EXHIBIT 2.1
EXECUTION COPY
AGREEMENT AND PLAN OF MERGER
BY AND AMONG
MONSANTO COMPANY,
EG ACQUISITION CO.,
EMERGENT GENETICS, INC.
AND
INTERNATIONAL SEED HOLDINGS, L.P.
Dated as of February 15, 2005
TABLE OF CONTENTS
(continued)
Page
Article 1 DEFINITIONS...........................................................................1
1.1 Certain Definitions...................................................................1
Article 2 THE MERGER............................................................................8
2.1 The Merger............................................................................8
2.2 Closing...............................................................................8
2.3 Effective Time........................................................................9
2.4 Effects of the Merger.................................................................9
2.5 Certificate of Incorporation and Bylaws...............................................9
2.6 Directors.............................................................................9
2.7 Officers..............................................................................9
Article 3 EFFECT OF THE MERGER ON THE CAPITAL STOCK OF THE CONSTITUENT CORPORATIONS; EXCHANGE OF
CERTIFICATES .........................................................................9
3.1 Effect on Capital Stock...............................................................9
3.2 Appraisal Rights.....................................................................10
3.3 Merger Consideration Adjustment......................................................11
3.4 Payment of Merger Consideration; Exchange of Certificates............................12
Article 4 TERMINATION..........................................................................13
4.1 Termination of Agreement.............................................................13
4.2 Procedure Upon Termination...........................................................14
4.3 Effect of Termination................................................................14
Article 5 REPRESENTATIONS AND WARRANTIES OF THE COMPANY........................................14
5.1 Organization and Good Standing.......................................................14
5.2 Authorization of Agreement...........................................................15
5.3 Conflicts; Consents of Third Parties.................................................15
5.4 Capitalization.......................................................................16
5.5 Subsidiaries.........................................................................16
5.6 Financial Statements.................................................................17
5.7 No Undisclosed Liabilities...........................................................17
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TABLE OF CONTENTS
(continued)
Page
5.8 Absence of Certain Developments......................................................17
5.9 Taxes................................................................................18
5.10 Real Property........................................................................20
5.11 Tangible Personal Property...........................................................20
5.12 Intellectual Property................................................................20
5.13 Germplasm............................................................................21
5.14 Genetically Modified Organisms.......................................................21
5.15 Material Contracts...................................................................22
5.16 Employee Benefits Plans..............................................................23
5.17 Labor................................................................................24
5.18 Litigation...........................................................................25
5.19 Compliance with Laws; Permits........................................................25
5.20 Environmental Matters................................................................25
5.21 Accounts Receivable..................................................................26
5.22 Inventories..........................................................................26
5.23 Transactions with Related Persons; Affiliates........................................26
5.24 Employees, Officers and Directors....................................................26
5.25 Insurance............................................................................27
5.26 Books and Records and Financial Controls.............................................27
5.27 Sufficiency of Property..............................................................27
5.28 Financial Advisors...................................................................27
5.29 No Other Representations or Warranties; Schedules....................................28
Article 6 REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB..............................28
6.1 Organization and Good Standing.......................................................28
6.2 Authorization of Agreement...........................................................28
6.3 Conflicts; Consents of Third Parties.................................................29
6.4 Litigation...........................................................................29
6.5 Financial Advisors...................................................................29
6.6 Financing............................................................................29
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TABLE OF CONTENTS
(continued)
Page
6.7 No Prior Activities..................................................................30
6.8 Condition of the Business............................................................30
Article 7 REPRESENTATIONS AND WARRANTIES OF ISH................................................30
7.1 Organization and Good Standing.......................................................30
7.2 Authorization of Agreement...........................................................31
7.3 Conflicts; Consents of Third Parties.................................................31
7.4 Ownership of Shares..................................................................31
7.5 Litigation...........................................................................32
7.6 Financial Advisors...................................................................32
Article 8 COVENANTS............................................................................32
8.1 Access to Information................................................................32
8.2 Conduct of the Business Pending the Closing..........................................32
8.3 Consents.............................................................................34
8.4 Regulatory Approvals.................................................................34
8.5 Further Assurances...................................................................36
8.6 Confidentiality......................................................................36
8.7 Indemnification, Exculpation and Insurance...........................................36
8.8 Preservation of Records..............................................................38
8.9 Publicity............................................................................38
8.10 Use of Name..........................................................................39
8.11 Employment and Employee Benefits.....................................................39
8.12 Supplementation and Amendment of Schedules...........................................40
8.13 Transition Services..................................................................40
8.14 Closing Transactions.................................................................40
Article 9 CONDITIONS TO CLOSING................................................................40
9.1 Conditions Precedent to Obligations of Parent and Merger Sub.........................40
9.2 Conditions Precedent to Obligations of the Company...................................41
9.3 Frustration of Closing Conditions....................................................42
Article 10 MISCELLANEOUS........................................................................42
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TABLE OF CONTENTS
(continued)
Page
10.1 Limitations of Representations, Warranties and Covenants.............................42
10.2 Exclusive Remedies...................................................................43
10.3 No Consequential Damages.............................................................43
10.4 Payment of Sales, Use or Similar Taxes...............................................43
10.5 Expenses.............................................................................43
10.6 Entire Agreement; Amendments and Waivers.............................................43
10.7 Governing Law........................................................................44
10.8 Notices..............................................................................44
10.9 Severability.........................................................................46
10.10 Binding Effect; Assignment...........................................................46
10.11 Non-Recourse.........................................................................46
10.12 Counterparts.........................................................................46
10.13 Stockholder Representative...........................................................47
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Schedules
---------
Schedule 1.1(a) Company Debt
Schedule 1.1 (b) Knowledge of the Company
Schedule 3.3(a) Net Working Capital
Schedule 3.4(a) Payment of Merger Consideration
Schedule 5.3(a) No Conflicts
Schedule 5.3(b) Consents
Schedule 5.4(a) Stockholders
Schedule 5.4(b) Capitalization
Schedule 5.5(a) Subsidiaries
Schedule 5.5(b) Subsidiary Liens
Schedule 5.8 Absence of Certain Changes
Schedule 5.9 Taxes
Schedule 5.10 Real Property
Schedule 5.11 Tangible Personal Property
Schedule 5.12 Intellectual Property
Schedule 5.13 Germplasm
Schedule 5.14(b) GMO Compliance
Schedule 5.15(a) Material Contracts
Schedule 5.16(a) Employee Benefit Plans
Schedule 5.16(f) Benefit Plan Payments
Schedule 5.17(a) Labor and Collective Bargaining Agreements
Schedule 5.17(b) Labor
Schedule 5.18 Litigation
Schedule 5.20 Environmental Matters
Schedule 5.23 Affiliate Obligations
Schedule 5.24(a) Employees
Schedule 5.25 Insurance Policies
Schedule 6.3(a) No Conflicts
Schedule 8.2(a) Ordinary Course Exceptions
Schedule 8.2(b) Conduct of Business
Schedule 8.14(b) Transferred Contracts
Exhibits
--------
Exhibit A Seller's Affidavit
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AGREEMENT AND PLAN OF MERGER
This AGREEMENT AND PLAN OF MERGER, dated as of February 14, 2005 (this
"Agreement"), by and among Monsanto Company, a corporation existing under the
laws of Delaware ("Parent"), EG Acquisition Co., a corporation existing under
the laws of Delaware and wholly-owned subsidiary of Parent ("Merger Sub"),
Emergent Genetics, Inc., a Delaware corporation (the "Company"), and
International Seed Holdings, L.P., a Cayman exempt limited partnership ("ISH").
W I T N E S S E T H:
WHEREAS, the Board of Directors of each of Merger Sub and the Company has
approved and declared advisable, and the Board of Directors of Parent has
approved, this Agreement and the merger of Merger Sub with and into the Company
(the "Merger"), upon the terms and subject to the conditions set forth in this
Agreement; and
WHEREAS, Parent, Merger Sub, the Company and ISH desire to make certain
representations, warranties, covenants and agreements in connection with the
Merger and also to prescribe various conditions to the Merger.
NOW, THEREFORE, in consideration of the representations, warranties,
covenants and agreements contained in this Agreement, the parties hereto agree
as follows:
ARTICLE 1
DEFINITIONS
1.1 Certain Definitions.
(a) For purposes of this Agreement, the following terms shall have the
meanings specified in this Section 1.1:
"Affiliate" means, with respect to any Person, any other Person that,
directly or indirectly through one or more intermediaries, controls, or is
controlled by, or is under common control with, such Person, and the term
"control" (including the terms "controlled by" and "under common control with")
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of such Person, whether through
ownership of voting securities, by contract or otherwise.
"Applicable Exchange Rate" means, in respect of any currency other than
Dollars on any date, the "daily 10 am spot rate" of exchange between Dollars and
the relevant currency, as published for such date on the website of the Federal
Reserve Bank of New York (xxx.xx.xxx.xxx).
"Business Day" means any day of the year on which national banking
institutions in New York, New York and Denver, Colorado are open to the public
for conducting business and are not required or authorized to close.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Company Debt" means the Indebtedness set forth on Schedule 1.1(a).
"Competition Laws" means the HSR Act (and any similar Law enforced by any
Governmental Antitrust Entity regarding preacquisition notifications for the
purpose of competition reviews), the Xxxxxxx Act, as amended, the Xxxxxxx Act,
as amended, the Federal Trade Commission Act, as amended, and any other
national, federal, regional, state or local statutes, rules, regulations,
orders, decrees, administrative or judicial doctrines or other Laws that are
designed to prohibit, restrict or regulate actions having the purpose or effect
of monopolization, lessening of competition or restraint of trade.
"Contract" means any contract, indenture, note, bond, lease, commitment or
other legally binding agreement.
"Current Assets" means the consolidated current assets of the Company and
its Subsidiaries (excluding cash and cash equivalents and indebtedness for
borrowed money, plus accrued interest thereon, receivable from Affiliates of the
Company and its Subsidiaries) plus non-current deferred income Taxes.
"Current Liabilities" means the consolidated current liabilities of the
Company and its Subsidiaries (excluding indebtedness for borrowed money, plus
accrued interest thereon, the current portion of capitalized lease obligations
and indebtedness for borrowed money, plus accrued interest thereon, payable to
Affiliates of the Company and its Subsidiaries) plus non-current deferred income
Taxes.
"Environmental Law" means any applicable Law relating to the protection of
the environment or natural resources.
"FCPA" means the U.S. Foreign Corrupt Practices Act of 1977, as amended.
"GAAP" means generally accepted accounting principles in the United States,
consistently applied.
"Germplasm" means hybrids, lines and varieties that (i) are in commercial
use by the Company or any of its Subsidiaries or (ii) are in the pipeline for
development by the Company or any of its Subsidiaries for commercial use as of
the date of this Agreement, together with the breeding populations and sources
used to provide such hybrids, lines and varieties.
"Governmental Antitrust Entity" means any Governmental Body with regulatory
jurisdiction over enforcement of any applicable Competition Law.
"Governmental Body" means any government or governmental or regulatory body
thereof, or political subdivision thereof, whether national, federal, regional,
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state or local, or any agency, instrumentality or authority thereof, or any
court or arbitrator.
"HSR Act" means the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976,
as amended, and the rules and regulations promulgated thereunder.
"Indebtedness" of any Person means, without duplication, (i) the principal
of and accrued interest or premium (if any) in respect of (A) indebtedness of
such Person for money borrowed and (B) indebtedness evidenced by notes,
debentures, bonds or other similar instruments for the payment of which such
Person is responsible or liable; (ii) all obligations of such Person issued or
assumed as the deferred purchase price of property, all conditional sale
obligations of such Person and all obligations of such Person under any title
retention agreement (but excluding trade accounts payable and other accrued
current liabilities arising in the Ordinary Course of Business); (iii) all
obligations of such Person under leases required to be capitalized in accordance
with GAAP; (iv) all obligations of such Person for the reimbursement of any
obligor on any letter of credit, banker's acceptance or similar credit
transaction; (v) all obligations of the type referred to in clauses (i) through
(iv) of other Persons for the payment of which such Person is responsible or
liable, directly or indirectly, as obligor, guarantor, surety or otherwise,
including guarantees of such obligations; and (vi) all obligations of the type
referred to in clauses (i) through (v) of other Persons secured by any Lien on
any property or asset of such Person (whether or not such obligation is assumed
by such Person).
"India Closing" means the Closing as defined in the India Purchase
Agreement.
"India Purchase Agreement" means that certain Stock Purchase Agreement,
dated as of the date hereof, by and among Parent, EGI Limited and ISH.
"Intellectual Property" means all (i) patents and applications therefor,
including continuations, divisionals, continuations-in-part, or reissues of
patent applications and patents issuing thereon (collectively, "Patents"), (ii)
trademarks, service marks, trade names, service names, brand names, trade dress
rights, logos, Internet domain names and corporate names, together with the
goodwill associated with any of the foregoing, and all applications,
registrations and renewals thereof, (collectively, "Marks"), (iii) copyrights
and registrations and applications therefor, works of authorship and mask work
rights (collectively, "Copyrights"), (iv) all Software, (v) Technology and (vi)
certificates of plant variety protection, plant breeders rights or variety
registrations or the like, applications therefor, and certifications issuing
therefrom in any country.
"IRS" means the U.S. Internal Revenue Service.
"Knowledge of the Company" means the actual knowledge of those Persons
identified on Schedule 1.1(b).
"Law" means any national, federal, regional, state or local law, statute,
code, ordinance, rule or regulation.
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"Legal Proceeding" means any judicial, administrative or arbitral actions,
suits or proceedings (public or private) by or before a Governmental Body.
"Liability" means any debt, liability or obligation (whether direct or
indirect, absolute or contingent, accrued or unaccrued, liquidated or
unliquidated, or due or to become due) and including all costs and expenses
relating thereto.
"Lien" means any lien, encumbrance, pledge, mortgage, deed of trust,
security interest, claim, lease, charge, option, right of first refusal,
easement, servitude or transfer restriction.
"Material Adverse Effect" means (i) a material adverse effect on the
business, assets, properties, results of operations or financial condition of
the Company and its Subsidiaries (taken as a whole) or (ii) a material adverse
effect on the ability of the Company to consummate the transactions contemplated
by this Agreement, in each case, other than an effect resulting from an Excluded
Matter. "Excluded Matter" means any one or more of the following: (i) the effect
of any change in economies or securities or financial markets in general in the
United States, India or elsewhere; (ii) the effect of any change that generally
affects any industry in which the Company or any of its Subsidiaries operates
(provided that such matter does not have a disproportionate adverse effect on
the Company or its Subsidiaries); (iii) the effect of any change arising in
connection with natural disasters or acts of nature, hostilities, acts of war,
sabotage or terrorism or military actions or any escalation or material
worsening of any such hostilities, acts of war, sabotage or terrorism or
military actions existing or underway as of the date hereof; (iv) the effect of
any action taken by Parent or its Affiliates with respect to the transactions
contemplated hereby or with respect to the Company or its Subsidiaries; (v) any
matter of which Parent is aware on the date hereof, provided that Parent is or
should be aware of the likely impact of such matter on the Company and its
Subsidiaries; (vi) the effect of any changes in applicable Laws or accounting
rules; (vii) the mere failure of the Company and its Subsidiaries to meet any of
its internal projections; or (viii) any effect resulting from the public
announcement of this Agreement, compliance with terms of this Agreement or the
consummation of the transactions contemplated by this Agreement.
"Order" means any order, injunction, judgment, decree, ruling, writ,
assessment or arbitration award of a Governmental Body of competent
jurisdiction.
