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AGREEMENT AND PLAN OF MERGER
between
INVITROGEN CORPORATION
and
DEXTER CORPORATION
Dated as of July 7, 2000
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TABLE OF CONTENTS
Page
ARTICLE I
THE MERGER
Section 1.1 The Merger.........................................2
Section 1.2 Closing............................................2
Section 1.3 Effective Time.....................................2
Section 1.4 Effects of the Merger..............................3
Section 1.5 Certificate of Incorporation; Bylaws...............3
Section 1.6 Directors; Officers of Surviving Corporation.......3
ARTICLE II
CONVERSION OF SECURITIES; EXCHANGE OF CERTIFICATES
Section 2.1 Conversion of Securities...........................4
Section 2.2 Surrender and Payment..............................6
Section 2.3 Adjustments to Prevent Dilution....................9
Section 2.4 Appraisal Rights...................................9
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.1 Organization, Qualification, Etc..................10
Section 3.2 Capital Stock.....................................12
Section 3.3 Equity Investments................................13
Section 3.4 Corporate Authority Relative to this Agreement;
No Violation......................................14
Section 3.5 Reports and Financial Statements..................15
Section 3.6 No Undisclosed Liabilities........................17
Section 3.7 No Violation of Law...............................17
Section 3.8 Environmental Matters.............................17
Section 3.9 Employee Benefit Plans; ERISA.....................19
Section 3.10 Absence of Certain Changes or Events..............21
Section 3.11 Proxy Statement/Prospectus; Registration
Statement.........................................21
Section 3.12 Disclosure........................................22
Section 3.13 Tax Matters.......................................23
Section 3.14 Opinion of Financial Advisors.....................25
Section 3.15 Required Vote of Shareholders.....................25
Section 3.16 Rights Agreement..................................26
Section 3.17 Loctite Acquisition Agreement;
▇▇▇▇▇▇▇▇ Acquisition Agreement....................26
Section 3.19 Contracts.........................................26
ARTICLE IV
COVENANTS AND AGREEMENTS
Section 4.1 Conduct of Business by the Company................27
Section 4.2 Bidder Interim Operations.........................31
Section 4.3 Access; Confidentiality...........................32
Section 4.4 Shareholders Meetings;
Proxy Statement; Registration Statement...........33
Section 4.5 Commercially Reasonable Efforts; Further
Assurances........................................35
Section 4.6 Employee Matters..................................36
Section 4.7 Takeover Statute..................................38
Section 4.8 No Solicitation by the Company....................38
Section 4.9 Public Announcements..............................40
Section 4.10 Indemnification; Insurance........................40
Section 4.11 Additional Reports and Information................41
Section 4.12 Affiliates........................................42
Section 4.13 Nasdaq National Market Quotation..................42
Section 4.14 Tax-Free Reorganization...........................42
ARTICLE V
CONDITIONS TO THE MERGER
Section 5.1 Conditions to Each Party's Obligation to Effect
the Merger.........................................44
Section 5.2 Conditions to Obligation of the Bidder to Effect
the Merger.........................................45
Section 5.3 Conditions to Obligation of the Company to
Effect the Merger..................................46
ARTICLE VI
TERMINATION
Section 6.1 Termination.......................................47
Section 6.2 Effect of Termination.............................49
Section 6.3 Termination Fee...................................49
ARTICLE VII
MISCELLANEOUS
Section 7.1 No Survival of Representations and Warranties.....49
Section 7.2 Expenses..........................................50
Section 7.3 Counterparts; Effectiveness.......................50
Section 7.4 Governing Law.....................................50
Section 7.5 Notices...........................................50
Section 7.6 Assignment; Binding Effect........................51
Section 7.7 Severability......................................51
Section 7.8 Enforcement of Agreement..........................51
Section 7.9 Entire Agreement; Third-Party Beneficiaries.......52
Section 7.10 Headings..........................................52
Section 7.11 Definitions.......................................52
Section 7.12 Finders or Brokers................................52
Section 7.13 Amendment or Supplement...........................53
Section 7.14 Extension of Time, Waiver, Etc....................53
INDEX OF DEFINED TERMS
DEFINED TERM SECTION
Acquisition Agreement.................................................4.8(b)
Acquisition Proposal..................................................4.8(a)
Affiliated Group.....................................................3.13(a)
affiliates..............................................................7.11
Agreement.......................................................Introduction
▇▇▇▇▇▇▇▇ Acquisition Agreement..........................................3.17
Asset Transaction.....................................................4.8(a)
Average Bidder Trading Price..........................................4.6(a)
Bidder..........................................................Introduction
Bidder Common Stock.................................................Recitals
Bidder Disclosure Schedule..........................Article III Introduction
Bidder Shareholders Meeting...........................................4.4(a)
Business Combination Transaction......................................4.8(a)
Cancellation Price.......................................................4.6
Cash Election......................................................2.1(b)(B)
Cash Election Proration Factor.....................................2.1(b)(B)
CBCA................................................................Recitals
Certificate of Merger....................................................1.3
Certificates..........................................................2.2(a)
Charter Amendment.....................................................4.4(a)
Closing..................................................................1.2
Closing Date.............................................................1.2
Code................................................................Recitals
Company.........................................................Introduction
Company Common Stock................................................Recitals
Company Disclosure Schedule.........................Article III Introduction
Company Equity Plan.................................................4.1(vii)
Company Option Plans.....................................................4.6
Company Policies.....................................................4.10(b)
Company Representatives...............................................4.8(a)
Company Shareholder Approval.........................................3.15(a)
Company Shareholder Meeting...........................................4.4(a)
Connecticut Certificate of Merger........................................1.3
Delaware Certificate of Merger...........................................1.3
DGCL................................................................Recitals
Dissenting Shareholders..................................................2.4
Dissenting Shares........................................................2.4
Effective Time...........................................................1.3
Election Deadline.....................................................2.2(a)
Election Form.........................................................2.2(a)
Employee Stock Options...................................................4.6
Environmental Claim................................................3.8(d)(i)
Environmental Law.................................................3.8(d)(ii)
Environmental Permits.................................................3.8(a)
ERISA.................................................................3.9(a)
ERISA Affiliate.......................................................3.9(a)
Exchange Act..........................................................3.4(c)
Exchange Agent........................................................2.2(a)
Exchange Fund.........................................................2.2(a)
Exchange Ratio.....................................................2.1(b)(A)
Expiration Date.......................................................6.1(b)
GAAP.....................................................................3.5
Governmental Entity...................................................3.4(c)
Hazardous Materials..............................................3.8(d)(iii)
HSR Act...............................................................3.4(c)
including...............................................................7.11
Indemnified Parties..................................................4.10(a)
International Plans...................................................3.9(i)
Lien..................................................................3.1(b)
Life Technologies...................................................Recitals
Life Technologies Common Stock......................................Recitals
Life Technologies Equity Plan.......................................4.1(vii)
Life Technologies Merger............................................Recitals
Life Technologies Merger Agreement..................................Recitals
Loctite Acquisition Agreement...........................................3.17
Material Adverse Effect...............................................3.1(a)
Material Contracts......................................................3.19
Merger..............................................................Recitals
Merger Consideration..................................................2.1(b)
NASDAQ.............................................................2.1(b)(A)
NYSE..................................................................3.4(c)
Person..................................................................7.11
Plans.................................................................3.9(a)
Proxy Statement.......................................................4.4(b)
Registration Statement...............................................3.11(b)
Representing Party..................................Article III Introduction
Representing Party's Disclosure Schedule............Article III Introduction
Rights Agreement....................................................Recitals
Savings Plans.........................................................4.6(c)
SEC...................................................................3.5(a)
SEC Reports..............................................................3.5
Securities Act........................................................3.4(c)
Shareholders Meeting..................................................4.4(a)
Shares..............................................................Recitals
Significant Subsidiaries................................................7.11
Standard Election..................................................2.1(b)(C)
Standard Election Consideration....................................2.1(b)(C)
Stock Election.....................................................2.1(b)(A)
Stock Election Consideration.......................................2.1(b)(A)
Subsidiaries............................................................7.11
Superior Proposal.....................................................4.8(a)
Surviving Corporation....................................................1.1
Tax Return...........................................................3.13(g)
Taxes................................................................3.13(g)
Termination Date.........................................................4.1
Termination Fee..........................................................6.3
Trading Day........................................................2.1(b)(A)
AGREEMENT AND PLAN OF MERGER, dated as of July 7, 2000 (the
"Agreement"), between INVITROGEN CORPORATION, a Delaware corporation (the
"Bidder"), and DEXTER CORPORATION, a Connecticut corporation (the
"Company").
WHEREAS, the Boards of Directors of the Bidder and the Company
deem it advisable and in the best interests of their respective
shareholders that the Company be merged with and into the Bidder (the
"Merger") upon the terms and subject to the conditions provided for in this
Agreement, whereby each outstanding share of common stock, par value $1 per
share, of the Company (together with the rights associated with such shares
issued pursuant to the Rights Agreement, dated as of August 23, 1996, as
amended, between the Company and ChaseMellon Shareholder Services, L.L.C.,
as Rights Agent (the "Rights Agreement"), the "Company Common Stock" or the
"Shares") will be converted, at the holder's election, into (i) shares of
common stock, par value $.01 per share, of the Bidder (the "Bidder Common
Stock"), (ii) cash or (iii) a combination of Bidder Common Stock and cash;
WHEREAS, immediately prior to the execution and delivery of
this Agreement, the Bidder entered into an Agreement and Plan of Merger,
dated as of the date hereof (the "Life Technologies Merger Agreement"),
between the Bidder and Life Technologies, Inc., a Delaware corporation and
a Subsidiary of the Company ("Life Technologies"), pursuant to which Life
Technologies will be merged with and into the Bidder (the "Life
Technologies Merger") simultaneously with the Merger upon the terms and
subject to the conditions set forth in the Life Technologies Merger
Agreement, whereby each share of common stock, par value $.01 per share, of
Life Technologies (the "Life Technologies Common Stock") will be converted
into (i) shares of Bidder Common Stock, (ii) cash or (iii) a combination of
Bidder Common Stock and cash;
WHEREAS, the obligations of the parties hereto to consummate
this Agreement are expressly conditioned on the consummation of the
transactions contemplated by the Life Technologies Merger Agreement;
WHEREAS, for U.S. federal income tax purposes, it is intended
that the Merger and the Life Technologies Merger contemplated hereby shall
each qualify as a reorganization within the meaning of Section 368(a) of
the Internal Revenue Code of 1986, as amended (the "Code"), and that this
Agreement shall be, and is hereby, adopted as a plan of reorganization for
purposes of Section 368 of the Code; and
WHEREAS, the Boards of Directors of the Bidder and the Company
have each approved and adopted this Agreement and approved the Merger in
accordance with the General Corporation Law of the State of Delaware (the
"DGCL"), in the case of the Bidder, and in accordance with the Connecticut
Business Corporation Act (the "CBCA"), in the case of the Company, and upon
the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the representations,
warranties, covenants and agreements contained in this Agreement, and
intending to be legally bound hereby, the Bidder and the Company agree as
follows:
ARTICLE I
THE MERGER
Section 1.1 The Merger. Upon the terms and subject to the
conditions set forth in this Agreement, and in accordance with the DGCL and
the CBCA, at the Effective Time the Company shall merge with and into the
Bidder, and the separate corporate existence of the Company shall thereupon
cease, and the Bidder shall be the surviving corporation in the Merger (the
"Surviving Corporation"). The Surviving Corporation shall possess all the
rights, privileges, powers and franchises of a public as well as of a
private nature and shall be subject to all of the restrictions,
disabilities, duties, debts and obligations of the Company and the Bidder,
all as provided in the DGCL and the CBCA.
