1
EXHIBIT (c)(1)
EXECUTION COPY
AGREEMENT AND PLAN OF MERGER
by and among
CONRAIL INC.,
a Pennsylvania corporation,
GREEN ACQUISITION CORP.,
a Pennsylvania corporation,
and
CSX CORPORATION,
a Virginia corporation,
Dated as of October 14, 1996.
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TABLE OF CONTENTS
Page
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ARTICLE I
THE OFFER AND THE MERGER . . . . . . . . . . .. . . . . . . . . . . . . . . . 2
SECTION 1.1. The Offer . . . . . . . . . . . . . . . . . . . . . . . 2
SECTION 1.2. Green Actions . . . . . . . . . . . . . . . . . . . . . 4
SECTION 1.3. The Merger . . . . . . . . . . . . . . . . . . . . . . . 6
section 1.4. Closing . . . . . . . . . . . . . . . . . . . . . . . . 6
SECTION 1.5. Effective Time . . . . . . . . . . . . . . . . . . . . . 6
SECTION 1.6. Effects of the Merger . . . . . . . . . . . . . . . . . 7
SECTION 1.7. Articles of Incorporation and By-laws;
Directors and Officers . . . . . . . . . . . . . . . . 7
SECTION 1.8. Boards, Committees and Officers. . . . . . . . . . . . . 7
SECTION 1.9. Voting Trust . . . . . . . . . . . . . . . . . . . . . . 8
ARTICLE II
EFFECT OF THE MERGER ON THE CAPITAL STOCK OF THE
CONSTITUENT CORPORATIONS; EXCHANGE OF CERTIFICATES . . . . . . . . . . . .. . . 8
SECTION 2.1. Conversion of Shares . . . . . . . . . . . . . . . . . . 8
SECTION 2.2. Election Procedures . . . . . . . . . . . . . . . . . . . 9
SECTION 2.3. Issuance of White Common Stock
and Payment of Cash; Proration . . . . . . . . . . . . 11
SECTION 2.4. Issuance of White Common Stock . . . . . . . . . . . . . 14
SECTION 2.5. Payment of Cash Consideration . . . . . . . . . . . . . . 14
SECTION 2.6. Stock Transfer Books . . . . . . . . . . . . . . . . . . 15
SECTION 2.7. No Dissenter's Rights . . . . . . . . . . . . . . . . . . 15
SECTION 2.8. No Further Ownership Rights . . . . . . . . . . . . . . . 15
SECTION 2.9. Termination of Exchange Trust . . . . . . . . . . . . . . 15
SECTION 2.10. No Liability . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 2.11. Lost Certificates . . . . . . . . . . . . . . . . . . . . 16
SECTION 2.12. Withholding Rights . . . . . . . . . . . . . . . . . . . 16
ARTICLE III
REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 3.1. Representations and Warranties of Green. . . . . . . . . . 17
SECTION 3.2. Representations and Warranties of White
and Tender Sub . . . . . . . . . . . . . . . . . . . . . 27
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Page
ARTICLE IV
COVENANTS RELATING TO CONDUCT OF BUSINESS . . . . . . . . . . . . . . . . . . . . . 36
SECTION 4.1. Conduct of Business . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 4.2. No Solicitation . . . . . . . . . . . . . . . . . . . . . . . . . 40
ARTICLE V
ADDITIONAL AGREEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 5.1. Preparation of the Form S-4 and the Joint
Proxy Statement; Shareholders Meetings. . . . . . . . . . . . . 43
SECTION 5.2. Letters of Accountants . . . . . . . . . . . . . . . . . . . . . 45
SECTION 5.3. Tax-Free Reorganization . . . . . . . . . . . . . . . . . . . . . 46
SECTION 5.4. Access to Information; Confidentiality . . . . . . . . . . . . . 46
SECTION 5.5. Reasonable Efforts . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 5.6. Stock Options . . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 5.7. Certain Employee Matters . . . . . . . . . . . . . . . . . . . . 50
SECTION 5.8. Indemnification, Exculpation and Insurance . . . . . . . . . . . 51
SECTION 5.9. Fees and Expenses . . . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 5.10. Public Announcements . . . . . . . . . . . . . . . . . . . . . . 53
SECTION 5.11. Affiliates . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 5.12. NYSE Listing . . . . . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 5.13. Shareholder Litigation . . . . . . . . . . . . . . . . . . . . . 54
SECTION 5.14. Green Rights Agreement . . . . . . . . . . . . . . . . . . . . . 54
SECTION 5.15. White Rights Agreement . . . . . . . . . . . . . . . . . . . . . 55
SECTION 5.16. Corporate Headquarters . . . . . . . . . . . . . . . . . . . . . 55
SECTION 5.17. Registration Rights . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 5.18. Financing . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
ARTICLE VI
CONDITIONS PRECEDENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 6.1. Conditions to Each Party's Obligation To
Effect the Merger . . . . . . . . . . . . . . . . . . . . . 56
SECTION 6.2. Conditions to Obligations of White . . . . . . . . . . . . . . . 57
SECTION 6.3. Conditions to Obligation of Green . . . . . . . . . . . . . . . . 58
SECTION 6.4. Frustration of Closing Conditions . . . . . . . . . . . . . . . . 59
ARTICLE VII
TERMINATION, AMENDMENT AND WAIVER . . . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 7.1. Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 7.2. Effect of Termination. . . . . . . . . . . . . . . . . . . . . . 61
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SECTION 7.3. Amendment. . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 7.4. Extension; Waiver. . . . . . . . . . . . . . . . . . . . 62
SECTION 7.5. Procedure for Termination, Amendment,
Extension or Waiver. . . . . . . . . . . . . . . . . . 62
ARTICLE VIII
GENERAL PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 8.1. Nonsurvival of Representations and
Warranties . . . . . . . . . . . . . . . . . . . . . 62
SECTION 8.2. Notices . . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 8.3. Definitions . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 8.4. Interpretation . . . . . . . . . . . . . . . . . . . . . 64
SECTION 8.5. Counterparts . . . . . . . . . . . . . . . . . . . . . . 65
SECTION 8.6. Entire Agreement; No Third-Party
Beneficiaries . . . . . . . . . . . . . . . . . . . . 65
SECTION 8.7. GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . 65
SECTION 8.8. Assignment . . . . . . . . . . . . . . . . . . . . . . . 65
SECTION 8.9. ENFORCEMENT. . . . . . . . . . . . . . . . . . . . . . . 66
SECTION 8.10. Headings . . . . . . . . . . . . . . . . . . . . . . . . 66
SECTION 8.11. Severability . . . . . . . . . . . . . . . . . . . . . . 66
EXHIBIT A Corporate Governance . . . . . . . . . . . . . . . . A-1
EXHIBIT B Form of Affiliate Letter . . . . . . . . . . . . . . B-1
EXHIBIT C Form of Amended and Restated
Articles of Incorporation . . . . . . . . . . . . . . C-1
EXHIBIT D Conditions to the Offer . . . . . . . . . . . . . . . D-1
EXHIBIT E Form of Voting Trust Agreement . . . . . . . . . . . E-1
EXHIBIT F Form of Conrail Tax Letter . . . . . . . . . . . . . F-1
EXHIBIT G Form of CSX Tax Letter . . . . . . . . . . . . . . . G-1
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DEFINED TERMS
Page Section
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Acquisition Agreement 41 Section 4.2
Adjusted Option 49 Section 5.6
affiliate 63 Section 8.3
Agreement 1 Preamble
Amended Green Articles 45 Section 5.1
Amended White Articles 45 Section 5.1
Approval Date 41 Section 4.2
Articles of Merger 6 Section 1.5
Average White Share Price 14 Section 2.3
Cash Election 9 Section 2.2
Cash Portion G-2 Exhibit G
Certificates 9 Section 2.1
Closing 6 Section 1.4
Closing Date 6 Section 1.4
Code 1 Recitals
Company F-1 Exhibit F
Company Capital Stock F-1 Exhibit F
Company Common Stock F-1 Exhibit F
Confidentiality Agreement 47 Section 5.4
Conversion Ratio 11 Section 2.3
disposition F-3 Exhibit F
Effective Time 6 Section 1.5
Election 9 Section 2.2
Election Deadline 10 Section 2.2
Employee Benefit Plans
Environmental Laws 22 Section 3.1
ESOP Preferred Stock F-1 Exhibit F
Exchange Act 2 Section 1.1
Exchange Agent 10 Section 2.2
Exchange Trust 14 Section 2.4
Form S-4 22 Section 3.1
Form of Election 9 Section 2.2
Governmental Entity 20 Section 3.1
Green 1 Preamble
Green Advisors 6 Section 1.2
Green Articles 45 Section 5.1
Green Benefit Plans 24 Section 3.1
Green Common Stock 1 Recitals
Green Disclosure Schedule 17 Section 3.1
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Green Employee Stock Options 18 Section 3.1
Green ESOP Preferred Stock 1 Recitals
Green Filed SEC Documents 23 Section 3.1
Green Fairness Opinions 6 Section 1.2
Green Filed SEC Documents 23 Section 3.1
Green Material Breach 60 Section 7.1
Green Merger Shareholder Approval 25 Section 3.1
Green Merger Shareholders Meeting 44 Section 5.1
Green Option 1 Recitals
Green Pennsylvania Proxy Statement 20 Section 3.1
Green Pennsylvania Shareholder
Approval 25 Section 3.1
Green Pennsylvania Shareholders
Meeting 43 Section 5.1
Green Permits 24 Section 3.1
Green Preferred Stock 18 Section 3.1
Green Rights 19 Section 3.1
Green Rights Agreement 19 Section 3.1
Green Rights Plan Amendment 26 Section 3.1
Green SEC Documents 21 Section 3.1
Green Shareholder Approvals 25 Section 3.1
Green Shareholders Meetings 44 Section 5.1
Green Stock Option Agreement 1 Recitals
Green Stock Plans 18 Section 3.1
GSOP Stock F-2 Exhibit F
HSR Act 20 Section 3.1
issuing party 55 Section 5.17
Joint Proxy Statement 20 Section 3.1
key employee 24 Section 3.1
knowledge 64 Section 8.3
Liens 18 Section 3.1
material 64 Section 8.3
material adverse change 63 Section 8.3
material adverse effect 63 Section 8.3
materially 64 Section 8.3
Merger 6 Section 1.3
Merger Agreement F-1 Exhibit F
Non-Electing Shares 13 Section 2.3
NYSE 21 Section 3.1
Offer 2 Section 1.1
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Offer Price 2 Section 1.1
Offer to Purchase 2 Section 1.1
Offer Documents 3 Section 1.1
Option Agreements 2 Recitals
Parent G-1 Exhibit G
Parent Common Stock F-2 Exhibit F
Pennsylvania Law 6 Section 1.3
Per Share Cash Consideration 9 Section 2.2
Per Share Merger Consideration 9 Section 2.1
person 64 Section 8.3
Proxy Statements 21 Section 3.1
qualified stock options 49 Section 5.6
Railroad CEO A-1 Exhibit A
requesting party 55 Section 5.17
Restraints 56 Section 6.1
Rule 145 B-1 Exhibit B
Schedule 14D-1 3 Section 1.1
Schedule 14D-9 5 Section 1.2
SEC 3 Section 1.1
Second Offer 4 Section 1.1
Securities B-4 Annex I to
Exh. B
Securities Act 21 Section 3.1
Significant Subsidiary 17 Section 3.1
significant subsidiary 17 Section 3.1
STB 15 Section 2.7
Stock Election 9 Section 2.2
Sub F-1 Exhibit F
subsidiary 64 Section 8.3
Superior Proposal 42 Section 4.2
Surviving Corporation 6 Section 1.3
Takeover Proposal 41 Section 4.2
Tax Opinions 46 Section 5.3
Tendered Shares 11 Section 2.3
Tender Sub 1 Preamble
Termination Fee 52 Section 5.9
Transfer Taxes 53 Section 5.9
Voting Trust 8 Section 1.9
White 1 Preamble
White Articles 45 Section 5.1
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White Benefit Plans 34 Section 3.2
White Common Stock 2 Recitals
White Disclosure Schedule 27 Section 3.2
White Employee Stock Options 28 Section 3.2
White Filed SEC Documents 32 Section 3.2
White Material Breach 60 Section 7.1
White Option 2 Recitals
White Permits 33 Section 3.2
White Preferred Stock 27 Section 3.2
White Rights 29 Section 3.2
White Rights Agreement 29 Section 3.2
White Rights Plan Amendment 35 Section 3.2
White SEC Documents 31 Section 3.2
White Securities B-1 Exhibit B
White Shareholder Approval 35 Section 3.2
White Shareholders Meeting 44 Section 5.1
White Stock Option Agreement 2 Recitals
White Stock Plans 28 Section 3.2
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AGREEMENT AND PLAN OF MERGER, dated as of October 14, 1996 (this
"Agreement"), by and among CONRAIL INC., a Pennsylvania corporation ("Green"),
GREEN ACQUISITION CORP., a Pennsylvania corporation and a wholly owned
subsidiary of White ("Tender Sub"), and CSX CORPORATION, a Virginia corporation
("White").
WITNESSETH:
WHEREAS, the Board of Directors of Green has approved, and deems
it advisable and in the best interests of Green to consummate, the business
combination contemplated hereby upon the terms and subject to the conditions
set forth herein;
WHEREAS, the respective Boards of Directors of Tender Sub and
White have approved, and deem it advisable and in the best interests of their
respective shareholders to consummate, the business combination contemplated
hereby upon the terms and subject to the conditions set forth herein;
WHEREAS, it is intended that the business combination
contemplated hereby be accomplished by Tender Sub commencing a cash tender
offer for shares of common stock, par value $1.00 per share, of Green
(including the associated Green Rights, "Green Common Stock"), and for shares
of Series A ESOP Convertible Junior Preferred Stock, without par value, of
Green (including the associated Green Rights, "Green ESOP Preferred Stock"), to
be followed by a merger of Green with and into Tender Sub, with Tender Sub
being the surviving corporation, upon the terms and subject to the conditions
set forth herein;
WHEREAS, Green, Tender Sub and White desire to make certain
representations, warranties, covenants and agreements in connection with the
transactions contemplated hereby and also to prescribe various conditions to
the transactions contemplated hereby;
WHEREAS, for United States federal income tax purposes, it is
intended that the Merger provided for herein shall qualify as a reorganization
within the meaning of Section 368(a) of the Internal Revenue Code of 1986, as
amended (the "Code"), and the rules and regulations
10
promulgated thereunder, and this Agreement is intended to be and is adopted as
a plan of reorganization within the meaning of Section 368 of the Code;
WHEREAS, concurrently with the execution and delivery of this
Agreement, Green and White are entering into a stock option agreement (the
"Green Stock Option Agreement"), pursuant to which White shall be granted the
option (the "Green Option") to purchase shares of Green Common Stock, upon the
terms and subject to the conditions set forth therein; and
WHEREAS, concurrently with the execution and delivery of this
Agreement, White and Green are entering into a stock option agreement (the
"White Stock Option Agreement", and, together with the Green Stock Option
Agreement, the "Option Agreements"), pursuant to which Green shall be granted
the option (the "White Option") to purchase shares of common stock, par value
$1.00 per share, of White ("White Common Stock"), upon the terms and subject to
the conditions set forth therein.
NOW, THEREFORE, in consideration of the representations,
warranties, covenants and agreements contained in this Agreement, the parties,
intending to be legally bound, agree as follows:
ARTICLE I
THE OFFER AND THE MERGER
SECTION 1.1. The Offer. (a) As promptly as practicable (but in no
event later than five business days after the public announcement of the
execution hereof), Tender Sub shall commence (within the meaning of Rule 14d-2
under the Securities Exchange Act of 1934, as amended (the "Exchange Act") an
offer (the "Offer") to purchase for cash an aggregate of 17,860,124 shares of
Green Common Stock and Green ESOP Preferred Stock at a price of $92.50 per
share, net to the seller in cash (such price, or such higher price per share as
may be paid in the Offer, being referred to herein as the "Offer Price"),
subject to the conditions set forth in Exhibit D hereto. Tender Sub shall, on
the terms and subject to the prior satisfaction or waiver of the conditions of
the Offer, accept for payment and pay for shares of Green Common Stock and
Green ESOP Preferred Stock tendered as soon as practicable after the later of
the satisfaction of the
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conditions to the Offer and the expiration of the Offer; provided, however,
that no such payment shall be made until after calculation of proration;
provided further that immediately upon the acceptance for payment of and
payment for shares of Green ESOP Preferred Stock pursuant to the Offer, such
shares shall be automatically converted on a one-for-one basis into shares of
Green Common Stock in accordance with the terms of the Green Articles. The
obligations of Tender Sub to commence the Offer and to accept for payment and
to pay for any shares of Green Common Stock or Green ESOP Preferred Stock
validly tendered shall be subject only to the conditions set forth in Exhibit D
hereto. The Offer shall be made by means of an offer to purchase (the "Offer
to Purchase") containing the terms set forth in this Agreement and the
conditions set forth in Exhibit D hereto. Without the written consent of
Green, Tender Sub shall not decrease the Offer Price, decrease the aggregate
number of shares of Green Common Stock and Green ESOP Preferred Stock sought,
change the form of consideration to be paid pursuant to the Offer, modify any
of the conditions to the Offer set forth in Exhibit D hereto, impose conditions
to the Offer in addition to those set forth in Exhibit D hereto, except as
provided in the proviso below, extend the Offer, or amend any other term or
condition of the Offer in any manner which is adverse to the holders of shares
of Green Common Stock, it being agreed that a waiver by Tender Sub of any
condition in its discretion shall not be deemed to be adverse to the holders of
Green Common Stock; provided, however, that Tender Sub shall not waive the
condition set forth in paragraph (c) of Exhibit D without the consent of Green;
and provided further that, if on any scheduled expiration date of the Offer (as
it may be extended in accordance with the terms hereof), all conditions to the
Offer shall not have been satisfied or waived, the Offer may be extended from
time to time without the consent of Green for such period of time as is
reasonably expected to be necessary to satisfy the unsatisfied conditions.
White and Tender Sub agree that, in the event all conditions to their
obligation to purchase shares under the Offer at any scheduled expiration date
thereof are satisfied other than the condition set forth in paragraph (c) of
Exhibit D, Tender Sub shall, from time to time, extend the Offer until the
earlier of (i) 180 days following the date hereof or (ii) such time as such
condition is satisfied or waived in accordance herewith. In addition, the
Offer Price and the number of shares of Green Common Stock or Green ESOP
Preferred Stock sought may be increased and the Offer may be extended to the
extent required by law in connection with such increase, in each case without
the consent of Green. It is agreed that the conditions to the Offer are for
the benefit of White and Tender Sub and may be asserted by White or Tender Sub
regardless of the circumstances giving rise to any such condition (including
any action or inaction by White or Tender Sub not inconsistent with the terms
hereof) or may be waived by White or Tender Sub, in whole or in part at any
time and from time to time, in its sole discretion.
(b) White and Tender Sub shall file with the United States
Securities and Exchange Commission (the "SEC") as soon as practicable on the
date the Offer is commenced, a Tender Offer Statement on Schedule 14D-1 with
respect to the Offer (together with all amendments and supplements thereto and
in
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cluding the exhibits thereto, the "Schedule 14D-1") which shall include, as
exhibits, the Offer to Purchase and a form of letter of transmittal and summary
advertisement (the Schedule 14D-1 and such documents, collectively, together
with any amendments and supplements thereto, the "Offer Documents"). Each of
White and Tender Sub agrees to take all steps necessary to cause the Offer
Documents to be filed with the SEC and to be disseminated to Green's
shareholders, in each case as and to the extent required by applicable federal
securities laws. Each of White and Tender Sub, on the one hand, and Green, on
the other hand, agrees promptly to correct any information provided by it for
use in the Offer Documents if and to the extent that it shall have become false
and misleading in any material respect, and White and Tender Sub further agree
to take all steps necessary to cause the Offer Documents as so corrected to be
filed with the SEC and to be disseminated to Green's shareholders, in each case
as and to the extent required by applicable federal securities laws. Green and
its counsel shall be given the opportunity to review the Offer Documents before
they are filed with the SEC. In addition, White and Tender Sub agree to
provide Green and its counsel in writing with any comments White, Tender Sub or
their counsel may receive from time to time from the SEC or its staff with
respect to the Offer Documents promptly after the receipt of such comments.
White and Tender Sub shall cooperate with Green in responding to any comments
received from the SEC with respect to the Offer and amending the Offer in
response to any such comments.
(c) Subject to the terms and conditions of the Offer, White
shall provide or cause to be provided to Tender Sub on a timely basis the funds
necessary to accept for payment, and pay for, shares of Green Common Stock and
Green ESOP Preferred Stock that Tender Sub becomes obligated to accept for
payment, and pay for, pursuant to the Offer.
(d) At any time following the obtaining of the Green
Pennsylvania Shareholder Approval, if White and its subsidiaries do not already
own 40% or more of the outstanding shares of Green Common Stock on a fully
diluted basis as of the date hereof (excluding for purposes of this Section
1.1(d) shares that would be outstanding upon exercise of the Green Stock Option
Agreement), White may, and at the written request of Green shall, commence an
offer (the "Second Offer") to
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purchase up to that number of shares of Green Common Stock and Green ESOP
Preferred Stock which, when added to the aggregate number of shares of Green
Common Stock and Green ESOP Preferred Stock then beneficially owned by White
(other than pursuant to the Green Stock Option Agreement) equals 40% of such
outstanding shares of Green Common Stock, at a price not less than $92.50.
Green agrees that it shall not make such written request at any time that the
Offer is outstanding and has a scheduled expiration date within 10 business
days of such time. White and Green agree that if the Second Offer is commenced
they will file such documents and make such recommendations and take such other
action as is required by this Agreement in respect of the Offer, and the Second
Offer shall be on terms no less favorable to the shareholders of Green than the
Offer.
SECTION 1.2. Green Actions.
(a) Green hereby approves of and consents to the Offer and
represents that its Board of Directors, at a meeting duly called and held, has
unanimously by the vote of all directors present (i) determined that this
Agreement and the transactions contemplated hereby (including the Offer and the
Merger), the Option Agreements and the transactions contemplated thereby, are
in the best interests of Green, (ii) approved this Agreement and the
transactions contemplated hereby (including the Offer and the Merger), and
approved the Option Agreements and the transactions contemplated thereby, such
determination and approval constituting approval thereof by the Board of
Directors for all purposes of the Pennsylvania Law, and (iii) resolved to
recommend that the shareholders of Green who desire to receive cash for their
shares of Green Common Stock or Green ESOP Preferred Stock accept the Offer and
tender their shares of Green Common Stock or Green ESOP Preferred Stock
thereunder to Tender Sub and that all shareholders of Green approve and adopt
this Agreement and the transactions contemplated hereby; provided, however,
that prior to the purchase by Tender Sub of shares of Green Common Stock and
Green ESOP Preferred Stock pursuant to the Offer, Green may modify, withdraw or
change such recommendation, but only to the extent that Green complies with
Section 4.2 hereof. Green hereby consents to the inclusion in the Offer
Documents of the recommendations of Green's Board of Directors described in
this Section.
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(b) Concurrently with the commencement of the Offer, Green
shall file with the SEC a Solicitation/Recommendation Statement on Schedule
14D-9 (together with all amendments and supplements thereto and including the
exhibits thereto, the "Schedule 14D-9") which shall contain the recommendation
referred to in clauses (i), (ii) and (iii) of Section 1.2(a) hereof; provided,
however, that Green may modify, withdraw or change such recommendation, but
only to the extent that Green complies with Section 4.2 hereof. Green agrees
to take all steps necessary to cause the Schedule 14D-9 to be filed with the
SEC and to be disseminated to Green's shareholders, in each case as and to the
extent required by applicable federal securities laws. Each of Green, on the
one hand, and White and Tender Sub, on the other hand, agrees promptly to
correct any information provided by it for use in the Schedule 14D-9 if and to
the extent that it shall have become false and misleading in any material
respect, and Green further agrees to take all steps necessary to cause the
Schedule 14D-9 as so corrected to be filed with the SEC and to be disseminated
to Green's shareholders, in each case as and to the extent required by
applicable federal securities laws. White and its counsel shall be given the
opportunity to review the Schedule 14D-9 before it is filed with the SEC. In
addition, Green agrees to provide White, Tender Sub and their counsel in
writing with any comments Green or its counsel may receive from time to time
from the SEC or its staff with respect to the Schedule 14D-9 promptly after the
receipt of such comments. Green shall cooperate with White and Tender Sub in
responding to any comments received from the SEC with respect to the Schedule
14D-9 and amending the Schedule 14D-9 in response to any such comments.