"Ordinary Course of Business" means the ordinary and usual course of
business of the Company and its Subsidiaries.
"Parent Board Approval" means the approval and adoption by the Board of
Directors of Parent of this Agreement and of the consummation of the Merger and
all other transactions contemplated hereby.
"Permits" means any approvals, authorizations, consents, licenses, permits
or certificates of a Governmental Body.
4
"Permitted Exceptions" means (i) statutory liens for current Taxes,
assessments or other governmental charges not yet delinquent or the amount or
validity of which is being contested in good faith by appropriate proceedings,
provided an appropriate reserve is established therefor; (ii) mechanics',
carriers', workers', repairers' and similar Liens arising or incurred in the
Ordinary Course of Business; (iii) zoning, entitlement and other land use and
environmental regulations by any Governmental Body; (iv) liens securing debt as
disclosed in the Financial Statements; (v) title of a lessor under a capital or
operating lease; and (vi) such other imperfections in title, charges, easements,
rights of way, restrictions, defects, exceptions and encumbrances which do not
materially and adversely impact the value or utility of the affected property.
"Person" means any individual, corporation, partnership, firm, joint
venture, association, joint-stock company, trust, unincorporated organization,
Governmental Body or other entity.
"Release" means any release, spill, emission, leaking, pumping, injection,
deposit, disposal, discharge, dispersal or leaching into the environment, or
into or out of any property.
"Software" means, except for "off-the-shelf" or "shrinkwrap" software, any
and all (i) computer programs, including any and all software implementations of
algorithms, models and methodologies, whether in source code or object code,
(ii) databases and compilations, including any and all data and collections of
data, whether machine readable or otherwise, (iii) descriptions, flow-charts and
other work product used to design, plan, organize and develop any of the
foregoing, screens, user interfaces, report formats, firmware, development
tools, templates, menus, buttons and icons and (iv) all documentation including
user manuals and other training documentation related to any of the foregoing.
"Stockholder Representative" means ISH.
"Subsidiary" means any Person of which a majority of the outstanding voting
securities or other voting equity interests are owned, directly or indirectly,
by the Company.
"Target Net Working Capital" means $1,900,000.
"Taxes" means (i) all national, federal, regional, state or local taxes,
charges, fees, imposts, levies or other assessments in any jurisdiction,
including all net income, gross receipts, capital, sales, use, ad valorem, value
added, transfer, franchise, profits, inventory, capital stock, license,
withholding, payroll, employment, social security, unemployment, excise,
severance, stamp, occupation, property and estimated taxes, customs duties,
fees, assessments and charges of any kind whatsoever, (ii) all interest,
penalties, fines, additions to tax or additional amounts imposed by any taxing
authority in connection with any item described in clause (i) and (iii) any
transferee liability in respect of any items described in clauses (i) and/or
(ii).
5
"Tax Return" means all returns, declarations, reports, estimates,
information returns and statements required to be filed in respect of any Taxes.
"Technology" means, collectively, all designs, formulae, algorithms,
procedures, methods, techniques, ideas, know-how, research and development,
technical data, programs, subroutines, tools, materials, specifications,
processes, inventions (whether patentable or unpatentable and whether or not
reduced to practice), apparatus, creations, improvements, works of authorship
and other similar materials, and all recordings, graphs, drawings, reports,
analyses, and other writings, and other tangible embodiments of the foregoing,
in any form whether or not specifically listed herein, and all related
technology.
(b) Terms Defined Elsewhere in this Agreement. For purposes of this
Agreement, the following terms have meanings set forth in the sections
indicated:
Term Section
---- -------
Accounting Referee 3.3(c)
Agreement Recitals
Appraisal Shares 3.2
Balance Sheet 5.6
Balance Sheet Date 5.6
Certificate 3.1(c)
Certificate of Merger 2.3
Claim 8.7(c)
Closing 2.2
Closing Date 2.2
Closing Statement 3.3(a)
Closing Working Capital 3.3(a)
Company Recitals
Company Benefit Plan 5.16(a)
Company Common Stock 3.1
Company Documents 5.2
Company Property 5.10
Company Properties 5.10
Confidentiality Agreement 8.6
Continuing Employees 8.11(a)
Controlled Group Member 5.16(c)
Copyrights 1.1 (in Intellectual Property definition)
Deal Expenses 10.5
Denmark Transition Services Agreement 8.13
DGCL 2.1
Effective Time 2.3
EG Denmark 8.13
EGI Limited 8.13
ERISA 5.16(a)
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Term Section
---- -------
Excluded Matter 1.1 (in definition of Material Adverse Effect)
Final Working Capital 3.3(e)
Financial Statements 5.6
Foreign Plan 5.16(g)
Indemnitees 8.7(a)
India Transition Services Agreement 8.13
ISH Recitals
ISH Documents 7.2
Marks 1.1 (in Intellectual Property definition)
Material Contracts 5.15(a)
Merger Recitals
Merger Consideration 3.1(c)
Merger Sub Recitals
Net Working Capital 3.3(a)
NOL Carryforwards 5.9(l)
Outside Date 4.1(a)
Owned Property 5.10
Owned Properties 5.10
Parent Recitals
Parent Documents 6.2
Parent Plans 8.11(b)
Patents 1.1 (in Intellectual Property definition)
Payoff Certificates 9.1(f)
Personal Property Leases 5.11
Real Property Lease 5.10
Real Property Leases 5.10
Representative Indemnified Party 10.13(b)
Section 262 3.2
Standstill Period 8.9(c)
Stockholders 3.1(c)
Subject Marks 8.10
Surviving Corporation 2.1
(c) Other Definitional and Interpretive Matters. Unless otherwise expressly
provided herein, for purposes of this Agreement, the following rules of
interpretation shall apply:
Calculation of Time Period. When calculating the period of time before
which, within which or following which any act is to be done or step taken
pursuant to this Agreement, the date that is the reference date in calculating
such period shall be excluded. If the last day of such period is a non-Business
Day, the period in question shall end on the next succeeding Business Day.
Dollars. Any reference in this Agreement to Dollars or $ shall mean U.S.
dollars.
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Exhibits/Schedules. The Exhibits and Schedules to this Agreement are hereby
incorporated and made a part hereof and are an integral part of this Agreement.
All Exhibits and Schedules annexed hereto or referred to herein are hereby
incorporated in and made a part of this Agreement as if set forth in full
herein. Any capitalized terms used in any Schedule or Exhibit but not otherwise
defined therein shall be defined as set forth in this Agreement.
Gender and Number. Any reference in this Agreement to gender shall include
all genders, and words imparting the singular number only shall include the
plural and vice versa.
Headings. The provision of a Table of Contents, the division of this
Agreement into Articles, Sections and other subdivisions and the insertion of
headings are for convenience of reference only and shall not affect or be
utilized in construing or interpreting this Agreement. All references in this
Agreement to any "Section" are to the corresponding Section of this Agreement
unless otherwise specified.
Herein. The words such as "herein," "hereinafter," "hereof," and
"hereunder" refer to this Agreement as a whole and not merely to a subdivision
in which such words appear unless the context otherwise requires.
Including. The word "including" or any variation thereof means "including,
without limitation" and shall not be construed to limit any general statement
that it follows to the specific or similar items or matters immediately
following it.
Reflected On or Set Forth In. An item arising with respect to a specific
representation or warranty shall be deemed to be "reflected on" or "set forth
in" a balance sheet or financial statements, to the extent any such phrase
appears in such representation or warranty, if (a) there is a reserve, accrual
or other similar item underlying a number on such balance sheet or financial
statements that related to the subject matter of such representation, (b) such
item is otherwise specifically set forth on the balance sheet or financial
statements or (c) such item is reflected on the balance sheet or financial
statements and is specifically set forth in the notes thereto.
(d) The parties hereto have participated jointly in the negotiation and
drafting of this Agreement and, in the event an ambiguity or question of intent
or interpretation arises, this Agreement shall be construed as jointly drafted
by the parties hereto and no presumption or burden of proof shall arise favoring
or disfavoring any party by virtue of the authorship of any provision of this
Agreement.
ARTICLE 2
THE MERGER
2.1 The Merger. Upon the terms and subject to the conditions set forth in
this Agreement and in accordance with the General Corporation Law of the State
of Delaware (the "DGCL"), Merger Sub shall be merged with and into the Company
at the Effective Time. Following the Effective Time, the separate corporate
existence of Merger Sub shall cease, and the Company shall continue as the
8
surviving corporation in the Merger (the "Surviving Corporation") and shall
succeed to and assume all the rights and obligations of Merger Sub in accordance
with the DGCL.
2.2 Closing. Subject to the satisfaction of the conditions set forth in
Sections 9.1 and 9.2 (or the waiver thereof by the party entitled to waive any
such condition, the closing of the Merger (the "Closing") will take place at
10:00 a.m. (New York City time) 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 each condition to the Closing set forth in Sections
9.1 and 9.2 (other than those conditions that by their terms are to be satisfied
at the Closing, but subject to the satisfaction or waiver of those conditions),
at the offices of Weil, Gotshal & Xxxxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, unless another date or place is agreed to in writing by the parties
hereto.
2.3 Effective Time. Subject to the provisions of this Agreement, as soon as
practicable on the Closing Date, the parties shall file a certificate of merger
(the "Certificate of Merger") executed in accordance with the relevant
provisions of the DGCL and, as soon as practicable on or after the Closing Date,
shall make all other filings or recordings required under the DGCL. The Merger
shall become effective at such time as the Certificate of Merger is duly filed
with the Secretary of State of the State of Delaware, or at such other time as
Parent and the Company shall agree and shall specify in the Certificate of
Merger (the time the Merger becomes effective being the "Effective Time").
2.4 Effects of the Merger. The Merger shall have the effects set forth in
Section 259 of the DGCL.
2.5 Certificate of Incorporation and Bylaws. Effective immediately
following the Merger, the certificate of incorporation of the Company, as in
effect immediately prior to the Effective Time, shall be the certificate of
incorporation of the Surviving Corporation until amended in accordance with
applicable Law. Effective immediately following the Merger, the bylaws of the
Company, as in effect immediately prior to the Effective Time, shall be the
bylaws of the Surviving Corporation until amended in accordance with applicable
Law.
2.6 Directors. The directors of Merger Sub at the Effective Time shall be
the initial directors of the Surviving Corporation and shall hold office in
accordance with the certificate of incorporation and bylaws of the Surviving
Corporation until their successors are duly elected or appointed and qualified
or until their earlier death, resignation or removal.
2.7 Officers. The officers of Merger Sub at the Effective Time shall be the
initial officers of the Surviving Corporation and shall hold office in
accordance with the certificate of incorporation and bylaws of the Surviving
Corporation until their successors are duly elected or appointed and qualified
or until their earlier death, resignation or removal.
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ARTICLE 3
EFFECT OF THE MERGER ON THE CAPITAL STOCK OF THE CONSTITUENT
CORPORATIONS; EXCHANGE OF CERTIFICATES
3.1 Effect on Capital Stock. As of the Effective Time, by virtue of the
Merger and without any action on the part of the holder of any shares of common
stock, par value $0.01 per share, of the Company ("Company Common Stock") or any
shares of capital stock of Merger Sub:
(a) Capital Stock of Merger Sub. Each issued and outstanding share of
capital stock of Merger Sub shall be converted into and become one validly
issued, fully paid and nonassessable share of common stock, par value $0.01
per share, of the Surviving Corporation.
(b) Cancellation of Treasury Stock and Parent-Owned Stock. Each share
of Company Common Stock that is owned by the Company, Parent or Merger Sub
shall automatically be canceled and retired and shall cease to exist, and
no consideration shall be delivered in exchange therefor.
(c) Conversion of Company Common Stock. The consideration for each
issued and outstanding share of Company Common Stock (other than shares to
be canceled in accordance with Section 3.1(b) and the Appraisal Shares)
shall be an amount in cash equal to (i) $242,000,000 less the aggregate
amount of Company Debt as set forth in the Payoff Certificates divided by
(ii) 994,066 (the "Merger Consideration"). Each issued and outstanding
share of Company Common Stock (other than shares to be canceled in
accordance with Section 3.1(b) and the Appraisal Shares) shall be converted
into the right to receive the Merger Consideration in cash, without
interest. At the Effective Time, all such shares of Company Common Stock
shall no longer be outstanding and shall automatically be canceled and
retired and shall cease to exist, and each holder of a certificate
(collectively, the "Stockholders") which immediately prior to the Effective
Time represented any such shares of Company Common Stock (each, a
"Certificate") shall cease to have any rights with respect thereto, except
the right to receive the Merger Consideration.
3.2 Appraisal Rights. Notwithstanding anything in this Agreement to the
contrary, shares (the "Appraisal Shares") of Company Common Stock issued and
outstanding immediately prior to the Effective Time that are held by any holder
who is entitled to demand and properly demands appraisal of such shares pursuant
to, and who complies in all respects with, the provisions of Section 262 of the
DGCL ("Section 262") shall not be converted into the right to receive the Merger
Consideration as provided in Section 3.1(c), but instead such holder shall be
entitled to payment of the fair value of such shares in accordance with the
provisions of Section 262. At the Effective Time, all Appraisal Shares shall no
longer be outstanding and shall automatically be canceled and shall cease to
exist, and each holder of Appraisal Shares shall cease to have any rights with
respect thereto, except the right to receive the fair value of such Appraisal
Shares in accordance with the provisions of Section 262. Notwithstanding the
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foregoing, if any such holder shall fail to perfect or otherwise shall waive,
withdraw or lose the right to appraisal under Section 262 or a court of
competent jurisdiction shall determine that such holder is not entitled to the
relief provided by Section 262, then the right of such holder to be paid the
fair value of such holder's Appraisal Shares under Section 262 shall cease and
each such Appraisal Share shall be deemed to have been converted at the
Effective Time into, and shall have become, the right to receive the Merger
Consideration as provided in Section 3.1(c). The Company shall serve prompt
notice to Parent of any demands for appraisal of any shares of Company Common
Stock, and Parent shall have the right to participate in all negotiations and
proceedings with respect to such demands. Prior to the Effective Time, the
Company shall not, without the prior written consent of Parent, make any payment
with respect to, or settle or offer to settle, any such demands, or agree to do
any of the foregoing.
3.3 Merger Consideration Adjustment.
(a) As promptly as practicable, but no later than sixty (60) days
after the Closing Date, Parent shall cause to be prepared and delivered to
the Stockholder Representative the Closing Statement (as defined below) and
a certificate based on such Closing Statement setting forth Parent's
calculation of Closing Working Capital. The closing statement (the "Closing
Statement") shall present the Net Working Capital as of the end of business
on the Closing Date plus all cash and cash equivalents held by the Company
and its Subsidiaries at the end of business on the Closing Date ("Closing
Working Capital"). "Net Working Capital" means the Current Assets, reduced
by the Current Liabilities, in each case as determined in accordance with
GAAP. The preparation of the Closing Statement shall be for the sole
purpose of calculating the Net Working Capital as of the end of business on
the Closing Date. The Net Working Capital as of the end of business on the
Closing Date shall be calculated in the same manner as the calculation of
Net Working Capital as of September 30, 2004, set forth on Schedule 3.3(a)
attached hereto.