Section 1.2 Closing. The closing of the Merger (the "Closing")
will take place at 10:00 a.m. on a date to be specified by the parties (the
"Closing Date"), which shall be no later than the second business day after
satisfaction or waiver of the conditions set forth in Article V, unless
another time or date, or both, are agreed to by the parties hereto. The
Closing will be held at the offices of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇
LLP, Four Times Square, New York, New York, unless another place is agreed
to by the parties hereto.
Section 1.3 Effective Time. Subject to the provisions of this
Agreement, on the Closing Date the parties shall (i) file with the
Secretary of State of the State of Delaware a certificate of merger (the
"Delaware Certificate of Merger") and (ii) file with the Secretary of State
of the State of Connecticut a certificate of merger (the "Connecticut
Certificate of Merger" and together with the Delaware Certificate of
Merger, the "Certificates of Merger"), in each case, executed in accordance
with the relevant provisions of the DGCL or the CBCA, as the case may be,
and shall make all other filings or recordings required under the DGCL and
the CBCA in order to effect the Merger. The Merger shall become effective
upon the filing of the Certificates of Merger or at such other time as is
agreed by the parties hereto and specified in the Certificates of Merger
(the time at which the Merger becomes fully effective being hereinafter
referred to as the "Effective Time"); provided that the Merger and the Life
Technologies Merger shall occur simultaneously.
Section 1.4 Effects of the Merger. The Merger shall have the
effects set forth in Section 259 of the DGCL and Section 33-820 of the
CBCA.
Section 1.5 Certificate of Incorporation; Bylaws.
(a) At the Effective Time, the Certificate of
Incorporation of the Bidder, as in effect immediately prior to the
Effective Time, shall be the Certificate of Incorporation of the Surviving
Corporation until thereafter amended as provided by the DGCL and such
Certificate of Incorporation; provided, however, the first paragraph of
Article IV of the Certificate of Incorporation of the Bidder shall be
amended to read in its entirety to read as follows:
"The total number of shares of capital stock which the
Corporation shall have authority to issue is 131,405,884, of
which (a) 6,405,884 shares shall be preferred stock, par value
$.01 per share ("Preferred Stock"), and (b) 125,000,000 shares
shall be common stock, par value $.01 per share."
(b) At the Effective Time, the Bylaws of the Bidder, as
in effect immediately prior to the Effective Time, shall be the Bylaws of
the Surviving Corporation until thereafter amended as provided by the DGCL,
the Certificate of Incorporation of the Surviving Corporation and such
Bylaws.
Section 1.6 Directors; Officers of Surviving Corporation.
(a) The directors of the Bidder at the Effective Time
shall be the directors of the Surviving Corporation until their respective
successors are duly elected and qualified or their earlier death,
resignation or removal in accordance with the Certificate of Incorporation
and Bylaws of the Surviving Corporation.
(b) The officers of the Bidder at the Effective Time
shall be the officers of the Surviving Corporation until their respective
successors are duly elected and qualified or their earlier death,
resignation or removal in accordance with the Certificate of Incorporation
and Bylaws of the Surviving Corporation.
ARTICLE II
CONVERSION OF SECURITIES; EXCHANGE OF CERTIFICATES
Section 2.1 Conversion of Securities. At the Effective Time, by
virtue of the Merger and without any action on the part of the holders of
any securities of the Bidder or the Company:
(a) Each issued and outstanding Share that is owned by
the Bidder or the Company or any of their respective Subsidiaries shall
automatically be cancelled and retired and shall cease to exist and no
consideration shall be delivered in exchange therefor.
(b) Subject to the provisions of Sections 2.2(h) and 2.4,
each issued and outstanding Share, other than Shares cancelled and retired
in accordance with Section 2.1(a) and Dissenting Shares, shall be
converted, at the election of the holder thereof in accordance with the
procedures set forth herein, into one of the following (as adjusted
pursuant to the provisions of this Section 2.1, the "Merger
Consideration"):
(A) for each such Share with respect to which an
election to receive only Bidder Common Stock has been effectively
made and not revoked or lost pursuant to Section 2.2(a) (a "Stock
Election"), the right to receive that fraction of a share of Bidder
Common Stock calculated by dividing (x) $62.50 by (y) the Average
Bidder Trading Price (as hereinafter defined), rounded to four
decimal places (the "Exchange Ratio"). As used herein, the "Average
Bidder Trading Price" shall mean the average of the reported closing
sales prices per share of Bidder Common Stock as reported in The Wall
Street Journal for the 20 consecutive Nasdaq National Market trading
days (each, a "Trading Day") ending on (and including) the third
Trading Day prior to the date of the Company Shareholders Meeting;
provided, however, that if the quotient obtained as prescribed in the
preceding sentence exceeds 1.0417, then for all purposes the Exchange
Ratio shall be 1.0417, and if such quotient is less than 0.7813, then
for all purposes the Exchange Ratio shall be 0.7813 (the "Stock
Election Consideration").
(B) for each such Share with respect to which an
election to receive only cash has been effectively made and not
revoked or lost pursuant to Section 2.2(a) (a "Cash Election"), (i)
the right to receive an amount in cash equal to $62.50 multiplied by
the Cash Election Proration Factor, without interest except as set
forth in Section 2.2(b), plus (ii) if the Cash Election Proration
Factor is less than 1, a fraction of a share of Bidder Common Stock
equal to the Exchange Ratio multiplied by a fraction the numerator of
which is $62.50 minus the cash determined pursuant to clause (i) and
the denominator of which is $62.50. As used herein, the "Cash
Election Proration Factor" means the lesser of (x) 1.00 or (y) a
fraction (i) the numerator of which is (1) the product of the total
number of Shares outstanding multiplied by $17.50 minus (2) $17.50
multiplied by the number of Shares for which Standard Elections have
been effectively made and not revoked or lost, and (ii) the
denominator of which is the product of $62.50 multiplied by the
number of Shares for which Cash Elections have been effectively made
and not revoked or lost.
(C) for each such Share as to which neither a Stock
Election nor a Cash Election has been effectively made and not
revoked or lost pursuant to Section 2.2(a) (a "Standard Election"),
the right to receive $17.50 in cash, plus a fraction of a share of
Bidder Common Stock equal to the Exchange Ratio multiplied by .7200
(the "Standard Election Consideration").
(c) Each Person who, at the Effective Time, is a record
holder of Shares (other than Shares to be cancelled as set forth in Section
2.1(a) or Dissenting Shares) shall have the right to submit an Election
Form specifying the number of Shares that such Person desires to have
converted into shares of Bidder Common Stock, the number of Shares that
such Person desires to have converted into the right to receive cash and
Bidder Common Stock, if any, and the number of Shares that such Person
desires to have converted into the right to receive the Standard Election
Consideration. Any Person who fails properly to submit an Election Form on
or prior to the Election Deadline in accordance set forth in Section 2.2(a)
shall be deemed to have made a Standard Election.
(d) Each share of Bidder Common Stock issued and
outstanding immediately prior to the Effective Time shall on and after the
Effective Time continue to be issued and outstanding as an identical share
of Bidder Common Stock.
(e) Each share of Bidder Common Stock issued and held in
the treasury or by any Subsidiary of the Bidder as of the Effective Time,
if any, shall, on and after the Effective Time, continue to be issued and
held in the treasury of the Bidder or such Subsidiary unaffected by the
Merger.
Section 2.2 Surrender and Payment.
(a) Exchange Agent. Prior to the Effective Time, the
Bidder shall appoint an agent (the "Exchange Agent") for the purpose of (i)
exchanging certificates representing Shares (the "Certificates") for the
Merger Consideration. At the Effective Time the Bidder will deposit with
the Exchange Agent the Merger Consideration and cash in the amount required
by Section 2.2(g) (the "Exchange Fund"). Upon receipt, the Exchange Agent
will invest the cash portion of the Exchange Fund in United States
government securities maturing at the Election Deadline or such other
government securities maturing at the Election Deadline or such other
investments as the Bidder and the Company may mutually agree. Any interest
and other income resulting from such investments shall be paid to the
Bidder. Promptly after the Effective Time, the Exchange Agent will send to
each holder of Shares a letter of transmittal and instructions (which shall
specify that the delivery shall be effected, and risk of loss and title
shall pass, only upon proper delivery of the Certificates to the Exchange
Agent) for use in such exchange, and to each holder of Shares an election
form (the "Election Form") providing for such holders to make the Standard
Election, the Cash Election or the Stock Election. Any Standard Election
(other than a deemed Standard Election), Cash Election or Stock Election
shall be validly made only if the Exchange Agent shall have received by
5:00 p.m., New York City Time, on a date (the "Election Deadline") to be
mutually agreed upon by the Bidder and the Company (which date shall not be
later than the twentieth Business Day after the Effective Time), an
Election Form properly completed and executed (with the signature or
signatures thereon guaranteed to the extent required by the Election Form)
by such holder accompanied by such holder's Certificates, or by appropriate
guarantees of delivery of such Certificates from a member of any national
securities exchange or of the National Association of Securities Dealers or
a commercial bank or trust company in the United States as set forth in
such Election Form. Any holder of Shares who has made an election by
submitting an Election Form to the Exchange Agent may at any time prior to
the Election Deadline change such holder's election by submitting a revised
Election Form, properly completed and signed that is received by the
Exchange Agent prior to the Election Deadline. Any holder of Shares may at
any time prior to the to the Election Deadline revoke his election and
withdraw his Certificates deposited with the Exchange Agent by written
notice to the Exchange Agent received by the close of business on the day
prior to the Election Deadline, and such holder will receive the Standard
Election Consideration.
(b) Letter of Transmittal. Upon surrender to the Exchange
Agent of its Certificate, together with a properly completed letter of
transmittal, each holder of Shares will be entitled to receive promptly
after the Election Deadline the Merger Consideration in respect of the
Shares represented by its Certificate. In addition, each such holder of
Shares shall be entitled to receive any dividends and distributions payable
pursuant to Section 2.2(g). Until so surrendered, each such Certificate
shall represent after the Effective Time, for all purposes, only the right
to receive the Merger Consideration.
