==============================================================================
AGREEMENT AND PLAN OF MERGER
between
INVITROGEN CORPORATION
and
DEXTER CORPORATION
Dated as of July 7, 2000
==============================================================================
AGREEMENT AND PLAN OF MERGER, dated as of July 7, 2000 (the
"Agreement"), between INVITROGEN CORPORATION, a Delaware corporation (the
"Bidder"), and DEXTER CORPORATION, a Connecticut corporation (the "Company").
WHEREAS, the Boards of Directors of the Bidder and the Company
deem it advisable and in the best interests of their respective shareholders
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 $1 per share, of the Company
(together with the rights associated with such shares issued pursuant to the
Rights Agreement, dated as of August 23, 1996, as amended, between the Company
and ChaseMellon Shareholder Services, L.L.C., as Rights Agent (the "Rights
Agreement"), the "Company Common Stock" or the "Shares") will be converted, at
the holder's election, 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 prior to the execution and delivery of
this Agreement, the Bidder entered into an Agreement and Plan of Merger, dated
as of the date hereof (the "Life Technologies Merger Agreement"), between the
Bidder and Life Technologies, Inc., a Delaware corporation and a Subsidiary of
the Company ("Life Technologies"), pursuant to which Life Technologies will be
merged with and into the Bidder (the "Life Technologies Merger") simultaneously
with the Merger upon the terms and subject to the conditions set forth in the
Life Technologies Merger Agreement, whereby each share of common stock, par
value $.01 per share, of Life Technologies (the "Life Technologies Common
Stock") 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 Life Technologies Merger Agreement;
WHEREAS, for U.S. federal income tax purposes, it is intended
that the Merger and the Life Technologies 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 and adopted this Agreement and approved the Merger in
accordance with the General Corporation Law of the State of Delaware (the
"DGCL"), in the case
of the Bidder, and in accordance with the Connecticut Business Corporation
Act (the "CBCA"), in the case of the Company, 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 and the
CBCA, 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 and the
CBCA.
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 (i) file with the Secretary of
State of the State of Delaware a certificate of merger (the "Delaware
Certificate of Merger") and (ii) file with the Secretary of State of the State
of Connecticut a certificate of merger (the "Connecticut Certificate of Merger"
and together with the Delaware Certificate of Merger, the "Certificates of
Merger"), in each case, executed in accordance with the relevant provisions of
the DGCL or the CBCA, as the case may be, and shall make all other filings or
recordings required under the DGCL and the CBCA in order to effect the Merger.
The Merger shall become effective upon the filing of the Certificates of Merger
2
or at such other time as is agreed by the parties hereto and specified in the
Certificates 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 Life Technologies 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 and Section 33-820 of the CBCA.
Section 1.5 CERTIFICATE OF INCORPORATION; BYLAWS.
(1) 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."
(2) 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.
(1) 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.
(2) 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.
3
ARTICLE II
CONVERSION OF SECURITIES; EXCHANGE OF CERTIFICATES
Section 1.7 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:
(1) Each issued and outstanding Share that is owned
by the Bidder 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.
(2) 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"):
(1) 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) $62.50 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 1.0417, then for all purposes the Exchange
Ratio shall be 1.0417, and if such quotient is less than 0.7813, then
for all purposes the Exchange Ratio shall be 0.7813 (the "Stock
Election Consideration").
(2) 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
4
in cash equal to $62.50 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 $62.50 minus the
cash determined pursuant to clause (i) and the denominator of which is
$62.50. 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
$17.50 minus (2) $17.50 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 $62.50 multiplied
by the number of Shares for which Cash Elections have been effectively
made and not revoked or lost.
(3) 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 $17.50 in cash, plus a fraction of a share of Bidder
Common Stock equal to the Exchange Ratio multiplied by .7200 (the
"Standard Election Consideration").
(3) 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.
(4) 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.
(5) 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 such Subsidiary unaffected by the Merger.
5
Section 1.8 SURRENDER AND PAYMENT.
(1) 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 to the Election Deadline
revoke his election and withdraw his Certificates deposited with the Exchange
Agent 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.
(2) LETTER OF TRANSMITTAL. Upon surrender to the
Exchange Agent of its Certificate, together with a properly completed letter of
transmittal, each
6
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.
(3) 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.
(4) 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.
(5) 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.
(6) 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
7
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.
(7) 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.
(8) NO FRACTIONAL SHARES. 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
8
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 1.9 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 1.10 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 33-861 of the CBCA (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 CBCA. 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
CBCA 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 CBCA; 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).
9
Section 1.11 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 Life Technologies or their
respective Subsidiaries is being made solely by the Company.
Section 1.12 ORGANIZATION, QUALIFICATION, ETC.
(1) 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
10
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
effects 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.
(2) 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, except for the Life Technologies Common Stock of which
the Company beneficially owns as of the date hereof 18,815,447 shares. Section
3.1(b) of the Company Disclosure Schedule sets forth a list of each Subsidiary
of the Company.
Section 1.13 CAPITAL STOCK.
11
(1) 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 and, in the case of the
Company Disclosure Schedule, Life Technologies;
(ii) the number of shares of each class or series of
capital stock of the Representing Party and, in the case of the Company
Disclosure Schedule, Life Technologies, 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 and, in
the case of the Company Disclosure Schedule, Life Technologies;
(iv) the number of shares of each class or series of
capital stock of the Representing Party and, in the case of the Company
Disclosure Schedule, Life Technologies, 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 and, in the case of the Company
Disclosure Schedule, Life Technologies, 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.
(2) 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, for the Company's obligations under the Rights
Agreement, 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
12
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 1.14 EQUITY INVESTMENTS.