(b) If the Stockholder Representative disagrees with Parent's
calculation of Closing Working Capital delivered pursuant to Section
3.3(a), the Stockholder Representative may, within fifteen (15) days after
delivery of the Closing Statement, deliver a notice to Parent disagreeing
with such calculation(s) and setting forth the Stockholder Representative's
calculation of such amount(s). Any such notice of disagreement shall
specify those items or amounts as to which the Stockholder Representative
disagrees, and the Stockholder Representative shall be deemed to have
agreed with all other items and amounts contained in the Closing Statement
and the calculation of Closing Working Capital delivered pursuant to
Section 3.3(a). Net Working Capital shall be calculated expressly for this
purpose in Dollars, with any amounts in other currencies converted to
Dollars based on the Applicable Exchange Rate as of the Closing Date.
(c) If a notice of disagreement shall be duly delivered pursuant to
Section 3.3(b), the Stockholder Representative and Parent shall, during the
fifteen (15) days following such delivery, use their commercially
reasonable efforts to reach agreement on the disputed items or amounts in
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1
order to determine, as may be required, the amount of Closing Working
Capital. If during such period, the Stockholder Representative and Parent
are unable to reach such agreement, they shall promptly thereafter cause a
mutually satisfactory independent nationally recognized accounting firm
(the "Accounting Referee") to review the relevant portions of this
Agreement and the disputed items or amounts for the purpose of calculating
Closing Working Capital (it being understood that in making such
calculation(s), the Accounting Referee shall be functioning as an expert
and not as an arbitrator). In making such calculation(s), the Accounting
Referee shall consider only those items or amounts in the Closing Statement
and Parent's calculation of Closing Working Capital as to which the
Stockholder Representative has disagreed. The Accounting Referee shall
deliver to the Stockholder Representative and Parent, as promptly as
practicable (but in any case no later than thirty (30) days from the date
of engagement of the Accounting Referee), a report setting forth its
calculation of Closing Working Capital, which amount shall not be less than
the amount thereof shown in Parent's calculation delivered pursuant to
Section 3.3(a) nor more than the amount thereof shown in the Stockholder
Representative's calculation delivered pursuant to Section 3.3(b). Such
report shall be final and binding upon the Stockholders and Parent. The
cost of such review and report shall be borne one-half by Parent and
one-half by ISH.
(d) The Stockholder Representative, Parent and the Company shall, and
shall cause their respective representatives to, cooperate and assist in
the preparation of the Closing Statement and the calculation of Closing
Working Capital and in the conduct of the review referred to in this
Section 3.3, including the making available to the extent necessary of
books, records, work papers and appropriate personnel.
(e) If Final Working Capital exceeds the Target Net Working Capital,
Parent shall pay to the Stockholders on a pro-rata basis, in the manner and
with interest as provided in Section 3.3(f), the amount of such excess and,
if the Target Net Working Capital exceeds Final Working Capital, ISH shall
pay to Parent the amount of such excess, in the manner and with interest as
provided in Section 3.3(f). Any such payment shall be considered to be an
adjustment to the Merger Consideration. "Final Working Capital" means
Closing Working Capital (i) as shown in Parent's calculation delivered
pursuant to Section 3.3(a) if no notice of disagreement with respect
thereto is duly delivered pursuant to Section 3.3(b); or (ii) if such a
notice of disagreement is delivered, (A) as agreed by the Stockholder
Representative and Parent pursuant to Section 3.3(c) or (B) in the absence
of such agreement, as shown in the Accounting Referee's calculation
delivered pursuant to Section 3.3(c). ISH hereby agrees to retain and not
distribute to its limited partners $5,000,000 of the Merger Consideration
received by it pursuant to Section 3.4(a) until Final Working Capital has
been so determined and all payments required by ISH, if any, pursuant to
this Section 3.3 have been made.
(f) Any payment pursuant to Section 3.3(e) shall be made in Dollars at
a mutually convenient time and place as soon as practicable, but in no
event less than five (5) Business Days after Final Working Capital has been
determined, by wire transfer by Parent or ISH, as the case may be, of
immediately available funds to the account of such other party as may be
designated in writing by such other party. The amount of any payment to be
made pursuant to this Section 3.3 shall bear interest from and including
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the Closing Date to but excluding the date of payment at a rate per annum
equal to the rate of interest published from time to time by the Wall
Street Journal as the "prime rate" at large U.S. money center banks during
the period from the Closing Date to the date of payment. Such interest
shall be payable at the same time as the payment to which it relates and
shall be calculated daily on the basis of a year of three hundred sixty
five (365) days and the actual number of days elapsed.
3.4 Payment of Merger Consideration; Exchange of Certificates.
(a) Payment. Subject to compliance with Section 3.4(b), Parent shall
pay to each Stockholder the Merger Consideration in the aggregate amounts
set forth next to such Stockholder's name on Schedule 3.4(a).
(b) Exchange Procedures. Upon surrender of the Certificate or
Certificates representing the Company Common Stock held by each Shareholder
to Parent, together with a customary stock power endorsed in blank, at any
time after the Effective Time, such Stockholder shall be entitled to
receive the Merger Consideration with respect to such shares and the
Certificate or Certificates so surrendered shall forthwith be canceled. In
the event of a transfer of ownership of shares of Company Common Stock that
is not registered in the transfer records of the Company, the proper amount
of cash may be paid in exchange therefor to a Person other than the Person
in whose name the Certificate so surrendered is registered if such
Certificate shall be properly endorsed or otherwise be in proper form for
transfer and the Person requesting such issuance shall pay any transfer or
other taxes required by reason of the payment to a Person other than the
registered holder of such Certificate or establish to the reasonable
satisfaction of Parent that such tax has been paid or is not applicable.
Until surrendered as contemplated by this Section 3.4(b), each Certificate
shall be deemed at any time after the Effective Time to represent only the
right to receive upon such surrender the Merger Consideration. No interest
will be paid or will accrue on the cash payable upon surrender of any
Certificate.
(c) No Further Ownership Rights in Company Common Stock. All cash paid
upon the surrender of Certificates in accordance with the terms of this
Article 3 shall be deemed to have been paid in full satisfaction of all
rights pertaining to the shares of Company Common Stock previously
represented by such Certificates. At the close of business on the day on
which the Effective Time occurs, the stock transfer books of the Company
shall be closed and there shall be no further registration of transfers on
the stock transfer books of the Surviving Corporation of the shares of
Company Common Stock that were outstanding immediately prior to the
Effective Time. If, at any time after the Effective Time, Certificates are
presented to the Surviving Corporation or Parent for any reason, they shall
be canceled and exchanged as provided in this Article 3.
(d) No Liability. None of Parent, Merger Sub or the Company shall be
liable to any Person in respect of any cash delivered to a public official
pursuant to any applicable abandoned property, escheat or similar Law.
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(e) Lost Certificates. If any Certificate shall have been lost, stolen
or destroyed, upon the making of an affidavit of that fact by the Person
claiming such Certificate to be lost, stolen or destroyed, Parent will
issue in exchange for such lost, stolen or destroyed Certificate the Merger
Consideration for the Company Common Stock represented by such Certificate
to which such holder would be entitled pursuant to this Article 3.
ARTICLE 4
TERMINATION
4.1 Termination of Agreement. This Agreement may be terminated at any time
prior to the Effective Time as follows:
(a) at the election of the Company or Parent on or after December 30,
2005 (the "Outside Date"), if the Merger shall not have occurred by the
close of business on such date, provided that the terminating party is not
in material default of any of its obligations hereunder, and provided
further that such date shall be automatically extended for 60 days if only
the conditions to Closing set forth in Sections 9.1(d) and 9.2(d) remain
unsatisfied or unwaived at December 30, 2005;
(b) by mutual written consent of the Company and Parent;
(c) by the Company or Parent if there shall be in effect a final
nonappealable Order restraining, enjoining or otherwise prohibiting the
consummation of the transactions contemplated hereby; it being agreed that
the parties hereto shall use all commercially reasonable efforts to
promptly appeal any adverse determination which is not nonappealable and
diligently pursue such appeal;
(d) by Parent if (i) the Company shall be in material violation of any
of its obligations hereunder, and if such violation (if curable) is not
cured within 20 days after the giving of written notice by Parent to the
Company or (ii) there has been any event, change, occurrence or
circumstance that renders the conditions set forth in either Section 9.1(a)
or Section 9.1(g) incapable of being satisfied by the Outside Date;
(e) by the Company if (i) Parent or Merger Sub shall be in material
violation of any of their obligations hereunder, and if such violation (if
curable) is not cured within 20 days after the giving of written notice by
the Company to Parent, or (ii) there shall have been any event, change,
occurrence or circumstance that has had or reasonably would be expected to
have a material adverse effect on the ability of Parent or Merger Sub to
consummate the transactions contemplated by this Agreement; or
(f) by the Company if Parent shall have not obtained and delivered to
the Company on or before 10:00 p.m. (New York time) on February 18, 2005
written evidence of the Parent Board Approval certified by an authorized
officer of Parent.
4.2 Procedure Upon Termination. In the event of termination and abandonment
by Parent or the Company, or both, pursuant to Section 4.1 hereof, written
14
notice thereof shall forthwith be given to the other party or parties, and this
Agreement shall terminate, and the Merger shall be abandoned, without further
action by Parent or the Company.
4.3 Effect of Termination. In the event that this Agreement is validly
terminated in accordance with Section 4.1, then each of the parties shall be
relieved of their duties and obligations arising under this Agreement after the
date of such termination and such termination shall be without liability to
Parent, the Merger Sub, the Company or ISH; provided, that no such termination
shall relieve any party hereto from liability for any willful breach of this
Agreement.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to Parent and the Merger Sub
that:
5.1 Organization and Good Standing. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware and has all requisite corporate power and authority to own, lease and
operate its properties and to carry on its business as now conducted. The
Company is duly qualified or authorized to do business as a foreign corporation
and is in good standing under the laws of each jurisdiction in which it owns or
leases real property and each other jurisdiction in which the conduct of its
business or the ownership of its properties requires such qualification or
authorization, except where the failure to be so qualified, authorized or in
good standing would not have a Material Adverse Effect.
5.2 Authorization of Agreement. The Company has all requisite power and
authority to execute and deliver this Agreement and each other agreement,
document, or instrument or certificate contemplated by this Agreement or to be
executed by the Company in connection with the consummation of the transactions
contemplated by this Agreement (the "Company Documents") and to consummate the
transactions contemplated hereby and thereby. The execution and delivery of this
Agreement and the Company Documents and the consummation of the transactions
contemplated hereby and thereby have been duly authorized by all requisite
corporate action on the part of the Company. This Agreement has been, and each
of the Company Documents will be at or prior to the Closing, duly and validly
executed and delivered by the Company and (assuming the due authorization,
execution and delivery by the other parties hereto and thereto) this Agreement
and the Company Documents constitute the legal, valid and binding obligations of
the Company, enforceable against it in accordance with their terms, subject to
applicable bankruptcy, insolvency, reorganization, moratorium and similar laws
affecting creditors' rights and remedies generally, and subject, as to
enforceability, to general principles of equity, including principles of
commercial reasonableness, good faith and fair dealing (regardless of whether
enforcement is sought in a proceeding at law or in equity). The Company has
delivered to Parent a true and correct copy of a written consent of the majority
15
stockholder of the Company adopting resolutions approving the Merger and this
Agreement and the transactions contemplated hereby.
5.3 Conflicts; Consents of Third Parties.
(a) Except as set forth on Schedule 5.3(a), none of the execution and
delivery by the Company of this Agreement or the Company Documents, the
consummation of the transactions contemplated hereby or thereby, or
compliance by the Company with any of the provisions hereof or thereof will
conflict with, or result in any violation of or default (with or without
notice or lapse of time, or both) under, or give rise to a right of
termination or cancellation under, any provision of (i) the certificate of
incorporation and by-laws or comparable organizational documents of the
Company or any Subsidiary; (ii) any material Contract or Permit to which
the Company or any Subsidiary is a party or by which any of the material
properties or assets of the Company or any Subsidiary are bound; (iii) any
Order applicable to the Company or any Subsidiary or by which any of the
properties or assets of the Company or any Subsidiary are bound; or (iv)
any applicable Law, the violation of which has or may have a material
impact on the business of the Company or any of its Subsidiaries.
(b) Except as set forth on Schedule 5.3(b), no material consent,
waiver, approval, Order, Permit or authorization of, or declaration or
filing with, or notification to, any Person or Governmental Body is
required on the part of the Company or any Subsidiary in connection with
the execution and delivery of this Agreement or the Company Documents or
the compliance by the Company with any of the provisions hereof or thereof,
or the consummation of the transactions contemplated hereby or thereby,
except for (i) compliance with the applicable requirements of the HSR Act
(and any similar Law enforced by any Governmental Antitrust Entity
regarding preacquisition notifications for the purpose of competition
reviews) and (ii) the filing of the Certificate of Merger with the
Secretary of State of the State of Delaware and appropriate documents with
the relevant authorities of other states in which the Company is qualified
to do business.
5.4 Capitalization.
(a) The authorized capital stock of the Company consists of 2,000,000
shares of Company Common Stock. As of the date hereof, there are 994,066
shares of Company Common Stock issued and outstanding and no shares of
Company Common Stock are held by the Company as treasury stock. A list of
all stockholders of the Company together with the address and number of
shares held by each stockholder is set forth on Schedule 5.4(a). All of the
issued and outstanding shares of Company Common Stock were duly authorized
for issuance and are validly issued, fully paid and non-assessable.
(b) There is no existing option, warrant, call, right, or Contract of
any character to which the Company is a party requiring, and there are no
securities of the Company outstanding which upon conversion or exchange
would require, the issuance, of any shares of capital stock of the Company
or other securities convertible into, exchangeable for or evidencing the
16
right to subscribe for or purchase shares of capital stock of the Company.
Except as set forth on Schedule 5.4(b), the Company is not a party to any
voting trust or other Contract with respect to the voting, redemption,
sale, transfer or other disposition of the Company Common Stock.
5.5 Subsidiaries.
(a) Schedule 5.5(a) sets forth the name of each Subsidiary, and, with
respect to each Subsidiary, the jurisdiction in which it is incorporated or
organized, the jurisdictions, if any, in which it is qualified to do
business, the number of shares of its authorized capital stock, the number
and class of shares thereof duly issued and outstanding, the names of all
stockholders or other equity owners and the number of shares of stock owned
by each stockholder or the amount of equity owned by each equity owner.
Each Subsidiary is a duly organized and validly existing corporation or
other entity in good standing under the laws of the jurisdiction of its
incorporation or organization and is duly qualified or authorized to do
business as a foreign corporation or entity and is in good standing under
the laws of each jurisdiction in which the conduct of its business or the
ownership of its properties requires such qualification or authorization,
except where the failure to be so qualified, authorized or in good standing
would not have a Material Adverse Effect. Each Subsidiary has all requisite
corporate or entity power and authority to own, lease and operate its
properties and carry on its business as now conducted.
(b) The outstanding shares of capital stock of each Subsidiary are
validly issued, fully paid and non-assessable, and all such shares or other
equity interests represented as being owned, directly or indirectly, by the
Company are owned free and clear of any and all Liens, except as set forth
on Schedule 5.5(b). No shares of capital stock are held by any Subsidiary
as treasury stock. There is no existing option, warrant, call, right or
Contract to which any Subsidiary is a party requiring, and there are no
convertible securities of any Subsidiary outstanding which upon conversion
would require, the issuance of any shares of capital stock or other equity
interests of any Subsidiary or other securities convertible into shares of
capital stock or other equity interests of any Subsidiary.
