parent or the Certificate
of Incorporation or By-laws of Merger Subsidiary (ii) conflict with or violate
any Law applicable to Parent or Merger Subsidiary or by which any property or
asset of either of them is bound or affected or (iii) result in any breach of or
constitute a default (or an event which with notice or lapse of time or both
would become a default) under, or give to others any rights of termination,
amendment, acceleration or cancellation of, or result in the creation of a lien
or other encumbrance on any property or asset of Parent or Merger Subsidiary
pursuant to, any note, bond, mortgage, indenture, contract, agreement, lease,
license, permit, franchise or other instrument or obligation to which Parent or
Merger Subsidiary is a party or by which Parent or Merger Subsidiary or any
property or asset of either of them is bound or affected, except for any such
conflicts, violations, breaches, defaults or other occurrences which would not
prevent, individually or in the aggregate
13
Page 29 of 46
have a Parent Material Adverse Effect or materially delay the performance by
Parent or Merger Subsidiary of any of its obligations under this Agreement or
the consummation of any of the Transactions. The term "Parent Material Adverse
Effect" means any change of effect that is or is reasonably likely to be
materially adverse to the business, results of operations or financial condition
of Parent and its subsidiaries taken as a whole.
(b) The execution and delivery of this Agreement by Parent and Merger
Subsidiary do not, and the performance of this Agreement by Parent and Merger
Subsidiary will not, require any consent, approval, authorization or permit of,
or filing with or notification to, any Governmental Entity, except (i) for
applicable requirements, if any, of the Exchange Act, French securities laws,
Blue Sky Laws and state takeover laws, and the filing of the applicable Merger
Documents with the Secretary of State of the State of New York and (ii) where
failure to obtain such consents, approvals, authorizations or permits, or to
make such filings or notifications, would not, individually or in the aggregate,
have a Parent Material Adverse Effect or prevent or materially delay the
performance by Parent or Merger Subsidiary of any of its obligations under this
Agreement or the consummation of any of the Transactions.
SECTION 4.04. Offer Documents; Proxy Statement. None of the Offer
--------------------------------
Documents nor any of the information supplied by Parent or Merger Subsidiary
specifically for inclusion in the Schedule 14D-9 shall, at the time the
respective documents or the Schedule 14D-9 are filed with the SEC or published,
sent or given to shareholders of the Company, as the case contain any untrue
statement of a material fact or omit to state any fact required to be stated
therein or necessary in order to make the statements made therein, in the light
of the circumstances under which they are made, not misleading. The information
supplied by Parent for inclusion in the Statement will not, on the date the
Proxy Statement (or any amendment or supplement thereto) is first mailed to
shareholders of the Company, or at the time of the Shareholders' Meeting,
contain any statement which, at such time and in light of the circumstances
under which it is made, is incorrect or misleading with respect to any material
fact, or omit to state any material fact required to be stated therein or
necessary in order to make the statements therein not materially incorrect or
misleading or necessary to correct any statement in any earlier communication
with respect to the solicitation of proxies for the Shareholders' Meeting which
shall have become materially incorrect or misleading. Notwithstanding the
foregoing, Parent and Merger Subsidiary make no representation or warranty with
respect to any information supplied by the Company or any of its representatives
which is contained in any of the foregoing documents or the Offer Documents.
The Offer Documents shall comply in all material respects as to form with the
requirements of the Exchange Act and the rules and regulations thereunder.
SECTION 4.05. Brokers. No broker, finder or investment banker (other
-------
than ▇.▇. ▇▇▇▇▇▇ Securities, Inc.) is entitled to any brokerage, finder's or
other fee or commission in connection with the Transactions based upon
arrangements made by or on behalf of Parent or Merger Subsidiary.
14
Page 30 of 46
SECTION 4.06. Ownership of Merger Subsidiary. As of the date hereof
------------------------------
and through and including the Effective Time, all of the outstanding capital
stock of the Merger Subsidiary will be owned directly or indirectly by Parent.
As of the date hereof and through and including the Effective Time, there will
be no options, warrants or other rights (including registration rights),
agreements, arrangements or commitments to which Merger Subsidiary is a party of
any character relating to the issued or unissued capital stock of, or other
equity interests in, Merger Subsidiary or obligating Merger Subsidiary to grant,
issue or sell any shares of the capital stock of, or other equity interests in,
Merger Subsidiary, by sale, lease, license or otherwise, except as related to
the financing of the Offer. There are no obligations, contingent or otherwise,
of Merger Subsidiary to repurchase, redeem or otherwise acquire any shares of
the capital stock of Merger Subsidiary.