(1) Section 3.3(a) of the Company's Disclosure
Schedule sets forth: (i) the name of each corporation, partnership, joint
venture or other entity (other than the Subsidiaries) in which the Company or
Life Technologies has, or pursuant to any agreement has the right to acquire by
any means, directly or indirectly, an equity interest or investment; (ii) in the
case of each of such Person described in the foregoing clause (i), either (x) a
listing of relevant agreement or agreements pursuant to which the Company has
acquired such right or such interest or investment or (y) (A) the jurisdiction
of incorporation and (B) the authorized and outstanding capitalization thereof
and the percentage of each class of voting capital stock owned, directly or
indirectly, by the Company.
(2) Except as set forth in Schedule 3.3(b), Life
Technologies' interest, if any, in any of the Persons listed on Schedule 3.3(a)
which are stated to be owned directly or indirectly by Life Technologies (except
for directors' qualifying shares, if any, which the Company will cause to be
transferred at the Effective Time to nominees of the Bidder), will, after giving
effect to the transactions contemplated hereby, be owned by the Bidder, directly
or indirectly, in each case, free and clear of all Liens.
Section 1.15 CORPORATE AUTHORITY RELATIVE TO THIS AGREEMENT;
NO VIOLATION.
(1) 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
13
and, except for obtaining the Company Shareholder Approval and the filing of
the Connecticut 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
approved the entry into this Agreement and the consummation of the
transactions contemplated hereby by the Company and has taken all appropriate
action such that Sections 33-841 and 33-844 of the CBCA will not be
applicable to the Company or to the Bidder by virtue of either the Company's
or the Bidder's entering into this Agreement or consummating the transactions
contemplated hereby. The Board of Directors of Life Technologies has taken
all appropriate action so that Section 203 of the DGCL, with respect to Life
Technologies, will not be applicable 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 the
Bidder, constitutes a valid and binding agreement of the Company, enforceable
against the Company in accordance with its terms.
(2) 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 Bidder Shareholder Approval
and the filing of the Connecticut Certificate of Merger and the Delaware
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 each of the Bidder,
enforceable against the Bidder in accordance with its terms.
(3) Except for the filings, permits, authorizations,
consents and approvals set forth in Section 3.4(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 New York Stock Exchange
(the "NYSE") (in the case of the Company only), state securities or blue sky
laws and the rules and regulations of the Nasdaq National Market (in the case of
the Bidder), 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
14
Subsidiaries, in each case) has material assets or conducts material
operations, and the filing of the Certificates of Merger under the DGCL and
the CBCA, 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 1.16 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:
(1) 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 Life Technologies and
the year ended December 31, 1999 in the case of Bidder.
(2) the Quarterly Report on Form 10-Q filed with the
SEC for the quarter ended March 31, 2000, for each of the Representing Parties
and, in the case of the Company, for Life Technologies;
(3) each definitive proxy statement filed with the
SEC since December 31, 1998, for each of the Representing Parties and, in the
case of the Company, for Life Technologies;
15
(4) 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, in the case of the Company, for Life Technologies; and
(5) all Current Reports on Form 8-K filed with the
SEC since January 1, 2000, for each of the Representing Parties and, in the case
of the Company, for Life Technologies.
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. Other
than Life Technologies which is registered under Section 12 of the Exchange Act,
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 (and in the case of the Company, Life Technologies')
SEC Reports (including any related notes and schedules) fairly present in all
material respects the financial position of the Bidder, the Company or Life
Technologies 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 year-end 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, each of the Company and
Life Technologies 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 1.17 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
16
(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 1.18 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 3.7 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 1.19 ENVIRONMENTAL MATTERS.
(1) 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.
(2) 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. As of
the date of this Agreement, the Company has available cash resources that are
adequate to fund the GAAP reserves that the Company has established in respect
of Environmental Claims, and such cash resources will be adequate for such
purpose at the Effective Time; PROVIDED that there shall have been no change
outside the
17
ordinary course of business in the capitalization or asset base of the
Company's captive insurance companies.
(3) 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.
(4) As used in this Agreement:
(1) "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.
(2) "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.
(3) "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 1.20 EMPLOYEE BENEFIT PLANS; ERISA.
18
(1) Section 3.9(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 (and, in the case of the Company, Life Technologies) or by
any trade or business, whether or not incorporated (an "ERISA Affiliate"), that
together with the Representing Party (or Life Technologies) 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").
(2) 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.
(3) 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.
(4) 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.
(5) 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
19
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.
(6) Section 3.9(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.
(7) Except as set forth in Section 3.9(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
3.9(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).
(8) 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.
(9) 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,
20
individually or in the aggregate, be reasonably likely to have a Material
Adverse Effect on the Representing Party.
(10) Except as set forth in Section 3.9(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 1.21 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 1.22 PROXY STATEMENT/PROSPECTUS; REGISTRATION
STATEMENT.
(1) The Proxy Statement (or any amendment or
supplement thereto) will not, on the date the Proxy Statement is mailed to
shareholders of the Company and to shareholders of the Bidder and at the time of
the Shareholders 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 Shareholders 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.
(2) 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
21
Securities Act, and on the date the Proxy Statement is first mailed to
shareholders of the Company and shareholders of the Bidder and at the time of
the Shareholders 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 shareholders of the Bidder and at the time of the
Shareholders 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, 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 1.23 DISCLOSURE The representations and warranties by
the Company in this Agreement and the statements contained in the schedules,
certificates and other writings furnished and to be furnished by the Company to
the Bidder 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 3.12 "material" means material to the Company and its
Subsidiaries, taken as a whole.
Section 1.24 TAX MATTERS.
(1) 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
22
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.
(2) 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
Life Technologies Merger from qualifying as a reorganization within the meaning
of Section 368(a) of the Code.
(3) Section 3.13(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.