5.6 Financial Statements. The Company has delivered to Parent copies of (i)
the audited consolidated balance sheets of the Company and its Subsidiaries as
at September 30, 2004 and 2003 and the related audited consolidated statements
of income and of cash flows of the Company and its Subsidiaries for the years
then ended and (ii) the unaudited consolidated balance sheet of the Company and
its Subsidiaries as at December 31, 2004 and the related consolidated statements
of income and cash flows of the Company and its Subsidiaries for the three month
period then ended (such audited and unaudited statements, including the related
notes and schedules thereto, are referred to herein as the "Financial
Statements"). Except as set forth in the notes thereto and normal recurring
year-end adjustments, each of the Financial Statements has been prepared in
accordance with GAAP and presents fairly in all material respects the
consolidated financial position, results of operations and cash flows of the
Company and its Subsidiaries as at the dates and for the periods indicated
therein. For the purposes hereof, the audited consolidated balance sheet of the
17
Company and its Subsidiaries as at September 30, 2004 is referred to as the
"Balance Sheet" and September 30, 2004 is referred to as the "Balance Sheet
Date".
5.7 No Undisclosed Liabilities. Neither the Company nor any Subsidiary has
any material Liabilities of any kind that would have been required to be
reflected in, reserved against or otherwise described on the Balance Sheet or in
the notes thereto in accordance with GAAP and were not so reflected, reserved
against or described, other than (i) Liabilities incurred in the Ordinary Course
of Business after the Balance Sheet Date or (ii) Liabilities incurred in
connection with the transactions contemplated hereby.
5.8 Absence of Certain Developments. Except as contemplated by this
Agreement or as set forth on Schedule 5.8, since the Balance Sheet Date (i) the
Company and its Subsidiaries have conducted their respective businesses only in
the Ordinary Course of Business and (ii) there has not been any:
(a) event, change, occurrence or circumstance that has had or
reasonably would be expected to have a Material Adverse Effect;
(b) material change in the relationship of the Company or any of its
Subsidiaries with any of its suppliers, customers, distributors, lessors,
licensors, licensees or other third parties, in each case, which are
material to the business of the Company;
(c) declaration, setting aside, or payment of any dividend or any
distribution with respect to any capital stock of the Company;
(d) increase in or commitment to increase compensation benefits, or
other remuneration to or for the benefit of any employee, director,
officer, or agent of the Company or any of its Subsidiaries, or any
benefits granted under any plan with or for the benefit of any such
employee, director, officer or agent, in each case, other than in the
Ordinary Course of Business;
(e) transaction entered into or carried out by the Company or any of
its Subsidiaries to sell or dispose of any material assets or any capital
stock of the Company or any of its Subsidiaries other than in the Ordinary
Course of Business;
(f) loan or advance by the Company or any of its Subsidiaries to any
third party except for advances not in excess of $20,000 made in the
Ordinary Course of Business to any employee of such entity;
(g) change made with respect to the Company or any of its Subsidiaries
in its Tax or financial accounting or any material Tax election; or
(h) commitment or agreement by the Company or any of its Subsidiaries
to do any of the foregoing items (a) through (g).
5.9 Taxes. Except as set forth on Schedule 5.9:
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(a) The Company and its Subsidiaries have filed all Tax Returns that
are required by applicable Laws to be filed by them, and such Tax Returns
are complete and accurate in all material respects. Neither the Company nor
any of its Subsidiaries currently is the beneficiary of any extension of
time within which to file any such Tax Return. The Company and its
Subsidiaries have paid all Taxes which have or may become due and payable
(whether or not shown on any Tax Return), other than those Taxes being
contested in good faith through appropriate proceedings for which provision
has been made, in accordance with GAAP, on the Balance Sheet.
(b) All Taxes which the Company and its Subsidiaries are required by
Law to withhold and collect at or prior to Closing have been, or will have
been, duly withheld, collected and paid over, in each case, to the proper
taxing authorities to the extent due and payable.
(c) Neither the Company nor any of its Subsidiaries has executed any
waiver to extend, or otherwise taken or failed to take any action that
would have the effect of extending, the applicable statute of limitations
in respect of any Tax liabilities of the Company or any of its Subsidiaries
for the taxable years prior to and including the most recent taxable year.
(d) Neither the Company nor of its any Subsidiaries (i) has been a
member of any consolidated, combined or unitary group (other than with the
Company and its Subsidiaries) for Tax purposes or (ii) has any liability
for the Taxes of any other Person (other than the Company and its
Subsidiaries) under Treasury Regulation Section 1.1502-6, as a transferee
or successor, by contract or otherwise.
(e) Neither the Company nor of its any Subsidiaries is a party to any
joint venture, partnership or other arrangement that could be treated as a
partnership for income Tax purposes.
(f) Neither the Company nor any of its Subsidiaries is a party to any
tax sharing agreement or arrangement (other than between the Company and
its Subsidiaries).
(g) No Liens for Taxes in any material amount exist with respect to
any of the assets or properties of Company or any of its Subsidiaries,
except for statutory liens for Taxes not yet due or payable or that are
being contested in good faith through appropriate proceedings, and with
respect to which an appropriate reserve is reflected on the Balance Sheet
in accordance with GAAP.
(h) All Taxes of the Company and its Subsidiaries which are due with
respect to any completed and settled audit, examination or deficiency
litigation with any taxing authority have been paid in full. To the
Knowledge of the Company, there is no audit, examination, deficiency or
refund litigation pending with respect to any Taxes of the Company or any
of its Subsidiaries and no taxing authority has given written notice of the
commencement of (or its intent to commence) any audit, examination or
deficiency litigation with respect to any such Taxes. In respect of any
ongoing audit, investigation and other proceedings by a tax authority, the
19
Company or Subsidiary has filed appropriate submissions defending itself
against such action and tax claim and believes that such action and claim
can be successfully defended based on the filed submissions.
(i) No closing agreements, private letter rulings, technical advice
memoranda or similar agreements or rulings have been entered into or issued
by any taxing authority with respect to the Company or any of its
Subsidiaries since December 30, 1999.
(j) There are no outstanding assessments, claims or deficiencies for
any Taxes of the Company or any of its Subsidiaries that have been
proposed, asserted or assessed, in each case in writing.
(k) Neither the Company nor any of its Subsidiaries has been a U.S.
real property holding corporation within the meaning of Section 897(c)(2)
of the Code during the applicable period specified in Section
897(c)(1)(A)(ii) of the Code.
(l) The Company and its Subsidiaries had net operating loss
carryforwards ("NOL Carryforwards") reflected on its consolidated U.S.
federal income Tax Return for the taxable year ended September 30, 2003
totaling not less than $11,236,828. Except as may result from this
Agreement or the transactions contemplated hereby, none of the NOL
Carryforwards is currently subject to limitation under Section 382 of the
Code or Treasury Regulations Section 1.1502-15 or -21 or otherwise.
(m) Neither the Company nor any of its Subsidiaries has constituted a
"distributing corporation" or a "controlled corporation" within the meaning
of Section 355(a)(1)(A) of the Code in a distribution of stock intended to
qualify for tax-free treatment under Section 355 of the Code.
(n) Neither the Company nor any of its Subsidiaries has entered into
any transaction that constitutes a "listed transaction" under Treasury
Regulation Section 1.6011-4(b)(2).
(o) To the Knowledge of the Company, no written claim has been made by
a tax authority that the Company or any of its Subsidiaries is or may be
subject to Tax in a jurisdiction where the Company or its Subsidiaries does
not file Tax Returns.
5.10 Real Property. Schedule 5.10 sets forth a complete list of (i) all
material real property and interests in real property owned in fee by the
Company and its Subsidiaries (individually, an "Owned Property" and
collectively, the "Owned Properties"), and (ii) all leases of real property by
the Company or a Subsidiary involving annual payments in excess of $50,000
(individually, a "Real Property Lease" and collectively, the "Real Property
Leases" and, together with the Owned Properties, being referred to herein
individually as a "Company Property" and collectively as the "Company
Properties"). The Company and its Subsidiaries have good and valid fee title to
all Owned Property reflected on Schedule 5.10 as owned by the Company or its
Subsidiaries, free and clear of all Liens of any nature whatsoever except (A)
Liens set forth on Schedule 5.10 and (B) Permitted Exceptions. To the Knowledge
of the Company, neither the Company nor any Subsidiary has received any notice
20
of any default or event that with notice or lapse of time, or both, would
constitute a default by the Company or any Subsidiary under any of the Real
Property Leases and, to the Knowledge of the Company, no other party to any of
the Real Property Leases is in material default thereunder.
5.11 Tangible Personal Property. Schedule 5.11 sets forth all leases of
personal property by the Company or a Subsidiary ("Personal Property Leases")
involving annual payments in excess of $50,000. To the Knowledge of the Company,
neither the Company nor any Subsidiary has received any notice of any default or
any event that with notice or lapse of time, or both, would constitute a
default, by the Company or any Subsidiary under any of the Personal Property
Leases and, to the Knowledge of the Company, no other party to any of the
Personal Property Leases is in material default thereunder.
5.12 Intellectual Property. Except as set forth on Schedule 5.12, the
Company and its Subsidiaries own or have valid licenses to use all material
Intellectual Property used by them in the Ordinary Course of Business. Except as
set forth on Schedule 5.12, to the Knowledge of the Company, (i) the material
Intellectual Property used by the Company and its Subsidiaries is not the
subject of any challenge received by the Company or any of its Subsidiaries in
writing and (ii) neither the Company nor any of its Subsidiaries has received
any written notice of any default or any event that with notice or lapse of
time, or both, would constitute a default under any material Intellectual
Property license to which the Company or any of its Subsidiaries is a party or
by which it is bound.
5.13 Germplasm. Schedule 5.13 sets forth a description of the Germplasm of
the Company. Except as set forth on Schedule 5.13:
(a) the Company and/or its Subsidiaries (i) is the sole legal and
beneficial owner of such Germplasm and all related Intellectual Property
rights, (ii) has been granted, by a written agreement, all such
Intellectual Property rights as may be required in connection with the use
by the Company and its Subsidiaries of such Germplasm, (iii) has obtained
and utilized such Germplasm under the Breeders Exemption of the 1991 UPOV
Convention and counterpart national legislation (including the U.S. Plant
Variety Protection Act of 1994) at the time it was obtained and (iv) the
Germplasm subject to the exemption referred to in clause (iii) above is
not, to the Knowledge of the Company, the subject of any issued or pending
U.S. Utility Patent application owned by a third party.
(b) such Germplasm is not covered by any Intellectual Property rights
of any third party, other than those rights licensed to the Company or any
of its Subsidiaries for use in such Germplasm; and
(c) the acquisition and use of such Germplasm by the Company and its
Subsidiaries after December 30, 1999 and prior to the Closing Date: (i) did
not infringe on the Intellectual Property rights of any third party; (ii)
did not involve the misappropriation of the Intellectual Property rights of
21
any third party; (iii) was not in breach of any confidential, fiduciary,
partnership, master-servant or agency relationship arising under Law; (iv)
was not in breach of any obligation arising under any material Contract to
which the Company or any of its Subsidiaries is a party and, to the
Knowledge of the Company, was not in breach of any obligation arising under
any Contract, regardless of the identity of the parties to such Contract;
(v) did not involve any trespass to land or buildings used or occupied by
third parties; and (vi) was not in violation of any applicable Laws.
5.14 Genetically Modified Organisms.
(a) The Company and its Subsidiaries have developed, implemented and
are complying globally with quality management practices and procedures
intended to prevent the unintended presence of regulated biotech traits in
their research and commercial seed materials.
(b) Except as set forth on Schedule 5.14(b), since December 30, 1999,
neither the Company nor any of its Subsidiaries has knowingly delivered
seed to a final customer into a country containing a regulated trait
without all appropriate regulatory permits and approvals, or delivered seed
that has been produced in non-compliance with the quality management
practices described in Section 5.14(a).
(c) To the Knowledge of the Company, in the United States, there are
no market claims or reports of the presence of unintended regulated traits
in the products of the Company or any of its Subsidiaries or in materials
directly derived from such products.
(d) The Company and its Subsidiaries (i) discontinued sales of
products containing the bromoxynil tolerant cotton event prior to December
31, 2004, (ii) have notified their licensees of such discontinuation and
(iii) have made commercially reasonable efforts to notify appropriate
distributors, growers and regulators and to recover all materials
containing bromoxynil tolerant cotton seed in an effort to prevent any
additional plantings. The Company has in its possession all methods and
materials related to all bromoxynil tolerant cotton events.
5.15 Material Contracts.
(a) Schedule 5.15(a) sets forth all of the following Contracts to
which the Company or any of its Subsidiaries is a party or by which it is
bound (collectively, the "Material Contracts"):
(i) Contracts with any Stockholders or any current officer or
director of the Company or any of its Subsidiaries or any Affiliate
(other than a Subsidiary) of the Company or any of the Stockholders;
(ii) Contracts with any labor union or association representing
any employee of the Company or any of its Subsidiaries;
22
(iii) Contracts for the sale of any of the assets of the Company
or any of its Subsidiaries other than in the Ordinary Course of
Business, for consideration in excess of $250,000 or the equivalent in
other currencies;
(iv) Contracts relating to the acquisition by the Company or any
of its Subsidiaries of any operating business or the capital stock of
any other Person, in each case for consideration in excess of
$250,000;
(v) Contracts relating to the incurrence of Indebtedness, or the
making of any loans, in each case involving amounts in excess of
$250,000;
(vi) any Contract relating to the transfer or acquisition of
cotton traits or rights to cotton traits; and
(vii) any other Contracts which involve the expenditure of more
than $250,000 in the aggregate or require performance by any party
more than one year from the date hereof that, in either case, are not
terminable by the Company or a Subsidiary without penalty on notice of
one hundred and eighty (180) days or less.
(b) The Company has made available to Parent true, correct and
complete copies of each Material Contract. Neither the Company nor any
Subsidiary has received any written notice of any default or event that
with notice or lapse of time, or both, would constitute a default by the
Company and its Subsidiaries under any Material Contract. Each of the
Material Contracts is a valid, binding and enforceable obligation of the
Company or its Subsidiaries party thereto, subject to applicable
bankruptcy, insolvency, reorganization, moratorium and similar laws
affecting creditors' rights and remedies generally, and subject, as to
enforceability, to general principles of equity, including principles of
commercial reasonableness, good faith and fair dealing (regardless of
whether enforcement is sought in a proceeding at law or in equity).
5.16 Employee Benefits Plans.
(a) Schedule 5.16(a) contains a true and complete list of each
"employee benefit plan" (within the meaning of Section 3(3) of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA")), including
multiemployer plans within the meaning of ERISA Section 3(37), and all
stock purchase, stock option, severance, employment, change of control,
bonus, incentive or deferred compensation benefit plans, agreements,
programs or policies, whether or not subject to ERISA, under which any
current or former employee of the Company or any of its Subsidiaries has
any right to benefits sponsored or maintained by the Company or under which
the Company or any of its Subsidiaries has had or has any liability. All
such plans, agreements, programs, policies and arrangements are
collectively referred to herein as "Company Benefit Plans."
(b) With respect to each Company Benefit Plan, the Company has made
available to Parent (i) a current and complete copy of the plan document
and, to the extent applicable, any related trust fund or other funding
instrument, (ii) the most recent determination letter, if applicable, (iii)
23
any summary plan descriptions or other written descriptions delivered by
the Company to the participants concerning such Company Benefit Plan, and
(iv) for the three most recent plan years, copies of all Forms 5500 and
accompanying schedules, statements and actuarial valuation reports relating
to such Company Benefit Plans, if applicable.