(c) In connection with the Offer, if requested by Tender Sub,
Green shall promptly furnish or cause to be furnished to Tender Sub mailing
labels, security position listings and any available listing or computer file
containing the names and addresses of the record holders of the shares of Green
Common Stock as of a recent date, and shall furnish Tender Sub with such
information and assistance (including updated information) as Tender Sub or its
agents may reasonably request in communicating the Offer to the shareholders of
Green.
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(d) Green has received the written opinions of Lazard Freres &
Co. and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated (the "Green Advisors"), each dated as
of the date of this Agreement, to the effect that, as of such date, the
consideration to be received by Green shareholders (other than Tender Sub and
its affiliates) pursuant to the Offer and Merger, taken together, is fair from
a financial point of view to such holders (the "Green Fairness Opinions").
Green has delivered to Tender Sub a copy of the Green Fairness Opinions.
SECTION 1.3. The Merger. (a) Upon the terms and subject to the
conditions set forth in this Agreement, and in accordance with the Pennsylvania
Business Corporation Law of 1988, as amended (the "Pennsylvania Law"), Green
shall be merged with and into Tender Sub at the Effective Time (the "Merger").
Tender Sub shall be the surviving corporation (the "Surviving Corporation") of
the Merger and shall succeed to and assume all rights and obligations of Green
in accordance with the Pennsylvania Law.
(b) If for any reason the parties hereto are unable to obtain
either of the Tax Opinions referred to in Section 5.3(a) on or as of the
Closing Date, then the Merger shall be effected such that Tender Sub shall be
merged with and into Green, with Green being the "Surviving Corporation" for
all purposes hereunder, and such transaction shall be the "Merger" for all
purposes hereunder. In such event, the parties agree to execute an appropriate
amendment to this Agreement in order to reflect the foregoing.
SECTION 1.4. Closing. The closing of the Merger (the "Closing")
shall take place at 10:00 a.m. on a date to be specified by the parties (the
"Closing Date"), which (subject to satisfaction or waiver of the conditions set
forth in Article VI) shall be no later than the second business day after
satisfaction or waiver of the conditions set forth in Section 6.1, unless
another time or date is agreed to by the parties hereto. The Closing shall be
held at such location in the City of New York as is agreed to by the parties
hereto.
SECTION 1.5. Effective Time. Subject to the provisions of this
Agreement, as soon as practicable on or after the Closing Date, the parties
shall file articles of merger or other appropriate documents (such documents,
collectively, the "Articles of Merger") executed in accordance with the
relevant provisions of the Pennsylvania Law and shall make all other filings or
recordings as may be required under the Pennsylvania Law. The Merger shall
become effective at such time as the Articles of Merger are duly filed with the
Pennsylvania Department of State, or at such subsequent date or time as White,
Tender Sub and Green shall agree and shall be specified in the Articles of
Merger (the time the Merger becomes effective being hereinafter referred to as
the "Effective Time").
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SECTION 1.6. Effects of the Merger. The Merger shall have the
effects set forth in Chapter 19 of the Pennsylvania Law.
SECTION 1.7. Articles of Incorporation and By-laws; Directors and
Officers.
(a) The articles of incorporation and by-laws of Tender Sub, as
in effect immediately prior to the Effective Time, shall be the articles of
incorporation and by-laws, respectively, of the Surviving Corporation until
thereafter changed or amended as provided therein or by applicable law,
provided that the articles of incorporation of the Surviving Corporation shall
provide that the Surviving Corporation shall be named "Conrail Inc."
(b) Subject to Section 1.8, the directors of Tender Sub and the
officers of Green at the Effective Time shall, from and after the Effective
Time, be the initial 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 Surviving Corporation's articles of incorporation and by-laws.
SECTION 1.8. Boards, Committees and Officers. The Board of
Directors, committees of the Board of Directors, composition of such committees
(including chairmen thereof) and officers of White and/or the Surviving
Corporation (as indicated on Exhibit A hereto) shall be as set forth on
Exhibit A hereto until the earlier of the resignation or removal of any
individual listed on or designated in accordance with Exhibit A or until their
respective successors are duly elected and qualified, as the case may be, it
being agreed that if any director shall be unable to serve as a director
(including as a member or chairman of any committee) at the Effective Time the
party which designated such individual as indicated in Exhibit A shall
designate another individual to serve in such individual's place. If any
officer listed on or appointed in accordance with Exhibit A ceases to be a
full-time employee of Green, Tender Sub or White prior to the Effective Time,
the parties shall agree upon another person to serve in such person's stead.
The committees of the Board of Directors of White shall have such authority as
may, subject to applicable law, be delegated to them by the Board of Directors
of White.
SECTION 1.9. Voting Trust. The parties agree that, simultaneously
with the purchase by White, Tender Sub or their affiliates of shares of Green
Common Stock and Green ESOP Preferred Stock pursuant to the Offer, the Green
Stock Option Agreement or otherwise, such shares of Green Common Stock
(including pursuant to the automatic conversion of Green ESOP Preferred Stock)
shall be deposited in a voting trust (the "Voting Trust") in accordance with
the terms and conditions of a voting
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trust agreement substantially in the form attached hereto as Exhibit E. The
Voting Trust may not be modified or amended without the prior written approval
of Green unless such modification or amendment is not inconsistent with this
Agreement or the Option Agreements and is not adverse to Green or its
shareholders (it being understood that any change to the terms of the Voting
Trust relating to voting rights or rights and restrictions relating to the
transfer of such shares of Green Common Stock shall in any event require the
prior approval of Green). No power of White or Tender Sub provided for in the
Voting Trust Agreement may be exercised in a manner which violates this
Agreement.
ARTICLE II
EFFECT OF THE MERGER ON THE CAPITAL STOCK OF THE
CONSTITUENT CORPORATIONS; EXCHANGE OF CERTIFICATES
SECTION 2.1. Conversion of Shares.
(a) Each share of Common Stock, par value $1.00 per share, of
Tender Sub issued and outstanding immediately prior to the Effective Time
shall, at the Effective Time, by virtue of the Merger and without any action on
the part of any person, become one duly authorized, validly issued, fully paid
and nonassessable share of common stock of the Surviving Corporation.
(b) Each share of Green Common Stock issued and outstanding
immediately prior to the Effective Time (other than shares of Green Common
Stock to be canceled pursuant to Section 2.1(c) hereof) shall, at the Effective
Time, by virtue of the Merger and without any action on the part of the holder
thereof, be converted into the right to receive such number of duly authorized,
validly issued, fully paid and nonassessable shares of White Common Stock or
cash, without any interest thereon, as specified in Section 2.3 hereof.
(c) All shares of Green Common Stock that are owned by Green as
treasury stock and any shares of Green Common Stock owned by White, Green or
any of their respective subsidiaries shall, at the Effective Time, be canceled
and retired and shall cease to exist, and no shares of White Common Stock or
other consideration shall be delivered or owing in exchange therefor.
(d) On and after the Effective Time, holders of certificates
which immediately prior to the Effective Time represented issued and
outstanding shares of Green Common Stock, including those issuable upon
conversion of the shares of Green ESOP Preferred Stock (which conversion shall
occur automatically pursuant to the terms of the Green Articles prior to the
Effective Time so that, immediately prior to the Effective Time, no shares of
Green ESOP Preferred Stock shall be issued and outstanding), ("Certificates")
shall cease to have any rights as shareholders of Green, except the right to
receive the consideration set
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forth in this Article II (the "Per Share Merger Consideration") with respect to
each share held by them.
SECTION 2.2 Election Procedures. Unless, prior to the Effective
Time, Tendered Shares constitute at least 40% of all outstanding shares of
Green Common Stock and Green ESOP Preferred Stock (in which case each share of
Green Common Stock (including shares of Green Common Stock into which the
shares of Green ESOP Preferred Stock shall have been converted) shall be
converted in the Merger into White Common Stock as provided in Section 2.3(b)
hereof), each holder of shares of Green Common Stock (other than holders of
shares of Green Common Stock to be canceled as set forth in Section 2.1(c)) and
Green ESOP Preferred Stock shall have the right to submit a request specifying
the number of shares that such holder desires to have converted into shares of
White Common Stock in the Merger, and the number of shares that such holder
desires to have converted into the right to receive $92.50, per share, without
interest (the "Per Share Cash Consideration"), in the Merger in accordance with
the following procedures:
(a) Each holder of shares of Green Common Stock and
Green ESOP Preferred Stock may specify in a request made in
accordance with the provisions of this Section 2.2 (herein
called an "Election") (i) the number of shares owned by such
holder that such holder desires to have converted into shares of
White Common Stock in the Merger (a "Stock Election") and (ii)
the number of shares owned by such holder that such holder
desires to have converted into the right to receive the Per
Share Cash Consideration in the Merger (a "Cash Election").
(b) White shall prepare a form reasonably acceptable to
Green (the "Form of Election") which shall be mailed to Green's
shareholders in accordance with this Section 2.2 so as to permit
Green's shareholders to exercise their right to make an Election
prior to the Election Deadline.
(c) White shall use reasonable efforts to make the Form
of Election available to all shareholders of Green at least ten
business days prior to the Election Deadline.
(d) Any Election shall have been made properly only if
the person authorized to receive Elections and to act as exchange
agent under this Agreement (the "Exchange Agent") shall have
received, by 5:00 p.m. local time in the city in which the
principal office of such Exchange Agent is located, on the date
of the Election Deadline, a Form of Election properly completed
and signed and accompanied by Certificates to which such Form of
Election relates (or by an appropriate guarantee of delivery of
such Certificates, as set forth in such Form of Election, from a
member of any registered national securities exchange or of the
National Association of Securities Dealers, Inc. or a commercial
bank or trust company in the United States provided such
Certificates are in fact delivered to the Exchange Agent
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by the time required in such guarantee of delivery). Failure to
deliver shares covered by such a guarantee of delivery within
the time set forth on such guarantee shall be deemed to
invalidate any otherwise properly made Election. As used
herein, "Election Deadline" means the date announced by White,
in a news release delivered to the Dow ▇▇▇▇▇ News Service, as
the last day on which Forms of Election will be accepted;
provided that such date shall be a business day no earlier than
twenty business days prior to the Effective Time and no later
than the date on which the Effective Time occurs and shall be at
least five business days following the date of such news
release; provided further that White shall have the right to set
a later date as the Election Deadline so long as such later date
is no later than the date on which the Effective Time occurs.
(e) Any Green shareholder may at any time prior to the
Election Deadline change his or her Election by written notice
received by the Exchange Agent prior to the Election Deadline
accompanied by a properly completed and signed, revised Form of
Election.
(f) Any Green shareholder may, at any time prior to the
Election Deadline, revoke his or her Election by written notice
received by the Exchange Agent prior to the Election Deadline or
by withdrawal prior to the Election Deadline of his or her
Certificates, or of the guarantee of delivery of such
Certificates, previously deposited with the Exchange Agent. All
Elections shall be revoked automatically if the Exchange Agent
is notified in writing by White or Green that this Agreement has
been terminated. Any Green shareholder who shall have deposited
Certificates with the Exchange Agent shall have the right to
withdraw such Certificates by written notice received by the
Exchange Agent and thereby revoke his Election as of the
Election Deadline if the Merger shall not have been consummated
prior thereto.
(g) White shall have the right to make rules, not
inconsistent with the terms of this Agreement, governing the
validity of the Forms of Election, the manner and extent to
which Elections are to be taken into account in making the
determinations prescribed by Section 2.3, the issuance and
delivery of certificates for shares of White Common Stock into
which shares of Green Common Stock are converted in the Merger
and the payment of cash for shares of Green Common Stock
converted into the right to receive Per Share Cash Consideration
in the Merger.
SECTION 2.3. Issuance of White Common Stock and Payment of Cash;
Proration. The manner in which each share of Green Common Stock (other than
shares of Green Common Stock to be canceled as set forth in Section 2.1(c))
shall be converted into shares of White Common Stock or the right
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to receive cash on the Effective Date shall be as set forth in this Section
2.3. All references to "outstanding" shares of Green Common Stock in Section
2.2 and this Section 2.3 shall mean all shares of Green Common Stock issued and
outstanding immediately prior to the Effective Time on a fully diluted basis,
including all shares of Green Common Stock issuable upon conversion of the
shares of Green ESOP Preferred Stock, held by the Green Employee Benefits Trust
and issuable upon exercise of outstanding Green Employee Stock Options and all
shares of Green Common Stock acquired by Tender Sub pursuant to the Offer or
otherwise, except for shares of Green Common Stock acquired by White pursuant
to the Green Stock Option Agreement (the "Tendered Shares").
(a) As is more fully set forth below, the aggregate number of
shares of Green Common Stock to be converted into shares of White Common Stock
pursuant to the Merger shall be equal as nearly as practicable to 60% of all
outstanding shares of Green Common Stock; and the number of shares of Green
Common Stock to be converted into the right to receive the cash in the Merger
pursuant to this Agreement, together with the Tendered Shares, shall be equal
as nearly as practicable to 40% of all outstanding shares of Green Common
Stock.
(b) If Stock Elections are received for a number of shares of
Green Common Stock that is 60% or less of the outstanding shares of Green
Common Stock, each share of Green Common Stock covered by a Stock Election
shall be converted in the Merger into 1.85619 shares of White Common Stock (the
"Conversion Ratio"). In the event that between the date of this Agreement and
the Effective Time, the issued and outstanding shares of White Common Stock
shall have been affected or changed into a different number of shares or a
different class of shares as a result of a stock split, reverse stock split,
stock dividend, spin-off, extraordinary dividend, recapitalization,
reclassification or other similar transaction with a record date within such
period, in each case which is prohibited pursuant to Section 4.1 without the
consent of Green, the Conversion Ratio shall be appropriately adjusted.
(c) If Stock Elections are received for more than 60% of the
outstanding shares of Green Common Stock, each Non-Electing Share (as defined
in Section 2.3(g)) and each share of Green Common Stock for which a Cash
Election has been received shall be converted into the right to receive cash in
the Merger, and the shares of Green Common Stock for which Stock Elections have
been received shall be converted into shares of White Common Stock and the
right to receive cash in the following manner:
(1) The Exchange Agent shall distribute with respect
to shares of Green Common Stock as to which a stock election has
been made a number of shares of White Common Stock equal to the
conversion ratio per share of Green Common Stock with respect to a
fraction of such shares of Green Common Stock, the numerator of
which fraction shall be 60% of the number of outstanding shares of
Green Common Stock
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and the denominator of which shall be the aggregate number of
shares of green common stock covered by stock elections.
(2) Shares of Green Common Stock covered by a Stock
Election and not fully converted into the right to receive
shares of White Common Stock as set forth in clause (1) above
shall be converted in the Merger into the right to receive the
Per Share Cash Consideration for each share of Green Common
Stock so converted.
d. If the number of Tendered Shares and shares of Green
Common Stock for which Cash Elections are received in the aggregate is 40% or
less of the outstanding shares of Green Common Stock, each share of Green
Common Stock covered by a Cash Election shall be converted in the Merger into
the right to receive the Per Share Cash Consideration.
e. If the number of Tendered Shares and shares of Green
Common Stock for which Cash Elections are received in the aggregate is more
than 40% of the outstanding shares of Green Common Stock, each Non-Electing
Share and each share of Green Common Stock for which a Stock Election has been
received shall be converted in the Merger into a number of shares of White
Common Stock equal to the Conversion Ratio, and, the shares of Green Common
Stock for which Cash Elections have been received shall be converted into the
right to receive the Per Share Cash Consideration and shares of White Common
Stock in the following manner:
(1) The Exchange Agent shall distribute with respect
to shares of Green Common Stock as to which a cash election has
been made the per share cash consideration per share of Green
Common Stock with respect to a fraction of such shares of Green
Common Stock, the numerator of which fraction shall be 40% of the
difference of the number of outstanding shares of Green Common
Stock minus the number of tendered shares and the denominator of
which shall be the aggregate number of shares of Green Common
Stock covered by cash elections.
(2) Shares of Green Common Stock covered by a cash
election and not fully converted into the right to receive the per
share cash consideration as set forth in clause (1) above shall be
converted in the merger into the right to receive a number of
shares of White Common Stock equal to the conversion
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Ratio for Each Share of Green Common Stock so Converted.
(f) If Non-Electing Shares are not converted under either
Section 2.3(c) or Section 2.3(e), the Exchange Agent shall distribute with
respect to each such Non-Electing Share, the Per Share Cash Consideration with
respect to a fraction of such Non-Electing Share, where such fraction is
calculated in a manner that will result in the sum of (i) the number of shares
of Green Common Stock converted into cash pursuant to this Section 2.3(f), (ii)
the number of shares of Green Common Stock for which Cash Elections have been
received and (iii) the number of Tendered Shares purchased pursuant to the
Offer being as close as practicable to 40% of the outstanding shares of Green
Common Stock. Each Non-Electing Share not converted into the right to receive
cash as set forth in the preceding sentence shall be converted in the Merger
into the right to receive a number of shares of White Common Stock equal to the
Conversion Ratio for each Non-Electing Share so converted.
(g) For the purposes of this Section 2.3, outstanding shares
of Green Common Stock as to which an Election is not in effect at the
Election Deadline (other than Tendered Shares) shall be called "Non-Electing
Shares". If White and Green shall determine that any Election is not properly
made with respect to any shares of Green Common Stock, such Election shall be
deemed to be not in effect, and the shares of Green Common Stock covered by
such Election shall, for purposes hereof, be deemed to be Non-Electing Shares.
(h) No certificates or scrip representing fractional shares
of White Common Stock shall be issued upon the surrender for exchange of
Certificates, no dividend or distribution with respect to shares shall be
payable on or with respect to any fractional share and such fractional share
interests shall not entitle the owner thereof to vote or to any other rights of
a shareholder of White. In lieu of any such fractional share of White Common
Stock, White shall pay to each former shareholder of Green who otherwise would
be entitled to receive a fractional share of White Common Stock an amount in
cash determined by multiplying (i) the Average White Share Price on the date on
which the Effective Time occurs by (ii) the fractional interest in a share of
White Common Stock to which such holder would otherwise be entitled. For
purposes hereof, the "Average White Share Price" shall mean the average closing
sales price, rounded to four decimal points, of the White Common Stock as
reported on the New York Stock Exchange Composite Tape, for the twenty (20)
consecutive trading days ending on the trading day which is five (5) trading
days prior to the Effective Time.
SECTION 2.4. Issuance of White Common Stock. Immediately
following the Effective Time, White shall deliver, in trust (the "Exchange
Trust"), to the Exchange Agent, for the benefit of Green shareholders,
certificates representing an aggregate number of shares of White Common Stock
as nearly as practicable equal to the product of the Conversion Ratio and the
number of shares of Green Common Stock to be converted into shares of White
Common Stock as determined in Section 2.3.
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As soon as practicable after the Effective Time, each holder of shares of Green
Common Stock converted into shares of White Common Stock pursuant to Section
2.1(a), upon surrender to the Exchange Agent (to the extent not previously
surrendered with a Form of Election) of one or more Certificates for
cancellation, shall be entitled to receive certificates representing the number
of whole shares of White Common Stock into which such shares of Green Common
Stock shall have been converted in the Merger. No dividends or distributions
that have been declared and having a record date after the Effective Time shall
be paid to persons entitled to receive certificates for shares of White Common
Stock until such persons surrender their Certificates, at which time all such
dividends shall be paid. In no event shall the persons entitled to receive
such dividends be entitled to receive interest on such dividends. If any
certificate for such White Common Stock is to be issued in a name other than
that in which the Certificate surrendered in exchange therefor is registered,
it shall be a condition of such exchange that the person requesting such
exchange shall pay to the Exchange Agent any transfer or other taxes required
by reason of issuance of certificates for such White Common Stock in a name
other than the registered holder of the Certificate surrendered, or shall
establish to the satisfaction of the Exchange Agent that such tax has been paid
or is not applicable.
SECTION 2.5. Payment of Cash Consideration. At the
Closing, White shall deposit into the Exchange Trust, for the benefit of Green
shareholders, an amount in cash equal to the Per Share Cash Consideration
multiplied by the number of shares of Green Common Stock, if any, to be
converted into the right to receive the Per Share Cash Consideration as
determined in Section 2.3. As soon as practicable after the Effective Time,
the Exchange Agent shall distribute to holders of shares of Green Common Stock
converted into the right to receive the Per Share Cash Consideration pursuant
to Section 2.1(a), upon surrender to the Exchange Agent (to the extent not
previously surrendered with a Form of Election) of one or more Certificates for
cancellation, a bank check for an amount equal to $92.50 times the number of
shares of Green Common Stock so converted. In no event shall the holder of any
such surrendered Certificates be entitled to receive interest on any cash to be
received in the Merger. If such check is to be issued in the name of a person
other than the person in whose name the Certificates surrendered for exchange
therefor are registered, it shall be a condition of the exchange that the
person requesting such exchange shall pay to the Exchange Agent any transfer or
other taxes required by reason of issuance of such check to a person other than
the registered holder of the Certificates surrendered, or shall establish to
the satisfaction of the Exchange Agent that such tax has been paid or is not
applicable.
SECTION 2.6. Stock Transfer Books. At the Effective
Time, the stock transfer books of Green shall be closed and there shall be no
further registration of transfers of stock on the records of Green. If, after
the Effective Time, certificates representing shares of Green capital stock are
presented to the Surviving Corporation, they shall be canceled and exchanged
for cash and/or certificates representing White Common Stock pursuant to this
Article II.
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SECTION 2.7. No Dissenter's Rights. In accordance with
Schwabacher v. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇.▇. ▇▇▇ (1948), shareholders of Green shall
not have any dissenter's or like rights; provided, however, that if the Surface
Transportation Board (the "STB") or a court of competent jurisdiction
determines that dissenter's rights are available to holders of shares of Green
capital stock, then such holders shall be provided with dissenter's rights in
accordance with the Pennsylvania Law.
SECTION 2.8. No Further Ownership Rights. All shares of
White Common Stock issued upon the surrender for exchange of Certificates in
accordance with the terms of this Article II (including any cash paid pursuant
to this Article II) shall be deemed to have been issued (and paid) in full
satisfaction of all rights pertaining to the shares theretofore represented by
such Certificates, subject, however, to the Surviving Corporation's obligation
to pay any dividends or make any other distributions with a record date prior
to the Effective Time which may have been declared or made by Green on such
shares of Green Common Stock or Green ESOP Preferred Stock which remain unpaid
at the Effective Time.
SECTION 2.9. Termination of Exchange Trust. Any portion
of the Exchange Trust which remains undistributed to the holders of
Certificates for six months after the Effective Time shall be delivered to
White, upon demand, and any holders of Certificates who have not theretofore
complied with this Article II shall thereafter look only to White for payment
of their claim for the Per Share Cash Consideration or shares of White Common
Stock, any cash, dividends or distributions with respect to White Common Stock.
SECTION 2.10. No Liability. None of White, Green or the
Exchange Agent shall be liable to any person in respect of any shares of White
Common Stock (or dividends or distributions with respect thereto) or cash
delivered to a public official pursuant to any applicable abandoned property,
escheat or similar law. If any Certificate shall not have been surrendered
prior to seven years after the Effective Time (or immediately prior to such
earlier date on which any cash, shares of White Common Stock or any cash
dividends or distributions payable to the holder of such Certificate would
otherwise escheat to or become the property of any Governmental Entity), any
such Per Share Cash Consideration or shares of White Common Stock or cash,
dividends or distributions in respect of such Certificate shall, to the extent
permitted by applicable law, become the property of the Surviving Corporation,
free and clear of all claims or interest of any person previously entitled
thereto.
