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 | 2003 |
MFA Mortgage Investments, Inc. Prices $62.1 Million Equity Offering
MFA Mortgage Investments, Inc. Prices $62.1 Million Equity Offering (3K)
Doc #260753: Click preview link for longer preview.
PRESS RELEASE
FOR IMMEDIATE RELEASE
April 30, 2003
NEW YORK METRO
CONTACT: Teresa Covello
NYSE: MFA
(212) 207-6400
www.mfa-reit.com
MFA MORTGAGE INVESTMENTS, INC.
PRICES $62.1 MILLION EQUITY OFFERING
(New York)April 30, 2003MFA Mortgage Investments, Inc. (NYSE: MFA) announced today that it priced a public offering of 6,750,000 shares of its common stock at a public offering price per share of $9.20. The lead underwriter was UBS Warburg LLC and the co-managers were Friedman Billings Ramsey & Co., Inc. and RBC Capital Markets Inc.
The net proceeds to the Company (after deducting estimated expenses) are expected to be approximately $58.4 million. The Company has granted the underwriters an option, exercisable for 30 days, to purchase up to 1,012,500 additional shares of common stock to cover over-allotments.
260753
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UBS Warburg
As referenced in this MFA Mortgage Investments, Inc. Prices $62.1 Million Equity Offering:
UBS Warburg LLC – of 6,750,000 shares of its common stock at a public offering price per share of $9.20. The lead underwriter was UBS Warburg LLC and the co-managers were Friedman Billings Ramsey & Co., Inc. and RBC Capital Markets Inc.
The net proceeds to the Company (after
_____________
UBS Warburg LLC – laws of such state or jurisdiction. A copy of the Prospectus relating to this offering may be obtained from Ms. Gayle Hawkins at UBS Warburg LLC : (212) 713-8802, 1285 Avenue of the Americas, 9th Floor, New York, NY 10019.
2
_____________
dt 142381
;
MFA Mortgage
As referenced in this MFA Mortgage Investments, Inc. Prices $62.1 Million Equity Offering:
MFA
MORTGAGE INVESTMENTS, –
EX-99.1 4 a2109984zex-99_1.htm EXHIBIT 99.1
Exhibit 99.1
MFA
MORTGAGE INVESTMENTS, INC.
350 Park Avenue
NEW YORK, NEW YORK 10022
TELEPHONE (212) 207-6400
[MFA MORTGAGE INVESTMENTS, INC. LOGO]
PRESS RELEASE
FOR IMMEDIATE RELEASE
_____________
[MFA MORTGAGE INVESTMENTS, – htm EXHIBIT 99.1
Exhibit 99.1
MFA
MORTGAGE INVESTMENTS,INC.
350 Park Avenue
NEW YORK, NEW YORK 10022
TELEPHONE (212) 207-6400
[MFA MORTGAGE INVESTMENTS, INC. LOGO]
PRESS RELEASE
FOR IMMEDIATE RELEASE
April 30, 2003
NEW YORK METRO
CONTACT: Teresa Covello
NYSE: MFA
(212) 207-6400
www.
_____________
MFA MORTGAGE INVESTMENTS, – PRESS RELEASE
FOR IMMEDIATE RELEASE
April 30, 2003
NEW YORK METRO
CONTACT: Teresa Covello
NYSE: MFA
(212) 207-6400
www.mfa-reit.com
MFA MORTGAGE INVESTMENTS, INC.
PRICES $62.1 MILLION EQUITY OFFERING
(New York)April 30, 2003MFA Mortgage Investments, Inc. (NYSE: MFA) announced today that it priced
_____________
MFA Mortgage Investments, – optimistic about achieving strong results in 2003 and we look forward to using the new equity capital to fund continued growth in assets.
MFA Mortgage Investments, Inc. is a real estate investment trust (REIT) that invests on a leveraged basis in a portfolio of high-quality adjustable-rate
_____________
dt 134490
;
| Teresa Covello
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| 2002 |
364-Day Credit Agreement
364-Day Credit Agreement (250K)
Doc #397655: Click preview link for longer preview.
364-DAY CREDIT AGREEMENT
Dated as of April 1, 2002
Among
TEXTRON INC.,
THE BANKS LISTED HEREIN,
JPMORGAN CHASE BANK,
as Administrative Agent
AND
BANK OF AMERICA, N.A.
CITIBANK, N.A.
DEUTSCHE BANK AG NEW YORK BRANCH
and
UBS WARBURG LLC,
as Co-Syndication Agents
J.P. MORGAN SECURITIES INC.,
Arranger
TABLE OF CONTENTS
Article 1
Definitions and Accounting Terms
Section 1.01. Definitions 1
Section 1.02. Accounting Terms And Determinations 15
Section 1.03. Currency Equivalents . . .
397655
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UBS Warburg
As referenced in this 364-Day Credit Agreement:
UBS WARBURG LLC – 2002
Among
TEXTRON INC.,
THE BANKS LISTED HEREIN,
JPMORGAN CHASE BANK,
as Administrative Agent
AND
BANK OF AMERICA, N.A.
CITIBANK, N.A.
DEUTSCHE BANK AG NEW YORK BRANCH
and
UBS WARBURG LLC ,
as Co-Syndication Agents
J.P. MORGAN SECURITIES INC.,
Arranger
TABLE OF CONTENTS
Article 1
Definitions and Accounting Terms
Section 1.01. Definitions 1
Section 1.02. Accounting Terms
_____________
UBS WARBURG LLC – Agent for the Banks (together with its successors in such capacity, the "Administrative Agent") and BANK OF AMERICA, N.A., CITIBANK, N.A., DEUTSCHE BANK AG NEW YORK BRANCH and UBS WARBURG LLC , as Co-Syndication Agents for the Banks (together with their successors in such capacity, the "Co-Syndication Agents").
W I T N E S S E T H
WHEREAS,
_____________
UBS Warburg LLC – Currency pursuant to Sections 2.12(m) and 7.11.
"Reference Banks" means JPMorgan Chase, Bank of America, N.A., Citibank, N.A., Deutsche Bank AG New York Branch and UBS Warburg LLC .
"Regulation D" means Regulation D of the Board as from time to time in effect and any successor to all or a portion thereof establishing reserve requirements.
"Reportable Event"
_____________
UBS Warburg LLC – a Bank hereunder. With respect to its participation in the Loans, each of JPMorgan Chase, Bank of America, N.A., Citibank, N.A., Deutsche Bank AG New York Branch and UBS Warburg LLC shall have the same rights and powers hereunder as any other Bank and may exercise the same as though it were not performing the duties and functions delegated to
_____________
UBS Warburg LLC – clearly otherwise indicates, include the Agents in their respective individual capacity. Each of JPMorgan Chase, Bank of America, N.A., Citibank, N.A., Deutsche Bank AG New York Branch and UBS Warburg LLC and their respective Affiliates may accept deposits from, lend money to and generally engage in any kind of banking, trust, financial advisory or other business with the Company or
_____________
dt 1052225
;
Citibank
As referenced in this 364-Day Credit Agreement:
CITIBANK, N.A. – 5
364-DAY CREDIT AGREEMENT
Dated as of April 1, 2002
Among
TEXTRON INC.,
THE BANKS LISTED HEREIN,
JPMORGAN CHASE BANK,
as Administrative Agent
AND
BANK OF AMERICA, N.A.
CITIBANK, N.A.
DEUTSCHE BANK AG NEW YORK BRANCH
and
UBS WARBURG LLC,
as Co-Syndication Agents
J.P. MORGAN SECURITIES INC.,
Arranger
TABLE OF CONTENTS
Article 1
Definitions and Accounting Terms
_____________
CITIBANK, N.A. – Bank" and collectively the "Banks"), JPMORGAN CHASE BANK, as Administrative Agent for the Banks (together with its successors in such capacity, the "Administrative Agent") and BANK OF AMERICA, N.A., CITIBANK, N.A. , DEUTSCHE BANK AG NEW YORK BRANCH and UBS WARBURG LLC, as Co-Syndication Agents for the Banks (together with their successors in such capacity, the "Co-Syndication Agents").
W
_____________
Citibank, N.A. – in an Alternative Currency into Dollars or any other Alternative Currency pursuant to Sections 2.12(m) and 7.11.
"Reference Banks" means JPMorgan Chase, Bank of America, N.A., Citibank, N.A. , Deutsche Bank AG New York Branch and UBS Warburg LLC.
"Regulation D" means Regulation D of the Board as from time to time in effect and any successor to
_____________
Citibank, N.A. – obligations upon, any Agent in its respective individual capacity as a Bank hereunder. With respect to its participation in the Loans, each of JPMorgan Chase, Bank of America, N.A., Citibank, N.A. , Deutsche Bank AG New York Branch and UBS Warburg LLC shall have the same rights and powers hereunder as any other Bank and may exercise the same as though
_____________
Citibank, N.A. – or "Banks" or any similar term shall, unless the context clearly otherwise indicates, include the Agents in their respective individual capacity. Each of JPMorgan Chase, Bank of America, N.A., Citibank, N.A. , Deutsche Bank AG New York Branch and UBS Warburg LLC and their respective Affiliates may accept deposits from, lend money to and generally engage in any kind of banking,
_____________
dt 996484
;
McGraw-Hill Companies
As referenced in this 364-Day Credit Agreement:
McGraw-Hill Companies, Inc – I, Level II, Level III, Level IV, Level V or Level VI applies at any date.
"S&P" means Standard & Poor's Ratings Services, a division of The McGraw-Hill Companies, Inc .
"Utilization" means, at any date, the percentage equivalent of a fraction (i) the numerator of which is the aggregate principal amount of all Loans outstanding denominated in Dollars together
_____________
dt 1008177
;
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Textron
As referenced in this 364-Day Credit Agreement:
TEXTRON INC –
364
EX-10.5 7 tenfive.htm EXHIBIT 10.5
Exhibit 10.5
364-DAY CREDIT AGREEMENT
Dated as of April 1, 2002
Among
TEXTRON INC .,
THE BANKS LISTED HEREIN,
JPMORGAN CHASE BANK,
as Administrative Agent
AND
BANK OF AMERICA, N.A.
CITIBANK, N.A.
DEUTSCHE BANK AG NEW YORK BRANCH
and
UBS WARBURG LLC,
_____________
TEXTRON INC – Transfer Supplement
Exhibit G - Form of Loan Assumption Agreement
Exhibit H - Form of Extension Agreement
364-DAY CREDIT AGREEMENT
364-DAY CREDIT AGREEMENT, dated as of April 1, 2002, among TEXTRON INC ., a Delaware corporation (together with its successors, the "Company"), the BANKS signatory hereto (each a "Bank" and collectively the "Banks"), JPMORGAN CHASE BANK, as Administrative Agent for the Banks (
_____________
TEXTRON INC – as the case may be, against such loss.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first above written.
Company
TEXTRON INC .
By:
/s/ Alan Passante
Title:
Assistant Treasurer
Notice Address:
Textron Inc.
40 Westminster Street
Providence, RI 02903
Attention: Treasurer
Telephone No.
Telecopy No.
with a copy to:
Textron Inc.
_____________
Textron Inc – the parties hereto have caused this Agreement to be duly executed as of the date first above written.
Company
TEXTRON INC.
By:
/s/ Alan Passante
Title:
Assistant Treasurer
Notice Address:
Textron Inc .
40 Westminster Street
Providence, RI 02903
Attention: Treasurer
Telephone No.
Telecopy No.
with a copy to:
Textron Inc.
40 Westminster Street
Providence, RI 02903
Attention: General Counsel
Commitments
$50,
_____________
Textron Inc – Company
TEXTRON INC.
By:
/s/ Alan Passante
Title:
Assistant Treasurer
Notice Address:
Textron Inc.
40 Westminster Street
Providence, RI 02903
Attention: Treasurer
Telephone No.
Telecopy No.
with a copy to:
Textron Inc .
40 Westminster Street
Providence, RI 02903
Attention: General Counsel
Commitments
$50,000,000.00
Administrative Agent
JPMORGAN CHASE BANK
By:
/s/ Randolph E. Cates
Title:
Vice President
$44,583,
_____________
dt 1363099
;
 BofA
As referenced in this 364-Day Credit Agreement:
BANK OF AMERICA, N.A. – EXHIBIT 10.5
Exhibit 10.5
364-DAY CREDIT AGREEMENT
Dated as of April 1, 2002
Among
TEXTRON INC.,
THE BANKS LISTED HEREIN,
JPMORGAN CHASE BANK,
as Administrative Agent
AND
BANK OF AMERICA, N.A.
CITIBANK, N.A.
DEUTSCHE BANK AG NEW YORK BRANCH
and
UBS WARBURG LLC,
as Co-Syndication Agents
J.P. MORGAN SECURITIES INC.,
Arranger
TABLE OF CONTENTS
Article 1
Definitions
_____________
BANK OF AMERICA, N.A. – BANKS signatory hereto (each a "Bank" and collectively the "Banks"), JPMORGAN CHASE BANK, as Administrative Agent for the Banks (together with its successors in such capacity, the "Administrative Agent") and BANK OF AMERICA, N.A. , CITIBANK, N.A., DEUTSCHE BANK AG NEW YORK BRANCH and UBS WARBURG LLC, as Co-Syndication Agents for the Banks (together with their successors in such capacity, the "Co-
_____________
Bank of America, N.A. – to redenomination of any Loan in an Alternative Currency into Dollars or any other Alternative Currency pursuant to Sections 2.12(m) and 7.11.
"Reference Banks" means JPMorgan Chase, Bank of America, N.A. , Citibank, N.A., Deutsche Bank AG New York Branch and UBS Warburg LLC.
"Regulation D" means Regulation D of the Board as from time to time in effect and
_____________
Bank of America, N.A. – or impose any duties or obligations upon, any Agent in its respective individual capacity as a Bank hereunder. With respect to its participation in the Loans, each of JPMorgan Chase, Bank of America, N.A. , Citibank, N.A., Deutsche Bank AG New York Branch and UBS Warburg LLC shall have the same rights and powers hereunder as any other Bank and may exercise the
_____________
Bank of America, N.A. – hereunder, and the term "Bank" or "Banks" or any similar term shall, unless the context clearly otherwise indicates, include the Agents in their respective individual capacity. Each of JPMorgan Chase, Bank of America, N.A. , Citibank, N.A., Deutsche Bank AG New York Branch and UBS Warburg LLC and their respective Affiliates may accept deposits from, lend money to and generally engage in any
_____________
dt 1032872
;
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| 2003 |
Additional Compensation Agreement
Additional Compensation Agreement (13K)
Doc #1904072: Click preview link for longer preview.
ADDITIONAL COMPENSATION AGREEMENT
March [_], 2003
PIMCO Advisors Fund Management LLC
1345 Avenue of the Americas
New York, NY 10105
Ladies and Gentlemen:
Reference is made to the Underwriting Agreement dated the date
hereof (the "Underwriting Agreement"), by and among Nicholas-Applegate
Convertible & Income Fund, a closed-end management investment company (the
"Fund"), PIMCO Advisors Fund Management LLC (the "Investment Manager"), UBS
Warburg LLC ( . . .
1904072
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UBS Warburg
As referenced in this Additional Compensation Agreement:
UBS
Warburg LLC – the date
hereof (the "Underwriting Agreement"), by and among Nicholas-Applegate
Convertible & Income Fund, a closed-end management investment company (the
"Fund"), PIMCO Advisors Fund Management LLC (the "Investment Manager"), UBS
Warburg LLC ("UBS Warburg") and each of the respective Underwriters named
therein, with respect to the issue and sale of the Fund's common shares of
beneficial interest, par value $0.
_____________
dt 1628155
;
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Full Doc
| 2001 |
Agreement and Plan of Merger
Agreement and Plan of Merger (253K)
Doc #239266: Click preview link for longer preview.
AGREEMENT AND PLAN OF MERGER
This Agreement and Plan of Merger (this "Agreement") is made and entered into as
of October 28, 2001, by and between EchoStar Communications Corporation, a
Nevada corporation ("EchoStar"), and Hughes Electronics Corporation, a Delaware
corporation ("Hughes").
WHEREAS, Hughes and EchoStar desire to combine the business of
EchoStar with the Hughes Business (as defined in the Implementation Agreement
(as defined below)), following the separation of Hughes from GM, pursuant to a
merger of EchoStar with and into Hughes, with Hughes as the surviving
corporation (the "Merger"), as more fully provided herein; and
WHEREAS, it is a condition to the Merger that, at the time of the
consummation of the Merger, the Hughes Recapitalization (as defined below) and
the Spin-Off (as defined below) be completed and that Hughes be an independent,
publicly owned company comprising the Hughes Business, separate from and no
longer wholly owned by GM; and
WHEREAS, subject to the terms and conditions set forth in the Stock
Purchase Agreement (the "PanAmSat Stock Purchase Agreement"), entered into by
and among Hughes, Hughes Communications Galaxy, Inc., a California corporation
and an indirect wholly owned subsidiary of Hughes ("HCG"), Hughes Communications
Satellite Services, Inc., a California corporation and an indirect wholly owned
subsidiary of Hughes ("HCSS"), and Hughes Communications, Inc. a California
corporation and an indirect wholly owned subsidiary of Hughes ("HCI"),
concurrently with the execution and delivery of this Agreement, in the form
attached to the Implementation Agreement as Exhibit A, HCI, HCG and HCSS have
agreed to sell to EchoStar, and EchoStar has agreed to purchase from HCI, HCG
and HCSS (such transaction, the "PanAmSat Stock Sale"), all of the shares of
capital stock of PanAmSat Corporation, a Delaware corporation ("PanAmSat"),
owned by HCI, HCG and HCSS, in accordance with the terms and conditions set
forth in the PanAmSat Stock Purchase Agreement; and
WHEREAS, immediately prior to the Spin-Off, Hughes shall distribute to
GM, in respect of GM's ownership interest in Hughes, the Cash Dividend (as
defined in the GM/Hughes Separation Agreement (as defined below)) and, if and to
the extent of any shortfall in funds available to Hughes to pay in full the Cash
Dividend, the Demand Note (as defined in the GM/Hughes Separation Agreement),
and in connection with such dividend the denominator (the "Denominator") of the
fraction described in Article Fourth, Division I, Section (a)(4) of the Amended
and Restated Certificate of Incorporation of GM, as amended (the "GM Certificate
of Incorporation"), will be reduced as contemplated by the GM/Hughes Separation
Agreement (the "Hughes Recapitalization"); and
WHEREAS, at any time after the date of this Agreement and prior to the
date that is six (6) months after the Spin-Off Effective Time (as defined in the
Implementation Agreement), GM may, pursuant to one or more transactions, issue
shares of GM Class H Common Stock or distribute shares of Class C common stock
of Hughes, par value $0.01 per share (the "Hughes Class C Common Stock") (any
such shares of GM Class H Common Stock or Hughes Class C Common Stock
distributed by GM, the "Exchange Shares"), up to an aggregate of one hundred
million (100,000,000) Exchange Shares (subject to reduction pursuant to the
provisions of the GM/Hughes Separation Agreement) and subject to increase by up
to an additional fifty million (50,000,000) Exchange Shares (but in no event
shall such increase exceed
{PAGE}
One Billion Dollars ($1,000,000,000.00) in accordance with Section 5.1(h) of the
Implementation Agreement to holders of certain outstanding debt obligations of
GM ("Exchange Debt") in exchange for such Exchange Debt (any such exchange, a
"GM Debt/Equity Exchange"); and
WHEREAS, immediately following the Hughes Recapitalization, (i) GM,
pursuant to provisions to be implemented by means of an amendment of the GM
Certificate of Incorporation, shall distribute to the holders of record of GM
Class H Common Stock shares of Hughes Class C Common Stock in exchange for all
of the outstanding shares of GM Class H Common Stock in accordance with the GM
Certificate of Incorporation, as amended in connection with the Hughes
Recapitalization, and the GM Class H Common Stock will be redeemed and canceled,
(ii) in connection therewith, GM shall distribute to holders of record, if any,
of GM's Series H 6.25% Automatically Convertible Preference Stock, par value
$0.10 per share (the "GM Series H Preference Stock"), shares of Preference
Stock, par value $0.10 per share, of Hughes (the "Hughes Preference Stock"), in
exchange for all of the outstanding shares of GM Series H Preference Stock in
accordance with the Certificate of Designations relating to the GM Series H
Preference Stock and the GM Series H Preference Stock will be canceled, and
(iii) GM shall, subject to Section 5.2(h) of the Implementation Agreement,
either retain, or, immediately following the redemption of shares of GM Class H
Common Stock in exchange for shares of Hughes Class C Common Stock as described
in clause (i) above, distribute by means of a dividend to the holders of record
of GM's Common Stock, par value $1-2/3 per share (the "GM $1-2/3 Common Stock"),
in respect of all outstanding shares of GM $1-2/3 Common Stock, the remaining
shares of Hughes Class C Common Stock held by GM and not previously distributed
to the holders of record of GM Class H Common Stock, in each case as provided in
the Implementation Agreement (the transactions described in clauses (i) through
(iii) above are referred to herein collectively as the "Spin-Off"); and
WHEREAS, consummation of the Hughes Recapitalization and the Spin-Off
is conditioned on, among other things, the approval by the holders of a majority
of the outstanding shares of GM $1-2/3 Common Stock and GM Class H Common Stock,
each voting as a separate class and both voting together as a single class based
on their respective per share voting power, of the Implementation Agreement, the
GM/Hughes Separation Agreement and the transactions contemplated thereby,
including the GM Charter Amendment (as defined in the Implementation Agreement),
the Hughes Recapitalization and the Spin-Off (collectively, the "GM
Transactions"); and
WHEREAS, a certain lender has delivered a commitment letter to Hughes
and EchoStar pursuant to which it has committed to lend to Hughes (prior to the
Merger Effective Time) and the Surviving Corporation (as defined below)
(immediately after the Merger Effective Time) up to Five Billion Five Hundred
Twenty Five Million Dollars ($5,525,000,000.00) for the purpose of financing the
Recapitalization Amount (as defined in the GM/Hughes Separation Agreement),
refinancing certain outstanding indebtedness in connection with the consummation
of the Merger and financing the combined business of Hughes and EchoStar
following the Merger (the "Merger Financing") on the terms set forth in the
commitment letter attached to the Implementation Agreement as Exhibit B, or on
the terms set forth in any similar commitment or financing letter or other
agreement replacing, and having substantially the same effect as, the commitment
letter attached to the Implementation Agreement and reasonably acceptable to
Hughes (in either case, the "Merger Commitment Letter"); and
WHEREAS, GM, Hughes, EchoStar and The Samburu Warrior Revocable Trust,
a trust to which Charles W. Ergen is the sole trustee (the "EchoStar Controlling
239266
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UBS Warburg
As referenced in this Agreement and Plan of Merger:
UBS Warburg LLC – Transaction Agreements.
