Attached files
| file | filename |
|---|---|
| 8-K - FORM 8-K - MILLIPORE CORP /MA | form8k.htm |
| EX-10.1 - AMENDMENT NO. 3 - MILLIPORE CORP /MA | ex10-1.htm |
Exhibit 2.1
EXECUTION COPY
|
AGREEMENT
AND PLAN OF SHARE EXCHANGE
dated
as of February 28, 2010,
among
MERCK
KGaA,
CONCORD
INVESTMENTS CORP.
and
MILLIPORE
CORPORATION
|
Page
AGREEMENT
AND PLAN OF SHARE EXCHANGE (this “Agreement”) dated as
of February 28, 2010, among MERCK KGaA, a German corporation with general
partners (“Parent”), Concord
Investments Corp., a Massachusetts corporation and a wholly owned Subsidiary of
Parent (“Sub”),
and MILLIPORE CORPORATION, a Massachusetts corporation (the “Company”).
WHEREAS, the Board of Directors of each
of the Company and Sub has adopted and declared advisable, and in the best
interests of the Company and Sub, as applicable, and the Executive Board of
Parent has approved, this Agreement and the acquisition by Sub of each issued
and outstanding share of common stock, par value $1.00 per share, of the Company
(“Company Common
Stock”), other than the Appraisal Shares, in exchange for the right to
receive $107.00 in cash, upon the terms and subject to the conditions set forth
in this Agreement and in accordance with the provisions of the Massachusetts
Business Corporation Act (the “MBCA”), as a result
of which exchange (the “Share Exchange”) the
Company will become a wholly owned Subsidiary of Sub; and
WHEREAS, Parent, Sub and the Company
desire to make certain representations, warranties, covenants and agreements in
connection with the Share Exchange and also to prescribe various conditions to
the Share Exchange.
NOW, THEREFORE, in consideration of the
representations, warranties, covenants and agreements contained in this
Agreement, and subject to the conditions set forth herein, the parties hereto
agree as follows:
The
Share Exchange
SECTION 1.01. The
Share Exchange. Upon the terms and subject to the
conditions set forth in this Agreement, and in accordance with the MBCA, at the
Effective Time, (i) Sub and the Company shall effect the Share Exchange and (ii)
the Company shall continue its corporate existence under the laws of the
Commonwealth of Massachusetts as a wholly owned Subsidiary of Sub. The Company
following the Effective Time is sometimes hereinafter referred to as the “Acquired
Corporation.”
SECTION 1.02. Closing. The closing of the Share
Exchange (the “Closing”) will take
place at 10:00 a.m., New York City time, on the fifth business day after
satisfaction or (to the extent permitted by Law) waiver of the conditions set
forth in Article VI (other than those conditions that by their terms are to
be satisfied at the Closing, but subject to the satisfaction or (to the extent
permitted by Law) waiver of those conditions), at the offices of Cravath, Swaine
& Moore LLP, Worldwide Plaza, 825 Eighth Avenue, New York, New
York 10019, unless another time, date or place is agreed to in writing by Parent
and the Company. The date on which the Closing occurs is referred to
in this Agreement as the “Closing
Date”.
SECTION 1.03. Effective Time. Subject to the
provisions of this Agreement, as promptly as practicable on the Closing Date,
the parties shall file articles of share exchange (the “Articles of Share
Exchange”) with the Secretary of the Commonwealth of Massachusetts in
such form as is required by, and executed and acknowledged in accordance with,
the relevant provisions of the MBCA. The Share Exchange shall become
effective upon the filing of the Articles of Share Exchange with the Secretary
of the Commonwealth of Massachusetts or at such subsequent date and time as
Parent and the Company shall agree and specify in the Articles of Share
Exchange. The date and time at which the Share Exchange becomes
effective is referred to in this Agreement as the “Effective
Time”.
SECTION 1.04. Effects of the Share
Exchange. The Share Exchange shall have the effects set
forth herein and in the applicable provisions of the MBCA.
SECTION 1.05. Articles of Organization and
Bylaws. (a) The Restated Articles of
Organization of the Company (the “Company Articles of
Organization”) as in effect immediately prior to the Effective Time shall
continue to be the articles of organization of the Acquired Corporation from and
after the Effective Time until thereafter changed or amended as provided therein
or by applicable Law.
(b) The Amended and Restated
Bylaws of the Company (the “Company Bylaws”) as
in effect immediately prior to the Effective Time shall continue to be the
Bylaws of the Acquired Corporation from and after the Effective Time until
thereafter changed or amended as provided therein or by applicable
Law.
SECTION 1.06. Directors. The Company shall take all
actions necessary to cause all of the directors of the Company as of immediately
prior to the Effective Time to resign effective as of the Effective Time and to
have the persons nominated by Parent before the Effective Time appointed to the
vacancies created thereby in accordance with the Company Articles of
Organization and the Company Bylaws.
SECTION 1.07. Officers. The officers of the
Company immediately
prior to the Effective Time shall be the officers of the Acquired Corporation,
until the earlier of their resignation or removal or until their respective
successors are duly elected and qualified, as the case may be.
