EXHIBIT 2.1
-----------
AMENDED AND RESTATED
AGREEMENT AND PLAN OF MERGER
by and among
EIMO OYJ,
SPARTAN ACQUISITION CORP.
and
TRIPLE S PLASTICS, INC.
dated as of
May 25, 2001
TABLE OF CONTENTS
ARTICLE I THE MERGER . . . . . . . . . . . . . . . . . . . . . . 2
Section 1.1 THE MERGER . . . . . . . . . . . . . . . . . 2
Section 1.2 EFFECTIVE TIME . . . . . . . . . . . . . . . 3
Section 1.3 CLOSING . . . . . . . . . . . . . . . . . . . 3
Section 1.4 DIRECTORS AND OFFICERS OF THE SURVIVING
CORPORATION . . . . . . . . . . . . . . . . . 3
Section 1.5 SUBSEQUENT ACTIONS . . . . . . . . . . . . . 3
Section 1.6 OTHER AGREEMENTS . . . . . . . . . . . . . . 4
ARTICLE II CONVERSION OF SECURITIES . . . . . . . . . . . . . . . 4
Section 2.1 CONVERSION OF CAPITAL STOCK . . . . . . . . . 4
Section 2.2 EXCHANGE OF CERTIFICATES . . . . . . . . . . 6
ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE COMPANY . . . . 9
Section 3.1 ORGANIZATION; QUALIFICATION; CHARTER
DOCUMENTS . . . . . . . . . . . . . . . . . . 10
Section 3.2 SUBSIDIARIES AND AFFILIATES . . . . . . . . . 10
Section 3.3 CAPITALIZATION . . . . . . . . . . . . . . . 11
Section 3.4 AUTHORIZATION; VALIDITY OF AGREEMENT; COMPANY
ACTION . . . . . . . . . . . . . . . . . . . 11
Section 3.5 BOARD APPROVALS; TAKEOVER STATUTES . . . . . 12
Section 3.6 VOTE REQUIRED . . . . . . . . . . . . . . . . 12
Section 3.7 CONSENTS AND APPROVALS; NO VIOLATIONS . . . . 12
Section 3.8 SEC REPORTS AND FINANCIAL STATEMENTS . . . . 13
Section 3.9 NO UNDISCLOSED LIABILITIES . . . . . . . . . 13
Section 3.10 ABSENCE OF CERTAIN CHANGES . . . . . . . . . 14
Section 3.11 LITIGATION . . . . . . . . . . . . . . . . . 14
Section 3.12 EMPLOYEE BENEFIT PLANS . . . . . . . . . . . 15
Section 3.13 TAX MATTERS; GOVERNMENT BENEFITS . . . . . . 17
Section 3.14 TITLE TO PROPERTIES; ENCUMBRANCES . . . . . . 18
Section 3.15 ENVIRONMENTAL LAWS . . . . . . . . . . . . . 18
Section 3.16 INTELLECTUAL PROPERTY . . . . . . . . . . . . 19
Section 3.17 COMPLIANCE WITH LAWS . . . . . . . . . . . . 19
Section 3.18 LABOR DIFFICULTIES . . . . . . . . . . . . . 20
Section 3.19 INFORMATION TO BE SUPPLIED . . . . . . . . . 20
Section 3.20 OPINION OF FINANCIAL ADVISOR . . . . . . . . 20
Section 3.21 BROKERS OR FINDERS . . . . . . . . . . . . . 21
Section 3.22 COMPANY AGREEMENTS . . . . . . . . . . . . . 21
Section 3.23 INTERESTED PARTY TRANSACTIONS . . . . . . . . 21
Section 3.24 CERTAIN LIABILITIES AND AGREEMENT . . . . . . 21
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF PARENT AND
PURCHASER . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 4.1 ORGANIZATION; QUALIFICATION; CHARTER
DOCUMENTS . . . . . . . . . . . . . . . . . . 22
Section 4.2 SUBSIDIARIES AND AFFILIATES . . . . . . . . . 22
Section 4.3 CAPITALIZATION . . . . . . . . . . . . . . . 23
Section 4.4 AUTHORIZATION; VALIDITY OF AGREEMENT;
NECESSARY ACTION . . . . . . . . . . . . . . 24
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Section 4.5 BOARD APPROVALS; TAKEOVER STATUTES . . . . . 24
Section 4.6 VOTE REQUIRED . . . . . . . . . . . . . . . . 24
Section 4.7 CONSENTS AND APPROVALS; NO VIOLATIONS . . . . 25
Section 4.8 PARENT PUBLIC REPORTS AND FINANCIAL
STATEMENTS . . . . . . . . . . . . . . . . . 25
Section 4.9 NO UNDISCLOSED LIABILITIES . . . . . . . . . 26
Section 4.10 ABSENCE OF CERTAIN CHANGES . . . . . . . . . 26
Section 4.11 LITIGATION . . . . . . . . . . . . . . . . . 27
Section 4.12 TAX MATTERS; GOVERNMENT BENEFITS . . . . . . 27
Section 4.13 TITLE TO PROPERTIES; ENCUMBRANCES . . . . . . 28
Section 4.14 ENVIRONMENTAL LAWS . . . . . . . . . . . . . 28
Section 4.15 INTELLECTUAL PROPERTY . . . . . . . . . . . . 29
Section 4.16 COMPLIANCE WITH LAWS . . . . . . . . . . . . 29
Section 4.17 LABOR DIFFICULTIES . . . . . . . . . . . . . 29
Section 4.18 INFORMATION TO BE SUPPLIED . . . . . . . . . 30
Section 4.19 MERGER SUB'S OPERATIONS . . . . . . . . . . . 30
Section 4.20 BROKERS OR FINDERS . . . . . . . . . . . . . 30
Section 4.21 PARENT AGREEMENTS . . . . . . . . . . . . . . 30
Section 4.22 INTERESTED PARTY TRANSACTIONS . . . . . . . . 31
ARTICLE V COVENANTS . . . . . . . . . . . . . . . . . . . . . . . 31
Section 5.1 CONDUCT OF THE BUSINESS OF COMPANY . . . . . 31
Section 5.2 CONDUCT OF THE BUSINESS OF PARENT . . . . . . 35
Section 5.3 COMPANY SHAREHOLDER MEETING; PARENT
SHAREHOLDER MEETING; PREPARATION OF PROXY
STATEMENT/PROSPECTUS . . . . . . . . . . . . 37
Section 5.4 ACCESS . . . . . . . . . . . . . . . . . . . 39
Section 5.5 CONFIDENTIALITY . . . . . . . . . . . . . . . 39
Section 5.6 REASONABLE BEST EFFORTS . . . . . . . . . . . 40
Section 5.7 EMPLOYEE STOCK OPTIONS . . . . . . . . . . . 41
Section 5.8 NO SOLICITATION BY THE COMPANY . . . . . . . 43
Section 5.9 NO SOLICITATION BY THE PARENT . . . . . . . . 45
Section 5.10 PUBLICITY . . . . . . . . . . . . . . . . . . 47
Section 5.11 NOTIFICATION OF CERTAIN MATTERS . . . . . . . 47
Section 5.12 STATE TAKEOVER LAWS . . . . . . . . . . . . . 47
Section 5.13 TAX TREATMENT . . . . . . . . . . . . . . . . 47
Section 5.14 GOVERNANCE MATTERS . . . . . . . . . . . . . 48
Section 5.15 MERGER SUB COMPLIANCE . . . . . . . . . . . . 48
Section 5.16 EMPLOYEE BENEFITS . . . . . . . . . . . . . . 48
Section 5.17 INDEMNIFICATION . . . . . . . . . . . . . . . 49
Section 5.18 CONTROL OF OTHER PARTY'S BUSINESS . . . . . . 51
Section 5.19 HSE LISTING AND NASDAQ LISTING; EXCHANGE ACT
REPORTS . . . . . . . . . . . . . . . . . . . 52
Section 5.20 NO SERIES K SHARES . . . . . . . . . . . . . 52
ARTICLE VI CONDITIONS . . . . . . . . . . . . . . . . . . . . . . 52
Section 6.1 CONDITIONS PRECEDENT TO OBLIGATIONS OF PARENT
AND MERGER SUB . . . . . . . . . . . . . . . 52
Section 6.2 CONDITIONS PRECEDENT TO OBLIGATIONS OF THE
COMPANY . . . . . . . . . . . . . . . . . . . 54
Section 6.3 FRUSTRATION OF CLOSING CONDITIONS . . . . . . 56
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Section 6.4 CONDITIONS NOT OTHERWISE A LIMITATION OF
RIGHTS . . . . . . . . . . . . . . . . . . . 56
ARTICLE VII TERMINATION . . . . . . . . . . . . . . . . . . . . . 57
Section 7.1 TERMINATION . . . . . . . . . . . . . . . . . 57
Section 7.2 EFFECT OF TERMINATION . . . . . . . . . . . . 58
Section 7.3 PAYMENT OF CERTAIN FEES AND EXPENSES . . . . 59
ARTICLE VIII DEFINITIONS AND INTERPRETATION . . . . . . . . . . . 61
Section 8.1 DEFINITIONS . . . . . . . . . . . . . . . . . 61
Section 8.2 INTERPRETATION . . . . . . . . . . . . . . . 71
ARTICLE IX MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . 72
Section 9.1 AMENDMENT AND MODIFICATION . . . . . . . . . 72
Section 9.2 REPRESENTATIONS AND WARRANTIES . . . . . . . 72
Section 9.3 NOTICES . . . . . . . . . . . . . . . . . . . 72
Section 9.4 COUNTERPARTS; TELECOPIER . . . . . . . . . . 73
Section 9.5 ENTIRE AGREEMENT; NO THIRD PARTY
BENEFICIARIES . . . . . . . . . . . . . . . . 73
Section 9.6 SEVERABILITY . . . . . . . . . . . . . . . . 73
Section 9.7 GOVERNING LAW . . . . . . . . . . . . . . . . 74
Section 9.8 ENFORCEMENT AND INTERPRETATION . . . . . . . 74
Section 9.9 WAIVER OF JURY TRIAL . . . . . . . . . . . . 74
Section 9.10 TIME OF ESSENCE . . . . . . . . . . . . . . . 74
Section 9.11 EXTENSION; WAIVER . . . . . . . . . . . . . . 74
Section 9.12 ASSIGNMENT . . . . . . . . . . . . . . . . . 75
Section 9.13 MUTUAL RELEASE AND SETTLEMENT AGREEMENT . . . 75
Section 9.14 PREAMBLE . . . . . . . . . . . . . . . . . . 75
Section 9.15 TERMINATION OF PRIOR AGREEMENTS . . . . . . . 75
Section 9.16 2001 FORM 10-K . . . . . . . . . . . . . . . 75
Section 9.17 INCORPORATION BY REFERENCE IN DISCLOSURE
SCHEDULES . . . . . . . . . . . . . . . . . . 75
Section 9.18 CERTAIN WAIVERS . . . . . . . . . . . . . . . 77
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EXHIBITS
1.1(a) Certificate of Merger - Michigan
1.1(b) Certificate of Merger - Delaware
1.6(a) Form of Reinstatement of Company Shareholder Agreement
1.6(b) Form of Reinstatement of Parent Shareholder Agreement
1.6(c) Form of Reinstatement of Conversion Agreement
1.6(d)(i) Form of Release and Resignation Agreement of ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇
1.6(d)(ii) Form of Release and Resignation Agreement of ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇, ▇▇.
1.6(d)(iii) Form of Employment Agreement of A. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
6.1(k) Form of Liquidity and Registration Rights Agreement
9.13 Form of Mutual Release and Settlement Agreement
9.16 2001 10-K Draft
SCHEDULES
Company Disclosure Schedule - Schedule A
Parent Disclosure Schedule - Schedule B
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AMENDED AND RESTATED
AGREEMENT AND PLAN OF MERGER
AMENDED AND RESTATED AGREEMENT AND PLAN OF MERGER, dated as of
May 25, 2001, by and among EIMO OYJ, a company organized under the
laws of the Republic of Finland ("PARENT"), SPARTAN ACQUISITION CORP.,
a Delaware corporation and a wholly-owned subsidiary of Parent
("MERGER SUB") and TRIPLE S PLASTICS, INC., a Michigan corporation
(the "COMPANY"). As used in this Agreement, capitalized terms have
the meanings ascribed to them in ARTICLE VIII.
PREAMBLE
WHEREAS, the Board of Directors of each of Parent, Merger Sub and
the Company has approved, and deems it advisable and in the best
interests of its respective shareholders and consistent with and in
furtherance of its respective business strategies and goals, for
Parent to acquire all of the outstanding shares of the Company through
the merger of Merger Sub with and into the Company upon the terms and
subject to the conditions set forth herein;
WHEREAS, in furtherance thereof, the Board of Directors of Parent
has approved this Agreement and the Merger in accordance with the laws
of the Republic of Finland, upon the terms and subject to the
conditions set forth herein;
WHEREAS, the parties desire to reinstate, amend and restate that
certain Agreement and Plan of Merger dated as of July 13, 2000, as
amended by Amendment Number One thereto dated as of February 3, 2001
(the "ORIGINAL AGREEMENT");
WHEREAS, this Agreement shall, upon execution, be in full force
and effect notwithstanding any notice of intent to terminate or notice
of termination given prior to the date of this Agreement, all of which
are expressly withdrawn subject only to the fulfillment of the
conditions set forth in SECTION 9.13 of this Agreement;
WHEREAS, in furtherance thereof, the respective Boards of
Directors of Merger Sub and the Company have approved this Agreement
and the Merger in accordance with the DGCL and the MBCA, respectively,
and upon the terms and subject to the conditions set forth herein;
WHEREAS, the parties hereto intend that the Merger shall qualify
for U.S. federal income tax purposes as a reorganization (a "SECTION
368 REORGANIZATION") within the meaning of Section 368(a) of the U.S.
Internal Revenue Code of 1986, as amended (together with the rules and
regulations promulgated thereunder, the "CODE");
WHEREAS, the Company, Parent and Merger Sub desire to make
certain representations, warranties, covenants and agreements in
connection with the Merger;
WHEREAS, as a condition and inducement to Parent's and Merger
Sub's entering into this Agreement and incurring the obligations set
forth herein, each of the Major Company Shareholders and the other
shareholders of the Company who are signatory thereto, concurrently
herewith, is entering into the Company Shareholder Agreement dated as
of the date hereof, with Parent and Merger Sub, pursuant to which the
Major Company Shareholders are agreeing, among other things, to grant
Parent a proxy with respect to the voting of the Shares held by the
Major Company Shareholders all upon the terms and subject to the
conditions set forth in the Company Shareholder Agreement;
WHEREAS, as a condition and inducement to the Company's entering
into this Agreement and incurring the obligations set forth herein,
each of the Major Parent Shareholders, concurrently herewith, is
entering into the Parent Shareholder Agreement dated as of the date
hereof, with the Company, pursuant to which the Major Parent
Shareholders are agreeing, among other things, to grant the Company a
proxy with respect to the voting of the Parent Ordinary Shares and the
Parent Series K Shares held by the Major Parent Shareholders, all upon
the terms and subject to the conditions set forth in the Parent
Shareholder Agreement; and
WHEREAS, as a further condition and inducement to the Company's
entering into this Agreement and incurring the obligations set forth
herein, each of the Major Parent Shareholders, concurrently herewith,
is entering into the Conversion Agreement dated as of the date hereof,
with the Company, pursuant to which the Major Parent Shareholders are
agreeing, among other things, to convert the Parent Series K Shares
held by the Major Parent Shareholders into Parent Ordinary Shares,
effective as of the Effective Time, all upon the terms and subject to
the conditions set forth in the Conversion Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
representations, warranties, covenants and agreements set forth
herein, intending to be legally bound hereby, the parties hereto agree
as follows:
ARTICLE I
THE MERGER
Section 1.1 THE MERGER. Subject to the terms and conditions
of this Agreement, at the Effective Time, the Company and Merger Sub
shall consummate a merger pursuant to which (a) Merger Sub shall be
merged with and into the Company and the separate corporate existence
of Merger Sub shall thereupon cease, (b) the Company shall be the
successor or surviving corporation in the Merger (the "SURVIVING
CORPORATION") and shall continue to be governed by the laws of the
State of Michigan, and (c) the separate corporate existence of the
Company with all its rights, privileges, immunities, powers and
franchises shall continue unaffected by the Merger, except as set
forth in this SECTION 1.1. Pursuant to the Merger, (x) the articles
of incorporation of the Company shall be amended at and as of the
Effective Time as set forth in the Certificates of Merger in the form
of EXHIBIT 1.1(a) and EXHIBIT 1.1(b) hereof (collectively, the
2
"CERTIFICATE OF MERGER"), and, as so amended, shall be the articles of
incorporation of the Surviving Corporation until thereafter amended as
provided by law and such articles of incorporation, and (y) the bylaws
of the Company shall be, at and as of the Effective Time, the bylaws
of the Surviving Corporation until thereafter amended as provided by
law, by the articles of incorporation or by such bylaws. The Merger
shall have the effects specified in the MBCA and the DGCL.
Section 1.2 EFFECTIVE TIME. Subject to the terms of this
Agreement, Parent, Merger Sub and the Company will cause the Merger to
be consummated by causing the Certificate of Merger to be executed and
filed on the Closing Date (or on such other date as Parent and the
Company may agree) with the Department of Consumer and Industry
Services of the Corporation Division of the State of Michigan, as
provided in the MBCA, and with the Secretary of State of the State of
Delaware, as provided in the DGCL. The Merger shall become effective
on the later of (a) the time at which the Certificate of Merger is
duly filed with the Department of Consumer and Industry Services of
the Corporation Division of the State of Michigan, (b) the time at
which the Certificate of Merger is duly filed with the Secretary of
State of the State of Delaware, or (c) such other time as is agreed
upon by the parties and specified in the Certificate of Merger (the
"EFFECTIVE TIME").
Section 1.3 CLOSING. The closing of the Merger shall take
place at 10:00 a.m. on a date to be agreed upon by the parties, and if
such date is not agreed upon by the parties, the Closing shall occur
on the second Business Day after satisfaction or waiver of all of the
conditions set forth in Article VI, at the offices of ▇▇▇▇▇, ▇▇▇▇▇▇▇▇
& ▇▇▇▇▇▇▇, LLP, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇,
or such other location as shall be agreed upon by the parties.
Section 1.4 DIRECTORS AND OFFICERS OF THE SURVIVING
CORPORATION. The directors of Merger Sub (plus two additional persons
acceptable to Parent in its sole discretion, one of which is to be
nominated by the Company and the other to be nominated by the Parent
prior to the Closing) and the officers of the Company immediately
prior to the Effective Time shall, from and after the Effective Time,
be the directors and officers, respectively, of the Surviving
Corporation until their successors shall have been duly elected or
appointed or qualified or until their earlier death, resignation or
removal in accordance with the articles of incorporation and the
bylaws of the Surviving Corporation. If, at the Effective Time, a
vacancy shall exist on the Company Board of Directors or in any office
of the Surviving Corporation, such vacancy may thereafter be filled in
the manner provided by law.
Section 1.5 SUBSEQUENT ACTIONS. If at any time after the
Effective Time the Surviving Corporation will consider or be advised
that any deeds, bills of sale, assignments, assurances or any other
actions or things are necessary or desirable to vest, perfect or
confirm of record or otherwise in the Surviving Corporation its right,
3
title or interest in, to or under any of the rights, properties or
assets of either of the Company or Merger Sub acquired or to be
acquired by the Surviving Corporation as a result of, or in connection
with, the Merger, or otherwise to carry out this Agreement, the
officers and directors of the Surviving Corporation shall be
authorized to execute and deliver, and shall execute and deliver, in
the name and on behalf of either the Company or Merger Sub, all such
deeds, bills of sale, instruments of conveyance, assignments and
assurances and to take and do, and shall take and do, in the name and
on behalf of each of such corporations or otherwise, all such other
actions and things as may be necessary or desirable to vest, perfect
or confirm any and all right, title and interest in, to and under such
rights, properties or assets in the Surviving Corporation or otherwise
to carry out this Agreement.
Section 1.6 OTHER AGREEMENTS. Simultaneously with the
execution and delivery of this Agreement, the following agreements
will be executed and delivered: (a) the Reinstatement of Company
Shareholder Agreement in the form of EXHIBIT 1.6(a) hereto among
Parent, Merger Sub and each of the Major Company Shareholders and the
other shareholders of the Company who are signatory thereto (the
"COMPANY SHAREHOLDER AGREEMENT"), (b) the Reinstatement of Parent
Shareholder Agreement in the form of EXHIBIT 1.6(b) hereto among the
Company and each of the Major Parent Shareholders (the "PARENT
SHAREHOLDER AGREEMENT"), (c) the Reinstatement of Conversion Agreement
in the form of EXHIBIT 1.6(c) hereto among the Company, Parent and
each of the Major Parent Shareholders (the "CONVERSION AGREEMENT"),
(d) the Release and Resignation Agreements between the Company and
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇. in the form of EXHIBIT
1.6(d)(i) and EXHIBIT 1.6(d)(ii), respectively, and (e) the Employment
and Severance Agreement between the Company and A. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
in the form of EXHIBIT 1.6(d)(iii), (collectively, the "SEVERANCE
AGREEMENTS"). For the avoidance of doubt, E.A.T Invest Oy, an entity
under common control of Parent, and ▇▇▇▇ ▇▇▇▇▇▇▇▇ are not parties to
this Agreement, nor any agreement referred to in this section or
elsewhere in this Agreement.
ARTICLE II
CONVERSION OF SECURITIES
Section 2.1 CONVERSION OF CAPITAL STOCK. As of the Effective
Time, by virtue of the Merger and without any further action on the
part of the holders of any Shares or holders of Merger Sub Common
Stock:
(a) MERGER SUB COMMON STOCK. Each issued and outstanding
share of Merger Sub Common Stock shall be converted into and become
one fully paid and non-assessable share of common stock, no par value,
of the Surviving Corporation.
(b) CANCELLATION OF TREASURY STOCK AND PARENT-OWNED STOCK.
All Shares that are owned by the Company as treasury stock and any
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Shares owned by Parent, Merger Sub or any other wholly-owned
Subsidiary of Parent shall be cancelled and retired and shall cease to
exist, and no consideration shall be delivered in exchange therefor.
For the avoidance of doubt, this SECTION 2.1(b) shall not apply to any
Shares owned by E.A.T Invest Oy, an entity under common control with
Parent.
(c) CONVERSION OF SHARES. Each issued and outstanding
Share (other than Shares to be cancelled in accordance with SECTION
2.1(b)) shall be converted into the right to receive from Parent
pursuant to SECTION 2.1(e) a number of Parent Ordinary Shares equal to
the Exchange Ratio, which shall be delivered in the form of American
Depositary Shares (the "PARENT ADSs"), each representing the right to
receive (in book entry form) ten Parent Ordinary Shares (the "MERGER
CONSIDERATION"), evidenced by one or more American Depositary Receipts
("PARENT ADRs") issued in accordance with the Deposit Agreement,
PROVIDED, HOWEVER, that the ratio between the number of Parent
Ordinary Shares represented by each ADS may be decreased by Parent in
its sole discretion or increased by Parent with the consent of the
Company. At the Effective Time, all Shares shall no longer be
outstanding, shall be canceled and retired and shall cease to exist,
and each certificate (a "CERTIFICATE") formerly representing any of
such Shares shall thereafter represent only the right to receive the
Merger Consideration and the right, if any, to receive pursuant to
SECTION 2.2(f) cash in lieu of fractional Parent ADSs and any dividend
or distribution pursuant to SECTION 2.2(d), in each case without
interest. Parent shall, following the Closing, pay all stamp duties,
stamp duty reserve tax and other taxes and similar levies imposed in
connection with the issuance or creation of the Parent Ordinary
Shares, Parent ADSs and any Parent ADRs in connection therewith.
(d) EXCHANGE RATIO. The Exchange Ratio shall be 4.5.
(e) ISSUANCE OF MERGER CONSIDERATION. In consideration of
the issuance to Parent by the Surviving Corporation of shares of
common stock of the Surviving Corporation pursuant to SECTION 2.1(a)
hereof, Parent shall issue to the depositary for the Parent ADSs such
number of Parent Ordinary Shares as is equal to the number of Shares
outstanding immediately prior to the Effective Time multiplied by the
Exchange Ratio under the Deposit Agreement to permit the issuance of
Parent ADSs.
