===========================================================================
AGREEMENT AND PLAN OF MERGER
between
INVITROGEN CORPORATION
and
LIFE TECHNOLOGIES, INC.
Dated as of July 7, 2000
===========================================================================
TABLE OF CONTENTS
Page
ARTICLE I
THE MERGER
Section 1.1 The Merger.........................................2
Section 1.2 Closing............................................2
Section 1.3 Effective Time.....................................2
Section 1.4 Effects of the Merger..............................3
Section 1.5 Certificate of Incorporation; Bylaws...............3
Section 1.6 Directors; Officers of Surviving Corporation;
Headquarters.......................................3
ARTICLE II
CONVERSION OF SECURITIES; EXCHANGE OF CERTIFICATES
Section 2.1 Conversion of Securities...........................4
Section 2.2 Exchange of Certificates...........................6
Section 2.3 Adjustments to Prevent Dilution....................9
Section 2.4 Appraisal Rights...................................9
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.1 Organization, Qualification, Etc..................11
Section 3.2 Capital Stock.....................................12
Section 3.3 Corporate Authority Relative to this Agreement;
No Violation......................................13
Section 3.4 Reports and Financial Statements..................15
Section 3.5 No Undisclosed Liabilities........................16
Section 3.6 No Violation of Law...............................16
Section 3.7 Environmental Matters.............................16
Section 3.8 Employee Benefit Plans; ERISA.....................18
Section 3.9 Absence of Certain Changes or Events..............20
Section 3.10 Proxy Statement/Prospectus; Registration
Statement.........................................20
Section 3.11 Tax Matters.......................................21
Section 3.12 Title and Related Matters.........................23
Section 3.13 Contracts.........................................24
Section 3.14 Patents, Trademarks and Similar Rights............25
Section 3.15 Legal Proceedings, etc............................25
Section 3.16 Disclosure........................................25
Section 3.17 Opinion of Financial Advisors.....................26
Section 3.18 Bidder Share Ownership............................26
ARTICLE IV
COVENANTS AND AGREEMENTS
Section 4.1 Conduct of Business by the Company................26
Section 4.2 Bidder Interim Operations.........................29
Section 4.3 Access; Confidentiality...........................31
Section 4.4 Stockholders Meeting; Proxy Statement;
Registration Statement............................32
Section 4.5 Commercially Reasonable Efforts; Further
Assurances........................................33
Section 4.6 Employee Stock Options and Other Employee
Benefits..........................................34
Section 4.7 Takeover Statute..................................37
Section 4.8 Public Announcements..............................37
Section 4.9 Affiliates........................................38
Section 4.10 Nasdaq National Market Quotation..................38
Section 4.11 Tax-Free Reorganization...........................38
Section 4.13 Indemnification; Insurance........................39
Section 4.14 Additional Reports and Information................40
ARTICLE V
CONDITIONS TO THE MERGER
Section 5.1 Conditions to Each Party's Obligation to Effect
the Merger.........................................40
Section 5.2 Conditions to Obligation of the Bidder to Effect
the Merger.........................................41
Section 5.3 Conditions to Obligation of the Company to Effect
the Merger.........................................42
ARTICLE VI
TERMINATION
Section 6.1 Termination.......................................43
Section 6.2 Effect of Termination.............................45
ARTICLE VII
MISCELLANEOUS
Section 7.1 No Survival of Representations and Warranties.....45
Section 7.2 Expenses..........................................45
Section 7.3 Counterparts; Effectiveness.......................45
Section 7.4 Governing Law.....................................45
Section 7.5 Notices...........................................45
Section 7.6 Assignment; Binding Effect........................47
Section 7.7 Severability......................................47
Section 7.8 Enforcement of Agreement..........................47
Section 7.9 Entire Agreement; Third-Party Beneficiaries.......48
Section 7.10 Headings..........................................48
Section 7.11 Definitions.......................................48
Section 7.12 Finders or Brokers................................48
Section 7.13 Amendment or Supplement...........................49
Section 7.14 Extension of Time, Waiver, Etc....................49
INDEX OF DEFINED TERMS
DEFINED TERM SECTION
Affiliated Group.....................................................3.11(a)
affiliates..............................................................7.11
Agreement.......................................................Introduction
Average Bidder Trading Price..........................................2.1(a)
Bidder..........................................................Introduction
Bidder Common Stock.................................................Recitals
Bidder Disclosure Schedule..........................Article III Introduction
Bidder Stockholder Approval...........................................3.3(b)
Bidder Stockholders Meeting...........................................4.4(a)
Cash Election.........................................................2.1(b)
Cash Election Proration Factor .......................................2.1(b)
Certificate of Merger....................................................1.3
Certificates..........................................................2.2(a)
Charter Amendment.....................................................4.4(a)
Closing..................................................................1.2
Closing Date.............................................................1.2
Code................................................................Recitals
Company.........................................................Introduction
Company Common Stock................................................Recitals
Company Disclosure Schedule.........................Article III Introduction
Company Employee......................................................4.5(b)
Company Equity Plan.................................................4.1(vii)
Company Option Plans..................................................4.6(a)
Company Policies.....................................................4.13(b)
Company Stock Options.................................................4.6(a)
Company Stockholder Approval..........................................3.3(a)
Company Stockholders Meeting..........................................4.4(a)
Dexter..............................................................Recitals
Dexter Merger.......................................................Recitals
Dexter Merger Agreement.............................................Recitals
DGCL................................................................Recitals
Dissenting Shares........................................................2.4
Effective Time...........................................................1.3
Election Deadline.....................................................2.2(a)
Election Form.........................................................2.2(a)
Environmental Claim................................................3.7(d)(i)
Environmental Law.................................................3.7(d)(ii)
Environmental Permits.................................................3.7(a)
ERISA.................................................................3.8(a)
ERISA Affiliate......................................................3.8(a)
ESP...................................................................4.6(c)
Exchange Act..........................................................3.3(c)
Exchange Agent........................................................2.2(a)
Exchange Fund.........................................................2.2(a)
Exchange Ratio........................................................2.1(b)
Expiration Date.......................................................6.1(b)
GAAP.....................................................................3.4
Governmental Entity...................................................3.3(c)
Hazardous Materials..............................................3.7(d)(iii)
HSR Act...............................................................3.3(c)
including...............................................................7.11
Indemnified Parties.....................................................4.13
Intellectual Property...................................................3.14
International Plans...................................................3.8(i)
Lien..................................................................3.1(b)
Material................................................................3.16
Material Adverse Effect...............................................3.1(a)
Material Contracts...................................................3.13(a)
Merger..............................................................Recitals
Merger Consideration..................................................2.1(b)
Person..................................................................7.11
Plans.................................................................3.8(a)
Proxy Statement.......................................................4.3(b)
Registration Statement...............................................3.10(b)
Representing Party..................................Article III Introduction
Representing Party's Disclosure Schedule............Article III Introduction
SEC...................................................................3.4(a)
SEC Reports..............................................................3.4
Securities Act........................................................3.3(c)
Shares..............................................................Recitals
Significant Subsidiaries................................................7.11
Special Committee...................................................Recitals
Standard Election.....................................................2.1(b)
Standard Election Consideration.......................................2.1(b)
Stock Election........................................................2.1(b)
Stock Election Consideration..........................................2.1(b)
Stockholders Meeting..................................................4.4(a)
Subsidiaries............................................................7.11
Surviving Corporation....................................................1.1
Tax Return...........................................................3.11(f)
Taxes................................................................3.11(f)
Termination Date.........................................................4.1
Trading Day...........................................................2.1(b)
AGREEMENT AND PLAN OF MERGER, dated as of July 7, 2000 (the
"Agreement"), between INVITROGEN CORPORATION, a Delaware corporation (the
"Bidder"), and LIFE TECHNOLOGIES, INC., a Delaware corporation (the
"Company").
WHEREAS, the Boards of Directors of the Bidder and the Company
and a special committee (the "Special Committee") of the Board of Directors
of the Company consisting of members of the Board of Directors who are
"Continuing Directors" as such term is defined in Article Eighth of the
Certificate of Incorporation of the Company deem it advisable and in the
best interests of their respective stockholders that the Company be merged
with and into the Bidder (the "Merger") upon the terms and subject to the
conditions provided for in this Agreement, whereby each outstanding share
of common stock, par value $0.01 per share, of the Company (the "Company
Common Stock" or the "Shares") will be converted into (i) shares of common
stock, par value $.01 per share, of the Bidder (the "Bidder Common Stock"),
(ii) cash or (iii) a combination of Bidder Common Stock and cash;
WHEREAS, immediately after the execution and delivery of this
Agreement, the Bidder is entering into an Agreement and Plan of Merger,
dated as of the date hereof (the "Dexter Merger Agreement"), between the
Bidder and Dexter Corporation, a Connecticut corporation ("Dexter"),
pursuant to which Dexter will be merged with and into the Bidder (the
"Dexter Merger") simultaneously with the Merger upon the terms and subject
to the conditions set forth in the Dexter Merger Agreement, whereby each
share of common stock, par value $1 per share, of Dexter will be converted
into (i) shares of Bidder Common Stock, (ii) cash or (iii) a combination of
Bidder Common Stock and cash;
WHEREAS, the obligations of the parties hereto to consummate
this Agreement are expressly conditioned on the consummation of the
transactions contemplated by the Dexter Merger Agreement;
WHEREAS, for U.S. federal income tax purposes, it is intended
that the Merger and the Dexter Merger contemplated hereby shall each
qualify as a reorganization within the meaning of Section 368(a) of the
Internal Revenue Code of 1986, as amended (the "Code"), and that this
Agreement shall be, and is hereby, adopted as a plan of reorganization for
purposes of Section 368 of the Code; and
WHEREAS, the Boards of Directors of the Bidder and the Company
have each approved this Agreement and approved the Merger in accordance
with the General Corporation Law of the State of Delaware (the "DGCL"), and
upon the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the representations,
warranties, covenants and agreements contained in this Agreement, and
intending to be legally bound hereby, the Bidder and the Company agree as
follows:
ARTICLE I
THE MERGER
Section 1.1 The Merger. Upon the terms and subject to the
conditions set forth in this Agreement, and in accordance with the DGCL, at
the Effective Time the Company shall merge with and into the Bidder, and
the separate corporate existence of the Company shall thereupon cease, and
the Bidder shall be the surviving corporation in the Merger (the "Surviving
Corporation"). The Surviving Corporation shall possess all the rights,
privileges, powers and franchises of a public as well as of a private
nature and shall be subject to all of the restrictions, disabilities,
duties, debts and obligations of the Company and the Bidder, all as
provided in the DGCL.
Section 1.2 Closing. The closing of the Merger (the "Closing")
will take place at 10:00 a.m. on a date to be specified by the parties (the
"Closing Date"), which shall be no later than the second business day after
satisfaction or waiver of the conditions set forth in Article V, unless
another time or date, or both, are agreed to by the parties hereto. The
Closing will be held at the offices of Skadden, Arps, Slate, Xxxxxxx & Xxxx
LLP, Four Times Square, New York, New York, unless another place is agreed
to by the parties hereto.
Section 1.3 Effective Time. Subject to the provisions of this
Agreement, on the Closing Date the parties shall file with the Secretary of
State of the State of Delaware a certificate of merger (the "Certificate of
Merger"), executed in accordance with the relevant provisions of the DGCL,
and shall make all other filings or recordings required under the DGCL in
order to effect the Merger. The Merger shall become effective upon the
filing of the Certificate of Merger or at such other time as is agreed by
the parties hereto and specified in the Certificate of Merger (the time at
which the Merger becomes fully effective being hereinafter referred to as
the "Effective Time"); provided, that the Merger and the Dexter Merger
shall occur simultaneously.
Section 1.4 Effects of the Merger. The Merger shall have the
effects set forth in Section 259 of the DGCL.
Section 1.5 Certificate of Incorporation; Bylaws.
(a) At the Effective Time, the Certificate of
Incorporation of the Bidder, as in effect immediately prior to the
Effective Time, shall be the Certificate of Incorporation of the Surviving
Corporation until thereafter amended as provided by the DGCL and such
Certificate of Incorporation; provided, however, the first paragraph of
Article IV of the Certificate of Incorporation of the Bidder shall be
amended to read in its entirety to read as follows:
"The total number of shares of capital stock which the
Corporation shall have authority to issue is 131,405,884, of
which (a) 6,405,884 shares shall be preferred stock, par value
$.01 per share ("Preferred Stock"), and (b) 125,000,000 shares
shall be common stock, par value $.01 per share."
(b) At the Effective Time, the Bylaws of the Bidder, as
in effect immediately prior to the Effective Time, shall be the Bylaws of
the Surviving Corporation until thereafter amended as provided by the DGCL,
the Certificate of Incorporation of the Surviving Corporation and such
Bylaws.
Section 1.6 Directors; Officers of Surviving Corporation;
Headquarters.
(a) The directors of the Bidder at the Effective Time
shall be the directors of the Surviving Corporation until their respective
successors are duly elected and qualified or their earlier death,
resignation or removal in accordance with the Certificate of Incorporation
and Bylaws of the Surviving Corporation. Prior to the Effective Time, the
Bidder shall take all action necessary to appoint X. Xxxxx Xxxxxxxx and
Xxxxxx X. Xxxxx to the Board of Directors of the Bidder, such appointments
to be effective as of the Effective Time.
