EXHIBIT 99.3
AGREEMENT AND PLAN OF MERGER
among
ELYO S.A.
T ACQUISITION CORP.
and
TRIGEN ENERGY CORPORATION
Dated as of January 19, 2000
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER (this "Agreement"), dated
as of January 19, 2000, between Elyo S.A., a societe anonyme
organized and existing under the laws of the Republic of France
("Parent"), T Acquisition Corp., a Delaware corporation and an
indirect, wholly owned subsidiary of Parent ("Purchaser"), and
Trigen Energy Corporation, a Delaware corporation (the
"Company").
RECITALS
WHEREAS, Parent beneficially owns through its wholly
and majority owned subsidiaries, an aggregate of 6,507,944 shares
(the "Parent Shares") of common stock, par value $.01 per share
(the "Shares" or the "Common Stock"), of the Company,
constituting approximately 52.7% of the total outstanding Shares,
and has proposed to the Company that Purchaser acquire all of the
remaining issued and outstanding Shares;
WHEREAS, on or prior to the Effective Time (as defined
below) Parent will cause the Parent Shares to be transferred to
Purchaser;
WHEREAS, the special committee of the independent
directors of the board of directors of the Company (the "Company
Board") established to consider Parent's proposal (the "Special
Committee") has unanimously recommended that the Company Board
approve the Offer (as defined below), and approve and authorize
the Merger (as defined below) and this Agreement;
WHEREAS, in furtherance of Parent's acquisition of all
the remaining issued and outstanding Shares, it is proposed that
Purchaser may elect to make a cash tender offer (the "Offer") in
compliance with Section 14(d)(i) of the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), to acquire any and all
of the issued and outstanding Shares for $23.50 per Share (the
"Per Share Amount"), net to the sellers in cash, upon the terms
and subject to the conditions of this Agreement and the Offer;
WHEREAS, the respective boards of directors of Parent,
Purchaser and the Company have deemed it advisable and in the
best interests of their respective stockholders to consummate,
and have approved, the merger of Purchaser with and into the
Company (the "Merger"), upon the terms and subject to the
conditions set forth herein;
WHEREAS, the Company Board has approved the Offer and
resolved to recommend the Offer to the Company's stockholders;
and
WHEREAS, the parties hereto desire to make certain
representations, warranties, covenants and agreements in
connection with the transactions contemplated by this Agreement.
NOW, THEREFORE, in consideration of the foregoing, and
of the representations, warranties, covenants and agreements
contained herein, the parties hereto hereby agree as follows:
ARTICLE 1
1. The Offer.
1.1 The Offer.
(a) Subject to the provisions of this Agreement and this
Agreement not having been terminated, Purchaser shall commence,
as promptly as practicable, and Parent shall cause Purchaser to
commence, within the meaning of Rule 14d-2 under the Exchange
Act, the Offer. The obligation of Purchaser, and of Parent to
cause Purchaser, to commence the Offer and to accept for payment,
and to pay for any shares of Common Stock tendered pursuant to
the Offer shall be subject to the satisfaction of the conditions
set forth in Exhibit A and the terms and conditions of this
Agreement (the "Offer Conditions"). Subject to the provisions of
this Agreement, the Offer shall initially expire on the 20th
business day from and after the date the Offer is commenced,
including the date of the commencement of the Offer as the first
business day in accordance with Rule 14d-2, unless this Agreement
is terminated in accordance with Article 8, in which case the
Offer (whether or not previously extended in accordance with the
terms hereof) shall expire on such date of termination.
(b) Purchaser expressly reserves the right to waive
any condition set forth on Exhibit A without the consent of the
Company, and to make any other changes in the terms and
conditions of the Offer. However, without the prior written
consent of the Company, Purchaser shall not (i) reduce the
maximum number of Shares subject to the Offer, (ii) decrease the
Per Share Amount, (iii) change the form of consideration payable
in the Offer, or (iv) amend or modify the Offer Conditions in any
manner adverse to the holders of Shares. Notwithstanding the
foregoing, Purchaser may, without the consent of the Company,
extend the Offer at any time and from time to time: (i) if at the
then scheduled expiration date of the Offer any of the Offer
Conditions shall not have been satisfied or waived, until such
time as all such conditions shall have been satisfied or waived;
(ii) for any period required by any statute or rule, regulation,
interpretation or position of the Securities and Exchange
Commission (the "SEC") or its staff applicable to the Offer;
(iii) for any period required by applicable law in connection
with an increase in the consideration to be paid pursuant to the
Offer; and (iv) from time to time, for an aggregate period of not
more than ten (10) business days (for all such extensions under
this clause (iv)) beyond the latest expiration date that would
be permitted under clause (i), (ii) or (iii) of this sentence.
So long as this Agreement is in effect and the Offer Conditions
have not been satisfied or waived, Purchaser shall, and Parent
shall cause Purchaser to, cause the Offer not to expire. Subject
to and in accordance with the terms and conditions of the Offer
and this Agreement (but subject to the right of termination in
accordance with Article 8), Purchaser shall, and Parent shall
cause Purchaser to, accept for payment and pay for, in accordance
with the terms of the Offer, all Shares validly tendered and not
withdrawn pursuant to the Offer as soon as practicable after the
expiration of the Offer. In addition to the foregoing, Purchaser
may provide for a "subsequent offering period" to the extent
provided in Rule 14d-11 under the Exchange Act, as in effect as
of January 24, 2000, after the purchase of Shares pursuant to the
Offer.
1.2. Actions by Parent and Purchaser.
(a) As soon as reasonably practicable following execution of
this Agreement, Parent and Purchaser shall file with the SEC a
Tender Offer Statement and a Rule 13e-3 Transaction Statement on
Schedule TO, including all exhibits thereto (together with all
amendments and supplements thereto, the "Schedule TO") with
respect to the Offer, the Merger and the other transactions
contemplated hereby. The Schedule TO shall contain or
incorporate by reference an offer to purchase (the "Offer to
Purchase") and forms of the related letter of transmittal and any
related documents (the Schedule TO, the Offer to Purchase and
such other documents, together with all supplements or amendments
thereto, collectively, the "Offer Documents"). The Offer
Documents shall comply in all material respects with the
requirements of the Exchange Act. On the date filed with the SEC
and on the date first published, sent or given to the Company's
stockholders, the Offer Documents shall not contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which
they were made, not misleading, except that no representation is
made by Parent or Purchaser with respect to information supplied
by the Company for inclusion in the Offer Documents. Each of
Parent and Purchaser agrees to correct promptly, and the Company
agrees to notify Parent promptly as to, any information provided
by it for use in the Offer Documents, if and to the extent such
information shall have become false or misleading in any material
respect, and each of Parent and Purchaser further agrees to take
all steps necessary to cause the Offer Documents as so corrected
to be filed with the SEC and to be disseminated to all of the
holders of Shares, in each case as and to the extent required by
applicable federal securities laws. Parent and Purchaser agree
to provide the Company and the Special Committee and their
respective counsel in writing any comments Parent, Purchaser or
their counsel may receive from the SEC or its staff with respect
to the Offer Documents promptly after receipt of such comments.
Parent and Purchaser shall use their respective reasonable best
efforts to respond to such comments promptly and shall provide
the Company copies of any written responses and telephonic
notification of any verbal responses by Parent, Purchaser or
their counsel.
(b) Parent shall provide or cause to be provided to
Purchaser all of the funds necessary to purchase any Shares that
Purchaser becomes obligated to purchase pursuant to the Offer.
1.3. Actions by the Company.
(a) The Company hereby approves of the Offer and represents
and warrants that (i) the Special Committee has recommended that
the Company Board approve the Offer and the Merger, and approve
and authorize this Agreement, and the other transactions
contemplated hereby and (ii) the Company Board at a meeting duly
called and held, has, by unanimous vote of all directors and
based on the recommendation of the Special Committee described in
the preceding clause (i) duly adopted resolutions: (A) approving
the Offer and the Merger and approving and adopting this
Agreement, (B) determining that the Merger is advisable and that
the terms of the Offer and Merger are fair to, and in the best
interests of, the Company and the Company's stockholders, (C)
recommending that the Company's stockholders accept the Offer
and, if approval is required by applicable law, approve the
Merger and approve and adopt this Agreement, and (D) taking all
actions necessary to render Section 203 of the Delaware General
Corporation Law (the "DGCL") inapplicable to the Offer, the
Merger, this Agreement or any of the transactions contemplated
hereby. The Company hereby consents to the inclusion in the Offer
Documents of the recommendation of the Company Board and the
recommendation of the Special Committee described in the first
sentence of this Section 1.3(a). The Company shall provide for
inclusion in the Offer Documents any information reasonably
requested by Parent or Purchaser, and to the extent requested by
Parent or Purchaser, the Company shall cooperate in the
preparation of the Offer Documents. The Company further
represents and warrants that (i) the Special Committee has been
duly authorized and constituted, and (ii) the Special Committee,
at a meeting thereof duly called, determined that this Agreement,
the Merger and the Offer are fair to and in the best interests of
the stockholders of the Company (other than the Parent and its
affiliates).
(b) As soon as reasonably practicable on the date of
the commencement of the Offer, the Company shall file with the
SEC a Solicitation/Recommendation Statement on Schedule 14D-9
with respect to the Offer (such Schedule 14D-9, together with all
amendments and supplements thereto, "Schedule 14D-9") containing
the recommendations of the Company Board and the Special
Committee described in Section 1.3(a) and shall disseminate the
Schedule 14D-9 to the stockholders of the Company to the extent
required by Rule 14d-9 promulgated under the Exchange Act and any
other applicable federal or state securities laws. To the extent
practicable, the Company shall cooperate with Purchaser and/or
Parent in mailing or otherwise disseminating the Schedule 14D-9
with the appropriate Offer Documents to the Company's
stockholders. Parent, Purchaser and their counsel shall be given
an opportunity to review and comment upon the Schedule 14D-9
prior to the filing thereof with the SEC. The Schedule 14D-9
shall comply in all material respects with the requirements of
the Exchange Act. On the date filed with the SEC and on the date
first published, sent or given to the Company's stockholders, the
Schedule 14D-9 shall not contain any untrue statement of a
material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were
made, not misleading, except that no representation is made by
the Company with respect to information supplied by Parent or
Purchaser for inclusion in the Schedule 14D-9. The Company
agrees to correct promptly, and each of Parent and Purchaser
agrees to notify the Company promptly as to, any information
provided by it for use in the Schedule 14D-9, if and to the
extent such information shall have become false or misleading in
any material respect, and the Company further agrees to take all
steps necessary to cause the Schedule 14D-9 as so corrected to be
filed with the SEC and to be disseminated to all of the holders
of Shares, in each case as and to the extent required by
applicable federal securities laws. The Company agrees to
provide Parent and Purchaser and their counsel in writing any
comments the Company or its counsel may receive from the SEC or
its staff with respect to the Schedule 14D-9 promptly after the
receipt of such comments. The Company agrees to use its
reasonable best efforts, after consultation with Parent, to
respond promptly to all such comments of and requests by the SEC.
The Company shall provide Parent copies of any written responses
and telephonic notification of any verbal responses by the
Company and its counsel.
(c) In connection with the Offer, the Company shall
promptly, or shall cause its transfer agent to promptly, furnish
Purchaser with mailing labels containing the names and addresses
of the record holders of Shares, each as of the most recent date
together with copies of all lists of stockholders and security
position listings and all other information in the Company's
possession or control regarding the beneficial owners of Common
Stock, and shall furnish to Purchaser such information and
assistance (including updated lists of stockholders, security
position listings and computer files) as Purchaser may reasonably
request in communicating the Offer to the Company's stockholders.
Subject to the requirements of applicable law, and except for
such steps as are necessary to disseminate the Offer Documents
and any other documents necessary to consummate the Offer and the
Merger, Parent and Purchaser shall hold in confidence the
information contained in any of such labels, lists and files,
shall use such information only in connection with the Offer and
the Merger, and, if this Agreement is terminated in accordance
with Section 8.1, shall deliver to the Company all copies of such
information then in their possession.
(d) Subject to the terms and conditions of this
Agreement, if there shall occur a change in law or in a binding
judicial interpretation of existing law which would, in the
absence of action by the Company or the Company Board, prevent
the Purchaser, were it to acquire a specified percentage of the
shares of Common Stock then outstanding, from approving and
adopting this Agreement by its affirmative vote as the holder of
a majority of shares of Common Stock and without the affirmative
vote of any other stockholder, the Company will use its best
efforts to promptly take or cause such action to be taken.
ARTICLE 2
2. The Merger.
2.1. The Merger.
At the Effective Time, subject to the terms and conditions of
this Agreement and the applicable provisions of the DGCL,
Purchaser shall be merged with and into the Company and the
separate corporate existence of Purchaser shall thereupon cease.
The Company shall be the surviving corporation in the Merger
(sometimes hereinafter referred to as the "Surviving
Corporation"). The Merger shall have the effects specified in
the DGCL.
2.2. The Closing.
Subject to the terms and conditions of this Agreement, the
closing of the Merger (the "Closing") shall take place at the
offices of Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, One New York
Plaza, New York, New York, at 10:00 a.m., local time, as soon as
practicable following the satisfaction (or waiver if permissible)
of the conditions set forth in Article 7. The date on which the
Closing occurs is hereinafter referred to as the "Closing Date."
2.3. Effective Time.
If all the conditions to the Merger set forth in Article 7
shall have been fulfilled or waived in accordance herewith and
this Agreement shall not have been terminated as provided in
Article 8 (and subject to Section 3.6), the parties hereto shall
cause a certificate of merger meeting the requirements of Section
251 of the DGCL ("Certificate of Merger") to be properly executed
and filed with the Secretary of State of the State of Delaware in
accordance with such Section on the Closing Date. The Merger
shall become effective at the time of filing of the Certificate
of Merger with the Secretary of State of the State of Delaware in
accordance with the DGCL or at such later time which the parties
hereto shall have agreed upon and designated in such filing as
the effective time of the Merger (the "Effective Time").