SECTION 2.11. Lost Certificates. If any Certificate
shall have been lost, stolen or destroyed, upon the making of an affidavit of
that fact by the person claiming such Certificate to be lost, stolen or
destroyed and, if required by White or the Surviving Corporation, the posting
by such person of a bond in such reasonable amount as White or the Surviving
Corpo ration may direct as indemnity against any claim that may be made against
it with respect to such Certificate, the Exchange Agent shall issue in exchange
for such lost, stolen or destroyed Certificate the
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cash or shares of White Common Stock and, if applicable, any cash, dividends
and distributions on shares of White Common Stock deliverable in respect
thereof pursuant to this Agreement.
SECTION 2.12 Withholding Rights. White, Tender Sub or
the Exchange Agent shall be entitled to deduct and withhold from the
consideration otherwise payable pursuant to this Agreement to any holder of
shares of Green Common Stock such amounts as White, Tender Sub or the Exchange
Agent is required to deduct and withhold with respect to the making of such
payment under the Code, or any provision of state, local or foreign tax law.
To the extent that amounts are so withheld and paid over to the appropriate
taxing authority by White, Tender Sub or the Exchange Agent, such withheld
amounts shall be treated for all purposes of this Agreement as having been paid
to the holder of the shares of Green Common Stock in respect of which such
deduction and withholding was made by White, Tender Sub or the Exchange Agent.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1 Representations and Warranties of Green.
Except as disclosed in the Green Filed SEC Documents or as set forth on the
Disclosure Schedule delivered by Green to White prior to the execution of this
Agreement (the "Green Disclosure Schedule"), Green represents and warrants to
White and Tender Sub as follows:
(a) Organization, Standing and Corporate Power. Each
of Green and its Significant Subsidiaries is a corporation or other
legal entity duly organized, validly existing and in good standing or
validly subsisting (with respect to jurisdictions which recognize such
concept) under the laws of the jurisdiction in which it is organized
and has the requisite corporate or other power, as the case may be,
and authority to carry on its business as now being conducted, except
where the failure to be so organized, existing and in good standing or
validly subsisting or to have such power and authority would not have
a material adverse effect with respect to Green. Each of Green and
its Significant Subsidiaries is duly qualified or licensed to do
business and is in good standing or validly subsisting (with respect
to jurisdictions which recognize such concept) in each jurisdiction in
which the nature of its business or the ownership, leasing or
operation of its properties makes such qualification or licensing
necessary, other than in such jurisdictions where the failure to be so
qualified or licensed or to be in good standing or validly subsisting
individually or in the aggregate would not have a material adverse
effect on Green. Green has delivered to White prior to the execution
of this Agreement complete and correct copies of its certificate of
incorporation and by-laws and the certificates of incorporation and
by-laws (or compa-
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26
rable organizational documents) of its Significant Subsidiaries, in each
case as amended to date. As used in this Agreement, a "Significant
Subsidiary" means any subsidiary of Green or White, as the case may be,
that would constitute a "significant subsidiary" of such party within
the meaning of Rule 1-02 of Regulation S-X of the SEC.
(b) Subsidiaries. Exhibit 21 to the Annual Report of Green
on Form 10-K for the fiscal year ended December 31, 1995 includes all
subsidiaries of Green which as of the date of this Agreement are
Significant Subsidiaries. All the outstanding shares of capital stock
of, or other equity interests in, each such Significant Subsidiary have
been validly issued and are fully paid and nonassessable and are owned
directly or indirectly by Green, free and clear of all pledges, claims,
liens, charges, encumbrances and security interests of any kind or
nature whatsoever (collectively, "Liens").
(c) Capital Structure. The authorized capital stock
of Green consists of 250,000,000 shares of Green Common Stock and
25,000,000 shares of preferred stock, without par value, of Green
("Green Preferred Stock"), of which 10,000,000 shares have been
designated as Green ESOP Preferred Stock. At the close of business on
October 10, 1996, (i) 80,178,281 shares of Green Common Stock were
issued and outstanding, (ii) 5,433,970 shares of Green Common Stock
were held by Green (or its subsidiary) in its treasury, (iii) 5,951,461
shares of Green Common Stock were reserved for issuance pursuant to the
Green 1987 Long-Term Incentive Plan and the Green 1991 Long-Term
Incentive Plan, as amended (such plans, collectively, the "Green Stock
Plans"), (iv) 9,571,086 shares of Green Common Stock were reserved for
issuance upon conversion of the Green ESOP Preferred Stock, (v)
9,571,086 shares of Green ESOP Preferred Stock were issued and
outstanding, which shares will be automatically converted into
9,571,086 shares of Green Common Stock prior to the Effective Time
pursuant to the Green Articles, (vi) no shares of Green ESOP Preferred
Stock were held by Green (or its subsidiary) in its treasury, and (vii)
other than the Green ESOP Preferred Stock, no other shares of Green
Preferred Stock have been designated or issued. Except as set forth
above and except for 15,955,477 shares of Green Common Stock reserved
for issuance upon the exercise of the Green Option, at the close of
business on October 10, 1996, no shares of capital stock or other
securities of Green were issued, reserved for issuance or outstanding.
At the close of business on October 10, 1996, there were no outstanding
stock appreciation rights or rights (other than employee stock options
or other rights ("Green Employee Stock Options") to purchase or receive
Green Common Stock granted under the Green Stock Plans) to receive
shares of Green Common Stock on a deferred basis granted under the
Green Stock Plans or otherwise. The Green Disclosure Schedule sets
forth a complete and correct list, as of October 10, 1996, of the
number of shares of Green Common Stock subject to Green Employee Stock
Options and the exercise prices thereof. All outstanding shares of
capital stock of Green are, and all shares
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which may be issued will be, when issued, duly authorized, validly
issued, fully paid and nonassessable and not subject to preemptive
rights. As of the close of business on October 10, 1996, there were no
bonds, debentures, notes or other indebtedness of Green having the right
to vote (or convertible into, or exchangeable for, securities having the
right to vote) on any matters on which shareholders of Green may vote.
Except as set forth above or as contemplated by the Option Agreements,
as of the close of business on October 10, 1996, there were no
outstanding securities, options, warrants, calls, rights, commitments,
agreements, arrangements or undertakings of any kind to which Green or
any of its subsidiaries is a party or by which any of them is bound
obligating Green or any of its subsidiaries to issue, deliver or sell,
or cause to be issued, delivered or sold, additional shares of capital
stock or other securities of Green or of any of its Significant
Subsidiaries or obligating Green or any of its Significant Subsidiaries
to issue, grant, extend or enter into any such security, option,
warrant, call, right, commitment, agreement, arrangement or undertaking.
Except for agreements entered into with respect to the Green Stock
Plans, as of the close of business on October 10, 1996, there were no
outstanding contractual obligations of Green or any of its Significant
Subsidiaries to repurchase, redeem or otherwise acquire any shares of
capital stock of Green or any of its Significant Subsidiaries. As of
the close of business on October 10, 1996, there were no outstanding
contractual obligations of Green to vote or to dispose of any shares of
the capital stock of any of its Significant Subsidiaries. Green has
delivered to White a complete and correct copy of the Rights Agreement,
dated as of July 19, 1989, as amended and supplemented to the date
hereof (the "Green Rights Agreement"), relating to rights ("Green
Rights") to purchase Green Common Stock.
(d) Authority; Noncontravention. Green has all
requisite corporate power and authority to enter into this Agreement and,
subject to the Green Merger Shareholder Approval, in the case of the
Merger, to consummate the transactions contemplated by this Agreement.
Green has all requisite corporate power and authority to enter into the
Option Agreements and to consummate the transactions contemplated
thereby. The execution and delivery of this Agreement and the Option
Agreements by Green and the consummation by Green of the transactions
contemplated by this Agreement and the Option Agreements have been duly
authorized by all necessary corporate action on the part of Green,
subject, in the case of the Merger, to the Green Merger Shareholder
Approval and subject to the Green Pennsylvania Shareholder Approval, in
the case of the Second Offer. This Agreement and the Option Agreements
have been duly executed and delivered by Green and constitute legal,
valid and binding obligations of Green, enforceable against Green in
accordance with their terms. The execution and delivery of this
Agreement and the Option Agreements do not, and the consummation of the
transactions contemplated by this Agreement and the Option Agreements and
compliance with the provisions of this Agreement and the Option
Agreements will not, conflict with, or result in any violation of,
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or default (with or without notice or lapse of time, or both) under, or
give rise to a right of termination, cancelation or acceleration of any
obligation or loss of a material benefit under, or result in the
creation of any Lien upon any of the properties or assets of Green or
any of its Significant Subsidiaries under, (i) the certificate of
incorporation or by-laws of Green or the comparable organizational
documents of any of its Significant Subsidiaries, (ii) subject to giving
such notices and obtaining such consents as may be listed in Section
3.1(d) of the Green Disclosure Schedule, any loan or credit agreement,
note, bond, mortgage, indenture, lease or other agreement, instrument,
permit, concession, franchise or license applicable to Green or any of
its Significant Subsidiaries or their respective properties or assets,
or (iii) subject to the governmental filings and other matters referred
to in the following sentence, any judgment, order, decree, statute, law,
ordinance, rule or regulation applicable to Green or any of its
Significant Subsidiaries or their respective properties or assets, other
than, in the case of clauses (ii) and (iii), any such conflicts,
violations, defaults, rights, losses or Liens that individually or in
the aggregate would not (x) have a material adverse effect on Green, (y)
impair the ability of Green to perform its obligations under this
Agreement (including obligations respecting the Offer and the Merger) or
the Option Agreements, or (z) prevent or materially delay the
consummation of any of the transactions contemplated by this Agreement
(including the Offer and the Merger) or the Option Agreements. No
consent, approval, order or authorization of, or registration,
declaration or filing with, any federal, state, local or foreign
government or any court, administrative or regulatory agency or
commission or other governmental authority or agency (a "Governmental
Entity") is required by or with respect to Green or any of its
Significant Subsidiaries in connection with the execution and delivery
of this Agreement or the Option Agreements by Green or the consummation
by Green of the transactions contemplated by this Agreement or the
Option Agreements, except for: (1) compliance with any applicable
requirements of the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of
1976, as amended (the "HSR Act"); (2) compliance with any applicable
requirements relating to approval of the Merger by the STB; (3) the
filing with the SEC of (A) a proxy statement relating to the Green
Pennsylvania Shareholders Meeting, as contemplated by Section 5.1(b)
hereof (such proxy statement, as amended or supplemented from time to
time, the "Green Pennsylvania Proxy Statement"), (B) a proxy statement
relating to the Green Merger Shareholders Meeting (such proxy statement,
together with the proxy statement relating to the White Shareholders
Meeting, in each case as amended or supplemented from time to time, the
"Joint Proxy Statement" which, together with the Green Pennsylvania
Proxy Statement, are referred to herein as the "Proxy Statements"), (C)
the Schedule 14D-9 and (D) such reports under Section 13(a), 13(d),
15(d) or 16(a) of the Exchange Act, as may be required in connection
with this Agreement, the Option Agreements and the transactions
contemplated by this Agreement and the Option Agreements; (4) the filing
of the Articles of Merger as provided in Section 1.3, the Amended Green
Articles as
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provided in Section 5.1(f) and appropriate documents with the relevant
authorities of other states in which Green is qualified to do business
and such filings with Governmental Entities to satisfy the applicable
requirements of state securities or "blue sky" laws; (5) such filings
with and approvals of the New York Stock Exchange, Inc. (the "NYSE") to
permit the shares of Green Common Stock that are to be issued pursuant
to the Green Stock Option Agreement to be listed on the NYSE; (6) such
other filings and consents as may be required under any environmental,
health or safety law or regulation pertaining to any notification,
disclosure or required approval necessitated by the Offer, the Merger or
the transactions contemplated by this Agreement and the Option
Agreements, the failure of which to be made or obtained would not
reasonably be expected to have a material adverse effect on Green; and
(7) such consents, approvals, orders or authorizations the failure of
which to be made or obtained would not reasonably be expected to have a
material adverse effect on Green.
(e) SEC Documents; Undisclosed Liabilities. Green has
filed all required reports, schedules, forms, statements and other
documents with the SEC since January 1, 1995 (including exhibits,
schedules and documents incorporated by reference, the "Green SEC
Documents"). As of their respective dates, the Green SEC Documents
complied in all material respects with the requirements of the
Securities Act of 1933, as amended (the "Securities Act"), or the
Exchange Act, as the case may be, and the rules and regulations of the
SEC promulgated thereunder applicable to such Green SEC Documents, and
none of the Green SEC Documents when filed contained any untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they
were made, not misleading. Except to the extent that information
contained in any Green SEC Document has been revised or superseded by
a later Green Filed SEC Document, none of the Green SEC Documents
contains any untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under which
they were made, not misleading. The financial statements of Green
included in the Green SEC Documents comply as to form, as of their
respective dates of filing with the SEC, in all material respects with
applicable accounting requirements and the published rules and
regulations of the SEC with respect thereto, have been prepared in
accordance with generally accepted accounting principles (except, in
the case of unaudited statements, as permitted by Form 10-Q of the
SEC) applied on a consistent basis during the periods involved (except
as may be indicated in the notes thereto) and fairly present in all
material respects the consolidated financial position of Green and its
consolidated subsidiaries as of the dates thereof and the consolidated
results of their operations and cash flows for the periods then ended
(subject, in the case of unaudited statements, to normal recurring
year-end audit adjustments). Except (i) as reflected in such
financial statements or in the notes thereto, (ii) as con-
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templated hereunder or under the Option Agreements, (iii) for
liabilities incurred in connection with this Agreement or the
transactions contemplated hereby and (iv) for liabilities and
obligations incurred since July 1, 1996 in the ordinary course of
business consistent with past practice, neither Green nor any of its
subsidiaries has any material liabilities or obligations of any nature
(whether accrued, absolute, contingent or otherwise), including
liabilities arising under any laws relating to the protection of
health, safety or the environment ("Environmental Laws"), required by
generally accepted accounting principles to be reflected in a
consolidated balance sheet of Green and its consolidated subsidiaries
(including the notes thereto) and which, individually or in the
aggregate, could reasonably be expected to have a material adverse
effect on Green.
(f) Information Supplied. None of the information
supplied or to be supplied by Green for inclusion or incorporation by
reference in the registration statement on Form S-4 to be filed with
the SEC by White in connection with the issuance of White Common Stock
in the Merger (the "Form S-4") will, at the time the Form S-4 is filed
with the SEC or at the time it 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. None of the Schedule 14D-9 or
the Green Pennsylvania Proxy Statement nor any of the information
supplied or to be supplied by Green for inclusion or incorporation by
reference in the Offer Documents or the Joint Proxy Statement will, at
the date such documents are first published, sent or delivered to
shareholders and, in the case of the Green Pennsylvania Proxy
Statement, at the time of the Green Pennsylvania Shareholders Meeting,
and, in the case of the Joint Proxy Statement, at the time of the
Green Merger Shareholders Meeting, contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein, in light
of the circumstances under which they are made, not misleading. The
Schedule 14D-9, the Green Pennsylvania Proxy Statement and the Joint
Proxy Statement will comply as to form in all material respects with
the requirements of the Exchange Act and the rules and regulations
thereunder. Notwithstanding the foregoing, no representation or
warranty is made by Green with respect to statements made or
incorporated by reference therein based on information supplied by
White for inclusion or incorporation by reference in any of the
foregoing documents.
(g) Absence of Certain Changes or Events. Except (i)
as disclosed in the Green SEC Documents filed and publicly available
prior to the date of this Agreement (as amended to the date of this
Agreement, the "Green Filed SEC Documents"), (ii) for the transactions
provided for or permitted by this Agreement or in the Option
Agreements, and (iii) for liabilities incurred in connection with or
as a result of this Agreement or the Option Agreements, since the date
of the most recent audited financial
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statements included in the Green Filed SEC Documents, Green has
conducted its business only in the ordinary course, and there has not
been (1) any material adverse change in Green, (2) any declaration,
setting aside or payment of any dividend or other distribution
(whether in cash, stock or property) with respect to any of Green's
capital stock, other than regular quarterly cash dividends of $.475
per share on the Green Common Stock and $.54125 per share on the Green
ESOP Preferred Stock in accordance with the terms thereof, (3) any
split, combination or reclassification of any of Green'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
Green's capital stock, except for issuances of Green Common Stock upon
conversion of Green ESOP Preferred Stock or upon the exercise of Green
Employee Stock Options in accordance with the terms thereof, (4)
except as would have been permitted under Section 4.1, (A) any
granting by Green or any of its Significant Subsidiaries to any
current or former employee, officer or director of Green of any
increase in compensation, except for normal increases in the ordinary
course of business consistent with past practice or as required under
employment agreements in effect as of the date of the most recent
financial statements included in the Green Filed SEC Documents, (B)
any granting by Green or any of its Significant Subsidiaries to any
current or former employee, officer or director of any increase in
severance or termination pay, except as required under any employment,
severance or termination agreements in effect as of the date of the
most recent financial statements included in the Green Filed SEC
Documents, or (C) any entry by Green or any of its subsidiaries into
any employment, consulting, severance, termination or indemnification
agreements, arrangements, or understandings with any such current or
former employee, officer or director, or (5) except insofar as may
have been disclosed in the Green Filed SEC Documents or required by a
change in generally accepted accounting principles, any change in
accounting methods, principles or practices by Green materially
affecting its assets, liabilities or business. For purposes of this
Agreement, "key employee" means any employee whose current salary and
targeted bonus exceeds $100,000 per annum.
(h) Compliance with Applicable Laws. Green and its
subsidiaries hold all permits, licenses, variances, exemptions, orders
and approvals of all Governmental Entities which are material to the
operation of the businesses of Green and its subsidiaries, taken as a
whole (the "Green Permits"). Green and its subsidiaries are in
compliance with the terms of the Green Permits and all applicable
statutes, laws, ordinances, rules and regulations, including
Environmental Laws, except where the failure so to comply,
individually or in the aggregate, could not reasonably be expected to
have a material adverse effect on Green. The businesses of Green and
its subsidiaries are not being conducted in violation of any law,
ordinance or regulation of any Governmental Entity, including
Environmental Laws, except for possible violations which could not
reasonably be expected to have a material adverse effect on Green. As
of the date of this Agreement, no action, demand, requirement or
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investigation by any Governmental Entity with respect to Green or any
of its subsidiaries is pending or, to the knowledge of Green,
threatened, other than, in each case, those the outcome of which,
individually or in the aggregate, could not reasonably be expected to
have a material adverse effect on Green.
(i) Absence of Changes in Benefit Plans. Section 3.1(i) of
the Green Disclosure Schedule sets forth a true and complete
list of all material Green Benefit Plans as of the date hereof.
Except for rail labor agreements negotiated in the ordinary course,
since the date of the most recent financial statements included in the
Green Filed SEC Documents, there has not been any adoption or
amendment in any material respect by Green or any of its subsidiaries
of any collective bargaining agreement or any bonus, pension, profit
sharing, deferred compensation, incentive compensation, stock
ownership, stock purchase, stock option, phantom stock, retirement,
vacation, severance, disability, death benefit, hospitalization,
medical or other plan, arrangement or understanding providing benefits
to any current or former employee, officer or director of Green or any
of its wholly owned subsidiaries (collectively, the "Green Benefit
Plans").
(j) ERISA Compliance. (i) With respect to the Green
Benefit Plans, individually and in the aggregate, no event has occurred
and, to the knowledge of Green, there exists no condition or set of
circumstances, in connection with which Green or any of its subsidiaries
could be subject to any liability that is reasonably likely to have a
material adverse effect on Green (except liability for benefits claims
and funding obligations payable in the ordinary course) under ERISA, the
Code or any other applicable law.
(ii) Each Green Benefit Plan has been administered in
accordance with its terms except for any failures so to administer any
Green Benefit Plan as would not individually or in the aggregate have a
material adverse effect on Green. Green, its subsidiaries and all the
Green Benefit Plans are in compliance with the applicable provisions of
ERISA, the Code and all other applicable laws and the terms of all
applicable collective bargaining agreements, except for any failures to
be in such compliance as would not individually or in the aggregate have
a material adverse effect on Green.
(iii) Except for all equity-based and other awards, the
vesting and exercisability of which will, by their
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terms, be accelerated as a result of the transactions contemplated
hereunder, no employee of Green will be entitled to any additional
benefits or any acceleration of the time of payment or vesting of any
benefits under any Green Benefit Plan as a result of the transactions
contemplated by this Agreement or the Option Agreements.
(k) Voting Requirements. The affirmative vote of the
holders of a majority of the votes cast by all outstanding shares of
Green Common Stock and Green ESOP Preferred Stock, voting as a single
class, (A) at the Green Pennsylvania Shareholders Meeting (the "Green
Pennsylvania Shareholder Approval") to adopt and approve an amendment
to the Green Articles, providing that Subchapter E (Control
Transactions) of Chapter 25 of the Pennsylvania Law shall not be
applicable to Green and (B) at the Green Merger Shareholders Meeting
(the "Green Merger Shareholder Approval" and, together with the Green
Pennsylvania Shareholder Approval, the "Green Shareholder Approvals")
to adopt and approve this Agreement and the transactions contemplated
hereby, are the only votes of the holders of any class or series of
Green capital stock or indebtedness necessary to approve and adopt
this Agreement, the Option Agreements and the transactions
contemplated by this Agreement (including the Offer and the Merger)
and the Option Agreements.
(l) State Takeover Statutes. Subject to receipt of the
Green Pennsylvania Shareholder Approval, in the case of Subchapter E
(Control Transactions) of Chapter 25 of the Pennsylvania Law, and
assuming that White, together with its affiliates, does not have
voting power with respect to 20% or more of the votes that all Green
shareholders would be entitled to cast in an election of directors
prior to the date of filing of the Amended Green Articles, the Board
of Directors of Green has taken all action necessary or advisable so
as to render inoperative with respect to the transactions contemplated
hereby (including the Offer and the Merger) or by the Option
Agreements all applicable state anti-takeover statutes.
(m) Brokers. No broker, investment banker, financial
advisor or other person, other than the Green Advisors, the fees and
expenses of which shall be paid by Green, is entitled to any broker's,
finder's, financial advisor's or other similar fee or commission in
connection with the transactions contemplated by this Agreement and
the Option Agreements based upon arrangements made by or on behalf of
Green. Green has furnished to White true and complete copies of all
agreements under which any such fees or expenses are payable and all
indemnification and other agreements related to the engagement of the
persons to whom such fees are payable.
(n) Green Rights Agreement and By-laws. (A) The Green
Rights Agreement has been amended (the "Green Rights Plan Amendment")
to (i) render the Green Rights Agreement inapplicable to
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34
the Offer, the Merger and the other transactions contemplated by this
Agreement and the Option Agreements and (ii) ensure that (y) neither
White nor any of its wholly owned subsidiaries is an Acquiring Person
(as defined in the Green Rights Agreement) pursuant to the Green
Rights Agreement and (z) a Shares Acquisition Date, Distribution Date
or Trigger Event (in each case as defined in the Green Rights
Agreement) does not occur by reason of the approval, execution or
delivery of this Agreement, and the Green Stock Option Agreement, the
consummation of the Offer, the Merger or the consummation of the other
transactions contemplated by this Agreement and the Green Stock Option
Agreement, and the Green Rights Agreement may not be further amended
by Green without the prior consent of White in its sole discretion.
(B) The Green by-laws have been amended to reduce the notice
period required in connection with a meeting of shareholders to the
minimum period permitted by the Pennsylvania Law with respect to the
transactions contemplated hereby.
(o) Tax Status. Neither Green nor any of its
subsidiaries has taken any action or, as of the date hereof, is aware
of any fact that would jeopardize the qualification of the Merger as a
reorganization under Sections 368(a)(1)(A) and 368(a)(2)(D) of the
Code.