(b) The officers of the Bidder at the Effective Time
shall be the officers of the Surviving Corporation until their respective
successors are duly elected and qualified or their earlier death,
resignation or removal in accordance with the Certificate of Incorporation
and Bylaws of the Surviving Corporation. After the Effective Time, X. Xxxxx
Xxxxxxxx shall continue to be the President and Chief Executive Officer of
the Company's operations and shall also hold a senior executive management
position with the Bidder.
(c) After the Effective Time, the Company's operations
will continue to be headquartered at the site of the Company's current
headquarters in Rockville, Maryland.
ARTICLE II
CONVERSION OF SECURITIES; EXCHANGE OF CERTIFICATES
Section 2.1 Conversion of Securities. At the Effective Time, by
virtue of the Merger and without any action on the part of the holders of
any securities of the Bidder or the Company:
(a) Each issued and outstanding Share that is owned by
the Bidder, Dexter or the Company or any of their respective Subsidiaries
shall automatically be cancelled and retired and shall cease to exist and
no consideration shall be delivered in exchange therefor.
(b) Subject to the provisions of Sections 2.2(h) and 2.4,
each issued and outstanding Share, other than Shares cancelled and retired
in accordance with Section 2.1(a) and Dissenting Shares, shall be
converted, at the election of the holder thereof in accordance with the
procedures set forth herein, into one of the following (as adjusted
pursuant to the provisions of this Section 2.1, the "Merger
Consideration"):
(A) for each such Share with respect to which an
election to receive only Bidder Common Stock has been effectively
made and not revoked or lost pursuant to Section 2.2(a) (a "Stock
Election"), the right to receive that fraction of a share of Bidder
Common Stock calculated by dividing (x) $60.00 by (y) the Average
Bidder Trading Price (as hereinafter defined), rounded to four
decimal places (the "Exchange Ratio"). As used herein, the "Average
Bidder Trading Price" shall mean the average of the reported closing
sales prices per share of Bidder Common Stock as reported in The Wall
Street Journal for the 20 consecutive Nasdaq National Market trading
days (each, a "Trading Day") ending on (and including) the third
Trading Day prior to the date of the Company Shareholders Meeting;
provided, however, that if the quotient obtained as prescribed in the
preceding sentence exceeds 1.0, then for all purposes the Exchange
Ratio shall be 1.0, and if such quotient is less than 0.7500, then for
all purposes the Exchange Ratio shall be 0.7500 (the "Stock Election
Consideration").
(B) for each such Share with respect to which an
election to receive only cash has been effectively made and not
revoked or lost pursuant to Section 2.2(a) (a "Cash Election"), (i)
the right to receive an amount in cash equal to $60.00 multiplied by
the Cash Election Proration Factor, without interest except as set
forth in Section 2.2(b), plus (ii) if the Cash Election Proration
Factor is less than 1, a fraction of a share of Bidder Common Stock
equal to the Exchange Ratio multiplied by a fraction the numerator of
which is $60.00 minus the cash determined pursuant to clause (i) and
the denominator of which is $60.00. As used herein, the "Cash
Election Proration Factor" means the lesser of (x) 1.00 or (y) a
fraction (i) the numerator of which is (1) the product of the total
number of Shares outstanding multiplied by $16.80 minus (2) $16.80
multiplied by the number of Shares for which Standard Elections have
been effectively made and not revoked or lost, and (ii) the
denominator of which is the product of $60.00 multiplied by the
number of Shares for which Cash Elections have been effectively made
and not revoked or lost.
(C) for each such Share as to which neither a Stock
Election nor a Cash Election has been effectively made and not
revoked or lost pursuant to Section 2.2(a) (a "Standard Election"),
the right to receive $16.80 in cash, plus a fraction of a share of
Bidder Common Stock equal to the Exchange Ratio multiplied by 0.7200
(the "Standard Election Consideration").
(c) Each Person who, at the Effective Time, is a record
holder of Shares (other than Shares to be cancelled as set forth in Section
2.1(a) or Dissenting Shares) shall have the right to submit an Election
Form specifying the number of Shares that such Person desires to have
converted into shares of Bidder Common Stock, the number of Shares that
such Person desires to have converted into the right to receive cash and
Bidder Common Stock, if any, and the number of Shares that such Person
desires to have converted into the right to receive the Standard Election
Consideration. Any Person who fails properly to submit an Election Form on
or prior to the Election Deadline in accordance set forth in Section 2.2(a)
shall be deemed to have made a Standard Election.
(d) Each share of Bidder Common Stock issued and
outstanding immediately prior to the Effective Time shall on and after the
Effective Time continue to be issued and outstanding as an identical share
of Bidder Common Stock.
(e) Each share of Bidder Common Stock issued and held in
the treasury or by any Subsidiary of the Bidder as of the Effective Time,
if any, shall, on and after the Effective Time, continue to be issued and
held in the treasury of the Bidder or by such Subsidiary unaffected by the
Merger.
Section 2.2 Exchange of Certificates.
(a) Exchange Agent. Prior to the Effective Time, the
Bidder shall appoint an agent (the "Exchange Agent") for the purpose of (i)
exchanging certificates representing Shares (the "Certificates") for the
Merger Consideration. At the Effective Time the Bidder will deposit with
the Exchange Agent the Merger Consideration and cash in the amount required
by Section 2.2(g) (the "Exchange Fund"). Upon receipt, the Exchange Agent
will invest the cash portion of the Exchange Fund in United States
government securities maturing at the Election Deadline or such other
government securities maturing at the Election Deadline or such other
investments as the Bidder and the Company may mutually agree. Any interest
and other income resulting from such investments shall be paid to the
Bidder. Promptly after the Effective Time, the Exchange Agent will send to
each holder of Shares a letter of transmittal and instructions (which shall
specify that the delivery shall be effected, and risk of loss and title
shall pass, only upon proper delivery of the Certificates to the Exchange
Agent) for use in such exchange, and to each holder of Shares an election
form (the "Election Form") providing for such holders to make the Standard
Election, the Cash Election or the Stock Election. Any Standard Election
(other than a deemed Standard Election), Cash Election or Stock Election
shall be validly made only if the Exchange Agent shall have received by
5:00 p.m., New York City Time, on a date (the "Election Deadline") to be
mutually agreed upon by the Bidder and the Company (which date shall not be
later than the twentieth Business Day after the Effective Time), an
Election Form properly completed and executed (with the signature or
signatures thereon guaranteed to the extent required by the Election Form)
by such holder accompanied by such holder's Certificates, or by appropriate
guarantees of delivery of such Certificates from a member of any national
securities exchange or of the National Association of Securities Dealers or
a commercial bank or trust company in the United States as set forth in
such Election Form. Any holder of Shares who has made an election by
submitting an Election Form to the Exchange Agent may at any time prior to
the Election Deadline change such holder's election by submitting a revised
Election Form, properly completed and signed that is received by the
Exchange Agent prior to the Election Deadline. Any holder of Shares may at
any time prior to the Election Deadline revoke his election by written
notice to the Exchange Agent received by the close of business on the day
prior to the Election Deadline, and such holder will receive the Standard
Election Consideration.
(b) Letter of Transmittal. Upon surrender to the Exchange
Agent of its Certificate, together with a properly completed letter of
transmittal, each holder of Shares will be entitled to receive promptly
after the Election Deadline the Merger Consideration in respect of the
Shares represented by its Certificate. In addition, each such holder of
Shares shall be entitled to receive any dividends and distributions payable
pursuant to Section 2.2(g). Until so surrendered, each such Certificate
shall represent after the Effective Time, for all purposes, only the right
to receive the Merger Consideration.
(c) Payment to Non-Registered Owners. If any portion of
the Merger Consideration is to be paid to a Person other than the Person in
whose name the Certificate so surrendered is registered, it shall be a
condition to such payment that such Certificate shall be properly endorsed
or otherwise be in proper form for transfer and the Person requesting such
payment shall pay to the Exchange Agent any transfer or other Taxes
required as a result of such payment to a Person other than the registered
holder of such Certificate, or establish to the satisfaction of the
Exchange Agent that such Tax has been paid or is not payable.
(d) No Further Registration of Transfers. After the
Effective Time there shall be no further registration of transfers of
Shares. If after the Effective Time Certificates are presented to the
Surviving Corporation, they shall be cancelled and exchanged for the Merger
Consideration in accordance with the procedures set forth in this Article
II.
(e) Termination of Exchange Fund; No Liability. At any
time following the first anniversary of the Effective Time, the Surviving
Corporation shall be entitled to require the Exchange Agent to deliver to
it any remaining portion of the Exchange Fund (including any interest
received with respect thereto), and holders shall be entitled to look only
to the Surviving Corporation (subject to abandoned property, escheat or
other similar laws) with respect to the Merger Consideration, any cash in
lieu of fractional shares of Bidder Common Stock and any dividends or other
distributions with respect to Bidder Common Stock payable upon due
surrender of their Certificates, without any interest thereon.
Notwithstanding the foregoing, neither the Surviving Corporation nor the
Exchange Agent shall be liable to any holder of a Certificate for Merger
Consideration (or dividends or distributions with respect thereto) or cash
from the Exchange Fund in each case delivered to a public official pursuant
to any applicable abandoned property, escheat or similar law.
(f) Lost, Stolen or Destroyed Certificates. In the event
any Certificates for Shares shall have been lost, stolen or destroyed, upon
the making of an affidavit of that fact by the Person claiming such
Certificate(s) to be lost, stolen or destroyed and, if required by the
Bidder, the posting by such Person of a bond in such sum as the Bidder may
reasonably direct as indemnity against any claim that may be made against
it or the Surviving Corporation with respect to such Certificate(s), the
Exchange Agent will issue the Merger Consideration pursuant to Section
2.1(b) deliverable in respect of the Shares represented by such lost,
stolen or destroyed Certificates.
(g) Dividends; Distributions. No dividends or other
distributions with respect to Bidder Common Stock with a record date after
the Effective Time shall be paid to the holder of any unsurrendered
Certificate with respect to the shares of Bidder Common Stock represented
thereby, and no cash payment in lieu of fractional shares shall be paid to
any such holder pursuant to Section 2.2(h), and all such dividends, other
distributions and cash in lieu of fractional shares of Bidder Common Stock
shall be paid by the Bidder to the Exchange Agent and shall be included in
the Exchange Fund, in each case until the surrender of such Certificate in
accordance with this Article II. Subject to the effect of applicable
abandoned property, escheat or similar laws, following surrender of any
such Certificate there shall be paid to the holder of a Bidder Certificate
representing whole shares of Bidder Common Stock issued in exchange
therefor, without interest, (i) at the time of such surrender, the amount
of dividends or other distributions with a record date after the Effective
Time theretofore paid with respect to such whole shares of Bidder Common
Stock and the amount of any cash payable in lieu of a fractional share of
Bidder Common Stock to which such holder is entitled pursuant to Section
2.2(h), and (ii) at the appropriate payment date, the amount of dividends
or other distributions with a record date after the Effective Time but
prior to such surrender and with a payment date subsequent to such
surrender payable with respect to such whole shares of Bidder Common Stock.
The Bidder shall make available to the Exchange Agent cash for these
purposes, if necessary.
(h) No Fractional Shar No Bidder Certificates or scrip
representing fractional shares of Bidder Common Stock shall be issued upon
the surrender for exchange of Certificates; no dividend or distribution by
the Bidder shall relate to such fractional share interests; and such
fractional share interests will not entitle the owner thereof to vote or to
any rights as a shareholder of the Bidder. In lieu of any such fractional
shares, each holder of Certificate who would otherwise have been entitled
to receive a fractional share interest in exchange for such Certificate
pursuant to this Section shall receive from the Exchange Agent an amount in
cash equal to the product obtained by multiplying (A) the fractional share
interest to which such holder (after taking into account all Shares held by
such holder at the Effective Time) would otherwise be entitled by (B) the
average reported closing sales price for a share of Bidder Common Stock as
reported in The Wall Street Journal (or if not reported thereby, any other
authoritative source) for five consecutive Trading Days immediately
preceding the Closing Date. The Bidder shall provide the Exchange Agent the
aggregate amount of cash payable pursuant to this Section 2.2(h) promptly
following the Effective Time.
Section 2.3 Adjustments to Prevent Dilution. In the event that
the Bidder changes the number of outstanding shares of Bidder Common Stock
or the number of outstanding securities convertible or exchangeable into or
exercisable for shares of Bidder Common Stock prior to the Effective Time
as a result of a reclassification, stock split (including a reverse split),
stock dividend or distribution, recapitalization, subdivision, or other
similar transaction, or declares or pays any dividend or distribution
(including of rights) other than any regular quarterly cash dividends, the
Stock Election Consideration and the Standard Election Consideration will
be correspondingly and equitably adjusted to reflect such stock dividend,
subdivision, split, combination of shares or other specified transaction.
Section 2.4 Appraisal Rights. Notwithstanding anything in this
Agreement to the contrary, Shares that are issued and outstanding
immediately prior to the Effective Time and which are held by shareholders
who did not vote in favor of the Merger and who comply with all the
relevant provisions of Section 262 of the DGCL (the "Dissenting
Shareholders") shall not be converted into or be exchangeable for the right
to receive the Merger Consideration (the "Dissenting Shares"), unless and
until the holder or holders thereof shall have failed to perfect or shall
have effectively withdrawn or lost their rights to appraisal under the
DGCL. If any Dissenting Shareholder shall have failed to perfect or shall
have effectively withdrawn or lost such right, such holder's Shares shall
thereupon be converted into and become exchangeable for the right to
receive, as of the Effective Time, the Merger Consideration for each Share
without any interest thereon. The Company shall give the Bidder (i) prompt
notice of any written demands for appraisal of any Shares, attempted
withdrawals of such demands and any other instruments served pursuant to
the DGCL and received by the Company relating to shareholders' rights of
appraisal, and (ii) the opportunity to direct all negotiations and
proceedings with respect to demands for appraisal under the DGCL; provided,
however, the Company shall have the right to participate in any such
negotiations and proceedings. The Company shall not, except with the prior
written consent of the Bidder, voluntarily make any payment with respect
to, or settle or offer to settle, any such demand for payment. If any
Dissenting Shareholder shall fail to perfect or shall have effectively
withdrawn or lost the right to dissent, the Shares held by such Dissenting
Shareholder shall thereupon be treated as though such Shares had been
converted into the right to receive the Standard Election Consideration
pursuant to Section 2.1(b).