2.4 Certificate of Incorporation, By-Laws, Directors
and Officers of the Surviving Corporation.
Unless otherwise agreed by the Company and Parent prior to the
Closing, at the Effective Time:
(a) The certificate of incorporation of the Surviving
Corporation shall be amended and restated in its entirety as set
forth in Exhibit B hereto, until duly amended in accordance with
applicable law and the terms thereof;
(b) The by-laws of Purchaser as in effect immediately
prior to the Effective Time shall be the by-laws of the Surviving
Corporation, until duly amended in accordance with applicable
law, the terms thereof, and the Surviving Corporation's
certificate of incorporation;
(c) The officers of the Company immediately prior to
the Effective Time shall continue to serve in their respective
offices of the Surviving Corporation from and after the Effective
Time, until their successors are duly appointed or elected in
accordance with applicable law and the Surviving Corporation's
certificate of incorporation and by-laws; and
(d) The directors of Purchaser immediately prior to
the Effective Time shall be the directors of the Surviving
Corporation from and after the Effective Time, until their
successors are duly appointed or elected in accordance with
applicable law, and the Surviving Corporation's certificate of
incorporation and by-laws.
ARTICLE 3
3. Effect of the Merger on Securities of Purchaser and the Company.
3.1. Purchaser Stock.
At the Effective Time, each share of common stock, $.01 par
value per share, of Purchaser that is outstanding immediately
prior to the Effective Time shall be converted into and exchanged
for one validly issued, fully paid and non-assessable share of
common stock, $.01 par value per share, of the Surviving
Corporation.
3.2. Company Securities.
(a) Other than as set forth in the immediately following
sentence, at the Effective Time, each share of Common Stock
issued and outstanding immediately prior to the Effective Time
shall, by virtue of the Merger and without any action on the part
of Parent, Purchaser, the Company or the holder thereof, be
converted into the right to receive the Per Share Amount or any
higher per share price as may be paid in the Offer, without
interest (the "Merger Consideration") in accordance with
Section 3.3 upon the surrender of a certificate or certificates
(a "Certificate") representing such shares of Common Stock. The
following Shares shall not be converted into the right to receive
the Per Share Amount at the Effective Time: (i) Restricted Stock
granted under and defined in the Trigen Energy Corporation 1994
Stock Incentive Plan, which, in accordance with
Section 3.2(c)(ii), shall be canceled immediately prior to the
filing of the Certificate of Merger; (ii) shares of Common Stock
owned by Parent directly or by Purchaser or held by the Company,
all of which shall be canceled; and (iii) Dissenting Shares (as
defined below).
(b) Each Share issued and held in the Company's
treasury at the Effective Time, or held by Purchaser or by Parent
directly, or any wholly owned subsidiary of Parent or Purchaser,
shall, by virtue of the Merger and without any action on the part
of Parent, Purchaser, the Company or the holder thereof, cease to
be outstanding and shall be canceled and retired without payment
of any consideration therefor.
(c) (i) The Company shall, immediately prior to the
Effective Time, (A) terminate each Company stock option, stock
appreciation rights, restricted stock or similar plan, and any
other plan, program or arrangement providing for the issuance,
grant or purchase of any other interest in respect of the capital
stock of the Company or any of its Subsidiaries (as defined
below), and (B) amend the provisions of any other Company
Employee Benefit Plan (as defined below), or related trust or
funding vehicle, providing for the issuance, holding, transfer or
grant of any Shares, or any interest in respect of any Shares
(such plans set forth in clauses (A) or (B), collectively, the
"Company Stock Plans"), to provide no continuing rights to
acquire, hold, transfer, or grant any Shares or any interest in
any Shares. With respect to the 1994 Employee Stock Purchase
Plan, prior to the Effective Time, the Company shall cause the
"Exercise Date" for the current "Purchase Period" to be
accelerated and occur on a date no later than the date of the
Effective Time.
(ii) All options to acquire Shares outstanding
immediately prior to the Effective Time under any Company Stock
Plan or under any agreement (an "Option"), whether or not then
exercisable, shall (by all necessary and appropriate action taken
on or prior to the date of this Agreement of the Company Board or
such appropriate committee or committees of the Company Board) be
canceled at the Effective Time and each holder of an Option shall
promptly after the Effective Time receive from the Surviving
Corporation, for each share of Common Stock subject to an Option,
an amount in cash equal to the excess, if any, of the Merger
Consideration over the per share exercise price of such Option,
without interest, in full settlement of the Company's (and the
Surviving Corporation's) obligations under each such Option. To
the extent that the per share exercise price of any Option equals
or exceeds the Merger Consideration, at the Effective Time such
Option shall be canceled and the holder of such Option shall not
receive or be entitled to receive any consideration from Parent,
Purchaser or the Surviving Corporation. The amount payable
pursuant to this Section 3.2(c) shall be subject to all
applicable withholding of taxes.
(iii) Immediately prior to the filing of the
Certificate of Merger, all shares of Restricted Stock shall be
canceled and each holder of a share of Restricted Stock shall
promptly after the Effective Time receive from the Surviving
Corporation, for each share of Restricted Stock, an amount of
cash equal to one-fourth of the Merger Consideration. In
connection with the foregoing, the Surviving Corporation intends,
in accordance with the Trigen Energy Corporation 1994 Stock
Incentive Plan, to implement an incentive plan following the
Effective Time.
3.3. Exchange of Certificates Representing Common Stock.
(a) Prior to the Effective Time, Parent shall appoint a
commercial bank or trust company, subject to the reasonable
satisfaction of the Company, to act as paying agent hereunder for
payment of the Merger Consideration upon surrender of
Certificates (the "Paying Agent"). Parent shall take all steps
necessary to cause the Surviving Corporation to provide the
Paying Agent with cash in amounts necessary to pay for all the
shares of Common Stock pursuant to Section 3.2(a) and, in
connection with the Options, pursuant to Section 3.2(c), as and
when such amounts are needed by the Paying Agent. Such amounts
shall hereinafter be referred to as the "Exchange Fund."
(b) As soon as practicable after the Effective Time,
Parent shall cause the Paying Agent to mail to each holder of
record of shares of Common Stock (i) a letter of transmittal
which shall specify that delivery shall be effected, and risk of
loss and title to such Certificates shall pass, only upon
delivery of the Certificates to the Paying Agent and which letter
shall be in such form and have such other provisions as are
customary for letters of this nature and (ii) instructions for
effecting the surrender of such Certificates in exchange for the
Merger Consideration. Upon surrender of a Certificate to the
Paying Agent together with such letter of transmittal, duly
executed and completed in accordance with the instructions
thereto, and such other documents as may be reasonably required
by the Paying Agent, the holder of such Certificate shall be
entitled to receive in exchange therefor the amount of cash into
which shares of Common Stock theretofore represented by such
Certificate shall have been converted pursuant to Section 3.2,
and the shares represented by the Certificate so surrendered
shall forthwith be canceled. No interest will be paid or will
accrue on the cash payable upon surrender of any Certificate. In
the event of a transfer of ownership of Shares that is not
registered in the transfer records of the Company, payment may be
made with respect to such Common Stock to such a transferee if
the Certificate representing such shares of Common Stock is
presented to the Paying Agent, accompanied by all documents
required to evidence and effect such transfer and to evidence
that any applicable stock transfer taxes have been paid. Until
surrendered as contemplated by this Section 3.3, each Certificate
shall be deemed, at any time after the Effective Time, to
represent only the right to receive on such surrender the amount,
without any interest thereon, of cash into which shares of Common
Stock theretofore represented by such Certificate shall have been
converted pursuant to Section 3.2.
(c) At or after the Effective Time, there shall be no
transfers on the stock transfer books of the Company of the
Shares that were outstanding immediately prior to the Effective
Time. If, after the Effective Time, Certificates are presented
to the Surviving Corporation, they shall be canceled and
exchanged as provided in this Article 3.
(d) Any portion of the Exchange Fund (including the
proceeds of any interest and other income received by the Paying
Agent in respect of all such funds) that remains unclaimed by the
former stockholders of the Company six months after the Effective
Time shall be delivered to the Surviving Corporation. Any former
stockholders of the Company who have not theretofore complied
with this Article 3 may thereafter look only to the Surviving
Corporation for payment of any Merger Consideration, without any
interest thereon, that may be payable in respect of each share of
Common Stock such stockholder holds as determined pursuant to
this Agreement.
(e) None of Parent, the Company, the Surviving
Corporation, the Paying Agent or any other Person shall be liable
to any former holder of shares of Common Stock for any amount
properly delivered to a public official pursuant to applicable
abandoned property, escheat or similar laws.
(f) In the event any Certificate shall have been lost,
stolen or destroyed, upon the making of an affidavit of that fact
by the Person claiming such Certificate to be lost, stolen or
destroyed and, if required by the Surviving Corporation, the
posting by such Person of a bond in such reasonable amount as the
Surviving Corporation may direct as indemnity against any claim
which may be made against it with respect to such Certificate,
the Paying Agent will issue in exchange for such lost, stolen or
destroyed Certificate the Merger Consideration payable in respect
thereof pursuant to this Agreement.
3.4. Adjustment of Merger Consideration.
In the event that, subsequent to the date of this Agreement but
prior to the Effective Time, the outstanding shares of Common
Stock shall have been changed into a different number of shares
or a different class as a result of a stock split, reverse stock
split, stock dividend, subdivision, reclassification, split,
combination, exchange, recapitalization or other similar
transaction, the Merger Consideration shall be appropriately
adjusted to eliminate the effects of that event.
3.5. Dissenting Company Stockholders.
Notwithstanding any provision of this Agreement to the
contrary, if required by the DGCL but only to the extent required
thereby, Shares that are issued and outstanding immediately prior
to the Effective Time and which are held by holders of such
Shares who have properly exercised appraisal rights with respect
thereto in accordance with Section 262 of the DGCL (the
"Dissenting Shares") will not be exchangeable for the right to
receive the Merger Consideration. Each holder of such Dissenting
Shares will be entitled to receive payment of the appraised value
of such Shares in accordance with the provisions of such Section
262 unless and until such holder fails to perfect or effectively
waive, withdraw or lose his or her rights to appraisal and
payment under the DGCL. If, after the Effective Time, any such
holder fails to perfect or effectively waives, withdraws or loses
such right, such Shares will thereupon be treated as if they had
been converted into and to have become exchangeable for, at the
Effective Time, the right to receive the Merger Consideration,
without any interest or dividends thereon. The Company will give
Parent prompt notice of any demands received by the Company for
appraisals of Shares prior to the Effective Time and, prior to
the Effective Time, the Parent shall have the right to
participate in all negotiations and proceedings with respect to
such demands. The Company shall not, except with the prior
written consent of Parent, voluntarily make any payment with
respect to any demands for appraisal or offer to settle or settle
any such demands.
3.6. Merger Without Meeting of Stockholders.
Notwithstanding the foregoing, in the event that Purchaser, or
any other direct or indirect subsidiary of Parent, shall acquire
at least 90 percent of the outstanding Shares, the parties hereto
shall take all necessary and appropriate action to cause the
Merger to become effective as soon as practicable after the
expiration of the Offer without a meeting of stockholders of the
Company, in accordance with Section 253 of the DGCL.
ARTICLE 4
4. Representations and Warranties of the Company.
The Company hereby represents and warrants to Parent and
Purchaser as of the date of this Agreement as follows:
4.1. Existence; Good Standing; Corporate Authority.
Each of the Company and each of its Subsidiaries is (i) duly
organized, validly existing and in good standing under the laws
of its jurisdiction of incorporation and (ii) is duly licensed or
qualified to do business as a foreign corporation and is in good
standing under the laws of any other state of the United States
in which the character of the properties owned or leased by it or
in which the transaction of its business makes such qualification
necessary, except where the failure to be so qualified or to be
in good standing would not have and would not be likely to have,
individually or in the aggregate, a material adverse effect on
the business, operations, or financial condition of the Company
and its Subsidiaries taken as a whole or the ability of the
Company and its Subsidiaries to conduct their business after the
Closing consistent in all material respects with the manner
conducted in the past (a "Material Adverse Effect"); provided,
however, that "Material Adverse Effect" shall not include any
change, effect, condition, event or circumstance arising out of
or attributable to (i) any decrease in the market price of the
Shares (but not any change, effect, condition, event or
circumstance underlying such decrease to the extent that it would
otherwise constitute a Material Adverse Effect), (ii) changes,
effects, conditions, events or circumstances that generally
affect the industries in which the Company or the Subsidiaries
operate (including legal and regulatory changes), (iii) general
economic conditions or changes, effects, conditions or
circumstances affecting the securities markets generally or
(iv) changes arising from the consummation of the transactions
contemplated hereby or the announcement of the execution of this
Agreement. Each of the Company and each of its Subsidiaries has
all requisite power and authority to own or lease and operate its
properties and carry on its business as now conducted. The
Company has heretofore made available to Parent true, accurate
and complete copies of the certificate of incorporation and by-
laws, each as amended to date as and currently in effect.
4.2. Authorization, Validity and Effect of Agreements.
(a) The Company has the requisite corporate power and
authority to execute and deliver this Agreement and all
agreements and documents contemplated hereby (the "Ancillary
Documents"), to perform its obligations hereunder and thereunder,
and to consummate the transactions contemplated hereby and
thereby. The execution and delivery of this Agreement and the
Ancillary Documents by the Company and the consummation by the
Company of the transactions contemplated hereby and thereby have
been duly and validly authorized by all necessary corporate
action (including without limitation the unanimous approval of
the independent directors of the Company Board), and no other
corporate proceedings on the part of the Company are necessary to
authorize this Agreement and the Ancillary Documents or to
consummate the transactions contemplated hereby and thereby
(other than the approval of this Agreement by the holders of a
majority of the Shares if required by applicable law). This
Agreement has been, and any Ancillary Document at the time of
execution will have been, duly and validly executed and delivered
by the Company, and (assuming this Agreement and such Ancillary
Documents to which Parent and/or Purchaser is a party each
constitutes a valid and binding obligation of Parent and/or
Purchaser as the case may be) constitutes and will constitute
valid and binding obligations of the Company, enforceable in
accordance with their respective terms, subject to applicable
bankruptcy, insolvency, moratorium or other similar laws relating
to creditors' rights and general principles of equity.