SECTION 3.2. Representations and Warranties of White and
Tender Sub. Except as disclosed in the White Filed SEC Documents or as set
forth on the Disclosure Schedule delivered by White to Green prior to the
execution of this Agreement (the "White Disclosure Schedule"), White and Tender
Sub represent and warrant to Green as follows:
(a) Organization, Standing and Corporate Power. Each of
Tender Sub and White and its Significant Subsidiaries is a corporation
or other legal entity duly organized, validly existing and in good
standing or validly subsisting (with respect to jurisdictions which
recognize such concept) under the laws of the jurisdiction in which it
is organized and has the requisite corporate or other power, as the
case may be, and authority to carry on its business as now being
conducted, except where the failure to be so organized, existing and
in good standing or validly subsisting or to have such power and
authority would not have a material adverse effect with respect to
White. Each of Tender Sub and White and its Significant Subsidiaries
is duly qualified or licensed to do business and is in good standing
or validly subsisting (with respect to jurisdictions which recognize
such concept) in each jurisdiction in which the nature of its business
or the ownership, leasing or operation of its properties makes such
qualification or licensing necessary, other than in such jurisdictions
where the failure to be so qualified or licensed or to be in good
standing or validly subsisting individually or in the aggregate would
not have a
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35
material adverse effect on White. White has delivered to Green prior
to the execution of this Agreement complete and correct copies of its
certificate of incorporation and by-laws and the certificates of
incorporation and by-laws (or comparable organizational documents) of
its Significant Subsidiaries and of Tender Sub, in each case as
amended to date.
(b) Subsidiaries. Exhibit 21 to the Annual Report of
White on Form 10-K for the fiscal year ended December 31, 1995
includes all the subsidiaries of White which as of the date of this
Agreement are Significant Subsidiaries. All the outstanding shares of
capital stock of, or other equity interests in, each such Significant
Subsidiary have been validly issued and are fully paid and
nonassessable and are owned directly or indirectly by White, free and
clear of all Liens.
(c) Capital Structure. The authorized capital stock of
White consists of 300,000,000 shares of White Common Stock and
25,000,000 shares of preferred stock, without par value, of White
("White Preferred Stock"). At the close of business on October 11,
1996, (i) 216,536,551 shares of White Common Stock were issued and
outstanding, (ii) 28,020,494 shares of White Common Stock were
reserved for issuance pursuant to the White 1987 Long-Term
Performance Plan, White 1990 Stock Award Plan, White Shareholders
Dividend Reinvestment Plan, White Employees Stock Purchase and
Dividend Reinvestment Plan, White Stock Plan for Directors and the
White Stock Purchase and Loan Plan (such plans, collectively, the
"White Stock Plans"), and (iii) no shares of White Preferred Stock
have been designated (other than 250,000 shares designated as the
$7.00 Cumulative Convertible Preferred Stock, Series A and 3,000,000
shares designated as the Junior Participating Preferred Stock, Series
B) or issued. Except as set forth above and except for 43,090,773
shares of White Common Stock reserved for issuance upon the exercise
of the White Option, at the close of business on October 11, 1996, no
shares of capital stock or other voting securities of White were
issued, reserved for issuance or outstanding. At the close of
business on October 11, 1996, there were no outstanding stock
appreciation rights or rights (other than employee stock options or
other rights ("White Employee Stock Options") to purchase or receive
White Common Stock granted under the White Stock Plans) to receive
shares of White Common Stock on a deferred basis granted under the
White Stock Plans or otherwise. The White Disclosure Schedule sets
forth a complete and correct list, as of October 11, 1996, of the
number of shares of White Common Stock subject to White Employee Stock
Options and the exercise prices thereof. All outstanding shares of
capital stock of White are, and all shares which may be issued will
be, when issued, duly authorized, validly issued, fully paid and
nonassessable and not subject to preemptive rights. As of the close
of business on October 11, 1996, there were no bonds, debentures,
notes or other indebtedness of White having the right to vote (or
convertible into, or exchangeable for, securities having the right to
vote) on any matters on which shareholders of White may vote. Except
as set
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36
forth above or as contemplated by the Option Agreements, as of the
close of business on October 11, 1996, there were no outstanding
securities, options, warrants, calls, rights, commitments, agreements,
arrangements or undertakings of any kind to which White or any of its
subsidiaries is a party or by which any of them is bound obligating
White or any of its subsidiaries to issue, deliver or sell, or cause
to be issued, delivered or sold, additional shares of capital stock or
other securities of White or of any of its Significant Subsidiaries or
obligating White or any of its Significant Subsidiaries to issue,
grant, extend or enter into any such security, option, warrant, call,
right, commitment, agreement, arrangement or undertaking. Except for
agreements entered into with respect to the White Stock Plans, as of
the close of business on October 11, 1996, there were no outstanding
contractual obligations of White or any of its subsidiaries to
repurchase, redeem or otherwise acquire any shares of capital stock of
White or any of its Significant Subsidiaries. As of the close of
business on October 11, 1996, there were no outstanding contractual
obligations of White to vote or to dispose of any shares of the
capital stock of any of its Significant Subsidiaries. White has
delivered to Green a complete and correct copy of the Rights Agreement
dated as of June 8, 1988, as amended and supplemented to the date
hereof (the "White Rights Agreement"), relating to rights ("White
Rights") to purchase shares of Junior Participating Preferred Stock,
Series B, without par value. As of the date of this Agreement, the
authorized capital stock of Tender Sub consists of 100 shares of
common stock, par value $1.00 per share, all of which have been
validly issued, are fully paid and nonassessable and are owned by
White free and clear of any Lien.
(d) Authority; Noncontravention. White and Tender Sub
have all requisite corporate power and authority to enter into this
Agreement and, subject to the White Shareholder Approval, in the case
of the Merger, to consummate the transactions contemplated by this
Agreement. White has all requisite corporate power and authority to
enter into the Option Agreements and to consummate the transactions
contemplated thereby. The execution and delivery of this Agreement by
White and Tender Sub and the Option Agreements by White and the
consummation of the transactions contemplated by this Agreement by
White and Tender Sub, and the consummation of the transactions
contemplated by the Option Agreements by White, have been duly
authorized by all necessary corporate action on the part of White and
Tender Sub, subject, in the case of the issuance of White Common Stock
in connection with the Merger, to the White Shareholder Approval.
This Agreement has been duly executed and delivered by White and
Tender Sub and constitutes a legal, valid and binding obligation of
White and Tender Sub, enforceable against White and Tender Sub in
accordance with its terms. The Option Agreements have been duly
executed and delivered by White and constitute legal, valid and
binding obligations of White, enforceable against White in accordance
with their terms. The execution and delivery of this Agreement and
the Option Agreements do not, and the consummation of the transactions
contemplated by this
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37
Agreement and the Option Agreements and compliance with the provisions
of this Agreement and the Option Agreements will not, conflict with,
or result in any violation of, or default (with or without notice or
lapse of time, or both) under, or give rise to a right of termination,
cancelation or acceleration of any obligation or loss of a material
benefit under, or result in the creation of any Lien upon any of the
properties or assets of Tender Sub or White or any of its Significant
Subsidiaries under, (i) the certificate of incorporation or by-laws of
Tender Sub or White or the comparable organizational documents of any
of its Significant Subsidiaries, (ii) subject to giving such notices
and obtaining such consents as may be listed in Section 3.2(d) of the
White Disclosure Schedule, any loan or credit agreement, note, bond,
mortgage, indenture, lease or other agreement, instrument, permit,
concession, franchise or license applicable to Tender Sub or White or
any of its Significant Subsidiaries or their respective properties or
assets, or (iii) subject to the governmental filings and other matters
referred to in the following sentence, any judgment, order, decree,
statute, law, ordinance, rule or regulation applicable to Tender Sub
or White or any of its Significant Subsidiaries or their respective
properties or assets, other than, in the case of clauses (ii) and
(iii), any such conflicts, violations, defaults, rights, losses or
Liens that individually or in the aggregate would not (x) have a
material adverse effect on White, (y) impair the ability of White or
Tender Sub to perform their obligations under this Agreement or the
Option Agreements (including obligations respecting the Offer and the
Merger), or (z) prevent or materially delay the consummation of any of
the transactions contemplated by this Agreement (including the Offer
and the Merger) or the Option Agreements. No consent, approval, order
or authorization of, or registration, declaration or filing with, any
Governmental Entity is required by or with respect to Tender Sub or
White or any of its Significant Subsidiaries in connection with the
execution and delivery of this Agreement or the Option Agreements or
the consummation of the transactions contemplated by this Agreement or
the Option Agreements, except for (1) compliance with any applicable
requirements of the HSR Act; (2) compliance with any applicable
requirements relating to approval of the Merger by the STB; (3) the
filing with the SEC of (A) the Schedule 14D-1, (B) the Joint Proxy
Statement relating to the White Shareholders Meeting, (C) the Form S-4
and (D) such reports under Section 13(a), 13(d), 15(d) or 16(a) of the
Exchange Act as may be required in connection with this Agreement, the
Option Agreements and the transactions contemplated by this Agreement
and the Option Agreements; (4) the filing of the Articles of Merger as
provided in Section 1.3, the Amended White Articles as provided in
Section 5.1(e) and appropriate documents with the relevant authorities
of other states in which White is qualified to do business and such
filings with Governmental Entities to satisfy the applicable
requirements of state securities or "blue sky" laws; (5) such filings
with and approvals of the NYSE to permit the shares of White Common
Stock that are to be issued in the Merger, under the Green Stock Plans
and pursuant to the White Stock Option Agreement to be listed on the
NYSE; (6) such other filings and consents as may be
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required under any environmental, health or safety law or regulation
pertaining to any notification, disclosure or required approval
necessitated by the Offer, the Merger or the transactions contemplated
by this Agreement and the Option Agreements, the failure of which to
be made or obtained would not reasonably be expected to have a
material adverse effect on White; and (7) such consents, approvals,
orders or authorizations the failure of which to be made or obtained
would not reasonably be expected to have a material adverse effect on
White.
(e) SEC Documents; Undisclosed Liabilities. White has
filed all required reports, schedules, forms, statements and other
documents with the SEC since January 1, 1995 (including exhibits,
schedules and documents incorporated by reference, the "White SEC
Documents"). As of their respective dates, the White SEC Documents
complied in all material respects with the requirements of the
Securities Act or the Exchange Act, as the case may be, and the rules
and regulations of the SEC promulgated thereunder applicable to such
White SEC Documents, and none of the White SEC Documents when filed
contained any untrue statement of a material fact or omitted to state
a material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under which
they were made, not misleading. Except to the extent that
information contained in any White SEC Document has been revised or
superseded by a later White Filed SEC Document, none of the White SEC
Documents contains any untrue statement of a material fact or omits to
state any material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances
under which they were made, not misleading. The financial statements
of White included in the White SEC Documents comply as to form, as of
their respective dates of filing with the SEC, in all material
respects with applicable accounting requirements and the published
rules and regulations of the SEC with respect thereto, have been
prepared in accordance with generally accepted accounting principles
(except, in the case of unaudited statements, as permitted by Form
10-Q of the SEC) applied on a consistent basis during the periods
involved (except as may be indicated in the notes thereto) and fairly
present in all material respects the consolidated financial position
of White and its consolidated subsidiaries as of the dates thereof and
the consolidated results of their operations and cash flows for the
periods then ended (subject, in the case of unaudited statements, to
normal recurring year-end audit adjustments). Except (i) as reflected
in such financial statements or in the notes thereto, (ii) as
contemplated hereunder or under the Option Agreements, (iii) for
liabilities incurred in connection with this Agreement or the
transactions contemplated hereby and (iv) for liabilities and
obligations incurred since June 29, 1996 in the ordinary course of
business consistent with past practice, neither White nor any of its
subsidiaries has any material liabilities or obligations of any nature
(whether accrued, absolute, contingent or otherwise), including
liabilities arising under any Environmental Laws, required by
generally accepted accounting principles to be reflected in a
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consolidated balance sheet of White and its consolidated subsidiaries
(including the notes thereto) and which, individually or in the
aggregate, could reasonably be expected to have a material adverse
effect on White.
(f) Information Supplied. None of the information
supplied or to be supplied by White for inclusion or incorporation by
reference in the Form S-4 will, at the time the Form S-4 is filed with
the SEC or at the time it 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. None of the Offer Documents nor
any of the information supplied or to be supplied by White for
inclusion or incorporation by reference in Green Pennsylvania Proxy
Statement or the Joint Proxy Statement will, at the date such
documents are first published, sent or delivered to shareholders and,
in the case of the Green Pennsylvania Proxy Statement, at the time of
the Green Pennsylvania Shareholders Meeting, and, in the case of the
Joint Proxy Statement, at the time of the White Shareholders Meeting,
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under which
they are made, not misleading. The Schedule 14D-1 and the Joint Proxy
Statement will comply as to form in all material respects with the
requirements of the Exchange Act and the rules and regulations
thereunder. Notwithstanding the foregoing, no representation or
warranty is made by White with respect to statements made or
incorporated by reference therein based on information supplied by
Green for inclusion or incorporation by reference in any of the
foregoing documents.
(g) Absence of Certain Changes or Events. Except (i) as
disclosed in the White SEC Documents filed and publicly available
prior to the date of this Agreement (as amended to the date of this
Agreement, the "White Filed SEC Documents"), (ii) for the transactions
provided for or permitted by this Agreement or in the Option
Agreements, and (iii) for liabilities incurred in connection with or
as a result of this Agreement or the Option Agreements, since the date
of the most recent audited financial statements included in the White
Filed SEC Documents, White has conducted its business only in the
ordinary course, and there has not been (1) any material adverse
change in White, (2) any declaration, setting aside or payment of any
dividend or other distribution (whether in cash, stock or property)
with respect to any of White's capital stock, other than regularly
quarterly cash dividends of $.26 per share on the White Common Stock,
(3) any split, combination or reclassification of any of White'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 White's capital stock, except for issuances of White Common
Stock upon the exercise of White Employee Stock Options in accordance
with the terms thereof, (4) except as would have been permitted under
Section 4.1 (A) any granting by White or any of its Significant
Subsidiaries
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to any current or former employee, officer or director of White of any
increase in compensation, except for normal increases in the ordinary
course of business consistent with past practice or as required under
employment agreements in effect as of the date of the most recent
financial statements included in the White Filed SEC Documents, (B)
any granting by White or any of its Significant Subsidiaries to any
such officer or director of any increase in severance or termination
pay, except as required under any employment, severance or termination
agreements in effect as of the date of the most recent financial
statements included in the White Filed SEC Documents, or (C) any entry
by White or any of its subsidiaries into any employment, consulting,
severance, termination or indemnification agreements, arrangements or
understandings with any current or former employee, officer or
director or (5) except insofar as may have been disclosed in the White
Filed SEC Documents or required by a change in generally accepted
accounting principles, any change in accounting methods, principles or
practices by White materially affecting its assets, liabilities or
business.
(h) Compliance with Applicable Laws. White and its
subsidiaries hold all permits, licenses, variances, exemptions, orders
and approvals of all Governmental Entities which are material to the
operation of the businesses of White and its subsidiaries, taken as a
whole (the "White Permits"). White and its subsidiaries are in
compliance with the terms of the White Permits and all applicable
statutes, laws, ordinances, rules and regulations, including
Environmental Laws, except where the failure so to comply,
individually or in the aggregate, could not reasonably be expected to
have a material adverse effect on White. The businesses of White and
its subsidiaries are not being conducted in violation of any law,
ordinance or regulation of any Governmental Entity, including
Environmental Laws, except for possible violations which could not
reasonably be expected to have a material adverse effect on White. As
of the date of this Agreement, no action, demand, requirement or
investigation by any Governmental Entity with respect to White or any
of its subsidiaries is pending or, to the knowledge of White,
threatened, other than, in each case, those the outcome of which,
individually or in the aggregate could not reasonably be expected to
have a material adverse effect on White.
(i) Absence of Changes in Benefit Plans. Section 3.2(i)
of the White Disclosure Schedule sets forth a true and complete list
of all material White Benefit Plans as of the date hereof. Except for
rail labor agreements negotiated in the ordinary course, since the
date of the most recent financial statements included in the White
Filed SEC Documents, there has not been any adoption or amendment in
any material respect by White or any of its subsidiaries of any
collective bargaining agreement or any bonus, pension, profit sharing,
deferred compensation, incentive compensation, stock ownership, stock
purchase, stock option, phantom stock, retirement, vacation,
severance, disability, death benefit, hospitalization, medical or
other plan, arrangement or understanding providing benefits to any
current or former employee, officer or
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director of White or any of its wholly owned subsidiaries
(collectively, the "White Benefit Plans" and, together with the Green
Benefit Plans, the "Employee Benefit Plans").
(j) ERISA Compliance. (i) With respect to the
White Benefit Plans, individually and in the aggregate, no event has
occurred and, to the knowledge of White, there exists no condition or
set of circumstances, in connection with which White or any of its
subsidiaries could be subject to any liability that is reasonably likely
to have a material adverse effect on White (except liability for
benefits claims and funding obligations payable in the ordinary course)
under ERISA, the Code or any other applicable law.
(ii) Each White Benefit Plan has been administered in
accordance with its terms, except for any failures so to administer any
White Benefit Plans as would not individually or in the aggregate have a
material adverse effect on White. White, its subsidiaries and all the
White Benefit Plans are in compliance with the applicable provisions of
ERISA, the Code and all other applicable laws and the terms of all
applicable collective bargaining agreements, except for any failures to
be in such compliance as would not individually or in the aggregate have
a material adverse effect on White.
(iii) Except for all equity-based and other awards, the
vesting and exercisability of which will, by their terms, be accelerated
as a result of the transactions contemplated hereunder, no employee of
White will be entitled to any additional benefits or any acceleration
of the time of payment or vesting of any benefits under any White
Benefit Plan as a result of the transactions contemplated by this
Agreement or the Option Agreements.
(k) Voting Requirements. The affirmative vote of the holders
of a majority of all outstanding shares of White Common Stock, voting
as a single class, at the White Shareholders Meeting (the "White
Shareholder Approval") to adopt and approve the Amended White Articles
(as contemplated by Section 5.1(e) hereof), which approval shall also
constitute approval of the issuance of the White Common Stock in the
Merger in accordance with the rules of the NYSE, is the only vote of
the holders of any class or series of White capital stock or
indebtedness necessary to approve and adopt this
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Agreement, the Option Agreements and the transactions contemplated by
this Agreement and the Option Agreements.
(l) State Takeover Statutes. The Board of Directors of
White has taken all action necessary or advisable so as to render
inoperative with respect to the transactions contemplated hereby or by
the Option Agreements all applicable state anti-takeover statutes.
(m) Brokers. No broker, investment banker, financial
advisor or other person, other than ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co., Inc.
and Salomon Brothers Inc, the fees and expenses of which shall be paid
by White, is entitled to any broker's, finder's, financial advisor's
or other similar fee or commission in connection with the transactions
contemplated by this Agreement and the Option Agreements based upon
arrangements made by or on behalf of White. White has furnished to
Green true and complete copies of all agreements under which any such
fees or expenses are payable and all indemnification and other
agreements related to the engagement of the persons to whom such fees
are payable.
(n) White Rights Agreement. The White Rights Agreement
has been amended (the "White Rights Plan Amendment") to (i) render the
White Rights Agreement inapplicable to the transactions contemplated
by the White Stock Option Agreement and (ii) ensure that (y) neither
Green nor any of its wholly owned subsidiaries is an Acquiring Person
(as defined in the White Rights Agreement) pursuant to the White
Rights Agreement by virtue of the approval, execution or delivery of
the White Stock Option Agreement or the consummation of the
transactions contemplated thereby and (z) a Shares Acquisition Date or
Distribution Date (in each case as defined in the White Rights
Agreement) does not occur by reason of the approval, execution or
delivery of the White Stock Option Agreement, the consummation of the
Merger, or the consummation of the other transactions contemplated by
this Agreement and the White Stock Option Agreement and such amendment
may not be further amended by White without the prior consent of Green
in its sole discretion.
(o) Tax Status. None of White, Tender Sub, or any
subsidiary of White or Tender Sub has taken any action or, as of the
date hereof, is aware of any fact that would jeopardize the
qualification of the Merger as a reorganization under Sections
368(a)(1)(A) and 368(a)(2)(D) of the Code.
ARTICLE IV
COVENANTS RELATING TO CONDUCT OF BUSINESS
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SECTION 4.1. Conduct of Business. (a) Conduct of
Business. Except as contemplated by this Agreement or as set forth in Section
4.1 of the Green Disclosure Schedule or the White Disclosure Schedule, as
applicable, during the period from the date of this Agreement to the Effective
Time, Green and White shall, and shall cause their respective subsidiaries to,
carry on their respective businesses in the ordinary course consistent with
past practice and in compliance in all material respects with all applicable
laws and regulations and, to the extent consistent therewith, shall use all
reasonable efforts to preserve intact their current business organizations, use
reasonable efforts to keep available the services of their current officers and
other key employees as a group and preserve their relationships with those
persons having business dealings with them to the end that their goodwill and
ongoing businesses shall be unimpaired at the Effective Time. Except as
contemplated by this Agreement or as set forth in Section 4.1 of the Green
Disclosure Schedule or the White Disclosure Schedule, as applicable, without
limiting the generality of the foregoing, during the period from the date of
this Agreement to the Effective Time, neither Green nor White shall, nor shall
such parties permit any of their respective subsidiaries to (without the
consent of the other party hereto, provided that such consent shall not be
required in respect of subsections (iv) or (v) below if, based on the advice of
outside counsel to either party, the discussion of such matters or related
disclosures of information by the parties hereto would be inappropriate):
(i) other than dividends and distributions (including
liquidating distributions) by a direct or indirect wholly owned
subsidiary of Green or White, as applicable, to its parent, or by a
subsidiary that is partially owned by Green or White, as applicable, or
any of their respective subsidiaries, provided that Green or White, as
applicable, or any such subsidiary receives or is to receive its
proportionate share thereof, and other than the regular quarterly
dividends of $.475 per share with respect to Green Common Stock, regular
quarterly dividends of $.54125 per share with respect to Green ESOP
Preferred Stock in accordance with its terms and regular quarterly
dividends of $.26 per share with respect to White Common Stock (plus
such increases as may be properly authorized not to exceed 20% per
annum), (x) declare, set aside or pay any dividends on, or make any
other distributions in respect of, any of its capital stock, (y) split,
combine or reclassify any of its capital stock or issue or authorize the
issuance of any other securities in respect of, in lieu of or in
substitution for shares of its capital stock, or (z) except in
connection with the funding of employee benefit plans, purchase, redeem,
retire or otherwise ac-
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quire any shares of its capital stock or the capital stock of any of its
Significant Subsidiaries or any other securities thereof or any rights,
warrants or options to acquire any such shares or other securities;
(ii) issue, deliver, sell, pledge or otherwise encumber
any shares of its capital stock, any other voting securities or any
securities convertible into, or any rights, warrants or options to
acquire, any such shares, voting securities or convertible securities
(other than (u) in accordance with the terms of the Green Rights
Agreement or the White Rights Agreement, (w) the issuance of Green
Common Stock or White Common Stock (A) upon the exercise of Green
Employee Stock Options or White Employee Stock Options, respectively,
and listed in the Green Disclosure Schedule and the White Disclosure
Schedule outstanding on the date of this Agreement and in accordance
with their present terms or (B) pursuant to a grant existing as of the
date hereof or otherwise permitted under this Section under any Employee
Benefit Plan, (x) the grant or award of (A) Green Employee Stock Options
or White Employee Stock Options (or the issuance of Green Common Stock
or White Common Stock upon exercise thereof) consistent with past
practice in amounts not to exceed, in any 12-month period, 110% of the
amount issued in the prior 12-month period, and (B) in the case of
White, target bonus awards under White's long-term incentive plans
consistent with past practice in amounts not to exceed, in any 12-month
period, 110% of the amounts of the aggregate target bonus awards issued
in the prior 12-month period, (y) the issuance of Green Common Stock
upon conversion of Green ESOP Preferred Stock in accordance with its
terms and (z) the issuance of Green Common Stock or White Common Stock
pursuant to the Option Agreements);
(iii) in the case of Green or White, adopt, propose or agree
to any amendment to its articles of incorporation, by-laws or other
comparable organizational documents, except for such amendments as are
contemplated hereby, and, in the case of any subsidiary, adopt, propose
or agree to any amendment to its certificate of incorporation, by-laws
or other comparable organizational documents other than in the ordinary
course in a manner
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which does not have a material adverse effect on Green or White, as
applicable;
(iv) sell, lease, license, mortgage or otherwise encumber
or subject to any Lien or otherwise dispose of any of its properties or
assets, other than (x) transactions in the ordinary course of business
consistent with past practice and (y) transactions involving assets
which do not individually or in the aggregate exceed $50,000,000 in any
12-month period;
(v) make or agree to make any acquisition (other than of
inventory) or capital expenditure;
(vi) except in the ordinary course consistent with past
practice, make any tax election that could reasonably be expected to
have a material adverse effect on Green or White, as applicable, or
settle or compromise any material income tax liability;
(vii) pay, discharge, settle or satisfy any material
claims, liabilities or obligations (whether absolute, accrued, asserted
or unasserted, contingent or otherwise), other than the payment,
discharge, settlement or satisfaction (A) in the ordinary course of
business consistent with past practice or in accordance with their
terms, (B) of liabilities reflected or reserved against in, or
contemplated by, the most recent consolidated financial statements (or
the notes thereto) of Green included in the Green Filed SEC Documents or
of White included in the White Filed SEC Documents, as applicable, (C)
incurred since the date of such financial statements in the ordinary
course of business consistent with past practice or (D) which do not in
the aggregate have a material adverse effect on Green or White, as
applicable;
(viii) except in the ordinary course of business or except
as would not reasonably be expected to have a material adverse effect on
Green or White, as applicable, modify, amend or terminate any material
contract or agreement to which Green or White, as applicable, or any of
their respective subsidiaries, is a party or waive, release or assign
any material rights or claims thereunder;
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(ix) make any material change to its accounting methods,
principles or practices, except as may be required by generally accepted
accounting principles;
(x) except as required by law or contemplated hereby and
except for rail labor agreements negotiated in the ordinary course,
enter into, adopt or amend in any material respect or terminate any
Green Benefit Plan or White Benefit Plan, as applicable, or any other
agreement, plan or policy involving Green or White, as applicable, or
any of their respective subsidiaries, and one or more of their
directors, officers or employees, or materially change any actuarial or
other assumption used to calculate funding obligations with respect to
any pension plan, or change the manner in which contributions to any
pension plan are made or the basis on which such contributions are
determined;
(xi) except for normal increases in the ordinary course of
business consistent with past practice that, in the aggregate, do not
materially increase benefits or compensation expenses of Green or White,
as applicable, or their respective subsidiaries, or as contemplated
hereby or by the terms of any contract the existence of which does not
constitute a violation of this Agreement, increase the compensation of
any director, executive officer or other key employee or pay any benefit
or amount not required by a plan or arrangement as in effect on the
date of this Agreement to any such person;
(xii) enter into any agreement containing any provision or
covenant (x) limiting in any material respect the ability to compete
with any person which would bind the other party hereto (or its
operations) after the Effective Time or (y) other than in the ordinary
course of business, granting concessions to any railroad (whether
through divestiture of lines or the grant of trackage rights); or
(xiii) authorize, or commit or agree to take, any of the
foregoing actions.