Section 3.16. Brokerage and Finder's and Other Fees; Opinion of
Financial Advisor.
(a) Except for EchoStar's obligations to UBS Warburg LLC and Deutsche
Banc Alex. Brown Inc., neither EchoStar nor any of its affiliates, stockholders,
directors, officers or employees has incurred or will
_____________
dt 106468
;
Citibank
As referenced in this Agreement and Plan of Merger:
Citibank, N.A. – a rate
equal to LIBO plus three percent. For purposes of this Agreement, LIBO shall
mean the current LIBO rate as quoted by Citibank, N.A. , adjusted for reserve
requirements, if any, and subject to customary change of circumstance
provisions, for interest periods of six months.
Section 7.
_____________
dt 146572
;
|
Hughes
As referenced in this Agreement and Plan of Merger:
Hughes Communications Galaxy, Inc – wholly owned by GM; and
WHEREAS, subject to the terms and conditions set forth in the Stock
Purchase Agreement (the "PanAmSat Stock Purchase Agreement"), entered into by
and among Hughes, Hughes Communications Galaxy, Inc ., a California corporation
and an indirect wholly owned subsidiary of Hughes ("HCG"), Hughes Communications
Satellite Services, Inc., a California corporation and an indirect wholly owned
subsidiary of Hughes ("HCSS"),
_____________
dt 1337338
;
Hughes Commun.
As referenced in this Agreement and Plan of Merger:
Hughes Communications – to the terms and conditions set forth in the Stock
Purchase Agreement (the "PanAmSat Stock Purchase Agreement"), entered into by
and among Hughes, Hughes Communications Galaxy, Inc., a California corporation
and an indirect wholly owned subsidiary of Hughes ("HCG"), Hughes Communications
Satellite Services, Inc., a California corporation and
_____________
Hughes Communications
– Agreement"), entered into by
and among Hughes, Hughes Communications Galaxy, Inc., a California corporation
and an indirect wholly owned subsidiary of Hughes ("HCG"), Hughes Communications
Satellite Services, Inc., a California corporation and an indirect wholly owned
subsidiary of Hughes ("HCSS"), and Hughes Communications, Inc. a California
corporation
_____________
Hughes Communications, – owned subsidiary of Hughes ("HCG"), Hughes Communications
Satellite Services, Inc., a California corporation and an indirect wholly owned
subsidiary of Hughes ("HCSS"), and Hughes Communications, Inc. a California
corporation and an indirect wholly owned subsidiary of Hughes ("HCI"),
concurrently with the execution and delivery of this Agreement,
_____________
dt 213770
;
More... |
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Full Doc
| 2004 |
Agreement and Plan of Merger
Agreement and Plan of Merger (201K)
Doc #277370: Click preview link for longer preview.
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER, dated as of December 24, 2003 (this Agreement), by and among INVITROGEN CORPORATION, a Delaware corporation (Parent), BASEBALL ACQUISITION CORPORATION, a Delaware corporation and wholly owned subsidiary of Parent (Purchaser), and BIORELIANCE CORPORATION, a Delaware corporation (the Company).
RECITALS
WHEREAS, the respective Boards of Directors of the Company, Purchaser and Parent deem it advisable and in the best interests of their respective corporations and stockholders to enter into and consummate this Agreement, providing for Purchaser to acquire the Company upon the terms and subject to the conditions set forth herein;
WHEREAS, in furtherance thereof, it is proposed that Purchaser will commence a cash tender offer (the Offer) to acquire all shares (the Company Shares) of the issued and outstanding common stock, $.01 par value per share, of the Company (the Company Common Stock), for $48.00 per share of Company Common Stock or such higher price as may be paid in the Offer (the Per Share Amount), in cash without interest, upon the terms and subject to the conditions set forth in this Agreement and the Offer Documents (as defined in Section 1.1(c));
WHEREAS, also in furtherance of such acquisition, the Boards of Directors of Parent, Purchaser and the Company have each approved the merger of Purchaser with and into the Company (the Merger) following consummation of the Offer in accordance with the General Corporation Law of the State of Delaware (the DGCL) and upon the terms and subject to the conditions set forth herein;
WHEREAS, the Board of Directors of the Company (the Board of Directors) has approved this Agreement and has determined that the consideration to be paid for each Company Share in the Offer and the Merger is fair to the holders of such Company Shares and to recommend that the holders of such Company Shares accept the Offer and approve this Agreement and the transactions contemplated hereby;
WHEREAS, as a condition to and an inducement to Parents and Purchasers willingness to enter into this Agreement, concurrently with the execution and delivery of this Agreement and incurring the obligations set forth herein, with the approval of the Board of Directors, Parent and Purchaser have entered into a voting and tender agreement (the Voting and Tender Agreement) with Sidney R. Knafel and certain related stockholders of the Company (the Principal Stockholders) under which the Principal Stockholders have, among other things, agreed to tender the Company Shares held by them in the Offer and to grant Parent and Purchaser a proxy with respect to the voting of such Company Shares, all upon the terms and subject to the conditions set forth in the Voting and Tender Agreement; and
WHEREAS, the parties hereto desire to make certain representations, warranties, covenants and agreements in connection with the transactions contemplated by this Agreement.
NOW, THEREFORE, in consideration of the foregoing, and of the representations,
1
Table of Contents
warranties, covenants and agreements contained herein, the parties agree as follows:
ARTICLE 1
THE TENDER OFFER
1.1 The Offer.
(a) Provided that this Agreement shall not have been terminated in accordance with Section 8.1 hereof and none of the events set forth in Annex I hereto shall have occurred and be existing, Purchaser shall, as promptly as reasonably practicable following the execution of this Agreement (but in any event no later than ten business days after the execution and delivery of this Agreement), commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended (the Exchange Act)) the Offer. The obligation of Purchaser to accept for payment and to pay for any Company Shares validly tendered shall be subject to the satisfaction of those conditions set forth in Annex I. Purchaser expressly reserves the right from time to time, subject to Sections 1.1(b) and (c) hereof, to waive any such condition, to increase the Per Share Amount, or to make any other changes in the terms and conditions of the Offer. The Per Share Amount shall be net to seller in cash, without interest, subject to reduction for any applicable withholding or stock transfer taxes payable by Seller. The Company agrees that no Company Shares held by the Company or any of its subsidiaries (as defined in Section 9.7(j)) will be tendered pursuant to the Offer.
(b) Without the prior written consent of the Company, neither Parent nor Purchaser shall decrease the Per Share Amount or change the form of consideration payable in the Offer, decrease the number of Company Shares sought, amend or waive satisfaction of the Minimum Condition (as defined in Annex I), extend the Offer (except as set forth in Section 1.1(d)) or impose additional conditions to the Offer or amend any other term of the Offer in any manner adverse to the holders of Company Shares.
(c) The Offer shall be made by means of an offer to purchase (the Offer to Purchase) having only the conditions set forth in Annex I hereto. As soon as practicable on the date the Offer is commenced, Parent and Purchaser shall file with the Securities and Exchange Commission (the SEC) a Tender Offer Statement on Schedule TO (together with all amendments and supplements thereto, the Schedule TO) with respect to the Offer that will comply in all material respects with the provisions of all applicable federal securities laws, and will contain (including as an exhibit) or incorporate by reference the Offer to Purchase and forms of the related letter of transmittal and summary advertisement, if any (which documents, together with any supplements or amendments thereto, and any other SEC schedule or form which is filed in connection with the Offer and related transactions, are referred to collectively herein as the Offer Documents). Parent and Purchaser shall cause the Offer Documents to be disseminated to holders of Company Shares as required by applicable federal securities laws. Parent and Purchaser agree promptly to correct the Schedule TO or the Offer Documents if and to the extent that any shall have become false or misleading in any material respect (and the Company, with respect to written information supplied by it specifically for use in the Schedule TO or the Offer Documents, shall promptly notify Parent of any required corrections of such information and shall cooperate with Parent and Purchaser with respect to
277370
|
UBS Warburg
As referenced in this Agreement and Plan of Merger:
UBS Warburg LLC – Parent nor Purchaser owns any shares of capital stock of the Company.
5.6 Brokers. No broker, finder or financial advisor, other than UBS Warburg LLC (the fees and expenses of which will be paid by Parent) is entitled to any brokerage, finders or other similar fee or
_____________
dt 210835
;
Invitrogen
As referenced in this Agreement and Plan of Merger:
INVITROGEN CORP – EX-2.8 3 dex28.htm AGREEMENT AND PLAN OF MERGER
Table of Contents
Exhibit 2.8
AGREEMENT AND PLAN OF MERGER
among
INVITROGEN CORP ORATION
BASEBALL ACQUISITION CORPORATION
and
BIORELIANCE CORPORATION
Dated as of December 24, 2003
Table of Contents
TABLE OF CONTENTS
ARTICLE 1 THE TENDER
_____________
INVITROGEN CORP – of Contents
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER, dated as of December 24, 2003 (this Agreement), by and among INVITROGEN CORP ORATION, a Delaware corporation (Parent), BASEBALL ACQUISITION CORPORATION, a Delaware corporation and wholly owned subsidiary of Parent (Purchaser), and BIORELIANCE CORPORATION, a Delaware
_____________
Invitrogen Corp – or at such other address or facsimile number for a party as shall be specified by like notice):
If to Parent or Purchaser:
Invitrogen Corp oration
1600 Faraday Avenue
Carlsbad, California 92008
Attn: John D. Thompson
Senior Vice President-Corporate Development
Phone: 760-603-7200
Facsimile: 760-603-
_____________
INVITROGEN CORP – have executed this Agreement and caused the same to be duly delivered on their behalf on the day and year first written above.
INVITROGEN CORP ORATION
By:
/s/ Gregory T. Lucier
Name: Gregory T. Lucier
Title: Chief Executive Officer
BASEBALL ACQUISITION CORPORATION
By:
/s/ C. Eric Winzer
Name:
_____________
dt 195870
;
|
 Fried Frank
As referenced in this Agreement and Plan of Merger:
Fried, Frank – Subject to the terms and conditions of this Agreement, the closing of the Merger (the Closing) shall take place at the offices of Fried, Frank , Harris, Shriver & Jacobson, 1001 Pennsylvania Avenue, N.W., Suite 800, Washington D.C., at 10:00 a.m., local time, as soon
_____________
Fried, Frank – Maryland 20850
Attn: Capers W. McDonald
President and Chief Executive Officer
Phone: (301) 610-2600
Facsimile: (301) 610-2592
with a copy to:
Fried, Frank , Harris, Shriver & Jacobson
1001 Pennsylvania Avenue, N.W.
Suite 800
Washington, D.C. 20004
Attn: Andrew P. Varney, Esq.
Phone: 202-639-
_____________
dt 199770
;
Baseball Acquisition Corporation
|
Preview
Full Doc
| 2001 |
Agreement and Plan of Merger
Agreement and Plan of Merger (260K)
Doc #288266: Click preview link for longer preview.
AGREEMENT AND PLAN OF MERGER
BY AND BETWEEN
ECHOSTAR COMMUNICATIONS CORPORATION
AND
HUGHES ELECTRONICS CORPORATION
DATED AS OF OCTOBER 28, 2001
{PAGE}
TABLE OF CONTENTS
ARTICLE 1 THE MERGER..........................................................5
Section 1.1. The Merger..................................................5
Section 1.2. Merger Effective Time; Closing..............................5
Section 1.3. Effects of the Merger.......................................5
Section 1.4. Certificate of Incorporation and By-laws....................5
Section 1.5. Surviving Corporation Board and Officers....................6
Section 1.6. Management Transition Committee.............................6
Section 1.7. Additional Actions..........................................6
ARTICLE 2 CONVERSION OF SECURITIES............................................6
Section 2.1. Conversion of Capital Stock.................................6
Section 2.2. Exchange of Certificates....................................7
Section 2.3. No Fractional Share Certificates............................9
Section 2.4. Exchange Fund Matters.......................................9
Section 2.5. Treatment of EchoStar Stock Options........................10
ARTICLE 3 REPRESENTATIONS AND WARRANTIES OF ECHOSTAR........................12
Section 3.1. Organization and Standing..................................12
Section 3.2. Subsidiaries...............................................12
Section 3.3. Corporate Power and Authority..............................13
Section 3.4. Capitalization of EchoStar.................................13
Section 3.5. Conflicts, Consents and Approvals..........................14
Section 3.6. EchoStar SEC Documents.....................................15
Section 3.7. Financial Statements; Liabilities..........................15
Section 3.8. Absence of Certain Changes.................................16
Section 3.9. Compliance with Law........................................16
Section 3.10. Litigation.................................................16
Section 3.11. Taxes......................................................17
Section 3.12. Environmental and Safety Matters...........................17
Section 3.13. Employee Benefit Plans.....................................18
Section 3.14. Intellectual Property......................................19
Section 3.15. Contracts..................................................20
Section 3.16. Brokerage and Finder's and Other Fees; Opinion
of Financial Advisor.......................................20
Section 3.17. Board and Stockholder Approval.............................20
Section 3.18. Takeover Laws..............................................21
i
{PAGE}
TABLE OF CONTENTS
(CONTINUED)
Section 3.19. Restrictive Agreements.....................................21
Section 3.20. Permits....................................................21
ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF HUGHES...........................22
Section 4.1. Organization and Standing..................................22
Section 4.2. Subsidiaries...............................................23
Section 4.3. Corporate Power and Authority..............................23
Section 4.4. Capitalization of Hughes...................................23
Section 4.5. Conflicts, Consents and Approvals..........................24
Section 4.6. Hughes SEC Documents.......................................25
Section 4.7. Financial Statements; Liabilities..........................25
Section 4.8. Absence of Certain Changes.................................26
Section 4.9. Compliance with Law........................................26
Section 4.10. Litigation.................................................26
Section 4.11. Taxes......................................................26
Section 4.12. Environmental and Safety Matters...........................27
Section 4.13. Employee Benefit Plans.....................................27
Section 4.14. Intellectual Property......................................28
Section 4.15. Contracts..................................................29
Section 4.16. Brokerage and Finder's and Other Fees;
Opinions of Financial Advisors.............................29
Section 4.17. Board and Stockholder Approval.............................30
Section 4.18. Takeover Laws..............................................30
Section 4.19. Restrictive Agreements.....................................30
Section 4.20. Permits....................................................30
Section 4.21. Indian Entities............................................31
ARTICLE 5 COVENANTS OF THE PARTIES...........................................31
Section 5.1. Mutual Covenants...........................................31
Section 5.2. Covenants of EchoStar......................................38
Section 5.3. Covenants of Hughes........................................41
ARTICLE 6 CONDITIONS.........................................................46
Section 6.1. Mutual Conditions..........................................46
Section 6.2. Conditions to Obligations of Hughes........................49
Section 6.3. Conditions to Obligations of EchoStar......................50
ARTICLE 7 TERMINATION AND AMENDMENT..........................................51
ii
{PAGE}
TABLE OF CONTENTS
(CONTINUED)
Section 7.1. Termination................................................51
Section 7.2. Effect of Termination; Fees and Expenses
upon Termination...........................................55
Section 7.3. Amendment..................................................56
Section 7.4. Extension; Waiver..........................................56
ARTICLE 8 MISCELLANEOUS......................................................56
Section 8.1. No Survival of Representations and Warranties..............56
Section 8.2. Notices....................................................56
Section 8.3. Interpretation; Absence of Presumption.....................57
Section 8.4. Knowledge..................................................58
Section 8.5. Counterparts...............................................58
Section 8.6. Entire Agreement; Severability.............................58
Section 8.7. Third Party Beneficiaries..................................58
Section 8.8. Governing Law..............................................59
288266
|
UBS Warburg
As referenced in this Agreement and Plan of Merger:
UBS Warburg LLC – Transaction Agreements.
Section 3.16. Brokerage and Finder's and Other Fees; Opinion of
Financial Advisor.
(a) Except for EchoStar's obligations to UBS Warburg LLC and Deutsche
Banc Alex. Brown Inc., neither EchoStar nor any of its affiliates, stockholders,
directors, officers or employees has incurred or will
_____________
dt 246430
;
Citibank
As referenced in this Agreement and Plan of Merger:
Citibank, N.A. – a rate
equal to LIBO plus three percent. For purposes of this Agreement, LIBO shall
mean the current LIBO rate as quoted by Citibank, N.A. , adjusted for reserve
requirements, if any, and subject to customary change of circumstance
provisions, for interest periods of six months.
Section 7.
_____________
dt 248877
;
|
Hughes
As referenced in this Agreement and Plan of Merger:
Hughes Communications Galaxy, Inc – wholly owned by GM; and
WHEREAS, subject to the terms and conditions set forth in the Stock
Purchase Agreement (the "PanAmSat Stock Purchase Agreement"), entered into by
and among Hughes, Hughes Communications Galaxy, Inc ., a California corporation
and an indirect wholly owned subsidiary of Hughes ("HCG"), Hughes Communications
Satellite Services, Inc., a California corporation and an indirect wholly owned
subsidiary of Hughes ("HCSS"),
_____________
dt 1337347
;
Hughes Commun.
As referenced in this Agreement and Plan of Merger:
Hughes Communications – to the terms and conditions set forth in the Stock
Purchase Agreement (the "PanAmSat Stock Purchase Agreement"), entered into by
and among Hughes, Hughes Communications Galaxy, Inc., a California corporation
and an indirect wholly owned subsidiary of Hughes ("HCG"), Hughes Communications
Satellite Services, Inc., a California corporation
_____________
Hughes Communications
– Agreement"), entered into by
and among Hughes, Hughes Communications Galaxy, Inc., a California corporation
and an indirect wholly owned subsidiary of Hughes ("HCG"), Hughes Communications
Satellite Services, Inc., a California corporation and an indirect wholly owned
subsidiary of Hughes ("HCSS"), and Hughes Communications, Inc. a California
corporation
_____________
Hughes Communications, – owned subsidiary of Hughes ("HCG"), Hughes Communications
Satellite Services, Inc., a California corporation and an indirect wholly owned
subsidiary of Hughes ("HCSS"), and Hughes Communications, Inc. a California
corporation and an indirect wholly owned subsidiary of Hughes ("HCI"),
concurrently with the execution and delivery of this Agreement,
_____________
dt 244397
;
More... |
Preview
Full Doc
| 2002 |
Agreement and Plan of Merger
Agreement and Plan of Merger (228K)
Doc #304235: Click preview link for longer preview.
