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Subscribers | 2003 |
364-Day Credit Agreement
364-Day Credit Agreement (244K)
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364-DAY CREDIT AGREEMENT
dated as of June 11, 2003
among
TYSON FOODS, INC.,
as Borrower
THE LENDERS PARTY HERETO
JPMORGAN CHASE BANK,
as Administrative Agent
MERRILL LYNCH BANK USA,
as Syndication Agent
and
SUNTRUST BANK,
RABOBANK INTERNATIONAL and
BNP PARIBAS,
as Documentation Agents
_______________________________
J.P. MORGAN SECURITIES INC.,
as Lead Arranger and Sole Bookrunner
36
310020
|
Tyson Foods
As referenced in this 364-Day Credit Agreement:
TYSON FOODS, INC –
EXECUTION COPY
EX-10 3 exhibit10_1.htm TYSON FOODS, INC . AMENDED & RESTATED 364-DAY CREDIT AGREEMENT
364-DAY CREDIT AGREEMENT
dated as of June 11, 2003
among
TYSON FOODS, INC.,
as Borrower
_____________
TYSON FOODS, INC – 3 exhibit10_1.htm TYSON FOODS, INC. AMENDED & RESTATED 364-DAY CREDIT AGREEMENT
364-DAY CREDIT AGREEMENT
dated as of June 11, 2003
among
TYSON FOODS, INC .,
as Borrower
THE LENDERS PARTY HERETO
JPMORGAN CHASE BANK,
as Administrative Agent
MERRILL LYNCH BANK USA,
as Syndication Agent
and
SUNTRUST BANK,
_____________
TYSON FOODS, INC – 02 Existing Liens and Existing Indebtedness
Schedule 7.09 Existing Restrictions
41
364-DAY CREDIT AGREEMENT dated as of June 11, 2003, among TYSON FOODS, INC ., a Delaware corporation (the "Borrower"), the banks which are or may, from time to time hereafter, become parties hereto (the "Lenders"), JPMORGAN
_____________
TYSON FOODS, INC – parties hereto have caused this Agreement to be executed by their respective officers thereunto duly authorized, as of the date first above written.
TYSON FOODS, INC .,
by
/s/ Dennis Leatherby
Name: Dennis Leatherby
Title: Senior Vice President, Finance
and Treasurer
Address for notices:
2210 West Oaklawn Drive
Springdale,
_____________
Tyson Foods, Inc – 5127
Address for payments:
ABA # 021000021
Attention: Eleanor Fiore
Chase Plaza, 8th Floor
New York, NY 10081
Credit to Account number:
323219551
Reference: Tyson Foods, Inc .
118
MERRILL LYNCH BANK USA, individually and as Syndication Agent,
by
/s/ Louis Alder
Name: Louis Alder
Title: Vice President
119
SUNTRUST
_____________
dt 319509
;
CCR-B
As referenced in this 364-Day Credit Agreement:
COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK – Lenders"), JPMORGAN CHASE BANK, as Administrative Agent (the "Administrative Agent"), MERRILL LYNCH BANK USA, as Syndication Agent (the "Syndication Agent"), and SUNTRUST BANK, COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A. "RABOBANK INTERNATIONAL", NEW YORK BRANCH and BNP PARIBAS, as Documentation Agents (the "Documentation Agents").
The parties hereto agree as follows:
ARTICLE
_____________
COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK – Vice President
119
SUNTRUST BANK, individually and as Documentation Agent,
by
/s/ Hugh E. Brown
Name: HUGH E. BROWN
Title: VICE PRESIDENT:
120
COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A. "RABOBANK INTERNATIONAL", NEW YORK BRANCH, individually and as Documentation Agent,
by
/s/ Richard J. Beard
Name: RICHARD J. BEARD
Title: EXECUTIVE
_____________
dt 292388
;
 BNY
As referenced in this 364-Day Credit Agreement:
Bank of New York, – published for such day (or, if such day is not a Business Day, for the next preceding Business Day) by the Federal Reserve Bank of New York, or, if such rate is not so published for any day which is a Business Day, the average of the quotations for
_____________
dt 306033
;
|
J.P. Morgan
As referenced in this 364-Day Credit Agreement:
J.P. MORGAN SECURITIES INC – BANK,
as Administrative Agent
MERRILL LYNCH BANK USA,
as Syndication Agent
and
SUNTRUST BANK,
RABOBANK INTERNATIONAL and
BNP PARIBAS,
as Documentation Agents
_______________________________
J.P. MORGAN SECURITIES INC .,
as Lead Arranger and Sole Bookrunner
36
TABLE OF CONTENTS
Page
ARTICLE I
Definitions and Accounting Terms
SECTION 1.01. Certain Defined
_____________
J.P. Morgan Securities Inc – in such capacity.
"Administrative Agent's Fee Letter" means the fee letter dated April 28, 2003, between the Borrower, the Administrative Agent and J.P. Morgan Securities Inc .
"Administrative Agent's Payment Office" means the address for payments set forth on the signature pages hereof in relation to the Administrative
_____________
dt 312866
;
JPMorgan Chase
As referenced in this 364-Day Credit Agreement:
JPMORGAN CHASE BANK, – DAY CREDIT AGREEMENT
364-DAY CREDIT AGREEMENT
dated as of June 11, 2003
among
TYSON FOODS, INC.,
as Borrower
THE LENDERS PARTY HERETO
JPMORGAN CHASE BANK,
as Administrative Agent
MERRILL LYNCH BANK USA,
as Syndication Agent
and
SUNTRUST BANK,
RABOBANK INTERNATIONAL and
BNP PARIBAS,
as Documentation Agents
_______________________________
_____________
JPMORGAN CHASE BANK, – FOODS, INC., a Delaware corporation (the "Borrower"), the banks which are or may, from time to time hereafter, become parties hereto (the "Lenders"), JPMORGAN CHASE BANK, as Administrative Agent (the "Administrative Agent"), MERRILL LYNCH BANK USA, as Syndication Agent (the "Syndication Agent"), and SUNTRUST BANK, COOPERATIEVE CENTRALE RAIFFEISEN-
_____________
JPMorgan Chase Bank, – a percentage.