(c) Each Company Benefit Plan has been established and administered in
accordance with its terms in all material respects, and in compliance with
the applicable provisions of ERISA, the Code and other applicable laws,
rules and regulations in all material respects. Each Company Benefit Plan
which is intended to be qualified within the meaning of Section 401(a) of
the Code is so qualified, and to the Knowledge of the Company, no event or
circumstance has occurred that could reasonably be expected to cause the
loss of such qualification. To the Knowledge of the Company, no event has
occurred and no condition exists that would subject the Company or any
entities within its common control (each, a "Controlled Group Member") (as
defined by Sections 414(b), (c), (m) or (o) of the Code) to any penalty,
fine or lien imposed by ERISA, the Code or other applicable laws.
(d) None of the Company Benefit Plans is subject to Title IV or
Section 302 of ERISA, and neither the Company nor any of its Subsidiaries
(nor any Controlled Group Member thereof) has incurred any liability under
Title IV or Section 302 of ERISA which remains unsatisfied. Neither the
Company nor any of its Subsidiaries has any obligation or liability
(contingent or otherwise) to contribute to a multiemployer pension plan
within the meaning of ERISA Section 3(37).
(e) With respect to any Company Benefit Plan: (i) no actions, suits or
claims (other than routine claims for benefits in the ordinary course) are
pending or, to the Knowledge of the Company, threatened, (ii) to the
Knowledge of the Company, no facts or circumstances exist that could give
rise to any actions, suits or claims and (iii) no administrative
investigation, audit or other administrative proceeding by the Department
of Labor, the Pension Benefit Guaranty Corporation, the IRS or other
governmental agencies are pending, in progress or, to the Knowledge of the
Company, threatened.
(f) Except as provided on Schedule 5.16(f), no Company Benefit Plan
exists that could reasonably be expected to result in the payment to any
present or former employee of the Company of any money or other property,
or accelerate or provide any other rights or benefits to any present or
former employee of the Company, solely as a result of the consummation of
the transactions contemplated by this Agreement.
(g) Each Foreign Plan that is sponsored or maintained by the Company
or any of its Subsidiaries is in compliance in all material respects with
applicable Laws within its respective jurisdiction, and all required
contributions payable to, in connection with, such Foreign Plans have been
timely made and all such Foreign Plans are in compliance with any
applicable funding requirements. There are no pending or, to the Knowledge
of the Company, threatened or anticipated claims against any Foreign Plan.
For the purposes of this Section 5.16, the term "Foreign Plan" shall mean
each pension, profit sharing, savings, retirement, health, deferred
compensation, incentive and severance benefit plan, program or arrangement
24
maintained or contributed to by the Company or any of its Subsidiaries for
the benefit of its employees employed outside the United States, other than
plans, programs or arrangements required to be maintained or contributed to
by the Laws of the relevant jurisdiction.
(h) None of the Company Benefit Plans provides for post-retirement
life insurance or health benefits coverage to any participant or any
beneficiary of a participant.
5.17 Labor.
(a) Except as set forth on Schedule 5.17(a), neither the Company nor
any of its Subsidiaries is a party to, or bound by, any collective
bargaining agreement, contract or other arrangement or understanding with a
labor union or a labor organization.
(b) Except as set forth on Schedule 5.17(b), there are no current (i)
strikes, work stoppages, work slowdowns or lockouts pending or, to the
Knowledge of the Company, threatened against or involving the Company or
any of its Subsidiaries, or (ii) unfair labor practice charges, grievances
or complaints pending or, to the Knowledge of the Company, threatened by or
on behalf of any employee or group of employees of the Company or any of
its Subsidiaries. To the Knowledge of the Company, and except as set forth
on Schedule 5.17(b), there are no investigations, inquiries or proceedings
before the U.S. National Labor Relations Board, the U.S. Equal Employment
Opportunity Commission, the U.S. Department of Labor, the U.S. Department
of Justice, the U.S. Occupational Health and Safety Administration or any
other state or federal governmental authority in the U.S. with respect to
or relating to the terms and conditions of employment of the Company's
employees.
5.18 Litigation. Except as set forth on Schedule 5.18, there are no
material Legal Proceedings pending or, to the Knowledge of the Company,
threatened against the Company or any of its Subsidiaries before any
Governmental Body.
5.19 Compliance with Laws; Permits.
(a) The Company and its Subsidiaries are in compliance with all Laws
of any Governmental Body applicable and material to their respective
businesses or operations. Neither the Company nor any Subsidiary has
received any written notice of or been charged with the violation of any
such Laws.
(b) The Company and its Subsidiaries currently have all material
Permits which are required for the operation of their respective businesses
as presently conducted. Neither the Company nor any of its Subsidiaries is
in material default or violation (and no event has occurred which, with
notice or the lapse of time or both, would constitute a material default or
violation) of any term, condition or provision of any material Permit to
which it is a party.
(c) To the Knowledge of the Company, neither the Company nor any of
its Subsidiaries, nor any director, officer, agent or employee of the
Company or any of its Subsidiaries, has, since December 30, 1999, acting on
behalf of the Company or any of its Subsidiaries, (i) made, authorized,
25
offered or promised to make any unlawful payment or transfer of anything of
value, directly or indirectly through a third party, to any officer,
employee or representative of a foreign government or any department,
agency or instrumentality thereof (including any state-owned enterprise),
political party, political campaign or public international organization,
in violation of the FCPA or (ii) otherwise taken any action which would
cause the Company or any of its Subsidiaries to be in violation of the
FCPA.
(d) To the Knowledge of the Company, neither the Company nor any of
its Subsidiaries, nor any director, officer, agent or employee of the
Company or any of its Subsidiaries, has, since December 30, 1999, acting on
behalf of the Company or any of its Subsidiaries violated any applicable
Law pertaining to export controls, antiboycott restrictions or trade
sanctions.
5.20 Environmental Matters. Except as set forth on Schedule 5.20 hereto:
(a) the operations of the Company and each of its Subsidiaries are,
and have been since December 30, 1999, in compliance in all material
respects with all applicable Environmental Laws, which compliance includes
obtaining, maintaining and complying with all material Permits required
under applicable Environmental Laws to operate its business;
(b) neither the Company nor any of its Subsidiaries is the subject of
any outstanding Order or Contract with any Governmental Body pursuant to
Environmental Laws which imposes material obligations on the Company or any
of its Subsidiaries;
(c) neither the Company nor any of its Subsidiaries is subject to any
pending claims or Legal Proceedings or, to the Knowledge of the Company,
threatened claims alleging noncompliance with or potential Liability under
Environmental Laws or has received any written communication alleging
noncompliance with or potential Liability under any Environmental Law; and
(d) to the Knowledge of the Company, there are no investigations of
the businesses of the Company or any of its Subsidiaries, or currently or
previously owned, operated or leased property of the Company or any of its
Subsidiaries pending or threatened which would reasonably be expected to
result in the Company or any of its Subsidiaries incurring material
Liability pursuant to any Environmental Law.
5.21 Accounts Receivable. The accounts receivable of the Company and its
Subsidiaries as of the date hereof are, to the extent not yet paid in full,
valid, genuine and existing and arose from bona fide sales of products or
services in the Ordinary Course of Business.
5.22 Inventories. All inventory held by the Company and its Subsidiaries is
usable and salable in the Ordinary Course of Business in all material respects
and is not physically damaged or obsolete in any material respects, subject, in
each case, to reserves, if any, for inventory write-down set forth in the
Balance Sheet.
26
5.23 Transactions with Related Persons; Affiliates. Except as set forth on
Schedule 5.23, the Company does not have any Liabilities, contractual or
otherwise, owed to or owing from, directly or indirectly, any Affiliate of the
Company (other than a Subsidiary) or any Stockholder.
5.24 Employees, Officers and Directors.
(a) Schedule 5.24(a) lists the following information as of the date
hereof for each employee of the Company and its Subsidiaries, including
each employee on leave of absence or layoff status: name, job title and
compensation paid or payable.
(b) Neither the Company nor any of its Subsidiaries is indebted to any
Stockholder, director, officer, employee or agent of the Company or any of
its Subsidiaries, except for amounts due as normal salaries, wages,
employee benefits and bonuses, and in reimbursement of ordinary expenses on
a current basis.
(c) No officer, director, employee or consultant of the Company or any
of its Subsidiaries is indebted to the Company or any of its Subsidiaries,
except for advances for ordinary business expenses on a basis consistent
with past practices.
(d) To the Knowledge of the Company, no current employee or current
officer or director of the Company or any of its Subsidiaries is a party
to, or is otherwise bound by, any agreement or arrangement, including any
confidentiality, non-competition or proprietary rights agreement, between
such employee, officer or director and any other Person that in any way
materially and adversely affects (i) the performance of his or her duties
as an employee, officer or director of the Company or any such Subsidiary
or (ii) the ability of the Company and its Subsidiaries to conduct the
business now being conducted by them. To the Knowledge of the Company, no
director, officer or key employee of the Company or any of its Subsidiaries
intends to terminate his or her employment.
5.25 Insurance. Schedule 5.25 lists the insurance policies maintained by
the Company and its Subsidiaries. To the Knowledge of the Company, such policies
evidence insurance in such amounts and against such risks and losses as are
generally maintained with respect to comparable companies and properties. All of
such insurance policies are in full force and effect, and neither the Company
nor any Subsidiary is in material default with respect to any of its obligations
under any of such insurance policies.
5.26 Books and Records and Financial Controls.
(a) True, correct and complete copies of the books of account, stock
record books and minute books of the Company and each of its Subsidiaries
for the past two years have been made available to Parent, and such books
and records have been maintained in accordance with good business practices
and in accordance with applicable Law. The minute books of the Company and
each of its Subsidiaries contain accurate and complete records in all
material respects of all meetings of the stockholders, the Board of
Directors or other governing bodies, and committees of the Board of
27
Directors or such other governing bodies, of such company, and no meeting
of any such stockholders, Board of Directors, other governing body or
committee has been held where the corporate actions were authorized for
which minutes or written consents have not been prepared and are not
contained in such minute books. At the Closing, all of such books and
records will be in the possession of the Company or its Subsidiaries.
(b) The Company and its Subsidiaries have established proper internal
accounting controls which provide reasonable assurance that (i) material
transactions are executed with management's authorization and (ii)
transactions are recorded as necessary to permit preparation of the
financial statements of the Company, and to maintain accountability for the
assets of the Company and its Subsidiaries.
5.27 Sufficiency of Property. The assets owned or leased by the Company and
its Subsidiaries constitute all of the property and property rights used or
necessary for the conduct of their respective businesses in the manner and to
the extent now conducted by them in all material respects.
5.28 Indebtedness. Except as set forth on Schedule 1.1(a) or Schedule 5.23,
the Company and its Subsidiaries do not have outstanding any indebtedness for
borrowed money from any Person.
5.29 Cash and Cash Equivalents. Of the cash and cash equivalents held by
the Company and its Subsidiaries, not more than $100,000 is held in currencies
other than Dollars or held in non-U.S. bank accounts.
5.30 Financial Advisors. Except for Citigroup Global Markets Inc., no
Person has acted, directly or indirectly, as a broker, finder or financial
advisor for the Company in connection with the transactions contemplated by this
Agreement and no Person is entitled to any fee or commission or like payment
from Parent in respect thereof. ISH shall be responsible for the payment of the
compensation of Citigroup Global Markets Inc., as provided in Section 10.5.
5.31 No Other Representations or Warranties; Schedules. Except for the
representations and warranties contained in this Article 5 (as modified by the
Schedules hereto), neither the Company nor any other Person makes any other
express or implied representation or warranty with respect the Company, its
Subsidiaries or the transactions contemplated by this Agreement, and the Company
disclaims any other representations or warranties, whether made by the Company
or any of its Affiliates, officers, directors, employees, agents or
representatives. Except for the representations and warranties contained in
Article 5 hereof (as modified by the Schedules hereto), the Company hereby
disclaims all liability and responsibility for any representation, warranty,
projection, forecast, statement, or information made, communicated, or furnished
(orally or in writing) to Parent or its Affiliates or representatives (including
any opinion, information, projection, or advice that may have been or may be
provided to Parent by any director, officer, employee, agent, consultant, or
representative of the Company or any of its Affiliates). The disclosure of any
matter or item in any schedule hereto shall not be deemed to constitute an
acknowledgment that any such matter is required to be disclosed.
28
ARTICLE 6
REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB
Parent and Merger Sub hereby represent and warrant to the Company that:
6.1 Organization and Good Standing. Parent is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware
and has all requisite corporate power and authority to own, lease and operate
properties and carry on its business. Merger Sub is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware and has all requisite corporate power and authority to own, lease and
operate properties and carry on its business.
6.2 Authorization of Agreement. Subject to receipt of the Parent Board
Approval, each of Parent and Merger Sub has full corporate power and authority
to execute and deliver this Agreement and each other agreement, document,
instrument or certificate contemplated by this Agreement or to be executed by
Parent or Merger Sub in connection with the consummation of the transactions
contemplated hereby and thereby (collectively, the "Parent Documents"), and to
consummate the transactions contemplated hereby and thereby. Subject to receipt
of the Parent Board Approval, the execution, delivery and performance by Parent
and Merger Sub of this Agreement and each Parent Document have been duly
authorized by all necessary corporate action on behalf of Parent and Merger Sub.
This Agreement has been, and each Parent Document will be at or prior to the
Closing, duly executed and delivered by Parent and Merger Sub and (assuming the
due authorization, execution and delivery by the other parties hereto and
thereto) this Agreement constitutes, and each Parent Document when so executed
and delivered will constitute, the legal, valid and binding obligation of Parent
and Merger Sub, enforceable against Parent and Merger Sub in accordance with its
terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium
and similar laws affecting creditors' rights and remedies generally, and
subject, as to enforceability, to general principles of equity, including
principles of commercial reasonableness, good faith and fair dealing (regardless
of whether enforcement is sought in a proceeding at law or in equity).
6.3 Conflicts; Consents of Third Parties.
(a) Except as set forth on Schedule 6.3(a) hereto, none of the
execution and delivery by Parent or Merger Sub of this Agreement or the
Parent Documents, the consummation of the transactions contemplated hereby
or thereby, or compliance by Parent or Merger Sub with any of the
provisions hereof or thereof will conflict with, or result in any violation
of or default (with or without notice or lapse of time, or both) under, or
give rise to a right of termination or cancellation under, any provision of
(i) the certificate of incorporation and by-laws or comparable
organizational documents of Parent or Merger Sub; (ii) any Contract or
Permit to which Parent or Merger Sub is a party or by which any of the
properties or assets of Parent or Merger Sub are bound; (iii) any Order
applicable to Parent or Merger Sub or by which any of the properties or
assets of Parent or Merger Sub are bound; or (iv) any applicable Law.
29
(b) No consent, waiver, approval, Order, Permit or authorization of,
or declaration or filing with, or notification to, any Person or
Governmental Body is required on the part of Parent or Merger Sub in
connection with the execution and delivery of this Agreement or the Parent
Documents or the compliance by Parent with any of the provisions hereof or
thereof compliance with the applicable requirements of the HSR Act (and any
similar Law enforced by any Governmental Antitrust Entity regarding
preacquisition notifications for the purpose of competition reviews), the
filing and recordation of the Certificate of Merger with the Secretary of
State of the State of Delaware.
6.4 Litigation. There are no Legal Proceedings pending or, to the knowledge
of Parent or Merger Sub, threatened that are reasonably likely to prohibit or
restrain the ability of Parent or Merger Sub to enter into this Agreement or any
Parent Documents or consummate the transactions contemplated hereby or thereby.