(f) EXTRAORDINARY ADJUSTMENTS. In the event that,
subsequent to the date of this Agreement but prior to the Effective
Time, (x) the Company changes the number of Shares, or Parent changes
the number of Parent Ordinary Shares (other than as a result of
converting Series K Shares of Parent into Series A shares of Parent as
elsewhere described herein), issued and outstanding as a result of a
stock split, stock combination, dividend of stock or other securities
(or a record date within such period with respect to such a dividend),
recapitalization, redenomination of share capital or other similar
transaction, the Exchange Ratio and other items dependent thereon
5
shall be appropriately adjusted to provide to the holders of Shares
the same economic effect and percentage ownership of Parent Ordinary
Shares as contemplated by this Agreement prior to such stock split,
stock combination, dividend, recapitalization, redenomination or
similar transaction, or (y) the Company changes the number of Shares
issued and outstanding or issues additional Company Options, the
Exchange Ratio and other items dependent thereon shall be
appropriately adjusted.
Section 2.2 EXCHANGE OF CERTIFICATES
(a) APPOINTMENT OF EXCHANGE AGENT. Prior to the Effective
Time, Parent shall appoint a bank or trust company (which may be the
depositary under the Deposit Agreement) reasonably acceptable to the
Company as exchange agent (the "EXCHANGE AGENT") for the purposes of
exchanging the Certificates for Parent ADSs. Promptly after the
Effective Time, Parent will send, or will cause the Exchange Agent to
send, to each holder of record of Shares as of the Effective Time a
letter of transmittal (which shall specify that delivery shall be
effected, and risk of loss and title to the Certificates shall pass,
only upon delivery of the Certificates to the Exchange Agent and shall
be in customary form and have such other customary provisions as the
Company and Parent may reasonably specify) providing instructions for
use in effecting the surrender of Certificates in exchange for
certificates representing Parent ADRs which represent Parent ADSs and
cash in lieu of fractional Parent ADSs.
(b) EXCHANGE FUND. Within three Business Days following
the Effective Time, Parent shall make available to the Exchange Agent
for exchange in accordance with this ARTICLE II, certificates for the
Parent ADRs representing the Parent ADSs issuable pursuant to SECTION
2.1(c) in exchange for outstanding Shares and cash in an amount
sufficient for payment in lieu of fractional Parent ADSs pursuant to
SECTION 2.2(f) and any dividends or distributions to which holders of
Shares may be entitled pursuant to SECTION 2.2(d). The cash amounts
payable pursuant to SECTION 2.2(d) and SECTION 2.2(f) are referred to
collectively as the "EXCHANGE FUND." The Exchange Agent shall invest
any cash included in the Exchange Fund as directed by the Surviving
Corporation on a daily basis; provided that no such investment or loss
thereon shall affect the amounts payable to the Company's shareholders
pursuant to this Article. Any interest and other income resulting
from such investments shall promptly be paid to the Surviving
Corporation. All Parent ADSs to be issued and delivered to the
holders of Shares in accordance with this Agreement shall, as of the
Effective Time, have been registered under the Securities Act pursuant
to a registration statement on Form F-6 declared effective by the SEC,
and the Parent Ordinary Shares underlying such Parent ADSs shall, as
of the Effective Time, have been registered under the Securities Act
pursuant to a registration statement on Form F-4 declared effective by
the SEC.
6
(c) EXCHANGE PROCEDURES. Upon surrender to the Exchange
Agent of a Certificate for cancellation, together with the letter of
transmittal referred to in SECTION 2.2(a) duly executed and completed
in accordance with its terms, the holder of such Certificate shall be
entitled to receive in exchange therefor (i) a certificate or
certificates representing one or more Parent ADRs representing, in the
aggregate, that whole number of Parent ADSs to be received in
accordance with SECTION 2.1(c), (ii) the amount of dividends or other
distributions, if any, with a record date on or after the Effective
Time which theretofore became payable with respect to such Parent ADSs
in accordance with SECTION 2.2(d), and (iii) the cash amount payable
in lieu of fractional Parent ADSs in accordance with SECTION 2.2(f),
in each case which such holder has the right to receive pursuant to
the provisions of this Article, and the Certificate so surrendered
shall forthwith be canceled. In no event shall the holder of any
Certificate be entitled to receive interest on any funds to be
received in the Merger. In the event of a transfer of ownership of
Shares which is not registered in the transfer records of the Company,
one or more Parent ADRs representing that whole number of Parent ADSs
to be received in accordance with SECTION 2.1(c), plus any dividends
or other distributions to which the transferor would otherwise be
entitled pursuant to SECTION 2.2(d), plus the cash amount payable in
lieu of fractional Parent ADSs in accordance with SECTION 2.2(f), may
be issued to a transferee if the Certificate representing such 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. Until surrendered as
contemplated by this Section, and subject to SECTION 2.2(d), each
Certificate shall, after the Effective Time, represent for all
purposes only the right to receive the whole number of Parent ADSs
into which the number of Shares shown thereon have been converted as
contemplated by this Article plus the cash amount payable in lieu of
fractional Parent ADSs in accordance with SECTION 2.2(f).
(d) DISTRIBUTIONS WITH RESPECT TO UNEXCHANGED SHARES. No
dividends or other distributions declared, made or paid after the
Effective Time with respect to Parent Ordinary Shares with a record
date on or after the Effective Time shall be paid to the holder of any
unsurrendered Certificate with respect to the Parent ADSs represented
thereby and no cash payment in lieu of fractional Parent ADSs shall be
paid to any such holder pursuant to SECTION 2.2(f) until the holder of
record of such Certificate shall surrender such Certificate in
accordance with this SECTION 2.2. Subject to the effect of applicable
laws, following surrender of any such Certificate, there shall be paid
to the record holder of the Parent ADRs which represent Parent ADSs
issued in exchange therefor, without interest, (i) at the time of such
surrender, the amount of dividends or other distributions, if any,
with a record date on or after the Effective Time which theretofore
became payable, but which were not paid by reason of the immediately
preceding sentence, with respect to such Parent ADSs, and (ii) at the
appropriate payment date, the amount of dividends or other
distributions with a record date on or after the Effective Time but
7
prior to surrender and a payment date subsequent to surrender payable
with respect to such Parent ADSs. Dividends or other distributions
with a record date on or after the Effective Time but prior to
surrender of Certificates by holders thereof payable in respect of
Parent ADSs held by the Exchange Agent shall be held in trust for the
benefit of such holders of Certificates.
(e) NO FURTHER OWNERSHIP RIGHTS IN SHARES. All Parent ADRs
(and the Parent ADSs represented by such Parent ADRs) issued upon the
surrender for exchange of Certificates in accordance with the terms
hereof (including any cash paid pursuant to SECTION 2.2(f)) shall be
deemed to have been issued at the Effective Time in full satisfaction
of all rights pertaining to the Shares represented thereby, subject,
however, to the Surviving Corporation's obligation to pay any
dividends which may have been declared by the Company on the Shares in
accordance with the terms of this Agreement and which remained unpaid
at the Effective Time. From and after the Effective Time, the stock
transfer books of the Company shall be closed and there shall be no
further registration of transfers thereon of the Shares which were
outstanding immediately prior to the Effective Time. If, after the
Effective Time, Certificates are presented to the Surviving
Corporation for any reason, they shall be canceled and exchanged as
provided in this Section.
(f) NO FRACTIONAL SHARES. No certificate or scrip
representing fractional Parent ADSs will be issued in the Merger upon
the surrender for exchange of Certificates, and such fractional Parent
ADS interests will not entitle the owner thereof to vote or to any
rights of a holder of Parent ADSs. In lieu of any such fractional
Parent ADS, each holder of Certificates who would otherwise have been
entitled to a fraction of a Parent ADS in exchange for such
Certificates (after taking into account all Certificates delivered by
such holder) pursuant to this Section shall receive from the Exchange
Agent a cash payment in lieu of such fractional Parent ADS, determined
by multiplying (A) $1.75 by (B) the number of underlying Parent
Ordinary Shares represented by the fractional Parent ADS interest to
which such holder would otherwise be entitled.
(g) TERMINATION OF EXCHANGE FUND. Any portion of the
Exchange Fund which remains undistributed to the shareholders of the
Company for one (1) year after the Effective Time shall be delivered
to or as directed by Parent, upon demand, and any holders of
Certificates who have not theretofore complied with this ARTICLE II
shall thereafter look only to Parent (subject to abandoned property,
escheat and other similar laws) as a general creditor for payment of
their claim for Parent ADSs, any cash in lieu of fractional Parent
ADSs and any dividends or distributions with respect to Parent ADSs.
Any amounts remaining unclaimed by any holder of Certificates formerly
representing Shares immediately prior to such time when such amounts
would otherwise escheat to or become the property of any Governmental
Entity (as hereinafter defined), shall, to the extent permitted by
applicable laws, become the property of Parent, free and clear of all
8
claims or interests of any Person previously entitled thereto.
Neither Parent, the Surviving Corporation nor the Exchange Agent shall
be liable to any holder of Certificates formerly representing Shares
with respect to any Parent ADRs (or dividends or distributions with
respect thereto), or cash payable in respect of fractional Parent
ADSs, delivered to a public official pursuant to any applicable
abandoned property, escheat or similar law, rule, regulation or Order.
(h) LOST, STOLEN OR DESTROYED 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 Parent in its
discretion and as a condition precedent to the issuance thereof, the
posting by such person of a bond in such reasonable amount as Parent
may direct as indemnity against any claim that may be made against
Parent, the Surviving Corporation or the Exchange Agent with respect
to such Certificate, the Exchange Agent will deliver in exchange for
such lost, stolen or destroyed Certificate the applicable Merger
Consideration with respect to the Shares formerly represented thereby,
any cash in lieu of fractional Parent ADSs, and unpaid dividends and
distributions in respect of or on Parent ADSs deliverable in respect
thereof, pursuant to this Agreement.
(i) WITHHOLDING RIGHTS. Each of the Surviving Corporation
and Parent shall be entitled to deduct and withhold from the Merger
Consideration (and any dividends or distributions thereon) otherwise
payable hereunder to any Person such amounts as it is required to
deduct and withhold with respect to the making of such payment under
any provision of federal, state, local or foreign income or other tax
law.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Except (i) as set forth in the Company Disclosure Schedule
attached hereto as SCHEDULE A, or (ii) as otherwise reported,
disclosed or referenced in the Company SEC Documents (including the
exhibits thereto) or the 2001 10-K Draft, in each case, where as to
the relevant statement, such report, disclosure or reference does not
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, the Company Financial Statements or
the financial statements included in the 2001 10-K Draft, in light of
the circumstances under which they were made, not misleading, the
Company represents and warrants to Parent and Merger Sub that all of
the statements contained in this ARTICLE III are true and correct as
of the date of this Agreement (or, if made as of a specified date, as
of such date). Each exception set forth in the Company Disclosure
Schedule is identified by reference to a specific section of this
Agreement and, except as otherwise specifically stated with respect to
such exception, relates only to such section.
9
Section 3.1 ORGANIZATION; QUALIFICATION; CHARTER DOCUMENTS.
(a) The Company (i) is a corporation duly organized, validly existing
and in good standing under the laws of its state of incorporation;
(ii) has full corporate power and authority to carry on its business
as it is now being conducted and to own, lease and operate the
properties and assets it now owns, leases or operates or purports to
own, lease or operate; and (iii) is duly qualified or licensed to do
business as a foreign corporation in good standing in every
jurisdiction in which ownership of property or the conduct of its
business requires such qualification, except where the failure to have
such power and authority or to be so qualified, licensed or in good
standing could not reasonably be expected to, individually or in the
aggregate, have a Company Material Adverse Effect.
(b) The Company has heretofore delivered to Parent complete
and correct copies of the Charter Documents of the Company and each
Company Subsidiary as amended to date. All such Charter Documents are
in full force and effect, and neither the Company nor any Company
Subsidiary is in violation of any provision of its respective Charter
Documents except for breaches which would not materially restrict the
ability of Company to consummate the Merger or could not reasonably be
expected to have a Company Material Adverse Effect.
Section 3.2 SUBSIDIARIES AND AFFILIATES. The Company
Disclosure Schedule sets forth the name and jurisdiction of
incorporation of each Company Subsidiary and the jurisdictions in
which each such Company Subsidiary is qualified to do business. The
Company does not own, directly or indirectly, any capital stock or
other equity or similar interest in, or any interest convertible into
or exchangeable or exercisable for any equity or similar interest in,
any corporation or have any direct or indirect equity or ownership
interest in any business other than publicly traded securities
constituting less than one percent of the outstanding equity of the
issuing entity. All the outstanding capital stock of each Company
Subsidiary is owned directly or indirectly by the Company, free and
clear of all pledges, claims, liens, charges, options, agreements,
limitations on voting rights, encumbrances or security interests of
any kind (collectively, "LIENS"), and is validly issued, fully paid
and non-assessable, and there are no outstanding options, rights or
agreements of any kind relating to the issuance, sale or transfer of
any capital stock or other equity securities of any such Company
Subsidiary to any Person except the Company. Each Company Subsidiary
(i) is a corporation duly organized, validly existing and in good
standing under the laws of its state of incorporation; (ii) has full
corporate power and authority to carry on its business as it is now
being conducted and to own the properties and assets it now owns; and
(iii) is duly qualified or licensed to do business as a foreign
corporation in good standing in every jurisdiction in which ownership
of property or the conduct of its business requires such
qualification, except where the failure to have such power and
authority or to be so qualified, licensed or in good standing could
10
not reasonably be expected to, individually or in the aggregate, have
a Company Material Adverse Effect.
Section 3.3 CAPITALIZATION. (a) The authorized capital stock
of the Company consists of 10,200,000 shares of common stock, no par
value per share, and 1,000,000 shares of preferred stock, no par value
per share. As of the date hereof, (i) 3,814,169 Shares are issued and
outstanding, (ii) no Shares are held in the treasury of the Company or
by any Subsidiary of the Company, (iii) no shares of preferred stock
are issued and outstanding, (iv) an aggregate of 943,200 Shares are
issuable upon exercise of outstanding Company Options, including,
without limitation, options under the Company's "Employee Stock Option
Plan," the "Outside Director Stock Option Plan," the "Employee Stock
Purchase Plan" and any Company Award (collectively, the "COMPANY STOCK
PLANS"), and (v) an aggregate of 1,146,000 shares (including the
943,200 shares referenced in clause (iv)) are reserved for issuance in
connection with the issuance of Shares under Company Stock Plans. All
the outstanding shares of the Company's capital stock are, and all
Shares which may be issued pursuant to the exercise of outstanding
Company Options will be, when issued in accordance with the respective
terms thereof, duly authorized, validly issued, fully paid and non-
assessable. There is no Voting Debt of the Company or any Company
Subsidiary issued and outstanding. Except as set forth above and
except for the Transactions, as of the date hereof, (i) there are no
shares of capital stock of the Company authorized, issued or
outstanding; (ii) there are no existing options, warrants, calls, pre-
emptive rights, subscriptions or other rights, agreements,
arrangements or commitments of any character, relating to the issued
or unissued capital stock of the Company or any Company Subsidiary,
obligating the Company or any Company Subsidiary to issue, transfer or
sell or cause to be issued, transferred or sold any shares of capital
stock or Voting Debt of, or other equity interest in, the Company or
any Company Subsidiary or securities convertible into or exchangeable
for such shares or equity interests, or obligating the Company or any
Company Subsidiary to grant, extend or enter into any such option,
warrant, call, subscription or other right, agreement, arrangement or
commitment and (iii) there are no outstanding obligations (contingent
or otherwise) of the Company or any Company Subsidiary to repurchase,
redeem or otherwise acquire any Shares, or the capital stock of the
Company, or any Company Subsidiary or Affiliate of the Company. Since
March 31, 2001, the Company has not issued or repriced any Company
Options under any Company Stock Plan.
(b) Except as expressly contemplated by this Agreement,
there are no voting trusts or other agreements or understandings to
which the Company or any Company Subsidiary is a party with respect to
the voting of the capital stock of the Company or any of the
Subsidiaries.
Section 3.4 AUTHORIZATION; VALIDITY OF AGREEMENT; COMPANY
ACTION. The Company has full corporate power and authority to execute
and deliver this Agreement, and, subject in the case of consummation
11
of the Merger to obtaining the Company Shareholder Approval, to
consummate the Transactions. The execution, delivery and performance
by the Company of this Agreement and the consummation by it of the
Transactions, have been duly and validly authorized by the Company
Board of Directors and, except for obtaining the Company Shareholder
Approval and the filing of merger documents as set forth herein, no
other corporate action on the part of the Company is necessary to
authorize the execution and delivery by the Company of this Agreement
or the consummation by it of the Transactions. This Agreement has
been duly executed and delivered by the Company and, assuming due and
valid authorization, execution and delivery thereof by Parent and
Merger Sub, this Agreement is a valid and binding obligation of the
Company enforceable against the Company in accordance with its terms,
subject to applicable bankruptcy, insolvency, moratorium and other
similar laws relating to creditors' rights and general principles of
equity.
Section 3.5 BOARD APPROVALS; TAKEOVER STATUTES. The Company
Board of Directors, at a meeting duly called and held, has (i)
unanimously determined that each of the Agreement and the Merger are
in the best interests of the Company and its shareholders, (ii)
adopted this Agreement, and approved the Merger and the other
Transactions, and (iii) resolved to recommend that the shareholders of
the Company approve this Agreement and the Merger, and none of the
aforesaid actions by the Company Board of Directors has been amended,
rescinded or modified. The Company Board of Directors has taken all
necessary action such that Chapters 7A and 7B of the MBCA, Article IX
of the Company's Articles of Incorporation, and Article II, Section 8
of the Company's Bylaws do not, and, unless the Agreement is
terminated, shall not in the future, to the extent within its control,
apply to this Agreement, the Merger or the other Transactions. To the
knowledge of the Company, no other state takeover statute is
applicable to the Merger or the other Transactions.
Section 3.6 VOTE REQUIRED. The affirmative vote of the
holders of a majority of the outstanding Shares is the only vote of
the holders of any class or series of the Company's capital stock
necessary to adopt this Agreement and approve the Merger and the other
Transactions.
Section 3.7 CONSENTS AND APPROVALS; NO VIOLATIONS. Except for
the filings, permits, authorizations, consents and approvals as may be
required under, and other applicable requirements of, the Exchange
Act, the HSR Act, Finnish corporation and securities law, Non-U.S.
Monopoly Laws, state securities or blue sky laws, the MBCA and the
DGCL, none of the execution, delivery or performance of this Agreement
by the Company or the consummation by the Company of the Transactions
will (i) conflict with or result in any breach of any provision of the
articles of incorporation, the bylaws or similar organizational
documents of the Company, (ii) require any filing with, or permit,
authorization, consent or approval of, any Governmental Entity, (iii)
result in a violation or breach of, or constitute (with or without due
12
notice or the passage of time or both) a default (or give rise to any
right of termination, amendment, cancellation or acceleration) under,
any of the terms, conditions or provisions of any Company Agreement,
or (iv) violate any Order, statute, rule or regulation applicable to
the Company, any Company Subsidiary or any of their properties or
assets, except, with respect to the foregoing clauses (ii), (iii) and
(iv), as could not reasonably be expected to, individually or in the
aggregate, have a Company Material Adverse Effect. There are no third
party consents or approvals required to be obtained under the Company
Agreements prior to the consummation of the Transactions, except where
the failure to obtain such consents or approvals could not reasonably
be expected to, individually or in the aggregate, have a Company
Material Adverse Effect.
Section 3.8 SEC REPORTS AND FINANCIAL STATEMENTS. The Company
has filed with the SEC true and complete copies of the Company SEC
Documents. As of their respective dates or, if amended, as of the
date of the last such amendment filed prior to the date hereof, the
Company SEC Documents, including, without limitation, any financial
statements or schedules included therein (a) did not 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 and (b) complied in all material
respects with the applicable requirements of the Exchange Act and the
Securities Act, as the case may be, and the applicable rules and
regulations of the SEC thereunder. None of the Company Subsidiaries
is required to file any forms, reports or other documents with the
SEC. The Company Financial Statements have been prepared from, and
are in accordance with, in each case, in all material respects, the
books and records of the Company and its consolidated Subsidiaries,
and comply as to form, as of their respective dates of filing with the
SEC, in all material respects with applicable accounting requirements
and with the published rules and regulations of the SEC with respect
thereto, have been prepared in accordance with U.S. GAAP (except, in
the case of unaudited financial statements, as permitted by Form 10-Q
of the SEC) applied on a consistent basis during the period involved
(except as may be stated in the notes thereto) and fairly present in
all material respects the consolidated financial position and the
consolidated results of operations and cash flows (and changes in
financial position, if any) of the Company and its consolidated
Subsidiaries as of the times and for the periods referred to therein,
subject, with respect to interim unaudited financial statements, to
normal and recurring year-end adjustments that are not reasonably
likely to be material in amount.
Section 3.9 NO UNDISCLOSED LIABILITIES. Except (a) as
disclosed in the Company Financial Statements and (b) for liabilities
and obligations (i) incurred in the ordinary course of business and
consistent with past practice since the Balance Sheet Date pursuant to
the terms of this Agreement, or (ii) incurred pursuant to, or in
furtherance of, this Agreement or the Transactions, neither the
13
Company nor any Company Subsidiary has any liabilities or obligations
of any nature, whether or not accrued, contingent or otherwise, which
could reasonably be expected to have, individually or in the
aggregate, a Company Material Adverse Effect.
Section 3.10 ABSENCE OF CERTAIN CHANGES. Since the Balance
Sheet Date, except as disclosed in the Company SEC Documents filed
prior to the date hereof, (i) the Company and each Company Subsidiary
has conducted its respective business only in the ordinary and usual
course, (ii) there have not occurred any events, changes, effects or
circumstances (including the incurrence of any liabilities of any
nature, whether or not accrued, contingent or otherwise) having or
which could reasonably be expected to have, individually or in the
aggregate, a Company Material Adverse Effect, and (iii) there has not
been (1) any declaration, setting aside or payment of any dividend or
other distribution (whether in cash, stock or property) with respect
to any of the Company's capital stock, (2) any split, combination or
reclassification of any of the Company's 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 shares of the Company's
capital stock, except for issuances of Company Common Stock upon the
exercise of Company Options awarded prior to the date hereof, (3) (A)
any granting by the Company or any of its Subsidiaries to any current
or former director, executive officer or other key employee of the
Company or its Subsidiaries of any increase in compensation, bonus or
other benefits, except for normal increases in the ordinary course of
business or as was required under any employment agreements identified
on the Company Disclosure Schedule in effect as of the date hereof,
(B) any granting by the Company or any of its Subsidiaries to any such
current or former director, executive officer or key employee of any
increase in severance or termination pay, except in the ordinary
course of business, or (C) any entry by the Company or any of its
Subsidiaries into, or any amendment of, any employment, deferred
compensation, consulting, severance, termination or indemnification
agreement with any such current or former director, executive officer
or key employee, other than in the ordinary course of business, (4)
except insofar as may have been disclosed in the Company SEC Documents
or required by a change in U.S. GAAP, any change in accounting
methods, principles or practices by the Company materially affecting
its assets, liabilities or business or (5) except insofar as may have
been disclosed in the Company SEC Documents, any tax election that
individually or in the aggregate would reasonably be expected to have
a Company Material Adverse Effect on the Company or any of its tax
attributes or any settlement or compromise of any material income tax
liability.
Section 3.11 LITIGATION. There is no action, suit or
proceeding by or before any court or governmental or other regulatory
or administrative agency or commission pending or, to the best
knowledge of the Company, threatened against or involving the Company
or any Company Subsidiary; or which questions or challenges the
validity of this Agreement or any action taken or to be taken by the
14
Company or any Company Subsidiary pursuant to this Agreement or in
connection with the Transactions; other than, in each case, those the
outcome of which, individually or in the aggregate, would not (i)
reasonably be expected to have a Company Material Adverse Effect, or
(ii) reasonably be expected to materially impair or delay the ability
of the Company to perform its obligations under the Agreement.
Section 3.12 EMPLOYEE BENEFIT PLANS. (a) As used herein,
"Plan" shall mean each incentive compensation, stock purchase, stock
option and other equity compensation plan, program, agreement or
arrangement; each severance or termination pay, medical, surgical,
hospitalization, life insurance and other "welfare" plan, fund or
program (within the meaning of Section 3(1) of ERISA); each
profit-sharing, stock bonus or other "pension" plan, fund or program
(within the meaning of Section 3(2) of ERISA); each employment,
termination or severance agreement; and each other employee benefit
plan, fund, program, agreement or arrangement, in each case, that is
sponsored, maintained or contributed to or required to be contributed
to by the Company or by any ERISA Affiliate, or to which the Company
or an ERISA Affiliate is party, for the benefit of any director,
employee or former employee of the Company or any Company Subsidiary.
