Full Doc
 | 2003 |
Prime Group Realty Trust Reports First Quarter 2003 Earnings
Prime Group Realty Trust Reports First Quarter 2003 Earnings (41K)
Doc #266189: This document is immediately available for purchase, but does not have a preview available for viewing.
{DOCUMENT}
{TYPE}EX-99
{SEQUENCE}3
{FILENAME}a4396353_ex991.txt
{DESCRIPTION}PRIME GROUP REALTY EXHIBIT 99.1
{TEXT}
Prime Group Realty Trust Reports First Quarter 2003 Earnings
CHICAGO--May 13, 2003--Prime Group Realty Trust (NYSE:PGE):
First Quarter 2003 Highlights
GAAP earnings per diluted share for the first quarter of 2003 were
$0.80, an increase of $2.16 from a loss of $1.36 per diluted share for
the first quarter of 2002. The first quarter of 2003 includes lease
termination fee income of $29.7 million, an increase of $29.0 million
or $1.85 per diluted share.
Funds from Operations ("FFO") for the first quarter of 2003
totaled $1.21 per diluted share, as compared to $0.24 per diluted
share for the first quarter of 2002.
The Company realized a "same-store" increase in GAAP operating
income of 190.5% and a "same-store" decrease in net operating income
of 11.0% for the 9.4 million square feet of office and industrial
properties that were owned during both the 2002 and 2003 first
quarters.
During the quarter, the Company signed 11 new office leases
totaling 86,171 square feet, expanded three office leases totaling
6,634 square feet, renewed 18 office leases totaling 100,022 square
feet and renewed one industrial lease for 20,074 square feet.
Subsequent to quarter end, the Company executed 137,296 square feet of
new, expansion and renewal office leases.
The Company negotiated and received $33.5 million of lease
termination fees from Arthur Andersen, LLP in January and February
2003 relating to its space at 33 West Monroe Street and One IBM Plaza.
After deducting outstanding receivables (including deferred rent
receivable), the Company recognized $29.7 million of lease termination
fee income in the first quarter of 2003.
Ray H. D'Ardenne and Daniel A. Lupiani were elected to the
Company's Board as independent Trustees.
The Company executed several capital transactions during the
quarter including:
-- A $195.0 million senior loan refinancing the first mortgage
and mezzanine loans secured by One IBM Plaza;
-- A $75.0 million mezzanine loan refinancing the mezzanine loan
on Bank One Corporate Center;
-- The acquisition of its former partner's interest in Bank One
Corporate Center;
-- The repayment of $11.5 million of the Security Capital
Preferred Growth indebtedness; and
-- An extension of the maturity date of two loans totaling $32.5
million until November 15, 2004.
The strategic alternatives process continues as Merrill Lynch and
Wachovia Securities evaluate various options.
Prime Group Realty Trust (NYSE:PGE) (the "Company") announced
earnings today for the quarter ended March 31, 2003. GAAP net income
available to common shareholders was $12.6 million. GAAP earnings per
diluted share for the first quarter of 2003 were $0.80, as compared to
the loss of $1.36 per diluted share reported in the first quarter of
2002. The increase of $2.16 per diluted share from the first quarter
of 2002 resulted primarily from an increase in lease termination fee
income of $29.0 million or $1.85 per diluted share, a decrease in the
provision for impairment of $5.2 million or $0.33 per diluted share,
and an increase in discontinued operations of $19.4 million or $1.23
per diluted share (which includes a 2002 provision for impairment of
$33.6 million). These items were partially offset by an increase in
interest expense and amortization of deferred financing costs of $7.5
million or $0.48 per diluted share, and an increase in minority
interests of $11.9 million or $0.76 per diluted share. Lease
termination fee income for the first quarter of 2003 included fees
associated with the leases terminated with Arthur Andersen LLP
("Andersen") of $29.7 million or $1.89 per diluted share.
FFO for the first quarter of 2003 totaled $1.21 per diluted share,
as compared to $0.24 per diluted share for the first quarter of 2002.
Funds from operations for the first quarter of 2003, excluding
non-operating charges and discontinued operations, ("Operating FFO")
totaled $1.15 per diluted share, as compared to the $0.29 per diluted
share for the first quarter of 2002. FFO and Operating FFO increased
primarily as a result of an increase in lease termination fee income
to $1.11 per diluted share from $0.02 per diluted share and a decrease
in income allocated to the Series A preferred shareholder of $0.03 per
diluted share (as the shares have been repurchased), which was
partially offset by an increase in interest expense (see discussion
below) and amortization of deferred financing costs of $0.28 per
diluted share. In addition, FFO increased $0.19 per diluted share due
to a provision for impairment in the first quarter of 2002 and
decreased $2.8 million or $0.10 per diluted share due to a decrease in
the results of discontinued operations from the first quarter of 2002
to the first quarter of 2003.
For the purposes of computing FFO and Operating FFO per diluted
share, the Company included outstanding common shares and common units
in its operating partnership in arriving at weighted average shares of
beneficial interest. Funds from Operations and Operating Funds from
Operations are non-GAAP financial measures. The Company believes that
net income (loss) is the most directly comparable GAAP financial
measure to both Funds from Operations and Operating FFO and has
included a reconciliation of these measures to GAAP net income (loss)
with this press release.
As Bank One Corporate Center ("BOCC") is not fully-stabilized, its
positive impact upon earnings will not be fully realized until
stabilization occurs. The Company estimates that annual GAAP net
income that will be generated by BOCC at stabilization will be $0.8
million. This estimate assumes lease-up of the property to 96.7%
occupancy at an average projected gross rental rate of $41.84 per
square foot. Using the same assumptions, and excluding the effects of
annual depreciation and amortization of $16.3 million, and a minority
interest effect of $0.5 million, the Company estimates Funds from
Operations from this property of $17.6 million at stabilization.
On a related note, the increase in interest expense for the first
quarter 2003 was principally due to a decrease in capitalized interest
from $6.6 million for the first quarter of 2002 to $2.0 million for
the first quarter of 2003; an increase of $2.1 million due to interest
on the Company's debt obligation with Security Capital Preferred
Growth ("SCPG"); and fees associated with the retirement of refinanced
debt of $1.0 million. These increases were partially offset by a
decrease in LIBOR rates for the Company's variable rate indebtedness.
In addition, amortization of deferred financing fees increased by $0.9
million principally as a result of reduced capitalization of these
costs. As the Company has placed BOCC in service, it now only
capitalizes interest and amortization of deferred financing costs on
those qualified expenditures associated with the percentage of the
property which is vacant.
Revenue for the first quarter was $73.3 million, a 75.4% increase
over first quarter 2002 revenue of $41.8 million. A large portion of
the revenue increase for the quarter was due to an increase in lease
termination fee income relating to Arthur Andersen LLP. Exclusive of
lease termination fee income in both periods, revenue for the first
quarter was $43.6 million, a 6.1% increase over first quarter 2002
revenue of $41.1 million.
"Same-store" operating income represents GAAP operating income
from properties owned by the Company for the entire quarter for both
of the quarters being compared. The Company realized an increase in
same-store operating income of $25.4 million or 190.5%. Same-store
operating income increased by 212.1% for the office portfolio and
decreased by 32.1% for the industrial portfolio. The increase in
same-store operating income was due to lease termination fee income as
266189
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Prime Group
As referenced in this Prime Group Realty Trust Reports First Quarter 2003 Earnings:
Prime Group Realty Trust – {DOCUMENT}
{TYPE}EX-99
{SEQUENCE}3
{FILENAME}a4396353_ex991.txt
{DESCRIPTION}PRIME GROUP REALTY EXHIBIT 99.1
{TEXT}
Prime Group Realty Trust Reports First Quarter 2003 Earnings
CHICAGO--May 13, 2003--Prime Group Realty Trust (NYSE:PGE):
First Quarter 2003 Highlights
GAAP earnings per diluted
_____________
-Prime Group Realty Trust – a4396353_ex991.txt
{DESCRIPTION}PRIME GROUP REALTY EXHIBIT 99.1
{TEXT}
Prime Group Realty Trust Reports First Quarter 2003 Earnings
CHICAGO--May 13, 2003--Prime Group Realty Trust (NYSE:PGE):
First Quarter 2003 Highlights
GAAP earnings per diluted share for the first quarter of 2003 were
$0.80, an increase
_____________
Prime Group Realty Trust – loans totaling $32.5
million until November 15, 2004.
The strategic alternatives process continues as Merrill Lynch and
Wachovia Securities evaluate various options.
Prime Group Realty Trust (NYSE:PGE) (the "Company") announced
earnings today for the quarter ended March 31, 2003. GAAP net income
available to common shareholders was $
_____________
Prime Group Realty Trust – option to extend the maturity date of the SCPG obligation, management
intends to seek waivers or modifications from the lenders.
Conference Call Information
Prime Group Realty Trust has scheduled a conference call for
Wednesday, May 14, 2003 at 12:00 p.m. (EST) to discuss Company results
for the first
_____________
Prime Group Realty Trust – Investor Information," and as part of a
current report on Form 8-K furnished to the Securities and Exchange
Commission.
About the Company
Prime Group Realty Trust is a fully-integrated, self-administered,
and self-managed real estate investment trust (REIT) that owns,
manages, leases, develops, and redevelops office and
_____________
dt 174367
;
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 Fleet National
As referenced in this Prime Group Realty Trust Reports First Quarter 2003 Earnings:
Fleet National Bank – the
Company's upcoming annual meeting.
Capital Markets Update
On February 19, 2003, the Company extended the maturity dates of
two loans from Fleet National Bank having a combined principal amount
of $32.5 million. The two loans consist of a (i) $20.0 million
mezzanine loan secured by
_____________
dt 172433
;
 Holland & Knight
As referenced in this Prime Group Realty Trust Reports First Quarter 2003 Earnings:
Holland & Knight – million rentable square feet. The Bank One, N.A.
lease for 603,767 net rentable square feet commenced on January 1,
2003, the Holland & Knight lease for 121,728 net rentable square feet
commenced on February 1, 2003, and the Citadel Investment Group,
L.L.C. lease for
_____________
dt 163746
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| Full Doc
| 2003 |
Visteon Corporation Reports First Quarter Results
Visteon Corporation Reports First Quarter Results (59K)
Doc #271577: This document is immediately available for purchase, but does not have a preview available for viewing.
{DOCUMENT}
{TYPE}EX-99.1
{SEQUENCE}3
{FILENAME}k76226exv99w1.txt
{DESCRIPTION}PRESS RELEASE
{TEXT}
{PAGE}
EXHIBIT 99.1
Contact(s): Media Inquiries: Visteon Corporation
Greg Gardner Public Affairs
313-755-0927 17000 Rotunda Drive
ggardne9@visteon.com Dearborn, MI 48120
Facsimile: 313-755-7983
Investor Inquiries:
Derek Fiebig
313-755-3699
dfiebig@visteon.com
[VISTEON LOGO]
NEWS RELEASE
VISTEON CORPORATION REPORTS FIRST QUARTER RESULTS
DEARBORN, Mich., April 17, 2003 -- Visteon Corporation (NYSE: VC) today
announced a net loss of $15 million for the First Quarter 2003 or $0.12 per
share. This compares with a net loss of $338 million or $2.63 per share in the
First Quarter 2002. The company recorded special charges in both periods.
