prem14a
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 14A
(RULE 14a-101)
SCHEDULE 14A INFORMATION
Proxy Statement Pursuant to Section 14(a) of
the Securities Exchange Act of 1934 (Amendment No. )
Filed by the Registrant þ
Filed by a Party other than the Registrant o
Check the appropriate box:
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Preliminary Proxy Statement |
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Confidential, for Use of the Commission Only (as permitted by Rule 14a-6(e)(2)) |
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Definitive Proxy Statement |
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Definitive Additional Materials |
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Soliciting Material Pursuant to 240.14a-12 |
Terra Industries Inc.
(Name of Registrant as Specified In Its Charter)
(Name of Person(s) Filing Proxy Statement, if other than the Registrant)
Payment of Filing Fee (Check the appropriate box):
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No fee required. |
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Fee computed on table below per Exchange Act Rules 14a-6(i)(1) and 0-11. |
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Title of each class of securities to which transaction applies: |
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Common stock, without par value, of Terra Industries Inc. |
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Aggregate number of securities to which transaction applies: |
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As of February 22, 2010, 100,105,516 shares of common stock
outstanding, stock-based awards with respect to 1,401,853
shares of common stock and 60,241 shares of common stock
issuable upon conversion of outstanding shares of preferred
stock (representing the maximum number of shares of common
stock issuable upon such conversion). |
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Per unit price or other underlying value of transaction
computed pursuant to Exchange Act Rule 0-11 (set forth the
amount on which the filing fee is calculated and state how it
was determined): |
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The maximum aggregate value was determined based upon the sum
of (A) 100,105,516 shares of common stock multiplied by $45.88
per share (represents $41.10 plus the maximum increase in
merger consideration, an amount which has been assumed for the
purposes of calculating the filing fee for this proxy
statement only), (B) other stock-based awards with respect to
1,401,853 shares of common stock multiplied by $45.88 per
share and (C) 60,241 shares of common stock issuable upon
conversion of outstanding shares of preferred stock multiplied
by $45.88 per share. In accordance with Section 14(g) of the
Securities Exchange Act of 1934, as amended, the filing fee
was determined by multiplying 0.0000713 by the sum calculated
in the preceding sentence. |
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Proposed maximum aggregate value of transaction: |
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$4,659,921,946.80 |
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Total fee paid: |
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$332,252.43 |
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Fee paid previously with preliminary materials. |
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Check box if any part of the fee is offset as provided by Exchange Act Rule 0-11(a)(2) and identify the
filing for which the offsetting fee was paid previously. Identify the previous filing by registration
statement number, or the Form or Schedule and the date of its filing. |
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Amount Previously Paid: |
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Form, Schedule or Registration Statement No.: |
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Filing Party: |
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Date Filed: |
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PRELIMINARY PROXY STATEMENTSUBJECT TO COMPLETION
[ ], 2010
To Our Stockholders:
We are pleased to invite you to attend a special meeting of the stockholders of Terra Industries
Inc. (Terra), a Maryland corporation, to be held at [ ] on [ ], 2010 at [ ].
At the special meeting, you will be asked to approve the merger of Yukon Merger Sub, Inc. (Merger
Sub), an indirect, wholly owned subsidiary of Yara International ASA (Yara), with and into
Terra, and the other transactions constituting a part of the merger (the Merger), pursuant to the
Agreement and Plan of Merger, dated as of February 12, 2010, by and among Yara, Merger Sub and
Terra (the Merger Agreement). If the Merger is completed, each share of our common stock will be
converted into the right to receive $41.10 in cash and Terra will become an indirect, wholly owned
subsidiary of Yara. As more fully described in the enclosed proxy statement, Yara will also hold a
meeting of its stockholders to approve the issuance of common stock to finance a portion of the
Merger consideration. If Yara does not hold its stockholders meeting within 90 days from the date
of the Merger Agreement, the purchase price is subject to increase.
After careful consideration, our board of directors unanimously approved the Merger Agreement, the
Merger and the other transactions contemplated by the Merger Agreement and has declared the Merger
and the other transactions contemplated by the Merger Agreement advisable to, and in the best
interests of, Terra and our stockholders. Our board of directors unanimously recommends that you
vote FOR the approval of the Merger.
The Merger must be approved by the affirmative vote of holders of a majority of the outstanding
shares of common stock that are entitled to vote at the special meeting. The completion of the
Merger is also subject to the satisfaction or waiver of other conditions. More information about
the Merger is contained in the enclosed proxy statement. We urge you to read carefully the enclosed
proxy statement and the Merger Agreement, a copy of which is included in the proxy statement as
Exhibit A.
Your vote is very important, regardless of the number of shares you own. Whether you plan to attend
the special meeting or not, please promptly complete, sign, date and return the enclosed proxy card
in the postage-paid envelope provided to ensure that your vote will be received and counted. In
the alternative, you may submit your proxy or voting instructions by telephone or via the Internet.
The enclosed proxy card contains instructions regarding voting. If you attend the special meeting,
you may continue to have your shares voted as instructed in the proxy or you may withdraw your
proxy at the special meeting and vote your shares in person. If you fail to vote by proxy or in
person, or fail to instruct your broker on how to vote, it will have the same effect as a vote
against approval of the Merger.
This proxy statement is dated [ ], 2010 and is first being mailed, along with the enclosed
proxy card, to our stockholders on or about [ ], 2010.
If you have any questions or require assistance voting your shares, please call our proxy
solicitor, MacKenzie Partners, Inc. toll-free at
(800) 322-2885.
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Michael L. Bennett
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Henry R. Slack |
President and Chief Executive Officer
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Chairman |
This transaction has not been approved or disapproved by the Securities and Exchange Commission or
any state securities commission. Neither the Securities and Exchange Commission nor any state
securities commission has passed upon the merits or fairness of this transaction or upon the
adequacy or accuracy of the information contained in this proxy statement. Any representation to
the contrary is a criminal offense.
NOTICE OF SPECIAL MEETING OF STOCKHOLDERS
TO BE HELD [ ], 2010
To Our Stockholders:
Notice is hereby given that the special meeting of the stockholders of Terra Industries Inc.
(Terra) will be held at [ ] on [ ], 2010 at [ ] in order to:
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consider and vote upon a proposal to approve the merger of Yukon Merger Sub, Inc.
(Merger Sub), an indirect, wholly owned subsidiary of Yara International ASA (Yara),
with and into Terra, and the other transactions constituting a part of the merger (the
Merger), pursuant to the Agreement and Plan of Merger, dated as of February 12, 2010, by
and among Yara, Merger Sub and Terra (the Merger Agreement); |
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consider and vote upon any proposal to adjourn the special meeting for the purpose of
soliciting additional proxies if there are insufficient votes at the time of the special
meeting to approve the Merger; and |
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consider and act upon any other business properly presented at the special meeting or
any adjournment or postponement thereof. |
All holders of record of shares of our common stock as of the close of business on [ ],
2010 are entitled to notice of, and to vote at, the special meeting or any postponements or
adjournments of the special meeting. Regardless of the number of shares you own, your vote is very
important. If you do not plan to attend the special meeting and vote your shares of common stock in
person, please submit your proxy by either promptly completing, signing, dating and returning the
enclosed proxy card in the postage-paid envelope provided or submitting your proxy or voting
instructions by telephone or via the Internet. Any proxy may be revoked at any time prior to its
exercise by delivery of a written notice of revocation or a later-dated proxy card, or by voting in
person at the special meeting.
We encourage you to carefully read the accompanying proxy statement, including the Merger
Agreement attached thereto as Exhibit A, which forms a part of this Notice of Special Meeting of
Stockholders and is incorporated herein by reference. These documents may also be obtained for
free from Terra by directing a request to Terra Industries Inc., Investor Relations, Terra Centre,
600 Fourth Street, P.O. Box 6000, Sioux City, Iowa 51102.
If you have any questions or require assistance voting your shares, please call our proxy
solicitor, MacKenzie Partners, Inc., toll-free at (800) 322-2885.
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John W. Huey |
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Vice President, General Counsel |
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and Corporate Secretary |
Sioux City, Iowa
[ ], 2010
IMPORTANT
Whether or not you plan to attend the special meeting, please promptly either complete, sign,
date and return the enclosed proxy card in the postage-paid envelope provided or submit your proxy
or voting instructions by telephone or via the Internet. Details are outlined in the enclosed
proxy card. If you hold your shares through a broker, dealer, trustee, bank or other nominee, you
also may be able to submit your proxy or voting instructions by telephone or via the Internet in
accordance with the instructions your broker, dealer, trustee, bank or other nominee provides.
Returning a signed proxy will not prevent you from attending the special meeting and voting in
person, if you wish to do so. Please note that if you execute multiple proxies for the same shares,
the last proxy you execute revokes all previous proxies.
TABLE OF CONTENTS
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Exhibit A Agreement and Plan of Merger |
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Exhibit B Opinion of Credit Suisse Securities (USA) LLC |
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SUMMARY TERM SHEET
This summary term sheet highlights material information in this proxy statement relating to
the Merger contemplated by the Merger Agreement and may not contain all of the information that is
important to you. To understand the Merger and the related transactions fully and for a more
complete description of the legal terms of the transactions contemplated by the Merger Agreement,
you should carefully read this entire document as well as the additional documents to which it
refers, including the Merger Agreement, which is attached to this proxy statement as Exhibit A and
incorporated herein by reference. In this proxy statement, the terms Terra, we, us and our
refer to Terra Industries Inc.
The Parties (Page 16)
Terra Industries Inc.
600 Fourth Street
Sioux City, Iowa 51102
(712) 277-1340
Terra Industries Inc. is a Maryland corporation. Terra is a leading North American producer
and marketer of nitrogen products, serving agricultural, industrial and environmental customers.
Terra owns and operates six North American nitrogen products manufacturing facilities and owns a
50% interest in joint ventures in the United Kingdom and The Republic of Trinidad and Tobago.
Yara International ASA
Bygdoy alle 2
N-0202 Oslo
Norway
+47 24 15 70 00
Yara International ASA is a Norwegian public company limited by shares. Yara is the worlds
largest supplier of plant nutrients and a leading global trader of ammonia. With operations in 50
countries and sales to more than 120 countries, Yara is a significant provider of fertilizers
globally.
Yukon Merger Sub, Inc.
Bygdoy alle 2
N-0202 Oslo
Norway
+47 24 15 70 00
Yukon Merger Sub, Inc. is a Maryland corporation and was organized solely for the purpose of
effecting the Merger. Merger Sub has not conducted any activities to date other than activities
incidental to its formation and in connection with the Merger. Merger Sub is wholly owned by Yara.
If the Merger is completed, Merger Sub would cease to exist after it merges with and into Terra.
The Merger (Page 16)
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If the Merger is completed, Merger Sub will be merged with and into Terra with the
result that Terra will become an indirect, wholly owned subsidiary of Yara. We sometimes
use the term Surviving Corporation in this proxy statement to describe Terra as the
surviving entity following the Merger. As part of the Merger, the charter of Terra will be
amended and restated as provided in Exhibit A to the Merger Agreement, and such amended and
restated charter will be the charter of the Surviving Corporation. |
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The Merger will become effective at the time the State Department of Assessments and
Taxation of Maryland accepts the articles of merger for record, or at such later time (not
to exceed 30 days after such acceptance) that we and Yara specify in the articles of
merger. We sometimes use the term effective time in this proxy statement to describe the
time the Merger becomes effective under Maryland law. |
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When the Merger Will be Completed
We are working to complete the Merger as promptly as practicable. We anticipate completing the
Merger in the second quarter of 2010, subject to the approval of the Merger by our stockholders,
the approval of Yaras stockholders of the issuance of Yara common stock to finance a portion of
the Merger consideration at a meeting of the stockholders of Yara, the receipt of applicable U.S.,
Canadian and European antitrust, competition, trade regulation and foreign investment or similar
approvals and the satisfaction of the other closing conditions. Further, Yara is not obligated to
complete the Merger until the expiration of the Marketing Period, as described in further detail
under The Merger AgreementEffective Time; Closing, beginning on page 41.
Merger Consideration (Page 42)
If the Merger is completed, each share of our common stock that is issued and outstanding
immediately prior to the effective time of the Merger (other than shares of our common stock owned
by Terra, Yara, Merger Sub or any wholly owned subsidiary of Terra or Yara), including shares of
restricted stock, will be cancelled and automatically converted into the right to receive an amount
in cash equal to $41.10 plus the Additional Per Share Consideration (as described in The Merger
AgreementMerger Consideration, beginning on page 42) (the Merger Consideration), without
interest and less any applicable taxes required to be withheld.
If the Merger is completed, each equity award relating to shares of our common stock granted
pursuant to any of our equity incentive plans that is subject to time-based vesting and is settled
in cash pursuant to its terms (a Phantom Unit) will be cancelled and the holder thereof will be
entitled to receive a cash payment equal to the product of (i) the number of shares of common stock
subject to such Phantom Unit immediately prior to the effective time of the Merger and (ii) the
Merger Consideration, which amount will be payable to such holder, without interest and less any
applicable taxes required to be withheld, as promptly as practicable following the effective time
of the Merger.
If the Merger is completed, each equity award relating to shares of our common stock granted
under any of our equity incentive plans that is subject to performance-based vesting and is settled
in shares of our common stock pursuant to its terms (a Performance Share Award) and each equity
award relating to shares of our common stock granted under any of our equity incentive plans that
is subject to performance-based vesting and is settled in cash pursuant to its terms (a Phantom
Performance Share Award) will be cancelled and the holder thereof will be entitled to receive a
cash payment equal to the product of (i) the greater of (A) the number of shares of common stock
subject to such Performance Share Award or Phantom Performance Share Award based on our actual
performance calculated during the quarters completed through the effective time of the Merger and
(B) the target number of shares of common stock subject to such Performance Share Award or Phantom
Performance Share Award and (ii) the Merger Consideration, which amount will be payable to such
holder, without interest and less any applicable taxes required to be withheld, as promptly as
practicable following the effective time of the Merger.
The Special Meeting
Place, Date and Time of the Special Meeting
The special meeting will be held at [ ] on [ ], 2010 at [ ].
Purpose (Page 11)
The purpose of the special meeting is for you to consider and vote upon a proposal to approve
the Merger and to vote upon any proposal to adjourn the special meeting for the purpose of
soliciting additional proxies if there are insufficient votes at the time of the special meeting to
approve the Merger.
Record Date and Quorum (Page 11)
The holders of record of Terra common stock as of the close of business on the record date,
which is [ ], 2010 (the Record Date), are entitled to receive notice of, and to vote at, the
special meeting. On the Record Date, there were [ ] shares of Terra common stock outstanding.
The presence in person or by proxy of stockholders entitled to cast a majority of all votes
entitled to be cast at the special meeting shall constitute a quorum for the purpose of
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considering both proposals. In the event that a quorum is not present at the special meeting,
it is expected that the special meeting will be adjourned by the presiding officer of the special
meeting to permit solicitation of additional proxies. For purposes of determining whether a quorum
exists, broker non-votes and abstentions will be counted. You will have one vote at the special
meeting for each share of Terra common stock held on the Record Date.
Required Vote; Abstentions and Broker Non-Votes (Page 11)
Completion of the Merger requires the approval of the Merger by the affirmative vote of the
holders of a majority of the outstanding shares of Terra common stock that are entitled to vote at
the special meeting. Because the required vote is based on the number of shares of Terra common
stock outstanding rather than on the number of votes cast, failure to vote your shares (including
as a result of broker non-votes) and abstentions will have the same effect as voting against
approval of the Merger.
Approval of any proposal to adjourn the special meeting for the purpose of soliciting
additional proxies requires the affirmative vote of a majority of the votes cast at the special
meeting. Abstentions and broker non-votes will have no effect on this proposal.
Share Ownership of Directors and Executive Officers (Page 32)
As of February 22, 2010, our executive officers and directors beneficially owned an aggregate
of approximately 1,537,431 shares of Terra common stock (184,200 of which were restricted shares),
representing 1.5% of the total beneficial ownership of Terra common stock and entitling them to
exercise approximately 1.5% of the voting power of Terra common stock entitled to vote at the
special meeting.
Interests of Terras Directors and Executive Officers in the Merger (Page 32)
Aside from their interests as Terra stockholders, Terras directors and executive officers
have interests in the Merger that may be different from, or in addition to, those of other Terra
stockholders generally. In considering the recommendation of our board of directors that you vote
to approve the Merger, you should be aware of these interests. The interests of Terras executive
officers in the Merger that are different from, or in addition to, those of other Terra
stockholders consist of: the accelerated vesting of Terra restricted stock awards and Performance
Share Awards, and the cancellation of such awards in exchange for cash, at the effective time of
the Merger; the fixing of the performance metric under Terras annual incentive compensation plan
at the effective time of the Merger at the greater of (i) target performance and (ii) actual
performance during the quarters completed through the effective time of the Merger; the receipt of
certain payments and benefits under the executive officers employment severance agreements, as
well as prorated bonuses under Terras annual incentive compensation plan, upon certain types of
terminations of employment following the Merger; the receipt of gross-up payments to make the
executive officers whole for any excise tax imposed as a result of Section 280G of the Internal
Revenue Code of 1986, as amended (the Code), on any compensation received; the funding of a rabbi
trust with respect to certain executive officers supplemental retirement benefits and the
continuation of certain compensation and benefits until December 31, 2011 pursuant to the Merger
Agreement.
In addition, the Merger Agreement provides for indemnification and liability insurance
arrangements for each of our current and former directors and officers.
The members of our board of directors were aware of and considered these interests, among
other matters, in making its decision.
Opinion
of Credit Suisse Securities (USA) LLC (Page 25 and Exhibit B)
On February 12, 2010, Credit Suisse Securities (USA) LLC (Credit Suisse) rendered its oral
opinion to the Terra board of directors (which was subsequently confirmed in writing by delivery of
Credit Suisses written opinion dated the same date) to the effect that, as of February 12, 2010,
and based upon and subject to the qualifications, limitations and assumptions set forth therein,
the $41.10 in cash per share of Terra common stock to be received by the holders of shares of
Terras common stock in the Merger was fair, from a financial point of view, to such stockholders.
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Credit Suisses opinion was directed to our board of directors and only addressed the fairness
from a financial point of view of the $41.10 in cash per share of Terra common stock to be received
by the holders of Terra common stock in the Merger, and did not address any other aspect or
implication of the Merger. The summary of Credit Suisses opinion in this proxy statement is
qualified in its entirety by reference to the full text of its written opinion, which is included
as Exhibit B to this proxy statement and sets forth the procedures followed, assumptions made,
matters considered, qualifications and limitations on the review undertaken and other matters
considered by Credit Suisse in preparing its opinion. However, neither Credit Suisses written
opinion nor the summary of its opinion and the related analyses set forth in this proxy statement
are intended to be, and they do not constitute, advice or a recommendation to any holder of Terra
common stock as to how such holder should vote or act on any matter relating to the Merger.
Financing (Page 29)
Pursuant to the Merger Agreement, Yara is obligated to use its reasonable best efforts to
arrange financing that is sufficient to permit Yara and Merger Sub to consummate the Merger and the
other transactions contemplated by the Merger Agreement.
Yara intends that the payment of the Merger Consideration and the other funds necessary to
consummate the transactions contemplated by the Merger Agreement will be partly financed through a
planned $2.0-2.5 billion rights issue by Yara (the Rights Issue) and partly through other sources
of financing.
The closing of the Merger is not conditioned on the receipt of the financing by Yara, but Yara
is not obligated to complete the Merger until the expiration of the Marketing Period.
Limitation on Considering Other Takeover Proposals (Page 47)
The Merger Agreement contains restrictions on our ability to solicit or engage in discussions
or negotiations with a third party regarding specified transactions involving Terra or our
subsidiaries. Notwithstanding these restrictions, under certain limited circumstances, our board of
directors may respond to an unsolicited written bona fide takeover proposal or terminate the Merger
Agreement and enter into an acquisition agreement with respect to a superior proposal to acquire
Terra.
Conditions to the Merger (Page 51)
Completion of the Merger is subject to the satisfaction or waiver of a number of conditions,
including:
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the affirmative vote of the holders of a majority of the outstanding shares of Terra
common stock entitled to vote at the special meeting (the Terra Stockholders Meeting) to
approve the Merger (the Terra Stockholder Approval); |
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the affirmative vote of the holders of at least two-thirds of the shares of Yara common
stock represented in person or by proxy at the meeting of the stockholders of Yara (the
Yara Stockholders Meeting) to approve the Rights Issue (the Yara Stockholder Approval); |
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there must be no law, order or injunction or other judgment by any governmental entity
enjoining, making illegal, or otherwise prohibiting the consummation of the Merger; |
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the waiting period under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as
amended (the HSR Act), the Canadian Competition Act and the Canada Transportation Act
must have expired or been terminated and any applicable approvals pursuant to the
antitrust, competition, trade regulation, foreign investment review or similar law of the
European Union must have been obtained; |
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any review or investigation under Section 721 of the Defense Production Act of 1950, as
amended (the Exon-Florio Amendment), must have been concluded, or the Committee on
Foreign Investment in the United States (CFIUS) or the President of the United States
must have determined not to take action authorized thereunder or have determined to take
action that would not reasonably be expected to materially adversely affect the business or
operations of Yara and its subsidiaries, taken as a whole; |
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there must be no pending lawsuit by any governmental entity that seeks to prohibit the
consummation of the Merger that would reasonably be expected to result in a material
adverse effect on Terra; |
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the representation with respect to the absence of a material adverse effect on Terra
must be true and correct in all respects as of the date of the Merger Agreement and as of
the date the Merger closes and the other representations and warranties of Terra in the
Merger Agreement (disregarding all qualifications or limitations as to materiality and
material adverse effect) must be true and correct as of the date of the Merger Agreement
and as of the date the Merger closes (other than representations and warranties that by
their terms speak as of another date, which representations and warranties must be true and
correct as of such date), except for any failures of such representations and warranties to
be true and correct that, individually or in the aggregate, do not have and are not
reasonably expected to result in a material adverse effect on Terra, provided that the
representations and warranties with respect to Terras capitalization, corporate authority,
board approval, stockholder voting requirements and anti-takeover statutes must be true and
correct in all material respects; |
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Terra must have performed or complied, in all material respects, with all of its
obligations under the Merger Agreement at or prior to the closing of the Merger; and |
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the outstanding shares of Terras 4.25% Series A Cumulative Convertible Perpetual
Preferred Stock (the Series A Preferred Stock) must have been converted into shares of
Terra common stock and there must be no shares of Series A Preferred Stock outstanding
(Terra currently intends to consummate the conversion of the Series A Preferred Stock prior
to the Record Date). |
Termination of the Merger Agreement (Page 52)
We and Yara may agree in writing to terminate the Merger Agreement at any time without
completing the Merger whether before or after the approval of the Merger by Terras stockholders.
Under certain circumstances, prior to the closing of the Merger, either we or Yara may terminate
the Merger Agreement without the consent of the other party.
Termination Fees and Expenses (Page 53)
Under certain circumstances in connection with the termination of the Merger Agreement, we
will be required to pay to Yara an aggregate termination fee of $123 million. If Yara is unable to
obtain the Yara Stockholder Approval and the Merger Agreement is terminated, Yara will be required
to pay us an aggregate termination fee of $123 million.
Enforcement (Page 53)
The Merger Agreement provides that disputes arising out of the Merger Agreement will be
subject to binding arbitration before the American Arbitration Association in Delaware.
Arbitrators will be able to grant both specific enforcement and damage awards.
Certain Material United States Federal Income Tax Consequences (Page 39)
The receipt by holders of our common stock of the Merger Consideration pursuant to the Merger
will be a taxable transaction for U.S. federal income tax purposes. A U.S. holder of our common
stock generally will recognize gain or loss measured by the difference, if any, between (i) the
cash received in the Merger and (ii) the holders adjusted tax basis in the shares of Terra common
stock exchanged. A non-U.S. holder of our common stock generally will not be subject to U.S.
federal income tax in respect of the Merger Consideration unless such holder has certain
connections to the United States. You should consult your own tax advisor for a full understanding
of the tax consequences of the Merger to you.
Regulatory Matters (Page 38)
Completion of the Merger is subject to the following regulatory conditions: (i) the waiting
periods under the HSR Act, the Canadian Competition Act and the Canada Transportation Act must have
expired or been terminated,
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(ii) any applicable approvals pursuant to the antitrust, competition, trade regulation,
foreign investment review or similar law of the European Union must have been obtained and (iii)
any review or investigation undertaken by CFIUS must have been concluded and any action authorized
pursuant to the Exon-Florio Amendment would not reasonably be expected to materially adversely
affect Yara and its subsidiaries, taken as a whole.
Market Price of Terras Common Stock (Page 55)
Our common stock is listed on the New York Stock Exchange under the trading symbol TRA. The
closing sale price of our common stock on February 12, 2010, which was the last trading day before
we announced that we had entered into the Merger Agreement, was $33.25 per share. On [ ] , 2010,
which is the latest practicable date before the date of this proxy statement, the closing price of
Terras common stock was $ [ ] per share.
Procedure for Receiving Merger Consideration (Page 42)
As soon as reasonably practicable after the effective time of the Merger, an exchange agent
will mail a letter of transmittal and instructions to you and the other Terra stockholders. The
letter of transmittal and instructions will tell you how to surrender your stock certificates in
exchange for the Merger Consideration. You should not return your stock certificates with the
enclosed proxy card, and you should not forward your stock certificates to the exchange agent
without a letter of transmittal.
Dissenters Rights (Page 38)
Holders of Terras common stock are not entitled to dissenting stockholders appraisal rights
in connection with the Merger or any of the transactions contemplated by the Merger Agreement. The
Maryland General Corporation Law (the MGCL) does not provide for appraisal rights or other
similar rights to stockholders of a corporation in connection with a merger if, on the record date
for determining stockholders entitled to vote on the matter, the shares of the corporation are
listed on a national securities exchange. On the Record Date, Terras common stock was listed on
the New York Stock Exchange, which is a national securities exchange.
6
QUESTIONS AND ANSWERS ABOUT THE SPECIAL MEETING AND THE MERGER
The following questions and answers address briefly some questions you may have regarding the
special meeting and the Merger. These questions and answers may not address all questions that may
be important to you as a stockholder of Terra. Please refer to the more detailed information
contained elsewhere in this proxy statement, as well as the additional documents to which this
proxy statement refers or incorporates by reference, including the Merger Agreement, a copy of
which is attached to this proxy statement as Exhibit A.
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Why am I receiving this proxy statement? |
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You are receiving this proxy statement because you were a stockholder
of Terra on the Record Date and are being asked to vote to approve the
Merger and to vote for any adjournment of the special meeting for the
purpose of soliciting additional proxies if there are insufficient
votes at the time of the special meeting to approve the Merger. |
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What is the proposed transaction? |
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The proposed transaction is the acquisition of Terra by Yara under an
agreement and plan of merger, dated as of February 12, 2010, by and
among Yara, Merger Sub, an indirect, wholly owned subsidiary of Yara,
and Terra. Once the Merger has been approved by Terras stockholders
and the other closing conditions under the Merger Agreement have been
satisfied or waived, Merger Sub will merge with and into Terra and as
part of the Merger, Terras charter will be amended and restated as
provided in Exhibit A to the Merger Agreement. Terra will be the
Surviving Corporation in the Merger and will become an indirect,
wholly owned subsidiary of Yara. The amended and restated charter
will be the charter of the Surviving Corporation and shares of Terra
common stock will not be publicly traded after the Merger. |
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What will I receive in the Merger? |
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You will be entitled to receive the Merger Consideration, without
interest and less any applicable taxes required to be withheld, for
each outstanding share of Terra common stock that you own as of the
effective time of the Merger. |
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How does Terras board of directors recommend that I vote? |
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Our board of directors unanimously recommends that our stockholders vote FOR the approval of
the Merger and FOR any proposal to adjourn the special meeting for the purpose of
soliciting additional proxies if there are insufficient votes at the time of the special
meeting to approve the Merger. For a description of the factors considered by our board of
directors, please see The MergerBackground of the Merger and The MergerReasons for the
Merger and Recommendation of Our Board of Directors, beginning on page 17 and 22,
respectively. |
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Have any stockholders already agreed to approve the Merger? |
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No. There are no agreements between Merger Sub or Yara and any Terra stockholder in which that
stockholder has agreed to vote in favor of approval of the Merger. |
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Is the Merger contingent upon Yara obtaining financing? |
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No. The Merger Agreement does not have a financing contingency. |
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What are the financial interests of Terras directors and executive officers in the Merger? |
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Terras directors and executive officers will receive the Merger Consideration for each share
of Terra common stock that they own as of the effective time of the Merger in the same manner
as other stockholders. In addition, Terras executive officers hold restricted stock and
Performance Share Awards, which will be treated as described below. In addition to their
interests in equity awards, Terras executive officers have interests deriving from individual
employment severance agreements, Terras annual incentive compensation plan, the |
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funding of a rabbi trust with respect to retirement benefits and the continuation of certain compensation and benefits under the
Merger Agreement. |
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In addition, the Merger Agreement provides for indemnification and liability insurance arrangements for
each of our current and former directors and officers. For more information on the interests of our
directors and executive officers in the Merger, see Interests of Certain Persons in the Merger,
beginning on page 32. |
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When do you expect to complete the Merger? |
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We are working toward completing the Merger as promptly as practicable. If our stockholders vote to
approve the Merger and the other conditions to the Merger are satisfied or waived, then we intend to
complete the Merger as soon as possible after the special meeting and after the Marketing Period has
expired. The Merger Agreement provides that the closing will occur no later than 10:00 a.m., New York
time, on the third business day after the satisfaction or, to the extent permitted by law, waiver of the
closing conditions set forth in the Merger Agreement (other than those conditions that by their terms are
to be satisfied at the closing, but subject to the satisfaction or, to the extent permitted by law, waiver
of those conditions), but Yara is not obligated to complete the Merger until the expiration of the
Marketing Period. |
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If I hold restricted stock, Phantom Units, Performance Share Awards or Phantom Performance Share Awards,
how will these be treated in the Merger? |
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Each outstanding share of restricted stock will become fully vested pursuant to its terms and will be
converted into the right to receive the Merger Consideration, without interest and less any applicable
taxes required to be withheld. Each Phantom Unit will be cancelled and the holder thereof will be entitled
to receive a cash payment equal to the product of (i) the number of shares of common stock subject to such
Phantom Unit immediately prior to the effective time of the Merger and (ii) the Merger Consideration,
which amount will be payable to such holder, without interest and less any applicable taxes required to be
withheld, as promptly as practicable following the effective time of the Merger. Each Performance Share
Award and each Phantom Performance Share Award will be cancelled and the holder thereof will be entitled
to receive a cash payment equal to the product of (i) the greater of (A) the number of shares of common
stock subject to such Performance Share Award or Phantom Performance Share Award based on our actual
performance calculated during the quarters completed through the effective time of the Merger and (B) the
target number of shares of common stock subject to such Performance Share Award or Phantom Performance
Share Award and (ii) the Merger Consideration, which amount will be payable to such holder, without
interest and less any applicable taxes required to be withheld, as promptly as practicable following the
effective time of the Merger. |
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What vote of our stockholders is required to approve the Merger? |
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Approval of the Merger requires the affirmative vote of a majority of the shares of Terra common stock
that are outstanding and entitled to vote at the special meeting. Because the required vote is based on
the number of shares of Terra common stock outstanding and not the number of votes cast, failure to vote
your shares (including as a result of broker non-votes) and abstentions will have the same effect as
voting against approval of the Merger. We urge you either to complete, sign and return the enclosed proxy
card or to submit your proxy or voting instructions by telephone or via the Internet to assure the
representation of your shares of Terra common stock at the special meeting. |
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Will I have dissenters rights in connection with the Merger? |
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No. Holders of Terras common stock are not entitled to dissenting stockholders appraisal rights in
connection with the Merger or any of the transactions contemplated by the Merger Agreement. The MGCL does
not provide for appraisal rights or other similar rights to stockholders of a corporation in connection
with a merger if, on the record date for determining stockholders entitled to vote on the matter, the
shares of the corporation are listed on a national securities exchange. On the Record Date, Terras
common stock was listed on the New York Stock Exchange, which is a national securities exchange. |
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Should I send in my Terra stock certificates now? |
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No. You should not send in your Terra stock certificates now. After we complete the Merger, you will
receive a letter of transmittal and instructions describing how you may exchange your Terra stock
certificates for the Merger Consideration. At that time, you must send in your share certificates or
execute an appropriate instrument of transfer of your shares of Terra common stock, as applicable, with
your completed letter of transmittal to receive the Merger Consideration. If you do not hold any physical
share certificates, you must execute a properly completed letter of transmittal and arrange to
electronically transfer your shares of Terra common stock. DO NOT SEND ANY STOCK CERTIFICATES WITH YOUR
PROXY. |
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If my Terra shares are held in street name by my broker, will my broker vote my shares for me if I do
not give instructions? |
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If you hold your shares in street name through a broker, dealer, trustee, bank or other nominee, your
broker, dealer, trustee, bank or other nominee will not vote your shares unless you provide instructions
on how to vote. You should instruct your broker, dealer, trustee, bank or other nominee how to vote your
shares by following the directions your broker, dealer, trustee, bank or other nominee will provide to
you. If you do not provide instructions to your broker, dealer, trustee, bank or other nominee with
respect to the proposal to approve the Merger, your shares will not be voted and this will have the same
effect as a vote against the proposal to approve the Merger. If a quorum is present, but you did not
provide instructions to your broker, dealer, trustee, bank or other nominee with respect to the vote on
adjournment for the purpose of soliciting additional proxies, your shares will not be voted and this will
have no effect on the outcome of the adjournment proposal. |
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What happens if I sell my shares before the special meeting? |
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The Record Date of the special meeting is earlier than the date of the special meeting and the date that
the Merger is expected to be completed. If you transfer your shares of our common stock after the Record
Date but before the special meeting, you will retain your right to vote at the special meeting, but will
have transferred the right to receive the Merger Consideration in the same manner as other common stock to
be received by our stockholders in the Merger. In order to receive the Merger Consideration in the same
manner as other common stock, you must hold your shares through the completion of the Merger. |
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What should I do now? |
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This proxy statement contains important information regarding the special meeting, the Merger, as well as
information about Terra, Yara and Merger Sub. It also contains important information about some of the
factors our board of directors considered in approving the Merger. We urge you to carefully read this
proxy statement, including its exhibits, and to consider how the Merger affects you. Then complete, sign
and return the enclosed proxy card in the postage-paid envelope provided. Should you prefer, you may
deliver your voting instructions by telephone or via the Internet in accordance with the instructions on
the enclosed proxy card or the voting instructions received from your broker or other nominee that may
hold shares of Terra common stock on your behalf. You may also want to review the documents referenced in
the section captioned Where You Can Find More Information, beginning on page 58. |
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When should I send in my proxy card? |
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You should send in your proxy card as soon as possible so that your shares will be voted at the special
meeting. |
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Can I change my vote? |
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Yes. You may change your vote at any time before the shares reflected on your proxy are voted at the
special meeting. If you own your shares in your name, you can do this in one of three ways. First, you can
send a written notice of revocation to our secretary at our principal executive offices. Second, you can
complete, sign, date and return a proxy card or submit your proxy or voting instructions by telephone or
via the Internet at a later date than your previously submitted proxy. Third, you can attend the special
meeting and vote in person. Your attendance alone will not revoke your proxy. If you have instructed a
broker, dealer, trustee, bank or other |
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nominee to vote your shares, you must follow the directions received from the broker, dealer, trustee, bank or other nominee to
change your instructions. |
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Where can I find more information about Terra? |
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We file certain information with the U.S. Securities and Exchange Commission (the SEC) under the
Securities Exchange Act of 1934, as amended (the Exchange Act). You may read and copy this information
at the SECs public reference facilities. You may call the SEC at 1-800-SEC-0330 for information about
these facilities. This information is also available on the Internet site the SEC maintains at www.sec.gov
and on our Investor Relations page on our corporate website at www.terraindustries.com. Information
contained on our website is not part of, or incorporated in, this proxy statement. You can also request
copies of these documents from us. See Where You Can Find More Information, beginning on page 58. |
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Who will solicit and pay the cost of soliciting proxies? |
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Terra will pay the costs of soliciting proxies for the special meeting. In addition, our officers,
directors and employees may solicit proxies by mail, telephone, email, facsimile, on the Internet or in
person for no additional compensation. We have also retained MacKenzie Partners, Inc. (MacKenzie) to
assist us in soliciting proxies. We will pay MacKenzie up to $30,000 plus reasonable fees and expenses. We
will also request that brokerage houses, banks, custodians, nominees, fiduciaries and other like parties
forward the solicitation materials to the beneficial owners of shares of common stock held of record by
such persons, and we will, upon request of such record holders, reimburse their reasonable out-of-pocket
expenses for forwarding solicitation materials to stockholders. |
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What if I have additional questions? |
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If you have questions about the Merger Agreement, the special meeting or where to send your proxy, or if
you would like additional copies of this proxy statement, you should contact our proxy solicitor,
MacKenzie, at (800) 322-2885. |
10
THE SPECIAL MEETING
The Proposals
This proxy statement is being furnished to our stockholders in connection with the
solicitation of proxies by the Terra board of directors for use at a special meeting to be held at
[ ] on [ ], 2010 at [ ]. The purpose of the special meeting is for you to consider and
vote upon a proposal to approve the Merger and the other transactions to be effected as, or
constituting, a part of the Merger, including the amendment and restatement of Terras charter, all
as provided in the Merger Agreement, and to consider and vote upon any proposal to adjourn the
special meeting for the purpose of soliciting additional proxies and to transact any other business
that may properly come before the special meeting or any adjournment or postponement thereof. A
copy of the Merger Agreement is attached as Exhibit A to this proxy statement.
Record Date; Stock Entitled to Vote; Quorum
The holders of record of our common stock as of the close of business on [ ], 2010, which
is the Record Date for the special meeting, are entitled to receive notice of, and to vote at, the
special meeting.
On the Record Date, there were [ ] shares of our common stock outstanding held by
approximately [ ] stockholders of record. The presence in person or by proxy of stockholders
entitled to cast a majority of the votes of all votes entitled to be cast at the special meeting
will constitute a quorum for the purpose of considering both proposals. A quorum is necessary to
hold the special meeting. Each holder of our common stock is entitled to one vote per share of our
common stock held. Both abstentions and broker non-votes will be counted as present for purposes
of determining the existence of a quorum. In the event that a quorum is not present at the special
meeting, we currently expect that the presiding officer of the special meeting will adjourn or
postpone the special meeting to solicit additional proxies. If a new record date is set for an
adjourned or postponed special meeting, then a new quorum must be established. Broker non-votes
result when the beneficial owners of shares of common stock do not provide specific voting
instructions to their brokers with respect to a particular matter.
Vote Required
Completion of the Merger requires the approval of the Merger by the affirmative vote of the
holders of a majority of Terras outstanding common stock entitled to vote at the special meeting.
Approval of any proposal to adjourn the special meeting requires the affirmative vote of a majority
of the votes cast at the special meeting. Abstentions and broker non-votes will have no effect on
any proposal to adjourn the special meeting.
Each holder of shares of Terra common stock that were outstanding on the Record Date is
entitled to one vote at the special meeting for each share held. Because the required vote with
respect to the Merger is based on the number of shares of Terra common stock outstanding rather
than on the number of votes cast, failure to vote your shares (including as a result of broker
non-votes) and abstentions will have the same effect as a vote against the proposal to approve the
Merger. Accordingly, in order for your shares of common stock to be included in the vote, you must
either have your shares voted by returning the enclosed proxy card or by submitting your proxy or voting
instructions by telephone or via the Internet, or you must vote in person at the special meeting.
Our board of directors unanimously recommends that you vote FOR the approval of the Merger
and FOR any proposal to adjourn the special meeting for the purpose of soliciting additional
proxies if there are insufficient votes at the time of the special meeting to approve the Merger.
Proxies
Record holders may cause their shares of Terra common stock to be voted using one of the
following methods:
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complete, sign and return the enclosed proxy card by mail; |
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submit your proxy or voting instructions by telephone or via the Internet by following
the instructions included with your proxy card; or |
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appear and vote in person by ballot at the special meeting. |
Regardless of whether you plan to attend the special meeting, we request that you complete and
return a proxy for your shares of Terra common stock as described above as promptly as possible.
If you hold your shares of Terra common stock through a broker, dealer, trustee, bank or other
nominee (i.e., in street name), you must provide voting instructions in accordance with the
instructions on the voting instruction card that your broker, dealer, trustee, bank or other
nominee provides to you. You should instruct your broker, dealer, trustee, bank or other nominee as
to how to vote your shares, following the directions contained in such voting instruction card. If
you have not received such voting instructions or require further information regarding such voting
instructions, contact your broker, dealer, trustee, bank or other nominee, who can give you
directions on how to vote your shares of Terra common stock.
As of February 22, 2010, our executive officers and directors beneficially owned an aggregate
of approximately 1,537,431 shares of Terra common stock (184,200 of which were restricted shares),
representing 1.5% of the total beneficial ownership of Terra common stock and entitling them to
exercise approximately 1.5% of the voting power of Terra common stock entitled to vote at the
special meeting.
Stockholders who have questions or requests for assistance in completing and submitting proxy
cards should contact our proxy solicitor, MacKenzie, at (800) 322-2885.
Revocation
If you submit a proxy, your shares will be voted at the special meeting as you indicate on
your proxy. If no instructions are indicated on your signed proxy card, your shares of Terra common
stock will be voted FOR the approval of the Merger and FOR any proposal to adjourn the special
meeting for the purpose of soliciting additional proxies if there are insufficient votes at the
time of the special meeting to approve the Merger. In addition, you will be giving Henry R. Slack,
Michael L. Bennett and Daniel D. Greenwell the authorization to vote your shares of Terra common
stock on such other matters as may properly come before the special meeting or any adjournment or
postponement thereof.
You may revoke your proxy at any time, but only before the proxy is voted at the special
meeting, in any of three ways:
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by delivering a written revocation, dated after the date of the proxy that is being
revoked, to the Secretary of Terra at Terra Industries Inc., Terra Centre, 600 Fourth
Street, P.O. Box 6000, Sioux City, IA 51102; |
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by delivering to the Secretary of Terra a later-dated, duly executed proxy or by
submitting your proxy or voting instructions by telephone or via the Internet at a date
after the date of the previously submitted proxy relating to the same shares; or |
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by attending the special meeting and voting in person by ballot. |
Attendance at the special meeting will not, in itself, constitute revocation of a previously
granted proxy. If you hold your shares of Terra common stock in street name, you may revoke or
change a previously given proxy by following the instructions provided by the broker, dealer,
trustee, bank or other nominee that is the registered owner of the shares.
Solicitation of Proxies
Terra will pay the costs of soliciting proxies for the special meeting. In addition, our
officers, directors and employees may solicit proxies by mail, telephone, e-mail, facsimile, on the
Internet or in person for no additional compensation. We will also request that
individuals and entities holding shares in their names, or in the names of their nominees, that are
beneficially owned by others, send proxy materials to and obtain proxies from those beneficial
owners, and will reimburse those holders for their reasonable expenses in performing those
services. We have engaged MacKenzie to solicit proxies and distribute materials to brokerage
houses, banks, custodians,
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nominees, fiduciaries and other like parties for a fee not to exceed $30,000 plus reasonable
fees and expenses. We will reimburse brokerage houses, banks, custodians, nominees, fiduciaries and
other like parties for their reasonable out-of-pocket expenses for forwarding solicitation
materials to stockholders.
Adjournments and Postponements; Other Business
Adjournments may be made for the purpose of, among other things, soliciting additional proxies
if there are insufficient votes at the time of the special meeting to approve the Merger. Any such
adjournment to solicit additional votes requires that holders of more Terra common stock vote in
favor of than vote against adjournment without further notice other than by an announcement made at
the special meeting of the date, time and place at which the special meeting will be reconvened. If
no instructions are indicated on your proxy card, your shares of our common stock will be voted
FOR any adjournment of the special meeting, if necessary or appropriate, to solicit additional
proxies. Any adjournment of the special meeting for the purpose of soliciting additional proxies
will allow our stockholders who have already sent in their proxies to revoke them at any time prior
to their use at the adjourned special meeting. We do not currently intend to seek an adjournment of
the special meeting. We do not expect that any matter other than Proposal 1, and if necessary or
appropriate to solicit additional proxies, Proposal 2, will be brought before the special meeting.
If, however, other matters are properly presented at the special meeting, the persons named as
proxies will vote in accordance with their best judgment with respect to those matters.
13
CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS
Certain statements in this proxy statement and in the documents to which we refer you in this proxy
statement may constitute forward-looking statements within the meaning of the Private Securities
Litigation Reform Act of 1995. Forward-looking statements are based upon assumptions as to future
events that may not prove to be accurate. Actual outcomes and results may differ materially from
what is expressed or forecasted in these forward-looking statements. As a result, these statements
speak only as of the date they were made and Terra undertakes no obligation to publicly update or
revise any forward-looking statements, whether as a result of new information, future events or
otherwise, except as otherwise required by law. Words such as expects, intends, plans,
projects, believes, estimates, and similar expressions are used to identify these
forward-looking statements. Forward-looking statements include information concerning possible or
assumed future results of operations of our company, the expected completion and timing of the
Merger and other information relating to the Merger. Forward-looking statements are not guarantees
of future performance and involve risks, uncertainties and assumptions that are difficult to
predict. These risks, uncertainties and assumptions include, among others:
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the possibility that various conditions to the closing of the Merger may not be satisfied or
waived, including that a governmental entity may prohibit, delay or refuse to grant
approval for the consummation of the Merger, |
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the risk that Terras stockholders fail to approve the Merger, |
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the risk that Yaras stockholders fail to approve the Rights Issue, |
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that risk that the Merger will not close within the anticipated time period, |
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the risk that disruptions from the Merger will harm Terras relationships with its
customers, employees and suppliers, |
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the diversion of management time on issues related to the Merger, |
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the outcome of any legal proceedings challenging the Merger, |
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the amount of the costs, fees, expenses and charges related to the Merger, |
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changes in financial and capital markets, |
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general economic conditions within the agricultural industry, |
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competitive factors and price changes (principally, sales prices of nitrogen and
methanol products and natural gas costs), |
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changes in product mix, |
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changes in the seasonality of demand patterns, |
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changes in weather conditions, |
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changes in environmental and other government regulations, |
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changes in agricultural regulations, and |
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changes in the securities trading markets. |
Additional information as to these factors can be found in Terras 2008 Annual Report/10-K and in
Terras subsequent Quarterly Reports on Form 10-Q, in each case in the sections entitled
Business, Risk Factors, Legal
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Proceedings, and Managements Discussion and Analysis of Financial Condition and Results of
Operations, and in the Notes to the consolidated financial statements. See Where You Can Find
More Information, beginning on page 58.