SECTION 4.07. Financing. Parent has or will have available, prior to
---------
the expiration of the Offer, and will, as necessary, provide to Merger
Subsidiary on a timely basis, sufficient funds to enable Parent and Merger
Subsidiary to consummate the Offer, the Merger and the other transactions
contemplated hereby and to pay all related fees and expenses.
SECTION 4.08. Information Known by Parent or Certain Subsidiaries.
---------------------------------------------------
As of the date hereof, neither Parent nor any of its subsidiaries (other than
the Company and its subsidiaries) has actual knowledge of any breach by the
Company of any of its representations and warranties set forth in Article III
hereof.
ARTICLE V
COVENANTS
---------
SECTION 5.01. Conduct of the Business Pending the Merger. The
------------------------------------------
Company covenants and agrees that, between the date of this Agreement and the
Effective Time, unless Parent shall otherwise agree in writing, the businesses
of the Company and the Subsidiaries shall be conducted only in, and the Company
and the Subsidiaries shall not take any action except in, the ordinary course of
business and in a manner consistent with past practice; and the Company shall
use its reasonable best efforts to preserve substantially intact the business
organization of the Company and the Subsidiaries and to preserve the current
relationships of the Company and the Subsidiaries with customers, suppliers and
other persons with which the Company or any Subsidiary has significant business
relations.
SECTION 5.02. Shareholders' Meeting; Voting of Shares. If necessary
---------------------------------------
in order to consummate the Merger, the Company, acting through the Board, shall,
in accordance with applicable law and the Company's Certificate of Incorporation
and By-laws (a) duly call, give notice of, convene and hold a special meeting of
its shareholders as soon as practicable following consummation of the Offer for
the purpose of considering and taking action on this Agreement and the
Transactions (the "Shareholders' Meeting") and (b) (i) include in the Proxy
Statement the recommendation of the Board and the Special Committee that the
shareholders of the Company approve and adopt this Agreement and the Merger,
subject to their respective fiduciary
15
Page 31 of 46
duties as advised by independent counsel and (ii) use its reasonable best
efforts to obtain such approval and adoption. At the Shareholders' Meeting,
or any other meeting of Shareholders called for the purpose, each of Parent and
Merger Subsidiary shall cause all Shares beneficially owned and hereafter
acquired, including without limitation pursuant to the Offer by it and its
subsidiaries to be voted in favor of the approval and adoption of this Agreement
and the Transactions.
SECTION 5.03. Proxy Statement. If required by applicable law, as
---------------
soon as practicable following consummation of the Offer, the Company shall file
the Proxy Statement with the SEC under the Exchange Act, and shall use its
reasonable best efforts to have the Proxy Statement cleared by the SEC. Parent,
Merger Subsidiary and the Company shall cooperate with each other in the
preparation of the Proxy Statement, and the Company shall notify Parent of the
receipt of any comments of the SEC with respect to the Proxy Statement and of
any requests by the SEC for any amendment or supplement thereto or for
additional information and shall provide to Parent promptly copies of all
correspondence between the Company or any representative of the Company and the
SEC. The Company shall give Parent and its counsel the opportunity to review
the Proxy Statement prior to its 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, Parent and Merger Subsidiary agrees to use its reasonable best
efforts, after consultation with the other parties hereto, to respond promptly
to all such comments of and requests by the SEC and to cause the Proxy Statement
and all required amendments and supplements thereto to be mailed to the holders
of Shares entitled to vote at the Shareholders' Meeting at the earliest
practicable time.
SECTION 5.04. Access to Information; Confidentiality. (a) From the
--------------------------------------
date hereof to the Effective Time, the Company shall, and shall cause the
Subsidiaries and the officers, directors, employees, auditors and agents of the
Company and the Subsidiaries to, afford the officers, employees and agents,
including financing sources, of Parent and Merger Subsidiary reasonable access
during normal business hours and without disrupting the orderly conduct of
business by the Company and its Subsidiaries to the officers, employees, agents,
properties, offices, plants and other facilities, books and records of the
Company and each Subsidiary, and shall furnish Parent and Merger Subsidiary with
all financial, operating and other data and information as Parent or Merger
Subsidiary, through its officers, employees or agents, may reasonably request.