(b) The Company has delivered or made available to the
Parent true, correct and complete copies of all documents relating to
the Plans, including but not limited to: (i) all Plan documents,
amendments and trust instruments; (ii) all insurance and annuity
contracts related to any Plans; (iii) COBRA notices and forms,
including election forms used to notify employees and their dependents
of their continuation coverage rights under the Company's group health
plans; (iv) the most recently filed Form 5500 annual reports prior to
July 13, 2000; and (v) actuarial reports, summary plan descriptions
and favorable determination letters for the Plans. Since the date
these documents were supplied to Parent, no Plan amendments have been
adopted, no changes to these documents have been made, and no
amendments or changes will be adopted or made prior to the Closing
Date in each case that could reasonably be expected to, individually
or in the aggregate, have a Company Material Adverse Effect.
(c) All of the Plans subject to ERISA comply in all
material respects and have been administered in compliance in all
material respects with (i) the provisions of ERISA, (ii) all
provisions of the Code, applicable to secure the intended tax
consequences, (iii) all applicable state and federal securities laws
and (iv) all other applicable laws, rules, regulations and collective
bargaining agreements, except where the failure to so comply or to be
so administered would not result in any Company Material Adverse
Effect. The Company has not received any written notice from any
Governmental Entity questioning or challenging such compliance that
could reasonably be expected to, individually or in the aggregate,
have a Company Material Adverse Effect.
15
(d) Neither the Company nor its ERISA Affiliates has
engaged in any transaction or acted or failed to act in any manner
that could subject the Company to any direct or indirect liability (by
indemnity or otherwise) for a breach of any fiduciary or co-fiduciary
duty under ERISA, or liability for a prohibited transaction (within
the meaning of ERISA Section 406 or Code Section 4975) that could
reasonably be expected to, individually or in the aggregate, have a
Company Material Adverse Effect.
(e) No Plan is subject to Title IV of ERISA, and neither
the Company nor any of its ERISA Affiliates has incurred any liability
under Title IV of ERISA arising in connection with the termination of
any plan covered or previously covered by Title IV of ERISA that could
become, after the Closing Date, an obligation of the Company or any of
its ERISA Affiliates, in each case, that could reasonably be expected
to, individually or in the aggregate, have a Company Material Adverse
Effect.
(f) Neither the Company nor any of its ERISA Affiliates has
ever established, maintained, contributed to or otherwise participated
in, or had an obligation to maintain, contribute to, or otherwise
participate in, any multi-employer plan within the meaning of ERISA
Section 4001(a)(3).
(g) To the Company's knowledge, none of the Plans provides
welfare benefits, including, without limitation, death or medical
benefits (whether or not insured), with respect to current or former
employees beyond their retirement or other termination of service
(other than coverage required by COBRA or any similar state law).
(h) Except as described in the Company Disclosure Schedule,
there are no insurance reserves, trusts or escrow accounts that have
been established to provide for payments under welfare plans within
the meaning of Section 3(1) of ERISA.
(i) Each Plan which is intended to be qualified under Code
Section 401(a) ("Qualified Retirement Plan") has received from the
Internal Revenue Service a favorable determination letter to the
effect that the plan in form satisfies the requirements for
qualification under Code Section 401(a) (taking into account the
provisions of the Tax Reform Act of 1986). To the Company's
knowledge, no event has occurred or circumstances exist that will or
could give rise to disqualification of a Qualified Retirement Plan and
no amendment to any Qualified Retirement Plan made since applying for
such determination letter could cause a disqualification of such Plan.
(j) The Company has the right pursuant to the terms of each
Plan that is a welfare plan within the meaning of Section 3(1) of
ERISA and all agreements related to such Plan unilaterally to
terminate such Plan (or its participation in such Plan) or to amend
the terms of such Plan at any time.
16
(k) Except as set forth in EXHIBIT 6.1(d)(iii), the
transactions contemplated by this Agreement will not result in any
additional payments to or benefit accruals for, or any increase in the
vested interest of, any current or former officer, employee or
director or their dependents under any Plan. The Company is not
obligated to reimburse or increase the compensation of or payments to
any current or former officer, employee or director of the Company in
order to make such person whole for any excise tax such person may pay
under Section 4999 of the Code due to an excess parachute payment
under Section 280G of the Code.
(l) Except as expressly provided in this Agreement, there
is no pending or, to the knowledge of the Company, threatened
complaint, claim (other than a routine claim for benefits),
proceeding, audit, or investigation of any kind in or before any
Governmental Entity with respect to any Plan that could reasonably be
expected to result in a Company Material Adverse Effect.
(m) Except as set forth in SECTION 3.13 of the Company
Disclosure Schedule or EXHIBIT 1.6(d)(iii), the Company has made no
changes to any Plan since June 30, 2000 resulting in any increase in
benefits under any Plan, other than increases in employee cash
salaries in the ordinary course of business; PROVIDED THAT, in the
case of each employee, any such increase has not exceeded 10% of such
employee's cash salary payable during the twelve month period ended
June 30, 2000, nor has the Company granted any Company Options to any
Person at less than 100% of fair market value since June 30, 2000.
Section 3.13 TAX MATTERS; GOVERNMENT BENEFITS. The Company and
each of its Subsidiaries has filed all Tax Returns that are required
to be filed by the Company and its Subsidiaries, and all such Tax
Returns are complete and correct in all material respects, or requests
for extensions to file such returns or reports have been timely filed,
granted and have not expired, except to the extent that such failure
to file, to be complete or correct or to have extensions granted that
remain in effect individually or in the aggregate would not reasonably
be expected to have a Company Material Adverse Effect. The Company
and each of its Subsidiaries have duly paid or caused to be duly paid
in full or made provision in accordance with U.S. GAAP (or there has
been paid or provision has been made on their behalf) for the payment
of all Taxes (as hereinafter defined) shown as due on such Tax
Returns. The most recent financial statements contained in the
Company SEC Documents reflect an adequate reserve for all Taxes
payable by the Company and the Company Subsidiaries for all taxable
periods and portions thereof accrued through the date of such
financial statements.
(a) No notification has been received by the Company or by
any Company Subsidiary that an audit, examination or other proceeding
is pending or, to the Company's knowledge, threatened with respect to
any Taxes due from or with respect to or attributable to the Company
or any Company Subsidiary or any Tax Return filed by or with respect
17
to the Company or any Company Subsidiary, except for those that would
not reasonably be expected to have a Company Material Adverse Effect.
(b) Neither the Company nor any of its Subsidiaries has
taken any action or knows of any fact, agreement, plan or other
circumstance that is reasonably likely to prevent the Merger from
qualifying as a reorganization within the meaning of Section 368(a) of
the Code.
(c) None of the Company or any Company Subsidiary has been
a member of any affiliated group within the meaning of Section 1504(a)
of the Code, or any similar affiliated or consolidated group for tax
purposes under state, local or foreign law (other than a group, the
common parent of which is the Company), or has any liability for Taxes
of any person (other than the Company and its Subsidiaries) under
Treasury Regulation Section 1.1502-6 or any similar provision of
state, local or foreign law as a transferee or successor, by contract
or otherwise.
Section 3.14 TITLE TO PROPERTIES; ENCUMBRANCES. Except as set
forth in the 2001 Form 10-K Draft, each of the Company and the Company
Subsidiaries has good and valid title to, or has valid leasehold
interests in or valid rights under contract to use, all the tangible
properties and assets which it purports to own or use, including all
the tangible properties and assets reflected in the Balance Sheet
(except for properties and assets disposed of since the date of the
Balance Sheet in the ordinary course of business consistent with past
practice), in each case, free and clear of all title defects or
objections, liens, claims, charges, security interests or other
encumbrances of any nature whatsoever except, with respect to all such
properties and assets, for (a) liens shown on the Balance Sheet as
securing specified liabilities or obligations and liens incurred in
connection with the purchase of property and/or assets, if such
purchase was effected after the date of the Balance Sheet, with
respect to which no default exists; (b) minor imperfections of title,
if any, none of which are substantial in amount, detract from the
value or impair the use of the property subject thereto, or impair the
operations of the Company or any Company Subsidiary and which have
arisen only in the ordinary course of business and consistent with
past practice since the date of the Balance Sheet; (c) liens for
current taxes not yet due; and (d) such title defects, failure to have
valid leasehold interest in, or objections, liens, claims, charges,
security interests or other encumbrances of any nature whatsoever, if
any, as individually or in the aggregate could not reasonably be
expected to have a Company Material Adverse Effect.
Section 3.15 ENVIRONMENTAL LAWS. Except as disclosed in the
Company SEC Documents (a) the Company and each Company Subsidiary is
in compliance with all Environmental Laws, including compliance with
any permits or other governmental authorizations or the terms and
conditions thereof, except in the case of the matters covered by this
sentence where the failure to be in compliance with such laws could
18
not, individually or in the aggregate, reasonably be expected to have
a Company Material Adverse Effect; (b) in the past five (5) years,
neither the Company nor any Company Subsidiary has received any
communication or notice, whether from a governmental authority or
otherwise, alleging any violation of or noncompliance with any
Environmental Laws by the Company or any Company Subsidiary or for
which any of them is responsible, and there is no pending or, to the
Company's knowledge, threatened Environmental Claim, except where such
communication, notice or Environmental Claim could not reasonably be
expected to, individually or in the aggregate, have a Company Material
Adverse Effect; and (c) to the Company's knowledge, there are no past
or present facts or circumstances that could form the basis of any
Environmental Claim against the Company or any Company Subsidiary or
against any person or entity whose liability for any Environmental
Claim the Company or any Company Subsidiary has retained or assumed
either contractually or by operation of law, except where such
Environmental Claim, if made, could not reasonably be expected to,
individually or in the aggregate, have a Company Material Adverse
Effect.
Section 3.16 INTELLECTUAL PROPERTY. Except as could not,
individually or in the aggregate, reasonably be expected to have a
Company Material Adverse Effect, (i) either the Company or a Company
Subsidiary owns, or is licensed or otherwise possesses legally
enforceable rights to use the Company Intellectual Property, (ii) to
the Company's knowledge, the conduct of the business of the Company
and the Company Subsidiaries with the Company Intellectual Property
does not infringe any Intellectual Property rights or any other
proprietary right of any Person, and neither the Company nor any
Company Subsidiary has received any written notice from any other
Person pertaining to or challenging the right of the Company or any
Company Subsidiary to use any of the Company Intellectual Property,
and (iii) neither the Company nor any Company Subsidiary has made any
claim of a violation or infringement by others of its rights to or in
connection with the Company Intellectual Property which is still
pending.
Section 3.17 COMPLIANCE WITH LAWS. The Company and its
Subsidiaries are in compliance with each applicable law, rule or
regulation of any United States federal, state, local, or foreign
government or agency thereof which affects the business, properties or
assets of the Company and its Subsidiaries, and no notice, charge,
claim, action or assertion has been received by the Company or any
Company Subsidiary or has been filed, commenced or, to the Company's
knowledge, threatened against the Company or any Company Subsidiary
alleging any such violation, except for any matter otherwise covered
by this sentence which could not reasonably be expected to,
individually or in the aggregate, have a Company Material Adverse
Effect. All licenses, permits and approvals required under such laws,
rules and regulations are in full force and effect, and the Company is
in compliance with the terms thereof, except where the failure to be
in full force and effect or to be in such compliance could not
19
reasonably be expected to, individually or in the aggregate, have a
Company Material Adverse Effect.
Section 3.18 LABOR DIFFICULTIES. (a) There is no unfair labor
practice complaint against the Company or any Company Subsidiary
pending before the National Labor Relations Board, except for any
occurrence that individually or in the aggregate could not reasonably
be expected to have a Company Material Adverse Effect; (b) there is no
labor strike, dispute, slowdown or stoppage actually pending or, to
the knowledge of the Company, threatened against or affecting the
Company or any Company Subsidiary, except where such strike, dispute,
slowdown or stoppage could not reasonably be expected to have a
Company Material Adverse Effect; (c) to the Company's knowledge, there
is no organizational effort presently being made or threatened by or
on behalf of any labor union with respect to employees of the Company
and its Subsidiaries; and (d) no grievance which might have,
individually or in the aggregate, a Company Material Adverse Effect,
arising out of or under collective bargaining agreements is pending.
Section 3.19 INFORMATION TO BE SUPPLIED. None of the
information to be supplied by the Company specifically for inclusion
or incorporation by reference (i) in the registration statement on
Form F-4 (the "F-4")or on Form F-6 to be filed with the SEC by Parent
in connection with the issuance of Parent ADSs in the Merger (the
"REGISTRATION STATEMENT") will, at the time the Registration Statement
becomes effective under the Securities Act, 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, (ii) in any filing by Parent or Merger Sub
with the Finnish Financial Supervision or the HSE in respect of the
Merger (including, without limitation, any listing particulars under
the Securities Market Act of 1989, as amended (the "MARKET ACT"),
Chapter 2, Section 3 relating to Parent Ordinary Shares (the "LISTING
PARTICULARS") and any shareholder circular to be distributed to the
shareholders of Parent) (together with any amendments or supplements
thereto, the "PARENT DISCLOSURE DOCUMENTS"), or (iii) in the Proxy
Statement will, at the date it is first mailed to the Company's
shareholders or at the time of the Company Shareholder 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 Proxy Statement will comply as to
form in all material respects with the requirements of the Exchange
Act and the rules and regulations hereunder and all applicable state
laws, except that no representation or warranty is made by the Company
with respect to statements made or incorporated by reference therein
based on information supplied by Parent specifically for inclusion or
incorporation by reference in the Proxy Statement.
Section 3.20 OPINION OF FINANCIAL ADVISOR. The Company has
received the opinion of its investment advisor, Pacific Crest
Securities Inc., dated May 24, 2001, to the effect that, as of such
20
date, the Exchange Ratio is fair to the Company's shareholders from a
financial point of view. A copy of such opinion will be provided to
the Parent promptly after the execution of this Agreement.
Section 3.21 BROKERS OR FINDERS. No agent, broker, investment
banker, financial advisor or other firm or Person acting on behalf of
the Company is or will be entitled to any brokers' or finder's fee or
any other commission or similar fee in connection with any of the
Transactions except for Pacific-Crest Securities, Inc.
Section 3.22 COMPANY AGREEMENTS. Except as set forth in the
Company SEC Documents or as permitted pursuant to this Agreement,
neither the Company nor any of its Subsidiaries is a party to or bound
by (i) any agreement relating to the incurring of indebtedness
(including sale and leaseback and capitalized lease transactions and
other similar financing transactions) providing for payment or
repayment in excess of $500,000, (ii) any "material contract" (as such
term is defined in Item 601(b)(10) of Regulation S-K of the SEC) or
(iii) any non-competition agreement which purports to limit in any
material respect the manner in which, or the localities in which, all
or any portion of the business of the Company and its Subsidiaries,
taken as a whole, is or would be conducted (collectively, the "COMPANY
AGREEMENTS").
Section 3.23 INTERESTED PARTY TRANSACTIONS. To the Company's
knowledge, since February 9, 2001, no event has occurred that would be
required to be reported as a "Certain Relationship" or "Related
Transaction" pursuant to Item 404 of Regulation S-K promulgated by the
SEC.
Section 3.24 CERTAIN LIABILITIES AND AGREEMENT. The Company's
maximum liability, whether as a shareholder (quotaholder), guarantor,
partner, contractor or otherwise, with respect to current commitments
relating to its Brazilian operations are not expected to exceed ,
between the date hereof and December 31, 2001, $3,000,000 in the
aggregate without regard to any amounts that the Company is permitted
to expend pursuant to SECTION 5.1(b)(iv)(B).
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PARENT AND PURCHASER
Except (i) as set forth in the Parent Disclosure Schedule
attached hereto as SCHEDULE B, or (ii) as otherwise reported,
disclosed or referenced in the Parent Disclosure Documents (including
the exhibits thereto), whereas to such the relevant statement, report,
disclosure or reference does not 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
light of the circumstances under which they were made, not misleading,
Parent represents and warrants to the Company that all of the
statements contained in this ARTICLE IV are true and correct as of the
date of this Agreement (or, if made as of a specified date, as of such
21
date). Each exception set forth in the Parent Disclosure Schedule is
identified by reference to a specific section of this Agreement and,
except as otherwise specifically stated with respect to such
exception, relates only to such section. Parent acknowledges that the
Parent Disclosure Documents do not include the Form F-4 Registration
Statement dated February 9, 2001, as filed with the SEC.
Section 4.1 ORGANIZATION; QUALIFICATION; CHARTER DOCUMENTS.
(a) Each of Parent and Merger Sub (i) is a corporation duly organized,
validly existing and in good standing under the laws of its
jurisdiction of incorporation; (ii) has full corporate power and
authority to carry on its business as it is now being conducted and to
own, lease and operate the properties and assets it now owns, leases
or operates or purports to own, lease or operate; and (iii) is duly
qualified or licensed to do business as a foreign corporation in good
standing in every jurisdiction in which ownership of property or the
conduct of its business requires such qualification, except where the
failure to have such power and authority or to be so qualified,
licensed or in good standing could not reasonably be expected to,
individually or in the aggregate, have a Parent Material Adverse
Effect.
(b) Parent has heretofore delivered or made available to
the Company complete and correct copies of the Charter Documents of
Parent and each Parent Subsidiary, as amended to date. All such
Charter Documents are in full force and effect, and neither Parent nor
any Parent Subsidiary is in violation of any provision of its
respective Charter Documents except for breaches which would not
materially restrict the ability of Parent to consummate the Merger or
could not reasonably be expected to have a Parent Material Adverse
Effect.
Section 4.2 SUBSIDIARIES AND AFFILIATES. The Parent
Disclosure Schedule sets forth the name and jurisdiction of
incorporation of each Parent Subsidiary and the jurisdictions in which
each Parent Subsidiary is qualified to do business. The Parent does
not own, directly or indirectly, any capital stock or other equity or
similar interest in, or any interest convertible into or exchangeable
or exercisable for any equity or similar interest in, any corporation
or have any direct or indirect equity or ownership interest in any
business other than publicly traded securities constituting less than
one percent of the outstanding equity of the issuing entity. All the
outstanding capital stock of each Parent Subsidiary is owned directly
or indirectly by the Parent free and clear of all Liens, and is
validly issued, fully paid and non-assessable, and there are no
outstanding options, rights or agreements of any kind relating to the
issuance, sale or transfer of any capital stock or other equity
securities of any such Parent Subsidiary to any person except the
Parent. Each Parent Subsidiary (i) is a corporation duly organized,
validly existing and in good standing under the laws of its
jurisdiction of incorporation; (ii) has full corporate power and
authority to carry on its business as it is now being conducted and to
22
own the properties and assets it now owns; and (iii) is duly qualified
or licensed to do business as a foreign corporation in good standing
in every jurisdiction in which ownership of property or the conduct of
its business requires such qualification, except where the failure to
have such power and authority or to be so qualified, licensed or in
good standing could not reasonably be expected to, individually or in
the aggregate, have a Parent Material Adverse Effect.
Section 4.3 CAPITALIZATION. (a) The authorized capital stock
of the Parent consists of 160,000,000 Parent Ordinary Shares and
25,000,000 Series K Shares. As of the date hereof, (i) 39,200,000
Parent Ordinary Shares are issued and outstanding, (ii) no Parent
Ordinary Shares are held in the treasury of the Parent or held by any
Subsidiary of Parent, (iii) 7,200,000 Series K Shares are issued and
outstanding, (iv) 1,200,000 Parent Ordinary Shares are issuable under
the Parent's 1999 Warrant Plan, and (v) 1,000,000 Parent Ordinary
Shares are issuable under the 2001 Warrant Plan (the "2001 WARRANT
PLAN") approved at Parent's 2001 Annual General Meeting. The maximum
aggregate number of shares that may be outstanding at any one time
under the ▇▇▇▇ ▇▇▇▇▇▇▇ Plan and the 2001 Warrant Plan is 1,500,000.
Immediately after the Effective Time as contemplated by the Conversion
Agreement, no Series K Shares will be outstanding. All the
outstanding shares of the Parent's capital stock are, and all Parent
Ordinary Shares which may be issued pursuant to the exercise of
outstanding Parent Options or upon conversion of Series K Shares into
Parent Ordinary Shares will be, when issued in accordance with the
respective terms thereof, duly authorized, validly issued, fully paid
and non-assessable and, except as set forth on the Parent Disclosure
Schedule, are free of any pre-emptive or other similar rights. There
is no Voting Debt of the Parent or any Parent Subsidiary issued and
outstanding. Except as set forth above and except for the
Transactions, as of the date hereof, (i) there are no shares of
capital stock of the Parent authorized, issued or outstanding; (ii)
except for warrants issued under the 1999 Warrant Plan, securities
issuable under the 2001 Warrant Plan, or as expressly contemplated by
this Agreement, there are no existing options, warrants, calls,
preemptive rights, subscriptions or other rights, agreements,
arrangements or commitments of any character, relating to the issued
or unissued capital stock of the Parent or any Parent Subsidiary,
obligating the Parent or any Parent Subsidiary to issue, transfer or
sell or cause to be issued, transferred or sold any shares of capital
stock or Voting Debt of, or other equity interest in, the Parent or
any Parent Subsidiary or securities convertible into or exchangeable
for such shares or equity interests, or obligating the Parent or any
Parent Subsidiary to grant, extend or enter into any such option,
warrant, call, subscription or other right, agreement, arrangement or
commitment and (iii) there are no outstanding obligations (contingent
or otherwise) of the Parent or any Parent Subsidiary to repurchase,
redeem or otherwise acquire any Parent Ordinary Shares, the Series K
Shares, or the other capital stock of the Parent, or any Parent
Subsidiary or Affiliate of the Parent.
23
(b) Except as expressly contemplated by this Agreement,
there are no voting trusts or other agreements or understandings to
which the Parent or any Parent Subsidiary is a party with respect to
the voting of the capital stock of the Parent or any of the Parent
Subsidiaries.
(c) The Parent Ordinary Shares underlying the Parent ADSs
to be issued as part of the Merger Consideration, when issued and
delivered in accordance with the terms of this Agreement, will have
been duly authorized, validly issued, fully paid and non-assessable
and will be free of any preemptive or other similar rights, except as
set forth on the Parent Disclosure Schedule.
Section 4.4 AUTHORIZATION; VALIDITY OF AGREEMENT; NECESSARY
ACTION. Each of Parent and Merger Sub has full corporate power and
authority to execute and deliver this Agreement and, with respect to
Parent, subject in the case of consummation of the Merger to obtaining
the Parent Shareholder Approval, to consummate the Transactions. The
execution, delivery and performance by Parent and Merger Sub of this
Agreement and the consummation of the Merger and the Transactions have
been duly and validly authorized by the Boards of Directors of Parent
and Merger Sub, and by Parent as the sole shareholder of Merger Sub,
and no other corporate action on the part of Parent and Merger Sub is
necessary to authorize the execution and delivery by Parent and Merger
Sub of this Agreement or, except with respect to Parent for obtaining
the Parent Shareholder Approval and the filing of merger documents as
set forth herein, the consummation of the Transactions. This
Agreement has been duly executed and delivered by Parent and Merger
Sub, and, assuming due and valid authorization, execution and delivery
hereof by the Company, is a valid and binding obligation of each of
Parent and Merger Sub, enforceable against each of them in accordance
with its terms, subject to applicable bankruptcy, insolvency,
moratorium and other similar laws relating to creditors' rights and
general principles of equity.
Section 4.5 BOARD APPROVALS; TAKEOVER STATUTES. The Parent
Board of Directors, at a meeting duly called and held, has (i)
unanimously determined that each of the Agreement and the Merger are
in the best interests of the Parent and its shareholders, (ii) adopted
this Agreement and approved the Merger and the other Transactions, and
(iii) resolved to recommend that the shareholders of the Parent
approve this Agreement and the Merger, and none of the aforesaid
actions by the Parent Board of Directors has been amended, rescinded
or modified. To the knowledge of Parent, no Finnish takeover statute
is applicable to the Merger or the other Transactions.