"Absolute Rate Bid Loan" means any Bid Loan that bears interest determined with reference to an Absolute Rate.
"Administrative Agent" means JPMorgan Chase Bank, in its capacity as administrative agent for the Lenders, together with any successor thereto in such capacity.
"Administrative Agent's Fee Letter"
_____________
JPMorgan Chase Bank, – means the 364-Day Credit Agreement dated as of June 12, 2002, among the Borrower, the lenders from time to time party thereto, JPMorgan Chase Bank, as administrative agent, Merrill Lynch Capital Corporation, as syndication agent and SunTrust Bank, Mizuho Financial Group and Rabobank International, as documentation agents.
"
_____________
JPMorgan Chase Bank, – means the Five-Year Credit Agreement dated as of September 24, 2001, among the Borrower, the lenders from time to time party thereto, JPMorgan Chase Bank, as administrative agent, Merrill Lynch Capital Corporation, as syndication agent, SunTrust Bank, as documentation agent and Mizuho Financial Group and Rabobank International,
_____________
dt 321476
;
More... |
| Preview
Subscribers | 2002 |
364-Day Credit Agreement
364-Day Credit Agreement (236K)
Doc #310026: Click preview link for longer preview.
CONFORMED COPY
364-DAY CREDIT AGREEMENT
dated as of June 12, 2002
among
TYSON FOODS, INC.,
as Borrower
THE LENDERS PARTY HERETO
JPMORGAN CHASE BANK,
as Administrative Agent
MERRILL LYNCH CAPITAL CORPORATION,
as Syndication Agent
and
SUNTRUST BANK,
MIZUHO FINANCIAL GROUP and
RABOBANK INTERNATIONAL,
as Documentation Agents
_______________________________
J.P. MORGAN SECURITIES INC.,
as Sole Lead Arranger and Sole Bookrunner
31
[6701-196]
TABLE OF CONTENTS
Page
ARTICLE I
Definitions and Accounting Terms
SECTION 1.01.
Certain . . .
310026
|
Tyson Foods
As referenced in this 364-Day Credit Agreement:
TYSON FOODS, INC –
CONFORMED COPY
EX-10 3 exhibit10_1.htm TYSON FOODS, INC . EXHIBIT 10.1 364 DAY CREDIT AGREEMENT
>" name=DOCID>
CONFORMED COPY
364-DAY CREDIT AGREEMENT
dated as of June 12, 2002
among
_____________
TYSON FOODS, INC – INC. EXHIBIT 10.1 364 DAY CREDIT AGREEMENT
>" name=DOCID>
CONFORMED COPY
364-DAY CREDIT AGREEMENT
dated as of June 12, 2002
among
TYSON FOODS, INC .,
as Borrower
THE LENDERS PARTY HERETO
JPMORGAN CHASE BANK,
as Administrative Agent
MERRILL LYNCH CAPITAL CORPORATION,
as Syndication Agent
and
SUNTRUST BANK,
_____________
TYSON FOODS, INC – 02
Existing Liens and Existing Indebtedness
Schedule 7.09
Existing Restrictions
36
364-DAY CREDIT AGREEMENT dated as of June 12, 2002, among TYSON FOODS, INC ., a Delaware corporation (the "Borrower"), the banks which are or may, from time to time hereafter, become parties hereto (the "Lenders"), JPMORGAN
_____________
TYSON FOODS, INC – parties hereto have caused this Agreement to be executed by their respective officers thereunto duly authorized, as of the date first above written.
TYSON FOODS, INC .,
by /s/ Dennis Leatherby
Name: Dennis Leatherby
Title: SVP, Finance & Treasurer
Address for notices:
2210 West Oaklawn Drive
Springdale, Arkansas 72762
Attention:
_____________
Tyson Foods, Inc – 7490
Address for payments:
ABA # 021000021
Attention: Eleanor Fiore
Chase Plaza, 8th Floor
New York, NY 10081
Credit to Account number:
323219551
Reference: Tyson Foods, Inc .
With a copy to:
JPMorgan Chase Bank
270 Park Avenue
New York NY 10017
Attention of.: Isabella Chan
Facsimile No.: (212) 270-
_____________
dt 319515
;
BofA
As referenced in this 364-Day Credit Agreement:
Bank of America, N.A. – Credit Agreement" means the $950,000,000 Nine-Month Credit Agreement dated as of December 20, 2000, among IBP, the banks party thereto, Bank of America, N.A. , as Syndication Agent, and U.S. Bank National Association, as Administrative Agent, as amended.
"Indebtedness" of any Person means, without duplication, (a)
_____________
dt 319027
;
BNY
As referenced in this 364-Day Credit Agreement:
Bank of New York, – published for such day (or, if such day is not a Business Day, for the next preceding Business Day) by the Federal Reserve Bank of New York, or, if such rate is not so published for any day which is a Business Day, the average of the quotations for
_____________
dt 306035
;
|
J.P. Morgan
As referenced in this 364-Day Credit Agreement:
J.P. MORGAN SECURITIES INC – as Administrative Agent
MERRILL LYNCH CAPITAL CORPORATION,
as Syndication Agent
and
SUNTRUST BANK,
MIZUHO FINANCIAL GROUP and
RABOBANK INTERNATIONAL,
as Documentation Agents
_______________________________
J.P. MORGAN SECURITIES INC .,
as Sole Lead Arranger and Sole Bookrunner
31
[6701-196]
TABLE OF CONTENTS
Page
ARTICLE I
Definitions and Accounting Terms
SECTION 1.