4.3. Compliance with Laws.
Neither the Company nor any of its Subsidiaries is in violation
of any order of any foreign, federal, state or local judicial,
legislative, executive, administrative or regulatory body or
authority or any court, arbitration board or tribunal
("Governmental Entity"), or any foreign, federal, state or local
law, statute, ordinance, rule, regulation, order, judgment or
decree ("Laws") applicable to the Company or its Subsidiaries or
any of their respective properties or assets, except for
violations which, individually or in the aggregate, would not
have or be likely to have a Material Adverse Effect or prevent or
delay or be likely to prevent or delay the consummation of the
transactions contemplated hereby.
4.4. Capitalization, etc.
The authorized capital stock of the Company consists of
60,000,000 shares of Common Stock and 15,000,000 shares of
preferred stock, $.01 par value ("Preferred Stock"). As of the
date hereof, (a) 12,416,297 shares of Common Stock are
outstanding, (b) no shares of Preferred Stock are outstanding and
no series of Preferred Stock has been established, (c) 9,670
shares of Common Stock are held by the Company in its treasury,
and (d) no shares of capital stock of the Company are held by the
Company's Subsidiaries. Section 4.4 of the disclosure letter,
dated as of the date hereof, delivered by the Company to Parent
(the "Company Disclosure Letter") sets forth a complete and
accurate list, as of the date hereof, of (i) the number of
outstanding Options, (ii) the number of shares of Common Stock
which can be acquired upon the exercise of all outstanding
Options, respectively, and (iii) the exercise price of each
outstanding Option. The Company has no outstanding bonds,
debentures, notes or other obligations entitling the holders
thereof to vote (or which are convertible into or exercisable for
securities having the right to vote) with the holders of the
Common Stock on any matter. Except as set forth in Section 4.4
of the Company Disclosure Letter, since September 30, 1999, the
Company (i) has not issued any shares of Common Stock other than
upon the exercise of Options, (ii) has granted no Options to
purchase shares of Common Stock under the Company Stock Plans to
the executive officers of the Company, (iii) has not granted any
Award (as defined in the Trigen Energy Corporation 1994 Stock
Incentive Plan) to any of the executive officers of the Company,
and (iv) has not split, combined or reclassified any of its
shares of capital stock. All issued and outstanding shares of
Common Stock are duly authorized, validly issued, fully paid,
nonassessable and free of preemptive rights. Except as set forth
above in this Section 4.4 or in Section 4.4 of the Company
Disclosure Letter, there are no other shares of capital stock or
voting securities of the Company, and no existing options,
warrants, calls, subscriptions, convertible securities, and no
stock appreciation rights or limited stock appreciation rights or
other rights (including rights of first refusal), agreements or
commitments which obligate the Company or any of its Subsidiaries
to issue, transfer or sell any shares of capital stock of, or
equity interests in, or any material assets of, the Company or
any of its Subsidiaries. There are no outstanding obligations of
the Company or any Subsidiaries to repurchase, redeem or
otherwise acquire any shares of capital stock of the Company. At
the Effective Time, each outstanding Option, and each outstanding
Award awarded or granted under the Trigen Energy Corporation 1994
Stock Incentive Plan, shall be canceled without the consent of
any other party or the payment of any consideration other than as
provided in Section 3.2. After the Effective Time, the Surviving
Corporation will have no obligation to issue, transfer or sell
any shares of capital stock of the Company or the Surviving
Corporation pursuant to any Company Employee Benefit Plan. There
are no voting trusts or other agreements or understandings to
which the Company or any of its Subsidiaries is a party with
respect to the voting of capital stock of the Company or any of
its Subsidiaries.
4.5. No Violation.
(a) Except as set forth in Section 4.5 of the Company
Disclosure Letter, neither the execution and delivery by the
Company of this Agreement or any of the Ancillary Documents nor
the consummation by the Company of the transactions contemplated
hereby or thereby will: (i) violate, conflict with or result in
a breach of any provision of the certificate of incorporation or
by-laws of the Company or any Subsidiary; (ii) violate, conflict
with, result in a breach of any provision of, constitute a
default (or an event which, with notice or lapse of time or both,
would constitute a default) under, result in the termination or
in a right of termination of, accelerate the performance required
by or benefit obtainable under, result in the triggering of any
payment or other obligations pursuant to, result in the creation
of any lien, pledge, charge, assessment, security interest,
mortgage, claim, option, easement, imperfection of title, tenancy
or other legal or equitable right of others, or other encumbrance
of any character whatsoever (including, without limitation, right
of first refusal) (each an "Encumbrance") upon any of the
properties of the Company or any of its Subsidiaries under, or
result in there being declared void, voidable, or without further
binding effect, any of the terms, conditions or provisions of any
note, bond, mortgage, indenture, deed of trust or any license,
franchise, permit, lease, contract, agreement or other
instrument, commitment or obligation to which the Company or any
of its Subsidiaries is a party, or by which the Company or any of
its Subsidiaries or any of their respective properties is bound
(each, a "Contract" and, collectively, "Contracts"), except for
any of the foregoing matters specified in this clause (ii) which,
individually or in the aggregate, would not have or be likely to
have a Material Adverse Effect or prevent or delay or be likely
to prevent or delay the consummation of the transactions
contemplated hereby; (iii) other than the filings provided for in
Section 2.3 and the filings required under the Exchange Act,
require any consent, approval or authorization of, or
declaration, filing or registration with, any Governmental
Entity, the lack of which, individually or in the aggregate,
would have or be likely to have a Material Adverse Effect or, by
law, prevent or delay the consummation of the transactions
contemplated hereby; or (iv) violate any Laws applicable to the
Company, any of its Subsidiaries or any of their respective
assets, except for violations which, individually or in the
aggregate, would not have or be likely to have a Material Adverse
Effect or materially adversely affect or be likely to materially
adversely affect the ability of the Company to consummate the
transactions contemplated hereby, except for any of the foregoing
matters specified in clauses (ii), (iii) and (iv) which might
result from either the nature of Parent's other businesses or
assets being such that the Company no longer would qualify as an
owner of a "Qualified Facility" or would be subject to state
regulatory requirements, including approvals, as a result of
Parent's or Purchaser's being a foreign controlled corporation.
(b) For purposes of this Agreement, a "Subsidiary"
means, with respect to the Parent, the Company or any other
Person, any entity of which the Parent, the Company or such other
Person, as the case may be (either alone or through or together
with any other Subsidiary), owns, directly or indirectly, stock
or other equity interests the holders of which are generally
entitled to more than 50% of the vote for the election of the
board of directors or other governing body of such corporation or
other legal entity; provided that for purposes of this Agreement
any joint venture with Cinergy Corp., a Delaware corporation
shall be a "Subsidiary" of Parent whether or not Parent owns 50%
of the stock or other equity interest of such joint venture.
4.6. Company Reports; Offer Documents.
(a) The Company has made available to Parent each registration
statement, report, proxy statement or information statement (as
defined under the Exchange Act) prepared by it since December 31,
1996, each in the form (including exhibits and any amendments
thereto) filed with the SEC (collectively, the "Company
Reports"). As of their respective dates, the Company Reports (i)
complied as to form in all material respects with the applicable
requirements of the Securities Act of 1933, as amended, the
Exchange Act, and the rules and regulations thereunder and (ii)
did not contain any untrue statement of a material fact or omit
to state a material fact required to be stated therein or
necessary to make the statements made therein, in the light of
the circumstances under which they were made, not misleading,
except for such untrue statements or omissions which,
individually or in the aggregate, would not have or be likely to
have a Material Adverse Effect. Each of the consolidated balance
sheets of the Company included in the Company Reports (including
the related notes and schedules) fairly presented in all material
respects the consolidated financial position of the Company and
its Subsidiaries as of its date, and each of the consolidated
statements of operations, cash flows and stockholders' equity of
the Company included in or incorporated by reference into the
Company Reports (including the related notes and schedules)
fairly presented in all material respects the results of
operations, cash flows and shareholders' equity of the Company
and its Subsidiaries for the periods set forth therein, in each
case in accordance with generally accepted accounting principles
("GAAP") consistently applied during the periods involved, except
as may be noted therein and except that the unaudited interim
financial statements are subject to normal year-end adjustments
and do not contain all of the footnote disclosures required by
GAAP.
(b) None of the Schedule 14D-9, the information
statement, if any, filed by the Company in connection with the
Offer pursuant to Rule 14f-1 under the Exchange Act (the
"Information Statement"), any schedule required to be filed by
the Company with the SEC or any amendment or supplement thereto,
at the respective times such documents are filed with the SEC or
first published, sent or given to the Company's stockholders,
will contain any untrue statement of a material fact or will omit
to state any material fact required to be stated therein or
necessary in order to make the statements therein, in the light
of the circumstances under which they are made, not misleading
except that no representation is made by the Company with respect
to information supplied by the Parent or Purchaser specifically
for inclusion in the Schedule 14D-9 or Information Statement or
any amendment or supplement. None of the information supplied or
to be supplied by the Company for inclusion or incorporation by
reference in the Offer Documents, at the time such documents are
filed with the SEC, or first published, sent or given to the
Company's stockholders, will contain any untrue statement of a
material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were
made, not misleading. If at any time prior to the Effective Time
the Company shall obtain knowledge of any facts with respect to
itself, any of its officers and directors or any of its
Subsidiaries that would require the supplement or amendment to
the Schedule 14D-9 or the information supplied by the Company for
inclusion or incorporation by reference in the Offer Documents in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or to
comply with applicable Laws, such amendment or supplement shall
be promptly filed with the SEC and, as required by Law,
disseminated to the stockholders of the Company, and in the event
Parent shall advise the Company as to its obtaining knowledge of
any facts that would make it necessary to supplement or amend any
of the foregoing documents, the Company shall promptly amend or
supplement such document as required and distribute the same to
its stockholders.
4.7. Litigation.
As of the date hereof, except as set forth in the Company
Reports or in Section 4.7 of the Company Disclosure Letter or as
may have been or may be brought as a result of Parent's offer to
purchase the Company and related transactions, (i) there are no
claims, actions, suits, proceedings, arbitrations, investigations
or audits (collectively, "Litigation") pending or, to the
knowledge of the Company, threatened against the Company or any
of its Subsidiaries, at law or in equity (other than, in the case
of Litigation by non-Governmental Entities, in the ordinary
course of business), except Litigation which, individually or in
the aggregate, would not have or be likely to have a Material
Adverse Effect or prevent or delay or be likely to prevent or
delay the consummation of the transactions contemplated hereby,
nor does the Company have knowledge of any facts or circumstances
that it believes would be likely to form the basis for any such
claims, actions, suits, proceedings, arbitrations, investigations
or audits; (ii) no Governmental Entity has indicated in writing
an intention to conduct any audit, investigation or other review
with respect to the Company or any of its Subsidiaries, except
for audits, investigations or reviews which, individually or in
the aggregate, would not have or be likely to have a Material
Adverse Effect or prevent or delay or be likely to prevent or
delay the consummation of the transactions contemplated hereby,
if adversely determined; and (iii) there is no material judgment,
decree, order, injunction, writ or rule of any court,
governmental department, commission, agency, instrumentality or
authority or any arbitrator outstanding against the Company or
any Subsidiary (except that the Company makes no representation
with respect to any such items as may result from litigation
brought as a result of Parent's offer to purchase the Company and
related transactions).
4.8. Absence of Certain Changes.
Since September 30, 1999, there has not been (i) any event,
occurrence or condition, except any event, occurrence or
condition which, individually or in the aggregate, would not have
or be likely to have a Material Adverse Effect, (ii) any
amendments or changes in the certificate of incorporation or by-
laws of the Company, (iii) any material change by the Company or
any of its Subsidiaries in its accounting methods, principles or
practices, (iv) any declaration, setting aside or payment of any
dividend or distribution in respect of any capital stock of the
Company or any redemption, repurchase or other acquisition of any
of its securities (other than regular quarterly dividends on the
shares of Common Stock in an amount no greater than $.035), or
(v) other than pursuant to the contractual arrangements referred
to in Section 4.10, any increase in or establishment of any
bonus, insurance, severance, deferred compensation, pension,
retirement, profit sharing, stock option (including, without
limitation, the granting of stock options, stock appreciation
rights, performance awards, or restricted stock awards), stock
purchase or other employee benefit plan, or any other increase in
the compensation payable or to become payable to any officers or
key employees of the Company or any Subsidiary, except in the
ordinary course of business consistent with past practice.
4.9. Taxes. TC "4.9. Taxes."
Except as set forth in Section 4.9 of the Company Disclosure
Letter:
(a) The Company and its Subsidiaries have timely filed
(taking into account extensions) all material Tax Returns (as
defined below) required to be filed by any of them. All such Tax
Returns are true, correct and complete, except for such instances
which, individually or in the aggregate, would not have or be
likely to have a Material Adverse Effect.
(b) The Company and its Subsidiaries have paid all
Taxes (as defined below) required to be paid by any of them or
claimed or asserted by any taxing authority to be due, except for
failures to so pay which, individually or in the aggregate, would
not have or be likely to have a Material Adverse Effect, and
except for those Taxes being contested in good faith and for
which adequate reserves have been established in the financial
statements included in the Company Reports in accordance with
GAAP.
(c) The most recent financial statements contained in
the Company Reports reflect full reserves for all Taxes payable
by the Company and its Subsidiaries for all Tax periods and
portions thereof through the date of such financial statements,
except to the extent that any failure to so reserve, individually
or in the aggregate, would not have or be likely to have a
Material Adverse Effect.
For purposes of this Agreement,
"Tax" (and, with correlative meaning, "Taxes") means any
federal, state, local or foreign income, gross receipts,
property, sales, use, license, excise, franchise, employment,
payroll, premium, withholding, alternative or added minimum, ad
valorem, transfer or excise tax, or any other tax, custom, duty,
governmental fee or other like assessment or charge of any kind
whatsoever, together with any interest or penalty, imposed by any
Governmental Entity.
