EXHIBIT 7.3
AGREEMENT OF MERGER
This Agreement of Merger, dated as of November 23, 1999 (the "Merger
Agreement"), is made and entered into by CAT Acquisition Corporation I, a
Delaware Corporation ("Merger Sub"), and Calogic, a California corporation (the
"Company" or "Surviving Corporation") (the Company and Merger Sub being
hereinafter collectively referred to as the "Constituent Corporations").
RECITALS
A. SIPEX Corporation, a Massachusetts corporation and sole shareholder of
Merger Sub ("Parent"), the Company, Merger Sub and the other parties named
therein have entered into an Agreement and Plan of Reorganization dated as of
October 21, 1999, as amended, (the "Reorganization Agreement"), providing, among
other things, for the execution and filing of this Merger Agreement and the
merger of Merger Sub with and into the Company upon the terms set forth in the
Reorganization Agreement and this Merger Agreement (the "Merger").
B. The respective Boards of Directors of each of the Constituent
Corporations deem it advisable and in the best interests of each of such
corporations and their respective shareholders that Merger Sub be merged with
and into the Company.
AGREEMENT
NOW, THEREFORE, in consideration of the promises and mutual agreements
contained in this Merger Agreement, the Constituent Corporations hereby agree
that Merger Sub shall be merged with and into the Company in accordance with the
provisions of the General Corporation Law of the State of California (the
"California Law") upon the terms and subject to the conditions set forth as
follows:
ARTICLE 1
The Merger
1.1 Filing. This Merger Agreement, together with the officers'
certificates of each of the Constituent Corporations shall be filed with the
Secretary of State of the State of California at the time specified in the
Reorganization Agreement.
1.2 Effectiveness. The Merger shall become effective upon the filing of
this Merger Agreement with the Secretary of State of the State of California
(the "Effective Time").
1.3 Merger. On the Effective Time, Merger Sub shall be merged into the
Company and the separate corporate existence of Merger Sub shall thereupon
cease. The
Company shall be the Surviving Corporation in the merger and the separate
corporate existence of the Company, with all of its purposes, objects, rights,
privileges, powers, immunities and franchises, shall continue unaffected and
unimpaired by the Merger.
1.4 Effect of the Merger. The Merger shall have the effects set forth in
California Law. Without limiting the generality of the foregoing, the Surviving
Corporation shall possess all the rights, privileges, powers and franchises, of
a public as well as a private nature, and be subject to all the restrictions,
disabilities and duties, of each of the Constituent Corporations. The Surviving
Corporation shall be vested with the rights, privileges, powers and franchises,
all property (real, personal, and mixed) and all debts due on whatever account
and all other things in action or belonging to, and all and every other interest
of, each of the Constituent Corporations. All debts, liabilities and duties of
each of the Constituent Corporation shall attach to the Surviving Corporation
and may be enforced against it to the same extent as if such debts, liabilities
and duties had been incurred or contracted by it.
1.5 Further Action. If at any time after the Effective Time any further
action is necessary or desirable to carry out the purposes of this Merger
Agreement or to vest the Surviving Corporation with the full right, title and
possession to all assets, property, rights, privileges, immunities, powers and
franchises of either or both of the Constituent Corporations, the officers and
directors of the Surviving Corporation are fully authorized in the name of
either or both of the Constituent Corporations or otherwise to take all such
action.
ARTICLE 2
Corporate Governance Matters
2.1 Articles. The Articles of Surviving Corporation shall remain the
Articles of Incorporation of Calogic.
2.2 Directors. At the Effective Time, the directors of Merger Sub shall
become the directors of the Surviving Corporation and they shall hold office as
provided in the Bylaws of the Surviving Corporation.
2.3 Officers. At the Effective Time, the officers of Merger Sub shall
become the officers of the Surviving Corporation and they shall hold office as
provided in the Bylaws of the Surviving Corporation.
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ARTICLE 3
Manner of Converting Shares of the Constituent Corporations
3.1 Definitions.
(a) For purposes of this Agreement, "Average Price" shall mean
$11.906.
(b) At the Effective Time, all of the shares of common stock, no par
value per share of the Company issued and outstanding immediately prior to the
Effective Time (the "Company Shares") (excluding any Company Shares held by
Parent or Merger Sub or any other subsidiary of Parent or by the Company, which
shares shall be canceled in the Merger, and Dissenting Company Shares (as
defined in Section 3.5 hereof)) shall automatically, by virtue of the Merger and
without any action on the part of the holder thereof, be converted into shares
of common stock, $.01 par value per share, of Parent (the "Parent Common Stock")
in accordance with Section 3.1(d) (rounded down to the nearest whole share), and
cash (rounded to the nearest whole cent) in lieu of fractional shares, if any,
pursuant to Section 3.2 below (such Parent Common Stock and cash being referred
to herein as the "Merger Consideration"). The Company Shares that are actually
issued and outstanding immediately prior to the Effective Time are sometimes
referred to herein as the "Outstanding Company Shares," and the outstanding
options to purchase common stock of the Company are sometimes referred to herein
as the "Outstanding Company Options".