(b) No investigation pursuant to this Section 5.04 shall affect any
representation or warranty in this Agreement of any party hereto or any
condition to the obligations of the parties hereto.
SECTION 5.05. Directors' and Officers' Indemnification and Insurance.
------------------------------------------------------
(a) The By-laws of the Surviving Corporation shall contain provisions no less
favorable with respect to indemnification than are set forth in Article IX of
the By-laws of the Company, which provisions shall not be amended, repealed or
otherwise modified for a period of six years from the Effective Time in any
manner.that would affect adversely the rights thereunder of individuals
16
Page 32 of 46
who at the Effective Time were directors, officers, employees, fiduciaries or
agents of the Company, unless such modification shall be required by law.
(b) The Company shall, to the fullest extent permitted under
applicable law and regardless of whether the Merger becomes effective, indemnify
and hold harmless, and, after the Effective Time, the Surviving Corporation
shall, to the fullest extent permitted under applicable law, indemnify and hold
harmless, each present and former director, officer, employee, fiduciary and
agent of the Company and each Subsidiary, including but not limited to the
members of the Special Committee (collectively, the "Indemnified Parties")
against all costs and expenses (including attorneys' fees), judgments, fines,
losses, claims, damages, liabilities and settlement amounts paid in connection
with any claim, action, suit, proceeding or investigation (whether arising
before or after the Effective Time), whether civil, criminal, administrative or
investigative, arising out of or pertaining to any action or omission in their
capacity as an officer, director, employee, fiduciary or agent, whether
occurring before or after the Effective Time, until the expiration of the
statute of limitations relating thereto (and shall pay any expenses as they are
incurred in advance of the final disposition of such action or proceeding to
each Indemnified Party to the fullest extent permitted under the NYBCL, upon
receipt from the Indemnified Party to whom expenses are advanced of any
undertaking to repay such advances required under the NYBCL). In the event of
any such claim, action, suit, proceeding or investigation (i) the Company or the
Surviving Corporation, as the case may be, shall pay the fees and expenses of
counsel selected by the Indemnified Parties, which counsel shall be reasonably
satisfactory to the Company or the Surviving Corporation, promptly after
statements therefor are received and (ii) the Company and the Surviving
Corporation shall cooperate in the defense of any such matter; provided,
however, that neither the Company nor the Surviving Corporation shall be liable
for any settlement effected without its written consent (which consent shall not
be unreasonably withheld); and provided further that neither the Company nor the
Surviving Corporation shall be obligated pursuant to this Section 5.05(b) to pay
the fees and expenses of more than one counsel (plus appropriate local counsel)
for all Indemnified Parties in any single action except (x) that the persons who
served as directors of the Company who were not designees of Parent shall be
entitled to retain one additional counsel (plus appropriate local counsel) to
represent them at the expense of the Company or the Surviving Corporation, and
(y) to the extent that two or more of such Indemnified Parties shall have
conflicting interests in the outcome of such action, in which case such
additional counsel (including local counsel) as may be required to avoid any
such conflict or likely conflict may be retained by the Indemnified Parties at
the expense of the Company or the Surviving Corporation; and provided further
that, in the event that any claim for indemnification is asserted or made within
the period prior to the expiration of the applicable statute of limitations, all
rights to indemnification in respect of such claim shall continue until the
disposition of such claim. All rights under this Section 5.05(b) shall be deemed
to be a contract between the Company and each of the Indemnified Parties.
(c) The Company and, after the Effective Time, the Surviving
Corporation shall maintain in effect for six years from the Effective Time, if
available, the current directors' and officers' liability insurance policies
maintained by the Company covering those persons who are
17
Page 33 of 46
currently covered by such policies (provided that the Surviving Corporation may
substitute therefor policies of at least the same coverage containing terms and
conditions less favorable) with respect to matters occurring prior to the
Effective Time.