Effect
of the Share Exchange on the Capital Stock of the
Exchanging
Corporations; Exchange Fund;
Company
Equity Awards
SECTION 2.01. Effect
on Capital Stock. At the Effective Time, by virtue of the
Share Exchange and without any action on the part of the holder of any shares of
Company Common Stock or any shares of capital stock of Parent or
Sub:
(a) Capital Stock of
Sub. Each share of capital stock of Sub issued and outstanding
immediately prior to the Effective Time shall be unaffected by the Share
Exchange and shall remain the issued and outstanding shares of common stock of
Sub following the Effective Time.
(b) Exchange of Company Common
Stock. Each share of Company Common Stock issued and
outstanding immediately prior to the Effective Time (other than the Appraisal
Shares) shall be exchanged for the right to receive $107.00 in cash, without
interest (the “Share
Exchange Consideration”). At the Effective Time, Sub shall
acquire and become the sole holder and owner of each issued and outstanding
share of Company Common Stock so exchanged, and each holder of a certificate (or
evidence of shares in book-entry form) that 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
Share Exchange Consideration.
(c) Appraisal
Rights. In the event the Share Exchange entitles holders of
Company Common Stock to appraisal rights under Part 13 of the MBCA and
notwithstanding anything in this Agreement to the contrary, shares of Company
Common Stock that are issued and outstanding immediately prior to the Effective
Time and which are held by a shareholder who did not vote in favor of the Share
Exchange (or consent thereto in writing) and who is entitled to demand and
properly demands appraisal of such shares (the “Appraisal Shares”)
pursuant to, and who complies in all respects with, the provisions of Part 13 of
the MBCA (the “Dissenting
Shareholders”), shall not be exchanged or be exchangeable for the right
to receive the Share Exchange Consideration as provided in Section 2.01(b), but
instead such holder shall be entitled to payment of the fair value of such
shares in accordance with the provisions of Part 13 of the MBCA (and at the
Effective Time, such holders shall cease to have any rights with respect to any
shares of Company Common Stock held by such holders, except the right to receive
the fair value of such Appraisal Shares in accordance with the provisions of
Part 13 of the MBCA), unless and until such holder shall have failed to perfect
or shall have withdrawn or lost rights to appraisal under the MBCA. If any
Dissenting Shareholder shall have failed to perfect or shall have withdrawn or
lost such right, such holder’s shares of Company Common Stock shall thereupon be
treated as if they had been exchanged for the right to receive, as of the
Effective Time, the Share Exchange Consideration for each such share of Company
Common Stock, in accordance with Section 2.01, without any interest thereon. The
Company shall give Parent (i) prompt notice of any notices of intent to seek
appraisal and written demands for appraisal of any shares of Company Common
Stock, withdrawals of such demands and any other instruments served pursuant to
the MBCA and received by the Company relating to shareholders’ rights of
appraisal and (ii) the opportunity to participate in and direct all negotiations
and proceedings with respect to demands for appraisal under the
MBCA.
SECTION 2.02. Exchange Fund. (a) Paying
Agent. Prior to the Closing Date, Parent shall appoint a bank
or trust company reasonably acceptable to the Company to act as paying agent
(the “Paying
Agent”) for the payment of the Share Exchange Consideration, the Equity
Award Amounts and the Director Stock Equivalent Amounts in accordance with this
Article II and, in connection therewith, shall enter into an agreement with
the Paying Agent in the form reasonably acceptable to the Company (the “Paying Agency
Agreement”). On the Closing Date and prior to the Effective Time, Parent
shall deposit with the Paying Agent cash in an amount sufficient to pay the sum
of (A) the aggregate Share Exchange Consideration, (B) the Equity Award Amounts
and (C) the Director Stock Equivalent Amounts, in each case as required to be
paid pursuant to this Agreement (such cash being hereinafter referred to as the
“Exchange
Fund”).
(b) Certificate Exchange
Procedures. As promptly as practicable after the Effective
Time, but in any event within two business days thereafter, Parent shall cause
the Paying Agent to mail to each holder of record of a Certificate (i) a
letter of transmittal (which shall specify that delivery shall be effected, and
risk of loss and title to the Certificates shall pass, only upon proper delivery
of the Certificates to the Paying Agent and which shall otherwise be in
customary form (including customary provisions with respect to delivery of an
“agent’s message” with respect to shares held in book-entry form)) and
(ii) instructions for use in effecting the surrender of the Certificates in
exchange for the Share Exchange Consideration. Each holder of record
of a Certificate shall, upon surrender to the Paying Agent of such Certificate,
together with such letter of transmittal, duly executed, and such other
documents as may reasonably be required by the Paying Agent, be entitled to
receive in exchange therefor the amount of cash which the number of shares of
Company Common Stock previously represented by such Certificate shall have been
converted into the right to receive pursuant to Section 2.01(b), and the
Certificate so surrendered shall forthwith be canceled. In the event
of a transfer of ownership of Company Common Stock which is not registered in
the transfer records of the Company, payment of the Share Exchange Consideration
may be made 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 payment
shall pay any fiduciary or surety bonds or any transfer or other similar taxes
required by reason of the payment of the Share Exchange Consideration 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 2.02(b), each Certificate shall be deemed at any time after the
Effective Time to represent only the right to receive upon such surrender the
Share Exchange Consideration which the holder thereof has the right to receive
in respect of such Certificate pursuant to this Article II. No
interest shall be paid or will accrue on any cash payable to holders of
Certificates pursuant to the provisions of this Article II.