(c) The maximum number of shares of Parent Common Stock to be issued
(which maximum number includes Parent Common Stock to be issued upon exercise of
the Outstanding Company Options) in exchange for the acquisition of all
Outstanding Company Shares shall be 3,300,000 provided that such maximum number
shall be adjusted to the extent required by Section 3.2(b) below.
(d) The ratio at which each Outstanding Company Share will be
converted into shares of Parent Common Stock at the Effective Time is herein
called the "Conversion Ratio" and shall be calculated as set forth in this
Section 3.1(d). Subject to Section 3.2(a), at the Effective Time, each
Outstanding Company Share shall be converted into the right to receive that
number (which may be a fraction) of shares of Parent Common Stock that equals
the quotient obtained by dividing 3,300,000 (as may be adjusted pursuant to
Section 3.2(b)) by the number of Outstanding Company Shares plus the number of
Company Shares issued upon the exercise or conversion of all Outstanding Company
Options. Each holder of Company Shares shall have received that aggregate number
of shares of Parent Common Stock (rounded down to the nearest whole share) equal
to the Conversion Ratio multiplied by the number of Company Shares held by such
holder immediately prior to the Effective Time, subject to Section 3.5 herein.
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(e) At the Effective Time, Parent will assume each Outstanding
Company Option and each holder thereof (each an "Option Holder") shall thereby
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be entitled to acquire, by virtue of the Merger and without any action on the
part of the Option Holder, on substantially the same terms (including the dates
and extent of exercisability) and subject to the same conditions, including
vesting, as such Outstanding Company Option, the number of shares of Parent
Common Stock determined by multiplying the number of shares of Company Common
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Stock for which such Outstanding Company Option is then exercisable in
accordance with its terms immediately prior to the Effective Time by the
Conversion Ratio (rounded down to the nearest whole share), at an exercise or
conversion price per share of Parent Common Stock (rounded up to the nearest
whole cent) determined by dividing the exercise price per share of Calogic
Common Stock of such Outstanding Company Option immediately prior to the
Effective Time by the Conversion Ratio.
(f) At the Effective Time, each Company Share held by the Company
shall automatically, by virtue of the Merger, be canceled without payment of any
consideration therefor and without any conversion thereof.
(g) At the Effective Time, each Company Share held by Parent or
Merger Sub or any other subsidiary of Parent shall automatically, by virtue of
the Merger, be canceled without payment of any consideration therefor and
without any conversion thereof.
(h) At the Effective Time, each share of common stock, $.01 par value
per share, of Merger Sub issued and outstanding immediately prior to the
Effective Time shall, by virtue of the Merger and without any action on the part
of the holder thereof, be converted into one share of common stock, no par
value, of the Surviving Corporation.
3.2 (a) No Fractional Shares. No certificates or scrip for fractional
shares of Parent Common Stock will be issued, no Parent stock split or dividend
shall be paid in respect of any fractional share interest, and no such
fractional shares interest shall entitle the owner thereof to vote or to any
rights of or as a stockholder of Parent. In lieu of such fractional shares, any
holder of Company Shares who would otherwise be entitled to a fraction of a
share of Parent Common Stock (after aggregating all fractional shares of Parent
Common Stock to be received by such holder) will be paid the cash value of such
fraction, which shall be equal to the fraction multiplied by the Average Price.
(b) Adjustment. If, between the date hereof and the Effective Time,
the outstanding shares of Parent Common Stock shall be changed into a different
number of shares, or a different class by reason of any reclassification,
recapitalization, split-up, exchange of shares or readjustment, or if a stock
dividend thereon shall be declared with a record date within such period, the
number of shares of Parent Common Stock to be issued and delivered in the Merger
for each outstanding Company Share as provided in this Agreement shall be
correspondingly adjusted.
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3.3 Closing of Company Transfer Books. On and after the Effective Time,
holders of certificates representing the Company Shares shall cease to have any
rights as shareholders of the Company and the stock transfer books of the
Company shall be closed with respect to the Company Shares and no further
transfer of such shares shall thereafter be made on such stock transfer books.
If, after the Effective Time, valid certificates previously representing such
shares are presented to the Surviving Corporation or Parent, they shall be
exchanged as provided in Section 3.4.
3.4 Exchange of Certificates. Promptly following the Effective Time, the
Company shall transmit to the former Company shareholders appropriate documents
to be used by them to surrender their certificates representing the Company
Shares in exchange for the Merger Consideration payable hereunder. Until so
surrendered and exchanged, each certificate for the Company Shares shall
represent solely the right to receive the Merger consideration payable hereunder
in accordance with Section 3.1 hereof (or to perfect the holder thereof's right
to receive payment for such shares pursuant to Chapter 13 of the California Law
and Section 3.5 hereof); provided, however, that customary and appropriate
certifications and indemnities allowing exchange against lost or destroyed
certificates shall be provided. Notwithstanding anything in this Agreement to
the contrary, no party hereto shall be obliged to distribute any consideration
payable hereunder prior to receipt, by facsimile or otherwise, of a copy of this
Agreement evidencing the date stamp of the California Secretary of State.