(d) In the event the Company or the Surviving Corporation or any of
their respective successors or assigns (i) consolidates with or merges into any
other person and shall not be the continuing or surviving corporation or entity
of such consolidation or merger or (ii) transfers all or substantially all of
its properties and assets to any other person, then, and in each such case,
proper provision shall be made so that the successors and assigns of the Company
or the Surviving Corporation, as the case may be, or, at Parent's option,
Parent, shall assume the obligations set forth (a) in this Section 5.05, (b) in
the indemnification agreement dated October 8, 1997, between the Company and the
members of the Special Committee and (c) in the indemnification agreements dated
as of March 1, 1994, between the Company and certain directors and/or officers
of the Company.
SECTION 5.06. Notification of Certain Matters. The Company shall
-------------------------------
give prompt notice to Merger Subsidiary and Parent, and Merger Subsidiary and
Parent shall give prompt notice to the Company, of (i) the occurrence or
nonoccurrence of any event the occurrence or nonoccurrence of which would be
likely to cause any representation or warranty contained in this Agreement to be
untrue or inaccurate in any material respect and (ii) any failure of the
Company, Parent or Merger Subsidiary, as the case may be, to comply with or
satisfy in any material respect any covenant, condition or agreement to be
complied with or satisfied by it hereunder; provided, however, that the delivery
of any notice pursuant to this Section 5.06 shall not limit or otherwise affect
the remedies available hereunder to the party receiving such notice.
SECTION 5.07. Further Action; Best Efforts. Upon the terms and
----------------------------
subject to the conditions hereof, each of the parties hereto shall use its best
efforts to take, or cause to be taken, all appropriate action, and to do, or
cause to be done, all things necessary, proper or advisable under applicable
laws and regulations to consummate and make effective the Transactions,
including, without limitation, using its reasonable best efforts to obtain all
licenses, permits, consents, approvals, authorizations, qualifications and
orders of each Governmental Entity and parties to contracts with the Company and
the Subsidiaries as are necessary for the consummation of the Transactions and
to fulfill the conditions to the Offer and the Merger. In case at any time
after the Effective Time any further action is necessary or desirable to carry
out the purposes of this Agreement, the proper officers and directors of each
party to this Agreement and the Surviving Corporation shall use their best
efforts to take all such action.
SECTION 5.08. Public Announcements. Parent, Merger Subsidiary and
--------------------
the Company shall consult with each other before issuing any press release or
otherwise making any public statements with respect to this Agreement or any
Transaction and shall not issue any such press release or make any such public
statement prior to such consultation, except as may be required by law or any
listing agreement with a securities exchange to which Parent or the Company is a
party.
18
Page 34 of 46
SECTION 5.09. Financing. Parent shall ensure that it or Merger
---------
Subsidiary, as the case may be, has sufficient funds to acquire all the
outstanding Shares in the Offer and the Merger and pay all related fees and
expenses.
ARTICLE VI
CONDITIONS TO THE MERGER
------------------------
SECTION 6.01. Conditions to the Merger. The respective obligations
------------------------
of each party to effect the Merger shall be subject to the satisfaction at or
prior to the Effective Time of the following conditions:
(a) Shareholder Approval. This Agreement and the Merger shall have
--------------------
been approved and adopted by the affirmative vote of the shareholders of
the Company to the extent required by the NYBCL and the Certificate of
Incorporation and By-laws of the Company;
(b) No Order. No Governmental Entity shall have enacted, issued,
--------
promulgated, enforced or entered any Law (whether temporary, preliminary or
permanent) which is then in effect and has the effect of preventing or
prohibiting consummation of the Merger or the effective operation of the
business of the Company and the Subsidiaries after the Effective Time;
(c) Offer. Merger Subsidiary or its permitted assignee shall have
-----
purchased all Shares validly tendered and not withdrawn pursuant to the
Offer; provided, however, that this condition shall not be applicable to
the obligations of Parent or Merger Subsidiary if, in breach of this
Agreement or the terms of the Offer, Parent fails to purchase any Shares
validly tendered and not withdrawn pursuant to the Offer.
