EXECUTION COPY
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AGREEMENT AND PLAN OF MERGER
by and among
CSX CORPORATION
a Virginia corporation,
NORFOLK SOUTHERN CORPORATION,
a Virginia corporation,
▇▇▇▇▇▇ ▇. ▇▇▇▇
and
DELAWARE OTSEGO CORPORATION,
a New York corporation,
dated as of August 17, 1997.
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TABLE OF CONTENTS
Page
ARTICLE I
THE OFFER AND THE MERGER
Section 1.1. The Offer . . . . . . . . . . . . . . . . 1
Section 1.2. Company Action . . . . . . . . . . . . . . 3
Section 1.3. The Merger . . . . . . . . . . . . . . . . 3
Section 1.4. Action by Shareholders . . . . . . . . . . 4
Section 1.5. Proxy Statement . . . . . . . . . . . . . 4
Section 1.6. Closing . . . . . . . . . . . . . . . . . 5
Section 1.7. Effective Time . . . . . . . . . . . . . . 5
Section 1.8. Effects of the Merger . . . . . . . . . . 5
Section 1.9. Certificate of Incorporation . . . . . . . 5
Section 1.10. Bylaws . . . . . . . . . . . . . . . . . 5
Section 1.11. Directors and Officers . . . . . . . . . 5
ARTICLE II
CONVERSION OF SECURITIES; EXCHANGE OF CERTIFICATES
Section 2.1. Conversion of Securities . . . . . . . . . . 5
Section 2.2. Exchange of Certificates and Cash . . . . 6
Section 2.3. Stock Transfer Books . . . . . . . . . . . 8
Section 2.4. Stock Options; Payment Rights . . . . . . 8
Section 2.5. Dissenting Shares . . . . . . . . . . . . 8
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF DOCP
Section 3.1. Organization and Qualifications;
Subsidiaries . . . . . . . . . . . . . 9
Section 3.2. Certificate of Incorporation and Bylaws . 9
Section 3.3. Capitalization . . . . . . . . . . . . . . 9
Section 3.4. Authority Relative to This Agreement . . . 10
Section 3.5. No Conflict; Required Filings and Consents 11
Section 3.6. Compliance . . . . . . . . . . . . . . . . 11
Section 3.7. Litigation . . . . . . . . . . . . . . . . 12
Section 3.8. SEC Filings; Financial Statements . . . . 12
Section 3.9. Absence of Certain Changes and Events . . 13
Section 3.10. Employee Benefit Plans . . . . . . . . . 14
Section 3.11. Environmental Matters . . . . . . . . . . 14
Section 3.12. [Intentionally omitted.] . . . . . . . . 15
Section 3.13. Transactions with Affiliates . . . . . . 16
Section 3.14. Contracts . . . . . . . . . . . . . . . . 16
Section 3.15. Tax Matters . . . . . . . . . . . . . . . 16
Section 3.16. Opinion of Financial Advisor . . . . . . 17
Section 3.17. Brokers . . . . . . . . . . . . . . . . . 17
Section 3.18. Information Supplied . . . . . . . . . . 17
Section 3.19. State Takeover Statutes . . . . . . . . . 17
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF BUYER, CSX, NSC AND THE
MANAGEMENT INVESTOR
Section 4.1. Organization and Qualification . . . . . . 18
Section 4.2. Authority Relative to This Agreement . . . 18
Section 4.3. No Conflict; Required Filings and Consents 18
Section 4.4. Information Supplied . . . . . . . . . . . 19
Section 4.5. Brokers . . . . . . . . . . . . . . . . . 19
ARTICLE V
COVENANTS RELATING TO THE CONDUCT OF BUSINESS
Section 5.1. Conduct of Business by DOCP Pending
the Merger. . . . . . . . . . . . . . . . 20
Section 5.2. Other Actions . . . . . . . . . . . . . . 22
ARTICLE VI
ADDITIONAL COVENANTS
Section 6.1. Access to Information; Confidentiality . . 22
Section 6.2. No Solicitation . . . . . . . . . . . . . 23
Section 6.3. Indemnification, Exculpation and Insurance 24
Section 6.4. Notification of Certain Matters . . . . . 24
Section 6.5. Further Action; Best Efforts . . . . . . . 25
Section 6.6. Public Announcements . . . . . . . . . . . 25
Section 6.7. Conveyance Taxes . . . . . . . . . . . . . 25
ARTICLE VII
CLOSING CONDITIONS
Section 7.1. Conditions to Obligations of Each Party
to Effect the Merger . . . . . . . . . 26
Section 7.2. Conditions to Obligations of DOCP to
Effect the Merger . . . . . . . . . . . 26
Section 7.3. Conditions to Obligations of Buyer to
Effect the Merger . . . . . . . . . . . 27
Section 7.4. Frustration of Closing Conditions . . . . 27
ARTICLE VIII
TERMINATION, AMENDMENT AND WAIVER
Section 8.1. Termination . . . . . . . . . . . . . . . 27
Section 8.2. Effect of Termination . . . . . . . . . . 28
Section 8.3. Amendment . . . . . . . . . . . . . . . . 28
Section 8.4. Waiver . . . . . . . . . . . . . . . . . . 29
Section 8.5. Fees, Expenses and Other Payments . . . . 29
ARTICLE IX
GENERAL PROVISIONS
Section 9.1. Effectiveness of Representations,
Warranties and Agreements . . . . . . . 29
Section 9.2. Notices . . . . . . . . . . . . . . . . . 30
Section 9.3. Certain Definitions . . . . . . . . . . . 32
Section 9.4. Interpretation . . . . . . . . . . . . . . 32
Section 9.5. Severability . . . . . . . . . . . . . . . 33
Section 9.6. Entire Agreement . . . . . . . . . . . . . 33
Section 9.7. Assignment . . . . . . . . . . . . . . . . 33
Section 9.8. Parties in Interest . . . . . . . . . . . 33
Section 9.9. Governing Law . . . . . . . . . . . . . . 33
Section 9.10. Enforcement . . . . . . . . . . . . . . . 34
Section 9.11. Counterparts . . . . . . . . . . . . . . 34
Section 9.12. Guarantee . . . . . . . . . . . . . . . . 34
Annex I - Conditions of the Offer
INDEX OF DEFINED TERMS
Term Page Term Page
affiliate . . . . . . . . . . 32 Offer Price . . . . . . . . I
Agreement . . . . . . . . . . I Options . . . . . . . . . . 10
Alternative Transaction. . . . 33 Permits . . . . . . . . . . 12
business day . . . . . . . . . 32 person . . . . . . . . . . 32
Buyer . . . . . . . . . . . . 1 Property . . . . . . . . . 14
Buyer Material Adverse Effect. 18 Proxy Statement . . . . . . 4
Certificates . . . . . . . . . 6 Release . . . . . . . . . . 15
Cleanup . . . . . . . . . . . 15 Respective Representatives . 22
Code . . . . . . . . . . . . . 7 Schedule 13E-3 . . . . . . . 2
Confidential Information . . . 22 Schedule 14D-1 . . . . . . . 2
control, controlled, controlled Schedule 14D-9 . . . . . . 3
by, under common control with 32 SEC . . . . . . . . . . . . 2
Convertible Debt . . . . . . . 10 Securities Act . . . . . . . 12
CSX . . . . . . . . . . . . . I subsidiary, subsidiaries . . 32
Dissenting Shares . . . . . . 8 Superior Proposal . . . . . 24
DOCP . . . . . . . . . . . . . I Surviving Corporation . . . I
DOCP Board . . . . . . . . . . l taken as a whole . . . . . . 32
DOCP Disclosure Schedule . . . 9 Transmittal Documents . . . 7
DOCP Material Adverse Effect . 9 Warrants . . . . . . . . . . 10
DOCP Plans . . . . . . . . . . 14
DOCP SEC Reports . . . . . . . 12
DOCP Shares . . . . . . . . . I
DOCP Stock Options . . . . . . 9
DOCP Subsidiary . . . . . . . 9
Effective Time . . . . . . . . 5
Environmental Laws . . . . . . 15
ERISA . . . . . . . . . . . . 14
Exchange Act . . . . . . . . . ll
Exchange Agent . . . . . . . . 6
Exchange Fund . . . . . . . . 6
Expenses . . . . . . . . . . 29
Fair Market Value . . . . . . 24
Governmental Entity . . . . . ll
Hazardous Substances . . . . . 15
HSR Act . . . . . . . . . . . ll
Indemnified Parties . . . . . 24
IRS . . . . . . . . . . . . . 14
knowledge . . . . . . . . . . 32
LLC . . . . . . . . . . . . . 1
Management Investor . . . . . 1
material, materially . . . . 32
Merger . . . . . . . . . . . 1
Merger Meeting . . . . . . . 4
Minimum Condition . . . . . . A-1
New York Law . . . . . . . . 1
NSC . . . . . . . . . . . . . I
Offer . . . . . . . . . . . . 1
Offer Documents . . . . . . . 2
AGREEMENT AND PLAN OF MERGER, dated as of August 17,
1997 (this "Agreement"), by and among CSX CORPORATION, a Virginia
corporation ("CSX"), NORFOLK SOUTHERN CORPORATION, a Virginia
corporation ("NSC"), ▇▇▇▇▇▇ ▇. ▇▇▇▇ (the "Management Investor")
and DELAWARE OTSEGO CORPORATION, a New York corporation ("DOCP").
W I T N E S S E T H:
WHEREAS, the parties to this Agreement desire to effect
the acquisition of DOCP by a corporate subsidiary ("Buyer") of a
limited liability company ("LLC") to be formed by CSX, NSC and
the Management Investor;
WHEREAS, no later than the Effective Time, the
Management Investor, together with CSX and NSC, will collectively
own all of the outstanding membership interests of LLC;
WHEREAS, in furtherance of the foregoing, upon the
terms and subject to the conditions of this Agreement and in
accordance with the Business Corporation Law of the State of New
York (collectively, the "New York Law"), Buyer will make the cash
tender offer described in Section 1.1 hereof (the "Offer") and
thereafter will merge with and into DOCP (the "Merger"), with
DOCP as the surviving corporation (the "Surviving Corporation");
WHEREAS, the Board of Directors of DOCP (the "DOCP
Board") has determined that the Offer and the Merger are fair to,
and in the best interests of, DOCP and the holders of DOCP Shares
(other than CSX and the Management Investor) and has approved and
adopted this Agreement, including the Offer, the Merger and the
other transactions contemplated hereby; and
NOW, THEREFORE, in consideration of the foregoing and
the respective representations, warranties, covenants and
agreements set forth in this Agreement, the parties hereto,
intending to be legally bound, hereby agree as follows:
ARTICLE I
THE OFFER AND THE MERGER
Section 1.1. The Offer. (a) Provided that nothing
shall have occurred that would result in a failure to satisfy any
of the conditions set forth in paragraphs (i) through (iv) of
Annex I hereto, as promptly as practicable after the date hereof,
but in no event later than five business days following the
public announcement of the terms of this Agreement, Buyer (or its
subsidiary) shall commence an offer to purchase all of the
outstanding shares of common stock, par value $.125 per share, of
DOCP (the "DOCP Shares") at a price of $22 per DOCP Share, net to
the seller in cash (the "Offer Price").
(b) The Offer shall be subject to the conditions set
forth in Annex I hereto. Buyer shall not, without the prior
written consent of DOCP, make any change in the terms or
conditions of the Offer that is adverse to the holders of DOCP
Shares, decrease the Offer Price or the number of DOCP Shares
sought in the Offer or impose conditions to the Offer other than
those set forth in Annex I hereto (it being agreed that a waiver
by Buyer of any condition, in its discretion, shall not be deemed
to be adverse to the holders of DOCP Shares); provided that, if
on any scheduled expiration date of the Offer all conditions to
the Offer shall not have been satisfied or waived, the Offer may,
but need not, be extended from time to time without the consent
of DOCP for such period of time as is reasonably expected by
Buyer to be necessary to satisfy the unsatisfied conditions;
provided further that the Offer may be extended by Buyer without
the consent of DOCP for any period required by any rule,
regulation, interpretation or position of the United States
Securities and Exchange Commission (the "SEC") or the staff
thereof applicable to the Offer; and provided further that, if at
any scheduled expiration date of the Offer all conditions to the
Offer shall have been satisfied but less than a number of DOCP
Shares that, together with the number of DOCP shares to be
contributed by CSX and the Management Investor to Buyer,
represent less than 90% of the outstanding DOCP Shares, on a
fully-diluted basis, shall have been tendered into the Offer,
Buyer shall be entitled to extend the Offer from time to time
without the consent of DOCP (for not more than 10 business days)
in order to permit Buyer to solicit additional DOCP Shares to be
tendered into the Offer. It is agreed that the conditions to the
Offer are solely for the benefit of Buyer and may be asserted by
Buyer regardless of the circumstances giving rise to any such
condition (including any action or inaction by Buyer) or may, but
need not, be waived by Buyer, in whole or in part at any time and
from time to time, in its sole discretion.