(b) Coordination of Dividends. White and Green shall
coordinate with one another regarding the declaration and payment of dividends
in respect of White Common Stock and Green Common Stock and the
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record dates and payment dates relating thereto, it being the intention of
White and Green that any holder of Green Common Stock shall not receive two
dividends, or fail to receive one dividend, for any single calendar quarter
with respect to its shares of Green Common Stock and/or any shares of White
Common Stock any such holder receives in exchange therefor pursuant to the
Merger.
(c) Other Actions. Except as required by law, Green and White
shall not, and shall not permit any of their respective subsidiaries to,
voluntarily take any action that would, or that could reasonably be expected to,
result in (i) any of the representations and warranties of such party set forth
in this Agreement or the Option Agreements that are qualified as to materiality
becoming untrue, (ii) any of such representations and warranties that are not so
qualified becoming untrue in any material respect or (iii) any of the conditions
to the consummation of the transactions contemplated hereby not being satisfied.
Without limiting the foregoing, Green and White shall not, and shall not permit
any of their respective subsidiaries to, take any action that could reasonably
be expected to impair, or delay in any material respect, obtaining the STB
approval contemplated by Sections 6.2(d) and 6.3(c) or complying with or
satisfying the terms thereof.
(d) Advice of Changes. Green and White shall promptly advise the
other party orally and in writing of (i) any representation or warranty made by
it contained in this Agreement or the Option Agreements that is qualified as to
materiality becoming untrue or inaccurate in any respect or any such
representation or warranty that is not so qualified becoming untrue or
inaccurate in any material respect, (ii) the failure by it to comply in any
material respect with or satisfy in any material respect any covenant, condition
or agreement to be complied with or satisfied by it under this Agreement or the
Option Agreements and (iii) any change or event having, or which, insofar as can
reasonably be foreseen, could reasonably be expected to have, a material adverse
effect on such party or on the truth of their respective representations and
warranties or the ability of the conditions to the consummation of the
transactions contemplated hereby to be satisfied; provided, however, that no
such notification shall affect the representations, warranties, covenants or
agreements of the parties (or remedies with respect thereto) or the conditions
to the obligations of the parties under this Agreement or the Option
Agreements.
SECTION 4.2. No Solicitation. (a) Neither Green nor White
shall, nor shall it permit any of its subsidiaries to, nor shall it authorize or
permit any of its officers, directors or employees or any investment banker,
financial advisor, attorney, accountant or other representative retained by it
or any of its subsidiaries to, directly or indirectly through another person,
(i) solicit, initiate or encourage (including by way of furnishing information),
or take any other action designed to facilitate, directly or indirectly, any
inquiries or the making of any proposal which constitutes any Takeover Proposal
or (ii) participate in any discussions or negotiations regarding any Takeover
Proposal; provided, however, that if, at any time prior to the earlier of
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(x) the consummation of the Offer and (y) the obtaining of the Green Merger
Shareholder Approval, in the case of Green, or the White Shareholder Approval,
in the case of White, or after 180 days from the date hereof and prior to the
Approval Date, the Board of Directors of Green or White, as applicable,
determines in good faith, based on the advice of outside counsel, that it is
necessary to do so to avoid a breach of its fiduciary duties to Green under
applicable law, Green or White, as applicable, may, in response to a Takeover
Proposal which was not solicited by it or which did not otherwise result from a
breach of this Section 4.2(a), and subject to such party's compliance with
Section 4.2(c), (A) furnish information with respect to it and its
subsidiaries to any person pursuant to a customary confidentiality agreement
(as determined by the party receiving such Takeover Proposal after consultation
with its outside counsel), the benefits of the terms of which, if more
favorable to the other party to such confidentiality agreement than those in
place with the other party hereto, shall be extended to the other party hereto,
and (B) participate in negotiations regarding such Takeover Proposal. For
purposes of this Agreement, "Takeover Proposal" in respect of Green or White,
as applicable, means any proposal or offer from any person for the acquisition
or purchase of more than 50% of the assets of such party and its subsidiaries
or more than 50% of the equity securities of such party entitled to vote
generally in the election of directors, any tender offer or exchange offer that
if consummated would result in any person beneficially owning more than 50% of
the equity securities of such party entitled to vote generally in the election
of directors, or any merger, consolidation, business combination,
recapitalization, liquidation, dissolution or similar transaction involving
such party, other than the transactions contemplated by this Agreement or the
Option Agreements.
(b) Except as expressly permitted by this Section 4.2,
neither the Board of Directors of Green or White, as applicable, nor any
committee thereof shall (i) withdraw or modify, or propose publicly to withdraw
or modify, in a manner adverse to the other party hereto, the approval or
recommendation by such Board of Directors or such committee of the Offer or the
adoption and approval of the matters to be considered at the Green Shareholders
Meetings, in the case of Green, and the White Shareholders Meeting, in the case
of White, (ii) approve or recommend, or propose publicly to approve or
recommend, any Takeover Proposal, or (iii) cause Green or White, as applicable,
to enter into any letter of intent, agreement in principle, acquisition
agreement or other similar agreement (each, an "Acquisition Agreement") related
to any Takeover Proposal. Notwithstanding the foregoing, in the event that, at
any time following 180 days after the date hereof and prior to the earlier of
(x) the time that Tendered Shares constituting at least 40% of the outstanding
shares of Green Common Stock and Green ESOP Preferred Stock on a fully diluted
basis have been deposited in the Voting Trust and (y) the obtaining of the
Green Merger Shareholder Approval, in the case of Green, or the White
Shareholder Approval, in the case of White (such earlier date referred to in
(x) or (y), the "Approval Date"), there exists a Superior Proposal and such
Board of Directors determines that (x) in the case of the Board of Directors of
Green, there is not a substantial probability that White will be successful in
acquiring 40% of the shares of Green Common Stock and Green ESOP Preferred
Stock in the Offer and/or the Second
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Offer or otherwise (or, if the Green Pennsylvania Stockholder Approval has not
then been obtained, there is not a substantial probability that the Green
Merger Shareholder Approval will be obtained), in either case due to the
existence of such Superior Proposal with respect to Green or (y) in the case of
the Board of Directors of White, there is not a substantial probability that
the White Shareholder Approval will be obtained due to the existence of such
Superior Proposal with respect to White, the Board of Directors of Green or
White, as applicable, may (subject to this and the following sentences)
withdraw or modify its approval or recommendation of the Offer, the Merger or
the adoption and approval of the matters to be considered at the Green
Shareholders Meetings, in the case of Green, and the White Shareholders
Meeting, in the case of White, the Board of Directors of Green or White, as
applicable, may (subject to this and the following sentences) approve or
recommend such Superior Proposal or terminate this Agreement (and concurrently
with such termination, if it so chooses, cause Green or White, as applicable,
to enter into any Acquisition Agreement with respect to such Superior
Proposal), but only at a time that is after the fifth business day following
the other party's receipt of written notice advising such other party that the
Board of Directors of Green or White, as applicable, has received a Superior
Proposal, specifying the material terms and conditions of such Superior
Proposal and identifying the person making such Superior Proposal. For
purposes of this Agreement, a "Superior Proposal" means in respect of Green or
White, as applicable, any proposal made by a third party to acquire, directly
or indirectly, for consideration consisting of cash and/or securities, more
than 50% of the equity securities of Green or White, as the case may be,
entitled to vote generally in the election of directors or all or substantially
all the assets of Green or White, as the case may be, and otherwise on terms
which the Board of Directors of such party determines in its good faith
judgment (x) (based on the written opinion of a financial advisor of nationally
recognized reputation (which opinion shall be provided to the other party
hereto)) to be more favorable from a financial point of view to its
shareholders than the Offer, the Merger and the transactions contemplated
hereby and for which financing, to the extent required, is then committed and
(y) also to be more favorable to such party than the Offer, the Merger and the
transactions contemplated hereby after taking into account all constituencies
(including shareholders) and pertinent factors permitted under the Pennsylvania
Law or applicable Virginia law.
(c) In addition to the obligations of the parties set
forth in paragraphs (a) and (b) of this Section 4.2, any party that has
received a Takeover Proposal shall immediately advise the other party hereto
orally and in writing of any request for information or of any Takeover
Proposal, the material terms and conditions of such request or Takeover
Proposal and the identity of the person making such request or Takeover
Proposal. Any party that has received a Takeover Proposal will keep the other
party hereto reasonably informed of the status and details (including
amendments or proposed amendments) of any such request or Takeover Proposal.
(d) Nothing contained in this Section 4.2 shall prohibit
either party hereto from taking and disclosing to its shareholders a
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position contemplated by Rule 14e-2(a) promulgated under the Exchange Act or
from making any disclosure to its shareholders if, in the good faith judgment
of its Board of Directors, based on the advice of outside counsel, failure so
to disclose would result in a violation of applicable law; provided, however,
that neither party nor its Board of Directors nor any committee thereof shall,
except as permitted by Section 4.2(b), withdraw or modify, or propose publicly
to withdraw or modify, its position with respect to the Offer or the matters to
be considered at the Green Shareholders Meetings or the White Shareholders
Meeting, as applicable, or approve or recommend, or propose publicly to approve
or recommend, a Takeover Proposal.
ARTICLE V
ADDITIONAL AGREEMENTS
SECTION 5.1. Preparation of the Form S-4 and the Joint Proxy
Statement; Shareholders Meetings. (a) As soon as practicable following the
date of this Agreement, Green and White shall prepare and file with the SEC the
Joint Proxy Statement and White shall prepare and file with the SEC the Form
S-4, in which the Joint Proxy Statement will be included as a prospectus. Each
of Green and White shall use all reasonable efforts to have the Form S-4
declared effective under the Securities Act as promptly as practicable after
such filing. Green will use all reasonable efforts to cause the Joint Proxy
Statement to be mailed to Green's shareholders, and White will use all
reasonable efforts to cause the Joint Proxy Statement to be mailed to White's
shareholders, in each case as promptly as practicable after the Form S-4 is
declared effective under the Securities Act. White shall also take any action
(other than qualifying to do business in any jurisdiction in which it is not now
so qualified or to file a general consent to service of process) required to be
taken under any applicable state securities laws in connection with the issuance
of White Common Stock in the Merger and under the Green Stock Plans and White
Stock Plans, and Green shall furnish all information concerning Green and the
holders of Green Common Stock as may be reasonably requested in connection with
any such action.
(b) Green shall, as soon as practicable following the date of
this Agreement, file with the SEC preliminary proxy materials and use reasonable
efforts to clear such materials and thereafter duly call, give notice of,
convene and hold on a date mutually agreed to by White and Green a meeting of
its shareholders (the "Green Pennsylvania Shareholders Meeting") for the purpose
of amending the Green Articles to explicitly provide that Subchapter E (Control
Transactions) of Chapter 25 of the Pennsylvania Law shall not apply to Green;
and shall, as soon as practicable following the date of this Agreement, duly
call, give notice of, convene and hold a meeting of its shareholders (the "Green
Merger Shareholders Meeting" and, together with the Green Pennsylvania
Shareholders Meeting, the "Green Shareholders Meetings") for the purpose of
obtaining
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the Green Merger Shareholder Approval. The parties agree that the solicitation
of the proxies for the Green Pennsylvania Shareholder Approval shall be
solicited solely by Green and its agents. Without limiting the generality of
the foregoing, but subject to Section 4.2(b), Green agrees that its obligations
pursuant to the first sentence of this Section 5.1(b) shall not be affected by
the commencement, public proposal, public disclosure or communication to Green
of any Takeover Proposal in respect of Green. Green shall, through its Board
of Directors, recommend to its shareholders the approval and adoption of the
Offer and the matters to be considered at the Green Shareholders Meetings,
except to the extent that the Board of Directors of Green shall have withdrawn
or modified its approval or recommendation of the Offer or the matters to be
considered at the Green Shareholders Meetings or terminated this Agreement in
accordance with Section 4.2(b). Subject to the terms of the Voting Trust
Agreement, White shall cause all shares of Green Common Stock and Green ESOP
Preferred Stock acquired by it or its wholly owned subsidiaries pursuant to the
Offer (which shall be deposited in the Voting Trust) or otherwise to be voted
in favor of approval and adoption of the matters to be considered at the Green
Shareholders Meetings. In the event that the matters to be considered at the
Green Pennsylvania Shareholders Meeting are not approved at a meeting called
for such purpose, from time to time Green may, and shall at the request of
White, duly call, give notice of, convene and hold one or more meeting(s) of
shareholders thereafter for the purpose of obtaining the Green Pennsylvania
Shareholder Approval, in which case all obligations hereunder respecting the
Green Pennsylvania Shareholders Meeting shall apply in respect of such other
meeting(s).
(c) White shall, as soon as practicable following the date of
this Agreement, duly call, give notice of, convene and hold a meeting of its
shareholders (the "White Shareholders Meeting") for the purpose of obtaining the
White Shareholder Approval. Without limiting the generality of the foregoing
but subject to Section 4.2(b), White agrees that its obligations pursuant to the
first sentence of this Section 5.1(c) shall not be affected by the commencement,
public proposal, public disclosure or commencement of any Takeover Proposal in
respect of White. White shall, through its Board of Directors, recommend to its
shareholders the approval and adoption of the matters to be considered at the
White Shareholders Meeting, except to the extent that the Board of Directors of
White shall have withdrawn or modified its recommendation of the matters to be
considered at the White Shareholders Meeting and terminated this Agreement in
accordance with Section 4.2(b).
(d) White and Green shall use reasonable efforts to hold the
Green Merger Shareholders Meeting and the White Shareholders Meeting on the same
date.
(e) As promptly as practicable following the date of the White
Shareholder Approval, White shall take such action as may be necessary or
advisable so that, subject to the terms and conditions hereof, the articles of
incorporation of White shall, at the Effective Time, be amended to be
substantially in the form of Exhibit C hereto (such articles, as in effect on
the date hereof, the "White Articles" and, as so
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amended, the "Amended White Articles"), including the filing of the Amended
White Articles with the State Corporation Commission of Virginia.
(f) As promptly as practicable following the date of the Green
Pennsylvania Shareholder Approval, if obtained, Green shall take such action as
may be necessary or advisable so that, subject to the terms and conditions
hereof, the articles of incorporation of Green shall be amended to reflect the
inapplicability of Subchapter E (Control Transactions) of Chapter 25 of the
Pennsylvania Law as contemplated by Section 3.1(k) hereof (such articles, as in
effect on the date hereof, the "Green Articles" and, as so amended, the "Amended
Green Articles"), including the filing of the Amended Green Articles with the
Pennsylvania Department of State, provided that the Amended Green Articles shall
not be filed until immediately prior to the consummation of any purchase of
Green Common Stock that would cause White to own 20% or more of the outstanding
voting power of Green (including, as applicable, consummation of the Offer or
the Second Offer, exercise of the Green Stock Option Agreement or otherwise) and
White shall give Green prior notice thereof.
SECTION 5.2. Letters of Accountants. (a) Green shall use
reasonable efforts to cause to be delivered to White two letters from Green's
independent accountants, one dated a date within two business days before the
date on which the Form S-4 shall become effective and one dated a date within
two business days before the date of the applicable shareholders meeting, each
addressed to White, in form and substance reasonably satisfactory to White and
customary in scope and substance for comfort letters delivered by independent
public accountants in connection with registration statements similar to the
Form S-4.
(b) White shall use reasonable efforts to cause to be delivered
to Green two letters from White's independent accountants, one dated a date
within two business days before the date on which the Form S-4 shall become
effective and one dated a date within two business days before the date of the
applicable shareholders meeting, each addressed to Green, in form and substance
reasonably satisfactory to Green and customary in scope and substance for
comfort letters delivered by independent public accountants in connection with
registration statements similar to the Form S-4.
SECTION 5.3. Tax-Free Reorganization. (a) The parties intend the
transaction to qualify as a reorganization under Sections 368(a)(1)(A) and
368(a)(2)(D) of the Code. Each party and its affiliates shall use reasonable
efforts to cause the Merger to so qualify and to obtain, as of the Closing Date,
the opinions (the "Tax Opinions") of Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, counsel to
White, and Cravath, Swaine & ▇▇▇▇▇, counsel to Green, in each case to the effect
that the Merger (whether or not the Offer and/or the Second Offer is integrated
with the Merger for federal income tax purposes) shall qualify as a
reorganization within the meaning of Section 368 of the Code; it being
understood that in rendering such Tax Opinions, such tax counsel shall be
entitled to rely upon representations of officers of Green and White
substantially in the form of Exhibits F and G. Neither party nor its affiliate
shall take any
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action that would cause the Merger not to qualify as a reorganization under
those Sections except to the extent that such action is specifically
contemplated by this Agreement. The parties shall take the position for all
purposes that the Merger qualifies as a reorganization under those Sections
unless and until the parties fail to obtain either of such Tax Opinions as of
the Closing Date.
(b) White and Green agree that while the Merger will
constitute a "Change of Control" for purposes of the White Benefit Plans and
the Green Benefit Plans, they will not treat the Merger as a change in the
ownership or effective control of White or a change in the ownership of a
substantial portion of the assets of White, each within the meaning of Section
280G of the Code, unless otherwise required to do so by a determination (as
defined in Section 1313 of the Code).
SECTION 5.4. Access to Information; Confidentiality.
Subject to the Confidentiality Agreement, each of Green and White shall, and
shall cause each of its respective subsidiaries to, afford to the other party
and to the officers, employees, accountants, counsel, financial advisors and
other representatives of such other party, reasonable access during normal
business hours during the period prior to the Effective Time to all their
respective properties, books, contracts, commitments, personnel and records
and, during such period, each of Green and White shall, and shall cause each of
its respective subsidiaries to, furnish promptly to the other party (a) a copy
of each report, schedule, registration statement and other document filed by it
during such period pursuant to the requirements of federal or state securities
laws and (b) all other information concerning its business, properties and
personnel as such other party may reasonably request; provided, however, that
access to certain Green or White information may require the entry of a
protective order by the STB, after which date full access shall be granted to
such information consistent with this paragraph and subject to the terms of
such order. Each of Green and White shall hold, and shall cause its respective
officers, employees, accountants, counsel, financial advisors and other
representatives and affiliates to hold, any nonpublic information in accordance
with the terms of the Confidentiality Agreement, dated October 8, 1996, between
White and Green, as amended and supplemented (the "Confidentiality Agreement").
SECTION 5.5. Reasonable Efforts. (a) Upon the terms and
subject to the conditions set forth in this Agreement, each of the parties
agrees to act in good faith toward and to use all reasonable efforts to
take, or cause to be taken, all actions, and to do, or cause to be done, and to
assist and cooperate with the other parties in doing, all things necessary,
proper or advisable to consummate and make effective, in the most expeditious
manner practicable, the Offer, the Merger and the other transactions
contemplated by this Agreement and the Option Agreements, including (i) the
obtaining of all necessary actions or nonactions, waivers, consents and
approvals from Governmental Entities and the making of all necessary
registrations and filings (including filings with Governmental Entities, such
as those referred to in Sections 3.1(d) and 3.2(d)) and the taking of all
reasonable steps as may be necessary to
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obtain an approval or waiver from, or to avoid an action or proceeding by, any
Governmental Entity, (ii) the obtaining of all necessary consents, approvals or
waivers from third parties, (iii) the defending of any lawsuits or other legal
proceedings, whether judicial or administrative, challenging this Agreement or
the Option Agreements or the consummation of the transactions contemplated by
this Agreement or the Option Agreements, including seeking to have any stay or
temporary restraining order entered by any court or other Governmental Entity
vacated or reversed, and (iv) the execution and delivery of any additional
instruments necessary to consummate the transactions contemplated by, and to
fully carry out the purposes of, this Agreement and the Option Agreements.
Nothing set forth in this Section 5.5(a) shall limit or affect actions
permitted to be taken pursuant to Section 4.2. Without limiting the generality
of the foregoing, the parties (x) shall make and cause their respective
subsidiaries to make all necessary filings, as soon as practicable, including
those required with the STB and applicable transportation regulations and laws
in order to facilitate prompt consummation of the Offer, the Merger and the
transactions contemplated hereby and by the Option Agreements, (y) shall use
reasonable efforts to provide such information and communications to
Governmental Entities as such Governmental Entities may reasonably request and
(z) shall provide to the other party copies of all applications in advance of
filing or submission of such applications to Governmental Entities in
connection with this Agreement or the Option Agreements and shall keep the
other party apprised of the status of matters relating to completion of the
transactions contemplated hereby; provided that either party may redact
confidential portions as may be necessary or appropriate.
(b) In furtherance of the foregoing, Green and White
shall, and each shall cause each of its subsidiaries to, take all such actions
as are necessary to (i) cooperate with one another to prepare and present to
the STB as soon as practicable all filings and other presentations in
connection with seeking any STB approval, exemption or other authorization
necessary to consummate the transactions contemplated by this Agreement and the
Option Agreements, (ii) prosecute such filings and other presentations with
diligence, (iii) diligently oppose any objections to, appeals from or petitions
to reconsider or reopen any such STB approval by persons not party to this
Agreement and (iv) take all such further action as reasonably may be necessary
to obtain a final order or orders of the STB approving such transactions
consistent with this Agreement and the Option Agreements.
(c) In connection with and without limiting the foregoing,
Green and White shall (i) take all action necessary to ensure that no
state anti-takeover statute or similar statute or regulation is or becomes
operative with respect to the Offer, the Merger, this Agreement, the Option
Agreements or any of the other transactions contemplated by this Agreement or
the Option Agreements and (ii) if any state anti-takeover statute or similar
statute or regulation is or becomes operative with respect to the Offer, the
Merger, this Agreement, the Option Agreements or any other transaction
contemplated by this Agreement or the Option Agreements, take all action
necessary to ensure that the Offer, the Merger and the other transactions
contemplated by this Agreement and the
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Option Agreements may be consummated as promptly as practicable on the terms
contemplated by this Agreement and the Option Agreements and otherwise to
minimize the effect of such statute or regulation on the Merger and the other
transactions contemplated by this Agreement and the Option Agreements.