ARTICLE VII
TERMINATION, AMENDMENT AND WAIVER
---------------------------------
SECTION 7.01. Termination. This Agreement may be terminated and the
-----------
Merger and the other Transactions may be abandoned at any time prior to the
Effective Time, notwithstanding any requisite approval and adoption of this
Agreement and the Transactions by the shareholders of the Company:
(a) by mutual written consent duly authorized by the Boards of
Directors of Parent, Merger Subsidiary and the Company at the direction of
the Special Committee; or
19
Page 35 of 46
(b) by either Parent or the Company at the direction of the Special
Committee if (i) the Effective Time shall not have occurred on or before
March 31, 1998; provided, however, that the right to terminate this
Agreement under this Section 7.01(b) 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) any court of competent jurisdiction or other
Governmental Entity shall have issued an order, decree, ruling or taken any
other action restraining, enjoining or otherwise prohibiting the Merger and
such order, decree, ruling or other action shall have become final and
nonappealable; or
(c) by Parent, if (i) due to an occurrence or circumstance that would
result in a failure to satisfy any condition set forth in Annex A hereto,
Parent shall have terminated the Offer or permitted the Offer to expire in
accordance with the terms of this Agreement without having accepted any
Shares for payment thereunder, unless such termination or such expiration
shall have been caused by or resulted from the failure of Parent or Merger
Subsidiary to perform in any material respect any material covenant or
agreement of either of them contained in this Agreement or the material
breach by Parent or Merger Subsidiary of any material representation or
warranty of either of them contained in this Agreement or (ii) prior to the
purchase of Shares pursuant to the Offer, the Special Committee shall have
withdrawn or modified in a manner adverse to Parent or Merger Subsidiary
its approval or recommendation of the Offer, this Agreement or the Merger
or shall have resolved to do any of the foregoing; or
(d) by the Company, upon direction of the Special Committee, if due to
an occurrence or circumstance that would result in a failure to satisfy any
of the conditions set forth in Annex A hereto, Parent shall have (i) failed
to commence the Offer within 30 days following the date of this Agreement
or (ii) terminated the Offer or permitted the Offer to expire without
having accepted any Shares for payment thereunder unless such termination
or such Expiration shall have been caused by or resulted from the failure
of the Company to perform in any material respect any material covenant or
agreement of it contained in this Agreement or the material breach by the
Company of any material representation or warranty of it contained in this
Agreement; or
(e) by the Company, upon direction of the Special Committee, if any
representation or warranty of Parent and Merger Subsidiary in this
Agreement which is qualified as to materiality shall not be true and
correct in all respects or any such representation or warranty that is not
so qualified shall not be true and correct in any material respect, in each
case as if such representation or warranty was made as of such time on or
after the date of this Agreement; or Parent or Merger Subsidiary shall have
failed to perform in any material respect any obligation or to comply in
any material respect with any agreement or covenant of Parent or Merger
Subsidiary to be performed or complied with by it under this Agreement; or
20
Page 36 of 46
(f) by the Company, upon direction of the Special Committee, if the
Special Committee shall have withdrawn or modified its approval or
recommendation of the Offer, the Merger or this Agreement.
SECTION 7.02. Effect of Termination. In the event of the termination this
---------------------
Agreement pursuant to Section 7.01, this Agreement shall forthwith become void,
and there shall be no liability on the part of any party hereto, except (i) as
set forth in Section 8.01 and (ii) nothing herein shall relieve any party from
liability for any willful breach hereof.
SECTION 7.03. Amendment. This Agreement may be amended by the parties
---------
hereto by action taken by or on behalf of their respective governing bodies
(and, in the case of the Company, as approved by Special Committee) at any time
prior to the Effective Time; provided, however, that, after the approval and
adoption of this Agreement and the Merger by the shareholders of the Company, no
amendment may be made which would reduce the amount or change the type of
consideration into which each Share shall be converted upon consummation of the
Merger, impose conditions to the Merger other than set forth in Section 6.01 or
would otherwise amend or change the terms and conditions of the Merger in a
manner adverse to the holders of the Shares (other than Parent and its
affiliates) or would adversely affect the rights of the Indemnified Parties
under Section 5.05. This Agreement may not be amended except by an instrument
in writing signed by the parties hereto.
SECTION 7.04. Waiver. At any time prior to the Effective Time except as
------
otherwise provided in this Agreement, any party hereto may by action taken by or
on behalf of its governing body (i) extend the time for the performance of any
obligation or other act of any other party hereto (ii) waive any inaccuracy in
the representations and warranties contained herein or in any document delivered
pursuant hereto and (iii) waive compliance with any agreement or condition
contained herein, other than the Minimum Condition. Any such extension or
waiver shall be valid if set forth in an instrument in writing signed by the
party or parties to be bound thereby and, in the case of any extension or waiver
by which the Company is to be bound, only if approved by the Special Committee.