15
PROPOSAL 1 APPROVAL OF THE MERGER
This discussion of the Merger is qualified by reference to the Merger Agreement, which is
attached to this proxy statement as Exhibit A. You should read the entire Merger Agreement
carefully as it is the legal document that governs the Merger.
The Parties to the Merger
Terra
Terra Industries Inc. is a Maryland corporation. Terra is a leading North American producer
and marketer of nitrogen products, serving agricultural, industrial and environmental customers.
Terra owns and operates six North American nitrogen products manufacturing facilities and owns a
50% interest in joint ventures in the United Kingdom and The Republic of Trinidad and Tobago.
Yara
Yara International ASA is a Norwegian public company limited by shares. Yara is the worlds
largest supplier of plant nutrients and a leading global trader of ammonia. With operations in 50
countries and sales to more than 120 countries, Yara is a significant provider of fertilizers
globally.
Merger Sub
Yukon Merger Sub, Inc. is a Maryland corporation and was organized solely for the purpose of
effecting the Merger. Merger Sub has not conducted any activities to date other than activities
incidental to its formation and in connection with the Merger. Merger Sub is wholly owned by Yara.
If the Merger is completed, Merger Sub would cease to exist after it merges with and into Terra.
Structure of the Transaction
The proposed transaction is a merger of Merger Sub with and into Terra, with Terra surviving
the Merger as an indirect, wholly owned subsidiary of Yara. The following will occur in connection
with the Merger:
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each share of our common stock issued and outstanding immediately prior to the effective
time of the Merger (other than those shares owned by us, Yara, Merger Sub or any of our or
Yaras wholly owned subsidiaries), including shares of restricted stock, will be converted
into the right to receive the Merger Consideration, without interest and less any applicable
taxes required to be withheld; |
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all shares so converted will, by virtue of the Merger and without any action on the part of
the holder, be automatically cancelled and will cease to exist, and each certificate formerly
representing any of the common shares will thereafter represent only the right to receive the
Merger Consideration, without interest and less any applicable taxes required to be withheld; |
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each share of common stock owned by us, Yara, Merger Sub or any of our or Yaras wholly
owned subsidiaries will be automatically cancelled and cease to exist, without payment of any
consideration; |
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each common share of Merger Sub issued and outstanding at the effective time of the Merger
will be converted into one common share, par value $0.01 per share, of the Surviving
Corporation; |
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each Phantom Unit will be cancelled and the holder thereof will be entitled to receive a
cash payment equal to the product of (i) the number of shares of common stock subject to such
Phantom Unit immediately prior to the effective time of the Merger and (ii) the Merger
Consideration, which amount will be payable to such holder, without interest and less any
applicable taxes required to be withheld, as promptly as practicable following the effective
time of the Merger; |
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each Performance Share Award and each Phantom Performance Share Award will be cancelled and
the holder thereof will be entitled to receive a cash payment equal to the product of (i) the
greater of (A) the number of shares of common stock subject to such Performance Share Award or
Phantom Performance Share Award based on our actual performance calculated during the quarters
completed through the effective time of the Merger and (B) the target number of shares of
common stock subject to such Performance Share Award or Phantom Performance Share Award and
(ii) the Merger Consideration, which amount will be payable to such holder, without interest
and less any applicable taxes required to be withheld, as promptly as practicable following
the effective time of the Merger; |
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as part of the Merger, Terras charter will be amended and restated as provided in Exhibit
A to the Merger Agreement at the effective time of the Merger and the amended and restated
charter will be the charter of the Surviving Corporation; |
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our stockholders will no longer have any interest in, and will no longer be stockholders
of, Terra, and will not participate in any of our future earnings or growth; |
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our common stock will no longer be listed on the New York Stock Exchange and price
quotations with respect to our common stock in the public market will no longer be available;
and |
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the registration of our common stock and our reporting obligations under the Exchange Act
will be terminated. |
Background of the Merger
On September 14, 2007, Terra and Kemira GrowHow Oyj, which was acquired by Yara later that
month, formed GrowHow UK, a joint venture operation in the United Kingdom. As a result, senior
executives of both Terra and Yara periodically engage in discussions about the joint venture, the
industry and their respective companies. In May 2008, Dr. Thorleif Enger, then President and Chief
Executive Officer of Yara, contacted Mr. Michael L. Bennett, President and Chief Executive Officer
of Terra, to arrange a meeting between them, which was scheduled for June 2, 2008, in London,
United Kingdom. At that meeting, Dr. Enger suggested that Yara was interested in exploring a
potential acquisition of Terra. In early June 2008, Mr. Bennett told Dr. Enger that he had
discussed Yaras interest with Terras Board of Directors (the Board), however the Board was not
convinced that it was the right time for Terra to pursue a business combination transaction.
During June and July of 2008, Mr. Bennett and Dr. Enger continued their dialogue regarding a
possible strategic transaction between Terra and Yara. However, in July 2008, Dr. Enger informed
Mr. Bennett of Yaras intention to pursue an alternative transaction, and that while Yara remained
interested in pursuing discussions with Terra, it would now have to focus on its other transaction.
On January 15, 2009, CF Industries Holdings, Inc. (CF) made an unsolicited proposal to
acquire Terra in exchange for shares of CF common stock. On February 25, 2009, Agrium Inc.
(Agrium) made an unsolicited proposal to acquire CF for a mix of cash and Agrium common stock,
conditioned upon CF not acquiring Terra. During 2009, CF made several revised proposals for a
business combination with Terra, and Agrium made several revised proposals for a business
combination with CF. CF eventually changed the form of consideration to a mix of cash and stock in
its proposal to Terra of November 1, 2009. Under that proposal, CF proposed to acquire Terra on
the basis of $24.50 in cash (net of Terras previously declared $7.50 per common share special cash
dividend (as described below)) and 0.1034 shares of CF common stock for each share of Terra common
stock. CFs November 1 proposal had a value of $33.11 per Terra share, based on CFs closing stock
price on Friday, October 30, 2009.
Each of CFs proposals was carefully considered by the Board, with the assistance of Terras
legal advisors, Cravath, Swaine & Moore LLP (Cravath) and Wachtell, Lipton, Rosen & Katz
(Wachtell and together with Cravath, the Legal Advisors), Terras financial advisor, Credit
Suisse Securities (USA) LLC (Credit Suisse), and Mr. William R. Loomis, Jr., the former Chairman
of the Board of Directors of Terra, who had been engaged by the Board as a consultant in January
2009 (together with the Legal Advisors and Credit Suisse, the Advisors). The Board unanimously
rejected each such proposal as being contrary to the best interests of Terra and its stockholders
for, among other things, failure to appropriately value Terra.
17
In furtherance of its proposals for a business combination with Terra, on February 3, 2009 and
again on September 9, 2009, CF notified Terra that it had nominated and would solicit proxies for
an opposition slate of three nominees for election as directors at Terras 2009 annual meeting of
stockholders. On October 14, 2009, CF filed a definitive proxy statement with the SEC with respect
to such solicitation.
Following the public announcement of CFs initial proposal in January 2009, Mr. Jørgen Ole
Haslestad, President and Chief Executive Officer of Yara, telephoned Mr. Bennett to express Yaras
continued interest in Terra. Throughout the course of 2009, Mr. Bennett engaged in preliminary
conversations with the chief executive officers of several companies in the industry, including
Yara, to gauge their possible interest in an alternative transaction to a CF/Terra combination. In
furtherance of those conversations, Terra entered into confidentiality agreements with two such
companies in August and September of 2009.
On October 29, 2009, Terra issued a press release announcing that the Board had declared a
$7.50 per common share special cash dividend. The special cash dividend was paid to Terra
stockholders on December 11, 2009.
In late October of 2009, Mr. Haslestad telephoned Mr. Bennett to arrange a meeting between
them, which was scheduled for November 3, 2009, in Minneapolis, Minnesota. At that meeting, Mr.
Haslestad indicated to Mr. Bennett that Yara remained interested in a strategic transaction with
Terra, though no specifics were proposed or discussed.
In early November of 2009, Mr. Bennett telephoned Mr. Haslestad to arrange a meeting between
them, which was scheduled for December 1, 2009, in London, United Kingdom.
On November 13, 2009, CF sent a letter to the Board stating that if Terra stockholders elected
CFs three nominees to the Board at Terras 2009 annual meeting, CF would not object if the Board
decided to reappoint Terras three incumbent directors.
During the morning of November 20, 2009, Terra held its 2009 annual meeting of stockholders.
Later that day, Terra issued a press release announcing that based on a preliminary review of the
proxies voted at the annual meeting, it appeared that Terra stockholders had elected to the Board
the three individuals nominated by CF.
On the evening of November 20, 2009, representatives of CF contacted representatives of Terra
to express CFs interest in negotiating a proposed merger agreement over that weekend. The next
day, a representative of CFs legal advisor, Skadden, Arps, Slate, Meagher & Flom LLP and
Affiliates (Skadden), provided a draft merger agreement to a representative of Cravath,
reflecting the terms of CFs proposal of November 1, 2009, and including a go-shop with a
proposed break-up fee of $150 million, plus expense reimbursement.
On November 22, 2009, the Board held a meeting by teleconference to discuss CFs approach of
November 20, 2009, and to review such approach with Terras Advisors. The Board unanimously
rejected engagement with CF on those terms. At that same meeting, the Board, by a unanimous vote
of those directors whose terms did not expire in 2009, expanded the number of directors
constituting the whole Board to eleven, effective as of the time the results of the election of
directors at the 2009 annual meeting of stockholders were certified and declared final, and voted
to fill the vacancies created at such time by reappointing Ms. Martha O. Hesse, Mr. Dennis McGlone
and Mr. Henry R. Slack to the Board.
On December 1, 2009, Mr. Bennett and Mr. Loomis met with Mr. Haslestad and Mr. Hallgeir
Storvik, Chief Financial Officer and Head of Strategy of Yara, in London, United Kingdom. They
discussed in general terms Yaras expressions of interest to Terra regarding the possibility of a
strategic transaction. Mr. Storvik described the nature of the approvals and financing which would
be required by Yara if the parties were to pursue a transaction. There was no negotiation
concerning price or other terms. However, Mr. Haslestad stated that he believed the value of a
Yara proposal would be competitive with that proposed by CF in its most recent proposal and that
the form of consideration would be all cash. Mr. Haslestad also stated that Yara had no interest
in participating in a bidding contest.
On the same day, Terra issued a press release confirming that Terra stockholders had elected
CFs three nominees to the Board.
18
During the morning of December 4, 2009, Mr. Haslestad telephoned Mr. Bennett to inform him
that he had discussed with Yaras Board of Directors a potential transaction with Terra, and that
Yara would be in a position to match the value of the proposal made by CF on November 1, 2009, with
an all cash proposal, if Terra decided it was interested in pursuing a transaction. Mr. Haslestad
again reiterated that while Yara would be interested in exploring a transaction with Terra, it
would not be drawn into a bidding contest.
During the afternoon of December 4, 2009, CF submitted to the Board its seventh proposal over
the course of the year, pursuant to which CF proposed to acquire all of the outstanding shares of
Terra for $29.25 in cash (net of Terras previously declared $7.50 per common share special cash
dividend) and 0.1034 shares of CF common stock for each share of Terra common stock. In its
December 4, 2009 letter to the Board, CF stated that it had previously provided to Terra a form of
merger agreement that it was prepared to enter into, but proposed a revised break-up fee of $1 per
Terra share, plus expense reimbursement. CFs December 4 proposal had a value of $38.41 per Terra
share, based on CFs closing stock price that day.
Later that day, a representative of Skadden submitted to a representative of Cravath a
confirmatory due diligence request list on behalf of CF. Representatives of CF and Terra engaged
in several general conversations over the course of that weekend, during which time representatives
of CF stated that CFs most recent proposal was its all in value and that CF had at most nickels
and quarters left in the context of signing a transaction. Those statements, and the statement
that CF had emptied its pockets, were repeated in press accounts following public disclosure of
CFs proposal on December 7, 2009, and attributed to representatives of CF.
On December 5, 2009, Mr. Bennett telephoned Mr. Haslestad to inform him of CFs revised
proposal. Over the course of that day, Messrs. Bennett and Haslestad arranged a meeting between
representatives of Terra and Yara, to enable Yara to determine whether it would be in a position to
provide a proposal competitive with that of CF. The meeting was scheduled for December 7, 2009, in
London, United Kingdom. Mr. Bennett also sent Mr. Haslestad a draft confidentiality agreement that
would allow for the exchange of confidential information between the parties.
On the same day, Mr. Bennett called the chief executive officers of the two other companies in
the industry with which Terra had previously entered into confidentiality agreements, to gauge
their interest in a potential business combination transaction with Terra. Both chief executive
officers indicated that their companies would not be interested in pursuing such a transaction with
Terra.
On December 6, 2009, at a meeting of the Board held by teleconference, the Board reviewed CFs
proposal of December 4, 2009, with Terras Advisors, and was provided with an update on
communications with CFs advisors and on Mr. Bennetts conversations with the chief executive
officers of three companies in the industry, including Yaras Chief Executive Officer, Mr.
Haslestad.
On December 7, 2009, Mr. Daniel D. Greenwell, Senior Vice President and Chief Financial
Officer of Terra, and a representative of Credit Suisse discussed with Mr. Storvik and Mr. Gaute
Andreassen, Head of Strategy and Business Development at Yara, certain financial and other
information relating to Terra to enable Yara to come to a more definitive view as to value.
On December 7 and 8, 2009, Messrs. Bennett and Haslestad had several telephone conversations
to further discuss Yaras view as to value. Mr. Haslestad indicated to Mr. Bennett that he felt
confident that Yara would be in a position to make an all-cash offer that would be competitive with
CFs most recent proposal.
On December 9, 2009, at a regularly scheduled meeting of the Board, and again on December 13,
2009, at a meeting of the Board held by teleconference, the Board reviewed CFs proposal of
December 4, 2009, with Terras Advisors. Representatives of Terras Legal Advisors reviewed with
the Board their duties as directors under Maryland law, and Credit Suisse reviewed with the Board
its financial analysis of CFs proposal. The Board was also provided with an update on
communications with CFs advisors, on Mr. Bennetts conversations with the chief executive officers
of the three companies in the industry with whom Mr. Bennett had spoken since CFs latest proposal,
including Yaras Chief Executive Officer, Mr. Haslestad, and on stockholder reaction to CFs
proposal. On December 13, 2009, the Board unanimously rejected CFs proposal of December 4, 2009
because, among other things, the latest improvement to CFs bid did not fully reflect Terras
brighter prospects as the fertilizer sector continued to strengthen. The Board also authorized Mr.
Bennett to continue his conversations with Mr. Haslestad in order to determine Yaras seriousness
as a potential bidder and ascertain Yaras ultimate position on valuation.
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During the evening of December 13, 2009, Mr. Bennett telephoned Mr. Haslestad to inform him of
the Boards unanimous rejection of CFs proposal, and Mr. Haslestad suggested a meeting between
representatives of Terra and Yara, which was subsequently scheduled for December 21, 2009, at the
offices of Credit Suisse in New York, New York.
On December 15, 2009, CF issued a press release announcing that it would allow its financing
commitments for its proposed acquisition of Terra to expire on December 31, 2009.
On December 17, 2009, Terra and Yara executed a confidentiality agreement (the
Confidentiality Agreement).
On December 21, 2009, representatives of Yara and Yaras financial advisor, Citigroup Global
Markets Limited (Citigroup), conducted a due diligence meeting with Mr. Greenwell and
representatives of Credit Suisse. During the next several weeks, Yara continued its review of
Terras business.
On January 4, 2010, a representative of CFs financial advisor, Morgan Stanley & Co.
Incorporated (Morgan Stanley), telephoned a representative of Credit Suisse to request that Terra
provide to CF whatever information was reviewed by the Board in connection with its decision to
reject CFs proposal of December 4, 2009, as well as the confirmatory due diligence requested in
such proposal. The representative of Credit Suisse telephoned the representative of
Morgan Stanley on January 12, 2010, to inform him that Terra had declined to provide CF with the information requested.
On January 8, 2010, Mr. Haslestad telephoned Mr. Bennett to inform him that Yaras Board of
Directors continued to be supportive of a potential transaction with Terra, but had certain
preconditions. Mr. Haslestad sent a confirming note stating that Yara would be able to match and
add a margin on top of the value of CFs proposal of December 4, 2009. Mr. Haslestad set forth
four primary conditions of Yaras Board of Directors to pursuing a transaction with Terra: (i)
that Terra commit to negotiate exclusively with Yara for a period of 30 working days, (ii) absolute
confidentiality during the exclusivity period, (iii) completion by Yara of its confirmatory due
diligence and (iv) that the definitive merger agreement contain a break-up fee and no-shop
provision. The note also stated that the definitive merger agreement would need provision for
Norwegian Parliamentary approval of an equity issuance by Yara. On the basis of the foregoing,
Yara indicated its willingness to meet with Terra and its legal and financial advisors the
following week.
On January 9, 2010, a representative of Credit Suisse telephoned a representative of Citigroup
to discuss the January 8, 2010 letter from Mr. Haslestad. The Credit Suisse representative
informed Citigroup that the terms and conditions in the January 8, 2010 letter could not be
evaluated absent a proposed acquisition price and additional detail regarding Yaras proposed
closing conditions to a transaction, in particular the sort of protection Yara would provide Terra
regarding Yaras need for a stockholder vote for its proposed equity issuance.
On January 10, 2010, Mr. Bennett telephoned Mr. Haslestad to tell him that his note did not
provide sufficient clarity as to the terms Yara was prepared to propose for a potential transaction
to merit its consideration by the Board. Accordingly, Mr. Bennett suggested that the parties and
their respective legal and financial advisors meet in New York later in the week to discuss with
more specificity Yaras proposal as to price, deal certainty and deal protection. The meeting was
scheduled for January 13, 2010, at the offices of Cravath in New York, New York.
On January 13, 2010, Mr. Bennett and representatives of Terras Legal Advisors discussed with
Mr. Trygve Faksvaag, Chief Legal Counsel of Yara, and representatives of Yaras legal advisor,
Latham & Watkins LLP (Latham), certain of the terms and conditions in the January 8, 2010 letter
from Mr. Haslestad. During the meeting, Terras Legal Advisors stated that valuation, deal
certainty and deal protection would be critical to the Boards assessment of whether to even
consider Yaras requirement that Terra enter into exclusive discussions with it.
Later that afternoon, Mr. Bennett and Mr. Haslestad met at the offices of Cravath in New York,
New York and further discussed certain of the terms and conditions in the January 8, 2010 letter
from Mr. Haslestad. In that discussion, Mr. Haslestad stated that his view as to value was $40.75
in cash per Terra share, that he was firm in his view and that he saw no basis for continuing
discussions unless that was understood.
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On January 14, 2010, CF announced, without prior notice to Terra, that it had withdrawn its
proposal to acquire Terra, that it had sold all of its shares of Terra common stock and that it was
no longer pursuing a business combination with Terra.
On January 15, 2010, Mr. Haslestad telephoned Mr. Bennett to inform him that Yaras Board of
Directors had formally authorized Mr. Haslestad to offer to acquire all of the outstanding shares
of Terra common stock for $40.75 per share in cash.
On January 20, 2010, Mr. Haslestad sent Mr. Bennett a letter outlining Yaras non-binding
expression of interest for the potential acquisition of Terra. In the letter, Mr. Haslestad stated
his expectation that, in consideration of the time and effort necessary to proceed with
discussions, Terra would agree to negotiate exclusively with Yara for a period of 20 days, and
stated that Yara was interested in acquiring through a merger all of the outstanding shares of
Terra common stock for $40.75 per share in cash. The letter further indicated that Yara would
require a $200 million break-up fee if the transaction was not consummated for certain customary
reasons, and that Yara would be willing to agree to a reverse break-up fee of equivalent size
payable in the event Yaras required stockholder approval for its proposed equity issuance was not
received.
On January 21, 2010, Citigroup sent Credit Suisse a confirmatory due diligence request list on
behalf of Yara.
On January 22, 2010, the Board held a meeting by teleconference to review Mr. Haslestads
letter of January 20, 2010, with Terras Advisors. Later that day, Mr. Bennett telephoned Mr.
Haslestad to inform him that the Board had authorized Mr. Bennett to pursue further discussions
with Yara and grant exclusivity to Yara.
Over the next several days, the parties and their respective legal advisors negotiated the
terms of an exclusivity agreement. Terra and Yara entered into an exclusivity agreement dated as
of January 24, 2010, pursuant to which the parties agreed to negotiate exclusively with one another
for a period starting on the date of such agreement and ending at 11:59 p.m. New York City time on
February 14, 2010, which included a right of Terra, consistent with the duties of the
directors, to engage in discussions with third parties who approached it on an unsolicited basis during
the exclusivity period. No third parties approached Terra with an unsolicited proposal for a
business combination during the exclusivity period.
On January 24, 2010, Mr. Haslestad telephoned Mr. Bennett to arrange a meeting between them in
New York later that week, which was subsequently scheduled for January 28, 2010, at the offices of
Cravath in New York, New York. At that meeting, Mr. Bennett and Mr. Haslestad discussed the
proposed terms contained in Mr. Haslestads letter of January 20, 2010, including both value and
the size of the break-up fee and reverse break-up fee.
On February 1, 2010, Mr. Haslestad sent Mr. Bennett a letter outlining Yaras revised
non-binding expression of interest for the potential acquisition of Terra. In the letter, Mr.
Haslestad indicated that, subject to the completion of confirmatory due diligence, the execution of
definitive documentation and the receipt of required approvals for the execution of such definitive
documentation, Yara was interested in acquiring through a merger all of the outstanding shares of
Terra common stock for $41.10 per share in cash. The letter further indicated that the definitive
merger agreement would (i) entitle Terra stockholders to receive the regularly paid Terra quarterly
dividend of $0.10 per share for the first quarter of 2010, (ii) contain a no-shop provision,
(iii) provide for a break-up fee and reverse break-up fee symmetrically sized at 3% of the
transaction value and (iv) require Yara to hold a general meeting of its stockholders to approve
the capital increase necessary to conduct the rights offering within 90 days of signing the merger
agreement and provide for a weekly penalty fee of $5.0 million for the first week, $5.0 million for
the second week, $10.0 million for the third week and $15.0 million for every week thereafter in
the event that Yara failed to meet the 90 day target for holding its stockholders meeting. The
letter stated that the transaction would not be subject to any financing condition beyond the
approval of the capital increase at the Yara stockholders meeting. The letter further stated that
the foregoing terms and conditions constituted Yaras best and final offer.
On February 2, 2010, the Board held a meeting by teleconference to review Mr. Haslestads
letter of February 1, 2010, with Terras Advisors. Later that day, Mr. Bennett telephoned Mr.
Haslestad to inform him that the Board had authorized him to pursue further discussions with Yara.
21
On the evening of February 2, 2010, Terras Legal Advisors submitted a draft merger agreement
to Latham.
On February 5, 2010, a representative of Latham telephoned a representative of Cravath to
discuss the draft merger agreement, and arranged a meeting between Terras Legal Advisors, Credit
Suisse and representatives of Yara, which was scheduled for that afternoon at the offices of Latham
in New York, New York. At that meeting, Mr. Faksvaag and representatives of Latham and Citigroup
updated representatives of Terras Legal Advisors and Credit Suisse regarding Yaras financing for
the proposed transaction.
The parties executed an amendment to the Confidentiality Agreement dated as of February 6,
2010, permitting Yara to furnish confidential information regarding Terra to potential financing
sources.
On February 8, 2010, Latham sent a confirmatory due diligence request list to Cravath on
behalf of Yara. Later that day, Latham submitted a mark-up of the draft merger agreement to
Terras Legal Advisors.
On the evening of February 8, 2010, Terra executed a confidentiality agreement with UBS
Limited, financial advisor to the Government of Norway, in connection with the Norwegian
Governments review of Yaras proposed acquisition of Terra.
On February 9, 2010, representatives of Terras Legal Advisors telephoned a representative of
Latham to discuss Lathams mark-up of the draft merger agreement.
On February 10, 2010, Terras Legal Advisors submitted a revised draft of the merger agreement
to Latham. From the afternoon of February 10, 2010 through the evening of February 11, 2010, Mr.
Bennett and Terras Legal Advisors, on the one hand, and Mr. Haslestad, Mr. Faksvaag and Latham, on
the other hand, negotiated the terms of the definitive Merger Agreement.
During the afternoon of February 12, 2010, the Board held a special meeting at the offices of
Cravath in New York, New York to review the proposed definitive Merger Agreement that had been
negotiated between representatives of Terra and Yara. Representatives of Terras Legal Advisors
reviewed with the Board their duties as directors under Maryland law, and reviewed with the Board
in detail the proposed terms of the Merger Agreement. Also at this meeting, Credit Suisse reviewed
with the Board its financial analysis of the $41.10 per share consideration and delivered to the
Board an oral opinion, which opinion was confirmed by delivery of a written opinion dated February
12, 2010, to the effect that as of that date and based upon and subject to the qualifications,
limitations and assumptions set forth therein, the $41.10 in cash per share to be received by the
holders of Terra common stock pursuant to the Merger Agreement is fair, from a financial point of
view, to such holders. Following further discussion and deliberations, and after consultation with
Terras Advisors, the Board unanimously (i) approved the Merger Agreement, the Merger and the other
transactions contemplated by the Merger Agreement, (ii) declared that the Merger and the other
transactions contemplated by the Merger Agreement are advisable to, and in the best interests of,
Terra and its stockholders and (iii) recommended that Terra stockholders approve the Merger.
Following the February 12, 2010 meeting of the Board, Terra, Yara and Merger Sub executed the
Merger Agreement.
On February 15, 2010, Terra issued a press release announcing the Merger. The material terms
of the Merger Agreement are described below under The Merger Agreement, beginning on page 41 of
this proxy statement, which description is qualified in its entirety by reference to the Merger
Agreement, which is attached as Exhibit A to this proxy statement.
Reasons for the Merger and Recommendation of Our Board of Directors
After careful consideration, our board of directors unanimously approved the Merger Agreement,
the Merger and the other transactions contemplated by the Merger Agreement, declared that the
Merger and the other transactions contemplated by the Merger Agreement are advisable to, and in the
best interests of, Terra and its stockholders and recommended that Terra stockholders approve the
Merger.
22
In the course of reaching its decision to approve the Merger Agreement, the Merger and the
other transactions contemplated by the Merger Agreement, our board of directors consulted with
Terra management, as well as its financial and legal advisors, and considered a number of factors
that it believed supported its decision, including the following:
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recent and historical market prices for Terra common stock, as compared to the financial
terms of the Merger, including the fact that the $41.10 in cash per share offered by Yara
represented a 23.6% premium over the closing price of Terra common stock on February 12, 2010,
the last trading day prior to the announcement of the Merger; |
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its knowledge of Terras business, operations, financial condition, earnings and prospects,
as well as the risks in achieving those prospects; |
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its knowledge of the current industry environment affecting Terra, including the trend
toward consolidation in the fertilizer industry and the strong correlation between general
macroeconomic conditions and industry conditions; |
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the financial analyses reviewed and discussed with our board of directors by
representatives of Credit Suisse on February 12, 2010, as well as the oral opinion of Credit
Suisse rendered to our board of directors on such date (which was subsequently confirmed in
writing by delivery of Credit Suisses written opinion dated the same date) to the effect that
as of such date and based upon and subject to the assumptions, limitations and qualifications
set forth therein, the $41.10 in cash per share to be received by the holders of Terra common
stock in the Merger was fair, from a financial point of view, to such stockholders. The
summary of Credit Suisses opinion in this proxy statement is qualified in its entirety by the
full text of Credit Suisses opinion, which is attached to this proxy statement as Exhibit B; |
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the fact that the Merger Consideration consists solely of cash, providing Terra
stockholders with certainty of value and liquidity; |
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its assessment of the Merger Consideration in light of knowledge acquired over the past
year through CFs public proposals and managements private discussions with other industry
participants; |
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CFs private and public statements in conjunction with its proposal of December 4, 2009 as
to having emptied its pockets and having only nickels and quarters left, and CFs
announcement on January 14, 2010 that it had withdrawn its proposal to acquire Terra, that it
had sold all of its shares of Terra common stock and that it was no longer pursuing a business
combination with us; |
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its belief, based on statements by Yara, that Yara was not willing to participate in a
bidding contest for Terra; |
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its belief that the Merger Agreement and the transactions contemplated by the Merger
Agreement were more favorable to Terra stockholders than other strategic alternatives
reasonably available to Terra and its stockholders; |
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the fact that, subject to compliance with the terms and conditions of the Merger Agreement,
Terra is permitted to furnish information to and conduct negotiations with any third party
that makes a bona fide written unsolicited acquisition proposal for Terra; |
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the fact that, subject to compliance with the terms and conditions of the Merger Agreement,
Terra is permitted to terminate the Merger Agreement in order to enter into an agreement with
respect to a superior proposal after giving Yara the opportunity to match the superior
proposal and upon the payment to Yara of a termination fee; |
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the fact that the financial and other terms and conditions of the Merger Agreement and the
transactions contemplated by the Merger Agreement, including the level of commitment by Yara
to obtain applicable |
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regulatory approvals, the absence of a financing condition and the inclusion of a ticking
fee tied to the date of Yaras stockholders meeting to approve the Rights Issue, were the
product of extensive negotiations between the parties and were designed to provide as much
certainty as was possible that the Merger would ultimately be consummated on a timely basis;
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the fact that if Yara fails to obtain the approval of its stockholders of the issuance of
Yara common stock to finance a portion of the Merger Consideration and the Merger Agreement is
terminated, Yara would be required to pay Terra a $123 million termination fee. |
Our board of directors also considered a number of risks and other potentially negative
factors concerning the Merger Agreement, the Merger and the other transactions contemplated by the
Merger Agreement, including the following:
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the fact that the all-cash consideration, while providing certainty of value, would not
allow Terra stockholders to participate in the surviving corporations future earnings or
growth or to benefit from any appreciation in the value of Yaras common stock after the
Merger; |
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the fact that the Merger might not be completed in a timely manner or at all due to the
necessity of receiving regulatory approvals, including under the HSR Act and the applicable
competition and foreign investment laws of Canada and the European Union and from CFIUS; |
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the potential disruption to our business that could result from the announcement and
pendency of the Merger, including the possible diversion of management and employee attention,
potential employee attrition and the potential effect on our business relationships; |
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the restrictions on Terras ability to solicit or engage in discussions or negotiations
regarding alternative business combination transactions, subject to specified exceptions, and
the requirement that Terra pay a termination fee in order to accept a superior proposal, which
may discourage a competing proposal to acquire Terra that may be more advantageous to Terra
stockholders; |
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the inclusion in the Merger Agreement of a non-solicitation covenant and provision for
Terras payment of a termination fee of $123 million to Yara in the case of certain events,
which was successfully negotiated down from Yaras initial demand of $200 million and which
our board of directors understood, while potentially having the effect of discouraging third
parties from proposing a competing business combination transaction after the Merger Agreement
was signed, were conditions to Yaras willingness to enter into the Merger Agreement; |
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the fact that the Merger is conditioned upon the approval of Yara stockholders of the
issuance of Yara common stock to finance a portion of the Merger Consideration; and |
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the restrictions on Terras business prior to the consummation of the Merger, requiring
Terra to conduct its business in all material respects only in the ordinary course of business
and consistent with past practice, subject to specific limitations, which may delay or prevent
Terra from undertaking business opportunities that may arise during the term of the Merger
Agreement, whether or not the Merger is completed. |
The foregoing discussion of the factors considered by our board of directors is not intended
to be exhaustive, but, rather, includes the material factors considered by our board of directors.
In reaching its decision to approve the Merger Agreement, the Merger and the other transactions
contemplated by the Merger Agreement, our board of directors did not quantify or assign any
relative weights to the factors considered, and individual directors may have given different
weights to different factors. Our board of directors did not reach any specific conclusion on each
factor considered, but, with the assistance of Terra management and its financial and legal
advisors, conducted an overall review of these factors.
For the reasons set forth above, our board of directors unanimously determined that the Merger
and the other transactions contemplated by the Merger Agreement are advisable to, and in the best
interests of, Terra
24
and its stockholders and unanimously approved the Merger Agreement, the Merger and the other
transactions contemplated by the Merger Agreement. Our board of directors unanimously recommends
that Terra stockholders vote FOR the approval of the Merger.
Opinion of Terras Financial Advisor
On February 12, 2010, Credit Suisse rendered its oral opinion to the Terra board of directors
(which was subsequently confirmed in writing by delivery of Credit Suisses written opinion dated
the same date) to the effect that, as of February 12, 2010, the $41.10 in cash per share of Terra
common stock to be received by the holders of shares of Terras common stock in the Merger was
fair, from a financial point of view, to such stockholders.
Credit Suisses opinion was directed to the Terra board of directors and only addressed the
fairness from a financial point of view of the $41.10 in cash per share of Terra common stock to be
received by the holders of Terra common stock in the Merger, and did not address any other aspect
or implication of the Merger. The summary of Credit Suisses opinion in this proxy statement is
qualified in its entirety by reference to the full text of its written opinion, which is included
as Exhibit B to this proxy statement and sets forth the procedures followed, assumptions made,
matters considered, qualifications and limitations on the review undertaken and other matters
considered by Credit Suisse in preparing its opinion. Holders of Terra common stock are encouraged
to read this opinion carefully in its entirety. However, neither Credit Suisses written opinion
nor the summary of its opinion and the related analyses set forth in this proxy statement are
intended to be, and they do not constitute, advice or a recommendation to any holder of Terra
common stock as to how such holder should vote or act on any matter relating to the Merger.
In arriving at its opinion, Credit Suisse:
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reviewed a draft, dated February 12, 2010, of the
Merger Agreement, the purchase agreement related to the
Carseland Acquisition (as defined below), as well as
certain publicly available business and financial
information relating to Terra; |
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reviewed certain other information relating to
Terra, including financial forecasts (certain of which
were publicly available), as well as pricing
information related to natural gas and certain other
commodities reflected in such forecasts and data, which
were provided to or discussed with Credit Suisse by
Terra; |
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met with Terras management to discuss the business and prospects of Terra; |
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considered certain financial and stock market data
of Terra, and compared that data with similar data for
other publicly held companies in businesses Credit
Suisse deemed similar to that of Terra; |
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considered, to the extent publicly available, the
financial terms of certain other business combinations
and transactions which have been effected or announced;
and |
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considered such other information, financial
studies, analyses and investigations and financial,
economic and market criteria which Credit Suisse deemed
relevant. |
In connection with its review, Credit Suisse did not independently verify any of the
foregoing information and assumed and relied on such information being complete and accurate in all
material respects. With respect to the financial forecasts for Terra and the estimated data for
Terra, the management of Terra advised Credit Suisse, and Credit Suisse assumed, that such
forecasts were reasonably prepared on bases reflecting the best currently available estimates and
judgments of Terras management as to the future financial performance of Terra, and that such
other data (including the assumptions related to pricing of natural gas and certain other
commodities) have also been reasonably prepared on bases reflecting the best currently available
estimates. With respect to the publicly available financial forecasts for Terra referred to
above, Credit Suisse has reviewed and discussed such forecasts with the management of Terra and has
assumed, with Terras consent, that such forecasts represent reasonable estimates and judgments
with respect to the future financial performance of Terra. Credit Suisse also assumed, with
Terras
25
consent, that Terra will complete, on the terms described to Credit Suisse by management of
Terra, the acquisition of a 50% interest in Agrium Inc.s Carseland, Alberta, Canada nitrogen
production assets and certain United States assets for a purchase price of $250 million (which we
refer to as the Carseland Acquisition), which is subject to certain closing conditions and
contingencies including the completion by Agrium Inc. of the acquisition of CF Industries Holdings,
Inc. Credit Suisse also assumed, with Terras consent, that, in the course of obtaining any
regulatory or third party consents, approvals or agreements in connection with the Merger, no
modification, delay, limitation, restriction or condition would be imposed that would have an
adverse effect on Terra or the Merger in any respect material to the analyses of Credit Suisse and
that the Merger would be consummated in accordance with the terms of the Merger Agreement without
waiver, modification or amendment of any material term, condition or agreement thereof.
Representatives of Terra advised Credit Suisse, and Credit Suisse has assumed, that the final form
of the Merger Agreement, when executed by the parties thereto, conformed to the draft reviewed by
Credit Suisse in all respects material to its analyses. In addition, Credit Suisse has not been
requested to make, and has not made, an independent evaluation or appraisal of the assets or
liabilities (contingent or otherwise) of Terra, nor has Credit Suisse been furnished with any such
evaluations or appraisals.
Credit Suisses opinion addressed only the fairness, from a financial point of view, to the
holders of Terra common stock of the $41.10 in cash per share of Terra common stock to be received
by the holders of Terra common stock in the Merger and did not address any other aspect or
implication of the Merger or any other agreement, arrangement or understanding entered into in
connection with the Merger or otherwise including, without limitation, the fairness of the amount
or nature of, or any other aspect relating to, any compensation to any officers, directors or
employees of any party to the Merger, or class of such persons, relative to the $41.10 in cash per
share of Terra common stock to be received by the holders of Terra common stock in the Merger, or
otherwise. The issuance of Credit Suisses opinion was approved by its authorized internal
committee.
Credit Suisses opinion was necessarily based upon information made available to it as of the
date of its opinion and financial, economic, market and other conditions as they existed and could
be evaluated on that date and upon certain assumptions regarding such financial, economic, market
and other conditions, which are currently subject to unusual volatility and which, if different
than assumed, could have a material impact on Credit Suisses analyses. Credit Suisses opinion
also was based on assumptions provided by Terras management as to the pricing of natural gas and
certain other commodities, which is subject to significant volatility and which, if different than
assumed, could have a material impact on Credit Suisses analyses. Credit Suisses opinion did not
address the merits of the Merger as compared to alternative transactions or strategies that may be
available to Terra, nor did it address Terras underlying business decision to proceed with the
Merger.
Credit Suisses opinion was for the information of the Terra board of directors in connection
with its consideration of the Merger and does not constitute advice or a recommendation to any
stockholder of Terra as to how such stockholder should vote or act on any matter relating to the
proposed Merger.
In preparing its opinion, Credit Suisse performed a variety of analyses, including those
described below. The summary of Credit Suisses valuation analyses is not a complete description of
the analyses underlying Credit Suisses opinion. The preparation of a fairness opinion is a complex
process involving various quantitative and qualitative judgments and determinations with respect to
the financial, comparative and other analytic methods employed and the adaptation and application
of those methods to the unique facts and circumstances presented. As a consequence, neither Credit
Suisses opinion nor the analyses underlying its opinion are readily susceptible to partial
analysis or summary description. Credit Suisse arrived at its opinion based on the results of all
analyses undertaken by it and assessed as a whole and did not draw, in isolation, conclusions from
or with regard to any individual analysis, analytic method or factor. Accordingly, Credit Suisse
believes that its analyses must be considered as a whole and that selecting portions of its
analyses, analytic methods and factors, without considering all analyses and factors or the
narrative description of the analyses, could create a misleading or incomplete view of the
processes underlying its analyses and opinion.
In performing its analyses, Credit Suisse considered business, economic, industry and market
conditions, financial and otherwise, and other matters as they existed on, and could be evaluated
as of, the date of its opinion. No company, transaction or business used in Credit Suisses
analyses for comparative purposes is identical to Terra or the proposed Merger. While the results
of each analysis were taken into account in reaching its overall conclusion with respect to
fairness, Credit Suisse did not make separate or quantifiable judgments regarding individual analyses.
The implied reference range values indicated by Credit Suisses analyses are illustrative and
26
not necessarily indicative of actual values nor predictive of future results
or values, which may be significantly more or less favorable than those suggested by the analyses.
In addition, any analyses relating to the value of businesses or securities do not purport to be
appraisals or to reflect the prices at which businesses or securities actually may be sold, which
may depend on a variety of factors, many of which are beyond Terras control and the control of
Credit Suisse. Accordingly, the estimates used in, and the results derived from, Credit Suisses
analyses are inherently subject to substantial uncertainty.
Credit Suisses opinion and analyses were provided to the Terra board of directors in
connection with its consideration of the proposed Merger and were among many factors considered by
the Terra board of directors in evaluating the proposed Merger. Neither Credit Suisses opinion
nor its analyses were determinative of the Merger consideration or of the views of the Terra board
of directors with respect to the proposed Merger.
The following is a summary of the material valuation analyses performed in connection with the
preparation of Credit Suisses opinion and reviewed with the Terra board of directors on February
12, 2010. The analyses summarized below include information presented in tabular format. The
tables alone do not constitute a complete description of the analyses. Considering the data in the
tables below without considering the full narrative description of the analyses, as well as the
methodologies underlying and the assumptions, qualifications and limitations affecting each
analysis, could create a misleading or incomplete view of Credit Suisses analyses.
Discounted Cash Flow Analysis
Credit Suisse performed a discounted cash flow analysis to calculate the estimated net present
value of the unlevered after-tax free cash flows that Terra could generate from calendar years 2010
through 2014, using projected financial information that was provided by Terras management, which
included adjustments for the projected impact of the Carseland Acquisition and excluded the
incremental estimated net present value of Terras Diesel Exhaust Fluid business (which we refer to
as DEF), which Credit Suisse calculated separately. For DEF, Credit Suisse separately calculated
the estimated net present value of the unlevered after-tax free cash flows that DEF could generate
from calendar years 2010 through 2015, using projected financial information that was provided by
Terras management forecasts. Credit Suisse calculated a range of estimated terminal values for
Terra by applying a range of terminal multiples of 4.5x to 7.5x to the average of Terras estimated
annual earnings before interest, taxes, depreciation and amortization (EBITDA) for the years 2010
through 2014 (and for the years 2010 through 2015 for the separate calculation of DEF). The
estimated free cash flows and terminal values were then discounted to present value using discount
rates ranging from 8.5% to 12.5%. The estimated free cash flows and terminal values of DEF were
separately discounted to present value using discount rates ranging from 10% to 25%.
These analyses indicated the following implied per share equity value reference range for
Terra common stock, as compared to the cash per share of Terra common stock to be received by the
holders of Terra common stock in the Merger:
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Cash per share of Terra common stock to be received |
Implied per Share Equity Value Reference Range for Terra |
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by the holders of Terra common stock in the Merger |
$27.72 to $46.89
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$41.10 |
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Selected Public Companies Analysis
Credit Suisse reviewed financial and stock market information of Terra and the following
selected publicly traded companies in the fertilizer industry located in North America and outside
of North America, respectively:
North America
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Agrium Inc. |
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CF Industries Holdings, Inc. |
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Intrepid Potash, Inc. |
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The Mosaic Company |
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Potash Corporation of Saskatchewan Inc. |
Outside of North America
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Incitec Pivot Limited |
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K+S Aktiengesellschaft |
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Yara International ASA |
Although none of the selected public companies is directly comparable to Terra, the companies
included were chosen because they are publicly traded companies with operations that, for purposes
of analysis, may be considered similar to certain operations of Terra.
Credit Suisse reviewed the multiples of the selected companies using closing stock prices as
of February 5, 2010, and information it obtained from public filings, publicly available research
analyst estimates and other publicly available information. Credit Suisse then applied a range of
enterprise value to estimated 2010 and 2011 EBITDA multiples for the selected public companies to
corresponding financial data for Terra, using EBITDA estimates provided by Terra management, which
included adjustments for the projected impact of the Carseland Acquisition. This analysis
indicated the following implied per share equity value reference range for Terra common stock, as
compared to the cash per share of Terra common stock to be received by the holders of Terra common
stock in the Merger:
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Cash per share of Terra common stock to be received |
Implied per Share Equity Value Reference Range for Terra |
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by the holders of Terra common stock in the Merger |
$30.69 to $47.55
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$41.10 |
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Selected Transactions Analysis
Credit Suisse reviewed certain transaction values and multiples in the following selected
publicly-announced (or proposed) transactions, which involved companies with businesses in the
fertilizer industry:
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Acquiror |
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Target |
Vale S.A.
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Fertilizantes Fofatados S.A. Fosfertil (Bunge
Ltd.s 42.3% stake) |
Agrium Inc.
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CF Industries Holdings, Inc. |
CF Industries Holdings, Inc.
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Terra Industries Inc. |
Yara International ASA
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Saskferco Products Inc. |
Incitec Pivot Limited
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Dyno Nobel Limited |
Yara International ASA
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Kemira Growhow Oyj |
Incitec Pivot Limited
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Southern Cross Fertilisers Pty Ltd |
Terra Industries Inc.
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Mississippi Chemical Corporation |
Cargill Inc.
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IMC Global Inc. |
IMC Global Inc.
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Harris Chemical Group, Inc. |
Terra Industries Inc.
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Imperial Chemical Industries PLCs fertilizer business |
Agrium Inc.
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Viridian Inc. |
Potash Corporation of Saskatchewan Inc.
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Arcadian Corporation |
While none of the selected transactions are directly comparable with the Merger, the selected
transactions involve companies with operations that, for purposes of analysis, may be considered
similar to certain operations of Terra.