23
(4) Section 3.13(d) of the Company Disclosure
Schedule lists, with respect to the Company, each unemployment, severance and
termination agreement, other compensation arrangements, or benefit plans
currently in effect which provide for the payment of any amount (whether in cash
or property or the vesting of property) as a result of any of the transactions
contemplated by this Agreement that individually or collectively could give rise
to a payment which is nondeductible by reason of Section 280G of the Code.
(5) 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.
(6) 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 Life Technologies Merger.
(7) Neither the Company nor any Affiliated Group is a
party to any contract, agreement or other arrangement which could result in the
payment of amounts that would be nondeductible by reason of Section 162(m) of
the Code.
(8) 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 1.25 OPINION OF FINANCIAL ADVISORS.
24
(1) The Board of Directors of the Company has
received the opinion of Xxxxxx Brothers Inc., dated the date of this Agreement,
substantially to the effect that, as of such date, the Merger Consideration to
be received by the Company's shareholders in the Merger is fair to such holders
from a financial point of view.
(2) The Board of Directors of the Bidder has received
the opinion of Xxxxxxxxx, Lufkin & 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
Life Technologies Merger, taken together, is fair to the Bidder from a financial
point of view.
Section 1.26 REQUIRED VOTE OF SHAREHOLDERS.
(1) The affirmative vote of the holders of a
two-thirds of the outstanding shares of Company Common Stock (the "Company
Shareholder Approval") is the only vote of the holders of any class or series of
the Company's capital stock which is necessary to approve and adopt this
Agreement and the transactions contemplated hereby.
(2) As of the date hereof, the Bidder does not own
any securities of the Company or Life Technologies. The affirmative vote of the
holders of a majority of the outstanding shares of Bidder Common Stock in favor
of the approval and adoption of this Agreement and the affirmative vote of the
holders of a majority of the outstanding shares of Bidder Common Stock 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 enable the
Bidder to issue the Merger Consideration are the only votes of the holders of
any class or series of the Bidder's capital stock which are necessary to approve
and adopt this Agreement and the transactions contemplated hereby.
Section 1.27 RIGHTS AGREEMENT. The Company has duly amended
the Rights Agreement so that the Rights Agreement will not be applicable to the
Bidder, this Agreement, the Merger or any other transaction contemplated by this
Agreement, in each case to the extent provided for and made consistent with the
terms of this Agreement.
Section 1.28 LOCTITE ACQUISITION AGREEMENT; XXXXXXXX
ACQUISITION AGREEMENT. The Company has previously delivered to the Bidder
complete and correct copies of (i) the Asset Purchase Agreement, dated as of
June 20, 2000, between the Company and Loctite Corporation (the "Loctite
Acquisition Agreement") and (ii) the
25
Asset Purchase Agreement, dated as of June 20, 2000, between the Company and
Xxxxxxxx Paper Group Oy (the "Xxxxxxxx Acquisition Agreement").
Section 3.18 LEGAL PROCEEDINGS, ETC. As of the date hereof,
except as set forth in Section 3.18 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 3.19 CONTRACTS.
(a) Section 3.19 (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 its 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 Section 3.13(a) of
the Company Disclosure Schedule 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 3.19(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
26
be in full force and effect or where such default or event of default would
not have a Material Adverse Effect on the Company.
Section 3.20 OWNED REAL PROPERTY. Section 3.20 of the Company
Disclosure Schedule sets forth, as of the date of this Agreement, a complete and
correct list of real property which is owned by the Company or any of its
Subsidiaries and which will continue to be owned by the Company, directly or
indirectly, following consummation of the transactions contemplated by the
Loctite Acquisition Agreement and the Xxxxxxxx Acquisition Agreement.
ARTICLE IV
COVENANTS AND AGREEMENTS
Section 1.29 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 (w) that the Company may take any and all
actions (subject to the provisions of Section 4.1(xiv)) required to consummate
the transactions contemplated by the Loctite Acquisition Agreement and the
Xxxxxxxx Acquisition Agreement, (x) that the Company may sell or otherwise
dispose of its coatings business, (y) with the prior written consent of the
Bidder (which consent will not be unreasonably withheld or delayed) or (z) as
may be expressly permitted pursuant to this Agreement, the Company:
(1) 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;
(2) 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;
(3) 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 (A) regular quarterly cash dividends by the Company
consistent in timing and amount with past practice
27
or (B) any dividends or distribution by a wholly owned Subsidiary of
the Company to the Company or any of its wholly owned Subsidiaries);
(4) 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 Life
Technologies or increase the compensation payable or to become payable
or the benefits provided to its directors, officers 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;
(5) 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 (other than the Merger and the Life
Technologies Merger), 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.
(6) 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);
(7) 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 Company Common Stock pursuant to options and grants
outstanding as of the date hereof under the Company's 1999 Long-Term
Incentive Plan, or 1994 Long-Term Incentive Plan and 1988 Long-Term
Incentive Plan (each such plan, a "Company Equity Plan"), (2) the
issuance of Life Technologies Common Stock pursuant to options and
grants outstanding as of the date hereof under Life Technologies' 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 "Life Technologies Equity Plan") or (3) 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
28
awards, in either case under a Company Equity Plan or a Life
Technologies Equity Plan;
(8) 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;
(9) 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);
(10) 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;
(11) 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;
29
(12) 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;
(13) 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;
(14) shall not, without the prior consent of
the Bidder (which consent shall not be unreasonably withheld or
delayed), amend or modify (x) the Loctite Acquisition Agreement or (y)
the Xxxxxxxx Acquisition Agreement in any material respect;
(15) 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
(16) 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 1.30 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 written consent of the Company (which consent will
30
not be unreasonably withheld or delayed), the Bidder shall not, nor shall it
permit any Subsidiary to:
(1) amend its certificate of incorporation or bylaws
(or other similar organizational documents);
(2) amend in any respect the terms of the capital
stock of the Bidder;
(3) 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;
(4) change any of the financial accounting methods or
practices used by it unless required by GAAP;
(5) 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;
(6) incur indebtedness outside of the ordinary course
or for acquisitions (other than in order to consummate the transactions
contemplated by this Agreement or the Life Technologies Merger Agreement);
(7) 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;
(8) 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
(9) 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.
