Exhibit 2.1
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (this "Agreement") is entered into as
of November 29, 2004, by and between Intermagnetics General Corporation, a New
York corporation ("IGC-NY" or the "Non-Surviving Company"), and Intermagnetics,
Inc., a Delaware corporation ("Intermagnetics-DE" or the "Surviving Company").
WHEREAS, IGC-NY owns all of the issued and outstanding shares of
capital stock of Intermagnetics-DE; and
WHEREAS, IGC-NY desires to reincorporate in the State of Delaware by
merging with and into Intermagnetics-DE with Intermagnetics-DE continuing as the
surviving corporation in such merger upon the terms and subject to the
conditions herein set forth and in accordance with the laws of the State of New
York and the State of Delaware.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants, representations, warranties and agreements herein contained, the
parties hereto have agreed as follows:
1. THE MERGER.
(a) The Merger. Subject to the terms and conditions of this Agreement
and pursuant to the provisions of the New York Business Corporate Law (the
"NYBCL") including, without limitation, Sections 905 and 907 thereof, and the
Delaware General Corporation Law (the "DGCL"), including, without limitation,
Section 253, thereof at the Effective Time (as such term is defined in Section
1(b)) hereof), IGC-NY shall be merged with and into Intermagnetics-DE (the
"Merger"), the separate corporate existence of IGC-NY shall cease and
Intermagnetics-DE shall continue as the Surviving Company under the laws of the
State of Delaware.
(b) The Effective Time of the Merger. IGC-NY shall file a duly executed
Certificate of Merger with the New York Department of State (the "NY Certificate
of Merger"). IGC-NY, on behalf of Intermagnetics-DE, shall file a duly executed
Certificate of Ownership and Merger with the Delaware Secretary of State (the
"DE Certificate of Merger"). The "Effective Time" of the Merger shall be the
later of: (i) the date and time of acceptance for filing with the New York
Secretary of State of the NY Certificate of Merger, (ii) the date and time of
acceptance for filing with the Delaware Secretary of State of the DE Certificate
of Merger, or (iii) such other time as shall be agreed to by the parties and set
forth in the DE Certificate of Merger and the NY Certificate of Merger, as
applicable.
(c) Effect of the Merger. At the Effective Time, the Surviving Company
shall thereupon and thereafter possess all of the rights, privileges, powers,
immunities and franchises, both of a public and private nature, of each of
IGC-NY and Intermagnetics-DE, and shall be subject to all of the restrictions,
disabilities and duties of each of IGC-NY and Intermagnetics-DE; and all of the
rights, privileges, powers, immunities and franchises of each of IGC-NY and
Intermagnetics-DE, and all property (real, personal and mixed), and all debts
due to either of IGC-NY or Intermagnetics-DE on whatever account, for stock
subscriptions as well as all other things in action, causes of action, and every
other asset or belonging to or of each of IGC-NY or Intermagnetics-DE, shall be
vested in the Surviving Company; and all property, rights, privileges, powers,
immunities and franchises and all and every other interest shall thereafter be
the property of the Surviving Company as they were of IGC-NY and
Intermagnetics-DE; but all rights of creditors and all liens upon any property
of either IGC-NY or Intermagnetics-DE shall be preserved unimpaired, and all
debts, liabilities and duties of each of IGC-NY and Intermagnetics-DE shall
thenceforth attach to the Surviving Company, and may be enforced against it to
the same extent as if said debts, liabilities and duties had been incurred or
contracted by the Surviving Company.
(d) Designation and Outstanding Shares. As to IGC-NY and
Intermagnetics-DE, the designation and number of outstanding shares of each
class and series and the voting rights thereof are as follows:
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Name of Corporation Designation and Number of shares Class or series Shares entitled
number of shares in owned by the of shares to vote as a
each class or series surviving entitled to vote class or series
outstanding corporation
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INTERMAGNETICS GENERAL CORP. 29,867,815 COMMON NONE COMMON COMMON
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INTERMAGNETICS, INC. 000 XXXXXX XXXX XXXXXX COMMON
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The number of such shares is not subject to change prior to the
Effective Time of the Merger.
(e) Certificate of Incorporation of the Surviving Company. The
Certificate of Incorporation of Intermagnetics-DE in effect immediately prior to
the Effective Time shall be the Certificate of Incorporation of the Surviving
Company from and after the Effective Time and shall continue in full force and
effect until otherwise changed, altered, amended or repealed as therein provided
and in the manner prescribed in the DGCL.
(f) Bylaws of the Surviving Company. The Bylaws of Intermagnetics-DE in
effect immediately prior to the Effective Time shall be the Bylaws of the
Surviving Company from and after the Effective Time and shall continue in full
force and effect until otherwise changed, altered, amended or repealed as
therein provided and in the manner prescribed in the DGCL.
