Agreement and Plan of Merger (2019)Full Document 

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AGREEMENT AND PLAN OF MERGER

by and among

Iris Parent LLC,

Iris Merger Sub 2019, Inc.

and

Innophos Holdings, Inc.

Dated as of October 20, 2019


TABLE OF CONTENTS

Page
ARTICLE I DEFINITIONS & INTERPRETATIONS 1
1.1

Certain Definitions

1
1.2

Additional Definitions

12
1.3

Certain Interpretations

14
ARTICLE II THE MERGER 16
2.1

The Merger

16
2.2

The Effective Time

16
2.3

The Closing

16
2.4

Effect of the Merger

16
2.5

Certificate of Incorporation and Bylaws

16
2.6

Directors and Officers

17
2.7

Effect on Capital Stock

17
2.8

Company Equity Awards

18
2.9

Further Actions

19
2.10

Exchange of Certificates

19
2.11

No Further Ownership Rights in Company Common Stock

21
2.12

Lost, Stolen or Destroyed Certificates

22
2.13

Withholding Rights

22
2.14

No Dividends or Distributions

22
2.15

Necessary Further Actions

22
ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE COMPANY 22
3.1

Organization; Good Standing

23
3.2

Corporate Power; Enforceability

23
3.3

Company Board Approval; Fairness Opinion; Anti-Takeover Laws

23
3.4

Requisite Stockholder Approval

24
3.5

Non-Contravention

24
3.6

Requisite Governmental Approvals

24
3.7

Company Capitalization

24
3.8

Subsidiaries

25
3.9

Company SEC Reports

26
3.10

Company Financial Statements; Internal Controls; Indebtedness

27
3.11

No Undisclosed Liabilities

27
3.12

Absence of Certain Changes

28
3.13

Material Contracts

28
3.14

Real Property

28
3.15

Environmental Matters

29
3.16

Intellectual Property

30
3.17

Tax Matters

32
3.18

Employee Plans

33
3.19

Labor Matters

35
3.20

Permits; Compliance with Laws

35
3.21

Legal Proceedings; Orders

36
3.22

Insurance

36
3.23

Related Person Transactions

36
3.24

Brokers

36
3.25

Trade Controls; Anti-Corruption Laws

36
3.26

Inventory

37
3.27

Regulatory Compliance.