_____________
dt 312870
;
JPMorgan Chase
As referenced in this 364-Day Credit Agreement:
JPMORGAN CHASE BANK, – DOCID>
CONFORMED COPY
364-DAY CREDIT AGREEMENT
dated as of June 12, 2002
among
TYSON FOODS, INC.,
as Borrower
THE LENDERS PARTY HERETO
JPMORGAN CHASE BANK,
as Administrative Agent
MERRILL LYNCH CAPITAL CORPORATION,
as Syndication Agent
and
SUNTRUST BANK,
MIZUHO FINANCIAL GROUP and
RABOBANK INTERNATIONAL,
as Documentation Agents
_____________
JPMORGAN CHASE BANK, – FOODS, INC., a Delaware corporation (the "Borrower"), the banks which are or may, from time to time hereafter, become parties hereto (the "Lenders"), JPMORGAN CHASE BANK, as Administrative Agent (the "Administrative Agent"), MERRILL LYNCH CAPITAL CORPORATION, as Syndication Agent (the "Syndication Agent"), and SUNTRUST BANK, MIZUHO FINANCIAL GROUP
_____________
JPMorgan Chase Bank, – 332,724.32 was the cash amount required to refinance the IBP Credit Agreement and certain other Indebtedness of IBP.
"Administrative Agent" means JPMorgan Chase Bank, in its capacity as administrative agent for the Lenders, together with any successor thereto in such capacity.
"Administrative Agent's Fee Letter"
_____________
JPMorgan Chase Bank, – means the 364-Day Credit Agreement dated as of September 24, 2001, among the Borrower, the banks from time to time party thereto, JPMorgan Chase Bank, as administrative agent, Merrill Lynch Capital Corporation, as syndication agent, and SunTrust Bank, as documentation agent and Mizuho Financial Group and Rabobank
_____________
JPMorgan Chase Bank, – means the Five-Year Credit Agreement dated as of September 24, 2001, among the Borrower, the banks from time to time party thereto, JPMorgan Chase Bank, as administrative agent, Merrill Lynch Capital Corporation, as syndication agent, and SunTrust Bank, as documentation agent and Mizuho Financial Group and Rabobank
_____________
dt 321480
;
More... |
| Preview
Subscribers | 2001 |
364-Day Credit Agreement
364-Day Credit Agreement (234K)
Doc #310055: Click preview link for longer preview.
364-DAY CREDIT AGREEMENT
dated as of September 24, 2001
among
TYSON FOODS, INC.,
as Borrower
THE LENDERS PARTY HERETO
THE CHASE MANHATTAN BANK,
as Administrative Agent
MERRILL LYNCH CAPITAL CORPORATION,
as Syndication Agent
SUNTRUST BANK,
as Documentation Agent
and
MIZUHO FINANCIAL GROUP,
RABOBANK INTERNATIONAL,
as Co-Documentation Agents
_______________________________
J.P. MORGAN SECURITIES INC.
MERRILL LYNCH & CO.,
as Co-Lead Arrangers and Joint Bookrunners
[6701-196]
141
TABLE OF CONTENTS
Page
Article I
Definitions and Accounting Terms . . .
310055
|
Tyson Foods
As referenced in this 364-Day Credit Agreement:
TYSON FOODS, INC – 10 10 exhibit10_1.htm 364 DAY CREDIT AGREEMENT
>" name=DOCID>
EXECUTION COPY
364-DAY CREDIT AGREEMENT
dated as of September 24, 2001
among
TYSON FOODS, INC .,
as Borrower
THE LENDERS PARTY HERETO
THE CHASE MANHATTAN BANK,
as Administrative Agent
MERRILL LYNCH CAPITAL CORPORATION,
as Syndication Agent
SUNTRUST BANK,
_____________
TYSON FOODS, INC – 7.02
Existing Liens and Existing Indebtedness
Schedule 7.09
Existing Restrictions
364-DAY CREDIT AGREEMENT dated as of September 24, 2001, among TYSON FOODS, INC ., a Delaware corporation (the "Borrower"), the banks which are or may, from time to time hereafter, become parties hereto (the "Lenders"), THE
_____________
TYSON FOODS, INC – parties hereto have caused this Agreement to be executed by their respective officers thereunto duly authorized, as of the date first above written.
TYSON FOODS, INC .,
by
/s/ Dennis Leatherby
Name: Dennis Leatherby
Title: Senior Vice President, Finance and
Treasurer
Address for notices:
2210 West Oaklawn Drive
Springdale,
_____________
Tyson Foods, Inc – 7490
Address for payments:
ABA # 021000021
Attention: Eleanor Fiore
Chase Plaza, 8th Floor
New York, NY 10081
Credit to Account number: 323219551
Reference: Tyson Foods, Inc .
With a copy to:
The Chase Manhattan Bank
270 Park Avenue
New York NY 10017
Attention of.: Marian Schulman
Facsimile No.: 212-
_____________
TYSON FOODS, INC – Documentation Agent,
by
/s/ Gregory L. Cannon
Name: Gregory L. Cannon
Title: Director
223
SIGNATURE PAGE to the 364-DAY CREDIT AGREEMENT among TYSON FOODS, INC ., the banks parties hereto, THE CHASE MANHATTAN BANK, as Administrative Agent, MERRILL LYNCH CAPITAL CORPORATION, as Syndication Agent, and SUNTRUST BANK, as
_____________
dt 319539
;
BofA
As referenced in this 364-Day Credit Agreement:
Bank of America, N.A. – Credit Agreement" means the $950,000,000 Nine-Month Credit Agreement dated as of December 20, 2000, among IBP, the banks party thereto, Bank of America, N.A. , as Syndication Agent, and U.S. Bank National Association, as Administrative Agent, as amended.