(c) As soon as practicable on the date of commencement
of the Offer, Buyer (and, to the extent required by law, CSX, NSC
and the Management Investor, as co-bidders) shall file with the
SEC a Tender Offer Statement on Schedule 14D-1 (together with all
supplements and amendments thereto, the "Schedule 14D-1") and,
together with DOCP, a Rule 13E-3 Transaction Statement on
Schedule 13E-3 (together with all supplements and amendments
thereto, the "Schedule 13E-3") with respect to the Offer, which
shall contain the offer to purchase and form of the related
letter of transmittal (together with any supplements or
amendments thereto, collectively, the "Offer Documents"). DOCP
shall provide Buyer (and, if applicable, CSX, NSC and the
Management Investor) with such information concerning DOCP as may
reasonably be requested in connection with the preparation of the
Schedule 1 3E-3. Each party hereto shall promptly supplement,
update and correct any information provided by it for use in the
Offer Documents if and to the extent that it is or shall have
become incomplete, false or misleading. In any such event, Buyer
shall take all steps necessary to cause the Offer Documents as so
supplemented, updated or corrected to be filed with the SEC and
to be disseminated to the holders of DOCP Shares, in each case,
as and to the extent required by applicable federal securities
laws. DOCP and its counsel, with respect to the Schedule 14D-1,
and each party hereto and its respective counsel, with respect to
the Schedule 13E-3, shall be given an opportunity to review and
comment on such filing and each supplement, amendment or response
to comments with respect thereto prior to its being filed with or
delivered to the SEC.
Section 1.2. Company Action. (a) DOCP hereby consents
to the Offer and represents that the DOCP Board, at a meeting
duly called and held, has, by the vote of all directors present
with one abstention, (i) determined that this Agreement and the
transactions contemplated hereby, including the Offer and the
Merger, are fair to and in the best interest of DOCP and the
holders of DOCP Shares (other than CSX and the Management
Investor), (ii) approved and adopted this Agreement and the
transactions contemplated hereby, including the Offer and the
Merger, which approval satisfies in full the requirements of the
New York Law (including all approvals required under Section 912
of the New York Law in connection with the consummation of the
transactions contemplated hereby) and (iii) resolved to recommend
acceptance of the Offer, and, if applicable, approval and
adoption of this Agreement and the Merger, by the holders of DOCP
Shares. DOCP further represents that ▇▇▇▇▇ ▇▇▇▇▇▇, Inc. has
delivered to the DOCP Board its opinion, dated the date of this
Agreement (which will be confirmed in writing as promptly as
practicable after the date of this Agreement), that, as of such
date, the cash consideration to be received in the Offer and the
Merger by the holders of DOCP Shares (other than CSX, NSC and the
Management Investor and their respective affiliates) is fair to
such holders from a financial point of view. DOCP shall promptly
furnish Buyer with a list of its shareholders, mailing labels,
and any available listing or computer file containing the names
and addresses of all record holders of DOCP Shares and lists of
securities positions of DOCP Shares held in stock depositories,
in each case, true and correct as of the most recent practicable
date, and will provide to Buyer such additional information
(including updated lists of shareholders, mailing labels and
lists of securities positions) and such other assistance as Buyer
may reasonably request in connection with the Offer.
(b) As soon as practicable on the day that the Offer is
commenced, DOCP shall file with the SEC a Solicitation/Recommendation
Statement on Schedule 14D-9 (together with all supplements and
amendments thereto, the "Schedule 14D-9") which, unless otherwise
required due to the applicable fiduciary duties of the DOCP Board as
determined by the members thereof in good faith based on the advice of
outside counsel, shall reflect the recommendations of the DOCP Board
referred to above. Each party shall promptly supplement, update and
correct any information provided by it for use in the Schedule 14D-9
if and to the extent that it is or shall have become incomplete, false
or misleading. In any such event, DOCP shall take all steps necessary
to cause the Schedule 14D-9 as so supplemented, updated or corrected
to be filed with the SEC and to be disseminated to the holders of DOCP
Shares, in each case, as and to the extent required by applicable
United States federal securities laws. Each other party hereto and its
respective counsel shall be given an opportunity to review and comment
on the Schedule 14D-9 and each supplement, amendment or response to
comments with respect thereto prior to its being filed or delivered
with the SEC.
Section 1.3. The Merger. Upon the terms and subject to
the conditions set forth in this Agreement, and in accordance
with the New York Law, at the Effective Time Buyer shall be
merged with and into DOCP. As a result of the Merger, the
separate existence of Buyer shall cease and DOCP shall continue
as the Surviving Corporation. At the election of Buyer, any
direct or indirect wholly owned subsidiary of Buyer may be
substituted for Buyer as a constituent party of the Merger. In
such event, the parties hereto shall execute an appropriate
amendment to this agreement to reflect such substitution.
Section 1.4. Action by Shareholders. If required by
applicable law to consummate the Merger, DOCP, acting through the DOCP
Board, shall, in accordance with applicable law, its certificate of
incorporation and bylaws: (a) as soon as practicable after
consummation of the Offer, duly call, give notice of, convene and hold
a special meeting of shareholders (the "Merger Meeting") for the
purpose of adopting this Agreement and approving the Merger; (b)
include in the Proxy Statement (as defined below) the determination
and recommendation of the DOCP Board to the effect that the DOCP
Board, having determined that this Agreement and the transactions
contemplated hereby, including the Offer and the Merger, are fair to
and in the best interests of DOCP and the holders of DOCP Shares
(other than CSX and the Management Investor), has approved and adopted
this Agreement and the transactions contemplated hereby and, unless
otherwise required due to the applicable fiduciary duties of the DOCP
Board as determined by the members thereof in good faith based on the
advice of outside counsel, recommends that such holders vote in favor
of the approval and adoption of this Agreement and the Merger; and (c)
use its best efforts to obtain the necessary approval of this
Agreement and the Merger by such holders. In the event of the Merger
Meeting, each of CSX, NSC, Buyer and the Management Investor shall
vote all DOCP Shares owned by such person in favor of the adoption of
this Agreement and the transactions contemplated hereby.
Section 1.5. Proxy Statement. (a) If required by applicable
law in connection with the Merger, as promptly as practicable after
consummation of the Offer, DOCP shall prepare and file with the SEC a
proxy or information statement relating to the Merger Meeting
(together with any supplements or amendments thereto, the "Proxy
Statement"), and shall use its reasonable best efforts to have such
filing cleared by the SEC. CSX, NSC, Buyer and the Management Investor
shall furnish to DOCP all information concerning such party as DOCP
may reasonably request in connection with the preparation of the Proxy
Statement. As promptly as practicable after the Proxy Statement has
been cleared by the SEC, DOCP shall mail the Proxy Statement to the
holders of DOCP Shares. The Proxy Statement shall include the
recommendation of the DOCP Board in favor of the Merger as described
in Section 1.4.
(b) The information supplied by each of CSX, NSC, LLC, Buyer
and the Management Investor for inclusion in the Proxy Statement shall
not, at the time the Proxy Statement (or any supplement or amendment
thereto) is first mailed to the holders of DOCP Shares or, unless
promptly corrected, during the pendency of the Merger Meeting, 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 not misleading. If at any time prior to the
Effective Time any event or circumstance relating to any party hereto,
or their respective officers or directors, should be discovered by
such party which should be set forth in a supplement or an amendment
to the Proxy Statement, such party shall promptly inform the other
parties hereto thereof and shall take appropriate action in respect
thereof.
(c) Notwithstanding anything in the foregoing to the
contrary, in the event that at any time Buyer and/or any other direct
or indirect subsidiary of Buyer shall acquire at least 90% of the
outstanding DOCP Shares, Buyer and DOCP shall take all necessary and
appropriate action to cause the Merger to become effective as promptly
as practicable after the expiration of the Offer and the satisfaction
or waiver of the conditions set forth in Article VII without the
Merger Meeting in accordance with Section 905 of the New York Law.
Section 1.6. Closing. Unless this Agreement shall have been
terminated and the transactions contemplated hereby shall have been
abandoned pursuant to Section 8.1, and subject to the satisfaction or
waiver of the conditions set forth in Article VII, the closing of the
Merger shall take place as promptly as practicable (and, in any event,
within 10 business days) after the satisfaction or waiver of the
conditions set forth in Article VII at the offices of ▇▇▇▇▇▇, ▇▇▇▇ &
▇▇▇▇▇▇ LLP, New York, New York, unless another date, time or place is
agreed to in writing by the parties hereto.
Section 1.7. Effective Time. As promptly as practicable
after the satisfaction or waiver of the conditions set forth in
Article VII, the parties hereto shall cause the Merger to be
consummated by filing a certificate of merger with the Secretary of
State of the State of New York and by making any related filings
required under the New York Law in connection with the Merger. The
Merger shall become effective at such time as the certificate of
merger is duly filed with the Secretary of State of the State of New
York or at such later time, not to exceed 30 days from the date of
such filing, as is specified in the certificate of merger (the
"Effective Time").
Section 1.8. Effects of the Merger. From and after the
Effective Time, the Surviving Corporation shall possess all the
rights, privileges, powers and franchises and be subject to all of the
restrictions, disabilities and duties of DOCP and Buyer, and the
Merger shall otherwise have the effects as provided by New York law.
Section 1.9. Certificate of Incorporation. The certificate
of incorporation of Buyer in effect at the Effective Time shall be the
certificate of incorporation of the Surviving Corporation until
amended in accordance with applicable law.
Section 1.10. Bylaws. The bylaws of Buyer in effect at the
Effective Time shall be the bylaws of the Surviving Corporation until
amended in accordance with applicable law.
Section 1.11. Directors and Officers. From and after the
Effective Time, until successors are duly elected or appointed and
qualified (or earlier resignation or removal) in accordance with
applicable law, (a) the directors of Buyer at the Effective Time shall
be the directors of the Surviving Corporation and (b) the officers of
DOCP at the Effective Time shall be the officers of the Surviving
Corporation.
ARTICLE II
CONVERSION OF SECURITIES; EXCHANGE OF CERTIFICATES
Section 2.1. Conversion of Securities. At the
Effective Time, by virtue of the Merger and without any action on
the part of Buyer, DOCP or the holders of any of DOCP securities:
(a) Each DOCP Share issued and outstanding immediately
prior to the Effective Time (other than any DOCP Shares to
be canceled pursuant to Section 2.1(b) and any Dissenting
Shares) shall be converted into the right to receive an
amount in cash equal to the Offer Price, without interest.
(b) Each DOCP Share or DOCP Stock Option held in the
treasury of DOCP (or any DOCP Subsidiary) and each DOCP
Share or DOCP Stock Option owned by Buyer (or its
subsidiary) immediately prior to the Effective Time shall
automatically be canceled and extinguished without any
conversion thereof, and no payment shall be made with
respect thereto.
(c) Each share of capital stock (and any option to
purchase any share of capital stock) of Buyer outstanding
immediately prior to the Effective Time shall be converted
into and become one share of a class of capital stock (or an
option to purchase one share of a class of capital stock) of
the Surviving Corporation with the same rights, powers and
privileges as the share of capital stock (or option to
purchase a share of capital stock) so converted and shall
constitute the only outstanding shares (or options to
purchase shares) of capital stock of the Surviving
Corporation.
(d) On and after the Effective Time, holders of
certificates which immediately prior to the Effective Time
represented issued and outstanding DOCP Shares
("Certificates") shall cease to have any rights as
shareholders of DOCP, except the right to receive the
consideration set forth in this Article II with respect to
each DOCP Share held by them.
Section 2.2. Exchange of Certificates and Cash. (a) Exchange
Agent. From time to time as may be necessary to make payments of cash
pursuant to Section 2.1 (a), Buyer shall deposit, or shall cause to be
deposited, with or for the account of a bank or trust company
designated by Buyer, which shall be reasonably satisfactory to DOCP
(the "Exchange Agent"), for exchange in accordance with this Article
II through the Exchange Agent, amounts in cash to be paid in respect
of outstanding DOCP Shares (all such cash funds, the "Exchange Fund").
The Exchange Agent shall, pursuant to Buyer's instructions, deliver
such cash from the Exchange Fund to holders of DOCP Shares pursuant to
the exchange procedures set forth below. Any interest, dividends or
other income earned on the investment of the Exchange Fund shall be
for the account of Buyer.
(b) Exchange Procedures. As soon as reasonably practicable
after the Effective Time, Buyer shall instruct the Exchange Agent to
mail to each holder of record of a Certificate or Certificates, (i) a
letter of transmittal (which shall specify that delivery shall be
effected, and risk of loss and title to a Certificate shall pass, only
upon proper delivery of such Certificate to the Exchange Agent and
shall be in such form and have such other provisions as Buyer may
reasonably specify) and (ii) instructions to effect the surrender of
Certificates in exchange for cash. Upon surrender of a Certificate for
cancellation to the Exchange Agent or to such other agent or agents as
may be appointed by Buyer together with such letter of transmittal,
duly executed, and such other customary documents as may be required
pursuant to such instructions (collectively, the "Transmittal
Documents"), the holder of such Certificate shall be entitled to
receive in exchange therefor the amount in cash which such holder has
the right to receive pursuant to Section 2.1(a) and the Certificate so
surrendered shall forthwith be canceled. In the event of a transfer of
ownership of DOCP Shares which is not registered in the transfer
records of DOCP, the applicable Exchange Fund cash may be paid in
accordance with this Article II to a transferee only if the
Certificate evidencing such transferred DOCP Shares is presented to
the Exchange Agent, accompanied by all documents required to evidence
and effect such transfer and by evidence that any applicable stock
transfer taxes have been paid. Exchange Fund cash shall be delivered
by the Exchange Agent as promptly as practicable following surrender
of a Certificate and the related Transmittal Documents, and Exchange
Fund cash payments may be made by check (unless otherwise required by
a depositary institution in connection with the book-entry delivery of
securities). No interest shall be payable on any Exchange Fund cash to
be delivered in respect of DOCP Shares regardless of any delay in
making payments. Until surrendered as contemplated by this Section
2.2(b), each Certificate shall be deemed, at any time after the
Effective Time, to evidence only the right to receive, upon such
surrender, the applicable Exchange Fund cash.