Credit Suisse reviewed, among other things, the enterprise value to LTM EBITDA multiples
implied by the selected transactions for each of the target companies involved in the selected
transactions based on publicly available financial information with respect to those target
companies. The enterprise value for each of the target companies was based on the equity value of
those target companies implied by the applicable transaction. Credit Suisse then applied a range of
enterprise value to LTM EBITDA multiples from the target companies (other than
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Terra in the CF Industries Holdings, Inc. Terra proposal and CF Industries
Holdings, Inc. in the Agrium Inc. CF Holdings Industries, Inc. proposal) involved in the
selected transactions to the following financial data for Terra:
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2009E EBITDA |
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Average EBITDA from 2002-2008 |
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Peak EBITDA from 2002-2008 |
This analysis indicated the following implied per share equity reference range for Terra common
stock, as compared to the cash per share of Terra common stock to be received by the holders of
Terra common stock in the Merger:
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Cash per share of Terra common stock to be received |
Implied per Share Equity Value Reference Range for Terra |
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by the holders of Terra common stock in the Merger |
$12.74 $34.37
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$41.10 |
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Other Matters
Terra engaged Credit Suisse as its financial advisor in connection with the proposed Merger.
Terra selected Credit Suisse based on Credit Suisses qualifications, experience and reputation,
and its familiarity with Terra and its business. Credit Suisse is an internationally recognized
investment banking firm and is regularly engaged in the valuation of business and securities in
connection with mergers and acquisitions, leveraged buyouts, negotiated underwritings, competitive
biddings, secondary distributions of listed and unlisted securities, private placements and
valuations for corporate and other purposes. Pursuant to Terras engagement letter with Credit
Suisse, Terra has agreed to pay Credit Suisse a customary fee for its services in connection with
the Merger, a significant portion of which is contingent upon consummation of the Merger. Credit
Suisse also became entitled to a fee upon the rendering of its opinion. Terra has also agreed to
reimburse Credit Suisse for certain expenses and to indemnify Credit Suisse and certain related
parties for certain liabilities and other items arising out of or relating to Credit Suisses
engagement.
Credit Suisse and its affiliates have in the past provided investment banking and other
financial services to Terra and its affiliates, for which Credit Suisse and its affiliates have
received compensation, including having acted as (i) financial advisor to Terra in connection with
the consideration of various proposals made in 2009 by CF Industries Holdings, Inc. for a business
combination with Terra, (ii) financial advisor to Terra in 2008 in connection with the review of
Terras strategic alternatives (which alternatives included a potential transaction involving
Yara), and (iii) joint lead managing underwriter in connection with the 2009 offering by a
subsidiary of Terra of $600,000,000 of 7.75% Senior Notes due 2019. Credit Suisse and its
affiliates may in the future provide financial advice and services to Terra, Yara and their
respective affiliates or any company that may be involved in the Merger for which Credit Suisse and
its affiliates would expect to receive compensation. Credit Suisse is a full service securities
firm engaged in securities trading and brokerage activities as well as providing investment banking
and other financial services. In the ordinary course of business, Credit Suisse and its affiliates
may acquire, hold or sell, for Credit Suisses and its affiliates own accounts and the accounts of
customers, equity, debt and other securities and financial instruments (including bank loans and
other obligations) of Terra, Yara and any other company that may be involved in the Merger, as well
as provide investment banking and other financial services to such companies.
Financing
Pursuant to the Merger Agreement, Yara is obligated to use its reasonable best efforts to
arrange financing that is sufficient to permit Yara and Merger Sub to complete the Merger and the
other transactions contemplated by the Merger Agreement.
Yara intends that the Merger Consideration and the other funds necessary to consummate the
transactions contemplated by the Merger Agreement will be partly financed through the Rights Issue
and partly through other sources of financing. The Rights Issue will not be registered in the
United States and therefore the securities issued
in the Rights Issue will not be offered or sold in the United States absent registration or an
applicable exemption from the registration requirements.
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Holders of Yara shares and certain other persons will have preemptive rights to subscribe for
shares in the Rights Issue in accordance with Yaras articles of association and the Norwegian
Public Limited Liability Companies Act. The subscription rights will be tradable and listed on the
Oslo Stock Exchange. Yaras largest shareholder, the Norwegian Government, which has a 36.21%
ownership interest in Yara, has stated its intention, subject to Norwegian parliamentary approval
(which Yara expects will be obtained during April 2010), to subscribe for its pro rata share of the
Rights Issue. The National Insurance Fund, Folketrygdfondet, which has a 6.57% ownership interest
in Yara, has entered into an agreement with Yara to underwrite and subscribe for its pro rata share
of the Rights Issue. The remaining portion of the Rights Issue is underwritten by a syndicate of
international and regional investment banks, subject to customary terms and conditions and the
Norwegian Government and Folketrygdfondet subscribing for their pro rata shares of the Rights
Issue.
The Rights Issue is currently supported by a commitment letter and a term sheet for a bridge
loan of $2.5 billion (the Bridge Loan) with the same investment banks underwriting the Rights
Issue acting as bookrunners and mandated lead arrangers. The lenders under the definitive
documents relating to the Bridge Loan will be the three mandated lead arrangers. Yara currently
intends to utilize the Bridge Loan if the Rights Issue is delayed, cancelled or terminated.
Yara has not yet committed to any specific financing to fund the remaining portion of the
Merger Consideration and the other funds necessary to consummate the transactions contemplated by
the Merger Agreement. Yara has undrawn committed loan agreements in place of $1.5 billion and
expects cash receipts during the second quarter of 2010 of approximately $620 million from a
divestiture.
The closing of the Merger is not conditioned on the receipt of the financing by Yara. Yara,
however, is not obligated to complete the Merger until the expiration of the Marketing Period.
Delisting and Deregistration of Terras Common Stock
If the Merger is completed, our common stock will be delisted from the New York Stock Exchange
and deregistered under the Exchange Act, and we will no longer file periodic reports with the SEC.
Litigation Concerning the Merger
On February 19, 2010, Philip Perlman filed a putative class action complaint in the Iowa
District Court for Woodbury County against Terra, our directors, certain of our officers, Yara and
Merger Sub. The complaint generally alleges that the consideration to be received by our
stockholders in connection with the Merger is inadequate and that the individual defendants
breached their fiduciary duties of care and loyalty by, among other things, approving the Merger on
the basis of such allegedly inadequate consideration and under certain circumstances of certain
alleged self-dealing. The complaint further alleges that we, Yara and Merger Sub aided and abetted
the individual defendants in the breach of their fiduciary duties to our stockholders by entering
into the Merger Agreement. The complaint seeks injunctive relief: (i) declaring the Merger
Agreement to have been entered into in breach of the fiduciary duties of the individual defendants,
and therefore unlawful and unenforceable; (ii) enjoining the defendants from proceeding with the
Merger, unless we implement procedures to obtain the highest possible price for our stockholders;
and (iii) directing the individual defendants to obtain a transaction which is in the best
interests of our stockholders. The complaint also seeks to recover costs and disbursements from
the defendants, including reasonable attorneys and experts fees. The lawsuit is in a preliminary
stage. Terra and Yara each believe that the lawsuit is without merit and intend to defend it
vigorously.
On February 22, 2010, James Lindsay filed a putative class action complaint in the Iowa
District Court for Woodbury County against Terra, our directors, certain of our officers, Yara and
Merger Sub. The complaint generally alleges that the consideration to be received by our
stockholders in connection with the Merger is inadequate and that the individual defendants
breached their fiduciary duties of care and loyalty by, among other things, approving the Merger on
the basis of such allegedly inadequate consideration and under certain circumstances of certain
alleged self-dealing. The complaint further alleges that Yara and Merger Sub aided and abetted the
individual defendants in the breach of their fiduciary duties to our stockholders by entering into
the Merger Agreement. The complaint seeks injunctive relief: (i) declaring the Merger Agreement
to have been entered into in breach of the fiduciary duties of the individual defendants, and
therefore unlawful and unenforceable; (ii) enjoining the defendants from proceeding with the
Merger, unless we implement procedures to obtain the highest
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possible price for our stockholders; and (iii) directing the individual defendants to obtain a transaction which is in the best
interests of our stockholders. The complaint also seeks to recover costs and disbursements from
the defendants, including reasonable attorneys and experts fees. The lawsuit is in a preliminary
stage. Terra and Yara each believe that the lawsuit is without merit and intend to defend it
vigorously.
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INTERESTS OF CERTAIN PERSONS IN THE MERGER
Overview
Terras directors and executive officers will receive the Merger Consideration, without
interest and less any applicable taxes required to be withheld, for each vested share of Terra
common stock that they own as of the effective time of the Merger in the same manner as other
stockholders. For information regarding beneficial ownership of Terras common stock held by
Terras directors and certain executive officers, please see Security Ownership of Directors, Management and
Certain Beneficial Owners, beginning on page 56. The Merger Agreement also allows directors to
receive their regularly scheduled annual grants of vested shares of Terra common stock in August
2010 if the Merger has not been completed prior to that time.
Aside from their interests as Terra stockholders, Terras directors and executive officers
have interests in the Merger that may be different from, or in addition to, those of other Terra
stockholders generally. In considering the recommendation of our board of directors that you
approve the Merger, you should be aware of these interests. The members of our board of directors
were aware of and considered these interests, among other matters, in making its decision. As
described in more detail below, the interests of Terras executive officers in the Merger that are
different from, or in addition to, those of other Terra stockholders consist of:
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the accelerated vesting of Terra restricted stock awards and
Performance Share Awards, and the cancellation of such awards in exchange
for cash, at the effective time of the Merger; |
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the fixing of the performance metric under Terras annual
incentive compensation plan at the effective time of the Merger at the
greater of (i) target performance and (ii) actual performance during the
quarters completed through the effective time of the Merger; |
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the receipt of certain payments and benefits under the executive
officers employment severance agreements, as well as prorated bonuses
under Terras annual incentive compensation plan, upon certain types of
terminations of employment following the Merger; |
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the receipt of gross-up payments to make the executive officers
whole for any excise tax imposed as a result of Section 280G of the Code
on any compensation received; |
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the funding of a rabbi trust with respect to certain executive
officers supplemental retirement benefits; and |
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the continuation of certain compensation and benefits until
December 31, 2011 pursuant to the terms of the Merger Agreement. |
In addition to these interests, the Merger Agreement requires Yara to cause the Surviving
Corporation to indemnify all current and former directors and officers of Terra to the fullest
extent permitted by law for acts or omissions occurring at or prior to the effective time of the
Merger and to honor all existing rights to indemnification in favor of such directors and officers.
The dates used below to quantify these interests have been selected for illustrative purposes
only. They do not necessarily reflect the dates on which certain events will occur.
Equity Awards
Terras executive officers hold restricted stock awards and Performance Share Awards. As
described under The Merger AgreementEffect on Restricted Stock, Phantom Units, Performance
Shares and Phantom Performance Shares, beginning on page 43, each share of restricted stock that
remains outstanding as of immediately prior to the effective time of the Merger, including those
held by Terras executive officers, will become fully vested at the effective time and will be
converted into the right to receive the Merger Consideration,
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without interest and less any applicable taxes required to be withheld. Each Performance
Share Award that remains outstanding as of immediately prior to the effective time of the Merger,
including those held by Terras executive officers, will be canceled at the effective time, and the
holder of such Performance Share Award will be entitled to receive a cash payment equal to the
product of:
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the greater of (i) the number of shares of Terra common stock subject
to such Performance Share Award based on Terras actual performance
calculated during the quarters completed through the effective time of
the Merger and (ii) the target number of shares of Terra common stock
subject to such Performance Share Award; and |
|
|
|
|
the Merger Consideration. |
Such amount will be payable to such holder, without interest and less any applicable taxes required
to be withheld, as promptly as practicable following the effective time of the Merger.
The following table summarizes the restricted stock and Performance Share Awards held by our
executive officers that will be outstanding as of the effective time of the Merger, and the
consideration that each executive officer will receive pursuant to the Merger Agreement in
connection with the cancellation of such awards, assuming for these purposes that (i) the effective
time of the Merger occurs on June 15, 2010, (ii) Performance Share Awards granted for the 2008-2010
and 2009-2011 performance cycles will vest at 200% of target and (iii) Performance Share Awards
granted for the 2010-2012 performance cycle will vest at 100% of target.
|
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|
|
|
|
|
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|
|
|
|
|
|
|
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|
Value of Shares |
|
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|
|
|
|
|
|
|
|
Number of Shares |
|
Underlying |
|
|
|
|
|
Value of |
|
Aggregate |
|
|
Underlying |
|
Performance |
|
Number of |
|
Restricted |
|
Equity Award |
Executive Officers |
|
Performance Share Awards |
|
Share Awards |
|
Restricted Shares |
|
Shares |
|
Consideration |
Michael L. Bennett |
|
|
256,300 |
|
|
$ |
10,533,927 |
|
|
|
58,000 |
|
|
$ |
2,383,800 |
|
|
$ |
12,917,727 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Daniel D. Greenwell |
|
|
47,149 |
|
|
$ |
1,937,830 |
|
|
|
21,200 |
|
|
$ |
871,320 |
|
|
$ |
2,809,150 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
John W. Huey |
|
|
37,893 |
|
|
$ |
1,557,411 |
|
|
|
17,800 |
|
|
$ |
731,580 |
|
|
$ |
2,288,991 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Joseph D. Giesler |
|
|
31,703 |
|
|
$ |
1,303,009 |
|
|
|
15,100 |
|
|
$ |
620,610 |
|
|
$ |
1,923,619 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Richard S. Sanders Jr. |
|
|
32,046 |
|
|
$ |
1,317,080 |
|
|
|
14,900 |
|
|
$ |
612,390 |
|
|
$ |
1,929,470 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Joe A. Ewing |
|
|
31,561 |
|
|
$ |
1,297,157 |
|
|
|
14,500 |
|
|
$ |
595,950 |
|
|
$ |
1,893,107 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Douglas M. Stone |
|
|
37551 |
|
|
$ |
1,543,339 |
|
|
|
16,400 |
|
|
$ |
674,040 |
|
|
$ |
2,217,379 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Earl B. Smith |
|
|
28,153 |
|
|
$ |
1,157,069 |
|
|
|
8,400 |
|
|
$ |
345,240 |
|
|
$ |
1,502,309 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Geoffrey J. Obeney |
|
|
26,741 |
|
|
$ |
1,099,042 |
|
|
|
7,900 |
|
|
$ |
324,690 |
|
|
$ |
1,423,732 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Edward J. Dillon |
|
|
19,469 |
|
|
$ |
800,196 |
|
|
|
10,000 |
|
|
$ |
411,000 |
|
|
$ |
1,211,196 |
|
33
Employment Severance Agreements
Terra has entered into individual employment severance agreements with certain officers and
key employees, including all of our executive officers, that provide for certain payments and
benefits upon a termination of employment by Terra without cause or by the employee for good reason
(as described below) any time within the 24 months following a change in control, such as the
Merger.
Under the employment severance agreements with Terras executive officers, good reason
following a change in control means (i) a failure to pay the executive officer any compensation
when due, (ii) a delivery by Terra of a notice of intent to terminate the executive officers
employment for any reason, other than for cause or permanent disability, (iii) a 10% or greater
reduction in base salary or target bonus, (iv) a relocation of the executive officers principal
place of employment by more than 50 miles, (v) a material diminution in titles, duties,
responsibilities or status, (vi) a removal from any of the offices held immediately prior to the
effective time of the change in control or (vii) a material reduction in retirement, insurance or
fringe benefits.
The employment severance agreements for the executive officers provide for the following
payments and benefits upon a qualifying termination:
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a lump-sum cash payment equal to two times the sum of (i) the executive
officers then-current annual base salary and (ii) the executive officers target
cash annual incentive opportunity for the year of termination; |
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|
continuation of company-paid medical and dental benefits for up to 24
months; |
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acceleration of vesting of any unvested equity-based awards; |
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outplacement services for one year; and |
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|
crediting of two years of additional age and service credit under Terras
Excess Benefit Plan (the SERP) for those executive officers who participate in
the SERP (only Messrs. Bennett, Giesler and Sanders participate in the SERP). |
Pursuant to the employment severance agreements, an executive officer will not be entitled to
the payments and benefits described above unless he executes and does not revoke a release of
claims in favor of Terra. Executive officers will also be subject to non-competition and
non-solicitation covenants for one year following termination of employment.
In addition, each executive officer is entitled to a gross-up payment to make him whole for
any excise tax imposed as a result of Section 280G of the Code on any of his compensation.
Based on compensation and benefit levels as of February 22, 2010 and assuming that the Merger
is consummated on June 15, 2010 and that each executive officer experiences a qualifying
termination of employment at that time, the executive officers would be entitled to receive the
following cash severance payments and other benefits under their employment severance agreements.
|
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|
|
|
|
|
|
|
|
|
|
Continuation |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
of Medical and |
|
|
Addition Age and |
|
|
|
|
|
|
|
|
|
|
|
|
Cash |
|
|
Dental |
|
|
Service Credit |
|
|
Outplacement |
|
|
280G Tax |
|
|
|
|
Executive Officer |
|
Severance |
|
|
Benefits (1) |
|
|
under SERP (2) |
|
|
Services (3) |
|
|
Gross-Up (4) |
|
|
Total |
|
Michael L. Bennett |
|
$ |
3,500,000 |
|
|
$ |
23,753 |
|
|
$ |
473,383 |
|
|
$ |
84,000 |
|
|
$ |
|
|
|
$ |
4,081,136 |
|
Daniel D. Greenwell |
|
$ |
1,330,000 |
|
|
$ |
29,674 |
|
|
$ |
|
|
|
$ |
45,600 |
|
|
$ |
|
|
|
$ |
1,405,274 |
|
John W. Huey |
|
$ |
911,550 |
|
|
$ |
18,346 |
|
|
$ |
|
|
|
$ |
36,462 |
|
|
$ |
830,985 |
|
|
$ |
1,797,343 |
|
34
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Continuation |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
of Medical and |
|
|
Addition Age and |
|
|
|
|
|
|
|
|
|
|
|
|
Cash |
|
|
Dental |
|
|
Service Credit |
|
|
Outplacement |
|
|
280G Tax |
|
|
|
|
Executive Officer |
|
Severance |
|
|
Benefits (1) |
|
|
under SERP (2) |
|
|
Services (3) |
|
|
Gross-Up (4) |
|
|
Total |
|
Joseph D. Giesler |
|
$ |
790,400 |
|
|
$ |
18,346 |
|
|
$ |
99,164 |
|
|
$ |
29,640 |
|
|
$ |
|
|
|
$ |
937,550 |
|
Richard S. Sanders Jr. |
|
$ |
806,400 |
|
|
$ |
23,753 |
|
|
$ |
81,204 |
|
|
$ |
30,240 |
|
|
$ |
|
|
|
$ |
941,597 |
|
Joe A. Ewing |
|
$ |
816,000 |
|
|
$ |
29,674 |
|
|
$ |
|
|
|
$ |
30,600 |
|
|
$ |
|
|
|
$ |
876,274 |
|
Douglas M. Stone |
|
$ |
1,050,000 |
|
|
$ |
29,674 |
|
|
$ |
|
|
|
$ |
36,000 |
|
|
$ |
907,831 |
|
|
$ |
2,023,505 |
|
Earl B. Smith |
|
$ |
686,400 |
|
|
$ |
23,752 |
|
|
$ |
|
|
|
$ |
27,456 |
|
|
$ |
639,527 |
|
|
$ |
1,377,135 |
|
Geoffrey J. Obeney |
|
$ |
652,050 |
|
|
$ |
23,753 |
|
|
$ |
|
|
|
$ |
26,082 |
|
|
$ |
666,027 |
|
|
$ |
1,367,912 |
|
Edward J. Dillon |
|
$ |
649,200 |
|
|
$ |
29,674 |
|
|
$ |
|
|
|
$ |
25,968 |
|
|
$ |
684,159 |
|
|
$ |
1,389,001 |
|
|
|
|
(1) |
|
Terra determined the value of medical and dental benefits based on assumptions used for financial
reporting purposes under ASC 715, Compensation Retirement Benefits. |
|
(2) |
|
Terra determined these amounts by adding two years of credited service to the December 31, 2009 total
pension benefit (i.e., sum of tax qualified pension and SERP) for the executive officer and then
determined the present value of that accrued benefit deferred to the date the executive officer reaches
the age of 63, which is the earliest age at which unreduced pension benefits would be available to the
executive officer with an extra two years of age. |
|
(3) |
|
Terra determined the value of post-termination outplacement services based on a value equal to
approximately 12% of the executive officers annual base salary as of February 22, 2010. |
|
(4) |
|
Terra determined the amount of the excise tax payment by multiplying by 20% the excess parachute
payments that would arise as a result of Section 280G of the Code in connection with the Merger. Terra
utilized the following key assumptions to determine the executive officers tax gross-up payments: |
|
|
|
based on Terras performance as of February 22, 2010, Performance Share Awards granted for the
2008-2010 performance cycle and the 2009-2011 performance cycle are currently expected to vest at 200% of
target. Therefore, the amount of excise tax with respect to such Performance Share Awards was calculated
assuming that all performance goals with respect to such Performance Share Awards had already been met at
the 200% level. The result is that the amount of the excise tax attributable to both such Performance
Share Awards and the restricted shares is based solely on the value of accelerated vesting and the lapse
of the obligation to perform future services. Since Terras performance for the 2010-2012 performance
cycle is not yet predictable, the amount of the excise tax with respect to the Performance Share Awards
granted for such cycle was calculated based on the full value for such awards; |
|
|
|
|
a statutory federal income tax rate of 35% and a Medicare tax rate of 1.45%; |
|
|
|
|
each executive officers Section 280G base amount was determined based on average W-2
compensation for the period from 2005 through 2009 (or the period of the executive officers employment
with Terra, if shorter); and |
|
|
|
|
the interest rate assumption was 120% of the applicable federal rate as of February 22, 2010. |
Annual Incentive Compensation
Under Terras 2010 Officers and Key Employees Annual Incentive Plan, upon a change in control,
such as the Merger, the performance metric used to calculate the cash awards will become fixed at
the greater of (i) target performance and (ii) actual performance during the quarters completed
through the effective time of the change in control. A participant who remains employed through
December 31, 2010 will receive his or her full bonus under the plan calculated in such manner. If
a participants employment is terminated following the effective time of the Merger without cause
or for good reason (defined as in the employment severance agreements), the participant will be
entitled to a prorated bonus for 2010 through the participants termination date. Each of Terras
executive officers currently participates in the 2010 Officers and Key Employees Annual Incentive
Plan.
35
Based on compensation levels as of February 22, 2010 and assuming that (i) the Merger is
completed on June 15, 2010, (ii) each executive officer experiences a qualifying termination of
employment at that time and (iii) actual performance during the quarters completed through the
effective time of the Merger is less than or equal to target performance, the executive officers
would be entitled to receive the following prorated bonus payments under the 2010 Officers and Key
Employees Annual Incentive Plan.
36
|
|
|
|
|
Executive Officer |
|
Prorated Bonus |
Michael L. Bennett |
|
$ |
475,962 |
|
|
|
|
|
|
Daniel D. Greenwell |
|
$ |
129,190 |
|
|
|
|
|
|
John W. Huey |
|
$ |
68,867 |
|
|
|
|
|
|
Joseph D. Giesler |
|
$ |
67,179 |
|
|
|
|
|
|
Richard S. Sanders Jr. |
|
$ |
68,538 |
|
|
|
|
|
|
Joe A. Ewing |
|
$ |
69,354 |
|
|
|
|
|
|
Douglas M. Stone |
|
$ |
101,992 |
|
|
|
|
|
|
Earl B. Smith |
|
$ |
51,857 |
|
|
|
|
|
|
Geoffrey J. Obeney |
|
$ |
49,262 |
|
|
|
|
|
|
Edward J. Dillon |
|
$ |
49,074 |
|
Rabbi Trust
Terra maintains a rabbi trust, which is intended to provide a source of funds to assist
Terra in meeting its liabilities under the SERP. No later than five days following the effective
time of a change in control, such as the Merger, Terra will be obligated to make an irrevocable
contribution to the trust in an amount such that the trust will, immediately following such
contribution, hold assets sufficient to pay each SERP participant or beneficiary, including Messrs.
Bennett, Giesler and Sanders, his or her accrued benefits under the SERP as of the effective time
of the change in control. The trustee has broad investment powers with respect to the trust assets,
but it may not invest in securities or obligations issued by Terra or any affiliate of Terra.
The following table shows the accrued benefits of each of Messrs. Bennett, Giesler and Sanders
under the SERP as of December 31, 2009.
|
|
|
|
|
Executive Officer |
|
Accrued Benefits |
Michael L. Bennett |
|
$ |
1,208,251 |
|
|
|
|
|
|
Joseph D. Giesler |
|
$ |
11,276 |
|
|
|
|
|
|
Richard S. Sanders Jr. |
|
$ |
6,549 |
|
Indemnification and Insurance
The Merger Agreement requires Yara to cause the Surviving Corporation to indemnify all current
and former directors and officers of Terra to the fullest extent permitted by law for acts or
omissions occurring at or prior to the effective time of the Merger and to honor all existing
rights to indemnification in favor of such directors and officers.
The Merger Agreement also requires Yara to cause the Surviving Corporation to maintain the
current directors and officers liability insurance (or substitute insurance of at least the same
coverage and amounts and on equal or
37
better terms) for six years following the effective time of the Merger. However, the
Surviving Corporation will not be required to pay premiums that on an annual basis exceed 300% of
the current annual aggregate premiums paid by Terra.
Benefit Arrangements with the Surviving Corporation
As described under The Merger AgreementEmployee Benefits, the Merger Agreement requires
Yara to continue to provide certain compensation and benefits through December 31, 2011 to Terra
employees, including the executive officers.
REGULATORY MATTERS
Completion of the Merger is subject to the following regulatory conditions: (i) any applicable
waiting periods under the HSR Act, the Canadian Competition Act and the Canada Transportation Act
must have expired or been terminated, (ii) any applicable approvals pursuant to the antitrust,
competition, trade regulation, foreign investment review or similar law of the European Union must
have been obtained and (iii) any review or investigation undertaken by CFIUS must have been
concluded and any action authorized pursuant to the Exon-Florio Amendment would not reasonably be
expected to materially adversely affect Yara and its subsidiaries, taken as a whole.
The HSR Act and related rules, the Canadian Competition Act and the relevant law of the
European Union (i.e., EC Regulation No. 139/2004 of January 20, 2004 on the control of
concentrations between undertakings) provide that transactions such as the Merger may not be
completed until specified information has been submitted to the relevant regulatory authorities
(i.e., the Federal Trade Commission and the Antitrust Division of the U.S. Department of Justice,
the Canadian Competition Bureau and the European Commission, respectively) and specified waiting
period requirements have been satisfied. Where applicable, the Canada Transportation Act requires
that a transaction may not be completed until specified information has been submitted to the
Canadian Minister of Transport and specified waiting period or approval requirements have been
satisfied.
DISSENTERS RIGHTS
Holders of Terras common stock are not entitled to dissenting stockholders appraisal rights
in connection with the Merger or any of the transactions contemplated by the Merger Agreement. The
MGCL does not provide for appraisal rights or other similar rights to stockholders of a corporation
in connection with a merger if, on the record date for determining stockholders entitled to vote on
the matter, the shares of the corporation are listed on a national securities exchange. On the
Record Date, Terras common stock was listed on the New York Stock Exchange, which is a national
securities exchange.
38
MATERIAL U.S. FEDERAL INCOME TAX CONSEQUENCES
The following describes generally the material United States federal income tax consequences
to U.S. holders (as defined below) of the receipt of cash in exchange for shares of our common
stock pursuant to the Merger. The summary is based on the Code, applicable current and proposed
United States Treasury Regulations, judicial authority and administrative rulings and practice, all
of which are subject to change, possibly with retroactive effect, and to differing interpretation.
For purposes of this discussion, the term U.S. holder means a beneficial owner of shares of
our common stock that is, for U.S. federal income tax purposes:
|
|
|
an individual who is a citizen or resident of the United States; |
|
|
|
|
a corporation (including any entity treated as a corporation for U.S. federal income tax
purposes) created or organized under the laws of the United States, any state thereof or
the District of Columbia; |
|
|
|
|
a trust (i) if a U.S. court is able to exercise primary supervision over the trusts
administration and one or more U.S. persons are authorized to control all substantial
decisions of the trust or (ii) it has a valid election in effect under applicable U.S.
Treasury Regulations to be treated as a U.S. person; or |
|
|
|
|
an estate, the income of which is subject to U.S. federal income tax regardless of its
source. |
A non-U.S. holder is a person (other than an entity or arrangement treated as a partnership)
that is not a U.S. holder.
This discussion assumes that U.S. holders hold the shares of our common stock as a capital
asset within the meaning of Section 1221 of the Code. This discussion does not address all aspects
of United States federal income taxation that may be relevant to holders in light of their
particular circumstances, or that may apply to holders that are subject to special treatment under
the United States federal income tax laws (including, for example, persons who are non-U.S.
holders, insurance companies, dealers in securities or foreign currencies, tax-exempt
organizations, financial institutions, mutual funds, partnerships or other pass-through entities
and persons holding our common stock through a partnership or other pass-through entity, United
States expatriates, persons who hold shares of our stock as part of a hedge, straddle, constructive
sale or conversion transaction, who are subject to the alternative minimum tax or who acquired our
common stock through the exercise of employee stock options or other compensation arrangements).
This discussion does not address the tax consequences to any person who actually or constructively
owns more than 5% of our common stock. In addition, the discussion does not address any tax
considerations under state, local or foreign laws or federal laws other than United States federal
income tax laws that may be applicable to our stockholders.
If an entity or arrangement treated as a partnership for U.S. federal income tax purposes
holds shares of our common stock, the tax treatment of a partner will generally depend on the
status of the partners and the activities of the partnership. If you are a partner in a partnership
holding shares of our common stock, you should consult your tax advisor.
Holders should consult their own tax advisors to determine the particular tax consequences to
them (including the application and effect of any state, local or foreign income and other tax
laws), of the receipt of cash in exchange for shares of our common stock pursuant to the Merger.
The receipt of cash in exchange for shares of our common stock pursuant to the Merger will be
a taxable transaction for United States federal income tax purposes (and may also be a taxable
transaction under applicable state, local, foreign and other tax laws). In general, a U.S. holder
who receives cash in exchange for shares of our common stock pursuant to the Merger will recognize
capital gain or loss equal to the difference, if any, between (i) the amount of cash received in
exchange for such shares and (ii) the holders adjusted tax basis in such shares. Such gain or loss
will be long-term capital gain or loss if the U.S. holders holding period of the shares of our
common stock is more than one year as of the date of the Merger. Long-term capital gains recognized
by U.S. holders that are not corporations generally are eligible for reduced rates of federal
income taxation. The deductibility of capital losses is subject to limitations. If a U.S. holder
acquired different blocks of our stock at different times or different
39
prices, such holder must determine its tax basis and holding period separately with respect to
each block of our stock.
Information Reporting and Backup Withholding
Payments of cash made to a U.S. holder may, under certain circumstances, be subject to
information reporting and backup withholding at the applicable rate (currently, 28%), unless the
stockholder or other payee (i) is a corporation or comes within other exempt categories and
demonstrates this fact or (ii) provides its correct tax identification number and otherwise
complies with the applicable requirements of the backup withholding rules. Backup withholding is
not an additional tax. Generally, any amounts withheld under the backup withholding rules can be
refunded or credited against a holders United States federal income tax liability, if any,
provided that the required information is furnished to the United States Internal Revenue Service
in a timely manner.
The foregoing discussion of certain material United States income tax consequences is included
for general information purposes only and is not intended to be, and should not be construed as,
legal or tax advice to any holder of shares of our common stock. Holders should consult their own
tax advisors to determine the particular tax consequences of the Merger to them (including the
application and effect of any state, local or foreign income and other tax laws).
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THE MERGER AGREEMENT
The following is a summary of the material terms of the Merger Agreement. However, because the
Merger Agreement is the primary legal document that governs the Merger, you should carefully read
the complete text of the Merger Agreement for its precise legal terms and other information that
may be important to you. The Merger Agreement is attached as Exhibit A to this proxy statement to
provide stockholders with information concerning the terms of the Merger Agreement. Information
about Terra is available in our Annual Reports on Form 10-K, our Quarterly Reports on Form 10-Q and
other documents filed with the SEC.
The Merger Agreement has been included in this proxy statement to provide you with information
regarding its terms, and we recommend that you read carefully the Merger Agreement in its entirety.
Except for its status as a contractual document that establishes and governs the legal relations
among the parties thereto with respect to the Merger, we do not intend for its text to be a source
of factual, business or operational information about Terra. The Merger Agreement contains
representations, warranties and covenants that are qualified by information in the confidential
disclosure letter referenced in the Merger Agreement that Terra delivered to Yara in connection
with the execution of the Merger Agreement. Representations and warranties may be used as a tool to
allocate risks between the respective parties to the Merger Agreement, including where the parties
do not have complete knowledge of all facts, instead of establishing such matters as facts.
Furthermore, the representations and warranties may be subject to different standards of
materiality applicable to the contracting parties, which may differ from what may be viewed as
material to stockholders. While we do not believe that the confidential disclosure letter contains
non-public information that applicable securities laws require us to publicly disclose (other than
information that has already been disclosed or is disclosed in this proxy statement), the
confidential disclosure letter does contain information that modifies, qualifies and creates
exceptions to the Merger Agreement, including to the representations and warranties of Terra.
Accordingly, you should not rely on the representations and warranties as characterizations of the
actual state of facts, because (i) they were only made as of the date of the Merger Agreement or a
prior, specified date, (ii) in some cases they are subject to materiality, material adverse
effect or knowledge qualifiers and (iii) they are modified in important part by the confidential
disclosure letter. The confidential disclosure letter contains information that has been included
in Terras prior public disclosures, as well as non-public information. Moreover, information
concerning the subject matter of the representations and warranties may have changed since the date
of the Merger Agreement, which subsequent information may or may not be fully reflected in Terras
public disclosures. Information about Terra can be found elsewhere in this proxy statement and in
such other public filings we make with the SEC, which are available without charge at www.sec.gov.
Form of the Merger
The Merger Agreement provides that at the effective time of the Merger, Merger Sub will be
merged with and into Terra. As a result of the Merger, the separate corporate existence of Merger
Sub will cease and Terra will continue as the Surviving Corporation following the Merger as an
indirect, wholly owned subsidiary of Yara. At the effective time of the Merger, all of the
property, rights, privileges, powers and franchises of Merger Sub will vest in the Surviving
Corporation, and all debts and obligations of Merger Sub will become the debts and obligations of
the Surviving Corporation.
Effective Time; Closing
The effective time of the Merger will occur at the time the articles of merger are duly filed
with and accepted for record by the State Department of Assessments and Taxation of Maryland, or at
such later time (not to exceed 30 days after such acceptance) that we and Yara specify in the
articles of merger. The Merger Agreement provides that the closing date will occur no later than
the third business day after all of the conditions to the Merger set forth in the Merger Agreement
have been satisfied or waived (or such other date as we and Yara may agree). However, Yara will
not be obligated to effect the closing until the earlier of (i) three business days after the
consummation of the Rights Issue and (ii) the date that is twenty-five business days after the date
the Terra Stockholder Approval is received, which earlier period we refer to in this proxy
statement as the Marketing Period.
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Charter and Bylaws
The charter of Terra, as in effect immediately prior to the effective time of the Merger, will
be amended and restated at the effective time of the Merger to be in the form attached as Exhibit A
to the Merger Agreement and will be the charter of the Surviving Corporation. The bylaws of Merger
Sub in effect immediately prior to the effective time of the Merger will be the bylaws of the
Surviving Corporation.
Directors and Officers
The directors and officers of Merger Sub in office immediately prior to the effective time of
the Merger will be the initial directors and officers of the Surviving Corporation. The directors
and officers will serve in accordance with the charter and bylaws of the Surviving Corporation.
Merger Consideration
The Merger Agreement provides that each share of common stock of Terra (other than shares
owned by Terra, Yara, Merger Sub, or any wholly owned subsidiary of Terra or Yara) issued and
outstanding immediately prior to the effective time of the Merger will be automatically cancelled
and cease to exist and will be converted into the right to receive the Merger Consideration, which
is equal to an amount in cash equal to $41.10 plus the Additional Per Share Consideration, if
any, without interest and less any applicable taxes required to be withheld.
The Merger Agreement defines Additional Per Share Consideration as the amount equal to (i)
if the Yara Stockholders Meeting occurs on or prior to May 13, 2010, zero; (ii) if the Yara
Stockholders Meeting occurs on or after May 14, 2010 but prior to May 21, 2010, $5 million divided
by the Fully Diluted Denominator (as defined in the following sentence); (iii) if the Yara
Stockholders Meeting occurs on or after May 21, 2010 but prior to May 28, 2010, $10 million divided
by the Fully Diluted Denominator; (iv) if the Yara Stockholders Meeting occurs on or after May 28,
2010 but prior to June 4, 2010, $20 million divided by the Fully Diluted Denominator; and (v) if
the Yara Stockholders Meeting occurs on or after June 4, 2010, the sum of (A) an amount equal to
$20 million divided by the Fully Diluted Denominator plus (B) for each subsequent seven day period
(or portion thereof) beginning on June 4, 2010, an amount equal to $15 million divided by the Fully
Diluted Denominator. The Merger Agreement defines Fully Diluted Denominator as the actual
number of shares of Terra common stock and Terra stock-based awards that are entitled to
receive the Merger Consideration upon the closing of the Merger pursuant to the terms of the Merger
Agreement.
At the effective time of the Merger, shares of common stock that are owned by Terra, Yara,
Merger Sub or any wholly owned subsidiary of Terra or Yara will automatically be cancelled and
cease to exist and no consideration will be delivered in exchange for those shares.
Exchange and Payment Procedures
Immediately after the effective time of the Merger, Yara will cause to be deposited with an
exchange agent (the Exchange Agent), who must be reasonably acceptable to us, cash in an amount
sufficient to pay the Merger Consideration and the equity award amounts due to each holder of
shares of our common stock or other equity holders. As soon as reasonably practicable after the
effective time of the Merger, Yara will cause the Exchange Agent to mail a letter of transmittal
and instructions to you and our other stockholders. The letter of transmittal and instructions will
tell you how to surrender your common stock certificates in exchange for the Merger Consideration.
You should not return your stock certificates with the enclosed proxy card, and you should not
forward your stock certificates to the Exchange Agent without a letter of transmittal.
You will not be entitled to receive the Merger Consideration until you surrender your stock
certificate or certificates to the Exchange Agent, together with a duly completed and executed
letter of transmittal and any other documents as may reasonably be required by the Exchange Agent.
The Merger Consideration may be paid to a person other than the person in whose name the
corresponding certificate is registered if the certificate is properly endorsed or is otherwise in
the proper form for transfer and the person requesting such delivery of the Merger
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Consideration pays to the Exchange Agent any required transfer or other similar taxes, or
establishes to the satisfaction of the Exchange Agent that such tax has been paid or is not
payable.
No interest will be paid or will accrue on the cash payable upon surrender of the stock
certificates or in respect of equity award amounts. Yara, Merger Sub, the Surviving Corporation or the Exchange Agent
will be entitled to deduct and withhold, and pay to the appropriate taxing authorities, any
applicable taxes from the Merger Consideration and the equity award amounts. Any sum which is
withheld and paid to a taxing authority by Yara, Merger Sub, the Surviving Corporation or the Exchange Agent will be
deemed to have been paid to the person with regard to whom it is withheld.
After the effective time of the Merger, there will be no further registration of transfers of
shares of Terra common stock outstanding prior to the effective time. If, after the effective time
of the Merger, certificates are presented to the Exchange Agent or Yara for transfer, they will be
cancelled and exchanged for the Merger Consideration.
None of Terra, Yara or Merger Sub will be liable to any person for any cash delivered to a
public official pursuant to any applicable abandoned property laws. Any portion of the Merger
Consideration or equity award amounts that remains unclaimed as of a date that is immediately prior
to such time as such amounts would otherwise escheat to or become property of any governmental
authority will, to the extent permitted by applicable law, become the property of Yara free and
clear of any claims or interest of any person previously entitled to the Merger Consideration or
equity award amounts.
If you have lost a certificate, or if it has been stolen or destroyed, then before you will be
entitled to receive the Merger Consideration, you will have to make an affidavit of that fact and,
if required by Yara, post a bond in such reasonable amount as Yara may direct as indemnity against
any claim that may be made against it with respect to that certificate.
Effect on Restricted Stock, Phantom Units, Performance Shares and Phantom Performance Shares
Immediately prior to the effective time of the Merger:
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each outstanding share of restricted stock will become fully vested pursuant to its
terms and will be converted into the right to receive the Merger
Consideration, without interest and less any applicable taxes required to be withheld; |
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each Phantom Unit will be cancelled and the holder thereof will be entitled to receive a
cash payment equal to the product of (i) the number of shares of common stock subject to
such Phantom Unit immediately prior to the effective time of the Merger and (ii) the Merger
Consideration, which amount will be payable to such holder, without interest and less any
applicable taxes required to be withheld, as promptly as practicable following the
effective time of the Merger; and |
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each Performance Share Award and each Phantom Performance Share Award will be cancelled
and the holder thereof will be entitled to receive a cash payment equal to the product of
(i) the greater of (A) the number of shares of common stock subject to such Performance
Share Award or Phantom Performance Share Award based on our actual performance calculated
during the quarters completed through the effective time of the Merger and (B) the target
number of shares of common stock subject to such Performance Share Award or Phantom
Performance Share Award and (ii) the Merger Consideration, which amount will be payable to
such holder, without interest and less any applicable taxes required to be withheld, as
promptly as practicable following the effective time of the Merger. |
Representations and Warranties
We make various representations and warranties in the Merger Agreement, including with respect
to, among other things:
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our, our subsidiaries and certain of our joint ventures proper organization, good
standing and qualification to do business; |
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our interests in our subsidiaries and joint ventures; |
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our capitalization, including in particular the number of shares of our common stock,
preferred stock and other equity-based interests; |
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our corporate power and authority to enter into the Merger
Agreement and to consummate the
Merger; |
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the approval by our board of directors of the Merger Agreement, the
Merger and the other transactions contemplated by the Merger
Agreement and the recommendation by our board of directors of the
Merger; |
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the inapplicability of anti-takeover statutes to the Merger; |
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the absence of violations of, or conflicts with, our, our subsidiaries and certain of
our joint ventures governing documents, applicable law or certain agreements as a result
of entering into the Merger Agreement and the consummation of the Merger; |
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the required consents and approvals of governmental entities in connection with our
entry into the Merger Agreement and our consummation of the transactions contemplated by
the Merger Agreement; |
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our and Terra Nitrogen Company, L.P.s (TNCLP) filings with the SEC since January 1,
2009, including the financial statements contained therein; |
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the absence of undisclosed liabilities; |
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the accuracy of this proxy statement and the information provided to Yara for inclusion
in the documents relating to the Yara Stockholder Approval and the Rights Issue; |
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the absence of a material adverse effect and certain other changes or events related
to us or our subsidiaries since January 1, 2009; |
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legal proceedings and judgments related to us and our subsidiaries; |
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our, our subsidiaries and certain of our joint ventures compliance with laws; |
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taxes; |
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our and our subsidiaries real property; |
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employment and labor matters affecting us or our subsidiaries, including matters
relating to our and our subsidiaries employee benefit plans; |
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our and our subsidiaries intellectual property; |
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contracts to which we or our subsidiaries are a party; |
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environmental matters affecting us and our subsidiaries; |
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our and our subsidiaries insurance policies; |
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the absence of any improper payments by us or our subsidiaries; |
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the receipt by our board of directors of an opinion from Credit Suisse; and |
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the absence of undisclosed brokers fees. |
For the purposes of the Merger Agreement, material adverse effect on Terra means any change,
development, event, occurrence, effect or state of facts that, individually or in the aggregate
with all such other changes, developments, events, occurrences, effects or states of facts is, or
is reasonably expected to be, materially adverse to
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the business, financial condition or results of operations of Terra, our subsidiaries and our
joint ventures, taken as a whole.
A material adverse effect will not have occurred, however, as a result of any change,
development, event, occurrence, effect or state of facts resulting from: (i) capital market
conditions generally or general economic conditions, including with respect to interest rates or
currency exchange rates, (ii) geopolitical conditions or any outbreak or escalation of hostilities,
acts of war or terrorism occurring after the date of the Merger Agreement, (iii) any hurricane,
tornado, flood, earthquake or other natural or man-made disaster occurring after the date of the
Merger Agreement, (iv) any change in applicable law, regulation or GAAP (or authoritative
interpretation thereof) which is proposed, approved or enacted on or after the date of the Merger
Agreement, (v) general conditions in the industries in which we and our subsidiaries operate, (vi)
the failure, in and of itself, of Terra to meet any internal or published projections, forecasts,
estimates or predictions with respect to revenues, earnings or other financial or operating
metrics, before, on or after the date of the Merger Agreement, or changes in the market price,
credit rating or trading volume of Terras securities after the date of the Merger Agreement (it
being understood that the underlying facts giving rise or contributing to such failure or change
may be deemed either alone or in combination to constitute, or be taken into account in determining
whether there has been a material adverse effect), (vii) changes in the price of natural gas,
nitrogen, urea, ammonia or any other product used or sold by us or any of our subsidiaries and
(viii) the announcement and pendency of the Merger Agreement and the transactions contemplated
thereby, including any lawsuit in respect of the Merger Agreement or the transactions contemplated
thereby, compliance with the covenants contained therein, and any loss of or change in relationship
with any customer, supplier, distributor, or other business partner, or departure of any employee
or officer, of Terra or any of our subsidiaries, except that in the cases of (i), (ii), (iii), (iv)
and (v), to the extent that Terra and our subsidiaries, taken as a whole, are materially
disproportionately affected thereby as compared with other participants in the industries in which
we and our subsidiaries operate (in which case the incremental disproportionate impact or impacts
may be deemed either alone or in combination to constitute, or be taken into account in determining
whether there has been, or is reasonably expected to be, a material adverse effect).