Section 4.6 VOTE REQUIRED. The affirmative vote of the
holders of two-thirds of the Parent Ordinary Shares and the Series K
Shares, voting as a single class, represented at a meeting of
shareholders of Parent is the only vote of the holders of any class or
series of the Parent's capital stock necessary to adopt this Agreement
and approve the Merger and the other Transactions.
24
Section 4.7 CONSENTS AND APPROVALS; NO VIOLATIONS. Except for
the filings, permits, authorizations, consents and approvals as may be
required under, and other applicable requirements of, the Exchange
Act, the HSR Act, Non-U.S. Monopoly Laws, Finnish corporation law, the
Finnish Companies Act and Finnish and other securities law, the MBCA
and the DGCL, none of the execution, delivery or performance of this
Agreement by Parent or Merger Sub or the consummation by Parent or
Merger Sub of the Transactions will (i) conflict with or result in any
breach of any provision of the respective articles of association or
bylaws or similar organizational documents of Parent or Merger Sub,
(ii) require any filing with, or permit, authorization, consent or
approval of, any Governmental Entity, (iii) result in a violation or
breach of, or constitute (with or without due notice or lapse of time
or both) a default (or give rise to any right of termination,
cancellation or acceleration) under, any of the terms, conditions or
provisions of any note, bond, mortgage, indenture, lease, license,
contract, agreement or other instrument or obligation to which Parent,
or any of its Subsidiaries or Merger Sub is a party or by which any of
them or any of their respective properties or assets may be bound, or
(iv) violate any Order, statute, rule or regulation applicable to
Parent, any of its Subsidiaries or any of their properties or assets,
except, with respect to the foregoing clauses (ii), (iii) and (iv), as
could not reasonably be expected to, individually or in the aggregate,
have a Parent Material Adverse Effect. There are no third party
consents or approvals required to be obtained under the Parent
Agreements prior to the consummation of the Transactions, except where
the failure to obtain such consents or approvals could not reasonably
be expected to, individually or in the aggregate, have a Parent
Material Adverse Effect.
Section 4.8 PARENT PUBLIC REPORTS AND FINANCIAL STATEMENTS.
The Parent has filed, and has heretofore made available to the
Company, true and complete copies of, all reports, filings,
registration statements and other documents required to be filed by it
with the HSE, the Finnish Trade Registry, the Finnish Financial
Supervision and the Decision of the Ministry of Finance since March
23, 1999. As of their respective dates or, if amended, as of the date
of the last such amendment filed prior to the date hereof, the Parent
Public Reports, including, without limitation, any financial
statements or schedules included therein (a) did not 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 and (b) complied as to form in all
material respects with the applicable requirements of the Finnish
Companies Act and the Market Act, as the case may be, and the
applicable rules and regulations of the HSE and the Finnish Trade
Registry. None of the Parent Subsidiaries is required to file any
forms, reports or other documents with the Finnish Trade Registry or
the Finnish Financial Supervision or under the Market Act or the
Finnish Companies Act. The Parent Financial Statements have been
prepared from, and are in accordance with, the books and records of
25
the Parent and its consolidated Subsidiaries, comply in all material
respects with applicable accounting requirements and with the
published rules and regulations of the HSE, the Market Act and the
Finnish Companies Act with respect thereto, have been prepared in
accordance with Finnish GAAP applied on a consistent basis during the
period involved (except as may be stated in the notes thereto) and
fairly present in all material respects the consolidated financial
position and the consolidated results of operations and cash flows
(and changes in financial position, if any) of the Parent and its
consolidated Subsidiaries as of the times and for the periods referred
to therein.
Section 4.9 NO UNDISCLOSED LIABILITIES. Except (a) as
disclosed in the Parent Financial Statements, (b) for liabilities and
obligations incurred in the ordinary course of business and consistent
with past practice since the Parent Balance Sheet Date pursuant to the
terms of this Agreement, or (c) incurred pursuant to, or in
furtherance of, this Agreement or the Transactions, neither the Parent
nor any Parent Subsidiary has any liabilities or obligations of any
nature, whether or not accrued, contingent or otherwise, which could
reasonably be expected to, individually or in the aggregate, have a
Parent Material Adverse Effect.
Section 4.10 ABSENCE OF CERTAIN CHANGES. Since the Parent
Balance Sheet Date, except as disclosed in the Parent Public Reports
filed prior to the date hereof, (i) the Parent and each Parent
Subsidiary has conducted its respective business only in the ordinary
and usual course, (ii) there have not occurred any events, changes,
effects or circumstances (including the incurrence of any liabilities
of any nature, whether or not accrued, contingent or otherwise) having
or which could reasonably be expected to, individually or in the
aggregate, have a Parent Material Adverse Effect, and (iii) there has
not been (1) any declaration, setting aside or payment of any dividend
or other distribution (whether in cash, stock or property) with
respect to any of Parent's capital stock except as set forth on the
Parent Disclosure Schedule, (2) any split, combination or
reclassification of any of Parent's 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 shares of Parent's capital
stock, except for issuances of Parent Ordinary Shares upon the
exercise of Parent Options awarded prior to the date hereof, (3) (A)
any granting by Parent or any of its Subsidiaries to any current or
former director, executive officer or other key employee of Parent or
its Subsidiaries of any increase in compensation, bonus or other
benefits, except for normal increases in the ordinary course of
business or as was required under any employment agreements in effect
as of the date hereof, (B) any granting by Parent or any of its
Subsidiaries to any such current or former director, executive officer
or key employee of any increase in severance or termination pay,
except in the ordinary course of business, or (C) any entry by Parent
or any of its Subsidiaries into, or any amendment of, any employment,
deferred compensation, consulting, severance, termination or
26
indemnification agreement with any such current or former director,
executive officer or key employee, other than in the ordinary course
of business, (4) except insofar as may have been disclosed in Parent
Public Reports or required by a change in Finnish GAAP, any change in
accounting methods, principles or practices by Parent materially
affecting its assets, liabilities or business or (5) except insofar as
may have been disclosed in Parent Public Reports, any tax election
that, individually or in the aggregate, would reasonably be expected
to have a Parent Material Adverse Effect on Parent or any of its tax
attributes or any settlement or compromise of any income tax
liability.
Section 4.11 LITIGATION. There is no action, suit, or
proceeding by or before any court or governmental or other egulatory
or administrative agency or commission pending or, to the best
knowledge of the Parent, threatened against or involving the Parent or
any Parent Subsidiary, or which questions or challenges the validity
of this Agreement or any action taken or to be taken by the Parent or
any Parent Subsidiary pursuant to this Agreement or in connection with
the Transactions, other than, in each case, the outcome of which,
individually or in the aggregate, would not (i) reasonably be expected
to have a Parent Material Adverse Effect, or (ii) reasonably be
expected to materially impair or delay the ability of the Company to
perform its obligations under this Agreement.
Section 4.12 TAX MATTERS; GOVERNMENT BENEFITS. The Parent and
each of its Subsidiaries have filed all Tax Returns that are required
to be filed by the Parent and its Subsidiaries, and all such Tax
Returns are complete and correct in all material respects, or requests
for extensions to file such returns or reports have been timely filed,
granted and have not expired, except to the extent that such failure
to file, to be complete or correct or to have extensions granted that
remain in effect, individually or in the aggregate, would not
reasonably be expected to have a Parent Material Adverse Effect. The
Parent and each of its Subsidiaries have duly paid or caused to be
duly paid in full or made provision in accordance with Finnish GAAP
(or there has been paid or provision has been made on their behalf)
for the payment of all Taxes shown as due on such Tax Returns.
(a) No notification has been received by the Parent or by
any Parent Subsidiary that an audit, examination or other proceeding
is pending or, to the Parent's knowledge, threatened with respect to
any Taxes due from or with respect to or attributable to the Parent or
any Parent Subsidiary or any Tax Return filed by or with respect to
the Parent or any Parent Subsidiary where there is a reasonable
possibility of a materially adverse determination.
(b) Neither the Parent nor any of its Subsidiaries has
taken any action or knows of any fact, agreement, plan or other
circumstance that is reasonably likely to prevent the Merger from
qualifying as a reorganization within the meaning of Section 368(a) of
the Code.
27
Section 4.13 TITLE TO PROPERTIES; ENCUMBRANCES. Each of the
Parent and the Parent Subsidiaries has good and valid title to, or has
valid leasehold interests in or valid rights under contract to use,
all the tangible properties and assets which it purports to own or
use, including, without limitation, all the tangible properties and
assets reflected in the Parent Balance Sheet (except for properties
and assets disposed of since the date of the Parent Balance Sheet in
the ordinary course of business consistent with past practice), in
each case, free and clear of all title defects or objections, liens,
claims, charges, security interests or other encumbrances of any
nature whatsoever except, with respect to all such properties and
assets, for (a) liens shown on the Parent Balance Sheet as securing
specified liabilities or obligations and liens incurred in connection
with the purchase of property and/or assets, if such purchase was
effected after the date of the Parent Balance Sheet, with respect to
which no default exists; (b) minor imperfections of title, if any,
none of which are substantial in amount, materially detract from the
value or impair the use of the property subject thereto, or impair the
operations of the Parent or any Parent Subsidiary and which have
arisen only in the ordinary course of business and consistent with
past practice since the date of the Parent Balance Sheet; (c) liens
for current taxes not yet due; and (d) such title defects or
objections, liens, claims, charges, security interests or other
encumbrances of any nature whatsoever, if any, as individually or in
the aggregate could not reasonably be expected to have a Parent
Material Adverse Effect.
Section 4.14 ENVIRONMENTAL LAWS. Except as disclosed in the
Parent Public Reports (a) the Parent and each Parent Subsidiary are in
compliance with all Environmental Laws, including, but not limited to,
compliance with any permits or other governmental authorizations or
the terms and conditions thereof, except in the case of the matters
covered by this sentence where the failure to be in compliance with
such laws could not, individually or in the aggregate, reasonably be
expected to have a Parent Material Adverse Effect; (b) in the past
five (5) years neither the Parent nor any Parent Subsidiary has
received any communication or notice, whether from a governmental
authority or otherwise, alleging any violation of or noncompliance
with any Environmental Laws by the Parent or any Parent Subsidiary or
for which any of them is responsible, and there is no pending or, to
the Parent's knowledge, threatened Environmental Claim, except where
such communication, notice or Environmental Claim could not reasonably
be expected to, individually or in the aggregate, have a Parent
Material Adverse Effect; and (c) to the Parent's knowledge, there are
no past or present facts or circumstances that could form the basis of
any Environmental Claim against the Parent or any Parent Subsidiary or
against any person or entity whose liability for any Environmental
Claim the Parent or any Parent Subsidiary has retained or assumed
either contractually or by operation of law, except where such
Environmental Claim, if made, could not reasonably be expected to,
individually or in the aggregate, have a Parent Material Adverse
Effect.
28
Section 4.15 INTELLECTUAL PROPERTY. Except as could not,
individually or in the aggregate, reasonably be expected to have a
Parent Material Adverse Effect, (i) either the Parent or a Parent
Subsidiary owns, or is licensed or otherwise possesses legally
enforceable rights to use the Parent Intellectual Property, (ii) to
the Parent's knowledge, the conduct of the business of the Parent and
the Parent Subsidiaries with the Parent Intellectual Property does not
infringe any Intellectual Property rights or any other proprietary
right of any Person, and neither the Parent nor any Parent Subsidiary
has received any written notice from any other Person pertaining to or
challenging the right of the Parent or any Parent Subsidiary to use
any of the Parent Intellectual Property, and (iii) neither the Parent
nor any Parent Subsidiary has made any claim of a violation or
infringement by others of its rights to or in connection with the
Parent Intellectual Property which is still pending.
Section 4.16 COMPLIANCE WITH LAWS. The Parent and its
Subsidiaries are in compliance with each applicable law, rule or
regulation of any United States federal, state, local, Finnish, or
other foreign government or agency thereof which affects the business,
properties or assets of the Parent and its Subsidiaries, and no
notice, charge, claim, action or assertion has been received by the
Parent or any Parent Subsidiary or has been filed, commenced or, to
the Parent's knowledge, threatened against the Parent or any Parent
Subsidiary alleging any such violation, except for any matter
otherwise covered by this sentence which could not reasonably be
expected to, individually or in the aggregate, have a Parent Material
Adverse Effect. All licenses, permits and approvals required under
such laws, rules and regulations are in full force and effect, and
each of Parent and its Subsidiaries is in compliance with the terms
thereof, except where the failure to be in full force and effect or to
be in such compliance could not reasonably be expected to,
individually or in the aggregate, have a Parent Material Adverse
Effect.
Section 4.17 LABOR DIFFICULTIES. (a) There is no unfair labor
practice complaint against the Parent or any Parent Subsidiary pending
before any Finnish governmental or administrative agency, except for
any occurrence that individually or in the aggregate could not
reasonably be expected to have a Parent Material Adverse Effect; (b)
there is no labor strike, dispute, slowdown or stoppage actually
pending or, to the knowledge of Parent, threatened against or
affecting the Parent or any Parent Subsidiary, except where such
strike, dispute, slowdown or stoppage could not reasonably be expected
to have a Parent Material Adverse Effect; (d) to the Parent's
knowledge, there is no organizational effort presently being made or
threatened by or on behalf of any labor union with respect to
employees of the Parent and its Subsidiaries; and (e) no grievance
which might have, individually or in the aggregate, a Parent Material
Adverse Effect, arising out of or under collective bargaining
agreements is pending.
29
Section 4.18 INFORMATION TO BE SUPPLIED. (a) None of the
information supplied or to be supplied by Parent specifically for
inclusion or incorporation by reference in (i) the Registration
Statement will, at the time the Registration Statement becomes
effective under the Securities Act, 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, or
(ii) the Proxy Statement will, at the date it is first mailed to the
Company's shareholders or at the time of the Company Shareholder
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 Registration Statement
will comply as to form in all material respects with the requirements
of the Securities Act and the rules and regulations thereunder, except
that no representation or warranty is made by Parent with respect to
statements made or incorporated by reference therein based on
information supplied by the Company specifically for inclusion or
incorporation by reference in the Registration Statement.
(b) The Parent Disclosure Documents will, at all relevant
times, include all information relating to Parent and its Subsidiaries
which is required to enable the Parent Disclosure Documents and the
parties hereto to comply in all material respects with all Finnish
statutory and other legal and regulatory provisions (including,
without limitation, the Market Act and the rules and regulations made
thereunder, and the rules and requirements of the HSE) and all such
information contained in such documents will, as of the date of such
filing, be in all material respects, in accordance with the facts and
will not omit anything materially likely to affect the import of such
information.
(c) Notwithstanding the foregoing provisions of this
Section, no representation or warranty is made by Parent with respect
to statements made or incorporated by reference in the Registration
Statement or the Listing Particulars based on information supplied by
the Company expressly for inclusion or incorporation by reference
therein.
Section 4.19 MERGER SUB'S OPERATIONS. Merger Sub was formed
solely for the purpose of engaging in the Transactions and has not
engaged in any business activities or conducted any operations other
than in connection with the Transactions.
Section 4.20 BROKERS OR FINDERS. No agent, broker, investment
banker, financial advisor or other firm or Person acting on behalf of
Parent or Merger Sub is or will be entitled to any brokers' or
finders' fee or any other commission or similar fee in connection with
any of the Transactions, except Conventum Corporate Finance Oy.
Section 4.21 PARENT AGREEMENTS. Except as set forth in the
Parent Public Reports or as permitted pursuant to this Agreement,
30
neither the Parent nor any of its Subsidiaries is a party to or bound
by (i) any agreement relating to the incurring of indebtedness
(including sale and leaseback and capitalized lease transactions and
other similar financing transactions) providing for payment or
repayment in excess of $500,000, (ii) any "material contract" (as such
term is defined in Item 601(b)(10) of Regulation S-K of the SEC,
exclusive of any compensation agreements which would otherwise be
included in such term with respect to a U.S. registrant) or (iii) any
non-competition agreement which purports to limit in any material
respect the manner in which, or the localities in which, all or any
portion of the business of the Parent and its Subsidiaries, taken as a
whole is conducted (collectively, the "PARENT AGREEMENTS").
Section 4.22 INTERESTED PARTY TRANSACTIONS. Section 4.22 of
the Parent Disclosure Schedule sets forth a description of any event
that, to Parent's Knowledge, exists or has occurred since January 1,
1999 that would be required to be reported as a "Certain Relationship"
or "Related Transaction" pursuant to Item 404 of Regulation S-K
promulgated by the SEC, assuming, for purposes of this section only,
that the Parent was and is subject to the reporting requirements of
the Securities Act and the Exchange Act.
ARTICLE V
COVENANTS
Section 5.1 CONDUCT OF THE BUSINESS OF COMPANY. The Company
agrees that, except as set forth in the Company Disclosure Schedule,
or as permitted, required or specifically contemplated by, or
otherwise described in, this Agreement or otherwise consented to or
approved in writing by Parent (which consent or approval shall not be
unreasonably withheld or delayed), during the period commencing on the
date hereof until the earlier of the termination of this Agreement or
the Effective Time:
(a) the Company and each of its Subsidiaries shall conduct
their respective operations in all material respects only according to
their ordinary and usual course of business consistent with past
practice and shall use their reasonable best efforts to preserve
intact their respective business organization, keep available the
services of their officers, employees and consultants and maintain
satisfactory relationships with licensors, suppliers, distributors,
clients, joint venture partners and others having significant business
relationships with them;
(b) by way of illustration and not limitation, neither the
Company nor any of its Subsidiaries shall:
(i) make any change in or amendment to the Company's
Charter Documents or increase the number of members on the Company
Board of Directors beyond a total of eight members;
31
(ii) issue, sell, pledge, dispose of or encumber, or
authorize to issue or sell, pledge, dispose of or encumber, any shares
of its capital stock or any other securities, or issue or sell, or
authorize to issue or sell, any securities convertible into, or
options, warrants, convertible securities or other rights to purchase
or subscribe to, or enter into any arrangement or contract with
respect to the issuance or sale of, any shares of its capital stock or
any other securities, or make any other changes in its capital
structure, other than (i) the issuance of Shares upon the exercise of
Company Options outstanding as of March 31, 2001, in accordance with
their then present terms or (ii) issuances by a wholly-owned
Subsidiary of the Company of capital stock to such Subsidiary's
parent, the Company or another wholly-owned Subsidiary of the Company.
(iii) declare, pay or set aside any dividend or other
distribution (whether in cash, stock or property or any combination
thereof) or payment with respect to, or split, combine, redeem or
reclassify, or purchase or otherwise acquire, any shares of its
capital stock or its other securities, other than dividends payable by
a wholly-owned Subsidiary of the Company to the Company or another
wholly-owned Subsidiary of the Company;
(iv) incur any capital expenditures or any obligations
or liabilities in respect thereof, except for those (A) incurred in
the ordinary course of business of the Company and its Subsidiaries,
or (B) incurred in connection with the Company's existing operations
in Brazil in an amount not to exceed $3,000,000, or (C) not otherwise
described in clauses (A) and (B) which, as to this CLAUSE (C), do not
exceed $3,000,000 in the aggregate;
(v) acquire (whether pursuant to merger, stock or
asset purchase or otherwise) in one transaction or series of related
transactions (A) any assets (including any equity interests), other
than acquisitions of inventory, supplies, services and raw materials
in the ordinary course of business consistent with past practice, or
(B) all or substantially all of the equity interests of any Person or
any business or division of any Person other than in connection with
transactions permitted by SECTION 5.1(b)(iv)(B);
(vi) (A) grant any options under the Company Stock
Plans or otherwise grant any Company Option or Company Award, or (B)
establish, adopt, enter into or amend any bonus, profit sharing or
similar plan, agreement, trust, fund, policy or arrangement, or (C)
except in the ordinary course of business consistent with past
practice and except to the extent required under existing employee and
director benefit plans, agreements or arrangements as in effect on the
date of this Agreement, increase the compensation or fringe benefits
of any of its directors, officers or employees or grant any severance
or termination pay not currently required to be paid under existing
severance plans or enter into any employment, consulting or severance
agreement or arrangement with any present, former or prospective
director, officer or other employee of the Company or any of its
32
Subsidiaries, or establish, adopt, enter into or amend in any material
respect or terminate any collective bargaining, thrift, compensation,
stock option, restricted stock, pension, retirement, deferred
compensation, employment, termination, severance or other plan,
agreement, trust, fund, policy or arrangement for the benefit of any
directors, officers or employees, except as may be required by law;
(vii) transfer, lease, license, guarantee, sell,
mortgage, pledge, renovate, rehabilitate, dispose of, encumber or
subject to any Lien, any assets of the Company or any of its
Subsidiaries except for (A) sales of assets or Liens made or granted
in the ordinary course of business, and (B) sales of assets which are
not, individually or in the aggregate, material to the Company and its
Subsidiaries, taken as a whole;
(viii) except as required by applicable law or U.S.
GAAP and after notice to Parent, take any action to change accounting
policies or procedures (including, without limitation, procedures with
respect to revenue recognition, payments of accounts payable and
collection of accounts receivable);
(ix) adopt or enter into a plan of complete or partial
liquidation, dissolution, merger, consolidation, restructuring,
recapitalization or other reorganization of the Company or any of its
Subsidiaries (other than the Merger) or any agreement relating to a
Company Acquisition Proposal, except as provided for in SECTION
7.1(c)(iv);
(x) (A) incur any material indebtedness for borrowed
money, issue any debt securities, or assume or guarantee any such
indebtedness of another Person (other than indebtedness owing to or
guarantees of indebtedness owing to the Company or any direct or
indirect wholly-owned Subsidiary of the Company) or endorse or
otherwise become responsible for the obligations of any Person or (B)
make any loans or advances to any other Person, other than to the
Company or to any direct or indirect wholly-owned Subsidiary of the
Company, except, in the case of clause (A), for borrowings (1) in the
ordinary course of business consistent with past practice, including
without limitation borrowings under existing credit facilities in the
ordinary course of business consistent with past practice, (2) in
connection with the Transactions, or (3) in connection with financing
activities relating to activities described in SECTION 5.1(b)(iv),but
only to the extent otherwise permitted thereunder;
(xi) accelerate the payment, right to payment or
vesting of any bonus, severance, profit sharing, retirement, deferred
compensation, stock option (including any options issued pursuant to
the Company Stock Plans or under any Company Award), insurance or
other compensation or benefits, or amend the terms or change the
period of exercisability of, purchase, repurchase, redeem or otherwise
acquire, or permit any Subsidiary to amend the terms or change the
period of exercisability of, purchase, repurchase, redeem or otherwise
33
acquire, any of its securities or any securities of its subsidiaries,
including, without limitation, Shares, or any option, warrant or
right, directly or indirectly, to acquire any such securities;
(xii) settle, pay or discharge any claim, suit or
other action brought or threatened against the Company with respect to
or arising out of a shareholder's equity interest in the Company, or
pay, discharge or satisfy any claims, liabilities or obligations
(absolute, accrued, asserted or unasserted, contingent or otherwise)
over $250,000, individually or in the aggregate, other than (A) the
payment, discharge or satisfaction (1) of any such claims, liabilities
or obligations in the ordinary course of business and consistent with
past practice or (2) of claims, liabilities or obligations reflected
or reserved against in, or contemplated by, the consolidated financial
statements (or the notes thereto) contained in the Company SEC
Documents; provided, in each case, that any such settlement provides
for a complete release of the Company and its Subsidiaries and imposes
no obligation on the Company or its Subsidiaries other than the
payment of money; and (B) the settlement contemplated by SECTION 9.13
(xiii) enter into any agreement, understanding or
commitment that materially restrains, limits or impedes the Company's
or any of its Subsidiaries' ability to compete with or conduct any
business or line of business, including, but not limited to,
geographic limitations on the Company's or any of its Subsidiaries'
activities;
(xiv) plan, announce, implement or effect (A) any
plant or facility closing (whether or not on a temporary or permanent
basis) or (B) any material reduction in labor force, lay-off, early
retirement program, severance program or other program or effort
concerning the termination of employment of employees of the Company
or its Subsidiaries, PROVIDED, HOWEVER, that (1) routine employee
terminations for cause, (2) cost savings measures as Triple S may
implement in the ordinary course of business, and (3) announced cost
savings measures with respect to its ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ facility shall
not be considered subject to this CLAUSE (xiv); FURTHER PROVIDED,
HOWEVER, that the Company may, in connection with cost saving measures
resulting in the actual termination of employees, pay up to $500,000
in the aggregate to any employees of the Company, other than (i) any
person identified as an executive officer in the Company's Annual
Report on Form 10-K/A filed with the SEC on July 31, 2000, and (ii)
for the avoidance of doubt, any person identified as a director of the
Company in the foregoing report, so long as the amount of any payment
to any individual employee shall not exceed $10,000, and (iii) the
Company may implement other cost savings measures outside of the
ordinary course of its business, after notice to, and with the Consent
of, Parent, which consent shall not be unreasonably refused or
delayed.