(c) Termination of Exchange Fund. Any portion of the
Exchange Fund which is not distributed to the holders of DOCP Shares
by the six-month anniversary of the Effective Time shall be delivered
to Buyer, upon demand, and any holders of DOCP Shares who have not
theretofore complied with this Article II and received Exchange Fund
cash may thereafter look only to Buyer for the applicable cash to
which they are entitled pursuant to this Article II.
(d) No Liability. Neither Buyer, CSX, NSC, the Management
Investor, the Surviving Corporation nor DOCP shall be liable to any
holder of DOCP Shares for any Exchange Fund cash delivered to a public
official pursuant to any applicable abandoned property, escheat or
similar law. (e) Withholding Rights. Buyer or the Exchange Agent shall
be entitled to deduct and withhold from the consideration otherwise
payable pursuant to this Agreement to any holder of DOCP Shares such
amounts as Buyer or the Exchange Agent is required to deduct and
withhold with respect to the making of such payment under the United
States Internal Revenue Code of 1986, as amended, and the rules and
regulations thereunder (the "Code"), or any provision of United States
state or local or foreign tax law. To the extent that amounts are so
deducted or withheld, such withheld amounts shall be treated for all
purposes of this Agreement as having been paid to the holder of the
DOCP Shares in respect of which such deduction and withholding was
made.
(f) Lost Certificates. If 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 Buyer or the Surviving Corporation, the
posting by such person of a bond in such reasonable amount as Buyer or
the Surviving Corporation may direct as indemnity against any claim
that may be made against it with respect to such Certificate, the
Exchange Agent shall issue in exchange for such lost, stolen or
destroyed Certificate the cash deliverable in respect thereof pursuant
to this Article.
(g) No Further Ownership Rights. All cash paid pursuant to
this Article upon the surrender or exchange of Certificates shall be
deemed to have been paid in full satisfaction of all rights pertaining
to the DOCP Shares theretofore represented by such Certificates.
Section 2.3. Stock Transfer Books. At the Effective Time,
the stock transfer books of DOCP shall be closed and there shall be no
further registration of transfers of DOCP Shares on the records of
DOCP. On or after the Effective Time, any Certificate presented to the
Exchange Agent or the Surviving Corporation for any reason shall be
exchanged for the consideration into which the DOCP Shares represented
by such Certificate have been converted pursuant to this Article.
Section 2.4. Stock Options; Payment Rights. At the Effective
Time, each outstanding DOCP Stock Option to purchase DOCP Shares,
whether or not then exercisable, other than any DOCP Stock Option held
in the treasury of DOCP (or any DOCP Subsidiary) or owned by Buyer (or
its subsidiary) which shall be treated as provided in Section 2.1(b),
shall be canceled, and the holder thereof shall be entitled to receive
in full consideration therefor cash in an amount equal to the
difference between the Offer Price and the per share exercise price
thereof, multiplied by the number of DOCP Shares subject to such DOCP
Stock Option; and DOCP shall obtain consents from the holders of any
DOCP Stock Options to the extent necessary or appropriate to effect
the foregoing.
Section 2.5. Dissenting Shares. (a) Notwithstanding any
other provision of this Agreement to the contrary, DOCP Shares
outstanding immediately prior to the Effective Time and held by
shareholders who shall have not voted in favor of the Merger or
consented thereto in writing and who shall be entitled to and shall
have demanded properly in writing payment for such DOCP Shares in
accordance with Sections 910 and 623 of the New York Law and who shall
not have withdrawn such demand or otherwise have forfeited appraisal
rights (collectively, "Dissenting Shares") shall not be converted into
or represent the right to receive cash pursuant to Section 2.1. Such
shareholders shall be entitled to receive payment of the appraised
value of such DOCP Shares held by them in accordance with the
provisions of the New York Law, except that all Dissenting Shares held
by shareholders who shall have failed to perfect or who effectively
shall have withdrawn, forfeited or lost their rights to appraisal of
such DOCP Shares under the New York Law shall thereupon be deemed to
have been converted into and to have become exchangeable, as of the
Effective Time, for the right to receive, without any interest
thereon, the applicable consideration provided in Section 2.1, upon
surrender, in the manner provided in Section 2.2, of the Certificate
or Certificates that formerly evidenced such DOCP Shares.
(b) DOCP shall give Buyer prompt notice of any demands for
appraisal received by it, withdrawals of such demands, and any other
instruments served pursuant to the New York Law received by DOCP and
relating thereto. DOCP and Buyer shall jointly direct all negotiations
and proceedings with respect to demands for appraisal under the New
York Law. Neither DOCP nor Buyer shall, except with the prior written
consent of the other, make any payment with respect to any demands for
appraisal, or offer to settle, or settle, any such demands.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF DOCP
DOCP hereby represents and warrants to each of the
other parties hereto that:
Section 3.1. Organization and Qualifications; Subsidiaries.
Each of DOCP, each DOCP subsidiary and each other person in which DOCP
has an investment of greater than $1,000,000 (each, a "DOCP
Subsidiary") is a corporation, partnership or other legal entity duly
incorporated or organized, validly existing and in good standing under
the laws of the jurisdiction of its incorporation or organization and
has the requisite power and authority and all necessary governmental
approvals to own, lease and operate its properties and to carry on its
business as it is now being conducted, except where the failure to be
so organized, existing or in good standing or to have such power,
authority and governmental approvals would not, individually or in the
aggregate, have a material adverse effect on the business, results of
operations, financial condition, assets, properties or prospects of
DOCP and the DOCP Subsidiaries, taken as a whole, or otherwise delay
in any material respect or prevent consummation of the Offer or the
Merger or otherwise prevent DOCP from performing its obligations under
this Agreement in any material respect (any such event, a "DOCP
Material Adverse Effect"). DOCP and each DOCP Subsidiary is duly
qualified or licensed as a foreign corporation to transact business,
and is in good standing, in each jurisdiction where the character of
the properties owned, leased or operated by it or the nature of its
business makes such qualification or licensing necessary, except for
such failures to be so qualified or licensed and in good standing that
could not reasonably be expected to, individually or in the aggregate,
have a DOCP Material Adverse Effect. Section 3.1 of the written
disclosure schedule previously delivered by DOCP to Buyer (the "DOCP
Disclosure Schedule") sets forth a complete and correct list of all
DOCP Subsidiaries. Except for the capital stock of the DOCP
Subsidiaries, DOCP does not beneficially or of record own, directly or
indirectly, any capital stock or other ownership interest in any
corporation, partnership, joint venture or other entity.
Section 3.2. Certificate of Incorporation and Bylaws. DOCP
has heretofore made available to Buyer a complete and correct copy of
the certificate of incorporation and bylaws or equivalent
organizational documents, each as amended to the date hereof, of DOCP
and each DOCP Subsidiary. Such certificates of incorporation, bylaws
and equivalent organizational documents are in full force and effect.
Neither DOCP nor any DOCP Subsidiary is in violation of any provision
of its certificate of incorporation, bylaws or equivalent
organizational documents.
Section 3.3. Capitalization. The authorized capital stock of
DOCP consists of 10,000,000 DOCP Shares and 1,000,000 shares of
preferred stock of DOCP, par value $1.25 per share. As of August 7,
1997, (a) 1,893,219 DOCP Shares were issued and outstanding, all of
which were validly issued, fully paid and nonassessable, (b) 168,251
DOCP Shares were reserved for issuance upon the exercise of
outstanding stock options granted pursuant to DOCP employee stock
plans ("DOCP Stock Options"), (c) 421,309 DOCP Shares were reserved
for issuance upon conversion of all outstanding Convertible Debt and
Warrants of DOCP, (d) 110 DOCP Shares were held in the treasury of
DOCP, (e) no DOCP Shares were held by DOCP Subsidiaries and (f) no
shares of preferred stock of DOCP were issued and outstanding. Except
as set forth in this Section 3.3, as of August 7, 1997, no shares of
capital stock or other voting securities of DOCP were issued, reserved
for issuance or outstanding. Except as set forth in this Section 3.3,
other than warrants to purchase 66,150 DOCP Shares, pursuant to the
Warrant Agreement, dated as of January 31, 1996, by and between DOCP
and Creditanstalt Corporate Finance, Inc. (the "Warrants") and other
than DOCP's 6.5% Convertible Subordinated Notes due September 1, 2003
(the "Convertible Debt"), there are no options, stock appreciation
rights, warrants or other rights, agreements, arrangements or
commitments of any character (collectively, "Options") relating to the
issued or unissued capital stock of DOCP or any DOCP Subsidiary or
obligating DOCP or any DOCP Subsidiary to issue, grant or sell any
shares of capital stock of, or other equity interests in, or
convertible into equity interests in, DOCP or any DOCP Subsidiary.
Upon consummation of the Merger, the Warrants and the Convertible Debt
shall cease to represent any right to purchase or otherwise obtain any
capital stock of DOCP or the Surviving Corporation, and all rights of
the holders of such Warrants and Convertible Debt to purchase or
otherwise obtain any capital stock of DOCP shall, pursuant to the
terms of such instruments, solely represent the right, upon proper
exercise or conversion of such instruments, to obtain an amount in
cash equal to the product of the Offer Price and the number of DOCP
Shares for or into which such Warrants or Convertible Debt were
exercisable or convertible immediately prior to the Effective Time.
Section 3.3 of the DOCP Disclosure Schedule sets forth a complete and
correct list as of August 16, 1997 of the number of DOCP Shares
subject to DOCP Stock Options, the exercise prices and holders thereof
and the terms of all stock option plans and agreements relating
thereto. Since August 7, 1997, DOCP has not issued any shares of its
capital stock or Options in respect thereof, except upon the
conversion of the Convertible Debt or the exercise of the Warrants or
DOCP Stock Options referred to above. All outstanding DOCP Shares have
been, and all DOCP Shares subject to issuance as aforesaid, upon
issuance on the terms and conditions specified in the instruments
pursuant to which they are issuable, will be, duly authorized, validly
issued, fully paid and nonassessable. Except as set forth in Section
3.3 of the DOCP Disclosure Schedule, there are no outstanding
contractual obligations of DOCP or any DOCP Subsidiary to repurchase,
redeem or otherwise acquire any shares of DOCP Shares or any capital
stock of any DOCP Subsidiary, or make any investment (in the form of a
loan, capital contribution or otherwise) in, any DOCP Subsidiary or
any other person. Except as set forth in Section 3.3 of the DOCP
Disclosure Schedule, each outstanding share of capital stock of each
DOCP Subsidiary is duly authorized, validly issued, fully paid and
nonassessable and is owned by DOCP or wholly owned another DOCP
Subsidiary free and clear of all security interests, liens, claims,
pledges, options, rights of first refusal, agreements, limitations on
DOCP's or such other DOCP Subsidiary's voting rights, charges and
other encumbrances of any nature whatsoever. Except as set forth in
this Section 3.3, there are no outstanding bonds, debentures, notes or
other indebtedness having the right to vote or convertible into or
exchangeable for securities having the right to vote on any matters
upon which holders of DOCP Shares may vote.
Section 3.4. Authority Relative to This Agreement. DOCP has
all necessary corporate power and authority to execute and deliver
this Agreement, to perform its obligations hereunder and to consummate
the transactions contemplated hereby. The execution and delivery of
this Agreement by DOCP and the consummation by DOCP of the
transactions contemplated hereby have been duly and validly authorized
by all necessary corporate action, and no other corporate proceedings
on the part of DOCP or holders of its securities or indebtedness are
necessary to authorize this Agreement or to consummate the
transactions contemplated hereby (other than, with respect to
consummation of the Merger, except as contemplated by Section l.5(c)
hereof, the approval and adoption of this Agreement by the holders of
two-thirds of the then-outstanding DOCP Shares and the filing and
recordation of appropriate merger and similar documents as required by
the New York Law). This Agreement has been duly and validly executed
and delivered by DOCP, and, assuming the due authorization, execution
and delivery by the other parties hereto, constitutes the legal, valid
and binding obligation of DOCP, enforceable against DOCP in accordance
with its terms.