During the First Quarter 2003, Visteon incurred special charges of $31 million
before taxes associated primarily with restructuring actions at its North
American manufacturing plants and the continued implementation of the European
Plan for Growth. In total, these special charges reduced net income by $20
million or $0.16 per share during the quarter.
During the First Quarter 2002, Visteon implemented a number of restructuring
actions and incurred pre-tax special charges of $116 million ($74 million after
tax). In addition, the company recorded a non-cash write-off for the value of
goodwill reflected in its financial statements of $265 million after tax
associated with adoption of Statement of Financial Accounting Standards No. 142.
Combined, these special items reduced net income by $339 million or $2.64 per
share.
"During the First Quarter we continued to make progress towards improving
Visteon's competitive position," said Peter J. Pestillo, Visteon Chairman and
Chief Executive Officer. "We announced a cooperative agreement to exit the
seating business and continued to make progress on implementation of the
European Plan for Growth, both of which are expected to generate substantial
savings going forward. Our sales diversification also continues to help our
results as non-Ford sales remained above 20% of our total sales."
1.
{PAGE}
SALES AND NON-FORD BUSINESS WINS
First Quarter 2003 sales totaled $4.7 billion, compared with $4.5 billion in the
First Quarter 2002. The increase compared with a year ago reflects primarily
growth in non-Ford revenue and the favorable impact of exchange rates. Non-Ford
sales during the First Quarter 2003 totaled $983 million, an increase of $160
million or 19% when compared to First Quarter 2002, and represented 21% of total
sales.
Visteon won nearly $200 million of non-Ford business during the quarter and
remains committed to winning $1 billion of net, new business during 2003. Nearly
half of the First Quarter wins were for business outside of North America.
Recent announceable new business includes:
- Front-end module and climate components for a 2006 Hyundai mid-size
sedan;
- Rear seat entertainment for the Chevy Malibu;
- Cockpit and instrument cluster on the Ford Ikon.
EXITING OF SEATING BUSINESS
In March 2003, Visteon announced that it will exit its unprofitable and non-core
seating business through a cooperative agreement with Ford Motor Company. The
agreement represents the joint efforts of Visteon, Ford and the United Auto
Workers. Johnson Controls, Inc. will supply Ford seats currently produced at
Visteon's Chesterfield, Michigan plant and presently has personnel on-site
working with Visteon to ensure a smooth transition of the business. Visteon
expects to take a pre-tax charge of about $225 million in the Second Quarter
associated with this action.
CASH AND LIQUIDITY
Visteon ended the quarter with $947 million in cash and marketable securities,
down from 2002 year-end levels, reflecting primarily the normal seasonal usage
of cash in the first quarter. Debt remained essentially unchanged at $1.6
billion. Debt to capital remains solid at 36%.
Visteon Corporation is a leading full-service supplier that delivers
consumer-driven technology solutions to automotive manufacturers worldwide and
through multiple channels within the global automotive aftermarket. Visteon has
about 77,000 employees and a global delivery system of more than 180 technical,
manufacturing, sales, and service facilities located in 25 countries.
This press release contains forward-looking statements made pursuant to the
Private Securities Litigation Reform Act of 1995. Words such as "anticipate,"
"estimate," "expect," and "projects" signify forward-looking statements.
Forward-looking statements are not guarantees of future results and conditions
but rather are subject to various risks and uncertainties. Some of these risks
and uncertainties are identified in our periodic filings with the Securities and
Exchange Commission. Should any risks or uncertainties develop into actual
events, these developments could have material adverse effects on Visteon's
business, financial condition, and results of operations. We assume no
obligation to update these forward-looking statements.
###
Visteon news releases, photographs and product specification details
are available at www.visteon.com
2.
{PAGE}
VISTEON CORPORATION AND SUBSIDIARIES
SUPPLEMENTAL DATA
(UNAUDITED)
(IN MILLIONS, EXCEPT PER SHARE AMOUNTS, PERCENTAGES AND AS NOTED)
{TABLE}
{CAPTION}
FIRST QUARTER
-------------------------------------
2003
OVER/(UNDER)
2003 2002
---- ------------
{S} {C} {C}
SALES
Ford and affiliates $ 3,721 $ 75
Other customers 983 160
------------- ------------
Total sales $ 4,704 $ 235
============= ============
271577
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Autoliv
As referenced in this Visteon Corporation Reports First Quarter Results:
Autoliv, Inc – quarter of 2002 as discussed
further in Note 10.
Effective April 1, 2002, Visteon completed the sale of its restraint
electronics business to Autoliv, Inc . for $25 million, resulting in a pre-tax
charge in the first quarter of 2002 of $26 million ($16 million after-tax)
_____________
dt 222856
;
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Visteon
As referenced in this Visteon Corporation Reports First Quarter Results:
Visteon Corp – {DOCUMENT}
{TYPE}EX-99.1
{SEQUENCE}3
{FILENAME}k76226exv99w1.txt
{DESCRIPTION}PRESS RELEASE
{TEXT}
{PAGE}
EXHIBIT 99.1
Contact(s): Media Inquiries: Visteon Corp oration
Greg Gardner Public Affairs
313-755-0927 17000 Rotunda Drive
ggardne9@visteon.com Dearborn, MI 48120
Facsimile: 313-755-7983
Investor Inquiries:
_____________
VISTEON CORP – visteon.com Dearborn, MI 48120
Facsimile: 313-755-7983
Investor Inquiries:
Derek Fiebig
313-755-3699
dfiebig@visteon.com
[VISTEON LOGO]
NEWS RELEASE
VISTEON CORP ORATION REPORTS FIRST QUARTER RESULTS
DEARBORN, Mich., April 17, 2003 -- Visteon Corporation (NYSE: VC) today
announced a net loss of $15 million for
_____________
Visteon Corp – Derek Fiebig
313-755-3699
dfiebig@visteon.com
[VISTEON LOGO]
NEWS RELEASE
VISTEON CORPORATION REPORTS FIRST QUARTER RESULTS
DEARBORN, Mich., April 17, 2003 -- Visteon Corp oration (NYSE: VC) today
announced a net loss of $15 million for the First Quarter 2003 or $0.12 per
share. This compares
_____________
Visteon Corp – seasonal usage
of cash in the first quarter. Debt remained essentially unchanged at $1.6
billion. Debt to capital remains solid at 36%.
Visteon Corp oration is a leading full-service supplier that delivers
consumer-driven technology solutions to automotive manufacturers worldwide and
through multiple channels within the
_____________
VISTEON CORP – obligation to update these forward-looking statements.
###
Visteon news releases, photographs and product specification details
are available at www.visteon.com
2.
{PAGE}
VISTEON CORP ORATION AND SUBSIDIARIES
SUPPLEMENTAL DATA
(UNAUDITED)
(IN MILLIONS, EXCEPT PER SHARE AMOUNTS, PERCENTAGES AND AS NOTED)
{TABLE}
{CAPTION}
FIRST QUARTER
-------------------------------------
2003
OVER/(UNDER)
_____________
dt 178533
;
UAW
As referenced in this Visteon Corporation Reports First Quarter Results:
United Auto
Workers – non-core
seating business through a cooperative agreement with Ford Motor Company. The
agreement represents the joint efforts of Visteon, Ford and the United Auto
Workers . Johnson Controls, Inc. will supply Ford seats currently produced at
Visteon's Chesterfield, Michigan plant and presently has personnel on-site
working
_____________
UAW – Chesterfield, Michigan and transfer seat production to another
supplier's facilities. As contemplated in the summary agreement, about 1,400
Visteon-assigned Ford-UAW employees working at the Chesterfield, Michigan
facility would transfer to Ford. In addition, Visteon would be responsible to
reimburse Ford for the
_____________
UAW – estimate are the actual costs incurred related to the relocation,
re-deployment and/or employment termination of the 1,400 Visteon-assigned
Ford-UAW employees, offset by to be defined savings achieved by Ford resulting
from resourcing production. A binding agreement is expected to be finalized
_____________
dt 162718
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| Full Doc
| 2003 |
Lynx Announces Its Financial Results for Third Quarter 2003 Highlighted by Revenue Growth and Positive Operating Results
Lynx Announces Its Financial Results for Third Quarter 2003 Highlighted by Revenue Growth and Positive Operating Results (16K)
Doc #279291: This document is immediately available for purchase, but does not have a preview available for viewing.
LYNX ANNOUNCES ITS FINANCIAL RESULTS FOR THIRD QUARTER 2003
? HIGHLIGHTED BY REVENUE GROWTH AND POSITIVE OPERATING RESULTS?
HAYWARD, CA ? November 13, 2003 ? Lynx Therapeutics, Inc. (Nasdaq: LYNX) today reported operating income of $2.4 million for the quarter ended September 30, 2003, as compared to an operating loss of $2.1 million for the same period in 2002. Lynx?s net income was $1.8 million, or $0.38 per diluted share, for the quarter ended September 30, 2003, as compared to a net loss of $3.3 million, or $(0.80) per share, for the 2002 period.
?Our . . .
279291
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Lynx
As referenced in this Lynx Announces Its Financial Results for Third Quarter 2003 Highlighted by Revenue Growth and Positive Operating Results:
Lynx Therapeutics, – 1
LYNX ANNOUNCES ITS FINANCIAL RESULTS FOR THIRD QUARTER 2003
HIGHLIGHTED BY REVENUE GROWTH AND POSITIVE OPERATING RESULTS
HAYWARD, CA November 13, 2003 Lynx Therapeutics, Inc. (Nasdaq: LYNX) today reported operating income of $2.4 million for the quarter ended September 30, 2003, as compared to an
_____________
Lynx Therapeutics – the third quarter of 2003 related primarily to a loss recorded on the sale of certain fixed assets no longer used in its Lynx Therapeutics GmbH operations in Germany, and $1.1 million in the comparable 2002 period related primarily to Lynxs pro-rata share of the net
_____________
Lynx Therapeutics – expense amount for the 2003 period related primarily to the loss recorded on the sale of certain fixed assets no longer used in Lynx Therapeutics GmbH operations in Germany. Other income in the nine-month period of 2002 was related primarily to the gain on the sale of
_____________
dt 211377
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| Full Doc
| 2003 |
Lynx Announces Its Financial Results for Second Quarter 2003 Highlighted by Revenue Growth and Improved Operating Results
Lynx Announces Its Financial Results for Second Quarter 2003 Highlighted by Revenue Growth and Improved Operating Results (16K)
Doc #279299: This document is immediately available for purchase, but does not have a preview available for viewing.
LYNX ANNOUNCES ITS FINANCIAL RESULTS FOR SECOND QUARTER 2003
? HIGHLIGHTED BY REVENUE GROWTH AND IMPROVED OPERATING RESULTS?
HAYWARD, CA ? August 13, 2003 ? Lynx Therapeutics, Inc. (Nasdaq: LYNX) today reported an operating loss of $1.9 million for the quarter ended June 30, 2003, as compared to an operating loss of $4.9 million for the same period in 2002. Lynx?s operating loss was $3.1 million in the first quarter of 2003.
Lynx recorded non-cash, non-operating expense of $0.9 million in the second quarter of 2003 and $0.7 . . .