Section 2.5 Withholding Rights. The Bidder shall be entitled to
deduct and withhold from the consideration otherwise payable to any Person
pursuant to this Article II such amounts as it is required to deduct and
withhold with respect to the making of such payment under any provision of
federal, state, local or foreign Tax law. If the Bidder so withholds
amounts, such amounts shall be treated for all purposes of this Agreement
as having been paid to the holders of Shares in respect of which the Bidder
made such deduction and withholding.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Except as set forth on the schedule delivered by the Company to
the Bidder in connection with the execution and delivery of this Agreement
(the "Company Disclosure Schedule") the Company hereby represents and
warrants to the Bidder, and except as set forth in the disclosure schedule
delivered by the Bidder to the Company in connection with the execution and
delivery of this Agreement (the "Bidder Disclosure Schedule"), the Bidder
hereby represents and warrants to the Company, in each case as set forth in
this Article III, with the party making such representations and warranties
being referred to as the "Representing Party" and such Representing Party's
Disclosure Schedule as the "Representing Party's Disclosure Schedule."
Notwithstanding the foregoing, any representation or warranty which
expressly refers to the Bidder or its Subsidiaries is being made solely by
the Bidder and any representation or warranty which expressly refers to the
Company or its Subsidiaries is being made solely by the Company.
Section 3.1 Organization, Qualification, Etc.
(a) The Representing Party is a corporation duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation and has the corporate power and authority
required for it to own its properties and assets and to carry on its
business as it is now being conducted. The Representing Party is duly
qualified to do business and is in good standing in each jurisdiction in
which the ownership of its properties or the conduct of its business
requires such qualification, except for jurisdictions in which the failure
to be so qualified or in good standing would not, individually or in the
aggregate, be reasonably likely to have a Material Adverse Effect on the
Representing Party or substantially delay consummation of the transactions
contemplated by this Agreement or otherwise prevent the Representing Party
from performing its obligations hereunder. As used in this Agreement, any
reference to any state of facts, event, change or effect having a "Material
Adverse Effect" on or with respect to the Representing Party means a
material adverse effect on the financial condition, assets, liabilities or
results of operations of the Representing Party and its Subsidiaries, taken
as a whole, excluding any such effect resulting from or arising in
connection with (A) changes or conditions generally affecting the
industries in which the Representing Party and its Subsidiaries operate,
unless, in the case of the Company, such changes or conditions have a
disproportionate effect on the Company and its Subsidiaries, taken as a
whole, or (B) changes in general economic, regulatory or political
conditions, unless, in the case of the Company, such changes have a
disproportionate effect on the Company and its Subsidiaries, taken as a
whole. Each Representing Party has made available to the other copies of
its certificate of incorporation and bylaws. Such copies of each
Representing Party's certificate of incorporation and bylaws are complete
and correct and in full force and effect, and the Representing Party is not
in violation of any of the provisions of its certificate of incorporation
or bylaws.
(b) Each of the Representing Party's Subsidiaries is a
corporation duly organized, validly existing and in good standing under the
laws of its jurisdiction of incorporation or organization. Each of the
Representing Party's Subsidiaries has the corporate power and authority
required for it to own its properties and assets and to carry on its
business as it is now being conducted and is duly qualified to do business
and is in good standing in each jurisdiction in which the ownership of its
properties or the conduct of its business requires such qualification,
except for jurisdictions in which the failure to be so qualified or in good
standing would not, individually or in the aggregate, be reasonably likely
to have a Material Adverse Effect on the Representing Party. All the
outstanding shares of capital stock of, or other ownership interests in,
the Representing Party's Subsidiaries are duly authorized, validly issued,
fully paid and non-assessable and, with respect to such shares or ownership
interests that are owned by the Representing Party and its Subsidiaries,
are owned free and clear of all liens, claims, mortgages, encumbrances,
pledges and security interests of any kind (each, a "Lien"). All the
outstanding shares of capital stock of, or other ownership interests in,
the Representing Party's Subsidiaries are wholly owned by the Representing
Party, directly or indirectly.
Section 3.2 Capital Stock.
(a) Section 3.2(a) of the Representing Party's Disclosure
Schedule sets forth as of June 30, 2000:
(i) the number of authorized shares of each class or
series of
capital stock of the Representing Party;
(ii) the number of shares of each class or series of
capital stock of the Representing Party which are issued and outstanding;
(iii) the number of shares of each class or series of
capital stock which are held in the treasury of such Representing Party;
(iv) the number of shares of each class or series of
capital stock of the Representing Party which are reserved for issuance,
indicating each specific reservation; and
(v) the number of shares of each class or series of
capital stock of such Representing Party which are subject to employee
stock options or other rights to purchase or receive capital stock granted
under such Person's stock option or other stock based employee or
non-employee director benefit plans, and, with respect to the Company,
indicating the name of the plan, the date of grant, the number of shares
and the exercise price thereof.
(b) All the outstanding shares of capital stock of the
Representing Party are, and all shares of Bidder Common Stock to be issued
in the Merger will be when issued in accordance with the terms of this
Agreement, duly authorized, validly issued, fully paid and non-assessable
and issued in compliance with all applicable U.S. state and federal and
foreign securities laws. Except as set forth in Section 3.2(a) of the
Representing Party's Disclosure Schedule and for the transactions
contemplated by this Agreement, (1) there are no shares of capital stock of
the Representing Party authorized, or as of the date of this Agreement
issued or outstanding, (2) as of the date of this Agreement there are no
authorized or outstanding options, warrants, calls, preemptive rights,
subscriptions or other rights, agreements, arrangements or commitments of
any character relating to the issued or unissued capital stock of the
Representing Party or any of its Subsidiaries, obligating the Representing
Party or any of its Subsidiaries to issue, transfer or sell or cause to be
issued, transferred or sold any shares of capital stock or other equity
interest in the Representing Party or any of its Subsidiaries or securities
convertible into or exchangeable for such shares or equity interests, or
obligating the Representing Party or any of its Subsidiaries to grant,
extend or enter into any such option, warrant, call, subscription or other
right, agreement, arrangement or commitment, and (3) there are no
outstanding contractual obligations of the Representing Party or any of its
Subsidiaries to repurchase, redeem or otherwise acquire any shares of
capital stock of the Representing Party or any Subsidiary of the
Representing Party or to provide funds to make any investment (in the
form of a loan, capital contribution or otherwise) in any Subsidiary of the
Representing Party or other entity.
Section 3.3 Corporate Authority Relative to this Agreement; No
Violation.
(a) The Company has the corporate power and authority to
enter into this Agreement and to carry out its obligations hereunder. The
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly and validly authorized by
the Board of Directors of the Company and, except for obtaining the
requisite approval of the stockholders of the Company (the "Company
Stockholder Approval") and the filing of the Certificate of Merger, no
other corporate proceedings on the part of the Company are necessary to
authorize the consummation of the transactions contemplated hereby. The
Board of Directors of the Company has taken all appropriate action so that
Section 203 of the DGCL will not be applicable to the Company or to the
Bidder for any purpose. This Agreement has been duly and validly executed
and delivered by the Company and, assuming this Agreement constitutes a
valid and binding agreement of Bidder, constitutes a valid and binding
agreement of the Company, enforceable against the Company in accordance
with its terms.
(b) The Bidder has the corporate power and authority to
enter into this Agreement and to carry out its obligations hereunder. The
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly and validly authorized by
the Board of Directors of the Bidder, and other than the obtaining the
requisite approval of the stockholders of the Bidder (the "Bidder
Stockholder Approval") and the filing of the Certificate of Merger no other
corporate proceedings on the part of the Bidder are necessary to authorize
the consummation of the transactions contemplated hereby. This Agreement
has been duly and validly executed and delivered by the Bidder and,
assuming this Agreement constitutes a valid and binding agreement of the
Company, constitutes a valid and binding agreement of the Bidder,
enforceable against the Bidder in accordance with its terms.
(c) Except for the filings, permits, authorizations,
consents and approvals set forth in Section 3.3(c) of the Representing
Party's Disclosure Schedule or as may be required under, and other
applicable requirements of, the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder (the "Securities Act") (in the
case of the Bidder only ), the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder (the "Exchange Act"),
the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the
"HSR Act"), state securities or blue sky laws, and the rules and
regulations of the Nasdaq National Market, or the anti-competition laws or
regulations of the European Union or any foreign jurisdiction in which the
Company or the Bidder (directly or through Subsidiaries, in each case) has
material assets or conducts material operations, and the filing of the
Certificate of Merger under the DGCL, none of the execution, delivery or
performance of this Agreement by the Representing Party, the consummation
by the Representing Party of the transactions contemplated hereby or
compliance by the Representing Party with any of the provisions hereof will
(i) conflict with or result in any breach of any provision of the
certificate of incorporation, bylaws or similar organizational documents of
the Representing Party or any of its Subsidiaries, (ii) require any filing
with, or permit, authorization, consent or approval of, any federal,
regional, state or local court, arbitrator, tribunal, administrative agency
or commission or other governmental or other regulatory authority or
agency, whether U.S. or foreign (a "Governmental Entity"), (iii) result in
a violation or breach of, or constitute (with or without due notice or
lapse of time or both) a default (or give rise to any right of termination,
amendment, cancellation or acceleration) under, any of the terms,
conditions or provisions of any note, bond, mortgage, indenture, lease,
license, contract, agreement or other instrument or obligation to which the
Representing Party or any of its Subsidiaries is a party or by which any of
them or any of their properties or assets may be bound, or (iv) violate any
order, writ, injunction, decree, judgment, permit, license, ordinance, law,
statute, rule or regulation applicable to the Representing Party, any of
its Subsidiaries or any of their properties or assets, excluding from the
foregoing clauses (ii), (iii) and (iv) such filings, permits,
authorizations, consents, approvals, violations, breaches or defaults which
are not, individually or in the aggregate, reasonably likely to have a
Material Adverse Effect on the Representing Party or prevent or
substantially delay the consummation of the transactions contemplated
hereby.
Section 3.4 Reports and Financial Statements. The Representing
Party has previously furnished or otherwise made available (by electronic
filing or otherwise) to the Bidder true and complete copies of:
(a) Annual Reports on Form 10-K filed with the Securities
and Exchange Commission (the "SEC") for each of the years ended December
31, 1998 and 1999 in the case of the Company and the year ended December
31, 1999 in the case of Bidder.
(b) the Quarterly Report on Form 10-Q filed with the SEC
for the quarter ended March 31, 2000, for each of the Representing Parties;
(c) each definitive proxy statement filed with the SEC
since December 31, 1998, for each of the Representing Parties;
(d) each final prospectus filed with the SEC since
December 31, 1998, except any final prospectus on Form S-8, for each of the
Representing Parties; and
(e) all Current Reports on Form 8-K filed with the SEC
since January 1, 2000, for each of the Representing Parties.
As of their respective dates, such reports, proxy statements and
prospectuses filed with the SEC by the Representing Party (collectively
with, and giving effect to, all amendments, supplements and exhibits
thereto, the "SEC Reports") (i) complied as to form in all material
respects with the applicable requirements of the Securities Act and the
Exchange Act, and (ii) did not contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading. None of the Representing
Party's Subsidiaries is required to file any forms, reports or other
documents with the SEC. The audited consolidated financial statements and
unaudited consolidated interim financial statements included in the
Representing Party's SEC Reports (including any related notes and
schedules) fairly present in all material respects the financial position
of the Bidder or the Company and its consolidated Subsidiaries, as the case
may be, as of the dates thereof and the results of operations and cash
flows for the periods or as of the dates then ended (subject, in the case
of the unaudited interim financial statements, to normal recurring
adjustments), in each case in accordance with past practice and generally
accepted accounting principles in the United States ("GAAP") consistently
applied during the periods involved (except as otherwise disclosed in the
notes thereto). Since the date of Bidder's initial public offering, the
Bidder has timely filed all reports, registration statements and other
filings required to be filed by it with the SEC under the rules and
regulations of the SEC. Since January 1, 1999, the Company has timely filed
all reports, registration statements and other filings required to be filed
by it with the SEC under the rules and regulations of the SEC.
Section 3.5 No Undisclosed Liabilities. Neither the
Representing Party nor any of its Subsidiaries has any liabilities or
obligations of any nature required to be set forth on a balance sheet of
the Representing Party under GAAP, whether or not accrued, contingent or
otherwise, and there is no existing condition, situation or set of
circumstances which would be expected to result in such a liability or
obligation, except (a) liabilities or obligations reflected in the
Representing Party's SEC Reports or (b) liabilities and obligations which
are not, individually or in the aggregate, reasonably expected to have a
Material Adverse Effect on the Representing Party.