Section 3.5. No Conflict; Required Filings and Consents. (a)
Except as set forth in Section 3.5 of the DOCP Disclosure Schedule,
the execution and delivery of this Agreement by DOCP do not, and the
performance of this Agreement and the consummation of the transactions
contemplated hereby by DOCP will not, (i) conflict with or violate the
certificate of incorporation or bylaws or equivalent organizational
documents of DOCP or any DOCP Subsidiary, (ii) conflict with or
violate any law, rule, regulation, order, judgment or decree
applicable to DOCP or any DOCP Subsidiary or by which any property or
asset of DOCP or any DOCP Subsidiary is bound or affected or (iii)
result in any breach of or constitute a default (or an event which,
with notice or lapse of time or both, would become a default) under,
result in the loss of a material benefit under, or give to others any
right of termination, amendment, acceleration, increased payments or
cancellation of, or result in the creation of a lien or other
encumbrance on any property or asset of DOCP or any DOCP Subsidiary
pursuant to, any note, bond, mortgage, indenture, contract, agreement,
lease, license, permit, franchise or other instrument or obligation to
which DOCP or any DOCP Subsidiary is a party or by which DOCP or any
DOCP Subsidiary or any property or asset of DOCP or any DOCP
Subsidiary is bound or affected, except, in the case of clauses (ii)
and (iii), for any such conflicts, violations, breaches, defaults or
other occurrences as could not reasonably be expected to, individually
or in the aggregate, have a DOCP Material Adverse Effect.
(b) The execution and delivery of this Agreement by DOCP do
not, and the performance of this Agreement and the consummation of the
transactions contemplated hereby by DOCP will not, require any
consent, approval, authorization or permit of, or filing with or
notification to, any governmental or regulatory authority, domestic or
foreign (each a "Governmental Entity"), except (i) for (A) applicable
filings under the Securities Exchange Act of 1934, as amended, and the
rules and regulations promulgated thereunder (the "Exchange Act"), (B)
the requirements of the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act
of 1976, as amended, and the rules and regulations thereunder (the
"HSR Act"), if applicable, and (C) the filing and recordation of
appropriate merger and similar documents as required by the New York
Law and (ii) where failure to obtain such consents, approvals,
authorizations or permits, or to make such filings or notifications,
could not reasonably be expected to, individually or in the aggregate,
have a DOCP Material Adverse Effect.
Section 3.6. Compliance. Except as set forth in Section 3.6
of the DOCP Disclosure Schedule, neither DOCP nor any DOCP Subsidiary
is in conflict with, or in default or violation of, (a) any law, rule,
regulation, order, judgment or decree applicable to DOCP or any DOCP
Subsidiary or by which any property or asset of DOCP or any DOCP
Subsidiary is bound or affected, or (b) any note, bond, mortgage,
indenture, contract, agreement, lease, license, permit, franchise or
other instrument or obligation to which DOCP or any DOCP Subsidiary is
a party or by which DOCP or any DOCP Subsidiary or any property or
asset of DOCP or any DOCP Subsidiary is bound or affected, except for
such conflicts, defaults or violations as could not reasonably be
expected to, individually or in the aggregate, have a DOCP Material
Adverse Effect. The business of DOCP is not being conducted in
violation of any law, ordinance or regulation of any Governmental
Entity, including environmental laws, and DOCP and each DOCP
Subsidiary possess all permits, licenses, variances, exemptions,
orders and approvals of all Governmental Entities required therefor
("Permits"), including as required under Environmental Laws, and there
has occurred no default under any such Permits, except for the lack of
Permits and for defaults under Permits as could not reasonably be
expected to, individually or in the aggregate, have a DOCP Material
Adverse Effect.
Section 3.7. Litigation. Except as set forth in Section 3.7
of the DOCP Disclosure Schedule, (a) there is no single or series of
related suits, actions, notices, demands, claims, investigations or
proceedings pending or, to the knowledge of DOCP, threatened against
DOCP or any DOCP Subsidiary, or any unsatisfied judgment against DOCP
or any DOCP Subsidiary, relating to or involving an amount greater
than $100,000 and (b) there is no judgment, decree, injunction or
similar order of any Governmental Entity or arbitrator outstanding
against DOCP or any DOCP Subsidiary or other single or series of
related suits, actions or proceedings pending or, to the knowledge of
DOCP, threatened that, individually or in the aggregate, could
reasonably be expected to have a DOCP Material Adverse Effect.
Section 3.8. SEC Filings; Financial Statements. (a) DOCP has
filed all forms, reports and documents required to be filed by it with
the SEC since January 1, 1995 and has heretofore made available to
Buyer, in the form filed with the SEC all such forms, reports and
documents (all such forms, reports and documents, collectively, with
exhibits, schedules or information incorporated therein by reference,
the "DOCP SEC Reports"). The DOCP SEC Reports and any forms, reports
and other documents filed by DOCP with the SEC after the date of this
Agreement (i) were or will be prepared in accordance with the
requirements of the Securities Act of 1933, as amended, and the rules
and regulations thereunder (the "Securities Act"), and the Exchange
Act, as the case may be, and (ii) did not at the time they were filed
and, except as amended prior the date hereof, at any time since filing
or will not at the time they are filed contain any untrue statement of
a material fact or omit to state a material fact required to be stated
therein or necessary in order to make the statements made therein, in
the light of the circumstances under which they were made, not
misleading. No DOCP Subsidiary is required to file any form, report or
other document with the SEC.
(b) Each of the consolidated financial statements
(including, in each case, any notes thereto) contained in the DOCP SEC
Reports (i) was prepared in accordance with generally accepted
accounting principles applied on a consistent basis throughout the
periods indicated (except as may be indicated in the notes thereto),
(ii) fairly presents the consolidated financial position, results of
operations and cash flows of DOCP and the consolidated DOCP
Subsidiaries as at the respective dates thereof and for the respective
periods indicated therein (subject, in the case of unaudited
statements, to normal and recurring year-end adjustments which were
not and are not expected, individually or in the aggregate, to be
material in amount) and (iii) complies as to form, as of its
respective date of filing with the SEC, with all applicable accounting
requirements and SEC rules and regulations. Since December 31, 1994,
there has been no change in any of the significant accounting
(including tax accounting) policies, practices or procedures of DOCP
or any DOCP Subsidiary except insofar as required by a change in
generally accepted accounting principles.
(c) Except as set forth in Section 3.8 of the DOCP
Disclosure Schedule or as and to the extent set forth on the audited
DOCP balance sheets contained in DOCP SEC Reports filed with the SEC
prior to the date of this Agreement, DOCP and the DOCP Subsidiaries do
not have any liability or obligation of any nature (whether accrued,
absolute, contingent or otherwise) other than liabilities and
obligations incurred in the ordinary course of business and which
could not reasonably be expected to, individually or in the aggregate,
have a DOCP Material Adverse Effect.
Section 3.9. Absence of Certain Changes and Events. Except
as set forth in Section 3.9 of the DOCP Disclosure Schedule, since
December 31, 1996: (a) DOCP and the DOCP Subsidiaries have conducted
their businesses only in the ordinary course consistent with past
practice, (b) there have not been any events or changes in
circumstances which has resulted in or could, individually or in the
aggregate, reasonably be expected to result in, a DOCP Material
Adverse Effect, (c) there has not been (i) except as disclosed in DOCP
SEC Reports filed prior to the date hereof, any declaration, setting
aside or payment of any dividend or other distribution (whether in
cash, stock or property) with respect to any DOCP capital stock, (ii)
except as disclosed in DOCP SEC Reports filed prior to the date
hereof, any split, combination or reclassification of any DOCP capital
stock or any issuance or the authorization of any issuance of any
other securities in respect of, in lieu of or in substitution for DOCP
capital stock, except for issuances of DOCP Shares upon the exercise
of DOCP Stock Options or the Warrants or the conversion of the
Convertible Debt, in each case in accordance with the terms thereof,
(iii) (A) any granting by DOCP or any DOCP Subsidiary to any current
or former employee, officer, director or consultant of DOCP of any
options to purchase DOCP Shares or any increase in compensation
(including bonuses or commissions), except for normal increases in the
ordinary course of business consistent with past practice or as
required under employment or consulting agreements in effect as of the
date of the most recent audited financial statements included in the
DOCP SEC Reports filed prior to the date hereof, (B) any granting by
DOCP or any DOCP Subsidiary to any current or former employee,
officer, director or consultant of any increase in severance or
termination pay, except as required under any employment, consulting,
severance or termination agreements in effect as of the date of the
most recent audited financial statements included in the DOCP SEC
Reports filed prior to the date hereof or (C) any entry by DOCP or any
DOCP Subsidiary into any employment, consulting, severance,
termination or indemnification agreements, arrangements, or
understandings with any such current or former employee, officer,
director or consultant, (iv) except as disclosed in DOCP SEC Reports
filed prior to the date hereof, any change in accounting methods,
principles or practices by DOCP materially affecting its assets,
liabilities or business, except insofar as may have been required by a
change in generally accepted accounting principles, or (v) any action
which would have been prohibited without Buyer's approval under
Section 5.1 if taken between the date of this Agreement and the
Effective Time.
Section 3.10. Employee Benefit Plans. With respect to all
the employee benefit plans, programs and arrangements maintained for
the benefit of any current or former employee, officer or director of
DOCP or any DOCP Subsidiary (the "DOCP Plans"), except as set forth in
Section 3.10 of the DOCP Disclosure Schedule: (a) none of the DOCP
Plans is a multi-employer plan within the meaning of the Employee
Retirement Income Security Act of 1974, as amended, and the rules and
regulations thereunder ("ERISA"); (b) none of the DOCP Plans promises
or provides retiree medical or life insurance benefits to any person;
(c) each DOCP Plan intended to be qualified under Section 401(a) of
the Code has received a favorable determination letter from the United
States Internal Revenue Service (the "IRS") that it is so qualified
and nothing has occurred since the date of such letter that could
reasonably be expected to affect the qualified status of such DOCP
Plan other than occurrences that could not reasonably be expected to,
individually or in the aggregate, have a DOCP Material Adverse Effect;
(d) each DOCP Plan has been operated in all material respects in
accordance with its terms and the requirements of applicable law; (e)
neither DOCP nor any DOCP Subsidiary has incurred any direct or
indirect liability under, arising out of or by operation of Title IV
of ERISA in connection with the termination of, or withdrawal from,
any DOCP Plan or other retirement plan or arrangement, and no fact or
event exists that could reasonably be expected to give rise to any
such liability, other than any liability that could not reasonably be
expected to, individually or in the aggregate, have a DOCP Material
Adverse Effect; and (f) DOCP and the DOCP Subsidiaries have not
incurred any liability under, and have complied in all material
respects with, the federal Worker Adjustment Retraining Notification
Act, and no fact or event exists that could give rise to liability
under such act, other than any liability that could not reasonably be
expected to, individually or in the aggregate, have a DOCP Material
Adverse Effect. Except as set forth in Section 3.9 of the DOCP
Disclosure Schedule, the aggregate accumulated benefit obligations of
each DOCP Plan subject to Title IV of ERISA (as of the date of the
most recent actuarial valuation prepared for such DOCP Plan) do not
exceed the fair market value of the assets of such DOCP Plan (as of
the date of such valuation).
Section 3.11. Environmental Matters. Except as set
forth in Section 3.11 of the DOCP Disclosure Schedule:
(a) DOCP and the DOCP Subsidiaries have not, and, to
DOCP's knowledge, no other person has, Released, placed, stored,
buried or dumped any material quantities of Hazardous Substances
on, beneath or adjacent to each property owned, operated or
leased by DOCP and the DOCP Subsidiaries (the "Property"), or, to
the knowledge of DOCP, any property formerly owned, operated or
leased by DOCP or the DOCP Subsidiaries, except for the presence
of such Hazardous Substances as would not have a DOCP Material
Adverse Effect.
(b) Neither DOCP nor any DOCP Subsidiary has entered
into any agreement that requires them to pay to, reimburse,
guarantee, pledge, defend, indemnify or hold harmless any person
for or against any liabilities or costs in connection with any
pending or threatened suit, action, notice, proceeding or
investigation relating to alleged noncompliance with, or
liability under, Environmental Laws.
(c) Neither DOCP nor any DOCP Subsidiary has received
any written notice or written order from any Governmental Entity
or private entity advising them that they are responsible for or
potentially responsible for Cleanup, or paying for the cost of
Cleanup, of any Hazardous Substances on or adjacent to the
Property or at any location containing Hazardous Substances
generated, treated, transported or stored by DOCP or the DOCP
Subsidiaries or on behalf of DOCP or the DOCP Subsidiaries, and
neither DOCP nor any DOCP Subsidiary has entered into any
agreements concerning such Cleanup, nor is DOCP aware of any
material facts which DOCP has reasonable grounds to believe will
give rise to such notice, order or agreement.