"Indebtedness" of any Person means, without duplication, (a)
_____________
dt 319031
;
BNY
As referenced in this 364-Day Credit Agreement:
Bank of New York, – published for such day (or, if such day is not a Business Day, for the next preceding Business Day) by the Federal Reserve Bank of New York, or, if such rate is not so published for any day which is a Business Day, the average of the quotations for
_____________
dt 306043
;
|
Chase Manhattan
As referenced in this 364-Day Credit Agreement:
CHASE MANHATTAN BANK, – EXECUTION COPY
364-DAY CREDIT AGREEMENT
dated as of September 24, 2001
among
TYSON FOODS, INC.,
as Borrower
THE LENDERS PARTY HERETO
THE CHASE MANHATTAN BANK,
as Administrative Agent
MERRILL LYNCH CAPITAL CORPORATION,
as Syndication Agent
SUNTRUST BANK,
as Documentation Agent
and
MIZUHO FINANCIAL GROUP,
RABOBANK INTERNATIONAL,
as
_____________
CHASE MANHATTAN BANK, – INC., a Delaware corporation (the "Borrower"), the banks which are or may, from time to time hereafter, become parties hereto (the "Lenders"), THE CHASE MANHATTAN BANK, as Administrative Agent (the "Administrative Agent"), MERRILL LYNCH CAPITAL CORPORATION, as Syndication Agent (the "Syndication Agent"), and SUNTRUST BANK, as Documentation Agent (
_____________
Chase Manhattan Bank, – 724.32 was the cash amount required to refinance the IBP Credit Agreement and certain other Indebtedness of IBP.
"Administrative Agent" means The Chase Manhattan Bank, in its capacity as administrative agent for the Lenders, together with any successor thereto in such capacity.
"Administrative Agent's Fee Letter"
_____________
Chase Manhattan Bank, – 2,500,000,000, established under the credit agreement dated as of August 3, 2001, among the Borrower, the lenders party thereto, The Chase Manhattan Bank, as administrative agent, Merrill Lynch Capital Corporation, as syndication agent, and SunTrust Bank, as documentation agent.
"Business Day" means any day other
_____________
Chase Manhattan Bank, – the Five-Year Credit Agreement dated as of September 24, 2001, among the Borrower, the banks from time to time party thereto, The Chase Manhattan Bank, as administrative agent, Merrill Lynch Capital Corporation, as syndication agent, and SunTrust Bank, as documentation agent and Mizuho Financial Group and Rabobank
_____________
dt 308811
;
J.P. Morgan
As referenced in this 364-Day Credit Agreement:
J.P. MORGAN SECURITIES INC – MERRILL LYNCH CAPITAL CORPORATION,
as Syndication Agent
SUNTRUST BANK,
as Documentation Agent
and
MIZUHO FINANCIAL GROUP,
RABOBANK INTERNATIONAL,
as Co-Documentation Agents
_______________________________
J.P. MORGAN SECURITIES INC .
MERRILL LYNCH & CO.,
as Co-Lead Arrangers and Joint Bookrunners
[6701-196]
141
TABLE OF CONTENTS
Page
Article I
Definitions and Accounting
_____________
dt 312886
;
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Agreement and Plan of Merger
Agreement and Plan of Merger (247K)
Doc #167831: Click preview link for longer preview.
AGREEMENT AND PLAN OF MERGER
THIS IS AN AGREEMENT AND PLAN OF MERGER (this Agreement), dated as of October 10, 2003, among Euramax International, Inc., a Delaware corporation (Parent), Amerimax Pennsylvania, Inc., a Pennsylvania corporation and an indirect wholly owned subsidiary of Parent (Purchaser), and Berger Holdings, Ltd., a Pennsylvania corporation (the Company).
Background
WHEREAS, the Board of Directors of the Company has determined that it is fair to, advisable and in the best interests of the Company and the shareholders of the Company to enter into and consummate this Agreement with Parent and Purchaser, providing for the merger (the Merger) of Purchaser with and into the Company, with the Company as the Surviving Corporation, in accordance with the Pennsylvania Business Corporation Law of 1988, as amended (the PBCL), and the other transactions contemplated hereby, upon the terms and subject to the conditions set forth herein;
WHEREAS, the Board of Directors of Purchaser has approved the Merger of Purchaser with and into the Company and such other transactions in accordance with the PBCL upon the terms and subject to the conditions set forth herein;
WHEREAS, the Company and Purchaser have agreed that, upon the terms and subject to the conditions contained herein, Purchaser shall commence an offer (as amended or supplemented in accordance with this Agreement, the Offer) to purchase for cash all of the issued and outstanding shares of common stock, par value $.01 per share (the Company Common Stock), of the Company, at a price per share of $3.90, net to the seller in cash (the Common Stock Price);
WHEREAS, the Board of Directors of the Company has determined that the consideration to be paid for each share of Company Common Stock in the Offer and the Merger is fair to the holders of shares of Company Common Stock and has resolved to recommend that the holders of such shares of Company Common Stock tender their shares pursuant to the Offer and approve and adopt this Agreement and the Merger upon the terms and subject to the conditions set forth herein;
WHEREAS, the Company, Parent and Purchaser desire to make certain representations, warranties, covenants and agreements in connection with the Offer and the Merger;
WHEREAS, simultaneously with the execution and delivery of this Agreement and in order to induce Parent and Purchaser to enter into this Agreement, certain shareholders of the Company (the Certain Shareholders) have executed and delivered to Parent and Purchaser an agreement (the Tender and Option Agreement) pursuant to which the Certain Shareholders have agreed to take specified actions in furtherance of the transactions contemplated by this Agreement, including tendering their shares of Company Common Stock into the Offer and
granting Parent and Purchaser the Purchase Option (as such term is defined in the Tender and Option Agreement) with respect to such shares of Company Common Stock and to make the Incentive Payments (as such term is defined in the Tender and Option Agreement); and
WHEREAS, simultaneously with the execution and delivery of this Agreement and in order to induce Parent and Purchaser to enter into this Agreement, the Company has granted the Purchaser an option to purchase shares of Company Common Stock pursuant to an agreement among Parent, Purchaser and the Company (the Top-up Option Agreement).