(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 II shall be
deemed to have been paid in full satisfaction of all rights pertaining to the
shares of Company Common Stock formerly represented by such
Certificates. At the close of business on the day on which the
Effective Time occurs, there shall be no further registration of transfers on
the stock transfer books of the Acquired Corporation of the shares of Company
Common Stock that were outstanding immediately prior to the Effective Time
(other than any registration in respect of the Share Exchange or any subsequent
transfer of Company Common Stock by Parent or its affiliates). If,
after the Effective Time, any Certificate is presented to the Acquired
Corporation for transfer, it shall be canceled against delivery of cash to the
holder thereof as provided in this Article II.
(d) Termination of the Exchange
Fund. Any portion of the Exchange Fund that remains
undistributed to the holders of the Certificates for nine months after the
Effective Time shall be delivered to Parent, upon demand, and any holders of the
Certificates who have not theretofore complied with this Article II shall
thereafter look only to Parent for, and Parent shall remain liable for, payment
of their claims for the Share Exchange Consideration pursuant to the provisions
of this Article II.
(e) No
Liability. None of Parent, Sub, the Company, the Acquired
Corporation or the Paying Agent shall be liable to any person in respect of any
cash from the Exchange Fund delivered to a public official in compliance with
any applicable state, Federal or other abandoned property, escheat or similar
Law. If any Certificate shall not have been surrendered prior to the
date on which the related Share Exchange Consideration would escheat to or
become the property of any Governmental Entity, any such Share Exchange
Consideration shall, to the extent permitted by applicable Law, immediately
prior to such time become the property of Parent, free and clear of all claims
or interest of any person previously entitled thereto.
(f) Investment of Exchange
Fund. The Paying Agent shall invest the cash in the Exchange
Fund as directed by Parent; provided, however, that such
investments shall be in obligations of or guaranteed by the United States of
America or any agency or instrumentality thereof and backed by the full faith
and credit of the United States of America, in commercial paper obligations
rated A-1 or P-1 or better by Moody’s Investors Service, Inc. or Standard
& Poor’s Corporation, respectively, or in certificates of deposit, bank
repurchase agreements or banker’s acceptances of commercial banks with capital
exceeding $1.0 billion (based on the most recent financial statements of
such bank that are then publicly available). Any interest and other
income resulting from such investments shall be paid solely to
Parent. Nothing contained herein and no investment losses resulting
from investment of the Exchange Fund shall diminish the rights of any holder of
Certificates to receive the Share Exchange Consideration, any holder of a
Company Equity Award to receive the holder’s Equity Award Amount or any holder
of a Director Stock Equivalent to receive the holder’s Director Stock Equivalent
Amount, in each case as provided herein.
(g) 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 and, if required by
Parent, the posting by such person of a bond or surety in such reasonable amount
as Parent may direct as indemnity against any claim that may be made against it
with respect to such Certificate, the Paying Agent shall deliver in exchange for
such lost, stolen or destroyed Certificate the applicable Share Exchange
Consideration with respect thereto.
(h) Withholding
Rights. Parent, the Acquired Corporation or the Paying Agent
shall be entitled to deduct and withhold from the consideration otherwise
payable pursuant to this Agreement to any holder of shares of Company Common
Stock, any holder of a Company Equity Award or any holder of a Director Stock
Equivalent such amounts as Parent, the Acquired Corporation or the Paying Agent
are required to deduct and withhold with respect to the making of such payment
under the Internal Revenue Code of 1986, as amended (the “Code”), or any
provision of state, local or foreign tax Law. To the extent that
amounts are so withheld and paid over to the appropriate taxing authority by
Parent, the Acquired Corporation or the Paying Agent, such withheld amounts
shall be treated for all purposes of this Agreement as having been paid to the
holder of the shares of Company Common Stock, the holder of the Company Equity
Award or the holder of the Director Stock Equivalent, as the case may be, in
respect of which such deduction and withholding was made by Parent, the Acquired
Corporation or the Paying Agent.