"Tax Return" means any return, report or similar statement
required to be filed with respect to any Tax (including any
attached schedules), including, without limitation, any
information return, claim for refund, amended return or
declaration of estimated Tax.
4.10. Employee Benefit Plans.
(a) For purposes of this Agreement, "Company Employee Benefit
Plans" means all "employee benefit plans," as defined in Section
3(3) of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), and all other material employee benefit or
compensation arrangements, including, without limitation, any
such arrangements providing severance pay, sick leave, vacation
pay, salary continuation for disability, retirement benefits,
deferred compensation, bonus pay, incentive pay, stock options
(including those held by directors, employees, and consultants),
hospitalization insurance, medical insurance, life insurance,
scholarships or tuition reimbursements, that are maintained by
the Company or any of its Subsidiaries or to which the Company or
of its Subsidiaries is obligated to contribute thereunder for
current or former directors, employees, independent contractors,
consultants and leased employees of the Company or any of its
Subsidiaries.
(b) Except as set forth in Section 4.10 of the Company
Disclosure Letter, (i) the execution of, and performance of the
transactions contemplated in, this Agreement will not, either
alone or upon the occurrence of subsequent events, result in any
payment (whether of severance pay or otherwise), acceleration,
forgiveness of indebtedness, vesting, distribution, increase in
benefits or obligation to fund benefits with respect to any
employee or Company Employee Benefit Plan, and (ii) there are no
material employment or severance agreements or severance policies
applicable to the Company or any of its Subsidiaries.
(c) The Company Employee Benefit Plans have been
maintained in all material respects in accordance with their
terms and with all provisions of ERISA and the Internal Revenue
Code of 1986, as amended (including rules and regulations
thereunder) (the "Code") and all other applicable federal and
state laws and regulations except for such failures to so
maintain which, individually or in the aggregate, would not have
or be likely to have a Material Adverse Effect.
4.11. Labor and Employment Matters.
Except for such matters which, individually or in the
aggregate, would not have or be likely to have a Material Adverse
Effect, there is no (i) unfair labor practice, labor dispute
(other than routine individual grievances) or labor arbitration
proceeding pending or, to the knowledge of the Company,
threatened against the Company or any of its Subsidiaries
relating to their businesses, (ii) activity or proceeding by a
labor union or representative thereof to organize any employees
of the Company or any of its Subsidiaries, or (iii) lockouts,
strikes, slowdowns, work stoppages or threats thereof by or with
respect to such employees. The Company is in compliance with all
Laws regarding employment, employment practices, terms and
conditions of employment and wages and Laws, except for such
noncompliance which, either individually or in the aggregate,
would not have or be likely to have a Material Adverse Effect.
4.12. Brokers.
Except for Credit Suisse First Boston Corporation (the
"Financial Advisor"), the arrangements of which have been
disclosed to Parent in writing, no broker, finder or financial
advisor is entitled to any brokerage, finder's or other fee or
commission in connection with the transactions contemplated by
this Agreement that is based upon any arrangement made by or on
behalf of the Company.
4.13. Permits.
The Company and its Subsidiaries are in possession of all
franchises, grants, authorizations, licenses, permits, easements,
variances, exceptions, consents, certificates, approvals and
orders of any Governmental Entity necessary for the Company and
its Subsidiaries to own, lease and operate its properties or to
lawfully conduct their respective businesses as presently
conducted (the "Company Permits"), except where the failure to
have any of the Company Permits, individually or in the
aggregate, would not have or be likely to have a Material Adverse
Effect. As of the date hereof, (a) no modification, revocation,
suspension or cancellation of any of the Company Permits is
pending or, to the knowledge of the Company threatened, and (b)
no Company Permit is subject to any outstanding order, decree,
judgment, stipulation or investigation that would be likely to
affect such Company Permit, except, in the case of (a) or (b),
any suspensions or cancellations which, individually or in the
aggregate, would not have or be likely to have a Material Adverse
Effect.
4.14. Environmental Matters.
(a) Except as set forth in the Company Reports filed
prior to the date hereof or as would not, individually or in the
aggregate, have or be likely to have a Material Adverse Effect:
(i) the Company and each of its Subsidiaries has
at all times been operated, and is, in compliance with all
applicable Environmental Laws (as defined below);
(ii) the Company and each of its Subsidiaries has
obtained or has applied for all applicable environmental, health
and safety permits, licenses, variances, approvals and
authorizations required under Environmental Laws (collectively,
"Environmental Permits" XE "Environmental Permits" ) necessary
for the conduct of its operations, and such Environmental Permits
are in effect or, where applicable, a renewal application has
been timely filed, and the Company and its Subsidiaries are in
compliance with all terms and conditions of such Environmental
Permits;
(iii) there is no Environmental Claim (as
defined below) pending or, to the knowledge of the Company,
threatened against the Company or any of its Subsidiaries;
(iv) to the knowledge of the Company, there have
been no Releases (as defined below) of any Hazardous Materials
(as defined below) that would be reasonably likely to form the
basis of any Environmental Claim against the Company, any of its
Subsidiaries or any predecessor thereof; and
(v) none of the properties currently owned,
leased or operated, or, to the knowledge of the Company, formerly
owned, leased or operated, by the Company, its Subsidiaries or
any predecessor thereof, are now, or were in the past, listed on
the National Priorities List of Superfund Sites, any analogous
state list or any database listing sites for the purpose of
investigation under Environmental Laws.
(b) For purposes of this Agreement:
(i) "Environmental Claim" means any and all administrative, regulatory
or judicial actions, suits, demands, demand letters, information
requests, directives, claims, liens, investigations, proceedings
or notices of noncompliance, violation or status as a potentially
responsible Person or otherwise liable party by any Person
(including any Governmental Entity) relating to or alleging
potential liability (including, without limitation, potential
responsibility for or liability for enforcement, investigatory
costs, cleanup costs, response costs, removal costs, natural
resources damages, property damages, personal injuries or
penalties) relating to (A) the presence, or Release or threatened
Release into the environment, of any Hazardous Materials at any
location; or (B) circumstances forming the basis of any violation
or alleged violation of any Environmental Law; or (C) any and all
claims by any third party seeking damages, contribution,
indemnification, cost recovery, compensation or injunctive relief
relating to any Environmental Laws.
(ii) "Environmental Laws" " means all applicable federal, state and
local laws, rules, requirements, regulations and judicial or administrative
opinions, orders or decrees, and any common law causes of action,
in each case relating to pollution, the environment (including,
without limitation, ambient air, surface water, groundwater, land
surface or subsurface strata) or protection of human or employee
health or safety including, without limitation, laws and
regulations relating to Releases of Hazardous Materials.
(iii) "Hazardous Materials" means (A) any petroleum or any by-products
or fractions thereof, asbestos or asbestos-containing materials,
urea formaldehyde foam insulation, any form of natural gas,
explosives, polychlorinated biphenyls ("PCBs XE "PCBs" "),
radioactive materials, ionizing radiation or electromagnetic
field radiation; (B) any chemicals, materials or substances which
are included in the definition of "wastes," "hazardous
substances," "hazardous wastes," "hazardous materials,"
"extremely hazardous substances," "toxic substances," "toxic
pollutants," "pollutants," "contaminants," or words of similar
import under any Environmental Law; and (C) any other chemical,
material or substance, regulated under any Environmental Law.
(iv) "Release" means any release, spill, emission, leaking,
injection, deposit, disposal, discharge, dispersal, leaching or
migration into the environment (including without limitation
ambient air, atmosphere, soil, surface water, groundwater or property).
4.15. Insurance Policies.
The Company and its Subsidiaries have obtained and maintained
in full force and effect insurance with insurance companies or
associations in such amounts, on such terms and covering such
risks, as is customarily carried by reasonably prudent persons
conducting businesses or owning or leasing assets similar to
those conducted, owned or leased by the Company, except any
failures to obtain or maintain such insurance which, individually
or in the aggregate, would not have or be likely to have a
Material Adverse Effect.
4.16. Opinion of Financial Advisor.
The Special Committee has received the written opinion of the
Financial Advisor to the effect that, as of the date hereof, the
proposed consideration to be received, in the Offer and Merger
Agreement, taken together, by the holders of shares (other than
Parent and its affiliates) of the Company pursuant to the Offer
and the Merger is fair to such holders of shares (other than
Parent and its affiliates) from a financial point of view (the
"Opinion"). The Company hereby represents and warrants that it
has been authorized by the Financial Advisor to permit the
inclusion of the Opinion and references thereto, subject to prior
review and consent by the Financial Advisor (such consent not to
be unreasonably withheld), in the Offer to Purchase, the Schedule
TO, the Schedule 14D-9 and the Proxy Statement (as defined
below).
4.17. State Takeover Statutes.
The Company Board has taken all necessary action so that the
restrictions contained in Section 203 of the DGCL applicable to a
"business combination" (as defined in such Section 203) will not
apply to the execution, delivery or performance of the Agreement
or to the Offer, the Merger or the transactions contemplated
hereby or the letter agreement, dated January 19, 2000 (the
"▇▇▇▇▇▇ Stock Purchase Agreement"), between ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇ and
Parent relating to the purchase by Parent or Purchaser of the
Shares owned by ▇▇. ▇▇▇▇▇▇.
4.18. Required Vote of Company Stockholders.
Unless the Merger may be consummated in accordance with Section
253 of the DGCL, the only vote of the stockholders of the Company
required to adopt this Agreement, the Ancillary Documents and to
approve the Merger and the transactions contemplated hereby and
thereby, is the affirmative vote of the holders of a majority of
the outstanding shares of Common Stock.
4.19. Regulation as a Utility.
The Company and/or the Subsidiaries are regulated as a public
utility in the states set forth on Section 4.19 of the Company
Disclosure Letter. Except as set forth on Section 4.19 of the
Company Disclosure Letter, neither the Company nor any
"subsidiary company" or "affiliate" of the Company is subject to
regulation as a public utility or public service company (or
similar designation) by the United States or any state of the
United States. All filings required to be made by the Company or
any of its Subsidiaries since December 31, 1998, under any
applicable laws or orders relating to the regulation of public
utilities, have been filed with the appropriate public utility
commission, health agency or other appropriate governmental
entity (including, without limitation, to the extent required,
the state public utility regulatory agencies in the states
identified in Section 4.19 of the Company Disclosure Letter), as
the case may be, including all forms, statements, reports,
agreements (oral or written) and all documents, exhibits,
amendments and supplements appertaining thereto, including but
not limited to all rates, tariffs, franchises, service agreements
and related documents and all such filings complied, as of their
respective dates, with all applicable requirements of the
appropriate laws or orders, except any filings or failures to
comply which, individually or in the aggregate, would not have or
be likely to have, a Material Adverse Effect. Except as
specified on Section 4.19 of the Company Disclosure Letter, no
approval of any public utilities regulatory authority (including
all public utility control or public service commissions and
similar state regulatory bodies) is required for the Company's
execution and delivery of this Agreement or the performance of
its obligations under this Agreement or the consummation of the
transactions contemplated hereby.
4.20. Year 2000 Compliance.
(a) The computer systems of the Company and its Subsidiaries
are Year 2000 Compliant, except for such failures to be Year 2000
Compliant as would not, individually or in the aggregate, have or
be likely to have a Material Adverse Effect. All inventory,
products and independently developed applications of the Company
and its Subsidiaries that is, consists of, includes or uses
computer software is Year 2000 Compliant, except for such
failures to be Year 2000 Compliant as would not, individually or
in the aggregate, have or be likely to have a Material Adverse
Effect. To the knowledge of the Company, any failures on the
part of the customers of and suppliers to the Company and its
Subsidiaries to be Year 2000 Compliant will not, individually or
in the aggregate, have or be likely to have a Material Adverse
Effect.
(b) The term "Year 2000 Compliant", with respect to a
computer system or software program, means that such computer
system or program: (i) is capable of recognizing, processing,
managing, representing, interpreting and manipulating correctly
date-related data for dates earlier and later than January 1,
2000; (ii) has the ability to provide date recognition for any
data element without limitation; (iii) has the ability to
function automatically into and beyond the year 2000 without
human intervention and without any change in operations
associated with the advent of the year 2000; (iv) has the ability
to interpret data, dates and time correctly into and beyond the
year 2000; (v) has the ability not to produce noncompliance in
existing data, nor otherwise corrupt such data, into and beyond
the year 2000; (vi) has the ability to process correctly after
January 1, 2000, data containing dates before that date; and
(vii) has the ability to recognize all "leap year" dates,
including February 29, 2000.
ARTICLE 5
5. Representations and Warranties of Parent and Purchaser.
Parent and Purchaser hereby represent and warrant to the
Company as of the date of this Agreement as follows:
5.1. Existence; Good Standing; Corporate Authority.
Each of Parent and Purchaser is a corporation duly
incorporated, validly existing and in good standing under the
laws of its jurisdiction of incorporation and has all requisite
corporate power and authority to own, operate and lease its
properties and carry on its business as now conducted, except
where the failure to have such power and authority, individually
or in the aggregate, would not materially adversely affect the
ability of Parent and Purchaser to consummate the transactions
contemplated hereby and by the Ancillary Documents.
5.2. Authorization, Validity and Effect of Agreements. Each
of Parent and Purchaser has the requisite corporate power
and authority to execute and deliver this Agreement and the
Ancillary Documents and to consummate the transactions
contemplated hereby and thereby. The execution and delivery of
this Agreement and the Ancillary Documents and the consummation
by Parent and Purchaser of the transactions contemplated hereby
and thereby have been duly and validly authorized by the
respective Boards of Directors of Parent and Purchaser and by
Parent as the sole stockholder of Purchaser and no other
corporate proceedings on the part of Parent or Purchaser are
necessary to authorize this Agreement and the Ancillary Documents
or to consummate the transactions contemplated hereby and
thereby. This Agreement has been, and any Ancillary Documents at
the time of execution will have been, duly and validly executed
and delivered by Parent and Purchaser, and (assuming this
Agreement and such Ancillary Documents each constitutes a valid
and binding obligation of the Company) constitutes and will
constitute the valid and binding obligations of each of Parent
and Purchaser, enforceable in accordance with their respective
terms, subject to applicable bankruptcy, insolvency, moratorium
or other similar laws relating to creditors' rights and general
principles of equity.