NOW, THEREFORE, in consideration of the foregoing and the respective representations, warranties, covenants and agreements set forth herein and intending to be legally bound hereby, Parent, Purchaser and the Company hereby agree as follows:
ARTICLE I
(a) Subject to the provisions of this Agreement, and provided that this Agreement shall not have been terminated in accordance with Section 8.1 and so long as none of the events or circumstances set forth in clauses (a)-(i) of Annex A hereto shall have occurred and be continuing, not later than the fifth business day from the date of public announcement of the execution of this Agreement, Parent shall cause Purchaser to commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the Exchange Act)), the Offer at a price equal to the Common Stock Price for the Company Common Stock (including the associated preferred stock purchase rights (the Rights) issued pursuant to the Rights Agreement, dated as of August 21, 1998, by and between the Company and Oxford Transfer & Registrar, as Rights Agent (the Company Rights Agreement)). The obligation of Purchaser to consummate the Offer, to accept for payment and to pay for any shares of Company Common Stock tendered pursuant to the Offer shall be subject to those conditions set forth in Annex A. It is agreed that the conditions to the Offer set forth on Annex A are for the benefit of Purchaser and may be asserted by Purchaser regardless of the circumstances giving rise to any such condition (other than any action or inaction by Purchaser in violation of this Agreement) and Purchaser expressly reserves the right, in its sole discretion, to waive any such condition; provided that, without the consent of the Company, Parent or Purchaser shall not waive the Minimum Condition (except for waivers reducing the Minimum Condition not below a majority of the outstanding shares of Company Common Stock on a fully diluted basis) or the condition set forth in paragraph (g) of Annex A. The initial expiration date of the Offer shall be the 20th business day following the commencement of the Offer in accordance with Rule 14e-1(a) promulgated under the Exchange Act, unless this Agreement is terminated in accordance with Article VIII, in which case the Offer (whether or not previously extended in accordance with the terms hereof) shall expire on such date of termination (in either case, the Expiration Date).
(b) Purchaser expressly reserves the right, in its sole discretion, to modify and make changes to the terms and conditions of the Offer, provided that without the prior consent of the Company, no modification or change may be made which (i) decreases the
167831
|
Tyson Foods
As referenced in this Agreement and Plan of Merger:
Tyson Foods, Inc – definition of Material Adverse Effect are intended to be read literally without any regard to the holding or reasoning of IBP, Inc. v. Tyson Foods, Inc ., No. 18373, 2001 Del. Ch. LEXIS 81 (Del. Ch. June 18, 2001).
(i) person shall mean a natural person, company, corporation, partnership,
_____________
dt 151907
;
 Dechert
As referenced in this Agreement and Plan of Merger:
Dechert – this Section 2.11, a closing (the Closing) will be held at the offices of Dechert LLP, 4000 Bell Atlantic Tower, 1717 Arch Street, Philadelphia, PA 19103-2793 (or such other
Dechert – Norcross, Georgia 30092
Attention: Chief Executive Officer
Facsimile: (770) 263-8031
with a copy to:
Dechert LLP
4000 Bell Atlantic Tower
1717 Arch Street
Philadelphia, PA 19103
Attention: Geraldine A. Sinatra
dt 35584
;
Wolf Block
As referenced in this Agreement and Plan of Merger:
Wolf, Block – Pennsylvania Boulevard
Feasterville, PA 19053
Attention: President
Facsimile: 215-953-7750
with a copy to:
Wolf, Block , Schorr and Solis-Cohen LLP
1650 Arch Street
Philadelphia, PA 19103
Attention: Jason M.
dt 32337
;
| Euramax International, Inc.;
Amerimax Pennsylvania, Inc.;
Berger Holdings Ltd.
|
| Preview
Subscribers | 2003 |
Agreement and Plan of Merger
Agreement and Plan of Merger (247K)
Doc #168148: Click preview link for longer preview.
AGREEMENT AND PLAN OF MERGER
THIS IS AN AGREEMENT AND PLAN OF MERGER (this Agreement), dated as of October 10, 2003, among Euramax International, Inc., a Delaware corporation (Parent), Amerimax Pennsylvania, Inc., a Pennsylvania corporation and an indirect wholly owned subsidiary of Parent (Purchaser), and Berger Holdings, Ltd., a Pennsylvania corporation (the Company).
Background
WHEREAS, the Board of Directors of the Company has determined that it is fair to, advisable and in the best interests of the Company and the shareholders of the Company to enter into and consummate this Agreement with Parent and Purchaser, providing for the merger (the Merger) of Purchaser with and into the Company, with the Company as the Surviving Corporation, in accordance with the Pennsylvania Business Corporation Law of 1988, as amended (the PBCL), and the other transactions contemplated hereby, upon the terms and subject to the conditions set forth herein;
WHEREAS, the Board of Directors of Purchaser has approved the Merger of Purchaser with and into the Company and such other transactions in accordance with the PBCL upon the terms and subject to the conditions set forth herein;
WHEREAS, the Company and Purchaser have agreed that, upon the terms and subject to the conditions contained herein, Purchaser shall commence an offer (as amended or supplemented in accordance with this Agreement, the Offer) to purchase for cash all of the issued and outstanding shares of common stock, par value $.01 per share (the Company Common Stock), of the Company, at a price per share of $3.90, net to the seller in cash (the Common Stock Price);
WHEREAS, the Board of Directors of the Company has determined that the consideration to be paid for each share of Company Common Stock in the Offer and the Merger is fair to the holders of shares of Company Common Stock and has resolved to recommend that the holders of such shares of Company Common Stock tender their shares pursuant to the Offer and approve and adopt this Agreement and the Merger upon the terms and subject to the conditions set forth herein;
WHEREAS, the Company, Parent and Purchaser desire to make certain representations, warranties, covenants and agreements in connection with the Offer and the Merger;
WHEREAS, simultaneously with the execution and delivery of this Agreement and in order to induce Parent and Purchaser to enter into this Agreement, certain shareholders of the Company (the Certain Shareholders) have executed and delivered to Parent and Purchaser an agreement (the Tender and Option Agreement) pursuant to which the Certain Shareholders have agreed to take specified actions in furtherance of the transactions contemplated by this Agreement, including tendering their shares of Company Common Stock into the Offer and
granting Parent and Purchaser the Purchase Option (as such term is defined in the Tender and Option Agreement) with respect to such shares of Company Common Stock and to make the Incentive Payments (as such term is defined in the Tender and Option Agreement); and
WHEREAS, simultaneously with the execution and delivery of this Agreement and in order to induce Parent and Purchaser to enter into this Agreement, the Company has granted the Purchaser an option to purchase shares of Company Common Stock pursuant to an agreement among Parent, Purchaser and the Company (the Top-up Option Agreement).