SECTION 5.6. Stock Options. (a) As soon as practicable
following the date of this Agreement, the Board of Directors of Green
(or, if appropriate, any committee administering the Green Stock Plans)
shall adopt such resolutions or take such other actions as may be required to
effect the following:
(i) adjust the terms of all outstanding Green Employee
Stock Options granted under Green Stock Plans, whether vested or
unvested, as necessary to provide that, at the Effective Time, each
Green Employee Stock Option outstanding immediately prior to the
Effective Time shall be deemed to constitute an option to acquire, on
the same terms and conditions as were applicable under such Green
Employee Stock Option, the same number of shares of White Common Stock
as the holder of such Green Employee Stock Option would have been
entitled to receive pursuant to the Merger had such holder exercised
such Green Employee Stock Option in full immediately prior to the
Effective Time, at a price per share of White Common Stock equal to (A)
the aggregate exercise price for the shares of Green Common Stock
otherwise purchasable pursuant to such Green Employee Stock Option
divided by (B) the aggregate number of shares of White Common Stock
deemed purchasable pursuant to such Green Employee Stock Option (each,
as so adjusted, an "Adjusted Option"); provided, however, that in the
case of any option to which Section 421 of the Code applies by reason of
its qualification under any of Sections 422 through 424 of the Code
("qualified stock options"), the option price, the number of shares
purchasable pursuant to such option and the terms and conditions of
exercise of such option shall be determined in order to comply with
Section 424 of the Code; and
(ii) make such other changes to the Green Stock Plans as
Green and White may agree are appropriate to give effect to the Merger.
(b) As soon as practicable after the Effective Time, White
shall deliver to the holders of Green Employee Stock Options appropriate
notices setting forth such holders' rights pursuant to the
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respective Green Stock Plans and the agreements evidencing the grants of such
Green Employee Stock Options and that such Green Employee Stock Options and
agreements shall be assumed by White and shall continue in effect on the same
terms and conditions (subject to the adjustments required by this Section 5.6
after giving effect to the Merger). White shall comply with the terms of the
Green Stock Plans and ensure, to the extent required by, and subject to the
provisions of, such Green Stock Plans, that the Green Employee Stock Options
which qualified as qualified stock options prior to the Effective Time continue
to qualify as qualified stock options after the Effective Time.
(c) White shall take such actions as are reasonably necessary
for the assumption of the Green Stock Plans pursuant to Section 5.6(a),
including the reservation, issuance and listing of White Common Stock as is
necessary to effectuate the transactions contemplated by Section 5.6(a). As soon
as reasonably practicable after the Effective Time, White shall prepare and file
with the SEC one or more registration statement(s) on Form S-8 or other
appropriate form with respect to shares of White Common Stock subject to Green
Employee Stock Options issued under such Green Stock Plans and shall use all
reasonable efforts to maintain the effectiveness of such registration statement
or registration statements covering such Green Employee Stock Options (and
maintain the current status of the prospectus or prospectuses contained therein)
for so long as such Green Employee Stock Options remain outstanding. With
respect to those individuals, if any, who subsequent to the Effective Time will
be subject to the reporting requirements under Section 16(a) of the Exchange
Act, where applicable, White shall use all reasonable efforts to administer the
Green Stock Plans assumed pursuant to Section 5.6(b) in a manner that complies
with Rule 16b-3 promulgated under the Exchange Act to the extent the applicable
Green Stock Plan complied with such rule prior to the Merger.
(d) A holder of an Adjusted Option may exercise such Adjusted
Option in whole or in part in accordance with its terms by delivering a properly
executed notice of exercise to White, together with the consideration therefor
and the federal withholding tax information, if any, required in accordance with
the related Green Stock Plan.
(e) Except as otherwise contemplated by this Section 5.6 and
except to the extent required under the respective terms of the Green Employee
Stock Options, all restrictions or limitations on transfer and vesting with
respect to Green Employee Stock Options awarded under the Green Stock Plans or
any other plan, program or arrangement of Green or any of its subsidiaries, to
the extent that such restrictions or limitations shall not have already lapsed,
shall remain in full force and effect with respect to such options after giving
effect to the Merger and the assumption by White as set forth above.
SECTION 5.7. Certain Employee Matters. Following the Effective
Time, White shall cause the Surviving Corporation to honor all obligations under
employment agreements and employee benefit plans, programs, policies and
arrangements of Green or White the existence of which does not constitute a
violation of this Agreement in accordance with
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the terms thereof and agrees to provide employees of Green with benefits no
less favorable in the aggregate than those provided to similarly situated White
employees. Notwithstanding the foregoing, for a period of two years following
the Effective Time, White shall, or shall cause the Surviving Corporation to,
establish and maintain a plan to provide severance and termination benefits to
all non-union employees of Green and White terminated as a result of, or in
connection with, the Merger, which benefits shall be determined consistent with
industry standards and taking into account those benefits provided in recent
similar transactions in the industry.
SECTION 5.8. Indemnification, Exculpation and Insurance. (a)
White agrees that all rights to indemnification and exculpation from liabilities
for acts or omissions occurring at or prior to the Effective Time now existing
in favor of the current or former directors or officers of Green and its
subsidiaries as provided in their respective certificates of incorporation or
by-laws (or comparable organizational documents) and any indemnification
agreements of Green, the existence of which does not constitute a breach of this
Agreement, shall be assumed by the Surviving Corporation in the Merger, without
further action, as of the Effective Time and shall survive the Merger and shall
continue in full force and effect in accordance with their terms. In addition,
from and after the Effective Time, directors and officers of Green who become
directors or officers of White shall be entitled to the same indemnity rights
and protections as are afforded to other directors and officers of White.
(b) In the event that White 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 White assume the obligations set forth in this
Section.
(c) For three years after the Effective Time, White shall
provide, if available on commercially reasonable terms, officers' and directors'
liability insurance in respect of acts or omissions occurring prior to the
Effective Time, including but not limited to the transactions contemplated by
this Agreement, covering each person currently covered by Green's officers' and
directors' liability insurance policy, or who becomes covered by such policy
prior to the Effective Time, on terms with respect to coverage and amount no
less favorable than those of such policy in effect on the date hereof, provided
that in satisfying its obligation under this Section White shall not be
obligated to pay premiums in excess of 150% of the amount per annum Green paid
in its last full fiscal year, and provided further that White shall nevertheless
be obligated to provide such coverage as may be obtained for such amount.
(d) The provisions of this Section 5.8 (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
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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 5.9. Fees and Expenses. (a) Except as set forth in
this Section 5.9, all fees and expenses incurred in connection with the Offer,
the Merger, this Agreement, the Option Agreements and the transactions
contemplated by this Agreement and the Option Agreements shall be paid by the
party incurring such fees or expenses, whether or not the Merger is consummated,
except that each of White and Green shall bear and pay one-half of the costs and
expenses incurred in connection with (i) the filing, printing and mailing of
the Offer Documents, the Schedule 14D-9, the Green Pennsylvania Proxy Statement,
the Form S-4 and the Joint Proxy Statement (including SEC filing fees) and (ii)
the application to be filed with the STB (including filing fees).
(b) In the event that (i) a Takeover Proposal in respect
of Green shall have been made known to Green or any of its subsidiaries or has
been made directly to its shareholders generally or any person shall have
publicly announced an intention (whether or not conditional) to make such a
Takeover Proposal and thereafter this Agreement is terminated by either White
or Green pursuant to Section 7.1(b)(i) or (ii), or (ii) this Agreement is
terminated (x) by Green pursuant to Section 7.1(h) or (y) by White pursuant to
Section 7.1(e), then Green shall promptly, but in no event later than two days
after the date of such termination, pay White a fee equal to $300 million by
wire transfer of same day funds (the "Termination Fee"); provided, however,
that no Termination Fee shall be payable to White pursuant to clause (i) of
this paragraph (b) unless and until within 24 months of such termination Green
or any of its subsidiaries enters into any Acquisition Agreement or consummates
any Takeover Proposal, and such Termination Fee shall be payable upon entering
into such Acquisition Agreement or consummating such Takeover Proposal. Green
acknowledges that the agreements contained in this Section 5.9(b) are an
integral part of the transactions contemplated by this Agreement, and that,
without these agreements, White would not enter into this Agreement;
accordingly, if Green fails promptly to pay the amount due pursuant to this
Section 5.9(b), and, in order to obtain such payment, White commences a suit
which results in a judgment against Green for the fee set forth in this Section
5.9(b), Green shall pay to White its costs and expenses (including attorneys'
fees and expenses) in connection with such suit, together with interest on the
amount of the fee at the prime rate of Citibank N.A. in effect on the date such
payment was required to be made.
(c) In the event that (i) a Takeover Proposal in respect of
White shall have been made known to White or any of its subsidiaries or has been
made directly to its shareholders generally or any person shall have publicly
announced an intention (whether or not conditional) to make such a Takeover
Proposal and thereafter this Agreement is terminated by either White or Green
pursuant to Section 7.1(b)(i) or (iii), or (ii) this Agreement is terminated (x)
by White pursuant to Section 7.1(d) or (y) by Green pursuant to
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Section 7.1(i), then White shall promptly, but in no event later than two days
after the date of such termination, pay Green the Termination Fee by wire
transfer of same day funds; provided, however, that no Termination Fee shall
be payable to Green pursuant to clause (i) of this paragraph (c) unless and
until within 24 months of such termination White or any of its subsidiaries
enters into any Acquisition Agreement or consummates any Takeover Proposal,
and such Termination Fee shall be payable upon entering into such Acquisition
Agreement or consummating such Takeover Proposal. White acknowledges that the
agreements contained in this Section 5.9(c) are an integral part of the
transactions contemplated by this Agreement, and that, without these
agreements, Green would not enter into this Agreement; accordingly, if White
fails promptly to pay the amount due pursuant to this Section 5.9(c), and, in
order to obtain such payment, Green commences a suit which results in a
judgment against White for the fee set forth in this Section 5.9(c), White
shall pay to Green its costs and expenses (including attorneys' fees and
expenses) in connection with such suit, together with interest on the amount of
the fee at the prime rate of Citibank N.A. in effect on the date such payment
was required to be made.
(d) Green and White agree that either White or Tender Sub shall
pay any state or local sales, use, transfer tax or similar tax (including any
real property transfer or gains tax) imposed on the shareholders of Green and
which is attributable to the transfer (or deemed transfer) of the assets held by
Green or any subsidiary of Green, including any penalties and interest relating
to such tax, and in any case arising as a result of the consummation of the
Offer, the Second Offer (if any) and/or the Merger (collectively, "Transfer
Taxes"). Green and White agree to cooperate with each other in the filing of
any returns with respect to Transfer Taxes, and in the filing of any returns
relating to similar taxes imposed on Green, including supplying in a timely
manner a complete list of all real property interests held by Green and its
subsidiaries and any information with respect to such property that is
reasonably necessary to complete such returns. The portion of the consideration
allocable to the assets giving rise to such Transfer Tax shall be agreed to by
Green and White.
SECTION 5.10. Public Announcements. White and Green shall
consult with each other before issuing, and provide each other the opportunity
to review, comment upon and concur with, any press release or other public
statements with respect to the transactions contemplated by this Agreement,
including the Offer and the Merger, and the Option Agreements, and shall not
issue any such press release or make any such public statement prior to such
consultation, except as either party may determine is required by applicable
law, court process or by obligations pursuant to any listing agreement with any
national securities exchange. The parties agree that the initial press release
to be issued with respect to the transactions contemplated by this Agreement and
the Option Agreements shall be in the form heretofore agreed to by the parties.
SECTION 5.11. Affiliates. Prior to the Closing Date, Green shall
deliver to White a letter identifying all persons who are, at
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the time this Agreement is submitted for adoption by it to the shareholders of
Green, "affiliates" of Green for purposes of Rule 145 under the Securities Act.
Green shall use all reasonable efforts to cause each such person to deliver to
White on or prior to the Closing Date a written agreement substantially in the
form attached as Exhibit B hereto.
SECTION 5.12. NYSE Listing. White shall use reasonable efforts
to cause the shares of White Common Stock to be issued in the Merger, under the
Green Stock Plans and pursuant to the White Stock Option Agreement to be
approved for listing on the NYSE, subject to official notice of issuance, prior
to the Closing Date. Green shall use reasonable efforts to cause the shares of
Green Common Stock to be issued pursuant to the Green Stock Option Agreement to
be approved for listing on the NYSE, subject to official notice of issuance,
prior to the Closing Date.
SECTION 5.13. Shareholder Litigation. Each of Green and White
shall give the other the reasonable opportunity to participate in the defense of
any shareholder litigation against Green or White, as applicable, and its
directors relating to the transactions contemplated by this Agreement and the
Option Agreements.
SECTION 5.14. Green Rights Agreement. The Board of Directors of
Green shall take all further action (in addition to that referred to in Section
3.1(n)) reasonably requested in writing by White (including redeeming the Green
Rights immediately prior to the Effective Time or amending the Green Rights
Agreement) in order to render the Green Rights inapplicable to the Offer, the
Merger and the other transactions contemplated by this Agreement and the Green
Stock Option Agreement. Except as provided above with respect to the Offer, the
Merger and the other transactions contemplated by this Agreement and the Green
Stock Option Agreement, the Board of Directors of Green shall not (a) amend the
Green Rights Agreement or (b) take any action with respect to, or make any
determination under, the Green Rights Agreement, including a redemption of the
Green Rights or any action to facilitate a Takeover Proposal in respect of
Green.
SECTION 5.15. White Rights Agreement. The Board of Directors of
White shall take all further action (in addition to that referred to in Section
3.2(n)) reasonably requested in writing by Green in order to render the White
Rights inapplicable to the White Stock Option Agreement. The Board of Directors
of White shall not (a) amend the White Rights Agreement or (b) take any action
with respect to, or make any determination under, the White Rights Agreement, to
facilitate a Takeover Proposal in respect of White.
SECTION 5.16. (a) Corporate Headquarters. White and Green agree
that, following the consummation of the Merger, the corporate headquarters of
White shall be located in Philadelphia, Pennsylvania, and each agrees to take
all necessary action to effect the relocation of White's corporate
headquarters.
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(b) Governance. The Board of Directors of each party
shall take action to cause the governance of White at the Effective Time to be
as provided in Exhibit A.
SECTION 5.17. Registration Rights. Green or White, as
applicable (such party, the "issuing party"), shall, if requested by the other
party hereto (such party, the "requesting party") at any time and from time to
time within three years after the termination of this Agreement, as
expeditiously as possible prepare and file up to three registration statements
under the Securities Act if such registration is necessary in order to permit
the sale or other disposition of any or all securities that have been deposited
in the Voting Trust in the case of White, or acquired by exercise of the White
Stock Option Agreement, in the case of Green, in accordance with the intended
method of sale or other disposition stated by the requesting party, including a
"shelf" registration statement under Rule 415 under the Securities Act or any
successor provision; and the issuing party shall use its best efforts to
qualify such securities under any applicable state securities laws. The
requesting party agrees to use reasonable efforts to cause, and to cause any
underwriters of any sale or other disposition to cause, any sale or other
disposition pursuant to such registration statement to be effected on a widely
distributed basis. The issuing party shall use reasonable efforts to cause
each such registration statement to become effective, to obtain all consents or
waivers of other parties which are required therefor, and to keep such
registration statement effective for such period not in excess of 180 calendar
days from the day such registration statement first becomes effective as may be
reasonably necessary to effect such sale or other disposition. The obligations
of the issuing party hereunder to file a registration statement and to maintain
its effectiveness may be suspended for one or more periods of time not
exceeding 60 calendar days in the aggregate with respect to any registration
statement if the Board of Directors of the issuing party shall have determined
that the filing of such registration statement or the maintenance of its
effectiveness would require disclosure of nonpublic information that would
materially and adversely affect the issuing party. Any registration statement
prepared and filed under this Section, and any sale covered thereby, shall be
at the issuing party's expense except for underwriting discounts or commission,
brokers' fees and the fees and disbursements of the requesting party's counsel
related thereto. The requesting party shall provide all information reasonably
requested by the issuing party for inclusion in any registration statement to
be filed hereunder. If, during the time periods referred to in the first
sentence of this Section, the issuing party effects a registration under the
Securities Act of the issuing party's securities for its own account or for any
other of its shareholders (other than on Form S-4 or Form S-8, or any
successor form), it shall allow the other party hereto (in such case, the
"requesting party") the right to participate in such registration, and such
participation shall not affect the obligation of the issuing party to effect
demand registration statements for the requesting party under this Section;
provided that, if the managing underwriters of such offering advise the issuing
party in writing that in their opinion the number of securities requested to be
included in such registration exceeds the number which can be sold in such
offering, the issuing party shall include the securities requested to be
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included therein by White pro rata with the securities intended to be included
therein by the issuing party. In connection with any registration pursuant to
this Section, Green and White shall provide each other and any underwriter of
the offering with customary representations, warranties, covenants,
indemnification, and contribution in connection with such registration.
SECTION 5.18. Financing. White shall use its best efforts to
obtain as soon as practicable sufficient financing, on terms reasonably
acceptable to White, to enable consummation of the Offer and the Merger.
ARTICLE VI
CONDITIONS PRECEDENT
SECTION 6.1. Conditions to Each Party's Obligation To Effect
the Merger. The respective obligation of each party to effect the Merger is
subject to the satisfaction or waiver on or prior to the Closing Date of the
following conditions:
(a) Shareholder Approvals. Each of the Green Merger
Shareholder Approval and the White Shareholder Approval shall have
been obtained.
(b) HSR Act. Any applicable waiting period (and any
extension thereof) under the HSR Act shall have been terminated or
shall have expired.
(c) No Injunctions or Restraints. No judgment, order,
decree, statute, law, ordinance, rule, regulation, temporary
restraining order, preliminary or permanent injunction or other order
enacted, entered, promulgated, enforced or issued by any court of
competent jurisdiction or other Governmental Entity or other legal
restraint or prohibition (collectively, "Restraints") preventing the
consummation of the Merger shall be in effect; provided, however, that
the party seeking to assert this condition shall have used reasonable
efforts to prevent the entry of any such Restraints and to appeal as
promptly as possible any such Restraints that may be entered. In
addition, there shall not be any Restraint enacted, entered, enforced
or promulgated that is reasonably likely to result, directly or
indirectly, in a material adverse effect with respect to Green and
White on a combined basis; provided, however, that the party seeking
to assert this condition shall have used reasonable efforts to prevent
the entry of any such Restraints and to appeal as promptly as possible
any such Restraints that may be entered.
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(d) NYSE Listing. The shares of White Common Stock
issuable to Green's shareholders pursuant to this Agreement and under
the Green Stock Plans shall have been approved for listing on the
NYSE, subject to official notice of issuance.
SECTION 6.2. Conditions to Obligation of White. The
obligation of White to effect the Merger is further subject to satisfaction or
waiver of the following conditions:
(a) Compliance. Green shall not have breached or
failed to observe or perform in any material respect any of its
covenants or agreements hereunder to be performed by it at or prior to
the Closing Date, and the representations and warranties of Green set
forth herein shall be true and accurate both when made and at and as
of the Closing Date, as if made at and as of such time (except to the
extent expressly made as of an earlier date, in which case as of such
date), except where the breach or failure to observe or perform such
covenants or agreements, or the failure of such representations and
warranties to be so true and correct (without giving effect to any
limitation as to "materiality" or "material adverse effect" set forth
therein), does not have, and is not likely to have, individually or in
the aggregate, a material adverse effect on Green.
(b) No Material Adverse Change. At any time after the
date of this Agreement there shall not have occurred any material
adverse change relating to Green.
(c) Offer. Tender Sub shall have purchased shares of
Green Common Stock in the Offer or, if not, White and Tender Sub shall
have obtained sufficient financing, on terms reasonably acceptable to
White, to enable consummation of the Merger.
(d) Regulatory Approval. The STB shall have issued a
decision (which decision shall not have been stayed or enjoined) that
(A) constitutes a final order approving, exempting or otherwise
authorizing consummation of the Merger and all other material
transactions contemplated by this Agreement (or subsequently presented
to the STB by agreement of Green and White) as may require such
authorization and (B) does not (1) change or disapprove of the
consideration to be given in the Merger or other material provisions
of Article II of this Agreement or (2) impose on White, Green, or any
of their respective subsidiaries any other terms or conditions
(including, without limitation, labor protective provisions but
excluding conditions heretofore imposed by the ICC in New York Dock
Railway--Control--Brooklyn Eastern District, 360 I.C.C. 60 (1979))
that materially and adversely affect the long-term benefits expected
to be received by White from the transactions contemplated by this
Agreement.
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(e) Other Governmental Entity Actions. All actions by or in
respect of or filings with any Governmental Entity required to permit
the consummation of the Merger (other than approval of the STB, which
is addressed above) shall have been obtained but excluding any consent,
approval, clearance or confirmation the failure to obtain which would
not have a material adverse effect on White, Green or, after the
Effective Time, the Surviving Corporation.
SECTION 6.3. Conditions to Obligation of Green. The
obligation of Green to effect the Merger is further subject to satisfaction or
waiver of the following conditions:
(a) Compliance. White shall not have breached or failed to
observe or perform in any material respect any of its covenants or
agreements hereunder to be performed by it at or prior to the Closing
Date, and the representations and warranties of White set forth herein
shall be true and accurate both when made and at and as of the Closing
Date, as if made at and as of such time (except to the extent expressly
made as of an earlier date, in which case as of such date), except
where the breach or failure to observe or perform such covenants and
agreements, or the failure of such representations and warranties to be
so true and correct (without giving effect to any limitation as to
"materiality" or "material adverse effect" set forth therein), does not
have, and is not likely to have, individually or in the aggregate, a
material adverse effect on White.
(b) No Material Adverse Change. At any time after the date of
this Agreement there shall not have occurred any material adverse
change relating to White.
(c) Regulatory Approval. The STB shall have issued a decision
(which decision shall not have been stayed or enjoined) that
(i) constitutes a final order approving, exempting or otherwise
authorizing consummation of the Merger and all other material
transactions contemplated hereby and thereby or subsequently presented
to the STB by agreement of the White and Green, as may require such
authorization and (ii) does not change or disapprove of the
consideration to be given in the Merger or other material provisions
of Article II of this Agreement.
SECTION 6.4. Frustration of Closing Conditions. Neither
White nor Green may rely on the failure of any condition set forth in Section
6.1, 6.2 or 6.3, as the case may be, to be satisfied if such failure was caused
by such party's failure to use reasonable efforts to consummate the Merger and
the other transactions contemplated by this Agreement and the Option
Agreements, as required by and subject to Section 5.5.