37

i


ARTICLE IV REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB 38
4.1

Organization; Good Standing

38
4.2

Power; Enforceability

39
4.3

Non-Contravention

39
4.4

Requisite Governmental Approvals

39
4.5

Legal Proceedings; Orders

40
4.6

Ownership of Company Capital Stock

40
4.7

Brokers

40
4.8

Operations of Parent and Merger Sub

40
4.9

No Parent Vote or Approval Required

40
4.10

Guarantee

40
4.11

Financing

40
4.12

Stockholder and Management Arrangements

42
4.13

Solvency

42
4.14

Information Supplied

42
4.15

Exclusivity of Representations and Warranties

43
ARTICLE V INTERIM OPERATIONS OF THE COMPANY 43
5.1

Affirmative Obligations

43
5.2

Forbearance Covenants

44
5.3

No Solicitation

47
ARTICLE VI ADDITIONAL COVENANTS 51
6.1

Required Action and Forbearance; Efforts

51
6.2

Antitrust Filings

52
6.3

Proxy Statement and Other Required SEC Filings

54
6.4

Company Stockholder Meeting

55
6.5

Financing

56
6.6

Financing Cooperation

58
6.7

Anti-Takeover Laws

62
6.8

Access

62
6.9

Section 16(b) Exemption

62
6.10

Directors’ and Officers’ Exculpation, Indemnification and Insurance

62
6.11

Employee Matters

65
6.12

Obligations of Merger Sub

67
6.13

Notification of Certain Matters

67
6.14

Public Statements and Disclosure

67
6.15

Transaction Litigation

68
6.16

Stock Exchange Delisting; Deregistration

68
6.17

Additional Agreements

68
6.18

Parent Vote

69
6.19

No Control of the Other Party’s Business

69
6.20

No Employment Discussions

69
6.21

Discharge of Indebtedness

69
6.22

Certain Tax Matters

69
ARTICLE VII CONDITIONS TO THE MERGER 70
7.1

Conditions to Each Party’s Obligations to Effect the Merger

70
7.2

Conditions to the Obligations of Parent and Merger Sub

70
7.3

Conditions to the Company’s Obligations to Effect the Merger

71
7.4

Frustration of Closing Conditions

71
ARTICLE VIII TERMINATION, AMENDMENT AND WAIVER 72
8.1

Termination

72
8.2

Manner and Notice of Termination; Effect of Termination

73

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8.3

Fees and Expenses

74
8.4

Amendment

78
8.5

Extension; Waiver

79
8.6

No Liability of Financing Sources

79
ARTICLE IX GENERAL PROVISIONS 79
9.1

Survival of Representations, Warranties and Covenants

79
9.2

Notices

79
9.3

Assignment

80
9.4

Confidentiality

80
9.5

Entire Agreement

81
9.6

Third Party Beneficiaries

81
9.7

Severability

81
9.8

Remedies

81
9.9

Governing Law

82
9.10

Consent to Jurisdiction

82
9.11

WAIVER OF JURY TRIAL

83
9.12

Company Disclosure Letter References

84
9.13

Counterparts

84
9.14

No Limitation

84
9.15

Performance Guarantee

84

iii


AGREEMENT AND PLAN OF MERGER

THIS AGREEMENT AND PLAN OF MERGER (this "Agreement") is made and entered into as of October 20, 2019, by and among Iris Parent LLC, a Delaware limited liability company ("Parent"), Iris Merger Sub 2019, Inc., a Delaware corporation and a wholly owned subsidiary of Parent ("Merger Sub"), and Innophos Holdings, Inc., a Delaware corporation (the "Company"). Each of Parent, Merger Sub and the Company are sometimes referred to as a "Party." All capitalized terms that are used in this Agreement have the respective meanings given to them in Article I.

RECITALS

A. The Company Board has unanimously (i) determined that it is in the best interests of the Company and its stockholders to enter into this Agreement providing for the merger of Merger Sub with and into the Company (the "Merger"), and declared this Agreement advisable, in accordance with the General Corporation Law of the State of Delaware (the "DGCL") upon the terms and subject to the conditions set forth herein; (ii) approved the execution and delivery of this Agreement by the Company, the performance by the Company of its covenants and other obligations hereunder, and the consummation of the Merger upon the terms and subject to the conditions set forth herein; and (iii) resolved to recommend that the stockholders of the Company adopt this Agreement and approve the Merger in accordance with the DGCL;

B. Each of the board of managers of Parent and the board of directors of Merger Sub have (i) declared it advisable to enter into this Agreement; and (ii) approved the execution and delivery of this Agreement, the performance of their respective covenants and other obligations hereunder, and the consummation of the Merger upon the terms and subject to the conditions set forth herein;

C. Concurrently with the execution of this Agreement, and as a condition and inducement to the Company’s willingness to enter into this Agreement, Parent and Merger Sub have delivered a limited guarantee (the "Guarantee") from the guarantor specified therein (the "Guarantor"), in favor of the Company and pursuant to which, subject to the terms and conditions contained therein, the Guarantor is guaranteeing certain obligations of Parent and Merger Sub in connection with this Agreement; and

D. Parent, Merger Sub and the Company desire to (i) make certain representations, warranties, covenants and agreements in connection with this Agreement and the Merger; and (ii) prescribe certain conditions with respect to the consummation of the Merger.

AGREEMENT

NOW, THEREFORE, in consideration of the foregoing premises and the representations, warranties, covenants and agreements set forth herein, as well as other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged and accepted, and intending to be legally bound hereby, Parent, Merger Sub and the Company agree as follows:

ARTICLE I

DEFINITIONS & INTERPRETATIONS

1.1 Certain Definitions. For all purposes of and pursuant to this Agreement, the following capitalized terms have the following respective meanings:

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