AGREEMENT AND PLAN OF MERGER
DATED AS OF JANUARY 7, 2002
BY AND BETWEEN
DECODE GENETICS, INC.,
SAGA ACQUISITION CORP.
AND
MEDICHEM LIFE SCIENCES, INC.
================================================================================
{PAGE}
TABLE OF CONTENTS
{TABLE}
{CAPTION}
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{S} {C}
ARTICLE I CERTAIN DEFINITIONS.................................................................................. 2
ARTICLE II THE MERGER.......................................................................................... 8
2.1 The Merger.................................................................................... 8
2.2 Effective Time of the Merger.................................................................. 8
2.3 Effects of the Merger......................................................................... 9
2.4 Closing....................................................................................... 9
2.5 Certificate of Incorporation.................................................................. 9
2.6 Bylaws........................................................................................ 9
2.7 Directors and Officers........................................................................ 9
ARTICLE III CONVERSION OF SECURITIES........................................................................... 9
3.1 Exchange Ratio................................................................................ 9
3.2 Stock of Merger Sub........................................................................... 10
3.3 Stock Options................................................................................. 10
3.4 Exchange Fund................................................................................. 11
3.5 Exchange Procedures........................................................................... 11
3.6 Distributions with Respect to Unexchanged Shares.............................................. 12
3.7 No Further Ownership Rights in Company Common Stock........................................... 12
3.8 No Fractional Shares of Buyer Common Stock.................................................... 12
3.9 Termination of Exchange Fund.................................................................. 13
3.10 No Liability.................................................................................. 13
3.11 Investment of the Exchange Fund............................................................... 13
3.12 Lost Certificates............................................................................. 14
3.13 Withholding Rights............................................................................ 14
3.14 Further Assurances............................................................................ 14
3.15 Stock Transfer Books.......................................................................... 14
ARTICLE IV REPRESENTATIONS AND WARRANTIES...................................................................... 14
4.1 Representations and Warranties of the Company................................................. 14
(a) Corporate Organization............................................................... 15
(b) Capitalization....................................................................... 15
(c) Authority; No Violation.............................................................. 17
(d) Consents and Approvals............................................................... 18
(e) Financial Reports and SEC Documents.................................................. 18
(f) Absence of Undisclosed Liabilities................................................... 19
(g) Absence of Certain Changes or Events................................................. 19
(h) Legal Proceedings.................................................................... 20
(i) Compliance with Applicable Law....................................................... 20
(j) Contracts............................................................................ 20
(k) Environmental Liability.............................................................. 21
(l) Employee Benefit Plans; Labor Matters................................................ 21
{/TABLE}
i
{PAGE}
{TABLE}
{CAPTION}
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{S} {C}
(m) Intellectual Property................................................................ 24
(n) Properties........................................................................... 25
(o) Insurance............................................................................ 25
(p) FDA Matters.......................................................................... 26
(q) Taxes................................................................................ 26
(r) Reorganization under the Code........................................................ 27
(s) Form S-4; Proxy Statement/Prospectus................................................. 27
(t) Affiliate Transactions............................................................... 28
(u) Ownership of Buyer Stock............................................................. 28
(v) State Takeover Laws.................................................................. 28
(w) Opinion of Financial Advisor......................................................... 28
(x) Board Approval....................................................................... 28
(y) Brokers' Fees........................................................................ 28
(z) ALS Licensed Technology.............................................................. 28
4.2 Representations and Warranties of Buyer and Merger Sub........................................ 29
(a) Corporate Organization............................................................... 29
(b) Capitalization....................................................................... 30
(c) Authority; No Violation.............................................................. 31
(d) Consents and Approvals............................................................... 32
(e) Financial Reports and SEC Documents.................................................. 32
(f) Absence of Undisclosed Liabilities................................................... 33
(g) Absence of Certain Changes or Events................................................. 33
(h) Legal Proceedings.................................................................... 33
(i) Compliance with Applicable Law....................................................... 33
(j) Taxes................................................................................ 34
(k) Board Approval....................................................................... 34
(l) Reorganization under the Code........................................................ 34
(m) Form S-4; Proxy Statement/Prospectus................................................. 34
(n) Ownership of Company Stock........................................................... 34
ARTICLE V COVENANTS RELATING TO CONDUCT OF BUSINESS............................................................ 34
5.1 Covenants of the Company...................................................................... 34
(a) Ordinary Course...................................................................... 34
(b) Dividends; Changes in Share Capital.................................................. 35
(c) Issuance of Securities............................................................... 35
(d) Governing Documents.................................................................. 35
(e) No Acquisitions...................................................................... 36
(f) No Dispositions...................................................................... 36
(g) Investments; Indebtedness............................................................ 36
(h) Tax-Free Qualification............................................................... 36
(i) Compensation......................................................................... 36
(j) Accounting Methods; Tax Matters...................................................... 37
(k) Litigation........................................................................... 37
(l) Intellectual Property................................................................ 37
{/TABLE}
-ii-
{PAGE}
{TABLE}
{CAPTION}
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{S} {C}
(m) Company Contracts.................................................................... 37
(n) Certain Actions...................................................................... 38
(o) No Related Actions................................................................... 38
5.2 Covenants of Buyer............................................................................ 38
(a) Ordinary Course...................................................................... 38
(b) Governing Documents.................................................................. 38
(c) Tax-Free Qualification............................................................... 38
(d) Certain Actions...................................................................... 38
(e) Dividends; Changes in Share Capital.................................................. 38
(f) Accounting Methods................................................................... 38
5.3 Governmental Filings.......................................................................... 38
5.4 Control of Other Party's Business............................................................. 39
5.5 Cooperation................................................................................... 39
ARTICLE VI ADDITIONAL AGREEMENTS............................................................................... 39
6.1 Preparation of Proxy Statement; Stockholders Meetings......................................... 39
6.2 Access to Information......................................................................... 41
6.3 Reasonable Best Efforts....................................................................... 41
6.4 Acquisition Proposals......................................................................... 42
6.5 Fees and Expenses............................................................................. 44
6.6 Directors' and Officers' Indemnification and Insurance........................................ 44
6.7 Employee Benefits............................................................................. 44
6.8 Public Announcements.......................................................................... 45
6.9 Listing of Shares of Buyer Common Stock....................................................... 45
6.10 Affiliates.................................................................................... 45
6.11 Notification of Certain Matters............................................................... 45
6.12 Accountants' Letters.......................................................................... 45
6.13 Issuance of Certain Options................................................................... 46
6.14 Assignment of Licensed Technology............................................................. 46
ARTICLE VII CONDITIONS PRECEDENT............................................................................... 46
7.1 Conditions to Each Party's Obligation to Effect the Merger.................................... 46
(a) Stockholder Approval................................................................. 46
(b) No Injunctions or Restraints; Illegality............................................. 46
(c) HSR Act.............................................................................. 46
(d) Nasdaq Listing....................................................................... 47
(e) Effectiveness of the Form S-4........................................................ 47
7.2 Additional Conditions to Obligations of Buyer................................................. 47
(a) Representations and Warranties....................................................... 47
(b) Performance of Obligations of the Company............................................ 47
(c) Third Party Consents................................................................. 48
(d) Affiliate Agreements................................................................. 48
(e) Assignment Agreements................................................................ 48
7.3 Additional Conditions to Obligations of the Company........................................... 48
(a) Representations and Warranties....................................................... 48
{/TABLE}
-iii-
{PAGE}
{TABLE}
{CAPTION}
Page
----
{S} {C}
(b) Performance of Obligations of Buyer.................................................. 48
(c) Tax Opinion.......................................................................... 48
ARTICLE VIII TERMINATION AND AMENDMENT......................................................................... 48
8.1 Termination................................................................................... 48
8.2 Effect of Termination......................................................................... 50
8.3 Amendment..................................................................................... 51
8.4 Extension; Waiver............................................................................. 51
ARTICLE IX GENERAL PROVISIONS.................................................................................. 51
9.1 Non-Survival of Representations, Warranties and Agreements.................................... 51
9.2 Notices....................................................................................... 52
9.3 Interpretation................................................................................ 52
9.4 Counterparts.................................................................................. 53
9.5 Entire Agreement; No Third Party Beneficiaries................................................ 53
9.6 Governing Law................................................................................. 53
9.7 Severability.................................................................................. 53
9.8 Assignment.................................................................................... 53
9.9 Enforcement................................................................................... 53
9.10 Submission to Jurisdiction; Waivers........................................................... 54
{/TABLE}
-iv-
{PAGE}
LIST OF EXHIBITS
Exhibit Title
------- -----
Exhibit A Form of Affiliate Agreement
-v-
{PAGE}
This AGREEMENT AND PLAN OF MERGER (this "AGREEMENT"), dated as of
January 7, 2002, is by and between DECODE GENETICS, INC., a Delaware corporation
("BUYER"), SAGA ACQUISITION CORP., a Delaware corporation and a wholly-owned
subsidiary of Buyer ("MERGER SUB"), on the one hand, and MEDICHEM LIFE SCIENCES,
INC., a Delaware corporation (the "COMPANY"), on the other hand.
WHEREAS, the respective Boards of Directors of Buyer, Merger Sub and
the Company have each determined that it is in the best interest of their
respective stockholders to effect a merger of Merger Sub with and into the
Company with the Company surviving as a wholly-owned subsidiary of Buyer (the
"MERGER"), pursuant to which, among other things, all of the issued and
outstanding common stock of the Company, par value $0.01 per share ("COMPANY
COMMON STOCK"), other than Company Common Stock owned by the Company, Buyer or
their respective wholly-owned Subsidiaries, shall be converted into the right to
receive shares of common stock, par value $0.001 per share, of Buyer ("BUYER
COMMON STOCK"), all upon the terms and subject to the conditions set forth
herein;
WHEREAS, Buyer is considering merging the Company and its wholly-owned
subsidiaries with and into Buyer immediately following the Merger (the "UPSTREAM
MERGERS");
WHEREAS, the Boards of Directors of Buyer, Merger Sub and the Company
have approved and adopted this Agreement, the Merger and the other transactions
contemplated hereby (including the Stockholder Agreements, as defined below),
and each has agreed to recommend approval of the transactions contemplated
hereby by their respective stockholders;
WHEREAS, concurrently herewith and as an inducement for Buyer to enter
into this Agreement, Buyer and certain stockholders of the Company representing
approximately 63% of the voting rights of the outstanding Company Common Stock
(the "PRINCIPAL STOCKHOLDERS") are entering into agreements (the "STOCKHOLDER
AGREEMENTS") pursuant to which such Principal Stockholders have agreed, among
other things, to vote all of the shares of Company Common Stock beneficially
owned by them in favor of approval and adoption of this Agreement and the
Merger; and
WHEREAS, for federal income tax purposes, it is intended that the
Merger and the Upstream Mergers (if they occur) shall qualify as a
reorganization within the meaning of Section 368(a) of the Internal Revenue Code
of 1986, as amended, and the rules and regulations promulgated thereunder (the
"CODE").
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements contained herein and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties, intending to be legally bound hereby, agree as
follows:
{PAGE}
ARTICLE I
CERTAIN DEFINITIONS
As used in this Agreement, the following terms shall have the
respective meanings set forth below:
"ACQUISITION PROPOSAL" shall have the meaning set forth in
Section 6.4(a)(i).
"AFFILIATE" shall have the meaning ascribed to such term under
Rule 144 of the Securities Act.
"AFFILIATE AGREEMENT" shall have the meaning set forth in
Section 6.10.
"ALS" shall have the meaning set forth in Section 4.1(t).
"AGREEMENT" shall have the meaning set forth in the Preamble.
"ASSIGNMENT AGREEMENTS" shall have the meaning set forth in
Section 6.14.
"BENEFICIAL OWNERSHIP" or "BENEFICIALLY OWN" shall have the
meaning ascribed to such terms under Section 13(d) of the Exchange Act.
"BENEFIT PLAN" means, with respect to any entity, any employee
benefit plan, program, policy, practice, agreement, contract or other
arrangement providing benefits to any current or former employee,
officer or director of such entity or any beneficiary or dependent
thereof that is sponsored or maintained by such entity or to which such
entity contributes or is obligated to contribute, whether or not
written, including any employee welfare benefit plan within the meaning
of Section 3(1) of ERISA, any employee pension benefit plan within the
meaning of Section 3(2) of ERISA (whether or not such plan is subject
to ERISA), any employment or severance agreement and any bonus,
incentive, executive compensation, deferred compensation, vacation,
performance pay, loan or loan guarantee, stock purchase, stock option,
performance share, stock appreciation or other equity compensation,
severance, change of control, plant closing or fringe benefit plan,
program or policy.
"BUSINESS DAY" means any day on which banks are not required
or authorized to close in the City of New York, New York or Reykjavik,
Iceland.
"BUYER" shall have the meaning set forth in the Preamble.
"BUYER 2000 10-K" means Buyer's Annual Report on Form 10-K for
the year ended December 31, 2000, as filed with the SEC.
"BUYER 10-Q" means Buyer's Quarterly Report on Form 10-Q for
the quarter ended September 30, 2001, as filed with the SEC.
"BUYER CAPITAL STOCK" shall have the meaning set forth in
Section 4.2(b)(i)(B).
2
{PAGE}
"BUYER COMMON STOCK" shall have the meaning set forth in the
Recitals.
"BUYER DISCLOSURE SCHEDULE" shall have the meaning set forth
in Section 4.2.
"BUYER OPTION PLANS" means Buyer's 1996 Equity Incentive Plan,
as amended.
"BUYER PREFERRED STOCK" shall have the meaning set forth in
Section 4.2(b)(i)(B).
"BUYER RECOMMENDATION" shall have the meaning set forth in
Section 6.1(c).
"BUYER SEC DOCUMENTS" shall have the meaning set forth in
Section 4.2(e).
"BUYER STOCK OPTIONS" means options to purchase shares of
Buyer Common Stock granted under Buyer Option Plans.
"BUYER STOCKHOLDER APPROVAL" shall have the meaning set forth
in Section 4.2(c)(i).
"BUYER STOCKHOLDERS MEETING" shall have the meaning set forth
in Section 4.2(c)(i).
"BUYER TERMINATION FEE" means an amount in cash equal to
$2,000,000.
"CERTIFICATE OF MERGER" shall have the meaning set forth in
Section 2.2.
"CHANGE IN THE BUYER RECOMMENDATION" shall have the meaning
set forth in Section 6.1(c).
"CHANGE IN THE COMPANY RECOMMENDATION" shall have the meaning
set forth in Section 6.1(b).
304235
|
UBS Warburg
As referenced in this Agreement and Plan of Merger:
UBS Warburg LLC – any of the transactions
contemplated hereby.
(w) Opinion of Financial Advisor. The Board of Directors of
the Company has received the opinion of UBS Warburg LLC , dated the date
of this Agreement, to the effect that, as of such date, the Merger
Consideration is fair, from a financial
_____________
UBS Warburg LLC – fees, commissions or finders' fees in connection with the
transactions contemplated by this Agreement, excluding fees to be paid
by the Company to UBS Warburg LLC and William Blair & Company in
accordance with the Company's respective written agreements with such
firms, copies of which have been provided
_____________
dt 279339
;
Citibank
As referenced in this Agreement and Plan of Merger:
Citibank, N.A. – attorneys' fees and expenses) in connection with
such suit, together with interest on the amount of the fee at the prime
rate of Citibank, N.A. in effect on the date such payment was required
to be made, notwithstanding the provisions of Section 6.5. The parties
hereto
_____________
dt 270777
;
deCODE genetics
As referenced in this Agreement and Plan of Merger:
DECODE GENETICS, – AGREEMENT AND PLAN OF MERGER
{TEXT}
{PAGE}
EXHIBIT 1
================================================================================
AGREEMENT AND PLAN OF MERGER
DATED AS OF JANUARY 7, 2002
BY AND BETWEEN
DECODE GENETICS, INC.,
SAGA ACQUISITION CORP.
AND
MEDICHEM LIFE SCIENCES, INC.
================================================================================
{PAGE}
TABLE OF CONTENTS
{TABLE}
{CAPTION}
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----
{S} {C}
ARTICLE I CERTAIN DEFINITIONS..................................................................................
_____________
DECODE GENETICS, – of Affiliate Agreement
-v-
{PAGE}
This AGREEMENT AND PLAN OF MERGER (this "AGREEMENT"), dated as of
January 7, 2002, is by and between DECODE GENETICS, INC., a Delaware corporation
("BUYER"), SAGA ACQUISITION CORP., a Delaware corporation and a wholly-owned
subsidiary of Buyer ("MERGER SUB"), on the
_____________
deCODE genetics, – such other instructions as may be designated in
writing by the party to receive such notice:
if to Buyer or Merger Sub to:
deCODE genetics, Inc.
Lynghals 1
110 Reykjavik, Iceland
Fax: +354 (570) 1901
Attention: Kari Stefansson, M.D., Dr. Med.
with a copy to:
Gibson,
_____________
DECODE GENETICS, – Company have
caused this Agreement to be signed by their respective officers thereunto duly
authorized, all as of the date first written above.
DECODE GENETICS, INC.
By: /s/ Kari Stefansson
----------------------------------
Name: Kari Stefansson
Title: CEO and President
SAGA ACQUISITION CORP.
By: /s/ Kari Stefansson
----------------------------------
Name: Kari Stefansson
_____________
dt 278651
;
|
Medichem
As referenced in this Agreement and Plan of Merger:
MEDICHEM LIFE SCIENCES, INC – AGREEMENT AND PLAN OF MERGER
{TEXT}
{PAGE}
EXHIBIT 1
================================================================================
AGREEMENT AND PLAN OF MERGER
DATED AS OF JANUARY 7, 2002
BY AND BETWEEN
DECODE GENETICS, INC.,
SAGA ACQUISITION CORP.
AND
MEDICHEM LIFE SCIENCES, INC .
================================================================================
{PAGE}
TABLE OF CONTENTS
{TABLE}
{CAPTION}
Page
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{S} {C}
ARTICLE I CERTAIN DEFINITIONS.................................................................................. 2
ARTICLE II THE MERGER.......................................................................................... 8
2.1 The Merger.................................................................................... 8
2.2 Effective Time of
_____________
MEDICHEM LIFE SCIENCES,
INC – by and between DECODE GENETICS, INC., a Delaware corporation
("BUYER"), SAGA ACQUISITION CORP., a Delaware corporation and a wholly-owned
subsidiary of Buyer ("MERGER SUB"), on the one hand, and MEDICHEM LIFE SCIENCES,
INC ., a Delaware corporation (the "COMPANY"), on the other hand.
WHEREAS, the respective Boards of Directors of Buyer, Merger Sub and
the Company have each determined that it is in
_____________
MediChem Life Sciences, Inc – a copy to:
Gibson, Dunn & Crutcher LLP
200 Park Avenue
New York, New York 10166-0193
Fax: (212) 351-4035
Attention: Scott A. Kislin, Esq.
if to the Company to:
MediChem Life Sciences, Inc .
2501 Davey Road
Woodridge, IL 60517
Fax: (630) 783-4949
Attention: Michael T. Flavin, Ph.D.
with a copy to:
Winston & Strawn
35 West Wacker Drive
Chicago, IL 60601
_____________
MEDICHEM LIFE SCIENCES, INC – date first written above.
DECODE GENETICS, INC.
By: /s/ Kari Stefansson
----------------------------------
Name: Kari Stefansson
Title: CEO and President
SAGA ACQUISITION CORP.
By: /s/ Kari Stefansson
----------------------------------
Name: Kari Stefansson
Title: Director
MEDICHEM LIFE SCIENCES, INC .
By: /s/ Michael T. Flavin
----------------------------------
Name: Michael T. Flavin
Title: CEO and President
55
{/TEXT}
{/DOCUMENT}
_____________
dt 1503414
;
BNY
As referenced in this Agreement and Plan of Merger:
Bank of New York, – registration
statements in accordance with the requirements of applicable law.