(c) Payment to Non-Registered Owners. If any portion of
the Merger Consideration is to be paid to a Person other than the Person in
whose name the Certificate so surrendered is registered, it shall be a
condition to such payment that such Certificate shall be properly endorsed
or otherwise be in proper form for transfer and the Person requesting such
payment shall pay to the Exchange Agent any transfer or other Taxes
required as a result of such payment to a Person other than the registered
holder of such Certificate, or establish to the satisfaction of the
Exchange Agent that such Tax has been paid or is not payable.
(d) No Further Registration of Transfers. After the
Effective Time there shall be no further registration of transfers of
Shares. If after the Effective Time Certificates are presented to the
Surviving Corporation, they shall be cancelled and exchanged for the Merger
Consideration in accordance with the procedures set forth in this Article
II.
(e) Termination of Exchange Fund; No Liability. At any
time following the first anniversary of the Effective Time, the Surviving
Corporation shall be entitled to require the Exchange Agent to deliver to
it any remaining portion of the Exchange Fund (including any interest
received with respect thereto), and holders shall be entitled to look only
to the Surviving Corporation (subject to abandoned property, escheat or
other similar laws) with respect to the Merger Consideration, any cash in
lieu of fractional shares of Bidder Common Stock and any dividends or other
distributions with respect to Bidder Common Stock payable upon due
surrender of their Certificates, without any interest thereon.
Notwithstanding the foregoing, neither the Surviving Corporation nor the
Exchange Agent shall be liable to any holder of a Certificate for Merger
Consideration (or dividends or distributions with respect thereto) or cash
from the Exchange Fund in each case delivered to a public official pursuant
to any applicable abandoned property, escheat or similar law.
(f) Lost, Stolen or Destroyed Certificates. In the event
any Certificates for Shares shall have been lost, stolen or destroyed, upon
the making of an affidavit of that fact by the Person claiming such
Certificate(s) to be lost, stolen or destroyed and, if required by the
Bidder, the posting by such Person of a bond in such sum as the Bidder may
reasonably direct as indemnity against any claim that may be made against
it or the Surviving Corporation with respect to such Certificate(s), the
Exchange Agent will issue the Merger Consideration pursuant to Section
2.1(b) deliverable in respect of the Shares represented by such lost,
stolen or destroyed Certificates.
(g) Dividends; Distributions. No dividends or other
distributions with respect to Bidder Common Stock with a record date after
the Effective Time shall be paid to the holder of any unsurrendered
Certificate with respect to the shares of Bidder Common Stock represented
thereby, and no cash payment in lieu of fractional shares shall be paid to
any such holder pursuant to Section 2.2(h), and all such dividends, other
distributions and cash in lieu of fractional shares of Bidder Common Stock
shall be paid by the Bidder to the Exchange Agent and shall be included in
the Exchange Fund, in each case until the surrender of such Certificate in
accordance with this Article II. Subject to the effect of applicable
abandoned property, escheat or similar laws, following surrender of any
such Certificate there shall be paid to the holder of a Bidder Certificate
representing whole shares of Bidder Common Stock issued in exchange
therefor, without interest, (i) at the time of such surrender, the amount
of dividends or other distributions with a record date after the Effective
Time theretofore paid with respect to such whole shares of Bidder Common
Stock and the amount of any cash payable in lieu of a fractional share of
Bidder Common Stock to which such holder is entitled pursuant to Section
2.2(h), and (ii) at the appropriate payment date, the amount of dividends
or other distributions with a record date after the Effective Time but
prior to such surrender and with a payment date subsequent to such
surrender payable with respect to such whole shares of Bidder Common Stock.
The Bidder shall make available to the Exchange Agent cash for these
purposes, if necessary.
(h) No Fractional Shar No Bidder Certificates or scrip
representing fractional shares of Bidder Common Stock shall be issued upon
the surrender for exchange of Certificates; no dividend or distribution by
the Bidder shall relate to such fractional share interests; and such
fractional share interests will not entitle the owner thereof to vote or to
any rights as a shareholder of the Bidder. In lieu of any such fractional
shares, each holder of Certificate who would otherwise have been entitled
to receive a fractional share interest in exchange for such Certificate
pursuant to this Section shall receive from the Exchange Agent an amount in
cash equal to the product obtained by multiplying (A) the fractional share
interest to which such holder (after taking into account all Shares held by
such holder at the Effective Time) would otherwise be entitled by (B) the
average reported closing sales price for a share of Bidder Common Stock as
reported in The Wall Street Journal (or if not reported thereby, any other
authoritative source) for five consecutive Trading Days immediately
preceding the Closing Date. The Bidder shall provide the Exchange Agent the
aggregate amount of cash payable pursuant to this Section 2.2(h) promptly
following the Effective Time.
Section 2.3 Adjustments to Prevent Dilution. In the event that
the Bidder changes the number of outstanding shares of Bidder Common Stock
or the number of outstanding securities convertible or exchangeable into or
exercisable for shares of Bidder Common Stock prior to the Effective Time
as a result of a reclassification, stock split (including a reverse split),
stock dividend or distribution, recapitalization, subdivision, or other
similar transaction, or declares or pays any dividend or distribution
(including of rights) other than any regular quarterly cash dividends, the
Stock Election Consideration and the Standard Election Consideration will
be correspondingly and equitably adjusted to reflect such stock dividend,
subdivision, split, combination of shares or other specified transaction.
Section 2.4 Appraisal Rights. Notwithstanding anything in this
Agreement to the contrary, Shares that are issued and outstanding
immediately prior to the Effective Time and which are held by shareholders
who did not vote in favor of the Merger and who comply with all the
relevant provisions of Section 33-861 of the CBCA (the "Dissenting
Shareholders") shall not be converted into or be exchangeable for the right
to receive the Merger Consideration (the "Dissenting Shares"), unless and
until the holder or holders thereof shall have failed to perfect or shall
have effectively withdrawn or lost their rights to appraisal under the
CBCA. If any Dissenting Shareholder shall have failed to perfect or shall
have effectively withdrawn or lost such right, such holder's Shares shall
thereupon be converted into and become exchangeable for the right to
receive, as of the Effective Time, the Merger Consideration for each Share
without any interest thereon. The Company shall give the Bidder (i) prompt
notice of any written demands for appraisal of any Shares, attempted
withdrawals of such demands and any other instruments served pursuant to
the CBCA and received by the Company relating to shareholders' rights of
appraisal, and (ii) the opportunity to direct all negotiations and
proceedings with respect to demands for appraisal under the CBCA; provided,
however, the Company shall have the right to participate in any such
negotiations and proceedings. The Company shall not, except with the prior
written consent of the Bidder, voluntarily make any payment with respect
to, or settle or offer to settle, any such demand for payment. If any
Dissenting Shareholder shall fail to perfect or shall have effectively
withdrawn or lost the right to dissent, the Shares held by such Dissenting
Shareholder shall thereupon be treated as though such Shares had been
converted into the right to receive the Standard Election Consideration
pursuant to Section 2.1(b).
Section 2.5 Withholding Rights. The Bidder shall be entitled to
deduct and withhold from the consideration otherwise payable to any Person
pursuant to this Article II such amounts as it is required to deduct and
withhold with respect to the making of such payment under any provision of
federal, state, local or foreign Tax law. If the Bidder so withholds
amounts, such amounts shall be treated for all purposes of this Agreement
as having been paid to the holders of Shares in respect of which the Bidder
made such deduction and withholding.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Except as set forth on the schedule delivered by the Company to
the Bidder in connection with the execution and delivery of this Agreement
(the "Company Disclosure Schedule") the Company hereby represents and
warrants to the Bidder, and except as set forth in the disclosure schedule
delivered by the Bidder to the Company in connection with the execution and
delivery of this Agreement (the "Bidder Disclosure Schedule), the Bidder
hereby represents and warrants to the Company, in each case as set forth in
this Article III, with the party making such representations and warranties
being referred to as the "Representing Party" and such Representing Party's
Disclosure Schedule as the "Representing Party's Disclosure Schedule."
Notwithstanding the foregoing, any representation or warranty which
expressly refers to the Bidder or its Subsidiaries is being made solely by
the Bidder and any representation or warranty which expressly refers to the
Company or Life Technologies or their respective Subsidiaries is being made
solely by the Company.
Section 3.1 Organization, Qualification, Etc.
(a) The Representing Party is a corporation duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation and has the corporate power and authority
required for it to own its properties and assets and to carry on its
business as it is now being conducted. The Representing Party is duly
qualified to do business and is in good standing in each jurisdiction in
which the ownership of its properties or the conduct of its business
requires such qualification, except for jurisdictions in which the failure
to be so qualified or in good standing would not, individually or in the
aggregate, be reasonably likely to have a Material Adverse Effect on the
Representing Party or substantially delay consummation of the transactions
contemplated by this Agreement or otherwise prevent the Representing Party
from performing its obligations hereunder. As used in this Agreement, any
reference to any state of facts, event, change or effect having a
"Material Adverse Effect" on or with respect to the Representing Party
means a material adverse effect on the financial condition, assets,
liabilities or results of operations of the Representing Party and its
Subsidiaries, taken as a whole, excluding any such effect resulting from or
arising in connection with (A) changes or conditions generally affecting
the industries in which the Representing Party and its Subsidiaries operate
unless, in the case of the Company, such changes or effects have a
disproportionate effect on the Company and its Subsidiaries, taken as a
whole, or (B) changes in general economic, regulatory or political
conditions, unless, in the case of the Company, such changes have a
disproportionate effect on the Company and its Subsidiaries, taken as a
whole. Each Representing Party has made available to the other copies of
its certificate of incorporation and bylaws. Such copies of each
Representing Party's certificate of incorporation and bylaws are complete
and correct and in full force and effect, and the Representing Party is not
in violation of any of the provisions of its certificate of incorporation
or bylaws.
(b) Each of the Representing Party's Subsidiaries is a
corporation duly organized, validly existing and in good standing under the
laws of its jurisdiction of incorporation or organization. Each of the
Representing Party's Subsidiaries has the corporate power and authority
required for it to own its properties and assets and to carry on its
business as it is now being conducted and is duly qualified to do business
and is in good standing in each jurisdiction in which the ownership of its
properties or the conduct of its business requires such qualification,
except for jurisdictions in which the failure to be so qualified or in good
standing would not, individually or in the aggregate, be reasonably likely
to have a Material Adverse Effect on the Representing Party. All the
outstanding shares of capital stock of, or other ownership interests in,
the Representing Party's Subsidiaries are duly authorized, validly issued,
fully paid and non-assessable and, with respect to such shares or ownership
interests that are owned by the Representing Party and its Subsidiaries,
are owned free and clear of all liens, claims, mortgages, encumbrances,
pledges and security interests of any kind (each, a "Lien"). All the
outstanding shares of capital stock of, or other ownership interests in,
the Representing Party's Subsidiaries are wholly owned by the Representing
Party, directly or indirectly, except for the Life Technologies Common
Stock of which the Company beneficially owns as of the date hereof
18,815,447 shares. Section 3.1(b) of the Company Disclosure Schedule sets
forth a list of each Subsidiary of the Company.
Section 3.2 Capital Stock.