ARTICLE VII
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TERMINATION, AMENDMENT AND WAIVER
SECTION 7.1 Termination. This Agreement may be
terminated at any time prior to the Effective Time, whether before or after
either of the Green Shareholder Approvals or the White Shareholder Approval
only as provided below:
(a) by mutual written consent of White and Green;
(b) by either White or Green:
(i) if the Merger shall not have been consummated by
December 31, 1998; provided, however, that the right to terminate this
Agreement pursuant to this Section 7.1(b)(i) shall not be available to
any party whose failure to perform any of its obligations under this
Agreement results in the failure of the Merger to be consummated by such
time;
(ii) if, at a Green Merger Shareholders Meeting duly
convened therefor or at any adjournment or postponement thereof, the
Green Merger Shareholder Approval shall not have been obtained;
(iii) if, at a White Shareholders Meeting duly convened
therefor or at any adjournment or postponement thereof, the White
Shareholder Approval shall not have been obtained; or
(iv) if any Governmental Entity shall have issued a
Restraint or taken any other action permanently enjoining, restraining
or otherwise prohibiting the consummation of the Merger or any of the
other transactions contemplated by this Agreement and such Restraint or
other action shall have become final and nonappealable; provided,
however, that the party seeking to terminate this Agreement pursuant to
this clause (iv) shall have used all reasonable efforts to prevent the
entry of and to remove such Restraint or other action;
(c) by White, if Green shall have breached or failed to
perform in any material respect any of its representations,
warranties, covenants or other agreements contained in this Agreement,
which breach or failure to perform (A) would give rise to
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the failure of the condition set forth in Section 6.2(a), and (B) cannot
be or has not been cured within 30 days after the giving of written
notice to Green of such breach (a "Green Material Breach") (provided
that White is not then in White Material Breach of any representation,
warranty, covenant or other agreement contained in this Agreement and
provided that, if such breach is curable through the exercise of Green's
best efforts, this Agreement may not be terminated hereunder for so long
as Green is so using its best efforts to cure such breach);
(d) by White in accordance with Section 4.2(b); provided
that it has complied with all provisions contained in Section 4.2,
including the notice provisions therein, and that it complies with
applicable requirements of Section 5.9;
(e) by White if (i) the Board of Directors of Green (or,
if applicable, any committee thereof) shall have withdrawn or modified
in a manner adverse to White its approval or recommendation of the
Offer or the Merger or the matters to be considered at the Green
Shareholders Meetings or failed to reconfirm its recommendation within
15 business days after a written request to do so, or approved or
recommended any Takeover Proposal in respect of Green or (ii) the
Board of Directors of Green or any committee thereof shall have
resolved to take any of the foregoing actions;
(f) by White, if Green or any of its officers, directors,
employees, representatives or agents shall take any of the
actions that would be proscribed by Section 4.2 but for the exceptions
therein allowing certain actions to be taken pursuant to the proviso
in the first sentence of Section 4.2(a) or the second sentence of
Section 4.2(b);
(g) by Green, if White shall have breached or failed to
perform in any material respect any of its representations,
warranties, covenants or other agreements contained in this Agreement,
which breach or failure to perform (A) would give rise to the failure
of the condition set forth in Section 6.3(a), and (B) cannot be or has
not been cured within 30 days after the giving of written notice to
White of such breach (a "White Material Breach") (provided that Green
is not then in Green Material Breach of any representation, warranty,
covenant or other agreement contained in this Agreement and provided
that, if such breach is curable through the exercise of White's best
efforts, this Agreement may not be terminated hereunder for so long as
White is so using its best efforts to cure such breach);
(h) by Green in accordance with Section 4.2(b); provided
that it has complied with all provisions contained in Section 4.2,
including the notice provisions therein, and that it complies with
applicable requirements of Section 5.9;
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(i) by Green if (i) the Board of Directors of White (or,
if applicable, any committee thereof) shall have withdrawn or modified
in a manner adverse to Green its approval or recommendation of the
matters to be considered at the White Shareholders Meeting, or failed
to reconfirm its recommendation within 15 business days after a
written request to do so, or approved or recommended any White
Takeover Proposal or (ii) the Board of Directors of White or any
committee thereof shall have resolved to take any of the foregoing
actions; or
(j) by Green, if White or any of its officers, directors,
employees, representatives or agents shall take any of the
actions that would be proscribed by Section 4.2 but for the exceptions
therein allowing certain actions to be taken pursuant to the proviso
in the first sentence of Section 4.2(a) or the second sentence of
Section 4.2(b).
SECTION 7.2 Effect of Termination. In the event of
termination of this Agreement by either Green or White as provided in Section
7.1, this Agreement shall forthwith become void and have no effect, without any
liability or obligation on the part of White or Green, other than the
provisions of Section 1.9, Section 3.1(m), Section 3.2(m), the last sentence of
Section 5.4, Section 5.9, Section 5.17, this Section 7.2 and Article VIII,
which provisions survive such termination, and except to the extent that such
termination results from the willful and material breach by a party of any of
its representations, warranties, covenants or agreements set forth in this
Agreement.
SECTION 7.3 Amendment. This Agreement may be amended
by the parties at any time before or after any of the Green Shareholder
Approvals or the White 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 Green or White 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 7.4 Extension; Waiver. At any time prior to
the Effective Time, a party 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) subject to the proviso of Section 7.3, waive compliance by the
other party with any of the agreements or conditions 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 such
rights.
SECTION 7.5 Procedure for Termination, Amendment, Extension or
Waiver. A termination of this Agreement pursuant to
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Section 7.1, an amendment of this Agreement pursuant to Section 7.3 or an
extension or waiver pursuant to Section 7.4 shall, in order to be effective,
require, in the case of White or Green, action by its Board of Directors or,
with respect to any amendment to this Agreement, the duly authorized committee
of its Board of Directors.
ARTICLE VIII
GENERAL PROVISIONS
SECTION 8.1 Nonsurvival of Representations and Warranties.
None of the representations and warranties in this Agreement or in any
instrument delivered pursuant to this Agreement shall survive the Effective
Time. This Section 8.1 shall not limit any covenant or agreement of the
parties which by its terms contemplates performance after the Effective Time.
SECTION 8.2 Notices. All notices, requests, claims,
demands and other communications under this Agreement shall be in writing and
shall be deemed given if delivered personally, telecopied (which is confirmed)
or sent by overnight courier (providing proof of delivery) 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 White or Tender Sub, to
CSX Corporation
One ▇▇▇▇▇ Center
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇
with copies to:
CSX Corporation
One ▇▇▇▇▇ Center
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
-▇▇-
▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.; and
(b) if to Green, to
Conrail Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Senior Vice President - Law
with a copy to:
Cravath, Swaine & ▇▇▇▇▇
Worldwide Plaza
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
SECTION 8.3. Definitions. For purposes of this Agreement:
(a) an "affiliate" of any person means another person
that directly or indirectly, through one or more intermediaries,
controls, is controlled by, or is under common control with, such
first person;
(b) "material adverse change" or "material adverse
effect" means, when used in connection with Green or White, any
change, effect, event or occurrence that is materially adverse to the
business, financial condition or results of operations of such party
and its subsidiaries taken as a whole or materially impairs the
ability of such person to consummate the transactions contemplated
hereby (including the Offer and the Merger) and by the
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Option Agreements other than any change, effect, event or occurrence
relating to the United States economy in general or to the
transportation industry in general, and not specifically relating to
Green or White or their respective subsidiaries;
(c) "material" means, when used in connection with
Green or White, material to the business, financial condition or
results of operations of such party and its subsidiaries taken as a
whole or materially impairing the ability of such person to consummate
the transactions contemplated hereby (including the Offer and the
Merger) and by the Option Agreements other than any change, effect,
event or occurrence relating to the United States economy in general
or to the transportation industry in general, and not specifically
relating to Green or White or their respective subsidiaries, and the
term "materially" has a correlative meaning;
(d) "person" means an individual, corporation, partnership,
limited liability company, joint venture, association, trust,
unincorporated organization or other entity;
(e) a "subsidiary" of any person means another person,
an amount of the voting securities, other voting ownership or voting
partnership interests of which is sufficient to elect at least a
majority of its Board of Directors or other governing body (or, if
there are no such voting interests, 50% or more of the equity
interests of which) is owned directly or indirectly by such first
person; and
(f) "knowledge" of any person which is not an individual means
the knowledge of such person's executive officers after reasonable
inquiry.
SECTION 8.4 Interpretation. When a reference is made
in this Agreement to an Article, Section or Exhibit, such reference shall be to
an Article or Section of, or an Exhibit to, this Agreement unless otherwise
indicated. The table of contents and headings contained in this Agreement are
for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. Whenever the words "include", "includes" or
"including" are used in this Agreement, they shall be deemed to be followed by
the words "without limitation". The words "hereof", "herein" and "hereunder"
and words of similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this Agreement. All
terms defined in this Agreement shall have the defined meanings when used in
any certificate or other document made or delivered pursuant hereto unless
otherwise defined therein. The definitions contained in this Agreement are
applicable to the singular as well as the plural forms of such terms and to the
masculine as well as to the feminine and neuter genders of such term. Any
agreement, instrument or statute defined or referred to herein or in any
agreement or instrument that is referred to herein means such agreement,
instrument or statute as from time to time amended, modified or supplemented,
including (in the case of agreements or instruments) by
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waiver or consent and (in the case of statutes) by succession of comparable
successor statutes and references to all attachments thereto and instruments
incorporated therein. References to a person are also to its permitted
successors and assigns.
SECTION 8.5. Counterparts. This Agreement may be executed in one
or more counterparts, all of which shall be considered one and the same
agreement and shall become effective when one or more counterparts have been
signed by each of the parties and delivered to the other parties.
SECTION 8.6. Entire Agreement; No Third-Party Beneficiaries.
This Agreement (including the documents and instruments referred to herein),
the Option Agreements and the Confidentiality Agreement (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 of this
Agreement and (b) except for the provisions of Article II, Section 5.6 and
Section 5.8, are not intended to confer upon any person other than the parties
any rights or remedies.
SECTION 8.7. GOVERNING LAW. THIS AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK, REGARDLESS OF THE LAWS THAT MIGHT OTHERWISE GOVERN UNDER APPLICABLE
PRINCIPLES OF CONFLICT OF LAWS THEREOF; PROVIDED, HOWEVER, THAT THE LAWS OF THE
RESPECTIVE STATES OF INCORPORATION OF EACH OF THE PARTIES HERETO SHALL GOVERN
THE RELATIVE RIGHTS, OBLIGATIONS, POWERS, DUTIES AND OTHER INTERNAL AFFAIRS OF
SUCH PARTY AND ITS BOARD OF DIRECTORS.
SECTION 8.8. Assignment. Neither this Agreement nor any
of the rights, interests or obligations under this Agreement shall be assigned,
in whole or in part, by operation of law or otherwise by either of the parties
hereto without the prior written consent of the other party. Any assignment in
violation of the preceding sentence shall be void. Subject to the preceding
sentence, this Agreement will be binding upon, inure to the benefit of, and be
enforceable by, the parties and their respective successors and assigns.
SECTION 8.9. ENFORCEMENT. THE PARTIES AGREE THAT
IRREPARABLE DAMAGE WOULD OCCUR AND THAT THE PARTIES WOULD NOT HAVE ANY ADEQUATE
REMEDY AT LAW IN THE EVENT THAT ANY OF THE PROVISIONS OF THIS AGREEMENT WERE
NOT PERFORMED IN ACCORDANCE WITH THEIR SPECIFIC TERMS OR WERE OTHERWISE
BREACHED. IT IS ACCORDINGLY AGREED THAT THE PARTIES SHALL BE ENTITLED TO AN
INJUNCTION OR INJUNCTIONS TO PREVENT BREACHES OF THIS AGREEMENT AND TO ENFORCE
SPECIFICALLY THE TERMS AND PROVISIONS OF THIS AGREEMENT IN ANY FEDERAL COURT
LOCATED IN THE STATE OF NEW YORK OR IN NEW YORK STATE COURT, THIS BEING IN
ADDITION TO ANY OTHER REMEDY TO WHICH THEY ARE ENTITLED AT LAW OR IN EQUITY.
IN ADDITION, EACH OF THE PARTIES HERETO (A) CONSENTS TO SUBMIT ITSELF TO THE
PERSONAL JURISDICTION OF ANY FEDERAL COURT LOCATED IN THE STATE OF NEW YORK OR
ANY NEW YORK STATE COURT IN THE EVENT ANY DISPUTE ARISES OUT OF THIS AGREEMENT
OR ANY OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, (B) AGREES THAT IT
WILL NOT ATTEMPT TO
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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 COURT SITTING IN THE STATE OF NEW YORK OR A NEW
YORK STATE COURT.
SECTION 8.10. Headings. The headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
SECTION 8.11. Severability. If any term or other provision of
this Agreement is invalid, illegal or incapable of being enforced by any rule
of law or public policy, all other conditions and provisions of this Agreement
shall nevertheless remain in full force and effect so long as the economic or
legal substance of the transactions contemplated hereby is not affected in any
manner materially adverse to any party. Upon such determination that any term
or other provision is invalid, illegal or incapable of being enforced, the
parties hereto shall negotiate in good faith to modify this Agreement so as to
effect the original intent of the parties as closely as possible to the fullest
extent permitted by applicable law in an acceptable manner to the end that the
transactions contemplated hereby are fulfilled to the extent possible.
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IN WITNESS WHEREOF, Conrail Inc., Green Acquisition Corp. and CSX
Corporation have caused this Agreement to be signed by their respective
officers thereunto duly authorized, all as of the date first written above.
CONRAIL INC.
by
---------------------------
Name:
Title:
GREEN ACQUISITION CORP.
by
---------------------------
Name:
Title:
CSX CORPORATION
by
---------------------------
Name:
Title:
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EXHIBIT A
CORPORATE GOVERNANCE
Board of Directors Following the Effective Time
The Board of Directors of White will consist of the current
Chairman of the Boards of each of White and Green and an even number of other
directors (all of whom shall be outside directors) to be agreed upon, of whom
50% shall be designated by each of White and Green.
Committees of the Board of Directors and Chairpersons of Committees
The Board of Directors of White shall initially have six
committees: the finance and planning committee, the executive committee, the
audit committee, the ethics committee, the compensation committee and the
nominating committee. Each committee will be comprised of four directors, of
which two shall be designated by each of White and Green. The only committees
on which the current Chairman of the Board of each of White and Green will
serve will be the executive committee and the finance and planning committee,
and the current Chairman and Chief Executive Officer of White will chair the
executive committee and designate the chair of the finance and planning
committee. White will designate the chairperson of the compensation committee
and the audit committee and Green will designate the chairperson of the
nominating committee and the ethics committee.
Executive Management
Immediately following the Effective Time and for two years
thereafter, the current Chairman and Chief Executive Officer of White shall
continue as the Chairman and Chief Executive Officer of White and the current
Chairman of the Board and Chief Executive Officer of Green shall be President
and Chief Operating Officer of White and President and Chief Executive Officer
of each of its railroad subsidiaries (the "Railroad CEO"). Immediately
following such period, the current Chairman and Chief Executive Officer of
White shall continue as Chairman of White for an additional two-year period
(and Chairman Emeritus for a one-year period
75
thereafter) and the current Chairman of the Board and Chief Executive Officer
of Green shall be elected to the additional office of Chief Executive Officer
of White on the second anniversary of the Effective Time and shall succeed as
Chairman of White at the end of such additional two-year period. The foregoing
arrangements under this heading "Executive Management" may be altered only by
a vote, following the Effective Time, of 75% of the members of the Board of
Directors of White.
White Articles of Incorporation
On the Closing Date, the Articles of Incorporation of White shall
be amended to change the corporate name of White to a new neutral name not
including, except with the prior written consent of each of Green and White,
any aspect of the names of either Green or White or their subsidiaries or
predecessors.
White By-laws
On the Closing Date, the White By-laws shall be amended to
provide that any amendment to or modification of the arrangements set forth
under the heading "Executive Management" or of the employment agreements with
the current Chairman of White and Green entered into as of the date of this
Agreement shall require a vote of 75% of the members of the Board of Directors
of White.
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EXHIBIT C
FORM OF
AMENDED AND RESTATED
ARTICLES OF INCORPORATION(*)
Article I
NAME
The name of the Corporation is [TO BE DETERMINED IN ACCORDANCE WITH MERGER
AGREEMENT].
Article II
PURPOSE
The purpose for which the Corporation is organized is to transact
any lawful business not required to be specifically stated in the Articles of
Incorporation.
Article III
AUTHORIZED STOCK
3.1 Number and Designation. (a) The Corporation shall have
authority to issue five hundred million (500,000,000) shares of Common Stock,
par value $1.00 per share, twenty-five million (25,000,000) shares of Serial
Preferred Stock, without par value, and twenty-five million (25,000,000) shares
of Preferred Stock, without par value.
(b) The Board of Directors may determine the preferences,
limitations and relative rights, to the extent permitted by the Virginia Stock
Corporation Act, of any class of shares of Preferred Stock before the issuance
of any shares of that class, or of one or more series within a class before the
issuance of any shares of that series. Each class or
------------------
(*) Amendments are underlined herein
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EXHIBIT C
series shall be appropriately designated by a distinguishing designation prior
to the issuance of any shares thereof. Except to the extent otherwise
permitted by the Virginia Stock
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Corporation Act, the Preferred Stock of a series shall have preferences,
limitations and relative rights identical with those of other shares of the
same series and, except to the extent otherwise provided in the description of
the series, with those of shares of other series of the same class.
(c) Prior to the issuance of any shares of a class or series of
Preferred Stock, (1) the Board of Directors shall establish such class or
series by adopting a resolution and by filing with the State Corporation
Commission of Virginia articles of amendment setting forth the designation and
number of shares of the class or series and the preferences, limitations and
relative rights thereof and (2) the State Corporation Commission of Virginia
shall have issued a certificate of amendment with respect thereto.
3.2 Preemptive Rights. No holder of capital stock of the
Corporation of any class shall have any preemptive right to subscribe to or
purchase (i) any shares of capital stock of this Corporation, (ii) any
securities convertible into such shares or (iii) any options, warrants or
rights to purchase such shares or securities convertible into any such shares.
Article IV
SERIAL PREFERRED STOCK
4.1 Issuance in Series. The Board of Directors is hereby
empowered to cause the Serial Preferred Stock of the Corporation to be issued
in series with such of the variations permitted by clauses (a)-(h), both
inclusive, of this Section 4.1 as shall have been fixed and determined by the
Board of Directors with respect to any series prior to the issue of any shares
of such series.
The shares of the Serial Preferred Stock of different series may
vary as to:
(a) the number of shares constituting such series and the
designation of such series, which shall be such
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as to distinguish the shares thereof from the shares of all other series and
classes;
(b) the rate of dividend, the time of payment and, if
cumulative, the dates from which dividends shall be cumulative, and
the extent of participation rights, if any;
(c) any right to vote with holders of shares of any
other series or class and any right to vote as a class, either
generally or as a condition to specified corporate action;
(d) the price at and the terms and conditions on which
shares may be redeemed;
(e) the amount payable upon shares in event of involuntary
liquidation;
(f) the amount payable upon shares in event of voluntary
liquidation;
(g) any sinking fund provisions for the redemption or
purchase of shares; and
(h) the terms and conditions on which shares may be
converted, if the shares of any series are issued with the privilege
of conversion.
The shares of all series of Serial Preferred Stock shall
be identical except as, within the limits set forth above in this Section 4.1,
shall have been fixed and determined by the Board of Directors prior to the
issuance thereof.
[Deleted] On the date of these Amended and Restated
Articles of Incorporation, there were authorized, but unissued, 3,000,000
shares of the Series B Junior Participating Preferred Stock. The date on which
such series was authorized by the Board of Directors and the preferences,
limitations and relative rights of the shares of such series not is set forth
in Article X hereof. Prior to the date of these Amended and Restated Articles
of Incorporation, the
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Corporation had issued the Series A $7.00 Cumulative Convertible Preferred
Stock, the Market Auction Preferred Stock, Series C-1 and the Market Auction
Preferred Stock, Series C-2. On that date all of the shares of each of the
aforesaid series which had been issued had been redeemed by the Corporation and
no share of any such series remained issued and outstanding. Each such series
provided that shares of the series, when purchased, redeemed or otherwise
acquired by the Corporation, would become authorized but unissued shares of
Preferred Stock, undesignated as to series.
4.2 Dividends. The holders of the Serial Preferred Stock of
each series shall be entitled to receive, if and when declared payable by the
Board of Directors, dividends in lawful money of the United States of America,
at the dividend rate for such series, and not exceeding such rate except to the
extent of any participation right. Such dividends shall be payable on such
dates as shall be fixed for such series. Dividends, if cumulative and in
arrears, shall not bear interest.
No dividends shall be declared or paid upon or set apart for the
Common Stock or for stock of any other class hereafter created ranking junior
to the Serial Preferred Stock in respect of dividends or assets (hereinafter
called Junior Stock), and no shares of Serial Preferred Stock, Common Stock or
Junior Stock shall be purchased, redeemed or otherwise reacquired for a
consideration, nor shall any funds be set aside for or paid to any sinking fund
therefor, unless and until (i) full dividends on the outstanding Serial
Preferred Stock at the dividend rate or rates therefor, together with the full
additional amount required by any participation right, shall have been paid or
declared and set apart for payment with respect to all past dividend periods,
to the extent that the holders of the Serial Preferred Stock are entitled to
dividends with respect to any past dividend period, and the current dividend
period, and (ii) all mandatory sinking fund payments that shall have become due
in respect of any series of the Serial Preferred Stock shall have been made.
Unless full dividends with respect to all past dividend periods on the
outstanding Serial Preferred Stock at the dividend rate or rates therefor, to
the extent the holders of the Serial Preferred Stock are entitled to dividends
with respect to any particular past dividend period, together with
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the full additional amount required by any participation right, shall have been
paid or declared and set apart for payment and all mandatory sinking fund
payments that shall have become due in respect of any series of the Serial
Preferred Stock shall have been made, no distributions shall be made to the
holders of the Serial Preferred Stock of any series unless distributions are
made to the holders of the Serial Preferred Stock of all series then
outstanding in proportion to the aggregate amounts of the deficiencies in
payments due to the respective series, and all payments shall be applied,
first, to dividends accrued and in arrears, next, to any amount required by any
participation right, and, finally, to mandatory sinking fund payments. The
terms "current dividend period" and "past dividend period" mean, if two or more
series of Serial Preferred Stock having different dividend periods are at the
same time outstanding, the current dividend period or any past dividend period,
as the case may be, with respect to each such series.
4.3 Preference on Liquidation. In the event of any liquidation,
dissolution or winding up of the Corporation, the holders of the Serial
Preferred Stock of each series shall be entitled to receive, for each share
thereof, the fixed liquidation price for such series, plus, in case such
liquidation, dissolution or winding up shall have been voluntary, the fixed
liquidation premium for such series, if any, together in all cases with a sum
equal to all dividends accrued or in arrears thereon and the full additional
amount required by any participation right, before any distribution of the
assets shall be made to holders of the Common Stock or Junior Stock; but the
holders of the Serial Preferred Stock shall be entitled to no further
participation in such distribution. If, upon any such liquidation, dissolution
or winding up, the assets distributable among the holders of the Serial
Preferred Stock shall be insufficient to permit the payment of the full
preferential amounts aforesaid, then such assets shall be distributed among the
holders of the Serial Preferred Stock then outstanding ratably in proportion to
the full preferential amounts to which they are respectively entitled. For the
purposes of this Section 4.3, the expression "dividends accrued or in arrears"
means, in respect of each share of the Serial Preferred Stock of any series at
a particular time, an amount equal to the product of the rate of
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dividend per annum applicable to the shares of such series multiplied by the
number of years and any fractional part of a year that shall have elapsed from
the date when dividends on such shares became cumulative to the particular time
in question less the total amount of dividends actually paid on the shares of
such series or declared and set apart for payment thereon; provided, however,
that, if the dividends on such shares shall not be fully cumulative, such
expression shall mean the dividends, if any, cumulative in respect of such
shares for the period stated in the articles of serial designation creating
such shares less all dividends paid in or with respect to such period.
Article V
COMMON STOCK
5.1 Dividends. Subject to the provisions of law and the rights
of holders of shares at the time outstanding of all classes of stock having
prior rights as to dividends, the holders of Common Stock at the time
outstanding shall be entitled to receive such dividends at such times and in
such amounts as the Board of Directors may deem advisable.
5.2 Liquidation. In the event of any liquidation, dissolution
or winding up (whether voluntary or involuntary) of the Corporation, after the
payment or provision for payment in full for all debts and other liabilities of
the Corporation and all preferential amounts to which the holders of shares at
the time outstanding of all classes of stock having prior rights thereto shall
be entitled, the remaining net assets of the Corporation shall be distributed
ratably among the holders of the shares at the time outstanding of Common
Stock.
5.3 Voting Rights. The holders of Common Stock shall be
entitled to one vote per share on all matters.
Article VI
NUMBER OF DIRECTORS
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The number of directors shall be fixed by the By-Laws or, in the
absence of a By-law fixing the number, the number shall be four.