6.5 Financial Advisors. Except for X.X. Xxxxxx Securities Inc., no Person
has acted, directly or indirectly, as a broker, finder or financial advisor for
Parent or Merger Sub in connection with the transactions contemplated by this
Agreement. Parent shall be responsible for the payment of the compensation under
the arrangements referred to on such Schedule, as provided in Section 10.5, and
no other Person is entitled to any fee or commission or like payment in respect
thereof.
6.6 Financing. Parent and Merger Sub (i) have, and at the Closing will
have, sufficient internal funds (without giving effect to any unfunded financing
regardless of whether any such financing is committed) available to pay the
Merger Consideration and any expenses incurred by Parent and Merger Sub in
connection with the transactions contemplated by this Agreement, (ii) have, and
at the Closing will have, the resources and capabilities (financial or
otherwise) to perform its obligations under this Agreement and all Parent
Documents, and (iii) have not incurred any obligation, commitment, restriction
or Liability of any kind, which would impair or adversely affect such resources
and capabilities.
6.7 No Prior Activities. Except for obligations incurred in connection with
its incorporation or organization or the negotiation and consummation of this
Agreement and the transactions contemplated hereby, Merger Sub has neither
incurred any obligation or liability nor engaged in any business or activity of
any type or kind whatsoever or entered into any agreement or arrangement with
any Person.
6.8 Condition of the Business. Notwithstanding anything contained in this
Agreement to the contrary, Parent and Merger Sub acknowledge and agree that the
Company is not making any representations or warranties whatsoever, express or
implied, beyond those expressly given by the Company in Article 5 (as modified
by the Schedules hereto as supplemented or amended). Parent and Merger Sub
further represent that none of the Company or any of its Affiliates nor any
other Person has made any representation or warranty, express or implied, as to
the accuracy or completeness of any information regarding the Company or any of
its Subsidiaries, or the transactions contemplated by this Agreement not
expressly set forth in this Agreement, and none of the Company, any of its
30
Affiliates or any other Person will have or be subject to any liability to
Parent, Merger Sub or any other Person resulting from the distribution to
Parent, Merger Sub or their respective representatives or Parent's or Merger
Sub's use of, any such information. Parent and Merger Sub acknowledge that they
have conducted to their satisfaction, their own independent investigation of the
condition, operations and business of the Company and its Subsidiaries and, in
making its determination to proceed with the transactions contemplated by this
Agreement, Parent and Merger Sub have relied on the results of their own
independent investigation.
ARTICLE 7
REPRESENTATIONS AND WARRANTIES OF ISH
ISH hereby represents to Parent and Merger Sub that:
7.1 Organization and Good Standing. ISH is an exempt limited partnership,
duly organized, validly existing and in good standing under the laws of the
Cayman Islands and has all requisite partnership power and authority to own,
lease and operate its properties and to carry on its business as now conducted.
7.2 Authorization of Agreement. The general partner of ISH has all
requisite power, authority and legal capacity to execute and deliver on behalf
of ISH this Agreement and each other agreement, document or instrument or
certificate contemplated by this Agreement or to be executed by the ISH in
connection with the consummation of the transactions contemplated by this
Agreement (the "ISH Documents"), and to consummate the transactions contemplated
hereby and thereby. The execution and delivery of this Agreement and each of the
ISH Documents and the consummation of the transactions contemplated hereby and
thereby have been duly authorized by all required partnership action on the part
of ISH. This Agreement has been, and each of the ISH Documents will be at or
prior to the Closing, duly and validly executed and delivered by the general
partner of ISH on behalf of ISH, and (assuming the due authorization, execution
and delivery by the other parties hereto and thereto) this Agreement
constitutes, and each ISH Document, when so executed and delivered will
constitute, the legal, valid and binding obligation of ISH, enforceable against
ISH in accordance with its terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium and similar Laws affecting creditors' rights and
remedies generally, and subject, as to enforceability, to general principles of
equity, including principles of commercial reasonableness, good faith and fair
dealing (regardless of whether enforcement is sought in a proceeding at law or
in equity).
7.3 Conflicts; Consents of Third Parties.
(a) None of the execution and delivery by the general partner of ISH
of this Agreement or the ISH Documents, the consummation of the
transactions contemplated hereby or thereby, or compliance by ISH with any
of the provisions hereof or thereof will conflict with, or result in any
violation of or default (with or without notice or lapse of time, or both)
under, or give rise to a right of termination or cancellation under, any
31
provision of (i) certificate of limited partnership or the limited
partnership agreement of ISH; (ii) any Contract or Permit to which ISH is a
party or by which any of the properties or assets of ISH are bound; (iii)
any Order applicable to ISH or by which any of the properties or assets of
ISH are bound; or (iv) any applicable Law.
(b) Except as set forth on Schedule 7.3(b), no consent, waiver,
approval, Order, Permit or authorization of, or declaration or filing with,
or notification to, any Person or Governmental Body is required on the part
of ISH in connection with the execution and delivery of this Agreement or
the ISH Documents, or the compliance by ISH with any of the provisions
hereof or thereof, the consummation of the transactions contemplated hereby
or thereby, except for such consents the failure of which would not have a
material adverse effect on the ISH's ability to consummate the transactions
contemplated hereby or thereby.
7.4 Ownership of Shares. Assuming the truth and accuracy when made of the
representations and warranties of Parent in Section 4.1(c) and Section 4.2(b) of
that certain Stock Purchase Agreement dated as of August 5, 1999, as amended, by
and among Parent, Calgene LLC and Stoneville Holding Corp., ISH is the legal and
beneficial owner of 993,066 shares of Company Common Stock.
7.5 Litigation. There are no Legal Proceedings pending or, to the knowledge
of ISH, threatened that are reasonably likely to prohibit or restrain the
ability of ISH to enter into this Agreement or any ISH Documents or consummate
the transactions contemplated hereby or thereby.
7.6 Financial Advisors. Except for Citigroup Global Markets Inc., no Person
has acted, directly or indirectly, as a broker, finder or financial advisor for
the Company in connection with the transactions contemplated by this Agreement
and no Person is entitled to any fee or commission or like payment from Parent
in respect thereof. ISH shall be responsible for the payment of the compensation
of Citigroup Global Markets Inc., as provided in Section 10.5.
ARTICLE 8
COVENANTS
8.1 Access to Information. Prior to the Closing Date, Parent shall be
entitled, through its officers, employees and representatives (including its
legal advisors and accountants), to make such investigation of the properties,
businesses and operations of the Company and its Subsidiaries and such
examination of the books and records and Tax reporting positions of the Company
and its Subsidiaries as it reasonably requests and to make extracts and copies
of such books and records at its own expense. Any such investigation and
examination shall be conducted during regular business hours and under
reasonable circumstances and shall be subject to restrictions under applicable
Law. The Company shall cause the officers, employees, consultants, agents,
accountants, attorneys and other representatives of the Company and its
Subsidiaries to cooperate with Parent and Parent's representatives in connection
with such investigation and examination, and Parent and its representatives
32
shall cooperate with the Company and its representatives and shall use their
commercially reasonable efforts to minimize any disruption to the business.
Notwithstanding anything herein to the contrary, no such investigation or
examination shall be permitted to the extent that it would require the Company
or any of its Subsidiaries to disclose information subject to attorney-client
privilege or conflict with any confidentiality obligations to which the Company
or any of its Subsidiaries is bound; provided, however, that the Company shall
request, but shall not be required to obtain, a waiver of any such
confidentiality obligations upon Parent's reasonable request. Notwithstanding
anything to the contrary contained herein, prior to the Closing, without the
prior written consent of the Company, which may be withheld for any reason, (i)
Parent shall not contact any suppliers to, or customers of, the Company or any
Subsidiary, other than in the ordinary course of business of the Parent or any
of its Affiliates with respect to matters not involving the Company or its
Subsidiaries, and (ii) Parent shall have no right to perform invasive or
subsurface investigations of the properties or facilities of the Company or any
of its Subsidiaries.
8.2 Conduct of the Business Pending the Closing.
(a) Prior to the Closing, except (i) as set forth on Schedule 8.2(a),
(ii) as required by applicable Law, (iii) as otherwise contemplated by this
Agreement or (iv) with the prior written consent of Parent (which consent
shall not be unreasonably withheld, delayed or conditioned), the Company
shall, and shall cause its Subsidiaries to:
(i) conduct the respective businesses of the Company and its
Subsidiaries only in the Ordinary Course of Business;
(ii) use its commercially reasonable efforts to (A) preserve the
present business operations, organization and goodwill of the Company
and its Subsidiaries, and (B) preserve the present relationships with
customers and suppliers of the Company and its Subsidiaries; and
(iii) use its commercially reasonable efforts to acquire from
each of its licensees all inventories of seed of cotton varieties
which include genes conferring resistance to bromoxynil herbicide.
(b) Except (i) as set forth on Schedule 8.2(b), (ii) as required by
applicable Law, (iii) as otherwise contemplated by this Agreement or (iv)
with the prior written consent of Parent (which consent shall not be
unreasonably withheld, delayed or conditioned), the Company shall not, and
shall not permit its Subsidiaries to:
(i) declare, set aside, make or pay any dividend or other
distribution in respect of the capital stock of the Company or
repurchase, redeem or otherwise acquire any outstanding shares of the
capital stock or other securities of, or other ownership interests in,
the Company or any of its Subsidiaries;
(ii) issue or sell any shares of capital stock or other
securities of the Company or any of its Subsidiaries or grant options,
33
warrants, calls or other rights to purchase or otherwise acquire
shares of the capital stock or other securities of the Company or any
of its Subsidiaries;
(iii) effect any recapitalization, reclassification or like
change in the capitalization of the Company or any of its
Subsidiaries;
(iv) amend the certificate of incorporation or by-laws or
comparable organizational documents of the Company or any of its
Subsidiaries;
(v) (A) materially increase the annual level of compensation of
any director or executive officer of the Company or any of its
Subsidiaries, (B) grant any unusual or extraordinary bonus, benefit or
other direct or indirect compensation to any director or executive
officer, (C) materially increase the coverage or benefits available
under any (or create any new) severance pay, termination pay, vacation
pay, company awards, salary continuation for disability, sick leave,
deferred compensation, bonus or other incentive compensation,
insurance, pension or other employee benefit plan or arrangement made
to, for, or with any of the employees of the Company or any of its
Subsidiaries or otherwise modify or amend or terminate any such plan
or arrangement or (D) enter into any employment, deferred
compensation, severance, consulting, non-competition or similar
agreement (or amend any such agreement) to which the Company or any of
its Subsidiaries is a party or involving any employee of the Company
or any of its Subsidiaries, except, in each case, as required by the
terms of any Company Benefit Plans;
(vi) acquire any material properties or assets or sell, assign,
license, transfer, convey, lease or otherwise dispose of any of the
material properties or assets of the Company or any of its
Subsidiaries (except pursuant to an existing Contract for fair
consideration in the Ordinary Course of Business or for the purpose of
disposing of obsolete or worthless assets);
(vii) other than in the Ordinary Course of Business, cancel or
compromise any material debt or claim or waive or release any material
right of the Company or any of its Subsidiaries;
(viii) except as provided for in the Company's Annual Budget for
the 2005 fiscal year (a copy of which has been delivered to Parent),
enter into any commitment for capital expenditures of the Company and
its Subsidiaries in excess of $250,000 for any individual commitment
and $1,000,000 for all commitments in the aggregate;
(ix) enter into, modify or terminate any labor or collective
bargaining agreement or, through negotiations or otherwise, make any
commitment or incur any liability to any labor organizations;
(x) enter into or agree to enter into any merger or consolidation
with any corporation or other entity, or acquire the securities of any
other Person;
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(xi) enter into or modify any Contract with any Stockholder or
any Affiliate of any Stockholder;
(xii) except to the extent required by Law, make or rescind any
material election relating to Taxes or settle or compromise any claim,
investigation, audit or controversy relating to a material amount of
Taxes;
(xiii) except to the extent required by Law or GAAP, make any
material change to any of its methods of accounting or methods of
reporting revenue and expenses or accounting practices; or
(xiv) agree to do anything prohibited by this Section 8.2(b).
8.3 Consents. The Parent and the Company shall use (and the Company shall
cause its Subsidiaries to use) their commercially reasonable efforts, to obtain
at the earliest practicable date all consents and approvals required to
consummate the transactions contemplated by this Agreement, including the
consents and approvals referred to in Sections 5.3(b) and 6.3(b) hereof (or the
Schedules thereto), provided, however, that no party shall be obligated to pay
any consideration to any third party from whom consent or approval is requested.
8.4 Regulatory Approvals.
(a) Subject to the terms and conditions herein provided, each of the
parties agrees to use all commercially reasonable efforts to take, or cause
to be taken, all action, and to do, or cause to be done as promptly as
practicable, all things necessary, proper and advisable under applicable
Laws to consummate and make effective as promptly as practicable the
transactions contemplated by this Agreement. Subject to appropriate
confidentiality protections, each party hereto shall furnish to the other
parties such necessary information and reasonable assistance as such other
party may reasonably request in connection with the foregoing.
(b) Each of the parties shall cooperate with one another and use all
commercially reasonable efforts to prepare all necessary documentation
(including furnishing all information required under the Competition Laws
to effect promptly all necessary filings and to obtain all consents,
waivers and approvals necessary to consummate the transactions contemplated
by this Agreement. Each party hereto shall provide to the other parties
copies of all correspondence between it (or its advisors) and any
Governmental Antitrust Entity relating to the transactions contemplated by
this Agreement or any of the matters described in this Section 8.4. Each
such party shall promptly inform the other parties hereto of any oral
communication with, and provide copies of written communications with, any
Governmental Body regarding any such filings or any such transaction. No
party hereto shall independently participate in any formal meeting with any
Governmental Body in respect of any such filings, investigation, or other
inquiry without giving the other parties hereto prior notice of the meeting
and, to the extent permitted by such Governmental Body, the opportunity to
attend and/or participate. Subject to applicable Law, the parties hereto
35
will consult and cooperate with one another in connection with any
analyses, appearances, presentations, memoranda, briefs, arguments,
opinions and proposals made or submitted by or on behalf of any party
hereto relating to proceedings under the Competition Laws.
(c) Without limiting the generality of the undertakings pursuant to
this Section 8.4, the parties hereto shall provide or cause to be provided
as promptly as practicable to any Governmental Antitrust Entity information
and documents requested by any Governmental Antitrust Entity or necessary,
proper or advisable to permit consummation of the transactions contemplated
by this Agreement, including filing any notification and report form and
related material required under the HSR Act (and any similar Law enforced
by any Governmental Antitrust Entity regarding preacquisition notifications
for the purpose of competition reviews) as promptly as practicable, but in
no event later than ten (10) Business Days after the date hereof for
filings required under the HSR Act and twenty (20) Business Days after the
date hereof for all other filings, and thereafter to respond promptly to
any request for additional information or documentary material that may be
made under the HSR Act (and any similar Law enforced by any Governmental
Antitrust Entity regarding preacquisition notifications for the purpose of
competition reviews).