5.3. No Violation.
Neither the execution and delivery of this Agreement or any of
the Ancillary Documents by the Parent and Purchaser, nor the
consummation by them of the transactions contemplated hereby or
thereby, will (i) violate, conflict with or result in any breach
of any provision of the respective certificates of incorporation
or by-laws of the Parent or Purchaser; (ii) other than the
filings provided for in Section 2.3 and the filings required
under the Exchange Act, require any consent, approval or
authorization of, or declaration, filing or registration with,
any Governmental Entity, the lack of which, individually or in
the aggregate, would have or be likely to have a Material Adverse
Effect on the ability of the Parent or Purchaser to consummate
the transactions contemplated hereby, (iii) violate any Laws
applicable to the Parent or the Purchaser or any of their
respective assets, except for violations which, individually or
in the aggregate, would not have or be likely to have a Material
Adverse Effect on the ability of the Parent or Purchaser to
consummate the transactions contemplated hereby, and
(iv) violate, conflict with or result in a breach of any
provision of, constitute a default (or an event which, with
notice or lapse of time or both, would constitute a default)
under, result in the termination or in a right of termination of,
accelerate the performance required by or benefit obtainable
under, result in the creation of any Encumbrance upon any of the
properties of the Parent or Purchaser under, or result in there
being declared void, voidable, or without further binding effect,
any of the terms, conditions or provisions of any note, bond,
mortgage, indenture, deed of trust or any license, franchise,
permit, lease, contract, agreement or other instrument,
commitment or obligation to which the Parent or Purchaser is
bound, except for any of the foregoing matters which,
individually or in the aggregate, would not materially adversely
affect the ability of Parent and Purchaser to consummate the
transactions contemplated hereby and by the Ancillary Documents.
5.4. Interim Operations of Purchaser.
Purchaser was formed solely for the purpose of engaging in the
transactions contemplated hereby, has engaged in no other
business activities and has conducted its operations as
contemplated hereby.
5.5. Financing.
At the consummation of the Offer and at the Effective Time,
Parent will have or will cause the Purchaser to have funds
available to it sufficient to consummate the Offer and the Merger
on the terms contemplated hereby.
5.6 Information Supplied.
None of the Offer Documents or any amendment or supplement
thereto, at the respective times such documents are filed with
the SEC or first published, sent or given to the Company's
stockholders, will contain any untrue statement of a material
fact or will omit to state any material fact required to be
stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they are
made, not misleading except that no representation is made by the
Parent or Purchaser with respect to information supplied by the
Company specifically for inclusion in the Offer Documents or any
amendment or supplement. None of the information supplied or to
be supplied by Parent or Purchaser for inclusion or incorporation
by reference in the Schedule 14D-9 will, at the time such
documents are filed with the SEC or distributed to the Company's
stockholders, contains any untrue statements of a material fact
or omit to state any material fact required to be stated therein
or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading. If at
any time prior to the Effective Time the Parent or Purchaser
shall obtain knowledge of any facts with respect to itself, any
of its officers and directors or any of its Subsidiaries that
would require the supplement or amendment to the Offer Documents
or the information supplied by Parent or Purchaser for inclusion
or incorporation by reference in the Schedule 14D-9 in order to
make the statements therein, in the light of the circumstances
under which they are made, not misleading, or to comply with
applicable Laws, such amendment or supplement shall be promptly
filed with the SEC and, as required by Law, disseminated to the
stockholders of the Company, and in the event the Company shall
advise Parent or Purchaser as to its obtaining knowledge of any
facts that would make it necessary to supplement or amend any of
the foregoing documents, Parent or Purchaser shall promptly amend
or supplement such document as required and distribute the same
to the Company's stockholders.
ARTICLE 6
6. Covenants.
6.1. Alternative Proposals.
The Company agrees (a) that, between the date hereof and the
Effective Time, neither it nor any of its Subsidiaries shall, and
it shall direct and use its best efforts to cause its officers,
directors, employees, agents and representatives (including,
without limitation, any investment banker, attorney or accountant
retained by it or any of its Subsidiaries) not to, initiate,
solicit or encourage, directly or indirectly, any inquiries or
the making or implementation of any proposal or offer (including,
without limitation, any proposal or offer to its stockholders)
with respect to a merger, acquisition, consolidation or similar
transaction involving, or any purchase of all or any significant
portion of the assets or any equity securities of, the Company or
any of its Subsidiaries (any such proposal or offer being
hereinafter referred to as an "Alternative Proposal") or engage
in any negotiations concerning, or provide any confidential
information or data to, afford access to the properties, books or
records of the Company or any of its Subsidiaries to, or have any
discussions with, any Person relating to an Alternative Proposal,
or otherwise facilitate any effort or attempt to make or
implement an Alternative Proposal; (b) that it will immediately
cease and cause to be terminated any existing activities,
discussions or negotiations with any parties conducted heretofore
with respect to any of the foregoing, and it will take the
necessary steps to inform such parties of the obligations
undertaken in this Section 6.1; and (c) that it will notify
Parent immediately of the identity of the potential acquirer and
the terms of such Person's or entity's proposal if any such
inquiries or proposals are received by, any such information is
requested from, or any such negotiations or discussions are
sought to be initiated or continued with, the Company; provided,
however, that nothing contained in this Section 6.1 shall
prohibit the Company or its Subsidiaries, upon approval of the
Special Committee, from (i) prior to the acceptance for payment
of shares of Common Stock by Purchaser pursuant to the Offer,
furnishing information to, or entering into discussions or
negotiations with, any Person or entity that makes an unsolicited
bona fide proposal to acquire the Company pursuant to a merger,
consolidation, share exchange, purchase of substantially all of
the assets of the Company, a business combination or other
similar transaction, if, and only to the extent that, (A) such
proposal was not initially solicited, encouraged or knowingly
facilitated by the Company, its Subsidiaries or their agents in
violation of this Section 6.1, (B) such proposal is not subject
to a financing condition and involves consideration that provides
a higher value per share than the Merger Consideration, (C) the
Company Board, or the Company's directors constituting the
Special Committee, determines in good faith based on the advice
of outside counsel that the taking of such action would be
inconsistent with its fiduciary duties to stockholders imposed by
Law, and (D) prior to furnishing information to, or entering into
discussions or negotiations with, such Person or entity, the
Company provides written notice to Parent to the effect that it
is furnishing information to, or entering into discussions or
negotiations with, such Person or entity. The Company shall keep
Parent immediately informed of the status of any such discussions
or negotiations (including the identify of such Person or entity
and the terms of any proposal); and (ii) to the extent
applicable, complying with Rule 14e-2(a) promulgated under the
Exchange Act with regard to an Alternative Proposal. Nothing in
this Section 6.1 shall (x) permit the Company to terminate this
Agreement (except as specifically provided in Article 8 hereof),
(y) permit the Company to enter into any agreement with respect
to an Alternative Proposal during the term of this Agreement, or
(z) affect any other obligation of the Company under this
Agreement. Notwithstanding anything to the contrary in this
Section 6.1, Parent and Purchaser have advised the Company Board
that they have no intention of selling the Parent Shares or the
Shares acquired by Purchaser in the Offer pursuant to such an
Alternative Proposal.
6.2. Interim Operations.
(a) From the date of this Agreement until the Effective Time,
except as set forth in Section 6.2 of the Company Disclosure
Letter, unless Parent has consented in writing thereto, the
Company shall, and shall cause its Subsidiaries to, (i) conduct
its operations according to its ordinary course of business
consistent with past practice; (ii) use its reasonable best
efforts to preserve intact its business organizations and
goodwill, keep available the services of its officers and
employees, and maintain satisfactory relationships with those
Persons having business relationships with them; and (iii) upon
the discovery thereof, promptly notify Parent of the existence of
any breach of any representation or warranty contained herein
(or, in the case of any representation or warranty that makes no
reference to Material Adverse Effect, any breach of such
representation or warranty in any material respect) or the
occurrence of any event that would cause any representation or
warranty contained herein no longer to be true and correct (or,
in the case of any representation or warranty that makes no
reference to Material Adverse Effect, to no longer be true and
correct in any material respect).
(b) From and after the date of this Agreement until
the Effective Time, except as set forth in Section 6.2 of the
Company Disclosure Letter, unless Parent has consented in writing
thereto, the Company shall not, and shall cause each of its
Subsidiaries not to:
(i) amend its certificate of incorporation or by-
laws;
(ii) issue, sell or pledge any shares of its
capital stock or other ownership interest in the Company (other
than issuances of Common Stock in respect of any exercise of
stock options outstanding on the date hereof and disclosed in
Section 4.4 of the Company Disclosure Letter) or its
Subsidiaries, or any securities convertible into or exchangeable
for any such shares or ownership interest, or any rights,
warrants or options to acquire or with respect to any such shares
of capital stock, ownership interest, or convertible or
exchangeable securities (or derivative instruments in respect of
the foregoing);
(iii) effect any stock split or otherwise
change its capitalization as it exists on the date hereof, or
directly or indirectly redeem, purchase or otherwise acquire any
shares of its capital stock or capital stock of its Subsidiaries;
(iv) (A) grant, confer or award any option,
warrant, convertible security or other right to acquire any
shares of its capital stock or take any action to cause to be
exercisable any otherwise unexercisable option under any Company
Stock Plan (except as otherwise required by the terms of such
unexercisable options), (B) accelerate or waive any or all of the
goals, restrictions or conditions imposed under any Award, or (C)
issue, sell, grant or award any shares of capital stock or any
right to acquire shares of capital stock under any Company Stock
Plan (except as otherwise required by such plan);
(v) declare, set aside or pay any dividend or
make any other distribution or payment with respect to any shares
of its capital stock or other ownership interests (other than
such payments by the Subsidiaries to the Company);
(vii) mortgage or otherwise encumber or
subject to any Encumbrance, or sell, lease or otherwise dispose
of any of its property or assets (including capital stock of its
Subsidiaries), other than Encumbrances that are incurred in the
ordinary course of business, consistent with past practice, the
sale or disposition of inventory in the ordinary course of
business or the sale, lease, encumbrance or other disposition of
assets which, individually or in the aggregate, are obsolete or
not material to the Company and its Subsidiaries taken as a
whole;
(viii) (A) acquire by merger, purchase or any
other manner, any business or entity or any division thereof for
consideration in excess of $1,000,000 in the aggregate; or (B)
otherwise acquire any assets which would be material,
individually or in the aggregate, to the Company and its
Subsidiaries taken as a whole, except for purchases of inventory,
supplies or capital equipment in the ordinary course of business
consistent with past practice and the acquisition of assets for
consideration in excess of $1,000,000 in the aggregate;
(ix) except for borrowings under existing credit
facilities and excepting transactions between the Company and any
Subsidiary, incur or assume any long-term or short-term debt or
issue any debt securities or assume, guarantee or otherwise
become liable or responsible (whether directly, contingently or
otherwise) for the debt or other obligations of any other Person,
other than obligations (other than debt) of its Subsidiaries
incurred in the ordinary course of business;
(x) (A) make any loans, advances or capital
continuations to, or investments in, any other Person (other than
Subsidiaries), except with respect to commitments outstanding as
of the date hereof, or (B) forgive any loans, advances or capital
continuations to, or investments in, any other Person (other than
Subsidiaries), for an aggregate amount in excess of $1,000,000
(as to clauses (A) and (B) collectively);
(xi) except as contemplated by this Agreement or
in the ordinary course of business consistent with past practices
(A) increase the compensation payable or to become payable to its
officers or employees, (B) other than in accordance with existing
policies and arrangements, grant any severance pay to its
officers, directors or employees or (C) establish, adopt, enter
into or amend any collective bargaining, bonus, profit sharing,
thrift, compensation, stock option, restricted stock, pension,
retirement, deferred compensation, employment, termination,
severance or other plan, agreement, trust, fund, policy or
arrangement for the benefit of any director, officer or employee,
except to the extent required by applicable law or the terms or a
collective bargaining agreement or a contractual obligation
existing on the date hereof;
(xii) change any of the accounting principles
or practices used by the Company, except as may be required by
GAAP;
(xiii) pay, discharge or satisfy any material
claims, material liabilities or material obligations (absolute,
accrued, asserted or unasserted, contingent or otherwise), other
than the payment, discharge or satisfaction (A) of any such
material claims, material liabilities or material obligations in
the ordinary course of business and consistent with past practice
or (B) of material claims, material liabilities or material
obligations reflected or reserved against in, or contemplated by,
the consolidated financial statements (or the notes thereto)
contained in the Company Reports;
(xiv) agree to the settlement of any claim or
litigation, which settlement would have a Material Adverse
Effect;
(xv) make, change or rescind any material Tax
election (other than recurring elections that customarily are
made in connection with the filing of any Tax Return; provided
that any such elections are consistent with the past practices of
the Company or its Subsidiaries, as the case may be) or settle or
compromise any material Tax liability that is the subject of any
audit, claim for delinquent Taxes, examination, action, suit,
proceeding or investigation by any Taxing authority;
(xv) except to the extent required under existing
employee and director benefit plans, agreements or arrangements
as in effect on the date of this Agreement or as contemplated by
this Agreement, accelerate the payment, right to payment or
vesting of any bonus, severance, profit sharing, retirement,
deferred compensation, stock option, insurance or other
compensation or benefits
(xix) enter into any agreement, understanding
or commitment that restrains, limits or impedes the ability of
the Company or any of its Subsidiaries to compete with or conduct
any business or line of business, including geographic
limitations on the activities of the Company or any of its
Subsidiaries;
(xx) materially modify, amend or terminate any
material contract, or waive, relinquish, release or terminate any
right or claim, in each case, except in the ordinary course of
business consistent with past practice;
(xxi) other than with respect to commitments
outstanding as of the date hereof, make any capital expenditures
in the aggregate for the Company and its Subsidiaries in excess
$1,000,000, in the aggregate;
(xxii) take any action to cause the Common
Stock to be delisted from the New York Stock Exchange prior to
the completion of the offer; and
(xxiii) agree in writing or otherwise to take
any of the foregoing actions.