31
Section 1.31 ACCESS; CONFIDENTIALITY.
(1) 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.
(2) The Bidder will hold all information provided
under this Section 4.3 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 the Company 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 in accordance with the letter
dated July 1, 2000 between the Company and the Bidder.
Section 1.32 SHAREHOLDERS MEETINGS; PROXY STATEMENT;
REGISTRATION STATEMENT.
(1) As promptly as practicable following the date of
this Agreement, (i) the Company shall, acting through its Board of Directors and
subject to Section 4.8, duly call, give notice of, solicit proxies for, convene
and hold an annual or special meeting of its shareholders (the "Company
Shareholders Meeting") in accordance with applicable law, its certificate of
incorporation and its bylaws, and (ii)
32
the Bidder shall, acting through its Board of Directors and subject to the
Bidder'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 shareholders (the "Bidder Shareholders Meeting" and, together
with the Company Shareholders Meeting, the "Shareholders 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 Section 4.8) and the
Bidder (subject to the Bidder's Board of Directors' fiduciary duties under
applicable law) shall include in the Proxy Statement the recommendation of
its respective Board of Directors that its respective shareholders 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"). The Bidder and the Company shall
cause their respective Shareholders Meetings to be held on the same date,
which date shall be the same as the date of the Company Stockholders Meeting
(as defined in the Life Technologies Merger Agreement).
(2) 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 shareholders 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.
33
(3) 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 shareholders 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 1.33 COMMERCIALLY REASONABLE EFFORTS; FURTHER
ASSURANCES.
(1) 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
34
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.
(2) 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 1.34 EMPLOYEE MATTERS.
(1) The Company shall take all such actions as shall
be necessary to cause each outstanding stock option to purchase shares of
Company Common Stock (including any related alternative rights) granted under
any stock option or compensation plan or arrangement of the Company or its
Subsidiaries (collectively, the "Company Option Plans") (including those granted
to current or former employees and directors of the Company or any of its
Subsidiaries) (the "Employee Stock Options") to become fully vested and
exercisable immediately prior to the Effective Time, as permitted pursuant to
the terms and conditions of the applicable Company Option Plan. The Company
shall take all such actions as shall be necessary to cause all Employee Stock
Options that are outstanding immediately prior to the Effective Time (whether or
not then presently exercisable or vested) to be cancelled. In exchange for the
cancellation of each such Employee Stock Option (whether or not presently
exercisable or vested), the holder thereof shall be entitled to receive from the
Company (A) an amount in cash equal to the product of (1) the Option Value
Spread multiplied by (2) 0.2800 and (B) such number of shares of Bidder Common
Stock (rounded to the nearest full share) equal to product of (1) the quotient
obtained by dividing (x) the Option Value Spread by (y) Average Bidder Trading
Price multiplied by (2) 0.7200. For purposes of this Agreement the "Option Value
Spread" of an Employee Stock Option shall mean the product of (A) the excess, if
any, of (x) the Cancellation Price over (y) the per share exercise price of such
Employee Stock Option multiplied by (B) the number of Shares subject to such
Employee Stock Option and not previously purchased upon exercise of such option.
Any such payment shall be further reduced by any income Tax or employment Tax
witholding required under the Code. The "Cancellation Price" shall
35
be the dollar amount equal to the sum of (i) $17.50 and (ii) the product of
(A) 0.7200 and (B) the product of (x) the Exchange Ratio multiplied by (y)
the Average Bidder Trading Price. 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.
(2) Following the Effective Time, and to the extent
not provided for in an acquisition agreement that the Company is a party to as
of the Effective Time, or any agreement entered into after the Effective Time by
the Company and/or the Bidder with any purchaser of the Company's coatings
business or any other assets of the Company, the Bidder shall, or shall cause a
Bidder Subsidiary to, (i) provide to those former employees of the Company whose
employment terminated prior to the Effective Time (and eligible dependents of
such former employees) (collectively, "Retirees") post-retirement welfare
benefits substantially equivalent (both in terms of the benefits provided and
the cost of such benefits to a Retiree) to those provided to such individuals
under the post-retirement welfare benefit program of the Company as in effect
immediately prior to the Effective Time, (ii) continue an arrangement pursuant
to which such post-retirement welfare benefits shall be provided upon any
termination of employment with the Bidder or a Bidder Subsidiary, to those
employees (and their eligible dependents) who elect to receive such benefits
(substantially in accordance with the procedures utilized by the Company or
other such reasonable procedures the Bidder may establish) and who immediately
prior to the Effective Time would be eligible for such benefits upon a
termination of employment with the Company (collectively, "Vested Eligible
Employees") and (iii) continue an arrangement pursuant to which such
post-retirement welfare benefits shall be provided to those individuals (and
their eligible dependents) who are not Retirees or Vested Eligible Employees,
and who, as of the Effective Time, had attained the age of 50 and had been
credited with at least five years of service with the Company (collectively,
"Potential Grow-In Employees"), but only
36
if, at the time of termination of any termination with the Bidder or a Bidder
Subsidiary, (A) such Potential Grow-In Employee would have been eligible to
receive such post-retirement welfare benefits under the Company's
post-retirement welfare benefit program as in effect immediately prior to the
Effective Time (crediting service with the Bidder or a Bidder Subsidiary as
service with the Company) and (B) such Potential Grow-In Employee elects to
receive such benefits (substantially in accordance with procedures currently
utilized by the Company or other such reasonable procedures the Bidder may
establish). The Bidder shall not, and shall not permit any Bidder Subsidiary
to, terminate or modify in any adverse manner the post-retirement welfare
benefit it has agreed to provide to Retirees, Vested Eligible Employees and
Potential Grow-In Employees pursuant to this Section 4.6(b).