279299
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Lynx
As referenced in this Lynx Announces Its Financial Results for Second Quarter 2003 Highlighted by Revenue Growth and Improved Operating Results:
Lynx Therapeutics, – 1
LYNX ANNOUNCES ITS FINANCIAL RESULTS FOR SECOND QUARTER 2003
HIGHLIGHTED BY REVENUE GROWTH AND IMPROVED OPERATING RESULTS
HAYWARD, CA August 13, 2003 Lynx Therapeutics, Inc. (Nasdaq: LYNX) today reported an operating loss of $1.9 million for the quarter ended June 30, 2003, as compared to
_____________
dt 211385
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| Full Doc
| 2004 |
Lynx Announces 2003 Fourth Quarter and Full Year Financial Results
Lynx Announces 2003 Fourth Quarter and Full Year Financial Results (18K)
Doc #279278: This document is immediately available for purchase, but does not have a preview available for viewing.
{DOCUMENT}
{TYPE}EX-99.1
{SEQUENCE}3
{FILENAME}f97785exv99w1.txt
{DESCRIPTION}EXHIBIT 99.1
{TEXT}
{PAGE}
Exhibit 99.1
[LYNX LOGO]
COMPANY CONTACT: INVESTOR CONTACT:
Kevin P. Corcoran Lippert/Heilshorn & Associates
Chief Executive Officer Jody Cain
510/670-9300 310/691-7100
LYNX ANNOUNCES 2003 FOURTH QUARTER AND FULL YEAR FINANCIAL RESULTS
CONFERENCE CALL TO BEGIN 2:00 P.M. PST MARCH 31 TO DISCUSS FINANCIAL RESULTS,
RECENT TECHNOLOGY ACQUISITION AND NIH-ASSOCIATED SERVICES AGREEMENT
HAYWARD, CALIF. (MARCH 31, 2004) - Lynx Therapeutics, Inc. (Nasdaq: LYNX) today
announced financial results for the three and 12 months ended December 31, 2003.
"Reflecting our commitment to cost control measures, including headcount
reductions, we reported an $8.2 million improvement in operating results in
2003, compared with 2002," said Kevin P. Corcoran, president and chief executive
officer of Lynx Therapeutics. "In 2003, we signed new service agreements with
pharmaceutical firms, including Pfizer and Millennium Pharmaceuticals, and with
organizations including the Institute for Systems Biology, in addition to
extending our important relationship with DuPont. In all, we added 10 new
customer agreements last year while tightly managing our costs.
"This year is off to a very encouraging start," he added. "Last week we
announced the joint acquisition of a DNA technology asset that we expect will
strengthen our competitive position by allowing us to streamline our
high-throughput process and provide our customers with the in-house capability
to generate high-quality data. This followed our February announcement of a
multi-million dollar services agreement on behalf of the National Institutes of
Health (NIH) to jointly build a mouse transcriptome database that should
dramatically demonstrate the value of Massively Parallel Signature Sequencing,
or MPSS(TM), to the academic and commercial communities. Additionally, we have
taken measures to strengthen our cash position and further reduce expenses."
FOURTH QUARTER FINANCIAL RESULTS
Total revenues for the fourth quarter of 2003 were $2.0 million, compared with
$4.7 million for the comparable quarter in 2002. The decrease in total revenues
was due primarily to lower technology access and service fees, and a decrease in
collaborative research and other revenues. The Company's revenues have
historically fluctuated from quarter-to-quarter and year-to-year, and may
continue to fluctuate in future periods, due primarily to the nature of its
MPSS(TM) service fees. These fees are impacted principally by the timing and
number of biological samples received from customers and collaborators, and the
timing of Lynx's performance of related analyses on these samples.
Total operating costs and expenses for the 2003 fourth quarter were $4.9
million, down $2.6 million from $7.5 million for the 2002 fourth quarter.
Research and development expenses for the fourth quarter 2003 were $2.4 million,
down $1.8 million from $4.2 million in the prior-year quarter. General and
administrative expenses were essentially flat at $1.8 million.
For the 2003 fourth quarter, the Company reported a loss from operations of $3.0
million, compared with a loss from operations of $2.8 million reported in the
2002 fourth quarter. The net loss for the fourth quarter of 2003 was $3.5
million, or $0.65 per share, compared with a net loss of $3.0 million, or $0.69
per share, for the 2002 fourth quarter. The per-share amounts for both periods
reflect the effect of a 1-for-7 reverse split of Lynx's common stock completed
on January 15, 2003.
FULL YEAR 2003 FINANCIAL RESULTS
Total revenues for the year ended December 31, 2003 were $18.1 million, up 4%
from total revenues of $17.4 million for 2002. Technology access and service
fees revenues of $16.6 million increased by $2.8
{PAGE}
million from $13.8 million reported in the prior year. Collaborative research
and other revenues were $1.5 million in 2003, compared with $3.6 million in
2002.
For the year ended December 31, 2003, the Company reported an operating loss of
$5.5 million, down from $13.7 million for the year ended December 31, 2002.
Total operating costs and expenses were $23.6 million in 2003, down from $31.1
million in 2002. The net loss for 2003 was $8.6 million, or $1.76 per share,
compared with a net loss of $15.5 million, or $4.50 per share, for 2002.
As of December 31, 2003, Lynx had cash and cash equivalents of $5.6 million,
including restricted cash of $0.7 million. Since the close of 2003, the Company
has privately raised $4.0 million in additional equity financing.
COLLABORATIONS AND AGREEMENTS
Lynx is aggressively pursuing a variety of opportunities directed toward
establishing MPSS(TM) as the technology of choice for comprehensive gene
expression, genome structure, and epigenomics analysis based on its ability to
uniquely capture and sequence RNA and DNA fragments.
In February 2004 Lynx announced a new multi-million dollar services agreement
with a consortium of Institutes of the National Institutes of Health (NIH) to
characterize gene expression patterns in a large number of tissues from the
common laboratory mouse using Lynx's MPSS(TM) technology. The purpose of this
project is to build a reference transcriptome database to assist the biomedical
research community's efforts in determining the function of genes associated
with disease. This database will also provide an essential baseline dataset for
researchers in drug and diagnostic marker discovery and development.
In 2003 Lynx added the following customers to its genomics business:
- PFIZER: Studying cell samples from normal and disease-affected
patients in an effort to provide information on specific genes
involved in disease progression.
- MILLENNIUM PHARMACEUTICALS: Working to identify cell-specific gene
markers for a certain blood cell type, and to evaluate gene
expression patterns from RNA in peripheral blood monocytes in
response to treatments with specific compounds.
- IBM AND INSTITUTE FOR SYSTEMS BIOLOGY: Investigating samples from
human immune system cells to study how such cells respond to
infectious diseases.
- INSTITUTE FOR SYSTEMS BIOLOGY: Analyzing prostate cancer samples to
develop a systems biology approach to understanding cancer.
- NATIONAL INSTITUTE ON AGING: Studying human stem cell samples to
understand the underlying principles of normal as well as abnormal
cell differentiation, which may lead to the development of novel
approaches for prevention and treatment of many diseases including
Alzheimer's and Parkinson's, spinal cord injuries, stroke and heart
disease.
- GENOME INSTITUTE OF SINGAPORE: Characterizing transcripts in human,
mouse and fish tissue samples to provide a more complete picture of
the activity of all genes that are critically important in normal
development and in disease.
- UNIVERSITY OF DELAWARE: Analyzing a comprehensive set of rice
samples to define the patterns and levels of gene expression in the
rice genome to advance researchers' understanding of rice molecular
biology and genetic factors controlling important agronomical
traits.
- NORTHEASTERN UNIVERSITY: Investigating Antarctic ice fish samples
279278
| |
Lynx
As referenced in this Lynx Announces 2003 Fourth Quarter and Full Year Financial Results:
Lynx Therapeutics, – 00 P.M. PST MARCH 31 TO DISCUSS FINANCIAL RESULTS,
RECENT TECHNOLOGY ACQUISITION AND NIH-ASSOCIATED SERVICES AGREEMENT
HAYWARD, CALIF. (MARCH 31, 2004) - Lynx Therapeutics, Inc. (Nasdaq: LYNX) today
announced financial results for the three and 12 months ended December 31, 2003.
"Reflecting our commitment to cost
_____________
Lynx Therapeutics. – an $8.2 million improvement in operating results in
2003, compared with 2002," said Kevin P. Corcoran, president and chief executive
officer of Lynx Therapeutics. "In 2003, we signed new service agreements with
pharmaceutical firms, including Pfizer and Millennium Pharmaceuticals, and with
organizations including the Institute for
_____________
Lynx Therapeutics
– may
do so by visiting www.lynxgen.com. A replay will be available on the Company's
Web site for 14 days.
About Lynx Therapeutics
Lynx Therapeutics is a leader in the development and application of novel
genomics analysis solutions. The Company's MPSS(TM) instruments analyze
_____________
Lynx Therapeutics – so by visiting www.lynxgen.com. A replay will be available on the Company's
Web site for 14 days.
About Lynx Therapeutics
Lynx Therapeutics is a leader in the development and application of novel
genomics analysis solutions. The Company's MPSS(TM) instruments analyze millions
of DNA
_____________
LYNX THERAPEUTICS, – on Form 10-K for the year ended
December 31, 2003. Lynx does not undertake any obligation to update
forward-looking statements.
{PAGE}
LYNX THERAPEUTICS, INC.
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
(in thousands, except per share amounts)
{TABLE}
{CAPTION}
Three months ended Year ended
December 31, December
_____________
dt 211366
|
| Full Doc
| 2004 |
Minoru (Ben) Makihara Elected to IBM Board of Directors
Minoru (Ben) Makihara Elected to IBM Board of Directors (1K)
Doc #316964: This document is immediately available for purchase, but does not have a preview available for viewing.
INTERNATIONAL BUSINESS MACHINES CORP
EX-99 3 a04-10912_1ex99.htm EX-99
Exhibit. 99 MINORU (BEN) MAKIHARA ELECTED TO IBM BOARD OF DIRECTORS ARMONK, N.Y., September 27, 2004 . . . IBM today announced that Minoru Makihara, senior corporate advisor and former chairman of Mitsubishi Corporation, has been elected to the IBM board of directors. Mr. Makihara previously served on the IBM board of directors from 1997 to early 2003. Samuel J. Palmisano, IBM chairman and chief executive officer, said: We are all delighted to have Ben rejoin our board of directors. He is a global executive who has broad experience and understanding of the global economy and major markets of the world, especially in Asia. Bens breadth of experience and international perspective are valuable assets, and we are very pleased to have him on our board of directors again. Mr. Makihara, 74, a graduate of Harvard University, joined Mitsubishi Corporation in 1956 and has served in a variety of executive positions, including president of Mitsubishi International Corporation (U.S.A.) and president of Mitsubishi Corporation. He retired as chairman and became senior corporate advisor in April 2004. Mr. Makihara is also a member of the senior advisory group to the Minister of Finance of Japan, the international advisory council of Allianz AG, the international advisory board of the Coca-Cola Company, J.P. Morgan Chase & Co., Inc. international council, the Asia Pacific advisory committee of the New York Stock Exchange, and the chairmans council of DaimlerChrysler AG. The IBM board of directors now has a total of 13 members.
316964
| |
Harvard
As referenced in this Minoru (Ben) Makihara Elected to IBM Board of Directors:
Harvard University – are valuable assets, and we are very pleased to have him on our board of directors again.