3.4 Exchange Fund. Prior to the Effective Time, Buyer shall appoint The
Bank of New York, Inc., or a commercial bank or trust company, or a subsidiary
thereof, to act as exchange agent hereunder for the purpose of
_____________
dt 282737
;
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| 2000 |
Agreement and Plan of Merger
Agreement and Plan of Merger (141K)
Doc #318639: Click preview link for longer preview.
AGREEMENT AND PLAN OF MERGER
dated as of
June 25, 2000
among
NABISCO HOLDINGS CORP.,
PHILIP MORRIS COMPANIES INC.,
and
STRIKE ACQUISITION CORP.
{PAGE}
TABLE OF CONTENTS
PAGE
----
ARTICLE 1
DEFINITIONS
SECTION 1.01. DEFINITIONS................................................1
ARTICLE 2
THE MERGER
SECTION 2.01. THE MERGER.................................................5
SECTION 2.02. CONVERSION OF SHARES.......................................6
SECTION 2.03. SURRENDER AND PAYMENT......................................6
SECTION 2.04. DISSENTING SHARES..........................................7
SECTION 2.05. STOCK OPTIONS..............................................8
SECTION 2.06. ADJUSTMENTS................................................8
SECTION 2.07. WITHHOLDING RIGHTS.........................................8
SECTION 2.08. LOST CERTIFICATES..........................................9
ARTICLE 3
THE SURVIVING CORPORATION
SECTION 3.01. CERTIFICATE OF INCORPORATION...............................9
SECTION 3.02. BYLAWS.....................................................9
SECTION 3.03. DIRECTORS AND OFFICERS.....................................9
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
SECTION 4.01. CORPORATE EXISTENCE AND POWER..............................9
SECTION 4.02. CORPORATE AUTHORIZATION...................................10
SECTION 4.03. GOVERNMENTAL AUTHORIZATION................................10
SECTION 4.04. NON-CONTRAVENTION.........................................10
SECTION 4.05. CAPITALIZATION............................................11
SECTION 4.06. SUBSIDIARIES..............................................11
SECTION 4.07. SEC FILINGS...............................................12
SECTION 4.08. FINANCIAL STATEMENTS......................................13
SECTION 4.09. DISCLOSURE DOCUMENTS......................................13
SECTION 4.10. ABSENCE OF CERTAIN CHANGES................................13
SECTION 4.11. NO UNDISCLOSED LIABILITIES................................15
SECTION 4.12. COMPLIANCE WITH LAWS AND COURT ORDERS.....................15
SECTION 4.13. LITIGATION................................................16
SECTION 4.14. FINDERS' FEES.............................................16
SECTION 4.15. OPINION OF FINANCIAL ADVISORS.............................16
SECTION 4.16. TAXES.....................................................16
SECTION 4.17. EMPLOYEE BENEFIT PLANS....................................17
SECTION 4.18. ENVIRONMENTAL MATTERS.....................................20
SECTION 4.19. INTELLECTUAL PROPERTY.....................................21
SECTION 4.20. ANTITAKEOVER STATUTE......................................21
SECTION 4.21. REAL PROPERTY.............................................21
SECTION 4.22. CONTRACTS; JOINT VENTURES.................................21
SECTION 4.23. INDEBTEDNESS..............................................22
i
{PAGE}
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF PARENT
SECTION 5.01. CORPORATE EXISTENCE AND POWER.............................22
SECTION 5.02. CORPORATE AUTHORIZATION...................................23
SECTION 5.03. GOVERNMENTAL AUTHORIZATION................................23
SECTION 5.04. NON-CONTRAVENTION.........................................23
SECTION 5.05. DISCLOSURE DOCUMENTS......................................23
SECTION 5.06. FINDERS' FEES.............................................24
SECTION 5.07. FINANCING.................................................24
ARTICLE 6
COVENANTS OF THE COMPANY
SECTION 6.01. CONDUCT OF THE COMPANY....................................24
SECTION 6.02. STOCKHOLDER ACTION BY WRITTEN CONSENT; INFORMATION
MATERIAL..................................................27
SECTION 6.03. ACCESS TO INFORMATION.....................................28
SECTION 6.04. NO SOLICITATION; OTHER OFFERS.............................28
SECTION 6.05. THIRD PARTY STANDSTILL AGREEMENTS.........................29
ARTICLE 7
COVENANTS OF PARENT
SECTION 7.01. CONFIDENTIALITY...........................................30
SECTION 7.02. OBLIGATIONS OF MERGER SUBSIDIARY..........................30
SECTION 7.03. DIRECTOR AND OFFICER LIABILITY............................30
SECTION 7.04. EMPLOYEE MATTERS..........................................31
ARTICLE 8
COVENANTS OF PARENT AND THE COMPANY
SECTION 8.01. REASONABLE BEST EFFORTS...................................33
SECTION 8.02. CERTAIN FILINGS...........................................33
SECTION 8.03. PUBLIC ANNOUNCEMENTS......................................33
SECTION 8.04. FURTHER ASSURANCES........................................33
SECTION 8.05. NOTICES OF CERTAIN EVENTS.................................34
ARTICLE 9
CONDITIONS TO THE MERGER
SECTION 9.01. CONDITIONS TO OBLIGATIONS OF EACH PARTY...................34
SECTION 9.02. CONDITIONS TO THE OBLIGATIONS OF PARENT AND MERGER
SUBSIDIARY................................................35
SECTION 9.03. CONDITIONS TO THE OBLIGATIONS OF THE COMPANY..............35
ARTICLE 10
TERMINATION
SECTION 10.01. TERMINATION..............................................36
SECTION 10.02. EFFECT OF TERMINATION....................................38
ARTICLE 11
MISCELLANEOUS
SECTION 11.01. NOTICES..................................................38
SECTION 11.02. NON-SURVIVAL OF REPRESENTATIONS AND WARRANTIES...........39
SECTION 11.03. AMENDMENTS; NO WAIVERS...................................40
SECTION 11.04. EXPENSES.................................................40
SECTION 11.05. SUCCESSORS AND ASSIGNS...................................41
SECTION 11.06. GOVERNING LAW............................................41
SECTION 11.07. JURISDICTION.............................................41
SECTION 11.08. WAIVER OF JURY TRIAL.....................................42
SECTION 11.09. COUNTERPARTS; EFFECTIVENESS; BENEFIT.....................42
SECTION 11.10. ENTIRE AGREEMENT.........................................42
SECTION 11.11. CAPTIONS.................................................42
SECTION 11.12. SEVERABILITY.............................................42
SECTION 11.13. SPECIFIC PERFORMANCE.....................................42
ii
{PAGE}
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER dated as of June 25, 2000, among Nabisco
Holdings Corp., a Delaware corporation (the "Company"), Philip Morris Companies
Inc., a Virginia corporation ("Parent"), and Strike Acquisition Corp., a
Delaware corporation and a wholly-owned subsidiary of Parent ("Merger
Subsidiary").
WHEREAS, the respective Boards of Directors of Parent, Merger Subsidiary
and the Company have approved this Agreement, and deem it advisable and in the
best interests of their respective stockholders to consummate the merger of
Merger Subsidiary with and into the Company on the terms and conditions set
forth herein; and
WHEREAS, as a condition and inducement to Parent entering this Agreement,
concurrently with the execution and delivery of this Agreement, Parent and
Nabisco Group Holdings Corp., a Delaware corporation ("NGH"), a significant
stockholder of the Company, are entering into a voting and indemnity agreement
(the "NGH Voting Agreement") pursuant to which, among other things, NGH has
agreed to vote its Shares in favor of the above-described merger, subject to
approval by NGH's stockholders.
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.01. Definitions. (a) The following terms, as used herein, have
the following meanings:
"Affiliate" means, with respect to any Person, any other Person directly
or indirectly controlling, controlled by or under common control with such
Person.
"Benefit Arrangement" means any employment, severance or similar contract,
plan, policy, fund or arrangement (whether or not written) providing for
compensation, bonus, profit-sharing, stock option, or other stock-related rights
or other forms of incentive or deferred compensation, perquisites, vacation
benefits, insurance coverage (including any self-insured arrangements), health
or medical benefits, disability benefits, worker's compensation, supplemental
unemployment benefits, severance benefits and post-employment or retirement
benefits (including compensation, pension, health, medical or life insurance or
other benefits) that (i) is not an Employee Plan, (ii) is entered into,
maintained, administered or contributed to,
1
{PAGE}
as the case may be, by the Company or any of its Affiliates and (iii) covers any
employee or former employee of the Company or any of its Subsidiaries employed
in the United States.
"Business Day" means a day other than Saturday, Sunday or other day on
which commercial banks in New York, New York are authorized or required by law
to close.
"Class A Shares" means the shares of Class A common stock, $0.01 par
value, of the Company.
"Class B Shares" means the shares of Class B common stock, $0.01 par
value, of the Company.
"Code" means the Internal Revenue Code of 1986.
"Company Balance Sheet" means the consolidated balance sheet of the
Company as of December 31, 1999 and the footnotes thereto set forth in the
Company 10-K.
"Company Intellectual Property Rights" means all material Intellectual
Property Rights owned or licensed and used or held for use by the Company or any
of its Subsidiaries.
"Company 10-K" means the Company's annual report on Form 10-K for the
fiscal year ended December 31, 1999.
"Controlled Group Liability" means any and all liabilities (i) under Title
IV of ERISA, (ii) under Section 302 of ERISA, (iii) under Sections 412 and 4971
of the Code, (iv) as a result of a failure to comply with the continuation
coverage requirements of Section 601 et seq. of ERISA and Section 4980B of the
Code and (v) under corresponding or similar provisions of foreign laws or
regulations, other than such liabilities that arise solely out of, or relate
solely to, the Employee Plans, Benefit Arrangements and International Plans
listed in the Company Disclosure Schedule.
"Delaware Law" means the General Corporation Law of the State of Delaware.
"Employee Arrangement" means any Benefit Arrangement, Employee Plan or
International Plan.
"Employee Plan" means any "employee benefit plan", as defined in Section
3(3) of ERISA, that (i) is subject to any provision of ERISA, (ii) is
maintained, administered or contributed to by the Company or any of its
Affiliates and (iii) covers any employee or former employee of the Company or
any of its Subsidiaries.
"Environmental Laws" means any federal, state, local or foreign law,
regulation, rule, order or decree, in each case as in effect on the date hereof,
that has as its principal purpose the protection of the environment or the
effect of the environment on human health and safety.
"Environmental Permits" means all permits, licenses, certificates or
approvals
2
{PAGE}
necessary for the operation of the Company or any of its Subsidiaries as
currently conducted to comply with all applicable Environmental Laws.
"ERISA" means the Employee Retirement Income Security Act of 1974.
318639
|
UBS Warburg
As referenced in this Agreement and Plan of Merger:
UBS Warburg LLC – Material Adverse Effect on the Company or prevent or
materially delay the consummation of the Merger.
SECTION 4.14. Finders' Fees. Except for UBS Warburg LLC , Morgan Stanley &
Co. Incorporated and Bear, Stearns & Co. Inc., copies of whose engagement
agreements have been provided to Parent, there is no
_____________
UBS Warburg, LLC – from the Company or any of its Affiliates in connection with
the transactions contemplated by this Agreement. The fees, commissions and
expenses of UBS Warburg, LLC , Morgan Stanley & Co. Incorporated, Bear, Stearns &
Co. Inc., Davis Polk & Wardwell, Deloitte & Touche LLP and any other advisors
retained by the Company
_____________
UBS Warburg LLC – paid by the Company will not exceed $50 million.
SECTION 4.15. Opinion of Financial Advisors. The Company has received an
opinion of UBS Warburg LLC and an opinion of Morgan Stanley & Co. Incorporated,
each dated as of the date of this Agreement and each to the effect
_____________
dt 535156
;
Bear, Stearns
As referenced in this Agreement and Plan of Merger:
Bear, Stearns & Co. – or
materially delay the consummation of the Merger.
SECTION 4.14. Finders' Fees. Except for UBS Warburg LLC, Morgan Stanley &
Co. Incorporated and Bear, Stearns & Co. Inc., copies of whose engagement
agreements have been provided to Parent, there is no investment banker, broker,
finder or other intermediary that
_____________
Bear, Stearns &
Co. – Affiliates in connection with
the transactions contemplated by this Agreement. The fees, commissions and
expenses of UBS Warburg, LLC, Morgan Stanley & Co. Incorporated, Bear, Stearns &
Co. Inc., Davis Polk & Wardwell, Deloitte & Touche LLP and any other advisors
retained by the Company or NGH in connection with the transactions
_____________
dt 640233
;
|
Chase Securities
As referenced in this Agreement and Plan of Merger:
Chase Securities Inc – Information
Statement or any amendment or supplement thereto is first mailed to stockholders
of the Company.
SECTION 5.06. Finders' Fees. Except for Chase Securities Inc ., Credit
Suisse First Boston and Wasserstein Perella & Co., Inc., whose fees will be paid
by Parent, there is no investment banker, broker,
_____________
Chase Securities Inc – SECTION 5.07. Financing. Parent has received and furnished copies to the
Company of fully executed and operative agreements (the "Financing Agreements")
with Chase Securities Inc . and Credit Suisse First Boston Corp. dated as of June
22, 2000 pursuant to which such entities have agreed, subject to the
_____________
dt 598179
;
CSFB Corp.
As referenced in this Agreement and Plan of Merger:
Credit Suisse First Boston Corp – Parent has received and furnished copies to the
Company of fully executed and operative agreements (the "Financing Agreements")
with Chase Securities Inc. and Credit Suisse First Boston Corp . dated as of June
22, 2000 pursuant to which such entities have agreed, subject to the terms and
conditions thereof, to provide
_____________
dt 547318
;
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| 2002 |
Agreement and Plan of Merger
Agreement and Plan of Merger (548K)
Doc #336028: Click preview link for longer preview.
AGREEMENT AND PLAN OF MERGER
AMONG
GENERAL GROWTH PROPERTIES, INC.
GGP LIMITED PARTNERSHIP
GGP ACQUISITION, L.L.C.
GGP ACQUISITION II, L.L.C.
JP REALTY, INC.
AND
PRICE DEVELOPMENT COMPANY, LIMITED PARTNERSHIP
DATED AS OF MARCH 3, 2002
. . .
336028
|
UBS Warburg
As referenced in this Agreement and Plan of Merger:
UBS Warburg LLC – of their respective obligations under
such agreements, documents or contracts.
2.19 Opinion of Financial Advisor. JP has received the written opinion of
UBS Warburg LLC , JP's financial advisor, to the effect that the proposed
consideration to be received by the holders of JP Common Stock is
_____________
dt 703927
;
General Growth
As referenced in this Agreement and Plan of Merger:
GENERAL GROWTH PROPERTIES, – TYPE}EX-2.1
{SEQUENCE}3
{FILENAME}d28148_ex2-1.txt
{DESCRIPTION}MERGER AGREEMENT
{TEXT}
Exhibit 2.1
AGREEMENT AND PLAN OF MERGER
AMONG
GENERAL GROWTH PROPERTIES, INC.
GGP LIMITED PARTNERSHIP
GGP ACQUISITION, L.L.C.
GGP ACQUISITION II, L.L.C.
JP REALTY, INC.
AND
PRICE DEVELOPMENT COMPANY,
_____________
GENERAL GROWTH PROPERTIES, – PAGE}
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (this "Agreement"), dated as of March 3,
2002, by and among GENERAL GROWTH PROPERTIES, INC., a Delaware corporation
("GGP"), GGP LIMITED PARTNERSHIP, a Delaware limited partnership ("GGP
Partnership"), GGP ACQUISITION, L.L.C., a Delaware limited
_____________
General Growth Properties, – telecopy number for a party as shall be specified by like notice):
(a) if to GGP, GGP Partnership, Acquisition or Partnership Acquisition, to:
General Growth Properties, Inc.
110 North Wacker Drive
Chicago, Illinois 60606
Attention: Bernard Freibaum
Fax No.: (312) 960-5463
with a copy to:
Neal, Gerber &
_____________
GENERAL GROWTH PROPERTIES, – Agreement to be signed by their
respective officers, general partners or members thereunto duly authorized all
as of the date first written above.
GENERAL GROWTH PROPERTIES, INC.
By: ________________________________
Name:
Title
GGP LIMITED PARTNERSHIP
By: General Growth Properties, Inc.,
General Partner
By:_____________________________
Name:
Title:
GGP ACQUISITION, L.
_____________
General Growth Properties, – thereunto duly authorized all
as of the date first written above.
GENERAL GROWTH PROPERTIES, INC.
By: ________________________________
Name:
Title
GGP LIMITED PARTNERSHIP
By: General Growth Properties, Inc.,
General Partner
By:_____________________________
Name:
Title:
GGP ACQUISITION, L.L.C.
By: GGP Limited Partnership, Member
By: General Growth Properties,
Inc.,
_____________
dt 686812
;
|
Mellon Investor
As referenced in this Agreement and Plan of Merger:
Mellon Investor Services LLC – or pursuant to the terms of the Amended and Restated Rights Agreement, dated as
of January 13, 2001, as amended, between JP and Mellon Investor Services LLC , as
rights agent (the "JP Rights Agreement"), inapplicable to the Mergers, this
Agreement and the other transactions contemplated hereby (including the actions
_____________
dt 648585
|
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| 2000 |
Agreement and Plan of Merger
Agreement and Plan of Merger (211K)
Doc #363308: Click preview link for longer preview.