(d) As used in this Agreement: "Cleanup" shall mean all
actions required to (i) cleanup, remove, treat or remediate
Hazardous Substances in the indoor or outdoor environment, (ii)
prevent the Release of Hazardous Substances so that they do not
migrate, endanger or threaten to endanger public health or
welfare or the indoor or outdoor environment, (iii) perform
pre-remedial studies and investigations and post-remedial
monitoring and care, (iv) respond to any government requests for
information or documents in any way relating to cleanup, removal,
treatment or remediation or potential cleanup, removal, treatment
or remediation of Hazardous Substances in the indoor or outdoor
environment or (v) any administrative, judicial, or other
proceedings related to the above; "Environmental Laws" shall mean
all applicable United States federal, state and local, and
foreign laws, regulations, rules and ordinances relating to
pollution or protection of the environment or human health and
safety, including laws relating to Releases or threatened
Releases of Hazardous Substances into the indoor or outdoor
environment (including ambient air, surface water, groundwater,
land, surface and subsurface strata) or otherwise relating to the
manufacture, processing, distribution, use, treatment, storage,
Release, transport or handling of Hazardous Substances, and all
laws and regulations with regard to recordkeeping, notification,
disclosure and reporting requirements respecting Hazardous
Substances, and all laws relating to endangered or threatened
species of fish, wildlife and plants and the management or use of
natural resources; "Hazardous Substance" shall mean: (i) any
petrochemical or petroleum products, radioactive materials,
asbestos in any form that is or could become friable, urea
formaldehyde foam insulation, transformers or other equipment
that contain dielectric fluid containing levels of
polychlorinated biphenyls and radon gas, (ii) any chemicals,
materials or substances defined as or included in the definition
of: "hazardous substances," "hazardous wastes," "hazardous
materials," "restricted hazardous materials," "extremely
hazardous substances," "toxic substances," "contaminants" or
"pollutants" or words of similar meaning and regulatory effect or
(iii) any other chemical, material or substance exposure to which
is prohibited, limited or regulated by any Environmental Law; and
"Release" shall mean any release, spill, emission, discharge,
leaking, pumping, injection, deposit, disposal, discharge,
dispersal, leaching or migration into the indoor or outdoor
environment (including ambient air, surface water, groundwater
and surface or subsurface strata) or into or out of any property,
including the movement of Hazardous Substances through or in the
air, soil, surface water, groundwater or property.
Section 3.12. [Intentionally omitted.]
Section 3.13. Transactions with Affiliates. As of the
date hereof, except as set forth in Section 3.13 of the DOCP
Disclosure Schedule, (a) there are no outstanding amounts payable
to or receivable from, or advances by DOCP or any DOCP Subsidiary
to, and neither DOCP nor any DOCP Subsidiary is otherwise a
creditor of or debtor to, any officer, director, consultant or
employee of DOCP or any DOCP Subsidiary and (b) neither DOCP nor
any DOCP Subsidiary is a party to any transaction, agreement,
arrangement or understanding with any officer, director,
consultant or employee of DOCP or any DOCP Subsidiary, other
than, with respect to both clauses (a) and (b), items arising out
of the ordinary course of employment with DOCP or any DOCP
Subsidiary.
Section 3.14. Contracts. Except as set forth in the
DOCP SEC Reports filed prior to the date hereof, neither DOCP nor
any DOCP Subsidiary is a party to or bound by (a) any "material
contract" (as such term is defined in Item 601(b)(10) of
Regulation S-K of the SEC), (b) any non-competition agreement or
any other agreement or obligation which purports to limit in any
material respect the manner in which, or the localities in which,
all or any material portion of the business of DOCP and the DOCP
Subsidiaries, taken as a whole, is or would be conducted or (c)
any contract or other agreement which would prohibit or
materially delay the consummation of the Merger or any of the
transactions contemplated by this Agreement.
Section 3.15. Tax Matters. (a) Each of DOCP and each
DOCP Subsidiary has filed all tax returns that it was required to
file or has obtained extension with respect to any unfiled tax
returns. All such tax returns were correct and complete in all
material respects. All taxes owed by any of DOCP or a DOCP
Subsidiary (whether or not shown on any tax return) have been
paid. Neither DOCP nor any DOCP Subsidiary currently is the
beneficiary of any extension of time within which to file any tax
return.
(b) There is no dispute or claim concerning any
material tax liability of any of DOCP or the DOCP Subsidiaries
either (i) claimed or raised by any authority in writing or (ii)
as to which any of the directors and officers of DOCP or the DOCP
Subsidiaries has knowledge based upon personal contact with any
agent of such authority.
(c) None of DOCP nor the DOCP Subsidiaries (i) is a
party to any tax allocation or sharing agreement, (ii) has been a
member of an affiliated group (within the meaning of Section
1504(a) of the Code) filing a consolidated income tax return
(other than a group the common parent of which was DOCP) or (iii)
has any liability for the taxes of any person (other than DOCP or
a DOCP Subsidiary) under Treasury Regulation Section 1.1502-6
promulgated under the Code (or any similar provision of United
States state or local, or foreign law), as a transferee or
successor, by contract, or otherwise.
(d) The unpaid taxes of DOCP and the DOCP Subsidiaries
as of the Closing Date do not exceed the reserve for tax
liability (rather than any reserve for deferred taxes established
to reflect timing differences between book and taxable income)
set forth in the most recent audited balance sheets contained in
DOCP SEC Reports filed with the SEC prior to the date of this
Agreement.
(e) The United States federal income tax returns of
DOCP and the DOCP Subsidiaries have not been audited by the IRS
since at least 1987.
(f) Neither DOCP nor any DOCP Subsidiary has filed an
election under Section 341(f) of the Code to be treated as a
consenting corporation.
Section 3.16. Opinion of Financial Advisor. The DOCP Board
has received the opinion of ▇▇▇▇▇ ▇▇▇▇▇▇ Inc., dated the date of this
Agreement (which will be confirmed in writing as promptly as
practicable after the date of this Agreement), to the effect that, as
of such date, the cash consideration to be received by the holders of
DOCP Shares (other than CSX, NSC and the Management Investor and their
respective affiliates) pursuant to the Offer and the Merger is fair to
such holders from a financial point of view, a copy of which opinion
will be delivered to Buyer after receipt thereof by DOCP.
Section 3.17. Brokers. Except as described in Section
3.17 of the DOCP Disclosure Schedule, no broker, finder or
investment banker (other than ▇▇▇▇▇ ▇▇▇▇▇▇, Inc.) is entitled to
any brokerage, finder's or other fee or commission in connection
with the transactions contemplated hereby based upon arrangements
made by or on behalf of DOCP. DOCP has heretofore furnished to
Buyer a complete and correct copy of all agreements between DOCP
and ▇▇▇▇▇ ▇▇▇▇▇▇, Inc. pursuant to which such firm would be
entitled to any payment, reimbursement or indemnification from
DOCP or otherwise relating to the transactions contemplated
hereby.
Section 3.18. Information Supplied. None of the information
supplied or to be supplied by DOCP for inclusion or incorporation by
reference in the Schedule 14D-1 or the Schedule 13E-3 will, at the
date such documents are first published, sent or delivered to
shareholders or, unless promptly corrected, at any time during the
pendency of the Offer, contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading. Neither the
Schedule 14D-9 at the date such document is first published, sent or
delivered to shareholders or, unless promptly corrected, at any time
during the pendency of the Offer, nor the Proxy Statement (if
applicable) at the date such document is first published, sent or
delivered to shareholders or, unless promptly corrected, at any time
during the pendency of the Merger Meeting, 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 are
made, not misleading. The Schedule 14D-9 and the Proxy Statement (if
applicable) will comply as to form in all material respects with the
requirements of the Exchange Act. Notwithstanding the foregoing, no
representation or warranty is made by DOCP with respect to statements
made or incorporated by reference therein based on information
supplied by LLC, Buyer, CSX, NSC or the Management Investor (acting in
such capacity) for inclusion or incorporation by reference in any of
the foregoing documents.
Section 3.19. State Takeover Statutes. DOCP and the DOCP
Board have taken all action necessary or advisable so as to render
inoperative with respect to the transactions contemplated hereby
(including the Offer and the Merger) all applicable state
anti-takeover statutes and all anti-takeover provisions of the
organizational documents of DOCP and each DOCP Subsidiary. Without
limiting the generality of the foregoing, DOCP and the DOCP Board have
taken all actions necessary to exempt all future transactions
contemplated by this Agreement (including the Offer and the Merger),
on the one hand, and each of the other parties and their respective
"affiliates" and "associates" (each as defined in Section 912 of the
New York Law), on the other hand, from the provisions of such Section
912 of the New York Law.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF BUYER, CSX, NSC
AND THE MANAGEMENT INVESTOR
Each of LLC, Buyer, CSX, NSC and the Management Investor
(except, as regards the Management Investor, with respect to Section
4.1) hereby represents and warrants (or, in the cases of LLC and
Buyer, will be deemed to represent and warrant upon their respective
formations) to each of the other parties hereto that:
Section 4.1. Organization and Qualification. Such person is
a corporation, duly incorporated, validly existing and in good
standing under the laws of the jurisdiction of its incorporation or
organization and has the requisite power and authority and all
necessary governmental approvals to own, lease and operate its
properties and to carry on its business as it is now being conducted,
except where the failure to be so organized, existing or in good
standing or to have such power, authority and governmental approvals
could not reasonably be expected to, individually or in the aggregate,
have a material adverse effect on the ability of such party to
consummate the transactions contemplated hereby (a "Buyer Material
Adverse Effect"). Such person is not in violation of any provision of
its certificate of incorporation, bylaws or equivalent organizational
documents.
Section 4.2. Authority Relative to This Agreement. Such
person has all necessary power and authority to execute and deliver
this Agreement, to perform its obligations hereunder and to consummate
the transactions contemplated hereby. The execution and delivery of
this Agreement by such person and the consummation by such person of
the transactions contemplated hereby have been duly and validly
authorized by all necessary corporate action (and in the case of the
Management Investor, all necessary action) and no other corporate
proceedings on the part of such person (and, in the case of the
Management Investor, no other proceedings) are necessary to authorize
this Agreement or to consummate the transactions contemplated hereby
(other than the filing and recordation of appropriate merger documents
as required by the New York Law). This Agreement has been duly and
validly executed and delivered by such person, and, assuming the due
authorization, execution and delivery by the other parties hereto,
constitutes the legal, valid and binding obligation of such person,
enforceable against such person in accordance with its terms.
Section 4.3. No Conflict; Required Filings and Consents. (a)
The execution and delivery of this Agreement by such person do not,
and the performance of this Agreement and the transactions
contemplated hereby by such person, will not (i) other than with
respect to the Management Investor, conflict with or violate the
certificate of incorporation or bylaws or equivalent organizational
documents of such person, (ii) conflict with or violate any law, rule,
regulation, order, judgment or decree applicable to such person or by
which any property or asset of such person is bound or affected or
(iii) result in any breach of or constitute a default (or an event
which, with notice or lapse of time or both, would become a default)
under, result in the loss of a material benefit under or give to
others any right of termination, amendment, acceleration, increased
payments or cancellation of, or result in the creation of a lien or
other encumbrance on any property or asset of such person pursuant to,
any note, bond, mortgage, indenture, contract, agreement, lease,
license, permit, franchise or any other instrument or obligation to
which such person is a party or by which such person or any property
or asset of such person is bound or affected, except in the case of
clauses (ii) and (iii), for any such conflicts, violations, breaches,
defaults or other occurrences as could not reasonably be expected to,
individually or in the aggregate, have a Buyer Material Adverse
Effect.
(b) The execution and delivery of this Agreement by such
person do not, and the performance of this Agreement and the
consummation of the transactions contemplated hereby by such person
will not, require any consent, approval, authorization or permit of,
or filing with or notification to, any Governmental Entity, except (i)
for (A) applicable disclosures, if any, under the Exchange Act, (B)
the requirements of the HSR Act, if applicable, and (C) filing and
recordation of appropriate merger and similar documents as required by
the New York Law and (ii) where failure to obtain such consents,
approvals, authorizations or permits, or to make such filings or
notifications, could not reasonably be expected to, individually or in
the aggregate, have a Buyer Material Adverse Effect.
Section 4.4. Information Supplied. None of the information
supplied or to be supplied by such person for inclusion or
incorporation by reference in the Schedule 14D-9 or the Proxy
Statement (if applicable) will, at the date such documents are first
published, sent or delivered to shareholders or, unless promptly
corrected, at any time during the pendency of the Offer, contain any
untrue statement of a material fact required to be stated therein or
necessary to make the statements therein not misleading. None of the
Schedule 14D-1 nor the Schedule 13E3 will, at the date such document
is first published, sent or delivered to shareholders or, unless
promptly corrected, at any time during the pendency of the Offer,
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 are made, not misleading. The Schedule 14D-1 and the Schedule
13E-3 will comply as to form in all material respects with the
requirements of the Exchange Act and the rules and regulations
thereunder. Notwithstanding the foregoing, no representation or
warranty is made by such person with respect to statements made or
incorporated by reference therein based on information supplied by
DOCP for inclusion or incorporation by reference in any of the
foregoing documents.
Section 4.5. Brokers. No broker, finder or investment banker
is entitled to any brokerage, finder's or other fee or commission in
connection with the transactions contemplated hereby based upon
arrangements made by or on behalf of such person.
ARTICLE V
COVENANTS RELATING TO THE CONDUCT OF BUSINESS
Section 5.1. Conduct of Business by DOCP Pending the Merger.
