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Agreement and Plan of Merger

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Title:

Agreement and Plan of Merger

Entities:

Smart & Final Inc.

Date:

2007

Size:

Preview shows 51KB of 252KB total

Price:

$65

ID:

#2710767

► Plans ► Agreements ► Agreements & Plans of Merger
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EXECUTION

AGREEMENT AND PLAN OF MERGER

By and Among

SHARP HOLDINGS CORP.,

SHARP ACQUISITION CORP.,

and

SMART & FINAL INC.

Dated as of February 20, 2007

TABLE OF CONTENTS


		Page
	ARTICLE I DEFINITIONS

Section 1.1	Definitions	1

	ARTICLE II

	THE MERGER

Section 2.1	The Merger	1
Section 2.2	Closing	2
Section 2.3	Effective Time	2
Section 2.4	Certificate of Incorporation and Bylaws	2
Section 2.5	Board of Directors	2
Section 2.6	Officers	3
Section 2.7	Further Assurances	3

	ARTICLE III

	EFFECT OF THE MERGER ON CAPITAL STOCK; EXCHANGE OF CERTIFICATES

Section 3.1	Effect on Securities	3
Section 3.2	Exchange of Certificates	4
Section 3.3	Stock Options; SARs; Restricted Stock and RSUs	7
Section 3.4	Lost Certificates	8
Section 3.5	Dissenting Shares	8
Section 3.6	Transfers; No Further Ownership Rights	9

	ARTICLE IV

	REPRESENTATIONS AND WARRANTIES OF THE COMPANY

Section 4.1	Organization and Qualification; Subsidiaries	10
Section 4.2	Certificate of Incorporation and Bylaws	10
Section 4.3	Capitalization	10
Section 4.4	Authority	11
Section 4.5	No Conflict; Required Filings and Consents	12
Section 4.6	Permits and Licenses; Compliance with Laws	13
Section 4.7	Company SEC Documents	13
Section 4.8	Disclosure Controls and Procedures	14
Section 4.9	Absence of Certain Changes or Events	14


Section 4.10	No Undisclosed Liabilities	14
Section 4.11	Absence of Litigation	15
Section 4.12	Employee Benefit Plans	15
Section 4.13	Labor Matters	18
Section 4.14	Intellectual Property	18
Section 4.15	Taxes	19
Section 4.16	Assets	21
Section 4.17	Real Property	21
Section 4.18	Environmental Matters	22
Section 4.19	Material Contracts	23
Section 4.20	Opinion of Financial Advisors	23
Section 4.21	Anti-takeover Statutes	24
Section 4.22	Vote Required	24
Section 4.23	Brokers	24
Section 4.24	Suppliers and Vendors	24
Section 4.25	Insurance	24
Section 4.26	Affiliate Transactions	25
Section 4.27	Questionable Payments	25
Section 4.28	No Other Representations or Warranties	25

	ARTICLE V

	REPRESENTATIONS AND WARRANTIES OF BUYER AND ACQUISITION SUB

Section 5.1	Organization and Qualification; Subsidiaries	26
Section 5.2	Certificate of Incorporation, Bylaws, and Other Organizational Documents	26
Section 5.3	Authority Relative to Agreement	26
Section 5.4	No Conflict; Required Filings and Consents	27
Section 5.5	Absence of Litigation	27
Section 5.6	Available Funds	28
Section 5.7	Nature of Buyer	29
Section 5.8	Capitalization of Acquisition Sub	29
Section 5.9	Ownership of Shares	29
Section 5.10	Brokers	29
Section 5.11	Disclaimer of Other Representations and Warranties	29

	ARTICLE VI

	COVENANTS AND AGREEMENTS

Section 6.1	Conduct of Business by the Company Pending the Merger	30
Section 6.2	Proxy Statement	32
Section 6.3	Stockholders Meetings	34
Section 6.4	Appropriate Action; Consents; Filings	34
Section 6.5	Access to Information; Confidentiality	36
Section 6.6	No Solicitation of Competing Proposal	36
Section 6.7	Directors and Officers Indemnification and Insurance	38


Section 6.8	Notification of Certain Matters	39
Section 6.9	Public Announcements	40
Section 6.10	Employee Matters	40
Section 6.11	Conduct of Business by Buyer Pending the Merger	42
Section 6.12	Financing	42
Section 6.13	Tax Covenants	44
Section 6.14	Company SEC Documents	44
Section 6.15	Casino USA Financials	45

	ARTICLE VII

	CONDITIONS TO THE MERGER

Section 7.1	Conditions to the Obligations of Each Party	45
Section 7.2	Conditions to the Obligations of Buyer and Acquisition Sub	45
Section 7.3	Conditions to the Obligations of the Company	46

	ARTICLE VIII

	TERMINATION, AMENDMENT AND WAIVER

Section 8.1	Termination	47
Section 8.2	Termination Fees	49
Section 8.3	Amendment	50
Section 8.4	Waiver	50
Section 8.5	Expenses; Transfer Taxes	50