AGREEMENT AND PLAN OF MERGER
by and among
SIEMENS CORPORATION,
SIGMA ACQUISITION CORP.
and
ACUSON CORPORATION
dated as of September 26, 2000
________________________________________________________
{PAGE}
ARTICLE I THE OFFER............................................... 1
Section 1.1 The Offer.............................................. 1
Section 1.2 Company Actions........................................ 3
Section 1.3 Stockholder Lists...................................... 4
Section 1.4 Directors; Section 14(f)............................... 5
ARTICLE II THE MERGER.............................................. 6
Section 2.1 The Merger............................................. 6
Section 2.2 Effective Time of the Merger........................... 6
Section 2.3 Effects of the Merger.................................. 6
Section 2.4 Closing................................................ 6
ARTICLE III THE SURVIVING AND PARENT CORPORATIONS................... 6
Section 3.1 Certificate of Incorporation........................... 6
Section 3.2 Bylaws................................................. 7
Section 3.3 Directors.............................................. 7
Section 3.4 Officers............................................... 7
ARTICLE IV EFFECT OF THE MERGER ON THE STOCK OF THE CONSTITUENT
CORPORATIONS; SURRENDER OF CERTIFICATES................. 7
Section 4.1 Conversion of Company Common Stock in the Merger....... 7
Section 4.2 Conversion of Subsidiary Shares........................ 7
Section 4.3 Surrender and Exchange of Certificates................. 8
Section 4.4 Tax Withholding........................................ 9
Section 4.5 Closing of the Company's Transfer Books................ 9
Section 4.6 Option Plans; Restricted Stock......................... 9
Section 4.7 Dissenting Shares...................................... 10
Section 4.8 Further Assurances..................................... 10
ARTICLE V REPRESENTATIONS AND WARRANTIES OF THE COMPANY.......... 10
Section 5.1 Organization and Qualification......................... 11
Section 5.2 Capitalization......................................... 11
Section 5.3 Subsidiaries........................................... 12
Section 5.4 Authority; Non-Contravention; Approvals................ 13
Section 5.5 Reports and Financial Statements....................... 14
Section 5.6 Absence of Undisclosed Liabilities; Affiliate
Transactions........................................... 15
Section 5.7 Absence of Certain Changes or Events................... 15
Section 5.8 Litigation............................................. 16
i
{PAGE}
Section 5.9 Information Supplied................................... 16
Section 5.10 No Violation of Law.................................... 16
Section 5.11 Compliance with Agreements............................. 17
Section 5.12 Taxes.................................................. 17
Section 5.13 Employee Benefit Plans; ERISA.......................... 19
Section 5.14 Labor Controversies.................................... 20
Section 5.15 Environmental Matters.................................. 20
Section 5.16 Title to Assets........................................ 21
Section 5.17 Intellectual Property; Software........................ 21
Section 5.18 Brokers and Finders.................................... 22
Section 5.19 Opinion of Company Financial Advisor................... 22
Section 5.20 Vote Required.......................................... 22
Section 5.21 Insurance.............................................. 23
Section 5.22 Contracts.............................................. 23
Section 5.23 Accounts Receivable.................................... 24
Section 5.24 Product Warranty....................................... 24
Section 5.25 Product Liability...................................... 24
ARTICLE VI REPRESENTATIONS AND WARRANTIES OF PARENT AND SUBSIDIARY. 24
Section 6.1 Organization and Qualification......................... 24
Section 6.2 Authority; Non-Contravention; Approvals................ 24
Section 6.3 Information Supplied................................... 25
Section 6.4 Financing.............................................. 25
Section 6.5 Subsidiary............................................. 26
Section 6.6 Brokers and Finders.................................... 26
ARTICLE VII COVENANTS OF THE PARTIES................................ 26
Section 7.1 Mutual Covenants....................................... 26
Section 7.2 Conduct of the Company's Business...................... 28
ARTICLE VIII ADDITIONAL AGREEMENTS OF THE PARTIES.................... 30
Section 8.1 Access to Information.................................. 30
Section 8.2 Acquisition Proposals.................................. 31
Section 8.3 Expenses and Fees...................................... 32
Section 8.4 Directors' and Officers' Indemnification............... 32
Section 8.5 Employee Benefits...................................... 33
Section 8.6 Litigation............................................. 34
ii
{PAGE}
ARTICLE IX CONDITIONS.............................................. 34
Section 9.1 Conditions to Each Party's Obligation to Effect
the Merger............................................. 34
ARTICLE X TERMINATION, AMENDMENT AND WAIVER....................... 35
Section 10.1 Termination............................................ 35
Section 10.2 Effect of Termination.................................. 37
Section 10.3 Amendment.............................................. 37
Section 10.4 Extension; Waiver...................................... 38
ARTICLE XI GENERAL PROVISIONS...................................... 38
Section 11.1 Non-Survival of Representations and Warranties......... 38
Section 11.2 Notices................................................ 38
Section 11.4 Third Party Beneficiaries.............................. 39
Section 11.5 Severability........................................... 39
Section 11.6 Assignment............................................. 40
Section 11.7 Enforcement............................................ 40
Section 11.8 Counterparts........................................... 40
Section 11.9 Entire Agreement....................................... 40
iii
{PAGE}
Acquisition Proposal.............. 31
--------------------
Agreement......................... 1
---------
Antitrust Division................ 26
------------------
Closing........................... 6
-------
Closing Date...................... 6
------------
Code.............................. 9
----
Common Stock Price................ 1
------------------
Company........................... 1
-------
Company Certificates.............. 8
--------------------
Company Common Stock.............. 1
--------------------
Company Disclosure Schedule....... 10
---------------------------
Company Financial Advisor......... 4
-------------------------
Company Financial Statements...... 14
----------------------------
Company Intellectual Property
Rights........................... 21
-------
Company Material Adverse Effect... 11
-------------------------------
Company Permits................... 17
----------------------------------
Company Plan...................... 20
------------
Company Preferred Stock........... 11
-----------------------
Company Regulatory Approvals...... 14
----------------------------
Company Rights.................... 11
--------------
Company Rights Agreement.......... 11
------------------------
Company SEC Reports............... 14
-------------------
Company Stock Plans............... 9
-------------------
Company Stockholders' Approval.... 23
------------------------------
Company Subsidiary................ 12
------------------
Confidentiality Agreement......... 30
-------------------------
Contract.......................... 23
--------
DGCL.............................. 3
----
Dissenting Shares................. 10
-----------------
Dissenting Stockholder............ 10
----------------------
Effective Time.................... 6
--------------
environment....................... 21
-----------
Environmental Event............... 20
-------------------
Environmental Law................. 20
-----------------
ERISA............................. 20
-----
ERISA Affiliate................... 20
---------------
ESPP.............................. 10
----
ESPP Date......................... 10
---------
Exchange Act...................... 1
------------
Extended Outside Date............. 36
---------------------
FTC............................... 26
---
GAAP.............................. 14
----
Governmental Authority............ 14
----------------------
HSR Act........................... 13
-------
Independent Directors............. 5
---------------------
Initial Expiration Date........... 2
-----------------------
IRS............................... 17
---
Liens............................. 12
-----
Merger............................ 1
------
Merger Filing..................... 6
-------------
Minimum Condition................. 1
-----------------
Offer............................. 1
-----
Offer Documents................... 3
---------------
Option Payment.................... 9
--------------
Options........................... 9
-------
Outside Date...................... 36
------------
Parent............................ 1
------
Parent Representatives............ 30
----------------------
Parent Required Statutory 25
Approvals........................
----------
Paying Agent...................... 8
------------
Pension Plan...................... 20
------------
Permitted Lien.................... 15
--------------
Proxy Statement................... 27
---------------
release........................... 21
-------
Schedule 14D-9.................... 3
--------------
Schedule TO....................... 2
-----------
SEC............................... 2
---
Securities Act.................... 12
--------------
Stock Rights...................... 11
------------
Stockholders Meeting.............. 27
--------------------
subsidiary........................ 12
----------
Subsidiary........................ 1
----------
Subsidiary Common Stock........... 7
-----------------------
Superior Proposal................. 32
-----------------
Surviving Corporation............. 6
---------------------
Tax Return........................ 18
----------
Taxes............................. 18
-----
Violation......................... 17
---------
Welfare Plan...................... 20
------------
{PAGE}
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER, dated as of September 26, 2000 (this
"Agreement"), is made and entered into by and among Siemens Corporation, a
----------
Delaware corporation ("Parent"), Sigma Acquisition Corp., a Delaware corporation
------
and a wholly-owned subsidiary of Parent ("Subsidiary"), and Acuson Corporation,
----------
a Delaware corporation (the "Company").
-------
BACKGROUND
WHEREAS, the Boards of Directors of Parent, Subsidiary and the Company have
approved the acquisition of the Company by Parent upon the terms and subject to
the conditions set forth in this Agreement;
WHEREAS, in furtherance of such acquisition, Parent, Subsidiary and the
Company have agreed that, upon the terms and subject to the conditions set forth
in this Agreement, Subsidiary shall commence an offer (as amended or
supplemented in accordance with this Agreement, the "Offer") to purchase for
-----
cash all of the issued and outstanding shares of common stock, par value $.0001
per share, of the Company (the "Company Common Stock," which term as used herein
--------------------
shall include the associated Company Rights (as defined in Section 5.2(a)),
unless the context otherwise requires), at a price per share of $23.00, net to
the seller in cash (such price, or such higher price per share as may be paid in
the Offer, the "Common Stock Price");
------------------
WHEREAS, the Boards of Directors of Parent, Subsidiary and the Company have
each approved the merger of Subsidiary with and into the Company (the "Merger"),
------
upon the terms and subject to the conditions set forth in this Agreement,
whereby each share of Company Common Stock issued and outstanding immediately
prior to the Effective Time (as defined in Section 2.2), other than the shares
of Company Common Stock owned directly or indirectly by Parent, Subsidiary or
the Company and Dissenting Shares (as defined in Section 4.7), will be converted
into the right to receive the Common Stock Price;
WHEREAS, the Board of Directors of the Company has resolved to recommend
that the holders of shares of Company Common Stock tender their shares pursuant
to the Offer and has approved, adopted and declared advisable this Agreement and
the Merger; and
WHEREAS, Parent, Subsidiary and the Company desire to make certain
representations, warranties, covenants and agreements in connection with the
Offer and the Merger;
NOW, THEREFORE, in consideration of the premises and the representations,
warranties, covenants and agreements contained herein, the parties hereto,
intending to be legally bound, agree as follows:
ARTICLE I
THE OFFER
Section 1.1 The Offer.
---------
(a) Subject to the provisions of this Agreement, and provided that this
Agreement shall not have been terminated in accordance with Section 10.1 and so
long as none of the events or circumstances set forth in Annex A hereto shall
have occurred and be continuing, not later than the seventh business day from
the date of public announcement of the execution of this Agreement (counting the
business day on which such announcement is made), Parent shall cause Subsidiary
to commence (within the meaning of Rule 14d-2 under the Securities Exchange Act
of 1934, as amended (the "Exchange Act")), the Offer at a price equal to the
------------
Common Stock Price for each share of Company Common Stock. The obligations of
{PAGE}
Subsidiary to consummate the Offer, and to accept for payment and to pay for any
shares of Company Common Stock tendered pursuant to the Offer and not withdrawn
prior to the expiration of the Offer shall be subject solely to those conditions
set forth in Annex A. It is agreed that the conditions to the Offer set forth in
-------
Annex A are for the benefit of Subsidiary and may be asserted by Subsidiary and
-------
Subsidiary expressly reserves the right, in its sole discretion, to waive any
such condition; provided, that without the prior written consent of the Company,
Subsidiary shall not waive the Minimum Condition (as defined in Annex A). The
-------
initial expiration date of the Offer (the "Initial Expiration Date") shall be
-----------------------
the 20th business day following the commencement (within the meaning of Rule
14d-2 under the Exchange Act) of the Offer.
(b) Subsidiary expressly reserves the right, in its sole discretion, to
modify and make changes to the terms and conditions of the Offer; provided, that
without the prior written consent of the Company, no modification or change may
be made which (i) decreases the Common Stock Price (except as permitted by this
Agreement); (ii) changes the form of consideration payable in the Offer; (iii)
changes the Minimum Condition; (iv) limits the number of shares of Company
Common Stock sought pursuant to the Offer; (v) changes the conditions to the
Offer (other than conditions that are immaterial and administrative in nature)
in a manner adverse to the holders of the Company Common Stock; or (vi) imposes
additional conditions to the Offer other than conditions that are immaterial and
administrative in nature. Notwithstanding the foregoing, Subsidiary may, without
the consent of the Company (and, in the case of clauses (i) and (ii) below,
Subsidiary shall if the Company requests Subsidiary in writing to do so), (i)
extend and re- extend the Offer on one or more occasions for such period as may
be determined by Subsidiary in its sole discretion (each such extension period
not to exceed 10 business days at a time), if at the then-scheduled expiration
date of the Offer any of the conditions to Subsidiary's obligations to accept
for payment and pay for shares of Company Common Stock shall not be satisfied or
waived and (ii) extend and re-extend the Offer for any period required by any
rule, regulation, interpretation or position of the Securities and Exchange
Commission (the "SEC") or the staff thereof applicable to the Offer. Subsidiary
---
also may extend the Offer on one occasion for an aggregate period of not more
than 10 business days if the Minimum Condition has been satisfied but less than
90% of the sum of (y) the total number of shares of outstanding Company Common
Stock plus (z) the total number of shares of Company Common Stock issuable on or
prior to the Outside Date (or the Extended Outside Date if the Outside Date has
been extended in accordance with Section 10.1(b)(iii)) upon the exercise of any
outstanding Options, warrants, conversion privileges or similar rights with
respect to Company Common Stock that are currently vested or that will vest on
or prior to the Outside Date or Extended Outside Date, as the case may be, has
been validly tendered and not properly withdrawn as of the Initial Expiration
Date; provided, however, that if Subsidiary elects to extend the Offer pursuant
to this sentence, then all conditions to the Offer set forth in Annex A shall be
-------
deemed to be irrevocably waived except to the extent that a breach by the
Company of any covenant in this Agreement or a failure of a representation or
warranty of the Company to be true and correct as of the date of this Agreement
has occurred in either case because of one or more willful and intentional acts
or omissions by the Company following the date of Subsidiary's election to
extend the Offer pursuant to this sentence, which would cause any of the
conditions to the Offer set forth in clauses (c)(i) and (c)(ii) of Annex A not
-------
to be satisfied. Subject to the terms and the conditions of the Offer and this
Agreement, as soon as practicable after expiration of the Offer, Subsidiary
shall accept for payment and pay for, and Parent shall cause Subsidiary to
accept for payment and pay for, all shares of Company Common Stock validly
tendered and not withdrawn pursuant to the Offer. Notwithstanding the foregoing,
Subsidiary may in its sole discretion elect to provide for a subsequent offering
period pursuant to, and on the terms required by, Rule 14d-11 under the Exchange
Act.
(c) On the date of commencement of the Offer, Parent and Subsidiary shall
file with the SEC with respect to the Offer a Tender Offer Statement on Schedule
TO (together with all amendments and supplements thereto and including all
exhibits thereto, the "Schedule TO") which will comply in all
-----------
2
{PAGE}
material respects with the provisions of the Exchange Act and the rules and
regulations thereunder and other applicable United States federal securities
363308
|
UBS Warburg
As referenced in this Agreement and Plan of Merger:
UBS Warburg LLC – 14D-9 as so corrected to be filed with
the SEC and disseminated to the Company's stockholders, as and to the extent
required by applicable federal securities laws.
(c) UBS Warburg LLC (the "Company Financial Advisor") has rendered to the
-------------------------
Company's Board of Directors its opinion to the effect that, as of the date of
this Agreement, the Common Stock
_____________
dt 763312
;
|
Siemens
As referenced in this Agreement and Plan of Merger:
Siemens
AG – taken by
or on behalf of Parent or any of its subsidiaries, other than Deutsche Bank AG
and Deutsche Banc Alex. Brown, whose fees and expenses will be paid by Siemens
AG .
ARTICLE VII
COVENANTS OF THE PARTIES
Section 7.1 Mutual Covenants.
----------------
(a) General. Subject to the terms and conditions of this Agreement, each of
the parties shall (and shall
_____________
Siemens Aktiengesellschaft
– Robert Lupone, Esq.
with a copy to:
Clifford Chance Rogers & Wells LLP
200 Park Avenue
New York, New York 10166
Telecopier: (212) 878-8375
Attention: John A. Healy, Esq.
and
Siemens Aktiengesellschaft
Medical Engineering
Henkestr. 127
Postfach 32 40
91050 Erlangen
Telecopier: (011) 49 (9131) 84-3754
Attention: Prof. Dr. Erich Reinhardt
and
38
{PAGE}
Siemens Aktiengesellschaft
Legal Services Erlangen
Werner-
_____________
Siemens Aktiengesellschaft
– John A. Healy, Esq.
and
Siemens Aktiengesellschaft
Medical Engineering
Henkestr. 127
Postfach 32 40
91050 Erlangen
Telecopier: (011) 49 (9131) 84-3754
Attention: Prof. Dr. Erich Reinhardt
and
38
{PAGE}
Siemens Aktiengesellschaft
Legal Services Erlangen
Werner-von-Siemens-Strafe 50
91052 Erlangen
Telecopier: (011) 49 (9131)72-8667
Attention: Robert Kirschbaum
If to the Company, to:
Acuson Corporation
1220 Charleston Road
_____________
dt 1537348
|
Preview
Full Doc
| 2002 |
Agreement and Plan of Merger
Agreement and Plan of Merger (228K)
Doc #381263: Click preview link for longer preview.
AGREEMENT AND PLAN OF MERGER
DATED AS OF JANUARY 7, 2002
BY AND BETWEEN
DECODE GENETICS, INC.,
SAGA ACQUISITION CORP.
AND
MEDICHEM LIFE SCIENCES, INC.
================================================================================
{PAGE}
TABLE OF CONTENTS
{TABLE}
{CAPTION}
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{S} {C}
ARTICLE I CERTAIN DEFINITIONS.................................................................................. 2
ARTICLE II THE MERGER.......................................................................................... 8
2.1 The Merger.................................................................................... 8
2.2 Effective Time of the Merger.................................................................. 8
2.3 Effects of the Merger......................................................................... 9
2.4 Closing....................................................................................... 9
2.5 Certificate of Incorporation.................................................................. 9
2.6 Bylaws........................................................................................ 9
2.7 Directors and Officers........................................................................ 9
ARTICLE III CONVERSION OF SECURITIES........................................................................... 9
3.1 Exchange Ratio................................................................................ 9
3.2 Stock of Merger Sub........................................................................... 10
3.3 Stock Options................................................................................. 10
3.4 Exchange Fund................................................................................. 11
3.5 Exchange Procedures........................................................................... 11
3.6 Distributions with Respect to Unexchanged Shares.............................................. 12
3.7 No Further Ownership Rights in Company Common Stock........................................... 12
3.8 No Fractional Shares of Buyer Common Stock.................................................... 12
3.9 Termination of Exchange Fund.................................................................. 13
3.10 No Liability.................................................................................. 13
3.11 Investment of the Exchange Fund............................................................... 13
3.12 Lost Certificates............................................................................. 14
3.13 Withholding Rights............................................................................ 14
3.14 Further Assurances............................................................................ 14
3.15 Stock Transfer Books.......................................................................... 14
ARTICLE IV REPRESENTATIONS AND WARRANTIES...................................................................... 14
4.1 Representations and Warranties of the Company................................................. 14
(a) Corporate Organization............................................................... 15
(b) Capitalization....................................................................... 15
(c) Authority; No Violation.............................................................. 17
(d) Consents and Approvals............................................................... 18
(e) Financial Reports and SEC Documents.................................................. 18
(f) Absence of Undisclosed Liabilities................................................... 19
(g) Absence of Certain Changes or Events................................................. 19
(h) Legal Proceedings.................................................................... 20
(i) Compliance with Applicable Law....................................................... 20
(j) Contracts............................................................................ 20
(k) Environmental Liability.............................................................. 21
(l) Employee Benefit Plans; Labor Matters................................................ 21
{/TABLE}
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{TABLE}
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(m) Intellectual Property................................................................ 24
(n) Properties........................................................................... 25
(o) Insurance............................................................................ 25
(p) FDA Matters.......................................................................... 26
(q) Taxes................................................................................ 26
(r) Reorganization under the Code........................................................ 27
(s) Form S-4; Proxy Statement/Prospectus................................................. 27
(t) Affiliate Transactions............................................................... 28
(u) Ownership of Buyer Stock............................................................. 28
(v) State Takeover Laws.................................................................. 28
(w) Opinion of Financial Advisor......................................................... 28
(x) Board Approval....................................................................... 28
(y) Brokers' Fees........................................................................ 28
(z) ALS Licensed Technology.............................................................. 28
4.2 Representations and Warranties of Buyer and Merger Sub........................................ 29
(a) Corporate Organization............................................................... 29
(b) Capitalization....................................................................... 30
(c) Authority; No Violation.............................................................. 31
(d) Consents and Approvals............................................................... 32
(e) Financial Reports and SEC Documents.................................................. 32
(f) Absence of Undisclosed Liabilities................................................... 33
(g) Absence of Certain Changes or Events................................................. 33
(h) Legal Proceedings.................................................................... 33
(i) Compliance with Applicable Law....................................................... 33
(j) Taxes................................................................................ 34
(k) Board Approval....................................................................... 34
(l) Reorganization under the Code........................................................ 34
(m) Form S-4; Proxy Statement/Prospectus................................................. 34
(n) Ownership of Company Stock........................................................... 34
ARTICLE V COVENANTS RELATING TO CONDUCT OF BUSINESS............................................................ 34
5.1 Covenants of the Company...................................................................... 34
(a) Ordinary Course...................................................................... 34
(b) Dividends; Changes in Share Capital.................................................. 35
(c) Issuance of Securities............................................................... 35
(d) Governing Documents.................................................................. 35
(e) No Acquisitions...................................................................... 36
(f) No Dispositions...................................................................... 36
(g) Investments; Indebtedness............................................................ 36
(h) Tax-Free Qualification............................................................... 36
(i) Compensation......................................................................... 36
(j) Accounting Methods; Tax Matters...................................................... 37
(k) Litigation........................................................................... 37
(l) Intellectual Property................................................................ 37
{/TABLE}
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{TABLE}
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{S} {C}
(m) Company Contracts.................................................................... 37
(n) Certain Actions...................................................................... 38
(o) No Related Actions................................................................... 38
5.2 Covenants of Buyer............................................................................ 38
(a) Ordinary Course...................................................................... 38
(b) Governing Documents.................................................................. 38
(c) Tax-Free Qualification............................................................... 38
(d) Certain Actions...................................................................... 38
(e) Dividends; Changes in Share Capital.................................................. 38
(f) Accounting Methods................................................................... 38
5.3 Governmental Filings.......................................................................... 38
5.4 Control of Other Party's Business............................................................. 39
5.5 Cooperation................................................................................... 39
ARTICLE VI ADDITIONAL AGREEMENTS............................................................................... 39
6.1 Preparation of Proxy Statement; Stockholders Meetings......................................... 39
6.2 Access to Information......................................................................... 41
6.3 Reasonable Best Efforts....................................................................... 41
6.4 Acquisition Proposals......................................................................... 42
6.5 Fees and Expenses............................................................................. 44
6.6 Directors' and Officers' Indemnification and Insurance........................................ 44
6.7 Employee Benefits............................................................................. 44
6.8 Public Announcements.......................................................................... 45
6.9 Listing of Shares of Buyer Common Stock....................................................... 45
6.10 Affiliates.................................................................................... 45
6.11 Notification of Certain Matters............................................................... 45
6.12 Accountants' Letters.......................................................................... 45
6.13 Issuance of Certain Options................................................................... 46
6.14 Assignment of Licensed Technology............................................................. 46
ARTICLE VII CONDITIONS PRECEDENT............................................................................... 46
7.1 Conditions to Each Party's Obligation to Effect the Merger.................................... 46
(a) Stockholder Approval................................................................. 46
(b) No Injunctions or Restraints; Illegality............................................. 46
(c) HSR Act.............................................................................. 46
(d) Nasdaq Listing....................................................................... 47
(e) Effectiveness of the Form S-4........................................................ 47
7.2 Additional Conditions to Obligations of Buyer................................................. 47
(a) Representations and Warranties....................................................... 47
(b) Performance of Obligations of the Company............................................ 47
(c) Third Party Consents................................................................. 48
(d) Affiliate Agreements................................................................. 48
(e) Assignment Agreements................................................................ 48
7.3 Additional Conditions to Obligations of the Company........................................... 48
(a) Representations and Warranties....................................................... 48
{/TABLE}
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(b) Performance of Obligations of Buyer.................................................. 48
(c) Tax Opinion.......................................................................... 48
ARTICLE VIII TERMINATION AND AMENDMENT......................................................................... 48
8.1 Termination................................................................................... 48
8.2 Effect of Termination......................................................................... 50
8.3 Amendment..................................................................................... 51
8.4 Extension; Waiver............................................................................. 51
ARTICLE IX GENERAL PROVISIONS.................................................................................. 51
9.1 Non-Survival of Representations, Warranties and Agreements.................................... 51
9.2 Notices....................................................................................... 52
9.3 Interpretation................................................................................ 52
9.4 Counterparts.................................................................................. 53
9.5 Entire Agreement; No Third Party Beneficiaries................................................ 53
9.6 Governing Law................................................................................. 53
9.7 Severability.................................................................................. 53
9.8 Assignment.................................................................................... 53
9.9 Enforcement................................................................................... 53
9.10 Submission to Jurisdiction; Waivers........................................................... 54
{/TABLE}
-iv-
{PAGE}
LIST OF EXHIBITS
Exhibit Title
------- -----
Exhibit A Form of Affiliate Agreement
-v-
{PAGE}
This AGREEMENT AND PLAN OF MERGER (this "AGREEMENT"), dated as of
January 7, 2002, is by and between DECODE GENETICS, INC., a Delaware corporation
("BUYER"), SAGA ACQUISITION CORP., a Delaware corporation and a wholly-owned
subsidiary of Buyer ("MERGER SUB"), on the one hand, and MEDICHEM LIFE SCIENCES,
INC., a Delaware corporation (the "COMPANY"), on the other hand.