Except as set forth in this Agreement or in Section 5.1 of the DOCP
Disclosure Schedule, during the period from the date of this Agreement
to the Effective Time, other than with LLC's prior written consent,
DOCP and each DOCP Subsidiary shall not, voluntarily or involuntarily,
(a) take any action, regulatory or otherwise, inconsistent with
facilitating consummation of the transactions contemplated hereby or
(b) take any of the following actions:
(i) conduct its business in any manner other than in
the ordinary course of business consistent with past
practice and in compliance in all material respects with all
applicable laws and regulations, and, to the extent
consistent therewith, shall not fail to use all reasonable
efforts to preserve intact their current business
organizations, use reasonable efforts to keep available the
services of their current officers and other key employees
as a group and preserve their relationships with those
persons having business dealings with them to the end that
their goodwill and ongoing businesses shall be unimpaired at
the Effective Time;
(ii) adopt, propose or agree to any amendment to its
articles of incorporation, laws or other comparable
organizational documents;
(iii) issue, deliver, sell, pledge, or otherwise
encumber (A) any shares of DOCP's or any DOCP Subsidiary's
capital stock or any rights, warrants or options to acquire
any such shares (other than the issuance of DOCP Shares in
connection with the exercise of DOCP Stock Options or
Warrants outstanding as of the date of this Agreement and in
accordance with the terms of such DOCP Stock Options or the
Warrants, as the case may be, or upon conversion of the
Convertible Debt in accordance with its terms, in each case,
in effect on the date of this Agreement) or (B) any material
assets or properties;
(iv) other than dividends and distributions (including
liquidating distributions) by a direct or indirect wholly
owned subsidiary of DOCP to its parent, (A) declare, set
aside, make or pay any dividend or other distribution,
payable in cash, stock, property or otherwise, in respect of
any capital stock or (B) subdivide, reclassify,
recapitalize, split, combine or exchange any shares of
capital stock of DOCP or any DOCP Subsidiary; (C) issue or
authorize the issuance of any other securities in respect
of, in lieu of or in substitution for shares of capital
stock of DOCP or any DOCP Subsidiary; (D) purchase, redeem
or otherwise acquire any capital stock of DOCP or any DOCP
Subsidiary or any other securities thereof, or any rights,
warrants or options to acquire any such shares or other
securities;
(v) (A) incur any indebtedness for borrowed money or
guarantee any such indebtedness of another person, issue or
sell any debt securities or warrants or other rights to
acquire any debt securities of DOCP or any DOCP Subsidiary,
guarantee any debt securities of another person, enter into
any "keep well" or other agreement to maintain any financial
statement condition of another person, or enter into any
arrangement having the economic effect of any of the
foregoing, except for short-term borrowings incurred in the
ordinary course of business consistent with past practice
and pursuant to existing agreements, or (B) make any loans,
advances or capital contributions to, or investments in, any
other person, other than to DOCP or any DOCP Subsidiary;
(vi) except for expenditures made under the DOCP
capital budget described in DOCP SEC Reports filed prior to
the date hereof, make or agree to make any new capital
expenditure or new capital expenditures which individually
is in excess of $50,000 or in the aggregate is in excess of
$100,000;
(vii) increase the compensation payable or to become
payable to its executive officers, employees or consultants,
or grant any bonus, incentive, severance or termination pay
to, or enter into any commission, bonus, incentive,
employment or severance agreement with, any director,
executive officer or consultant of it or any of its
subsidiaries, or establish, adopt, enter into or amend in
any material respect or take action to accelerate any rights
or benefits under any collective bargaining agreement or any
DOCP Plan, agreement or policy;
(viii) make any change to its accounting methods,
principles or practices, except as may be required by
general accounting principles or take any other action,
other than reasonable and usual actions in the ordinary
course of business and consistent with past practice, with
respect to accounting policies or procedures (including tax
accounting policies and procedures);
(ix) make any material tax election or settle or
compromise any material income tax liability;
(x) enter into, modify, amend or terminate any material
contract, agreement, right or privilege involving the assets
or properties of DOCP or to which DOCP or any DOCP
Subsidiary is a party, or waive, release or assign any
material rights or claims thereunder;
(xi) acquire by merger or consolidation, or by purchase
of assets, or by any other manner, any business;
(xii) mortgage or otherwise encumber or subject to any
lien any of its properties or assets;
(xiii) pay, discharge, settle or satisfy any material
claims, liabilities or obligations (whether absolute,
accrued, asserted or unasserted, contingent or otherwise),
other than the payment, discharge, settlement or
satisfaction of such claims, liabilities or obligations in
the ordinary course of business consistent with past
practice or in accordance with their terms;
(xiv) (A) enter into any agreement containing any
provision or covenant limiting in any material respect the
ability to compete with any person which would bind any
party hereto (or its operations) after the Effective Time or
(B) except to the extent required by any existing contract
or agreement disclosed in Section 5.1 of the DOCP Disclosure
Schedule, acquire any interest in any railroad line or
terminal facility or dispose of any interest in any railroad
line or terminal facility owned, used or operated by DOCP or
any DOCP Subsidiary (including through a grant of
concessions or trackage rights); or
(xv) authorize or commit or agree to take any of the
foregoing actions.
Section 5.2. Other Actions. DOCP shall not, and shall not
permit any of the DOCP Subsidiaries to, take any action that would, or
that could reasonably be expected to, result in (a) any of the
representations and warranties of DOCP set forth in this Agreement
that are qualified as to materiality becoming untrue, (b) any of such
representations and warranties that are not so qualified becoming
untrue in any material respect or (c) except as otherwise permitted by
Section 6.2, any of the conditions to the Offer set forth in Annex I
or any of the conditions to the Merger set forth in Article VII not
being satisfied.
ARTICLE VI
ADDITIONAL COVENANTS
Section 6.1. Access to Information; Confidentiality. (a)
From the date hereof through the Effective Time (subject to applicable
law), DOCP shall (and shall cause its subsidiaries and officers,
directors, employees, auditors and agents to) afford the officers,
employees and agents of each of the other parties hereto and its
respective subsidiaries (the "Respective Representatives") reasonable
access at all reasonable times to its officers, employees, agents,
properties, offices, plants and other facilities, books and records,
and shall furnish such Respective Representatives with all financial,
operating and other data and information as may be reasonably
requested. All such information obtained will be subject to the
following confidentiality arrangements between DOCP and each of the
other parties hereto:
(i) None of the parties hereto nor any of their
Respective Representatives shall disclose any Confidential
Information to any person without the consent of the other
parties, other than (A) to the other parties hereto or their
Respective Representatives and their officers, directors,
partners, employees, agents and advisors, and then only on a
confidential basis, or (B) as required by any law, rule or
regulation or judicial process, provided that such party
shall, unless prohibited by applicable law or regulation or
court order, give notice to the party of such requirement to
disclose Confidential Information, and, if practicable, such
notice shall be given prior to such disclosure, provided,
however, that the failure to give such notice shall not
prohibit such disclosure.
(ii) "Confidential Information" means information
furnished by the parties hereto to one another designated as
confidential, but does not include any such information that
is or becomes generally available to the public other than
as a result of a breach by any of the parties hereto of
their obligations hereunder or that is or becomes available
to a party hereunder from a source other than any of the
other parties hereunder that is not, to the best of such
party's knowledge, acting in violation of a confidentiality
agreement with any of the parties hereto.
(b) No investigation pursuant to this Section shall
affect any representation or warranty in this Agreement of any
party hereto or any condition to the obligations of the parties
hereto.
Section 6.2. No Solicitation. DOCP shall not, nor shall it
permit any DOCP Subsidiary, or its or any DOCP Subsidiary officers,
directors, employees, agents or representatives (including, without
limitation, any investment banker, attorney or accountant) to,
initiate, solicit or encourage, directly or indirectly, any inquiries
or the making of any proposal with respect to an Alternative
Transaction, engage in any discussions or negotiations concerning, or
provide to any other person any information or data relating to it or
any DOCP Subsidiary for the purposes of, or otherwise cooperate in any
way with or assist or participate in, facilitate or encourage, any
inquiries or the making of any proposal which constitutes, or may
reasonably be expected to lead to, a proposal to seek or effect an
Alternative Transaction, or agree to or endorse any Alternative
Transaction; provided, however, that nothing contained in this Section
shall prohibit DOCP or the DOCP Board from taking and disclosing to
its shareholders a position as required by Exchange Act Rule 14e-2;
and provided further that, prior to acceptance for payment of any DOCP
Shares pursuant to the Offer, the DOCP Board, on behalf of DOCP, may,
in response to an unsolicited, bona fide Superior Proposal, furnish
information or data (including confidential information or data)
relating to DOCP and participate in negotiations with a person making
such unsolicited Superior Proposal, but only after such person enters
into arrangements regarding confidentiality on terms at least as
favorable to DOCP as the confidentiality arrangements contained herein
and only in the event that (a) the DOCP Board determines in good
faith, on the basis of advice of independent counsel furnished prior
thereto to Buyer, that such action is legally required by the
fiduciary obligations of the DOCP Board and (b) DOCP advises Buyer of
its intention to make such determination to do so prior thereto. DOCP
shall promptly advise Buyer of, and communicate the terms of, any
proposal respecting an Alternative Transaction it may receive, or any
inquiries it receives which may reasonably be expected to lead to a
proposal respecting an Alternative Transaction, and the identity of
the person making such proposal. Prior to taking any such action, if
DOCP intends to participate in any such discussion or negotiation or
provide any such information or data to any such third party, it shall
give reasonable notice to Buyer and shall consult, and thereafter
shall continue to consult, with Buyer. Notwithstanding the foregoing,
nothing in this Section 6.2 shall (a) permit DOCP to enter into any
agreement with respect to or to facilitate an Alternative Transaction
during the term of this Agreement (it being understood that DOCP shall
not enter into any agreement with any person that provides for, or in
any way facilitates, the development of a proposal for an Alternative
Transaction, other than a confidentiality agreement in customary form
in respect of a Superior Proposal as described above) or (b) affect
any other obligation of DOCP under this Agreement. "Alternative
Transaction" means a transaction or series of related transactions
resulting in (a) any change of control of DOCP, (b) any merger or
consolidation of DOCP in which another person acquires 25% or more of
the aggregate voting power of all voting securities of it or the
surviving corporation, as the case may be, (c) any tender offer or
exchange offer for, or any acquisitions of, any securities of DOCP
which, if consummated, would result in another person owning 25% or
more of the aggregate voting power of all voting securities of it or
(d) any sale or other disposition of assets of DOCP or any of its
subsidiaries if the Fair Market Value of such assets exceeds 25% of
the aggregate Fair Market Value of the assets of DOCP and all DOCP
Subsidiaries taken as a whole before giving effect to such sale or
other disposition. The "Fair Market Value" of any assets or securities
means the fair market value of such assets or securities, as
determined by the DOCP Board in good faith. "Superior Proposal" means
a bona fide proposal made by a third party for an Alternative
Transaction on terms which the DOCP Board determines in its good faith
judgment to be more favorable to DOCP's shareholders than the Offer
and the Merger and for which financing, to the extent required, is
then committed or which, in the good faith judgment of the DOCP Board,
is reasonably capable of being obtained by such third party.
Section 6.3. Indemnification, Exculpation and Insurance. (a)
Buyer, CSX, NSC and the Management Investor agree that all rights to
indemnification and exculpation from liabilities for acts or omissions
occurring at or prior to the Effective Time now existing in favor of
the current or former directors or officers of DOCP and the DOCP
Subsidiaries (collectively, the "Indemnified Parties"), as provided in
their respective certificates of incorporation or bylaws (or
comparable organizational documents) and any indemnification
agreements of DOCP, the existence of which does not constitute a
breach of this Agreement, shall be assumed by the Surviving
Corporation in the Merger without further action as of the Effective
Time, and shall survive the Merger and shall continue in full force
and effect in accordance with their respective terms.
(b) For a period of one year after the Effective Time, the
Surviving Corporation shall cause to be maintained in effect the
current policies of directors' and officers' liability insurance
maintained by DOCP (provided that the Surviving Corporation may
substitute therefor policies of at least the same coverage and amounts
containing terms and conditions which are, in the aggregate, not less
advantageous to such officers and directors) with respect to claims
arising from facts or events which occurred before the Effective Time;
provided, however, that in no event shall the Surviving Corporation be
required to expend pursuant to this Section 6.3 more than an amount
equal to 150% of the current annualized premiums paid by DOCP for such
insurance (which premiums DOCP represents and warrants to be
approximately $100,000 for 1997, in the aggregate on an annualized
basis).
Section 6.4. Notification of Certain Matters. DOCP shall
give prompt notice to Buyer, and Buyer shall give prompt notice to
DOCP, of (a) the occurrence, or non-occurrence, of any event the
occurrence, or non-occurrence, of which would be likely to cause (i)
any representation or warranty contained in this Agreement to be
untrue or inaccurate or (ii) any covenant, condition or agreement
contained in this Agreement not to be complied with or satisfied and
(b) any failure of DOCP or Buyer, as the case may be, to comply with
or satisfy any covenant, condition or agreement to be complied with or
satisfied by it hereunder; provided, however, that the delivery of any
notice pursuant to this Section 6.4 shall not limit or otherwise
affect the remedies available hereunder to the party receiving such
notice.