SECTION 2.03. Company
Equity Awards. (a) As soon as reasonably
practicable following the date of this Agreement, and in any event prior to the
Effective Time, the Board of Directors of the Company (or, if appropriate, any
committee administering the Company Stock Plan or a Specified Deferred
Compensation Plan) shall adopt such resolutions and take such other actions
(including, with respect to Company Stock Options, providing the holder of each
such Company Stock Option with advance notice of the cancellation of such
Company Stock Option and an opportunity to exercise such Company Stock Option
prior to the Effective Time, in each case to the extent required by the terms of
the applicable Company Stock Plan), as may be required to provide
that:
(i) at
the Effective Time, each unexercised Company Stock Option, whether vested or
unvested, that is outstanding immediately prior to the Effective Time shall be
canceled, with the holder thereof becoming entitled to receive an amount in cash
equal to (A) the excess, if any, of (1) the Share Exchange
Consideration over (2) the exercise price per share of Company Common Stock
subject to such Company Stock Option multiplied by (B) the
number of shares of Company Common Stock subject to such Company Stock Option
(such amount, the “Option
Amount”);
(ii)
immediately prior to the Effective Time, each Company Performance RSU Award that
is outstanding immediately prior to the Effective Time and is held by any
individual who has not entered into an Executive Termination Agreement with the
Company shall vest as to the number of shares of Company Common Stock issuable
pursuant to such Company Performance RSU Award upon attainment of the target
level of performance applicable to such Company Performance RSU Award (the
“Non-Executive Vested
Performance RSU Shares”), and, at the Effective Time, the Non-Executive
Vested Performance RSU Shares shall be shares of Company Common Stock for
purposes of Section 2.01(b), with the holder of such Company Performance RSU
Award becoming entitled to receive an amount in cash equal to (A) the Share
Exchange Consideration multiplied by (B) the number of
Non-Executive Vested Performance RSU Shares attributable to such Company
Performance RSU Award (such amount, the “Non-Executive Performance
RSU Amount”); and
(iii)
immediately prior to the Effective Time, each Company Performance RSU Award that
is outstanding immediately prior to the Effective Time and is held by any
individual who has entered into an Executive Termination Agreement with the
Company shall vest as to the number of shares of Company Common Stock specified
as vesting upon a “Change of Control” in the applicable agreement for such
Company Performance RSU Award (the “Executive Vested Performance
RSU Shares”), and any remaining portion of such Company Performance RSU
Award shall be cancelled at such time and without consideration therefor, and,
at the Effective Time, the Executive Vested Performance RSU Shares shall be
shares of Company Common Stock for purposes of Section 2.01(b), with the holder
of such Company Performance RSU Award becoming entitled to receive an amount in
cash equal to (A) the Share Exchange Consideration multiplied by (B) the number of
Executive Vested Performance RSU Shares attributable to such Company Performance
RSU Award (such amount, the “Executive Performance RSU
Amount”);
(iv)
immediately prior to the Effective Time, each Company RSU Award that is
outstanding immediately prior to the Effective Time shall be fully vested, and,
at the Effective Time, the vested shares of Company Common Stock subject to such
Company RSU Award shall be shares of Company Common Stock for purposes of
Section 2.01(b), with the holder of a
Company RSU Award becoming entitled to receive an amount in cash equal to (A)
the Share Exchange Consideration multiplied by (B) the number of
shares of Company Common Stock subject to such Company RSU Award at the
Effective Time (such amount, the “RSU
Amount”).
The term
“Equity Award
Amounts” means the sum of the aggregate Option Amounts, aggregate
Non-Executive Performance RSU Amounts, aggregate Executive Performance RSU
Amounts and aggregate RSU Amounts, and the term “Equity Award Amount”
means the portion of the aggregate Option Amounts, Non-Executive Performance RSU
Amounts, Executive Performance RSU Amounts or RSU Amounts (as applicable)
payable to any holder of a Company Equity Award. Except as otherwise
required under the terms of the applicable award or as necessary to avoid the
imposition of any additional taxes or penalties on any Equity Award Amount
pursuant to Section 409A of the Code, all amounts payable pursuant to this
Section 2.03(a) shall be paid as promptly as practicable following the
Effective Time, without interest.
(b) The Company shall take
all actions necessary to ensure that from and after the Effective Time neither
Parent nor the Acquired Corporation will be required to deliver Company Common
Stock or other capital stock of the Company to any person pursuant to or in
settlement of Company Equity Awards, the Convertible Notes or
otherwise. As of the Effective Time, each Company Stock Equivalent
issued under a Specified Deferred Compensation Plan that is outstanding
immediately prior to the Effective Time shall cease to represent the right to
the equivalent in value and rate of return to a share of Company Common Stock
and shall instead be converted into the right to receive an amount in cash equal
to the Share Exchange Consideration (such amount, the “Stock Equivalent
Amount”). Stock Equivalent Amounts payable in respect of
Company Stock Equivalents outstanding under (i) the Director Deferral Agreements
(such stock equivalents, the “Director Stock
Equivalents” and, the amounts in cash payable in respect thereof, the
“Director Stock
Equivalent Amounts”) shall be paid as soon as practicable following the
Effective Time, without interest (except as otherwise required under the terms
of the applicable Director Stock Equivalent) and (ii) the Supplemental Plan
(such stock equivalents, the “Supplemental Plan Stock
Equivalents” and, the amounts in cash payable in respect thereof, the
“Supplemental Plan
Stock Equivalent Amounts”) shall be reinvested in accordance with the
terms of the Supplemental Plan and payments in respect thereof shall be paid
after the Effective Time in accordance with the terms of the Supplemental
Plan. Unless otherwise directed in writing by Parent, the Board of
Directors of the Company or any duly authorized persons shall authorize the
termination of and the Company shall terminate the Company’s Ireland employee
share participation scheme (the “Irish Share Scheme”),
effective no later than the Effective Time. The Company shall provide
Parent evidence of such authorization to terminate the Irish Share
Scheme.
Representations
and Warranties
SECTION 3.01. Representations and Warranties of the
Company. Except as disclosed in any report, schedule,
form, statement or other document filed with, or furnished to, the Securities
and Exchange Commission (the “SEC”) by the Company
after January 1, 2007 and publicly available prior to the date of this Agreement
(collectively, the “Filed SEC Documents”)
or as set forth in the Company Disclosure Letter (it being understood that any
information set forth in one section or subsection of the Company Disclosure
Letter shall be deemed to apply to and qualify the Section or subsection of this
Agreement to which it corresponds in number and each other Section or subsection
of this Agreement to the extent that it is reasonably apparent that such
information is relevant to such other Section or subsection), the Company
represents and warrants to Parent and Sub as follows:
(a) Organization, Standing and
Corporate Power. Each of the Company and its Subsidiaries is
duly organized and validly existing under the Laws of its jurisdiction of
organization and has all requisite corporate, company or partnership power and
authority to carry on its business as presently conducted. Each of
the Company and its Subsidiaries is duly qualified or licensed to do business
and is in good standing (where such concept is recognized under applicable Law)
in each jurisdiction where the nature of its business or the ownership, leasing
or operation of its properties makes such qualification or licensing necessary,
other than where the failure to be so qualified, licensed or in good standing
would not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect. A true and complete copy of the Company
Articles of Organization and the Company Bylaws, in each case as in effect on
the date of this Agreement, are included in the Filed SEC
Documents.