The Merger Agreement also contains various representations and warranties made by Yara and
Merger Sub, including with respect to, among other things:
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their proper organization, good standing and qualification to do business; |
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the purpose of formation and prior activities of Merger Sub; |
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their corporate or other power and authority to enter into the Merger Agreement and to
consummate the Merger and the other transactions contemplated by the Merger Agreement; |
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the approval by Yaras board of directors of the Merger Agreement, the Merger and the
other transactions contemplated by the Merger Agreement; |
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the absence of any violation of, or conflicts with, their governing documents, applicable
law or certain agreements as a result of entering into the Merger Agreement and the
consummation of the Merger; |
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the required consents and approvals of governmental entities in connection with their
entry into the Merger Agreement and their consummation of the transactions contemplated by
the Merger Agreement; |
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the accuracy of information supplied by them for inclusion in this proxy statement and
the accuracy of the documents relating to the Yara Stockholder Approval and the Rights
Issue; |
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legal proceedings and judgments relating to them; |
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the absence of undisclosed brokers fees; |
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the availability to them of sufficient funds as of the closing of the Merger to complete
the Merger and the other transactions contemplated by the Merger Agreement; and |
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withholding taxes. |
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For purposes of the Merger Agreement, a material adverse effect with respect to Yara means a
material adverse effect on the ability of Yara or Merger Sub to
consummate the Merger and the other
transactions contemplated by the Merger Agreement in accordance with the terms thereof.
The representations and warranties of each of the parties to the Merger Agreement will expire
upon the effective time of the Merger. You should be aware that these representations and
warranties made by Terra to Yara or by Yara and Merger Sub to Terra, as the case may be, are
subject to important limitations and qualifications agreed to by the parties to the Merger
Agreement or reflected in the confidential disclosure letter, may or may not be accurate as of the
date they were made and do not purport to be accurate as of the date of this proxy statement.
Conduct of Business Pending the Merger
From the date of the Merger Agreement until the effective time of the Merger or the
termination of the Merger Agreement, unless Yara otherwise consents in writing (which consent shall
not be unreasonably withheld or delayed), Terra and our subsidiaries will:
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conduct its business in all material respects in the ordinary course and in a manner
consistent with past practice; and |
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use commercially reasonable efforts to preserve intact its business organization and
goodwill and relationships with all governmental entities, customers, suppliers and others
having business dealings with it, to keep available the services of its current officers
and key employees and to maintain its current rights and franchises, in each case,
consistent with past practice. |
Terra also agreed that, until the effective time of the Merger, Terra will not, and will cause
its subsidiaries not to, take any of the following actions (subject to agreed exceptions) without
the prior written consent of Yara (which consent, subject to agreed
exceptions, shall not be unreasonably withheld or delayed):
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amend or modify any of the charter or bylaws or other constituent documents of Terra,
our subsidiaries or certain of our joint ventures; |
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(i) declare or pay any dividend or other distribution in respect of its capital stock,
other than the declaration and payment of regular quarterly cash dividends of $0.10 per
share for the fiscal quarters ended December 31, 2009 and March 31, 2010, (ii) split,
combine or reclassify any capital stock of Terra or our subsidiaries or issue, deliver, sell, grant, dispose of
or subject to a lien any capital stock or equity rights of Terra or
our subsidiaries or (iii) repurchase,
redeem, or otherwise acquire any capital stock or equity rights of Terra or our
subsidiaries, except, in each case, as otherwise agreed to in the Merger Agreement; |
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acquire any person or division, business, or equity interest of any person; |
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sell, lease, subject to a lien (other than permitted liens) or dispose of any material
assets or rights, other than as agreed to in the Merger Agreement; |
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(i) make any loans to or investments in any other person or (ii) incur, guarantee or
assume any indebtedness, in each case other than as agreed to in the Merger Agreement; |
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other than as set forth in Terras capital budget, or in connection with the repair or
replacement of the plant and equipment at the operating facilities of Terra or our
subsidiaries, make any capital expenditure in excess of $5 million individually or $10
million in the aggregate; |
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except (i) as required pursuant to the terms of any benefit plan, (ii) as required to
comply with applicable law or GAAP, (iii) as expressly permitted by the Merger Agreement or
(iv) solely with respect to (A) below, in the ordinary course of business, (A) amend or
otherwise modify in any material respect any benefit plan, (B) accelerate the payment or
vesting of benefits or amounts payable or to become payable under any benefit plan, (C)
terminate, establish or enter into any benefit plan, (D) grant any increase in the
compensation or benefits of directors, officers, employees or consultants of Terra or any
of our subsidiaries (except for increases in base salaries or hourly wages to certain
employees and subject to certain parameters and except for certain arrangements for newly
hired or promoted employees) or (E) hire any |
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employee with an annual base salary in excess of $130,000, except to replace an existing
employee of comparable compensation; |
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(i) settle any material claims or litigation, other than in the ordinary course of
business consistent with past practice or in accordance with the terms of any liability
reserved or disclosed in the most recent financial statements of Terra, (ii) cancel any
material indebtedness or (iii) waive or assign any claims or rights of material value; |
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except as required by applicable law or in the ordinary course of business, (i) make,
revoke or amend any material election relating to taxes, (ii) settle or compromise any
material proceeding relating to taxes or (iii) enter into a written and legally binding
material agreement with a taxing authority relating to taxes; |
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other than in the ordinary course consistent with past practice, (i) amend in any
material respect, waive any material right under or terminate certain
agreements of Terra or our subsidiaries
or (ii) enter into any new material agreement; |
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adopt or implement a plan of liquidation or dissolution, restructuring or
recapitalization of Terra or our subsidiaries; |
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change any method of financial accounting, except for such changes required by a change
in GAAP; |
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terminate or amend in any material respect, any material insurance policies covering
Terra or any of our subsidiaries; |
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other than in the ordinary course of business consistent with past practice, transfer,
abandon or otherwise dispose of any rights to any material intellectual property; or |
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authorize, resolve, agree or commit to do any of the foregoing. |
Financing; Cooperation of Terra
Yara has agreed to use its reasonable best efforts to (i) arrange financing that is sufficient
to permit Yara and Merger Sub to consummate the Merger and the other transactions contemplated by the
Merger Agreement and (ii) enter into, prior to the date of the Yara Stockholders Meeting, an
underwriting agreement with one or more financial institutions pursuant to which such financial
institutions will commit to underwrite the portion of the Rights Issue in excess of the pro rata
share of the Norwegian Ministry of Trade and Industry and the Norwegian National Insurance Scheme
Fund.
We have agreed to, and have agreed to cause our subsidiaries to, provide such assistance and
cooperation as may be reasonably requested by Yara and Merger Sub in connection with such
financing, including:
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furnishing to Yara and its representatives certain pertinent information with respect to
Terra, our subsidiaries and our joint ventures; |
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requesting that our independent accountants provide reasonable assistance to Yara or
Merger Sub; |
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providing reasonable cooperation with prospective investors, arrangers and lenders in
performing their due diligence; and |
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providing certain information relating to the indebtedness of Terra or our subsidiaries. |
No Solicitation of Transactions
We have agreed that we and our subsidiaries and our and their directors, officers, employees
and representatives will not, directly or indirectly:
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initiate or solicit or knowingly facilitate or encourage any inquiry or the making of
any proposal that constitutes a Takeover Proposal; or |
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continue, or otherwise participate in any discussions regarding, furnish to any person
any information or data or access to our properties with respect to, or otherwise cooperate
with or knowingly take any other action to facilitate, any proposal that constitutes a
Takeover Proposal. |
A Takeover Proposal means any third-party proposal or offer (other than the transactions
contemplated by the Merger Agreement) for a direct or indirect:
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merger, tender offer, exchange offer, binding share exchange, recapitalization,
reorganization, liquidation, dissolution, business combination or consolidation, or any
similar transaction involving Terra or our subsidiaries; |
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sale, lease exchange, mortgage, pledge, transfer or other acquisition or assumption of
15% or more of the fair value of the assets of Terra and our subsidiaries, taken as a
whole, in one or a series of related transaction; or |
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purchase, tender offer, exchange offer or other acquisition (including by way of merger,
consolidation, share exchange or otherwise) of beneficial ownership of securities
representing 15% or more of the voting power of Terras capital stock. |
Prior to the receipt of the Terra Stockholder Approval, we (and our subsidiaries and our and
their directors, officers, employees and representatives) are permitted, however, in response to a
bona fide written Takeover Proposal that (i) was made after the date of the Merger Agreement and
did not result from a material breach of the Merger Agreement and (ii) constitutes, or our board of
directors determines in good faith (after consultation with our outside counsel and financial
advisor) could reasonably be expected to result in, a Superior Proposal, to (A) provide access to
non-public information to the person making such Takeover Proposal and its representatives pursuant
to a confidentiality agreement not less restrictive than our confidentiality agreement with Yara
and (B) participate in discussions or negotiations with the person making such Takeover Proposal.
For purposes of the Merger Agreement, Superior Proposal means any bona fide written Takeover
Proposal that:
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if consummated, would result in a person acquiring, directly or indirectly, all or
substantially all of the voting power of Terras capital stock or all or substantially all of
the assets of Terra and our subsidiaries; and |
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our board of directors determines in good faith (after consultation with our outside
counsel and financial advisor) is reasonably expected to be consummated and is more
favorable to our stockholders than the Merger from a financial point of view, taking into
account all financial, regulatory, legal and other aspects of such proposal. |
We also have agreed that our board of directors may not, directly or indirectly, make a
Change in Company Recommendation, except prior to the receipt of the Terra Stockholder Approval
and in compliance with the procedures described below, our board of directors may:
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effect a Change in Company Recommendation if our board of directors determines, in good
faith (after consultation with outside counsel) that the failure to do so would be
inconsistent with its duties to the stockholders of Terra under applicable law; and |
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in response to a Superior Proposal that was made after the date of the Merger Agreement
and did not result from a material breach of the Merger Agreement, cause Terra to terminate
the Merger Agreement and concurrent with such termination, upon payment of the termination
fee described below (the Superior Proposal Termination Right), enter into a definitive
agreement with respect to such Superior Proposal. |
Prior to our board of directors making a Change in Company Recommendation or exercising our
Superior Proposal Termination Right:
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our board of directors first must provide prior written notice to Yara advising Yara
that it intends to take such action and such notice must contain a description of the
events, facts and circumstances giving rise to such action or the terms and conditions of
the Superior Proposal, as applicable; and |
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Yara must not make, within five business days after receipt of our notice, a proposal
that would, in the good faith determination of our board of directors (after consultation
with our outside counsel and financial advisor) (i) cause such events, facts and
circumstances to no longer form the basis for our board of directors to effect a Change in
Company Recommendation or (ii) be at least as favorable to Terra stockholders as such
Superior Proposal, as the case may be. |
For purposes of the Merger Agreement, Change in Company Recommendation means any action
whereby our board of directors or any committee thereof, directly or indirectly:
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withdraws, modifies, amends or qualifies, in a manner adverse to Yara, its
recommendation that our stockholders vote for the approval of the Merger; or |
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executes or enters into any letter of intent, memorandum of understanding, merger
agreement or other written agreement providing for a Takeover Proposal. |
We have also agreed:
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to immediately cease and cause to be terminated, and to cause our subsidiaries and our
and their directors, officers, employees and representatives to terminate, all existing discussions or negotiations with any
person conducted prior to signing the Merger Agreement with respect to any Takeover
Proposal, and request from each person who has executed a confidentiality agreement the
prompt return or destruction of any confidential information previously furnished in
connection therewith; |
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to advise Yara as promptly as practicable, and in any event within two business days,
after the receipt of any Takeover Proposal or any inquiry that could reasonably be expected
to lead to any Takeover Proposal of the identity of the person making any such Takeover
Proposal or inquiry and the material terms and conditions of any such Takeover Proposal or
inquiry; and |
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to keep Yara fully informed on a current basis of any such Takeover Proposal (including
any changes to the terms and conditions thereof). |
We refer to the foregoing in this proxy statement as the No Shop Covenant.
Employee Benefits
From the closing date of the Merger through December 31 of the calendar year following the
calendar year in which we close the Merger (the Continuation Period), the Surviving Corporation
will cause each individual who is employed by Terra and any of our subsidiaries immediately before
the effective time of the Merger (each, a Continuing Employee) to be provided with (i) base
compensation and bonus or incentive opportunities that are no less favorable in the aggregate than
the base compensation and bonus or incentive opportunities (including value attributable to
equity-based compensation) provided to such Continuing Employee immediately prior to the effective
time of the Merger and (ii) employee benefits that are substantially comparable in the aggregate to
those provided to such Continuing Employee immediately prior to the effective time of the Merger.
Further, the Surviving Corporation will recognize the service of each Continuing Employee prior to
the effective time of the Merger as if such service had been performed with Yara or its affiliates
(A) for all purposes under the Terra benefit plans, (B) for purposes of eligibility and vesting
under the employee benefit plans and programs of the Surviving Corporation or its affiliates other
than the Terra benefit plans and (C) for purposes of the determination of benefit accruals and
benefit levels with respect to vacation, paid time off and severance under any Surviving
Corporation or affiliate plans.
With respect to any welfare plan maintained by the Surviving Corporation or its affiliates in
which Continuing Employees are eligible to participate, the Surviving Corporation and its
affiliates will (i) waive all limitations as to
49
pre-existing conditions, exclusions and waiting periods and actively-at-work requirements with
respect to participation and coverage requirements applicable to such employees and (ii) provide
each Continuing Employee with credit for any co-payments and deductibles paid prior to the
effective time of the Merger.
From and after the effective time of the Merger, the Surviving Corporation and its affiliates
will assume, honor and continue during the Continuation Period all of the Terra benefit plans that
are employment, severance, retention and termination plans, policies, programs, agreements and
arrangements (including any change in control severance agreements). With respect to the annual
performance period in which the effective time of the Merger occurs, the Surviving Corporation and
its affiliates will (i) honor and continue in all material respects all cash incentive compensation plans maintained by
Terra, (ii) make payments to the Continuing Employees in accordance with the applicable material
terms of the incentive plans as in effect at the effective time of the Merger (subject to any plan
provision requiring an employee to remain continuously employed following the end of the relevant
performance period and up to the date that payments are made) and (iii) provide any Continuing
Employee whose employment is terminated without cause prior to the time at which such payments are
made with a prorated payment. During the Continuation Period, if the Surviving Corporation and its
affiliates terminate the employment of any Continuing Employee other than for cause, the Surviving
Corporation and its affiliates will pay to such Continuing Employee an amount equal to the greater
of (A) the severance benefits due under the applicable severance plan, policy or guidelines of the
Surviving Corporation then in effect and (B) the severance benefits that would have been due under
the applicable severance plan, policy, or guidelines of Terra or any of our subsidiaries
immediately prior to the effective time of the Merger.
Indemnification and D&O Insurance
The Merger Agreement requires Yara to cause the Surviving Corporation to indemnify all current
and former directors and officers of Terra to the fullest extent permitted by law for acts or
omissions occurring at or prior to the effective time of the Merger and to honor all existing
rights to indemnification in favor of such directors and officers.
The Merger Agreement also requires Yara to cause the Surviving Corporation to maintain the
current directors and officers liability insurance (or substitute insurance of at least the same
coverage and amounts and on equal or better terms) for six years following the effective time of
the Merger. However, the Surviving Corporation will not be required to pay premiums that on an
annual basis exceed 300% of the current annual aggregate premiums paid by Terra.
Obligations to Cause the Merger to Occur
The Merger Agreement requires Terra and Yara to use reasonable best efforts to satisfy the
conditions and complete the Merger, except that Yara is required to use best efforts to obtain any
clearance required under the HSR Act, any foreign competition laws or from CFIUS for the
consummation of the Merger, including by (i) committing to hold separate or sell or divest assets
of Yara or its subsidiaries or, after the closing of the Merger, Terra and our subsidiaries and
joint ventures, and (ii) conducting its business, or proposing to conduct the business of Terra or
our subsidiaries or joint ventures, in a specified manner. However, Yara is not required to agree
to take any such action that would reasonably be expected to have, individually or in the
aggregate, a material adverse effect on Terra.
Yara is also required to use its best efforts to resist any action or proceeding or injunction
that would prohibit, prevent, delay or restrict consummation of the Merger, including by taking any
of the foregoing actions.
Stockholders Meetings
The Merger Agreement requires each of Terra and Yara, as promptly as reasonably practicable,
to take all necessary actions to duly call, give notice of, convene and hold the Terra Stockholders
Meeting and the Yara Stockholders Meeting, as the case may be. However, Terra is obligated to use
its reasonable best efforts to hold the Terra Stockholders Meeting as promptly as practicable
following the Yara Stockholder Meeting. Except in limited circumstances when to do so would be
inconsistent with its duties to the stockholders of Terra under applicable law, our board of
directors has agreed to recommend that our stockholders vote in favor of the approval of the
Merger. Yaras board of directors has agreed to recommend that its stockholders vote in favor of
the Rights Issue.
50
The Merger Agreement also requires Yara and Terra to use best efforts to solicit their
respective stockholders to obtain the Yara Stockholder Approval and the Terra Stockholder Approval,
as the case may be.
Conditions to the Merger
The respective obligations of each party to effect the Merger are subject to the
satisfaction or waiver of the following conditions:
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Terra must have obtained the Terra Stockholder Approval; |
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Yara must have obtained the Yara Stockholder Approval; |
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there must be no law, order or injunction or other judgment by any governmental entity
enjoining, making illegal or otherwise prohibiting the consummation of the Merger; |
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the waiting period under the HSR Act, the Canadian Competition Act and the Canada
Transportation Act must have expired or been terminated and any applicable approvals
pursuant to the antitrust, competition, trade regulation, foreign investment review or
similar law of the European Union must have been obtained; |
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any review or investigation under the Exon-Florio Amendment must have been concluded, or
CFIUS or the President of the United States must have determined not to take action
authorized thereunder or have determined to take action that would not reasonably be
expected to materially adversely affect the business or operations of Yara and its
subsidiaries, taken as a whole; and |
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there must be no pending suits, actions or proceedings by any governmental entity that
seek to prohibit the consummation of the Merger, except where such suit, action or
proceeding would not reasonably be expected to have a material adverse effect on Terra. |
The obligations of Yara and Merger Sub to complete the Merger are also subject to satisfaction
or waiver of the following conditions:
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the representation with respect to the absence of a material adverse effect on Terra
must be true and correct in all respects as of the date of the Merger Agreement and as of
the date the Merger closes and the other representations and warranties of Terra in the
Merger Agreement (disregarding all qualifications or limitations as to materiality and
material adverse effect) must be true and correct as of the date of the Merger Agreement
and as of the date the Merger closes (other than representations and warranties that by
their terms speak as of another date, which representations and warranties must be true and
correct as of such date), except for any failures of such representations and warranties to
be true and correct that, individually or in the aggregate, do not have and are not
reasonably expected to result in a material adverse effect on Terra, provided that the
representations and warranties with respect to Terras capitalization, corporate authority,
board approval, stockholder voting requirements and anti-takeover statutes must be true and
correct in all material respects; |
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Terra must have performed or complied, in all material respects, with all of its
obligations under the Merger Agreement at or prior to the closing of the Merger; and |
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the outstanding shares of the Series A Preferred Stock must have been converted into shares of Terra common stock and there must be no shares of Series A Preferred Stock
outstanding. |
The obligations of Terra to complete the Merger are also subject to the satisfaction or waiver
of the following conditions:
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the representations and warranties of Yara and Merger Sub in the Merger Agreement
(disregarding all qualifications or limitations as to materiality and material adverse
effect) must be true and correct in all respects as of the date of the Merger Agreement
and as of the date the Merger closes (other than representations and warranties that by
their terms speak as of another date, which representations and |
51
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warranties must be true and correct as of such date), except for any failures of such
representations and warranties to be true and correct that, individually or in the
aggregate, do not have and are not reasonably expected to result in a material adverse
effect on Yara; and |
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each of Yara and Merger Sub must have performed or complied, in all material respects,
with all of their obligations under the Merger Agreement at or prior to the closing of the
Merger. |
Termination of the Merger Agreement
The Merger Agreement may be terminated at any time prior to the effective time of the Merger,
whether before or after the receipt of the Terra Stockholder Approval, as follows:
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by mutual written consent of Yara and Terra; |
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by either Yara or Terra, if: |
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the Merger has not been completed by September 30, 2010 (the Walk-Away Date);
provided that (i) the party seeking to terminate is not the primary cause of the
failure of the Merger to be completed by such date and (ii) if all of the conditions to
the Merger have been satisfied (other than the conditions with respect to injunctions,
antitrust and competition approvals, CFIUS review and suits by governmental entities in
connection with the Merger), the Walk-Away Date may be extended by either party to
December 31, 2010 (the Extended Walk-Away Date); |
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an injunction that prohibits the consummation of the Merger becomes final and
non-appealable; provided that the party seeking to terminate must have used its best
efforts to remove such restraint; |
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the Terra Stockholder Approval is not obtained at the Terra Stockholders Meeting; or |
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the Yara Stockholder Approval is not obtained at the Yara Stockholders Meeting. |
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we have breached any of our representations, warranties or covenants contained in
the Merger Agreement and the breach results in the failure of a condition to Yaras
obligation to close and is incapable of being cured by the Walk-Away Date or the
Extended Walk-Away Date (if applicable) or is not cured by the earlier of (i) 40
business days following written notice to Terra of such breach or (ii) the Walk-Away
Date or the Extended Walk-Away Date; |
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the board of directors of Terra (i) fails to recommend that Terra stockholders vote
to approve the Merger or include such recommendation in this proxy statement, (ii)
fails to publicly reaffirm such recommendation within 10 business days of a written
request by Yara to provide such reaffirmation or (iii) effects a Change in Company
Recommendation (we refer to the foregoing in this proxy statement as a Change in
Company Recommendation Termination); or |
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if Terra, any of our subsidiaries or any of our or their representatives has
materially breached the No Shop Covenant. |
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Yara or Merger Sub has breached any of its respective representations, warranties or
covenants contained in the Merger Agreement and the breach results in the failure of a
condition to Terras obligation to close and is incapable of being cured by the
Walk-Away Date or the Extended Walk-Away Date (if applicable) or is not cured by the
earlier of (i) 40 business days following written notice to Yara of such breach or (ii)
the Walk-Away Date or the Extended Walk-Away Date; or |
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in accordance with our Superior Proposal Termination Right. |
52
Fees and Expenses
We have agreed to pay to Yara a termination fee of $123 million if:
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the Merger Agreement is terminated by Yara pursuant to a Change in Company
Recommendation Termination; |
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the Merger Agreement is terminated by Terra in accordance with our Superior Proposal
Termination Right; |
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(i) the Merger Agreement is terminated (A) by either Yara or Terra because the Terra
Stockholder Approval is not obtained or (B) by Yara because Terra breached any of its
covenants to an extent that resulted in the failure of a closing condition and such breach
is not cured or Terra materially breached the No Shop Covenant and (ii) within six months
after termination, Terra enters into a definitive agreement to consummate, or consummates,
a Takeover Proposal for 50% or more of Terras stock or assets; or |
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(i) after the date of the Merger Agreement a Takeover Proposal for 50% or more of
Terras stock or assets (or an intention to make such a Takeover Proposal) is publicly
announced and not subsequently withdrawn, (ii) the Merger Agreement is then terminated (A)
by either Yara or Terra because the Merger is not completed by the Walk-Away Date or the
Extended Walk-Away Date (provided that all antitrust, competition and other regulatory
conditions have been satisfied), (B) by either Yara or Terra because the Terra Stockholder
Approval was not obtained at the Terra Stockholders Meeting or (C) by Yara because Terra
breached any of its representations, warranties or covenants to an extent that resulted in
the failure of a closing condition and such breach is not cured or Terra materially
breached the No Shop Covenant and (iii) within 18 months after termination, Terra enters
into a definitive agreement to consummate, or consummates, a Takeover Proposal. |
Amendment
The Merger Agreement may be amended by the parties at any time before or after the receipt of
the Terra Stockholders Approval or the Yara Stockholders Approval, but, after such approval, no
amendment may be made without further approval by such stockholders if and to the extent such
approval is required by law. The Merger Agreement may not be amended except by Terra, Yara and
Merger Sub in writing.
Enforcement
The Merger Agreement provides that disputes arising out of the Merger Agreement will be
subject to binding arbitration before the American Arbitration Association in Delaware. Any
arbitrators will be able to grant both specific enforcement and damage awards.
53
PROPOSAL 2 ADJOURNMENT OF THE SPECIAL MEETING
If at the time of the special meeting there are insufficient votes to approve the Merger under
Maryland law, the presiding officer of the special meeting may move to adjourn the special meeting
in order to enable our board of directors to continue to solicit additional proxies in favor of the
approval of the Merger. In that event, we will ask you to vote only upon the adjournment proposal
and not the proposal to approve the Merger.
In this proposal, we are asking you to authorize the holder of any proxy solicited by our
board of directors to vote in favor of adjourning the special meeting and any later adjournments.
If the stockholders approve the adjournment proposal, we could adjourn the special meeting, and any
adjourned session of the special meeting, to use the additional time to solicit additional proxies
in favor of the proposal to approve the Merger, including the solicitation of proxies from Terra
stockholders that have previously voted against the approval of the Merger. Among other things,
approval of the adjournment proposal could mean that, even if we had received proxies representing
a sufficient number of votes against the proposal to approve the Merger, we could adjourn the
special meeting without a vote on the proposal to approve the Merger and seek to convince the
holders of those shares to change their votes to votes in favor of the approval of the Merger.
Approval of this proposal to adjourn the special meeting for the purpose of soliciting
additional proxies requires the affirmative vote of a majority of the votes cast at the special
meeting. Abstentions and broker non-votes will have no effect on this proposal. If no instructions
are indicated on your proxy card, your shares will be voted FOR any adjournment of the special
meeting, if necessary or appropriate, to solicit additional proxies.
Our board of directors believes that if the number of shares of Terra common stock present or
represented at the special meeting and voting in favor of the proposal to approve the Merger is
insufficient to approve such proposal, it is in the best interests of Terra stockholders to enable
the board, for a limited period of time, to continue to seek to obtain a sufficient number of
additional votes to approve such proposal.
The board of directors recommends that you vote FOR any proposal to adjourn the special
meeting.
54
MARKET PRICE AND DIVIDEND DATA
Terras common stock is listed on the New York Stock Exchange under the symbol TRA. The
following table sets forth the high and low sale prices of our common stock for the indicated part
of our current fiscal year and for our 2009 and 2008 fiscal years, as reported on the New York
Stock Exchange.
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First Quarter |
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Second Quarter |
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Third Quarter |
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Fourth Quarter |
2010 |
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High |
|
$ |
36.47 |
* |
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Low |
|
$ |
31.36 |
* |
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2009 |
|
|
|
|
|
|
|
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|
|
|
|
|
|
|
|
High |
|
$ |
30.07 |
|
|
$ |
30.02 |
|
|
$ |
36.68 |
|
|
$ |
43.12 |
|
Low |
|
$ |
15.03 |
|
|
$ |
24.22 |
|
|
$ |
24.45 |
|
|
$ |
31.06 |
|
2008 |
|
|
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|
|
|
|
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|
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High |
|
$ |
52.98 |
|
|
$ |
55.10 |
|
|
$ |
55.72 |
|
|
$ |
28.40 |
|
Low |
|
$ |
35.53 |
|
|
$ |
35.36 |
|
|
$ |
26.63 |
|
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$ |
11.25 |
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* |
|
Through February 12, 2010. |
The closing sale price of our common stock on February 12, 2010, which was the last
trading day before we announced that we had entered into the Merger Agreement, was $33.25 per
share. On [ ] , 2010, the latest practicable date before the date of this proxy statement, the
closing price of our common stock was $[ ] per share.
As of [ ], 2010, there were approximately [ ] holders of record of our common stock.
Prior to May 2008, we had never paid a cash dividend on our common stock. In May 2008, Terra
began paying a quarterly cash dividend of $0.10 per common share. We declared a special cash
dividend of $7.50 per common share in October 2009 that was paid on December 11, 2009 to
stockholders of record as of November 23, 2009.
The Merger Agreement contains restrictions on our ability to declare and pay dividends on our
common stock (other than regular quarterly cash dividends of $0.10 per common share for the fourth
quarter of 2009, which was declared in February 2010 and is payable on April 7, 2010 to
stockholders of record as of March 17, 2010, and for the first quarter of 2010) prior to the
completion of the Merger. See The Merger AgreementConduct of the Business Pending the Merger,
beginning on page 46.
If the Merger is completed, our common stock will be delisted from the New York Stock
Exchange, there will be no further public market for shares of our common stock, and each share of
our common stock (other than shares of our common stock owned by Terra, Yara, Merger Sub or any
wholly owned subsidiary of Terra or Yara) will be automatically cancelled and cease to exist and
will be converted into the right to receive the Merger Consideration, without interest and less any
applicable taxes required to be withheld.
55
SECURITY OWNERSHIP OF DIRECTORS, MANAGEMENT AND CERTAIN BENEFICIAL OWNERS
The following table sets forth certain information with respect to the beneficial ownership of
shares of our common stock as of February 22, 2010, by each of our directors, certain of our
executive officers, all executive officers and directors as a group and beneficial owners known to
Terra of 5% or more of our outstanding common stock. Unless otherwise specified, the address for
each holder is c/o Terra Industries Inc., 600 Fourth Street, P.O. Box 6000, Sioux City, IA 51102.
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Amount of |
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Beneficial |
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Percent of |
Name and Address of Beneficial Owner |
|
Ownership(1) |
|
Class |
FMR LLC |
|
|
10,206,267 |
(2) |
|
|
10.2 |
% |
82 Devonshire Street |
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Boston, Massachusetts 60015 |
|
|
|
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|
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|
BlackRock Inc. |
|
|
5,879,699 |
(3) |
|
|
5.9 |
% |
55 East 52nd Street |
|
|
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|
New York, New York 10055 |
|
|
|
|
|
|
|
|
TPG-Axon Capital Management, LP |
|
|
5,000,000 |
(4) |
|
|
5.0 |
% |
888 Seventh Avenue |
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|
38th Floor |
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New York, New York 10019 |
|
|
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Michael L. Bennett, Director, President and Chief Executive Officer |
|
|
684,894 |
(5) |
|
|
* |
|
David E. Fisher, Director |
|
|
51,853 |
(6) |
|
|
* |
|
Dod A. Fraser, Director |
|
|
37,097 |
(6) |
|
|
* |
|
Martha O. Hesse, Director |
|
|
54,775 |
(6) |
|
|
* |
|
Peter S. Janson, Director |
|
|
25,547 |
(6) |
|
|
* |
|
James R. Kroner, Director |
|
|
25,647 |
(6) |
|
|
* |
|
John N. Lilly, Director |
|
|
5,055 |
(6) |
|
|
* |
|
Dennis McGlone, Director |
|
|
23,647 |
(6) |
|
|
* |
|
Hank R. Slack, Director |
|
|
50,221 |
(6) |
|
|
* |
|
David A. Wilson, Director |
|
|
5,055 |
(6) |
|
|
* |
|
Irving B. Yoskowitz, Director |
|
|
5,055 |
(6) |
|
|
* |
|
Joseph D. Giesler, Senior Vice President-Commercial Operations |
|
|
126,947 |
(7) |
|
|
* |
|
Daniel D. Greenwell, Senior Vice President and Chief Financial Officer |
|
|
109,661 |
(8) |
|
|
* |
|
John W. Huey, Vice President, General Counsel and Corporate Secretary |
|
|
58,313 |
(9) |
|
|
* |
|
Richard Sanders Jr., Vice President-Manufacturing |
|
|
117,675 |
(10) |
|
|
* |
|
Directors and Executive Officers as a group (20 persons) |
|
|
1,537,431 |
|
|
|
1.5 |
% |
|
|
|
|
* |
|
Less than 1% |
|
(1) |
|
The number of common shares listed does not include shares of the 4.25% Series A Cumulative
Convertible Perpetual Preferred Shares. |
|
(2) |
|
Based on the Schedule 13G filed by FMR LLC (FMR) with the SEC on February 10, 2010. FMR
reports that Fidelity Management & Research Company (Fidelity), a wholly-owned subsidiary of
FMR, is the beneficial owner of 8,544,400 shares of Terra common stock. It further reports
that FMRs beneficial ownership includes (i) 247,737 shares of Terra common stock beneficially
owned by Strategic Advisers, Inc., a wholly owned subsidiary of FMR, (ii) 1,082,990 shares of
Terra common stock beneficially owned by Pyramis Global Advisors, LLC (PGALLC), an indirect
wholly owned subsidiary of FMR, (iii) 279,170 shares of Terra common stock beneficially owned
by Pyramis Global Advisors Trust Company (PGATC), an indirect wholly owned subsidiary of
FMR, and (iv) 51,970 shares of Terra common stock beneficially owned by FIL Limited (FIL).
Edward C. Johnson 3d, Chairman of FMR and FIL, and FMR, through its control of Fidelity, each
has sole dispositive power over 8,544,400 shares of Terra common stock beneficially owned by
Fidelity. Mr. Johnson and FMR, through its control of PGALLC and PGATC, each has sole
dispositive power over (i) 1,082,990 shares of Terra common stock and sole power to vote or to
direct the |
56
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voting of 1,082,990 shares of Terra common stock owned by the institutional accounts or funds
advised by PGALLC and (ii) 279,170 shares of Terra common stock and sole power to vote or to
direct the voting of 256,500 shares of Terra common stock owned by the institutional accounts
managed by PGATC, respectively. Neither FMR nor Mr. Johnson has the sole power to vote or to
direct the voting of the shares owned directly by the above listed funds, which power resides
with the funds Boards of Trustees. FMR further reports that members of Mr. Johnsons family,
through their ownership of 49% of the voting power of FMR and the execution of a shareholders
voting agreement with all other Series B shareholders of FMR, may be deemed, under the
Investment Company Act of 1940, to form a controlling group with respect to FMR. Partnerships
controlled predominantly by members of Mr. Johnsons family own 47% of the total votes which
may be cast by all holders of FIL voting stock. |
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(3) |
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Based on the Schedule 13G filed by BlackRock Inc. (BlackRock) with the SEC on January 29,
2010, which indicates that BlackRock has sole voting and sole dispositive power over 5,879,699
shares of Terra common stock. BlackRock reports that on December 1, 2009, BlackRock completed
its acquisition of Barclays Global Investors NA from Barclays Bank PLC, and that as a result,
substantially all of the Barclays Global Investors entities are now included as subsidiaries
of BlackRock for purposes of Schedule 13G filings. |
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(4) |
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Based on the Schedule 13G/A filed by TPG-Axon Capital Management, LP (TPG-Axon Management)
with the SEC on February 16, 2010, which indicates that TPG-Axon Management shares voting and
dispositive power over 5,000,000 shares of Terra common stock. TPG-Axon Management reports
that it is an investment manager to TPG-Axon Partners, LP (TPG-Axon Domestic) and TPG-Axon
Partners (Offshore), Ltd. (TPG-Axon Offshore), has the power to direct the disposition and
voting of the shares held by TPG-Axon Domestic and TPG-Axon Offshore, and further that
TPG-Axon Partners GP, LP (PartnersGP) is the general partner of TPG-Axon Domestic and
TPG-Axon GP, LLC (GPLLC) is the general partner of PartnersGP and TPG-Axon Management. It
further reports that Dinakar Singh LLC (Singh LLC) is a Managing Member of GPLLC and that
Mr. Dinakar Singh is the Managing Member of Singh LLC and in such capacity may be deemed to
control Singh LLC, GPLLC and TPG-Axon Management, and therefore may be deemed the beneficial
owner of the securities held by TPG-Axon Domestic and TPG-Axon Offshore. |
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(5) |
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Includes 606,192 fully vested shares directly held, 18,921 shares indirectly held in Mr.
Bennetts 401(k) plan account, 1,781 shares indirectly held in Mr. Bennetts wifes 401(k)
plan account and 58,000 restricted shares directly held. |
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(6) |
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All shares are held directly by the director. |
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(7) |
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Includes 111,847 fully vested shares directly held and 15,100 restricted shares directly
held. |
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(8) |
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Includes 86,475 fully vested shares directly held, 1,986 shares indirectly held in Mr.
Greenwells 401(k) plan account and 21,200 restricted shares directly held.
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(9) |
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Includes 40,430 fully vested shares directly held, 83 shares indirectly held in Mr. Hueys
401(k) plan account and 17,800 restricted shares directly held. |
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(10) |
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Includes 102,775 fully vested shares directly held and 14,900 restricted shares directly
held. |
Change in Control
Except for the Merger Agreement, Terra is not aware of any arrangements, including any pledge
by any person of securities of Terra, the consummation or operation of which may at a subsequent
date result in a change of control of Terra.
57
FUTURE STOCKHOLDER PROPOSALS
If stockholders approve the Merger and the Merger is completed, we will no longer have any
public stockholders and we will not hold an annual meeting of stockholders in 2010. However, if the
Merger is not completed for any reason, our board of directors will establish the date for the 2010
annual meeting of stockholders. Stockholder proposals intended for submission at the 2010 annual
meeting of stockholders must be received by Terra at its principal executive offices on or before
June 15, 2010 to be eligible for inclusion in Terras proxy statement and accompanying proxy for
such meeting, unless the date of the 2010 annual meeting is changed by more than 30 days from
November 20, 2010, in which case the proposal must be received a reasonable time before we begin to
print and send our proxy materials for the 2010 annual meeting. If a stockholder intends to bring a
matter before the 2010 annual meeting other than by submitting a proposal for inclusion in the
proxy statement, the stockholder must give timely notice to Terra and otherwise satisfy the
requirements of the Exchange Act. To be timely, such notice must be received by the Corporate
Secretary at Terras principal executive offices not earlier than the close of business on July 23,
2010 and not later than the close of business on August 22, 2010, unless the 2010 annual meeting is
more than 30 calendar days before or more than 60 calendar days after November 20, 2010, in which
case the proposal must be received not earlier than the close of business on the 120th calendar day
prior to the date of the 2010 annual meeting and not later than the close of business on the later
of the 90th calendar day prior to the date of the 2010 annual meeting and the 10th calendar day
following the day on which we first publicly announce the date of the 2010 annual meeting.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements and other information with the
SEC. You may read and copy any reports, proxy statements or other information that we file with the
SEC at its Public Reference Room, 100 F Street, N.E., Washington, D.C. 20549. You may also obtain copies
of this information by mail from the Public Reference Room of the SEC, 100 F Street, N.E.,
Washington, D.C. 20549.
Please call the SEC
at 1-800-SEC-0330 for further information on the Public Reference Room.
Our public filings are also available to the public from document retrieval
services and the Internet website maintained by the SEC at www.sec.gov.
We incorporate by reference into this proxy statement any Current Reports on Form 8-K filed by
us pursuant to the Exchange Act after the date of this proxy statement and prior to the date of the
special meeting. This means that we can disclose important information to you by referring you to
those documents. The information incorporated by reference is considered to be a part of this proxy
statement, and later information that we file with the SEC will update and supersede that
information.
Information furnished under Items 2.02 and 7.01 of any Current Report on Form 8-K, including
related exhibits, is not and will not be incorporated by reference into this proxy statement.
Any person, including any beneficial owner, to whom this proxy statement is delivered may
request copies of proxy statements, reports and any of the documents incorporated by reference in
this document or other information concerning us, without charge, by written or telephonic request
directed to us at Terra Industries Inc., Investor Relations, Terra Centre, 600 Fourth Street, P.O.
Box 6000, Sioux City, IA 51102 or from the SEC through the SECs website at the address provided
above. Documents incorporated by reference are available without charge, excluding any exhibits to
those documents unless the exhibit is specifically incorporated by reference into those documents.
No persons have been authorized to give any information or to make any representations other
than those contained in this proxy statement and, if given or made, such information or
representations must not be relied upon as having been authorized by us or any other person. This
proxy statement is dated [ ], 2010. You should not assume that the information contained in this
proxy statement is accurate as of any date other than that date, and the mailing of this proxy
statement to stockholders shall not create any implication to the contrary.
This proxy statement is preliminary, and we intend to file a definitive proxy statement. We
encourage you to read the definitive proxy statement carefully when it becomes available, because
it will contain important information and may contain additions and revisions to the information
contained in this
58
preliminary proxy statement. You may obtain free copies of the definitive proxy statement
(when it becomes available) and other documents filed with the SEC from Terra or from the SEC as
described above.
Your vote is important. If you have any questions or require assistance voting your shares,
please call our proxy solicitor, MacKenzie Partners, Inc., toll-free at (800) 322-2885.
59
Exhibit
A
STRICTLY CONFIDENTIAL
EXECUTION COPY
AGREEMENT AND PLAN OF MERGER
BY AND AMONG
YARA INTERNATIONAL ASA,
YUKON MERGER SUB, INC.,
AND
TERRA INDUSTRIES INC.
DATED AS OF FEBRUARY 12, 2010
TABLE OF CONTENTS
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Page |
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ARTICLE I DEFINED TERMS |
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A-1 |
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Section 1.1 |
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Certain Defined Terms |
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A-1 |
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ARTICLE II THE MERGER |
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A-11 |
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Section 2.1 |
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The Merger |
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A-11 |
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Section 2.2 |
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Closing |
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A-11 |
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Section 2.3 |
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Effective Time |
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A-11 |
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Section 2.4 |
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Surviving Corporation Constituent Documents |
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A-11 |
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Section 2.5 |
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Surviving Corporation Directors and Officers |
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A-12 |
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Section 2.6 |
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Effect on Capital Stock |
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A-12 |
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Section 2.7 |
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Treatment of Company Equity-Based Awards |
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A-13 |
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Section 2.8 |
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Appraisal or Dissenters Rights |
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A-14 |
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Section 2.9 |
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Exchange of Shares |
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A-14 |
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Section 2.10 |
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Lost, Stolen or Destroyed Certificates |
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A-15 |
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Section 2.11 |
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Withholding Rights |
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A-15 |
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Section 2.12 |
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Further Assurances |
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A-16 |
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ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE COMPANY |
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A-16 |
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Section 3.1 |
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Organization |
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A-16 |
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Section 3.2 |
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Subsidiaries |
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A-16 |
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Section 3.3 |
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Capitalization |
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A-17 |
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Section 3.4 |
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Authorization; Board Approval; Voting Requirements |
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A-18 |
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Section 3.5 |
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Takeover Statute; No Restrictions on the Merger |
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A-19 |
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Section 3.6 |
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Consents and Approvals; No Violations |
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A-19 |
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Section 3.7 |
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SEC Reports; Company Financial Statements |
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A-20 |
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Section 3.8 |
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Absence of Undisclosed Liabilities |
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A-21 |
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Section 3.9 |
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Proxy Statement; Parent Circular; Rights Offering Prospectus |
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A-21 |
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Section 3.10 |
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Absence of Certain Changes |
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A-21 |
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Section 3.11 |
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Litigation |
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A-22 |
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Section 3.12 |
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Compliance with Laws |
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A-22 |
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Section 3.13 |
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Taxes |
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A-23 |
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Section 3.14 |
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Real Property |
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A-25 |
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Section 3.15 |
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Employee Benefit Plans and Related Matters; ERISA |
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A-25 |
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Section 3.16 |
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Employees; Labor Matters |
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A-27 |
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Section 3.17 |
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Intellectual Property |
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A-28 |
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Section 3.18 |
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Contracts |
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A-29 |
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Section 3.19 |
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Environmental Laws and Regulations |
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A-30 |
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Section 3.20 |
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Insurance |
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A-31 |
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Section 3.21 |
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Improper Payments |
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A-32 |
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Section 3.22 |
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Opinion of Financial Advisor |
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A-32 |
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Section 3.23 |
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Brokers |
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A-32 |
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Section 3.24 |
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No Other Representations and Warranties |
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A-32 |
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A-i
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Page |
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ARTICLE IV REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB |
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A-32 |
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Section 4.1 |
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Organization |
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A-32 |
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Section 4.2 |
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Merger Sub |
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A-33 |
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Section 4.3 |
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Authorization; Board Approval; Voting Requirements |
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A-33 |
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Section 4.4 |
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Consents and Approvals; No Violations |
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A-34 |
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Section 4.5 |
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Parent Circular; Rights Offering Prospectus, Proxy Statement |
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A-34 |
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Section 4.6 |
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Litigation |
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A-35 |
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Section 4.7 |
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Brokers |
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A-35 |
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Section 4.8 |
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Financing |
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A-35 |
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Section 4.9 |
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Takeover Statute |
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A-35 |
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Section 4.10 |
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No Withholding Tax |
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A-35 |
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ARTICLE V COVENANTS RELATING TO CONDUCT OF BUSINESS |
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A-36 |
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Section 5.1 |
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Covenants of the Company |
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A-36 |
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ARTICLE VI ADDITIONAL AGREEMENTS |
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A-39 |
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Section 6.1 |
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Preparation and Mailing of Proxy Statement; Preparation of Parent Circular and Rights Offering Prospectus |
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A-39 |
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Section 6.2 |
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Stockholder Meetings; Recommendations |
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A-40 |
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Section 6.3 |
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Access to Information |
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A-41 |
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Section 6.4 |
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Efforts; Consents and Approvals |
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A-41 |
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Section 6.5 |
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No Solicitation |
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A-43 |
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Section 6.6 |
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Employee Matters |
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A-45 |
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Section 6.7 |
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Fees and Expenses |
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A-48 |
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Section 6.8 |
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Directors and Officers Indemnification and Insurance |
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A-48 |
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Section 6.9 |
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Public Announcements |
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A-49 |
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Section 6.10 |
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Notice of Certain Events |
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A-49 |
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Section 6.11 |
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State Takeover Laws |
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A-49 |
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Section 6.12 |
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Stockholder Litigation |
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A-49 |
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Section 6.13 |
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Company Series A Preferred Stock |
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A-50 |
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Section 6.14 |
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Transfer Taxes |
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A-50 |
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Section 6.15 |
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Financing |
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A-50 |
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Section 6.16 |
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Assistance with Financing |
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A-50 |
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Section 6.17 |
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Dividend Matters |
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A-51 |
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Section 6.18 |
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No Financing Condition |
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A-51 |
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Section 6.19 |
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Parents Vote at Company Stockholders Meeting |
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A-52 |
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Section 6.20 |
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Merger Sub and Surviving Corporation Compliance |
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A-52 |
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ARTICLE VII CONDITIONS PRECEDENT |
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A-52 |
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Section 7.1 |
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Conditions to Each Partys Obligation to Effect the Merger |
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A-52 |
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Section 7.2 |
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Conditions to Obligations of Parent and Merger Sub |
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A-53 |
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Section 7.3 |
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Conditions to Obligations of the Company |
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A-53 |
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ARTICLE VIII TERMINATION |
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A-54 |
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Section 8.1 |
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Termination |
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A-54 |
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Section 8.2 |
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Effect of Termination |
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A-55 |
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A-ii
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Page |
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ARTICLE IX GENERAL PROVISIONS |
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A-57 |
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Section 9.1 |
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Non-Survival of Representations, Warranties and Agreements |
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A-57 |
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Section 9.2 |
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Notices |
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A-57 |
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Section 9.3 |
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Interpretation |
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A-58 |
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Section 9.4 |
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Counterparts; Effectiveness |
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A-59 |
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Section 9.5 |
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Entire Agreement; Third Party Beneficiaries |
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A-59 |
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Section 9.6 |
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Severability |
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A-59 |
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Section 9.7 |
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Assignment |
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A-60 |
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Section 9.8 |
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Amendment |
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A-60 |
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Section 9.9 |
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Extension; Waiver |
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A-60 |
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Section 9.10 |
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GOVERNING LAW AND VENUE; WAIVER OF JURY TRIAL |
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A-60 |
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Section 9.11 |
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Specific Enforcement |
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A-62 |
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LIST OF EXHIBITS
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Exhibit |
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Title |
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A
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Form of Charter of the Surviving Corporation |
A-iii
AGREEMENT AND PLAN OF MERGER
This AGREEMENT AND PLAN OF MERGER, dated as of February 12, 2010 (this Agreement),
is made and entered into by and among YARA INTERNATIONAL ASA, a Norwegian public company limited by
shares (Parent), YUKON MERGER SUB, INC., a Maryland corporation and an indirect wholly
owned Subsidiary of Parent (Merger Sub), and TERRA INDUSTRIES INC., a Maryland
corporation (the Company). Parent, Merger Sub and the Company are referred to
individually as a Party and collectively as the Parties.