(3) At the direction of the Bidder, and to the extent
permissible under any previous acquisition agreement entered into by the
Company, the Company shall terminate the Dexter Corporation 401(k) Plan and or
the Employees' Savings and Profit Sharing Retirement Income Plan of Dexter
Corporation and Dexter Corporation, Nonwoven (collectively, the "Savings
Plans"). The Bidder shall determine whether any such previous acquisition
agreement would affect the proposed plan terminations and shall notify the
Company at least three (3) days prior to the Closing of its decision to, and may
at that time, terminate a Savings Plan. Unless the Bidder has not so directed
the Company, the Bidder shall receive from the Company evidence (in a form
satisfactory to the Bidder) that the Savings Plan shall be terminated effective
as of the day immediately preceding the Closing. The Bidder shall, consistent
with the terms of the Bidder's 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 its 401(k) plan to accept direct rollovers and
rollover contributions (each, to the extent requested by a Savings Plan
participant) in respect of the Savings Plan account balances (including any
outstanding loans) held by such individuals.
Section 1.35 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 1.36 NO SOLICITATION BY THE COMPANY.
37
(1) Neither the Company nor any of its Subsidiaries
nor any of the officers and directors of any of them shall, and the Company
shall direct and use its reasonable best efforts to cause its and its
Subsidiaries' employees, agents and representatives, including any investment
banker, attorney or accountant retained by it or any of its Subsidiaries (the
Company, its Subsidiaries and their respective officers, directors, employees,
agents and representatives being the "Company Representatives") not to, directly
or indirectly through another Person, (i) initiate, solicit, encourage or
otherwise knowingly facilitate any inquiries (by way of furnishing information
or otherwise) or the making of any Acquisition Proposal or (ii) participate in
any discussions or engage in any negotiations concerning an Acquisition
Proposal; PROVIDED, HOWEVER, that the Company's Board of Directors may, or may
authorize the Company Representatives to, in response to an Acquisition Proposal
that the Board of Directors of the Company concludes in good faith is, or is
reasonably likely to become, a Superior Proposal, (x) furnish information with
respect to the Company and its Subsidiaries to any Person making such Superior
Proposal and (y) participate in discussions or negotiations regarding such
Superior Proposal, PROVIDED that, prior to taking any such action, the Company
provides reasonable advance notice to the Bidder that it is taking such action.
For purposes of this Agreement "Acquisition Proposal" means any direct or
indirect inquiry, proposal or offer relating to the acquisition or purchase of a
business or shares of any class of equity securities of the Company or any of
its Subsidiaries, any tender offer or exchange offer that, if consummated, would
result in any Person beneficially owning any class of equity securities of the
Company or any of its Subsidiaries, or any merger, reorganization, share
exchange, consolidation, business combination, recapitalization, liquidation,
dissolution or similar transaction (a "Business Combination Transaction")
involving the Company or any of its Subsidiaries, or any purchase or sale of a
substantial portion of the consolidated assets (including without limitation
stock of Subsidiaries owned directly or indirectly by the Company) of the
Company or any of its Subsidiaries (an "Asset Transaction"); PROVIDED that the
term Acquisition Proposal shall not include the Loctite Acquisition Agreement,
the Xxxxxxxx Acquisition Agreement or communications relating to the sale of any
business covered by any such agreement or the Company's coatings business. For
purposes of this Agreement "Superior Proposal" means an unsolicited bona fide
written Acquisition Proposal that the Board of Directors of the Company
concludes in good faith (after consultation with the Company's legal and
financial advisors) would, if consummated, provide greater aggregate value to
the Company's shareholders from a financial point of view than the transactions
contemplated by this Agreement; PROVIDED that for purposes of this definition
the term "Acquisition Proposal" shall have the meaning set forth above, except
that (x) references to "shares of any class of equity securities of the Company"
shall be deemed to be references to "100% of the outstanding Shares" and
38
(y) an "Acquisition Proposal" shall be deemed to refer only to a Business
Combination Transaction involving the Company or, with respect to an Asset
Transaction, such transaction must involve the assets of the Company and its
Subsidiaries, taken as a whole, and not any Subsidiary of the Company alone.
(2) Except as expressly permitted by this Section
4.8, neither the Company's Board of Directors nor any committee thereof shall
(i) withdraw, modify or change, or propose publicly to withdraw, modify or
change, in a manner adverse to the Bidder, the recommendation by such Board of
Directors or such committee of the Merger or this Agreement unless the Board of
Directors of the Company shall have determined in good faith, after consultation
with its legal and financial advisors, that, the Merger or this Agreement is no
longer in the best interests of the Company's shareholders and that such
withdrawal, modification or change is, therefore, required in order to satisfy
its fiduciary duties to the Company's shareholders under applicable law, (ii)
approve or recommend, or propose publicly to approve or recommend, any
Acquisition Proposal, or (iii) cause the Company to enter into any letter of
intent, agreement in principle, acquisition agreement or other similar agreement
(each, an "Acquisition Agreement") related to any Acquisition Proposal.
Notwithstanding the foregoing, the Company may, in response to a Superior
Proposal, (x) take any of the actions described in clauses (i) or (ii) above or
(y) subject to this paragraph (b), terminate this Agreement (and concurrently
with or after such termination, if it so chooses, cause the Company to enter
into any Acquisition Agreement with respect to any Superior Proposal) but only
after the fifth business day following the Bidder's receipt of written notice
advising the Bidder that the Company's Board of Directors is prepared to accept
a Superior Proposal, and attaching the most current version of any such Superior
Proposal or any draft of an Acquisition Agreement.