(a) Section 3.2(a) of the Representing Party's Disclosure
Schedule sets forth as of June 30, 2000:
(i) the number of authorized shares of each class or
series of capital stock of the Representing Party and, in the case of the
Company Disclosure Schedule, Life Technologies;
(ii) the number of shares of each class or series of
capital stock of the Representing Party and, in the case of the Company
Disclosure Schedule, Life Technologies, which are issued and outstanding;
(iii) the number of shares of each class or series of
capital stock which are held in the treasury of such Representing Party
and, in the case of the Company Disclosure Schedule, Life Technologies;
(iv) the number of shares of each class or series of
capital stock of the Representing Party and, in the case of the Company
Disclosure Schedule, Life Technologies, which are reserved for issuance,
indicating each specific reservation; and
(v) the number of shares of each class or series of
capital stock of such Representing Party and, in the case of the Company
Disclosure Schedule, Life Technologies, which are subject to employee stock
options or other rights to purchase or receive capital stock granted under
such Person's stock option or other stock based employee or non-employee
director benefit plans, and, with respect to the Company, indicating the
name of the plan, the date of grant, the number of shares and the exercise
price thereof.
(b) All the outstanding shares of capital stock of the
Representing Party are, and all shares of Bidder Common Stock to be issued
in the Merger will be when issued in accordance with the terms of this
Agreement, duly authorized, validly issued, fully paid and non-assessable
and issued in compliance with all applicable U.S. state and federal and
foreign securities laws. Except as set forth in Section 3.2(a) of the
Representing Party's Disclosure Schedule, for the Company's obligations
under the Rights Agreement, and for the transactions contemplated by this
Agreement, (1) there are no shares of capital stock of the Representing
Party authorized, or as of the date of this Agreement issued or
outstanding, (2) as of the date of this Agreement there are no authorized
or outstanding options, warrants, calls, preemptive rights, subscriptions
or other rights, agreements, arrangements or commitments of any character
relating to the issued or unissued capital stock of the Representing Party
or any of its Subsidiaries, obligating the Representing Party or any of its
Subsidiaries to issue, transfer or sell or cause to be issued, transferred
or sold any shares of capital stock or other equity interest in the
Representing Party or any of its Subsidiaries or securities convertible
into or exchangeable for such shares or equity interests, or
obligating the Representing Party or any of its Subsidiaries to grant,
extend or enter into any such option, warrant, call, subscription or other
right, agreement, arrangement or commitment, and (3) there are no
outstanding contractual obligations of the Representing Party or any of its
Subsidiaries to repurchase, redeem or otherwise acquire any shares of
capital stock of the Representing Party or any Subsidiary of the
Representing Party or to provide funds to make any investment (in the form
of a loan, capital contribution or otherwise) in any Subsidiary of the
Representing Party or other entity.
Section 3.3 Equity Investments.
(a) Section 3.3(a) of the Company's Disclosure Schedule
sets forth: (i) the name of each corporation, partnership, joint venture or
other entity (other than the Subsidiaries) in which the Company or Life
Technologies has, or pursuant to any agreement has the right to acquire by
any means, directly or indirectly, an equity interest or investment; (ii)
in the case of each of such Person described in the foregoing clause (i),
either (x) a listing of relevant agreement or agreements pursuant to which
the Company has acquired such right or such interest or investment or (y)
(A) the jurisdiction of incorporation and (B) the authorized and
outstanding capitalization thereof and the percentage of each class of
voting capital stock owned, directly or indirectly, by the Company.
(b) Except as set forth in Schedule 3.3(b), Life
Technologies' interest, if any, in any of the Persons listed on Schedule
3.3(a) which are stated to be owned directly or indirectly by Life
Technologies (except for directors' qualifying shares, if any, which the
Company will cause to be transferred at the Effective Time to nominees of
the Bidder), will, after giving effect to the transactions contemplated
hereby, be owned by the Bidder, directly or indirectly, in each case, free
and clear of all Liens.
Section 3.4 Corporate Authority Relative to this Agreement; No
Violation.
(a) The Company has the corporate power and authority to
enter into this Agreement and to carry out its obligations hereunder. The
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly and validly authorized by
the Board of Directors of the Company and, except for obtaining the Company
Shareholder Approval and the filing of the Connecticut Certificate of
Merger, no other corporate proceedings on the part of the Company are
necessary to authorize the consummation of the transactions contemplated
hereby. The Board of Directors of the Company has approved the entry into
this Agreement and the consummation of the transactions contemplated hereby
by the Company and has taken all appropriate action such that Sections
33-841 and 33-844 of the CBCA will not be applicable to the Company or to
the Bidder by virtue of either the Company's or the Bidder's entering into
this Agreement or consummating the transactions contemplated hereby. The
Board of Directors of Life Technologies has taken all appropriate action so
that Section 203 of the DGCL, with respect to Life Technologies, will not
be applicable to the Bidder for any purpose. This Agreement has been duly
and validly executed and delivered by the Company and, assuming this
Agreement constitutes a valid and binding agreement of the Bidder,
constitutes a valid and binding agreement of the Company, enforceable
against the Company in accordance with its terms.
(b) The Bidder has the corporate power and authority to
enter into this Agreement and to carry out its obligations hereunder. The
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly and validly authorized by
the Board of Directors of the Bidder, and other than the Bidder Shareholder
Approval and the filing of the Connecticut Certificate of Merger and the
Delaware Certificate of Merger no other corporate proceedings on the part
of the Bidder are necessary to authorize the consummation of the
transactions contemplated hereby. This Agreement has been duly and validly
executed and delivered by the Bidder and, assuming this Agreement
constitutes a valid and binding agreement of the Company, constitutes a
valid and binding agreement of each of the Bidder, enforceable against the
Bidder in accordance with its terms.
(c) Except for the filings, permits, authorizations,
consents and approvals set forth in Section 3.4(c) of the Representing
Party's Disclosure Schedule or as may be required under, and other
applicable requirements of, the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder (the "Securities Act") (in the
case of the Bidder only), the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder (the "Exchange Act"),
the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as amended (the
"HSR Act"), state securities or blue sky laws and the rules and regulations
of the New York Stock Exchange (the "NYSE") (in the case of the Company
only), state securities or blue sky laws and the rules and regulations of
the Nasdaq National Market (in the case of the Bidder), or the
anti-competition laws or regulations of the European Union or any foreign
jurisdiction in which the Company or the Bidder (directly or through
Subsidiaries, in each case) has material assets or conducts material
operations, and the filing of the Certificates of Merger under the DGCL and
the CBCA, none of the execution, delivery or performance of this Agreement
by the Representing Party, the consummation by the Representing Party of
the transactions contemplated hereby or compliance by the Representing
Party with any of the provisions hereof will (i) conflict with or result in
any breach of any provision of the certificate of incorporation, bylaws or
similar organizational documents of the Representing Party or any of its
Subsidiaries, (ii) require any filing with, or permit, authorization,
consent or approval of, any federal, regional, state or local court,
arbitrator, tribunal, administrative agency or commission or other
governmental or other regulatory authority or agency, whether U.S. or
foreign (a "Governmental Entity"), (iii) result in a violation or breach
of, or constitute (with or without due notice or lapse of time or both) a
default (or give rise to any right of termination, amendment, cancellation
or acceleration) under, any of the terms, conditions or provisions of any
note, bond, mortgage, indenture, lease, license, contract, agreement or
other instrument or obligation to which the Representing Party or any of
its Subsidiaries is a party or by which any of them or any of their
properties or assets may be bound, or (iv) violate any order, writ,
injunction, decree, judgment, permit, license, ordinance, law, statute,
rule or regulation applicable to the Representing Party, any of its
Subsidiaries or any of their properties or assets, excluding from the
foregoing clauses (ii), (iii) and (iv) such filings, permits,
authorizations, consents, approvals, violations, breaches or defaults which
are not, individually or in the aggregate, reasonably likely to have a
Material Adverse Effect on the Representing Party or prevent or
substantially delay the consummation of the transactions contemplated
hereby.
Section 3.5 Reports and Financial Statements. The Representing
Party has previously furnished or otherwise made available (by electronic
filing or otherwise) to the Bidder true and complete copies of:
(a) Annual Reports on Form 10-K filed with the Securities
and Exchange Commission (the "SEC") for each of the years ended December
31, 1998 and 1999 in the case of the Company and Life Technologies and the
year ended December 31, 1999 in the case of Bidder.
(b) the Quarterly Report on Form 10-Q filed with the SEC
for the quarter ended March 31, 2000, for each of the Representing Parties
and, in the case of the Company, for Life Technologies;
(c) each definitive proxy statement filed with the SEC
since December 31, 1998, for each of the Representing Parties and, in the
case of the Company, for Life Technologies;
(d) each final prospectus filed with the SEC since
December 31, 1998, except any final prospectus on Form S-8, for each of the
Representing Parties and, in the case of the Company, for Life
Technologies; and
(e) all Current Reports on Form 8-K filed with the SEC
since January 1, 2000, for each of the Representing Parties and, in the
case of the Company, for Life Technologies.
As of their respective dates, such reports, proxy statements and
prospectuses filed with the SEC by the Representing Party (collectively
with, and giving effect to, all amendments, supplements and exhibits
thereto, the "SEC Reports") (i) complied as to form in all material
respects with the applicable requirements of the Securities Act and the
Exchange Act, and (ii) did not contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading. Other than Life Technologies
which is registered under Section 12 of the Exchange Act, none of the
Representing Party's Subsidiaries is required to file any forms, reports or
other documents with the SEC. The audited consolidated financial statements
and unaudited consolidated interim financial statements included in the
Representing Party's (and in the case of the Company, Life Technologies')
SEC Reports (including any related notes and schedules) fairly present in
all material respects the financial position of the Bidder, the Company or
Life Technologies and its consolidated Subsidiaries, as the case may be, as
of the dates thereof and the results of operations and cash flows for the
periods or as of the dates then ended (subject, in the case of the
unaudited interim financial statements, to normal recurring year-end
adjustments), in each case in accordance with past practice and generally
accepted accounting principles in the United States ("GAAP") consistently
applied during the periods involved (except as otherwise disclosed in the
notes thereto). Since the date of Bidder's initial public offering, the
Bidder has timely filed all reports, registration statements and other
filings required to be filed by it with the SEC under the rules and
regulations of the SEC. Since January 1, 1999, each of the Company and Life
Technologies has timely filed all reports, registration statements and
other filings required to be filed by it with the SEC under the rules and
regulations of the SEC.
Section 3.6 No Undisclosed Liabilities. Neither the
Representing Party nor any of its Subsidiaries has any liabilities or
obligations of any nature required to be set forth on a balance sheet of
the Representing Party under GAAP, whether or not accrued, contingent or
otherwise, and there is no existing condition, situation or set of
circumstances which would be expected to result in such a liability or
obligation, except (a) liabilities or obligations reflected in the
Representing Party's SEC Reports or (b) liabilities and obligations which
are not, individually or in the aggregate, reasonably expected to have a
Material Adverse Effect on the Representing Party.