(xv) knowingly take any action or fail to take any
action which action or failure to act would prevent, or would be
34
reasonably likely to prevent, the Merger from qualifying (A) for
"pooling of interests" accounting treatment under Finnish GAAP or (B)
as a Section 368 Reorganization;
(xvi) take any action including, without limitation,
the adoption of any shareholder rights plan or amendments to its
Certificate of Incorporation or By-Laws (or comparable governing
documents), which would, directly or indirectly, restrict or impair
the ability of Parent to vote, or otherwise to exercise the rights and
receive the benefits of a shareholder with respect to, securities of
the Company that may be acquired or controlled by Parent or Merger Sub
or permit any shareholder to acquire securities of the Company on a
basis not available to Parent or Merger Sub in the event that Parent
or Merger Sub were to acquire any shares of the Company Common Stock;
(xvii) materially modify, amend or terminate any
material contract to which it is a party or waive any of its material
rights or claims except, in each case, in the ordinary course of
business consistent with past practice;
(xviii) make any tax election or settle or compromise
any United States federal, state, local or non-United States tax
liability if the effect thereof would be adverse in any material
respect to the Company; or
(xix) modify, amend, or terminate the Agreement of
Operational Partnership between the Company and Cosmosplast Industria
E Comercio de Plasticos LTDA, dated September 2, 2000, or any of the
ancillary agreements or charter documents pertaining thereto
(including, but not limited to, the Corporate Constitution Agreement
of Triple S Cosmosplast Da Amzonia LTDA, dated August 14, 2000).
(xx) agree, in writing or otherwise, to take any of the
foregoing actions.
Section 5.2 CONDUCT OF THE BUSINESS OF PARENT. The Parent
agrees that, except as set forth in the Parent Disclosure Schedule, or
as permitted, required or specifically contemplated by, or otherwise
described in, this Agreement or otherwise consented to or approved in
writing by the Company (which consent or approval shall not be
unreasonably withheld or delayed), during the period commencing on the
date hereof until the earlier of the termination of this Agreement or
the Effective Time, neither the Parent nor any of its Subsidiaries
shall:
(a) except as contemplated in the Conversion Agreement,
make any change in or amendment to the Parent's articles of
association, by-laws, or similar organizational documents;
(b) except pursuant to the terms of the Conversion
Agreement, issue, sell, pledge, dispose of or encumber, or authorize
to issue or sell, pledge, dispose of or encumber (i) more than
35
7,500,000 shares of its capital stock in connection with one or more
acquisitions of unaffiliated third party entities (whether pursuant to
merger, stock or asset purchase or otherwise), or (ii) more than
1,500,000 shares of its capital stock pursuant to Parent Options, or
authorize to issue or sell, any securities convertible into, or
options, warrants, convertible securities or other rights to purchase
or subscribe to, or enter into any arrangement or contract with
respect to the issuance or sale of, (x) more than 7,500,000 shares in
the aggregate of its capital stock in connection with one or more
acquisitions (whether pursuant to merger, stock or asset purchase or
otherwise) of unaffiliated third party entities , or (y) more than
1,500,000 shares of its capital stock pursuant to the 1999 Warrant
Plan or the 2001 Warrant Plan, or make any other changes in its
capital structure, other than (1) the issuance of Parent Ordinary
Shares upon the exercise of Parent Options, subject to the limitations
in CLAUSE (b)(ii) and CLAUSE (b)(y) or (2) issuances by a wholly-owned
Subsidiary of the Parent of capital stock to such Subsidiary's parent,
the Parent or another wholly-owned Subsidiary of the Parent;
(c) except as contemplated in the Conversion Agreement,
declare, pay or set aside any dividend or other distribution (whether
in cash, stock or property or any combination thereof) or payment with
respect to, or split, combine, redeem or reclassify, or purchase or
otherwise acquire shares of Parent's capital stock or its other
securities, other than dividends payable by a wholly-owned Subsidiary
of the Parent to the Parent or another wholly-owned Subsidiary of the
Parent;
(d) knowingly take any action or fail to take any action,
which action or failure to act would prevent, or would be reasonably
likely to prevent, the Merger from qualifying as a Section4 368
Reorganization;
(e) take any action including, without limitation, the
adoption of any shareholder rights plan or amendments to its articles
of association or bylaws (or comparable governing documents), which
would, directly or indirectly, restrict or impair the ability of the
Company's shareholders to vote, or otherwise to exercise the rights
and receive the benefits of a shareholder with respect to, securities
of the Parent that may be acquired by the Company's shareholders in
the Merger;
(f) adopt or enter into a plan of complete or partial
liquidation, dissolution, merger, consolidation, restructuring,
recapitalization or other reorganization of the Parent or any of its
Subsidiaries (other than the Merger) or any agreement relating to a
Parent Acquisition proposal, except as provided for in SECTION
7.1(b)(iv);
(g) accelerate the payment, right to payment or vesting of
any bonus, severance, profit sharing, retirement, deferred
compensation, stock option (including any options issued pursuant to
36
the Parent 1999 Warrant Plan or the 2001 Warrant Plan under any award
(including restricted stock, deferred stock, phantom stock, stock
equivalent or stock unit) for capital stock of the Parent, or
otherwise), insurance or other compensation or benefits, or amend the
terms or change the period of exercisability of, purchase, repurchase,
redeem or otherwise acquire, or permit any Subsidiary to amend the
terms or change the period of exercisability, purchase, repurchase,
redeem or otherwise acquire, any of its securities or any securities
of its subsidiaries, including, without limitation, Parent Ordinary
Shares, or any option, warrant or right, directly or indirectly, to
acquire any such securities;
(h) amend the Parent's 1999 Warrant Plan, the 2001 Warrant
Plan or increase the total number of shares in the aggregate
authorized for actual issuance under such plans beyond the 1,500,000
shares currently authorized for actual issuance under such plans
without further approval of Parent's shareholders and the Company; or
(i) agree, in writing or otherwise, to take any of the
foregoing actions.
Section 5.3 COMPANY SHAREHOLDER MEETING; PARENT SHAREHOLDER
MEETING; PREPARATION OF PROXY STATEMENT/PROSPECTUS. THE COMPANY
SHAREHOLDER MEETING. The Company, acting through its Board of
Directors, shall, in accordance with applicable law, duly call,
convene and hold a meeting of the holders of the Shares (the "COMPANY
SHAREHOLDER MEETING") as soon as reasonably practicable for the
purpose of voting upon the approval and adoption of this Agreement and
the Merger, and the Company agrees that this Agreement and the Merger
shall be submitted at such meeting. Except as provided in SECTION
5.8: (i) the Company Board of Directors shall recommend approval and
adoption by its shareholders of this Agreement (the "COMPANY
RECOMMENDATION"), and (ii) neither the Company's Board of Directors
nor any committee thereof shall amend, modify, withdraw, condition or
qualify the Company Recommendation in a manner adverse to Parent.
(a) PARENT SHAREHOLDER MEETING. Parent, acting through its
Board of Directors, shall, in accordance with applicable law, duly
call, convene and hold a meeting of the holders of Parent Ordinary
Shares (the "PARENT SHAREHOLDER MEETING") at approximately the same
time as the Company Shareholder Meeting, but in no event later than
one (1) Business Day after such Company Shareholder Meeting for the
purpose of voting upon the Transactions, including the Merger and the
issuance of Parent Ordinary Shares hereunder and Parent agrees that
this Agreement and the issuance of Parent Ordinary Shares hereunder
shall be submitted at such meeting. Except as provided in SECTION
5.9: (i) Parent's Board of Directors shall recommend approval by its
shareholders of the Transactions, including the issuance of Parent
Ordinary Shares pursuant to the Merger and, subject to receipt of all
consents from the nominee required under Finnish laws, the election of
▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ or, in lieu of such persons, such
other persons as the Company shall designate with the consent of
37
Parent, which consent will not be unreasonably refused or delayed, as
members of the Parent's Board of Directors as contemplated by SECTION
5.14 (the "PARENT RECOMMENDATION"), and (ii) neither Parent's Board of
Directors nor any committee thereof shall amend, modify, withdraw,
condition or qualify the Parent Recommendation in a manner adverse to
the Company.
(b) PREPARATION OF REGISTRATION STATEMENT AND PROXY
STATEMENT/PROSPECTUS. Promptly after the date hereof, Parent and the
Company shall prepare and Parent shall file with the SEC the
Registration Statement, in which the Proxy Statement (which also shall
be filed by the Company under separate cover) and the Prospectus will
be included. Each of the Company and Parent shall use all reasonable
efforts to have the Registration Statement declared effective under
the Securities Act as promptly as practicable after such filing and to
keep the Registration Statement effective as long as is necessary to
consummate the Merger. The Company shall mail the Proxy Statement
(including the Prospectus) to its shareholders as promptly as
practicable after the Registration Statement is declared effective
under the Securities Act, comply in all material respects with the
proxy solicitation rules and regulations under the Exchange Act in
connection with the solicitation of such shareholders and, if
necessary, after the Proxy Statement shall have been so mailed,
promptly circulate amended, supplemental or supplemented proxy
material, and, if required in connection therewith, resolicit proxies.
Parent shall also take any action required to be taken under any
applicable state securities or blue sky laws in connection with the
issuance of Parent ADSs in the Merger. No filing of, or amendment or
supplement to the Proxy Statement, the Prospectus or the Registration
Statement will be made by the Company or Parent without the approval
of the other party, which will not be unreasonably withheld or
delayed. Each party will advise the other party, promptly after it
receives notice thereof, of the time when the Registration Statement
has become effective or any supplement or amendment has been filed,
the issuance of any stop order, the suspension of the qualification of
Parent ADSs issuable in connection with the Merger for offering or
sale in any jurisdiction, or any request by the SEC for amendment of
the Proxy Statement, the Prospectus or the Registration Statement or
comments thereon and responses thereto or requests by the SEC for
additional information. If at any time prior to the Effective Time,
the Company or Parent discovers any information relating to either
party, or any of their respective Affiliates, officers or directors,
that should be set forth in an amendment or supplement to the Proxy
Statement, the Prospectus or the Registration Statement, so that such
document would not include any misstatement of a material fact or omit
to state any material fact necessary to make the statements therein,
in light of the circumstances under which they were made, not
misleading, the party that discovers such information shall promptly
notify the other parties hereto and an appropriate amendment or
supplement describing such information shall be promptly filed with
the SEC and, to the extent required by law or regulation, disseminated
to the shareholders of the Company and Parent.
38
(c) PREPARATION AND FILING OF FORM F-6. Parent shall
promptly prepare and cause the depositary under the Deposit Agreement
to file with the SEC a registration statement on Form F-6 (the "FORM
F-6") with respect to the registration of the Parent ADSs under the
Securities Act and use its reasonable best efforts to have the Form
F-6 declared effective as promptly as possible.
Section 5.4 ACCESS. The Company shall (and shall cause each
of its Subsidiaries to) afford to the officers, employees,
accountants, counsel and other representatives of Parent, reasonable
access during normal business hours during the period prior to the
Closing Date, to all its properties, books, contracts, commitments and
records and, during such period, the Company shall (and shall cause
each of its Subsidiaries to) furnish promptly to the Parent (i) a copy
of each report, schedule, registration statement and other document
filed or received by it during such period pursuant to the
requirements of federal securities laws and (ii) all other information
concerning its business, properties and personnel as Parent may
reasonably request for purposes consistent with this Agreement and the
Transactions contemplated hereby.
(a) The Parent shall (and shall cause each of its
Subsidiaries to) afford to the officers, employees, accountants,
counsel and other representatives of the Company, reasonable access
during normal business hours during the period prior to the Closing
Date, to all its properties, books, contracts, commitments and records
and, during such period, the Parent shall (and shall cause each of its
Subsidiaries to) furnish promptly to the Company (i) a copy of each
report, schedule, registration statement and other document filed or
received by it during such period pursuant to the requirements of
federal securities laws, and (ii) all other information concerning its
business, properties and personnel as the Company may reasonably
request for purposes consistent with this Agreement and the
Transactions contemplated hereby.
(b) Any investigation pursuant to this Section shall be
conducted in a manner which will not interfere unreasonably with the
conduct of the business of the other party.
Section 5.5 CONFIDENTIALITY. Information concerning (a) the
Company and its Subsidiaries obtained by the Parent and Merger Sub and
(b) the Parent and its Subsidiaries obtained by the Company and its
Subsidiaries, in each case, through their respective officers,
employees, accountants, counsel and other representatives pursuant to
SECTION 5.4 or otherwise, shall be subject to the provisions of
(i) the Confidentiality Agreement by and between the Company and
Parent dated June 1, 2000 and (ii) the Confidentiality Agreement by
and between the Company and Parent entered into in May 2001 (the
"CONFIDENTIALITY AGREEMENTS"), the provisions of which shall continue
through the earlier of the Effective Time or two (2) years after the
termination of this Agreement, subject to all duties applicable to
trade secrets.
39
Section 5.6 REASONABLE BEST EFFORTS. (a) Prior to the
Closing, upon the terms and subject to the conditions of this
Agreement, Parent, Merger Sub and the Company agree to use their
respective reasonable best efforts to take, or cause to be taken, all
actions, and to do, or cause to be done, all things necessary, proper
or advisable (subject to any applicable laws) to consummate and make
effective the Merger and the other Transactions as promptly as
practicable including, but not limited to (i) the preparation and
filing of all forms, registrations and notices required to be filed to
consummate the Merger and the other Transactions and the taking of
such actions as are necessary to obtain any requisite approvals,
consents, orders, exemptions or waivers by any third party or
Governmental Entity, and (ii) the satisfaction of that party's and the
other parties' conditions to Closing.
(b) Prior to the Closing, each party shall promptly consult
with the other parties hereto with respect to, provide any necessary
information with respect to, and provide the other parties (or their
respective counsel) with copies of, all filings made by such party
with any Governmental Entity or any other information supplied by such
party to a Governmental Entity in connection with this Agreement, the
Merger and the other Transactions. Each party hereto shall promptly
inform the other of any communication from any Governmental Entity
regarding any of the Transactions. If any party hereto or Affiliate
thereof receives a request for additional information or documentary
material from any such Governmental Entity with respect to any of the
Transactions, then such party shall endeavor in good faith to make, or
cause to be made, as soon as reasonably practicable and after
consultation with the other parties, an appropriate response in
compliance with such request. To the extent that transfers,
amendments or modifications of permits (including environmental
permits) are required as a result of the execution of this Agreement
or consummation of any of the Transactions, each party shall use its
reasonable best efforts to effect such transfers, amendments or
modifications.
(c) If required under the HSR Act, the Company and Parent
shall file as soon as practicable notifications under the HSR Act and
respond as promptly as practicable to any inquiries received from the
Federal Trade Commission and the Antitrust Division of the Department
of Justice for additional information or documentation and respond as
promptly as practicable to all inquiries and requests received from
any State Attorney General or other Governmental Entity in connection
with antitrust matters. Concurrently with the filing of notifications
under the HSR Act or as soon thereafter as practicable, the Company
and Parent shall each request early termination of the HSR Act waiting
period, and each shall use its reasonable best efforts to take such
action as may be required to cause the expiration of the waiting
period under the HSR Act or other Non-U.S. Monopoly Laws with respect
to the Transactions as promptly as practicable after the execution of
this Agreement. Each of the Company and the Parent shall use all
reasonable efforts to resolve such objections, if any, as may be
40
asserted by any Governmental Entity with respect to the Transactions
under the HSR Act, the ▇▇▇▇▇▇▇ Act, as amended, the ▇▇▇▇▇▇▇ Act, as
amended, the Federal Trade Commission Act, as amended, and any Non-
U.S. Monopoly Laws (collectively, "ANTITRUST LAWS"). In connection
with the filings under the Antitrust Laws, if any administrative or
judicial action or proceeding is instituted (or threatened to be
instituted) challenging any Transaction as violative of any Antitrust
Law, each of Parent and the Company shall cooperate and use all
reasonable efforts to contest and resist any such action or proceeding
and to have vacated, lifted, reversed or overturned any Order, that is
in effect and that prohibits, prevents or restricts consummation of
the Merger or any other Transactions, unless either party, in good
faith, determines that litigation is not in their respective best
interests. Notwithstanding the provisions of the immediately
preceding sentence, it is expressly understood and agreed that neither
the Company nor Parent shall have any obligation to litigate or
contest any administrative or judicial action or proceeding or any
Order beyond the date of a ruling preliminarily enjoining the Merger
issued by a court of competent jurisdiction.
(d) Notwithstanding anything to the contrary in SECTION
5.6(a), (b) or (c), (i) neither Parent nor any of its Subsidiaries
shall be required to divest or hold separate any of their respective
businesses, product lines or assets, or to take or agree to take any
other action or agree to any limitation, that could reasonably be
expected to have a Parent Material Adverse Effect on Parent or on
Parent combined with the Company after the Effective Time, and (ii)
for purposes of this Section, neither the Company nor any of its
Subsidiaries shall be entitled to divest, nor shall it commit to
divest, any of their respective businesses, product lines or assets,
or to take or agree to take any other action or agree to any
limitation, that could reasonably be expected to have a Company
Material Adverse Effect on the Company or on the Company combined with
the Parent after the Effective Time.
Section 5.7 EMPLOYEE STOCK OPTIONS. (a) As of the Effective
Time (i) each outstanding Company Employee Stock Option, and any other
Company Option (together, the "Adjusted Options") shall be exchanged
for an option to purchase the number of Parent ADSs derived by
multiplying the number of Shares subject to such Company Employee
Stock Option or other Company Option immediately prior to the
Effective Time by the Exchange Ratio and dividing the result by the
number of Parent Ordinary Shares represented by each Parent ADS
(rounded to the nearest whole number of Parent ADSs), at an exercise
price per Parent ADS equal to (X) the exercise price for each such
Share subject to such option (Y) divided by the Exchange Ratio (Z)
with the result multiplied by the number of Parent Shares represented
by each Parent ADS (rounded down to the nearest whole cent), and all
references in each such option to the Company shall be deemed to refer
to Parent, where appropriate, and (ii) Parent shall assume the
obligations of the Company under the Company Stock Plans. The other
terms of each Adjusted Option, and the plans under which they were
41
issued, shall continue to apply in accordance with their terms,
subject to SECTION 5.7(d)."
(b) As of the Effective Time, each outstanding award
(including restricted stock, deferred stock, phantom stock, stock
equivalents and stock units) ("COMPANY AWARD") under any Company Stock
Plan shall be exchanged for a similar instrument of Parent, in each
case with such adjustments (and no other adjustments) to the terms of
such Company Awards as are necessary to preserve the value inherent in
such Company Awards with no detrimental effects, taken as a whole, on
the holder thereof, and the Parent shall assume the obligations of the
Company under the Company Awards. The other terms of each Company
Award, and the plans or agreements under which they are issued, shall
continue to apply in accordance with their terms subject to SECTION
5.7(d).
(c) The Company and Parent agree that each of the Company
Stock Plans and Parent Stock Plans shall be amended, to the extent
necessary and appropriate to reflect the transactions contemplated by
this Agreement, including, but not limited to the exchange of Shares
held or to be awarded or paid pursuant to such benefit plans, programs
or arrangements into Parent ADSs on a basis consistent with the
transactions contemplated by this Agreement. The actions to be taken
by the Company and Parent pursuant to this SECTION 5.7(c) shall
include the submission by the Company or Parent of the amendments to
the Parent Stock Plans or the Company Stock Plans to their respective
shareholders, if such submission is determined to be necessary by
counsel to the Company or Parent after consultation with one another;
provided, however, that such approval shall not be a condition to the
consummation of the Merger.
(d) Notwithstanding anything in SECTION 5.7(a) or SECTION
5.7(b) above to the contrary, if the exchange or conversion of any
Adjusted Option or Company Award shall be prohibited or restricted
under any applicable law, rule or regulation applicable to Parent,
Parent shall, in lieu thereof, provide the holder at the Effective
Time with substantially the same economic benefit calculated as of the
Effective Time.
(e) Parent shall (i) reserve for issuance the number of
Parent Ordinary Shares underlying Parent ADSs that will become subject
to the benefit plans, programs and arrangements referred to in this
Section and (ii) issue or cause to be issued the appropriate number of
Parent Ordinary Shares to be represented by Parent ADSs pursuant to
applicable plans, programs and arrangements, upon the exercise or
maturation of rights existing thereunder on the Effective Time or
thereafter granted or awarded. No later than the Effective Time, the
Parent shall prepare and file with the SEC a registration statement on
Form S-8 (or other appropriate form) registering a number of Parent
Ordinary Shares underlying Parent ADSs necessary to fulfill Parent's
obligations under this Section. For such period as the Parent shall
be a reporting company under the Exchange Act, Parent shall use its
42
reasonable best efforts to keep such registration statement effective
(and the current status of the prospectus required thereby to be
maintained) for as long as Adjusted Options or the Company Awards
remain outstanding.
(f) As soon as practicable after the Effective Time, Parent
shall deliver to the holders of Company Options and Company Awards
appropriate notices setting forth such holders' rights pursuant to the
Company Stock Plans and the agreements evidencing the grants of such
Company Options and Company Awards and that such Company Options and
Company Awards and the related agreements shall be assumed by Parent
and shall continue in effect on the same terms and conditions (subject
to the adjustments required by this SECTION 5.7 after giving effect to
the Merger).
Section 5.8 NO SOLICITATION BY THE COMPANY. Neither the
Company nor any Company Subsidiary shall (and the Company shall cause
the officers, directors, employees, representatives and agents of the
Company and each Company Subsidiary, including, but not limited to,
investment bankers, attorneys and accountants, not to), directly or
indirectly, encourage, solicit, participate in or initiate discussions
or negotiations with, or provide any information to, any Person or
group (other than Parent, any of its Affiliates or representatives)
concerning any Company Acquisition Proposal, except that nothing
contained in this SECTION 5.8(a) or any other provision hereof shall
prohibit the Company or the Company Board of Directors from (i) taking
and disclosing to the Company's shareholders a position with respect
to a tender or exchange offer by a third party pursuant to Rules 14d-9
and 14e-2 promulgated under the Exchange Act, or (ii) making any
disclosure to the Company's shareholders if, in the good faith
judgment of the Board, after consultation with outside counsel,
failure to make such disclosures would be contrary to its obligations
under applicable law, provided that the Company may not, except as
permitted by SECTION 5.8(c), withdraw or modify, or propose to
withdraw or modify, its position with respect to the Merger. Upon
execution of this Agreement, the Company will immediately cease any
existing activities, discussions or negotiations with any parties
conducted heretofore with respect to any of the foregoing.
Notwithstanding the foregoing, prior to the approval of the Merger and
this Agreement at the Company Shareholders Meeting (or, if the Merger
has not been consummated within thirty (30) days after the Company
Shareholders Meeting (except by reason of the Company's failure to
fulfill any obligation under this Agreement), such actions occur more
than thirty (30) days after the Company Shareholder Meeting), the
Company may furnish information concerning its business, properties or
assets to any Person pursuant to appropriate confidentiality
agreements, and may negotiate and participate in discussions and
negotiations with such entity or group concerning a Company
Acquisition Proposal if such proposal is a Company Superior Proposal
not solicited in violation of this Agreement. A Company Acquisition
Proposal will be a Company Superior Proposal only if:
43
(x) a Person has, on an unsolicited basis, submitted a
written proposal to the Company Board of Directors relating to
any Company Acquisition Proposal which the Board determines in
good faith (based on the advice of a financial adviser of
nationally recognized reputation) to be more favorable to the
Company and its shareholders and for which financing, to the
extent required, is then committed or which in the good faith
judgment of the Company Board of Directors, is reasonably capable
of being obtained by such Person; and
(y) the Company Board of Directors determines in good
faith, after consultation with outside counsel, that such action
is required to act in a manner consistent with the Board's
fiduciary duties to the Company's shareholders under applicable
law.