Section 3.6 No Violation of Law. The businesses of the
Representing Party and its Subsidiaries are not being conducted in
violation of any order, writ, injunction, decree, judgment, permit,
license, ordinance, law, statute, rule or regulation of any Governmental
Entity (provided that no representation or warranty is made in this Section
3.6 with respect to Environmental Laws), except (a) as described in the
Representing Party's SEC Reports, and (b) for violations or possible
violations which would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect on the Representing Party.
Section 3.7 Environmental Matters.
(a) Each of the Representing Party and its Subsidiaries
has obtained all licenses, permits, authorizations, approvals and consents
from Governmental Entities which are required under any applicable
Environmental Law and necessary for it to carry on its business or
operations as now conducted ("Environmental Permits"), except for such
failures to have Environmental Permits which, individually or in the
aggregate, are not reasonably expected to have a Material Adverse Effect on
the Representing Party. Each of such Environmental Permits is in full force
and effect, and each of the Representing Party and its Subsidiaries is in
compliance with the terms and conditions of all such Environmental Permits
and with all applicable Environmental Laws, except for such failures to be
in full force and effect or to be in compliance which, individually or in
the aggregate, are not reasonably likely to have a Material Adverse Effect
on the Representing Party.
(b) There are no Environmental Claims pending, or to the
knowledge of the Representing Party, threatened, against the Representing
Party or any of its Subsidiaries, or, to the knowledge of the Representing
Party, any Person whose liability for any such Environmental Claim the
Representing Party or any of its Subsidiaries has or may have retained or
assumed either contractually or by operation of law for which reserves have
not been established in accordance with GAAP, that, individually or in the
aggregate, would have a Material Adverse Effect on the Representing Party.
(c) There are no past or present actions, activities,
circumstances, conditions, events or incidents, including, without
limitation, the release, threatened release or presence of any Hazardous
Material, that would form the basis of any Environmental Claim against the
Representing Party or any of its Subsidiaries, or for which the
Representing Party or any of its Subsidiaries is liable, except for such
liabilities which, individually or in the aggregate, are not reasonably
likely to have a Material Adverse Effect on the Representing Party.
(d) As used in this Agreement:
(i) "Environmental Claim" means any claim, action,
lawsuit or proceeding by any Person which seeks to impose liability
(including, without limitation, liability for investigatory costs,
cleanup costs, governmental response costs, natural resources,
damages, property damages, personal injuries or penalties) arising
out of, based on or resulting from (A) the presence, or release or
threatened release, of any Hazardous Materials at any location,
whether or not owned or operated by the Representing Party or any of
its Subsidiaries, or (B) circumstances which would give rise to any
violation, or alleged violation, of any Environmental Law.
(ii) "Environmental Law" means any law or order of
any Governmental Entity relating to (A) the generation, treatment,
storage, disposal, use, handling, manufacturing, transportation or
shipment of, or (B) the environment or to emissions, discharges,
releases or threatened releases of, Hazardous Materials, into the
environment.
(iii) "Hazardous Materials" means (A) any petroleum
or petroleum products, radioactive materials or friable asbestos; (B)
any chemicals or other materials or substances which are now defined
as or included in the definition of "hazardous substances,"
"hazardous wastes," "hazardous materials," "extremely hazardous
wastes," "restricted hazardous wastes," "toxic substances," or "toxic
pollutants" under any Environmental Law; and (C) pesticides.
Section 3.8 Employee Benefit Plans; ERISA.
(a) Section 3.8(a) of the Representing Party's Disclosure
Schedule contains a true and complete list of each material deferred
compensation, incentive compensation or equity compensation plan; "welfare"
plan, fund or program (within the meaning of Section 3(1) of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA")); "pension"
plan, fund or program (within the meaning of Section 3(2) of ERISA); each
material employment, termination or severance agreement; and each other
material employee benefit plan, fund, program, agreement or arrangement, in
each case, that is sponsored, maintained or contributed to or required to
be contributed to by the Representing Party or by any trade or business,
whether or not incorporated (an "ERISA Affiliate"), that together with the
Representing Party would be deemed at any relevant time a "single employer"
within the meaning of Section 4001(b) of ERISA, for the benefit of any
employee or former employee of the Representing Party or any Subsidiary
(the "Plans").
(b) In respect of Plans that are not International Plans,
the Representing Party has made available to the other Party: (i) correct
and complete copies of all documents embodying each Plan including (without
limitation) all amendments thereto and all related trust documents; (ii)
the most recent annual reports (Form Series 5500 and all schedules and
financial statements attached thereto), if any, required under ERISA or the
Code in connection with each Plan; and (iii) if the Plan is funded, the
most recent annual and periodic accounting Plan assets.
(c) No liability under Title IV or Section 312 of ERISA
has been incurred by the Representing Party or any ERISA Affiliate of the
Representing Party that has not been satisfied in full, and no condition
exists that presents a material risk to the Representing Party or any ERISA
Affiliate of the Representing Party of incurring any such liability, other
than liability for premiums due the Pension Benefits Guaranty Corporation
(which premiums have been paid when due), except as are not reasonably
likely to have a Material Adverse Effect on the Representing Party. To the
knowledge of the Representing Party, each Plan subject to Title IV of ERISA
or Section 412 of the Code is fully-funded on a termination basis.
(d) Neither the Representing Party nor any ERISA
Affiliate of the Representing Party has any liability to any Pension Plan
which is a "multiemployer plan" as defined in Section 3(37) of ERISA.
(e) Each Plan of the Representing Party has been operated
and administered in accordance with its terms and applicable law, including
but not limited to ERISA and the Code, except as are not reasonably likely
to have a Material Adverse Effect on the Representing Party, and each Plan
of the Representing Party intended to be "qualified" within the meaning of
Section 401(a) of the Code is so qualified and the trusts maintained
thereunder are exempt from taxation under Section 501(a) of the Code,
except for failures to so qualify or be exempt which are not, individually
or in the aggregate, reasonably likely to have a Material Adverse Effect on
the Representing Party.
(f) Section 3.8(f) of the Representing Party's Disclosure
Schedule sets forth each Plan of the Representing Party under which as a
result of the consummation of the transactions contemplated by this
Agreement, either alone or in combination with another event, (i) any
current or former employee or officer of the Representing Party or any
ERISA Affiliate of the Representing Party may become entitled to severance
pay or any other payment, except as expressly provided in this Agreement,
or (ii) any compensation due any such employee or officer may be increased
or the time of payment or vesting may become accelerated.
(g) Except as set forth in Section 3.8(g) of the
Representing Party's Disclosure Schedule, no Plan of the Representing Party
which is not an International Plan provides, or reflects or represents any
liability to provide, retiree life insurance, retiree health or other
retiree employee welfare benefits to any Person for any reason, except as
may be required by COBRA or other applicable law. The program described by
this Section 3.8(g) has at all times provided that the Representing Party
may amend and/or terminate such program without liability (except in
respect of current obligations outstanding for current retired employees
receiving benefits).
(h) There are no pending or, to the knowledge of the
Representing Party, threatened claims by of on behalf of any Plan of the
Representing Party, by any employee or beneficiary covered under any such
Plan, or otherwise involving any such Plan (other than routing claims for
benefits), except as would not, individually or in the aggregate be
reasonably likely to have a Material Adverse Effect on the Representing
Party.
(i) Each Plan of the Representing Party that has been
adopted or maintained by the Representing Party or any of its Subsidiaries,
whether formally or informally, for the benefit of employees outside the
United States ("International Plans") has been established, maintained and
administered in material compliance with its terms and conditions and with
the requirements prescribed by any and all statutory or regulatory laws
that are applicable to such International Plans. No International Plan of
the Representing Party has unfunded liabilities that would, individually or
in the aggregate, be reasonably likely to have a Material Adverse Effect on
the Representing Party.
(j) Except as set forth in Section 3.8(j) of the
Representing Party's Disclosure Schedule, the Representing Party is not
bound by or obligated under any labor, collective bargaining or union
agreements.
Section 3.9 Absence of Certain Changes or Events. Except as
disclosed in the Representing Party's SEC Reports, since December 31, 1999
(a) the businesses of the Representing Party and its Subsidiaries have been
conducted in all material respects in the ordinary course and (b) there has
not been any event, occurrence, development or state of circumstances or
facts that has had, or is reasonably likely to have, individually or in the
aggregate, a Material Adverse Effect on the Representing Party.
Section 3.10 Proxy Statement/Prospectus; Registration Statement.
(a) The Proxy Statement (or any amendment or supplement
thereto) will not, on the date the Proxy Statement is mailed to
stockholders of the Company and to stockholders of the Bidder and at the
time of the Stockholders Meetings, contain any untrue statement of a
material fact, or omit to state any material fact required to be stated
therein or necessary in order to make the statements made therein, in the
light of the circumstances under which they are made, not misleading. None
of the information supplied by or on behalf of the Company or any of its
Subsidiaries for inclusion or incorporation by reference in the
Registration Statement will, at the date it becomes effective and at the
time of the Stockholders Meetings contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein, in light of
the circumstances under which they are made, not misleading. The Proxy
Statement will, when filed by the Company and the Bidder with the SEC,
comply as to form in all material respects with the applicable provisions
of the Exchange Act. Notwithstanding the foregoing, the Company makes no
representation or warranty with respect to the statements made in any of
the foregoing documents based on and in conformity with information
supplied by or on behalf of the Bidder for inclusion or incorporation by
reference therein.
(b) The Registration Statement on Form S-4 to be filed
with the SEC by the Bidder in connection with the Merger, as amended or
supplemented from time to time (as so amended and supplemented, the
"Registration Statement"), will not, on the date of filing with the SEC or
at the time it becomes effective under the Securities Act, and on the date
the Proxy Statement is first mailed to stockholders of the Company and
stockholders of the Bidder and at the time of the Stockholders Meetings,
contain any untrue statement of a material fact, or omit to state any
material fact required to be stated therein or necessary in order to make
the statements made therein, in the light of the circumstances under which
they are made, not misleading. None of the information supplied by or on
behalf of the Bidder or any of its Subsidiaries for inclusion or
incorporation by reference in the Proxy Statement will, at the date mailed
to the stockholders of the Bidder and at the time of the Stockholders
Meetings, contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances they were made,
not misleading. The Proxy Statement will, when filed by the Bidder and the
Company with the SEC , and the Registration Statement will, when filed by
the Bidder with the SEC, comply as to form in all material respects with
the applicable provisions of the Exchange Act and the rules and regulations
thereunder. Notwithstanding the foregoing, the Bidder makes no
representation or warranty with respect to the statements made in the
Registration Statement based on and in conformity with information supplied
by or on behalf of the Company specifically for inclusion or incorporation
by reference therein.
Section 3.11 Tax Matters.
(a) All federal, state, local and foreign Tax Returns
required to be filed by or on behalf of the Representing Party, each
affiliated, combined, consolidated or unitary group of which the
Representing Party is a member (an "Affiliated Group") have been timely
filed or requests for extensions have been timely filed and any such
extension has been granted and has not expired, and all such filed Tax
Returns are complete and accurate except to the extent any failure to file
or any inaccuracies in filed Tax Returns would not, individually or in the
aggregate, be reasonably likely to have a Material Adverse Effect on the
Representing Party. All Taxes due and owing by the Representing Party or
any Representing Party's Affiliated Group have been paid, or adequately
reserved for, except to the extent any failure to pay or reserve for would
not, individually or in the aggregate, be reasonably likely to have a
Material Adverse Effect on the Representing Party. There is no audit or
examination and there is no deficiency, refund litigation, proposed
adjustment or matter in controversy with respect to any Taxes due and owing
by the Representing Party or any Representing Party's Affiliated Group
which if determined adversely would, individually or in the aggregate, be
reasonably likely to have a Material Adverse Effect on the Representing
Party. All assessments for Taxes due and owing by the Representing Party or
any Representing Party's Affiliated Group with respect to completed and
settled examinations or concluded litigation have been paid, except to the
extent that any failures to pay would not, individually or in the
aggregate, be reasonably likely to have a Material Adverse Effect on the
Representing Party.
(b) The Representing Party has not (i) entered into a
closing agreement or other similar agreement with a taxing authority
relating to Taxes of the Representing Party or any Representing Party's
Affiliated Group with respect to a taxable period for which the statute of
limitations is still open, or (ii) with respect to U.S. federal income
Taxes, granted any waiver of any statute of limitations with respect to, or
any extension of a period for the assessment of, any income Tax, in either
case, that is still outstanding. There are no Liens relating to material
Taxes upon the assets of the Representing Party or any Representing Party's
Affiliated Group other than Liens relating to Taxes not yet due and Liens
that would not, individually or in the aggregate, have a Material Adverse
Effect on the Representing Party. Neither the Representing Party, any
Representing Party's Affiliated Group is a party to or is bound by any Tax
sharing agreement, Tax indemnity obligation or similar agreement in respect
of Taxes (other than with respect to agreements solely between or among
members of the consolidated group of which the Representing Party is the
common parent and agreements and obligations that would not, individually
or in the aggregate, have a Material Adverse Effect on the Representing
Party). Neither the Representing Party nor any Representing Party's
Affiliated Group has taken any action or knows of any fact, agreement, plan
or other circumstance that is reasonably likely to prevent either the
Merger or the Dexter Merger from qualifying as a reorganization within the
meaning of Section 368(a) of the Code.
(c) Section 3.11(c) of the Company Disclosure Schedule
lists each Tax Return of the Company or any Affiliated Group for which an
accurate copy of the actual Tax Return as filed with the relevant taxing
authority has been made available by the Company to the Bidder on or before
the date hereof.