6.3. Company Stockholder Approval; Proxy Statement.
(a) If approval or action in respect of the Merger by the
stockholders of the Company is required by applicable Law, the
Company, acting through the Company Board, shall (i) call a
meeting of its stockholders (the "Stockholders Meeting") for the
purpose of voting upon this Agreement and the transactions
contemplated hereby, (ii) hold the Stockholders Meeting as soon
as practicable following the purchase of shares of Common Stock
pursuant to the Offer, and (iii) unless taking such action would
be inconsistent with the fiduciary duties of the directors of the
Company or of the Company's directors constituting the Special
Committee, as determined by such directors in good faith, and
after consultation with independent legal counsel, recommend to
its stockholders the approval of this Agreement and the
transactions contemplated hereby. In the event a Stockholders
Meeting is called, the Company shall use its reasonable best
efforts to solicit from the stockholders of the Company proxies
in favor of the approval and adoption of this Agreement, and the
transactions contemplated hereby and to secure the vote or
consent of stockholders required by the DGCL to approve and adopt
this Agreement, unless otherwise required by the applicable
fiduciary duties of the directors of the Company or of the
Company's directors constituting the Special Committee, as
determined by such directors in good faith, and after
consultation with independent legal counsel. This Agreement must
be submitted to the stockholders of the Company whether or not
the Company Board determines at any time subsequent to declaring
its advisability that the Agreement is no longer advisable and
recommends that the stockholders reject it.
(b) If required by applicable Law, the Company will,
as soon as practicable following the expiration of the Offer,
prepare and file a preliminary Proxy Statement (such proxy
statement, and any amendments or supplements thereto, the "Proxy
Statement") or, if applicable, an Information Statement with the
SEC with respect to the Stockholders Meeting and will use its
best efforts to respond to any comments of the SEC or its staff
and to cause the Proxy Statement to be cleared by the SEC. The
Company will notify Parent of the receipt of any comments from
the SEC or its staff and of any request by the SEC or its staff
for amendments or supplements to the Proxy Statement or for
additional information and will supply Parent promptly with
copies of all correspondence between the Company or any of its
representatives, on the one hand, and the SEC, on the other hand.
The Company shall give Parent and its counsel the opportunity to
review the Proxy Statement prior to it being filed with the SEC
and shall give Parent and its counsel the opportunity to review
all amendments and supplements to the Proxy Statement and all
responses to requests for additional information and replies to
comments prior to their being filed with, or sent to, the SEC.
Each of the Company and Parent agrees to use its best efforts,
after consultation with the other parties hereto, to respond
promptly to all such comments of and requests by the SEC. As
promptly as practicable after the Proxy Statement has been
cleared by the SEC, the Company shall mail the Proxy Statement to
the stockholders of the Company. If at any time prior to the
approval of this Agreement by the Company's stockholders there
shall occur any event which should be set forth in an amendment
or supplement to the Proxy Statement, the Company will prepare
and mail to its stockholders such an amendment or supplement.
(c) The Company represents and warrants that the Proxy
Statement will comply in all material respects with the Exchange
Act and, at the respective times filed with the SEC and
distributed to stockholders of the Company, will not contain any
untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary in order to make
the statements therein, in the light of the circumstances under
which they were made, not misleading; provided that the Company
makes no representation or warranty as to any information
included in the Proxy Statement that was provided by Parent or
Purchaser. The Parent represents and warrants that none of the
information supplied by Parent or Purchaser for inclusion in the
Proxy Statement will, at the respective times filed with the SEC
and distributed to stockholders of the Company, contain any
untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary in order to make
the statements therein, in the light of the circumstances under
which they were made, not misleading. Parent agrees that Parent
will promptly inform the Company of the discovery by it or
Purchaser of any information that should be set forth in an
amendment or supplement to the Proxy Statement.
(d) The Company shall use its best efforts to obtain
the necessary approvals by its stockholders of the Merger, this
Agreement and the transactions contemplated hereby.
(e) Parent agrees to cause all shares of Common Stock
purchased by Purchaser pursuant to the Offer and all other shares
of Common Stock owned by Parent, Purchaser or any other
subsidiary or affiliate of Parent to be voted in favor of the
approval of the Merger.
6.4. Company Board Representation; Section 14(f).
(a) Promptly upon the purchase of shares of Common Stock
pursuant to the Offer, Parent shall be entitled to designate such
number of directors, rounded up to the next whole number, as will
give Parent representation on the Company Board equal to the
product of (i) the number of directors on the Company Board and
(ii) the percentage that the number of shares of Common Stock
purchased by Purchaser or Parent bears to the number of shares of
Common Stock then outstanding (the "Percentage"), and the
Company shall, upon request by Parent, promptly increase the size
of the Company Board and/or exercise its best efforts to secure
the resignations of such number of directors as is necessary to
enable the Parent's designees to be elected to the Company Board
and shall cause the Parent's designees to be so elected;
provided, however, that until the Effective Time, the Company
Board shall have at least one member who is not designated by
Parent or Purchaser. At the request of Parent, the Company will
use its best efforts to cause such individuals designated by
Parent to constitute the same Percentage of (i) each committee of
the Company Board, (ii) the board of directors of each Subsidiary
and (iii) each committee of each Subsidiary's board of directors.
The Company's obligations to appoint designees to the Company
Board shall be subject to Section 14(f) of the Exchange Act. The
Company shall take, at its expense, all action necessary to
effect any such election, and shall include in the Schedule 14D-9
the information required by Section 14(f) of the Exchange Act and
Rule 14f-1 promulgated thereunder. Parent will supply to Company
in writing, and be solely responsible for, any information with
respect to itself and its nominees, directors and affiliates that
is required by Section 14(f) and Rule 14f-1.
(b) Following the election or appointment of Parent's
designees pursuant to this Section 6.4 and prior to the Effective
Time, the approval of a majority of the directors of the Company
then in office who are not designated by Parent shall be required
to authorize any permitted termination of this Agreement by the
Company, any amendment of this Agreement requiring action by the
Company Board, any extension of time for the performance of any
of the obligations or other acts of Parent or Purchaser, and any
waiver of compliance with any of the agreements or conditions
contained herein for the benefit of the Company.
6.5. Filings; Other Action.
Subject to the terms and conditions herein provided, the
Company, Parent, and Purchaser shall: (a) use their reasonable
best efforts to cooperate with one another in (i) determining
which filings other than under the Exchange Act are required to
be made prior to the expiration of the Offer or the Effective
Time with, and which consents, approvals, permits or
authorizations are required to be obtained prior to the Effective
Time from, Governmental Entities or other third parties in
connection with the execution and delivery of this Agreement and
any other Ancillary Documents and the consummation of the
transactions contemplated hereby and thereby and (ii) timely
making all filings under the Exchange Act and all such other
filings and timely seek all required consents, approvals,
permits, authorizations and waivers; and (b) use their reasonable
best efforts to take, or cause to be taken, all other action and
do, or cause to be done, all other things necessary, proper or
appropriate to consummate and make effective the transactions
contemplated by this Agreement. If, at any time after the
Effective Time, any further action is necessary or desirable to
carry out the purpose of this Agreement, the proper officers and
directors of Parent and the Surviving Corporation shall take all
such necessary action.
6.6. Access to Information.
(a) From the date of this Agreement until the Closing, the
Company shall, and shall cause its Subsidiaries to, (i) give
Parent and its authorized representatives reasonable access, upon
reasonable notice and during reasonable business hours to all
books, records, personnel, offices and other facilities and
properties of the Company and its Subsidiaries and their
accountants and accountants' work papers, (ii) permit Parent to
make such copies and inspections thereof as Parent may reasonably
request and (iii) furnish Parent with such financial and
operating data and other information with respect to the business
and properties of the Company and its Subsidiaries as Parent may
from time to time reasonably request; provided that no
investigation or information furnished pursuant to this Section
6.6 shall affect any representation or warranty made herein by
the Company or the conditions to the obligations of Parent to
consummate the transactions contemplated by this Agreement.
(b) Parent shall hold all information furnished on a
confidential basis by or on behalf of the Company or any of the
Company's Subsidiaries or representatives pursuant to
Section 6.6(a) in confidence.
6.7. Publicity.
The initial press release relating to this Agreement shall be
issued jointly by the Company and Parent. Thereafter, the
Company and Parent shall obtain the prior consent of each other
before issuing any press release or otherwise making public
statements with respect to the transactions contemplated hereby,
except as may be required by Law or any listing agreement with
any national securities exchange with respect thereto.
6.8. Further Action.
Each party hereto shall, subject to the fulfillment at or
before the Effective Time of each of the conditions of
performance set forth herein or the waiver thereof, perform such
further acts and execute such documents as may be reasonably
required to effect the transactions contemplated hereby,
including the Merger.
6.9. Insurance; Indemnity.
(a) Purchaser will (and the Surviving Corporation as successor
to the Purchaser as a result of the Merger will) maintain in
effect for not less than six years after the Effective Time, the
Company's current directors and officers insurance policies, if
such insurance is obtainable (or policies of at least the same
coverage containing terms and conditions no less advantageous to
the current and all former directors and officers of the Company)
with respect to acts or failures to act prior to the Effective
Time, including acts relating to the transactions contemplated by
this Agreement; provided, however, that in order to maintain or
procure such coverage, the Surviving Corporation shall not be
required to maintain or obtain policies providing such coverage
except to the extent such coverage can be provided at an annual
cost of no greater than 2 times the most recent annual premium
paid by the Company prior to the date hereof (the "Cap"); and
provided, further, that if equivalent coverage cannot be
obtained, or can be obtained only by paying an annual premium in
excess of the Cap, Purchaser or the Surviving Corporation shall
only be required to obtain as much coverage as can be obtained by
paying an annual premium equal to the Cap.
(b) To the extent, if any, not provided by an existing
right of indemnification or the agreement or policy, from and
after the Effective Time, Purchaser and following the Merger, the
Surviving Corporation shall indemnify and hold harmless each
Person who is, or has been at any time prior to the date hereof
or who becomes prior to the Effective Time, an officer or
director of the Company or any of its Subsidiaries (each, an
"Indemnified Party"), against all losses, expenses, claims,
damages or liabilities or, subject to the last sentence of this
paragraph, amounts paid in settlement, arising in connection with
any claim, action, suit, proceeding or investigation (an
"Action") arising out of or pertaining to acts or omissions by
such Person in their capacities as an officer or director, as the
case may be, of the Company, which acts or omissions occurred
prior to the Effective Time, whether asserted or claimed prior
to, at or after the Effective Time to the fullest extent
permitted by law. In the event of any such Action, the Surviving
Corporation shall control the defense of such Action with counsel
selected by the Surviving Corporation, which counsel shall be
reasonably acceptable to the Indemnified Party; provided,
however, that the Indemnified Party shall be permitted to
participate in the defense of such Action through counsel
selected by the Indemnified Party, which counsel shall be
reasonably acceptable to the Surviving Corporation, at the
Indemnified Party's expense. Notwithstanding the foregoing, if
there is any conflict between the Surviving Corporation and any
Indemnified Parties or there are additional defenses available to
any Indemnified Parties, the Indemnified Parties shall be
permitted to participate in the defense of such Action with
counsel selected by the Indemnified Parties, which counsel shall
be reasonably acceptable to the Surviving Corporation, and
Purchaser shall cause the Surviving Corporation to pay the
reasonable fees and expenses of such counsel, as accrued and in
advance of the final disposition of such Action to the fullest
extent permitted by applicable law; provided, however, that the
Surviving Corporation shall not be obligated to pay the
reasonable fees and expenses of more than one counsel for all
Indemnified Parties in any single Action except to the extent
that, in the opinion of counsel for the Indemnified Parties, two
or more of such Indemnified Parties have conflicting interests in
the outcome of such Action. Parent and Purchaser acknowledge
that the members of the Special Committee shall be entitled to
select their own counsel pursuant to the preceding sentence with
respect to any litigation related to the transactions
contemplated hereby; provided, however, that such counsel must be
reasonably acceptable to Parent. Any Indemnified Party wishing
to claim indemnification under this Section 6.9, upon learning of
any such claim, action, suit, proceeding or investigation
eligible for indemnification under this Section 6.9, shall notify
the Surviving Corporation, but failure to notify the Surviving
Corporation shall not relieve it from any liability which it may
have under this Section 6.9, except to the extent that such
failure results in the forfeiture of substantive rights or
defenses. The Surviving Corporation shall not be liable for any
settlement effected without its written consent, which consent
shall not unreasonably be withheld.
(c) Purchaser will, and following the Merger, will
cause the Surviving Corporation to, keep in effect all provisions
in the Surviving Corporation's certificate of incorporation and
by-laws that provide for exculpation of director and officer
liability and indemnification (and advancement of expenses
related thereto) of the past and present officers and directors
of the Company at least to the extent they are presently
indemnified by the Company and such provisions shall not be
amended except as either required by applicable Law or to make
changes permitted by Law that would enhance the rights of past or
present officers and directors to indemnification or advancement
of expenses.
(d) If the Surviving Corporation or any of its
successors or assigns (i) shall consolidate with or merge into
any other corporation or other entity and shall not be the
continuing or surviving corporation or entity of the
consolidation or merger or (ii) shall transfer all or
substantially all of its properties and assets to any individual,
corporation or other entity, then and in each such case, proper
provisions shall be made so that the successors and assigns of
the Surviving Corporation shall assume all of the obligations set
forth in this Section 6.9.
(e) The provisions of this Section 6.9 are intended to
be for the benefit of, and shall be enforceable by, each of the
Indemnified Parties, their heirs and their representatives.