(b) Subsidiaries. Section
3.01(b) of the Company Disclosure Letter lists, as of the date of this
Agreement, each Subsidiary of the Company and the jurisdiction of organization
thereof and its place of management and control to the extent such place differs
from the jurisdiction of organization. All the outstanding shares of
capital stock of, or other equity interests in, each Subsidiary of the Company
have been validly issued and are fully paid and nonassessable and are owned,
directly or indirectly, by the Company free and clear of all pledges, liens,
charges, mortgages, encumbrances or security interests of any kind or nature
whatsoever (collectively, “Liens”), other than
Liens described in clause (ii) of the definition of Permitted
Liens. Except for its interests in its Subsidiaries, the Company does
not own, directly or indirectly, any capital stock of, or other equity interests
in, any corporation, partnership, joint venture, association or other
entity.
(c) Capital
Structure. The authorized capital stock of the Company
consists of 120,000,000 shares of Company Common Stock. At the
close of business on February 25, 2010, (i) 56,070,028 shares of Company
Common Stock were issued and outstanding (which number includes no shares of
Company Common Stock subject to vesting or other forfeiture conditions or
repurchase by the Company), (ii) 7,660,238 shares of Company Common Stock
were reserved and available for issuance pursuant to the Company’s 2008 Stock
Incentive Plan (the “Company Stock Plan”),
of which (A) 2,750,730 shares of Company Common Stock were subject to
outstanding options to acquire shares of Company Common Stock from the Company
with a weighted-average exercise price of $59.39 (such options, together with
any similar options granted after February 25, 2010, the “Company Stock
Options”), (B) 203,209 shares of Company Common Stock were subject
to restricted stock unit awards that were subject to performance-based vesting
or delivery requirements, assuming settlement of such awards based on the
attainment of performance goals at maximum levels (such restricted stock unit
awards, together with any similar restricted stock unit awards granted after
February 25, 2010, the “Company Performance RSU
Awards”) and (C) 754,230 shares of Company Common Stock were subject to a
restricted stock unit awards granted by the Company that were subject to
service-based vesting or delivery requirements (such restricted stock unit
awards, together with any similar restricted stock unit awards granted after
February 25, 2010, the “Company RSU Awards”
and, together with the Company Stock Options and Company Performance RSU Awards,
the “Company Equity
Awards”), (iii) 30,394 stock equivalents with respect to a share of
Company Common Stock were outstanding under the Company’s Supplemental Savings
and Retirement Plan for Key Salaried Employees (“Supplemental Plan”)
and agreements between the Company and its directors to defer certain director
fees (“Director
Deferral Agreements”) (such plans, collectively, the “Specified Deferred
Compensation Plans”, and such stock equivalents, together with similar
stock equivalents issued after February 25, 2010, the “Company Stock
Equivalents”) and (iv) $565,000,000 aggregate principal amount of 3.75%
convertible senior notes due 2026, issued pursuant to the Indenture
between the Company and Wilmington Trust Company dated as of June 13, 2006 (the
“Convertible
Notes”), were outstanding. Except as set forth above, at the
close of business on February 25, 2010, no shares of capital stock or other
voting securities of the Company were issued, reserved for issuance or
outstanding. Since February 25, 2010 to the date of this Agreement,
(x) there have been no issuances by the Company of shares of capital stock or
other voting securities of the Company, other than issuances of shares of
Company Common Stock pursuant to the Company Stock Plan and (y) there have been
no issuances by the Company of options, warrants, other rights to acquire shares
of capital stock of the Company or other rights that give the holder thereof any
economic interest of a nature accruing to the holders of Company Common Stock,
except for rights under the Company Stock Plan, the Specified Deferred
Compensation Plans, the Company Employees’ Participation and Savings Plan (the
“Company 401(k)
Plan”) and the Irish Share Scheme; notwithstanding anything to the
contrary in this Section 3.01(c), between February 25, 2010 and the date of this
Agreement, (i) the Company has not purchased, redeemed or otherwise acquired,
directly or indirectly, any Company Common Stock or any rights, warrants or
options with respect to the Company Common Stock (in particular Company Equity
Awards and Company Stock Equivalents) other than as would be permitted without
consent of Parent after the date of this Agreement pursuant to Section
4.01(a)(iii) or (ii) issued, delivered, transferred or sold any shares of
Company Common Stock, any other voting securities or any securities convertible
into, or any rights, warrants or options to acquire, any such Company Common
stock, voting securities or convertible securities, or any “phantom” stock,
“phantom” stock rights, stock appreciation rights or stock based performance
units (in particular Company Equity Awards and Company Stock Equivalents) other
than as would be permitted without consent of Parent after the date of this
Agreement pursuant to Section 4.01(a)(iv). All outstanding shares of
Company Common Stock are, and all such shares that may be issued prior to the
Effective Time will be, when issued, duly authorized, validly issued, fully paid
and nonassessable and not subject to preemptive rights. There are no
bonds, debentures, notes or other indebtedness of the Company having the right
to vote (or convertible into, or exchangeable for, securities having the right
to vote) on any matters on which holders of Company Common Stock may vote
(“Voting Company
Debt”), except for the Convertible Notes. Except for any
obligations pursuant to this Agreement, the Company Stock Plan, the Specified
Deferred Compensation Plans, the Company 401(k) Plan, the Irish Share Scheme or
as otherwise set forth above, as of February 25, 2010, there are no shares of
Company Common Stock, any other shares of capital stock, voting securities,
options, warrants, rights, convertible or exchangeable securities, “phantom”
stock, “phantom” stock rights, stock appreciation rights or stock-based
performance units with respect to the Company, Contracts or undertakings of any
kind to which the Company or any of its Subsidiaries is a party or by which any
of them is bound (1) obligating the Company or any such Subsidiary to
issue, deliver or sell, or cause to be issued, delivered or sold, additional
shares of capital stock or other equity interests in, or any security
convertible or exchangeable for any capital stock of or other equity interest
in, the Company or of any of its Subsidiaries or any Voting Company Debt,
(2) obligating the Company or any such Subsidiary to issue, grant or enter
into any such option, warrant, right, security, unit, Contract or undertaking or