Mr. Makihara, 74, a graduate of Harvard University , joined Mitsubishi Corporation in 1956 and has served in a variety of executive positions, including president of Mitsubishi International Corporation (U.S.
_____________
dt 623897
|
Preview
Full Doc
| 2004 |
Acquisition Long-Term Performance Plan
Acquisition Long-Term Performance Plan (23K)
Doc #237677: Click preview link for longer preview.
Note: This exhibit reflects an amendment to this long-term performance plan to remove the following sentence from Section 6(c): The maximum number of shares of Capital Stock that may be issued under Stock Awards shall not exceed 20 percent of the aggregate number of shares available for issuance under Awards. The New York Stock Exchange advised the registrant that such amendment did not require shareholder approval. The remaining terms and conditions of this long-term performance plan were not modified, including the maximum number of shares that may be issued under the plan as set forth in Section 3.
IBM PWCC Acquisition Long-Term Performance Plan
1. Objectives.
The IBM PWCC Acquisition Long-Term Performance Plan (the Plan) is designed to attract, motivate and retain selected employees of, and other individuals providing services to, the Company in connection with the Companys acquisition of certain businesses and assets of PricewaterhouseCoopers. These objectives are accomplished by making long-term incentive and other awards under the Plan, thereby providing Participants with a proprietary interest in the growth and performance of the Company.
2. Definitions.
(a) AwardsThe grant of any form of stock option, stock appreciation right, stock or cash award, whether granted singly, in combination or in tandem, to a Participant pursuant to such terms, conditions, performance requirements, limitations and restrictions as the Committee may establish in order to fulfill the objectives of the Plan.
(b) Award AgreementAn agreement between the Company and a Participant that sets forth the terms, conditions, performance requirements, limitations and restrictions applicable to an Award.
(c) BoardThe Board of Directors of International Business Machines Corporation (IBM).
(d) Capital Stock or stockAuthorized and issued or unissued Capital Stock of IBM, at such par value as may be established from time to time.
(e) CodeThe Internal Revenue Code of 1986, as amended from time to time.
(f) CommitteeThe committee designated by the Board to administer the Plan.
(g) CompanyIBM and its affiliates and subsidiaries including subsidiaries of subsidiaries and partnerships and other business ventures in which IBM has an equity interest.
(h) Fair Market ValueThe average of the high and low prices of Capital Stock on the New York Stock Exchange for the date in question, provided that, if no sales of Capital Stock were made on said exchange on that date, the average of the high and low prices of Capital Stock as
237677
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IBM
As referenced in this Acquisition Long-Term Performance Plan:
IBM – of shares that may be issued under the plan as set forth in Section 3.
IBM PWCC Acquisition Long-Term Performance Plan
1. Objectives.
The IBM PWCC Acquisition Long-Term
IBM – set forth in Section 3.
IBM PWCC Acquisition Long-Term Performance Plan
1. Objectives.
The IBM PWCC Acquisition Long-Term Performance Plan (the Plan) is designed to attract, motivate and
International Business Machines – performance requirements, limitations and restrictions applicable to an Award.
(c) BoardThe Board of Directors of International Business Machines Corporation (IBM).
(d) Capital Stock or stockAuthorized and issued or unissued Capital Stock of
(IBM – restrictions applicable to an Award.
(c) BoardThe Board of Directors of International Business Machines Corporation (IBM ).
(d) Capital Stock or stockAuthorized and issued or unissued Capital Stock of IBM, at
IBM – Machines Corporation (IBM).
(d) Capital Stock or stockAuthorized and issued or unissued Capital Stock of IBM , at such par value as may be established from time to time.
(e) CodeThe
dt 64716
;
| PricewaterhouseCoopers
|
Preview
Full Doc
| 2000 |
Agency Agreement
Agency Agreement (152K)
Doc #198531: Click preview link for longer preview.
$12,107,437,190
International Business Machines Corporation
U.S. Medium-Term Notes
AGENCY AGREEMENT
JUNE 22, 2000
Chase Securities Inc.
270 Park Avenue
New York, New York 10017-2070
Credit Suisse First Boston Corporation
11 Madison Avenue
5th Floor
New York, New York 10010
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Merrill Lynch, Pierce, Fenner & Smith Incorporated
World Financial Center
North Tower
New York, New York 10281-1315
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
Salomon Smith Barney Inc.
388 Greenwich Street
New York, New York 10013
Ladies and Gentlemen:
1. INTRODUCTION. International Business Machines Corporation, a New
York corporation (the "Issuer"), confirms its agreement with each of you
(individually an "Agent" and collectively the "Agents") with respect to the
issue and sale from time to time by the Issuer on or after the date hereof of up
to $12,107,437,190 in aggregate initial offering price of its Medium-Term Debt
Securities (or for Medium-Term Debt Securities denominated in currencies or
currency units other than U.S. dollars, the equivalent thereof based on the
prevailing exchange rates at the respective times such Medium-Term Securities
are first offered) (the "Securities") issued under Article Three of the
Indenture dated as of October 1, 1993, as supplemented by the First Supplemental
Indenture thereto dated as of December 15, 1995 (the "Indenture"), between the
Issuer and The Chase Manhattan Bank, as trustee (the "Trustee"). The Securities
will be issued, and the terms thereof established, from time to time by the
Issuer in accordance with the Indenture and the Procedures (as defined in
Section 3(d) hereof).
2. REPRESENTATIONS AND WARRANTIES OF THE ISSUER. The Issuer represents
and warrants to, and agrees with, each Agent as follows:
(a) Registration statements of the Issuer (Nos. 333-37034 and
333-70521), relating to securities of the Issuer (collectively the
"Registered Securities"), including the Securities, have been filed with
the Securities and Exchange Commission (the "Commission") and have become
effective (such registration statements, as amended as of the Closing Date
(as defined in Section 3(e) hereof), including all material incorporated
by reference therein, being hereinafter collectively referred to as the
"Registration Statement," and the prospectus dated JUNE 20, 2000, a form
of which is included in Registration Statement No. 333-37034, as
supplemented as of the Closing Date, including all material incorporated
by reference therein, being hereinafter referred to as the "Prospectus").
Any reference in this Agreement to amending or supplementing the
Prospectus shall be deemed to include the filing of materials incorporated
by reference in the Prospectus after the Closing Date and any reference in
this Agreement to any amendment or supplement to the Prospectus shall be
deemed to include any such materials incorporated by reference in the
Prospectus after the Closing Date.
(b) On the effective date of each registration statement included in
the definition of Registration Statement, such registration statement
conformed, and on the Closing Date, the Prospectus as then amended or
supplemented will conform, in all material respects to the requirements of
the Securities Act of 1933 (the "Act"), the Securities Exchange Act of
1934 (the "Exchange Act"), the Trust Indenture Act of 1939 (the "Trust
Indenture Act") and the rules and regulations of the Commission thereunder
(the "Rules and Regulations"), and on its effective date each registration
statement did not, and such Prospectus will not, include any untrue
statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein not
misleading, except that the foregoing does not apply to statements in or
omissions from any of such documents based upon written information
furnished to the Issuer by any Agent specifically for use therein.
3. APPOINTMENT AS AGENT; SOLICITATIONS AS AGENT.
(a) Subject to the terms and conditions stated herein, the Issuer
hereby appoints each of the Agents an agent of the Issuer for the purpose
of soliciting or receiving offers to purchase the Securities from the
Issuer by others. Nothing contained in this Agreement shall be construed
to prevent the Issuer from selling at any time to any person any
Registered Securities, including the Securities, directly on its own
behalf or in a firm commitment underwriting pursuant to an underwriting
agreement that does not provide for a continuous offering of such
Securities. Each Agent agrees to use its reasonable efforts to solicit
purchases of the Securities on the terms and subject to the conditions set
forth herein and in the Procedures (as defined below).
(b) On the basis of the representations and warranties contained
herein, but subject to the terms and conditions herein set forth, each
Agent agrees, as agent of the Issuer, to solicit offers to purchase the
Securities upon the terms and conditions set forth in the Prospectus, as
from time to time amended or supplemented.
Upon receipt of notice from the Issuer as contemplated by Section
4(b) hereof, the Agents shall suspend solicitation of offers to purchase
the Securities until such time as the Issuer shall have furnished them
with an amendment or supplement to the Registration Statement or the
Prospectus, as the case may be, contemplated by Section 4(b) and shall
have advised the Agents that such solicitation may be resumed.
The Issuer reserves the right, in its sole discretion, to suspend
solicitation of offers to purchase the Securities commencing at any time
for any period of time or permanently. Upon receipt of notice from the
Issuer, the Agents will forthwith suspend solicitation of offers to
purchase the Securities from the Issuer until such time as the Issuer has
advised the Agents that such solicitation may be resumed. During any such
suspension, the Issuer's obligations under Sections 6(a), 6(b), 6(c) and
6(d) shall be suspended, except with respect to Notes held by an Agent for
resale during the first 180 days after the Agent's purchase thereof and
identified in a notice from the Agent to the Issuer as being held by such
Agent for resale during such period.
Unless otherwise mutually agreed upon between the Issuer and the
Agent soliciting such offer, the Agents are authorized to solicit offers
to purchase Securities only in fully registered form in denominations of
$1,000 or any multiple thereof. The authorized denominations of Securities
not denominated in U.S. dollars will be determined by the Issuer at the
time of sale. Each Agent shall communicate to the Issuer, orally or in
writing, each reasonable offer to purchase the Securities received by it
as Agent. The Issuer shall have the sole right to accept offers to
purchase the Securities and may reject any such offer, in whole or in
part. Each Agent shall have the right, in its discretion reasonably
exercised, without notice to the Issuer, to reject any offer to purchase
the Securities received by it, in whole or in part, and any such rejection
shall not be deemed a breach of its agreement contained herein.
198531
|
IBM
As referenced in this Agency Agreement:
international business machines – 1.txt
EXHIBIT 1
Exhibit 1
EXECUTION COPY
$12,107,437,190
International Business Machines Corporation
U.S. Medium-Term Notes
AGENCY AGREEMENT
JUNE 22, 2000
Chase Securities Inc.
international business machines – Inc.
388 Greenwich Street
New York, New York 10013
Ladies and Gentlemen:
1. INTRODUCTION. International Business Machines Corporation, a New
York corporation (the "Issuer"), confirms its agreement with each of you
(
ibm – 14 or 15(d) of the Exchange
Act and are not otherwise available on the IBM home page on the Internet,
at "http://www.ibm.com." The Issuer will also
.ibm – are not otherwise available on the IBM home page on the Internet,
at "http://www.ibm .com." The Issuer will also immediately notify each
Agent of any downgrading in the
international business machines – form of telecommunication.
Except as otherwise provided in the Procedures:
To the Issuer:
Notices to International Business Machines Corporation shall be
directed to it in care of the Assistant Treasurer, Operations, New
dt 3423
;
BNY
As referenced in this Agency Agreement:
Bank of New York
– 212-558-2405)
(fax: 212-558-2457)
Morgan Stanley & Co. Incorporated in care of:
The Bank of New York
Dealer Clearance Department
1 Wall Street-3rd Floor-Window 3B
New York, NY 10005
Bank of New York
– the account of Morgan
Stanley & Co. Incorporated
Salomon Smith Barney, Inc., in care of:
The Bank of New York
1 Wall Street-3rd Floor
New York, NY 10005
Attention: Dealer Clearance
The Presenting
Bank of New
York – instructions in a form previously specified by DTC)
to an account at the Federal Reserve Bank of New
York previously specified by
DTC, in funds available for immediate use by DTC,
each payment of
dt 42807
;
Cede
As referenced in this Agency Agreement:
Cede & Co – the
Trustee and DTC.