(a) The Company will immediately notify Parent, orally and
in writing, of the existence of any Company Acquisition Proposal, or
any modification of or amendment to any Company Acquisition Proposal,
or any request for nonpublic information relating to the Company or
any of its Subsidiaries in connection with a Company Acquisition
Proposal, and the Company will immediately communicate to Parent,
orally and in writing, the terms of any Company Acquisition Proposal,
modification or request which it may receive, the identity of the
party making such Company Acquisition Proposal, modification or
request, and whether the Company is providing or intends to provide
the Person making the Company Acquisition Proposal, modification or
request with access to information concerning the Company, and will
immediately provide to Parent copies of any written materials received
by the Company describing or stating such Company Acquisition
Proposal. The Company will promptly provide to Parent any non-public
information concerning the Company provided to any other party which
was not previously provided to Parent.
(b) Except as set forth in this SECTION 5.8(c), neither the
Company Board of Directors nor any committee thereof shall (i)
withdraw or modify, or propose to withdraw or modify, in a manner
adverse to Parent or Merger Sub, the approval or recommendation by
such Board of Directors or any such committee of this Agreement or the
Merger, (ii) approve or recommend or propose to approve or recommend,
any Company Acquisition Proposal, or (iii) enter into any agreement
with respect to any Company Acquisition Proposal. Notwithstanding the
foregoing, prior to the Effective Time, the Company Board of Directors
may withdraw or modify its approval or recommendation of this
Agreement or the Merger, approve or recommend a Company Superior
Proposal, or enter into an agreement with respect to a Company
Superior Proposal, and may terminate this Agreement in order to
concurrently enter into an agreement with respect to such Company
Superior Proposal, in each case at any time after the fifth (5th)
Business Day following delivery to Parent of written notice from the
Company advising Parent that the Company Board of Directors has
received a Company Superior Proposal which it intends to accept,
44
specifying the material terms and conditions of such Company Superior
Proposal, and identifying the Person making such Company Superior
Proposal, but only if the Company shall have caused its financial and
legal advisors to, if requested by the Parent, negotiate with Parent
to make such adjustments in the terms and conditions of this Agreement
as would enable the Company to proceed with the transactions
contemplated herein on such adjusted terms and, at the end of such
five (5) Business Day period, the Company Board of Directors, in good
faith continues reasonably to believe, that the Company Acquisition
Proposal constitutes a Company Superior Proposal.
Section 5.9 NO SOLICITATION BY THE PARENT. (a) Neither the
Parent nor any Parent Subsidiary shall (and the Parent shall cause the
officers, directors, employees, representatives and agents of the
Parent and each Parent Subsidiary, including, but not limited to,
investment bankers, attorneys and accountants, not to), directly or
indirectly, encourage, solicit, participate in or initiate discussions
or negotiations with, or provide any information to, any Person or
group (other than the Company, any of its Affiliates or
representatives) concerning any Parent Acquisition Proposal, except
that nothing contained in this SECTION 5.9(a) or any other provision
hereof shall prohibit the Parent or the Parent Board of Directors from
making any disclosure to the Parent's shareholders if, in the good
faith judgment of the Board, failure to so disclose would be
inconsistent with the best interests of its shareholders; PROVIDED
THAT the Parent may not, except as permitted by SECTION 5.9(c),
withdraw or modify, or propose to withdraw or modify, its position
with respect to the Merger. Upon execution of this Agreement, the
Parent will immediately cease any existing activities, discussions or
negotiations with any parties conducted heretofore with respect to any
of the foregoing. Notwithstanding the foregoing, prior to the
Effective Time, the Parent may furnish information concerning its
business, properties or assets to any Person pursuant to appropriate
confidentiality agreements, and may negotiate and participate in
discussions and negotiations with such entity or group concerning a
Parent Acquisition Proposal if such proposal is a Parent Inclusive
Superior Proposal. A Parent Acquisition Proposal will be a "Parent
Superior Proposal" only if a Person has, on an unsolicited basis,
submitted a written proposal to the Parent's Board of Directors
relating to any Parent Acquisition Proposal which the Board reasonably
determines in good faith (based on the advice of a financial adviser
of a recognized reputation) to recommend to Parent's shareholders. A
Parent Superior Proposal will be a Parent Inclusive Superior Proposal
only if such Parent Superior Proposal does not contemplate, provide
for, or require termination of this Agreement as a condition to such
proposal, and expressly permits (but need not require) Parent to
consummate the Merger without modification in any adverse respect of
this Agreement or the Transactions. If at any time a Parent Superior
Proposal becomes a Parent Exclusive Superior Proposal, Parent will
immediately cease any then existing activities, discussions or
negotiations with respect thereto until after the earlier of the
termination of the Merger Agreement, the Effective Time or such date
45
as any Parent Superior Proposal ceases to be a Parent Exclusive
Superior Proposal. For purposes of this Agreement, a Parent Exclusive
Superior Proposal means any Parent Superior Proposal that is not a
Parent Inclusive Superior Proposal
(b) The Parent will immediately notify the Company, orally
and in writing, of the existence of any Parent Acquisition Proposal,
or any modification of or amendment to any Parent Acquisition
Proposal, or any request for nonpublic information relating to the
Parent or any of its Subsidiaries in connection with a Parent
Acquisition Proposal and the Parent will immediately communicate to
the Company, orally and in writing, the terms of any Parent
Acquisition Proposal, modification or request which it may receive,
the identity of the party making such Parent Acquisition Proposal,
modification or request, and whether the Parent is providing or
intends to provide the Person making the Parent Acquisition Proposal,
modification or request with access to information concerning the
Parent, and will immediately provide to the Company copies of any
written materials received by Parent describing or stating such Parent
Acquisition Proposal. The Parent will promptly provide to the Company
any non-public information concerning the Parent provided to any other
party which was not previously provided to the Company.
(c) Except as set forth below in this SECTION 5.9(c),
neither the Parent's Board of Directors nor any committee thereof
shall (i) withdraw or modify, or propose to withdraw or modify, in a
manner adverse to the Company, the approval or recommendation by such
Board of Directors or any such committee of this Agreement or the
Merger, (ii) approve or recommend or propose to approve or recommend,
any Parent Acquisition Proposal, or (iii) enter into any agreement
with respect to any Parent Acquisition Proposal. Notwithstanding the
foregoing, prior to the Effective Time, (i) the Parent's Board of
Directors may withdraw or modify its approval or recommendation of
this Agreement or the Merger, approve or recommend a Parent Inclusive
Superior Proposal, or enter into an agreement with respect to a Parent
Inclusive Superior Proposal, and (ii) may terminate this Agreement in
order to concurrently enter into an agreement with respect to such
Parent Inclusive Superior Proposal, in each case at any time after the
fifth (5th) Business Day following delivery to the Company of written
notice from the Parent advising the Company that the Parent's Board of
Directors has received a Parent Inclusive Superior Proposal which it
intends to accept, specifying the terms and conditions of such Parent
Inclusive Superior Proposal, and identifying the Person making such
Parent Inclusive Superior Proposal. In the event the Company has not
advised Parent in writing that the Company objects to the Parent
Inclusive Superior Proposal prior to the expiration of the five (5)
Business Day period referred to above, the Company will be presumed to
have not objected to the Parent Inclusive Superior Proposal and Parent
may proceed to consummate the Merger and the Transactions and the
Parent Inclusive Superior Proposal. In the event the Company objects
to the Parent Inclusive Superior Proposal, the Parent shall within two
(2) Business Days thereafter either (A) abandon the Parent Inclusive
46
Superior Proposal and immediately provide written notice to the
Company of such abandonment, or (B) terminate this Agreement and pay
to the Company the Termination Fee and Expenses as provided in SECTION
7.3.
Section 5.10 PUBLICITY. The initial press release with respect
to the execution of this Agreement shall be a joint press release
acceptable to Parent and the Company. Thereafter, until the Effective
Time or the date the Transactions are terminated or abandoned pursuant
to Article VII, each of the Company and Parent shall use reasonable
efforts to consult with the other party prior to the Company, Parent
or any of their respective Affiliates issuing or causing the
publication of any press release or other announcement with respect to
the Merger, this Agreement or the other Transactions without prior
written approval of the other party, except for references to earlier
releases or announcements and except as may be required by law or by
any listing agreement with a national securities exchange or trading
market.
Section 5.11 NOTIFICATION OF CERTAIN MATTERS. Each of the
Company and the Parent shall give prompt notice to the other of (i)
the occurrence or non-occurrence of any event, the occurrence or non-
occurrence of which would cause any representation or warranty
contained in this Agreement to be untrue or inaccurate in any material
respect at or prior to the Effective Time and (ii) any material
failure of such party 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 5.11 shall not limit or otherwise affect the remedies
available hereunder to the party receiving such notice.
Section 5.12 STATE TAKEOVER LAWS. If any state takeover
statute other than Chapter 7A and Chapter 7B of the MBCA becomes or is
deemed to become applicable to the Agreement, the acquisition of
Shares or the related voting power pursuant to the Merger or the other
Transactions, the Company and the Parent shall take all action
necessary to render such statute inapplicable to all of the foregoing.
Section 5.13 TAX TREATMENT. (a) Prior to the Effective Time,
each party shall use its reasonable best efforts to cause the Merger
to qualify as a Section 368 Reorganization and will not take any
action reasonably likely to cause the Merger not so to qualify.
(b) Each of the Parent and the Company shall cooperate with
each other in obtaining the opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇, counsel
to the Company, dated as of the Closing Date, to the effect that the
Merger will constitute a reorganization within the meaning of Section
368(a) of the Code. In connection therewith, each of the Company and
the Parent shall deliver to ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇ customary
representation letters in form and substance reasonably satisfactory
to such counsel, and the Company shall obtain any representation
letters from appropriate shareholders and shall deliver any such
47
letters obtained to ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇ (the representation letters
referred to in this sentence are collectively referred to as the "TAX
CERTIFICATES").
(c) The Company shall prepare and timely file all reports,
forms, returns, or other information required to be filed by it in
order for the Merger to qualify for an exception to the general rule
of Section 367(a)(1) of the Code. After the Merger, Parent shall
cause the Surviving Corporation to prepare and timely file (to the
extent legally entitled to do so) all reports, forms, returns, or
other information required to be filed by the Company after the Merger
in order for the Merger to qualify for an exception to the general
rule of Section 367(a)(1) of the Code.
(d) After the Merger, Parent agrees that it shall provide
the information required to be provided by it under Treasury
Regulation Section 1.367(a)-8(b) for the applicable period in order to
ensure that any holder of Company Common Stock that is a five-percent
transferee shareholder (as defined in Treasury Regulation Section
1.367(a)-3(c)(5)(ii)) that filed a gain recognition agreement (as
defined in Treasury Regulation Section 1.367(a)-(8)) with respect to
the Merger is entitled to non-recognition treatment for U.S. federal
income tax purposes.
(e) Parent shall not take, and, after the Merger, Parent
shall cause the Company not to take, any position with respect to
Taxes that is inconsistent with the treatment of the Merger as a
Section 368 Reorganization.
Section 5.14 GOVERNANCE MATTERS. Prior to the Effective Time,
the Board of Directors of Parent shall take all necessary action to
(i) cause the resignation of (or will cause the removal of, if a
resignation is not tendered) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, as a director of Parent,
and (ii) appoint ▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ to serve as
members of such Board of Directors of Parent, effective as of the
Effective Time, until the first annual meeting of Parent Shareholders
following the Effective Time.
Section 5.15 MERGER SUB COMPLIANCE. Parent shall cause Merger
Sub to comply with all of its obligations under or related to this
Agreement.
Section 5.16 EMPLOYEE BENEFITS. (a) As of the Effective Time,
and subject to subsection (b) Parent shall either (i) cause the
Company Plans (as defined in SECTION 3.12 of this Agreement) in effect
at the date of this Agreement, to remain in effect as of the Effective
Time, or (ii) maintain employee benefit plans which, in the aggregate,
provide a substantially similar level of benefits as those provided
under comparable Company Plans with respect to employees of the
Company covered under such plans as of the date of this Agreement;
PROVIDED, HOWEVER, that the foregoing shall not apply to any
provisions of any Company Plan under which employees may receive, or
48
under which employee benefits are based on, Company Common Stock or to
the extent inconsistent with any employment agreement with any
employee.
(b) Except as set forth in the Employment Agreement to be
entered into with ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Parent has no current plans to
institute any salary reduction program applicable to the employees of
the Surviving Corporation. From and after the Effective Time, Parent
shall, or shall cause the Surviving Corporation to, provide to each
continuing employee of the Company and each Company Subsidiary annual
salary (excluding any cash bonus which shall be governed by the next
sentence hereof) in an amount not less than the annual salary such
employee was entitled to receive from the Company or Company
Subsidiary for the twelve month period ended March 31, 2001, plus such
annualized increases in such compensation (if any) instituted prior to
the Effective Time, in good faith, in the ordinary course of business
consistent with past practices, except, in no event shall such
increases exceed ten percent (10%) of an employee's cash salary
payable during the twelve month period ended March 31, 2001. Parent
shall, or shall cause the Surviving Corporation to, provide to each
continuing employee of the Company and each Company Subsidiary
payments under the Company bonus and incentive Plans with respect to
the fiscal year ending March 31, 2002, based on the greater of (A) the
bonus and incentive compensation to which such employee would have
been entitled pursuant to the Company bonus and incentive Plans in
effect on the date hereof; or (B) the bonus and incentive compensation
to which such employee would be entitled pursuant to any alternative
bonus plan as to which such employee may become entitled to
participate, at the option of the Parent, after the Effective Time.
Notwithstanding the foregoing, nothing in this Agreement shall in any
way restrict or limit Parent or the Surviving Corporation with respect
to their ability to terminate one or more of the employees of the
Surviving Corporation from and after the Effective Date or be deemed
in any way to create an employment contract or condition of
employment.
(c) Employees of the Company and each Company Subsidiary as
of the Effective Time shall be credited with service accrued prior to
the Effective Time with the Company and any Company Subsidiary for
purposes of determining eligibility to participate, vesting,
eligibility for early retirement and vacation and paid time off
entitlement under any employee benefit plan or arrangement established
or maintained by Parent or the Surviving Corporation and made
available to such employees.
Section 5.17 INDEMNIFICATION. (a) From and after the
Effective Time, the Parent shall, to the fullest extent not prohibited
by applicable law, indemnify, defend and hold harmless each person who
is now, or has been at any time prior to the date hereof, or who
becomes prior to the Effective Time, an officer, director or employee
of the Company or any of its Subsidiaries (each, an "INDEMNIFIED
PARTY") against (i) all losses, expenses (including reasonable
49
attorneys' fees and expenses), claims, damages or liabilities or,
subject to the proviso of the next succeeding sentence, amounts paid
in settlement, arising out of actions or omissions occurring at or
prior to the Effective Time (and whether asserted or claimed prior to,
at or after the Effective Time) that are, in whole or in part, based
on or arising out of the fact that such person is or was a director,
officer or employee of the Company or any of its Subsidiaries or
served as a fiduciary under or with respect to any employee benefit
plan (within the meaning of Section 3(3) of ERISA) at any time
maintained by or contributed to by the Company or any of its
Subsidiaries ("INDEMNIFIED LIABILITIES"), and (ii) all Indemnified
Liabilities to the extent they are based on or arise out of or pertain
to the transactions contemplated by this Agreement, in each case,
until the expiration of the applicable statute of limitations. In the
event of any such loss, expense, claim, damage or liability (whether
or not arising before the Effective Time), (i) the Parent shall,
subject to the limitations set forth herein, pay the reasonable fees
and expenses of counsel selected by the Indemnified Parties, which
counsel shall be reasonably satisfactory to the Parent, promptly after
statements therefor are received and otherwise advance to such
Indemnified Party upon request reimbursement of documented expenses
reasonably incurred, (ii) the Parent and the Company will cooperate in
the defense of such matter, and (iii) any determination required to be
made with respect to whether an Indemnified Party's conduct complies
with the standards set forth under applicable law and the articles of
incorporation or bylaws shall be made by independent counsel mutually
acceptable to the Parent and the Indemnified Party; provided, however,
that the Parent shall not be liable for any settlement effected
without its written consent (which consent shall not be unreasonably
withheld or delayed). In the event that any Indemnified Party is
required to bring any action to enforce rights or to collect moneys
due under this Agreement and is successful in such action, the Parent
shall reimburse such Indemnified Party for all of its expenses in
bringing and pursuing such action. Each Indemnified Party shall be
entitled to the advancement of expenses to the full extent
contemplated in this SECTION 5.17(a) in connection with any such
action, provided that the person to whom expenses are advanced
provides an undertaking to repay such advance if it is ultimately
determined that such person is not entitled to indemnification. The
Indemnified Parties, as a group, may retain only one law firm to
represent them in each applicable jurisdiction with respect to any
single action unless there is, under applicable standards of
professional conduct, a conflict on any significant issue between the
positions of any two or more Indemnified Parties, in which case each
Indemnified Person with respect to whom such a conflict exists (or
group of such Indemnified Persons who, among them, have no such
conflict) may retain one separate law firm in each applicable
jurisdiction. In addition, from and after the Effective Time,
directors and officers of the Company who become directors or officers
of the Parent will be entitled to indemnification under the Parent's
Charter Documents, as the same may be amended from time to time in
accordance with their terms and applicable law, and to all other
50
indemnity rights and protections as are afforded to other directors
and officers of the Parent.
(b) In the event that the Parent or any of its successors
or assigns (i) consolidates with or merges into any other person and
is not the continuing or surviving corporation or entity of such
consolidation or merger or (ii) transfers or conveys all or
substantially all of its properties and assets to any person, then,
and in each such case, proper provision will be made so that the
successors and assigns of the Parent assume the obligations set forth
in this SECTION 5.17.
(c) For six years after the Effective Time, the Parent
shall maintain in effect (x) the Company's current directors' and
officers' liability insurance or other directors' and officers'
liability insurance with a reputable and financially sound insurer
that provides coverage that is no less favorable than the Company's
current policy, in each case, covering acts or omissions occurring
prior to the Effective Time with respect to those persons who are
currently covered by the Company's directors' and officers' liability
insurance policy on terms with respect to such coverage and amount no
less favorable than those of such policy in effect on the date hereof,
and (y) the Company's current fiduciary liability insurance policies
for employees who serve or have served as fiduciaries under or with
respect to any employee benefit plans described in SECTION 5.17(a)
with coverages and in amounts no less favorable than those of such
policy in effect on the date hereof; PROVIDED, that in no event shall
the Parent be required to pay aggregate premiums for insurance under
this SECTION 5.17(c) in excess of 150% of the aggregate premiums paid
by the Company for its year ended March 31, 2000 for such insurance;
PROVIDED, FURTHER, that if the annual premiums of such insurance
coverage exceed such amount, the Parent shall be obligated to obtain a
policy with the best coverage reasonably available, in the reasonable
judgment of the Board of Directors of the Parent, for a cost up to but
not exceeding such amount.
(d) The provisions of this SECTION 5.17 (i) are intended to
be for the benefit of, and will be enforceable by, each indemnified
party, his or her heirs and his or her representatives and (ii) are in
addition to, and not in substitution for, any other rights to
indemnification or contribution that any such person may have by
contract or otherwise.
Section 5.18 CONTROL OF OTHER PARTY'S BUSINESS. Nothing
contained in this Agreement shall give the Parent, directly or
indirectly, the right to control or direct the Company's operations
prior to the Effective Time. Nothing contained in this Agreement
shall give the Company, directly or indirectly, the right to control
or direct the Parent's operations prior to the Effective Time. Prior
to the Effective Time, each of the Parent and the Company shall
exercise, consistent with the terms and conditions of this Agreement,
complete control and supervision over its respective operations.
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Section 5.19 HSE LISTING AND NASDAQ LISTING; EXCHANGE ACT
REPORTS. The Parent shall use its reasonable best efforts (i) to
cause the Parent Ordinary Shares underlying the Parent ADSs issuable
to the Company's shareholders as contemplated by this Agreement to be
approved for listing on the HSE, and (ii) to cause the Parent ADSs
issuable to the Company's shareholders as contemplated by this
Agreement to be approved for listing on the Nasdaq National Market, in
each case, prior to the Closing Date. The Parent shall use its
reasonable best efforts to keep the Parent ADSs listed on the Nasdaq
National Market (or, if not then eligible for listing thereon, on the
Nasdaq SmallCap Market, or, if then eligible for listing thereon), for
not less than three months following the Closing Date, and shall,
during such period, use its best efforts to file all reports required
under the Exchange Act. If the listing of Parent ADS's on the Nasdaq
National Market or Nasdaq Small Cap Market ceases during the first
twelve months after the Effective Time, the Parent shall use its
reasonable best efforts (in accordance with and subject to applicable
U.S. laws), which shall include the obligation to spend up to, but not
more than, $50,000 to establish and thereafter for a limited period
not to exceed twelve months from the Effective Time maintain for the
benefit of its United States stockholders, a brokerage service through
third parties that would be available to such stockholders twenty-four
hours a day and that would facilitate the execution of sale
transactions of Parent Ordinary Shares for those stockholders on the
HSE. The Parent shall have no liability or obligation with respect to
the undertaking to any shareholder or otherwise, beyond the
expenditure of up to the aforesaid $50,000 in accordance with this
SECTION 5.19.
Section 5.20 NO SERIES K SHARES. The Parent shall not, at any
time after the Closing, issue any Series K Shares.
ARTICLE VI
CONDITIONS
Section 6.1 CONDITIONS PRECEDENT TO OBLIGATIONS OF PARENT AND
MERGER SUB. The respective obligations of Parent and Merger Sub to
effect the Merger shall be subject to the satisfaction or waiver at or
prior to the Effective Time, of each of the following conditions:
(a) SHAREHOLDER APPROVAL. Each of the Company Shareholder
Approval and the Parent Shareholder Approval shall have been obtained;
(b) ANTITRUST APPROVALS. All waiting periods (and any
extension thereof) under the HSR Act and the Non-U.S. Monopoly Laws
applicable to the Merger shall have expired or been terminated, and
all consents, waivers, approvals and authorizations required to be
obtained, and all filings or notices required to be made by the
parties hereto with any Governmental Entity pursuant to the HSR Act
and the Non-U.S. Monopoly Laws shall have been obtained or made;
52
(c) INJUNCTION. No preliminary or permanent injunction or
other order shall have been issued by any federal, state or foreign
court or by any federal, state or foreign governmental or regulatory
agency, body or authority and be in effect at the Effective Time which
prohibits, restrains, restricts or enjoins the consummation of the
Merger, provided, however, that, in the case of an injunction or other
order, each of the parties shall have used reasonable best efforts to
prevent the entry of any such injunction or other order and to appeal
as promptly as possible any such injunction or other order that may
have been entered;
(d) STATUTES. No federal, state or foreign statute, rule,
regulation, executive order, decree or order of any kind shall have
been enacted, entered, promulgated or enforced by any court or
governmental authority which prohibits, restrains, restricts or
enjoins the consummation of the Merger or has the effect of making the
Merger illegal;
(e) NO MATERIAL ADVERSE EFFECT. Since the date hereof, no
event shall have occurred that has had, or could reasonably be
expected to have, individually or in the aggregate, a Company Material
Adverse Effect;
(f) HSE LISTING AND NASDAQ LISTING. The Parent Ordinary
Shares to be issued in the Merger shall have been authorized for
listing on the HSE following the due issuance thereof, and the Parent
ADSs representing such Parent Ordinary Shares shall have been approved
for quotation on the Nasdaq National Market;
(g) REGISTRATION STATEMENT. Each of the Registration
Statement and the Form F-6 shall have become effective in accordance
with the provisions of the Securities Act, no stop order suspending
the effectiveness of either the Registration Statement or the Form F-6
shall have been issued by the SEC and no proceedings for that purpose
shall have been initiated by the SEC and not concluded or withdrawn;
(h) REPRESENTATIONS AND WARRANTIES TRUE. (A) The
representations and warranties of the Company contained herein that
are qualified by reference to a Company Material Adverse Effect shall
be true and correct when made and on the Closing Date (except for
representations and warranties made as of a specified date, which need
be true and correct only as of the specified date), as if made on and
as of such date, (B) all other representations and warranties of the
Company shall have been true and correct when made and on and as of
the Closing Date, except for representations and warranties made as of
a specified date, which need be true and correct only as of the
specified date, as if made on and as of such date, in each case, where
the failure of such representations and warranties to be true or
correct could not reasonably be expected to, individually or in the
aggregate, result in a Company Material Adverse Effect, and (C) the
failure of any representations and warranties of the Company contained
in this Agreement to be true and correct (disregarding for purposes of
53
this SECTION 6.1(h)(C), all qualifications therein which reference a
Company Material Adverse Effect) shall not have, or be reasonably
likely to have, in the aggregate, a Company Material Adverse Effect;
(i) PERFORMANCE. The Company shall have performed or
complied in all material respects with all material agreements,
covenants and undertakings (or, if any such agreement, covenant or
undertaking is qualified as to materiality then the Company shall have
performed or complied with such agreement or covenant or undertaking
in all respects in accordance with its terms) contained herein
required to be performed or complied with by it prior to or at the
time of the Closing;
(j) COMPLIANCE CERTIFICATE. The Company shall have
delivered to Parent a certificate, dated the date of the Closing,
signed by the Chief Executive Officer or Chief Financial Officer of
the Company, certifying as to the fulfillment of the conditions
specified in SECTION 6.1(h) and SECTION 6.1(i);
(k) LIQUIDITY AND REGISTRATION RIGHTS AGREEMENT. Parent
and each of the Major Shareholders shall have entered into the
Liquidity and Registration Rights Agreement in substantially the form
set forth as EXHIBIT 6.1(k) attached hereto; and
(l) CONSENTS OBTAINED. All material consents, waivers,
approvals, authorizations or orders required to be obtained, and all
filings required to be made by the Company for the authorization,
execution and delivery of this Agreement and the consummation by it of
the transactions contemplated hereby shall have been obtained and made
by the Company, except where the failure to receive such consents,
waivers, approvals, authorizations or orders would not, individually
or in the aggregate with all other such failures, have a Company
Material Adverse Effect.