(3) Nothing contained in this Section 4.8 shall
prohibit the Company or its Board of Directors from at any time taking and
disclosing to its shareholders a position contemplated by Rule 14e-2 promulgated
under the Exchange Act or from making any disclosure to the Company's
shareholders required by applicable law.
Section 1.37 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 prior consultation
with the other party, except as may be required by applicable law or the rules
of any applicable stock exchange on which such party's securities are listed.
39
Section 1.38 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 and any
Indemnified Party are parties to an existing indemnification agreement, the
indemnification provided for pursuant to this Section 4.10(a) shall be provided
by the Bidder in accordance with the procedures prescribed in such
indemnification agreement.
(1) 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
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 1.39 ADDITIONAL REPORTS AND INFORMATION.
(1) The Company shall furnish to the Bidder copies of
all reports of the type referred to in Section 3.4 which it or Life Technologies
files with the SEC on or after the date hereof, and the Company 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
40
and schedules) will fairly present the financial position of the Company and
its consolidated Subsidiaries or Life Technologies and its consolidated
Subsidiaries, as the case may be, 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 year-end adjustments), in each
case in accordance with GAAP consistently applied during the periods involved
(except as otherwise disclosed in the notes thereto). The Company shall
furnish to the Bidder on a monthly basis a consolidating balance sheet for
the Company and its consolidated subsidiaries and the monthly internal
financial report for Life Technologies and its Subsidiaries which are
currently being prepared in the ordinary course of business (with deletions
reasonably necessary to comply with applicable antitrust laws).
(2) 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 year-end 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).
Section 1.40 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 Shareholder
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 1.41 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 the Nasdaq National Market, subject to official notice
of issuance, prior to the Closing
41
Date.
Section 1.42 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 1.43 DISCLOSURE SCHEDULE SUPPLEMENTS. From 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 1.44 VOTING OF LIFE TECHNOLOGIES COMMON STOCK. Unless
this Agreement shall have been terminated in accordance with its terms, the
Company hereby agrees to vote all of the shares of Life Technologies Common
Stock beneficially owned by it in favor of the approval and adoption of the Life
Technologies Merger Agreement at any meeting of the shareholders of Life
Technologies held for that
42
purpose.
ARTICLE V
CONDITIONS TO THE MERGER
Section 1.45 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:
(1) The Company Shareholder Approval shall have been
obtained.
(2) The Bidder Shareholder Approval shall have been
obtained.
(3) All of the conditions to the Life Technologies
Merger shall have been satisfied or waived in accordance with the terms of the
Life Technologies Merger Agreement, and the Life Technologies Merger shall be
effective simultaneously with the Effective Time. The condition set forth in
this paragraph (c) shall not be waivable by either party.
(4) 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.
(5) The applicable waiting period under the HSR Act
shall have expired or been terminated.
(6) 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.
(7) 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.
43
Section 1.46 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:
(1) 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 Shareholder Approval and the Bidder Shareholder Approval referred
to in Sections 5.1(a) and 5.1(b), unless further Company shareholder approval is
obtained with appropriate disclosure.
(2) 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).
(3) 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.
(4) The transactions contemplated by each of the
Loctite Acquisition Agreement and the Xxxxxxxx Acquisition Agreement shall have
been consummated substantially in accordance with the terms thereof.
44
(5) The Company shall have furnished a certificate of
an executive officer to evidence compliance with the conditions set forth in
Section 5.2(b) and (c) of this Agreement.
Section 1.47 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:
(1) 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 Shareholder Approval and the Bidder Shareholder Approval referred
to in Sections 5.1(a) and 5.1(b), unless further Company shareholder approval is
obtained with appropriate disclosure.
(2) 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).
(3) 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.
(4) The Bidder shall have furnished a certificate of
an executive officer of the Bidder to evidence compliance with the conditions
set forth in
45
Section 5.3(b) and (c) of this Agreement.
ARTICLE VI
TERMINATION
Section 1.48 TERMINATION. This Agreement may be terminated at
any time prior to the Effective Time, whether before or after obtaining the
Company Shareholder Approval and the Bidder Shareholder Approval:
(1) by the mutual written consent of the Company and
the Bidder;
(2) 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;
(3) 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;
(4) by the Company in accordance with Section 4.8(b);
PROVIDED that the Company shall have complied with all provisions of Section
4.8(b); and PROVIDED FURTHER that any such termination shall not be effective
unless the Termination Fee pursuant to Section 6.3 shall have been paid
contemporaneously with
46
such termination;
(5) by the Bidder or the Company, if after the
Company convenes and holds the Company Shareholders Meeting and certifies the
vote with respect to the Merger the Company's shareholders have failed to
deliver the affirmative votes necessary to confer the Company Shareholder
Approval;
(6) by the Bidder or the Company, if after the Bidder
convenes and holds the Bidder Shareholders Meeting and certifies the vote with
respect to the Merger and the amendment of the Bidder's certificate of
incorporation, the Bidder's shareholders shall have failed to deliver the
affirmative votes necessary to confer the Bidder Shareholder Approval;
(7) 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;
(8) 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 been waived by the Company;
(9) by the Bidder or the Company, if the Life
Technologies Merger Agreement shall have been terminated in accordance with its
terms; or
(10) 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 Loctite
Acquisition Agreement or the Xxxxxxxx Acquisition Agreement, in accordance with
its terms.
Section 1.49 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
Sections 4.3 (b), 6.3 and 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.