REGISTRATION: Each Global Security will be registered in
the name of Cede & Co ., as nominee for
DTC, on the Securities Register maintained
under the Indenture. The beneficial
dt 39083
;
|
Chase Manhattan
As referenced in this Agency Agreement:
Chase Manhattan Bank, – 1, 1993, as supplemented by the First Supplemental
Indenture thereto dated as of December 15, 1995 (the "Indenture"), between the
Issuer and The Chase Manhattan Bank, as trustee (the "Trustee"). The Securities
will be issued, and the terms thereof established, from time to time by the
Issuer in
_____________
Chase Manhattan Bank, – its
own account. The Notes will be issued pursuant to an Indenture, dated as of
October 1, 1993 between the Issuer and The Chase Manhattan Bank, as trustee (the
"Trustee"), as supplemented by the First Supplemental Indenture thereto dated as
of December 1, 1995 (collectively, the "Indenture"). The
_____________
Chase Manhattan Bank, – the settlement date.
J. The Trustee, upon confirming receipt
of such funds, will wire transfer to
the account of the Issuer maintained
at Chase Manhattan Bank, New York
N.Y., Account of INTERNATIONAL
BUSINESS MACHINES CORPORATION, Cash
Concentration Account , ABA Number
021000021, ACCOUNT NUMBER 323 213
499, in
_____________
dt 102046
;
Chase Securities
As referenced in this Agency Agreement:
Chase Securities Inc – 1
Exhibit 1
EXECUTION COPY
$12,107,437,190
International Business Machines Corporation
U.S. Medium-Term Notes
AGENCY AGREEMENT
JUNE 22, 2000
Chase Securities Inc .
270 Park Avenue
New York, New York 10017-2070
Credit Suisse First Boston Corporation
11 Madison Avenue
5th Floor
New York, New
_____________
Chase Securities Inc – Orchard Road, Mail Stop 329, Armonk,
New York 10504, Attention: Securities Counsel-IBM Corporation (Fax:
914-499-6445).
To the Agents:
Notices to Chase Securities Inc . shall be directed to it at 270 Park
Avenue, 8th Floor, New York, New York, Attention: Medium-Term Note Desk
(Fax: 212-
_____________
CHASE SECURITIES INC – yours,
INTERNATIONAL BUSINESS MACHINES CORPORATION
By: /s/ Cassio A. Calil
--------------------
Title: Assistant Treasurer
CONFIRMED AND ACCEPTED, as of the date first above written:
CHASE SECURITIES INC .
By: /s/ Kevin J. Kulak
------------------
Title: Vice President
CREDIT SUISSE FIRST BOSTON CORPORATION
By: /s/ Julie Keogh
---------------
Title: Authorized Signatory
GOLDMAN, SACHS &
_____________
Chase Securities Inc – or More from Date of Issue (the
"Notes") are to be offered on a continuing basis by International Business
Machines Corporation (the "Issuer"). Chase Securities Inc ., Credit Suisse First
Boston Corporation, Goldman, Sachs & Co., Merrill Lynch, Pierce, Fenner and
Smith Incorporated, Morgan Stanley & Co. Incorporated and Salomon Smith
_____________
Chase Securities Inc – Issuer's agent, for the benefit of the
purchaser only against delivery of a receipt
therefor.
Agents' addresses for delivery of Certificate Notes:
Chase Securities Inc .
55 Water Street
Room 226
New York, New York 10041
Attention: Window 17 or Window 18
(tel: 212-638-6787)
(fax: 212-
_____________
dt 212502
;
More... |
Preview
Full Doc
| 2001 |
Agreement and Plan of Merger
Agreement and Plan of Merger (198K)
Doc #198467: Click preview link for longer preview.
==============================================================================
AGREEMENT AND PLAN OF MERGER
Among
INTERNATIONAL BUSINESS MACHINES CORPORATION
DUKE ACQUISITION CORP.
and
CROSSWORLDS SOFTWARE, INC.
Dated as of October 29, 2001
==============================================================================
TABLE OF CONTENTS
ARTICLE I
The Merger
SECTION 1.01 Effective Time of the Merger................................2
SECTION 1.02 Closing.....................................................2
SECTION 1.03 Effect of the Merger........................................2
SECTION 1.04 Certificate of Incorporation and By-laws....................2
SECTION 1.05 Directors...................................................3
SECTION 1.06 Officers....................................................3
ARTICLE II
Conversion of Securities
SECTION 2.01 Conversion of Capital Stock.................................3
SECTION 2.02 Exchange of Certificates....................................5
ARTICLE III
Representations and Warranties
SECTION 3.01 Representations and Warranties of the Company...............8
SECTION 3.02 Representations and Warranties of Parent and Sub...........44
ARTICLE IV
Covenants Relating to Conduct of Business
SECTION 4.01 Conduct of Business........................................46
SECTION 4.02 No Solicitation............................................54
ARTICLE V
Additional Agreements
SECTION 5.01 Preparation of the Proxy Statement; Stockholders Meeting...58
SECTION 5.02 Access to Information; Confidentiality.....................59
SECTION 5.03 Reasonable Efforts; Notification...........................59
SECTION 5.04 Stock Options; Restricted Shares; Warrants.................62
SECTION 5.05 Indemnification, Exculpation and Insurance.................65
SECTION 5.06 Fees.......................................................67
SECTION 5.07 Employee Matters...........................................68
SECTION 5.08 Public Announcements.......................................70
SECTION 5.09 Closing Date Balance Sheet.................................71
ARTICLE VI
Conditions Precedent
SECTION 6.01 Conditions to Each Party's Obligation to Effect the Merger.72
SECTION 6.02 Conditions to Obligations of Parent and Sub................72
SECTION 6.03 Conditions to Obligation of the Company....................74
SECTION 6.04 Frustration of Closing Conditions..........................75
ARTICLE VII
Termination, Amendment and Waiver
SECTION 7.01 Termination................................................75
SECTION 7.02 Effect of Termination......................................76
SECTION 7.03 Amendment..................................................76
SECTION 7.04 Extension; Waiver..........................................77
ARTICLE VIII
General Provisions
SECTION 8.01 Nonsurvival of Representations and Warranties..............77
SECTION 8.02 Notices....................................................77
SECTION 8.03 Definitions................................................79
SECTION 8.04 Interpretation.............................................80
SECTION 8.05 Counterparts...............................................80
SECTION 8.06 Entire Agreement; No Third-Party Beneficiaries.............81
SECTION 8.07 Governing Law..............................................81
SECTION 8.08 Assignment.................................................81
SECTION 8.09 Consent to Jurisdiction....................................81
SECTION 8.10 Waiver of Jury Trial.......................................82
SECTION 8.11 Enforcement................................................82
-2-
AGREEMENT AND PLAN OF MERGER dated as of
October 29, 2001 (this "Agreement"), by and among
INTERNATIONAL BUSINESS MACHINES CORPORATION, a
New York corporation ("Parent"), DUKE
ACQUISITION CORP., a Delaware corporation and a
wholly owned subsidiary of Parent ("Sub"), and
CROSSWORLDS SOFTWARE, INC., a Delaware
corporation (the "Company").
WHEREAS the Board of Directors of each of the Company and Sub deems
it in the best interests of their respective stockholders to consummate the
merger (the "Merger"), on the terms and subject to the conditions set forth in
this Agreement, of Sub with and into the Company in which the Company would
become a wholly owned subsidiary of Parent, and such Boards of Directors have
approved this Agreement and declared its advisability (and, in the case of the
Board of Directors of the Company, recommended that this Agreement be adopted
by the Company's stockholders);
WHEREAS, simultaneously with the execution and delivery of this
Agreement and as a condition and inducement to the willingness of Parent and
Sub to enter into this Agreement, Parent and certain stockholders of the
Company are entering into a stockholders agreement (the "Stockholders
Agreement") pursuant to which, among other things, such stockholders have
agreed to vote to adopt this Agreement and to take certain other actions in
furtherance of the Merger, in each case upon the terms and subject to the
conditions set forth therein;
WHEREAS Parent, Sub and the Company desire to make certain
representations, warranties, covenants and agreements in connection with the
Merger and also to prescribe various conditions to the Merger;
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements set forth herein, the
parties hereto agree as follows:
ARTICLE I
The Merger
SECTION 1.01 Effective Time of the Merger. As soon as practicable
on or after the Closing Date (as defined in Section 1.02), the parties shall
(i) file a certificate of merger (the "Certificate of Merger") in such form as
is required by, and executed and acknowledged in accordance with, the relevant
provisions of the General Corporation Law of the State of Delaware (the
"DGCL") and (ii) make all other filings or recordings required under the DGCL
to effect the Merger. The Merger shall become effective at such time as the
Certificate of Merger is duly filed with the Secretary of State of the State
of Delaware or at such subsequent time as Parent and the Company shall agree
and specify in the Certificate of Merger (the date and time the Merger becomes
effective being the "Effective Time").
SECTION 1.02 Closing. The closing of the Merger (the "Closing")
will take place at 11:00 a.m., New York time, on a date to be specified by the
parties, which shall be not later than the second business day after
satisfaction or waiver of the conditions set forth in Article VI that by their
terms are not to be satisfied or waived at the Closing (the "Closing Date"),
at the offices of Cravath, Swaine & Moore, 825 Eighth Avenue, New York, New
York 10019, unless another time, date or place is agreed to in writing by
Parent and the Company.
SECTION 1.03 Effect of the Merger. At the Effective Time, Sub shall
be merged with and into the Company, the separate corporate existence of Sub
shall cease and the Company shall continue as the surviving corporation (the
"Surviving Corporation"). The Merger shall have the effects set forth in
Section 259 of the DGCL.
SECTION 1.04 Certificate of Incorporation and By-laws. (a) The
Amended and Restated Certificate of Incorporation of the Company, as in effect
immediately prior to the Effective Time, shall be the Certificate of
Incorporation of the Surviving Corporation until thereafter
-2-
changed or amended as provided therein or by applicable law.
(b) The By-laws of Sub, as in effect immediately prior to the
Effective Time, shall be the By-laws of the Surviving Corporation until
thereafter changed or amended as provided therein or by applicable law.
SECTION 1.05 Directors. The directors of Sub immediately prior to
the Effective Time shall be the directors of the Surviving Corporation until
the earlier of their resignation or removal or until their respective
successors are duly elected and qualified, as the case may be.
SECTION 1.06 Officers. The officers of the Company immediately
prior to the Effective Time shall be the officers of the Surviving Corporation
until the earlier of their resignation or removal or until their respective
successors are duly elected and qualified, as the case may be.
ARTICLE II
Conversion of Securities
SECTION 2.01 Conversion of Capital Stock. At the Effective Time, by
virtue of the Merger and without any action on the part of the holder of any
shares of Common Stock, par value $0.001 per share, of the Company (the
"Company Common Stock"), or any shares of capital stock of Sub:
(a) Capital Stock of Sub. Each issued and outstanding share of
common stock of Sub shall be converted into and become one fully paid and
nonassessable share of common stock of the Surviving Corporation.