6.10. Certain Employee Agreements.
Subject to Section 6.11, Parent, Purchaser and the Company and
its Subsidiaries shall honor, without modification, all
contracts, agreements, collective bargaining agreements and
commitments of the parties prior to the date hereof which apply
to any current or former employee or current or former director
of the Company or its Subsidiaries; provided, however, that this
undertaking does not prevent Parent, Purchaser or the Company
from enforcing or complying with such contracts, agreements,
collective bargaining agreements and commitments in accordance
with their terms, including, without limitation, exercising any
right to amend, modify, suspend, revoke or terminate any such
contract, agreement, collective bargaining agreement or
commitment under any such contract, agreement, collective
bargaining agreement or commitment or under applicable law. Any
workforce reductions carried out following the Effective Time by
Parent or the Company and their subsidiaries shall be done in
accordance with all applicable collective bargaining agreements,
and all laws and regulations governing the employment
relationship and termination thereof, including, without
limitation, the Worker Adjustment and Retraining Notification Act
and regulations promulgated thereunder, and any comparable state
or local law.
6.11. Employee Benefit Plans.
(a) Maintenance of the Company Benefit Plans. Each of
the Company Employee Benefit Plans (other than Company Stock
Plans) in effect at the date hereof shall be maintained in effect
with respect to the employees or former employees of the Company
and any of its Subsidiaries, who are covered by any such benefit
plan immediately prior to the Effective Time (the "Affiliated
Employees") until Parent, Purchaser or the Company otherwise
determine after the Effective Time; provided, however, that
nothing herein contained shall limit any right contained in any
such Company Employee Benefit Plan or under applicable law to
amend, modify, suspend, revoke or terminate any such plan;
provided further, however, that Parent, Purchaser or the Company
or their subsidiaries shall provide benefits to the Affiliated
Employees for a period of not less than one year following the
Effective Time which are no less favorable in the aggregate than
those provided under the Company Employee Benefit Plans (other
than Company Stock Plans) (with respect to employees and former
employees of the Company and its Subsidiaries). Without
limitation of the foregoing, with respect to any benefit plan
established to replace any Company Employee Benefit Plan (other
than Company Stock Plans); each participant in any such Company
Employee Benefit Plan shall receive credit for purposes of
eligibility to participate and vesting under any benefit plan of
the Company or any of its Subsidiaries or affiliates for service
credited for the corresponding purpose under such benefit plan;
provided, however, that such crediting of service shall not
operate to duplicate any benefit to any such participant or the
funding for any such benefit or cause any such Company Employee
Benefit Plan to fail to comply with the applicable provisions of
the Code or ERISA.
(b) Welfare Benefits Plans. With respect to any
welfare benefit plan established to replace any Company Employee
Benefit Plan which is a welfare benefit plan in which Affiliated
Employees may be eligible to participate after the Effective
Time, other than limitations, exclusions or waiting periods that
are already in effect with respect to such Affiliated Employees
and that have not been satisfied as of the Effective Time, such
replacement plans shall waive all limitations to pre-existing
conditions, exclusions and waiting periods with respect to
participation and coverage requirements and provide each
Affiliated Employee with credit for other co-payments and
deductibles paid prior to the Effective Time in satisfying any
applicable deductible or out-of-pocket requirements applicable to
the same calendar year under any welfare plans that such
Affiliated Employees are eligible to participate in after the
Effective Time.
ARTICLE 7
7. Conditions.
7.1. Conditions to Each Party's Obligation to Effect the Merger.
The respective obligation of each party to effect the Merger
shall be subject to the satisfaction or waiver, where
permissible, prior to the Effective Time, of the following
conditions:
(a) If approval of this Agreement and the Merger by
the holders of Common Stock is required by applicable Law, this
Agreement and the Merger shall have been approved by the
requisite vote of such holders.
(b) Any review or approval required by governmental
authorities in countries in which the Company or its Subsidiaries
have operations material to the Company and its Subsidiaries,
taken as a whole, shall have been completed or obtained.
(c) No United States federal or state or Republic of
France governmental authority or other agency or commission or
court of competent jurisdiction shall have enacted, issued,
promulgated, enforced or entered any law, rule, regulation,
executive order decree, injunction or other order which is in
effect and prohibits or has the effect of prohibiting the
consummation of the Merger or makes such consummation illegal.
ARTICLE 8
8. Termination.
8.1. Termination.
This Agreement, notwithstanding approval thereof by the
stockholders of the Company, may be terminated at any time prior
to the Effective Time:
(a) by mutual written consent of the Board of
Directors of the Parent and the Special Committee;
(b) by the Parent or the Special Committee:
(i) if either (i) the purchase of Shares pursuant
to the Offer has not been consummated on or before March 15,
2000, or the Effective Time shall not have occurred on or before
June 30, 2000 (provided that the right to terminate this
Agreement pursuant to this clause (i) shall not be available to
any party whose failure to fulfill any obligation under this
Agreement has been the cause of or resulted in the failure of the
Effective Time to occur on or before such date); or
(ii) if there shall be any Law that makes
consummation of the Offer or the Merger illegal or prohibited, or
if any court of competent jurisdiction in the United States or
the Republic of France shall have issued an order, judgment,
decree or ruling, or taken any other action restraining,
enjoining or otherwise prohibiting the Merger and such order,
judgment, decree, ruling or other action shall have become final
and non-appealable;
(c) by the Special Committee,
(i) if there is an Alternative Proposal which the
Special Committee in good faith determines is more favorable from
a financial point of view to the stockholders of the Company as
compared to the Offer and the Merger, and the Special Committee
determines in good faith based upon advice of outside counsel,
that the taking of such action would be inconsistent with its
fiduciary duties to stockholders imposed by Law; provided,
however, that the right to terminate this Agreement pursuant to
this Section 8.1(c) shall not be available (i) if the Company has
breached its obligations under Section 6.1, or (ii) if the
Alternative Proposal (x) is subject to a financing condition or
(y) involves consideration that is not entirely cash or does not
permit stockholders to receive the payment of the offered
consideration in respect of all shares at the same time, unless
the Special Committee has been furnished with a written opinion
of the Financial Advisor or other nationally recognized
investment banking firm to the effect that (in the case of
clause (x)) the Alternative Proposal is readily financeable and
(in the case of clause (y)) that such offer provides a higher
value per share than the consideration per share pursuant to the
Offer or the Merger, or (iii) if, prior to or concurrently with
any purported termination pursuant to this Section 8.1(c), the
Company shall not have paid the fees and expenses contemplated by
Section 8.2, or (iv) if the Company has not provided Parent and
Purchaser with five business days prior written notice of its
intent to so terminate this Agreement and delivered to the Parent
and Purchaser a copy of the written agreement embodying the
Alternative Proposal in its then most definitive form;
(ii) if Parent or Purchaser shall have breached in
any material respect any of their respective representations,
warranties or covenants contained in this Agreement;
(d) by the Parent,
(i) prior to the acceptance of any shares of
Common Stock under the Offer, if due to an occurrence or
circumstance that would result in the failure of any condition
specified in Exhibit A, Parent shall have terminated the Offer
without having accepted any Shares for payment thereunder unless
such occurrence or circumstance that would result in the failure
of any such condition shall have been caused by or resulted from
the failure of Parent or Purchaser to perform any obligation of
either of them contained in this Agreement; or
(ii) prior to the purchase of any Common Stock
validly tendered pursuant to the Offer, the Special Committee
shall have withdrawn or modified in a manner that is, materially
adverse to Parent or Purchaser, its approval or recommendation of
this Agreement, the Offer, the Merger or any other transaction
contemplated hereby or shall have recommended another merger,
consolidation or business combination involving, or acquisition
of, the Company or its assets or another tender offer for Common
Stock, or shall have resolved to do any of the foregoing.
8.2. Effect of Termination and Abandonment.
In the event of termination of this Agreement and the
abandonment of the Merger pursuant to this Article 8, all
obligations of the parties hereto shall terminate, except the
obligations of the parties pursuant to this Section 8.2 and
Sections 6.6(b), 9.5 and 9.6, and there shall be no liability on
the part of the Company, the Parent, Purchaser or their
respective officers or directors, except for any breach of a
party's obligations under such provisions. If this Agreement
shall terminate pursuant to Section 8.1(b)(i) as a result of the
failure of the Company to satisfy the condition set forth in
paragraphs (f) of Exhibit A, or pursuant to 8.1(c) or 8.1(d)(ii),
the Company shall promptly, but in no event later than two
business days after any such termination, reimburse Parent and
its affiliates for the out-of-pocket expenses of Parent and its
affiliates, incurred in connection with or arising out of the
Offer, the Merger or the transactions contemplated hereby or by
the Ancillary Documents, including reasonable attorneys' fees.
If this Agreement shall terminate pursuant to Section 8.1(c)(ii),
Parent shall promptly, but in no event later than two business
days after any such termination, reimburse the Company its out-
of-pocket expenses incurred in connection with or arising out of
the Offer, the Merger or the transactions contemplated hereby or
by the Ancillary Documents, including reasonable attorneys' fees.
The parties agree that such reimbursement of expenses shall be
Parent's and Purchaser's exclusive remedy for any loss,
liability, damage or claim arising out of or in connection with
any such termination of this Agreement. The Company acknowledges
that the agreements contained in this Section 8.2 are an integral
part of the transactions contemplated by this Agreement, and
that, without these agreements, Parent and Purchaser would not
enter into this Agreement. Notwithstanding the foregoing, no
party hereto shall be relieved from liability for any willful,
material breach of this Agreement.
8.3. Amendment.
To the extent permitted by applicable law, this Agreement may
be amended by action taken by or on behalf of the board of
directors of each of the parties hereto and, in the case of the
Company, with the approval of the Special Committee at any time
before or after adoption of this Agreement by the stockholders of
the Company (if required); provided, however, that after any such
stockholder approval (if required), no amendment shall be made
which decreases the Merger Consideration or which adversely
affects the rights of, or the income tax consequences to, the
Company's stockholders (other than Parent and its Affiliates)
hereunder without the approval of such stockholders. This
Agreement may not be amended except by an instrument in writing
signed on behalf of all of the parties.
8.4. Extension; Waiver.
At any time prior to the Effective Time, any party hereto, by
action taken by its board of directors, may, to the extent
legally allowed, (a) extend the time for the performance of any
of the obligations or other acts of the other parties hereto, (b)
waive any inaccuracies in the representations and warranties
made to such party contained herein or in any document delivered
pursuant hereto and (c) waive compliance with any of the
agreements or conditions for the benefit of such party contained
herein; provided, however, that, if the Company seeks to make
such extension or waiver as provided in (a), (b) or (c) above, it
must first obtain the approval of the Special Committee. Any
agreement on the part of a party hereto to any such extension or
waiver shall be valid only if set forth in an instrument in
writing signed on behalf of such party.
ARTICLE 9
9. General Provisions.
9.1. Nonsurvival of Representations and Warranties.
None of the representations and warranties in this Agreement,
or in any instrument delivered pursuant to this Agreement, shall
survive the Effective Time.
9.2. Notices.
All notices and other communications given or made pursuant
hereto shall be in writing and shall be deemed to have been duly
given or made as of the date of receipt and shall be delivered
personally or mailed by registered or certified mail (postage
prepaid, return receipt requested), sent by overnight courier or
sent by facsimile, to the applicable party at the following
addresses or facsimile numbers (or at such other address or
telecopy number for a party as shall be specified by like
notice):
If to Parent or Purchaser:
Elyo S.A.
235 Avenue ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇
Facsimile: 01 41 20 10 10
Attention: Michel Caillard
with a copy to:
Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
If to the Company:
Trigen Energy Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
With a copy to:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP
Bank of America Plaza
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Jr., Esq.
9.3. Assignment; Binding Effect.
Neither this Agreement nor any of the rights, interests or
obligations hereunder shall be assigned by any of the parties
hereto (whether by operation of law or otherwise) without the
prior written consent of the other parties; provided, however,
that either Parent or Purchaser (or both) may assign its rights
hereunder (including, without limitation, the right to make the
Offer and/or to purchase shares of Common Stock pursuant to the
Offer) to a wholly owned subsidiary of Parent; and, further
provided that nothing shall relieve the assignor from its
obligations hereunder. Subject to the preceding sentence, this
Agreement shall be binding upon and shall inure to the benefit of
the parties hereto and their respective successors and assigns.
Notwithstanding anything contained in this Agreement to the
contrary, except for the provisions of Section 6.9 which may be
enforced directly by the beneficiaries thereof, nothing in this
Agreement, expressed or implied, is intended to confer on any
Person other than the parties hereto or their respective heirs,
successors, executors, administrators and assigns any rights,
remedies, obligations or liabilities under or by reason of this
Agreement.
9.4. Entire Agreement.
This Agreement, the Company Disclosure Letter, the Exhibits,
the Ancillary Documents and any other documents delivered by the
parties in connection herewith constitute the entire agreement
among the parties with respect to the subject matter hereof and
supersede all prior agreements and understandings among the
parties with respect thereto.
9.5. Governing Law.
This Agreement shall be governed by and construed in accordance
with the laws of the State of Delaware without regard to its
rules of conflict of laws. Each of the Company, Parent and
Purchaser hereby irrevocably and unconditionally consents to
submit to the exclusive jurisdiction of the United States
District Court for the State of Delaware or any court of the
State of Delaware (the "Delaware Courts") for any litigation
arising out of or relating to this Agreement and the transactions
contemplated hereby (and agrees not to commence any litigation
relating thereto except in such courts), waives any objection to
the laying of venue of any such litigation in the Delaware Courts
and agrees not to plead or claim in any Delaware Court that such
litigation brought therein has been brought in an inconvenient
forum. Parent hereby appoints The Corporation Trust Company as
agent for service of process. The address of such agent for
service of process is Corporation Trust Center, ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
9.6. Fees and Expenses.
Except as otherwise provided in Section 8.2, whether or not the
Merger is consummated, all fees, costs and expenses incurred in
connection with this Agreement and the transactions contemplated
hereby shall be paid by the party incurring such fees, costs and
expenses.