WHEREAS, the respective Boards of Directors of Buyer, Merger Sub and
the Company have each determined that it is in the best interest of their
respective stockholders to effect a merger of Merger Sub with and into the
Company with the Company surviving as a wholly-owned subsidiary of Buyer (the
"MERGER"), pursuant to which, among other things, all of the issued and
outstanding common stock of the Company, par value $0.01 per share ("COMPANY
COMMON STOCK"), other than Company Common Stock owned by the Company, Buyer or
their respective wholly-owned Subsidiaries, shall be converted into the right to
receive shares of common stock, par value $0.001 per share, of Buyer ("BUYER
COMMON STOCK"), all upon the terms and subject to the conditions set forth
herein;
WHEREAS, Buyer is considering merging the Company and its wholly-owned
subsidiaries with and into Buyer immediately following the Merger (the "UPSTREAM
MERGERS");
WHEREAS, the Boards of Directors of Buyer, Merger Sub and the Company
have approved and adopted this Agreement, the Merger and the other transactions
contemplated hereby (including the Stockholder Agreements, as defined below),
and each has agreed to recommend approval of the transactions contemplated
hereby by their respective stockholders;
WHEREAS, concurrently herewith and as an inducement for Buyer to enter
into this Agreement, Buyer and certain stockholders of the Company representing
approximately 63% of the voting rights of the outstanding Company Common Stock
(the "PRINCIPAL STOCKHOLDERS") are entering into agreements (the "STOCKHOLDER
AGREEMENTS") pursuant to which such Principal Stockholders have agreed, among
other things, to vote all of the shares of Company Common Stock beneficially
owned by them in favor of approval and adoption of this Agreement and the
Merger; and
WHEREAS, for federal income tax purposes, it is intended that the
Merger and the Upstream Mergers (if they occur) shall qualify as a
reorganization within the meaning of Section 368(a) of the Internal Revenue Code
of 1986, as amended, and the rules and regulations promulgated thereunder (the
"CODE").
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements contained herein and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties, intending to be legally bound hereby, agree as
follows:
{PAGE}
ARTICLE I
CERTAIN DEFINITIONS
As used in this Agreement, the following terms shall have the
respective meanings set forth below:
"ACQUISITION PROPOSAL" shall have the meaning set forth in
Section 6.4(a)(i).
"AFFILIATE" shall have the meaning ascribed to such term under
Rule 144 of the Securities Act.
"AFFILIATE AGREEMENT" shall have the meaning set forth in
Section 6.10.
"ALS" shall have the meaning set forth in Section 4.1(t).
"AGREEMENT" shall have the meaning set forth in the Preamble.
"ASSIGNMENT AGREEMENTS" shall have the meaning set forth in
Section 6.14.
"BENEFICIAL OWNERSHIP" or "BENEFICIALLY OWN" shall have the
meaning ascribed to such terms under Section 13(d) of the Exchange Act.
"BENEFIT PLAN" means, with respect to any entity, any employee
benefit plan, program, policy, practice, agreement, contract or other
arrangement providing benefits to any current or former employee,
officer or director of such entity or any beneficiary or dependent
thereof that is sponsored or maintained by such entity or to which such
entity contributes or is obligated to contribute, whether or not
written, including any employee welfare benefit plan within the meaning
of Section 3(1) of ERISA, any employee pension benefit plan within the
meaning of Section 3(2) of ERISA (whether or not such plan is subject
to ERISA), any employment or severance agreement and any bonus,
incentive, executive compensation, deferred compensation, vacation,
performance pay, loan or loan guarantee, stock purchase, stock option,
performance share, stock appreciation or other equity compensation,
severance, change of control, plant closing or fringe benefit plan,
program or policy.
"BUSINESS DAY" means any day on which banks are not required
or authorized to close in the City of New York, New York or Reykjavik,
Iceland.
"BUYER" shall have the meaning set forth in the Preamble.
"BUYER 2000 10-K" means Buyer's Annual Report on Form 10-K for
the year ended December 31, 2000, as filed with the SEC.
"BUYER 10-Q" means Buyer's Quarterly Report on Form 10-Q for
the quarter ended September 30, 2001, as filed with the SEC.
"BUYER CAPITAL STOCK" shall have the meaning set forth in
Section 4.2(b)(i)(B).
2
{PAGE}
"BUYER COMMON STOCK" shall have the meaning set forth in the
Recitals.
"BUYER DISCLOSURE SCHEDULE" shall have the meaning set forth
in Section 4.2.
"BUYER OPTION PLANS" means Buyer's 1996 Equity Incentive Plan,
as amended.
"BUYER PREFERRED STOCK" shall have the meaning set forth in
Section 4.2(b)(i)(B).
"BUYER RECOMMENDATION" shall have the meaning set forth in
Section 6.1(c).
"BUYER SEC DOCUMENTS" shall have the meaning set forth in
Section 4.2(e).
"BUYER STOCK OPTIONS" means options to purchase shares of
Buyer Common Stock granted under Buyer Option Plans.
"BUYER STOCKHOLDER APPROVAL" shall have the meaning set forth
in Section 4.2(c)(i).
"BUYER STOCKHOLDERS MEETING" shall have the meaning set forth
in Section 4.2(c)(i).
"BUYER TERMINATION FEE" means an amount in cash equal to
$2,000,000.
"CERTIFICATE OF MERGER" shall have the meaning set forth in
Section 2.2.
"CHANGE IN THE BUYER RECOMMENDATION" shall have the meaning
set forth in Section 6.1(c).
"CHANGE IN THE COMPANY RECOMMENDATION" shall have the meaning
set forth in Section 6.1(b).
381263
|
UBS Warburg
As referenced in this Agreement and Plan of Merger:
UBS Warburg LLC – will not apply to this Agreement or any of the transactions
contemplated hereby.
(w) Opinion of Financial Advisor. The Board of Directors of
the Company has received the opinion of UBS Warburg LLC , dated the date
of this Agreement, to the effect that, as of such date, the Merger
Consideration is fair, from a financial point of view, to the holders
of
_____________
UBS Warburg LLC – or incurred any liability for any
brokers' fees, commissions or finders' fees in connection with the
transactions contemplated by this Agreement, excluding fees to be paid
by the Company to UBS Warburg LLC and William Blair & Company in
accordance with the Company's respective written agreements with such
firms, copies of which have been provided to Buyer, and such fees do
not
_____________
dt 1538256
;
Citibank
As referenced in this Agreement and Plan of Merger:
Citibank, N.A. – other party its costs and
expenses (including attorneys' fees and expenses) in connection with
such suit, together with interest on the amount of the fee at the prime
rate of Citibank, N.A. in effect on the date such payment was required
to be made, notwithstanding the provisions of Section 6.5. The parties
hereto agree that any remedy or amount payable
_____________
dt 1478229
;
deCODE genetics
As referenced in this Agreement and Plan of Merger:
DECODE GENETICS, INC – 1
{SEQUENCE}3
{FILENAME}w56734ex1.txt
{DESCRIPTION}AGREEMENT AND PLAN OF MERGER
{TEXT}
{PAGE}
EXHIBIT 1
================================================================================
AGREEMENT AND PLAN OF MERGER
DATED AS OF JANUARY 7, 2002
BY AND BETWEEN
DECODE GENETICS, INC .,
SAGA ACQUISITION CORP.
AND
MEDICHEM LIFE SCIENCES, INC.
================================================================================
{PAGE}
TABLE OF CONTENTS
{TABLE}
{CAPTION}
Page
----
{S} {C}
ARTICLE I CERTAIN DEFINITIONS.................................................................................. 2
ARTICLE II THE MERGER.......................................................................................... 8
2.1
_____________
DECODE GENETICS, INC – OF EXHIBITS
Exhibit Title
------- -----
Exhibit A Form of Affiliate Agreement
-v-
{PAGE}
This AGREEMENT AND PLAN OF MERGER (this "AGREEMENT"), dated as of
January 7, 2002, is by and between DECODE GENETICS, INC ., a Delaware corporation
("BUYER"), SAGA ACQUISITION CORP., a Delaware corporation and a wholly-owned
subsidiary of Buyer ("MERGER SUB"), on the one hand, and MEDICHEM LIFE SCIENCES,
INC., a
_____________
deCODE genetics, Inc – as set
forth below, or pursuant to such other instructions as may be designated in
writing by the party to receive such notice:
if to Buyer or Merger Sub to:
deCODE genetics, Inc .
Lynghals 1
110 Reykjavik, Iceland
Fax: +354 (570) 1901
Attention: Kari Stefansson, M.D., Dr. Med.
with a copy to:
Gibson, Dunn & Crutcher LLP
200 Park Avenue
New York,
_____________
DECODE GENETICS, INC – WITNESS WHEREOF, Buyer, Merger Sub and the Company have
caused this Agreement to be signed by their respective officers thereunto duly
authorized, all as of the date first written above.
DECODE GENETICS, INC .
By: /s/ Kari Stefansson
----------------------------------
Name: Kari Stefansson
Title: CEO and President
SAGA ACQUISITION CORP.
By: /s/ Kari Stefansson
----------------------------------
Name: Kari Stefansson
Title: Director
MEDICHEM LIFE SCIENCES, INC.
By: /s/
_____________
dt 1327416
;
|
Medichem
As referenced in this Agreement and Plan of Merger:
MEDICHEM LIFE SCIENCES, INC – AGREEMENT AND PLAN OF MERGER
{TEXT}
{PAGE}
EXHIBIT 1
================================================================================
AGREEMENT AND PLAN OF MERGER
DATED AS OF JANUARY 7, 2002
BY AND BETWEEN
DECODE GENETICS, INC.,
SAGA ACQUISITION CORP.
AND
MEDICHEM LIFE SCIENCES, INC .
================================================================================
{PAGE}
TABLE OF CONTENTS
{TABLE}
{CAPTION}
Page
----
{S} {C}
ARTICLE I CERTAIN DEFINITIONS.................................................................................. 2
ARTICLE II THE MERGER.......................................................................................... 8
2.1 The Merger.................................................................................... 8
2.2 Effective Time of
_____________
MEDICHEM LIFE SCIENCES,
INC – by and between DECODE GENETICS, INC., a Delaware corporation
("BUYER"), SAGA ACQUISITION CORP., a Delaware corporation and a wholly-owned
subsidiary of Buyer ("MERGER SUB"), on the one hand, and MEDICHEM LIFE SCIENCES,
INC ., a Delaware corporation (the "COMPANY"), on the other hand.
WHEREAS, the respective Boards of Directors of Buyer, Merger Sub and
the Company have each determined that it is in
_____________
MediChem Life Sciences, Inc – a copy to:
Gibson, Dunn & Crutcher LLP
200 Park Avenue
New York, New York 10166-0193
Fax: (212) 351-4035
Attention: Scott A. Kislin, Esq.
if to the Company to:
MediChem Life Sciences, Inc .
2501 Davey Road
Woodridge, IL 60517
Fax: (630) 783-4949
Attention: Michael T. Flavin, Ph.D.
with a copy to:
Winston & Strawn
35 West Wacker Drive
Chicago, IL 60601
_____________
MEDICHEM LIFE SCIENCES, INC – date first written above.
DECODE GENETICS, INC.
By: /s/ Kari Stefansson
----------------------------------
Name: Kari Stefansson
Title: CEO and President
SAGA ACQUISITION CORP.
By: /s/ Kari Stefansson
----------------------------------
Name: Kari Stefansson
Title: Director
MEDICHEM LIFE SCIENCES, INC .
By: /s/ Michael T. Flavin
----------------------------------
Name: Michael T. Flavin
Title: CEO and President
55
{/TEXT}
{/DOCUMENT}
_____________
dt 1503420
;
BNY
As referenced in this Agreement and Plan of Merger:
Bank of New York, – the effectiveness of such registration statement or registration
statements in accordance with the requirements of applicable law.
3.4 Exchange Fund. Prior to the Effective Time, Buyer shall appoint The
Bank of New York, Inc., or a commercial bank or trust company, or a subsidiary
thereof, to act as exchange agent hereunder for the purpose of exchanging
Company Certificates for the Merger Consideration (
_____________
dt 1583455
;
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| 2001 |
Agreement and Plan of Merger
Agreement and Plan of Merger (218K)
Doc #402008: Click preview link for longer preview.
AGREEMENT AND PLAN OF MERGER
by and among
GENERAL ELECTRIC COMPANY
MARGARET ACQUISITION, INC.
and
INTERLOGIX, INC.
December 17, 2001
{Page}
TABLE OF CONTENTS
{Table}
{Caption}
PAGE
{S} {C}
ARTICLE I THE OFFER AND MERGER............................................................................2
SECTION 1.1. THE OFFER.......................................................................................2
SECTION 1.2. COMPANY ACTIONS.................................................................................4
SECTION 1.3. DIRECTORS.......................................................................................6
SECTION 1.4. THE MERGER......................................................................................7
SECTION 1.5. EFFECTIVE TIME..................................................................................7
SECTION 1.6. CLOSING.........................................................................................7
SECTION 1.7. DIRECTORS AND OFFICERS OF THE SURVIVING CORPORATION.............................................8
SECTION 1.8. STOCKHOLDERS' MEETING...........................................................................8
SECTION 1.9. MERGER WITHOUT MEETING OF STOCKHOLDERS..........................................................9
ARTICLE II CONVERSION OF SECURITIES........................................................................9
SECTION 2.1. CONVERSION OF CAPITAL STOCK.....................................................................9
SECTION 2.2. EXCHANGE OF CERTIFICATES.......................................................................10
SECTION 2.3. DISSENTING SHARES..............................................................................12
SECTION 2.4. COMPANY OPTION PLANS...........................................................................13
ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE COMPANY..................................................13
SECTION 3.1. CORPORATE ORGANIZATION.........................................................................13
SECTION 3.2. CERTIFICATE OF INCORPORATION AND BY-LAWS.......................................................14
SECTION 3.3. CAPITALIZATION.................................................................................15
SECTION 3.4. AUTHORITY......................................................................................15
SECTION 3.5. CONSENTS AND APPROVALS; NO VIOLATIONS..........................................................16
SECTION 3.6. SEC DOCUMENTS; UNDISCLOSED LIABILITIES.........................................................17
SECTION 3.7. ABSENCE OF CERTAIN CHANGES OR EVENTS...........................................................18
SECTION 3.8. LEGAL PROCEEDINGS..............................................................................18
SECTION 3.9. COMPLIANCE WITH APPLICABLE LAW.................................................................18
SECTION 3.10. COMPANY INFORMATION............................................................................19
SECTION 3.11. PENSION AND BENEFIT PLANS, ERISA...............................................................19
SECTION 3.12. ENVIRONMENTAL MATTERS; HEALTH AND SAFETY.......................................................21
SECTION 3.13. PROPERTIES.....................................................................................22
SECTION 3.14. TAX RETURNS AND TAX PAYMENTS...................................................................23
SECTION 3.15. INTELLECTUAL PROPERTY..........................................................................24
SECTION 3.16. INTERESTED PARTY TRANSACTIONS..................................................................25
SECTION 3.17. TAKEOVER STATUTES; RIGHTS PLAN.................................................................25
SECTION 3.18. OPINION OF FINANCIAL ADVISOR...................................................................26
SECTION 3.19. BROKER'S FEES..................................................................................26
SECTION 3.20. CONTRACTS......................................................................................26
SECTION 3.21. PRODUCT LIABILITY; WARRANTIES..................................................................27
SECTION 3.22. INSURANCE......................................................................................27
SECTION 3.23. EMPLOYEE AND LABOR RELATIONS...................................................................28
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF PARENT AND PURCHASER.........................................29
SECTION 4.1. CORPORATE ORGANIZATION.........................................................................29
SECTION 4.2. CAPITALIZATION.................................................................................29
SECTION 4.3. AUTHORITY......................................................................................29
SECTION 4.4. CONSENTS AND APPROVALS; NO VIOLATIONS..........................................................30
SECTION 4.5. SEC DOCUMENTS; UNDISCLOSED LIABILITIES.........................................................30
SECTION 4.6. PARENT OR PURCHASER INFORMATION................................................................31
SECTION 4.7. FINANCING......................................................................................31
-i-
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SECTION 4.8. STOCK OWNERSHIP................................................................................31
SECTION 4.9. PURCHASER CAPITALIZATION.......................................................................31
SECTION 4.10. PURCHASER'S OPERATION..........................................................................32
SECTION 4.11. BROKER'S FEES..................................................................................32
SECTION 4.12. TAX MATTERS....................................................................................32
ARTICLE V COVENANTS......................................................................................32
SECTION 5.1. CONDUCT OF BUSINESS BY THE COMPANY PRIOR TO THE EFFECTIVE TIME.................................32
SECTION 5.2. NO SOLICITATION................................................................................34
SECTION 5.3. INTENTIONALLY OMITTED..........................................................................36
402008
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UBS Warburg
As referenced in this Agreement and Plan of Merger:
UBS Warburg LLC – of the date hereof, the Rights Plan is inapplicable to
the Transactions.