(3) that give any person the right to receive any economic interest of a
nature accruing to the holders of Company Common Stock. As of the
date of this Agreement, there are no outstanding contractual obligations of the
Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire
any shares of capital stock or options, warrants or other rights to acquire
shares of capital stock of the Company or any such Subsidiary, other than
pursuant to the Company Stock Plan, the Company 401(k) Plan, the Irish Share
Scheme and the Specified Deferred Compensation
Plans. Section 3.01(c) of the Company Disclosure Letter sets
forth a true and complete list, as of the date of this Agreement, of all
Indebtedness for borrowed money of the Company and its Subsidiaries (other than
any such Indebtedness owed to the Company or any of its Subsidiaries, letters of
credit issued in the ordinary course of business and any other such Indebtedness
with an aggregate principal amount not in excess of $10.0 million
individually outstanding on the date of this Agreement. From and
after the Effective Time, neither Parent nor the Company will be required to
deliver Company Common Stock or other capital stock of the Company to any person
pursuant to or in settlement of any Company Equity Awards, the Convertible
Notes, the Irish Share Scheme or otherwise.
(d) Authority;
Noncontravention. The Company has all requisite corporate
power and authority to execute and deliver this Agreement and to consummate the
transactions contemplated by this Agreement, subject, in the case of the Share
Exchange, to receipt of the Stockholder Approval. The execution and
delivery of this Agreement by the Company and the consummation by the Company of
the transactions contemplated by this Agreement have been duly authorized by all
necessary corporate action on the part of the Company, subject, in the case of
the Share Exchange, to receipt of the Stockholder Approval. This
Agreement has been duly executed and delivered by the Company and, assuming the
due authorization, execution and delivery by each of the other parties hereto,
constitutes a legal, valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms, subject, as to enforceability,
to bankruptcy, insolvency and other Laws of general applicability relating to or
affecting creditors’ rights and to general equity principles. The
Board of Directors of the Company, at a meeting duly called and held at which
all directors of the Company (other than one) were present, duly adopted
resolutions (i) adopting and declaring advisable this Agreement, the Share
Exchange and the other transactions contemplated by this Agreement,
(ii) declaring that it is in the best interests of the stockholders of the
Company that the Company enter into this Agreement and consummate the Share
Exchange and the other transactions contemplated by this Agreement on the terms
and subject to the conditions set forth herein, (iii) directing that the
approval of this Agreement be submitted to a vote at a meeting of the
stockholders of the Company and (iv) recommending that the stockholders of
the Company approve this Agreement, which resolutions, as of the date of this
Agreement, have not been rescinded, modified or withdrawn in any
way. The execution and delivery by the Company of this Agreement do
not, and the consummation of the Share Exchange and the other transactions
contemplated by this Agreement and compliance with the provisions of this
Agreement will not, conflict with, or result in any violation of, or default
(with or without notice or lapse of time, or both) under, create or affect any
rights under, or give rise to a right of termination, cancellation or
acceleration of any obligation or to the loss of a benefit under, any
requirement to provide notice to, or require consent or approval from, the other
party thereto, or result in the creation of any Lien upon any of the properties
or assets of the Company or any of its Subsidiaries under (other than any such
Lien created in connection with the Financing or otherwise from any action taken
by Parent or Sub), any provision of (A) the Company Articles of
Organization, the Company Bylaws or the comparable organizational documents of
any of its Subsidiaries or (B) subject to the filings and other matters
involving Governmental Entities referred to in the immediately following
sentence, (1) any contract, lease, license, indenture, note, bond or other
agreement that is in force and effect (a “Contract”) to which
the Company or any of its Subsidiaries is a party or by which any of their
respective properties or assets are bound and that is material for the Company
and its Subsidiaries taken as a whole, or (2) any statute, law, ordinance,
rule or regulation of any Governmental Entity (“Law”) or any
judgment, order, award, injunction or decree of any Governmental Entity or any
arbitral tribunal (“Judgment”) or related
settlement, in each case applicable to the Company or any of its Subsidiaries or
their respective properties or assets and that is material for the Company and
its Subsidiaries taken as a whole. No consent, approval, order or
authorization of, or registration, declaration or filing with, or notice to, any
Federal, state, local or foreign government, any court of competent jurisdiction
or any administrative, regulatory (including any stock exchange) or other
governmental agency, commission or authority (each, a “Governmental Entity”)
is required to be obtained or made by or with respect to the Company or any of
its Subsidiaries in connection with the execution and delivery of this Agreement
by the Company or the consummation by the Company of the Share Exchange or the
other transactions contemplated by this Agreement, except for (I) the
filing of a premerger notification and report form by the Company under the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the “HSR Act”), and the
filings and receipt, termination or expiration, as applicable, of such other
approvals or waiting periods as may be required under any other applicable
competition, merger control, antitrust or similar Law of any jurisdiction
(“Merger Control
Laws”), (II) the filing with the SEC of (x) a proxy statement
relating to the approval by the stockholders of the Company of this Agreement
(as amended or supplemented from time to time, the “Proxy Statement”) and
(y) such reports under the Securities Exchange Act of 1934, as amended (the
“Exchange
Act”), as may be required in connection with this Agreement and the
transactions contemplated by this Agreement, (III) the filing of the
Articles of Share Exchange with the Secretary of the Commonwealth of
Massachusetts and of appropriate documents with the relevant authorities of
other jurisdictions in which the Company or any of its Subsidiaries is qualified
to do business, (IV) any filings required under the rules and regulations
of the New York Stock Exchange and (V) such other consents, approvals,
orders, authorizations, registrations, declarations, filings and notices the
failure of which to be obtained or made would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse
Effect.