47
Section 1.50 TERMINATION FEE. In the event that (i) this
Agreement shall have been terminated pursuant to Section 6.1(d) or (ii) an
Acquisition Proposal for the Company shall have been publicly announced and,
following such announcement, this Agreement is terminated pursuant to Section
6.1(e) and, within 12 months of such termination, a Business Combination
Transaction involving a change of control of the Company or an Asset Transaction
involving a sale of all or substantially all of the assets of the Company and
its consolidated subsidiaries is consummated, then, the Company shall pay to the
Bidder a fee equal to $65 million (the "Termination Fee"), payable by wire
transfer of same day funds or by cashier's check, in accordance with the
provisions of the next sentence. In the event the Termination Fee is payable (x)
pursuant to clause (i) of the preceding sentence, payment of the termination fee
shall be a condition to the effectiveness of termination pursuant to Section
6.1(d) and (y) pursuant to clause (ii) of the preceding sentence, the
Termination Fee shall be payable promptly, but in no event later than two days
after the date of consummation of the Business Combination Transaction or Asset
Transaction. The Company acknowledges that the agreements contained in this
Section 6.3 are an integral part of the transactions contemplated by this
Agreement, and that, without these agreements, the Bidder would not enter into
this Agreement.
ARTICLE VII
MISCELLANEOUS
Section 1.51 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 1.52 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 1.53 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.
48
Section 1.54 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, except to the extent the
provisions of this Agreement are expressly governed by or derive their authority
from the CBCA.
Section 1.55 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:
Dexter Corporation
Xxx Xxx Xxxxxx
Xxxxxxx Xxxxx, Xxxxxxxxxxx 00000-0000
Attention: General Counsel
Telecopy: (000) 000-0000
copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: J. Xxxxxxx Xxxxxx, Esq.
49
Xxxxxxxx X. Xxxxx, Esq.
Telecopy: (000) 000-0000
Section 1.56 ASSIGNMENT; BINDING EFFECT. Neither this
Agreement nor any of the rights, interests or obligations hereunder shall be
assigned by either 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 1.57 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 1.58 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 1.59 ENTIRE AGREEMENT; THIRD-PARTY BENEFICIARIES. This
Agreement together with the Life Technologies Merger Agreement, the
Confidentiality Agreement, dated February 27, 2000, the Confidentiality
Agreement, dated July 1, 2000, 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 and Section 4.10, is not
intended to and shall not confer upon any Person other than the parties hereto
any rights or remedies hereunder.
Section 1.60 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.
50
Section 1.61 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 1.62 FINDERS OR BROKERS. Except for Xxxxxx Brothers
Inc. 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 1.63 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 Shareholder Approval and the
Bidder Shareholder Approval, by written agreement of the parties hereto, by
action taken by their respective Boards of Directors, with respect to any of the
terms contained in this Agreement; PROVIDED, HOWEVER that following the Company
Shareholder Approval and the Bidder Shareholder 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 shareholder approval
without further approval by the shareholders of the Company.
Section 1.64 EXTENSION OF TIME, WAIVER, ETC. At any time prior
to the
51
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. 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.
52
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
DEXTER CORPORATION
By: /s/ K. Xxxxxxx Xxxxxx
----------------------------
Name: K. Xxxxxxx Xxxxxx
Title: Chairman & CEO
TABLE OF CONTENTS
Page
----
ARTICLE ITHE 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......................................3
ARTICLE IICONVERSION OF SECURITIES; EXCHANGE OF CERTIFICATES
Section 2.1 Conversion of Securities..........................................................4
Section 2.2 Surrender and Payment.............................................................6
Section 2.3 Adjustments to Prevent Dilution...................................................9
Section 2.4 Appraisal Rights..................................................................9
ARTICLE IIIREPRESENTATIONS AND WARRANTIES
Section 3.1 Organization, Qualification, Etc.................................................10
Section 3.2 Capital Stock....................................................................12
Section 3.3 Equity Investments...............................................................13
Section 3.4 Corporate Authority Relative to this Agreement; No Violation.....................14
Section 3.5 Reports and Financial Statements.................................................15
Section 3.6 No Undisclosed Liabilities.......................................................17
Section 3.7 No Violation of Law..............................................................17
Section 3.8 Environmental Matters............................................................17
Section 3.9 Employee Benefit Plans; ERISA....................................................19
Section 3.10 Absence of Certain Changes or Events.............................................21
Section 3.11 Proxy Statement/Prospectus; Registration Statement...............................21
Section 3.12 Disclosure.......................................................................22
Section 3.13 Tax Matters......................................................................23
Section 3.14 Opinion of Financial Advisors....................................................25
Section 3.15 Required Vote of Shareholders....................................................25
Section 3.16 Rights Agreement.................................................................26
Section 3.17 Loctite Acquisition Agreement;
Xxxxxxxx Acquisition Agreement...................................................26
Section 3.19 Contracts........................................................................26
i
ARTICLE IV
COVENANTS AND AGREEMENTS
Section 4.1 Conduct of Business by the Company...............................................27
Section 4.2 Bidder Interim Operations........................................................31
Section 4.3 Access; Confidentiality..........................................................32
Section 4.4 Shareholders Meetings;
Proxy Statement; Registration Statement..........................................33
Section 4.5 Commercially Reasonable Efforts; Further Assurances..............................35
Section 4.6 Employee Matters.................................................................36
Section 4.7 Takeover Statute.................................................................38
Section 4.8 No Solicitation by the Company...................................................38
Section 4.9 Public Announcements.............................................................40
Section 4.10 Indemnification; Insurance.......................................................40
Section 4.11 Additional Reports and Information...............................................41
Section 4.12 Affiliates.......................................................................42
Section 4.13 Nasdaq National Market Quotation.................................................42
Section 4.14 Tax-Free Reorganization..........................................................42
ARTICLE VCONDITIONS TO THE MERGER
Section 5.1 Conditions to Each Party's Obligation to Effect the Merger.......................44
Section 5.2 Conditions to Obligation of the Bidder to Effect the Merger......................45
Section 5.3 Conditions to Obligation of the Company to Effect the Merger.....................46
ARTICLE VITERMINATION
Section 6.1 Termination......................................................................47
Section 6.2 Effect of Termination............................................................49
Section 6.3 Termination Fee..................................................................49
ARTICLE VIIMISCELLANEOUS
Section 7.1 No Survival of Representations and Warranties....................................49
Section 7.2 Expenses.........................................................................50
Section 7.3 Counterparts; Effectiveness......................................................50
Section 7.4 Governing Law....................................................................50
Section 7.5 Notices..........................................................................50
Section 7.6 Assignment; Binding Effect.......................................................51
Section 7.7 Severability.....................................................................51
Section 7.8 Enforcement of Agreement.........................................................51
ii
Section 7.9 Entire Agreement; Third-Party Beneficiaries......................................52
Section 7.10 Headings.........................................................................52