(d) Further, each of the parties hereto shall use its commercially
reasonable efforts to resolve such objections, if any, as may be asserted
by any Governmental Antitrust Entity with respect to the transactions
contemplated by this Agreement under any Competition Law. In connection
therewith, if any Legal Proceeding is instituted (or threatened to be
instituted) challenging any transaction contemplated by this Agreement as
in violation of any Competition Law, each of parties hereto shall cooperate
and use its commercially reasonable efforts to contest and resist any such
Legal Proceeding, and to have vacated, lifted, reversed or overturned any
decree, judgment, injunction or other order whether temporary, preliminary
or permanent, that is in effect and that prohibits, prevents or restricts
consummation of the transactions contemplated by this Agreement, including
by pursuing all available avenues of administrative and judicial appeal and
all available legislative action, unless, by mutual agreement, Parent and
the Company decide that litigation is not in their respective best
interests. Each of Parent and the Company shall use its commercially
reasonable efforts to take such action as may be required to cause the
expiration of the notice periods under the Competition Laws with respect to
such transactions as promptly as possible after the execution of this
Agreement. In connection with and without limiting the foregoing, each of
Parent and the Company agree to use its commercially reasonable efforts to
take promptly any and all steps necessary to avoid or eliminate each and
every impediment under any Competition Laws that may be asserted by any
Governmental Antitrust Entity, so as to enable the parties to close the
transactions contemplated by this Agreement as expeditiously as possible,
in order to avoid the entry of, or to effect the dissolution of, any
decree, order, judgment, injunction, temporary restraining order or other
order in any suit or preceding, that would otherwise have the effect of
preventing or materially delaying the consummation of the transactions
contemplated by this Agreement.
8.5 Further Assurances. Each of Parent and the Company shall use (and the
Company shall cause each of its Subsidiaries to use) its commercially reasonable
36
efforts to (i) take all actions necessary or appropriate to consummate the
transactions contemplated by this Agreement and (ii) cause the fulfillment at
the earliest practicable date of all of the conditions to their respective
obligations to consummate the transactions contemplated by this Agreement.
8.6 Confidentiality. Parent and Merger Sub acknowledge that the information
provided to them in connection with this Agreement and the transactions
contemplated hereby is subject to the terms of the confidentiality agreement
between Parent and Citigroup Global Markets Inc., on behalf of ISH, dated
October 21, 2004 (the "Confidentiality Agreement"), the terms of which are
incorporated herein by reference. Effective upon, and only upon, the Closing
Date, the Confidentiality Agreement shall terminate.
8.7 Indemnification, Exculpation and Insurance.
(a) From and after the Closing Date, Parent shall, and shall cause the
Surviving Corporation to, indemnify, defend and hold harmless, to the
fullest extent permitted under applicable Law, the individuals who on or
prior to the Closing Date were directors, officers or employees of the
Company or any of its Subsidiaries (collectively, the "Indemnitees") with
respect to all acts or omissions by them in their capacities as such or
taken at the request of the Company or any of its Subsidiaries at any time
prior to the Closing Date. Parent agrees that all rights of the Indemnitees
to indemnification and exculpation from liabilities for acts or omissions
occurring at or prior to the Closing Date as provided in the respective
certificate of incorporation or by-laws or comparable organizational
documents of the Company or any of its Subsidiaries as now in effect, and
any indemnification agreements or arrangements of the Company or any of its
Subsidiaries shall survive the Closing Date and shall continue in full
force and effect in accordance with their terms. Such rights shall not be
amended, or otherwise modified in any manner that would adversely affect
the rights of the Indemnitees, unless such modification is required by Law.
In addition, Parent shall, or shall cause the Surviving Corporation to, pay
or reimburse any expenses of any Indemnitee under this Section 8.7, as
incurred to the fullest extent permitted under applicable Law, provided
that the person to whom expenses are advanced provides an undertaking to
repay such advances to the extent required by applicable Law.
(b) Parent, from and after the Closing Date, shall cause (i) the
certificate of incorporation and by-laws or comparable organizational
documents of the Surviving Corporation to contain provisions no less
favorable to the Indemnitees with respect to limitation of certain
liabilities of directors, officers, employees and agents and
indemnification than are set forth as of the date of this Agreement in the
certificate of incorporation and by-laws of the Company and (ii) the
certificate of incorporation and by-laws or comparable organizational
documents of each Subsidiary of Parent to contain the current provisions
regarding indemnification of directors, officers, employees and agents
which provisions in each case shall not be amended, repealed or otherwise
modified in a manner that would adversely affect the rights thereunder of
the Indemnitees.
37
(c) The Indemnitee shall have the right (but not the obligation) to
control the defense of, including the investigation of, any litigation,
claim or proceeding (each, a "Claim") relating to any acts or omissions
covered under this Section 8.7 with counsel selected by the Indemnitee;
provided, however, that (i) Parent and the Surviving Corporation shall be
permitted to participate in the defense of such Claim at their own expense
and (ii) Parent shall not be liable for any settlement effected without its
written consent, which consent shall not be unreasonably withheld or
delayed.
(d) In the event any Claim is asserted or made, any determination
required to be made with respect to whether an Indemnitee's conduct
complies with the standards set forth under applicable Law, the applicable
organizational documents of the Surviving Corporation, Parent or any of its
Subsidiaries or any indemnification agreements or arrangements of the
Surviving Corporation, Parent or any of its Subsidiaries, as the case may
be, shall be made by independent legal counsel selected by such Indemnitee.
(e) Each of Parent and the Indemnitee shall cooperate, and cause their
respective Affiliates to cooperate, in the defense of any Claim and shall
provide access to properties and individuals as reasonably requested and
furnish or cause to be furnished records, information and testimony, and
attend such conferences, discovery proceedings, hearings, trials or
appeals, as may be reasonably requested in connection therewith.
(f) The Surviving Corporation shall provide or maintain in effect for
six (6) years from the Effective Time, through the purchase of "run-off"
coverage or otherwise, directors' and officers' and corporate liability
insurance covering those individuals who are covered by the directors' and
officers' and corporate liability insurance policy or policies provided for
directors and officers of the Company and its Subsidiaries as of the date
hereof (the "Existing Policy") on terms (other than with respect to minimum
aggregate limits of liability for directors' and officers' and corporate
liability insurance coverage) comparable in all respects to the Existing
Policy and such coverage shall contain minimum aggregate limits of
liability for directors' and officers' and corporate liability insurance
coverage for directors and officers of the Company and its Subsidiaries
with the amount of coverage at least equal to that of the Existing Policy
and deductibles no larger than those customary for such type of insurance
coverage.
(g) The provisions of this Section 8.7: (i) are intended to be for the
benefit of, and shall be enforceable by, each Indemnitee, his or her heirs
and his or her representatives; and (ii) are in addition to, and not in
substitution for, any other rights to indemnification or contribution that
any such person may have by Contract or otherwise.
(h) In the event that Parent, the Surviving Corporation or any of
their respective successors or assigns (i) consolidates with or merges into
any other Person and is not the continuing or surviving corporation or
entity of such consolidation or merger; or (ii) transfers or conveys all or
substantially all of its properties and assets to any Person, then, and in
each such case, proper provision shall be made so that the successors and
assigns of Parent shall assume all of the obligations thereof set forth in
this Section 8.7.
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(i) The obligations of Parent and the Surviving Corporation under this
Section 8.7 shall not be terminated or modified in such a manner as to
adversely affect any Indemnitee to whom this Section 8.7 applies without
the consent of the affected Indemnitee (it being expressly agreed that the
Indemnitees to whom this Section 8.7 applies shall be third party
beneficiaries of this Section 8.7).
8.8 Preservation of Records. Parent shall, and shall cause the Surviving
Corporation to, preserve and keep the records held by them relating to the
respective businesses of the Company and its Subsidiaries for a period of seven
(7) years from the Closing Date (or longer if required by applicable Law) and
shall make such records and personnel available to the other and to any
Stockholder as may be reasonably required by such party in connection with,
among other things, any insurance claims by, Legal Proceedings or Tax audits
against or governmental investigations of the Stockholders or any of their
Affiliates.
8.9 Publicity.
(a) None of the Company, Merger Sub, Parent or ISH shall issue any press
release or public announcement or comment concerning this Agreement or the
transactions contemplated hereby without obtaining the prior written approval of
the other party hereto, which approval will not be unreasonably withheld or
delayed, unless, in the judgment of the Company or Parent, disclosure is
otherwise required by applicable Law or under the rules of any securities
exchange on which the securities of the Parent are listed, provided that, to the
extent required by applicable Law, the party intending to make such release
shall use its commercially reasonable efforts consistent with applicable Law to
consult with the other party with respect to the text thereof. Unless otherwise
required by applicable Law, no press release shall issue until after the receipt
of the Parent Board Approval.
(b) Each of Parent, Merger Sub, the Company and ISH agrees that the terms
of this Agreement shall not be disclosed or otherwise made available to the
public and that copies of this Agreement shall not be publicly filed or
otherwise made available to the public, except where such disclosure,
availability or filing is required by applicable Law and only to the extent
required by such Law or under the rules of any securities exchange on which the
securities of the Parent are listed. In the event that such disclosure,
availability or filing is required by applicable Law, each of Parent, the
Company agrees to use its commercially reasonable efforts to obtain
"confidential treatment" of this Agreement and to redact such terms of this
Agreement the other party shall request.
(c) Parent and Merger Sub acknowledge that prior to the execution of this
Agreement, the Company and ISH have been engaged in an auction process related
to the sale of the Company and the sale of EGI Ltd. As a result of the execution
of this Agreement, the Company and ISH have agreed that during the period
commencing on the date hereof and ending at 10:00 p.m. (New York time) on
February 18, 2005 (the "Standstill Period") not to (i) actively pursue the
current auction process or (ii) disclose the identity of Parent or Merger Sub,
39
the fact that this Agreement has been signed, or the amount of the Merger
Consideration; provided, however, that nothing herein shall prevent the Company
or ISH, during the Standstill Period, from having discussions with participants
in the current auction process that disclose the fact that the Company has
agreed to exclusivity with a third party. If the Parent Board Approval is
received on or prior to the end of the Standstill Period, the Company and ISH
shall terminate the current auction process concurrent with the press release
announcing the transaction evidenced by this Agreement.
8.10 Use of Name. Parent shall, and shall cause the Surviving Corporation
to, (i) as soon as practicable after the Closing Date and in any event within
twelve months following the Closing Date, cease to make any use of the name
"Emergent Genetics," or any service marks, trademarks, trade names, identifying
symbols, logos, emblems, signs or insignia related thereto or containing or
comprising the foregoing, including any name or xxxx confusingly similar thereto
(collectively, the "Subject Marks"), and (ii) immediately after the Closing,
cease to hold itself out as having any affiliation with the Stockholders or any
of the Stockholders' Affiliates. In furtherance thereof, as promptly as
practicable but in no event later than twelve months following the Closing Date,
Parent shall and shall cause the Surviving Corporation to remove, strike over or
otherwise obliterate all Subject Marks from all materials including any
vehicles, business cards, schedules, stationery, packaging materials, displays,
signs, promotional materials, manuals, forms, computer software and other
materials.
8.11 Employment and Employee Benefits.
(a) Parent covenants and agrees to, and shall cause the Company to,
(i) for a period of one year following the Closing Date, provide
compensation and benefits to the employees of the Company and its
Subsidiaries who remain employed immediately prior to the Closing at levels
which are similar, on an overall basis, to the levels of compensation and
benefits as in effect prior to the Closing and (ii) provide severance
compensation and benefits to any such employees whose employment is
terminated during the one-year period following the Closing Date at levels
at least equivalent to the levels of such compensation and benefits to
which such employees would have been entitled if their employment had been
terminated immediately prior to the Closing. Individuals who continue their
employment with the Companies following the Closing Date are hereinafter
referred to as the "Continuing Employees."
(b) For purposes of eligibility and vesting (but not benefit accrual)
under the employee benefit plans of Parent or the Surviving Corporation
providing benefits to Continuing Employees (the "Parent Plans"), Parent and
the Surviving Corporation shall credit each Continuing Employee with his or
her years of service with such Company, its Subsidiaries and any
predecessor entities, to the same extent as such Continuing Employee was
entitled immediately prior to the Closing to credit for such service under
any similar Employee Benefit Plan. The Parent Plans shall not deny
Continuing Employees coverage on the basis of pre-existing conditions and
shall credit such Continuing Employees for any deductibles and
out-of-pocket expenses paid in the year of initial participation in the
Parent Plans.
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8.12 Supplementation and Amendment of Schedules. From time to time prior to
the Closing, the Company shall have the right to supplement or amend the
Schedules with respect to any matter hereafter arising or discovered after the
delivery of the Schedules pursuant to this Agreement; provided, however, if the
Closing shall occur, then Parent and Merger Sub shall be deemed to have waived
any right or claim pursuant to the terms of this Agreement or otherwise, with
respect to any and all matters disclosed pursuant to any such supplement or
amendment at or prior to the Closing.
8.13 Transition Services. Concurrently with the Closing, Parent shall enter
into a transition services agreement (the "India Transition Services
Agreement"), with Emergent Genetics India Limited ("EGI Limited") pursuant to
which, Parent shall, or shall cause the Company and/or its Subsidiaries to,
provide, at cost, all functions and services that are provided to EGI Limited
and its subsidiaries as of the date hereof until the earlier of (i) a period of
one (1) year from the Closing Date or (ii) the closing of the transactions
contemplated by the India Purchase Agreement. Concurrently with the Closing,
Parent shall also enter into a transition services agreement (the "Danish
Transition Services Agreement"), with Emergent Genetics Vegetable A/S ("EG
Denmark") pursuant to which, Parent shall, or shall cause the Company and/or its
Subsidiaries to, provide, at cost, all functions and services that are being
provided to EG Denmark and its subsidiaries by the Company and/or its
Subsidiaries as of the date hereof for a period of six (6) months from the
Closing Date.
8.14 Closing Transactions.
(a) Immediately prior to the Merger or, should the India Closing occur
prior to the Closing, immediately prior to the India Closing, the Company
shall sell all the shares of preferred stock of EGI Limited held by the
Company to ISH for cash at their fair market value.
(b) Immediately prior to the Merger, the Company shall sell each of
the Contracts set forth on Schedule 8.14(b) to ISH for cash at its fair
market value.
(c) Immediately prior to the Merger, the Company shall cause each of
the Contracts set forth on Schedule 8.14(c) to be terminated and of no
further force and effect.
ARTICLE 9
CONDITIONS TO CLOSING
9.1 Conditions Precedent to Obligations of Parent and Merger Sub. The
obligation of Parent and Merger Sub to consummate the transactions contemplated
by this Agreement is subject to the fulfillment, on or prior to the Closing
Date, of each of the following conditions (any or all of which may be waived by
Parent in whole or in part to the extent permitted by applicable Law):
(a) (i) the representations and warranties of the Company set forth in
this Agreement qualified as to materiality shall be true and correct, and
41
those not so qualified shall be true and correct in all material respects,
at and as of the Closing Date (without regard to any supplement or
amendment to the Schedules pursuant to Section 8.12) as though made on the
Closing Date, except to the extent such representations and warranties
relate to an earlier date (in which case such representations and
warranties qualified as to materiality shall be true and correct, and those
not so qualified shall be true and correct in all material respects, on and
as of such earlier date (without regard to any supplement or amendment to
the Schedules pursuant to Section 8.12)), in each case except as in the
aggregate would not have a Material Adverse Effect, (ii) the
representations and warranties of the Company set forth in Section 5.19(c)
shall be true and correct in all respects at and as of the Closing Date as
though made on the Closing Date and (iii) Parent shall have received a
certificate signed by an authorized officer of the Company, dated the
Closing Date, to the foregoing effect;
(b) the Company shall have performed and complied in all material
respects with all covenants required by this Agreement to be performed or
complied with by them on or prior to the Closing Date, and Parent shall
have received a certificate signed by an authorized officer of the Company,
dated the Closing Date, to the foregoing effect;
(c) there shall not be in effect any Law or Order restraining,
enjoining or otherwise prohibiting the consummation of the transactions
contemplated hereby;
(d) the waiting period applicable to the transactions contemplated by
this Agreement under the HSR Act (and any similar Law enforced by any
Governmental Antitrust Entity regarding preacquisition notifications for
the purpose of competition reviews) shall have expired or early termination
shall have been granted;
(e) Parent shall have received duly executed and acknowledged
affidavits of the Company, in form substantially identical to those
attached hereto as Exhibit A in accordance with Treasury Regulation
Sections 1.1445-2(c)(3), 1,897-2(g) and 1.897-2(h), certifying that each
"interest" being acquired by Parent in the Company (within the meaning of
Section 897(c)(1) of the Code) is not a "United States real property
interest" within the meaning of Section 897(c) of the Code;
(f) Parent shall have received final payoff certificates with respect
to the Company Debt from the lender parties thereof (the "Payoff
Certificates"); and
(g) there shall not have occurred any event, change, occurrence or
circumstance that has had or reasonably would be expected to have a
Material Adverse Effect.