Section 3.7 No Violation of Law. The businesses of the
Representing Party and its Subsidiaries are not being conducted in
violation of any order, writ, injunction, decree, judgment, permit,
license, ordinance, law, statute, rule or regulation of any Governmental
Entity (provided that no representation or warranty is made in this Section
3.7 with respect to Environmental Laws), except (a) as described in the
Representing Party's SEC Reports, and (b) for violations or possible
violations which would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect on the Representing Party.
Section 3.8 Environmental Matters.
(a) Each of the Representing Party and its Subsidiaries
has obtained all licenses, permits, authorizations, approvals and consents
from Governmental Entities which are required under any applicable
Environmental Law and necessary for it to carry on its business or
operations as now conducted ("Environmental Permits"), except for such
failures to have Environmental Permits which, individually or in the
aggregate, are not reasonably expected to have a Material Adverse Effect on
the Representing Party. Each of such Environmental Permits is in full force
and effect, and each of the Representing Party and its Subsidiaries is in
compliance with the terms and conditions of all such Environmental Permits
and with all applicable Environmental Laws, except for such failures to be
in full force and effect or to be in compliance which, individually or in
the aggregate, are not reasonably likely to have a Material Adverse Effect
on the Representing Party.
(b) There are no Environmental Claims pending, or to the
knowledge of the Representing Party, threatened, against the Representing
Party or any of its Subsidiaries, or, to the knowledge of the Representing
Party, any Person whose liability for any such Environmental Claim the
Representing Party or any of its Subsidiaries has or may have retained or
assumed either contractually or by operation of law for which reserves have
not been established in accordance with GAAP, that, individually or in the
aggregate, would have a Material Adverse Effect on the Representing Party.
As of the date of this Agreement, the Company has available cash resources
that are adequate to fund the GAAP reserves that the Company has
established in respect of Environmental Claims, and such cash resources
will be adequate for such purpose at the Effective Time; provided that
there shall have been no change outside the ordinary course of business in
the capitalization or asset base of the Company's captive insurance
companies.
(c) There are no past or present actions, activities,
circumstances, conditions, events or incidents, including, without
limitation, the release, threatened release or presence of any Hazardous
Material, that would form the basis of any Environmental Claim against the
Representing Party or any of its Subsidiaries, or for which the
Representing Party or any of its Subsidiaries is liable, except for such
liabilities which, individually or in the aggregate, are not reasonably
likely to have a Material Adverse Effect on the Representing Party.
(d) As used in this Agreement:
(i) "Environmental Claim" means any claim, action,
lawsuit or proceeding by any Person which seeks to impose liability
(including, without limitation, liability for investigatory costs,
cleanup costs, governmental response costs, natural resources,
damages, property damages, personal injuries or penalties) arising
out of, based on or resulting from (A) the presence, or release or
threatened release, of any Hazardous Materials at any location,
whether or not owned or operated by the Representing Party or any of
its Subsidiaries, or (B) circumstances which would give rise to any
violation, or alleged violation, of any Environmental Law.
(ii) "Environmental Law" means any law or order of
any Governmental Entity relating to (A) the generation, treatment,
storage, disposal, use, handling, manufacturing, transportation or
shipment of, or (B) the environment or to emissions, discharges,
releases or threatened releases of, Hazardous Materials, into the
environment.
(iii) "Hazardous Materials" means (A) any petroleum
or petroleum products, radioactive materials or friable asbestos; (B)
any chemicals or other materials or substances which are now defined
as or included in the definition of "hazardous substances,"
"hazardous wastes," "hazardous materials," "extremely hazardous
wastes," "restricted hazardous wastes," "toxic substances," or "toxic
pollutants" under any Environmental Law; and (C) pesticides.
Section 3.9 Employee Benefit Plans; ERISA.
(a) Section 3.9(a) of the Representing Party's Disclosure
Schedule contains a true and complete list of each material deferred
compensation, incentive compensation or equity compensation plan; "welfare"
plan, fund or program (within the meaning of Section 3(1) of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA")); "pension"
plan, fund or program (within the meaning of Section 3(2) of ERISA); each
material employment, termination or severance agreement; and each other
material employee benefit plan, fund, program, agreement or arrangement, in
each case, that is sponsored, maintained or contributed to or required
to be contributed to by the Representing Party (and, in the case of the
Company, Life Technologies) or by any trade or business, whether or not
incorporated (an "ERISA Affiliate"), that together with the Representing
Party (or Life Technologies) would be deemed at any relevant time a "single
employer" within the meaning of Section 4001(b) of ERISA, for the benefit
of any employee or former employee of the Representing Party or any
Subsidiary (the "Plans").
(b) In respect of Plans that are not International Plans,
the Representing Party has made available to the other Party: (i) correct
and complete copies of all documents embodying each Plan including (without
limitation) all amendments thereto and all related trust documents; (ii)
the most recent annual reports (Form Series 5500 and all schedules and
financial statements attached thereto), if any, required under ERISA or the
Code in connection with each Plan; and (iii) if the Plan is funded, the
most recent annual and periodic accounting Plan assets.
(c) No liability under Title IV or Section 312 of ERISA
has been incurred by the Representing Party or any ERISA Affiliate of the
Representing Party that has not been satisfied in full, and no condition
exists that presents a material risk to the Representing Party or any ERISA
Affiliate of the Representing Party of incurring any such liability, other
than liability for premiums due the Pension Benefits Guaranty Corporation
(which premiums have been paid when due), except as are not reasonably
likely to have a Material Adverse Effect on the Representing Party. To the
knowledge of the Representing Party, each Plan subject to Title IV of ERISA
or Section 412 of the Code is fully-funded on a termination basis.
(d) Neither the Representing Party nor any ERISA
Affiliate of the Representing Party has any liability to any Pension Plan
which is a "multiemployer plan" as defined in Section 3(37) of ERISA.
(e) Each Plan of the Representing Party has been operated
and administered in accordance with its terms and applicable law, including
but not limited to ERISA and the Code, except as are not reasonably likely
to have a Material Adverse Effect on the Representing Party, and each Plan
of the Representing Party intended to be "qualified" within the meaning of
Section 401(a) of the Code is so qualified and the trusts maintained
thereunder are exempt from taxation under Section 501(a) of the Code,
except for failures to so qualify or be exempt which are not, individually
or in the aggregate, reasonably likely to have a Material Adverse Effect on
the Representing Party.
(f) Section 3.9(f) of the Representing Party's Disclosure
Schedule sets forth each Plan of the Representing Party under which as a
result of the consummation of the transactions contemplated by this
Agreement, either alone or in combination with another event, (i) any
current or former employee or officer of the Representing Party or any
ERISA Affiliate of the Representing Party may become entitled to severance
pay or any other payment, except as expressly provided in this Agreement,
or (ii) any compensation due any such employee or officer may be increased
or the time of payment or vesting may become accelerated.
(g) Except as set forth in Section 3.9(g) of the
Representing Party's Disclosure Schedule, no Plan of the Representing Party
which is not an International Plan provides, or reflects or represents any
liability to provide, retiree life insurance, retiree health or other
retiree employee welfare benefits to any Person for any reason, except as
may be required by COBRA or other applicable law. The program described by
this Section 3.9(g) has at all times provided that the Representing Party
may amend and/or terminate such program without liability (except in
respect of current obligations outstanding for current retired employees
receiving benefits).
(h) There are no pending or, to the knowledge of the
Representing Party, threatened claims by of on behalf of any Plan of the
Representing Party, by any employee or beneficiary covered under any such
Plan, or otherwise involving any such Plan (other than routing claims for
benefits), except as would not, individually or in the aggregate be
reasonably likely to have a Material Adverse Effect on the Representing
Party.
(i) Each Plan of the Representing Party that has been
adopted or maintained by the Representing Party or any of its Subsidiaries,
whether formally or informally, for the benefit of employees outside the
United States ("International Plans") has been established, maintained and
administered in material compliance with its terms and conditions and with
the requirements prescribed by any and all statutory or regulatory laws
that are applicable to such International Plans. No International Plan of
the Representing Party has unfunded liabilities that would, individually or
in the aggregate, be reasonably likely to have a Material Adverse Effect on
the Representing Party.
(j) Except as set forth in Section 3.9(j) of the
Representing Party's Disclosure Schedule, the Representing Party is not
bound by or obligated under any labor, collective bargaining or union
agreements.
Section 3.10 Absence of Certain Changes or Events. Except as
disclosed in the Representing Party's SEC Reports, since December 31, 1999
(a) the businesses of the Representing Party and its Subsidiaries have been
conducted in all material respects in the ordinary course and (b) there has
not been any event, occurrence, development or state of circumstances or
facts that has had, or is reasonably likely to have, individually or in the
aggregate, a Material Adverse Effect on the Representing Party.
Section 3.11 Proxy Statement/Prospectus; Registration Statement.
(a) The Proxy Statement (or any amendment or supplement
thereto) will not, on the date the Proxy Statement is mailed to
shareholders of the Company and to shareholders of the Bidder and at the
time of the Shareholders Meetings, contain any untrue statement of a
material fact, or omit to state any material fact required to be stated
therein or necessary in order to make the statements made therein, in the
light of the circumstances under which they are made, not misleading. None
of the information supplied by or on behalf of the Company or any of its
Subsidiaries for inclusion or incorporation by reference in the
Registration Statement will, at the date it becomes effective and at the
time of the Shareholders Meetings, contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein, in light of
the circumstances under which they are made, not misleading. The Proxy
Statement will, when filed by the Company and the Bidder with the SEC,
comply as to form in all material respects with the applicable provisions
of the Exchange Act. Notwithstanding the foregoing, the Company makes no
representation or warranty with respect to the statements made in any of
the foregoing documents based on and in conformity with information
supplied by or on behalf of the Bidder for inclusion or incorporation by
reference therein.
(b) The Registration Statement on Form S-4 to be filed
with the SEC by the Bidder in connection with the Merger, as amended or
supplemented from time to time (as so amended and supplemented, the
"Registration Statement"), will not, on the date of filing with the SEC or
at the time it becomes effective under the Securities Act, and on the date
the Proxy Statement is first mailed to shareholders of the Company and
shareholders of the Bidder and at the time of the Shareholders Meetings,
contain any untrue statement of a material fact, or omit to state any
material fact required to be stated therein or necessary in order to make
the statements made therein, in the light of the circumstances under which
they are made, not misleading. None of the information supplied by or on
behalf of the Bidder or any of its Subsidiaries for inclusion or
incorporation by reference in the Proxy Statement will, at the date mailed
to the shareholders of the Bidder and at the time of the Shareholders
Meetings, contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances they were made,
not misleading. The Proxy Statement will, when filed by the Bidder and the
Company, and the Registration Statement will, when filed by the Bidder with
the SEC, comply as to form in all material respects with the applicable
provisions of the Exchange Act and the rules and regulations thereunder.
Notwithstanding the foregoing, the Bidder makes no representation or
warranty with respect to the statements made in the Registration Statement
based on and in conformity with information supplied by or on behalf of the
Company specifically for inclusion or incorporation by reference therein.