(b) Cancelation of Treasury Stock and Parent-Owned Stock. All shares
of Company Common Stock that are owned by the Company, as treasury stock,
Parent or Sub immediately prior to the Effective Time shall automatically
be canceled and retired and shall cease
198467
|
IBM
As referenced in this Agreement and Plan of Merger:
international business machines – DESCRIPTION>AGREEMENT AND PLAN OF MERGER
CONFORMED COPY
==============================================================================
AGREEMENT AND PLAN OF MERGER
Among
INTERNATIONAL BUSINESS MACHINES CORPORATION
DUKE ACQUISITION CORP.
and
CROSSWORLDS SOFTWARE, INC.
Dated as of October 29, 2001
==============================================================================
<
international business machines – AND PLAN OF MERGER dated as of
October 29, 2001 (this "Agreement"), by and among
INTERNATIONAL BUSINESS MACHINES CORPORATION, a
New York corporation ("Parent"), DUKE
ACQUISITION CORP., a Delaware corporation and a
international business machines – a party as shall be specified by like notice):
if to Parent or Sub, to:
International Business Machines Corporation
New Orchard Road Avenue
Armonk, NY 10504
Attention: David L. Johnson
Telecopy: (914)
international business machines – Armonk, NY 10504
Attention: David L. Johnson
Telecopy: (914) 499-7802
with a copy to:
International Business Machines Corporation
New Orchard Road Avenue
Armonk, NY 10504
Attention: Gregory C. Bomberger, Esq.
Telecopy: (
international business
machines – by their respective officers thereunto duly authorized,
all as of the date first written above.
INTERNATIONAL BUSINESS
MACHINES CORPORATION,
by /s/ David L. Johnson
---------------------------
Name: David L. Johnson
Title: Vice President,
Corporate
dt 3366
;
Citibank
As referenced in this Agreement and Plan of Merger:
Citibank, N.A. – any appeal relating thereto, together with interest on the amounts
set forth in this Section 5.06(b) at the prime rate of Citibank, N.A. in
effect on the date such payment was required to be made.
SECTION 5.07 Employee Matters. (a) Following the Effective Time,
_____________
dt 146292
;
Crossworlds
As referenced in this Agreement and Plan of Merger:
CROSSWORLDS SOFTWARE, INC. – EX-1
3
ex1.txt
AGREEMENT AND PLAN OF MERGER
CONFORMED COPY
==============================================================================
AGREEMENT AND PLAN OF MERGER
Among
INTERNATIONAL BUSINESS MACHINES CORPORATION
DUKE ACQUISITION CORP.
and
CROSSWORLDS SOFTWARE, INC.
Dated as of October 29, 2001
==============================================================================
TABLE OF CONTENTS
ARTICLE I
The Merger
SECTION 1.01 Effective Time of the Merger................................2
SECTION 1.02 Closing.....................................................2
SECTION
_____________
CROSSWORLDS SOFTWARE, INC. – 2001 (this "Agreement"), by and among
INTERNATIONAL BUSINESS MACHINES CORPORATION, a
New York corporation ("Parent"), DUKE
ACQUISITION CORP., a Delaware corporation and a
wholly owned subsidiary of Parent ("Sub"), and
CROSSWORLDS SOFTWARE, INC. , a Delaware
corporation (the "Company").
WHEREAS the Board of Directors of each of the Company and Sub deems
it in the best interests of their respective stockholders to consummate
_____________
CrossWorlds Software, Inc. – with a copy to:
Cravath, Swaine & Moore
Worldwide Plaza
825 Eighth Avenue
New York, NY 10019
Attention: Scott A. Barshay, Esq.
Telecopy: (212) 474-3700
if to the Company, to:
CrossWorlds Software, Inc.
577 Airport Boulevard
Suite 800
Burlingame, CA 94010
Attention: Alfred J. Amoroso
Telecopy: (650) 685-3353
-78-
with a copy to:
CrossWorlds Software, Inc.
577 Airport Boulevard
Suite
_____________
CrossWorlds Software, Inc. – if to the Company, to:
CrossWorlds Software, Inc.
577 Airport Boulevard
Suite 800
Burlingame, CA 94010
Attention: Alfred J. Amoroso
Telecopy: (650) 685-3353
-78-
with a copy to:
CrossWorlds Software, Inc.
577 Airport Boulevard
Suite 800
Burlingame, CA 94010
Attention: Stacey A. Giamalis
Telecopy: (650) 685-9960
and with a copy to:
Venture Law Group
2775 Sand Hill Road
Menlo
_____________
CROSSWORLDS SOFTWARE, INC. – MACHINES CORPORATION,
by /s/ David L. Johnson
---------------------------
Name: David L. Johnson
Title: Vice President,
Corporate Development
DUKE ACQUISITION CORP.,
by /s/ Jeffrey J. Doyle
---------------------------
Name: Jeffrey J. Doyle
Title: President
CROSSWORLDS SOFTWARE, INC. ,
by /s/ Alfred J. Amoroso
---------------------------
Name: Alfred J. Amoroso
Title: President and CEO
-83-
_____________
dt 1313995
;
|
SVB
As referenced in this Agreement and Plan of Merger:
Silicon Valley
Bank) – Amended and Restated Loan and Security Agreement dated as of September 18,
2000, as amended to the date hereof, between the Company and Silicon Valley
Bank) , bond, debenture, note, mortgage, indenture, guarantee, lease or other
contract, commitment, agreement, instrument, arrangement, understanding,
obligation, undertaking, permit, concession, franchise or license,
_____________
dt 127023
;
Thomas Weisel
As referenced in this Agreement and Plan of Merger:
Thomas Weisel Partners
LLC, – transactions contemplated hereby and thereby.
(u) Brokers; Schedule of Fees and Expenses. No broker, investment
banker, financial advisor or other person, other than Thomas Weisel Partners
LLC, the fees and expenses of which will be paid by the Company, is entitled
to any broker's, finder's, financial advisor'
_____________
Thomas Weisel Partners LLC, – in Section 3.01(u) of the Company
Disclosure Schedule.
(v) Opinion of Financial Advisor. The Company has received the
written opinion of Thomas Weisel Partners LLC, in customary form and based on
customary assumptions,
-43-
to the effect that the Merger Consideration to be received by the stockholders
_____________
dt 266170
;
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| 2001 |
Agreement and Plan of Merger
Agreement and Plan of Merger (164K)
Doc #198486: Click preview link for longer preview.
AGREEMENT AND PLAN OF MERGER
Among
INTERNATIONAL BUSINESS MACHINES CORPORATION
WATERFALL ACQUISITION CORP.
and
MAINSPRING, INC.
Dated as of April 19, 2001
TABLE OF CONTENTS
ARTICLE I
The Merger
SECTION 1.01. Effective Time of the Merger..................................1
SECTION 1.02. Closing.......................................................2
SECTION 1.03. Effect of the Merger..........................................2
SECTION 1.04. Certificate of Incorporation and By-laws......................2
SECTION 1.05. Directors.....................................................2
SECTION 1.06. Officers......................................................3
ARTICLE II
Conversion of Securities
SECTION 2.01. Conversion of Capital Stock...................................3
SECTION 2.02. Exchange of Certificates......................................4
ARTICLE III
Representations and Warranties
SECTION 3.01. Representations and Warranties of
the Company................................................6
SECTION 3.02. Representations and Warranties of
Parent and Sub............................................31
ARTICLE IV
Covenants Relating to Conduct of Business
SECTION 4.01. Conduct of Business..........................................33
SECTION 4.02. No Solicitation..............................................38
ARTICLE V
Additional Agreements
SECTION 5.01. Preparation of the Proxy Statement;
Stockholders Meeting......................................40
SECTION 5.02. Access to Information; Confidentiality.......................41
SECTION 5.03. Reasonable Best Efforts; Notification........................42
SECTION 5.04. Stock Options................................................44
SECTION 5.05. Indemnification, Exculpation and
Insurance.................................................46
SECTION 5.06. Fees and Expenses............................................47
SECTION 5.07. Employee Matters.............................................47
2
SECTION 5.08. Public Announcements.........................................48
SECTION 5.09. Closing Date Balance Sheet...................................48
ARTICLE VI
Conditions Precedent
SECTION 6.01. Conditions to Each Party's Obligation
to Effect the Merger......................................49
SECTION 6.02. Conditions to Obligations of Parent
and Sub...................................................49
SECTION 6.03. Conditions to Obligation of the Company......................50
SECTION 6.04. Frustration of Closing Conditions............................51
ARTICLE VII
Termination, Amendment and Waiver
SECTION 7.01. Termination..................................................51
SECTION 7.02. Effect of Termination........................................52
SECTION 7.03. Amendment....................................................53
SECTION 7.04. Extension; Waiver............................................53
ARTICLE VIII
General Provisions
SECTION 8.01. Nonsurvival of Representations and
Warranties................................................53
SECTION 8.02. Notices......................................................54
SECTION 8.03. Definitions..................................................54
SECTION 8.04. Interpretation...............................................55
SECTION 8.05. Counterparts.................................................56
SECTION 8.06. Entire Agreement; No Third-Party
Beneficiaries.............................................56
SECTION 8.07. Governing Law................................................56
SECTION 8.08. Assignment...................................................56
SECTION 8.09. Enforcement..................................................56
AGREEMENT AND PLAN OF MERGER dated as of April 19,
2001, by and among INTERNATIONAL BUSINESS MACHINES
CORPORATION, a New York corporation ("Parent"), WATERFALL
ACQUISITION CORP., a Delaware corporation and a wholly owned
subsidiary of Parent ("Sub"), and MAINSPRING, INC., a
Delaware corporation (the "Company").
WHEREAS the Board of Directors of each of the Company and Sub
deems it in the best interests of their respective stockholders to
consummate the merger (the "Merger"), on the terms and subject to the
conditions set forth in this Agreement, of Sub with and into the Company in
which the Company would become a wholly owned subsidiary of Parent, and
such Boards of Directors have approved this Agreement and declared its
advisability (and, in the case of the Board of Directors of the Company,
recommended that this Agreement be adopted by the Company's stockholders);
WHEREAS, simultaneously with the execution and delivery of this
Agreement and as a condition and inducement to the willingness of Parent
and Sub to enter into this Agreement, Parent and certain stockholders of
the Company are entering into a stockholders agreement (the "Stockholders
Agreement") pursuant to which, among other things, such stockholders have
agreed to vote to adopt this Agreement and to take certain other actions in
furtherance of the Merger and to grant to Parent an option to purchase
their shares of Company Common Stock (as defined in Section 2.01), in each
case upon the terms and subject to the conditions set forth therein; and
WHEREAS Parent, Sub and the Company desire to make certain
representations, warranties, covenants and agreements in connection with
the Merger and also to prescribe various conditions to the Merger;
NOW, THEREFORE, in consideration of the foregoing and the
respective representations, warranties, covenants and agreements set forth
herein, the parties hereto agree as follows:
ARTICLE I
The Merger
SECTION 1.01. Effective Time of the Merger. As soon as
practicable on or after the Closing Date (as defined
2
in Section 1.02), the parties shall (i) file a certificate of merger (the
"Certificate of Merger") in such form as is required by, and executed and
acknowledged in accordance with, the relevant provisions of the General
Corporation Law of the State of Delaware (the "DGCL") and (ii) make all
other filings or recordings required under the DGCL to effect the Merger.