Immediately before the Effective Time,
there will be no event of default (however defined) under any Contract of the
Company or any of its Subsidiaries with respect to (A) Indebtedness or (B) any
other indebtedness for or in respect of (i) any obligation or financial
liability pursuant to a debt instrument, (ii) any guarantee or
(counter-)indemnity in respect of any financial liability or loss of another
person, (iii) any agreement treated as a finance or capital lease, (iv) any
receivable sold or discounted on a recourse basis, (v) any treasury transaction
(including derivative transactions) or (vi) any finance bills, except, in the
case of clause (A) and (B) above, for events of default that, individually or in
the aggregate, are in respect of obligations described in clauses (A) and (B)
above in an aggregate amount not in excess of $20.0 million.
(e) SEC
Documents. The Company has filed all reports, schedules,
forms, statements and other documents with the SEC required to be filed by the
Company since January 1, 2007 (the “SEC
Documents”). As of their respective dates of filing, the SEC
Documents complied in all material respects with the requirements of the
Securities Act of 1933, as amended (the “Securities Act”), the
Exchange Act or the Sarbanes Oxley Act of 2002, as the case may be, and in each
case the rules and regulations promulgated thereunder applicable thereto, and as
of their respective dates (or if amended by a subsequent filing with the SEC
prior to the date hereof, as of the date of such amendment) none of the SEC
Documents contained any untrue statement of a material fact or omitted to state
a material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading. The audited consolidated financial statements and the
unaudited quarterly financial statements (including, in each case, the notes
thereto) of the Company included in the SEC Documents when filed complied in all
material respects with the published rules and regulations of the SEC with
respect thereto, have been prepared in all material respects in accordance with
generally accepted accounting principles (“GAAP”) (except, in
the case of unaudited quarterly statements, as permitted by Form 10-Q of
the SEC or other rules and regulations of the SEC) applied on a consistent basis
during the periods involved (except as may be indicated in the notes thereto)
and fairly present in all material respects the consolidated financial position
of the Company and its consolidated Subsidiaries as of the dates thereof and the
consolidated results of their operations and cash flows for the periods then
ended (subject, in the case of unaudited quarterly statements, to normal
year-end audit adjustments). Except for matters reflected or reserved
against in the consolidated balance sheet of the Company as of December 31, 2009
(or the notes thereto) included in the Filed SEC Documents, neither the Company
nor any of its Subsidiaries has any liabilities or obligations (whether
absolute, accrued, contingent, fixed or otherwise) of any nature that would
be required under GAAP, as in effect on the date of this Agreement, to be
reflected on a consolidated balance sheet of the Company (including the notes
thereto), except liabilities and obligations that (i) were incurred since
December 31, 2009 in the ordinary course of business in accordance with past
practice, (ii) are incurred in connection with the transactions
contemplated by this Agreement, or (iii) would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse
Effect.
(f) The Company maintains
disclosure controls and procedures required by Rule 13a-15 or 15d-15 under the
Exchange Act. Such disclosure controls and procedures are effective
to ensure that information required to be disclosed by the Company in filings
with the SEC is recorded and reported on a timely basis to the individuals
responsible for the preparation of the Company’s filings with the
SEC. The Company maintains internal control over financial reporting
(as defined in Rule 13a-15 or 15d-15, as applicable, under the Exchange
Act). Such internal control over financial reporting is effective in
providing reasonable assurance regarding the reliability of financial reporting
and the preparation of financial statements for external purposes in accordance
with GAAP and includes policies and procedures that (i) pertain to the
maintenance of records that in reasonable detail accurately and fairly reflect
the transactions and dispositions of the assets of the Company, (ii) provide
reasonable assurance that transactions are recorded as necessary to permit
preparation of financial statements in accordance with GAAP, and that receipts
and expenditures of the Company are being made only in accordance with
authorizations of management and directors of the Company, and (iii) provide
reasonable assurance regarding prevention or timely detection of unauthorized
acquisition, use or disposition of the Company’s assets that could have a
material effect on its financial statements. The Company has
disclosed, based on the most recent evaluation of its chief executive officer
and its chief financial officer prior to the date of this Agreement, to the
Company’s auditors and the audit committee of the Company’s board of directors
(A) any significant deficiencies in the design or operation of its internal
controls over financial reporting that are reasonably likely to adversely affect
the Company’s ability to record, process, summarize and report financial
information and has identified for the Company’s auditors and audit committee of
the Company’s Board of Directors any material weaknesses in internal control
over financial reporting and (B) any fraud, whether or not material, that
involves management or other employees who have a significant role in the
Company’s internal control over financial reporting.