ARTICLE VIII
GENERAL PROVISIONS
------------------
SECTION 8.01. Non-Survival of Representations, Warranties and Agreements.
----------------------------------------------------------
The representations, warranties and agreements in this Agreement shall terminate
at the Effective Time or upon the termination of this Agreement pursuant to
Section 7.01, as the case may be, except that (i) the agreements set forth in
Articles II and VIII and Section 5.05 shall survive the Effective Time
indefinitely and (ii) the agreements set forth in Article VIII shall survive the
termination of this Agreement indefinitely.
21
Page 37 of 46
SECTION 8.02. Notices. All notices, requests, claims, demands and other
-------
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly given upon receipt) by delivery in person, by telecopy
or by registered or certified mail (postage prepaid, return receipt requested)
to the respective parties at the following addresses (or at such other address
for a party as shall be specified in a notice given in accordance with this
Section 8.02):
if to Parent or Merger Subsidiary:
Rexel S.A.
▇▇, ▇▇▇ ▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇
Telecopier No: (33-1) 42.85.09.98
Attention: General Counsel
with a copy to:
▇▇▇▇▇▇▇▇▇, Will & ▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier No: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
if to the Company:
Rexel,Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier No: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: General Counsel
22
Page 38 of 46
with copies to:
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier No: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇, Esq.
and
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier No: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
SECTION 8.03. Certain Definitions. For purposes of this Agreement, the
-------------------
term:
(a) "affiliate" of a specified person means a person who directly or
---------
indirectly through one or more intermediaries controls, is controlled by,
or is under common control with, such specified person;
(b) "beneficial owner" with respect to any Shares means a person who
----------------
shall be deemed to be the beneficial owner of such Shares (i) which such
person or any of its affiliates or associates (as such term is defined in
Rule 12b-2 promulgated under the Exchange Act) beneficially owns, directly
or indirectly (ii) which such person or any of its affiliates or associates
has, directly or indirectly (A) the right to acquire (whether such right is
exercisable immediately or subject only to the passage of time), pursuant
to any agreement, arrangement or understanding or upon the exercise of
consideration rights, exchange rights, warrants or options, or otherwise,
or (B) the right to vote pursuant to any agreement, arrangement or
understanding or (iii) which are beneficially owned, directly or
indirectly, by any other persons with whom such person or any of its
affiliates or associates or person with whom such person or any of its
affiliates or associates has any agreement, arrangement or understanding
for the purpose of acquiring, holding, voting or disposing of any Shares;
(c) "business day" means any day on which the principal offices of the
------------
SEC in Washington, D.C. are open to accept filings, or, in the case of
determining a date when any payment is due, any day on which banks are not
required or authorized by law or executive order to close in the City of
New York;
(d) "control" (including the terms "controlled by" and "under common
------- ------------- ------------
control with") means the possession, directly or indirectly or as trustee
------------
or executor, of the power to direct or cause the direction of the
management and policies of a person, whether through the ownership of
voting securities, as trustee or executor, by contract or credit
arrangement or otherwise;
23
Page 39 of 46
(e) "person" means an individual, corporation, partnership, limited
------
partnership, limited liability company, syndicate, person (including,
without limitation, a "person" as defined in Section 13(d)(3) of the
Exchange Act), trust, association or entity or government, political
subdivision, agency or instrumentality of a government; and
(f) "subsidiary" or "subsidiaries" of the Company, the Surviving
---------- ------------
Corporation, Parent or any other person means an affiliate controlled by
such person, directly or indirectly, through one or more intermediaries.
SECTION 8.04. Severability. If any term or other provision of this
------------
Agreement is invalid, illegal or incapable of being enforced by any rule of law,
or public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the Transactions is not affected in any manner materially adverse
to any party. Upon such determination that any term or other provision is
invalid, illegal or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in a mutually acceptable manner in
order that the Transactions be consummated as originally contemplated to the
fullest extent possible.
SECTION 8.05. Entire Agreement; Assignment. This Agreement constitute the
----------------------------
entire agreement among the parties with respect to the subject matter hereof and
supersede all prior agreements and undertakings, both written and oral, among
the parties, or any of them, with respect to the subject matter hereof. This
Agreement shall not be assigned by operation of law or otherwise, except that
Parent and Merger Subsidiary may assign all or any of their rights and
obligations hereunder to any wholly-owned subsidiary Parent provided that no
such assignment shall relieve the assigning party of its obligations hereunder
if such assignee does not perform such obligations.