(d) Neither the Company nor any Affiliated Group has
received any private letter ruling from the Internal Revenue Service within
the three- year period ending on the date hereof.
(e) Neither the Company nor any member of any Affiliated
Group has constituted either a "distributing corporation" or a "controlled
corporation" (within the meaning of Section 355(a)(1)(A) of the Code) in a
distribution of stock (to any Person or entity that is not a member of any
Affiliated Group) qualifying for tax- free treatment under Section 355 of
the Code (i) within the two-year period ending on the date hereof or (ii)
in a distribution which could otherwise constitute part of a "plan" or
"series of related transactions" (within the meaning of Section 355(e) of
the Code) in conjunction with the Merger or the Dexter Merger.
(f) For purposes of this Agreement: (i) "Taxes" means any
and all federal, state, local, foreign or other taxes of any kind (together
with any and all interest, penalties, additions to tax and additional
amounts imposed with respect thereto) imposed by any taxing authority,
including, without limitation, taxes or other charges on or with respect to
income, franchises, windfall or other profits, gross receipts, property,
sales, use, capital stock, payroll, employment, social security, workers'
compensation, unemployment compensation or net worth, and taxes or other
charges in the nature of excise, withholding, ad valorem or value added,
and (ii) "Tax Return" means any return, report or similar statement
(including the attached schedules) required to be filed with respect to any
Tax, including, without limitation, any information return, claim for
refund, amended return or declaration of estimated Tax.
Section 3.12 Title and Related Matters. Except as set forth in
Section 3.12(a) of the Company Disclosure Schedule, the Company or one of
its Subsidiaries has good and valid title to, or a valid leasehold or
contractual interest in, all of the properties and assets reflected in the
latest balance sheet included in the SEC Reports or acquired after the date
thereof (except for properties or assets sold or otherwise disposed of
since the date thereof), free and clear of all Liens, except for those
exceptions to title listed in Section 3.12(a) of the Company Disclosure
Schedule, statutory Liens securing payments not yet due or delinquent or
the validity of which is being contested in good faith by appropriate
proceedings, and such imperfections or irregularities in title that do not
materially and adversely affect the current use of the properties or assets
subject thereto or affected thereby or otherwise materially impair the
business operations currently conducted at such properties. As of the date
hereof, Section 3.12(b) of the Company Disclosure Schedule contains a
complete and correct list of all real property owned by the Company or any
of its Subsidiaries, and a complete and correct list of each title
insurance policy insuring title to any of such real properties.
Section 3.13 Contracts.
(a) Schedule 3.13 (a) of the Company Disclosure Schedule
sets forth a complete and correct list of each contract (the "Material
Contracts") to which the Company or any of the Subsidiaries is a party
which, as of the date hereof, (i) is a collective bargaining agreement or
any agreement that contains any severance pay liabilities or obligations;
(ii) is an employment or consulting agreement or contract with an employee
or individual consultant or a consulting agreement or contract with a
consulting firm or other organization (other than employment agreements
that are created as a matter of Law); (iii) is a note, bond or debenture or
other agreement or instrument relating to borrowed money or an agreement of
guarantee or indemnification running to any Person other than a Subsidiary;
(iv) is an agreement or contract containing any covenant limiting the
freedom of the Company or any of its Subsidiaries to engage in any line of
business or compete with any person; (v) provides for aggregate future
payments of more than $250,000; (vi) provides for aggregate future payments
in excess of $100,000, has a term exceeding one year and which may not be
cancelled upon 90 or fewer days' notice without any liability, penalty or
premium (other than a nominal cancellation fee or charge); or (vii) is
material to the business, operations or financial condition of the Company
and its Subsidiaries, taken as a whole; provided that Schedule 3.13(a) does
not list any contract for the purchase or sale of goods or services entered
into in the ordinary course of business which may be cancelled on 90 or
fewer days' notice without any liability, penalty or premium (other than a
nominal cancellation fee or charge).
(b) Except as set forth in Section 3.13(b) of the Company
Disclosure Schedule, (i) each Material Contract is in full force and
effect, and (ii) there is not, with respect to the Material Contracts, any
existing default, or event of default, or event which with or without due
notice or lapse of time or both would constitute a default or event of
default, on the part of the Company or any of its Subsidiaries or to the
best knowledge of the Company any other party thereto, except where the
failure to be in full force and effect or where such default or event of
default is not reasonably likely to have a Material Adverse Effect on the
Company.
Section 3.14 Patents, Trademarks and Similar Rights. Section
3.14 of the Representing Party's Disclosure Schedule sets forth a complete
and correct list of all worldwide patents, trademarks, trade names, service
marks, copyrights, copyright registrations and applications, together with
appropriate registration numbers, that are necessary for the conduct of the
business of the Representing Party and its Subsidiaries as presently
conducted (other than commercially available software) (the "Intellectual
Property"). Subject to the licenses and other restrictions listed in
Section 3.14 of the Representing Party's Disclosure Schedule, the
Representing Party or one of its Subsidiaries owns or holds the
Intellectual Property in each case free and clear of all Liens, except
where the failure to so own or hold would not have a Material Adverse
Effect on the Representing Party. Except as set forth in Section 3.14 of
the Representing Party's Disclosure Schedule, to the best knowledge of the
Representing Party: (i) none of the Intellectual Property presently being
sold or used in the business of the Representing Party and its Subsidiaries
as presently conducted infringes upon or conflicts with any rights owned or
held by any other Person; (ii) no Person is infringing any Intellectual
Property; or (iii) there is not pending or threatened in writing any claim
or litigation against the Representing Party or any of its Subsidiaries
contesting the rights of the Representing Party or any of its Subsidiaries
to the Intellectual Property, except for any claims or litigation which
would not have a Material Adverse Effect on the Representing Party.
Section 3.15 Legal Proceedings, etc. As of the date hereof,
except as set forth in Section 3.15 of the Company Disclosure Schedule and
except for matters involving only monetary recovery in which the damages
sought to be imposed do not exceed $200,000 individually or $1 million in
the aggregate, there are no legal, administrative, arbitration or other
proceedings or governmental investigations pending or, to the best
knowledge of the Company, threatened in writing against the Company or any
of its Subsidiaries.
Section 3.16 Disclosure. The representations and warranties by
the Representing Party in this Agreement and the statements contained in
the schedules, certificates and other writings furnished and to be
furnished by the Representing Party to the other party pursuant to this
Agreement, when considered as a whole and giving effect to any supplements
or amendments thereof prior to the time of signing on the date hereof, do
not and will not contain any untrue statement of a material fact and do not
and will not omit to state any material fact necessary to make the
statements herein or therein not misleading, it being understood that as
used in this Section 3.16 "material" means material to the Representing
Party and its Subsidiaries, taken as a whole.
Section 3.17 Opinion of Financial Advisors.
(a) The Special Committee has received the opinion of
Credit Suisse First Boston Corporation, dated the date of this Agreement,
substantially to the effect that, as of such date, the Merger Consideration
to be received in the Merger by the holders of Shares (other than Dexter
and its subsidiaries, officers and directors) is fair to such holders from
a financial point of view.
(b) The Board of Directors of the Bidder has received the
opinion of Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation, dated the
date of this Agreement, substantially to the effect that, as of such date,
the consideration to be issued and delivered by the Bidder in the Merger
and the Dexter Merger, taken together, is fair to the Bidder from a
financial point of view.
Section 3.18 Bidder Share Ownership. As of the date hereof, the
Bidder does not own any securities of the Company.
ARTICLE IV
COVENANTS AND AGREEMENTS
Section 4.1 Conduct of Business by the Company. From and after
the date hereof and prior to the Effective Time or the date, if any, on
which this Agreement is earlier terminated pursuant to Section 6.1 (the
"Termination Date"), and except with the prior written consent of the
Bidder (which consent will not be unreasonably withheld or delayed), as set
forth in Section 4.1 of the Company Disclosure Schedule or as may be
expressly permitted pursuant to this Agreement, the Company:
(i) shall, and shall cause each of its Subsidiaries
to, conduct its operations according to their ordinary and usual
course of business consistent with past practice;
(ii) shall use its reasonable best efforts, and
cause each of its Subsidiaries to use its reasonable best efforts, to
preserve intact its present business organization and goodwill, keep
available the services of its current officers and other key
employees and preserve its relationships with those Persons having
material business dealings with the Company and its Subsidiaries;
(iii) shall not, and shall not permit its
Subsidiaries to, authorize or pay any dividends on or make any
distribution with respect to its outstanding shares of capital stock
(other than any dividends or distribution by a wholly owned
Subsidiary of the Company to the Company or any of its wholly owned
Subsidiaries);
(iv) shall not, and shall not permit any of its
Subsidiaries to establish, enter into or amend any severance plan,
agreement or arrangement or any Plan of the Company or increase the
compensation payable or to become payable or the benefits provided to
its officers, directors or employees, other than as contemplated by
law or any existing contract, employee benefit or welfare plan or
policy, or in the ordinary course of business consistent with past
practice (1) with respect to employees who are not officers of the
Company, and (2) with respect to annual bonuses and other incentive
awards for employees including officers;
(v) shall not, and shall not permit any of its
Subsidiaries to, authorize, or announce an intention to authorize, or
enter into an agreement with respect to, any merger, consolidation or
business combination, any acquisition of a material amount of assets
or securities, any disposition of a material amount of assets or
securities or any other similar extraordinary transaction;
(vi) shall not, and shall not permit any of its
Subsidiaries to, propose or adopt any amendments to its certificate
of incorporation or bylaws (or other similar organizational
documents);
(vii) shall not, and shall not permit any of its
Subsidiaries to, issue or authorize the issuance of, or agree to
issue or sell any shares of capital stock of any class (whether
through the issuance or granting of options, warrants, commitments,
convertible securities, subscriptions, rights to purchase or
otherwise), except for (1) the issuance of Life Technologies Common
Stock pursuant to options and grants outstanding as of the date
hereof under the Company's 1997 Long-Term Incentive Plan, 1996
Non-Employee Directors Stock Option Plan, 1995 Long-Term Incentive
Plan and 1991 Stock Option Plan (each such plan, a "Company Equity
Plan") or (2) options and other equity awards granted in the ordinary
course of business consistent with past practice to any new employee
hired after the date hereof but before the Closing Date or pursuant
to formula awards, in either case under a Company Equity Plan;
(viii)shall not, and shall not permit any of its
Subsidiaries to, reclassify, combine, split, purchase or redeem any
shares of its capital stock or purchase or redeem any rights,
warrants or options to acquire any such shares;
(ix) shall not, and shall not permit any of its
Subsidiaries to, (A) incur, assume or prepay any indebtedness or any
other liabilities for borrowed money or issue any debt securities
other than incurrences and repayments of indebtedness under the
Company's or its Subsidiaries' credit facilities in existence on the
date of this Agreement, or (B) assume, guarantee, endorse or
otherwise become liable or responsible (whether directly,
contingently or otherwise) for the obligations of any other Person
(other than wholly owned Subsidiaries), except for guarantees by
Subsidiaries of the Company indebtedness permitted under the
preceding clause (A);
(x) shall not, and shall not permit any of its
Subsidiaries to (or consent to any proposal by any Person in which
the Company has an investment to), make or forgive any loans,
advances or capital contributions to, or investments in, any other
Person other than the Company or any wholly owned Subsidiary of the
Company (including any intercompany loans, advances or capital
contributions to, or investments in, any affiliate) other than
advances to employees in the ordinary course of business in
accordance with the Company's or its Subsidiaries' established
policies;
(xi) shall not, and shall not permit any of its
Subsidiaries to, (A) enter into any material lease, license, contract
or agreement or otherwise subject to any material Lien any of its
properties or assets (including securitizations), other than in the
ordinary course of business consistent with past practice; (B)
modify, amend in any material respect, or terminate any of its
material contracts; (C) waive, release or assign any rights
that are material to the Company and its Subsidiaries taken as a
whole; or (D) permit any insurance policy naming it as a beneficiary
or a loss payable payee to lapse, be cancelled or expire unless a new
policy with substantially identical coverage is in effect as of the
date of lapse, cancellation or expiration;
(xii) shall not, and shall not permit any of its
Subsidiaries to, change any of the financial accounting methods or
practices used by it unless required by GAAP;
(xiii)shall not, and shall not permit any of its
Subsidiaries to, make any Tax election that, individually or in the
aggregate, is reasonably likely to have a Material Adverse Effect on
the Company or settle or compromise any material Tax liability;
(xiv) shall not, and shall not permit any of its
Subsidiaries to, take any action that would prevent the Merger from
qualifying as a reorganization within the meaning of Section 368(a)
of the Code; and
(xv) shall not, and shall not permit any of its
Subsidiaries to, agree, in writing or otherwise, to take any of the
foregoing actions or take any action which would result in any of the
conditions to the Merger set forth in Article V hereof not being
satisfied.