(g) Information
Supplied. The Proxy Statement will not, at the date it is
first mailed to the stockholders of the Company and at the time of the
Stockholders’ Meeting, contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary in order
to make the statements therein, in light of the circumstances under which they
are made, not misleading, except that no representation or warranty is made by
the Company with respect to statements made or incorporated by reference therein
based on information supplied by Parent or Sub for inclusion or incorporation by
reference in the Proxy Statement.
(h) Absence of Certain Changes
or Events. (A) Since December 31, 2009, there has not been any
change, effect, event, occurrence or state of facts that, individually or in the
aggregate, has had or would reasonably be expected to have a Material Adverse
Effect or prevent or materially impair the consummation of the transactions
contemplated by this Agreement, and (B) from such date through the date of this
Agreement, the Company and its Subsidiaries have conducted their businesses only
in the ordinary course of business. During such period there has not
been:
(i) any
declaration, setting aside or payment of any dividend on, or making of any other
distribution (whether in cash, stock or property) with respect to, any capital
stock of the Company;
(ii) any
split, combination or reclassification of any capital stock of the Company or
any issuance or the authorization of any issuance of any other securities in
lieu of or in substitution for shares of capital stock of the
Company;
(iii) any
purchase, redemption or other acquisition by the Company or any of its
Subsidiaries of any shares of capital stock of the Company or any of its
Subsidiaries or any rights, warrants or options to acquire any such shares,
other than (A) the acquisition by the Company of shares of Company Common
Stock in connection with the surrender of shares of Company Common Stock by
holders of options to acquire such stock in order to pay the exercise price
thereof, (B) the withholding of shares of Company Common Stock to satisfy
tax obligations with respect to awards granted pursuant to the Company Stock
Plan, (C) the acquisition by the Company of Company Stock Options, Company
Performance RSU Awards and Company RSU Awards in connection with the forfeiture
of such awards, (D) the acquisition by the trustee of the Company 401(k) Plan of
shares of Company Common Stock in order to satisfy participant investment
elections under the Company 401(k) Plan, (E) the acquisition by the
administrator of the Irish Share Scheme of shares of Company Common Stock in
order to satisfy participant elections under the Irish Share Scheme and (F) the
extinguishment of rights pursuant to Company Stock Equivalents in connection
with the change in a participant’s investment election under a Specified
Deferred Compensation Plan;
(iv)
except (A) in the ordinary course of business consistent with past
practice, (B) as required pursuant to the terms of any Company Benefit Plan
or other written agreement, in each case, in effect as of December 31, 2009, or
(C) as set forth in Section 3.01(h)(iv) of the Company Disclosure Letter,
(1) any granting to any director or executive officer of the Company of any
material increase in compensation, (2) any granting to any director or
executive officer of the Company of any new or increase in severance or
termination pay or (3) any entry by the Company into any employment,
consulting, severance or termination agreement with any director or executive
officer of the Company pursuant to which the total annual compensation or the
aggregate severance benefits or any benefits resulting from the execution of
this Agreement or the consummation of the transactions contemplated hereby
exceed $250,000 for the respective director or officer;
(v) any
material change in accounting methods, principles or practices by the Company or
any of its Subsidiaries affecting the consolidated assets, liabilities or
results of operations of the Company, except as required (A) by GAAP (or any
interpretation thereof), including pursuant to standards, guidelines and
interpretations of the Financial Accounting Standards Board or any similar
organization, or (B) by Law, including Regulation S-X under the
Securities Act;
(vi) any
material tax election, any amendment to a tax return with respect to any
material tax, any settlement of any controversy with respect to any material
tax, any material change in any tax accounting period, any surrender of any
claim for a material refund of taxes, in each case, by the Company or any of its
Subsidiaries, other than in the ordinary course of business;
(vii) any
transfer, sale, exclusive licensing or abandonment of any Intellectual Property
used in the conduct of the business of the Company or any of its Subsidiaries
and that is material to the Company and its Subsidiaries taken as a whole
(“Material
Intellectual Property”); or
(viii)
any agreement to do any of the foregoing.
(i) Litigation. There
is no suit, action or claim, dispute, litigation, hearing, arbitration,
mediation or other proceeding (including proceedings brought before a
governmental agency, tribunal or authority) (each, an “Action”) pending or,
to the Knowledge of the Company, threatened against the Company or any of its
Subsidiaries that, individually or in the aggregate, would reasonably be
expected to have a Material Adverse Effect. There is no Judgment
outstanding against the Company or any of its Subsidiaries that, individually or
in the aggregate, would reasonably be expected to have a Material Adverse Effect
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