(g) Board of Directors and Officers of the Surviving Company. The Board
of Directors and officers of IGC-NY in office immediately prior to the Effective
Time, together with such additional persons as may thereafter be elected or
appointed, as applicable, shall serve as the Board of Directors and officers of
the Surviving Company from and after the Effective Time in accordance with the
Certificate of Incorporation and Bylaws of the Surviving Company and their
respective terms of office shall not be changed as a result of the Merger.
(h) Tax Treatment of the Merger. The parties hereto intend that the
Merger shall be treated as a tax-free a reorganization in accordance with the
United States Internal Revenue Code of 1986, as amended, and each party shall
file all tax returns, and take all other actions for tax purposes, in a manner
consistent therewith.
(i) Name of Surviving Company. In connection with and as part of the
consummation of the Merger, Intermagnetics-DE shall change its name to
Intermagnetics General Corporation.
2. CONVERSION OF SHARES.
(a) Exchange Ratio. At the Effective Time, by virtue of the Merger and
without any action on the part of the holder thereof:
(i) All shares of the common stock, par value $.10 per share,
of Intermagnetics-DE ("Delaware Common Stock") issued and outstanding
immediately prior to the Effective Time shall no longer be outstanding and shall
automatically be canceled and retired without any consideration being paid or
issued therefore and shall cease to exist.
(ii) Each common share, par value $.10 per share, of IGC-NY
("New York Common Stock") issued and outstanding immediately prior to the
Effective Time shall be automatically converted on a share-for-share basis into
and represent and become one validly issued, fully paid and non-assessable share
of Delaware Common Stock and shall constitute the only outstanding shares of the
Surviving Corporation. Such shares of stock of the Surviving Corporation will be
issued on a pro rata basis to the holders of the stock of IGC-NY on surrender of
certificates therefor.
(b) Exchange of Certificates. At the Effective Time, each stock
certificate representing New York Common Stock will automatically represent an
equal amount of Delaware Common Stock. At any time on or after the Effective
Time of the Merger, each holder of New York Common Stock will be entitled, upon
request, and surrender of such certificates, to the Surviving Corporation, to
receive in exchange therefor one or more new stock certificates evidencing
ownership of the same number of full shares of Delaware Common Stock as was
represented by the certificate or certificates surrendered by such holder
representing the New York Common Stock. If any certificate representing shares
of Delaware Common Stock is to be issued in a name other than that in which the
certificate surrendered in exchange therefor is registered, it shall be a
condition of the issuance thereof that the certificate or other writing so
surrendered shall be properly endorsed and otherwise in proper form for transfer
and that the person requesting such exchange shall pay to the Surviving
Corporation or its transfer agent any transfer or other taxes required by reason
of the issuance of a certificate representing shares of Delaware Common Stock in
any name other than that of the registered holder of the certificate
surrendered, or otherwise required, or shall establish to the satisfaction of
the transfer agent that such tax has been paid or is not payable.
(c) Lost and Stolen Certificates. In the event that any stock
certificate representing New York Common Stock shall have been lost, stolen, or
destroyed, upon the making of an affidavit of that fact by the person claiming
such stock certificate to be lost, stolen, or destroyed, Intermagnetics-DE shall
issue or cause to be issued in exchange for such lost, stolen, or destroyed
stock certificate the number of shares of Delaware Common Stock into which such
shares are converted in the Merger in accordance with this Section 2. When
authorizing such issuance in exchange therefor, the Board of Directors of
Intermagnetics-DE may, in its sole discretion and as a condition precedent to
the issuance thereof, require the owner of such lost, stolen, or destroyed
certificate to deliver a bond to Intermagnetics-DE (in such form and amount as
the Board of Directors of Intermagnetics-DE may direct) as an indemnity against
any claim that may be made against Intermagnetics-DE with respect to the
Certificate alleged to have been lost, stolen, or destroyed.
(d) Stock Options, Warrants, Debentures, Preferred Stock and other
Agreements. As of the Effective Time, any stock options, warrants, convertible
securities or other contractual commitments or agreements of any kind to
purchase or issue shares of New York Common Stock that are outstanding
immediately prior to the Effective Time (whether or not contingent or otherwise
requiring further shareholder approval) shall be converted into a stock option,
warrant, convertible security or other contractual commitment or agreement to
purchase or issue shares of Delaware Common Stock on the same terms as prior to
the Effective Time, except that any rights or obligations therein relating to
shares of New York Common Stock shall be converted to rights or obligations
relating to shares of Delaware Common Stock. Without limiting the foregoing,
each outstanding option, right, stock award or warrant with respect to shares of
New York Common Stock will be converted into an option, right, stock award or
warrant with respect to an equal number of shares of Delaware Common Stock,
under the same terms and conditions as the original option, right, stock award
or warrant. All of IGC-NY's employee benefit plans, including the Intermagnetics
General Corporation 2000 Stock Option and Stock Award Plan (the "2000 Plan") and
the Intermagnetics General Corporation 1990 Stock Option Plan (the "1990 Plan"),
will be assumed and continued by Intermagnetics-DE following the Effective Time,
and shares of Delaware Common Stock will be authorized to be issued under the
2000 Plan and 1990 Plan equal to the number of shares of New York Common Stock
authorized to be issued under the Plans immediately prior to the Effective Time.