SECTION 8.06. Parties in Interest. This Agreement shall be binding upon
-------------------
and inure solely to the benefit of each party hereto, and nothing in this
Agreement, express or implied, is intended to or shall confer upon any other
person any right, benefit or remedy of any nature whatsoever under or by reason
of this Agreement, other than the provisions of Section 2.07, Section 5.05 and
Section 8.08 (which are intended to be for the benefit of the persons covered
thereby and may be enforced by such persons).
SECTION 8.07. Specific Performance. The parties hereto agree that
--------------------
irreparable damage would occur in the event any provision of this Agreement was
not performed in accordance with the terms hereof and that the parties shall be
entitled to specific performance of the terms hereof, in addition to any other
remedy at law or in equity.
SECTION 8.08. Fees and Expenses. All fees and expenses incurred in
-----------------
connection with this Agreement and the Transactions shall be paid by the party
incurring such fees and expenses, whether or not such transactions are
consummated; provided, however, that the parties
24
Page 40 of 46
hereto agree that any fees and expenses incurred by the Special Committee shall
be paid by the Company.
SECTION 8.09. Governing Law. This Agreement and any disputes between the
-------------
parties related thereto shall be governed by, and construed in accordance with,
the laws of the State of New York (without regard to conflicts of laws principle
thereof). All actions and proceedings arising out of or relating to this
Agreement shall be heard and exclusively determined in any New York state or
federal court sitting in the County of New York and the parties hereto hereby
consent to the jurisdiction of such courts in any such action or proceeding.
SECTION 8.10. Headings. The descriptive headings contained in this
--------
Agreement are included for convenience of reference only and shall not affect in
any way the meaning or interpretation of this Agreement.
SECTION 8.11. Counterparts. This Agreement may be executed in one or more
------------
counterparts (including by facsimile transmission), and by the different parties
hereto in separate counterparts, each of which when executed shall be deemed to
be an original but all of which taken together shall constitute one and the same
agreement.
SECTION 8.12. Consent to Jurisdiction; Appointment of Agent for Service of
------------------------------------------------------------
Process. Parent hereby (a) irrevocably submits to the exclusive (except to the
-------
extent of an action to enforce a judgment relating hereto) jurisdiction of any
New York State and Federal courts sitting in New York City with respect to such
matters arising out of or relating hereto, (b) irrevocably agrees that all
claims with respect to such action or proceeding may be heard and determined in
such New York State or Federal court, (c) irrevocably waives the defense of an
inconvenient forum, lack of personal jurisdiction and improper venue, (d)
irrevocably consents to service of process upon it by mailing or delivering such
service to its registered office at ▇▇, ▇▇▇ ▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, (e)
irrevocably agrees that a final judgment in any such action or proceeding shall
be conclusive and may be enforced in other jurisdictions by suit on the judgment
or in any other manner provided by law and (f) to the extent that it or its
properties have or hereafter may acquire immunity from jurisdiction of any court
or from any legal process (whether through service or notice, attachment prior
to judgment, attachment in aid of execution, execution or otherwise),waives such
immunity in respect of its obligations under this Agreement. All parties hereto
hereby irrevocably waive a trial by jury in any proceedings referred to in the
preceding sentence.
25
Page 41 of 46
IN WITNESS WHEREOF, Parent, Merger Subsidiary and the Company have caused
this Agreement to be executed as of the date first written above by their
respective officers thereunto duly authorized.
REXEL S.A.
/s/ Alain Redheuil_____________________
------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Chairman and Chief Executive Officer
INTERNATIONAL TECHNICAL DISTRIBUTORS, INC.
/s/ Alain Redheuil_____________________
------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: President
REXEL, INC.