Article VII
LIMIT ON LIABILITY AND INDEMNIFICATION
7.1 Definitions. For purposes of this Article the following
definitions shall apply:
(a) "Corporation" means this Corporation, including
Chessie System, Inc. and Seaboard Coast Line Industries, Inc. and no
other predecessor entity or other legal entity;
(b) "expenses" include counsel fees, expert witness
fees, and costs of investigation, litigation and appeal, as well as
any amounts expended in asserting a claim for indemnification;
(c) "liability" means the obligation to pay a judgment,
settlement, penalty, fine, or other such obligation, including,
without limitation, any excise tax assessed with respect to
an employee benefit plan;
(d) "legal entity" means a corporation, partnership,
joint venture, trust, employee benefit plan or other enterprise;
(e) "predecessor entity" means a legal entity the
existence of which ceased upon its acquisition by the Corporation in a
merger or otherwise; and
(f) "proceeding" means any threatened, pending, or
completed action, suit, proceeding or appeal whether civil, criminal,
administrative or investigative and whether formal or informal.
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7.2 Limit on Liability. In every instance permitted by the
Virginia Stock Corporation Act, as it exists on the date hereof or may
hereafter be amended, the liability of a director or officer of the Corporation
to the Corporation or its shareholders arising out of a single transaction,
occurrence or course of conduct shall be limited to one dollar.
7.3 Indemnification of Directors and Officers. The Corporation
shall indemnify any individual who is, was or is threatened to be made a party
to a proceeding (including a proceeding by or in the right of the Corporation)
because such individual is or was a director or officer of the Corporation, or
because such individual is or was serving the Corporation or any other legal
entity in any capacity at the request of the Corporation, against all
liabilities and reasonable expenses incurred in the proceeding except such
liabilities and expenses as are incurred because of such individual's willful
misconduct or knowing violation of the criminal law. Service as a director or
officer of a legal entity controlled by the Corporation shall be deemed service
at the request of the Corporation. The determination that indemnification
under this Section 7.3 is permissible and the evaluation as to the
reasonableness of expenses in a specific case shall be made, in the case of a
director, as provided by law, and in the case of an officer, as provided in
Section 7.4 of this Article; provided, however, that if a majority of the
directors of the Corporation has changed after the date of the alleged conduct
giving rise to a claim for indemnification, such determination and evaluation
shall, at the option of the person claiming indemnification, be made by special
legal counsel agreed upon by the Board of Directors and such person. Unless a
determination has been made that indemnification is not permissible, the
Corporation shall make advances and reimbursements for expenses incurred by a
director or officer in a proceeding upon receipt of an undertaking from such
director or officer to repay the same if it is ultimately determined that such
director or officer is not entitled to indemnification. Such undertaking shall
be an unlimited, unsecured general obligation of the director or officer and
shall be accepted without reference to such director's or officer's ability to
make repayment. The termination of a proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its equivalent
shall not of
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itself create a presumption that a director or officer acted in such a manner
as to make such director or officer ineligible for indemnification. The
Corporation is authorized to contract in advance to indemnify and make advances
and reimbursements for expenses to any of its directors or officers to the same
extent provided in this Section 7.3.
7.4 Indemnification of Others. The Corporation may, to a lesser
extent or to the same extent that it is required to provide indemnification and
make advances and reimbursements for expenses to its directors and officers
pursuant to Section 7.3 of this Article, provide indemnification and make
advances and reimbursements for expenses to its employees and agents, the
directors, officers, employees and agents of its subsidiaries and predecessor
entities, and any person serving any other legal entity in any capacity at the
request of the Corporation, and may contract in advance to do so. The
determination that indemnification under this Section 7.4 is permissible, the
authorization of such indemnification and the evaluation as to the
reasonableness of expenses in a specific case shall be made as authorized from
time to time by general or specific action of the Board of Directors, which
action may be taken before or after a claim for indemnification is made, or is
otherwise provided by law. No person's rights under Section 7.3 of this
Article shall be limited by the provisions of this Section 7.4.
7.5 Miscellaneous. The rights of each person entitled to
indemnification under this Article shall inure to the benefit of such person's
heirs, executors and administrators. Special legal counsel selected to make
determinations under this Article may be counsel for the Corporation.
Indemnification pursuant to this Article shall not be exclusive of any other
right of indemnification to which any person may be entitled, including
indemnification pursuant to a valid contract, indemnification by legal entities
other than the Corporation and indemnification under policies of insurance
purchased and maintained by the Corporation or others. However, no person
shall be entitled to indemnification by the Corporation to the extent such
person is indemnified by another, including an insurer. The Corporation is
authorized to purchase and maintain insurance against any liability it may have
under this Article or to
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protect any of the persons named above against any liability arising from their
service to the Corporation or any other legal entity at the request of the
Corporation regardless of the Corporation's power to indemnify against such
liability. The provisions of this Article shall not be deemed to preclude the
Corporation from entering into contracts otherwise permitted by law with any
individuals or legal entities, including those named above. If any provision
of this Article or its application to any person or circumstances is held
invalid by a court of competent jurisdiction, the invalidity shall not affect
other provisions or applications of this Article, and to this end the
provisions of this Article are severable.
7.6 Application; Amendments. The provisions of this Article
shall be applicable from and after its adoption even though some or all of the
underlying conduct or events relating to a proceeding may have occurred before
its adoption. No amendment, modification or repeal of this Article shall
diminish the rights provided hereunder to any person arising from conduct or
events occurring before the adoption of such amendment, modification or repeal.
Article VIII
UNSURRENDERED SHARES OF CHESSIE SYSTEM, INC. AND
SEABOARD COAST LINE INDUSTRIES, INC.
8.1 Conversion of Shares. On October 31, 1980 (the "Merger
Date"), the outstanding shares of Chessie Systems, Inc. ("Chessie") and
Seaboard Coast Line Industries, Inc. ("Industries") were converted by operation
of law into shares of the Corporation.
8.2 Failure to Surrender Shares. No holder of a Chessie or
Industries common stock certificate shall be entitled to vote at any meeting of
stockholders of the Corporation or to receive any dividends from the
Corporation until surrender of his certificate in exchange for a certificate
for shares of the Corporation's Common Stock. Upon such surrender, there shall
be paid to the holder the amount of
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dividends (without interest thereon) that have theretofore become payable, but
that have not been paid by reason of the foregoing, with respect to the number
of whole shares of the Corporation's Common Stock represented by the
certificates issued in exchange. The Corporation shall, however, be entitled
after the Merger Date to treat the certificates of outstanding common stock of
Chessie and Industries as evidencing the ownership of the number of full shares
of the Corporation's Common Stock into which the Chessie and Industries shares,
represented by such certificates, shall have been converted, notwithstanding
the failure to surrender such certificates.
Article IX
[Deleted.]
Article X
SERIAL PREFERRED STOCK, SERIES B
Pursuant to a resolution adopted by the Board of Directors of the
Corporation on April 29, 1986, 3,000,000 shares of Serial Preferred Stock
constitute a series of Serial Preferred Stock designated as the Junior
Participating Preferred Stock, Series B (the "Series B Stock"), the shares of
which have the following rights and preferences:
10.1 Designation and Amount. The shares of such series shall be
designated as "Junior Participating Preferred Stock, Series B" and the number
of shares constituting such series shall be 3,000,000. Such number of shares
may be increased or decreased by resolution of the Board of Directors;
provided, that no decrease shall reduce the number of shares of the Series B
Stock to a number less than that of the shares then outstanding.
10.2 Dividends and Distributions.
(a) Subject to the prior and superior rights of the holders of
any shares of any
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series of Preferred Stock ranking prior and superior to the shares of the
Series B Stock with respect to dividends, the holders of shares of the
Series B Stock, in preference to the holders of Common Stock of the
Corporation and of any other junior stock, shall be entitled to receive,
when, as and if declared by the Board of Directors out of funds legally
available for the purpose, quarterly dividends payable in cash on the
fifteenth day (or, if not a business day, the preceding business day) of
March, June, September and December in each year (each such date being
referred to herein as a "Quarterly Dividend Payment Date"), commencing
on the first Quarterly Dividend Payment Date after the first issuance of
a share or fraction of a share of the Series B Stock, in an amount per
share (rounded to the nearest cent) equal to the greater of (a) $1.00 or
(b) subject to the provision for adjustment hereinafter set forth, 100
times the aggregate per share amount of all cash dividends, and 100
times the aggregate per share amount (payable in kind) of all non-class
dividends or other distributions, other than a dividend payable in
shares of Common Stock, or a subdivision of the outstanding shares of
Common Stock (by reclassification or otherwise), declared on the Common
Stock since the immediately preceding Quarterly Dividend Payment Date
or, with respect to the first Quarterly Dividend Payment Date, since the
first issuance of any share or fraction of a share of the Series B
Stock. In the event the Corporation shall at any time declare or pay
any dividend on Common Stock payable in shares of Common Stock, or
effect a subdivision or combination or consolidation of the outstanding
shares of Common Stock (by reclassification or otherwise than by payment
of a dividend in shares of Common Stock) into a greater or lesser number
of shares of Common Stock, then in each such case the amount to which
holders of shares of the Series B Stock were entitled immediately prior
to such event under clause (b) of the preceding sentence shall be
adjusted by multiplying such amount by a fraction the numerator of which
is the number of shares of Common
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Stock outstanding immediately after such event and the denominator of
which is the number of shares of Common Stock that were outstanding
immediately prior to such event.
(b) The Corporation shall declare a dividend or distribution on
the Series B Stock as provided in paragraph (a) of this Section
immediately after it declares a dividend or distribution on the Common
Stock (other than a dividend payable in shares of Common Stock);
provided that, in the event no dividend or distribution shall
have been declared on the Common Stock during the period between any
Quarterly Dividend Payment Date and the next subsequent Quarterly
Dividend Payment Date, a dividend of $1.00 per share on the Series B
Stock shall nevertheless be payable on such subsequent Quarterly
Dividend Payment Date.
(c) Dividends shall begin to accrue and be cumulative
on outstanding shares of the Series B Stock from the Quarterly
Dividend Payment Date next preceding the date of issue of such shares
of the Series B Stock, unless the date of issue of such shares is
prior to the record date for the first Quarterly Dividend Payment
Date, in which case dividends on such shares shall begin to accrue
from the date of issue of such shares, or unless the date of issue is
a Quarterly Dividend Payment Date or is a date after the record date
for the determination of holders of shares of the Series B Stock
entitled to receive a quarterly dividend and before such Quarterly
Dividend Payment Date, in either of which events such dividends shall
begin to accrue and be cumulative from such Quarterly Dividend Payment
Date. Accrued but unpaid dividends shall not bear interest.
Dividends paid on the shares of the Series B Stock in an amount less
than the total amount of such dividends at the time accrued and
payable on such shares shall be allocated pro rata on a share-by-share
basis among all such shares at the time outstanding. The Board of
Directors may fix a record date for the determination of holders of
shares of the Series B Stock entitled to receive payment of a dividend
or distribution declared thereon, which record date shall be not more
than 60 days prior to the date fixed for the payment thereof.
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10.3 Voting Rights. The holders of shares of the Series B Stock
shall have the following voting rights:
(a) Subject to the provision for adjustment
hereinafter set forth, each share of the Series B Stock shall entitle the
holder thereof to 100 votes on all matters submitted to a vote of the
shareholders of the Corporation. In the event the Corporation shall at any
time declare or pay any dividend on Common Stock payable in shares of Common
Stock, or effect a subdivision or combination or consolidation of the
outstanding shares of Common Stock (by reclassification or otherwise than by
payment of a dividend in shares of Common Stock) into a greater or lesser
number of shares of Common Stock, then in each such case the number of votes
per share to which holders of shares of the Series B Stock were entitled
immediately prior to such event shall be adjusted by multiplying such number by
a fraction the numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of which is the
number of shares of Common Stock that were outstanding immediately prior to
such event.
(b) Except as otherwise provided herein or by law, the
holders of shares of the Series B Stock and the holders of shares of Common
Stock shall vote together as one class on all matters submitted to a vote of
shareholders of the Corporation.
(c) Except as set forth herein, holders of the Series
B Stock shall have no special voting rights and their consent shall not be
required (except to the extent they are entitled to vote with holders of Common
Stock as set forth herein) for taking any corporate action.
10.4 Certain Restrictions.
(a) Whenever quarterly dividends or other dividends or
distributions payable on the Series B Stock as provided in Section 2 are in
arrears, thereafter and until all accrued and unpaid dividends and
distributions, whether or not declared, on shares of the Series B Stock
outstanding shall have been paid in full, the Corporation shall not:
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(i) declare, set apart or pay dividends on or
make any other distributions on the Common Stock or any shares of stock ranking
junior (either as to dividends or upon liquidation, dissolution or winding up)
to the Series B Stock;
(ii) declare or pay dividends on or make any
other distributions on any shares of stock ranking on a parity (either as to
dividends or upon liquidation, dissolution or winding up) with the Series B
Stock, except dividends paid ratably on the Series B Stock and all such parity
stock on which dividends are payable or in arrears in proportion to the total
amounts to which the holders of all such shares are then entitled; or
(iii) redeem or purchase or otherwise acquire
for consideration shares of the Series B Stock, any such parity stock or any
stock ranking junior (either as to dividends or upon liquidation, dissolution
or winding up) with the Series B Stock, or set aside for or pay to any sinking
fund therefor.
(b) The Corporation shall not permit any subsidiary of
the Corporation to purchase or otherwise acquire for consideration any shares
of stock of the Corporation unless the Corporation could, under paragraph (a)
of this Section 4 purchase or otherwise acquire such shares at such time and in
such manner.
10.5 Reacquired Shares. Any shares of the Series B Stock
purchased or otherwise acquired by the Corporation in any manner whatsoever
shall be retired and cancelled promptly after the acquisition thereof. All
such shares shall upon their cancellation become authorized but unissued shares
of Preferred Stock and may be reissued as part of a new series of Preferred
Stock to be created by resolution or resolutions of the Board of Directors,
subject to the conditions and restrictions on issuance set forth herein.
10.6 Liquidation, Dissolution or Winding Up. Upon any
liquidation, dissolution or winding up of the Corporation, no distribution
shall be made (1) to the holders of shares of Common Stock or of stock ranking
junior (either as to dividends or upon liquidation, dissolution or winding up)
to the Series B Stock unless, prior thereto, the holders of
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shares of the Series B Stock shall have received $100 per share, plus an amount
equal to accrued and unpaid dividends and distributions thereon, whether or not
declared, to the date of such payment, provided that the holders of shares of
the Series B Stock shall be entitled to receive an aggregate amount per share,
subject to the provision for adjustment hereinafter set forth, equal to 100
times the aggregate amount to be distributed per share to holders of Common
Stock, or (2) to the holders of stock ranking on a parity (either as to
dividends or upon liquidation, dissolution or winding up) with the Series B
Stock, except distributions made ratably on the Series B Stock and all other
such parity stock in proportion to the total amounts to which the holders of
all such shares are entitled upon such liquidation, dissolution or winding up.
In the event the Corporation shall at any time declare or pay any dividend on
Common Stock payable in shares of Common Stock, or effect a subdivision or
combination or consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend in shares of Common
Stock) into a greater or lesser number of shares of Common Stock, then in each
such case the aggregate amount to which holders of shares of the Series B Stock
were entitled immediately prior to such event under the provision of clause (1)
of the preceding sentence shall be adjusted by multiplying such amount by a
fraction the numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of which is the
number of shares of Common Stock that were outstanding immediately prior to
such event.
10.7 Consolidation, Merger, etc. In case the Corporation shall
enter into any consolidation, merger, combination or other transaction in which
the shares of Common Stock are exchanged for or changed into other stock or
securities, cash and/or any other property, then in any such case the shares
of the Series B Stock shall at the same time be similarly exchanged or changed
in an amount per share (subject to the provision for adjustment hereinafter set
forth) equal to 100 times the aggregate amount of stock, securities, cash
and/or any other property (payable in kind), as the case may be, into which or
for which each share of Common Stock is changed or exchanged. In the event the
Corporation shall at any time declare or pay any dividend on Common Stock
payable
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in shares of Common Stock, or effect a subdivision or combination or
consolidation of the outstanding shares of Common Stock (by reclassification or
otherwise) into a greater or lesser number of shares of Common Stock, then in
each such case the amount set forth in the preceding sentence with respect to
the exchange or change of shares of the Series B Stock shall be adjusted by
multiplying such amount by a fraction the numerator of which is the number of
shares of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
10.8 No Redemption. The shares of the Series B Stock shall not
be redeemable.
10.9 Rank. The Series B Stock shall rank junior to all other
series of the Corporation's preferred stock outstanding as of April 29, 1986,
as to the payment of dividends and the distribution of assets.
10.10 Amendment. The Articles of Incorporation shall not be
amended in any manner which would materially alter or change the power,
preferences or special rights of the Series B Stock so as to affect them
adversely without the affirmative vote of the holders of at least two-thirds of
the outstanding shares of the Series B Stock, voting together as a single
voting group.
Article XI
CERTAIN VOTING MATTERS
(a) As to each voting group entitled to vote on an amendment or
restatement of these Articles of Incorporation the vote required for approval
shall be (i) the vote required by the terms of these Articles of Incorporation,
as amended or as restated from time to time, if such terms specifically require
the approval of more than a majority of the votes entitled to be cast thereon
by such voting group; or (ii) if clause (i) of this Article is not applicable,
a majority of the votes entitled to be cast thereon.
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(b) As to any plan of merger or share exchange to which the
Corporation is a party, or any sale, lease, exchange or other disposition of
all or substantially all of the assets or property of the Corporation other
than in the usual and regular course of business, for which the Virginia Stock
Corporation Act requires an affirmative vote of more than two-thirds of the
votes cast by shareholders entitled to vote thereon, but which requirement may
be reduced to a lesser percentage under the Virginia Stock Corporation Act if
the lesser percentage is specified in the articles of incorporation of the
Corporation, the affirmative vote of the holders of a majority of the
outstanding shares of each voting group entitled to vote on the transaction at
a meeting at which a quorum of the voting group exists shall be required in
lieu of the affirmative vote otherwise required under the Virginia Stock
Corporation Act.
▇-▇▇
▇▇
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CONDITIONS TO THE OFFER
Notwithstanding any other provisions of the Offer, and in addition to
(and not in limitation of) Tender Sub's rights to extend and amend the Offer at
any time in its sole discretion (subject to the provisions of the Merger
Agreement), Tender Sub shall not be required to accept for payment or, subject
to any applicable rules and regulations of the SEC, including Rule 14e-1(c)
under the Exchange Act (relating to Tender Sub's obligation to pay for or
return tendered shares of Green Common Stock or Green ESOP Preferred Stock
promptly after termination or withdrawal of the Offer), pay for, and may delay
the acceptance for payment of or, subject to the restriction referred to above,
the payment for, any tendered shares of Green Common Stock or Green ESOP
Preferred Stock, and may terminate the Offer as to any shares of Green Common
Stock or Green ESOP Preferred Stock not then paid for, if (1) (i) Tender Sub
does not receive prior to the expiration of the Offer an informal written
opinion in form and substance reasonably satisfactory to Tender Sub from the
staff of the STB, without the imposition of any conditions unacceptable to
Tender Sub, that the use of the voting trust substantially reflected in the
form of voting trust agreement contemplated by the Merger Agreement (the
"Voting Trust") is consistent with the policies of the STB against unauthorized
acquisitions of control of a regulated carrier, or (ii) Tender Sub does not
receive prior to the expiration of the Offer an informal statement from the
Premerger Notification Office that the transactions contemplated by the Offer,
the Merger Agreement and the Green Stock Option Agreement are not subject to,
or are exempt from, the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976,
as amended (the "HSR Act"), or in the absence of the receipt of such informal
statement, any applicable waiting period under the HSR Act shall have expired
or been terminated prior to the expiration of the Offer, or (2) at any time on
or after October 14, 1996 and prior to the acceptance for payment of shares of
Green Common Stock and Green ESOP Preferred Stock, any of the following events
shall occur:
(a) there shall be instituted or pending any action or proceeding by
any government or governmental authority or agency, domestic or foreign, (i)
challenging or
96
EXHIBIT D
seeking to make illegal, to delay materially or otherwise directly or
indirectly to restrain or prohibit the making of the Offer, the acceptance for
payment of or payment
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97
for some of or all the shares of Green Common Stock or Green ESOP Preferred
Stock by White or Tender Sub or the consummation by White or Tender Sub of the
Merger, seeking to obtain material damages relating to the Merger Agreement,
the Option Agreements or any of the transactions contemplated thereby or
otherwise seeking to prohibit directly or indirectly the transactions
contemplated by the Offer or the Merger Agreement, or challenging or seeking to
make illegal the transactions contemplated by the Option Agreements or
otherwise directly or indirectly to restrain, prohibit or delay the
transactions contemplated by the Option Agreements, (ii) except for the Voting
Trust, seeking to restrain, prohibit or delay White's, Tender Sub's or any of
their subsidiaries' ownership or operation of all or any material portion of
the business or assets of Green and its subsidiaries, taken as a whole, or to
compel White or any of its subsidiaries to dispose of or hold separate all or
any material portion of the business or assets of Green and its subsidiaries,
taken as a whole, (iii) except for the Voting Trust, seeking to impose or
confirm material limitations on the ability of White, Tender Sub or any of
their subsidiaries or affiliates effectively to exercise full rights of
ownership of the shares of Green Common Stock, including, without limitation,
the right to vote any shares of Green Common Stock acquired or owned by White,
Tender Sub or any of their subsidiaries on all matters properly presented to
Green's shareholders, or (iv) seeking to require divestiture by White or Tender
Sub or any of their subsidiaries of any shares of Green Common Stock, in the
case of any of (i) through (iv) above, which actions or proceedings are
reasonably likely to have a material adverse effect on White; or
(b) there shall be any action taken, or any statute, rule,
regulation, injunction, order or decree enacted, enforced, promulgated, issued
or deemed applicable to the transactions contemplated by the Offer or the
Merger Agreement, by or before any court, government or governmental authority
or agency, domestic or foreign, that, directly or indirectly, results in any of
the consequences referred to in paragraph (a) above; or
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98
(c) prior to the expiration of the Offer there shall not have been
validly tendered and not withdrawn an aggregate of at least 17,860,124 shares
of Green Common Stock and Green ESOP Preferred Stock; or
(d) the Board of Directors of Green shall have withdrawn, modified or
changed in a manner adverse to White or Tender Sub its approval or
recommendation of the Offer or the matters to be considered at the Green
Shareholders Meetings or shall have recommended a Takeover Proposal or other
business combination, or Green shall have entered into an agreement in
principle (or similar agreement) or definitive agreement providing for a
Takeover Proposal (as defined in the Merger Agreement) or other business
combination with a person or entity other than White or Tender Sub (or the
Board of Directors of Green resolves to do any of the foregoing); or
(e) Green shall have breached or failed to observe or perform in any
material respect any of its covenants or agreements under the Merger Agreement,
or any of the representations and warranties of Green set forth in the Merger
Agreement shall not be true and accurate both when made and as of the date of
consummation of the Offer, as if made at and as of such time (except to the
extent expressly made as of an earlier date, in which case as of such date),
except where the breach or failure to observe or perform such covenants or
agreements, or the failure of such representations and warranties to be so true
and correct (without giving effect to any limitation as to "materiality" or
"material adverse effect" set forth therein), does not have, and is not likely
to have, individually or in the aggregate, a material adverse effect on Green.
(f) the Merger Agreement shall have been terminated in accordance
with its terms; or
(g) White and Tender Sub shall not have obtained sufficient
financing, on terms reasonably acceptable to White, to enable consummation of
the Offer and the Merger;
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which, in the reasonable judgment of White or Tender Sub in any such case, and
regardless of the circumstances (including any action or omission by White or
Tender Sub not inconsistent with the terms of the Merger Agreement) giving rise
to any such condition, makes it inadvisable to proceed with such acceptance for
payment or payment.
The foregoing conditions are for the sole benefit of White and Tender
Sub and may be asserted by White or Tender Sub regardless of the circumstances
giving rise to any such condition (including any action or omission by White or
Tender Sub not inconsistent with the terms of the Merger Agreement) or may be
waived by White or Tender Sub in whole or in part at any time and from time to
time in their reasonable discretion (subject to Section 1.1(a) of the Merger
Agreement). The failure by White or Tender Sub at any time to exercise any of
the foregoing rights shall not be deemed a waiver of any such right; the waiver
of any such right with respect to particular facts and other circumstances
shall not be deemed a waiver with respect to any other facts and circumstances;
and each such right shall be deemed an ongoing right that may be asserted at
any time and from time to time.
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