RECITALS
WHEREAS, the Boards of Directors of each of Parent, Merger Sub and the Company have approved
and declared advisable this Agreement and the merger of Merger Sub with and into the Company (the
Merger) in accordance with the applicable provisions of the Maryland General Corporation
Law (the MGCL) and upon the terms and subject to the conditions set forth in this
Agreement.
NOW, THEREFORE, in consideration of the foregoing and the respective representations,
warranties, covenants and agreements set forth in this Agreement, and intending to be legally bound
hereby, the Parties agree as follows:
ARTICLE I
DEFINED TERMS
Section 1.1 Certain Defined Terms. As used in this Agreement, the following terms have the
meanings specified in this Section 1.1.
AAA has the meaning set forth in Section 9.10(a).
Additional Per Share Consideration means an amount per share equal to, (i) if the
Parent Stockholders Meeting shall occur on or prior to the date that is 90 days from the date of
this Agreement, zero; (ii) if the Parent Stockholders Meeting shall occur on or after the date that
is 91 days from the date of this Agreement but prior to the date that is 98 days from the date of
this Agreement, an amount equal to $5 million divided by the Fully Diluted Denominator; (iii) if
the Parent Stockholders Meeting shall occur on or after the date that is 98 days from the date of
this Agreement but prior to the date that is 105 days from the date of this Agreement, an amount
equal to $10 million divided by the Fully Diluted Denominator; (iv) if the Parent Stockholders
Meeting shall occur on or after the date that is 105 days from the date of this Agreement but prior
to the date that is 112 days from the date of this Agreement, an amount equal to $20 million
divided by the Fully Diluted Denominator; and (v) if the Parent Stockholders Meeting shall occur on
or after the date that is 112 days from the date of this Agreement, the sum of (x) an amount equal
to $20 million divided by the Fully Diluted Denominator plus (y) for each subsequent seven day
period (or portion thereof) beginning on the date that is 112 days from the date of this Agreement,
an additional amount equal to $15 million divided by the Fully Diluted Denominator. For purposes
of this definition, Fully Diluted Denominator shall mean the actual number of shares of
Company Common Stock and Company Stock-Based Awards (including Company Stock-Based Awards settled in cash)
that are entitled to receive the Merger Consideration as of the Closing pursuant to
A-1
the terms of
this Agreement. If the Additional Per Share Consideration were calculated as of the date hereof,
the Fully Diluted Denominator would equal 101,242,858. All per share amounts derived from the
calculation set fort in this definition shall be rounded to the nearest whole cent.
Affiliate means, with respect to any Person, another Person that directly or
indirectly, through one or more intermediaries, controls, is controlled by, or is under common
control with, such first Person, where control means the possession, directly or
indirectly, of the power to direct or cause the direction of the management policies of a Person,
whether through the ownership of voting securities, by contract, as trustee or executor or
otherwise. For the avoidance of doubt, Affiliate, when used with respect to Parent or
Merger Sub, shall not include the Government of Norway or any Governmental Entity thereof.
Agreement has the meaning set forth in the Preamble.
Articles of Merger has the meaning set forth in Section 2.3.
Beneficial Owner means, with respect to a Security, any Person who, directly or
indirectly, through any contract, relationship or otherwise, has or shares (i) the power to vote,
or to direct the voting of, such Security, (ii) the power to dispose of, or to direct the
disposition of, such Security or (iii) the ability to profit or share in any profit derived from a
transaction in such Security.
Board of Directors means the board of directors of any specified Person.
Business Day means any day except Saturday or Sunday on which commercial banks are
not required or authorized to close in the City of New York or in Oslo, Norway.
Certificate has the meaning set forth in Section 2.6(b).
CFIUS has the meaning set forth in Section 3.6(b).
Change in Company Recommendation has the meaning set forth in Section
6.2(a).
Closing has the meaning set forth in Section 2.2.
Closing Date has the meaning set forth in Section 2.2.
Code means the Internal Revenue Code of 1986, as amended.
Company has the meaning set forth in the Preamble.
Company Benefit Plan means each employment, bonus, deferred compensation, incentive
compensation, stock purchase, stock option, phantom or other stock based award, severance or
termination pay, retention, change in control, collective bargaining, fringe benefit, employee
loan, hospitalization or other medical, life or other insurance, supplemental unemployment
benefits, profit-sharing, pension or retirement plan, program, agreement or
arrangement, and each other employee benefit plan (within the meaning of Section 3(3) of
ERISA, including, without limitation, multiemployer plans within the meaning of 3(37) of ERISA),
A-2
program, agreement (including employment agreements) or arrangement, whether or not subject to
ERISA, maintained or contributed to or required to be contributed to by (i) the Company, (ii) any
Company Subsidiary or (iii) any ERISA Affiliate of the Company, for the benefit of any current or
former employee, director or member of the Company or any Company Subsidiary, other than any plan,
program, agreement or arrangement mandated by applicable Law.
Company Common Stock means the common stock, without par value, of the Company.
Company Contracts has the meaning set forth in Section 3.18(b).
Company Disclosure Letter has the meaning set forth in ARTICLE III.
Company Financial Advisor has the meaning set forth in Section 3.22.
Company Financial Statements means the consolidated financial statements of the
Company and the Company Subsidiaries included in the Company SEC Documents together, in the case of
year-end statements, with reports thereon by Deloitte & Touche LLP, the independent auditors of the
Company for the periods included therein, including in each case a consolidated balance sheet, a
consolidated statement of income, a consolidated statement of stockholders equity and a
consolidated statement of cash flows, and accompanying notes.
Company Intellectual Property has the meaning set forth in Section 3.17(a).
Company Leased Real Property means each material leasehold or similar interest held
by the Company or a Company Subsidiary in any real property used or occupied in connection with the
businesses of the Company or any Company Subsidiary.
Company Leases means all leases and agreements under which the Company or any
Company Subsidiary holds any Company Leased Real Property.
Company Owned Intellectual Property means Intellectual Property owned by the Company
or any Company Subsidiary.
Company Owned Real Property means material real property held by the Company or any
Company Subsidiary.
Company Performance Share Award means a Company Stock-Based Award that is subject to
performance-based vesting and is settled in shares of Company Common Stock pursuant to its terms.
Company Permits has the meaning set forth in Section 3.12(a).
Company Phantom Performance Award means a Company Stock-Based Award that is subject
to performance-based vesting and is settled in cash pursuant to its terms.
Company Phantom Unit means a Company Stock-Based Award that is subject to time-based
vesting and is settled in cash pursuant to its terms.
A-3
Company Recommendation has the meaning set forth in Section 3.4(b).
Company Restricted Share has the meaning set forth in Section 3.3(b).
Company SEC Documents has the meaning set forth in Section 3.7(a).
Company Series A Preferred Stock means the 4.25% Series A Cumulative Convertible
Perpetual Preferred Shares, without par value, of the Company.
Company Stock Plan has the meaning set forth in Section 2.7.
Company Stock-Based Award has the meaning set forth in Section 2.7.
Company Stockholder Approval has the meaning set forth in Section 3.4(c).
Company Stockholders Meeting has the meaning set forth in Section 6.2(a).
Company Subsidiary has the meaning set forth in Section 3.2(a).
Confidentiality Agreement has the meaning set forth in Section 6.3.
Constituent Documents means, with respect to any entity, its certificate or articles
of incorporation, bylaws, and any similar charter or other organizational documents of such entity.
Continuation Period has the meaning set forth in Section 6.6(a).
Continuing Employee has the meaning set forth in Section 6.6(a).
Divestiture Action has the meaning set forth in Section 6.4(c).
D & O Insurance has the meaning set forth in Section 6.8(b).
DOJ has the meaning set forth in Section 6.4(b).
Effective Time has the meaning set forth in Section 2.3.
Environmental Law means any foreign, federal, state or local Law regulating or
relating to the protection of human health or safety (as it relates to Releases of Hazardous
Substances), natural resources or the environment, including Laws relating to wetlands, pollution,
environmental contamination or the use, generation, management, handling, transport, treatment,
disposal, storage, Release, threatened Release of, or exposure to, Hazardous Substances.
Environmental Permit means any permit, license, registration, authorization or
consent of any Governmental Entity and required pursuant to applicable Environmental Laws.
Equity Award Amount means the sum of the aggregate Phantom Unit Amounts and the
aggregate Performance Award Amounts.
A-4
Equity Rights means, with respect to any Person, any security or obligation
convertible into or exercisable or exchangeable for, or giving any Person any right to subscribe
for or acquire, or any options, calls, restricted stock, deferred stock awards, performance shares,
stock units, phantom awards, dividend equivalents, or commitments relating to, or any stock
appreciation right or other instrument the value of which is determined in whole or in part by
reference to the market price or value of, shares of capital stock or earnings of such Person, and
shall include the Company Stock-Based Awards.
ERISA means the Employee Retirement Income Security Act of 1974, as amended, and the
rules and regulations promulgated thereunder.
ERISA Affiliate means, with respect to any entity, any trade or business, whether or
not incorporated, that together with such entity and its Subsidiaries would be deemed a single
employer within the meaning of Section 4001 of ERISA.
Exchange Act means the Securities Exchange Act of 1934, as amended, and the rules
and regulations promulgated thereunder.
Exchange Agent has the meaning set forth in Section 2.9(a).
Exchange Fund has the meaning set forth in Section 2.9(a).
Exon-Florio Amendment has the meaning set forth in Section 3.6(b).
Extended Walk-Away Date has the meaning set forth in Section 8.1(b)(i).
Fairness Opinion has the meaning set forth in Section 3.22.
Financing has the meaning set forth in Section 6.15.
Financing Sources means the entities that have committed to provide or have
otherwise entered into agreements in connection with the Financing or other debt or equity
financings in connection with the transactions contemplated hereby, including pursuant to any
joinder agreements, indentures, credit agreements, underwriting agreements or other definitive
documents entered into pursuant thereto or relating thereto, in each case, in any capacity in which
they may be acting in connection with the Financing and together with their respective Affiliates,
officers, directors, employees and representatives involved with the Financing and their respective
successors and assigns.
Foreign Company Benefit Plan has the meaning set forth in Section 3.15(e).
Foreign Competition Laws has the meaning set forth in Section 3.6(b).
FTC has the meaning set forth in Section 6.4(b).
GAAP has the meaning set forth in Section 3.7(b).
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Governmental Entity means any supranational, national, state, municipal, local or
foreign government, any instrumentality, subdivision, court, administrative agency or commission,
including the SEC or other governmental authority, including any state attorney general, or
arbitral tribunal.
GrowHow means GrowHow UK Limited, a private company incorporated in England.
HATLP means Houston Ammonia Terminal, L.P., a Delaware limited partnership.
Hazardous Substances means (a) any petrochemical or petroleum distillates or
by-products, radioactive materials, asbestos in any form that is or could become friable, urea
formaldehyde foam insulation, transformers or other equipment that contain dielectric fluid
containing polychlorinated biphenyls, and radon gas; or (b) any chemicals, materials or substances
defined as or included in the definition of hazardous substances, hazardous wastes, hazardous
materials, restricted hazardous materials, extremely hazardous substances, toxic substances,
contaminants or pollutants or words of similar meaning and regulatory effect.
HSR Act has the meaning set forth in Section 3.6(b).
Incentive Plans has the meaning set forth in Section 6.6(d).
Indemnified Persons has the meaning set forth in Section 6.8(a).
Intellectual Property means (a) trademarks, service marks, trade names, and Internet
domain names, together with all goodwill, registrations and applications related to the foregoing;
(b) patents and patent applications; (c) copyrights (including any registrations and applications
for any of the foregoing); and (d) computer programs (including any and all software implementation
of algorithms, models and methodologies, whether in source code or object code).
IRS means the Internal Revenue Service.
known or knowledge means, with respect to any Party, the actual knowledge
of such Partys executive officers.
Law (and with the correlative meaning Laws) means any rule, regulation,
statute, Order, ordinance or code promulgated by any Governmental Entity, including any securities
law.
Liens means any mortgage, pledge, hypothecation, assignment, deposit arrangement,
encumbrance, lien (statutory or other), other charge or security interest of any kind or nature
whatsoever (including any conditional sale or other title retention agreement and any capital lease
having substantially the same economic effect as any of the foregoing).
Material Adverse Effect means, (a) when used in connection with the Company, any
change, development, event, occurrence, effect or state of facts that, individually or in the
aggregate with all such other changes, developments, events, occurrences, effects or states of
facts is, or is reasonably expected to be, materially adverse to the business, financial condition
or results
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of operations of the Company, the Company Subsidiaries, GrowHow, HATLP, PLNL and OCOP,
taken as a whole; provided, that none of the following shall be deemed either alone or in
combination to constitute, or be taken into account in determining whether there has been a
Material Adverse Effect: any change, development, event, occurrence, effect or state of facts
arising out of or resulting from (i) capital market conditions generally or general economic
conditions, including with respect to interest rates or currency exchange rates, (ii) geopolitical
conditions or any outbreak or escalation of hostilities, acts of war or terrorism occurring after
the date of this Agreement, (iii) any hurricane, tornado, flood, earthquake or other natural or
man-made disaster occurring after the date of this Agreement, (iv) any change in applicable Law,
regulation or GAAP (or authoritative interpretation thereof) which is proposed, approved or enacted
on or after the date of this Agreement, (v) general conditions in the industries in which the
Company and the Company Subsidiaries operate, (vi) the failure, in and of itself, of the Company to
meet any internal or published projections, forecasts, estimates or predictions in respect of
revenues, earnings or other financial or operating metrics before, on or after the date of this
Agreement, or changes in the market price, credit rating or trading volume of the Companys
securities after the date of this Agreement (it being understood that the underlying facts giving
rise or contributing to such failure or change may be deemed either alone or in combination to
constitute, or be taken into account in determining whether there has been a Material Adverse
Effect), (vii) changes in the price of natural gas, nitrogen, urea, ammonia or any other product
used or sold by the Company or any Company Subsidiary and (viii) the announcement and pendency of
this Agreement and the transactions contemplated hereby, including any lawsuit in respect of this
Agreement or the transactions contemplated hereby, compliance with the covenants contained herein,
and any loss of or change in relationship with any customer, supplier, distributor, or other
business partner, or departure of any employee or officer, of the Company or any Company
Subsidiary, except, in the cases of clauses (i), (ii), (iii), (iv) and (v), to the extent that the
Company and the Company Subsidiaries, taken as a whole, are materially disproportionately affected
thereby as compared with other participants in the industries in which the Company and the Company
Subsidiaries operate (in which case the incremental disproportionate impact or impacts may be
deemed either alone or in combination to constitute, or be taken into account in determining
whether there has been, or is reasonably expected to be, a Material Adverse Effect); and (b) when
used in connection with Parent, a material adverse effect on the ability of Parent or Merger Sub to
consummate the Merger and the other transactions contemplated hereby in accordance with the terms
hereof.
Maximum Annual Premium has the meaning set forth in Section 6.8(b).
Merger has the meaning set forth in the Recitals.
Merger Consideration has the meaning set forth in Section 2.6(a).
Merger Sub has the meaning set forth in the Preamble.
MGCL has the meaning set forth in the Recitals.
Notice of Change in Company Recommendation has the meaning set forth in Section
6.5(c).
Notice of Superior Proposal has the meaning set forth in Section 6.5(c).
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OCOP means Oklahoma CO2 Partnership, an Oklahoma partnership.
Order means any order, writ, injunction, judgment, decree, ruling, opinion,
decision, determination, directive, award or settlement, whether civil, criminal or administrative.
Parent has the meaning set forth in the Preamble.
Parent Circular has the meaning set forth in Section 6.1(d).
Parent Common Stock means the common stock, par value NOK 1.70 per share, of Parent.
Parent Permits means, with respect to Parent and the Parent Subsidiaries, all
permits, licenses, variances, exemptions, Orders and approvals of all Governmental Entities
necessary for the lawful conduct of their respective businesses or ownership of their respective
properties and assets.
Parent Recommendation has the meaning set forth in Section 6.2(b).
Parent Stockholder Approval has the meaning set forth in Section 4.3(d).
Parent Stockholders Meeting has the meaning set forth in Section 6.2(b).
Parent Subsidiary means each Subsidiary of Parent.
Party or Parties has the meaning set forth in the Preamble.
Performance Award Amount has the meaning set forth in Section 2.7(c).
Permitted Liens means (i) any liens for taxes, assessments or governmental charges
or levies not yet delinquent or which are being contested in good faith by appropriate proceedings,
(ii) carriers, warehousemens, mechanics, materialmens, repairmens or other similar liens,
(iii) pledges or deposits in connection with workers compensation, unemployment insurance, and
other social security legislation, (iv) any lien which does not materially interfere with the use
of the property subject thereto and (v) any lien permitted under the Amended and Restated Credit
Agreement dated as of December 21, 2004, as amended as of December 1, 2009, among Terra Capital,
Inc. and Terra Mississippi Holdings Corp., as Borrowers, the Company and Terra Capital Holdings
Inc., as Guarantors, the lenders and issuers party thereto and Citicorp USA, Inc., as
Administrative and Collateral Agent, and the Credit Agreement dated as of December 21, 2004, as
amended as of February 2, 2007, among Terra Nitrogen, Limited Partnership, as Borrower, TNCLP, as a
Guarantor, the lenders and issuers party thereto and Citicorp USA, Inc., as Administrative and
Collateral Agent.
Person means an individual, corporation, limited liability company, partnership,
association, trust, unincorporated organization, other entity or group (as defined in the Exchange
Act).
Phantom Unit Amount has the meaning set forth in Section 2.7(b).
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PLNL means Point Lisas Nitrogen Limited, a limited company incorporated in Trinidad
and Tobago.
Preferred Stock Conversion has the meaning set forth in Section 6.13(a).
Preferred Stock Conversion Provisions has the meaning set forth in Section
6.13(a).
Preferred Stock Conversion Right has the meaning set forth in Section
6.13(a).
Process Agent has the meaning set forth in Section 9.10(h).
Proxy Statement has the meaning set forth in Section 6.1(a).
Release means any releasing, disposing, discharging, injecting, spilling, leaking,
leaching, pumping, dumping, emitting, escaping, emptying, seeping, dispersal, migration, including
the moving of any materials through, into or upon, any land, soil, surface water, groundwater or
air, or otherwise entering into the indoor or outdoor environment.
Representatives has the meaning set forth in Section 6.3.
Required Information has the meaning set forth in Section 6.16(a).
Restraints has the meaning set forth in Section 7.1(c).
Rights Issue has the meaning set forth in Section 6.15.
Rights Offering Prospectus has the meaning set forth in Section 6.1(d).
Sarbanes-Oxley Act has the meaning set forth in Section 3.7(a).
SEC has the meaning set forth in Section 3.6(b).
Securities means, with respect to any Person, any series of common stock, preferred
stock, and any other equity securities or capital stock of such Person, however described and
whether voting or non-voting.
Securities Act means the Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder.
Subsidiary (and with the correlative meaning Subsidiaries), when used with
respect to any Person, means any other Person, whether incorporated or unincorporated, of which
Securities or other interests having by their terms ordinary voting power to elect more than fifty
percent of the board of directors or others performing similar functions with respect to such
corporation or other organization is directly or indirectly owned or controlled by such Person or
by any one or more of its Subsidiaries. For the avoidance of doubt, Subsidiary, when
used with
respect to the Company, shall not, unless explicitly set forth otherwise in any Section of
this Agreement, include GrowHow, HATLP, OCOP or PLNL.
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Superior Proposal means any bona fide written Takeover Proposal regarding the
Company made by any Person (other than Parent or Merger Sub) that, if consummated, would result in
such Person acquiring, directly or indirectly, all or substantially all of the voting power of the
Companys Securities or all or substantially all of the assets of the Company and its Subsidiaries,
and that the Board of Directors of the Company determines in good faith (after consultation with
outside counsel and a financial advisor of nationally recognized reputation) is reasonably expected
to be consummated and is more favorable to its stockholders than the Merger and the other
transactions contemplated hereby from a financial point of view, taking into account all financial,
regulatory, legal and other aspects of such proposal.
Surviving Corporation has the meaning set forth in Section 2.1.
Surviving Corporation Plans has the meaning set forth in Section 6.6(a).
Takeover Proposal means any third party proposal or offer for a direct or indirect
(a) merger, tender offer, exchange offer, binding share exchange, recapitalization, reorganization,
liquidation, dissolution, business combination or consolidation, or any similar transaction
involving the Company or one or more of its Subsidiaries, (b) sale, lease exchange, mortgage,
pledge, transfer or other acquisition or assumption of fifteen percent (15%) or more of the fair
value of the assets of the Company and its Subsidiaries, taken as a whole, in one or a series of
related transactions, or (c) purchase, tender offer, exchange offer or other acquisition (including
by way of merger, consolidation, share exchange or otherwise) of Beneficial Ownership of Securities
representing fifteen percent (15%) or more of the voting power of the Companys Securities;
provided, however, that the term Takeover Proposal shall not include the
Merger or the other transactions contemplated hereby.
Tax (and with the correlative meaning Taxes) means any U.S. federal,
state, local or foreign net income, franchise, gross income, sales, use, value added, goods and
services, ad valorem, turnover, real property, personal property, gross receipts, net proceeds,
license, capital stock, payroll, employment, unemployment, disability, customs duties, unclaimed
property, withholding, social security (or similar), excise, severance, transfer, alternative or
add-on minimum, stamp, estimated, registration, fuel, occupation, premium, environmental, excess
profits, windfall profits, or other tax of any kind and similar charges, levies, imposts, duties,
tariffs, licenses or other assessments, together with any interest and any penalties, additions to
tax or additional amounts imposed by any Taxing Authority or Governmental Entity.
Tax Return means any return, report, declaration, election, estimate, information
statement, claim for refund or other document (including any related or supporting information and
any amendment to any of the foregoing) filed or required to be filed with respect to Taxes.
Taxing Authority means, with respect to any Tax, the Governmental Entity that
imposes such Tax, and the agency (if any) charged with the collection of such Tax for such
Governmental Entity.
Termination Fee means $123 million.
Timing Agreement has the meaning set forth in Section 6.4(b).
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TNCLP means Terra Nitrogen Company, L.P., a Delaware limited partnership.
U.S. means the United States of America.
Walk-Away Date has the meaning set forth in Section 8.1(b)(i).
ARTICLE II
THE MERGER
Section 2.1 The Merger. Upon the terms and subject to the conditions set forth in this Agreement
and in accordance with the MGCL, at the Effective Time, Merger Sub shall be merged with and into
the Company and the separate existence of Merger Sub shall cease. The Company shall continue as
the Surviving Corporation and shall continue to be governed by the laws of the State of Maryland
(as such, the Surviving Corporation). At the Effective Time, the effects of the Merger
shall be as provided in this Agreement, the Articles of Merger and the applicable provisions of the
MGCL. Without limiting the generality of the foregoing, and subject thereto, at the Effective
Time, in accordance with Section 3-114 of the MGCL, all of the property, rights, privileges, powers
and franchises of Merger Sub shall vest in the Surviving Corporation, and all debts and obligations
of Merger Sub shall become the debts and obligations of the Surviving Corporation.
Section 2.2 Closing. The closing of the Merger (the Closing) shall take place at 10:00
a.m., New York City time, at the offices of Latham & Watkins LLP, 885 Third Avenue, New York, New
York 10022, on a date to be specified by the Parties, which date shall be no later than the third
(3rd) Business Day after all of the conditions set forth in ARTICLE VII have been fulfilled
or waived (other than those conditions that by their nature are to be satisfied at the Closing, but
subject to the fulfillment or waiver of those conditions); provided, however, in no
event shall Parent be obligated to effect the Closing until the earlier of (i) three (3) Business
Days following the consummation of the Rights Issue, and (ii) the date that is twenty-five (25)
Business Days following the date of receipt of the Company Stockholder Approval. The date the
Closing occurs shall be referred to as the Closing Date and shall be subject to change
upon the mutual agreement of the Parties.
Section 2.3 Effective Time. Subject to the provisions of this Agreement, on the Closing Date,
Merger Sub and the Company shall file articles of merger (Articles of Merger) with the
State Department of Assessments and Taxation of Maryland, in such form as required by, and executed
in accordance with, the MGCL. Unless otherwise mutually agreed upon by Parent and the Company, the
Merger shall become effective at such time as the Articles of Merger are duly filed with and
accepted for record by the State Department of Assessments and Taxation of Maryland, or at such
later time (not to exceed thirty (30) days after such acceptance) as Parent and the Company shall
agree and specify
in the Articles of Merger. As used herein, the Effective Time shall mean the time
at which the Merger shall become effective.
Section 2.4 Surviving Corporation Constituent Documents.
(a) The charter of the Company, as in effect immediately prior to the Effective Time, shall
be amended and restated at the Effective Time to be in the form attached
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hereto as Exhibit
A and shall be the charter of the Surviving Corporation until amended as provided therein or
by applicable Law.
(b) The bylaws of Merger Sub, as in effect immediately prior to the Effective Time, shall
be the bylaws of the Surviving Corporation until amended as provided therein or by applicable
Law.
Section 2.5 Surviving Corporation Directors and Officers. The directors and officers of Merger
Sub in office immediately prior to the Effective Time shall be the sole initial directors and
officers of the Surviving Corporation and shall hold office from the Effective Time until their
respective successors are duly elected or appointed and qualify or until their earlier death,
resignation or removal in accordance with the Constituent Documents of the Surviving Corporation or
otherwise as provided by applicable Law.
Section 2.6 Effect on Capital Stock.
(a) At the Effective Time, subject to the provisions of this ARTICLE II, each share
of Company Common Stock issued and outstanding immediately prior to the Effective Time (other
than shares of Company Common Stock owned by Parent, Merger Sub, the Company, or any wholly
owned Subsidiary of the Company or of Parent) shall, by virtue of the Merger and without any
action on the part of the holder thereof, be converted into and shall thereafter represent the
right to receive $41.10 plus the Additional Per Share Consideration, if any, in cash, without
interest (the Merger Consideration).
(b) From and after the Effective Time, none of the Company Common Stock converted into the
Merger Consideration pursuant to this ARTICLE II shall remain outstanding and such
Company Common Stock shall automatically be cancelled and retired and shall cease to exist, and
each holder of a certificate previously representing any such Company Common Stock or shares of
Company Common Stock that are in non-certificated book-entry form (either case being referred to
in this Agreement, to the extent applicable, as a Certificate) shall thereafter cease
to have any rights with respect to such Securities, except the right to receive the
consideration to which such holder may be entitled pursuant to this Section 2.6.
(c) If at any time during the period between the date of this Agreement and the Effective
Time, any change in the outstanding shares of Securities of the Company shall occur by reason of
any reclassification, recapitalization, stock split or combination, exchange or readjustment of
shares, or any stock dividend thereon with a record date during such period, the Merger
Consideration and any other similarly dependent items shall be appropriately adjusted to provide
the holders of Company Common Stock the same economic effect as contemplated
by this Agreement prior to such event. Nothing in this Section 2.6(c) shall be
construed to require or permit the Company to take any action that is otherwise prohibited or
restricted by any other provision of this Agreement.
(d) At the Effective Time, all shares of Company Common Stock that are owned by Parent,
Merger Sub or the Company shall, by virtue of the Merger and without
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any action on the part of
the holder thereof, be cancelled and retired and shall cease to exist and no cash or other
consideration shall be delivered in exchange therefor.
(e) At the Effective Time, each issued and outstanding share of common stock of Merger Sub
shall, by virtue of the Merger and without any action on the part of the holder thereof, be
converted into and become one fully paid and nonassessable share of common stock of the
Surviving Corporation.
Section 2.7 Treatment of Company Equity-Based Awards. The Board of Directors of the Company (or
the relevant committee thereof responsible for administration of the Company Stock Plans (as
defined below)) has adopted or shall adopt prior to the Effective Time resolutions, and the Company
has taken or shall take prior to the Effective Time all actions (including, without limitation,
obtaining consent from any applicable holder), necessary to ensure that, as of the Effective Time,
each Equity Right consisting of, based on or relating to shares of Company Common Stock granted
under any equity or equity-based compensation plan or arrangement of the Company (each, a
Company Stock Plan) (each, a Company Stock-Based Award) which is outstanding
immediately prior to the Effective Time shall be treated as set forth below:
(a) immediately prior to the Effective Time, each Company Restricted Share shall become
fully vested at the Effective Time pursuant to its terms and, without any action on the part of
any holder thereof, shall be converted into the right to receive the Merger Consideration;
(b) each Company Phantom Unit shall be canceled at the Effective Time and the holder
thereof shall be entitled to receive, in consideration for such cancellation, an amount of cash
equal to the product of (A) the number of shares of Company Common Stock subject to such Company
Phantom Unit immediately prior to the Effective Time (whether or not vested) and (B) the Merger
Consideration, which amount shall be payable to such holder as promptly as practicable following
the Effective Time in accordance with the provisions of Section 2.9 (but in any event
within the period required by Section 409A of the Code, such that it qualifies as a short-term
deferral pursuant to Section 1.409A-1(b)(4) of the Treasury Regulations) (such amount, the
Phantom Unit Amount); and
(c) each Company Performance Share Award and each Company Phantom Performance Award shall
be canceled at the Effective Time and the holder thereof shall be entitled to receive, in
consideration for such cancellation, an amount of cash equal to the product of (A) the greater
of (1) the number of shares of Company Common Stock subject to such Company Phantom Performance
Award or Company Performance Share Award based on the Companys actual performance calculated
using actual quarters completed through the Effective Time and (2) the target number of shares
of Company Common Stock subject to such
Company Phantom Performance Award or Company Performance Share Award and (B) the Merger
Consideration, which amount shall be payable to such holder as promptly as practicable following
the Effective Time in accordance with the provisions of Section 2.9 (but in any event
within the period required by Section 409A of the Code, such that it qualifies as a short-term
deferral pursuant to Section 1.409A-1(b)(4) of the Treasury Regulations) (such amount, the
Performance Award Amount).
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Section 2.8 Appraisal or Dissenters Rights. No appraisal or dissenters rights shall be
available to holders of Company Common Stock with respect to the Merger or the other transactions
contemplated hereby.
Section 2.9 Exchange of Shares.
(a) Prior to the Effective Time, Parent shall appoint an exchange agent reasonably
satisfactory to the Company (the Exchange Agent) for the purpose of exchanging
Certificates for the Merger Consideration and for paying the Equity Award Amount. As soon as
reasonably practicable after the Effective Time, Parent will cause the Exchange Agent to send to
each holder of record of shares of Company Common Stock as of the Effective Time whose shares of
Company Common Stock were converted into the right to receive the Merger Consideration pursuant
to Section 2.6 a letter of transmittal (which shall specify that the delivery shall be
effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates
to the Exchange Agent), including instructions for use in effecting the surrender of
Certificates to the Exchange Agent in exchange for the Merger Consideration. Immediately after
the Effective Time, Parent shall cause to be deposited with the Exchange Agent cash in U.S.
dollars sufficient to pay the aggregate Merger Consideration and the Equity Award Amount, in
each case in trust for each holder of shares of Company Common Stock and each holder of a
Company Stock-Based Award as required to be paid pursuant to this Agreement. All cash deposited
with the Exchange Agent shall be referred to in this Agreement as the Exchange Fund.
The Exchange Agent shall, pursuant to irrevocable instructions, deliver the Merger Consideration
and Equity Award Amount contemplated to be paid pursuant to Section 2.6 and Section
2.7 out of the Exchange Fund. The Exchange Fund shall not be used for any other purpose.
The Exchange Agent shall invest the cash included in the Exchange Fund as directed by Parent.
Any interest and other income resulting from such investments shall be the property of, and paid
to, Parent.
(b) Each holder of shares of Company Common Stock that have been converted into the right
to receive the Merger Consideration, upon surrender to the Exchange Agent of a Certificate,
together with a properly completed letter of transmittal, duly executed and completed in
accordance with the instructions thereto, and such other documents as may reasonably be required
by Parent or the Exchange Agent, will be entitled to receive the Merger Consideration in
exchange therefor. The Merger Consideration shall be paid as promptly as practicable after
receipt by the Exchange Agent of the Certificate and letter of transmittal in accordance with
the foregoing. The Equity Award Amount shall be paid, in accordance with instructions from the
Company, as promptly as practicable following the Effective Time. No interest shall be paid or
accrued on any Merger Consideration. Until so surrendered, each such
Certificate shall, after the Effective Time, represent for all purposes only the right to
receive such Merger Consideration.
(c) If any portion of the Merger Consideration is to be paid to a Person other than the
Person in whose name the applicable surrendered Certificate is registered, it shall be a
condition thereof that the surrendered Certificate shall be properly endorsed or otherwise be in
proper form for transfer and that the Person requesting such delivery of the Merger
Consideration shall pay to the Exchange Agent any required transfer or other similar Taxes or
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establish to the satisfaction of the Exchange Agent that such Tax has been paid or is not
payable.
(d) After the Effective Time, there shall be no further registration of transfers of shares
of Company Common Stock outstanding immediately prior to the Effective Time. From and after the
Effective Time, the holders of Certificates representing shares of Company Common Stock
outstanding immediately prior to the Effective Time shall cease to have any rights with respect
to such shares of Company Common Stock except as otherwise provided in this Agreement or by
applicable Law. If, after the Effective Time, Certificates are presented to the Exchange Agent
or Parent, they shall be cancelled and exchanged for the consideration provided for, and in
accordance with the procedures set forth, in this ARTICLE II.
(e) Any portion of the Exchange Fund that remains unclaimed by the holders of shares of
Company Common Stock one (1) year after the Effective Time shall be returned to Parent, upon
demand, and any such holder who has not exchanged his or her shares of Company Common Stock for
the Merger Consideration in accordance with this Section 2.9 prior to that time shall
thereafter look only to Parent for delivery of the Merger Consideration in respect of such
holders shares of Company Common Stock. Notwithstanding the foregoing, none of Parent, Merger
Sub or the Company shall be liable to any holder of shares of Company Common Stock for any
Merger Consideration delivered to a public official pursuant to applicable abandoned property
Laws. Any Merger Consideration remaining unclaimed by holders of shares of Company Common Stock
immediately prior to such time as such amounts would otherwise escheat to or become property of
any Governmental Entity shall, to the extent permitted by applicable Law, become the property of
Parent free and clear of any claims or interest of any Person previously entitled thereto.
Section 2.10 Lost, Stolen or Destroyed Certificates. If any Certificate shall have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the Person claiming such
Certificate to be lost, stolen or destroyed and, if required by Parent, the posting by such Person
of a bond, in such reasonable amount as Parent may direct, as indemnity against any claim that may
be made against it with respect to such Certificate, the Exchange Agent will issue in exchange for
such lost, stolen or destroyed Certificate the Merger Consideration to be paid in respect of the
shares of Company Common Stock represented by such Certificate as contemplated by this ARTICLE
II.
Section 2.11 Withholding Rights. Each of Parent, Merger Sub and the Surviving Corporation shall be entitled to deduct
and
withhold, or cause the Exchange Agent to deduct and withhold, from the consideration otherwise
payable to any Person pursuant to this Agreement (including pursuant to Section 2.7) such
amounts as it 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
deducted or withheld and paid over to the applicable Governmental Entity or Taxing Authority, such
deducted or withheld amounts shall be treated for all purposes of this Agreement as having been
paid to the holder of shares of Company Common Stock or any Company Stock-Based Award in respect of
which such deduction and withholding was made.
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Section 2.12 Further Assurances. After the Effective Time, the officers and directors of the
Surviving Corporation will be authorized to execute and deliver, in the name and on behalf of the
Company, any deeds, bills of sale, assignments or assurances and to take and do, in the name and on
behalf of the Company, any other actions and things to vest, perfect or confirm of record or
otherwise in the Surviving Corporation any and all right, title and interest in, to and under any
of the rights, properties or assets acquired or to be acquired by the Surviving Corporation as a
result of, or in connection with, the Merger.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Except as otherwise disclosed or identified in the Company SEC Documents filed or furnished
prior to the date hereof (excluding any risk factor disclosure and disclosure of risks included in
any forward-looking statements disclaimer or other statements included in such Company SEC
Documents that are predictive, forward-looking or primarily cautionary in nature) (other than with
respect to Section 3.3(c) hereof) or in a letter (the Company Disclosure Letter)
delivered to Parent by the Company prior to the execution of this Agreement (with reference to the
sections or subsections in this Agreement to which the information in such Company Disclosure
Letter relates; provided that any information set forth in one section of the Company
Disclosure Letter shall be deemed to apply to each other section or subsection thereof to which the
relevance of such item is reasonably apparent), the Company represents and warrants to Parent and
Merger Sub as follows:
Section 3.1 Organization. The Company is a corporation duly incorporated, validly existing and in
good standing under the laws of the State of Maryland and has the requisite corporate power and
authority to carry on its business as now being conducted. The Company is duly qualified or
licensed to do business and is in good standing 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, except for those jurisdictions in which the failure to be so qualified or
licensed or to be in good standing, individually or in the aggregate, has not resulted in and would
not reasonably be expected to result in a Material Adverse Effect on the Company. The Company has
made available to Parent true, correct and complete copies of its Constituent Documents, as
amended and in effect on the date of this Agreement.
Section 3.2 Subsidiaries.
(a) Section 3.2(a) of the Company Disclosure Letter sets forth (i) each Subsidiary
of the Company (individually, a Company Subsidiary and collectively, the Company
Subsidiaries), and (ii) each such Company Subsidiarys jurisdiction of incorporation or
organization. Each Company Subsidiary, and each of HATLP, OCOP and PLNL is a corporation duly
incorporated or a limited liability company, partnership or other entity duly organized and is
validly existing and, if applicable, in good standing under the laws of the jurisdiction of its
incorporation or organization, as the case may be, and has all requisite corporate or other
power and authority, as the case may be, to carry on its business as now being conducted. Each
Company Subsidiary is duly qualified or licensed to do business and is in good standing in each
jurisdiction in which the nature of its business or the ownership,
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leasing or operation of its
properties makes such qualification or licensing necessary, except for those jurisdictions in
which the failure to be so qualified or licensed or to be in good standing, individually or in
the aggregate, has not resulted in and would not reasonably be expected to result in a Material
Adverse Effect on the Company. The Company has made available to Parent true, correct and
complete copies of the Constituent Documents of each Company Subsidiary, as amended and in
effect on the date of this Agreement.
(b) The Company is, directly or indirectly, the record and Beneficial Owner of (i) all of
the outstanding Securities of each Company Subsidiary (other than TNCLP), (ii) 75.321% of the
outstanding Securities of TNCLP, (iii) 50% of the outstanding Securities of GrowHow, (iv) 50% of
the outstanding Securities of HATLP, (v) 50% of the outstanding Securities of OCOP and (vi) 50%
of the outstanding Securities of PLNL, in each case free and clear of any Liens and, except with
respect to the Securities of GrowHow, HATLP, OCOP and PLNL, free of any other limitation or
restriction (including any limitation or restriction on the right to vote, sell, transfer or
otherwise dispose of the Securities). All of such Securities so owned by the Company have been
duly authorized, validly issued, fully paid and nonassessable (and no such shares have been
issued in violation of any preemptive or similar rights). Except for the Securities of the
Company Subsidiaries, GrowHow, HATLP, OCOP and PLNL, the Company does not own, directly or
indirectly, any Securities in any Person.
Section 3.3 Capitalization.
(a) The authorized stock of the Company consists of 133,500,000 shares, without par value,
of which (i) 133,380,000 shares have been classified as Company Common Stock and (ii) 120,000
shares have been classified as Company Series A Preferred Stock.
(b) At the close of business on February 10, 2010: (i) 99,841,005 shares of Company Common
Stock were issued and outstanding, of which 202,200 were subject to vesting and other forfeiture
restrictions or repurchase conditions (each, a Company Restricted Share), (ii) 500
shares of Company Series A Preferred Stock were issued and outstanding, (iii) 4,053,961 shares
of Company Common Stock were reserved for issuance
pursuant to the Company Stock Plans and (iv) 50,200 shares of Company Common Stock were
reserved for issuance upon conversion of Company Series A Preferred Stock. Except as set forth
above, as of February 10, 2010, no Securities of the Company were issued, reserved for issuance
or outstanding. Except for the Company Restricted Shares, all issued and outstanding Company
Common Stock and Company Series A Preferred Stock have been, and all shares of Company Common
Stock that may be issued pursuant to the vesting of Company Stock-Based Awards or upon
conversion of Company Series A Preferred Stock will be, when issued in accordance with the terms
thereof, duly authorized, validly issued, fully paid and nonassessable and are subject to no
preemptive or similar rights.
(c) Section 3.3(c) of the Company Disclosure Letter sets forth each Company Stock
Plan and, as of February 12, 2010, the aggregate number of shares of Company Common Stock
relating to outstanding awards under each Company Stock Plan, determined assuming that the
maximum level of performance is achieved with respect to each Company Performance Award and
Company Phantom Performance Award. The Company has made
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available to Parent the form of
agreement related to each such award. No material changes have been made to such form in
connection with any award. The Company has made available to Parent a list that is current,
accurate and complete in all material respects, as of February 12, 2010, of each Company
Stock-Based Award, including the name of the holder thereof, the name of the Company Stock Plan
under which such award was granted and the number of shares of Company Common Stock subject
thereto, determined assuming that the maximum level of performance is achieved with respect to
each Company Performance Award and Company Phantom Performance Award.
(d) There are no preemptive or similar rights on the part of any holder of any class of
Securities of the Company or any Company Subsidiary. Neither the Company nor any Company
Subsidiary has outstanding any bonds, debentures, notes or other obligations the holders of
which have the right to vote (or which are convertible into or exercisable for Securities having
the right to vote) with the holders of any class of Securities of the Company or any Company
Subsidiary on any matter submitted to such holders of Securities. There are no Equity Rights,
commitments, contracts, arrangements or undertakings of any kind to which the Company or any
Company Subsidiary is a party or by which any of them is bound (i) obligating the Company or any
Company Subsidiary to issue, deliver, sell or transfer or repurchase, redeem or otherwise
acquire, or cause to be issued, delivered, sold or transferred or repurchased, redeemed or
otherwise acquired, any Securities of the Company or any Company Subsidiary, or any Equity
Rights of the Company or any Company Subsidiary, (ii) obligating the Company or any Company
Subsidiary to issue, grant, extend or enter into any such Equity Right, commitment, contract,
arrangement or undertaking or (iii) that give any Person the right to receive any economic
benefit or right similar to or derived from the economic benefits and rights accruing to holders
of Securities of the Company or any Company Subsidiary, except as set forth in the terms of the
Company Series A Preferred Stock or the Company Stock-Based Awards. There are no outstanding
contractual obligations of the Company or any Company Subsidiary to repurchase, redeem or
otherwise acquire any Securities or Equity Rights of the Company or any Company Subsidiary,
except as set forth in the terms of the Company Series A Preferred Stock or the Company
Stock-Based Awards. There are no proxies, voting trusts or other agreements or understandings
to which the Company or any Company Subsidiary is a party or is bound with respect to the voting
of the Securities of the Company. Solely for
purposes of this Section 3.3(d), HATLP, OCOP and PLNL shall each be deemed to be a
Company Subsidiary.
Section 3.4 Authorization; Board Approval; Voting Requirements.