NOW, THEREFORE, in consideration of the foregoing and the respective representations, warranties, covenants and agreements set forth herein and intending to be legally bound hereby, Parent, Purchaser and the Company hereby agree as follows:
ARTICLE I
(a) Subject to the provisions of this Agreement, and provided that this Agreement shall not have been terminated in accordance with Section 8.1 and so long as none of the events or circumstances set forth in clauses (a)-(i) of Annex A hereto shall have occurred and be continuing, not later than the fifth business day from the date of public announcement of the execution of this Agreement, Parent shall cause Purchaser to commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the Exchange Act)), the Offer at a price equal to the Common Stock Price for the Company Common Stock (including the associated preferred stock purchase rights (the Rights) issued pursuant to the Rights Agreement, dated as of August 21, 1998, by and between the Company and Oxford Transfer & Registrar, as Rights Agent (the Company Rights Agreement)). The obligation of Purchaser to consummate the Offer, to accept for payment and to pay for any shares of Company Common Stock tendered pursuant to the Offer shall be subject to those conditions set forth in Annex A. It is agreed that the conditions to the Offer set forth on Annex A are for the benefit of Purchaser and may be asserted by Purchaser regardless of the circumstances giving rise to any such condition (other than any action or inaction by Purchaser in violation of this Agreement) and Purchaser expressly reserves the right, in its sole discretion, to waive any such condition; provided that, without the consent of the Company, Parent or Purchaser shall not waive the Minimum Condition (except for waivers reducing the Minimum Condition not below a majority of the outstanding shares of Company Common Stock on a fully diluted basis) or the condition set forth in paragraph (g) of Annex A. The initial expiration date of the Offer shall be the 20th business day following the commencement of the Offer in accordance with Rule 14e-1(a) promulgated under the Exchange Act, unless this Agreement is terminated in accordance with Article VIII, in which case the Offer (whether or not previously extended in accordance with the terms hereof) shall expire on such date of termination (in either case, the Expiration Date).
(b) Purchaser expressly reserves the right, in its sole discretion, to modify and make changes to the terms and conditions of the Offer, provided that without the prior consent of the Company, no modification or change may be made which (i) decreases the
168148
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Tyson Foods
As referenced in this Agreement and Plan of Merger:
Tyson Foods, Inc – definition of Material Adverse Effect are intended to be read literally without any regard to the holding or reasoning of IBP, Inc. v. Tyson Foods, Inc ., No. 18373, 2001 Del. Ch. LEXIS 81 (Del. Ch. June 18, 2001).
(i) person shall mean a natural person, company, corporation, partnership,
_____________
dt 151908
;
Dechert
As referenced in this Agreement and Plan of Merger:
Dechert – this Section 2.11, a closing (the Closing) will be held at the offices of Dechert LLP, 4000 Bell Atlantic Tower, 1717 Arch Street, Philadelphia, PA 19103-2793 (or such other
Dechert – Norcross, Georgia 30092
Attention: Chief Executive Officer
Facsimile: (770) 263-8031
with a copy to:
Dechert LLP
4000 Bell Atlantic Tower
1717 Arch Street
Philadelphia, PA 19103
Attention: Geraldine A. Sinatra
dt 35585
;
Wolf Block
As referenced in this Agreement and Plan of Merger:
Wolf, Block – Pennsylvania Boulevard
Feasterville, PA 19053
Attention: President
Facsimile: 215-953-7750
with a copy to:
Wolf, Block , Schorr and Solis-Cohen LLP
1650 Arch Street
Philadelphia, PA 19103
Attention: Jason M.
dt 32338
;
| Amerimax Pennsylvania, Inc.;
Berger Holdings, Ltd.;
Euramax International Inc.
|
| Preview
Subscribers | 2001 |
Agreement and Plan of Merger
Agreement and Plan of Merger (237K)
Doc #310111: Click preview link for longer preview.
AGREEMENT AND PLAN OF MERGER
DATED AS OF
January 1, 2001
AMONG
IBP, INC.,
TYSON FOODS, INC.
AND
LASSO ACQUISITION CORPORATION
24
TABLE OF CONTENTS
. . .
310111
|
Tyson Foods
As referenced in this Agreement and Plan of Merger:
TYSON FOODS, INC – PLAN OF MERGER DATED 1-1-01
{TEXT}
{PAGE}
AGREEMENT AND PLAN OF MERGER
DATED AS OF
January 1, 2001
AMONG
IBP, INC.,
TYSON FOODS, INC .
AND
LASSO ACQUISITION CORPORATION
24
{PAGE}
TABLE OF CONTENTS
Page
ARTICLE 1 DEFINITIONS 2
Section 1.01. Definitions 2
ARTICLE 2 THE
_____________
Tyson
Foods, Inc – OF MERGER
AGREEMENT AND PLAN OF MERGER dated as of January 1, 2001 (the
"Agreement") among IBP, inc., a Delaware corporation (the "Company"), Tyson
Foods, Inc ., a Delaware corporation ("Parent"), and Lasso Acquisition
Corporation, a Delaware corporation and a wholly-owned subsidiary of Parent
("Merger Co.").
W I
_____________
Tyson Foods, Inc – writing) and
shall be given,
if to Parent or Merger Co., to:
John Tyson, Chairman of the Board,
President and Chief Executive Officer
Tyson Foods, Inc .
2210 West Oaklawn Drive
Springdale, Arkansas 72762
Telecopy: 501-290-4028
with a copy to:
Les Baledge, Esq.
Tyson Foods, Inc.
2210
_____________
Tyson Foods, Inc – Executive Officer
Tyson Foods, Inc.
2210 West Oaklawn Drive
Springdale, Arkansas 72762
Telecopy: 501-290-4028
with a copy to:
Les Baledge, Esq.