Section 7.11 Definitions......................................................................52
Section 7.12 Finders or Brokers...............................................................52
Section 7.13 Amendment or Supplement..........................................................53
Section 7.14 Extension of Time, Waiver, Etc...................................................53
iii
INDEX OF DEFINED TERMS
DEFINED TERM SECTION
------------ -------
Acquisition Agreement..........................................................................4.8(b)
Acquisition Proposal...........................................................................4.8(a)
Affiliated Group..............................................................................3.13(a)
affiliates.......................................................................................7.11
Agreement................................................................................Introduction
Xxxxxxxx Acquisition Agreement...................................................................3.17
Asset Transaction..............................................................................4.8(a)
Average Bidder Trading Price...................................................................4.6(a)
Bidder...................................................................................Introduction
Bidder Common Stock..........................................................................Recitals
Bidder Disclosure Schedule...................................................Article III Introduction
Bidder Shareholders Meeting....................................................................4.4(a)
Business Combination Transaction...............................................................4.8(a)
Cancellation Price................................................................................4.6
Cash Election...............................................................................2.1(b)(B)
Cash Election Proration Factor..............................................................2.1(b)(B)
CBCA.........................................................................................Recitals
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 Equity Plan..........................................................................4.1(vii)
Company Option Plans..............................................................................4.6
Company Policies..............................................................................4.10(b)
Company Representatives........................................................................4.8(a)
Company Shareholder Approval..................................................................3.15(a)
Company Shareholder Meeting....................................................................4.4(a)
Connecticut Certificate of Merger.................................................................1.3
Delaware Certificate of Merger....................................................................1.3
DGCL.........................................................................................Recitals
iv
Dissenting Shareholders...........................................................................2.4
Dissenting Shares.................................................................................2.4
Effective Time....................................................................................1.3
Election Deadline..............................................................................2.2(a)
Election Form..................................................................................2.2(a)
Employee Stock Options............................................................................4.6
Environmental Claim.........................................................................3.8(d)(i)
Environmental Law..........................................................................3.8(d)(ii)
Environmental Permits..........................................................................3.8(a)
ERISA..........................................................................................3.9(a)
ERISA Affiliate................................................................................3.9(a)
Exchange Act...................................................................................3.4(c)
Exchange Agent.................................................................................2.2(a)
Exchange Fund..................................................................................2.2(a)
Exchange Ratio..............................................................................2.1(b)(A)
Expiration Date................................................................................6.1(b)
GAAP..............................................................................................3.5
Governmental Entity............................................................................3.4(c)
Hazardous Materials.......................................................................3.8(d)(iii)
HSR Act........................................................................................3.4(c)
including........................................................................................7.11
Indemnified Parties...........................................................................4.10(a)
International Plans............................................................................3.9(i)
Lien...........................................................................................3.1(b)
Life Technologies............................................................................Recitals
Life Technologies Common Stock...............................................................Recitals
Life Technologies Equity Plan................................................................4.1(vii)
Life Technologies Merger.....................................................................Recitals
Life Technologies Merger Agreement...........................................................Recitals
Loctite Acquisition Agreement....................................................................3.17
Material Adverse Effect........................................................................3.1(a)
Material Contracts...............................................................................3.19
Merger.......................................................................................Recitals
Merger Consideration...........................................................................2.1(b)
NASDAQ......................................................................................2.1(b)(A)
NYSE...........................................................................................3.4(c)
Person...........................................................................................7.11
Plans..........................................................................................3.9(a)
v
Proxy Statement................................................................................4.4(b)
Registration Statement........................................................................3.11(b)
Representing Party...........................................................Article III Introduction
Representing Party's Disclosure Schedule.....................................Article III Introduction
Rights Agreement.............................................................................Recitals
Savings Plans..................................................................................4.6(c)
SEC............................................................................................3.5(a)
SEC Reports.......................................................................................3.5
Securities Act.................................................................................3.4(c)
Shareholders Meeting...........................................................................4.4(a)
Shares.......................................................................................Recitals
Significant Subsidiaries.........................................................................7.11
Standard Election...........................................................................2.1(b)(C)
Standard Election Consideration.............................................................2.1(b)(C)
Stock Election..............................................................................2.1(b)(A)
Stock Election Consideration................................................................2.1(b)(A)
Subsidiaries.....................................................................................7.11
Superior Proposal..............................................................................4.8(a)
Surviving Corporation.............................................................................1.1
Tax Return....................................................................................3.13(g)
Taxes.........................................................................................3.13(g)
Termination Date..................................................................................4.1
Termination Fee...................................................................................6.3
Trading Day.................................................................................2.1(b)(A)
vi