/s/▇▇▇▇▇▇ ▇. Guinchard_________________
----------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: President
26
Page 42 of 46
ANNEX A
CONDITIONS TO THE OFFER
-----------------------
Notwithstanding any other provision of the Offer, Parent shall not be
required to accept for payment or pay, subject to the applicable rules and
regulations of the SEC, including Rule 14e-1(c) under the Exchange Act, for any
Shares tendered pursuant to the Offer, and may terminate or amend the Offer to
the extent expressly provided in this Agreement and may postpone the acceptance
for payment of and payment for Shares tendered, if (i) the Minimum Condition
shall not have been satisfied or (ii) at any time on or after the date of this
Agreement, and prior to the acceptance for payment of Shares, any of the
following conditions shall exist:
(a) there shall have been instituted or be pending any action or
proceeding by any Governmental Entity seeking to (i) make illegal or
otherwise directly or indirectly restrain or prohibit or make materially
more costly the making of the Offer, the acceptance for payment of, or
payment for, any Shares by Parent or any other affiliate of Parent or the
consummation of the Merger; (ii) prohibit or limit materially the ownership
or operation by Parent or Merger Subsidiary of all or any material portion
of the business (as heretofore conducted) or assets (as heretofore owned or
operated) of the Company or any of its subsidiaries, or to compel the
Company, Parent or any of their subsidiaries to dispose of or hold separate
all or any material portion of the business or assets of the Company or any
of its subsidiaries, as a result of the Transactions; (iii) impose or
confirm material limitations on the ability of Parent or any affiliate of
Parent to exercise effectively full rights of ownership of any Shares,
including, without limitation, the right to vote any Shares acquired by
Parent pursuant to the Offer or otherwise on all matters properly presented
to the Company's shareholders, including, without limitation, the approval
and adoption of the Agreement and the Merger; or (iv) require divestiture
by Parent or any affiliate of Parent of any Shares;
(b) there shall have been any order or injunction issued, or any Law
enacted, entered, enforced, promulgated, amended, issued or deemed
applicable to Parent, the Company or any subsidiary or affiliate of Parent
or the Company which has resulted, or is reasonably likely to result,
directly or indirectly, in any of the consequences referred to in clauses
(i) through (iv) of paragraph (a) above;
(c) there shall have occurred any change, event or development that
has a Material Adverse Effect;
(d) there shall have occurred (i) any general suspension of, or
limitation on prices for, trading in securities of the Company on the NYSE;
(ii) any general suspension of, or limitation on prices for, trading in
equity securities on the Paris Bourse; (iii) any decline, measured from the
date hereof, in the Standard & Poor's 500 Index by an amount in excess of
25%; (iv) any change in currency exchange rates, measured from the close of
business on the date of this Agreement, resulting in an increase of 20% or
27
Page 43 of 46
more in the Per Share Amount as translated from U.S. dollars into French
Francs; (v) a commencement of war or armed hostilities or other national
or international calamity directly or indirectly involving the United
States or the Republic of France; or (vi) in the case of any of the
foregoing existing on the date hereof, a material acceleration or worsening
thereof;
(e) (A) the Special Committee shall have withdrawn or modified in a
manner adverse to Parent or Merger Subsidiary the adoption or
recommendation of the Offer, the Merger or the Agreement, or (B) the
Special Committee shall have resolved to do any of the foregoing;
(f) (1) any representation or warranty of the Company in this
Agreement shall not be true and correct; provided in any such case,
such representation and warranty shall continue to be incorrect in any
material respect at the time of such termination; or (2) the Company shall
have failed to perform in any respect any agreement or covenant of the
Company to be performed or complied with by it under this Agreement,
except in each case, where such representation or warranty not being true
and correct or such failure to perform such agreements, and covenants does
not have and would not be reasonably be likely have a Material Adverse
Effect;
(g) this Agreement shall have been terminated in accordance with its
terms; or
(h) Parent, Merger Subsidiary and the Company (acting at the direction
of the Special Committee) shall have agreed that Parent shall terminate the
Offer or postpone the acceptance for payment of or payment for Shares
thereunder;
which, in the reasonable judgment of Parent in any such case, and regardless of
the circumstances (including any action or inaction by Parent or any of its
affiliates) giving rise to any such condition, makes it inadvisable to proceed
with such acceptance for payment or payment.
The foregoing conditions are for the sole benefit of Parent and may be
asserted by Parent regardless of the circumstances giving rise to any such
condition or may be waived by Parent in whole or in part at any time and from
time to time in its reasonable discretion. The failure by Parent at any time to
exercise any of the foregoing rights shall not be deemed a waiver of any such
right; the waiver of any such right with respect to particular facts and other
circumstances shall not be deemed a waiver with respect to any other facts and
circumstances; and each such right shall be deemed an ongoing right that may be
asserted at any time and from time to time.
28
Page 44 of 46