3.5 Dissenting Company Shares. Notwithstanding anything in this Agreement
to the contrary, the Company Shares that are held by shareholders who have not
voted such shares in favor of the Merger (the "dissenting Company Shares") shall
not be canceled and converted into the right to receive cash unless and until
such holder shall have failed to perfect, or shall have effectively withdrawn or
lost, such holder's right to purchase and payment under the California Law. If
such holder shall have so failed to perfect, or shall have effectively
withdrawn or lost such right, such holder's Company Shares shall thereupon be
deemed to have been canceled and converted as described in Section 3.1 at the
Effective Time, and each such share shall represent solely the right to receive
the amount specified in Section 3.1. The Company shall give Parent prompt
notice of any demand received by the Company for purchase of its shares, and,
prior to the Effective Time, Parent shall have the right to participate in all
negotiations and proceedings with respect to such demands. Prior to the
Effective Time, the Company shall not, except with the prior written consent of
Parent, make any payment with respect to, or settle or offer to settle, any such
demands. From and after the Effective Time, no shareholder who has exercised
dissenters' rights as provided in Chapter 13 of the California Law shall be
entitled to vote such holder's shares for any purpose or to receive payment of
dividends or other distributions with respect to such holder's shares (except
dividends and other distributions with respect to such holder's hares (except
dividends and other distributions payable to shareholders of record at a date
which is prior to the Effective Time).
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ARTICLE 4
Termination and Amendment
4.1 Termination. Notwithstanding the approval of this Merger Agreement by
the shareholders of Merger Sub and the Company, this Merger Agreement shall
terminate forthwith in the event that the Reorganization Agreement shall be
terminated as therein provided.
4.2 Amendment. This Merger Agreement may be amended by the parties hereto
at any time before or after approval hereof by the shareholders of either Merger
Sub or the Company, but, after any such approval, no amendment shall be made
with without the further approval of such shareholders which would (i) have a
material adverse effect on the shareholders of either Merger Sub or the Company,
(ii) change any of the principal terms of the Merger Agreement, or (iii) change
any term of the Articles of incorporation of the Surviving Corporation. This
Merger Agreement may not be amended except by an instrument in writing signed on
behalf of each of the parties hereto.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the
date first written above.
CAT ACQUISITION CORPORATION I CALOGIC
a Delaware Corporation a California corporation
By: /s/ Xxxxx X. Xxxxxxxx By: /s/ Xxxxxx Del Arroz
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Xxxxx X. XxXxxxxx Xxxxxx Del Arroz
Vice President President
By: /s/ Xxxxxxx X. Xxxxxxx By: /s/ Xxxxxxx Del Arroz
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Xxxxxxx X. Xxxxxxx Xxxxxxx Del Arroz
Assistant Secretary Secretary
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CAT ACQUISITION CORPORATION I
(Disappearing Corporation)
OFFICERS' CERTIFICATE
Xxxxx XxXxxxxx and Xxxxxxx Xxxxxxx hereby certify that:
1. They are Vice President and Assistant Secretary, respectively, of CAT
Acquisition Corporation I, a Delaware corporation (the "Corporation").
2. The Agreement of Merger to which this Certificate is attached (the
"Merger Agreement") has been duly approved by the Board of Directors of
the Corporation.
3. The Corporation has one class of stock outstanding, designated "Common
Stock," of which 100 shares were outstanding and entitled to vote on
the merger.
4. The principal terms of the Merger Agreement were approved by the
Corporation by a vote of a number of shares which equaled or exceeded
the vote required. The vote required was greater than 50% of the
outstanding shares of Common Stock.
5. No vote of the shareholders of SIPEX Corporation, the Corporation's
parent and sole shareholder, was required.
Each of the undersigned declares under penalty of perjury that the matters
set out in the foregoing Certificate are true of his own knowledge. Executed at
Billerica, MA on November __, 1999.
/s/ Xxxxx Xxxxxxxx
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Xxxxx XxXxxxxx, Vice President
/s/ Xxxxxxx Xxxxxxx
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Xxxxxxx Xxxxxxx, Assistant Secretary
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CALOGIC
(SURVIVING CORPORATION)
OFFICER'S CERTIFICATE
Xxxxxx Del Arroz and Xxxxxxx Del Arroz hereby certify that:
1. They are the President and Secretary, respectively, of Calogic, a
California corporation (the "Corporation").
2. The Agreement of Merger to which this Certificate is attached (the
"Merger Agreement") has been duly approved by the board of Directors of
the Corporation.
3. The Corporation has one class of stock outstanding, designated "Common
Stock," of which 345,000 shares were outstanding and entitled to vote
on the merger.
4. The principal terms of the Merger Agreement were approved by the
Corporation by a vote of a number of shares of each class which equaled
or exceeded the vote required. The vote required was greater than 50%
of the outstanding shares of Common Stock.
Each of the undersigned declares under penalty of perjury that the matters
set out in the foregoing Certificate are true of his own knowledge. Executed at
Fremont, California on November __, 1999.
/s/ Xxxxxx Del Arroz
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Xxxxxx Del Arroz, President
/s/ Xxxxxxx Del Arroz
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Xxxxxxx Del Arroz, Secretary
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