Tyson Foods, Inc .
2210 West Oaklawn Drive
Springdale, Arkansas 72762
Telecopy: 501-290-4028
and with an additional copy to:
Mel M. Immergut, Esq.
Lawrence
_____________
TYSON FOODS, INC – By: /s/ Jo Ann R. Smith
---------------------------------
Name: Jo Ann R. Smith
Title: Chairperson of the Special Committee,
on behalf of the Special Committee
TYSON FOODS, INC .
By: /s/ John Tyson
--------------------------------
Name: John Tyson
Title: Chairman, President & CEO
LASSO ACQUISITION CORPORATION
By: /s/ John Tyson
--------------------------------
Name: John Tyson
Title:
_____________
dt 319595
;
J.P. Morgan
As referenced in this Agreement and Plan of Merger:
J.P. Morgan Securities Inc – of Company Common Stock in
favor of the approval and adoption of the transactions contemplated hereby.
35
{PAGE}
The Company further represents that J.P. Morgan Securities Inc . has
delivered to the Company's Board of Directors its written opinion that the
consideration to be paid in the Offer, the
_____________
J.P. Morgan Securities Inc – its derivatives, by-products and other hydrocarbons, which in any
event is regulated under Environmental Laws.
Section 5.20. Finders' Fees
Except for J.P. Morgan Securities Inc . and Peter J. Solomon Company
Limited, a copy of whose engagement agreements have been provided to
Parent, there is no investment banker,
_____________
dt 312902
;
Merrill Lynch
As referenced in this Agreement and Plan of Merger:
Merrill Lynch & Co – As of the date of this Agreement, Parent owns 574,200 shares of
Company Common Stock.
Section 6.14. Finders' Fees
Except for Merrill Lynch & Co ., whose fees will be paid by Parent,
there is no investment banker, broker, finder or other intermediary who
might be entitled to
_____________
dt 299623
;
|
Milbank Tweed
As referenced in this Agreement and Plan of Merger:
Milbank, Tweed – of Section 368(b)
of the Code. The Company shall use its reasonable best efforts to provide
to Wachtell, Lipton, Rosen & Katz and Milbank, Tweed , Hadley & McCloy LLP a
certificate containing representations reasonably requested by such counsel
in connection with the opinions to be delivered pursuant to
_____________
Milbank, Tweed – Exchange Offer and
the Merger, taken together, to qualify as a 368(a) Reorganization. Parent
shall use its reasonable best efforts to cause Milbank, Tweed , Hadley &
66
{PAGE}
McCloy LLP to provide an opinion, on the basis of certain facts,
representations and assumptions set forth in such
_____________
Milbank, Tweed – meaning of Section 368(b)
of the Code. Parent shall use its reasonable best efforts to provide to
Wachtell, Lipton, Rosen & Katz and Milbank, Tweed , Hadley & McCloy LLP a
certificate containing representations reasonably requested by such counsel
in connection with the opinions to be delivered pursuant to
_____________
Milbank, Tweed – West Oaklawn Drive
Springdale, Arkansas 72762
Telecopy: 501-290-4028
and with an additional copy to:
Mel M. Immergut, Esq.
Lawrence Lederman, Esq.
Milbank, Tweed , Hadley & McCloy LLP
1 Chase Manhattan Plaza
New York, New York 10005
Telecopy: 212-530-5219
if to the Company, to:
Robert
_____________
dt 311709
;
Wachtell Lipton
As referenced in this Agreement and Plan of Merger:
Wachtell, Lipton – Offer and
the Merger, taken together, to qualify as a 368(a) Reorganization. The
Company shall use its reasonable best efforts to cause Wachtell, Lipton ,
Rosen & Katz to provide an opinion, on the basis of certain facts,
representations and assumptions set forth in such opinion, dated the
_____________
Wachtell, Lipton – the reorganization within the meaning of Section 368(b)
of the Code. The Company shall use its reasonable best efforts to provide
to Wachtell, Lipton , Rosen & Katz and Milbank, Tweed, Hadley & McCloy LLP a
certificate containing representations reasonably requested by such counsel
in connection with the opinions
_____________
Wachtell, Lipton – to the reorganization within the meaning of Section 368(b)
of the Code. Parent shall use its reasonable best efforts to provide to
Wachtell, Lipton , Rosen & Katz and Milbank, Tweed, Hadley & McCloy LLP a
certificate containing representations reasonably requested by such counsel
in connection with the opinions
_____________
Wachtell, Lipton – 800 Stevens Port Drive
Dakota Dunes, South Dakota 57049
Telecopy: 605-235-2427
and with an additional copy to:
Richard D. Katcher, Esq.
Wachtell, Lipton , Rosen & Katz
51 West 52nd Street
New York, New York 10019
Telecopy: 212-403-2222
or such other address or telecopy number
_____________
Wachtell, Lipton – 800 Stevens Port Drive
Dakota Dunes, South Dakota 57049
Telecopy: (605) 235-2427
and with an additional copy to:
Richard D. Katcher, Esq.
Wachtell, Lipton , Rosen & Katz
51 West 52nd Street
New York, New York 10019
Telecopy: (212) 403-2222
If to the Stockholder:
Don Tyson
Tyson
_____________
dt 304002
|
| Preview
Subscribers | 2001 |
Agreement and Plan of Merger
Agreement and Plan of Merger (249K)
Doc #310135: Click preview link for longer preview.
AGREEMENT AND PLAN OF MERGER
DATED AS OF
January 1, 2001
AMONG
IBP, INC.,
TYSON FOODS, INC.