The Merger shall become effective at such time as the Certificate of Merger
is duly filed with the Secretary of State of the State of Delaware or at
such subsequent time as Parent and the Company shall agree and be specified
in the Certificate of Merger (the date and time the Merger becomes
effective being the "Effective Time").
SECTION 1.02. Closing. The closing of the Merger (the "Closing")
will take place at 11:00 a.m., New York time, on a date to be specified by
the parties, which shall be not later than the second business day after
satisfaction or waiver of the conditions set forth in Article VI that by
their terms are not to be satisfied or waived at the Closing (the "Closing
Date"), at the offices of Cravath, Swaine & Moore, 825 Eighth Avenue, New
York, New York 10019, unless another time, date or place is agreed to in
writing by Parent and the Company.
SECTION 1.03. Effect of the Merger. At the Effective Time, Sub
shall be merged with and into the Company, the separate corporate existence
of Sub shall cease and the Company shall continue as the surviving
corporation (the "Surviving Corporation"). The Merger shall have the
effects set forth in Section 259 of the DGCL.
SECTION 1.04. Certificate of Incorporation and By-laws. (a) The
Certificate of Incorporation of the Company, as in effect immediately prior
to the Effective Time, shall be the Certificate of Incorporation of the
Surviving Corporation until thereafter changed or amended as provided
therein or by applicable law.
(b) The By-laws of the Company, as in effect immediately prior to
the Effective Time, shall be the By-laws of the Surviving Corporation until
thereafter changed or amended as provided therein or by applicable law.
SECTION 1.05. Directors. The directors of Sub immediately prior
to the Effective Time shall be the directors of the Surviving Corporation
until the earlier of their resignation or removal or until their respective
successors are duly elected and qualified, as the case may be.
198486
|
IBM
As referenced in this Agreement and Plan of Merger:
international business machines – DESCRIPTION>AGREEMENT AND PLAN OF MERGER
EXECUTION COPY
AGREEMENT AND PLAN OF MERGER
Among
INTERNATIONAL BUSINESS MACHINES CORPORATION
WATERFALL ACQUISITION CORP.
and
MAINSPRING, INC.
Dated as of April 19, 2001
international business machines – PAGE>
AGREEMENT AND PLAN OF MERGER dated as of April 19,
2001, by and among INTERNATIONAL BUSINESS MACHINES
CORPORATION, a New York corporation ("Parent"), WATERFALL
ACQUISITION CORP., a Delaware corporation and a
international business machines – a party as shall be specified by like notice):
if to Parent or Sub, to:
International Business Machines Corporation
New Orchard Road
Armonk, NY 10504
Attention: David L. Johnson
with copies to:
international business machines – Machines Corporation
New Orchard Road
Armonk, NY 10504
Attention: David L. Johnson
with copies to:
International Business Machines Corporation
New Orchard Road
Armonk, NY 10504
Attention: Gregory C. Bomberger, Esq.
and
Cravath,
international business
machines – by their respective officers thereunto duly
authorized, all as of the date first written above.
INTERNATIONAL BUSINESS
MACHINES CORPORATION,
by
______________________________
Name:
Title:
WATERFALL ACQUISITION CORP.,
by
______________________________
Name:
Title:
MAINSPRING, INC.,
dt 3383
;
Morgan Stanley
As referenced in this Agreement and Plan of Merger:
Morgan Stanley & Co – transactions contemplated hereby and thereby.
(s) Brokers; Schedule of Fees and Expenses. No broker, investment
banker, financial advisor or other person, other than Morgan Stanley & Co .
Incorporated, the fees and expenses of which will be paid by the Company,
is entitled to any broker's, finder's, financial
_____________
Morgan Stanley & Co – in
Section 3.01(s) of the Company Disclosure Schedule.
(t) Opinion of Financial Advisor. The Company has received the
written opinion of Morgan Stanley & Co . Incorporated, in customary form to
the effect that, as of
31
the date of this Agreement, the consideration to be received in
_____________
dt 183535
;
Nasdaq Stock Market Inc.
As referenced in this Agreement and Plan of Merger:
Nasdaq Stock Market
Inc – the
Company or any of its subsidiaries is qualified to do business, (4) any
filings required under the rules and regulations of The Nasdaq Stock Market
Inc . and (5) such other consents, approvals, orders, authorizations,
registrations, declarations and filings the failure of which to be obtained
or made individually
_____________
dt 232308
;
|
Cravath
As referenced in this Agreement and Plan of Merger:
cravath, swaine – to be satisfied or waived at the Closing (the "Closing
Date"), at the offices of Cravath, Swaine & Moore, 825 Eighth Avenue, New
York, New York 10019, unless another time, date or
cravath, swaine – Business Machines Corporation
New Orchard Road
Armonk, NY 10504
Attention: Gregory C. Bomberger, Esq.
and
Cravath, Swaine & Moore
Worldwide Plaza
825 Eighth Avenue
New York, NY 10019
Attention: Scott A. Barshay,
dt 6020
;
Testa Hurwitz
As referenced in this Agreement and Plan of Merger:
testa, hurwitz – Main Street
Cambridge, MA 02142
Attention: President and
Chief Executive Officer
with a copy to:
Testa, Hurwitz & Thibeault, LLP
125 High Street
Boston, MA 02110
Attention: John Hession, Esq.
Kathy Fields,
dt 6019
;
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| 2002 |
Agreement and Plan of Merger
Agreement and Plan of Merger (220K)
Doc #947494: Click preview link for longer preview.
<DESCRIPTION>AGREEMENT AND PLAN OF MERGER
<TEXT>
<PAGE>
AGREEMENT AND PLAN OF MERGER
Among
CENTRICA PLC,
WINDSOR ACQUISITION CORPORATION
and
NEWPOWER HOLDINGS, INC.
Dated as of February 22, 2002
<PAGE>
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND . . .
947494
|
IBM
As referenced in this Agreement and Plan of Merger:
International Business Machines Corp – or
threatened suit, proceeding or claim with, or enter into any Contract with, or
enter into any amendments, waivers of rights under, or modification of, or
terminate, any Contracts with, International Business Machines Corp ., America
Online, Inc., AOL Time Warner Inc. or Enron or their respective current or
former affiliates or representatives, as the case may be;
(i) settle or compromise any suits,
_____________
International Business Machines Corp – timely advance
notice of, and a meaningful opportunity to participate in, any communications,
including, without limitation, a right to attend, with advisors present, any
meetings (telephonic or in person) with International Business Machines Corp .,
America Online, Inc., AOL Time Warner, Inc. or Enron, or their current or former
affiliates or representatives, as the case may be.
(b) Throughout the period prior to the
_____________
dt 1706993
;
|
Sullivan
As referenced in this Agreement and Plan of Merger:
Sullivan & Cromwell
– the parties at the following addresses (or at such
other address for a party as is specified by like notice):
(a) if to Purchaser to:
Windsor Acquisition Corporation
c/o Sullivan & Cromwell
125 Broad Street
New York, New York 10004
Attention: President
Telecopy No.: (212) 558-3588
with copies to:
Sullivan & Cromwell
125 Broad Street
New York, New York 10004
Attention:
_____________
Sullivan & Cromwell
– a) if to Purchaser to:
Windsor Acquisition Corporation
c/o Sullivan & Cromwell
125 Broad Street
New York, New York 10004
Attention: President
Telecopy No.: (212) 558-3588
with copies to:
Sullivan & Cromwell
125 Broad Street
New York, New York 10004
Attention: Joseph B. Frumkin
Ivan J. Presant
Telecopy No.: (212) 558-3588
(b) if to Parent to:
Centrica plc
Millstream, Maidenhead
_____________
Sullivan & Cromwell
– b) if to Parent to:
Centrica plc
Millstream, Maidenhead Road
Windsor, Berkshire SL4 5GD, United Kingdom
Attention: Grant Dawson
Telecopy No.: 44 (1753) 494-602
41
with copies to:
Sullivan & Cromwell
125 Broad Street
New York, New York 10004
Attention: Joseph B. Frumkin
Ivan J. Presant
Telecopy No.: (212) 558-3588
(c) if to the Company, to:
NewPower Holdings, Inc.
_____________
dt 1700833
|
Preview
Full Doc
| 2002 |
Agreement and Plan of Merger
Agreement and Plan of Merger (220K)
Doc #2399673: Click preview link for longer preview.
AGREEMENT AND PLAN OF MERGER
Among
CENTRICA PLC,
WINDSOR ACQUISITION CORPORATION
and
NEWPOWER HOLDINGS, INC.
Dated as of February 22, 2002
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER dated as of February 22, 2002
(this "Agreement"), among Centrica plc, a public limited . . .
2399673
|
IBM
As referenced in this Agreement and Plan of Merger:
International Business Machines Corp – or
threatened suit, proceeding or claim with, or enter into any Contract with, or
enter into any amendments, waivers of rights under, or modification of, or
terminate, any Contracts with, International Business Machines Corp ., America
Online, Inc., AOL Time Warner Inc. or Enron or their respective current or
former affiliates or representatives, as the case may be;
(i) settle or compromise any suits,
_____________
International Business Machines Corp – timely advance
notice of, and a meaningful opportunity to participate in, any communications,
including, without limitation, a right to attend, with advisors present, any
meetings (telephonic or in person) with International Business Machines Corp .,
America Online, Inc., AOL Time Warner, Inc. or Enron, or their current or former
affiliates or representatives, as the case may be.
(b) Throughout the period prior to the
_____________
dt 1647132
;
America Online
As referenced in this Agreement and Plan of Merger:
America
Online, Inc – or claim with, or enter into any Contract with, or
enter into any amendments, waivers of rights under, or modification of, or
terminate, any Contracts with, International Business Machines Corp., America
Online, Inc ., AOL Time Warner Inc. or Enron or their respective current or
former affiliates or representatives, as the case may be;
(i) settle or compromise any suits, proceedings or claims
_____________
America Online, Inc – and a meaningful opportunity to participate in, any communications,
including, without limitation, a right to attend, with advisors present, any
meetings (telephonic or in person) with International Business Machines Corp.,
America Online, Inc ., AOL Time Warner, Inc. or Enron, or their current or former
affiliates or representatives, as the case may be.
(b) Throughout the period prior to the Effective Time,
the
_____________
dt 1609223
;
|
Citibank
As referenced in this Agreement and Plan of Merger:
Citibank,
N.A. – Parent or such affiliate their
costs and expenses (including attorneys' fees) in connection with such suit,
together with interest on the amount of the fee at the base rate of Citibank,
N.A. from the date such payment was due under this Agreement.
34
{PAGE}
Section 6.9 Notification of Certain Matters. The Company will
give prompt notice to Parent and Purchaser,
_____________
dt 1616403
;
Enron
As referenced in this Agreement and Plan of Merger:
Enron Corp. – require appraisal of their shares of
Company Common Stock (each such person, a "Dissenting Stockholder"), will be
converted into the right to receive the Per Share Amount;
WHEREAS the Company, Enron Corp. ("Enron") and certain
affiliates of Enron and the Company have entered into the Enron Master
Termination Agreement, dated as of the date hereof and attached hereto as
Exhibit A (
_____________
dt 1642029
;
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| 2008 |
Analyst Presentation
Analyst Presentation (12K)
Doc #3470277: This document is immediately available for purchase, but does not have a preview available for viewing.