(a) The Company has all requisite corporate power and authority to execute and deliver this
Agreement, to perform its obligations hereunder and, subject to the Company Stockholder
Approval, to consummate the Merger and the other transactions contemplated hereby. The
execution, delivery and performance of this Agreement and the consummation of the Merger and the
other transactions contemplated hereby have been duly and validly authorized by all necessary
corporate action, and no other corporate proceedings on the part of the Company are necessary
for it to authorize this Agreement or to consummate the transactions contemplated hereby,
except, in each case, for the approval of the Merger by the Company Stockholder Approval. This
Agreement has been duly and validly executed and delivered by the Company and, assuming due
authorization, execution and delivery by Parent
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and Merger Sub, is a legal, valid and binding
obligation of the Company, enforceable against the Company in accordance with its terms, subject
to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors rights and to general equity
principles.
(b) The Board of Directors of the Company, at a meeting duly called and held, duly and
unanimously adopted resolutions (i) determining that the terms of the Merger and the other
transactions contemplated by this Agreement are advisable to, and in the best interests of, the
Company and its stockholders, (ii) approving this Agreement, the Merger and the other
transactions contemplated by this Agreement, and (iii) recommending that the Companys
stockholders approve the Merger and the transactions contemplated hereby (the Company
Recommendation).
(c) The affirmative vote at the Company Stockholders Meeting of holders of a majority of
the outstanding shares of Company Common Stock to approve the Merger (the Company
Stockholder Approval) is the only vote of the holders of any class or series of Securities
of the Company necessary to approve this Agreement, the Merger and the other transactions
contemplated hereby.
Section 3.5 Takeover Statute; No Restrictions on the Merger.
The Board of Directors of the Company has adopted a resolution to exempt the Merger provided
for by this Agreement from Title 3, Subtitle 6 of the MGCL. Assuming the accuracy of the
representation of Parent and Merger Sub in Section 4.9, no state fair price,
moratorium, control share acquisition or similar anti-takeover statute (including Title 3,
Subtitle 7 of the MGCL) is applicable to this Agreement, the Merger or the other transactions
contemplated hereby.
Section 3.6 Consents and Approvals; No Violations.
(a) The execution and delivery of this Agreement by the Company does not and the
consummation by the Company of the transactions contemplated hereby will not: (i) conflict with
any provisions of the Constituent Documents of the Company, any
Company Subsidiary, HATLP, OCOP or PLNL, (ii) violate in any material respect any Law
binding upon or otherwise applicable to the Company, any Company Subsidiary, HATLP, OCOP or PLNL
or any of their respective material properties or assets (assuming compliance with the matters
set forth in Section 3.6(b)), (iii) result, after the giving of notice, with lapse of
time, or otherwise, in any material violation, default or loss of a benefit under, or permit the
acceleration or termination of any obligation under or require any consent under, any Company
Contract or any agreement relating to the Company Leased Real Property, (iv) result in the
creation or imposition of any Lien upon any properties or assets of the Company, any Company
Subsidiary, HATLP, OCOP or PLNL or (v) cause the suspension or revocation of any Company Permit,
except, in the case of clauses (iv) and (v), as would not, individually or in the aggregate,
reasonably be expected to result in a Material Adverse Effect on the Company or prevent or
materially delay the consummation of the transactions contemplated hereby.
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(b) No clearance, consent, approval, order, license or authorization of, or declaration,
registration or filing with, or notice to, or permit issued by, any Governmental Entity is
required to be made or obtained by the Company, any Company Subsidiary, HATLP, OCOP or PLNL in
connection with the execution or delivery of this Agreement by the Company or the consummation
by the Company of the transactions contemplated hereby, except for: (i) compliance with and
filing under the Hart-Scott Rodino Antitrust Improvements Act of 1976, as amended (the HSR
Act), and such other consents, registrations, declarations, notices or filings as are
required to be made or obtained under any antitrust, competition, trade regulation, foreign
investment review or similar Law of any jurisdiction outside of the United States (collectively,
Foreign Competition Laws), (ii) the filing of the Articles of Merger with, and
acceptance for record by, the State Department of Assessments and Taxation of Maryland in
accordance with the MGCL and appropriate documents with the relevant authorities of other states
in which the Company is qualified to do business, (iii) the filings with the Securities and
Exchange Commission (the SEC) of (A) the Proxy Statement in definitive form in
accordance with Regulation 14A promulgated under the Exchange Act and (B) such reports under and
such other compliance with the Exchange Act as may be required in connection with this Agreement
and the transactions contemplated hereby, (iv) submission of a notification to, and review by,
the Committee on Foreign Investment in the United States (CFIUS) pursuant to Section
721 of the Defense Production Act of 1950, as amended (the Exon-Florio Amendment), (v)
any such other clearance, consent, approval, order, license, authorization, declaration,
registration, filing, notice or permit, the failure of which to make or obtain would not,
individually or in the aggregate, reasonably be expected to materially adversely affect the
operations or business of the Company and its Subsidiaries or prevent or materially delay the
consummation of the transactions contemplated hereby.
Section 3.7 SEC Reports; Company Financial Statements.
(a) Each of the Company and TNCLP has timely filed or furnished all reports, schedules,
forms, statements and other documents required to be filed or furnished by it with or to the SEC
since January 1, 2009 (together with all exhibits, financial statements and schedules thereto
and all information incorporated therein by reference, the Company SEC Documents). As
of its respective date, or, if amended, as of the date of the last such amendment, each of the
Company SEC Documents complied when filed or furnished (or, if applicable, when amended) in all
material respects with the requirements of the Exchange Act,
the Securities Act and the Sarbanes-Oxley Act of 2002 and the related rules and regulations
promulgated under such Act (the Sarbanes-Oxley Act) applicable to such Company SEC
Documents, and none of the Company SEC Documents when filed or furnished (or in the case of a
registration statement under the Securities Act, at the time it was declared effective)
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. Other than TNCLP, none of the Company
Subsidiaries is required to make any filings with the SEC.
(b) The Company Financial Statements comply as to form in all material respects with
applicable accounting requirements and the published rules and regulations of the SEC with
respect thereto. The consolidated balance sheets (including the related notes) included in the
Company Financial Statements have been prepared in accordance
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with U.S. generally accepted
accounting principles (GAAP) applied on a consistent basis throughout the periods
presented and present fairly in all material respects the financial position of the Company and
the Company Subsidiaries as at the respective dates thereof, and the consolidated statements of
income, consolidated statements of stockholders equity and consolidated statements of cash
flows (in each case including the related notes) included in such Company Financial Statements
have been prepared in accordance with GAAP applied on a consistent basis throughout the periods
presented and present fairly in all material respects the results of operations, stockholders
equity and cash flows of the Company and the Company Subsidiaries for the respective periods
indicated (except, in the case of unaudited statements, as permitted by Form 10-Q of the SEC,
for normal year-end audit adjustments and for the absence of footnotes, if applicable).
Section 3.8 Absence of Undisclosed Liabilities. The Company and the Company Subsidiaries do not
have any liabilities or obligations, whether or not accrued, contingent or otherwise that would be
required by GAAP to be reflected on the consolidated balance sheet of the Company and the Company
Subsidiaries, except for liabilities and obligations (i) reflected on or reserved against in the
Company SEC Documents, (ii) incurred in connection with this Agreement or in the transactions
contemplated by this Agreement, (iii) incurred in the ordinary course of business or (iv) that,
individually or in the aggregate, have not resulted in and would not reasonably be expected to
result in a Material Adverse Effect on the Company.
Section 3.9 Proxy Statement; Parent Circular; Rights Offering Prospectus.
(a) None of the information contained in the Proxy Statement will, on the date first mailed
to the stockholders of the Company and at the time of the Company Stockholders 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. No representation or warranty is made by the Company
with respect to statements made or incorporated by reference in the Proxy Statement based on
information supplied by Parent or Merger Sub specifically for inclusion or incorporation by
reference in the Proxy Statement.
(b) None of the information supplied or to be supplied by the Company expressly for
inclusion or incorporation by reference in the Parent Circular or the Rights Offering Prospectus
will, on the date the Parent Circular and the Rights Offering Prospectus, respectively, are
first announced, 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.
Section 3.10 Absence of Certain Changes.
(a) From January 1, 2009 to the date of this Agreement, except as specifically contemplated
or required by this Agreement, (i) the Company and the Company Subsidiaries have conducted their
respective businesses in all material respects only in the ordinary course and in a manner
consistent with past practice in all material respects and (ii) there has not been any action
taken by the Company or any Company Subsidiary that, if taken during the period from the date of
this Agreement through the Effective Time, would constitute
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a breach of Section 5.1(b),
Section 5.1(c), Section 5.1(d), Section 5.1(e)(ii), Section
5.1(k) or Section 5.1(l).
(b) From January 1, 2009 to the date of this Agreement, and disregarding any action
specifically contemplated or required by this Agreement, there has not been (i) any action taken
by the Company or any Company Subsidiary with respect to any participant in the 2009 Officers
and Key Employees Annual Incentive Plan or the 2010 Officers and Key Employees Annual Incentive
Plan that, if taken during the period from the date of this Agreement through the Effective
Time, would constitute a breach of Section 5.1(g) or (ii) any other establishment or
entry into any Company Benefit Plan under which the negotiation or execution of this Agreement,
the obtaining of the Company Stockholder Approval or the consummation of the transactions
contemplated by this Agreement (alone or in conjunction with any other event, including any
termination of employment on or following the Effective Time) will (A) entitle any current or
former director, officer, employee or independent contractor of the Company or any Company
Subsidiary to any compensation or benefit, (B) accelerate the time of payment or vesting, or
trigger any payment or funding, of any compensation or benefits, or trigger any other obligation
or (C) result in any breach or violation of, default under or limit the Companys right to
amend, modify or terminate such Company Benefit Plan.
(c) Since January 1, 2009, there has not been any change, development, event, occurrence,
effect or state of facts that, individually or in the aggregate, has resulted in or would
reasonably be expected to result in a Material Adverse Effect on the Company.
Section 3.11 Litigation. There is no suit, action, proceeding, claim, review or investigation
(whether at law or in equity, before or by any Governmental Entity) pending, affecting, or to the
knowledge of the Company, threatened against the Company or any Company Subsidiary or their
respective
properties or assets that, individually or in the aggregate, has resulted in or would
reasonably be expected to result in a Material Adverse Effect on the Company. There is no Order of
any Governmental Entity outstanding against the Company or any Company Subsidiary or their
respective properties or assets that, individually or in the aggregate, has resulted in or would
reasonably be expected to result in a Material Adverse Effect on the Company.
Section 3.12 Compliance with Laws.
(a) Each of the Company, the Company Subsidiaries and, to the knowledge of the Company,
HATLP, OCOP and PLNL, hold all permits, licenses, variances, exemptions, Orders and approvals of
all Governmental Entities necessary for the lawful conduct of their respective businesses or
ownership of their respective properties and assets (the Company Permits), except
where the failure to hold such Company Permits, individually or in the aggregate, would not
materially adversely affect the business or operations of the Company and its Subsidiaries.
Each of the Company, the Company Subsidiaries, and, to the knowledge of the Company, HATLP, OCOP
and PLNL, is in compliance with the terms of the Company Permits, except where the failure to
comply with such Company Permits, individually or in the aggregate, would not materially
adversely affect the business or operations of the Company and its Subsidiaries.
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(b) The businesses of the Company, the Company Subsidiaries and, to the knowledge of the
Company, HATLP, OCOP and PLNL, are conducted in material compliance with all Laws and Orders.
Each of the Company, the Company Subsidiaries, HATLP, OCOP and PLNL is in compliance in all
material respects with its Constituent Documents. Since January 1, 2009, none of the Company,
any of its Subsidiaries or, to the knowledge of the Company, HATLP, OCOP or PLNL, has received
from a Governmental Entity any written notice or written communication of any noncompliance in
any material respect with any Laws or Orders, except where the receipt of such notice or
communication would not materially adversely affect the business or operations of the Company
and its Subsidiaries. This section does not relate to Tax matters, employee benefits matters,
labor matters, Intellectual Property matters or environmental matters, which are separately
addressed in Section 3.13, Section 3.15, Section 3.16, Section
3.17 and Section 3.19, respectively.
(c) Each of the principal executive officer and the principal financial officer of the
Company or TNCLP, as applicable (or each former principal executive officer and each former
principal financial officer of the Company or TNCLP, as applicable) has made all certifications
required by Rule 13a-14 or 15d-14 under the Exchange Act and Sections 302 and 906 of the
Sarbanes-Oxley Act with respect to the Company SEC Documents, and the statements contained in
such certifications are true and accurate as of the date such certifications were made. For
purposes of this Agreement, principal executive officer and principal financial
officer shall have the meanings given to such terms in the Sarbanes-Oxley Act. Since
January 1, 2009, the Company has complied in all material respects with the provisions of the
Sarbanes-Oxley Act.
(d) The Company maintains a system of internal control over financial reporting (as
defined in Rules 13a-15(f) and 15(d)-15(f) of the Exchange Act) in compliance with the Exchange
Act.
(e) Since January 1, 2009, neither the Companys outside auditors nor the audit committee
of the Board of Directors of the Company has been advised of (i) any material weaknesses in
the design or operation of internal control over financial reporting or (ii) any fraud that
involves management or other employees who have a significant role in the Companys internal
control over financial reporting. For purposes of this Agreement, the term material
weakness shall have the meaning assigned to it in the Statement of Auditing Standards No.
60, as in effect on the date hereof.
Section 3.13 Taxes.
(a) (i) The Company and each Company Subsidiary has (x) duly and timely filed or has caused
to be filed with the appropriate Governmental Entities or Taxing Authorities all Tax Returns
required to be filed by them in respect of any material Taxes, which Tax Returns were true,
correct and complete in all material respects, or requests for extensions to file such Tax
Returns have been timely filed, granted and have not expired and (y) duly and timely paid in
full or withheld (or the Company has paid or withheld on the Company Subsidiaries behalf) all
material Taxes that are due and payable by them, other than Taxes that are being contested in
good faith in appropriate proceedings or for which adequate reserves are reflected, in
accordance with GAAP, in the Company Financial Statements; (ii) none of the
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Company or any
Company Subsidiary has any extension or waiver of the limitation period applicable to the
payment or collection of material Taxes currently in effect; (iii) there are no Liens for
material Taxes upon any property or assets of the Company or any Company Subsidiary, except for
Permitted Liens; (iv) there are no requests for rulings or determinations in respect of any
material Taxes or material Tax Returns pending between the Company or any Company Subsidiary and
any authority responsible for such Taxes or Tax Returns; (v) no deficiency for any material Tax
has been asserted or assessed by any Governmental Entity or Taxing Authority in writing against
the Company or any Company Subsidiary, except for deficiencies which have been satisfied by
payment, settled or been withdrawn, or which are being contested in good faith by appropriate
proceedings or for which adequate reserves are reflected, in accordance with GAAP, in the
Company Financial Statements; (vi) neither the Company nor any Company Subsidiary is party to
any material tax sharing agreements, tax indemnity agreements or other similar agreements (other
than such an agreement or arrangement exclusively between or among the Company and the Company
Subsidiaries); (vii) none of the Company or any Company Subsidiary has any liability for
material Taxes as a result of having been a member of any affiliated group within the meaning of
Section 1504(a) of the Code, or any similar affiliated or consolidated group for tax purposes
under state, local or foreign law (other than a group the common parent of which is the Company
or any Company Subsidiary), or has any liability for the material Taxes of any Person (other
than the Company or the Company Subsidiaries) under Treasury Regulations Section 1.1502-6 (or
any similar provision of state, local or foreign law), or as a transferee or successor, by
contract or otherwise; (viii) none of the Company or any Company Subsidiary will be required to
include in income after the Closing any material adjustment pursuant to Section 481 of the Code
(or any similar provision of state, local or foreign Law) by reason of a change in accounting
method by the Company or any Company Subsidiary prior to Closing; and (ix) (w) TNCLP is a
publicly traded partnership, the interests of which are either traded on an established
securities market or readily tradable on a secondary market (or the substantial equivalent
thereof), (x) TNCLP is treated as a partnership for U.S. federal income tax purposes, (y) TNCLP
has satisfied the
passive income test of Section 7704(c) of the Code for each taxable year after 1987 in
which it was a publicly traded partnership and (z) TNCLP has not registered as a management
company or unit investment trust under the Investment Company Act of 1940, as amended.
(b) Neither the Company nor any Company Subsidiary has participated in a listed
transaction within the meaning of Treasury Regulations Section 1.6011-4(b)(2).
(c) Neither the Company nor any Company Subsidiary has been a controlled corporation or a
distributing corporation in any distribution of stock qualifying for tax-free treatment under
Section 355 of the Code occurring during the two-year period ending on the date hereof.
(d) The representations and warranties in this Section 3.13 and Section
3.15 are the exclusive representations and warranties by the Company and each Company
Subsidiary relating to Tax matters.
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Section 3.14 Real Property.
(a) Except as, individually or in the aggregate, has not resulted in and would not
reasonably be expected to result in a Material Adverse Effect on the Company, with respect to
each parcel of Company Owned Real Property: (i) the Company or a Company Subsidiary has good and
marketable title to such Company Owned Real Property, free and clear of any Liens, other than
Permitted Liens, (ii) neither the Company nor any Company Subsidiary has leased or otherwise
granted to anyone the right to use or occupy such parcel of Company Owned Real Property or any
portion thereof, (iii) there are no outstanding options, rights of first offer or rights of
first refusal to purchase any such parcel of Company Owned Real Property or any portion thereof
or interest therein, (iv) all buildings, structures, fixtures and improvements on the Company
Owned Real Property are in good condition and repair and (v) there is no condemnation or other
proceeding in eminent domain, pending or, to the knowledge of the Company, threatened, affecting
any parcel of Company Owned Real Property or any portion thereof or interest therein.
(b) Except as, individually or in the aggregate, has not resulted in and would not
reasonably be expected to result in a Material Adverse Effect on the Company: (i) each of the
Company Leases is in full force and effect and constitutes a legal, valid and binding obligation
of the Company or the applicable Company Subsidiary, (ii) there are no outstanding options or
rights of any party to terminate any Company Lease prior to the expiration of the term thereof,
(iii) neither the Company nor any Company Subsidiary is in default under any Company Lease, nor
has any notice of default been received by the Company or any Company Subsidiary, (iv) there are
no leases, subleases, licenses, concessions or other agreements pursuant to which the Company or
any Company Subsidiary has granted to any Person the right of use or occupancy of any portion of
the Company Leased Real Property held by the Company or any Company Subsidiary under a Company
Lease, (v) all buildings, structures, fixtures and improvements on the Company Leased Real
Property are in good condition and repair and (vi) there is no condemnation or other proceeding
in eminent domain pending or, to the knowledge of the Company, threatened, affecting any parcel
of Company Leased Real Property or any portion thereof or interest therein.
Section 3.15 Employee Benefit Plans and Related Matters; ERISA.
(a) Section 3.15(a) of the Company Disclosure Letter sets forth a true and complete
list of each material Company Benefit Plan. With respect to each material Company Benefit Plan,
the Company has made available to Parent a current, accurate and complete copy thereof, and, to
the extent applicable: (i) any related trust agreement or other funding instrument, (ii) the
most recent determination letter, if applicable, (iii) any summary plan description and
summaries of material modifications and (iv) the most recent years Form 5500 and attached
schedules, actuarial valuation reports and audited financial statements.
(b) Each Company Benefit Plan intended to be qualified within the meaning of Section
401(a) of the Code has received a favorable determination letter from the IRS as to its
qualification and, to the knowledge of the Company, no event has occurred that would reasonably
be expected to result in disqualification of such Company Benefit Plan. Each of the Company
Benefit Plans has been operated and administered in all material respects in
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accordance with its
terms and all applicable Laws, including ERISA and the Code, and the terms of any applicable
collectively bargained agreements. There are no pending or, to the knowledge of the Company,
threatened actions, suits, audits, proceedings or claims by or on behalf of any of the Company
Benefit Plans, by any employee or beneficiary covered under any Company Benefit Plan or
otherwise involving any Company Benefit Plan (other than routine claims for benefits) that
would, individually or in the aggregate, reasonably be expected to result in any material
liability to the Company or any Company Subsidiary. No Company Benefit Plan is a multiemployer
plan within the meaning of Section 4001(a)(3) of ERISA or a multiple employer welfare
arrangement as defined in Section 3(40) of ERISA. With respect to each of the Company Benefit
Plans that is subject to Title IV of ERISA, the present value of projected benefit obligations
under such Company Benefit Plan calculated using the actuarial methods and assumptions used for
funding such plan did not, as of its latest actuarial valuation prior to the date of this
Agreement, exceed the then current value of the assets of such Company Benefit Plan allocable to
such projected benefit obligations. No event has occurred and, to the knowledge of the Company,
no condition exists that would subject the Company or any Company Subsidiary, either directly or
by reason of their affiliation with any ERISA Affiliate, to any material Tax, Lien, fine,
penalty or other liability imposed by ERISA, the Code or other applicable Law. Each Company
Benefit Plan that constitutes in any part a nonqualified deferred compensation plan within the
meaning of Section 409A of the Code has been operated and maintained in all material respects in
operational and documentary compliance with Section 409A of the Code and all IRS guidance
promulgated thereunder, to the extent such section and such guidance have been applicable to
such Company Benefit Plan.
(c) No Company Benefit Plan provides health or welfare benefits (whether or not insured),
with respect to current or former employees or directors of the Company or any Company
Subsidiary or other Persons beyond their retirement or other termination of service, other than
(i) coverage mandated solely by applicable Law, (ii) benefits the full costs of which are borne
by the current or former employee or director or other Person or (iii) as required under any
Company Benefit Plan that provides long-term disability benefits that have been fully provided
for by insurance thereunder.
(d) None of the negotiation or the execution of this Agreement, the obtaining of the
Company Stockholder Approval or the consummation of the transactions contemplated by this
Agreement (alone or in conjunction with any other event, including any termination of employment
on or following the Effective Time) will (i) entitle any current or former director, officer,
employee or independent contractor of the Company or any Company Subsidiary to any compensation
or benefit, (ii) accelerate the time of payment or vesting, or trigger any payment or funding,
of any compensation or benefits, or trigger any other obligation, under any Company Benefit
Plan, (iii) result in any breach or violation of, default under or limit the Companys right to
amend, modify or terminate any Company Benefit Plan or (iv) result in the payment of any amount
that would not be deductible as a result of Section 280G of the Code. There is no agreement,
plan or other arrangement to which the Company or any Company Subsidiary is a party or by which
any of them is otherwise bound to compensate any Person in respect of Taxes pursuant to Section
409A or 4999 of the Code.
(e) With respect to each Company Benefit Plan established or maintained outside of the U.S.
primarily for the benefit of employees of the Company or any
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Company Subsidiary residing outside
of the U.S. (a Foreign Company Benefit Plan), and except as, individually or in the
aggregate, has not resulted in and would not reasonably be expected to result in any material
liability to the Company or any Company Subsidiary: (i) all employer and employee contributions
to each Foreign Company Benefit Plan required by Law or by the terms of such Foreign Company
Benefit Plan have been made, or, if applicable, accrued, in accordance with normal accounting
practices, (ii) the fair market value of the assets of each funded Foreign Company Benefit Plan,
the liability of each insurer for any Foreign Company Benefit Plan funded through insurance or
the book reserve established for any Foreign Company Benefit Plan, together with any accrued
contributions, are sufficient to procure or provide for the accrued benefit obligations with
respect to all current and former participants in such plan according to the actuarial
assumptions and valuations most recently used to determine employer contributions to such
Foreign Company Benefit Plan and no transaction contemplated by this Agreement shall cause such
assets or insurance obligations to be less than such benefit obligations, and (iii) each Foreign
Company Benefit Plan required to be registered has been registered and has been maintained in
good standing with applicable regulatory authorities.
(f) The representations and warranties in this Section 3.15 are the exclusive
representations and warranties by the Company and each Company Subsidiary relating to employee
benefit matters.
Section 3.16 Employees; Labor Matters.
(a) Neither the Company nor any Company Subsidiary is party to, bound by, or in the process
of negotiating, a collective bargaining agreement, work rules or practices, or similar
labor-related agreement or understanding with any labor union or labor organization.
(b) As of the date of this Agreement, except as, individually or in the aggregate, has not
resulted in and would not reasonably be expected to result in material liability to the Company
or any Company Subsidiary, none of the employees of the Company or
any Company Subsidiary is represented by a labor union or other labor organization and (i)
there is no organizational effort currently being made or threatened by or on behalf of any
labor union or labor organization to organize any employees of the Company or any Company
Subsidiary, (ii) no written demand for recognition of any employees of the Company or any
Company Subsidiary has been made by or on behalf of any labor union or labor organization in the
past three (3) years and (iii) no petition has been filed, nor has any proceeding been
instituted by any employee of the Company or any Company Subsidiary or group of employees of the
Company or any Company Subsidiary with any labor relations board or commission of any
Governmental Entity seeking recognition of a collective bargaining representative in the past
three (3) years.
(c) As of the date of this Agreement, except as, individually or in the aggregate, has not
resulted in and would not reasonably be expected to result in material liability to the Company
or any Company Subsidiary, there is no pending or threatened strike, lockout, work stoppage,
slowdown, picketing or grievance or labor dispute with respect to or
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involving any employees of
the Company or any Company Subsidiary, and there has been no such action or event in the past
three (3) years.
(d) Except as, individually or in the aggregate, has not resulted in and would not
reasonably be expected to result in material liability to the Company or any Company Subsidiary,
the Company and the Company Subsidiaries are in compliance with all obligations of the Company
or any of the Company Subsidiaries under any employment agreement, severance agreement,
collective bargaining agreement or any similar employment or labor-related agreement or
understanding.
(e) The representations and warranties in this Section 3.16 are the exclusive
representations and warranties by the Company and each Company Subsidiary relating to labor
matters.
Section 3.17 Intellectual Property.
(a) The Company owns or has a valid right to use, free and clear of all Liens (except
Permitted Liens), all of the Intellectual Property used in the conduct of the business of the
Company and the Company Subsidiaries (Company Intellectual Property), except where the
failure to own or otherwise have a right to use such Company Intellectual Property, individually
or in the aggregate, has not resulted in and would not reasonably be expected to result in a
Material Adverse Effect on the Company.
(b) There are no pending, or to the knowledge of the Company, threatened claims, suits,
arbitrations or other adversarial proceedings before any Governmental Entity in any jurisdiction
alleging that the activities or conduct of the business of the Company and the Company
Subsidiaries infringe upon, misappropriate, or otherwise violate the Intellectual Property,
trade secrets or other confidential information, know how, proprietary processes, formulae,
algorithms or models of any third party or challenging the Companys ownership, use, validity,
enforceability, or registrability of any Company Owned Intellectual Property, except for such
claims, suits, arbitrations or other adversarial proceedings that,
individually or in the aggregate, have not resulted in and would not reasonably be expected
to result in a Material Adverse Effect on the Company.
(c) To the knowledge of the Company, as of the date of this Agreement, neither the Company
nor any Company Subsidiary is infringing upon, misappropriating, or otherwise violating any
Intellectual Property, trade secrets or other confidential information, know how, proprietary
processes, formulae, algorithms or models of any other Person, except for such infringements,
misappropriations, or other violations that, individually or in the aggregate, would not
reasonably be expected to result in a Material Adverse Effect on the Company.
(d) To the knowledge of the Company, as of the date of this Agreement, no third party is
misappropriating, infringing, or otherwise violating any Company Intellectual Property, except
for such infringements, misappropriations, or other violations that, individually or in the
aggregate, would not reasonably be expected to result in a Material Adverse Effect on the
Company.
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(e) The representations and warranties in this Section 3.17 are the exclusive
representations and warranties by the Company and each Company Subsidiary relating to
Intellectual Property matters.
Section 3.18 Contracts.
(a) Except as filed as an exhibit to a Company SEC Document prior to the date of this
Agreement, and except for the Company Benefit Plans, each of the following contracts, agreements
or arrangements are set forth in Section 3.18(a) of the Company Disclosure Letter:
(i) any agreement relating to indebtedness (other than agreements among direct
or indirect wholly owned Company Subsidiaries) in excess of $10 million;
(ii) any joint venture, partnership, limited liability company or other similar
agreements or arrangements relating to the formation, creation, operation,
management or control of any partnership, strategic alliance or joint venture;
(iii) any agreement or series of related agreements, including any option
agreement, relating to the acquisition or disposition of any material business or
material real property (whether by merger, sale of stock, sale of assets or
otherwise) exceeding $15 million individually or $30 million in the aggregate for a
series of related agreements;
(iv) any agreement (including any exclusivity agreement) that purports to limit
or restrict in any material respect either the type of business in which the Company
or any Company Subsidiary (or, after the Effective Time, the Surviving Corporation
or its Subsidiaries) may engage or the manner or locations in which any of them may
so engage in any business in which the Company is
currently engaged including any covenant not to compete, or that could require
the disposition of any material assets or line of business of the Company or any
Company Subsidiary;
(v) any agreement providing for the production by the Company or any Company
Subsidiary of any product on an exclusive or requirements basis or the purchase by
the Company or any Company Subsidiary of any product on an exclusive or output
basis, in each case not entered into in the ordinary course of business consistent
with past practice;
(vi) any material contract (as such term is defined in Item 601(b)(10) of
Regulation S-K of the SEC).
(vii) any agreement that involves expenditures or receipts of the Company or
any Company Subsidiary in excess of $10 million per year not entered into in the
ordinary course of business consistent with past practice;
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(viii) any agreement by which the Company or any Company Subsidiary licenses or
otherwise obtains the right to use material Intellectual Property rights of any
other Person (other than licenses for readily available commercial software) or by
which the Company or any Company Subsidiary is restricted in its right to use or
register, or licenses or otherwise permits any other Person to use, enforce, or
register any material Company Owned Intellectual Property; or
(ix) any agreement the termination or breach of which would reasonably be
expected to result in a Material Adverse Effect on the Company.
(b) The agreements, arrangements and plans that are required to be set forth in Section
3.18(a) of the Company Disclosure Letter, or that would be required to be set forth but for
the filing thereof as exhibits to the Company SEC Documents, are referred to herein as the
Company Contracts. Except with respect to matters that, individually or in the
aggregate, have not resulted in and would not reasonably be expected to result in a material
adverse effect on the business or operations of the Company and its Subsidiaries, each Company
Contract is a valid and binding agreement of the Company or a Company Subsidiary, as the case
may be, and is in full force and effect, and none of the Company, any Company Subsidiary or, to
the knowledge of the Company, any other party thereto is in default or breach in any material
respect under the terms of any such Company Contract; and since January 1, 2009, neither the
Company nor any Company Subsidiary, as the case may be, has waived any material right or
relinquished any material benefit under any such Company Contract; and no event has occurred,
which, after the giving of notice, with lapse of time, or otherwise, would constitute a material
default by the Company or any Company Subsidiary or, to the knowledge of the Company, any other
party under such Company Contract. True, correct and complete copies of each such Company
Contract (including all modifications and amendments thereto and waivers thereunder) have been
made available to Parent.
Section 3.19 Environmental Laws and Regulations.
(a) (i) The Company and each Company Subsidiary has been, for the past three years, and is,
in material compliance with all applicable Environmental Laws and (ii) the Company and each
Company Subsidiary has obtained (and, to the extent required by Environmental Law, has applied
for the renewal of) and is in material compliance with all Environmental Permits necessary for
the ownership and operation of its respective businesses and facilities, all such Environmental
Permits are in effect, and no appeal or other action is pending to revoke or modify any such
Environmental Permit.
(b) Except for matters that have been fully resolved with no further liability or
obligation to the Company or any Company Subsidiary, no material written notice of violation,
notification of liability, demand, request for information, complaint, action, suit, notice of
investigation, citation, summons or order (judicial or administrative) relating to or arising
out of any Environmental Law has been received by the Company or any Company Subsidiary.
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(c) No Release of Hazardous Substances has occurred at, on, above, under or from any
properties currently or, to the knowledge of the Company, formerly owned, leased, operated or
used by the Company or any Company Subsidiary in a manner that is reasonably likely to result in
a material claim pursuant to applicable Environmental Law against the Company or any Company
Subsidiary.
(d) During the past three years, the Company and the Company Subsidiaries have not
generated, treated, stored, Released, transported or arranged for transportation or disposal of
any Hazardous Substances at, to or from any location except in material compliance with
Environmental Laws and as would not reasonably be expected to result in a material claim
pursuant to applicable Environmental Law against the Company or any Company Subsidiary.
(e) There are no material claims pending or, to the knowledge of the Company, threatened
against the Company or any Company Subsidiary by any employees of the Company or any Company
Subsidiary alleging exposure to Hazardous Substances arising from or as the result of their
employment with the Company or any Company Subsidiary.
(f) The Company and the Company Subsidiaries are not subject to any consent decrees,
administrative or judicial orders, judgments, or settlement agreements imposing any material
obligations or liabilities on the Company or any Company Subsidiary, and have not entered into
any agreements that may require them to pay to, guarantee, reimburse, pledge, defend, indemnify
or hold harmless any Person from or against any material liabilities or costs, arising out of or
related to the generation, manufacture, use, transport, or disposal of Hazardous Substances, or
otherwise in connection with or under any Environmental Law.
(g) There are no former operations of the Company or any Company Subsidiary, or any former
Company Subsidiary, that are the subject of a pending material claim,
proceeding, action, investigation, or order (civil or criminal) pursuant to applicable
Environmental Law and to the Companys knowledge, no events, actions or operations associated
with such former operations or subsidiaries are reasonably likely to result in a material claim
pursuant to applicable Environmental Law against the Company or any Company Subsidiary.
(h) The representations and warranties in this Section 3.19 are the exclusive
representations and warranties by the Company and each Company Subsidiary relating to
environmental matters.
Section 3.20 Insurance. The Company and the Company Subsidiaries maintain policies of insurance in
such amounts and against such risks as are customary in the industry in which the Company and its
Subsidiaries operate. Except as would not, individually or in the aggregate, reasonably be
expected to result in a Material Adverse Effect on the Company, all such insurance policies are in
full force and effect and will not be affected by, or terminate or lapse by reason of, this
Agreement or the consummation of the transactions contemplated hereby.
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Section 3.21 Improper Payments. Neither the Company nor any Company Subsidiary, nor any of their
respective officers, directors, employees, agents or Persons acting on their behalf has, in
connection with the operation of their respective Company businesses, used any corporate or other
funds for bribes, kickbacks or unlawful contributions or payments.
Section 3.22 Opinion of Financial Advisor. The Company has received the opinion of Credit Suisse
Securities (USA) LLC (the Company Financial Advisor), dated as of February 12, 2010 (the
Fairness Opinion), to the effect that, as of the date of such opinion and subject to the
procedures followed, and the qualifications and limitations set forth therein, the consideration to
be provided pursuant to this Agreement is fair, from a financial point of view, to the holders of
Company Common Stock. The Company has made available to Parent a true, correct and complete copy
of the Fairness Opinion.
Section 3.23 Brokers. No Person other than the Company Financial Advisor and William Loomis is
entitled to any brokerage, financial advisory, finders or similar fee or commission payable by any
Party hereto in connection with the transactions contemplated by this Agreement based upon
arrangements made by or on behalf of the Company or any Company Subsidiary. The Company has made
available to Parent a true, correct and complete copy of any agreement related to the matters
contemplated by the foregoing sentence.
Section 3.24 No Other Representations and Warranties. Except for the representations
and warranties made by the Company in this ARTICLE III, neither the Company nor any other
Person makes any representation or warranty with respect to the Company or its Subsidiaries or
their respective business, operations, assets, liabilities, condition (financial or
otherwise) or prospects, notwithstanding the delivery or disclosure to Parent or any of its
Affiliates or representatives of any documentation, forecasts or other information with respect to
any one or more of the foregoing. In particular, and without limiting the foregoing disclaimer,
neither the Company nor any other Person makes or has made any representation or warranty to
Parent, Merger Sub or any of their Affiliates with respect to (i) any financial projection,
forecast, estimate, budget or prospect information relating to the Company, any of its Subsidiaries
or their respective businesses, or (ii) except for the representations and warranties made by the
Company in this ARTICLE III, any oral or written information presented to Parent, Merger
Sub or any of their Affiliates in the course of their due diligence investigation of the Company,
the negotiation of this Agreement or the course of the transactions contemplated hereby.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB
Parent and Merger Sub jointly and severally represent and warrant to the Company as follows:
Section 4.1 Organization. Each of Parent and Merger Sub is duly organized and validly existing
(and, in the case of Merger Sub, in good standing) under the laws of the jurisdiction in which it
is organized and has the requisite corporate power and authority to carry on its business as now
being conducted. Each of Parent and Merger Sub is duly qualified or licensed to do business and is
in good standing in each jurisdiction in which the nature of its business or the
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ownership, leasing
or operation of its properties makes such qualification or licensing necessary, except for those
jurisdictions in which the failure to be so qualified or licensed or to be in good standing,
individually or in the aggregate, has not resulted in and would not reasonably be expected to
result in a Material Adverse Effect on Parent.
Section 4.2 Merger Sub.
(a) Since the date of its incorporation, Merger Sub has not carried on any business or
conducted any operations (other than the execution of this Agreement, the performance of its
obligations hereunder and matters ancillary thereto).
(b) As of the date of this Agreement, the authorized stock of Merger Sub consists of 1,000
shares of common stock, par value $0.01 per share, all of which have been validly issued, are
fully paid and nonassessable and are owned by Parent free and clear of any Lien.
Section 4.3 Authorization; Board Approval; Voting Requirements.
(a) Each of Parent and Merger Sub has all requisite corporate power and authority to
execute and deliver this Agreement, to perform its obligations hereunder and, subject to the
Parent Stockholder Approval, to consummate the Merger and the other transactions contemplated
hereby. The execution, delivery and performance of this Agreement and the consummation of the
Merger and the other transactions contemplated hereby have been
duly and validly authorized by all necessary corporate action and no other corporate
proceedings on the part of either Parent or Merger Sub are necessary for Parent and Merger Sub
to authorize this Agreement or to consummate the transactions contemplated hereby, except, in
each case, for the approval of the Rights Issue by the Parent Stockholder Approval. This
Agreement has been duly and validly executed and delivered by each of Parent and Merger Sub and,
assuming due authorization, execution and delivery by the Company, is a legal, valid and binding
obligation of each of Parent and Merger Sub, enforceable against each of Parent and Merger Sub
in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability relating to or affecting
creditors rights and to general equity principles.
(b) The Board of Directors of Parent, at a meeting duly called and held, duly and
unanimously adopted resolutions (i) determining that the terms of the Merger and the other
transactions contemplated by this Agreement are advisable to, and in the best interests of,
Parent and its stockholders and (ii) approving this Agreement, the Merger and the other
transactions contemplated by this Agreement.
(c) Merger Sub has taken all necessary corporate action to approve this Agreement, the
Merger and the other transactions contemplated by this Agreement.
(d) The affirmative vote at the Parent Stockholders Meeting of holders of at least
two-thirds of the shares of Parent Common Stock represented in person or by proxy at the Parent
Stockholders Meeting to approve the Rights Issue (the Parent Stockholder Approval) is
the only vote of the holders of any class or series of Securities of Parent
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necessary to approve
this Agreement, the Merger and the other transactions contemplated hereby.
Section 4.4 Consents and Approvals; No Violations.
(a) The execution and delivery of this Agreement by each of Parent and Merger Sub does not
and the consummation by each of Parent and Merger Sub of the transactions contemplated hereby
will not: (i) conflict with any provisions of the Parent or Merger Sub Constituent Documents;
(ii) violate in any material respect any Law binding upon or otherwise applicable to Parent or
any Parent Subsidiary or any of their respective material properties or assets (assuming
compliance with the matters set forth in Section 4.4(b)); (iii) result, after the giving
of notice, with lapse of time, or otherwise, in any material violation, default or loss of a
benefit under, or permit the acceleration or termination of any obligation under or require any
consent under, any mortgage, indenture, lease, agreement or other instrument, permit,
concession, grant, franchise or license of, or binding upon Parent or any Parent Subsidiary or
any of their respective properties or assets; (iv) result in the creation or imposition of any
Lien upon any properties or assets of Parent or any Parent Subsidiary; or (v) cause the
suspension or revocation of any Parent Permit, except, in the case of clauses (iv) and (v), as
would not, individually or in the aggregate, reasonably be expected to result in a Material
Adverse Effect on Parent or prevent or materially delay the consummation of the transactions
contemplated hereby.
(b) No clearance, consent, approval, order, license or authorization of, or declaration,
registration or filing with, or notice to, or permit issued by, any Governmental Entity is
required to be made or obtained by Parent or any Parent Subsidiary in connection with the
execution or delivery of this Agreement by each of Parent and Merger Sub or the consummation by
each of Parent and Merger Sub of the transactions contemplated hereby, except for: (i)
compliance with and filing under the HSR Act and such other consents, registrations,
declarations, notices or filings as are required to be made or obtained under any Foreign
Competition Law, (ii) the filing of the Articles of Merger with, and acceptance for record by,
the State Department of Assessments and Taxation of Maryland in accordance with the MGCL and
appropriate documents with the relevant authorities of other states in which Parent is qualified
to do business, (iii) the filings with the SEC of (A) the Proxy Statement in definitive form in
accordance with Regulation 14A promulgated under the Exchange Act and (B) such reports under and
such other compliance with the Exchange Act as may be required in connection with this Agreement
and the transactions contemplated hereby, (iv) submission of a notification to, and review by,
CFIUS pursuant to the Exon-Florio Amendment, (vi) the required approvals of the Government of
Norway and any Governmental Entity thereof and (vi) any such other clearance, consent, approval,
order, license authorization, declaration, registration, filing, notice or permit, the failure
of which to make or obtain would not, individually or in the aggregate, reasonably be expected
to result in a Material Adverse Effect on Parent or prevent or materially delay the consummation
of the transactions contemplated hereby.
Section 4.5 Parent Circular; Rights Offering Prospectus, Proxy Statement.
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(a) None of the information contained in the Parent Circular or the Rights Offering
Prospectus will, on date of announcement of the Parent Circular or the Rights Offering
Prospectus, respectively, 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. No
representation or warranty is made by Parent with respect to statements made or incorporated by
reference in the Parent Circular or the Rights Offering Prospectus based on information supplied
by the Company specifically for inclusion or incorporation by reference in the Parent Circular
or the Rights Offering Prospectus.
(b) None of the information supplied or to be supplied by Parent or Merger Sub expressly
for inclusion or incorporation by reference in the Proxy Statement will, on the date first
mailed to the stockholders of the Company and at the time of the Company Stockholders 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.
Section 4.6 Litigation. There is no suit, action, proceeding, claim, review or
investigation (whether at law or in equity, before or by any Governmental Entity) pending,
affecting, or to the knowledge of Parent, threatened against Parent or any Parent Subsidiary or
their respective properties or assets that, individually or in the aggregate, has resulted in or
would
reasonably be expected to result in a Material Adverse Effect on Parent. There is no Order of
any Governmental Entity outstanding against Parent or any Parent Subsidiary or their respective
properties or assets that, individually or in the aggregate, has resulted in or would reasonably be
expected to result in a Material Adverse Effect on Parent.
Section 4.7 Brokers. No Person other than Citigroup Global Markets Limited is entitled to any
brokerage, financial advisory, finders or similar fee or commission payable by Parent in
connection with the transactions contemplated by this Agreement based upon arrangements made by or
on behalf of Parent.
Section 4.8 Financing. Parent will have as of the Closing sufficient aggregate proceeds available
for Merger Sub to pay the aggregate Merger Consideration and the Equity Award Amount in accordance
with Section 2.9 and to pay all fees and expenses payable by them in connection with the
transactions contemplated by this Agreement.
Section 4.9 Takeover Statute. Neither Parent nor Merger Sub is an interested stockholder or an
affiliate of an interested stockholder of the Company (both as defined in Section 3-601 of the
MGCL).
Section 4.10 No Withholding Tax. No withholding Tax will be imposed under the laws of
Norway on the Merger Consideration or any amounts payable pursuant to this Agreement to holders of
Company Stock-Based Awards (i) except to the extent that a holder is subject to such withholding as
a result of being or having been resident for Tax purposes in, or having or having had a taxable
presence (other than solely by reason of receiving the consideration otherwise payable under this
Agreement) in, Norway, and (ii) except in the case of Company
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Stock-Based Awards, for withholding
Tax on compensation income of service providers that are performing or have performed services in
Norway.