Section 3.12 Disclosure The representations and warranties by
the Company in this Agreement and the statements contained in the
schedules, certificates and other writings furnished and to be furnished by
the Company to the Bidder pursuant to this Agreement, when considered as a
whole and giving effect to any supplements or amendments thereof prior to
the time of signing on the date hereof, do not and will not contain any
untrue statement of a material fact and do not and will not omit to state
any material fact necessary to make the statements herein or therein not
misleading, it being understood that as used in this Section 3.12
"material" means material to the Company and its Subsidiaries, taken as a
whole.
Section 3.13 Tax Matters.
(a) All federal, state, local and foreign Tax Returns
required to be filed by or on behalf of the Representing Party, each
affiliated, combined, consolidated or unitary group of which the
Representing Party is a member (an "Affiliated Group") have been timely
filed or requests for extensions have been timely filed and any such
extension has been granted and has not expired, and all such filed Tax
Returns are complete and accurate except to the extent any failure to file
or any inaccuracies in filed Tax Returns would not, individually or in the
aggregate, be reasonably likely to have a Material Adverse Effect on the
Representing Party. All Taxes due and owing by the Representing Party or
any Representing Party's Affiliated Group have been paid, or adequately
reserved for, except to the extent any failure to pay or reserve for would
not, individually or in the aggregate, be reasonably likely to have a
Material Adverse Effect on the Representing Party. There is no audit or
examination and there is no deficiency, refund litigation, proposed
adjustment or matter in controversy with respect to any Taxes due and owing
by the Representing Party or any Representing Party's Affiliated Group
which if determined adversely would, individually or in the aggregate, be
reasonably likely to have a Material Adverse Effect on the Representing
Party. All assessments for Taxes due and owing by the Representing Party or
any Representing Party's Affiliated Group with respect to completed and
settled examinations or concluded litigation have been paid, except to the
extent that any failures to pay would not, individually or in the
aggregate, be reasonably likely to have a Material Adverse Effect on the
Representing Party.
(b) The Representing Party has not (i) entered into a
closing agreement or other similar agreement with a taxing authority
relating to Taxes of the Representing Party or any Representing Party's
Affiliated Group with respect to a taxable period for which the statute of
limitations is still open, or (ii) with respect to U.S. federal income
Taxes, granted any waiver of any statute of limitations with respect to, or
any extension of a period for the assessment of, any income Tax, in either
case, that is still outstanding. There are no Liens relating to material
Taxes upon the assets of the Representing Party or any Representing Party's
Affiliated Group other than Liens relating to Taxes not yet due and Liens
that would not, individually or in the aggregate, have a Material Adverse
Effect on the Representing Party. Neither the Representing Party, any
Representing Party's Affiliated Group is a party to or is bound by any Tax
sharing agreement, Tax indemnity obligation or similar agreement in respect
of Taxes (other than with respect to agreements solely between or among
members of the consolidated group of which the Representing Party is the
common parent and agreements and obligations that would not, individually
or in the aggregate, have a Material Adverse Effect on the Representing
Party). Neither the Representing Party nor any Representing Party's
Affiliated Group has taken any action or knows of any fact, agreement, plan
or other circumstance that is reasonably likely to prevent either the
Merger or the Life Technologies Merger from qualifying as a reorganization
within the meaning of Section 368(a) of the Code.
(c) Section 3.13(c) of the Company Disclosure Schedule
lists each Tax Return of the Company or any Affiliated Group for which an
accurate copy of the actual Tax Return as filed with the relevant taxing
authority has been made available by the Company to the Bidder on or before
the date hereof.
(d) Section 3.13(d) of the Company Disclosure Schedule
lists, with respect to the Company, each unemployment, severance and
termination agreement, other compensation arrangements, or benefit plans
currently in effect which provide for the payment of any amount (whether in
cash or property or the vesting of property) as a result of any of the
transactions contemplated by this Agreement that individually or
collectively could give rise to a payment which is nondeductible by reason
of Section 280G of the Code.
(e) Neither the Company nor any Affiliated Group has
received any private letter ruling from the Internal Revenue Service within
the three- year period ending on the date hereof.
(f) Neither the Company nor any member of any Affiliated
Group has constituted either a "distributing corporation" or a "controlled
corporation" (within the meaning of Section 355(a)(1)(A) of the Code) in a
distribution of stock (to any Person or entity that is not a member of any
Affiliated Group) qualifying for tax- free treatment under Section 355 of
the Code (i) within the two-year period ending on the date hereof or (ii)
in a distribution which could otherwise constitute part of a "plan" or
"series of related transactions" (within the meaning of Section 355(e) of
the Code) in conjunction with the Merger or the Life Technologies Merger.
(g) Neither the Company nor any Affiliated Group is a
party to any contract, agreement or other arrangement which could result in
the payment of amounts that would be nondeductible by reason of Section
162(m) of the Code.
(h) For purposes of this Agreement: (i) "Taxes" means any
and all federal, state, local, foreign or other taxes of any kind (together
with any and all interest, penalties, additions to tax and additional
amounts imposed with respect thereto) imposed by any taxing authority,
including, without limitation, taxes or other charges on or with respect to
income, franchises, windfall or other profits, gross receipts, property,
sales, use, capital stock, payroll, employment, social security, workers'
compensation, unemployment compensation or net worth, and taxes or other
charges in the nature of excise, withholding, ad valorem or value added,
and (ii) "Tax Return" means any return, report or similar statement
(including the attached schedules) required to be filed with respect to any
Tax, including, without limitation, any information return, claim for
refund, amended return or declaration of estimated Tax.
Section 3.14 Opinion of Financial Advisors.
(a) The Board of Directors of the Company has received
the opinion of ▇▇▇▇▇▇ Brothers Inc., dated the date of this Agreement,
substantially to the effect that, as of such date, the Merger Consideration
to be received by the Company's shareholders in the Merger is fair to such
holders from a financial point of view.
(b) The Board of Directors of the Bidder has received the
opinion of ▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ Securities Corporation, dated the
date of this Agreement, substantially to the effect that, as of such date,
the consideration to be issued and delivered by the Bidder in the Merger
and the Life Technologies Merger, taken together, is fair to the Bidder
from a financial point of view.
Section 3.15 Required Vote of Shareholders.
(a) The affirmative vote of the holders of a two-thirds
of the outstanding shares of Company Common Stock (the "Company Shareholder
Approval") is the only vote of the holders of any class or series of the
Company's capital stock which is necessary to approve and adopt this
Agreement and the transactions contemplated hereby.
(b) As of the date hereof, the Bidder does not own any
securities of the Company or Life Technologies. The affirmative vote of the
holders of a majority of the outstanding shares of Bidder Common Stock in
favor of the approval and adoption of this Agreement and the affirmative
vote of the holders of a majority of the outstanding shares of Bidder
Common Stock in favor of the approval of an amendment to the Bidder's
certificate of incorporation to authorize a sufficient number of shares of
Bidder Common Stock to enable the Bidder to issue the Merger Consideration
are the only votes of the holders of any class or series of the Bidder's
capital stock which are necessary to approve and adopt this Agreement and
the transactions contemplated hereby.
Section 3.16 Rights Agreement. The Company has duly amended the
Rights Agreement so that the Rights Agreement will not be applicable to the
Bidder, this Agreement, the Merger or any other transaction contemplated by
this Agreement, in each case to the extent provided for and made consistent
with the terms of this Agreement.
Section 3.17 Loctite Acquisition Agreement; ▇▇▇▇▇▇▇▇ Acquisition
Agreement. The Company has previously delivered to the Bidder complete and
correct copies of (i) the Asset Purchase Agreement, dated as of June 20,
2000, between the Company and Loctite Corporation (the "Loctite Acquisition
Agreement") and (ii) the Asset Purchase Agreement, dated as of June 20,
2000, between the Company and ▇▇▇▇▇▇▇▇ Paper Group Oy (the "▇▇▇▇▇▇▇▇
Acquisition Agreement").
Section 3.18 Legal Proceedings, etc. As of the date hereof,
except as set forth in Section 3.18 of the Company Disclosure Schedule and
except for matters involving only monetary recovery in which the damages
sought to be imposed do not exceed $200,000 individually or $1 million in
the aggregate, there are no legal, administrative, arbitration or other
proceedings or governmental investigations pending or, to the best
knowledge of the Company, threatened in writing against the Company or any
of its Subsidiaries.
Section 3.19 Contracts.
(a) Section 3.19 (a) of the Company Disclosure Schedule
sets forth a complete and correct list of each contract (the "Material
Contracts") to which the Company or any of its Subsidiaries is a party
which, as of the date hereof, (i) is a collective bargaining agreement or
any agreement that contains any severance pay liabilities or obligations;
(ii) is an employment or consulting agreement or contract with an employee
or individual consultant or a consulting agreement or contract with a
consulting firm or other organization (other than employment agreements
that are created as a matter of Law); (iii) is a note, bond or debenture or
other agreement or instrument relating to borrowed money or an agreement of
guarantee or indemnification running to any Person other than a Subsidiary;
(iv) is an agreement or contract containing any covenant limiting the
freedom of the Company or any of its Subsidiaries to engage in any line of
business or compete with any Person; (v) provides for aggregate future
payments of more than $250,000; (vi) provides for aggregate future payments
in excess of $100,000, has a term exceeding one year and which may not be
cancelled upon 90 or fewer days' notice without any liability, penalty or
premium (other than a nominal cancellation fee or charge); or (vii) is
material to the business, operations or financial condition of the Company
and its Subsidiaries, taken as a whole; provided that Section 3.13(a) of
the Company Disclosure Schedule does not list any contract for the purchase
or sale of goods or services entered into in the ordinary course of
business which may be cancelled on 90 or fewer days' notice without any
liability, penalty or premium (other than a nominal cancellation fee or
charge).
(b) Except as set forth in Section 3.19(b) of the Company
Disclosure Schedule, (i) each Material Contract is in full force and
effect, and (ii) there is not, with respect to the Material Contracts, any
existing default, or event of default, or event which with or without due
notice or lapse of time or both would constitute a default or event of
default, on the part of the Company or any of its Subsidiaries or to the
best knowledge of the Company any other party thereto, except where the
failure to be in full force and effect or where such default or event of
default would not have a Material Adverse Effect on the Company.
Section 3.20 Owned Real Property. Section 3.20 of the Company
Disclosure Schedule sets forth, as of the date of this Agreement, a
complete and correct list of real property which is owned by the Company or
any of its Subsidiaries and which will continue to be owned by the Company,
directly or indirectly, following consummation of the transactions
contemplated by the Loctite Acquisition Agreement and the ▇▇▇▇▇▇▇▇
Acquisition Agreement.