(e) Closing of Transfer Books. At the Effective Time, the stock
transfer books of IGC-NY shall be closed and no transfer of shares of New York
Common Stock shall thereafter be made. If, after the Effective Time,
certificates representing shares of New York Common Stock are presented to the
Surviving Company, they shall be canceled and exchanged for certificates
representing shares of Delaware Common Stock in accordance with the terms
hereof. At and after the Effective Time, the holders of shares of New York
Common Stock to be exchanged for shares of Delaware Common Stock pursuant to
this Agreement shall cease to have any rights as shareholders of IGC-NY except
for the right to surrender such stock certificates in exchange for shares of
Intermagnetics-DE Common Stock as provided hereunder.
3. MISCELLANEOUS.
(a) Fees and Expenses. Whether or not the Merger is consummated, each
party hereto shall pay its own costs and expenses incident to the preparation of
this Agreement, the consummation of the Merger, and the performance of and
compliance with all of the agreements and conditions contained herein.
(b) Notices. All notices, requests, demands, waivers and other
communications required or permitted to be given under this Agreement shall be
in writing and shall be deemed to have been duly given if delivered personally
or mailed by overnight delivery service or by first class mail postage prepaid,
or sent by telecopier, to the parties at the following address (or at such other
address of a party as shall be specified by like notice): c/o Intermagnetics
General Corporation, 000 Xxx Xxxxxxxxx Xxxx, X.X. Xxx 000, Xxxxxx, XX
00000-0000, Attn: Xxxxxxxxx Xxxxxxx.
(c) Binding Effect; Benefit. This Agreement shall inure to the benefit
of and be binding upon the parties hereto and their respective successors and
assigns, but neither this Agreement nor any of the rights, interests or
obligations hereunder shall be assigned by any party hereto without the prior
written consent of the other party. Nothing in this Agreement, express or
implied, is intended to confer on any person other than the parties hereto or
their respective successors and assigns, any rights, remedies, obligations or
liabilities under or by reason of this Agreement.
(d) Amendment, Modification and Termination. Notwithstanding the
approval and adoption of this Agreement by the Boards of Directors of IGC-NY and
Intermagnetics-DE and/or the shareholders of IGC-NY, and subject to applicable
law, this Agreement may be amended, modified and supplemented in any and all
respects, or terminated and abandoned by the Boards of Directors of IGC-NY or
Intermagnetics-DE or both, in part or in its entirety, or the consummation of
the Merger may be postponed ,without any action of the stockholders of IGC-NY or
Intermagnetics-DE, at any time prior to the filing of any required Merger
documents with the Secretary of State of either the State of New York or the
State of Delaware.
(e) Section Headings. The Section headings contained in this Agreement
are inserted for reference purposes only and shall not affect the meaning or
interpretation of this Agreement.
(f) Applicable Law. This Agreement and the legal relations among the
parties hereto shall be governed by and construed in accordance with the laws of
the State of Delaware without regard to the conflict of laws principles or rules
thereof.
(g) Integration. This Agreement sets forth and is intended to be an
integration of all of the promises, agreements, conditions, understandings,
covenants, warranties and representations among the parties with respect to the
Merger and there are no promises, agreements, conditions, understandings,
covenants, warranties or representations, oral or written, express or implied,
among the parties with respect to the transactions contemplated other than as
set forth herein. Any and all prior agreements among the parties with respect to
the Merger are hereby revoked.
(h) Further Actions. Each of IGC-NY and Intermagnetics-DE will use its
commercially reasonable efforts to cause to be executed and filed and recorded
any document or documents prescribed by the laws of the State of New York and
the State of Delaware (including, without limitation, a Certificate of Merger
and a Certificate of Ownership and Merger, as applicable), and to be performed
within the State of New York and the State of Delaware and elsewhere all acts
necessary to effectuate the Merger.
IN WITNESS WHEREOF, the parties hereto have executed this Merger
Agreement effective as of the date first above written.
INTERMAGNETICS GENERAL CORPORATION,
a New York corporation
By: /s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx
Chairman & Chief Executive Officer
INTERMAGNETICS, INC.,
a Delaware corporation
By: /s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx
President