3470277
| | |
Preview
Full Doc
| 2000 |
Asset Purchase Agreement
Asset Purchase Agreement (91K)
Doc #198523: Click preview link for longer preview.
ASSET PURCHASE AGREEMENT
THIS AGREEMENT, dated as of July 31, 2000, by and among Riverdeep
Group plc, an Irish corporation ("Buyer"), and Edmark Corporation , a Washington
corporation ("Seller"); and IBM for limited purposes as indicated herein.
W I T N E S S E T H:
WHEREAS, Seller wishes to sell certain assets used in the Seller's
educational software product business; and
WHEREAS, Buyer wishes to purchase from Seller, and Seller wishes to
sell to Buyer, the Transferred Assets for the purchase price and subject to the
terms and conditions hereinafter set forth; and
WHEREAS, Buyer shall issue and sell to IBM American Depository
Shares ("ADSs"), subject to the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises set forth above and
the respective covenants, agreements, representations and warranties hereinafter
set forth, Buyer and Seller hereby agree as follows:
Definitions.
Certain Definitions. As used in this Agreement, the following terms
shall have the meanings specified below:
"Affiliate" shall mean, as to any Person, any other Person or entity
which is controlling, controlled by or under common control with such Person or
entity;
"Allocation Statements" shall have the meaning set forth in Section
3.1;
"Assumed Liabilities" shall have the meaning set forth in Section
1.4;
"Assumption Agreement" shall mean the Assignment and Assumption
Agreement in the form set out in Exhibit A to be entered into by the Parties on
the Closing Date and by which Buyer assumes the Assumed Liabilities;
"Bill of Sale" shall mean the Bill of Sale in the form set out in
Exhibit B to be entered into by the Parties on the Closing Date;
"Burdensome Condition" shall mean any action taken by or before any
Governmental Authority or other Person to challenge the legality of the
transactions contemplated by the Operative Agreements or that would otherwise
deprive a Party of the material benefit of any such transaction, including (i)
the pendency of an investigation by a Governmental Authority (formal or
informal) (ii) the institution of any litigation, or threat thereof or (iii) an
order by a Governmental Authority of competent jurisdiction preventing
consummation of the transactions contemplated by the Operative Agreements or
placing material conditions or limitations upon such consummation.
"Closing" shall have the meaning set forth in Section 2.1;
"Closing Date" shall have the meaning set forth in Section 2.1;
"Code" shall have the meaning set forth in Section 3.1;
"Confidentiality Agreement" shall mean the Agreement between IBM and
Riverdeep Group plc, dated May 17, 2000;
"Date of Execution" shall mean the date this Agreement and the other
Operative Agreements identified for signature on that date are signed;
"Disclosure Schedule" shall have the meaning set forth in the
Seller's Schedule of Disclosure and Exceptions to the Asset Purchase Agreement
and the Buyer's Schedule of Disclosure and Exceptions to the Asset Purchase
Agreement, respectively;
"Employees" shall have the meaning set forth in Section 4.2;
"Governmental Actions" shall mean any authorizations, consents,
approvals, waivers, exceptions, variances, franchises, permissions, permits, and
licenses of, and filings and declarations with, Governmental Authorities,
including the expiration or termination of waiting periods imposed under the HSR
Act;
"Governmental Authority" shall mean any federal, state or local
court, governmental or administrative agency or commission or other governmental
agency, authority, instrumentality or regulatory body, domestic or foreign;
"Governmental Rule" shall mean any statute, law, treaty, rule, code,
ordinance, regulation or order of any Governmental Authority or any judgment,
decree, injunction, writ, order or like action of any federal, state or local
court, arbitrator or other judicial tribunal of competent jurisdiction, domestic
or foreign;
"HSR Act" shall mean the Hart-Scott-Rodino Antitrust Improvements
Act of 1976, as amended;
"IBM" shall mean International Business Machines Corporation, a New
York corporation;
"Intellectual Property Agreement" shall mean the agreement so
entitled between Buyer, Seller and IBM, entered into on the Date of Execution;
"Liens" shall mean pledges, claims, liens, charges, encumbrances and
security interests of any kind or nature whatsoever, other than Permitted Liens;
"Limitation Amount" shall have the meaning set forth in Section
10.2;
"Operative Agreements" shall mean this Agreement, the Assumption
Agreement (substantially in the form attached as Exhibit A hereto), the Bill of
Sale (substantially in the form attached as Exhibit B hereto), the
Confidentiality Agreement, the Transition Services Agreement, the Real Estate
Assignment and Assumption Agreements, the Registration Rights Agreement (in the
form of Exhibit D hereto) and the Intellectual Property Agreement;
"Parties" shall mean Buyer and Seller, and, with respect to Article
VII and Sections 4.10, 4.11, 4.12., 10.2 and 10.3 only, IBM;
"Party" shall mean either Buyer, Seller, or with respect to Article
VII and Sections 4.10, 4.11, 4.12, 10.2 and 10.3 only, IBM;
"Permitted Liens" shall mean: (i) Liens for Taxes, assessments and
governmental charges due and being contested in good faith by Seller; (ii) Liens
for Taxes either not due and payable or due but for which notice of assessment
has not been given, or which may thereafter be paid without penalty; (iii)
undetermined or inchoate Liens, charges and privileges incidental to current
operations or the ordinary course of business; (iv) any statutory Liens,
charges, adverse claims, security interests or encumbrances of any nature
whatsoever claimed or held by any Governmental Authority that have not at the
time been filed or registered against title to the Transferred Assets or that
relate to obligations that are not due or delinquent; (v) security given in the
ordinary course of business to any public utility, Governmental Authority or to
any statutory or public authority in connection with the Transferred Assets; and
(vi) any Liens described on Schedule 6.6;
"Person" shall mean any individual, firm, corporation, partnership,
limited liability company, trust, joint venture, Governmental Authority or other
entity, and shall include any successor (by merger or otherwise) of such entity;
"Plan" shall have the meaning set forth in Section 4.2(e);
"Pre-Closing Tax Period" shall have the meaning set forth in Section
3.2 ;
"Public Filings" shall mean public filings disclosed pursuant to the
Securities Act of 1933, as amended, or the Securities Exchange Act of 1934, as
amended, including without limitation any filings made pursuant to Form 6-K and
shall also mean public filings in final form made pursuant to the Irish stock
exchange requirements or applicable Irish law;
"Purchase Price" shall have the meaning specified in Section 1.3;
198523
|
IBM
As referenced in this Asset Purchase Agreement:
ibm – Riverdeep
Group plc, an Irish corporation ("Buyer"), and Edmark Corporation , a Washington
corporation ("Seller"); and IBM for limited purposes as indicated herein.
W I T N E S S E
ibm – the
terms and conditions hereinafter set forth; and
WHEREAS, Buyer shall issue and sell to IBM American Depository
Shares ("ADSs"), subject to the terms and conditions hereinafter set forth;
NOW,
ibm – meaning set forth in Section 3.1;
"Confidentiality Agreement" shall mean the Agreement between IBM and
Riverdeep Group plc, dated May 17, 2000;
"Date of Execution" shall mean the
"ibm – HSR Act" shall mean the Hart-Scott-Rodino Antitrust Improvements
Act of 1976, as amended;
"IBM " shall mean International Business Machines Corporation, a New
York corporation;
"Intellectual Property Agreement" shall
international business machines – mean the Hart-Scott-Rodino Antitrust Improvements
Act of 1976, as amended;
"IBM" shall mean International Business Machines Corporation, a New
York corporation;
"Intellectual Property Agreement" shall mean the agreement so
entitled
dt 3416
;
Dewey Ballantine
As referenced in this Asset Purchase Agreement:
dewey ballantine – 2
Ireland
Attention: Barry O'Callaghan
Telecopy: 353-1-670-7627
with a copy to:
Dewey Ballantine LLP
1 Undershaft
London EC3A 8LP
England
Attention: Douglas L. Getter, Esq.
Telecopy: 44-
dt 6015
;
| Riverdeep Group plc;
Edmark Corporation
|
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Full Doc
| 2000 |
Asset Transfer Agreement
Asset Transfer Agreement (46K)
Doc #1079968: Click preview link for longer preview.
MCDATA HOLDINGS CORPORATION,
MCDATA CORPORATION
AND
EMC CORPORATION
OCTOBER 1, 1997
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<S> <C>
1. . . .
1079968
|
IBM
As referenced in this Asset Transfer Agreement:
International Business Machines Corp – the tangible and intangible assets
and related rights and interests of Transferor, except for (i) a majority of the
ESCON business, including the currently exclusive manufacturing and marketing
contracts with International Business Machines Corp oration ("IBM") and Compagnie
IBM France ("IBM-FRANCE") for existing ESCON products or follow on ESCON
products (such business, the "ESCON BUSINESS" and such contracts, the "ESCON
CONTRACTS"), (ii) inventory
<
_____________
IBM Corp. – on Schedule 1.1(f) hereto;
(g) All contracts, agreements and leases, other than the ESCON
Contracts;
(h) All of the customer, vendor and supplier lists of Transferor,
other than IBM Corp. and IBM France;
(i) Copies of all books, records and files that are necessary or
appropriate for the conduct of Transferee's business subsequent to the Closing
Date, including,
_____________
dt 1360793
| |
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| 2005 |
Bylaws
Bylaws (56K)
Doc #1183518: Click preview link for longer preview.
BY-LAWS
of
INTERNATIONAL BUSINESS MACHINES CORPORATION
Adopted April 29, 1958
As Amended Through
September 26, 2005
1183518
| | |
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| 2005 |
Bylaws
Bylaws (56K)
Doc #1183760: Click preview link for longer preview.
BY-LAWS
of
INTERNATIONAL BUSINESS MACHINES CORPORATION
Adopted April 29, 1958
As Amended Through
April 26, 2005
1183760
| | |
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Full Doc
| 2005 |
Bylaws
Bylaws (56K)
Doc #1183802: Click preview link for longer preview.
BY-LAWS
of
INTERNATIONAL BUSINESS MACHINES CORPORATION
Adopted April 29, 1958
As Amended Through
January 1, 2005
1183802
| | |
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Full Doc
| 2007 |
Bylaws
Bylaws (56K)
Doc #2870242: Click preview link for longer preview.
BY-LAWS
of
INTERNATIONAL BUSINESS MACHINES CORPORATION
Adopted April 29, 1958
As Amended Through
April 24, 2007
TABLE OF CONTENTS
PAGE
ARTICLE I
Definitions
1
ARTICLE II
MEETINGS OF . . .
2870242
| | |
Preview
Full Doc
| 2007 |
Bylaws
Bylaws (55K)
Doc #2970178: Click preview link for longer preview.
BY-LAWS
of
INTERNATIONAL BUSINESS MACHINES CORPORATION
Adopted April 29, 1958
As Amended Through
July 31, 2007
TABLE OF CONTENTS
PAGE
ARTICLE I
Definitions
1
ARTICLE II
MEETINGS OF STOCKHOLDERS
. . .
2970178
| | |