ARTICLE IV
COVENANTS AND AGREEMENTS
Section 4.1 Conduct of Business by the Company. From and after
the date hereof and prior to the Effective Time or the date, if any, on
which this Agreement is earlier terminated pursuant to Section 6.1 (the
"Termination Date"), and except (w) that the Company may take any and all
actions (subject to the provisions of Section 4.1(xiv)) required to
consummate the transactions contemplated by the Loctite Acquisition
Agreement and the ▇▇▇▇▇▇▇▇ Acquisition Agreement, (x) that the Company may
sell or otherwise dispose of its coatings business, (y) with the prior
written consent of the Bidder (which consent will not be unreasonably
withheld or delayed) or (z) as may be expressly permitted pursuant to this
Agreement, the Company:
(i) shall, and shall cause each of its Subsidiaries
to, conduct its operations according to their ordinary and usual
course of business consistent with past practice;
(ii) shall use its reasonable best efforts, and
cause each of its Subsidiaries to use its reasonable best efforts, to
preserve intact its present business organization and goodwill, keep
available the services of its current officers and other key
employees and preserve its relationships with those Persons having
material business dealings with the Company and its Subsidiaries;
(iii) shall not, and shall not permit its
Subsidiaries to, authorize or pay any dividends on or make any
distribution with respect to its outstanding shares of capital stock
(other than (A) regular quarterly cash dividends by the Company
consistent in timing and amount with past practice or (B) any
dividends or distribution by a wholly owned Subsidiary of the Company
to the Company or any of its wholly owned Subsidiaries);
(iv) shall not, and shall not permit any of its
Subsidiaries to establish, enter into or amend any severance plan,
agreement or arrangement or any Plan of the Company or Life
Technologies or increase the compensation payable or to become
payable or the benefits provided to its directors, officers or
employees, other than as contemplated by law or any existing
contract, employee benefit or welfare plan or policy, or in the
ordinary course of business consistent with past practice (1) with
respect to employees who are not officers of the Company, and (2)
with respect to annual bonuses and other incentive awards for
employees including officers;
(v) shall not, and shall not permit any of its
Subsidiaries to, authorize, or announce an intention to authorize, or
enter into an agreement with respect to, any merger, consolidation or
business combination (other than the Merger and the Life Technologies
Merger), any acquisition of a material amount of assets or
securities, any disposition of a material amount of assets or
securities or any other similar extraordinary transaction.
(vi) shall not, and shall not permit any of its
Subsidiaries to, propose or adopt any amendments to its certificate
of incorporation or bylaws (or other similar organizational
documents);
(vii) shall not, and shall not permit any of its
Subsidiaries to, issue or authorize the issuance of, or agree to
issue or sell any shares of capital stock of any class (whether
through the issuance or granting of options, warrants, commitments,
convertible securities, subscriptions, rights to purchase or
otherwise), except for (1) the issuance of Company Common Stock
pursuant to options and grants outstanding as of the date hereof
under the Company's 1999 Long-Term Incentive Plan, or 1994 Long-Term
Incentive Plan and 1988 Long-Term Incentive Plan (each such plan, a
"Company Equity Plan"), (2) the issuance of Life Technologies Common
Stock pursuant to options and grants outstanding as of the date
hereof under Life Technologies' 1997 Long-Term Incentive Plan, 1996
Non-Employee Directors Stock Option Plan, 1995 Long-Term Incentive
Plan and 1991 Stock Option Plan (each such plan, a "Life Technologies
Equity Plan") or (3) options and other equity awards granted in the
ordinary course of business consistent with past practice to any new
employee hired after the date hereof but before the Closing Date or
pursuant to formula awards, in either case under a Company Equity
Plan or a Life Technologies Equity Plan;
(viii)shall not, and shall not permit any of its
Subsidiaries to, reclassify, combine, split, purchase or redeem any
shares of its capital stock or purchase or redeem any rights,
warrants or options to acquire any such shares;
(ix) shall not, and shall not permit any of its
Subsidiaries to, (A) incur, assume or prepay any indebtedness or any
other liabilities for borrowed money or issue any debt securities
other than incurrences and repayments of indebtedness under the
Company's or its Subsidiaries' credit facilities in existence on the
date of this Agreement or (B)
assume, guarantee, endorse or otherwise become liable or responsible
(whether directly, contingently or otherwise) for the obligations of
any other Person (other than wholly owned Subsidiaries), except for
guarantees by Subsidiaries of the Company indebtedness permitted
under the preceding clause (A);
(x) shall not, and shall not permit any of its
Subsidiaries to (or consent to any proposal by any Person in which
the Company has an investment to), make or forgive any loans,
advances or capital contributions to, or investments in, any other
Person other than the Company or any wholly owned Subsidiary of the
Company (including any intercompany loans, advances or capital
contributions to, or investments in, any affiliate) other than
advances to employees in the ordinary course of business in
accordance with the Company's or its Subsidiaries' established
policies;
(xi) shall not, and shall not permit any of its
Subsidiaries to, (A) enter into any material lease, license, contract
or agreement or otherwise subject to any material Lien any of its
properties or assets (including securitizations), other than in the
ordinary course of business consistent with past practice; (B)
modify, amend in any material respect, or terminate any of its
material contracts; (C) waive, release or assign any rights that are
material to the Company and its Subsidiaries taken as a whole; or (D)
permit any insurance policy naming it as a beneficiary or a loss
payable payee to lapse, be cancelled or expire unless a new policy
with substantially identical coverage is in effect as of the date of
lapse, cancellation or expiration;
(xii) shall not, and shall not permit any of its
Subsidiaries to, change any of the financial accounting methods or
practices used by it unless required by GAAP;
(xiii)shall not, and shall not permit any of its
Subsidiaries to, make any Tax election that, individually or in the
aggregate, is reasonably likely to have a Material Adverse Effect on
the Company or settle or compromise any material Tax liability;
(xiv) shall not, without the prior consent of the
Bidder (which consent shall not be unreasonably withheld or delayed),
amend or modify (x) the Loctite Acquisition Agreement or (y) the
▇▇▇▇▇▇▇▇ Acquisition Agreement in any material respect;
(xv) shall not, and shall not permit any of its
Subsidiaries to, take any action that would prevent the Merger from
qualifying as a reorganization within the meaning of Section 368(a)
of the Code; and
(xvi) shall not, and shall not permit any of its
Subsidiaries to, agree, in writing or otherwise, to take any of the
foregoing actions or take any action which would result in any of the
conditions to the Merger set forth in Article V hereof not being
satisfied.
Section 4.2 Bidder Interim Operations. Except as otherwise
expressly contemplated hereby, without the prior consent of the Company
(which consent will not be unreasonably withheld or delayed), from the date
hereof until the earlier of the Effective Time or the Termination Date, the
Bidder shall, and shall cause each of its Subsidiaries to, conduct their
business in all material respects in the ordinary and usual course
consistent with past practice and use all reasonable efforts to (i)
preserve intact its present business organization and goodwill, (ii) keep
available the services of its current officers and other key employees,
(iii) maintain in effect all material licenses, approvals and
authorizations from Governmental Entities, including, without limitation,
all material licenses and permits that are required for the Bidder or any
of its Subsidiaries to carry on its business as presently conducted and
(iv) preserve existing relationships with its material partners, lenders,
suppliers and others having material business relationships with it so that
the business of the Bidder and its Subsidiaries shall not be impaired in
any material respect at the Effective Time. Without limiting the generality
of the foregoing, except as otherwise expressly contemplated by this
Agreement, from the date hereof until the earlier of the Effective Time or
the Termination Date, without the prior written consent of the Company
(which consent will not be unreasonably withheld or delayed), the Bidder
shall not, nor shall it permit any Subsidiary to:
(a) amend its certificate of incorporation or bylaws (or
other similar organizational documents);
(b) amend in any respect the terms of the capital stock
of the Bidder;
(c) split, combine, subdivide or reclassify any shares of
Bidder Common Stock or declare, set aside or pay any dividend or other
distribution (whether in cash, stock or property or any combination
thereof) in respect of Bidder Common Stock, except for (i) regular
quarterly cash dividends by the Bidder consistent in timing and amount with
past practice, or (ii) dividends paid by any Subsidiary to the Bidder or
any Subsidiary that is, directly or indirectly, wholly owned by the Bidder;
(d) change any of the financial accounting methods or
practices used by it unless required by GAAP;
(e) enter into or acquire any new line of business that
(i) is material to the Bidder and its Subsidiaries, taken as a whole, and
(ii) is not strategically related to the current business or operations of
the Bidder and its Subsidiaries;
(f) incur indebtedness outside of the ordinary course or
for acquisitions (other than in order to consummate the transactions
contemplated by this Agreement or the Life Technologies Merger Agreement);
(g) engage in any merger, consolidation, share exchange,
business combination, reorganization, recapitalization or other similar
transaction or any disposition, directly or indirectly, of assets,
securities or ownership interests representing a material portion of the
total assets of the Bidder and its Subsidiaries taken as a whole;
(h) shall not, and shall not permit any of its
Subsidiaries to, take any action that would prevent the Merger from
qualifying as a reorganization within the meaning of Section 368(a) of the
Code; or
(i) agree, in writing or otherwise, to take any of the
foregoing actions or take any action which would result in any of the
conditions to the Merger set forth in Article V hereof not being satisfied.
Section 4.3 Access; Confidentiality.
(a) Except for competitively sensitive information and
subject to legal and contractual restrictions, the Company shall (and shall
cause its Subsidiaries to) afford to the Bidder's officers, employees,
accountants, counsel and other authorized representatives reasonable access
during normal business hours upon reasonable notice, throughout the period
prior to the earlier of the Effective Time or the Termination Date, to its
properties, offices, employees, contracts, commitments, books and records
and any report, schedule or other document filed or received by it pursuant
to the requirements of federal or state securities laws and shall (and
shall cause each of its Subsidiaries to) furnish to the Bidder such
additional financial and operating data and other information as to its and
its Subsidiaries' respective businesses and properties as the Bidder may
from time to time reasonably request. The Bidder will make all reasonable
best efforts to minimize any disruption to the businesses of the Company
and the Company's Subsidiaries which may result from the requests for
access, data and information hereunder. The Bidder shall afford to the
Company's officers, employees, accountants, counsel and other authorized
representatives reasonable access during normal business hours upon
reasonable notice, to its officers, employees, and books and records to the
extent reasonably necessary in connection with the preparation of the Proxy
Statement. No investigation pursuant to this Section 4.3 shall affect any
representation or warranty in this Agreement of any party hereto or any
condition to the obligations of the parties hereto. All requests for access
and information shall be coordinated through designated senior executives
of each of the parties.
(b) The Bidder will hold all information provided under
this Section 4.3 that is non-public in confidence to the extent required
by, and in accordance with, the provisions of the letter dated February 27,
2000, between the Company and the Bidder. Except as required by law, the
Company will hold, and will cause its officers, employees, accountants,
counsel and other authorized representatives to hold, confidential, all
information and documents obtained pursuant to this Section 4.3 in
accordance with the letter dated July 1, 2000 between the Company and the
Bidder.
Section 4.4 Shareholders Meetings; Proxy Statement; Registration
Statement.