Section 3.18. OPINION OF FINANCIAL ADVISOR. The Company's Board of
Directors has received the opinion of UBS Warburg LLC ("UBS"), financial advisor
to the Company's Board of Directors, to the effect that, as of the date of such
opinion, the consideration to be received in the Offer
_____________
dt 1538276
;
Wells Fargo Bank
As referenced in this Agreement and Plan of Merger:
Wells Fargo Bank, N – Company's Board of
Directors and (iii) taken all action necessary so that the Company's Rights
Agreement, dated as of
-4-
{Page}
November 27, 1996, between the Company and Wells Fargo Bank, N .A., as rights
agent, as amended (as so amended, the "RIGHTS PLAN"), is and, through the
Effective Time (as defined herein), will be inapplicable to Parent and the
Purchaser,
_____________
dt 1432967
;
|
Dechert
As referenced in this Agreement and Plan of Merger:
Dechert – shall file the final prospectus included
therein under Rule 424(b) promulgated pursuant to the Securities Act.
(d) Parent shall include as exhibits to the Registration Statement tax
opinions of Dechert and Gibson Dunn & Crutcher LLP, in form and substance
reasonably satisfactory to Parent and to the Company, on the basis of customary
facts, representations, warranties and covenants of Parent, the
_____________
Dechert, – no event later than the second Business Day,
after satisfaction or waiver of all of the conditions set forth in Article VI
hereof (the "CLOSING DATE"), at the offices of Dechert, 1717 Arch Street,
-7-
{Page}
Philadelphia, Pennsylvania 19103, unless another date or place is agreed to in
writing by the parties hereto.
Section 1.7. DIRECTORS AND OFFICERS OF
_____________
Dechert
– West 7th Street
Suite 1300
Austin, Texas 78701
Attention: Michael S. Lafair,
General Counsel
Telephone No.: (512) 381-2760
Telecopier No.: (512) 381-1773
with a copy to:
-50-
{Page}
Dechert
4000 Bell Atlantic Tower
1717 Arch Street
Philadelphia, Pennsylvania 19103
Attention: Craig L. Godshall, Esq.
Telephone No.: (215) 994-4000
Telecopier No.: (215) 994-2222
Section 9.5. COUNTERPARTS.
_____________
dt 1404058
;
Gibson Dunn
As referenced in this Agreement and Plan of Merger:
Gibson Dunn – the final prospectus included
therein under Rule 424(b) promulgated pursuant to the Securities Act.
(d) Parent shall include as exhibits to the Registration Statement tax
opinions of Dechert and Gibson Dunn & Crutcher LLP, in form and substance
reasonably satisfactory to Parent and to the Company, on the basis of customary
facts, representations, warranties and covenants of Parent, the Purchaser and
_____________
Gibson, Dunn – Parent or the Purchaser, to:
GE Industrial Systems
41 Woodford Avenue
Plainville, CT 06062
Attention: James R. Billingsley, Jr.
Senior Counsel
Telecopier No.: (860) 747-7079
with a copy to:
Gibson, Dunn & Crutcher LLP
200 Park Avenue
New York, New York 10166-0193
Attention: Steven R. Shoemate
Telephone No.: (212) 351-3879
Telecopier No.: (212) 351-4035
(b) if to the
_____________
dt 1483564
|
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| 2002 |
Agreement and Plan of Merger
Agreement and Plan of Merger (151K)
Doc #422626: Click preview link for longer preview.
AGREEMENT AND PLAN OF MERGER
This AGREEMENT AND PLAN OF MERGER (this "Agreement") is made and entered
into as of May 30, 2002 among Matria Healthcare, Inc., a Delaware corporation
("Parent"), MRDC Acquisition Corp., a Georgia corporation and a wholly-owned
subsidiary of Parent ("Merger Sub"), and MarketRing.com, Inc., a Georgia
corporation (the "Company").
RECITALS
A. Upon the terms and subject to the conditions of this Agreement and in
accordance with the Georgia Business Corporation Code (the "GBCC"), Parent and
the Company desire to enter into a transaction pursuant to which Merger Sub will
merge with and into the Company (the "Merger").
B. The parties intend for the Merger to be a tax-free reorganization within
the meaning of Section 368 of the Internal Revenue Code of 1986, as amended (the
"Code"), and for this Agreement to constitute a plan of reorganization under
such Section.
NOW, THEREFORE, in consideration of the covenants, promises and
representations set forth herein, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties agree
as follows:
ARTICLE I
THE MERGER
1.1 The Merger. At the Effective Time (as defined in Section 1.2) and subject to
and upon the terms and conditions of this Agreement and the applicable
provisions of the GBCC, Merger Sub shall be merged with and into the Company,
the separate corporate existence of Merger Sub shall cease and the Company shall
continue as the surviving corporation. The Company as the surviving corporation
after the Merger is hereinafter sometimes referred to as the "Surviving
Corporation."
{PAGE}
1.2 Effective Time; Closing. Subject to the provisions of this Agreement, the
parties hereto shall cause the Merger to be consummated by filing a Certificate
of Merger (the "Certificate of Merger") with the Secretary of State of Georgia
in accordance with the relevant provisions of the GBCC (the time of such filing
(or such later time as may be agreed in writing by the parties and specified in
the Certificate of Merger) being the "Effective Time") as soon as practicable on
or after the Closing Date (as herein defined). The closing of the Merger (the
"Closing") shall take place in Marietta, Georgia, at the offices of Parent, at a
time and date to be specified by the parties, which shall be no later than the
third business day after the satisfaction or waiver of the conditions set forth
in Article VI (the "Closing Date").
1.3 Effect of the Merger. At the Effective Time, the effect of the Merger shall
be as provided in this Agreement and the applicable provisions of the GBCC.
Without limiting the generality of the foregoing, and subject thereto, at the
Effective Time all the property, rights, privileges, powers and franchises of
the Company and Merger Sub shall vest in the Surviving Corporation, and all
debts, liabilities and duties of the Company and Merger Sub shall become the
debts, liabilities and duties of the Surviving Corporation.
1.4 Organization of Surviving Corporation.
(a) At the Effective Time, the Articles of Incorporation of the Company shall be
amended and restated in their entirety to be identical to the Articles of
Incorporation of Merger Sub, as in effect immediately prior to the Effective
Time, which shall be the Articles of Incorporation of the Surviving Corporation
until thereafter amended; provided, however, that Article I of the Articles of
Incorporation shall be amended to read as follows: The name of the corporation
is MarketRing.com, Inc.
(b) The Bylaws of Merger Sub as in effect immediately prior to the Effective
Time shall be the Bylaws of the Surviving Corporation until thereafter amended.
(c) The initial directors of the Surviving Corporation shall be the directors of
Merger Sub immediately prior to the Effective Time, each to hold office until
their respective successors are duly elected or appointed and qualified. The
initial officers of the Surviving Corporation shall be the officers of Merger
Sub immediately prior to the Effective Time, each to hold office until their
respective successors are duly appointed.
1.5 Effect on Capital Stock. Subject to the terms and conditions of this
Agreement, at the Effective Time, by virtue of the Merger and without any action
on the part of Merger Sub, the Company or the holders of any of the following
securities, the following shall occur:
(a) Conversion of Company Common Stock. Each share of Common Stock, no par
value, of the Company (the "Company Common Stock") issued and outstanding
immediately prior to the Effective Time (other than any shares of Company Common
Stock to be canceled pursuant to Section 1.5(b)) will be canceled and
extinguished and automatically converted (subject to Sections 1.5(e) and (f))
into the right to receive a number of shares of Common Stock, par value $0.01
per share, of Parent (the "Parent Common Stock") equal to the Exchange Ratio (as
herein defined) upon surrender of the certificate representing such share of
Company Common Stock (or in the case of a lost, stolen or destroyed certificate,
upon delivery of an affidavit and indemnity agreement) and otherwise in the
manner provided in and subject to the terms and conditions of Section 1.7 and
subject to Parent's right of set-off pursuant to Section 8.4. The "Exchange
Ratio" shall be a number equal to the quotient obtained by dividing (i) 310,000,
increased by the amount of any positive Share Adjustment (as herein defined) or
reduced by the amount of any negative Share Adjustment, by (ii) the total number
of shares of Company Common Stock issued and outstanding and reserved for
issuance upon exercise of the Company Warrant and all Company Options (as such
terms are defined in Section 1.5(c)) immediately prior to the Effective Time.
For purposes of the preceding formula, the "Share Adjustment" shall be a number
equal to the quotient obtained by dividing (x) the Adjustment Amount (as defined
in Section 1.11(a)), by (y) the average per share closing price of the Parent
Common Stock during the five (5) consecutive trading days immediately preceding
422626
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UBS Warburg
As referenced in this Agreement and Plan of Merger:
UBS Warburg LLC – and
Amended and Restated as of July 9, 2001 among Parent and certain of its
subsidiaries, as Borrowers, the lenders named therein, First Union National
Bank, as Administrative Agent and UBS Warburg LLC , as Syndication Agent, and
arranged by First Union Securities, Inc. on terms satisfactory to Parent (the
"Credit Facility").
{PAGE}
(d) Third Party Consents. All Third Party Consents shall have
_____________
dt 1538319
;
Matria
As referenced in this Agreement and Plan of Merger:
Matria Healthcare, Inc – AND PLAN OF MERGER-MARKETRING
{TEXT}
AGREEMENT AND PLAN OF MERGER
This AGREEMENT AND PLAN OF MERGER (this "Agreement") is made and entered
into as of May 30, 2002 among Matria Healthcare, Inc ., a Delaware corporation
("Parent"), MRDC Acquisition Corp., a Georgia corporation and a wholly-owned
subsidiary of Parent ("Merger Sub"), and MarketRing.com, Inc., a Georgia
corporation (the "Company").
RECITALS
_____________
Matria Healthcare, Inc – Whitley, Hampton & Morgan
Five Concourse Parkway, Suite 2150
Atlanta, GA 30328
Attention: H. Grady Thrasher, IV
Fax No.: (770) 804-5555
(c) if to the Parent or Merger Sub, to:
Matria Healthcare, Inc .
1850 Parkway Place, Suite 1200
Marietta, GA 30067
Attention: General Counsel
Fax No.: (770) 767-7769
with a copy to:
Troutman Sanders LLP
5200 NationsBank Plaza
600 Peachtree Street,
_____________
MATRIA HEALTHCARE, INC – PAGE}
IN WITNESS WHEREOF, Parent, Merger Sub and the Company have caused this
Agreement to be executed by their duly authorized respective officers, as of the
date first written above.
MATRIA HEALTHCARE, INC .
By:
Name:
Title:
MRDC ACQUISITION CORP.
By:
Name:
Title:
MARKETRING.COM, INC.
By:
Name:
Title:
{/TEXT}
{/DOCUMENT}
_____________
dt 1326996
;
First Union
As referenced in this Agreement and Plan of Merger:
First Union National
Bank, – Credit Agreement dated as of January 19, 1999 and
Amended and Restated as of July 9, 2001 among Parent and certain of its
subsidiaries, as Borrowers, the lenders named therein, First Union National
Bank, as Administrative Agent and UBS Warburg LLC, as Syndication Agent, and
arranged by First Union Securities, Inc. on terms satisfactory to Parent (the
"Credit Facility").
{PAGE}
(d) Third Party
_____________
dt 1464389
;
|
First Union
As referenced in this Agreement and Plan of Merger:
First Union Securities, Inc – among Parent and certain of its
subsidiaries, as Borrowers, the lenders named therein, First Union National
Bank, as Administrative Agent and UBS Warburg LLC, as Syndication Agent, and
arranged by First Union Securities, Inc . on terms satisfactory to Parent (the
"Credit Facility").
{PAGE}
(d) Third Party Consents. All Third Party Consents shall have been duly
obtained, and such consents, authorizations or approvals shall
_____________
dt 1536656
;
Troutman Sanders
As referenced in this Agreement and Plan of Merger:
Troutman Sanders – by the chief executive officer of Parent, dated
as of the Closing Date, certifying to the fulfillment of the conditions
specified in Section 6.2 hereof;
(ii) an opinion of Troutman Sanders LLP, counsel for Parent, dated the
Closing Date, in form and substance reasonably satisfactory to the Company;
(iii) the Substitute Warrant, executed by Parent; provided, however, that
Parent shall
_____________
Troutman Sanders – to the Parent or Merger Sub, to:
Matria Healthcare, Inc.
1850 Parkway Place, Suite 1200
Marietta, GA 30067
Attention: General Counsel
Fax No.: (770) 767-7769
with a copy to:
Troutman Sanders LLP
5200 NationsBank Plaza
600 Peachtree Street, N.E.
Atlanta, GA 30308
Attention: James L. Smith, III
Fax No.: (404) 962-6687
{PAGE}
9.2 Interpretation; Knowledge; Material Adverse Effect.
(
_____________
dt 1487749
|
Preview
Full Doc
| 2000 |
Agreement and Plan of Restructuring and Merger
Agreement and Plan of Restructuring and Merger (166K)
Doc #443559: Click preview link for longer preview.
AGREEMENT AND PLAN OF RESTRUCTURING AND MERGER
dated as of
October 26, 2000
among
FLOWERS INDUSTRIES, INC.,
KELLOGG COMPANY
and
KANSAS MERGER SUBSIDIARY, INC.
TABLE OF CONTENTS
. . .
443559
|
UBS Warburg
As referenced in this Agreement and Plan of Restructuring and Merger:
UBS Warburg LLC – a Material Adverse
Effect on the Company or materially impair, delay or prevent the consummation of
the transactions contemplated by the Transaction Agreements.
Section 4.13. FINDERS' FEES. Except for UBS Warburg LLC and Morgan Stanley
& Co. Incorporated, copies of whose engagement agreements have been provided to
Parent, there is no investment banker, broker, finder or other intermediary that
has been retained
_____________
UBS Warburg LLC – behalf of the Company in
connection with the transactions contemplated by the Transaction Agreements.
Section 4.14. OPINION OF FINANCIAL ADVISERS. The Company has received an
opinion of each of UBS Warburg LLC and Morgan Stanley & Co. Incorporated each
dated as of the date of this Agreement and each to the effect that, as of the
date of such opinion, the Merger
_____________
dt 1538343
;
Flowers Foods
As referenced in this Agreement and Plan of Restructuring and Merger:
Flowers Foods,
Inc – of
Parent ("Merger Subsidiary").
WHEREAS, prior to the Effective Time (as defined below), the assets of the
Company will consist of (i) 100% of the shares of Common Stock of Flowers Foods,
Inc ., a Georgia corporation ("Spinco") and (ii) 46,197,466 shares of common
stock, $0.01 par value of Keebler Foods Company, a Delaware corporation ("ELF"),
representing a majority of
_____________
FLOWERS FOODS, INC – FLOWERS INDUSTRIES, INC.
By: /s/ G.A. Campbell
---------------------------------------
Name:
Title:
KELLOGG COMPANY
By: /s/ Carlos M. Gutierrez
---------------------------------------
Name:
Title:
KANSAS MERGER SUBSIDIARY, INC.
By: /s/ Janet Langford Kelly
---------------------------------------
Name:
Title:
FLOWERS FOODS, INC . (for purposes of
Section 11.02 only)
By:/s/ G.A. Campbell
---------------------------------------
Name:
Title:
-45-
{PAGE}
SCHEDULE I
----------
Capitalized terms used but not defined in paragraphs (a) or (c)
_____________
dt 1366351
;
|
First Union
As referenced in this Agreement and Plan of Restructuring and Merger:
First Union National Bank, – means the preferred stock purchase rights issued pursuant to the
terms of the Rights Agreement.
"Rights Agreement" means the agreement dated as of April 2, 1999 between
the Company and First Union National Bank, as Rights Agent.
"SEC" means the Securities and Exchange Commission.
"Share Equivalent" means any stock option, warrant, performance share or
right of conversion issued pursuant to a stock option,
_____________
dt 1464416
;
Morgan Stanley
As referenced in this Agreement and Plan of Restructuring and Merger:
Morgan Stanley
& Co. – on the Company or materially impair, delay or prevent the consummation of
the transactions contemplated by the Transaction Agreements.
Section 4.13. FINDERS' FEES. Except for UBS Warburg LLC and Morgan Stanley
& Co. Incorporated, copies of whose engagement agreements have been provided to
Parent, there is no investment banker, broker, finder or other intermediary that
has been retained by or is authorized
_____________
Morgan Stanley & Co. – in
connection with the transactions contemplated by the Transaction Agreements.
Section 4.14. OPINION OF FINANCIAL ADVISERS. The Company has received an
opinion of each of UBS Warburg LLC and Morgan Stanley & Co. Incorporated each
dated as of the date of this Agreement and each to the effect that, as of the
date of such opinion, the Merger Consideration to be received
_____________
dt 1471929
;
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Full Doc
| 2002 |
Agreement and Plan of Reorganization
Agreement and Plan of Reorganization (168K)
Doc #830123: Click preview link for longer preview.
AGREEMENT AND
PLAN OF REORGANIZATION
by and among
UNIVISION COMMUNICATIONS INC.,
UNIVISION ACQUISITION CORPORATION
and
HISPANIC BROADCASTING CORPORATION
dated as of June 11, 2002
TABLE OF CONTENTS
Page
ARTICLE I
THE MERGER
1.1
The Merger
1
1.2
Effective Time
1
1.3
Closing of the Merger
1
1.4
Effects of the Merger
2
1.5
Certificate of Incorporation and By-laws
2
1.6
Directors
2
1.7
Officers
. . .
830123
|
UBS Warburg
As referenced in this Agreement and Plan of Reorganization:
UBS Warburg LLC – other like payments in connection with the negotiations leading to this Agreement or the consummation of the Transactions.
3.15 Opinion of Financial Advisor. Univision has received the opinion of UBS Warburg LLC to the effect that, as of the date of this Agreement, the Exchange Ratio is fair to Univision from a financial point of view, a copy of which has
_____________
dt 1538382
;
Clear Channel
As referenced in this Agreement and Plan of Reorganization:
Clear Channel Communications, Inc – such exercise.
4.23 Conversion to Class B Common Stock. If the Forward Merger has not been effected pursuant to the terms of this Agreement and the FCC has deemed Clear Channel Communications, Inc . ("Clear Channel") to have an attributable interest in Univision under the Federal Communications Act or any of its rules or regulations at any time after the Effective Time, upon
_____________
Clear Channel Communications, Inc – assigns. Notwithstanding anything contained in this Agreement to the contrary, except for the provisions of Section 4.13, Section 4.18, 4.23 and 5.2(d)(as to which Clear Channel Communications, Inc is a third party beneficiary), nothing in this Agreement, expressed or implied, is intended to confer on any person other than the parties hereto or their respective heirs, successors,
_____________
dt 1354824
;
Grupo Televisa
As referenced in this Agreement and Plan of Reorganization:
Grupo Televisa, S.A. – with past practice, or any change in its tax elections that would materially increase its tax liabilities;
(10) must not amend any agreements between Univision (or any Univision Subsidiary) and Grupo Televisa, S.A. (or any '33 Act Affiliate of Grupo Televisa, S.A.) or Corporacion Venezolana de Television, C.A. (or any '33 Act Affiliate of Corporacion Venezolana de Television, C.A.),
_____________
Grupo Televisa, S.A. – that would materially increase its tax liabilities;
(10) must not amend any agreements between Univision (or any Univision Subsidiary) and Grupo Televisa, S.A. (or any '33 Act Affiliate of Grupo Televisa, S.A. ) or Corporacion Venezolana de Television, C.A. (or any '33 Act Affiliate of Corporacion Venezolana de Television, C.A.), in a manner that has a Univision Material Adverse Effect (
_____________
dt 1413345
;
|
Univision
As referenced in this Agreement and Plan of Reorganization:
UNIVISION COMMUNICATIONS INC – EX-2.1 3 a2082303zex-2_1.htm EXHIBIT 2.1
QuickLinks -- Click here to rapidly navigate through this document
Exhibit 2.1
AGREEMENT AND
PLAN OF REORGANIZATION
by and among
UNIVISION COMMUNICATIONS INC .,
UNIVISION ACQUISITION CORPORATION
and
HISPANIC BROADCASTING CORPORATION
dated as of June 11, 2002
TABLE OF CONTENTS
Page
ARTICLE I
THE MERGER
1.1
The Merger
1
1.2
Effective
_____________
Univision Communications Inc – 15
Waiver Of Jury Trial
41
-iii-
AGREEMENT AND PLAN OF REORGANIZATION
This AGREEMENT AND PLAN OF REORGANIZATION (this "Agreement"), dated as of June 11, 2002, is by and among Univision Communications Inc ., a Delaware corporation ("Univision"), Hispanic Broadcasting Corporation, a Delaware corporation ("HBC"), and Univision Acquisition Corporation, a Delaware corporation and a direct wholly-owned subsidiary of Univision ("Merger Sub").