Section 6.5. Further Action; Best Efforts. (a) Upon the
terms and subject to the conditions hereof, each of the parties hereto
shall (i) make promptly its respective filings, and thereafter make
any other required submissions, under any applicable laws with respect
to the transactions contemplated hereby and shall not make any filing
or submission, or take any position, in connection with regulatory
authorities (in respect of the transactions contemplated hereby or
otherwise) without the consent of the Management Investor, CSX and NSC
and (ii) use its best efforts to take, or cause to be taken, all
appropriate action, and to do, or cause to be done, all things
necessary, proper or advisable under applicable laws and regulations
or otherwise to consummate and make effective the transactions
contemplated hereby.
(b) In connection with, and without limiting the foregoing,
each of the parties hereto shall (i) take all actions necessary to
ensure that no state anti-takeover statute or similar statute or
regulation is or becomes operative with respect to this Agreement, the
Offer, the Merger or any other transaction contemplated by this
Agreement and (ii) if any state anti-takeover statute or similar
statute or regulation is or becomes operative with respect to this
Agreement, the Offer, the Merger or any other transaction contemplated
by this Agreement, take all actions necessary to ensure that this
Agreement, the Offer, the Merger and any other transactions
contemplated by this Agreement may be consummated as promptly as
practicable on the terms contemplated by this Agreement and otherwise
to minimize the effect of such statute or regulation on the Merger,
the Offer and the other transactions contemplated by this Agreement.
Section 6.6. Public Announcements. The parties hereto shall
consult with each other before issuing any press release or otherwise
making any public statements with respect to this Agreement or the
transactions contemplated hereby, and shall not issue any such press
release or make any such public statement without the prior consent of
the other parties, which consent shall not be unreasonably withheld;
provided, however, that a party may, without the prior consent of the
other parties, issue such press release or make such public statement
as may be required by law or any listing agreement or arrangement to
which such party is bound with a national securities exchange or The
Nasdaq Stock Market if it has used reasonable efforts to consult with
the other parties and to obtain such parties' consent but has been
unable to do so in a timely manner.
Section 6.7. Conveyance Taxes. Buyer and DOCP shall
cooperate in the preparation, execution and filing of all returns,
questionnaires, applications, or other documents regarding any real
property transfer or gains, sales, use, transfer, value added, stock
transfer and stamp taxes, any transfer, recording, registration and
other fees, and any similar taxes which become payable in connection
with the transactions contemplated hereby that are required or
permitted to be filed on or before the Effective Time.
ARTICLE VII
CLOSING CONDITIONS
Section 7.1. Conditions to Obligations of Each Party to
Effect the Merger. The respective obligations of each of DOCP and
Buyer to effect the Merger shall be subject to the satisfaction or
waiver of the following conditions prior to the Effective Time:
(a) Shareholder Approval. If required by the New York
Law, this Agreement and the Merger shall have been approved
and adopted by the requisite vote of DOCP shareholders.
(b) No Order. No Governmental Entity or United States
federal or state court of competent jurisdiction shall have
enacted, issued, promulgated, enforced or entered any
statute, rule, regulation, executive order, decree,
injunction or other order (whether temporary, preliminary or
permanent) which is in effect and which materially
restricts, prevents or prohibits consummation of the
transactions contemplated hereby; provided, however, that
the parties shall use their reasonable efforts to cause any
such decree, judgment, injunction or other order to be
vacated or lifted.
(c) Other Approvals. Other than the filing of Merger
documents in accordance with the New York Law, all
authorizations, consents, waivers, orders or approvals
required to be obtained, and all filings, notices or
declarations required to be made, by any of the parties
hereto prior to the consummation of the Merger, shall have
been obtained from, and made with, all required Governmental
Entities, except for such authorizations, consents, waivers,
orders, approvals, filings, notices or declarations the
failure to obtain or make which would not have a DOCP
Material Adverse Effect or a Buyer Material Adverse Effect.
Section 7.2. Conditions to Obligations of DOCP to Effect the
Merger. Prior to consummation of the Offer, the obligations of DOCP to
effect the Merger shall be subject to the satisfaction or waiver of
the following conditions prior to the Effective Time:
(a) Compliance. None of LLC, Buyer, CSX, NSC or the
Management Investor shall have breached or failed to observe
or perform in any material respect any of its covenants or
agreements in favor of DOCP hereunder to be performed by it
at or prior to the Effective Time, and the representations
and warranties of LLC, Buyer, CSX, NSC and the Management
Investor set forth herein shall be true and accurate both
when made and at and as of the Effective Time, as if made at
and as of such time (except to the extent expressly made as
of an earlier date, in which case as of such date), except
where the breach or failure to observe or perform such
covenants and agreements, or the failure of such
representations and warranties to be so true and correct
(without giving effect to any limitation as to "materiality"
or "material adverse effect" or similar language set forth
therein), does not, and is not likely to, individually or in
the aggregate, prevent consummation of the Merger.
Section 7.3. Conditions to Obligations of Buyer to
Effect the Merger. The obligations of Buyer to effect the Merger
shall be subject to the satisfaction or waiver of the following
conditions prior to the Effective Time:
(a) Compliance. DOCP shall not have breached or failed
to observe or perform in any material respect any of its
covenants or agreements hereunder to be performed by it at
or prior to the Effective Time, and the representations and
warranties of DOCP set forth herein shall be true and
accurate both when made and at and as of the Effective Time,
as if made at and as of such time (except to the extent
expressly made as of an earlier date, in which case as of
such date), except where the breach or failure to observe or
perform such covenants and agreements, or the failure of
such representations and warranties to be so true and
correct (without giving effect to any limitation as to
"materiality" or "material adverse effect" or similar
language set forth therein), does not have, and is not
likely to have, individually or in the aggregate, a DOCP
Material Adverse Effect or a Buyer Material Adverse Effect.
(b) No Material Adverse Change. At any time after the
date of this Agreement, there shall not have occurred any
DOCP Material Adverse Effect.
Section 7.4. Frustration of Closing Conditions. No
party hereto may rely on the failure of any condition set forth
in this Article to be satisfied if such failure was caused by
such party's failure to use reasonable efforts to consummate the
transactions contemplated by this Agreement.
ARTICLE VIII
TERMINATION, AMENDMENT AND WAIVER
Section 8.1. Termination. This Agreement may be terminated
at any time prior to the Effective Time, in the case of Buyer, or
prior to the purchase of DOCP Shares under the Offer, in the case of
DOCP, whether before or after approval of this Agreement and the
Merger by the shareholders of DOCP:
(a) by mutual consent of DOCP and Buyer;
(b) (i) by Buyer upon a breach of any covenant or
agreement on the part of DOCP set forth in this Agreement
which has not been cured, or if any representation or
warranty of DOCP shall have become untrue, in either case,
such that such breach or untruth is incapable of being cured
within 30 days after the giving of written notice to DOCP of
such breach or untruth, provided that such breach or untruth
is material and that Buyer is not then in material breach of
this Agreement or (ii) by DOCP in the event of a breach of
any representation, warranty, agreement or covenant of Buyer
set forth in this Agreement, in any case, such that such
breach has not been cured within 30 days after the giving of
written notice to Buyer of such breach or untruth and will
prevent consummation of the Merger, provided that DOCP is
not then in material breach of this Agreement;
(c) by either Buyer or DOCP, if any permanent
injunction or action by any Governmental Entity preventing
the consummation of the Merger shall have become final and
nonappealable, provided that the party seeking to terminate
this Agreement pursuant to this clause (c) shall have used
all reasonable efforts to prevent the entry of and to remove
such permanent injunction or action;
(d) by either Buyer or DOCP, if the Merger shall not
have been consummated before June 30, 1998, provided that
the right to terminate this Agreement pursuant to this
clause (d) shall not be available to any party whose failure
to perform any of its obligations hereunder results in the
failure of the Merger to be consummated by such date;
(e) by Buyer (i) if the DOCP Board or any committee
thereof shall withdraw, modify or change its recommendation
so that it is not in favor of this Agreement, the Offer or
the Merger (or make any recommendation in favor of an
Alternative Transaction) or shall have resolved to do any of
the foregoing or (ii) if DOCP shall take any action that
would be proscribed by Section 6.2 of this Agreement but for
the exceptions contained in the provisions thereof; or
(f) by Buyer if the DOCP Board or any committee thereof
shall have approved or entered into an agreement respecting
a Superior Proposal or recommended or resolved to recommend
to its shareholders a Superior Proposal, or by DOCP in
connection with the DOCP Board or any committee thereof
approving or entering into an agreement respecting a
Superior Proposal, provided that, in the case of any such
termination by DOCP, simultaneously with such termination,
DOCP complies with Section 8.5(b) of this Agreement and
prior thereto has complied with Section 6.2 of this
Agreement and provided, further, that the party seeking to
terminate under this clause (f) is not then in material
breach of this Agreement.
The right of any party hereto to terminate this Agreement
pursuant to this Section shall remain operative and in full force
and effect regardless of any investigation made by or on behalf
of any party hereto, any person controlling any such party, or
any of their respective officers or directors, whether prior to
or after the execution of this Agreement.
Section 8.2. Effect of Termination. Except as provided
in Section 8.5 or Section 9.1, in the event of the termination of
this Agreement pursuant to Section 8.1, this Agreement shall
forthwith become void, there shall be no liability on the part of
any party hereto, or any of their respective officers or
directors, to the other and all rights and obligations of any
party hereto shall cease; provided, however, that nothing herein
shall relieve any party from liability for the willful breach of
any of its representations, warranties, covenants or agreements
set forth in this Agreement.
Section 8.3. Amendment. This Agreement may be amended
by the parties hereto at any time prior to the Effective Time;
provided, however, that, after approval of this Agreement and the
Merger by the shareholders of DOCP, no amendment, which under
applicable law may not be made without the approval of the
shareholders of DOCP, may be made without such approval. This
Agreement may not be amended except by an instrument in writing
signed by the parties hereto.
Section 8.4. Waiver. At any time prior to the
Effective Time, any party hereto may (a) extend the time for the
performance of any of the obligations or other acts of the other
party hereto, (b) waive any inaccuracies in the representations
and warranties of the other party contained herein or in any
document delivered pursuant hereto or (c) waive compliance by the
other party with any of the agreements or conditions contained
herein. Any such extension or waiver shall be valid only if set
forth in an instrument in writing signed by the party or parties
to be bound thereby.
Section 8.5. Fees, Expenses and Other Payments. (a) Except
as otherwise provided in this Agreement, all costs and expenses,
including, without limitation, fees and disbursements of counsel,
financial advisors and accountants, incurred by the parties hereto
shall be borne solely and entirely by the party which has incurred
such costs and expenses (with respect to such party, its "Expenses");
provided that, except in the event that the payment provided in
Section 8.5(b) becomes payable, if DOCP breaches any material term of
this Agreement or if the Merger is not consummated, and this Agreement
is thereafter terminated, and within one year of the date of such
termination DOCP enters into an agreement respecting an Alternative
Transaction, DOCP shall pay the reasonable fees and expenses of one
firm of legal counsel advising the Management Investor, up to $50,000,
plus 50% of any such fees in excess of $50,000, for the benefit of the
Management Investor in connection with the transactions contemplated
hereby.
(b) If (i) this Agreement shall be terminated by Buyer
pursuant to Section 8.1 (e) or by Buyer or DOCP pursuant to Section
8.1 (f), or (ii) (A) after the date of this Agreement any person or
"group" (within the meaning of Section 13(d)(3) of the Exchange Act)
shall have publicly made a proposal with respect to an Alternative
Transaction, (B) the Offer shall have remained open until at least the
scheduled expiration date immediately following the date such proposal
is made, (C) the Minimum Condition shall not have been satisfied at
the expiration of the Offer and (D) this Agreement shall thereafter be
terminated pursuant to Section 8.1(d), then DOCP shall pay to Buyer
$3,000,000 plus all Expenses of Buyer, CSX, NSC and the Management
Investor as promptly as practicable but not later than two business
days after termination of this Agreement (unless required
simultaneously with termination under Section 8.1(f)) by wire transfer
of immediately available funds to an account designated by Buyer.
ARTICLE IX
GENERAL PROVISIONS
Section 9.1. Effectiveness of Representations, Warranties
and Agreements. (a) Except as set forth in Section 9.1(b), the
representations, warranties and agreements of each party hereto shall
remain operative and in full force and effect, regardless of any
investigation made by or on behalf of any other party hereto, any
person controlling any such party or any of their respective officers
or directors, whether prior to or after the execution of this
Agreement.
(b) The representations, warranties and agreements in this
Agreement shall terminate at the Effective Time or upon the
termination of this Agreement pursuant to Article VIII, except that
the agreements set forth in Articles I, II and IX, and Section 6.3
shall survive the Effective Time and those set forth in Sections
6.1(a), 8.2 and 8.5, and Article IX shall survive termination.