9.7. Certain Definitions.
For purposes of this Agreement, the following terms shall have
the following meanings:
(i) "affiliate" of a Person means a Person that
directly or indirectly, through one or more intermediaries,
controls, is controlled by, or is under common control with, the
first mentioned Person.
(ii) "knowledge" of any party hereto shall mean
the knowledge of any of the executive officers of that party.
(iii) "Person" means an individual,
corporation, partnership, limited liability company, association,
trust, unincorporated organization, entity or group (as defined
in the Exchange Act).
9.8. Headings.
Headings of the Articles and Sections of this Agreement are for
the convenience of the parties only, and shall be given no
substantive or interpretive effect whatsoever. The table of
contents contained in this Agreement is for reference purposes
only and shall not affect in any way the meaning or
interpretation of this Agreement.
9.9. Interpretation.
In this Agreement, unless the context otherwise requires, words
describing the singular number shall include the plural and vice
versa, and words denoting any gender shall include all genders
and words denoting natural Persons shall include corporations and
partnerships and vice versa. Whenever the words "include,"
"includes" or "including" are used in this Agreement, they shall
be understood to be followed by the words "without limitation."
9.10. Waivers.
No action taken pursuant to this Agreement, including, without
limitation, any investigation by or on behalf of any party, shall
be deemed to constitute a waiver by the party taking such action
of compliance with any representations, warranties, covenants or
agreements contained in this Agreement or in any of the Ancillary
Documents. The waiver by any party hereto of a breach of any
provision hereunder shall not operate or be construed as a waiver
of any prior or subsequent breach of the same or any other
provision hereunder.
9.11. Severability.
Any term or provision of this Agreement that is invalid or
unenforceable in any jurisdiction shall, as to that jurisdiction,
be ineffective to the extent of such invalidity or
unenforceability without rendering invalid or unenforceable the
remaining terms and provisions of this Agreement or affecting
the validity or enforceability of any of the terms or provisions
of this Agreement in any other jurisdiction. If any provision of
this Agreement is so broad as to be unenforceable, the provision
shall be interpreted to be only so broad as is enforceable.
9.12. Enforcement of Agreement.
The parties hereto agree that irreparable damage would occur in
the event that any of the provisions of this Agreement were not
performed in accordance with its specific terms or was otherwise
breached. It is accordingly agreed that the parties shall be
entitled to an injunction or injunctions to prevent breaches of
this Agreement and to enforce specifically the terms and
provisions hereof in any New York Court, this being in addition
to any other remedy to which they are entitled at law or in
equity.
9.13. Counterparts.
This Agreement may be executed by the parties hereto in
separate counterparts, each of which, when so executed and
delivered, shall be an original. All such counterparts shall
together constitute one and the same instrument. Each
counterpart may consist of a number of copies hereof, each signed
by less than all, but together signed by all, of the parties
hereto.
IN WITNESS WHEREOF, the parties have executed this
Agreement and caused the same to be duly delivered on their
behalf on the day and year first written above.
TRIGEN ENERGY CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President
ELYO S.A.
By: /s/ Olivier Degos
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Corporate Vice President
T ACQUISITION CORP.
By: /s/ Olivier Degos
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Secretary
TABLE OF CONTENTS
Page
ARTICLE 1 2
1. The Offer 2
1.1 The Offer. 2
1.2. Actions by Parent and Purchaser. 3
1.3. Actions by the Company. 4
ARTICLE 2 6
2. The Merger. 6
2.1. The Merger. 6
2.2. The Closing. 6
2.3. Effective Time. 6
2.4 Certificate of Incorporation, Bylaws, Directors
and Officers of the Surviving Corporation. 7
ARTICLE 3 7
3. Effect of the Merger on Securities of Purchaser
and the Company. 7
3.1. Purchaser Stock. 7
3.2. Company Securities. 7
3.3. Exchange of Certificates Representing Shares. 9
3.4. Adjustment of Merger Consideration. 11
3.5. Dissenting Company Stockholders. 11
3.6. Merger Without Meeting of Stockholders. 11
ARTICLE 4 12
4. Representations and Warranties of the Company. 12
4.1. Existence; Good Standing; Corporate Authority. 12
4.2. Authorization, Validity and Effect of Agreements. 12
4.3. Compliance with Laws. 13
4.4. Capitalization, etc. 13
4.5. No Violation. 14
4.6. Company Reports; Offer Documents. 16
4.7. Litigation. 17
4.8. Absence of Certain Changes. 18
4.9. Taxes. 18
4.10. Employee Benefit Plans. 19
4.11. Labor and Employment Matters. 20
4.12. Brokers. 20
4.13. Permits. 20
4.14. Environmental Matters. 21
4.15. Insurance Policies. 22
4.16. Opinion of Financial Advisor. 22
4.17. State Takeover Statutes. 23
4.18. Required Vote of Company Stockholders. 23
4.19. Regulation as a Utility. 23
4.20. Year 2000 Compliance 24
ARTICLE 5 25
5. Representations and Warranties of Parent and Purchaser. 25
5.1. Existence; Good Standing; Corporate Authority. 25
5.2. Authorization, Validity and Effect of Agreements. 25
5.3. No Violation. 25
5.4. Interim Operations of Purchaser. 26
5.5. Financing. 26
5.6. Information Supplied. 26
ARTICLE 6 27
6. Covenants. 27
6.1. Alternative Proposals. 27
6.2. Interim Operations. 28
6.3. Company Stockholder Approval; Proxy Statement. 32
6.4. Company Board Representation; Section 14(f). 33
6.5. Filings; Other Action. 34
6.6. Access to Information. 35
6.7. Publicity. 35
6.8. Further Action. 35
6.9. Insurance; Indemnity. 36
6.10. Certain Employee Agreements. 38
6.11. Employee Benefit Plans. 38
ARTICLE 7 39
7. Conditions. 39
7.1. Conditions to Each Party's Obligation to
Effect the Merger. 39
ARTICLE 8 40
8. Termination. 40
8.1. Termination. 40
8.2. Effect of Termination and Abandonment. 41
8.3. Amendment. 42
8.4. Extension; Waiver. 42
ARTICLE 9 43
9. General Provisions. 43
9.1. Nonsurvival of Representations and Warranties. 43
9.2. Notices. 43
9.3. Assignment; Binding Effect. 44
9.4. Entire Agreement. 44
9.5. Governing Law. 44
9.6. Fee and Expenses. 45
9.7. Certain Definitions. 45
9.8. Headings. 45
9.9. Interpretation. 45
9.10. Waivers. 46
9.11. Severability. 46
9.12. Enforcement of Agreement. 46
9.13. Counterparts. 46
EXHIBIT A
CONDITIONS OF THE OFFER
Notwithstanding any other term of the Offer or this
Agreement, Purchaser shall not be required to accept for payment
or to pay for any shares of Common Stock not theretofore accepted
for payment or paid for, and may terminate or amend the Offer if
at any time on or after the date of this Agreement and before the
acceptance of such Shares for payment or the payment therefor,
any of the following conditions exist or shall occur and remain
in effect:
(a) there shall have been instituted, pending or
threatened any litigation by the Government of the United
States or the Republic of France or by any agency or
instrumentality thereof or by any other third Person or
nongovernmental entity that would be reasonably likely to
(i) restrict the acquisition by Parent or Purchaser (or any
of its affiliates) of shares of Common Stock pursuant to the
Offer or restrain, prohibit or delay the making or
consummation of the Offer or the Merger, (ii) make the
purchase of or payment for some or all of the shares of
Common Stock pursuant to the Offer or the Merger illegal,
(iii) impose limitations on the ability of Parent or
Purchaser (or any of their affiliates) effectively to
acquire or hold, or to require Parent, Purchaser or the
Company or any of their respective affiliates or
subsidiaries to dispose of or hold separate, any portion of
their assets or the business of any one of them, (iv) impose
material limitations on the ability of Parent, Purchaser or
their affiliates to exercise full rights of ownership of the
shares of Common Stock purchased by it, including, without
limitation, the right to vote the shares purchased by it on
all matters properly presented to the stockholders of the
Company, (v) limit or prohibit any material business
activity by Parent, Purchaser or any of their affiliates,
including, without limitation, requiring the prior consent
of any Person or entity (including the Government of the
United States of America and the Republic of France, and any
instrumentality thereof) to future transactions by Parent,
Purchaser or any of their affiliates (Parent and Purchaser
acknowledge that the regulatory nature of some of the
Company's assets and businesses may result in the limitation
of Parent's and its affiliates in certain utility-related
areas) or (vi) make materially more costly (A) the making of
the Offer, (B) the acceptance for payment of, or payment
for, some or all of the Shares pursuant to the Offer,
(C) the purchase of Shares pursuant to the Offer or (D) the
consummation of the Merger; or
(b) there shall have been a subsequent
development in any action or proceeding relating to the
Company or any of its Subsidiaries that would (i) be
reasonably likely to be materially adverse either to Parent
and Purchaser or to Company and its Subsidiaries taken as a
whole or (ii) make materially more costly (A) the making of
the Offer, (B) the acceptance for payment of, or payment
for, some or all of the shares pursuant to the Offer,
(C) the purchase of shares pursuant to the Offer or (D) the
consummation of the Merger; or
(c) there shall have been any action taken, or
any Law promulgated, enacted, entered, enforced or deemed
applicable to the Offer or the Merger by any Governmental
Entity that could directly or indirectly result in any of
the consequences referred to in subsection (a) above; or
(d) this Agreement shall have been terminated in
accordance with its terms; or
(e) the Tender and Voting Agreement, dated as of
January 19, 2000, among Parent, Purchaser, ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, or the ▇▇▇▇▇▇ Stock Purchase
Agreement, shall not be in effect; or
(f) (i) any of the representations and
warranties made by the Company in this Agreement that are
qualified by materiality or Material Adverse Effect shall
not have been true and correct in all respects when made, or
shall thereafter have ceased to be true and correct in all
respects as if made at the scheduled or extended expiration
of the Offer (except to the extent that any such
representation or warranty refers specifically to another
date, in which case such representation or warranty shall be
true and correct in all respects as of such other date), or
the other representations and warranties made by the Company
in this Agreement shall not have been true and correct in
all material respects when made, or shall thereafter have
ceased to be true and correct in all material respects as if
made at the scheduled or extended expiration of the Offer
(except to the extent that any such representation or
warranty refers specifically to another date, in which case
such representation or warranty shall be true and correct in
all material respects as of such other date) or (ii) the
Company shall have breached or failed to comply in any
material respect with any of its obligations under this
Agreement; or
(g) Parent and the Special Committee shall have
agreed that Parent shall terminate the Offer or postpone the
acceptance for payment of or payment for Shares thereunder;
or
(h) there shall have occurred (i) any general
suspension of, or limitation on prices for, trading in
securities on any national securities exchange or in the
over the counter market in the United States, (ii) a
declaration of any banking moratorium by federal or state
authorities or any suspension of payments in respect of
banks or any limitation (whether or not mandatory) imposed
by federal or state authorities on the extension of credit
by lending institutions in the United States or the Republic
of France, (iii) any mandatory limitation by the federal
government that has a material adverse effect generally on
the extension of credit by banks and other financial
institutions generally, (iv) a commencement of a war, armed
hostilities or any other international or national calamity
directly or indirectly involving the United States or the
Republic of France, or (v) in the case of any of the
foregoing existing at the time of the commencement of the
Offer, in the sole judgment of the Parent, a material
acceleration or worsening thereof.
The foregoing conditions are for the sole benefit of
Parent and Purchaser and may be asserted by Parent or Purchaser
regardless of the circumstances giving rise to any such condition
and may be waived by Parent or Purchaser, in whole or in part, at
any time and from time to time, in the sole discretion of Parent.
The failure by Parent or Purchaser at any time to exercise any of
the foregoing rights will not be deemed a waiver of any right,
the waiver of such right with respect to any particular facts or
circumstances shall not be deemed a waiver with respect to any
other facts or circumstances, and each right will be deemed an
ongoing right which may be asserted at any time and from time to
time.
Should the Offer be terminated pursuant to the
foregoing provisions, all tendered shares of Common Stock not
theretofore accepted for payment shall promptly be returned by
the depositary to the tendering stockholders.
EXHIBIT B
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
TRIGEN ENERGY CORPORATION
************
FIRST: The name of the Corporation is Trigen Energy
Corporation.
SECOND: The address of the Corporation's registered
office in the State of Delaware is Corporation Trust Center, ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ in the City of Wilmington, County of ▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇. The name of its registered agent at such address
is The Corporation Trust Company.
THIRD: The purpose of the Corporation is to engage in
any lawful act or activity for which corporations may be
organized under the General Corporation Law of Delaware.
FOURTH: The total number of shares which the
Corporation shall have authority to issue is 100 shares of Common
Stock, par value $.01 per share.
FIFTH: The Board of Directors is expressly authorized
to adopt, amend, or repeal the by-laws of the Corporation.
SIXTH: Elections of directors need not be by written
ballot unless the by-laws of the Corporation shall otherwise
provide.
SEVENTH: A director of the Corporation shall not be
personally liable to the Corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director;
provided, however, that the foregoing shall not eliminate or
limit the liability of a director (i) for any breach of the
director's duty of loyalty to the Corporation or its
stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of
law, (iii) under Section 174 of the General Corporation Law of
Delaware, or (iv) for any transaction from which the director
derived an improper personal benefit. If the General Corporation
Law of Delaware is hereafter amended to permit further
elimination or limitation of the personal liability of directors,
then the liability of a director of the Corporation shall be
eliminated or limited to the fullest extent permitted by the
General Corporation Law of Delaware as so amended. Any repeal or
modification of this Article SEVENTH by the stockholders of the
Corporation or otherwise shall not adversely affect any right or
protection of a director of the Corporation existing at the time
of such repeal or modification.
EIGHTH: The Corporation reserves the right to amend,
alter, change, or repeal any provision contained in this
Certificate of Incorporation, in the manner now or hereafter
prescribed by statute, and all rights conferred upon stockholders
herein are granted subject to this reservation.