Section 4.2 Bidder Interim Operations. Except as otherwise
expressly contemplated hereby, without the prior consent of the Company
(which consent will not be unreasonably withheld or delayed), from the date
hereof until the earlier of the Effective Time or the Termination Date, the
Bidder shall, and shall cause each of its Subsidiaries to, conduct their
business in all material respects in the ordinary and usual course
consistent with past practice and use all reasonable efforts to (i)
preserve intact its present business organization and goodwill, (ii) keep
available the services of its current officers and other key employees,
(iii) maintain in effect all material licenses, approvals and
authorizations from Governmental Entities, including, without limitation,
all material licenses and permits that are required for the Bidder or any
of its Subsidiaries to carry on its business as presently conducted and
(iv) preserve existing relationships with its material partners, lenders,
suppliers and others having material business relationships with it so that
the business of the Bidder and its Subsidiaries shall not be impaired in
any material respect at the Effective Time. Without limiting the generality
of the foregoing, except as otherwise expressly contemplated by this
Agreement, from the date hereof until the earlier of the Effective Time or
the Termination Date, without the prior consent of the Company (which
consent will not be unreasonably withheld or delayed), the Bidder shall
not, nor shall it permit any Subsidiary to:
(a) amend its certificate of incorporation or bylaws (or
other similar organizational documents);
(b) amend in any respect the terms of the capital stock of
the Bidder;
(c) split, combine, subdivide or reclassify any shares of
Bidder Common Stock or declare, set aside or pay any dividend or other
distribution (whether in cash, stock or property or any combination
thereof) in respect of Bidder Common Stock, except for (i) regular
quarterly cash dividends by the Bidder consistent in timing and amount with
past practice, or (ii) dividends paid by any Subsidiary to the Bidder or
any Subsidiary that is, directly or indirectly, wholly owned by the Bidder;
(d) change any of the financial accounting methods or
practices used by it unless required by GAAP;
(e) enter into or acquire any new line of business that
(i) is material to the Bidder and its Subsidiaries, taken as a whole, and
(ii) is not strategically related to the current business or operations of
the Bidder and its Subsidiaries;
(f) incur indebtedness outside of the ordinary course or
for acquisitions (other than in order to consummate the transactions
contemplated by this Agreement or the Dexter Merger Agreement);
(g) engage in any merger, consolidation, share exchange,
business combination, reorganization, recapitalization or other similar
transaction or any disposition, directly or indirectly, of assets,
securities or ownership interests representing a material portion of the
total assets of the Bidder and its Subsidiaries taken as a whole;
(h) shall not, and shall not permit any of its
Subsidiaries to, take any action that would prevent the Merger from
qualifying as a reorganization within the meaning of Section 368(a) of the
Code; or
(i) agree, in writing or otherwise, to take any of the
foregoing actions or take any action which would result in any of the
conditions to the Merger set forth in Article V hereof not being satisfied.
Section 4.3 Access; Confidentiality.
(a) Except for competitively sensitive information and
subject to legal and contractual restrictions, the Company shall (and shall
cause its Subsidiaries to) afford to the Bidder's officers, employees,
accountants, counsel and other authorized representatives reasonable access
during normal business hours upon reasonable notice, throughout the period
prior to the earlier of the Effective Time or the Termination Date, to its
properties, offices, employees, contracts, commitments, books and records
and any report, schedule or other document filed or received by it pursuant
to the requirements of federal or state securities laws and shall (and
shall cause each of its Subsidiaries to) furnish to the Bidder such
additional financial and operating data and other information as to its and
its Subsidiaries' respective businesses and properties as the Bidder may
from time to time reasonably request. The Bidder will make all reasonable
best efforts to minimize any disruption to the businesses of the Company
and the Company's Subsidiaries which may result from the requests for
access, data and information hereunder. The Bidder shall afford to the
Company's officers, employees, accountants, counsel and other authorized
representatives reasonable access during normal business hours upon
reasonable notice, to its officers, employees, and books and records to the
extent reasonably necessary in connection with the preparation of the Proxy
Statement. No investigation pursuant to this Section 4.3 shall affect any
representation or warranty in this Agreement of any party hereto or any
condition to the obligations of the parties hereto. All requests for access
and information shall be coordinated through designated senior executives
of each of the parties.
(b) The Bidder will hold all information provided under
this Section 4.2 that is non-public in confidence to the extent required
by, and in accordance with, the provisions of the letter dated February 27,
2000, between Dexter and the Bidder. Except as required by law, the Company
will hold, and will cause its officers, employees, accountants, counsel and
other authorized representatives to hold, confidential, all information and
documents obtained pursuant to this Section 4.3 except for information (i)
the Company can show by tangible evidence to have been in its possession
prior to your receipt thereof from the Bidder; provided that such
information is not subject to another confidentiality agreement with, or
other obligation (legal, fiduciary or contractual) of secrecy to, the
Bidder or another party; (ii) is as of the date of this Agreement or
hereafter becomes generally available to the public, other than as a result
of a disclosure by the Company or its representatives; (iii) was or may
after the date of this Agreement be available to the Company on a
non-confidential basis from a third party that is not under any
confidentiality obligation (legal, fiduciary or contractual) to the Bidder
regarding such information; or (iv) is independently acquired or developed
by the Company or its representatives without violating any of the
Company's obligations under this Section 4.3(b).
Section 4.4 Stockholders Meeting; Proxy Statement; Registration
Statement.
(a) As promptly as practicable following the date of this
Agreement, (i) the Company shall, acting through its Board of Directors and
subject to the Company's Board of Directors' fiduciary duties under
applicable law, duly call, give notice of, solicit proxies for, convene and
hold an annual or special meeting of its stockholders (the "Company
Stockholders Meeting") in accordance with applicable law, its certificate
of incorporation and its bylaws, and (ii) the Bidder shall, acting through
its Board of Directors, duly call, give notice of, solicit proxies for,
convene and hold an annual or special meeting of its stockholders (the
"Bidder Stockholders Meeting" and, together with the Company Stockholders
Meeting, the "Stockholders Meetings") in accordance with applicable law,
its certificate of incorporation and bylaws, for the purposes of, among
other actions, in each case, considering and taking action upon the
approval of the Merger and the approval and adoption of this Agreement.
Each of the Company (subject to the Company's Board of Directors' fiduciary
duties under applicable law) and the Bidder shall include in the Proxy
Statement the recommendation of its respective Board of Directors that its
respective stockholders vote in favor of the approval of the Merger and the
approval and adoption of this Agreement and, in the case of the Bidder, in
favor of the approval of an amendment to the Bidder's certificate of
incorporation to authorize a sufficient number of shares of Bidder Common
Stock to issue the Merger Consideration (the "Charter Amendment") and an
increase in the number of shares issuable by the Bidder under the Bidder's
option plans. The Bidder and the Company shall cause their respective
Stockholders Meetings to be held on the same date, which date shall be the
same as the date of the Company Shareholders Meeting (as defined in the
Dexter Merger Agreement).
(b) As promptly as practicable following the date of this
Agreement, the Company and the Bidder shall (x) prepare and file with the
SEC a preliminary joint proxy statement relating to the Merger, this
Agreement and the Charter Amendment, and (y) obtain and furnish the
information required to be included by the SEC in the Proxy Statement and,
after consulting with one another respond promptly to any comments made by
the SEC with respect to the preliminary joint proxy statement and cause a
definitive joint proxy statement, including any amendments or supplements
thereto, to be mailed to their respective stockholders at the earliest
practicable date; provided that no amendments or supplements to the Proxy
Statement will be made by either party without consultation with the other
party and its counsel. Such definitive joint proxy statement shall also
constitute the prospectus of the Bidder with respect to shares of Bidder
Common Stock to be issued in connection with the transactions contemplated
by this Agreement (such joint proxy statement and prospectus is referred to
herein as the "Proxy Statement"), which prospectus is to be filed with the
SEC as part of the Registration Statement for the purpose of registering
Bidder Common Stock under the Securities Act. Each of the parties agrees to
provide the other party and its counsel with any comments, whether written
or oral, that such party may receive from time to time from the SEC or its
staff with respect to the Proxy Statement or the Registration Statement, as
the case may be, promptly after the receipt of such comments and to consult
with the other party and its counsel prior to responding to any such
comments.
(c) As promptly as practicable following the date of this
Agreement, the Bidder shall prepare and file with the SEC the Registration
Statement, and shall use its reasonable best efforts to have the
Registration Statement declared effective by the SEC as promptly as
practicable. The Bidder shall obtain and furnish the information required
to be included by the SEC in the Registration Statement and, after
consultation with the Company, respond promptly to any comments made by the
SEC with respect to the Registration Statement and cause the prospectus
included therein, including any amendments or supplements thereto, to be
mailed to the Company's stockholders at the earliest practicable date after
the Registration Statement is declared effective by the SEC, provided that
no amendments or supplements to the Registration Statement will be made by
the Bidder without consultation with the Company and its counsel. The
Bidder shall also take any action required to be taken under state blue sky
or other securities laws in connection with the issuance of Bidder Common
Stock in the Merger.
Section 4.5 Commercially Reasonable Efforts; Further Assurances.
(a) Subject to the terms and conditions of this Agreement and
applicable law, each of the parties shall act in good faith and use
commercially reasonable efforts to take, or cause to be taken, all actions,
and to do, or cause to be done, all things necessary, proper or advisable
to consummate and make effective the transactions contemplated by this
Agreement as soon as practicable. Without limiting the foregoing, the
parties shall, and shall cause their respective Subsidiaries to, and the
parties shall use commercially reasonable efforts to cause their (and their
respective Subsidiaries') directors, officers, employees, agents,
attorneys, accountants and representatives, to (i) consult and cooperate
with and provide assistance to each other in the preparation and filing
with the SEC of the preliminary Proxy Statement, the Proxy Statement and
the Registration Statement and all necessary amendments or supplements
thereto; (ii) obtain all consents, approvals, waivers, licenses, permits,
authorizations, registrations, qualifications or other permissions or
actions by, and give all necessary notices to, and make all filings with
and applications and submissions to, any Governmental Entity or other
Person necessary in connection with the consummation of the transactions
contemplated by this Agreement as soon as reasonably practicable; (iii)
provide all such information concerning such party, its Subsidiaries and
its officers, directors, employees, partners and affiliates as may be
necessary or reasonably requested in connection with any of the foregoing;
(iv) avoid the entry of, or have vacated or terminated, any injunction,
decree, order, or judgment that would restrain, prevent, or delay the
consummation of the Merger, including but not limited to defending through
litigation on the merits any claim asserted in any court by any Person; and
(v) take any and all reasonable steps necessary to avoid or eliminate every
impediment under any antitrust, competition, or trade regulation law that
is asserted by any Governmental Entity with respect to the Merger so as to
enable the consummation of the Merger to occur as expeditiously as
possible. Prior to making any application to or filing with a Governmental
Entity or other entity in connection with this Agreement (other than filing
under the HSR Act), each party shall provide the other party with drafts
thereof and afford the other party a reasonable opportunity to comment on
such drafts.
(b) The Company and the Bidder shall keep the other
reasonably apprised of the status of matters relating to the completion of
the transactions contemplated hereby, including promptly furnishing the
other with copies of notices or other communications received by the Bidder
or the Company, as the case may be, or by any of their respective
Subsidiaries, from any third party and/or any Governmental Entity with
respect to the transactions contemplated by this Agreement.
Section 4.6 Employee Stock Options and Other Employee Benefits.
(a) Simultaneously with the Merger, (i) each outstanding
option (each a "Company Stock Option") to purchase or acquire a share of
Company Common Stock under employee incentive or benefit plans, programs or
arrangements and non-employee director plans presently maintained by the
Company (the "Company Option Plans") shall be assumed by the Bidder and
converted into an option to purchase the number of shares (rounded down to
the nearest full share) of Bidder Common Stock equal to the product of (x)
the Exchange Ratio multiplied by (y) the number of shares of Company Common
Stock which could have been issued prior to the Effective Time upon the
exercise of such option and were not previously exercised, at an exercise
price per share (rounded upward to the nearest cent) equal to the exercise
price for each share of Company Common Stock subject to such option divided
by the Exchange Ratio, with all references in each such option to the
Company being deemed to refer to the Bidder, where appropriate, provided,
however, that with respect to any Common Stock Option which, immediately
prior to the Merger, is an "incentive stock option," within the meaning of
Section 422 of the Code, the adjustments provided in this Section 4.6 shall,
if applicable, be modified in a manner so that the adjustments are
consistent with requirements of Section 424(a) of the Code, and (ii) the
Bidder shall assume the obligations of the Company under the Company Option
Plans. The other terms of each such option, and the plans under which they
were issued, shall continue to apply in accordance with their terms,
including any provisions providing for acceleration of vesting and
exercisability. At or prior to the Effective Time, the Bidder shall take
all corporate action necessary to reserve for issuance a sufficient number
of shares of Bidder Common Stock for delivery upon exercise of Company
Stock Options assumed by it in accordance with this Section 4.6. As soon as
practicable after the Effective Time, if necessary, the Bidder shall file a
registration statement on Form S-8 (or any successor or other appropriate
forms), or another appropriate form with respect to the Bidder Common Stock
subject to such Company Stock Options, and shall use its best efforts to
maintain the effectiveness of such registration statements (and maintain
the current status of the prospectus or prospectuses contained therein) for
so long as the Company Stock Options remain outstanding. The Company shall
take such steps as may be required to cause the transactions contemplated
by this Section 4.6(a) and any other dispositions of Company equity
securities (including derivative securities) in connection with this
Agreement or the transactions contemplated hereby by any individual who is
a director or officer of the Company to be exempt under Rule 16b-3
promulgated under the Exchange Act. The Bidder shall take such steps as may
be required to cause the transactions contemplated by this Section 4.6(a)
and any other acquisitions of Bidder equity securities (including
derivative securities) in connection with this Agreement or the
transactions contemplated hereby by any individual who is or becomes at or
before Closing a director or officer of the Bidder to be exempt under Rule
16b-3 promulgated under the Exchange Act. The steps to taken by the Company
and the Bidder in connection with the exemption under Rule 16b-3 described
above shall be taken in accordance with the interpretative letter dated
January 12, 1999, issued by the SEC to Skadden, Arps, Slate, Xxxxxxx & Xxxx
LLP.