ARTICLE V
COVENANTS RELATING TO CONDUCT OF BUSINESS
Section 5.1 Covenants of the Company. From the date of this Agreement until the Effective Time,
unless Parent shall otherwise consent in writing (which consent shall not be unreasonably withheld
or delayed) or except as set forth in Section 5.1 of the Company Disclosure Letter or as
otherwise expressly provided for or contemplated by this Agreement or as may be required by
applicable Law, the Company shall, and shall cause each of the Company Subsidiaries to, conduct its
business in all material respects in the ordinary course and in a manner consistent with past
practice, and shall use its commercially reasonable efforts to preserve intact its business
organization and goodwill and relationships with all Governmental Entities, customers, suppliers
and others having business dealings with it, to keep available the services of its current officers
and key employees and to
maintain its current rights and franchises, in each case, consistent with past practice. In
addition to and without limiting the generality of the foregoing, except as expressly set forth in
Section 5.1 of the Company Disclosure Letter or as otherwise expressly provided for or
contemplated by this Agreement or as required by applicable Law, from the date hereof until the
Effective Time, without the prior written consent of Parent (which consent shall not be
unreasonably withheld or delayed (other than with respect to subsections (a), (b), (c), (g), (k) or
(l)), the Company shall not, and shall not permit any Company Subsidiary to, directly or
indirectly:
(a) amend or modify any of the Constituent Documents of the Company, any Company
Subsidiary, HATLP, OCOP or PLNL (solely to the extent, with respect to HATLP, OCOP or PLNL, that
the Company or any Company Subsidiary may prevent an amendment or modification to the applicable
Constituent Document of HATLP, OCOP or PLNL);
(b) (i) declare, set aside, make or pay any dividend or other distribution (whether in
cash, stock or property) in respect of any of its Securities, other than (A) dividends or
distributions by wholly owned Company Subsidiaries to the Company, (B) the declaration and
payment of regular quarterly cash dividends of $0.10 per share solely for the fiscal quarter
ended December 31, 2009 and the fiscal quarter ended March 31, 2010, which shall be paid in
accordance with Section 6.17, (C) regular quarterly dividends by the Company of $10.625
per outstanding share of Company Series A Preferred Stock to holders of such outstanding shares
pursuant to the Companys Constituent Documents as in effect as of the date of this Agreement,
and (D) regular quarterly cash distributions by TNCLP to holders of its common units and its
general partner pursuant to TNCLPs Constituent Documents as in effect as of the date of this
Agreement; (ii) split, combine or reclassify any of its Securities or issue, deliver, sell,
grant, dispose of or subject to a Lien any Securities or Equity Rights, other than issuances of
Company Common Stock (A) in connection with the vesting of the Company Stock-Based Awards issued
prior to the date of this Agreement pursuant to a Company Benefit Plan or (B) upon conversion of
shares of Company Series A Preferred Stock pursuant to the Companys Constituent Documents as in
effect as of the date of this Agreement; or (iii) repurchase, redeem or otherwise acquire any
Securities or Equity Rights of the Company or any Company
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Subsidiary, other than acquisitions of
Securities or Equity Rights pursuant to any Company Benefit Plan as in effect on the date of
this Agreement;
(c) acquire by merging or consolidating with, or by share exchange, or by purchase or by
any other manner, any Person or division, business or equity interest of any Person;
(d) sell, lease, license, subject to a Lien (other than a Permitted Lien), encumber or
otherwise surrender, relinquish or dispose of any material assets, property or rights, other
than (i) sales of inventory in the ordinary course of business consistent with past practice and
(ii) as would not result in consideration received in excess of $7 million individually or $15
million in the aggregate;
(e) (i) make any loans, advances or capital contributions to, or investments in, any other
Person other than (A) by the Company or any wholly owned Company Subsidiary to or in the Company
or any wholly owned Company Subsidiary or (B) to
employees for advancement of travel and related business expenses in the ordinary course of
business consistent with past practice or (ii) create, incur, guarantee or assume any
indebtedness, issuances of debt securities, guarantees, loans or advances, except guarantees by
the Company of indebtedness of wholly owned Company Subsidiaries or guarantees by Company
Subsidiaries of indebtedness of the Company, in each case in excess of $5 million individually
or $10 million in the aggregate;
(f) other than as set forth in the Companys capital budget (a copy of which was made
available to Parent prior to the date hereof) or in connection with the repair or replacement of
the plant and equipment at the operating facilities of the Company or any Company Subsidiary,
make any capital expenditure in excess of $5 million individually or $10 million in the
aggregate;
(g) except (i) as required pursuant to the terms of any Company Benefit Plan (including any
collective bargaining agreement) in effect on the date of this Agreement, (ii) as required to
comply with applicable Law or GAAP, or (iii) as expressly permitted by this Agreement or (iv)
solely with respect to (A) below, in the ordinary course of business, (A) amend or otherwise
modify in any material respect any Company Benefit Plan (or any plan, agreement or other
arrangement that would be a Company Benefit Plan if it were in existence on the date of this
Agreement), (B) accelerate the payment or vesting of benefits or amounts payable or to become
payable under any Company Benefit Plan (or any plan, agreement or other arrangement that would
be a Company Benefit Plan if it were in existence on the date of this Agreement), (C) terminate,
establish or enter into any Company Benefit Plan (or any plan, agreement or other arrangement
that would be a Company Benefit Plan if it were in existence on the date of this Agreement), (D)
grant any increase in the compensation or benefits of directors, officers, employees or
consultants of the Company or any Company Subsidiary; provided, however, that
the foregoing clause (D) shall not restrict the Company and any Company Subsidiary from granting
increases in base salary or hourly wage rates to the employees and subject to the parameters set
forth on Section 5.1(g) of the Company Disclosure Letter, in the ordinary course of
business consistent with policies in effect on the date of this Agreement and in a manner
consistent with past practice; provided, further that the foregoing
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clause (D)
shall not restrict the Company or any Company Subsidiary from entering into or making available
to newly hired employees or to employees in the context of promotions based on job performance,
in each case in the ordinary course of business and in a manner consistent with past practice,
benefits and compensation arrangements (excluding incentive grants or Company Stock-Based
Awards) that have a value that is consistent with the past practice of making compensation and
benefits available to newly hired or promoted employees in similar positions or (E) hire any
employee with an annual base salary in excess of $130,000 except to replace an existing employee
of comparable compensation;
(h) (i) pay, discharge, settle or satisfy any material claims, liabilities or obligations
(absolute, accrued, asserted or unasserted, contingent or otherwise) or material litigation
(whether or not commenced prior to the date of this Agreement), other than in the ordinary
course of business consistent with past practice or the payment, discharge, settlement or
satisfaction in accordance with its terms of any liability accrued, reserved, recognized or
disclosed in the most recent Company Financial Statements or incurred since the date of such
Company Financial Statements in the ordinary course of business consistent with past practice,
(ii) cancel any material indebtedness or (iii) waive or assign any claims or rights of
material value;
(i) except as required by applicable Law or in the ordinary course of business (i) make,
revoke or amend any material election relating to Taxes, (ii) settle or compromise any material
proceeding relating to Taxes or (iii) enter into a written and legally binding material
agreement with a Taxing Authority relating to Taxes;
(j) other than in the ordinary course of business consistent with past practice (i) modify,
amend in any material respect, waive any material right under or terminate any Company Contract
or (ii) enter into any new agreement that would have been considered a Company Contract if it
were entered into at or prior to the date hereof; provided that this Section
5.1(j) shall not apply to the matters contemplated by Section 5.1(g);
(k) adopt or implement a plan of complete or partial liquidation or a dissolution,
restructuring, recapitalization or other reorganization of the Company or any of the Company
Subsidiaries;
(l) change any method of financial accounting or financial accounting principles or
practices by the Company or any Company Subsidiary, except for any such change required by a
change in GAAP;
(m) terminate or cancel, or amend or modify in any material respect, any material insurance
policies maintained by it covering the Company or any Company Subsidiary or their respective
properties which is not replaced by a comparable amount of insurance with premiums at a
comparable price;
(n) other than in the ordinary course of business consistent with past practice, transfer,
abandon, allow to lapse or otherwise dispose of any rights to any material Intellectual Property
or disclose any material trade secrets of the Company or any Company Subsidiary to any person
other than Parent or its Representatives; or
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(o) authorize, resolve, agree or commit to do any of the foregoing.
ARTICLE VI
ADDITIONAL AGREEMENTS
Section 6.1 Preparation and Mailing of Proxy Statement; Preparation of Parent Circular and Rights
Offering Prospectus.
(a) As promptly as reasonably practicable, but in any event within twenty (20) Business
Days, following the date hereof, the Company shall prepare and file with the SEC proxy materials
that shall constitute the proxy statement relating to the matters to be submitted to the
stockholders of the Company at the Company Stockholders Meeting (such proxy statement, and any
amendments or supplements thereto, the Proxy Statement). The Proxy Statement shall
comply as to form in all material respects with the applicable provisions
of the Exchange Act. The Company shall provide Parent with a reasonable opportunity to
review and comment on the Proxy Statement prior to the initial filing with the SEC.
(b) The Company shall, as promptly as practicable after receipt thereof, provide Parent
copies of any written comments and advise Parent of any oral comments, with respect to the Proxy
Statement received from the SEC. The Company shall provide Parent with a reasonable opportunity
to review and comment on any amendment or supplement to the Proxy Statement and any
communications prior to filing such with the SEC and will promptly provide Parent with a copy of
all such filings and communications made with the SEC.
(c) If at any time prior to the Effective Time, (i) any event or change occurs with respect
to the Parties or any of their respective Affiliates, officers or directors, which should be set
forth in an amendment of, or a supplement to, the Proxy Statement or (ii) any information
relating to the Parties, or any of their respective Affiliates, officers or directors, should be
discovered by any of the Parties which should be set forth in an amendment or a supplement to
the Proxy Statement so that the Proxy Statement would not include any misstatement of a material
fact or omit to state any material fact necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading, the Company shall file as promptly
as practicable with the SEC an amendment of, or a supplement to, the Proxy Statement and, as
required by Law, disseminate the information contained in such amendment or supplement to the
stockholders of the Company.
(d) As promptly as reasonably practicable, but in any event within twenty (20) Business
Days, following the date hereof, Parent shall prepare and file with the Oslo Stock Exchange an
information document describing the transactions contemplated by this Agreement (the Parent
Circular). The Parent Circular shall comply as to form and in all material respects with
the applicable provisions of the Oslo Stock Exchange continuing obligations. Parent shall also
timely prepare and file with the Oslo Stock Exchange or The Norwegian Supervisory Authority of
Norway a prospectus in connection with the Rights Issue (the Rights Offering
Prospectus). The Rights Offering Prospectus shall comply as to form and in all material
respects with the applicable provisions of the Norwegian Securities Trading Act. Parent shall
provide the Company with a reasonable opportunity to review and comment
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on each of the Parent
Circular and Rights Offering Prospectus prior to the announcement thereof.
(e) Parent shall, as promptly as practicable after receipt thereof, provide the Company
copies of any written comments and advise the Company of any oral comments, with respect to the
Parent Circular and the Rights Offering Prospectus received from the Oslo Stock Exchange or The
Norwegian Supervisory Authority of Norway. Parent shall provide the Company with a reasonable
opportunity to review and comment on any amendment or supplement to the Parent Circular or
Rights Offering Prospectus and any communications prior to filing such with the Oslo Stock
Exchange or The Norwegian Supervisory Authority of Norway and will promptly provide the Company
with a copy of all such filings and communications made with the Oslo Stock Exchange or The
Norwegian Supervisory Authority of Norway.
Section 6.2 Stockholder Meetings; Recommendations.
(a) As promptly as reasonably practicable following the date hereof, the Company shall duly
take all necessary actions to duly call, give notice of, convene and hold a meeting of the
stockholders of the Company (such meeting, or any adjournments or postponements thereof, the
Company Stockholders Meeting) for the purpose of obtaining the Company Stockholder
Approval and shall, subject to this Section 6.2(a), use best efforts to solicit its
stockholders to obtain the Company Stockholder Approval. The Board of Directors of the Company
shall, subject to this Section 6.2(a), make the Company Recommendation to the
stockholders of the Company and include the Company Recommendation and the Fairness Opinion in
the Proxy Statement. Neither the Board of Directors of the Company nor any committee thereof,
shall, directly or indirectly, withdraw, modify, amend or qualify the Company Recommendation in
a manner adverse to Parent or Merger Sub (or publicly propose to take any of the foregoing
actions) or execute or enter into, any letter of intent, memorandum of understanding, merger
agreement or other written agreement providing for a Takeover Proposal (other than a
confidentiality agreement permitted pursuant to Section 6.5(a)) (a Change in
Company Recommendation) except in accordance with Section 6.5(c). Notwithstanding
any Change in Company Recommendation, unless this Agreement is terminated pursuant to, and in
accordance with, Section 8.1 prior to the Company Stockholders Meeting, the Company
shall submit this Agreement to the stockholders of the Company for the purpose of obtaining the
Company Stockholder Approval.
(b) As promptly as reasonably practicable following the date hereof, Parent shall duly take
all necessary actions to cause the transactions contemplated by this Agreement to be considered
by the Norwegian Parliament and will, as promptly as reasonably practicable thereafter, duly
call, give notice of, convene and hold a meeting of the stockholders of Parent (such meeting, or
any adjournments or postponements thereof, the Parent Stockholders Meeting) for the
purpose of obtaining the Parent Stockholder Approval and shall use best efforts to solicit its
stockholders to obtain the Parent Stockholder Approval, including by recommending that Parents
stockholders approve the Rights Issue (the Parent Recommendation); provided,
however, that Parent shall not be required to undertake any action not typically taken
by Norwegian companies in soliciting stockholder approval. The Board of Directors of Parent
shall make the Parent Recommendation to the stockholders of
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Parent and include the Parent
Recommendation in the notice of the Parent Stockholders Meeting. Neither the Board of Directors
of Parent nor any committee thereof shall, directly or indirectly, withdraw, modify, amend or
qualify the Parent Recommendation (or publicly propose to take any of the foregoing actions).
Unless this Agreement is terminated pursuant to, and in accordance with, Section 8.1
prior to the Parent Stockholders Meeting, Parent shall submit the Rights Issue to the
stockholders of Parent for the purpose of obtaining the Parent Stockholder Approval.
(c) Notwithstanding Section 6.2(a), the Company shall use its reasonable best
efforts to hold the Company Stockholders Meeting as promptly as practicable following the date
of the Parent Stockholders Meeting and the current intention of the Parties is that the Company
Stockholders Meeting shall be held on the next succeeding Business Day following the Parent
Stockholders Meeting.
Section 6.3 Access to Information. Upon reasonable notice, the Company shall, and shall cause
each Company Subsidiary to, afford to the officers, directors, employees,
accountants, counsel, financial advisors, consultants, Financing Sources and other advisors or
representatives (collectively, Representatives) of Parent access during normal business
hours to all of the Companys and the Company Subsidiaries properties, books, records, contracts,
commitments and personnel, but only to the extent that such access does not unreasonably interfere
with the business or operations of the Company and the Company Subsidiaries, and the Company shall,
and shall cause each of the Company Subsidiaries to, furnish as promptly as practicable to Parent
(i) a copy of each material report, schedule and other document filed, furnished, published,
announced or received by it during such period pursuant to the requirements of federal or state
securities laws or a Governmental Entity and (ii) all other information with respect to the Company
as Parent may reasonably request; provided, however, that none of Parent, any
Parent Subsidiary or any of their respective Representatives shall conduct any environmental
sampling or surface or subsurface assessment or investigation; and provided further
that the Company may withhold any document or information (i) to the extent that such document or
information is subject to the terms of a confidentiality agreement with a third party
(provided that the Company shall use its reasonable best efforts to obtain waivers under
such agreements or implement requisite procedures to enable reasonable access without violating
such agreements), (ii) to the extent that the disclosure thereof would, in the Companys good faith
opinion after consultation with legal counsel, result in the loss of attorney-client privilege with
respect to such document or information (provided that the Company shall use its reasonable
best efforts to put in place an arrangement to permit such disclosure without loss of
attorney-client privilege), (iii) to the extent required by applicable Law (provided that
the Company shall use its reasonable best efforts to enable the provision of reasonable access
without violating such Law) or (iv) to the extent that the disclosure thereof would, in the
Companys reasonable discretion, result in significant antitrust risk. All information exchanged
pursuant to this Section 6.3 shall be provided pursuant to the terms of, and be subject to,
the confidentiality agreement dated as of December 17, 2009 (as amended, the Confidentiality
Agreement), between the Company and Parent.
Section 6.4 Efforts; Consents and Approvals.
(a) Subject to the terms and conditions of this Agreement (including Section 6.2,
Section 6.4(b), Section 6.4(c) and Section 6.15), each of Parent and the
Company
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shall cooperate to obtain all consents to the Merger and the other transactions
contemplated hereby that are contemplated by or identified in this Agreement or the Company
Disclosure Letter and shall use its reasonable best efforts to take, or cause to be taken, all
actions and to do, or cause to be done, all things necessary or advisable under applicable Law
to consummate the transactions contemplated by this Agreement, including preparing and filing as
promptly as practicable all documentation to effect all necessary or advisable filings, notices,
petitions, statements, registrations, submissions of information, applications and other
documents necessary to consummate the transactions contemplated by this Agreement.
(b) In furtherance and not in limitation of the other provisions of this Section
6.4, Parent and the Company shall, as promptly as practicable, file with all applicable U.S.
and foreign Governmental Entities any notices and applications necessary to obtain merger
control, competition or foreign investment Law approval (including approvals under Foreign
Competition Laws and the Exon-Florio Amendment and submissions to CFIUS) for the Merger;
provided that each of Parent and the Company shall consult and cooperate with one
another in connection with the preparation of any such notices and applications prior to their
filing, consistent with applicable Law. Without limiting the foregoing, Parent and the
Company shall, as promptly as practicable, but in no event later than ten (10) Business Days
after the date of this Agreement, file with the United States Federal Trade Commission (the
FTC) and the United States Department of Justice (the DOJ) the notification
and report form, if any, required under the HSR Act for the transactions contemplated by this
Agreement. All notices and applications, including such HSR Act notification and report form,
shall be in substantial compliance with the applicable requirements of the HSR Act, Foreign
Competition Law or the Exon-Florio Amendment. Each of the Company and Parent shall furnish to
the other such necessary information and reasonable assistance as the other may request in
connection with its preparation of any filing or submission which is necessary under the HSR
Act, any Foreign Competition Law or the Exon-Florio Amendment. Each of the Company and Parent
shall keep each other apprised of the status of any communications with, and any inquiries or
requests for additional information from, the FTC, the DOJ and any other Governmental Entity and
shall comply with any such inquiry or request as promptly as practicable, but in no event later
than five (5) Business Days after receipt of such inquiry or request, or as otherwise agreed to
by the Parties, which agreement shall not be unreasonably withheld. Any such additional
information shall be in substantial compliance with the applicable requirements of the HSR Act,
Foreign Competition Law or the Exon-Florio Amendment. Each of the Company and Parent shall not
independently participate in any meeting, or engage in any substantive conversation, with any
Governmental Entity in respect of any filing, investigation or inquiry concerning this
Agreement, the Merger or the transactions contemplated hereby (including the expected or
proposed timing of consummation of the Merger or the other transactions contemplated hereby)
without giving the other Party prior notice of the meeting or conversation and, unless
prohibited by any such Governmental Entity, the opportunity to attend or participate. Each of
the Company and Parent shall consult and cooperate with one another in connection with any
analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made
or submitted by or on behalf of any Party in connection with proceedings under or relating to
the HSR Act, any Foreign Competition Law, the Exon-Florio Amendment or CFIUS. Each of the
Company and Parent agrees not to extend, directly or indirectly, any waiting period under the
HSR Act, any Foreign Competition Law or the Exon-Florio Amendment or enter into any agreement
with a Governmental Entity to delay or not to consummate the transactions
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contemplated by this
Agreement (a Timing Agreement), except with the prior written consent of the other
Party. Each Party shall furnish the other Partys outside counsel with copies of all
correspondence, filings and written communications between such Party or any of its
Subsidiaries, Affiliates or Representatives and any Governmental Entity or its respective staff
with respect to this Agreement, the Merger or the transactions contemplated hereby.
(c) Without limiting the generality of each Partys obligations pursuant to Section
6.4(b), each of the Company and Parent shall use its best efforts to obtain, as promptly as
practicable, any clearance required under the HSR Act, any Foreign Competition Law and the
Exon-Florio Amendment or from CFIUS for the consummation of the Merger, including, in the case
of Parent, by (i) selling, holding separate or otherwise disposing of, or proposing and agreeing
to sell, hold separate or otherwise dispose of, or permitting the sale, holding separate or
other disposition of, any assets of Parent or its Subsidiaries, or after the Closing, the
Company, its Subsidiaries, GrowHow, HATLP, OCOP or PLNL, and (ii) conducting its business in a
specified manner, or proposing and agreeing or permitting Parent or its Subsidiaries, or after
the Closing, the Company, its Subsidiaries, GrowHow, HATLP, OCOP
or PLNL, to conduct its business in a specified manner (each a Divestiture
Action); provided, however, that, in no event shall Parent be required to
agree, pursuant to any Divestiture Action, to take any action that would reasonably be expected
to have, individually or in the aggregate, a Material Adverse Effect on the Company (without
giving effect to clause (viii) of the definition thereof). In the event that any administrative
or judicial action or proceeding is instituted (or threatened to be instituted) challenging any
transaction contemplated by this Agreement as violative of any competition, antitrust or foreign
investment Law or of the Exon-Florio Amendment, or if any Law is enacted, entered, promulgated
or enforced by a Governmental Entity that would make the transactions contemplated by this
Agreement illegal or would otherwise prohibit or materially impair or delay the consummation of
the transactions contemplated by this Agreement, Parent shall use its best efforts to resolve,
contest and resist any such action or proceeding and to have vacated, lifted, reversed or
overturned any Order, whether temporary, preliminary or permanent, that is in effect and that
prohibits, prevents, delays or restricts consummation of the transactions contemplated by this
Agreement and to have such Law repealed, rescinded or made inapplicable so as to permit prompt
consummation of the transactions contemplated by this Agreement, including by taking any
Divestiture Action.
Section 6.5 No Solicitation.
(a) The Company shall not, nor shall it authorize or permit any of its Subsidiaries to, and
it shall cause its and its Subsidiaries respective Representatives not to, directly or
indirectly: (i) initiate or solicit or knowingly facilitate or encourage (it being understood
that providing information in the ordinary course of business consistent with past practice to
categories of Persons to whom the Company routinely provides such information in the ordinary
course of business consistent with past practice will not, in and of itself, constitute
encouragement hereunder) any inquiry or the making of any proposal that constitutes a Takeover
Proposal or (ii) continue or otherwise participate in any discussions or negotiations regarding,
furnish to any Person any information or data or access to its properties with respect to, or
otherwise cooperate with or knowingly take any other action to facilitate any proposal that
constitutes any Takeover Proposal. The Company shall, and shall cause its Subsidiaries and its
and their respective Representatives to, immediately cease and cause to be terminated all
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existing discussions or negotiations with any Person conducted heretofore with respect to any
Takeover Proposal (and shall not waive or otherwise modify any existing standstill provision or
confidentiality agreement that benefits the Company) and request from each Person that has
executed a confidentiality agreement with the Company the prompt return or destruction of any
confidential information previously furnished to such Person in connection therewith.
Notwithstanding the foregoing, prior to receipt of the Company Stockholder Approval, the Company
and its Representatives, in response to a bona fide written Takeover Proposal that was made
after the date of this Agreement and did not result from a material breach of this Agreement and
that (1) constitutes a Superior Proposal or (2) the Board of Directors of the Company determines
in good faith (after consultation with outside counsel and a financial advisor of nationally
recognized reputation) could reasonably be expected to result in a Superior Proposal, shall be
permitted to: (A) provide access to non-public information to the Person making such Takeover
Proposal pursuant to and in accordance with an executed confidentiality agreement not less
restrictive of the other party than the Confidentiality Agreement; provided that all
such information provided to such Person has previously been provided to Parent or is provided
to Parent prior to or substantially concurrently with the time it
is provided to such Person; and (B) participate in discussions or negotiations with respect
to such Takeover Proposal with the Person making such Takeover Proposal.
(b) From and after the date of this Agreement, as promptly as practicable after the
receipt, directly or indirectly, by the Company of any Takeover Proposal or any inquiry with
respect to, or that could reasonably be expected to lead to, any Takeover Proposal, and in any
case within two (2) Business Days after the receipt thereof, the Company shall provide oral and
written notice to Parent of (i) such Takeover Proposal or inquiry, (ii) the identity of the
Person making any such Takeover Proposal or inquiry and (iii) the material terms and conditions
of any such Takeover Proposal or inquiry. The Company shall keep Parent fully informed on a
current basis of the status of any such Takeover Proposal, including any changes to the terms
and conditions thereof.
(c) At any time prior to receipt of the Company Stockholder Approval, the Board of
Directors of the Company may (i) effect a Change in Company Recommendation; provided
that the Board of Directors of the Company determines in good faith, after consultation with
outside counsel, that the failure to do so would be inconsistent with its duties to the
stockholders of the Company under applicable Law, and (ii) in response to a Superior Proposal
that was made after the date of this Agreement and did not result from a material breach of this
Agreement, cause the Company to terminate this Agreement and concurrently with such termination,
upon payment of the Termination Fee pursuant to Section 8.2(b)(i), enter into a
definitive agreement with respect to such Superior Proposal. Notwithstanding the foregoing, the
Company shall not be entitled to exercise its right to effect a Change in Company Recommendation
or its right to terminate this Agreement pursuant hereto unless (A) the Board of Directors of
the Company shall have first provided prior written notice to Parent advising Parent that the
Board of Directors of the Company intends to (x) effect a Change in Company Recommendation (a
Notice of Change in Company Recommendation) which notice shall contain a description
of the events, facts and circumstances giving rise to such proposed action or (y) terminate this
Agreement pursuant to this Section 6.5(c) in response to a Superior Proposal (a
Notice of Superior Proposal) which notice shall contain a description of the terms and
conditions of the Superior Proposal (including a copy of any such written Superior
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Proposal) and
(B) Parent does not make, within five (5) Business Days after receipt of such Notice of Change
in Company Recommendation or Notice of Superior Proposal, as the case may be (it being
understood and agreed that, with respect to a Notice of Superior Proposal, any amendment to the
financial terms or any other material term of such Superior Proposal shall require a new Notice
of Superior Proposal and a new five (5) Business Day period), a proposal that would, in the good
faith determination of the Board of Directors of the Company (after consultation with outside
counsel and a financial advisor of nationally recognized reputation), cause such events, facts
and circumstances to no longer form the basis for the Board of Directors of the Company to
effect a Change in Company Recommendation, in the case of a Change in Company Recommendation, or
be at least as favorable to the stockholders of the Company as such Superior Proposal, in the
case of a Notice of Superior Proposal. The Company agrees that, during the five (5) Business
Day period after Parents receipt of a Notice of Change in Company Recommendation or Notice of
Superior Proposal, as the case may be, the Company and its Representatives shall negotiate in
good faith with Parent and its Representatives regarding any revisions to the terms of this
Agreement proposed by Parent.
(d) Nothing contained in this Section 6.5 shall prohibit the Company from (i)
taking, and disclosing to its stockholders, a position contemplated by Rule 14e-2(a) under the
Exchange Act or a statement required under Rule 14d-9 under the Exchange Act or (ii) making any
disclosure to stockholders of the Company that is required by applicable Law; provided,
however, that the taking of any such position or making of any such disclosure
contemplated by clauses (i) or (ii) above shall be subject to and only taken in compliance with
Section 6.2 and, to the extent applicable, Section 6.5(c).
Section 6.6 Employee Matters.
(a) From the Closing Date through no earlier than December 31 of the calendar year
following the calendar year in which the Closing Date occurs (the Continuation
Period), the Surviving Corporation shall cause each individual who is employed by the
Company and any Company Subsidiary immediately before the Effective Time (each, a
Continuing Employee) to be provided with (i) base compensation and bonus or incentive
opportunities that are no less favorable in the aggregate than the base compensation and bonus
or incentive opportunities (including value attributable to equity-based compensation) provided
to such Continuing Employee immediately prior to the Effective Time and (ii) employee benefits
that are substantially comparable in the aggregate to those provided to such Continuing Employee
immediately prior to the Effective Time. Except to the extent necessary to avoid the
duplication of benefits, the Surviving Corporation shall recognize the service of each
Continuing Employee prior to the Effective Time as if such service had been performed with
Parent or its Affiliates (A) for all purposes under the Company Benefit Plans maintained by the
Surviving Corporation or its Affiliates after the Effective Time (to the extent such plans,
programs or agreements are provided to Continuing Employees), (B) for purposes of eligibility
and vesting under any employee benefit plans and programs of the Surviving Corporation or its
ERISA Affiliates other than the Company Benefit Plans (the Surviving Corporation
Plans) in which the Continuing Employee participates after the Effective Time and (C) for
purposes of determination of benefit accruals and benefit levels with respect to vacation, paid
time off and severance under any Surviving Corporation Plan in which the Continuing Employee
participates after the Effective Time (excluding, for the avoidance of doubt, benefit accrual
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under any defined benefit pension plans and non-qualified retirement plans), in each case to the
same extent such Continuing Employees service was recognized by the Company and the Company
Subsidiaries under the corresponding Company Benefit Plan in which such Continuing Employee
participated immediately before the Effective Time. In addition, and without limiting the
generality of the foregoing, each Continuing Employee shall be immediately eligible to
participate, without any waiting time, in any and all Surviving Corporation Plans to the extent
coverage under any such plan replaces coverage under a comparable benefit plan in which such
Continuing Employee participates immediately before the Effective Time. For the avoidance of
doubt, the Surviving Corporation shall have no obligation to grant equity awards to the
Continuing Employees.
(b) With respect to any welfare plan maintained by the Surviving Corporation or its
Affiliates in which Continuing Employees are eligible to participate after the Effective Time,
the Surviving Corporation and its Affiliates shall (i) waive all limitations as to pre-existing
conditions, exclusions and waiting periods and actively-at-work requirements with respect to
participation and coverage requirements applicable to such employees and their
eligible dependents and beneficiaries, to the extent such limitations were waived,
satisfied or did not apply to the applicable employee or eligible dependent or beneficiary under
the corresponding welfare Company Benefit Plan in which he or she participated immediately prior
to the Effective Time, and (ii) provide each Continuing Employee and his or her eligible
dependents and beneficiaries with credit for any co-payments and deductibles paid prior to the
Effective Time in satisfying any analogous deductible or out-of-pocket requirements to the
extent applicable under any such plan and to the same extent such credit was provided to him or
her under the corresponding welfare Company Benefit Plan in which he or she participated
immediately prior to the Effective Time, in each case without duplication of benefits.
(c) Without limiting the generality of Section 6.6(a), from and after the Effective
Time, the Surviving Corporation and its Affiliates shall assume, honor and continue during the
Continuation Period, or if sooner, until all obligations thereunder have been satisfied, all of
the Company Benefit Plans that are employment, severance, retention and termination plans,
policies, programs, agreements and arrangements (including any change in control severance
agreement between the Company and any Continuing Employee) maintained by the Company or any
Company Subsidiary, in each case as in effect at the Effective Time and as set forth on
Section 6.6(c) of the Company Disclosure Letter, including with respect to any payments,
benefits or rights arising as a result of the transactions contemplated by this Agreement
(either alone or in combination with any other event), without any amendment or modification,
other than (i) as required pursuant to the terms of any Company Benefit Plan (including any
collective bargaining agreement) as in effect on the date of this Agreement, (ii) as required to
comply with applicable Law or GAAP or (iii) as expressly permitted by this Agreement.
(d) Without limiting the generality of Section 6.6(a), with respect to the annual
performance period in which the Effective Time occurs, the Surviving Corporation and its
Affiliates shall (i) honor and continue in all material respects the Company Benefit Plans that
are cash incentive compensation plans maintained by the Company and any Company Subsidiary at
the Effective Time, as set forth on Section 6.6(d) of the Company Disclosure Letter (the
Incentive Plans), pursuant to their respective terms (except as modified by the
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following clauses (ii) and (iii)) as in effect at the Effective Time with respect to the annual
performance period thereunder commencing prior to and ending after the Effective Time, (ii) at
the time(s) prescribed by the Incentive Plans as in effect at the Effective Time, make payments
to the Continuing Employees in accordance with the applicable material terms of the Incentive
Plans as in effect at the Effective Time (subject to any plan provision requiring an employee to
remain continuously employed following the end of the relevant performance period and up to the
date that payments under the applicable Incentive Plan are made) and (iii) provide any
Continuing Employee whose employment is terminated by Parent, the Surviving Corporation or their
Subsidiaries without Cause (as such term is defined in Section 6.6(d) of the Company
Disclosure Letter) prior to the time at which such payments are made with an amount in cash as
described on Section 6.6(d) of the Company Disclosure Letter, prorated to reflect the
portion of such annual performance period that elapsed prior to such termination (if such
termination occurs prior to the end of such performance period), payable at the same time such
bonus (if any) would have been paid had such termination not occurred (but in any event within
the period required by Section 409A of the Code, such that it qualifies as a short-term
deferral pursuant to Section 1.409A-1(b)(4) of the Department of Treasury Regulations).
(e) Without limiting the generality of Section 6.6(a), during the Continuation
Period, if the Surviving Corporation and its Affiliates terminate the employment of any
Continuing Employee (other than any employee who is party to a Company Benefit Plan that is an
employment, change in control, severance or other individual agreement) other than for Cause,
the Surviving Corporation and its Affiliates shall pay to such Continuing Employee severance in
an amount equal to the greater of (i) the severance benefits due under the applicable severance
plan, policy or guidelines of the Surviving Corporation and its Affiliates then in effect for
similarly situated employees of the Surviving Corporation and its Affiliates, and (ii) the
severance benefits that would have been due under the applicable severance plan, policy or
guidelines of the Company or any Company Subsidiary that was applicable to such Continuing
Employee immediately prior to the Effective Time. Without limiting the generality of
Section 6.6(a), the level of severance benefits a terminated Continuing Employee is
entitled to receive pursuant to clauses (i) and (ii) of the preceding sentence shall be
determined by taking into account such employees service with the Company and any Company
Subsidiary (and any predecessor) prior to the Effective Time (to the same extent such service
would have been recognized under the severance plan, policy or guidelines of the Company or any
Company Subsidiary that was applicable to such Continuing Employee immediately prior to the
Effective Time) and such employees service with the Surviving Corporation and its Affiliates on
and after the Effective Time.
(f) Notwithstanding anything herein to the contrary, Parent, Merger Sub and the Company
acknowledge and agree that all provisions contained in this Section 6.6 are included for
the sole benefit of Parent, Merger Sub and the Company, and that nothing in this Agreement,
whether express or implied, (i) shall be treated as an amendment or other modification of any
Company Benefit Plan or other employee benefit plan, agreement or other arrangement, (ii) shall
limit the right of Parent, Merger Sub, the Company or their respective Affiliates to amend,
terminate or otherwise modify any Company Benefit Plan or other employee benefit plan, agreement
or other arrangement following the Effective Time, or (iii) shall create any third party
beneficiary or other right (x) in any other Person, including, without limitation, any current
or former director, officer, employee or independent contractor of the
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Company or any Company
Subsidiary or any participant in any Company Benefit Plan or other employee benefit plan,
agreement or other arrangement (or any dependent or beneficiary thereof) or (y) to continued
employment with Parent, Merger Sub, the Company or any of their respective Affiliates.
Section 6.7 Fees and Expenses. Whether or not the Merger is consummated, all expenses incurred in
connection with this Agreement and the transactions contemplated hereby shall be paid by the Party
incurring such expenses.
Section 6.8 Directors and Officers Indemnification and Insurance.
(a) From and after the Effective Time, Parent shall cause the Surviving Corporation to the
greatest extent permitted by Law (a) to indemnify and hold harmless, against any costs or
expenses (including attorneys fees), judgments, fines, losses, claims, damages or liabilities
incurred in connection with any claim, action, suit, proceeding or investigation, whether civil,
criminal, administrative or investigative, and provide advancement of expenses (without
requiring a preliminary determination as to the ultimate entitlement to
indemnification) to, all past and present directors and officers of the Company (in all of
their capacities) (the Indemnified Persons) to the same extent such persons are
indemnified or have the right to advancement of expenses as of the date of this Agreement by the
Company pursuant to the Companys Constituent Documents and indemnification agreements, if any,
in existence on the date hereof with any Indemnified Persons and (b) to honor the provisions
regarding elimination of liability of directors, indemnification of officers and directors and
advancement of expenses contained in the Companys Constituent Documents and indemnification
agreements immediately prior to the Effective Time.
(b) From and after the Effective Time, Parent shall cause the Surviving Corporation to
maintain for a period of six (6) years after the Effective Time the current policies of
directors and officers liability insurance and fiduciary liability insurance (D & O
Insurance) maintained by the Company; provided that the Surviving Corporation may
substitute therefor policies of at least the same coverage and amounts containing terms and
conditions which are, individually and in the aggregate, at least as protective and no less
advantageous to the insured with respect to claims arising from facts or events that occurred on
or before the Effective Time (including for acts or omissions occurring in connection with the
approval of this Agreement and the consummation of the transactions contemplated hereby);
provided, further, that in no event shall the Surviving Corporation be required
to expend in any one year more than 300% of the current annual premium expended by the Company
and the Company Subsidiaries to maintain or procure such D & O Insurance immediately prior to
the Effective Time (such 300% amount, the Maximum Annual Premium); provided,
further, that if the annual premiums of such insurance coverage exceed such amount, the
Surviving Corporation shall obtain a policy with the greatest coverage available for a cost not
exceeding the Maximum Annual Premium. Alternatively, prior to the Effective Time, either Parent
or, if Parent does not do so prior to three (3) Business Days prior to the Closing, the Company
may purchase a six-year prepaid tail policy containing terms and conditions which are,
individually and in the aggregate, at least as protective and no less advantageous to the
insured than the D & O Insurance maintained by the Company with respect to claims arising from
facts or events that occurred on or before the Effective Time (including for acts or omissions
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occurring in connection with the approval of this Agreement and the consummation of the
transactions contemplated hereby); provided, however, that in no event shall any
policy require payment of aggregate premiums for such insurance in excess of the aggregate
Maximum Annual Premium for such six-year period. If such prepaid tail policy has been
obtained by the Company, Parent shall cause such policy to be maintained in full force and
effect, for its full term, and cause all obligations thereunder to be honored by it and the
Surviving Corporation.
(c) The obligations of the Surviving Corporation under this Section 6.8 shall not
be terminated or modified in such a manner as to adversely affect any indemnitee to whom this
Section 6.8 applies without the consent of such affected indemnitee (it being expressly
agreed that the indemnitees to whom this Section 6.8 applies shall be third-party
beneficiaries of this Section 6.8).
Section 6.9 Public Announcements. Parent and the Company shall develop a joint communications
plan and each Party shall (a) unless otherwise required by applicable Law, ensure that all press
releases and other public statements or communications with respect to the transactions
contemplated hereby shall be consistent with such joint communications plan and (b)
unless otherwise required by applicable Law or by obligations pursuant to any listing
agreement with or rules of any securities exchange, consult with each other before issuing any
press release or, to the extent practicable, otherwise making any public statement or communication
with respect to this Agreement or the transactions contemplated hereby.
Section 6.10 Notice of Certain Events. Each of Parent and the Company shall promptly notify the
other after receiving or becoming aware of (a) any notice or other communication from any Person
alleging that the consent of that Person is or may be required in connection with the transactions
contemplated by this Agreement and (b) the occurrence or non-occurrence of any event the occurrence
or non-occurrence of which would be reasonably likely to result in a failure of any condition set
forth, in the case of the Company, in Section 7.2(a) or Section 7.2(b) or, in the
case of Parent, in Section 7.3(a) or Section 7.3(b).
Section 6.11 State Takeover Laws. If any fair price, business combination or control
share
acquisition statute or other similar statute or regulation is or shall become applicable to the
transactions contemplated hereby, the Company and its Board of Directors shall use their reasonable
best efforts to ensure that the transactions contemplated hereby may be consummated as promptly as
practicable on the terms contemplated hereby and shall otherwise act to minimize the effects of any
such statute or regulation on the transactions contemplated hereby.
Section 6.12 Stockholder Litigation. Each of the Company and Parent shall promptly advise the
other Party orally and in writing of any litigation brought by any stockholder of the Company or
Parent against the Company or Parent and/or their respective directors relating to this Agreement
and/or the transactions contemplated by this Agreement, including the Merger, and shall keep the
other Party fully informed regarding any such litigation. Each of the Company and Parent shall
give the other Party the opportunity to participate in, subject to a customary joint defense
agreement, but not control the defense or settlement of any such litigation, shall give due
consideration to the other Partys advice with respect to such litigation and shall not settle any
such litigation without the prior written consent of the other Party (not to be unreasonably
withheld or delayed).
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Section 6.13 Company Series A Preferred Stock.
(a) As promptly as reasonably practicable following the date of this Agreement, the Company
shall exercise its right (the Preferred Stock Conversion Right) pursuant to Section 8
of the provisions of the charter of the Company establishing the terms of the Company Series A
Preferred Stock (the Preferred Stock Conversion Provisions) to require all holders of
Company Series A Preferred Stock to convert such shares of Company Series A Preferred Stock into
shares of Company Common Stock on the terms and subject to the conditions set forth in the
Preferred Stock Conversion Provisions (the Preferred Stock Conversion). The Companys
exercise of its Preferred Stock Conversion Right and the Preferred Stock Conversion shall be
conducted in accordance with the terms of the Preferred Stock Conversion Provisions;
provided, that the date the Preferred Stock Conversion is to be effective shall be no
later than one Business Day prior to the Closing Date.
(b) Subject to Section 6.13(a), the Company shall take all action necessary to
consummate the Preferred Stock Conversion, to comply in all material respects
with all Laws and regulations applicable thereto, and to prepare and, if necessary, execute
all documents as may be necessary to consummate the Preferred Stock Conversion.
Section 6.14 Transfer Taxes. If the Effective Time occurs, all stock transfer, real estate
transfer, documentary, stamp, recording and other similar taxes (including interest, penalties and
additions to any such taxes) incurred in connection with this Agreement and the transactions
contemplated hereby shall, except as provided by Section 2.9(c), be paid by Parent.
Section 6.15 Financing. Parent shall use its reasonable best efforts (a) to arrange financing that
is sufficient to permit Parent and Merger Sub to consummate the Merger and the other transactions
contemplated hereby (the Financing) and (b) to enter into, prior to the date of the
Parent Stockholders Meeting, an underwriting agreement with one or more financial institutions
pursuant to which such financial institutions shall commit to underwrite a rights offering by
Parent (the Rights Issue), which underwriting commitment shall cover the portion of the
Rights Issue in excess of the pro rata share of the Norwegian Ministry of Trade and Industry and
the Norwegian National Insurance Scheme Fund, and the proceeds of which will be used to provide
Parent with a portion of the Financing to the extent the Rights Issue is undersubscribed.
Section 6.16 Assistance with Financing.
(a) In order to assist Parent in any way necessary, proper or advisable in connection with
Parents arrangement of the Financing, the Company shall, and shall cause each of its
Subsidiaries to, at the expense of Parent, provide such assistance and cooperation as Parent,
Merger Sub and their Affiliates may reasonably request in connection with the arrangement of the
Financing and the satisfaction, on a timely basis, of all conditions applicable to Parent and
Merger Sub (or its or their Affiliates) in any definitive documents relating thereto including,
(i) furnishing to Parent and its Representatives, to the extent reasonably available, pertinent
information with respect to the Company and its Subsidiaries (or, to the extent required and
reasonably available to it, GrowHow, HATLP, OCOP or PLNL) and their respective operations to be
included in the Parent Circular, the Rights Offer Prospectus and any other prospectus, offering
memorandum, rating agency presentations, bank book, information
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memorandum, lender presentation
or similar document or marketing material (including historical financial statements prepared in
accordance with GAAP and projected financial statements of the Company for inclusion in any such
document, the Required Information), and assisting in the preparation of such
documents (including the preparation of any pro forma financial information required to be
included in any such document) and cooperating with and attending a reasonable number of
meetings with prospective investors or lenders, (ii) requesting its independent accountants to
provide reasonable assistance to Parent or Merger Sub consistent with their customary practice
(including to provide consent to Parent or Merger Sub to prepare and use their audit reports
relating to the Company and any necessary comfort letters in each case on customary terms and
consistent with their customary practice in connection with the Financing), (iii) providing
reasonable cooperation with prospective investors, arrangers and lenders and their respective
advisors in performing their due diligence and (iv) providing all required information
reasonably available to it relating to any indebtedness of the Company or its Subsidiaries whose
terms require or permit it to be declared due and payable, or provide that it becomes
automatically due and payable, prior to its stated maturity as a result of, or in connection
with, the Merger. The Company will use its reasonable best efforts to update the
Required Information from time to time as may be necessary such that such Required
Information does not contain any untrue statement of material fact or omit to state any material
fact necessary in order to make the statements therein not misleading.
(b) In no event shall the Company or its Subsidiaries be required to pay any commitment or
similar fee or incur any other liability in connection with the Financing prior to the Effective
Time. The requested cooperation shall not unreasonably interfere with the ongoing operations of
the Company and its Subsidiaries or otherwise materially impair the ability of any officer or
executive of the Company to carry out their duties to the Company.
(c) Parent and Merger Sub shall indemnify and hold harmless the Company and its
Subsidiaries and its and their directors, officers, employees and agents from and against any
and all losses or damages suffered or incurred by them in connection with the arrangement of the
Financing and any information utilized in connection therewith; provided,
however, that the foregoing shall not apply to the Companys or its Subsidiaries or
other Representatives willful misconduct or gross negligence.
Section 6.17 Dividend Matters. If the Company has declared and set a record date for
a regular quarterly cash dividend payable to the Companys stockholders for the quarter ended prior
to the quarter in which the Effective Time occurs (the Final Full Quarterly Dividend),
and the Effective Time occurs prior to the payment date for the Final Full Quarterly Dividend, then
Parent or the Surviving Corporation will pay the Final Full Quarterly Dividend on behalf of the
Company following the Closing on the scheduled payment date for such dividend.
Section 6.18 No Financing Condition. For the avoidance of doubt, the obligation of
Parent and Merger Sub to close the transactions contemplated by this Agreement is conditioned upon
the receipt of the Parent Stockholder Approval but is not conditioned upon the consummation of the
Financing and, accordingly, the Parties agree that a failure of Parent and Merger Sub to close the
transactions contemplated by this Agreement resulting from a failure or inability to consummate the
Financing constitutes a breach for purposes of this Agreement.
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Section 6.19 Parents Vote at Company Stockholders Meeting. Parent shall vote all
shares of Company Common Stock beneficially owned by it or any of its Subsidiaries in favor of the
Merger at the Company Stockholders Meeting.
Section 6.20 Merger Sub and Surviving Corporation Compliance. Parent shall cause
Merger Sub or the Surviving Corporation, as applicable, to perform all of its respective
agreements, covenants and obligations under this Agreement and Merger Sub shall not engage in any
activities of any nature except as provided in or contemplated by this Agreement.
ARTICLE VII
CONDITIONS PRECEDENT
Section 7.1 Conditions to Each Partys Obligation to Effect the Merger. The respective
obligations of each Party to effect the Merger are subject to the satisfaction, or waiver by it, on
or prior to, but in any event as of, the Closing Date, of the following conditions:
(a) The Company shall have obtained the Company Stockholder Approval.