RECITALS
_____________
UNIVISION COMMUNICATIONS INC – AGREEMENT.
41
IN WITNESS WHEREOF, the parties have executed this Agreement and caused the same to be duly delivered on their behalf on the day and year first written above.
UNIVISION COMMUNICATIONS INC .
By:
/s/ C. DOUGLAS KRANWINKLE
Name: C. Douglas Kranwinkle
Title: Executive Vice President
HISPANIC BROADCASTING CORPORATION
By:
/s/ MCHENRY T. TICHENOR, JR.
Name: McHenry T. Tichenor, Jr.
Title: Chairman,
_____________
UNIVISION COMMUNICATIONS INC – CEO & President
UNIVISION ACQUISITION CORPORATION
By:
/s/ C. DOUGLAS KRANWINKLE
Name: C. Douglas Kranwinkle
Title: Vice President & Secretary
42
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AGREEMENT AND PLAN OF REORGANIZATION by and among UNIVISION COMMUNICATIONS INC ., UNIVISION ACQUISITION CORPORATION and HISPANIC BROADCASTING CORPORATION dated as of June 11, 2002
TABLE OF CONTENTS
AGREEMENT AND PLAN OF REORGANIZATION
_____________
dt 1547295
;
BNY
As referenced in this Agreement and Plan of Reorganization:
Bank of New York – be cancelled and retired without payment of any consideration therefor.
1.9 Exchange Procedure.
2
(a) Promptly following the Closing Date, Univision will deposit (or cause to be deposited) with Bank of New York (the "Exchange Agent"), for the benefit of the holders of certificates (or other evidence of ownership) representing the shares of HBC Stock issued and outstanding as of the Effective
_____________
dt 1584664
|
Preview
Full Doc
| 2002 |
Agreement and Plan of Reorganization
Agreement and Plan of Reorganization (265K)
Doc #906823: Click preview link for longer preview.
AMONG
AVANEX CORPORATION,
PEARL ACQUISITION CORP.
AND
OPLINK COMMUNICATIONS, INC.
Dated as of March 18, 2002
<PAGE>
AGREEMENT AND PLAN OF REORGANIZATION
This AGREEMENT AND PLAN OF REORGANIZATION (the "Agreement") is made and
entered into as of March 18, 2002 among Avanex Corporation, a Delaware
corporation ("Avanex"), Pearl Acquisition Corp., a . . .
906823
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UBS Warburg
As referenced in this Agreement and Plan of Reorganization:
UBS Warburg,
--------------------------
LLC – which in any manner seeks to prevent, enjoin, alter or
delay any of the transactions contemplated by this Agreement.
3.11 Brokers' and Finders' Fees. Except for fees payable to UBS Warburg,
--------------------------
LLC pursuant to an engagement letter dated January 8, 2002, Avanex has not
incurred, nor will it incur, directly or indirectly, any liability for brokerage
or finders' fees or agents'
_____________
UBS Warburg, LLC – the Oplink Board Recommendation are hereinafter referred to, as applicable, a
"Board Recommendation").
3.19 Opinion of Financial Advisor. The Board of Directors of Avanex has
----------------------------
received an opinion from UBS Warburg, LLC dated the date of this Agreement, to
the effect that, as of such date, the Exchange Ratio is fair, from a financial
point of view to Avanex, a signed
_____________
dt 1538448
;
Citibank
As referenced in this Agreement and Plan of Reorganization:
Citibank, N.A. – including reasonable attorneys' fees and
expenses) in connection with such suit, together with interest on the amounts
set forth in this Section 7.3(b) at the prime rate of Citibank, N.A. in effect
on the date such payment was required to be made. Payment of the fees described
in this Section 7.3(b) shall not be in lieu of
_____________
dt 1478830
;
Oplink
As referenced in this Agreement and Plan of Reorganization:
OPLINK COMMUNICATIONS, INC. – dex1.txt
AGREEMENT AND PLAN OF REORGANIZATION DATED 3/18/02
Exhibit 1
EXECUTION COPY
AGREEMENT AND PLAN OF REORGANIZATION
AMONG
AVANEX CORPORATION,
PEARL ACQUISITION CORP.
AND
OPLINK COMMUNICATIONS, INC.
Dated as of March 18, 2002
AGREEMENT AND PLAN OF REORGANIZATION
This AGREEMENT AND PLAN OF REORGANIZATION (the "Agreement") is made and
entered into as of March 18,
_____________
Oplink Communications,
Inc. – entered into as of March 18, 2002 among Avanex Corporation, a Delaware
corporation ("Avanex"), Pearl Acquisition Corp., a Delaware corporation and a
wholly owned subsidiary of Avanex ("Merger Sub"), and Oplink Communications,
Inc. , a Delaware corporation ("Oplink").
RECITALS
--------
A. Upon the terms and subject to the conditions of this Agreement and in
accordance with the Delaware General Corporation Law ("Delaware Law"), Avanex
_____________
Oplink Communications, Inc. – Certificate of Incorporation;
provided, however, that at the Effective Time Article I of the Certificate of
-------- -------
Incorporation shall be amended to read as follows: "The name of the corporation
is Oplink Communications, Inc. "
(b) At the Effective Time, the Bylaws of the Surviving Corporation
shall be amended and restated in their entirety to be identical to the Bylaws of
Merger Sub, as
_____________
Oplink Communications, Inc. – Incorporation or Bylaws or equivalent governing instruments.
(d) Oplink has timely paid in its capital contribution to the
registered capital of each of Shanghai Oplink Communications Co., Ltd., Zhuhai
FTZ Oplink Communications, Inc. , Zhuhai Oplink Communications Technology, Ltd.,
Zhuhai FTZ Telelight Communications, Inc., Beijing Oplink Communications, Inc.
and Chengdu Oplink Communications, Inc. (each, a "PRC Subsidiary" and
collectively, the "PRC Subsidiaries") as
_____________
Oplink Communications, Inc. – capital contribution to the
registered capital of each of Shanghai Oplink Communications Co., Ltd., Zhuhai
FTZ Oplink Communications, Inc., Zhuhai Oplink Communications Technology, Ltd.,
Zhuhai FTZ Telelight Communications, Inc., Beijing Oplink Communications, Inc.
and Chengdu Oplink Communications, Inc. (each, a "PRC Subsidiary" and
collectively, the "PRC Subsidiaries") as such capital contributions have become
due. The People's Republic of China is defined
_____________
dt 1460573
;
|
BNY
As referenced in this Agreement and Plan of Reorganization:
Bank of New York, – as such terms are defined in the Oplink Rights Agreement) will occur
under the terms of the Rights Agreement entered into as of the date hereof
between Oplink and The Bank of New York, as rights agent, (the "Oplink Rights
Agreement") as a result of the approval, execution or delivery of this
Agreement, the Oplink Option Agreement, the Oplink Voting Agreements or the
_____________
dt 1585040
;
WSGR
As referenced in this Agreement and Plan of Reorganization:
Wilson Sonsini – the "Effective Time") as soon as
practicable on or after the Closing Date (as herein defined). The closing of the
Merger (the "Closing") shall take place at the offices of Wilson Sonsini
Goodrich & Rosati, Professional Corporation, located at 650 Page Mill Road, Palo
Alto, California, at a time and date to be specified by the parties, which shall
be no later
_____________
Wilson Sonsini – by order of a court of competent jurisdiction.
5.18 Tax Matters. At or prior to the filing of the Registration Statement,
-----------
Avanex and Oplink will execute and deliver to Wilson Sonsini Goodrich & Rosati,
Professional Corporation, and to Cooley Godward LLP tax representation letters
in customary form. Avanex, Merger Sub and Oplink shall each confirm to Wilson
Sonsini Goodrich & Rosati, Professional
_____________
Wilson
Sonsini – execute and deliver to Wilson Sonsini Goodrich & Rosati,
Professional Corporation, and to Cooley Godward LLP tax representation letters
in customary form. Avanex, Merger Sub and Oplink shall each confirm to Wilson
Sonsini Goodrich & Rosati, Professional Corporation, and to Cooley Godward LLP
the accuracy and completeness as of the time the Registration Statement is
declared effective and as of the Effective Time
_____________
Wilson Sonsini – the immediately preceding sentence. Following
delivery of the tax representation letters pursuant to the first sentence of
this Section 5.18, Avanex will use its commercially reasonable efforts to cause
Wilson Sonsini Goodrich & Rosati, Professional Corporation, to deliver to it,
and Oplink will use its commercially reasonable efforts to cause Cooley Godward
LLP to deliver to it, a tax opinion satisfying
_____________
(Wilson Sonsini – their businesses or to own or exercise control of such assets,
properties and stock.
(f) Tax Opinions. Avanex and Oplink shall each have received written
------------
opinions from their respective counsel (Wilson Sonsini Goodrich & Rosati,
Professional Corporation, and Cooley Godward LLP, respectively), in form and
substance reasonably satisfactory to them, to the effect that the Merger will
constitute a reorganization within the
_____________
dt 1324713
|
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Full Doc
| 2002 |
Agreement and Plan of Reorganization
Agreement and Plan of Reorganization (284K)
Doc #906828: Click preview link for longer preview.
AMONG
AVANEX CORPORATION,
PEARL ACQUISITION CORP.
AND
OPLINK COMMUNICATIONS, INC.
Dated as of March 18, 2002
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
. . .
906828
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UBS Warburg
As referenced in this Agreement and Plan of Reorganization:
UBS Warburg,
--------------------------
LLC – which in any manner seeks to prevent, enjoin, alter or
delay any of the transactions contemplated by this Agreement.
3.11 Brokers' and Finders' Fees. Except for fees payable to UBS Warburg,
--------------------------
LLC pursuant to an engagement letter dated January 8, 2002, Avanex has not
incurred, nor will it incur, directly or indirectly, any liability for brokerage
or finders' fees or agents'
_____________
UBS Warburg, LLC – the Oplink Board Recommendation are hereinafter referred to, as applicable, a
"Board Recommendation").
3.19 Opinion of Financial Advisor. The Board of Directors of Avanex has
----------------------------
received an opinion from UBS Warburg, LLC dated the date of this Agreement, to
the effect that, as of such date, the Exchange Ratio is fair, from a financial
point of view to Avanex, a signed
_____________
dt 1538449
;
Citibank
As referenced in this Agreement and Plan of Reorganization:
Citibank, N.A. – including reasonable attorneys' fees and
expenses) in connection with such suit, together with interest on the amounts
set forth in this Section 7.3(b) at the prime rate of Citibank, N.A. in effect
on the date such payment was required to be made. Payment of the fees described
in this Section 7.3(b) shall not be in lieu of
_____________
dt 1478831
;
Oplink
As referenced in this Agreement and Plan of Reorganization:
OPLINK COMMUNICATIONS, INC. –
AGREEMENT AND PLAN OF REORGANIZATION
Exhibit 2.1
EXECUTION COPY
AGREEMENT AND PLAN OF REORGANIZATION
AMONG
AVANEX CORPORATION,
PEARL ACQUISITION CORP.
AND
OPLINK COMMUNICATIONS, INC.
Dated as of March 18, 2002
TABLE OF CONTENTS
Page
----
ARTICLE I THE MERGER..................................................................................................2
1.1 The Merger..........................................................................................2
----------
1.2 Effective Time;
_____________
Oplink Communications,
Inc. – entered into as of March 18, 2002 among Avanex Corporation, a Delaware
corporation ("Avanex"), Pearl Acquisition Corp., a Delaware corporation and a
wholly owned subsidiary of Avanex ("Merger Sub"), and Oplink Communications,
Inc. , a Delaware corporation ("Oplink").
RECITALS
--------
A. Upon the terms and subject to the conditions of this Agreement and in
accordance with the Delaware General Corporation Law ("Delaware Law"), Avanex
_____________
Oplink Communications, Inc. – Certificate of Incorporation;
provided, however, that at the Effective Time Article I of the Certificate of
-------- -------
Incorporation shall be amended to read as follows: "The name of the corporation
is Oplink Communications, Inc. "
(b) At the Effective Time, the Bylaws of the Surviving Corporation
shall be amended and restated in their entirety to be identical to the Bylaws of
Merger Sub, as
_____________
Oplink Communications, Inc. – Incorporation or Bylaws or equivalent governing instruments.
(d) Oplink has timely paid in its capital contribution to the
registered capital of each of Shanghai Oplink Communications Co., Ltd., Zhuhai
FTZ Oplink Communications, Inc. , Zhuhai Oplink Communications Technology, Ltd.,
Zhuhai FTZ Telelight Communications, Inc., Beijing Oplink Communications, Inc.
and Chengdu Oplink Communications, Inc. (each, a "PRC Subsidiary" and
collectively, the "PRC Subsidiaries") as
_____________
Oplink Communications, Inc. – capital contribution to the
registered capital of each of Shanghai Oplink Communications Co., Ltd., Zhuhai
FTZ Oplink Communications, Inc., Zhuhai Oplink Communications Technology, Ltd.,
Zhuhai FTZ Telelight Communications, Inc., Beijing Oplink Communications, Inc.
and Chengdu Oplink Communications, Inc. (each, a "PRC Subsidiary" and
collectively, the "PRC Subsidiaries") as such capital contributions have become
due. The People's Republic of China is defined
_____________
dt 1865536
;
|
BNY
As referenced in this Agreement and Plan of Reorganization:
Bank of New York, – as such terms are defined in the Oplink Rights Agreement) will occur
under the terms of the Rights Agreement entered into as of the date hereof
between Oplink and The Bank of New York, as rights agent, (the "Oplink Rights
Agreement") as a result of the approval, execution or delivery of this
Agreement, the Oplink Option Agreement, the Oplink Voting Agreements or the
_____________
dt 1585041
;
WSGR
As referenced in this Agreement and Plan of Reorganization:
Wilson Sonsini – the "Effective Time") as soon as
practicable on or after the Closing Date (as herein defined). The closing of the
Merger (the "Closing") shall take place at the offices of Wilson Sonsini
Goodrich & Rosati, Professional Corporation, located at 650 Page Mill Road, Palo
Alto, California, at a time and date to be specified by the parties, which shall
be no later
_____________
Wilson Sonsini – by order of a court of competent jurisdiction.
5.18 Tax Matters. At or prior to the filing of the Registration Statement,
-----------
Avanex and Oplink will execute and deliver to Wilson Sonsini Goodrich & Rosati,
Professional Corporation, and to Cooley Godward LLP tax representation letters
in customary form. Avanex, Merger Sub and Oplink shall each confirm to Wilson
Sonsini Goodrich & Rosati, Professional
_____________
Wilson
Sonsini – execute and deliver to Wilson Sonsini Goodrich & Rosati,
Professional Corporation, and to Cooley Godward LLP tax representation letters
in customary form. Avanex, Merger Sub and Oplink shall each confirm to Wilson
Sonsini Goodrich & Rosati, Professional Corporation, and to Cooley Godward LLP
the accuracy and completeness as of the time the Registration Statement is
declared effective and as of the Effective Time
_____________
Wilson Sonsini – the immediately preceding sentence. Following
delivery of the tax representation letters pursuant to the first sentence of
this Section 5.18, Avanex will use its commercially reasonable efforts to cause
Wilson Sonsini Goodrich & Rosati, Professional Corporation, to deliver to it,
and Oplink will use its commercially reasonable efforts to cause Cooley Godward
LLP to deliver to it, a tax opinion satisfying
_____________
(Wilson Sonsini – their businesses or to own or exercise control of such assets,
properties and stock.
(f) Tax Opinions. Avanex and Oplink shall each have received written
------------
opinions from their respective counsel (Wilson Sonsini Goodrich & Rosati,
Professional Corporation, and Cooley Godward LLP, respectively), in form and
substance reasonably satisfactory to them, to the effect that the Merger will
constitute a reorganization within the
_____________
dt 1324714
|
Preview
Full Doc
| 2001 |
Agreement and Plan of Reorganization
Agreement and Plan of Reorganization (201K)
Doc #1182754: Click preview link for longer preview.
AGREEMENT AND PLAN OF REORGANIZATION
BY AND AMONG
PROXIM, INC.,
ALK ACQUISITION CORP.
AND
NETOPIA, INC.
DATED AS OF JANUARY 23, 2001
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
<PAGE> 2
TABLE OF . . .
1182754
|
UBS Warburg
As referenced in this Agreement and Plan of Reorganization:
UBS Warburg LLC – contemplated by this Agreement, has engaged in no other business
activities and has conducted its operations only as contemplated by this
Agreement.
3.13 Brokers. Except for fees payable to UBS Warburg LLC , Parent has not
incurred, nor will it incur, directly or indirectly, any liability for brokerage
or finders' fees or agents' commissions or any similar charges in connection
with this
_____________
UBS Warburg LLC – of Parent with respect to any
Intellectual Property owned by or licensed to Parent.
3.15 Opinion of Financial Advisor. Parent's Board of Directors has
received an opinion from UBS Warburg LLC , dated as of the date hereof to the
effect that as of the date hereof the Exchange Ratio is fair to Parent from a
financial point of view.
3.
_____________
UBS Warburg LLC – and the recommendation of the Board of Directors of Parent to Parent's
stockholders that they vote in favor of approval of the Share Issuance and (ii)
the opinion of UBS Warburg LLC referred to in Section 3.8.
(c) No amendment or supplement to the Joint Proxy Statement/Prospectus or
the S-4 shall be made without the approval of Parent
_____________
dt 1538597
;
Citibank
As referenced in this Agreement and Plan of Reorganization:
Citibank N.A. – including reasonable
attorneys' fees and expenses) in connection with such suit, together with
interest on the amounts set forth in this Section 7.3(b) at the prime rate
of Citibank N.A. in effect on the date such payment was required to be
made. Payment of the fees described in this Section 7.3(b) shall not be in
lieu of
_____________
dt 1479428
;
Netopia
As referenced in this Agreement and Plan of Reorganization:
NETOPIA, INC. – f69107ex1.txt
<DESCRIPTION>EX-1
<TEXT>
<PAGE> 1
EXHIBIT 1
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
AGREEMENT AND PLAN OF REORGANIZATION
BY AND AMONG
PROXIM, INC.,
ALK ACQUISITION CORP.
AND
NETOPIA, INC.
DATED AS OF JANUARY 23, 2001
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
ARTICLE I THE
_____________
Netopia, Inc. – as of
January 23, 2001, by and among Proxim, Inc., a Delaware corporation ("Parent"),
ALK Acquisition Corp., a Delaware corporation and a wholly-owned subsidiary of
Parent ("Merger Sub"), and Netopia, Inc. , a Delaware corporation ("Company").
RECITALS
A. Upon the terms and subject to the conditions of this Agreement (as
defined in Section 1.2 below) and in accordance with the
_____________
Netopia, Inc. – provided, however, that at the Effective Time the
Certificate of Incorporation of the Surviving Corporation shall be amended and
restated so that the name of the Surviving Corporation shall be Netopia, Inc.
(b) The Bylaws of the Surviving Corporation shall, subject to Section
5.10(a) of this Agreement, be amended and restated to be identical to those in
effect for
_____________
Netopia, Inc. – Sonsini Goodrich & Rosati
Professional Corporation
One Market
Spear Tower, Suite 3300
San Francisco, California 94105
Attention: Steve L. Camahort
Telecopy No.: (415) 947-2099
(b) if to Company, to:
Netopia, Inc.
2470 Mariner Square Loop
Alameda, California 98501
Attention: Alan B. Lefkof
Telephone: (510) 814-5100
Telecopy: (510) 814-5271
with a copy to:
Gunderson Dettmer Stough Villeneuve
Franklin &
_____________
NETOPIA, INC. – caused this Agreement to be
executed by their duly authorized respective officers as of the date first
written above.
PROXIM, INC.
By:
Name:
Title:
ALK ACQUISITION CORP.
By:
Name:
Title:
NETOPIA, INC.
By:
Name:
Title:
[SIGNATURE PAGE OF AGREEMENT AND PLAN OF MERGER AND REORGANIZATION]
-42-
</TEXT>
</DOCUMENT>
|