AND
LASSO ACQUISITION CORPORATION
{PAGE}
TABLE OF CONTENTS
{TABLE}
{CAPTION}
Page
----
{S} {C} {C}
ARTICLE 1 DEFINITIONS............................................................................2
Section 1.01. Definitions...............................................................2
ARTICLE 2 THE OFFER AND THE EXCHANGE OFFER.......................................................4
Section 2.01 The Offer..................................................................4
Section 2.02 Company Actions............................................................8
Section 2.03 Company Board Representation; Section 14(f)...............................10
Section 2.04. Adjustment of the Exchange Offer Ratio...................................11
ARTICLE 3 THE MERGER............................................................................11
Section 3.01. The Merger...............................................................11
Section 3.02. Conversion of Shares.....................................................12
Section 3.03. Surrender and Payment....................................................12
Section 3.04. Stock Options............................................................14
Section 3.05. Withholding Rights.......................................................14
Section 3.06. Terminated Tender Offer..................................................15
Section 3.07. Adjustment of Exchange Ratio.............................................15
ARTICLE 4 THE SURVIVING CORPORATION.............................................................15
Section 4.01. Certificate of Incorporation.............................................15
Section 4.02. Bylaws...................................................................15
Section 4.03. Directors and Officers...................................................15
ARTICLE 5 REPRESENTATIONS AND WARRANTIES OF THE COMPANY.........................................15
Section 5.01. Corporate Existence and Power............................................15
Section 5.02. Corporate Authorization..................................................16
Section 5.03. Governmental Authorization...............................................16
Section 5.04. Non-Contravention........................................................16
Section 5.05. Capitalization...........................................................17
Section 5.06. Subsidiaries.............................................................17
Section 5.07. SEC Filings..............................................................18
Section 5.08. Financial Statements.....................................................18
Section 5.09. Disclosure Documents.....................................................18
Section 5.11. No Undisclosed Material Liabilities......................................21
Section 5.12. Litigation...............................................................21
Section 5.13. Taxes....................................................................21
Section 5.14. ERISA....................................................................22
Section 5.15. Labor Matters............................................................24
Section 5.16. Compliance with Laws.....................................................25
Section 5.17. Licenses and Permits.....................................................25
{/TABLE}
-i-
{PAGE}
{TABLE}
{S} {C} {C}
Section 5.18. Intellectual Property....................................................25
Section 5.19. Environmental Matters....................................................26
Section 5.20. Finders' Fees............................................................27
Section 5.21. Inapplicability of Certain Restrictions..................................27
Section 5.22. Rights Plan..............................................................27
ARTICLE 6 REPRESENTATIONS AND WARRANTIES OF PARENT..............................................28
Section 6.01. Corporate Existence And Power............................................28
Section 6.02. Corporate Authorization..................................................28
Section 6.03. Governmental Authorization...............................................28
Section 6.04. Non-Contravention........................................................28
Section 6.05. Capitalization...........................................................29
Section 6.06. Parent Subsidiaries......................................................29
Section 6.07. SEC Filings..............................................................30
Section 6.09. Disclosure Documents.....................................................30
Section 6.10. Absence of Certain Changes...............................................31
Section 6.11. No Undisclosed Material Liabilities......................................32
Section 6.12. Adequate Funds...........................................................32
Section 6.13. Ownership of Company Common Stock........................................32
Section 6.14. Finders' Fees............................................................32
Section 6.15. Compliance of Laws.......................................................33
ARTICLE 7 COVENANTS OF THE COMPANY..............................................................33
Section 7.01. Conduct of the Company...................................................33
Section 7.02. Stockholder Meeting......................................................35
Section 7.03. Access to Information....................................................35
Section 7.04. Other Offers.............................................................35
Section 7.05. Notices Of Certain Events................................................37
Section 7.06. Tax Matters..............................................................38
Section 7.07. Affiliates...............................................................38
Section 7.08. Confidentiality..........................................................38
Section 7.09. Other Actions............................................................38
ARTICLE 8 COVENANTS OF PARENT...................................................................39
Section 8.01. Parent Stockholder Meeting...............................................39
Section 8.02. Confidentiality..........................................................39
Section 8.03. Voting Of Shares.........................................................39
Section 8.04. Director And Officer Liability...........................................39
Section 8.05. Employee Matters.........................................................39
310135
|
Tyson Foods
As referenced in this Agreement and Plan of Merger:
TYSON FOODS, INC – AND PLAN OF MERGER
{TEXT}
{PAGE}
EXHIBIT (d)(4)
AGREEMENT AND PLAN OF MERGER
DATED AS OF
January 1, 2001
AMONG
IBP, INC.,
TYSON FOODS, INC .
AND
LASSO ACQUISITION CORPORATION
{PAGE}
TABLE OF CONTENTS
{TABLE}
{CAPTION}
Page
----
{S} {C} {C}
ARTICLE 1 DEFINITIONS............................................................................2
Section 1.01. Definitions...............................................................
_____________
Tyson
Foods, Inc – OF MERGER
AGREEMENT AND PLAN OF MERGER dated as of January 1, 2001 (the
"Agreement") among IBP, inc., a Delaware corporation (the "Company"), Tyson
Foods, Inc ., a Delaware corporation ("Parent"), and Lasso Acquisition
Corporation, a Delaware corporation and a wholly-owned subsidiary of Parent
("Merger Co.").
W I
_____________
Tyson Foods, Inc – writing) and shall be given,
if to Parent or Merger Co., to:
John Tyson, Chairman of the Board,
President and Chief Executive Officer
Tyson Foods, Inc .
2210 West Oaklawn Drive
Springdale, Arkansas 72762
Telecopy: 501-290-4028
with a copy to:
Les Baledge, Esq.
Tyson Foods, Inc.
2210
_____________
Tyson Foods, Inc – Executive Officer
Tyson Foods, Inc.
2210 West Oaklawn Drive
Springdale, Arkansas 72762
Telecopy: 501-290-4028
with a copy to:
Les Baledge, Esq.
Tyson Foods, Inc .
2210 West Oaklawn Drive
Springdale, Arkansas 72762
Telecopy: 501-290-4028
-48-
{PAGE}
and with an additional copy to:
Mel M. Immergut,
_____________
TYSON FOODS, INC – first above written.
IBP, INC.
By:
----------------------------------
Name: Jo Ann R. Smith
Title: Chairperson of the Special Committee,
on behalf of the Special Com |