(b) Parent shall have obtained the Parent Stockholder Approval.
(c) No Laws shall have been adopted or promulgated, and no temporary, preliminary or
permanent Order shall have been issued and remain in effect by a Governmental Entity of
competent jurisdiction having the effect of making the Merger illegal or otherwise prohibiting
consummation of the Merger or the transactions contemplated by this Agreement (collectively,
Restraints).
(d) (i) Any waiting period (including any extensions thereof) applicable to the Merger
under the HSR Act, the Canadian Competition Act or the Canada Transportation Act and any Timing
Agreement with any Government Entity shall have expired or been terminated and (ii) any
applicable approvals pursuant to the Foreign Competition Laws of the European Union shall have
been obtained.
(e) Any review or investigation under the Exon-Florio Amendment shall have been concluded,
or CFIUS or the President of the United States shall have determined not to take action
authorized thereunder or have determined to take action that would not reasonably be expected to
materially adversely affect the business or operations of Parent and its Subsidiaries, taken as
a whole.
(f) There shall not be pending, any suit, action or proceeding by any Governmental Entity
of competent jurisdiction against Parent, Merger Sub, the Company or any Company Subsidiary, or
otherwise in connection with the Merger, seeking to make illegal, restrain or prohibit the
consummation of the Merger, except where such suit, action or proceeding would not reasonably be
expected to have a Material Adverse Effect on the Company.
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Section 7.2 Conditions to Obligations of Parent and Merger Sub. The obligations of Parent and
Merger Sub to effect the Merger are subject to the satisfaction, or waiver by Parent, on or prior
to, but in any event as of, the Closing Date, of the following additional conditions:
(a) (i) The representation and warranty of the Company contained in Section 3.10(c)
of this Agreement shall be true and correct in all respects as of the date of this Agreement and
as of the Closing Date as though made on the Closing Date and (ii) all other representations and
warranties of the Company set forth in ARTICLE III of this Agreement, in each case made
as if none of such representations and warranties contained any qualifications or limitations as
to materiality or Material Adverse Effect, shall be true and correct, in each case as of the
date of this Agreement and as of the Closing Date as though made on and as of the Closing Date
(other than representations and warranties that by their terms speak as of another date, which
shall be true and correct as of such date), except where the failure of such representations and
warranties to be true and correct as so made, individually or in the aggregate, does not have
and is not reasonably expected to result in a Material Adverse Effect on the Company;
provided, however, that, notwithstanding the foregoing, the representations
and warranties contained in Section 3.3 (other than the last sentence of
Section 3.3(c)), Section 3.4 and Section 3.5 shall be true and correct
in all material respects. Parent shall have received a certificate of the chief executive
officer or the chief financial officer of the Company to such effect.
(b) The Company shall have performed or complied in all material respects with all
agreements and covenants required to be performed by it under this Agreement at or prior to the
Closing Date, and Parent shall have received a certificate of the chief executive officer or the
chief financial officer of the Company to such effect.
(c) The Preferred Stock Conversion Right shall have been exercised, the Preferred Stock
Conversion shall have been consummated and no Company Series A Preferred Stock shall be
outstanding.
Section 7.3 Conditions to Obligations of the Company. The obligations of the Company to effect
the Merger are subject to the satisfaction, or waiver by the Company, on or prior to, but in any
event as of, the Closing Date, of the following additional conditions:
(a) Each of the representations and warranties of Parent and Merger Sub set forth in
ARTICLE IV of this Agreement, in each case made as if none of such representations and
warranties contained any qualifications or limitations as to materiality or Material Adverse
Effect, shall be true and correct, in each case as of the date of this Agreement and as of the
Closing Date as though made on and as of the Closing Date (other than representations and
warranties that by their terms speak as of another date, which shall be true and correct as of
such date), except where the failure of such representations and warranties to be true and
correct as so made, individually or in the aggregate, does not have and is not reasonably
expected to result in a Material Adverse Effect on Parent. The Company shall have received a
certificate of the chief executive officer or the chief financial officer of Parent to such
effect.
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(b) Each of Parent and Merger Sub shall have performed or complied in all material respects
with all agreements and covenants required to be performed by it under this Agreement at or
prior to the Closing Date, and the Company shall have received a certificate of the chief
executive officer or the chief financial officer of Parent to such effect.
ARTICLE VIII
TERMINATION
Section 8.1 Termination. This Agreement may be terminated and the transactions contemplated
hereby may be abandoned at any time prior to the Effective Time, whether before or after receipt of
the Company Stockholder Approval:
(a) by mutual written consent of Parent and the Company;
(b) by either Parent or the Company, if:
(i) the Merger shall not have been consummated by September 30, 2010 (the
Walk-Away Date); provided that the right to terminate the
Agreement pursuant to this Section 8.1(b)(i) shall not be available to any
Party whose failure to perform any of its obligations under this Agreement is the
primary cause of the failure of the Merger to be consummated by the Walk-Away Date;
provided further that if the Merger shall not have been consummated
by the Walk-Away Date, but on such date, all of the conditions to Closing set forth
in ARTICLE VII, other than (x) conditions that by their nature are only to
be satisfied as of the Closing and (y) any of the conditions set forth in
Section 7.1(c), Section 7.1(d), Section 7.1(e) or
Section 7.1(f) (but solely, in the case of Section 7.1(c) or
Section 7.1(f), to the extent the matter giving rise to the failure of any
such condition is related to the HSR Act, the Foreign Competition Laws, the
Exon-Florio Amendment or a notification to CFIUS), have been fulfilled or waived,
then at the election of either the Company or Parent, the Walk-Away Date shall be
extended to December 31, 2010 (such date, the Extended Walk-Away Date);
(ii) any Restraint having any of the effects set forth in Section
7.1(c) shall be in effect and shall have become final and non-appealable;
provided that the Party seeking to terminate this Agreement pursuant to this
Section 8.1(b)(ii) shall have used its best efforts to remove such Restraint
as required by Section 6.4;
(iii) the Company Stockholder Approval shall not have been obtained at the
Company Stockholders Meeting; or
(iv) the Parent Stockholder Approval shall not have been obtained at the Parent
Stockholders Meeting;
(c) by Parent:
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(i) if the Company shall have breached or failed to perform any of its
representations, warranties or covenants contained in this Agreement, which breach
or failure to perform (A) is incapable of being cured by the Company prior to the
Walk-Away Date or Extended Walk-Away Date (if applicable) or is not cured by the
earlier of (x) forty (40) Business Days following written notice to the Company by
Parent of such breach or (y) the Walk-Away Date or Extended Walk-Away Date (if
applicable) and (B) would result in a failure of any condition set forth in
Section 7.2(a) or Section 7.2(b); or
(ii) if the Board of Directors of the Company or any committee thereof shall
(A) fail to make the Company Recommendation or include the Company Recommendation in
the Proxy Statement, (B) fail to publicly reaffirm the Company Recommendation within
ten (10) Business Days of receipt of a written request by Parent to provide such
reaffirmation (provided Parent exercises such termination right within ten
(10) Business Days of such failure) or (C) effect a Change in Company
Recommendation; or
(iii) if the Company or any Company Subsidiary or its or their respective
Representatives, directly or indirectly, shall have materially breached any of their
obligations under Section 6.5;
(d) by the Company:
(i) if Parent or Merger Sub shall have breached or failed to perform any of its
representations, warranties or covenants contained in this Agreement, which breach
or failure to perform (A) is incapable of being cured by Parent or Merger Sub prior
to the Walk-Away Date or Extended Walk-Away Date (if applicable) or is not cured by
the earlier of (x) forty (40) Business Days following written notice to Parent by
the Company of such breach or (y) the Walk-Away Date or Extended Walk-Away Date (if
applicable) and (B) would result in a failure of any condition set forth in
Section 7.3(a) or Section 7.3(b); or
(ii) in accordance with the terms and subject to the conditions of Section
6.5(c).
Section 8.2 Effect of Termination.
(a) In the event of any termination of this Agreement as provided in
Section 8.1, the obligations of the Parties hereunder shall terminate and
there shall be no liability on the part of any Party hereto with respect thereto,
except for the provisions of this Section 8.2 and ARTICLE IX, each
of which shall remain in full force and effect; provided, however,
that no Party hereto shall be relieved or released from any liability or damages
arising from a breach of any provision of this Agreement, and the aggrieved Party
shall be entitled to all rights and remedies available at law or in equity,
including, in the case of a breach by Parent or Merger Sub, liability to the Company
for damages, determined taking into account all
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relevant factors including lost
stockholder premium and any relevant breaches by the Company.
(b) In the event that:
(i) this Agreement is terminated pursuant to Section 8.1(c)(ii) or
Section 8.1(d)(ii), then the Company shall pay to Parent the Termination
Fee. The Company shall pay such Termination Fee by wire transfer of immediately
available funds by the second (2nd) Business Day following such
termination in the case of the termination of this Agreement pursuant to Section
8.1(c)(ii), or concurrently with such termination in the case of the termination
of this Agreement pursuant to Section 8.1(d)(ii);
(ii) this Agreement is terminated pursuant to Section 8.1(b)(iii),
Section 8.1(c)(i) (as a result of a breach by the Company of any of its
covenants contained in this Agreement) or Section 8.1(c)(iii) and
within six (6) months after the date of such termination, the Company enters into a
definitive
agreement to consummate or consummates the transactions contemplated by a
Takeover Proposal, then the Company shall pay to Parent, by wire transfer of
immediately available funds, an amount equal to the Termination Fee by the second
(2nd) Business Day following the earlier of the date the Company enters
into a definitive agreement or consummates such transaction; provided that,
for purposes of this Section 8.2(b)(ii), the term Takeover
Proposal shall have the meaning ascribed thereto in Section 1.1, except
that all references to fifteen percent (15%) shall be changed to fifty percent
(50%); or
(iii) this Agreement is terminated pursuant to Section 8.1(b)(i)
(provided that at the time of such termination, the conditions set forth in
Section 7.1(c), Section 7.1(d), Section 7.1(e) and
Section 7.1(f) shall have been satisfied), Section 8.1(b)(iii),
Section 8.1(c)(i) or Section 8.1(c)(iii) and (x) at any time
after the date of this Agreement and prior to the date of termination, a Takeover
Proposal shall have been publicly announced and not subsequently withdrawn (or any
Person shall have publicly announced or publicly communicated an intention, whether
or not conditional, to make a Takeover Proposal and such intention is not
subsequently withdrawn), and (y) within eighteen (18) months after the date
of such termination, the Company enters into a definitive agreement to consummate or
consummates the transactions contemplated by any Takeover Proposal, then the Company
shall pay to Parent, by wire transfer of immediately available funds, an amount
equal to the Termination Fee by the second (2nd) Business Day following
the earlier of the date the Company enters into a definitive agreement or
consummates such transaction; provided that, for purposes of this
Section 8.2(b)(iii), the term Takeover Proposal shall have the
meaning ascribed thereto in Section 1.1, except that all references to
fifteen percent (15%) shall be changed to fifty percent (50%); or
(iv) this Agreement is terminated pursuant to Section 8.1(b)(iv), then
Parent shall pay to the Company the Termination Fee. Parent shall
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pay such
Termination Fee by wire transfer of immediately available funds concurrently with
such termination, in the case of a termination by Parent, or by the second
(2nd) Business Day following such termination, in the case of a
termination by the Company.
(c) Each Party agrees that the agreements contained in Section 8.2(b) are an
integral part of the transactions contemplated by this Agreement, and that, without these
agreements, the Parties would not enter into this Agreement; accordingly, if either Parent or
the Company fails promptly to pay any amounts due under Section 8.2(b) and, in order to
obtain such payment, the other Party commences a suit that results in a judgment against the
nonpaying Party for such amounts, the nonpaying Party shall pay interest on such amounts from
the date payment of such amounts was due to the date of actual payment at the prime rate of the
Bank of New York in effect on the date such payment was due, together with the costs and
expenses of the other Party (including reasonable legal fees and expenses) in connection with
such suit.
ARTICLE IX
GENERAL PROVISIONS
Section 9.1 Non-Survival of Representations, Warranties and Agreements. None of the
representations, warranties, covenants and other agreements in this Agreement or in any instrument
delivered pursuant to this Agreement, including any rights arising out of any breach of such
representations, warranties, covenants and other agreements, shall survive the Effective Time,
except for those covenants and agreements contained herein and therein (including Section
6.8) that by their terms apply or are to be performed in whole or in part after the Effective
Time and this ARTICLE IX.
Section 9.2 Notices. All notices and other communications hereunder shall be in writing and shall
be deemed duly given (a) on the date of delivery if delivered personally, or by telecopy or
telefacsimile, upon confirmation of receipt or (b) on the first (1st) Business Day
following the date of dispatch if delivered by a recognized next-day courier service. All notices
hereunder shall be delivered as set forth below or pursuant to such other instructions as may be
designated in writing by the Party to receive such notice:
If to Parent or Merger Sub, to:
Yara International ASA
P.O. Box 2464, Solli
Bygdoy alle 2
N-0202 Oslo
Norway
Telecopier: +(47) 24 15 75 64
Attention: Chief Legal Counsel
with a copy (which shall not constitute notice) to:
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Latham & Watkins LLP
885 Third Avenue
New York, NY 10022
Telecopier: (212) 751-4864
Attention: Barry A. Bryer, Esq.
Eric J. Schwartzman, Esq.
and
Wikborg Rein
Pb 1513 Vika
0117 Oslo
Norway
Telecopier: +(47) 22 82 75 01
Attention: Per Anders Sæhle, Esq.
If to the Company, to:
Terra Industries Inc.
Terra Centre
600 Fourth Street
P.O. Box 6000
Sioux City, IA 51102-6000
Telecopier: (712) 233-5586
Attention: John W. Huey, Esq.
with a copy (which shall not constitute notice) to:
Cravath, Swaine & Moore LLP
Worldwide Plaza
825 Eighth Avenue
New York, NY 10019
Telecopier: (212) 474-3700
Attention: Faiza J. Saeed, Esq.
Thomas E. Dunn, Esq.
and
Wachtell, Lipton, Rosen & Katz
51 West 52nd Street
New York, NY 10019
Telecopier: (212) 403-2000
Attention: David C. Karp, Esq.
Section 9.3 Interpretation. When a reference is made in this Agreement to Sections, Exhibits or
Schedules, such reference shall be to a Section of or an Exhibit or a Schedule to this Agreement
unless otherwise indicated. The table of contents and headings contained in this
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Agreement are for
reference purposes only and shall not affect in any way the meaning or interpretation of this
Agreement. Whenever the word include, includes or including is used in this Agreement, it
shall be deemed to be followed by the words without limitation. The words hereby, 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. The words date
hereof shall refer to the date of this Agreement. The term or is not exclusive. The word
extent in the phrase to the extent shall mean the degree to which a subject or other thing
extends, and such phrase shall not mean simply if. The words describing the singular number
shall include the plural and vice versa and words denoting any gender shall include all genders.
The Parties have participated jointly in the negotiation and drafting of this Agreement. In the
event an ambiguity or a question of intent or interpretation arises, this Agreement shall be
construed as if drafted jointly by the Parties and no presumption or burden of
proof shall arise favoring or disfavoring any Party by virtue of the authorship of any
provisions of this Agreement.
Section 9.4 Counterparts; Effectiveness. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all of which shall constitute
one and the same instrument. This Agreement shall become effective when each Party hereto shall
have received counterparts thereof signed and delivered (by telecopy or otherwise) by the other
Parties hereto.
Section 9.5 Entire Agreement; Third Party Beneficiaries.
(a) This Agreement (including the Company Disclosure Letter and the Exhibits hereto),
together with the Confidentiality Agreement, constitute the entire agreement, and supersede all
prior agreements and understandings, both written and oral, between the Parties with respect to
the subject matter hereof and thereof.
(b) This Agreement shall be binding upon and inure solely to the benefit of each Party
hereto, and nothing in this Agreement, express or implied, is intended to or shall confer upon
any Person not a Party to this Agreement any rights, benefits or remedies of any nature
whatsoever, other than Section 6.8 (which is intended to be for the benefit of the
Persons covered thereby and may be enforced by such Persons). Notwithstanding the immediately
preceding sentence, following the Effective Time, the provisions of ARTICLE II shall be
enforceable by holders of Certificates.
Section 9.6 Severability. If any term or other provision of this Agreement is invalid, illegal or
incapable of being enforced by any law or public policy, all other terms 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. Notwithstanding the foregoing, upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the Parties shall negotiate in good
faith to modify this Agreement so as to effect the original intent of the Parties as closely as
possible in an acceptable manner in order that the transactions contemplated hereby are consummated
as originally contemplated to the greatest extent possible.
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Section 9.7 Assignment. Neither this Agreement nor any of the rights, interests or obligations
hereunder shall be assigned by any of the Parties, in whole or in part (whether by operation of Law
or otherwise), without the prior written consent of the other Parties, and any attempt to make any
such assignment without such consent shall be null and void; provided, that Parent and
Merger Sub may assign their rights and obligations pursuant to this Agreement to any direct or
indirect wholly-owned Subsidiary of Parent so long as Parent continues to remain primarily liable
for all of such rights and obligations. 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 permitted assigns.
Section 9.8 Amendment. This Agreement may be amended by the Parties at any time before or after
approval of the matters presented in connection with the Merger by the stockholders of the Company
or the stockholders of Parent, but, after such approval, no amendment shall be made which by Law
requires further approval by such stockholders without such further approval. This Agreement may
not be amended except by an instrument in writing signed on behalf of each of the Parties.
Section 9.9 Extension; Waiver. At any time prior to the Effective Time, the Parties may, to the
extent legally allowed, (a) extend the time for the performance of any of the obligations or other
acts of the other Parties, (b) waive any inaccuracies in the representations and warranties
contained herein or in any document delivered pursuant hereto and (c) waive compliance with any of
the agreements or conditions contained herein. Any agreement on the part of a Party hereto to any
such extension or waiver shall be valid only if set forth in a written instrument signed on behalf
of such Party. The failure of any Party to this Agreement to assert any of its rights under this
Agreement or otherwise shall not constitute a waiver of those rights.
Section 9.10 GOVERNING LAW AND VENUE; WAIVER OF JURY TRIAL.
(a) All disputes arising out of or concerning the existence, validity interpretation or
performance of this Agreement shall be resolved by binding arbitration administered by the
American Arbitration Association (AAA) pursuant to its Commercial Arbitration Rules in
accordance with Section 9.10(b).
(b) The arbitral panel shall consist of three members, one to be appointed by each of the
Parties (with Parent and Merger Sub being treated as a single Party for purposes of this
Section 9.10) and the third to be chosen by the two party-appointed arbitrators. If the
responding Party fails to appoint an arbitrator or the two party-appointed arbitrators fail to
appoint the third within the prescribed time periods, then the appointments shall be made by the
AAA pursuant to its rules and procedures in effect at the time of the appointments:
(i) Arbitration may be commenced by any Party by giving written notice to the
other Party and to the AAA pursuant to the rules of the AAA then in existence.
Within 15 days of such notice, the Party demanding arbitration shall appoint its
arbitrator. Within 15 days of that appointment, the other Party shall appoint its
arbitrator. Within 15 days after the appointment of both Party-appointed
arbitrators, those two shall appoint the third, who shall preside over the panel.
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(ii) The situs of the arbitration shall be the State of Delaware and the
evidentiary proceedings shall be conducted in Wilmington, Delaware. The panel may
conduct proceedings in other locations if necessary for the taking of evidence.
(iii) Each arbitrator shall be impartial and shall be a retired Delaware
Chancery Court judge or Delaware Supreme Court justice, or, if not
reasonably available, shall otherwise be knowledgeable about and experienced
with the law of Delaware and have had at least 15 years of legal experience in the
area of mergers and acquisitions.
(iv) In connection with any arbitration proceeding hereunder, the arbitral
panel shall allow reasonable requests for the production of documents relevant to
the dispute and permit the taking of depositions limited to not more than seven
persons on each side and for not more than 70 hours in total for each side. The
panel may seek to compel the production of evidence from non-Parties.
(c) The arbitral panel is authorized to award monetary damages and to grant specific
performance of the Agreement and other injunctive relief, including interim relief pending the
final award.
(d) The Parties shall bear their own costs incurred in connection with the arbitration and
share equally the fees and expenses of the arbitral panel and the costs of administration.
(e) The arbitral award shall be final and non-appealable and may be enforced in any court
of competent jurisdiction.
(f) THIS AGREEMENT SHALL BE DEEMED TO BE MADE IN ACCORDANCE WITH, AND IN ALL RESPECTS SHALL
BE INTERPRETED, CONSTRUED AND GOVERNED BY AND IN ACCORDANCE WITH, THE LAW OF THE STATE OF
DELAWARE WITHOUT REGARD TO ITS RULES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF
THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY, EXCEPT FOR SUCH PROVISIONS WHERE THE
MGCL IS MANDATORILY APPLICABLE, WHICH PROVISIONS SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE MGCL; PROVIDED, HOWEVER, THAT THE MGCL SHALL GOVERN THE RELATIVE RIGHTS,
OBLIGATIONS, POWERS, DUTIES AND OTHER INTERNAL AFFAIRS OF THE COMPANY AND THE BOARD OF DIRECTORS
OF THE COMPANY.
(g) With respect to any matter not subject to arbitration under this Section of the
Agreement, each Party hereby irrevocably consents to the exclusive jurisdiction of the courts of
the State of Delaware and waives any objection to personal jurisdiction of and venue in such
court with respect to such proceeding and any claim that such forum is inconvenient. EACH PARTY
ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO
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INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.
(h) PARENT HEREBY IRREVOCABLY DESIGNATES NATIONAL CORPORATE RESEARCH, LTD. (IN SUCH
CAPACITY THE PROCESS AGENT), WITH AN OFFICE AT 615 SOUTH DUPONT HIGHWAY, DOVER, DE
19901, AS ITS DESIGNEE, APPOINTEE AND AGENT TO RECEIVE, FOR AND ON ITS BEHALF SERVICE OF PROCESS
IN SUCH JURISDICTION IN ANY LEGAL ACTION OR PROCEEDINGS WITH RESPECT TO THIS AGREEMENT OR ANY
OTHER AGREEMENT EXECUTED IN CONNECTION WITH THIS AGREEMENT, AND SUCH SERVICE SHALL BE DEEMED
COMPLETE UPON DELIVERY THEREOF TO THE PROCESS AGENT. NOTHING HEREIN SHALL AFFECT THE RIGHT OF
ANY PARTY TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.
(i) EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS
AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY
HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY
IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT
OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT
(i) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR
OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER, (ii) EACH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS
WAIVER, (iii) EACH PARTY MAKES THIS WAIVER VOLUNTARILY AND (iv) EACH PARTY HAS BEEN INDUCED TO
ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
Section 9.10(i).
Section 9.11 Specific Enforcement. The Parties hereto agree that irreparable damage would occur in
the event that any provision of this Agreement was not performed in accordance with its specific
terms or was otherwise breached. It is accordingly agreed that the Parties shall be entitled to an
injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the
terms and provisions hereof in any court of competent jurisdiction without proof of damages or
otherwise (and each Party hereby waives any requirement for the securing or posting of any bond in
connection with such remedy), this being in addition to any other remedy to which they are entitled
at law or in equity. The right for specific enforcement shall include the right of the Company to
cause Parent and Merger Sub to cause the Merger and the transactions contemplated by the Merger to
be consummated on the terms and subject to the conditions set forth in this Agreement. The Parties
further agree not to assert that a remedy of specific enforcement is unenforceable, invalid,
contrary to Law or inequitable for any reason, nor to assert that a remedy of monetary damages
would provide an adequate remedy. If, prior to the Walk-Away Date or Extended Walk-Away Date (if
applicable), any Party brings any action to enforce specifically the
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performance of the terms and
provisions hereof by any other Party, the Walk-Away Date or Extended Walk-Away Date (if applicable)
shall automatically be extended by (x) the amount of time during which such action is pending, plus
twenty (20) Business Days or (y) such other time period established by the court presiding over
such action.
[signature page follows]
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IN WITNESS WHEREOF, Parent, Merger Sub and the Company have caused this Agreement to be signed
by their respective officers thereunto duly authorized, all as of the date first written above.
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YARA INTERNATIONAL ASA
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By: |
/s/ Øivind Lund
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Name: |
Øivind Lund |
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Title: |
Chairman of the Board |
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By: |
/s/ Jørgen Ole Haslestad
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Name: |
Jørgen Ole Haslestad |
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Title: |
President and Chief Executive Officer |
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YUKON MERGER SUB, INC.
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By: |
/s/ Edward Cavazuti
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Name: |
Edward Cavazuti |
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Title: |
President |
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TERRA INDUSTRIES INC.
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By: |
/s/ Michael L. Bennett
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Name: |
Michael L. Bennett |
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Title: |
President and Chief Executive Officer |
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EXHIBIT A
TERRA INDUSTRIES INC.
AMENDED AND RESTATED CHARTER
ARTICLE I
NAME
The name of the corporation (the Corporation) is Terra Industries Inc.
ARTICLE II
PURPOSE
The purposes for which the Corporation is formed are to engage in any lawful act or activity
for which corporations may be organized under the general laws of the State of Maryland as now or
hereafter in force.
ARTICLE III
PRINCIPAL OFFICE
The address of the principal office of the Corporation in the State of Maryland is c/o The
Corporation Trust Incorporated, 351 West Camden Street, Baltimore, Maryland 21201.
ARTICLE IV
RESIDENT AGENT
The name of the resident agent of the Corporation in the State of Maryland is The Corporation
Trust Incorporated, and its address is 351 West Camden Street, Baltimore, Maryland 21201. The
resident agent is a Maryland corporation.
ARTICLE V
PROVISIONS FOR DEFINING, LIMITING
AND REGULATING CERTAIN POWERS OF THE
CORPORATION AND OF THE STOCKHOLDERS AND DIRECTORS
Section 5.1 Number of Directors. The business and affairs of the Corporation shall be
managed under the direction of the Board of Directors. The number of directors of the Corporation
is [one], which number may be increased or decreased pursuant to the Bylaws of the Corporation (the
Bylaws), but shall never be less than the minimum number required by the Maryland General
Corporation Law (the MGCL). The name[s] of the
director[s] who shall serve until the next annual meeting of stockholders and until [his][their] successors are duly
elected and qualify are:
[ ]
The directors may increase the number of directors and may fill any vacancy, whether resulting from
an increase in the number of directors or otherwise, on the Board of Directors in the manner
provided in the Bylaws.
Section 5.2 Authorization by Board of Stock Issuance. The Board of Directors may
authorize the issuance from time to time of shares of stock of the Corporation of any class or
series, whether now or hereafter authorized, or securities or rights convertible into shares of its
stock of any class or series, whether now or hereafter authorized, for such consideration as the
Board of Directors may deem advisable (or without consideration in the case of a stock split or
stock dividend), subject to such restrictions or limitations, if any, as may be set forth in the
charter (the Charter) or the Bylaws.
Section 5.3 Indemnification. The Corporation shall, to the maximum extent permitted
by Maryland law in effect from time to time, indemnify, and pay or reimburse reasonable expenses in
advance of final disposition of a proceeding without requiring a preliminary determination as to
the ultimate entitlement to indemnification to, (a) any individual who is a present or former
director or present or former officer of the Corporation or (b) any individual who, while a
director or officer of the Corporation and at the request of the Corporation, serves or has served
as a director, officer, partner, manager, member or trustee of another corporation, real estate
investment trust, partnership, limited liability company, joint venture, trust, employee benefit
plan or any other enterprise from and against any claim or liability to which such person may
become subject or which such person may incur by reason of his or her service in such capacity.
The Corporation shall have the power, with the approval of the Board of Directors, to provide such
indemnification and advancement of expenses to a person who served a predecessor of the Corporation
in any of the capacities described in (a) or (b) above and to any employee or agent of the
Corporation or a predecessor of the Corporation. No amendment of the Charter or any repeal of any
of its provisions shall limit or eliminate any of the benefits provided to present or former
directors and present or former officers under this Section 5.3 in respect of any act or omission
that occurred prior to such amendment or repeal.
Section 5.4 Appraisal Rights. Holders of shares of stock shall not be entitled to
exercise any rights of an objecting stockholder provided for under Title 3, Subtitle 2 of the MGCL
or any successor statute unless the Board of Directors, upon the affirmative vote of a majority of
the Board of Directors, shall determine that such rights apply, with respect to all or any classes
or series of stock, to one or more transactions occurring after the date of such determination in
connection with which holders of such shares would otherwise be entitled to exercise such rights.
Section 5.5 Extraordinary Actions. Notwithstanding any provision of law permitting or
requiring any action to be taken or approved by the affirmative vote of the holders
of shares entitled to cast a greater number of votes, any such action shall be effective and valid
if declared advisable by the Board of Directors and taken or approved by the affirmative vote of
holders of shares entitled to cast a majority of all the votes entitled to be cast on the matter.
Section 5.6 Determinations by Board. The determination as to any of the following
matters, made in good faith by or pursuant to the direction of the Board of Directors consistent
with the Charter, shall be final and conclusive and shall be binding upon the Corporation and every
holder of shares of its stock: the amount of the net income of the Corporation for any period and
the amount of assets at any time legally available for the payment of dividends, redemption of its
stock or the payment of other distributions on its stock; the amount of paid-in surplus, net
assets, other surplus, annual or other cash flow, funds from operations, net profit, net assets in
excess of capital, undivided profits or excess of profits over losses on sales of assets; the
amount, purpose, time of creation, increase or decrease, alteration or cancellation of any reserves
or charges and the propriety thereof (whether or not any obligation or liability for which such
reserves or charges shall have been created shall have been paid or discharged); any
interpretation of the terms, preferences, conversion or other rights, voting powers or rights,
restrictions, limitations as to dividends or other distributions, qualifications or terms or
conditions of redemption of any class or series of stock of the Corporation; the fair value, or any
sale, bid or asked price to be applied in determining the fair value, of any asset owned or held by
the Corporation or of any shares of stock of the Corporation; the number of shares of stock of any
class of the Corporation; any matter relating to the acquisition, holding and disposition of any
assets by the Corporation; or any other matter relating to the business and affairs of the
Corporation or required or permitted by applicable law, the Charter or Bylaws or otherwise to be
determined by the Board of Directors.
Section 5.7 Stockholder Consent in Lieu of Meeting. Any action required or permitted
to be taken at any meeting of the stockholders may be taken without a meeting by consent, in
writing or by electronic transmission, in any manner permitted by the MGCL and set forth in the
Bylaws (including by less than unanimous consent, if so provided in the Bylaws).
ARTICLE VI
STOCK
Section 6.1 Authorized Shares. The Corporation has authority to issue 1000 shares of
stock, consisting of 1000 shares of common stock, $0.01 par value per share. The aggregate par
value of all authorized shares of stock having par value is $10.00. The Board of Directors, with
the approval of a majority of the entire Board and without any action by the stockholders of the
Corporation, may amend the Charter from time to time to increase or decrease the aggregate number
of shares of stock or the number of shares of stock of any class or series that the Corporation has
authority to issue.
Section 6.2 Classified or Reclassified Shares. The Board of Directors may reclassify
any unissued shares of stock of the Corporation from time to time in one or more classes or series
of stock. If shares of one class of stock are classified or reclassified into shares of another
class of stock pursuant to this Article VI, the number of authorized shares of the
former class shall be automatically decreased and the number of shares of the latter class shall be
automatically increased, in each case by the number of shares so classified or reclassified, so
that the aggregate number of shares of stock of all classes that the Corporation has authority to
issue shall not be more than the total number of shares of stock set forth in the first sentence of
Section
6.1. Prior to issuance of classified or reclassified shares of any class or series, the
Board of Directors by resolution shall: (i) designate that class or series to distinguish it from
all other classes and series of stock of the Corporation; (ii) specify the number of shares to be
included in the class or series; (iii) set or change, subject to the express terms of any class or
series of stock of the Corporation outstanding at the time, the preferences, conversion or other
rights, voting powers, restrictions, limitations as to dividends or other distributions,
qualifications and terms and conditions of redemption for each class or series; and (iv) cause the
Corporation to file articles supplementary with the State Department of Assessments and Taxation of
Maryland. Any of the terms of any class or series of stock set or changed pursuant to clause (iii)
of this Section 6.2 may be made dependent upon facts or events ascertainable outside the Charter
(including determinations by the Board of Directors or other facts or events within the control of
the Corporation) and may vary among holders thereof, provided that the manner in which such facts,
events or variations shall operate upon the terms of such class or series of stock is clearly and
expressly set forth in the articles supplementary or other charter document.
Section 6.3 Charter and Bylaws. The rights of all stockholders and the terms of all
stock are subject to the provisions of the Charter and the Bylaws. The Board of Directors of the
Corporation shall have the exclusive power to make, alter, amend or repeal the Bylaws.
ARTICLE VII
AMENDMENTS
The Corporation reserves the right from time to time to make any amendment to its Charter, now
or hereafter authorized by law, including any amendment altering the terms or contract rights, as
expressly set forth in the Charter, of any shares of outstanding stock. All rights and powers
conferred by the Charter on stockholders, directors and officers are granted subject to this
reservation.
ARTICLE VIII
LIMITATION OF LIABILITY
To the fullest extent permitted by Maryland law, as it may be amended from time to time, no
person who at any time was or is a director or officer of the Corporation shall be personally
liable to the Corporation or its stockholders for money damages. No amendment of the Charter or
repeal of any of its provisions shall limit or eliminate any of the benefits provided to present or
former directors and present or former officers under this Article VIII in respect of any act or
omission that occurred prior to such amendment or repeal.
Exhibit B
February 12, 2010
Board of Directors
Terra Industries Inc.
Terra Center
600 Fourth Street
P.O. Box 6000
Sioux City, Iowa 51102
Members of the Board:
You have asked us to advise you with respect to the fairness to the holders of common stock,
without par value (Company Common Stock), of Terra Industries Inc. (the
Company), from a financial point of view, of the Consideration (as defined below) to be
received by such stockholders pursuant to the terms of the Agreement and Plan of Merger, dated as
of February 12, 2010 (the Merger Agreement) by and among Yara International ASA
(Parent), Yukon Merger Sub, Inc., an indirect wholly owned subsidiary of Parent
(Merger Sub) and the Company. The Merger Agreement provides for, among other things, the
merger (the Merger) of Merger Sub with and into the Company, whereby the Company will
become a wholly owned subsidiary of Parent and each outstanding share of Company Common Stock,
other than those shares owned by Parent, Merger Sub and the Company, will be converted into the
right to receive $41.10 in cash (the Consideration).
In arriving at our opinion, we have reviewed a draft of the Merger Agreement dated February 12,
2010, certain related agreements, as well as certain publicly available business and financial
information relating to the Company. We also have reviewed certain other information relating to
the Company, including financial forecasts relating to the Company (certain of which were publicly
available), as well as pricing information related to natural gas and certain other commodities
reflected in such forecasts and data, which were provided to or discussed with us by the Company.
We also have met with the management of the Company to discuss the business and prospects of the
Company. We have also considered certain financial and stock market data of the Company and we
have compared that data with similar data for other publicly held companies in businesses we deemed
similar to that of the Company and we have considered, to the extent publicly available, the
financial terms of certain other business combinations and transactions which have been effected or
announced. We also considered such other information, financial studies, analyses and
investigations and financial, economic and market criteria which we deemed relevant.
In connection with our review, we have not independently verified any of the foregoing information
and have assumed and relied on such information being complete and accurate in all material
respects. With respect to the financial forecasts for the Company and the estimated data for the
Company that we have reviewed, the management of the Company has advised us, and we have assumed,
that such forecasts have been reasonably prepared on bases reflecting the best currently available
estimates and judgments of the Companys management as to the future financial performance of the
Company, and that such other data (including the
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Board of Directors
Terra Industries Inc.
February 12, 2010
Page 2
assumptions related to pricing of natural gas and
certain other commodities) have also been reasonably prepared on bases reflecting the best
currently available estimates. With respect to the publicly available financial forecasts for the
Company referred to above, we have reviewed and discussed such forecasts with the management of the
Company and have assumed, with your consent, that such forecasts represent reasonable estimates and
judgments with respect to the future financial performance of the Company. For purposes of our
opinion, we have assumed, with your consent, that the Company will complete the acquisition of
Carseland on the terms described to us by management of the Company. We have also assumed, with
your consent, that in the course of obtaining any regulatory or third party consents, approvals or
agreements in connection with the Merger, no modification, delay, limitation, restriction or
condition will be imposed that would have an adverse effect on the Company or the Merger in any
respect material to our analyses and that the Merger will be consummated in accordance with the
terms of the Merger Agreement without waiver, modification or amendment of any material term,
condition or agreement thereof. Representatives of the Company have advised us, and we have
assumed, that the terms of the Merger Agreement, when executed, will conform in all respects
material to our analyses to the terms reflected in the draft reviewed by us. In addition, we have
not been requested to make, and have not made, an independent evaluation or appraisal of the assets
or liabilities (contingent or otherwise) of the Company, nor have we been furnished with any such
evaluations or appraisals.
Our opinion addresses only the fairness, from a financial point of view, to the holders of Company
Common Stock of the Consideration to be received in the Merger and does not address any other
aspect or implication of the Merger or any other agreement, arrangement or understanding entered
into in connection with the Merger or otherwise, including, without limitation, the fairness of the
amount or nature of, or any other aspect relating to, any compensation to any officers, directors
or employees of any party to the Merger, or class of such persons, relative to the Consideration or
otherwise. The issuance of this opinion was approved by our authorized internal committee.
Our opinion is necessarily based upon information made available to us as of the date hereof and
financial, economic, market and other conditions as they exist and can be evaluated on the date
hereof and upon certain assumptions regarding such financial, economic, market and other
conditions, which are currently subject to unusual volatility and which, if different than assumed,
could have a material impact on our analyses. Our opinion also is based on assumptions provided by
the Companys management as to the pricing of natural gas and certain other commodities, which is
subject to significant volatility and which, if different than as assumed, could have a material
impact on our
analyses. Our opinion does not address the merits of the Merger as compared to alternative
transactions or strategies that may be available to the Company, nor does it address the underlying
business decision of the Company to proceed with the Merger.
We have acted as financial advisor to the Company in connection with the Merger and will receive a
fee for our services, a significant portion of which is contingent upon the consummation of the
Merger. We also became entitled to receive a fee upon the rendering of our opinion. In addition,
the Company has agreed to indemnify us and certain related parties for certain liabilities and
other items arising out of or related to our engagement. We and our affiliates have in the past
provided investment banking and other financial services to the
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Board of Directors
Terra Industries Inc.
February 12, 2010
Page 3
Company and its affiliates, for
which we and our affiliates have received compensation, including having acted as (i) financial
advisor to the Company in connection with the consideration of various proposals made in 2009 by CF
Industries Holdings, Inc. for a business combination with the Company, (ii) financial advisor to
the Company in 2008 in connection with the review of the Companys strategic alternatives (which
alternatives included a potential transaction involving Parent), and (iii) joint lead managing
underwriter in connection with a subsidiary of the Companys offering in 2009 of $600,000,000 of
7.75% Senior Notes due 2019. We and our affiliates may in the future provide financial advice and
services to the Company, Parent and their respective affiliates or any company that may be involved
in the Merger for which we and our affiliates would expect to receive compensation. We are a full
service securities firm engaged in securities trading and brokerage activities as well as providing
investment banking and other financial services. In the ordinary course of our business, we and
our affiliates may acquire, hold or sell, for our and our affiliates own accounts and for the
accounts of customers, equity, debt and other securities and financial instruments (including bank
loans and other obligations) of the Company, Parent and any other companies that may be involved in
the Merger, as well as provide investment banking and other financial services to such companies.
It is understood that this letter is for the information of the Board of Directors of the Company
in connection with its evaluation of the Merger and does not constitute a recommendation to any
stockholder as to how such stockholder should vote or act on any matter relating to the proposed
Merger.
Based upon and subject to the foregoing, it is our opinion that, as of the date hereof, the
Consideration to be received by the holders of Company Common Stock in the Merger is fair, from a
financial point of view, to such stockholders.
Very truly yours,
CREDIT SUISSE SECURITIES (USA) LLC
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By:
Title:
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/s/ David A. DeNunzio
Managing Director
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B-3
NNNNNNNNNNNN Convert to E2 Admission Ticket file on BOC Bowneshare > start at pcn
401 NNNNNNNNNNNNNNN C123456789 000004 000000000.000000 ext 000000000.000000 ext NNNNNNNNN
000000000.000000 ext 000000000.000000 ext MR A SAMPLE DESIGNATION (IF ANY) 000000000.000000 ext
000000000.000000 ext ADD 1 Electronic Voting Instructions ADD 2 ADD 3 You can vote by Internet or
telephone! ADD 4 Available 24 hours a day, 7 days a week! ADD 5 Instead of mailing your proxy, you
may choose one of the two voting ADD 6 methods outlined below to vote your proxy. VALIDATION
DETAILS ARE LOCATED BELOW IN THE TITLE BAR. Proxies submitted by the Internet or telephone must be
received by 12:00 a.m., Eastern Time, on o, 2010. Vote by Internet Log on to the Internet
and go to www.investorvote.com Follow the steps outlined on the secured website. Vote by
telephone Call toll free 1-800-652-VOTE (8683) within the USA, US territories & Canada any time
on a touch tone telephone. There is NO CHARGE to you for the call. Follow the instructions
provided by the recorded message. Using a black ink pen, mark your votes with an X as shown in X
this example. Please do not write outside the designated areas. Special Meeting Proxy Card 1234
5678 9012 345 3 IF YOU HAVE NOT VOTED VIA THE INTERNET OR TELEPHONE, FOLD ALONG THE PERFORATION,
DETACH AND RETURN THE BOTTOM PORTION IN THE ENCLOSED ENVELOPE. 3 A Proposals The Board of
Directors recommends a vote FOR the approval of the Merger and FOR Proposal 2. + For Against
Abstain For Against Abstain 1. To approve the merger of Yukon Merger Sub, Inc. (Merger 2. To
adjourn the special meeting for the purpose of soliciting Sub), an indirect, wholly owned
subsidiary of Yara additional proxies if there are insufficient votes at the time of International
ASA (Yara), with and into Terra Industries Inc. the special meeting to approve the Merger.
(Terra), and the other transactions constituting a part of the merger (the Merger), pursuant to
the Agreement and Plan of Merger, dated as of February 12, 2010, by and among Yara, Merger Sub and
Terra. 3. To consider and vote, in accordance with their discretion, on any other business that may
properly come before the special meeting or any adjournment or postponement of the special meeting.
B Non-Voting Items Change of Address Please print your new address below. Comments Please print
your comments below. Meeting Attendance Mark the box to the right if you plan to attend the Special
Meeting. C Authorized Signatures This section must be completed for your vote to be counted.
Date and Sign Below NOTE: Please sign exactly as name appears hereon. Joint owners should each
sign. When signing as attorney, executor, administrator, trustee, or guardian, please also give
your full title. If a corporation, please sign in full corporate name by an authorized officer. If
a partnership, please sign in full partnership name by an authorized person. Date (mm/dd/yyyy)
Please print date below. Signature 1 Please keep signature within the box. Signature 2 Please
keep signature within the box. C 1234567890 J N T MR A SAMPLE (THIS AREA IS SET UP TO ACCOMMODATE
140 CHARACTERS) MR A SAMPLE AND MR A SAMPLE AND MR A SAMPLE AND MR A SAMPLE AND MR A SAMPLE AND
NNNNNNN1 U P X 0 2 4 7 8 6 1 MR A SAMPLE AND MR A SAMPLE AND MR A SAMPLE AND + <STOCK#>
015ESB |
. Special Meeting of Stockholders Admission Ticket Special Meeting of Stockholders of Terra
Industries Inc. Stockholders o, 2010, o Local Time [LOCATION] [ADDRESS] [CITY, STATE ZIP] Upon
arrival, please present this admission ticket and photo identification at the registration desk.
Terra News and Information Our goal is to provide interested parties with timely information in an
efficient, cost effective manner most convenient to you. We distribute our news releases and other
materials in email, fax and hard copy format. Let us know what materials youd like to receive and
how by: 3 Providing your contact information via our website at www.terraindustries.com or
3 Calling us at (800) 831-1002, ext. 8788. 3 IF YOU HAVE NOT VOTED VIA THE INTERNET OR
TELEPHONE, FOLD ALONG THE PERFORATION, DETACH AND RETURN THE BOTTOM PORTION IN THE ENCLOSED
ENVELOPE. 3 Proxy TERRA INDUSTRIES INC. TERRA INDUSTRIES INC. Proxy Solicited on Behalf of the
Board of Directors of Terra Industries Inc. (the Board of Directors) The undersigned hereby
acknowledges receipt of the Notice of Special Meeting of Stockholders and the Proxy Statement, each
dated o, 2010, and revoking all prior proxies, hereby appoints HENRY R. SLACK, MICHAEL L. BENNETT
and DANIEL D. GREENWELL, and each or any of them, as proxy holders with full power of substitution,
to vote the shares of Terra common stock which the undersigned is entitled to vote at the special
meeting of stockholders (including any adjournments or postponements thereof) of TERRA INDUSTRIES
INC. to be held on o, 2010, with all powers the undersigned would possess if personally present,
on Proposal 1, Proposal 2 and, in accordance with their discretion, on any other business that may
come before the special meeting (including any adjournments or postponements thereof.) You are
encouraged to specify your choices by marking the appropriate boxes, SEE REVERSE SIDE, but you need
not mark any boxes if you wish to vote in accordance with the Board of Directors recommendations.
The proxy holders cannot vote your shares of common stock unless you sign and return this card.
PLEASE VOTE, DATE AND SIGN THIS PROXY ON THE REVERSE SIDE AND RETURN PROMPTLY IN THE ENCLOSED
ENVELOPE. This proxy will be governed by, and construed in accordance with, the laws of the state
of Maryland and applicable federal securities laws. |