(b) For the period through and including December 31,
2001, the Bidder shall, or shall cause its Subsidiaries to, maintain (i)
employee benefit plans, programs, policies and arrangements, wages or
salaries, as applicable, and bonus and other incentive compensation plans,
programs, policies and arrangements for each individual who was an employee
of the Company or any Subsidiary of the Company immediately prior to the
Effective Time, which are, in the aggregate, no less favorable than those
provided by the Company and its Subsidiaries as of immediately before the
Effective Time and (ii) contribution levels and loan provisions under the
defined contribution plans of the Company and its Subsidiaries, in each
case, at levels and subject to terms and conditions which are no less
favorable that those provided by the Company and its Subsidiaries as of
immediately prior to the Effective Time. Each Person who is an employee or
former employee of the Company or its Subsidiaries immediately prior to the
Effective Time (a "Company Employee") shall be given credit for all service
with the Company or any of its Subsidiaries (and service credited by the
Company or any of its Subsidiaries) prior to the Effective Time, using the
same methodology utilized by the Company as of immediately before the
Effective Time for crediting service and determining levels of benefits,
(i) for all purposes (other than benefit accrual under any defined benefit
pension plan) under all employee benefit plans, programs and arrangements
maintained by or contributed to by the Bidder and its Subsidiaries in which
such Company Employees become participants for purposes of eligibility to
participate, vesting and determination of level of benefits, and (ii) for
purposes of calculating the amount of each Company Employee's benefits
under all severance and vacation pay plans, programs, policies and
arrangements. The Bidder shall (x) waive, or cause to be waived, all
limitations as to preexisting conditions exclusions and waiting periods
with respect to participation and coverage requirements applicable to the
Company Employees under any welfare benefit plans that such Company
Employees may be eligible to participate in after the Effective Time,
except to the extent such limitations or waiting periods are already in
effect with respect to such employees and have not been satisfied as of the
Effective Time under any welfare benefit plan maintained for the Company
Employees immediately prior to the Effective Time, and (y) provide each
Company Employee with credit for any co-payments, deductibles and other
out-of-pocket expenses incurred prior to the Effective Time in satisfying
any applicable co-payment, deductible and other out-of-pocket expense
requirements under any welfare plans that such Company Employees are
eligible to participate in after the Effective Time, as if those
deductibles, co-payments and other out-of-pocket expenses had been incurred
under the welfare plans in which such employees are eligible to participate
after the Effective Time. Without limiting the generality of the foregoing,
the Bidder shall, and shall cause its Subsidiaries to, assume and honor all
employment, consulting, termination and severance agreements to which the
Company or any of its Subsidiaries is a party.
(c) At the direction of the Bidder, the Company shall
terminate the Life Technologies, Inc. Extra Savings Plan (the "ESP"). The
Bidder shall notify the Company at least (3) days prior to the Closing of
its decision to terminate the ESP. If the Bidder has notified the Company
of its decision to terminate the ESP, the Bidder shall receive from the
Company evidence (in a form satisfactory to the Bidder) that the ESP shall
be terminated effective as of the day immediately preceding the Closing.
The Bidder shall, consistent with the terms of its 401(k) plan, and
applicable law, allow individuals who were employees of the Company or any
Subsidiary of the Company as of immediately prior to the Closing to
participate in the Bidder's 401(k) plan and the Bidder shall cause such
plan to accept direct rollovers and rollover contributions (each, to the
extent requested by a ESP participant) in respect of the ESP account
balances (including any outstanding loans) held by such individuals.
(d) Promptly following the Effective Time, to the extent
permitted by applicable law (and pending shareholder approval, which the
Bidder shall use its best efforts to obtain), the Bidder will (after
consultation with the Company's current senior management team) issue
awards pursuant to the Bidder's stock option plan to the Company's
employees, which awards are consistent in terms of depth and amount of
participation with the policies presently employed by the Bidder after
giving consideration to relevant differences in total benefits between the
Company and the Bidder.
Section 4.7 Takeover Statute. If any "fair price,"
"moratorium," "control share acquisition" or other form of anti-takeover
statute or regulation shall become applicable to the transactions
contemplated hereby, each of the Company and the Bidder and the members of
their respective Boards of Directors shall grant such approvals and take
such actions as are reasonably necessary so that the transactions
contemplated hereby may be consummated as promptly as practicable on the
terms contemplated hereby and otherwise act to eliminate or minimize the
effects of such statute or regulation on the transactions contemplated
hereby.
Section 4.8 Public Announcements. The Bidder and the Company
agree that neither one of them will issue any press release or otherwise
make any public statement or respond to any press inquiry with respect to
this Agreement or the transactions contemplated hereby without the prior
approval of the other party (which approval will not be unreasonably
withheld), except as may be required by applicable law or the rules of any
applicable stock exchange on which such party's securities are listed.
Section 4.9 Affiliates. As soon as practicable, the Company
shall deliver to the Bidder a list identifying, to the best of the
Company's knowledge, all persons who will be, at the time of the Company
Stockholder Approval, deemed to be "affiliates" of the Company for purposes
of Rule 145 under the Securities Act. The Company shall advise the Bidder
of any additions or deletions to or from such list from time to time
thereafter. The Company shall use its reasonable best efforts to cause each
such person to deliver to the Bidder at least 30 days prior to the Closing
Date a written "affiliates" agreement in customary form and substance.
Section 4.10 Nasdaq National Market Quotation. The Bidder shall
use its best efforts to cause the shares of Bidder Common Stock to be
issued in connection with the transactions contemplated by this Agreement
to be approved for quotation on Nasdaq National Market, subject to official
notice of issuance, prior to the Closing Date.
Section 4.11 Tax-Free Reorganization. The Bidder and the Company
intend that the Merger will qualify as a reorganization within the meaning
of Section 368(a) of the Code. The Bidder and the Company shall each use
all reasonable efforts to cause the Merger to so qualify and to obtain the
opinions of their respective tax counsel referred to in Sections 5.2(a) and
5.3(a), including the execution of the representation letters referred to
therein. Neither the Bidder nor the Company shall knowingly take any
action, or knowingly fail to take any action, that would cause the Merger
not to qualify as a reorganization within the meaning of Section 368(a) of
the Code, unless otherwise required pursuant to a "determination" within
the meaning of Section 1313(a) of the Code.
Section 4.12 Disclosure Schedule SupplementFrom time to time
after the date of this Agreement and prior to the Effective Time, the
Company will promptly supplement or amend the Company Disclosure Schedule
with respect to any matter hereafter arising which, if existing or
occurring at or prior to the date of this Agreement, would have been
required to be set forth or described in the Company Disclosure Schedule or
which is necessary to correct any information in a schedule or in any
representation and warranty of the Company which has been rendered
inaccurate thereby in any material respect. From time to time after the
date of this Agreement and prior to the Effective Time, the Bidder will
promptly supplement or amend the Bidder Disclosure Schedule with respect to
any matter hereafter arising which, if existing or occurring at or prior to
the date of this Agreement, would have been required to be set forth or
described in the Bidder Disclosure Schedule or which is necessary to
correct any information in a schedule or in any representation and warranty
of the Bidder which has been rendered inaccurate thereby in any material
respect. For purposes of determining the accuracy of the representations
and warranties of the Company contained in this Agreement and the accuracy
of the representations and warranties of the Bidder contained in this
Agreement in order to determine the fulfillment of the conditions set forth
in Sections 5.2(b) and 5.3(b), the Company Disclosure Schedule and the
Bidder Disclosure Schedule shall be deemed to include only that information
contained therein on the date of this Agreement and shall be deemed to
exclude any information contained in any subsequent supplement or amendment
thereto.
Section 4.13 Indemnification; Insurance. (a) From and after the
Effective Time, the Bidder will indemnify and hold harmless each present
and former director and officer of the Company and its Subsidiaries (the
"Indemnified Parties"), against any costs or expenses (including attorneys'
fees), judgments, fines, losses, claims, damages or liabilities incurred in
connection with any claim, action, suit, proceeding or investigation,
whether civil, criminal, administrative or investigative, by reason of the
fact that such individual is or was a director, officer, employee or agent
of the Company or any of its Subsidiaries, or is or was serving at the
request of the Company or any of its Subsidiaries as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust
or other enterprise, whether asserted or claimed prior to, at or after the
Effective Time, to the fullest extent permitted under applicable law, and
the Bidder shall also advance fees and expenses (including attorneys fees)
as incurred to the fullest extent permitted under applicable law; provided,
that to the extent the Company or any of its Subsidiaries and any
Indemnified Party are parties to an existing indemnification agreement, the
indemnification provided for pursuant to this Section 4.13(a) shall be
provided by the Bidder in accordance with the procedures prescribed in such
indemnification agreement.
(b) For six years from the Effective Time, the Bidder
shall maintain in effect the Company's and its Subsidiaries' current
directors' and officers' liability insurance policies (the "Company
Policies") covering those Persons who are currently covered by the Company
Policies; provided, however, that in no event shall the Bidder be required
to expend in any one year an amount in excess of 150% of the annual
premiums currently paid by the Company or its Subsidiaries for such
insurance, and provided further, that if the annual premiums of such
insurance coverage exceeds such amount, the Bidder shall be obligated to
obtain a policy with the greatest coverage available for a cost not
exceeding such amount; and provided further that the Bidder may meet its
obligations under this paragraph by covering the above Persons under the
Bidder's insurance policy or policies on the terms described above.
Section 4.14 Additional Reports and Information. The Bidder
shall furnish to the Company copies of all reports of the type referred to
in Section 3.4 which it files with the SEC on or after the date hereof, and
the Bidder represents and warrants that as of the respective dates thereof,
such reports will not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they
were made, not misleading. The audited consolidated financial statements
and the unaudited consolidated interim financial statements included in
such reports (including any related notes and schedules) will fairly
present the financial position of the Bidder and its consolidated
Subsidiaries as of the dates thereof and the results of operations and cash
flows or other information included therein for the periods or as of the
date then ended (subject, in the case of the interim financial statements,
to normal, recurring adjustments), in each case in accordance with past
practice and GAAP consistently applied during the periods involved (except
as otherwise disclosed in the notes thereto).
ARTICLE V
CONDITIONS TO THE MERGER
Section 5.1 Conditions to Each Party's Obligation to Effect the
Merger. The respective obligations of each party to effect the Merger shall
be subject to the fulfillment at or prior to the Effective Time of the
following conditions:
(a) The Company Stockholder Approval shall have been
obtained.
(b) The Bidder Stockholder Approval shall have been
obtained.
(c) All of the conditions to the effectiveness of the
Dexter Merger shall have been satisfied or waived in accordance with the
terms of the Dexter Merger Agreement and the Dexter Merger shall be
effective simultaneously with the Effective Time. The condition set forth
in this paragraph (c) shall not be waivable by either party.
(d) No statute, rule, regulation, executive order,
decree, ruling or permanent injunction shall have been enacted, entered,
promulgated or enforced by any Governmental Entity which prohibits the
consummation of the Merger substantially on the terms contemplated hereby;
provided that the party seeking to rely upon this condition has fully
complied with and performed its obligations pursuant to Section 4.3.
(e) The applicable waiting period under the HSR Act shall
have expired or been terminated.
(f) The shares of Bidder Common Stock to be issued in the
Merger shall have been approved for quotation on the Nasdaq National
Market, subject to official notice of issuance.
(g) The Registration Statement shall have become
effective in accordance with the provisions of the Securities Act and no
stop order suspending such effectiveness shall have been issued and remain
in effect.
Section 5.2 Conditions to Obligation of the Bidder to Effect
the Merger. The obligation of the Bidder to effect the Merger shall be
subject to the satisfaction at or prior to the Effective Time of the
following additional conditions, unless waived in writing by the Bidder:
(a) The Bidder shall have received an opinion of Xxxx
Xxxx Xxxx & Freidenrich LLP, special tax counsel to the Bidder, dated as of
the Effective Time, to the effect that the Merger will qualify as a
reorganization within the meaning of Section 368(a) of the Code. The
issuance of such opinion shall be conditioned upon the receipt by such tax
counsel of customary representation letters from each of the Bidder and the
Company, in each case, in form and substance reasonably satisfactory to
such tax counsel and the issuance of the opinion of counsel to the Company
provided in Section 5.3(a). The specific provisions of each such
representation letter shall be in form and substance reasonably
satisfactory to such tax counsel, and each such representation letter shall
be dated on or before the date of such opinion and shall not have been
withdrawn or modified in any material respect. The opinion condition
referred to in this Section 5.2(a) shall not be waivable after receipt of
the Company Stockholder Approval and the Bidder Stockholder Approval
referred to in Sections 5.1(a) and 5.1(b), unless further Company
Stockholder Approval is obtained with appropriate disclosure.
(b) The representations and warranties of the Company set
forth in this Agreement that are qualified by materiality or Material
Adverse Effect shall be true and correct, and the representations and
warranties of the Company set forth in this Agreement that are not so
qualified shall be true and correct in all material respects, in each case
as if such representations or warranties were made as of the Effective Time
(other than those that speak as of a specific date or as of the date
hereof, which representations and warranties shall be true and correct or
true and correct in all material respects, as the case may be, as of such
specific date or as of the date hereof, respectively).
(c) The Company shall have performed and complied in all
material respects with all agreements and obligations required by this
Agreement to be performed and complied with by it on or prior to the
Closing Date.
(d) The Company shall have furnished a certificate of an
executive officer to evidence compliance with the conditions set forth in
Sections 5.2(b) and (c) of this Agreement.