Section 6.2 CONDITIONS PRECEDENT TO OBLIGATIONS OF THE
COMPANY. The obligations of the Company to effect the Merger shall be
subject to the satisfaction or waiver at or prior to the Effective
Time, of each of the following conditions:
(a) SHAREHOLDER APPROVAL. Each of the Company Shareholder
Approval and the Parent Shareholder Approval shall have been obtained;
(b) ANTITRUST APPROVALS. All waiting periods (and any
extension thereof) under the HSR Act and the Non-U.S. Monopoly Laws
applicable to the Merger shall have expired or been terminated, and
all consents, waivers, approvals and authorizations required to be
obtained, and all filings or notices required to be made by the
parties hereto with any Governmental Entity pursuant to the HSR Act
and the Non-U.S. Monopoly Laws shall have been obtained or made;
(c) INJUNCTION. No preliminary or permanent injunction or
other order shall have been issued by any federal, state or foreign
54
court or by any federal, state or foreign governmental or regulatory
agency, body or authority and be in effect at the Effective Time which
prohibits, restrains, restricts or enjoins the consummation of the
Merger, provided, however, that, in the case of an injunction or other
order, each of the parties shall have used reasonable best efforts to
prevent the entry of any such injunction or other order and to appeal
as promptly as possible any such injunction or other order that may
have been entered;
(d) STATUTES. No federal, state or foreign statute, rule,
regulation, executive order, decree or order of any kind shall have
been enacted, entered, promulgated or enforced by any court or
governmental authority which prohibits, restrains, restricts or
enjoins the consummation of the Merger or has the effect of making the
Merger illegal;
(e) NO MATERIAL ADVERSE EFFECT. Since the date hereof, no
event shall have occurred that has had, or could reasonably be
expected to have, individually or in the aggregate, a Parent Material
Adverse Effect;
(f) HSE LISTING AND NASDAQ LISTING. The Parent Ordinary
Shares to be issued in the Merger shall have been authorized for
listing on the HSE following the due issuance thereof, and the Parent
ADSs representing such Parent Ordinary Shares shall have been approved
for quotation on the Nasdaq National Market;
(g) REGISTRATION STATEMENT. Each of the Registration
Statement and the Form F-6 shall have become effective in accordance
with the provisions of the Securities Act, no stop order suspending
the effectiveness of either the Registration Statement or the Form F-6
shall have been issued by the SEC and no proceedings for that purpose
shall have been initiated by the SEC and not concluded or withdrawn;
(h) TAX OPINION. The Company shall have received an
opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇ in form and substance reasonably
satisfactory to the Company on the basis of certain facts,
representations and assumptions set forth in such opinion, dated as of
the Closing Date, to the effect that (i) the Merger will be treated
for U.S. federal income tax purposes as a Section 368 Reorganization
and (ii) each of Parent and the Company will be a party to the
reorganization within the meaning of Section 368(b) of the Code. In
rendering such opinion, such counsel shall be entitled to rely upon
the Tax Certificates;
(i) REPRESENTATIONS AND WARRANTIES TRUE. (A) The
representations and warranties of the Parent contained herein that are
qualified by reference to a Parent Material Adverse Effect shall be
true and correct when made and on the Closing Date (except for
representations and warranties made as of a specified date, which need
be true and correct only as of the specified date), as if made on and
as of such date, (B) all other representations and warranties of the
55
Parent shall have been true and correct when made and on and as of the
Closing Date, except for representations and warranties made as of a
specified date, which need be true and correct only as of the
specified date, as if made on and as of such date, in each case, where
the failure of such representations and warranties to be true or
correct could not reasonably be expected to, individually or in the
aggregate, result in a Parent Material Adverse Effect, and (C) the
failure of any representations and warranties of the Parent contained
in this Agreement to be true and correct disregarding for purposes of
this SECTION 6.2(i)(C), all qualifications therein which reference a
Parent Material Adverse Effect), shall not have, or be reasonably
likely to have, in the aggregate, a Parent Material Adverse Effect;
(j) PERFORMANCE. Parent shall have performed or complied
in all material respects with all material agreements, undertakings
and covenants (or, if any such agreement, covenant or undertaking is
qualified as to materiality then the Company shall have performed or
complied with such agreement or covenant or undertaking in all
respects) contained herein required to be performed or complied with
by it prior to or at the time of the Closing;
(k) COMPLIANCE CERTIFICATE. Parent shall have delivered to
the Company a certificate, dated the date of the Closing, signed by
the Chief Executive Officer or Chief Financial Officer of Parent,
certifying as to the fulfillment of the conditions specified in
SECTION 6.2(i) and SECTION 6.2(j);
(l) LIQUIDITY AND REGISTRATION RIGHTS AGREEMENT. Parent
and each of the Major Company Shareholders shall have entered into the
Liquidity and Registration Rights Agreement in substantially the form
set forth as Exhibit 6.1(k) attached hereto;
(m) CONSENTS OBTAINED. All material consents, waivers,
approvals, authorizations or orders required to be obtained, and all
filings required to be made, by Parent or Merger Sub for the
authorization, execution and delivery of this Agreement and the
consummation by them of the transactions contemplated hereby shall
have been obtained and made by Parent or Merger Sub, except where the
failure to receive such consents, waivers, approvals, authorizations
or orders would not, individually or in the aggregate with all other
such failures, have a Parent Material Adverse Effect; and
Section 6.3 FRUSTRATION OF CLOSING CONDITIONS. Neither the
Parent nor the Company may rely on the failure of any condition set
forth in SECTION 6.1 or SECTION 6.2, as the case may be, to be
satisfied if such failure was caused by such party's failure to use
reasonable best efforts to consummate the Merger and the other
Transactions, as required by and subject to SECTION 5.6.
Section 6.4 CONDITIONS NOT OTHERWISE A LIMITATION OF RIGHTS.
For the avoidance of doubt, the parties expressly agree that in the
case of Parent a failure of, or impossibility of performance of, any
56
condition set forth in SECTION 6.1(h) or SECTION 6.1(i) shall
constitute a breach of the representations and warranties of Parent
and that in the case of the Company a failure of, or impossibility of
performance of, any condition set forth in SECTION 6.2(i) or SECTION
6.2(j) shall constitute a breach of the representations and warranties
of the Company which, in each case, shall entitle the parties to
exercise their respective rights in connection therewith under this
Agreement.
ARTICLE VII
TERMINATION
Section 7.1 TERMINATION. This Agreement may be terminated at
any time prior to the Effective Time, whether before or after the
Company Shareholder Approval or the Parent Shareholder Approval:
(a) by mutual written consent duly authorized by the
respective Boards of Directors of Parent and the Company; or
(b) by Parent:
(i) if, prior to the Effective Time, the Company has
breached in any material respect any representation, warranty,
covenant or other agreement contained in this Agreement, which (A)
would give rise to the failure of a condition set forth in clause (h)
or (i) of SECTION 6.1, (ii) which is not cured within thirty (30) days
after written notice thereof or is incapable of being cured by the
Company, or (B) has not been waived by Parent pursuant to the
provisions hereof;
(ii) if the Company willfully and materially breaches
its obligations under SECTION 5.8;
(iii) if at the Company Shareholder Meeting (including
any adjournment or postponement thereof) the Company Shareholder
Approval shall not have been obtained; or
(iv) in accordance with SECTION 5.9(c); PROVIDED, that,
in order for the termination of this Agreement pursuant to this
SECTION 7.1(b)(iv) to be deemed effective, Parent shall have complied
with all provisions contained in SECTION 5.9 and SECTION 7.3,
including the payment of the Termination Fee and Expenses as provided
therein.
(c) by the Company:
(i) if, prior to the Effective Time, Parent or Merger
Sub has breached in any material respect any representation, warranty,
covenant or other agreement contained in this Agreement which (A)
would give rise to the failure of a condition set forth in clauses (i)
and (j) of SECTION 6.2, which is not cured within thirty (30) days
after written notice thereof or is incapable of being cured by the
57
Parent; or (B) has not been waived by the Company pursuant to the
provisions hereof;
(ii) if the Parent willfully and materially breaches
its obligations under SECTION 5.9;
(iii) if at the Parent Shareholder Meeting (including
any adjournment or postponement thereof), the Parent Shareholder
Approval shall not have been obtained; or
(iv) in accordance with SECTION 5.8(c); PROVIDED, that,
in order for the termination of this Agreement pursuant to this
SECTION 7.1(c)(iv), to be deemed effective, the Company shall have
complied with all provisions contained in SECTION 5.8 and SECTION 7.3,
including the payment of the Termination Fee and Expenses as provided
therein.
(d) by either Parent or the Company:
(i) if the Effective Time of the Merger has not
occurred on or prior to February 28, 2002 (the "TERMINATION DATE");
provided, that the right to terminate this Agreement pursuant to this
clause shall not be available to any party whose failure to fulfill
any material obligation of this Agreement or other material breach of
this Agreement has been the cause of, or resulted in, the failure of
the Effective Time of the Merger to have occurred on or prior to the
aforesaid date; or
(ii) if any court of competent jurisdiction or any
Governmental Entity having authority with respect thereto shall have
issued an order, decree or ruling or taken any other action
permanently restricting, enjoining, restraining or otherwise
prohibiting the Transactions and such order, decree, ruling or other
action shall have become final and non-appealable and prior to such
termination and subject to the exclusions under SECTION 5.6(c), the
parties shall have used reasonable best efforts to resist, resolve, or
lift, as applicable, such judgment, injunction, order or decree.
Section 7.2 EFFECT OF TERMINATION. In the event of
termination of this Agreement by Parent or the Company, as provided in
SECTION 7.1, this Agreement shall forthwith become void and there
shall be no liability or obligation hereunder on the part of the
Company, Parent or Merger Sub or their respective officers or
directors (except as set forth in SECTION 3.21, SECTION 4.20, SECTION
5.5, this SECTION 7.2 and SECTIONS 7.3, 9.3, 9.5, 9.6, 9.7, 9.8, 9.9,
SECTION 9.10, SECTION 9.15 and SECTION 9.18, which shall survive the
termination); provided, however, that nothing contained in this
SECTION 7.2 or in SECTION 7.3 shall relieve any party hereto from any
liability for any willful and material breach by such party of any of
its representations, warranties, covenants or agreements set forth in
this Agreement which entitled the party to terminate or rescind this
Agreement, whether by the express provisions hereof or otherwise.
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Section 7.3 PAYMENT OF CERTAIN FEES AND EXPENSES. (a) Except
as set forth in this SECTION 7.3, all fees and expenses incurred by
Parent and/or Merger Sub in connection with this Agreement and the
Transactions contemplated hereby shall be paid by Parent and/or Merger
Sub, and all fees and expenses incurred by the Company in connection
with this Agreement and the Transactions contemplated hereby shall be
paid by the Company, in each case, whether or not the Merger is
consummated; provided, however that:
(i) subject to SECTION 7.3(a)(ii) below, Parent and
the Company shall share equally all SEC filing fees and printing
expenses incurred in connection with the printing and filing of the
Proxy Statement (including any preliminary materials related thereto),
the Registration Statement, and, in each case, any amendments or
supplements thereto, and
(ii) whether or not the transactions contemplated by
this Agreement are consummated, the Company shall, in addition to the
payment of fees and expenses incurred by it, pay by wire transfer to
Eimo on the third Business Day of each month, beginning with the first
month following the month in which this Agreement is executed, the sum
of $100,000 per month for application by Eimo to the following costs
incurred by Eimo in connection with the negotiation, drafting,
preparation and execution of this Agreement and the documents and
transactions contemplated hereby:
(A) all outside legal fees and expenses;
(B) all printing costs and related expenses
incurred by Eimo after the date of this
Agreement in connection with the printing and
filing of the Proxy Statement (including any
preliminary materials related thereto) and
the Registration Statement and, in each case,
any pre-effective or post-effective
amendments or supplements thereto;
(C) all outside accounting fees and expenses
incurred by Eimo after the date of this
Agreement in connection with the negotiation,
drafting, preparation and execution of this
Agreement and the documents and transactions
contemplated hereby; and
(D) in addition to the costs and expenses covered
under clauses (A) through (C) above, all
filing fees and other costs incurred in
connection with a filing under the HSR Act;
PROVIDED, HOWEVER, that the total amount payable by the Company
pursuant to this SECTION 7.3(a)(ii) shall not exceed $400,000 in the
aggregate and FURTHER PROVIDED that, in the event the transactions
59
contemplated by this Agreement are not consummated and Eimo's expenses
provided for by this SECTION 7.3(a)(ii) are less than $400,000, Eimo
shall promptly, after a final accounting, but in no event later than
sixty (60) days after Termination of this Agreement, refund to Triple
S any payments by Triple S which are not applied by Eimo to payment of
the expenses set forth in this SECTION 7.3(a)(ii), but FURTHER
PROVIDED, however, that if this Agreement is terminated by Eimo under
circumstances that would otherwise entitle Eimo to payment of
Expenses, that Eimo may set off such excess amounts paid to it, if
any, against any other Expenses, it being agreed that any such set-off
shall not constitute a satisfaction or compromise of any remaining
Expenses otherwise due to Eimo.
Each party represents, warrants and covenants that it has paid,
or will pay within seven (7) days after the date hereof, all printing
expenses for which it has been invoiced prior to the date of this
Agreement.
(b) If this Agreement is terminated by Parent in accordance
with SECTION 7.1(b)(i) as a result of a willful breach by the Company,
or is terminated by Parent in accordance with SECTION 7.1(b)(ii), or
SECTION 7.1(b)(iii), then the Company shall pay to Parent the
Termination Fee and its Expenses. If this Agreement is terminated by
Parent in accordance with SECTION 7.1(b)(iv), then Parent shall pay to
the Company the Termination Fee and the Company's Expenses. If this
Agreement is terminated by Parent in accordance with SECTION 7.1(b)(i)
hereof as a result of a non-willful breach by Company, then the
Company shall pay to Parent the Parent's Expenses.
(c) If this Agreement is terminated by the Company pursuant
to SECTION 7.1(c)(i) as a result of a willful breach by Parent or is
terminated by the Company in accordance with SECTION 7.1(c)(ii),
SECTION 7.1(c)(iii) or SECTION 7.1(c)(iv), then Parent shall pay to
the Company the Termination Fee and its Expenses. If this Agreement
is terminated by the Company in accordance with SECTION 7.1(c)(i) as a
result of a non-willful breach by Parent, then Parent shall pay the
Company its Expenses.
(d) The parties acknowledge that the agreements contained
in SECTION 7.3(b) and SECTION 7.3(c) are an integral part of the
transactions contemplated by this Agreement, and that, without these
agreements, the Company and Parent would not enter into this
Agreement.
(e) Any payment of the Termination Fee and/or the
Expenses pursuant to this SECTION 7.3 shall be made:
(1) in the case of a termination pursuant to
SECTION 7.1(b)(i), SECTION 7.1(b)(ii), SECTION
7.1(b)(iii), SECTION 7.1(c)(i), SECTION 7.1(c)(ii) or
SECTION 7.1(c)(iii), within one Business Day after
termination of this Agreement,
60
(2) in the case of a termination pursuant to
SECTION 7.1(b)(iv), $1.4 million of the Termination Fee
will be paid within one Business Day after termination
of this Agreement, and, if a Parent Inclusive Superior
Proposal is consummated within one year from the date
of such termination, the remaining $0.8 million of the
Termination Fee, and the Expenses of the Company, will
be paid upon the consummation of the Company Superior
Proposal,
(3) in the case of a termination pursuant to
SECTION 7.1(c)(iv), $1.4 million of the Termination Fee
will be paid within one Business Day after termination
of this Agreement, and, if a Company Proposal is
consummated within one (1) year from the date of such
termination, the remaining $0.8 million of the
Termination Fee, and the Expenses of the Parent and
Merger Sub, will be paid upon the consummation of the
Company Superior Proposal.
(f) If either party fails to pay to (or reimburse) the
other party any fee or expense due hereunder (including the
Termination Fee), such party shall pay the costs and expenses
(including legal fees and expenses) in connection with any action,
including the filing of any lawsuit or other legal action, taken to
collect payment, together with interest on the amount of any unpaid
fee and/or expense at the publicly announced prime rate of Citibank,
N.A. from the date such fee was required to be paid to the date it is
paid.
ARTICLE VIII
DEFINITIONS AND INTERPRETATION
Section 8.1 DEFINITIONS. For all purposes of this Agreement,
except as otherwise expressly provided or unless the context clearly
requires otherwise:
"ADJUSTED OPTION" shall have the meaning set forth in
SECTION 5.7(a).
"AFFILIATE" shall have the meaning set forth in Rule 12b-2
of the Exchange Act.
"AGREEMENT" or "THIS AGREEMENT" shall mean this Amended and
Restated Agreement and Plan of Merger, together with the Exhibits
hereto and the Parent Disclosure Schedule and the Company Disclosure
Schedule.
"ANTITRUST LAWS" shall have the meaning set forth in SECTION
5.6(c).
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"BALANCE SHEET" shall mean the March 31, 2001 audited
balance sheet of the Company and its consolidated subsidiaries
included in the 2001 10-K Draft.
"BALANCE SHEET DATE" shall mean the date of the Balance
Sheet.
"BUSINESS DAY" means a day other than a Saturday, a Sunday
or a day on which banks in New York, New York or Helsinki, Finland are
permitted or required to close.
"CERTIFICATE" shall have the meaning set forth in SECTION
2.1(c).
"CHARTER DOCUMENTS" means as to any Person the articles of
incorporation and bylaws or comparable organizational documents.
"CLOSING" shall mean the closing referred to in SECTION 1.3.
"CLOSING DATE" shall mean the date on which the Closing
occurs.
"CODE" shall have the meaning set forth in the fifth
"whereas" clause of this Agreement.
"COMPANY" shall have the meaning set forth in the first
paragraph of this Agreement.
"COMPANY ACQUISITION PROPOSAL" shall mean any proposal or
offer to acquire not less than 100% of the business or properties of
the Company or a corresponding portion of the capital stock of the
Company, whether by merger, tender offer, exchange offer, sale of
securities or assets, or similar transactions involving the Company or
any Subsidiary, division or operating or principal business unit of
the Company.
"COMPANY AGREEMENTS" shall have the meaning set forth in
SECTION 3.22.
"COMPANY AWARD" shall have the meaning set forth in SECTION
5.7(b).
"COMPANY BOARD OF DIRECTORS" shall mean the board of
directors of the Company.
"COMPANY DISCLOSURE SCHEDULE" shall mean the disclosure
schedule of even date herewith prepared by the Company and delivered
to Parent simultaneously with the execution hereof.
"COMPANY FINANCIAL STATEMENTS" shall mean the financial
statements (including any related notes thereto) of the Company
included in the Company SEC Documents and the 2001 10-K Draft.
62
"COMPANY INTELLECTUAL PROPERTY" shall mean all Intellectual
Property that is necessary to conduct the business of the Company and
its Subsidiaries as presently conducted.
"COMPANY MATERIAL ADVERSE EFFECT" shall mean any event,
change, occurrence, effect, fact or circumstance that is or may
reasonably be expected to be materially adverse to (i) the ability of
the Company to perform its obligations under this Agreement or to
consummate the Transactions, or (ii) the business, tangible assets,
liabilities, results of operations or financial condition of the
Company and its Subsidiaries, taken as a whole, other than any event,
change, occurrence, effect, fact or circumstance (A) relating to the
economy or securities markets of the United States or any other region
in general, (B) relating to changes in conditions generally applicable
to the industries in which the Company and its Subsidiaries are
involved, (C) resulting from entering into this Agreement or the
consummation of the Transactions or the announcement thereof, or (D)
relating to its business, financial condition or results of operations
that has been disclosed in writing to the other party prior to the
date of this Agreement, and PROVIDED, HOWEVER, that notwithstanding
anything in this Agreement to the contrary, the past, present or
future loss, in whole or in part, of any customer or any customer
account, order, contract, program or other similar agreement with any
customer, or sales in connection therewith for any reason, other than
(1) the breach by the Company of any obligation under this Agreement
which is a direct or indirect cause of such loss, or (2) the material
breach by the Company of its obligations to such customer under any
such order, contract, program or other agreement (an "OCCURRENCE"),
shall not (x) constitute a Company Material Adverse Effect, or (y) be
asserted or relied upon as a breach or a misrepresentation of any
representation, covenant or agreement set forth herein, or a failure
of any condition under this Agreement, or (z) permit any party to
terminate this Agreement.
"COMPANY OPTION" shall mean an option or other right to
purchase Shares which has been granted by the Company and which is
outstanding at the Effective Time.
"COMPANY RECOMMENDATION" shall have the meaning set forth in
SECTION 5.3(a).
"COMPANY SEC DOCUMENTS" shall mean each form, report,
schedule, statement and other document required to be filed by the
Company since March 31, 2000 under the Exchange Act or the Securities
Act; PROVIDED, HOWEVER, that none of the information or statements
made by or incorporated by reference in the Company SEC Documents
based on information supplied by Parent specifically for inclusion or
incorporation by reference in the Company SEC Documents shall be
deemed to be part of any Company SEC Document, and no representation
or warranty is made in this Agreement by the Company with respect to
any such information or statements.
63
"COMPANY SHAREHOLDER AGREEMENT" shall mean the agreement,
dated as of the date hereof, among the Major Company Shareholders,
Parent and Merger Sub, pursuant to which each Major Company
Shareholder has granted Parent a proxy with respect to the voting of
all of the Shares held by the Major Company Shareholders upon the
terms and subject to the conditions set forth therein.
"COMPANY SHAREHOLDER MEETING" shall have the meaning set
forth in SECTION 5.3(a).
"COMPANY STOCK PLANS" shall have the meaning set forth in
SECTION 3.3(a).
"COMPANY SUBSIDIARY" shall mean each Person which is a
Subsidiary of the Company.
"COMPANY SUPERIOR PROPOSAL" shall mean an Acquisition
Proposal which satisfies both subsection (x) and subsection (y) of
SECTION 5.8(a).
"COMPANY'S KNOWLEDGE" or "best knowledge of the Company"
shall mean the actual knowledge of A. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇.
"CONFIDENTIALITY AGREEMENT" shall have the meaning set forth
in SECTION 5.5.
"CONVERSION AGREEMENT" shall have the meaning set forth in
SECTION 1.6(c).
"COPYRIGHTS" shall mean U.S. and foreign registered and
unregistered copyrights (including, but not limited to, those in
computer software and databases), rights of publicity and all
registrations and applications to register the same.
"DEPOSIT AGREEMENT" shall mean the Deposit Agreement to be
entered into among Parent, and either Citibank N.A., The Bank of New
York, or ▇▇▇▇▇▇ Guaranty Trust Company, as Parent may select, as
depositary, and all holders and beneficial owners from time to time of
the Parent ADSs, in substantially the form filed with the SEC under
cover of Form F-6 on February 9, 2001 in connection with the Original
Agreement.
"DGCL" shall mean the Delaware General Corporation Law, as
amended.
"EFFECTIVE TIME" shall have the meaning set forth in SECTION
1.2.