Section 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 delivered or
transmitted, and shall be effective upon receipt, if delivered
personally, mailed by registered or certified mail (postage prepaid,
return receipt requested) to the parties at the following addresses
(or at such other address for a party as shall be specified by like
changes of address) or sent by electronic transmission to the
telecopier number specified below:
(a) If to Buyer:
then c/o CSX, NSC and the Management Investor at
the respective addresses set forth below;
(b) If to CSX:
c/o CSX Corporation
One ▇▇▇▇▇ Center
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
(c) If to NSC:
Norfolk Southern Corporation
Three ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
(d) If to the Management Investor;
▇▇▇▇▇▇ ▇. ▇▇▇▇
c/o Delaware Otsego Corporation
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇, LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
(e) If to DOCP:
Delaware Otsego Corporation
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: General Counsel
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Telecopier No: (▇▇▇) ▇▇▇-▇▇▇▇
Section 9.3. Certain Definitions. For purposes of this
Agreement, the term:
(a) "affiliate" 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;
(b) "business day" means any day other than a day on
which (i) banks in the State of New York are authorized or
obligated to be closed or (ii) the SEC is closed;
(c) "control" (including the terms "controlled,"
"controlled by" and "under common control with") means the
possession, directly or indirectly or as trustee or
executor, of the power to direct or cause the direction of
the management or polices of a person, whether through the
ownership of stock or as trustee or executor, by contract or
credit arrangement or otherwise;
(d) "material" means, with respect to a person,
material to the business, financial condition, results of
operations, properties, assets or prospects of such person
and its subsidiaries taken as a whole or materially
impairing the ability of such person to consummate the
transactions contemplated hereby (including the Offer and
the Merger), and the term "materially" has a correlative
meaning;
(e) "person" means an individual, corporation,
partnership, limited liability company, joint venture,
association, trust, unincorporated organization or other
entity;
(f) "subsidiary" or "subsidiaries" of any person means
any corporation, partnership, joint venture or other legal
entity of which such person (either alone or through or
together with any other subsidiary) owns, directly or
indirectly, 50% or more of the stock or other equity
interests, the holders of which are generally entitled to
vote for the election of the board of directors or other
governing body of such corporation or other legal entity;
(g) "knowledge" of any person which is not an
individual means the knowledge of such person's executive
officers after reasonable inquiry; and
(h) "taken as a whole" with respect to any person and
its subsidiaries, means taken as a whole to the extent of
such person's interest in each of such subsidiaries.
Section 9.4. Interpretation. When a reference is made in
this Agreement to an Article, Section or Annex, such reference shall
be to an Article or Section of, or an Annex to, this Agreement unless
otherwise indicated. The table of contents and headings contained in
this Agreement are for reference purposes only and shall not affect in
any way the meaning or interpretation of this Agreement. Whenever the
words "include", "includes" or "including" are used in this Agreement,
they shall be deemed to be followed by the words "without limitation".
The words "hereof", "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement. All terms
defined in this Agreement shall have the defined meanings when used in
any certificate or other document made or delivered pursuant hereto
unless otherwise defined therein. The definitions contained in this
Agreement are applicable to the singular as well as the plural forms
of such terms and to the masculine as well as to the feminine and
neuter genders of such term. Any agreement, instrument or statute
defined or referred to herein or in any agreement or instrument that
is referred to herein means such agreement, instrument or statute as
from time to time amended, modified or supplemented, including (in the
case of agreements or instruments) by waiver or consent and (in the
case of statutes) by succession of comparable successor statutes and
references to all attachments thereto and instruments incorporated
therein. References to a person are also to its permitted successors
and assigns.
Section 9.5. Severability. If any term or other provision of
this Agreement is invalid, illegal or incapable of being enforced by
any rule of law or public policy, all other conditions and provisions
of this Agreement shall nevertheless remain in full force and effect
so long as the economic or legal substance of the transactions
contemplated hereby is not affected in any manner materially adverse
to any party. Upon such determination that any term or other provision
is invalid, illegal or incapable of being enforced, the parties hereto
shall negotiate in good faith to modify this Agreement so as to effect
the original intent of the parties as closely as possible to the
fullest extent permitted by applicable law in an acceptable manner to
the end that the transactions contemplated hereby are fulfilled to the
extent possible.
Section 9.6. Entire Agreement. This Agreement, together with
the Annex, the DOCP Disclosure Schedule and the other documents
delivered as of the date hereof in connection herewith, constitute the
entire agreement of the parties and supersede all prior agreements and
understandings, both written and oral, between the parties, or any of
them, with respect to the subject matter hereof.
Section 9.7. Assignment. Neither this Agreement nor any of
the rights, interests or obligations under this Agreement shall be
assigned, in whole or in part, by operation of law or otherwise by any
of the parties hereto without the prior consent of the other party
(other than an assignment by CSX, NSC or Buyer to a controlled
subsidiary). Any assignment in violation of the preceding sentence
shall be void. Subject to the preceding sentence, this Agreement will
be binding upon, inure to the benefit of, and be enforceable by, the
parties and their respective successors and assigns.
Section 9.8. Parties in Interest. This Agreement shall be
binding upon and inure solely to the benefit of each party hereto, and
nothing in this Agreement, express or implied, is intended to or shall
confer upon any person any right, benefit or remedy of any nature
whatsoever under or by reason of this Agreement, except that the
provisions of Section 6.3 should inure to the benefit of the
indemnified parties.
Section 9.9. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK, REGARDLESS OF THE LAWS THAT MIGHT OTHERWISE GOVERN UNDER
APPLICABLE PRINCIPLES OF CONFLICT OF LAWS THEREOF, PROVIDED, HOWEVER,
THAT THE LAWS OF THE RESPECTIVE STATES OF INCORPORATION OF EACH OF THE
PARTIES HERETO SHALL GOVERN THE RELATIVE RIGHTS, OBLIGATIONS, POWERS,
DUTIES AND OTHER INTERNAL AFFAIRS OF SUCH PARTY AND ITS BOARD OF
DIRECTORS.
Section 9. 10. ENFORCEMENT. THE PARTIES AGREE THAT
IRREPARABLE DAMAGE WOULD OCCUR AND THAT THE PARTIES WOULD NOT HAVE ANY
ADEQUATE REMEDY AT LAW IN THE EVENT THAT ANY OF THE PROVISIONS OF THIS
AGREEMENT WERE NOT PERFORMED IN ACCORDANCE WITH THEIR SPECIFIC TERMS
OR WERE 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
OF THIS AGREEMENT IN ANY UNITED STATES FEDERAL COURT LOCATED IN THE
STATE OF NEW YORK OR IN NEW YORK STATE COURT, THIS BEING IN ADDITION
TO ANY OTHER REMEDY TO WHICH THEY ARE ENTITLED AT LAW OR IN EQUITY. IN
ADDITION, EACH OF THE PARTIES HERETO (A) CONSENTS TO SUBMIT ITSELF TO
THE PERSONAL JURISDICTION OF ANY UNITED STATES FEDERAL COURT LOCATED
IN THE STATE OF NEW YORK OR ANY NEW YORK STATE COURT IN THE EVENT ANY
DISPUTE ARISES OUT OF THIS AGREEMENT OR ANY OF THE TRANSACTIONS
CONTEMPLATED HEREBY, (B) AGREES THAT IT WILL NOT ATTEMPT TO DENY OR
DEFEAT SUCH PERSONAL JURISDICTION BY MOTION OR OTHER REQUEST FOR LEAVE
FROM ANY SUCH COURT AND (C) AGREES THAT IT WILL NOT BRING ANY ACTION
RELATING TO THIS AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED
HEREBY IN ANY COURT OTHER THAN A FEDERAL COURT SITTING IN THE STATE OF
NEW YORK OR A NEW YORK STATE COURT.
Section 9.11. Counterparts. This Agreement may be executed
in one or more counterparts, and by the different parties hereto in
separate counterparts, each of which when executed shall be deemed to
be an original but all of which taken together shall constitute one
and the same agreement.
Section 9.12. Guarantee. The obligations hereunder with
respect to the transactions contemplated hereby shall be solely
obligations of LLC and Buyer and shall be guaranteed by each of CSX
and NSC on a 50% basis. The parties hereto agree and understand that,
prior to the consummation of the Offer, all rights of LLC and Buyer
hereunder shall be exercised solely by CSX and NSC acting
collectively.
IN WITNESS WHEREOF, CSX, NSC, the Management Investor and
DOCP have caused this Agreement to be executed as of the date first
written above by their respective officers hereunto duly authorized.
CSX CORPORATION
By_______________________________
Name:
Title:
NORFOLK SOUTHERN CORPORATION
By_______________________________
Name:
Title:
▇▇▇▇▇▇ ▇. ▇▇▇▇
DELAWARE OTSEGO CORPORATION
By_______________________________
Name:
Title:
ANNEX I
CONDITIONS OF THE OFFER
Notwithstanding any other provision of the Offer, and
in addition to and not in limitation of Buyer's rights to extend
or amend the Offer at any time, in its sole discretion (subject
to the Merger Agreement), Buyer shall not be required to accept
for payment or, subject to any applicable rules or regulations of
the SEC, pay for any DOCP Shares, and may delay the acceptance of
payment of or, subject to any restriction referred to above, the
payment for, and may terminate the Offer, if (a) the DOCP Shares
tendered pursuant to the Offer by the expiration of the Offer and
not withdrawn, together with the DOCP Shares owned by Buyer or
any subsidiary of Buyer or to be contributed to Buyer pursuant to
binding agreements (which Buyer, in its sole discretion, believes
will be performed) represent, on a fully diluted basis less than
66 2/3% of the outstanding DOCP Shares (the "Minimum Condition"),
(b) the waiting periods under the HSR Act applicable to the
transactions contemplated by the Merger Agreement shall not have
expired or been terminated, if such Act is applicable, or any
other regulatory approvals required under applicable law for the
consummation of the Offer shall not have been obtained; or (c) at
any time prior to the acceptance for payment of DOCP Shares, any
of the following conditions exist:
(i) there shall be instituted, pending or threatened
any action, investigation or proceeding by any domestic or
foreign government or Governmental Entity, or there shall be
instituted, pending or threatened any action or proceeding
by any other person, domestic or foreign, before any
domestic or foreign court or Governmental Entity (other than
shareholder litigation by DOCP Shareholders acting in their
capacity as DOCP shareholders and other than actions or
proceedings by any person before a Governmental Entity to
the extent that such person seeks the imposition of
conditions in proceedings pending as of the date hereof),
(A) challenging or seeking to make illegal, to delay
materially or otherwise, directly or indirectly, to restrain
or prohibit the making of the Offer, the acceptance for
payment of or payment for some of or all the DOCP Shares by
Buyer or the consummation of the Merger, seeking to obtain
material damages or imposing any material adverse conditions
in connection therewith or otherwise, directly or
indirectly, relating to the transactions contemplated by the
Offer or the Merger, (B) seeking to restrain, prohibit or
delay the exercise of full rights of ownership or operation
by Buyer or its affiliates of all or any portion of the
business or assets of DOCP and the DOCP Subsidiaries, taken
as a whole, or of Buyer or any of its affiliates, or to
compel Buyer or any of its affiliates to dispose of or hold
separate all or any material portion of the business or
assets of DOCP and the DOCP subsidiaries, taken as a whole,
or of Buyer or any of its affiliates, (C) seeking to impose
or confirm limitations on the ability of Buyer or any of its
affiliates effectively to exercise full rights of ownership
of the DOCP Shares, including, without limitation, the right
to vote any DOCP Shares acquired or owned by Buyer or any of
its affiliates on all matters properly presented to DOCP's
shareholders or (D) seeking to require divestiture by Buyer
or any of its affiliates of any DOCP Shares; or
(ii) there shall be any action taken, or any statute,
rule, regulation, injunction, order or decree proposed,
enacted, enforced, promulgated, issued or deemed applicable
to, or any consent or approval withheld with respect to the
Offer, the acceptance for payment of or payment for any DOCP
Shares or the Merger, by any domestic or foreign court or
government or Governmental Entity that, in the reasonable
judgment of Buyer, might, directly or indirectly, result in
any of the consequences referred to in clauses (A) through
(D) of paragraph (i) above; or
(iii) DOCP shall have breached or failed to perform in
any material respect any of its covenants or agreements
under the Merger Agreement which breach or failure to
perform shall not have been cured, or any of the
representations and warranties of DOCP set forth in the
Merger Agreement shall not be true in any material respect
when made or at any time prior to consummation of the Offer
as if made at and as of such time and shall continue to be
untrue;
(iv) the Merger Agreement shall have been terminated
in accordance with its terms or all conditions (other than
the condition pertaining to DOCP shareholder approval) to
the consummation of the Merger shall not have been
satisfied; or
which, in the reasonable judgment of Buyer in any such case, and
regardless of the circumstances giving rise to any such
condition, makes it inadvisable to proceed with such acceptance
for payment or payment.
The foregoing conditions are for the sole benefit of
Buyer and may be asserted by Buyer regardless of the
circumstances giving rise to any such condition (including any
action or omission by Buyer) or may be waived by Buyer in whole
or in part at any time and from time to time in its reasonable
discretion. The failure by Buyer at any time to exercise any of
the foregoing rights shall not be deemed a waiver of any such
right; the waiver of any such right with respect to particular
facts and other circumstances shall not be deemed a waiver with
respect to any other facts and circumstances; and each such right
shall be deemed an ongoing right that may be asserted at any time
and from time to time.