9.2 Conditions Precedent to Obligations of the Company. The obligations of
the Company to consummate the transactions contemplated by this Agreement are
subject to the fulfillment, prior to or on the Closing Date, of each of the
following conditions (any or all of which may be waived by the Company in whole
or in part to the extent permitted by applicable Law):
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(a) The representations and warranties of Parent and Merger Sub set
forth in this Agreement qualified as to materiality shall be true and
correct, and those not so qualified shall be true and correct in all
material respects, at and as of the Closing Date as though made on the
Closing Date, except to the extent such representations and warranties
relate to an earlier date (in which case such representations and
warranties qualified as to materiality shall be true and correct, and those
not so qualified shall be true and correct in all material respects, on and
as of such earlier date), and the Company shall have received a certificate
signed by an authorized officer of Parent, dated the Closing Date, to the
foregoing effect;
(b) Parent and Merger Sub shall have performed and complied in all
material respects with all covenants required by this Agreement to be
performed or complied with by Parent or Merger Sub on or prior to the
Closing Date, and the Company shall have received a certificate signed by
an authorized officer of Parent, dated the Closing Date, to the foregoing
effect;
(c) there shall not be in effect any Law or Order restraining,
enjoining or otherwise prohibiting the consummation of the transactions
contemplated hereby;
(d) the waiting period applicable to the transactions contemplated by
this Agreement under the HSR Act (and any similar Law enforced by any
Governmental Antitrust Entity regarding preacquisition notifications for
the purpose of competition reviews) shall have expired or early termination
shall have been granted;
(e) Parent shall have delivered an executed counterpart by Parent to
the India Transition Services Agreement and the Denmark Transition Services
Agreement; and
(f) Parent shall have delivered, or caused to be delivered to the
Company evidence of the payment of funds to the lender parties as set forth
in the Payoff Certificates and payment of the Merger Consideration in
accordance with Article 3.
9.3 Frustration of Closing Conditions. None of the Company, Parent or the
Merger Sub may rely on the failure of any condition set forth in Sections 9.1 or
9.2, as the case may be, if such failure was caused by such party's failure to
comply with any provision of this Agreement.
ARTICLE 10
MISCELLANEOUS
10.1 Limitations of Representations, Warranties and Covenants. Except for
the representation set forth in Section 7.4 (which shall survive the Closing
Date), the representations and warranties of the parties made herein or in any
other agreement delivered pursuant to this Agreement shall terminate upon (and
shall not survive) the Closing Date.
43
10.2 Exclusive Remedies.. Parent's and Merger Sub's sole and exclusive
remedy (i) for a breach of any representation or warranty made by the Company or
ISH herein or in any document delivered pursuant hereto (other than a claim made
after the Closing Date based upon a breach of the representation set forth in
Section 7.4), or (ii) for a breach of any covenant made by the Company or ISH
herein or in any document delivered pursuant hereto and required to be performed
by the Company on or prior to the Closing Date, shall, in either case, be
limited to Parent's right to terminate this Agreement pursuant to and to the
extent permitted by (i) Section 4.1(a) as a result of Closing not having
occurred by the Outside Date due to such breach or (ii) Section 4.1(f); and
Parent and Merger Sub hereby waive and release the Company and ISH from any and
all other claims or causes of action (whether by statute or in contract or tort)
that may be based upon, arise out of, or relate to such breaches. Parent's and
Merger Sub's sole and exclusive remedy for any claim made after the Closing Date
based upon, arising out of, or related to a breach of the representation made by
ISH in Section 7.4, shall be limited to the recovery of the aggregate Merger
Consideration, as adjusted, received by ISH for its Company Common Stock as to
which there is a breach of Section 7.4.
10.3 No Consequential Damages. Notwithstanding anything to the contrary
elsewhere in this Agreement, no party shall, in any event, be liable to any
other Person for any tort, consequential, incidental, indirect, special or
punitive damages of such other Person, including loss of future revenue, income
or profits, diminution of value or loss of business reputation or opportunity
relating to the breach or alleged breach hereof (provided that such limitation
shall not limit the Company's right to recover contract damages in connection
with Parent's failure to close in violation of this Agreement).
10.4 Payment of Sales, Use or Similar Taxes. All sales, use, transfer,
intangible, recordation, documentary stamp or similar Taxes or charges, of any
nature whatsoever, applicable to, or resulting from, the transactions
contemplated by this Agreement shall be borne by Parent.
10.5 Expenses. Except as otherwise provided in this Agreement, each of the
Company, Parent and Merger Sub shall bear its own expenses incurred in
connection with the negotiation and execution of this Agreement and each other
agreement, document and instrument contemplated by this Agreement and the
consummation of the transactions contemplated hereby and thereby ("Deal
Expenses"); provided, however, that ISH shall bear the Company's Deal Expenses
related to financial advisors, legal advisors and independent accountants to
extent not paid by the Company on or prior to Closing.
10.6 Entire Agreement; Amendments and Waivers. This Agreement (including
the schedules and exhibits hereto) and the Confidentiality Agreement represent
the entire understanding and agreement between the parties hereto with respect
to the subject matter hereof. This Agreement can be amended, supplemented or
changed, and any provision hereof can be waived, only by written instrument
making specific reference to this Agreement signed by the party against whom
enforcement of any such amendment, supplement, modification or waiver is sought.
No action taken pursuant to this Agreement, including any investigation by or on
behalf of any party, shall be deemed to constitute a waiver by the party taking
44
such action of compliance with any representation, warranty, covenant or
agreement contained herein. The waiver by any party hereto of a breach of any
provision of this Agreement shall not operate or be construed as a further or
continuing waiver of such breach or as a waiver of any other or subsequent
breach. No failure on the part of any party to exercise, and no delay in
exercising, any right, power or remedy hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of such right, power or remedy
by such party preclude any other or further exercise thereof or the exercise of
any other right, power or remedy.
10.7 Governing Law. This Agreement, and all claims or causes of action
(whether in contract or tort) that may be based upon, arise out of or relate to
this Agreement or the negotiation, execution or performance of this Agreement
(including any claim or cause of action based upon, arising out of or related to
any representation or warranty made in or in connection with this Agreement),
shall be governed by and construed in accordance with the internal Laws of the
State of New York. Any action against any party relating to the foregoing shall
be brought in any federal or state court of competent jurisdiction located
within the State of New York, and the parties hereto hereby irrevocably submit
to the non-exclusive jurisdiction of any federal or state court located within
the State of New York over any such action. The parties hereby irrevocably
waive, to the fullest extent permitted by applicable Law, any objection which
they may now or hereafter have to the laying of venue of any such action brought
in such court or any defense of inconvenient forum for the maintenance of such
action.
10.8 Notices. All notices and other communications under this Agreement
shall be in writing and shall be deemed given (i) when delivered personally by
hand (with written confirmation of receipt), (ii) when sent by facsimile (with
written confirmation of transmission) or (iii) one Business Day following the
day sent by overnight courier (with written confirmation of receipt), in each
case at the following addresses and facsimile numbers (or to such other address
or facsimile number as a party may have specified by notice given to the other
party pursuant to this provision):
If to the Company, to:
Emergent Genetics, Inc
0000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: X. X. Xxxxxx, Xx.
With copies to:
International Seed Holdings, L.P.
c/o Hicks, Muse, Xxxx & Xxxxx Incorporated
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
45
Facsimile: (000) 000-0000
Attention: Xxxxx Xxxxxx
and
Weil, Gotshal & Xxxxxx LLP
000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxx, Esq.
If to Parent or Merger Sub, to:
Monsanto Company
000 X. Xxxxxxxxx Xxxxxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: General Counsel's Office
With a copy to:
Xxxxx Xxxx LLP
One Metropolitan Square
000 X. Xxxxxxxx, Xxxxx 0000
Xx. Xxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxx X. XxXxxxxx
If to ISH or Stockholder Representative, to:
International Seed Holdings, L.P.
c/o Hicks, Muse, Xxxx & Xxxxx Incorporated
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxx Xxxxxx
With a copy to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
46
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxx, Esq.
10.9 Severability. If any term or other provision of this Agreement is
invalid, illegal, or incapable of being enforced by any Law or public policy,
all other terms or provisions of this Agreement shall nevertheless remain in
full force and effect so long as the economic or legal substance of the
transactions contemplated hereby is not affected in any manner materially
adverse to any party. Upon such determination that any term or other provision
is invalid, illegal, or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in an acceptable manner in order
that the transactions contemplated hereby are consummated as originally
contemplated to the greatest extent possible.
10.10 Binding Effect; Assignment. This Agreement shall be binding upon and
inure to the benefit of the parties and their respective successors and
permitted assigns. Nothing in this Agreement shall create or be deemed to create
any third party beneficiary rights in any Person not a party to this Agreement
except as contemplated by Section 8.7 and Section 10.11. No assignment of this
Agreement or of any rights or obligations hereunder may be made by the Company,
Parent or Merger Sub, directly or indirectly (by operation of law or otherwise),
without the prior written consent of the other parties hereto and any attempted
assignment without the required consents shall be void. No assignment of any
obligations hereunder shall relieve the parties hereto of any such obligations.
Upon any such permitted assignment, the references in this Agreement to Parent
shall also apply to any such assignee unless the context otherwise requires.
10.11 Non-Recourse. This Agreement may only be enforced against, and any
claim or clause of action based upon. arising out of , or related to this
Agreement may only be brought against the entities that are expressly named as
parties hereto and then only with respect to the specific obligations set forth
herein with respect to such party. Except to the extent a named party to this
Agreement (and then only to the extent of the specific obligations undertaken by
such named party in this Agreement and not otherwise), no past, present or
future director, officer, employee, incorporator, member, partner, stockholder,
Affiliate, agent, attorney or representative of any party hereto shall have any
liability for any obligations or liabilities of any party hereto under this
Agreement or for any claim based on, in respect of, or by reason of, the
transactions contemplated hereby and thereby.
10.12 Counterparts. This Agreement may be executed in any number of
counterparts, each of which will be deemed to be an original copy of this
Agreement and all of which, when taken together, will be deemed to constitute
one and the same agreement.
10.13 Stockholder Representative.
47
(a) Upon the approval by the Stockholders of the Company of the Merger
and this Agreement, and without further action of any Stockholder, ISH
shall be appointed as the Stockholder Representative. The Stockholder
Representative shall have the authority, for and on behalf of the
Stockholders of the Company (except for such Stockholders, if any, who have
perfected their appraisal rights under Delaware law), to take such actions
and exercise such discretion as are required of the Stockholder
Representative pursuant to the terms of this Agreement and any related
document or instrument, and any such actions shall be binding on each
Stockholder including without limitation the following:
(i) to give and receive communications and notices on behalf of
the Stockholders after the Effective Time;
(ii) to negotiate, agree to, enter into settlements and
compromises of, and comply with orders and awards of courts with
respect to claims against Stockholders;
(iii) to negotiate, agree to, enter into settlements and
compromises of, and comply with orders and awards of courts with
respect to any claims of disputes related to this Agreement;
(iv) to receive payments on behalf of the Stockholders due and
owing pursuant to this Agreement and acknowledge receipt thereof;
(v) to waive any breach or default of Parent or Merger Sub under
this Agreement following the Effective Time;
(vi) to receive service of process on behalf of the Stockholders
in connection with any claims under this Agreement or any related
document or instrument; and
(vii) to take all actions necessary or appropriate in the
judgment of the Stockholder Representative to accomplish the
foregoing.
(b) The Stockholder Representative shall not be liable for any act
done or omitted hereunder as Stockholder Representative except as set forth
herein. By Stockholders' approval of the this Agreement, each Stockholder
shall have and shall be deemed to have agreed that the Stockholders shall
indemnify and hold harmless the Stockholder Representative and its
partners, stockholders, Affiliates, directors, officers, fiduciaries,
employees and agents and each of the partners, stockholders, Affiliates,
directors, officers, fiduciaries, employees and agents of each of the
foregoing (each a "Representative Indemnified Party") from and against all
losses, liabilities, claims or expenses incurred or suffered by the
Representative Indemnified Parties as a result of, or arising out of, or
relating to any and all actions taken or omitted to be taken by the
Stockholders' Representative under this Agreement or in connection with the
incurrence, payment, discharge or settlement of any of the obligations of
the Stockholders, except for any such losses, liabilities, claims or
expenses that arise on account of the Stockholder Representative's gross
48
negligence or willful misconduct as determined by a court of competent
jurisdiction in a final adjudication. None of the Representative
Indemnified Parties shall be liable to any Stockholder in respect of such
arrangements or actions or omissions in connection therewith, except to the
extent that such acts or omissions constitute gross negligence or willful
misconduct. A decision, act, consent or instruction of the Stockholder
Representative shall constitute a decision for all of the Stockholders
hereunder and shall be final, binding and conclusive upon each of such
Stockholders, and Parent and Merger Sub may rely upon any such decision,
act, consent or instruction of the Stockholder Representative as being the
decision, act, consent or instruction of such Stockholder of the Company.
Parent and Merger Sub are hereby relieved from any liability to any Person
for any acts done by them in accordance with such decision, act, consent or
instruction of the Stockholder Representative. The Stockholder
Representative shall be entitled to reimbursement from the Stockholders of
any and all fees, expenses and costs incurred in the performance of such
Stockholder Representative's duties hereunder.
If ISH becomes unable to serve as Stockholder Representative, such
other Person or Persons may be designated by the holders of a majority of
the Shares, and such Person or Persons shall succeed as the Stockholder
Representative.
** REMAINDER OF PAGE INTENTIONALLY LEFT BLANK **
49
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first written above.
PARENT:
MONSANTO COMPANY
By: /s/ XXXX XXXXX
-----------------------------------------------
Name: Xxxx Xxxxx
Title: President and Chief
Executive Officer
MERGER SUB:
EG ACQUISITION CO.
By: /s/ XXXXXXX X. XXXXX
-----------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: President
COMPANY:
EMERGENT GENETICS, INC.
By: /s/ XXX XXXXXX
-----------------------------------------------
Name: Xxx Xxxxxx
Title: Chief Executive Officer and
Assistant Secretary
INTERNATIONAL SEED HOLDINGS, L.P.
By: Seed Cayman L.L.C., its general partner
By: /s/ XXXXX XXXXXX
-----------------------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