	ARTICLE IX

	GENERAL PROVISIONS

Section 9.1	Non-Survival of Representations, Warranties and Agreements	51
Section 9.2	Notices	51
Section 9.3	Interpretation; Certain Definitions	52
Section 9.4	Severability	52
Section 9.5	Assignment	53
Section 9.6	Entire Agreement; No Third-Party Beneficiaries	53
Section 9.7	Governing Law	53
Section 9.8	Consent to Jurisdiction; Enforcement	53
Section 9.9	Counterparts	54
Section 9.10	WAIVER OF JURY TRIAL	54

Exhibits:

Exhibit A Certificate of Incorporation and Bylaws of Surviving Corporation

iii

AGREEMENT AND PLAN OF MERGER, dated as of February 20, 2007 (this Agreement), by and among Sharp Holdings Corp., a Delaware corporation (the Buyer), Sharp Acquisition Corp., a Delaware corporation and a wholly owned Subsidiary of Buyer (Acquisition Sub), and Smart & Final Inc., a Delaware corporation (the Company).

W I T N E S S E T H

WHEREAS, in furtherance of the acquisition of the Company by Buyer, the respective Boards of Directors of the Company and Acquisition Sub each have unanimously approved and deemed advisable, and Buyer, as the sole stockholder of Acquisition Sub, will, immediately after the execution and delivery of this Agreement, adopt and approve this Agreement and the merger of the Acquisition Sub with and into the Company (the Merger), upon the terms and subject to the conditions and limitations set forth herein and in accordance with the General Corporation Law of the State of Delaware (Delaware Law); and

WHEREAS, as a condition to the Merger, Casino Guichard Perrachon, S.A., a socit anonyme organized under the laws of the French Republic (Groupe Casino), will sell to Buyer, immediately prior to the Effective Time (as hereinafter defined), all of the outstanding shares of capital stock of Casino USA, Inc., a California corporation and a subsidiary of Groupe Casino (Casino USA), that holds 16,687,860 shares of capital stock of the Company (the Stock Purchase), such transactions to be effected pursuant to the Stock Purchase Agreement, dated the date hereof, between Groupe Casino, Casino USA and Buyer (the Stock Purchase Agreement);

NOW, THEREFORE, in consideration of the foregoing and the mutual representations, warranties and covenants and subject to the conditions herein contained and intending to be legally bound hereby, the parties hereto hereby agree as follows:

ARTICLE I

DEFINITIONS

Section 1.1 Definitions. Defined terms used in this Agreement have the meanings ascribed to them by definition in this Agreement or in Appendix A.

ARTICLE II

THE MERGER

Section 2.1 The Merger. Upon the terms and subject to the conditions of this Agreement, and in accordance with Delaware

Law, at the Effective Time, Acquisition Sub shall be merged with and into the Company, whereupon the separate existence of Acquisition Sub shall cease, and the Company shall continue under the name Smart & Final Inc. as the surviving corporation (the Surviving Corporation) and shall continue to be governed by the laws of the State of Delaware.

Section 2.2 Closing. Subject to the satisfaction or, if permissible, waiver of the conditions set forth in ARTICLE VII hereof, the closing of the Merger (the Closing) will take place at 9:00 a.m., New York time, on a date to be specified by the parties hereto, but no later than the second Business Day after the satisfaction or waiver of the conditions set forth in Section 7.1, Section 7.2 and Section 7.3 hereof at the offices of Morgan, Lewis & Bockius LLP, 101 Park Avenue, New York, New York, unless another time, date or place is agreed to in writing by the parties hereto (such date being the Closing Date); provided, however, that if the Marketing Period has not ended at the time of the satisfaction or waiver of the conditions set forth in Article VII (excluding conditions that cannot be satisfied until the Closing but subject to the satisfaction or waiver of such conditions at the Closing), the Closing shall occur on the earlier to occur of (a) a date during the Marketing Period specified by Buyer on no less than three (3) Business Days notice to the Company and (b) the final day of the Marketing Period (subject in each case to the satisfaction or waiver (by the party entitled to grant such waiver) of all of the conditions set forth in Article VII for the Closing as of the date determined pursuant to this proviso).

Section 2.3 Effective Time.

(a) Concurrently with the Closing, the Company, as the surviving corporation, shall cause a certificate of merger (the Certificate of Merger) with respect to the Merger to be executed and filed with the Secretary of State of the State of Delaware (the Secretary of State) as provided under Delaware Law. The Merger shall become effective on the date and time at which the Certificate of Merger has been duly filed with the Secretary of State or at such later date and time as is agreed between the parties and specified in the Certificate of Merger, and such date and time is hereinafter referred to as the Effective Time.

(b) From and after the Effective Time, the Surviving Corporation shall possess all properties, rights, privileges, powers and franchises of the Company and Acquisition Sub, and all of the claims, obligations, liabilities, debts and duties of the Company and Acquisition Sub shall become the claims, obligations, liabilities, debts and duties of the Surviving Corporation.

Section 2.4 Certificate of Incorporation and Bylaws. The certificate of incorporation and bylaws of the Company shall be amended in the merger to read in their entirety as set forth in Exhibit A hereto, and as so amended shall be the certificate of incorporation and bylaws of the Surviving Corporation until thereafter amended in accordance with applicable Law or provisions of the certificate of incorporation and bylaws.

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