"ENVIRONMENTAL CLAIM" shall mean any claim, action,
investigation or notice by any person or entity alleging potential
liability for investigatory, cleanup or governmental response costs,
64
or natural resources or property damages relating to (i) the presence,
or release into the environment, of any Materials of Environmental
Concern at any location owned or operated by the Company or any
Company Subsidiary, or the Parent or any Parent Subsidiary, as the
case may be, or (ii) any violation of any Environmental Law.
"ENVIRONMENTAL LAW" shall mean each federal, state, local
and foreign law and regulation relating to pollution, protection or
preservation of human health or the environment, including, without
limitation, each law and regulation relating to emissions, discharges,
releases or threatened releases of Materials of Environmental Concern,
or otherwise relating to the generation, storage, containment (whether
above ground or underground), disposal, transport or handling of
Materials of Environmental Concern, or the preservation of the
environment or mitigation of adverse effects thereon and each law and
regulation with regard to record keeping, notification, disclosure and
reporting requirements respecting Materials of Environmental Concern.
"ERISA" shall mean the Employee Retirement Income Security
Act of 1974, as amended.
"ERISA AFFILIATE" shall mean any trade or business, whether
or not incorporated, that together with the Company would be deemed a
"single employer" within the meaning of Section 4001(b) of ERISA.
"EXCHANGE ACT" shall mean the Securities Exchange Act of
1934, as amended.
"EXCHANGE AGENT" shall have the meaning set forth in SECTION
2.2(a).
"EXCHANGE FUND" shall have the meaning set forth in SECTION
2.2(b).
"EXCHANGE RATE" for any date shall mean the official
exchange rate between U.S. Dollars and Euros, as announced by the Bank
of Finland on such date.
"EXPENSES" shall mean the reasonable and documented expenses
of a party incurred in connection with the negotiation and execution
of this Agreement and the transactions contemplated hereby (including
but not limited to, reasonable fees and expenses of counsel and
accountants, and out-of-pocket expenses and reasonable fees of
financial advisors), but not exceeding the sum of $1,000,000 in the
aggregate.
"FINNISH COMPANIES ACT" shall mean the Companies Act of
1978, as amended, in Finland.
"FINNISH FINANCIAL SUPERVISION" shall mean the Financial
Supervision Authority of Finland.
65
"FINNISH GAAP" shall mean generally accepted accounting
principles of the Republic of Finland, as in effect from time to time.
"FINNISH TRADE REGISTRY" shall mean the Trade Register
Department of Finnish National Board of Patents and Registration.
"FORM F-4" shall have the meaning set forth in SECTION 3.19.
"GOVERNMENTAL ENTITY" shall mean a court, arbitral tribunal,
administrative agency or commission or other governmental or other
regulatory authority or agency.
"HSE" shall mean the Helsinki Exchanges.
"HSR ACT" shall mean the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust
Improvements Act of 1976, as amended.
"INDEMNIFIED LIABILITIES" shall have the meaning set forth
in SECTION 5.17(a).
"INDEMNIFIED PARTY" shall have the meaning set forth in
SECTION 5.17(a).
"INTELLECTUAL PROPERTY" shall mean all of the following:
Trademarks, Patents, Copyrights and Trade Secrets.
"LIENS" shall have the meaning set forth in SECTION 3.2.
"LISTING PARTICULARS" shall have the meaning set forth in
SECTION 3.19.
"MAJOR COMPANY SHAREHOLDERS" shall mean A. ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇.
"MAJOR PARENT SHAREHOLDERS" shall mean Jalo ▇▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ Jukko and Topi ▇▇▇▇▇▇▇▇.
"MARKET ACT" shall have the meaning set forth in SECTION
3.19.
"MATERIALS OF ENVIRONMENTAL CONCERN" shall mean toxic or
hazardous substances, materials or wastes, solid wastes; petroleum,
petroleum derivatives and petroleum products; asbestos or asbestos-
containing materials; polychlorinated biphenyls; radon or lead or
lead-based paints or materials.
"MBCA" shall mean the Michigan Business Corporation Act, as
amended.
"MERGER" shall mean the merger of Merger Sub into the
Company described in SECTION 1.1.
66
"MERGER CONSIDERATION" shall have the meaning set forth in
SECTION 2.1(c).
"MERGER SUB" shall have the meaning set forth in the first
paragraph of this Agreement.
"MERGER SUB COMMON STOCK" shall mean common stock, par value
$.01 per share, of Merger Sub.
"NON-U.S. MONOPOLY LAWS" shall mean any applicable non-U.S.
laws intended to prohibit, restrict or regulate actions having the
purpose or effect of monopolization or restraint of trade.
"ORDER" means any decree, judgment, injunction, writ or
similar judicial or administrative action and whether temporary,
preliminary or permanent
"PARENT" shall have the meaning set forth in the first
paragraph of this Agreement.
"PARENT ACQUISITION PROPOSAL" shall mean any proposal or
offer to acquire all or a substantial part of the business or
properties of the Parent or all or a substantial portion of the
capital stock of the Parent, whether by merger, tender offer, exchange
offer, sale of securities or assets, or similar transactions involving
the Parent or any Subsidiary, division or operating or principal
business unit of the Parent.
"PARENT ADRs" shall have the meaning set forth in SECTION
2.1(c).
"PARENT ADSs" shall have the meaning set forth in SECTION
2.1(c).
"PARENT AGREEMENTS" shall have the meaning set forth in
SECTION 4.21.
"PARENT BALANCE SHEET DATE" shall mean the date of the most
recent audited balance sheet of the Parent and its consolidated
subsidiaries included in the Parent Financial Statements.
"PARENT DISCLOSURE DOCUMENTS" shall have the meaning set
forth in SECTION 3.19.
"PARENT DISCLOSURE SCHEDULE" shall mean the disclosure
schedule of even date herewith prepared and signed by Parent and
delivered to the Company simultaneously with the execution hereof.
"PARENT EXCLUSIVE SUPERIOR PROPOSAL" shall have the meaning
set forth in SECTION 5.9(a).
67
"PARENT FINANCIAL STATEMENTS" shall mean the financial
statements (including any related notes thereto) of the Parent
included in the Parent Public Reports.
"PARENT INCLUSIVE SUPERIOR PROPOSAL" shall have the meaning
set forth in SECTION 5.9(a).
"PARENT INTELLECTUAL PROPERTY" shall mean all Intellectual
Property that is necessary to conduct the business of Parent and its
Subsidiaries as presently conducted.
"PARENT MATERIAL ADVERSE EFFECT" shall mean any event,
change, occurrence, effect, fact or circumstance that is or may
reasonably be expected to be materially adverse to (i) the ability of
Parent to perform its obligations under this Agreement or to
consummate the Transactions, or (ii) the business, tangible assets,
liabilities, results of operations or financial condition of Parent
and its Subsidiaries, taken as a whole, OTHER THAN any event, change,
occurrence, effect, fact or circumstance (A) relating to the economy
or securities markets of Finland or any other region in general, (B)
relating to changes in conditions generally applicable to the
industries in which Parent and its Subsidiaries are involved, (C)
resulting from entering into this Agreement or the consummation of the
Transactions or the announcement thereof, or (D) relating to its
business, financial condition or results of operations that has been
disclosed in writing to the other party prior to the date of this
Agreement. and PROVIDED, HOWEVER, that notwithstanding anything in
this Agreement to the contrary, the past, present or future loss, in
whole or in part, of any customer or any customer account, order,
contract, program or other similar agreement with any customer, or
sales in connection therewith for any reason, other than (1) the
breach by the Parent of any obligation under this Agreement which is a
direct or indirect cause of such loss, or (2) the material breach by
the Parent of its obligations to such customer under any such order,
contract, program or other agreement (an "OCCURRENCE"), shall not(x)
constitute a Parent Material Adverse Effect, or (y) be asserted or
relied upon as a breach or a misrepresentation of any representation,
covenant or agreement set forth herein, or a failure of any condition
under this Agreement, or (z) permit any party to terminate this
Agreement.
"PARENT OPTION" shall mean an option to purchase Parent
Ordinary Shares, including warrants issued under the Parent's 1999
Warrant Plan or under securities issues under the 2001 Warrant Plan.
"PARENT ORDINARY SHARES" shall mean validly issued, fully
paid and non-assessable ordinary A shares of Parent.
"PARENT PUBLIC REPORTS" shall mean (i) Parent's annual
report for its fiscal year ended December 31, 2000, as filed with the
Finnish Trade Registry, (ii) Parent's quarterly reports for each
fiscal quarter subsequent to December 31, 2000 as submitted to the
68
Finnish Financial Supervision, (iii) the Parent Disclosure Documents,
and (iv) all other reports, schedules, registration statements and
other documents filed by Parent with the Finnish Trade Registry or the
Finnish Financial Supervision or the HSE.
"PARENT RECOMMENDATION" shall have the meaning set forth in
SECTION 5.3(b).
"PARENT SHAREHOLDER AGREEMENT" shall mean the agreement,
dated as of the date hereof, among the Major Parent Shareholders and
the Company pursuant to which each Major Parent Shareholder has
granted the Company a proxy with respect to the voting of the Parent
Ordinary Shares and the Parent Series K Shares upon the terms and
subject to the conditions set forth therein.
"PARENT SHAREHOLDER MEETING" shall have the meaning set
forth in SECTION 5.3(b).
"PARENT SUPERIOR PROPOSAL" shall have the meaning set forth
in SECTION 5.9(a).
"PARENT'S KNOWLEDGE" or "best knowledge of the Parent" shall
mean the actual knowledge of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇▇▇.
"PATENTS" shall mean issued U.S. and foreign patents and
pending patent applications, patent disclosures, and any and all
divisions, continuations, continuations-in-part, reissues,
reexaminations, and extension thereof, any counterparts claiming
priority therefrom, utility models, patents of importation/
confirmation, certificates of invention and like statutory rights.
"PERSON" shall mean a natural person, partnership,
corporation, limited liability company, business trust, joint stock
company, trust, unincorporated association, joint venture,
Governmental Entity or other entity or organization.
"PLAN" shall have the meaning set forth in SECTION 3.12(a).
"PROSPECTUS" shall mean the prospectus of Parent to be
prepared by Parent and included in the Registration Statement filed by
Parent with the SEC pursuant to SECTION 5.3(c), together with all
amendments and supplements thereto and including the exhibits thereto.
"PROXY STATEMENT" shall mean the proxy statement of the
Company prepared by the Company and included in the Registration
Statement to be filed by Parent with the SEC pursuant to SECTION
5.3(c), together with all amendments and supplements thereto and
including the exhibits thereto.
"REGISTRATION STATEMENT" shall have the meaning set forth in
SECTION 3.19.
69
"SEC" shall mean the United States Securities and Exchange
Commission.
"SECTION 368 REORGANIZATION" shall have the meaning set
forth in the fifth "whereas" clause of this Agreement.
"SECURITIES ACT" shall mean the Securities Act of 1933, as
amended.
"SERIES K SHARES" shall mean validly issued, fully paid and
non-assessable Series K shares of Parent.
"SHARES" shall mean shares of common stock, no par value,
issued by the Company.
"SUBSIDIARY" shall mean, with respect to any party, any
corporation or other organization, whether incorporated or
unincorporated, of which (a) at least a majority of the securities or
other interests having by their terms ordinary voting power to elect a
majority of the Board of Directors or others performing similar
functions with respect to such corporation or other organization is
directly or indirectly owned or controlled by such party or by any one
or more of its Subsidiaries, or by such party and one or more of its
Subsidiaries or (b) such party or any other Subsidiary of such party
is a general partner (excluding any such partnership where such party
or any Subsidiary of such party does not have a majority of the voting
interest in such partnership).
"SURVIVING CORPORATION" shall have the meaning set forth in
SECTION 1.1.
"TAX" or "TAXES" shall mean all taxes, charges, fees,
duties, levies, penalties or other assessments imposed by any federal,
state, local or foreign governmental authority, including, but not
limited to, income, gross receipts, excise, property, sales, gain,
use, license, custom duty, unemployment, capital stock, transfer,
franchise, payroll, withholding, social security, minimum estimated,
and other taxes, and shall include interest, penalties or additions
attributable thereto.
"TAX CERTIFICATES" shall have the meaning set forth in
SECTION 5.13(b).
"TAX RETURN" shall mean any material return or report
relating to Taxes.
"TERMINATION DATE" shall have the meaning set forth in
SECTION 7.1(d)(i).
"TERMINATION FEE" shall mean the sum of $2,200,000 in U.S.
currency.
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"TITLE IV PLAN" shall mean a Plan that is subject to Section
302 or Title IV of ERISA or Section 412 of the Code.
"TRADEMARKS" shall mean U.S. and foreign registered and
unregistered trademarks, trade dress, service marks, logos, trade
names, corporate names and all registrations and applications to
register the same.
"TRADE SECRETS" shall mean all categories of trade secrets
as defined in the Uniform Trade Secrets Act including, but not limited
to, business information.
"TRADING DAY" shall mean any day on which securities are
traded on the HSE.
"TRANSACTIONS" shall mean the transactions provided for or
contemplated by this Agreement, including, without limitation, the
Company Shareholder Agreement, the Parent Shareholder Agreement, the
Conversion Agreement and the Merger.
"U.S. GAAP" shall mean United States generally accepted
accounting principles.
"VOTING DEBT" shall mean indebtedness having general voting
rights and debt convertible into securities having such rights.
Section 8.2 INTERPRETATION.
(a) When a reference is made in this Agreement to a section
or article, such reference shall be to a section or article of this
Agreement unless otherwise clearly indicated to the contrary.
(b) Whenever the words "INCLUDE", "INCLUDES" or "INCLUDING"
are used in this Agreement they shall be deemed to be followed by the
words "without limitation."
(c) The words "HEREOF", "HEREIN" and "HEREWITH" and words
of similar import shall, unless otherwise stated, be construed to
refer to this Agreement as a whole and not to any particular provision
of this Agreement, and article, section, paragraph, exhibit and
schedule references are to the articles, sections, paragraphs,
exhibits and schedules of this Agreement unless otherwise specified.
(d) The plural of any defined term shall have a meaning
correlative to such defined term, and words denoting any gender shall
include all genders. Where a word or phrase is defined herein, each
of its other grammatical forms shall have a corresponding meaning.
(e) A reference to any party to this Agreement or any other
agreement or document shall include such party's successors and
permitted assigns.
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(f) A reference to any legislation or to any provision of
any legislation shall include any modification or re-enactment
thereof, any legislative provision substituted therefor and all
regulations and statutory instruments issued thereunder or pursuant
thereto.
(g) The parties have participated jointly in the
negotiation and drafting of this Agreement. In the event an ambiguity
or question of intent or interpretation arises, this Agreement shall
be construed as if drafted jointly by the parties, and no presumption
or burden of proof shall arise favoring or disfavoring any party by
virtue of the authorship of any provisions of this Agreement.
ARTICLE IX
MISCELLANEOUS
Section 9.1 AMENDMENT AND MODIFICATION. This Agreement may be
amended by the parties at any time before or after the Company
Shareholder Approval or the Parent Shareholder Approval; PROVIDED,
HOWEVER, that after any such approval, there shall not be made any
amendment that by law requires further approval by the shareholders of
the Company or the Parent without the further approval of such
shareholders. This Agreement may not be amended except by an
instrument in writing signed on behalf of each of the parties.
Section 9.2 REPRESENTATIONS AND WARRANTIES. None of the
representations and warranties in this Agreement or in any schedule,
instrument or other document delivered pursuant to this Agreement
shall survive the Effective Time. The foregoing sentence shall not
limit any covenant or agreement of the parties which by its terms
contemplates performance after the Effective Time.
Section 9.3 NOTICES. All notices and other communications
hereunder shall be in writing and shall be deemed given if delivered
personally, telecopied (which is confirmed) or sent by an overnight
courier service, such as Federal Express, to the parties at the
following addresses (or at such other address for a party as shall be
specified by like notice):
(a) if to Parent or Merger Sub, to:
Eimo Oyj
▇▇▇▇▇▇▇▇ ▇
▇▇▇-▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇-▇▇▇▇
Telecopy No.: 011-3583-850-5405
with a copy (which shall not constitute
notice) to:
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▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
Promenade II, Suite 3100
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
and
if to the Company, to:
Triple S Plastics, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: A. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy No.: ▇▇▇-▇▇▇-▇▇▇▇
with a copy (which shall not constitute
notice) to:
▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Section 9.4 COUNTERPARTS; TELECOPIER. This Agreement and the
agreements referred to herein may be executed in one or more
counterparts, all of which together shall be considered one and the
same agreement. Transmission by telecopier of an executed counterpart
of the Agreement and such other agreements shall be deemed to
constitute due and sufficient delivery of such counterparts.
Section 9.5 ENTIRE AGREEMENT; NO THIRD PARTY BENEFICIARIES.
This Agreement and the Confidentiality Agreement (including the
documents and the instruments referred to herein and therein): (a)
constitute the entire agreement and supersede all prior agreements and
understandings, both written and oral, among the parties with respect
to the subject matter hereof and thereof, and (b) except as provided
in ARTICLE II, SECTION 5.7, SECTION 5.16, SECTION 5.17 and SECTION
5.19 are not intended to confer upon any person other than the parties
hereto and thereto any rights or remedies hereunder.
Section 9.6 SEVERABILITY. Any term or provision of this
Agreement that is held by a court of competent jurisdiction or other
authority to be invalid, void or unenforceable in any situation in any
jurisdiction shall not affect the validity or enforceability of the
remaining terms and provisions hereof or the validity or
enforceability of the offending term or provision in any other
73
situation or in any other jurisdiction. 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 are fulfilled
to the extent possible.
Section 9.7 GOVERNING LAW. This Agreement shall be governed
by and construed and interpreted in accordance with the laws of the
State of Delaware without giving effect to the principles of conflicts
of law thereof.
Section 9.8 ENFORCEMENT AND INTERPRETATION. The parties agree
that irreparable damage would occur 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 interpret or
enforce specifically the terms and provisions of this Agreement in any
court of the United States located in the State of Delaware or in
Delaware 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 exclusive personal
jurisdiction of any Federal court located in the State of Delaware or
any Delaware state court in the event any dispute arises out of this
Agreement or any of the Transactions contemplated by this Agreement
(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 by this Agreement in
any court other than a Federal or state court sitting in the State of
Delaware.
Section 9.9 WAIVER OF JURY TRIAL. EACH OF PARENT, MERGER SUB
AND THE COMPANY HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY LAW, ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM (WHETHER BASED UPON CONTRACT, TORT OR
OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OF THE
TRANSACTIONS CONTEMPLATED HEREBY.
Section 9.10 TIME OF ESSENCE. Each of the parties hereto
hereby agrees that, with regard to all dates and time periods set
forth or referred to in this Agreement, time is of the essence.
Section 9.11 EXTENSION; WAIVER. At any time prior to the
Effective Time, the parties may (a) extend the time for the
performance of any of the obligations or other acts of the other
parties, (b) waive any inaccuracies in the representations and
warranties of the other parties contained in this Agreement or in any
document delivered pursuant to this Agreement or (c) waive compliance
by the other parties with any of the agreements or conditions
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contained in this Agreement. Any agreement on the part of a party to
any such extension or waiver shall be valid only if set forth in an
instrument in writing signed on behalf of such party. The failure of
any party to this Agreement to assert any of its rights under this
Agreement or otherwise shall not constitute a waiver of those rights.
Section 9.12 ASSIGNMENT. Neither this Agreement not any of the
rights, interests or obligations hereunder shall be assigned by any of
the parties hereto (whether by operation of law or otherwise) without
the prior written content of the other parties, except that Merger Sub
may assign, in its sole discretion, any or all of its rights,
interests and obligations hereunder to Parent or to any direct or
indirect wholly owned Subsidiary of Parent. 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 9.13 MUTUAL RELEASE AND SETTLEMENT AGREEMENT. The
parties shall concurrently with the execution of this Agreement enter
into a Mutual Release and Settlement Agreement in the form attached as
EXHIBIT 9.13.
Section 9.14 PREAMBLE. It is further understood and agreed
that all of the terms of this Agreement, including, without
limitation, the Preamble, are contractual, an integral part of this
Agreement, and not mere recitals, and each of the parties hereto
warrant that they understand the terms of this Agreement and that they
intend to be bound thereby.
Section 9.15 TERMINATION OF PRIOR AGREEMENTS. For the
avoidance of doubt, it is hereby expressly agreed by the parties that:
(i) the Employment Agreements entered into in connection with the
Original Agreement are of no force and effect and the Company warrants
that such agreements were terminated without the imposition of any
liability on the part of the Company or any other Person; and (ii) the
Lock Up Agreement entered into in connection with the Original
Agreement is hereby terminated.
Section 9.16 2001 FORM 10-K. Attached as EXHIBIT 9.16 is a
draft (the "2001 10-K DRAFT") of the Company's Annual Report on Form
10-K for its fiscal year ended March 31, 2001. Such draft is accurate
and complete in all material respects and the 2001 10-K, when filed,
will contain no material changes from the 2001 10-K Draft, except that
the 2001 10-K Draft does not include any disclosure about the
transactions contemplated hereby or by the agreements referenced
herein (including the Mutual Release and Settlement Agreement), which
disclosure may be included in the Company's 2001 10-K as filed with
the SEC.
Section 9.17 INCORPORATION BY REFERENCE IN DISCLOSURE
SCHEDULES. The parties agree that, notwithstanding anything to the
contrary contained herein, the Company Disclosure Schedule shall for
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all purposes (i) be deemed to include any matter reported, disclosed
or reflected in the Company SEC Documents (including the exhibits
thereto), the 2001 10-K Draft, the Company Financial Statements or the
financial statements included in the 2001 10-K Draft, in each case,
with respect to each representation, warranty, covenant and agreement
contained herein to which such matter relates if the failure of such
matter to be included in the Company Disclosure Schedule would
otherwise result in a breach of any such representation, warranty,
covenant or agreement, provided that the applicable document referred
to in this clause (i) with respect to which any such matter is deemed
to be included in the Company Disclosure Schedule did not, as to such
matter, contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein in order to make
the statements made therein, in the light of the circumstances under
which they were made, not misleading, and (ii) with respect to any
other matter required to be disclosed in the Company Disclosure
Schedule (whether or not a specific exception to the Company
Disclosure Schedule is included in or referenced in the applicable
representation, warranty or covenant), be deemed to include such
matter except where the failure of any such matter to be affirmatively
scheduled could reasonably be expected, individually or in the
aggregate, to result in a Company Material Adverse Effect (without
giving effect to any other materiality qualification in the applicable
representation, warranty or covenant).
(a) The parties agree that, notwithstanding anything to the
contrary contained herein, the Parent Disclosure Schedule shall for
all purposes (i) be deemed to include any matter reported, disclosed
or reflected in the Parent Public Records (including the exhibits
thereto), or the Parent Financial Statements, in each case, with
respect to each representation, warranty, covenant and agreement
contained herein to which such matter relates if the failure of such
matter to be included in the Parent Disclosure Schedule would
otherwise result in a breach of any such representation, warranty,
covenant or agreement, provided that the applicable document referred
to in this clause (i) with respect to which any such matter is deemed
to be included in the Parent Disclosure Schedule did not, as to such
matter, contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein in order to make
the statements made therein, in the light of the circumstances under
which they were made, not misleading, and (ii) with respect to any
other matter required to be disclosed in the Parent Disclosure
Schedule (whether or not a specific exception to the Parent Disclosure
Schedule is included in or referenced in the applicable
representation, warranty or covenant), be deemed to include such
matter except where the failure of any such matter to be affirmatively
scheduled could reasonably be expected, individually or in the
aggregate, to result in a Parent Material Adverse Effect (without
giving effect to any other materiality qualification in the applicable
representation, warranty or covenant).
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Section 9.18 CERTAIN WAIVERS. The parties waive all breaches
of representations, warranties, covenants and agreements contained in
this Agreement that occurred prior to the date hereof to the extent
that such breaches, directly or indirectly, related to, arose in
connection with, or resulted from the loss by Parent or the Company of
business, accounts, orders, programs or sales from their respective
principal customer.
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IN WITNESS WHEREOF, Parent, Merger Sub and the Company have
caused this Amended and Restated Agreement to be signed by their
respective officers thereunto duly authorized as of the date first
written above.
EIMO OYJ
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Executive Vice Chairman
SPARTAN ACQUISITION CORP.
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: President and Secretary
TRIPLE S PLASTICS, INC.
By /s/ A. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------
Name: A. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Chief Executive Officer
78