Section 5.3 Conditions to Obligation of the Company to Effect
the Merger. The obligation of the Company to effect the Merger shall be
subject to the satisfaction at or prior to the Effective Time of the
following additional conditions, unless waived in writing by the Company
(but only with the prior approval of the Special Committee):
(a) The Company shall have received an opinion of
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, special tax counsel to the
Company, dated as of the Effective Time, to the effect that the Merger will
qualify as a reorganization within the meaning of Section 368(a) of the
Code. The issuance of such opinion shall be conditioned upon the receipt by
such tax counsel of customary representation letters from each of the
Bidder and the Company, in each case, in form and substance reasonably
satisfactory to such tax counsel. The specific provisions of each such
representation letter shall be in form and substance reasonably
satisfactory to such tax counsel, and each such representation letter shall
be dated on or before the date of such opinion and shall not have been
withdrawn or modified in any material respect. The opinion condition
referred to in this Section 5.3(a) shall not be waivable after receipt of
the Company Stockholder Approval and the Bidder Stockholder Approval
referred to in Sections 5.1(a) and 5.1(b), unless further Company
stockholder approval is obtained with appropriate disclosure.
(b) The representations and warranties of the Bidder set
forth in this Agreement that are qualified by materiality or Material
Adverse Effect shall be true and correct, and the representations and
warranties of the Company set forth in this Agreement that are not so
qualified shall be true and correct in all material respects, in each case,
as if such representations or warranties were made as of the Effective Time
(other than those that speak as of a specific date or as of the date
hereof, which representations and warranties shall be true and correct or
true and correct in all material respects, as the case may be, as of such
specific date or as of the date hereof, respectively).
(c) The Bidder shall have performed and complied in all
material respects with all agreements and obligations required by this
Agreement to be performed and complied with by it on or prior to the
Closing Date.
(d) The Bidder shall have furnished a certificate of an
executive officer of the Bidder to evidence compliance with the conditions
set forth in Section 5.3(b) and (c) of this Agreement.
ARTICLE VI
TERMINATION
Section 6.1 Termination. This Agreement may be terminated at
any time prior to the Effective Time, whether before or after obtaining the
Company Stockholder Approval and the Bidder Stockholder Approval:
(a) by the mutual written consent of the Company and the
Bidder;
(b) by either the Bidder or the Company, if the Merger
has not been consummated by October 31, 2000 (the "Expiration Date");
provided, however, that in the event either the condition set forth in
Section 5.1(e) shall not have been satisfied or, prior to September 15,
2000, the Registration Statement shall not have been declared effective,
the Expiration Date shall be extended to the earlier of (x) the later of
(1) the date which is three business days after the date on which the
condition set forth in Section 5.1(e) is satisfied and (2) the date which
is three business days following the date of the Company Shareholders
Meeting and (y) December 31, 2000; provided further, that the right to
terminate this Agreement under this clause (b) shall not be available to
any party whose failure to fulfill any of its obligations under this
Agreement has been the cause of or resulted in the failure to consummate
the Merger by such date;
(c) by either the Bidder or the Company if (i) a statute,
rule, regulation or executive order shall have been enacted, entered,
promulgated or enforced by any Governmental Entity prohibiting the
consummation of the Merger substantially on the terms contemplated hereby;
or (ii) an order, decree, ruling or injunction shall have been entered
permanently restraining, enjoining or otherwise prohibiting the
consummation of the Merger substantially on the terms contemplated hereby
and such order, decree, ruling or injunction shall have become final and
non-appealable; provided, that the party seeking to terminate this
Agreement pursuant to this Section 6.1(c)(ii) shall have used its
reasonable best efforts to remove such order, decree, ruling or injunction
and shall not be in violation of Section 4.4;
(d) by the Bidder or the Company, if after the Bidder
convenes and holds the Bidder Stockholders Meeting and certifies the vote
with respect to the Merger and the amendment of the Bidder's certificate of
incorporation, the Bidder's stockholders shall have failed to deliver the
stockholder approval required by law to be given by the Bidder's
stockholders;
(e) by the Bidder or the Company, if the Dexter Merger
Agreement shall have been terminated in accordance with its terms;
(f) by the Bidder, if there has been a material violation
or breach by the Company of any agreement, representation or warranty
contained in this Agreement that has rendered the satisfaction of any
condition to the obligations of the Bidder impossible and such violation or
breach has not been waived by the Bidder;
(g) by the Company, if there has been a material
violation or breach by the Bidder of any agreement, representation or
warranty contained in this Agreement that has rendered the satisfaction of
any condition to the obligations of the Company impossible and such
violation or breach has not be waived by the Company; or
(h) in the event that the Expiration Date is extended
beyond October 31, 2000, by the Bidder or the Company, at any time after
the tenth business day following the termination of either the Asset
Purchase Agreement, dated as of June 20, 2000, between Dexter and Loctite
Corporation or the Asset Purchase Agreement, dated as of June 20, 2000,
between Dexter and Xxxxxxxx Paper Group Oy, in accordance with its terms.
Section 6.2 Effect of Termination. In the event of termination
of this Agreement pursuant to Section 6.1, written notice thereof shall
forthwith be given to the other party or parties specifying the provision
hereof pursuant to which such termination is made, and this Agreement shall
terminate and be of no further force and effect (except for the provisions
of Section 7.2), and there shall be no other liability on the part of the
Bidder or the Company except liability arising out of a willful breach of
this Agreement.
ARTICLE VII
MISCELLANEOUS
Section 7.1 No Survival of Representations and Warranties. None
of the representations and warranties in this Agreement or in any
instrument delivered pursuant to this Agreement shall survive the Effective
Time.
Section 7.2 Expenses. Except as otherwise expressly
contemplated by this Agreement, all costs and expenses incurred in
connection with this Agreement and the transactions contemplated hereby
shall be paid by the party incurring such costs and expenses.
Section 7.3 Counterparts; Effectiveness. This Agreement may be
executed in two or more separate counterparts, each of which shall be
deemed to be an original but all of which shall constitute one and the same
agreement. This Agreement shall become effective when each party hereto
shall have received a counterpart hereof signed by the other party hereto.
Section 7.4 Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of Delaware, without
regard to the principles of conflicts of laws thereof.
Section 7.5 Notices. All notices and other communications
hereunder shall be in writing (including telecopy or similar writing) and
shall be effective (a) if given by telecopy, when such telecopy is
transmitted to the telecopy number specified in this Section 7.5 and the
appropriate telecopy confirmation is received or (b) if given by any other
means, when delivered at the address specified in this Section 7.5:
To the Bidder:
Invitrogen Corporation
0000 Xxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Attention: Chief Financial Officer
Telecopy: (000) 000-0000
copy to:
Xxxx Xxxx Xxxx & Freidenrich LLP
0000 Xxxxxxxxx Xxxxx, Xxxxx 0000
Xxx Xxxxx, Xxxxxxxxxx 00000-0000
Attention: Cameron Xxx Xxxxx, Esq.
Telecopy: (000) 000-0000
To the Company or to the Special Committee:
Life Technologies, Inc.
0000 Xxxxxxx Xxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: General Counsel
Telecopy: (000) 000-0000
with a copy to:
Life Technologies, Inc.
0000 Xxxxxxx Xxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Chairman, Special Committee
Telecopy: (000) 000-0000
with a further copy to:
Dexter Corporation
Xxx Xxx Xxxxxx
Xxxxxxx Xxxxx, Xxxxxxxxxxx 00000-0000
Attention: General Counsel
Telecopy: (000) 000-0000
a further copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: J. Xxxxxxx Xxxxxx, Esq.
Xxxxxxxx X. Xxxxx, Esq.
Telecopy: (000) 000-0000
and a further copy to:
Wachtell Lipton Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxx X. Xxxx, Esq.
Telecopy: (000) 000-0000
Section 7.6 Assignment; Binding Effect. Neither this Agreement
nor any of the rights, interests or obligations hereunder shall be assigned
by any of the parties hereto (whether by operation of law or otherwise)
without the prior written consent of the other parties. Subject to the
first sentence of this Section 7.6, this Agreement shall be binding upon
and shall inure to the benefit of the parties hereto and their respective
successors and permitted assigns. Any assignment not permitted under this
Section 7.6 shall be null and void.
Section 7.7 Severability. Any term or provision of this
Agreement which is invalid or unenforceable in any jurisdiction shall, as
to that jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without rendering invalid or unenforceable the remaining
terms and provisions of this Agreement in any other jurisdiction. If any
provision of this Agreement is so broad as to be unenforceable, such
provision shall be interpreted to be only so broad as is enforceable.
Section 7.8 Enforcement of Agreement. The parties hereto agree
that money damages or other remedy at law would not be sufficient or
adequate remedy for any breach or violation of, or a default under, this
Agreement by them and that in addition to all other remedies available to
them, each of them shall be entitled to the fullest extent permitted by law
to an injunction restraining such breach, violation or default or
threatened breach, violation or default and to any other equitable relief,
including, without limitation, specific performance, without bond or other
security being required.
Section 7.9 Entire Agreement; Third-Party Beneficiaries. This
Agreement together with the Dexter Merger Agreement, the Confidentiality
Agreement, dated February 27, 2000, between the Bidder and Dexter, the
Company Disclosure Schedule, the Bidder Disclosure Schedule and exhibits
hereto constitute the entire agreement, and supersede all other prior
agreements and understandings, both written and oral, among the parties, or
any of them, with respect to the subject matter hereof and thereof and,
except for the provisions of Section 4.6(a), (b) and (c) and Section 4.13,
is not intended to and shall not confer upon any Person other than the
parties hereto any rights or remedies hereunder.
Section 7.10 Headings. Headings of the Articles and Sections of
this Agreement are for convenience of the parties only, and shall be given
no substantive or interpretive effect whatsoever.
Section 7.11 Definitions. References in this Agreement to (a)
"Subsidiaries" of the Company or the Bidder shall mean any corporation or
other form of legal entity of which more than 50% of the outstanding voting
securities are on the date hereof directly or indirectly owned by the
Company or the Bidder or in which the Company or the Bidder has the right
to elect a majority of the members of the board of directors or other
similar governing body; (b) "Significant Subsidiaries" shall mean
Subsidiaries which constitute "significant subsidiaries" under Rule 405
promulgated by the SEC under the Securities Act; (c) "affiliates" shall
mean, as to any Person, any other Person which, directly or indirectly,
controls, or is controlled by, or is under common control with, such
Person; and (d) "Person" shall mean an individual, a corporation, a
partnership, an association, a trust or any other entity or organization,
including, without limitation, a Governmental Entity. As used in the
definition of "affiliates," "control" (including, with its correlative
meanings, "controlled by" and "under common control with") shall mean the
possession, directly or indirectly, of the power to direct or cause the
direction of management or policies of a Person, whether through the
ownership of securities or partnership or other ownership interests, by
contract or otherwise. "Including," as used herein, shall mean "including,
without limitation."
Section 7.12 Finders or Brokers. Except for Xxxxxx Brothers Inc.
and Credit Suisse First Boston Corporation with respect to the Company, and
Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation with respect to the
Bidder, neither the Company nor the Bidder nor any of their respective
Subsidiaries has employed any investment banker, broker, finder or
intermediary in connection with the transactions contemplated hereby who
might be entitled to any fee or any commission in connection with or upon
consummation of the Merger.
Section 7.13 Amendment or Supplement. At any time prior to the
Effective Time, this Agreement may be amended or supplemented in any and
all respects, whether before or after the Company Stockholder Approval and
the Bidder Stockholder Approval, by written agreement of the parties hereto
by action taken by their respective Boards of Directors (which in the case
of the Company may be taken only upon the recommendation of the Special
Committee) with respect to any of the terms contained in this Agreement;
provided, however that following the Company Stockholder Approval and the
Bidder Stockholder Approval there shall be no amendment or change to the
provisions hereof which would reduce the amount or change the type of
consideration into which each Share shall be converted upon consummation of
the Merger or other change requiring stockholder approval without further
approval by the stockholders of the Company.
Section 7.14 Extension of Time, Waiver, Etc. At any time prior
to the Effective Time, any party may (a) extend the time for the
performance of any of the obligations or acts of any other party hereto;
(b) waive any inaccuracies in the representations and warranties of any
other party hereto contained herein or in any document delivered pursuant
hereto; or (c) subject to the proviso of Section 7.13 waive compliance with
any of the agreements or conditions of any other party hereto contained
herein; provided that the waiver of any of the conditions to the Company's
obligations to effect the Merger shall be authorized only upon the
recommendation of the Special Committee; and provided, further, that any
waiver on the part of the Company of the Bidder's compliance with the
provisions of Section 4.2 may be authorized only by the affirmative vote of
at least six members of the Board of Directors of the Company.
Notwithstanding the foregoing no failure or delay by the Company or the
Bidder in exercising any right hereunder shall operate as a waiver thereof
nor shall any single or partial exercise thereof preclude any other or
further exercise thereof or the exercise of any other right hereunder. Any
agreement on the part of a party hereto to any such extension or waiver
shall be valid only if set forth in an instrument in writing signed on
behalf of such party.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered as of the date first above
written.
INVITROGEN CORPORATION
By: /s/ Xxxx X. Xxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxx
Title: Chairman & CEO
LIFE TECHNOLOGIES, INC.
By: /s/ X. Xxxxx Xxxxxxxx
---------------------------------------
Name: X. Xxxxx Xxxxxxxx
Title: President & CEO
By: /s/ Xxxxxx X. Xxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Director