(a) As promptly as practicable following the date of this
Agreement, (i) the Company shall, acting through its Board of Directors and
subject to Section 4.8, duly call, give notice of, solicit proxies for,
convene and hold an annual or special meeting of its shareholders (the
"Company Shareholders Meeting") in accordance with applicable law, its
certificate of incorporation and its bylaws, and (ii) the Bidder shall,
acting through its Board of Directors and subject to the Bidder's Board of
Directors fiduciary duties under applicable law duly call, give notice of,
solicit proxies for, convene and hold an annual or special meeting of its
shareholders (the "Bidder Shareholders Meeting" and, together with the
Company Shareholders Meeting, the "Shareholders Meetings") in accordance
with applicable law, its certificate of incorporation and bylaws, for the
purposes of, among other actions, in each case, considering and taking
action upon the approval of the Merger and the approval and adoption of
this Agreement. Each of the Company (subject to Section 4.8) and the Bidder
(subject to the Bidder's Board of Directors' fiduciary duties under
applicable law) shall include in the Proxy Statement the recommendation of
its respective Board of Directors that its respective shareholders vote in
favor of the approval of the Merger and the approval and adoption of this
Agreement and, in the case of the Bidder, in favor of the approval of an
amendment to the Bidder's certificate of incorporation to authorize a
sufficient number of shares of Bidder Common Stock to issue the Merger
Consideration (the "Charter Amendment"). The Bidder and the Company shall
cause their respective Shareholders Meetings to be held on the same date,
which date shall be the same as the date of the Company Stockholders
Meeting (as defined in the Life Technologies Merger Agreement).
(b) As promptly as practicable following the date of this
Agreement, the Company and the Bidder shall (x) prepare and file with the
SEC a preliminary joint proxy statement relating to the Merger, this
Agreement and the Charter Amendment, and (y) obtain and furnish the
information required to be included by the SEC in the Proxy Statement and,
after consulting with one another respond promptly to any comments made by
the SEC with respect to the preliminary joint proxy statement and cause a
definitive joint proxy statement, including any amendments or supplements
thereto, to be mailed to their respective shareholders at the earliest
practicable date; provided that no amendments or supplements to the Proxy
Statement will be made by either party without consultation with the other
party and its counsel. Such definitive joint proxy statement shall also
constitute the prospectus of the Bidder with respect to shares of Bidder
Common Stock to be issued in connection with the transactions contemplated
by this Agreement (such joint proxy statement and prospectus is referred to
herein as the "Proxy Statement"), which prospectus is to be filed with the
SEC as part of the Registration Statement for the purpose of registering
Bidder Common Stock under the Securities Act. Each of the parties agrees to
provide the other party and its counsel with any comments, whether written
or oral, that such party may receive from time to time from the SEC or its
staff with respect to the Proxy Statement or the Registration Statement, as
the case may be, promptly after the receipt of such comments and to consult
with the other party and its counsel prior to responding to any such
comments.
(c) As promptly as practicable following the date of this
Agreement, the Bidder shall prepare and file with the SEC the Registration
Statement, and shall use its reasonable best efforts to have the
Registration Statement declared effective by the SEC as promptly as
practicable. The Bidder shall obtain and furnish the information required
to be included by the SEC in the Registration Statement and, after
consultation with the Company, respond promptly to any comments made by the
SEC with respect to the Registration Statement and cause the prospectus
included therein, including any amendments or supplements thereto, to be
mailed to the Company's shareholders at the earliest practicable date after
the Registration Statement is declared effective by the SEC, provided that
no amendments or supplements to the Registration Statement will be made by
the Bidder without consultation with the Company and its counsel. The
Bidder shall also take any action required to be taken under state blue sky
or other securities laws in connection with the issuance of Bidder Common
Stock in the Merger.
Section 4.5 Commercially Reasonable Efforts; Further Assurances.
(a) Subject to the terms and conditions of this Agreement
and applicable law, each of the parties shall act in good faith and use
commercially reasonable efforts to take, or cause to be taken, all actions,
and to do, or cause to be done, all things necessary, proper or advisable
to consummate and make effective the transactions contemplated by this
Agreement as soon as practicable. Without limiting the foregoing, the
parties shall, and shall cause their respective Subsidiaries to, and the
parties shall use commercially reasonable efforts to cause their (and their
respective Subsidiaries') directors, officers, employees, agents,
attorneys, accountants and representatives, to (i) consult and cooperate
with and provide assistance to each other in the preparation and filing
with the SEC of the preliminary Proxy Statement, the Proxy Statement and
the Registration Statement and all necessary amendments or supplements
thereto; (ii) obtain all consents, approvals, waivers, licenses, permits,
authorizations, registrations, qualifications or other permissions or
actions by, and give all necessary notices to, and make all filings with
and applications and submissions to, any Governmental Entity or other
Person necessary in connection with the consummation of the transactions
contemplated by this Agreement as soon as reasonably practicable; (iii)
provide all such information concerning such party, its Subsidiaries and
its officers, directors, employees, partners and affiliates as may be
necessary or reasonably requested in connection with any of the foregoing;
(iv) avoid the entry of, or have vacated or terminated, any injunction,
decree, order, or judgment that would restrain, prevent, or delay the
consummation of the Merger, including but not limited to defending through
litigation on the merits any claim asserted in any court by any Person; and
(v) take any and all reasonable steps necessary to avoid or eliminate every
impediment under any antitrust, competition, or trade regulation law that
is asserted by any Governmental Entity with respect to the Merger so as to
enable the consummation of the Merger to occur as expeditiously as
possible. Prior to making any application to or filing with a Governmental
Entity or other entity in connection with this Agreement (other than filing
under the HSR Act), each party shall provide the other party with drafts
thereof and afford the other party a reasonable opportunity to comment on
such drafts.
(b) The Company and the Bidder shall keep the other
reasonably apprised of the status of matters relating to the completion of
the transactions contemplated hereby, including promptly furnishing the
other with copies of notices or other communications received by the Bidder
or the Company, as the case may be, or by any of their respective
Subsidiaries, from any third party and/or any Governmental Entity with
respect to the transactions contemplated by this Agreement.
Section 4.6 Employee Matters.
(a) The Company shall take all such actions as shall be
necessary to cause each outstanding stock option to purchase shares of
Company Common Stock (including any related alternative rights) granted
under any stock option or compensation plan or arrangement of the Company
or its Subsidiaries (collectively, the "Company Option Plans") (including
those granted to current or former employees and directors of the Company
or any of its Subsidiaries) (the "Employee Stock Options") to become fully
vested and exercisable immediately prior to the Effective Time, as
permitted pursuant to the terms and conditions of the applicable Company
Option Plan. The Company shall take all such actions as shall be necessary
to cause all Employee Stock Options that are outstanding immediately prior
to the Effective Time (whether or not then presently exercisable or vested)
to be cancelled. In exchange for the cancellation of each such Employee
Stock Option (whether or not presently exercisable or vested), the holder
thereof shall be entitled to receive from the Company (A) an amount in cash
equal to the product of (1) the Option Value Spread multiplied by (2)
0.2800 and (B) such number of shares of Bidder Common Stock (rounded to the
nearest full share) equal to product of (1) the quotient obtained by
dividing (x) the Option Value Spread by (y) Average Bidder Trading Price
multiplied by (2) 0.7200. For purposes of this Agreement the "Option Value
Spread" of an Employee Stock Option shall mean the product of (A) the
excess, if any, of (x) the Cancellation Price over (y) the per share
exercise price of such Employee Stock Option multiplied by (B) the number
of Shares subject to such Employee Stock Option and not previously
purchased upon exercise of such option. Any such payment shall be further
reduced by any income Tax or employment Tax witholding required under the
Code. The "Cancellation Price" shall be the dollar amount equal to the sum
of (i) $17.50 and (ii) the product of (A) 0.7200 and (B) the product of (x)
the Exchange Ratio multiplied by (y) the Average Bidder Trading Price. The
Company shall take such steps as may be required to cause the transactions
contemplated by this Section 4.6(a) and any other dispositions of Company
equity securities (including derivative securities) in connection with this
Agreement or the transactions contemplated hereby by any individual who is
a director or officer of the Company to be exempt under Rule 16b-3
promulgated under the Exchange Act. The Bidder shall take such steps as may
be required to cause the transactions contemplated by this Section 4.6(a)
and any other acquisitions of Bidder equity securities (including
derivative securities) in connection with this Agreement or the
transactions contemplated hereby by any individual who is or becomes at or
before Closing a director or officer of the Bidder to be exempt under Rule
16b-3 promulgated under the Exchange Act. The steps to taken by the Company
and the Bidder in connection with the exemption under Rule 16b-3 described
above shall be taken in accordance with the interpretative letter dated
January 12, 1999, issued by the SEC to Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇
LLP.
(b) Following the Effective Time, and to the extent not
provided for in an acquisition agreement that the Company is a party to as
of the Effective Time, or any agreement entered into after the Effective
Time by the Company and/or the Bidder with any purchaser of the Company's
coatings business or any other assets of the Company, the Bidder shall, or
shall cause a Bidder Subsidiary to, (i) provide to those former employees
of the Company whose employment terminated prior to the Effective Time (and
eligible dependents of such former employees) (collectively, "Retirees")
post-retirement welfare benefits substantially equivalent (both in terms of
the benefits provided and the cost of such benefits to a Retiree) to those
provided to such individuals under the post-retirement welfare benefit
program of the Company as in effect immediately prior to the Effective
Time, (ii) continue an arrangement pursuant to which such post-retirement
welfare benefits shall be provided upon any termination of employment with
the Bidder or a Bidder Subsidiary, to those employees (and their eligible
dependents) who elect to receive such benefits (substantially in accordance
with the procedures utilized by the Company or other such reasonable
procedures the Bidder may establish) and who immediately prior to the
Effective Time would be eligible for such benefits upon a termination of
employment with the Company (collectively, "Vested Eligible Employees") and
(iii) continue an arrangement pursuant to which such post-retirement
welfare benefits shall be provided to those individuals (and their eligible
dependents) who are not Retirees or Vested Eligible Employees, and who, as
of the Effective Time, had attained the age of 50 and had been credited
with at least five years of service with the Company (collectively,
"Potential Grow-In Employees"), but only if, at the time of termination of
any termination with the Bidder or a Bidder Subsidiary, (A) such Potential
Grow-In Employee would have been eligible to receive such post- retirement
welfare benefits under the Company's post-retirement welfare benefit
program as in effect immediately prior to the Effective Time (crediting
service with the Bidder or a Bidder Subsidiary as service with the Company)
and (B) such Potential Grow-In Employee elects to receive such benefits
(substantially in accordance with procedures currently utilized by the
Company or other such reasonable procedures the Bidder may establish). The
Bidder shall not, and shall not permit any Bidder Subsidiary to, terminate
or modify in any adverse manner the post-retirement welfare benefit it has
agreed to provide to Retirees, Vested Eligible Employees and Potential
Grow-In Employees pursuant to this Section 4.6(b).
(c) At the direction of the Bidder, and to the extent
permissible under any previous acquisition agreement entered into by the
Company, the Company shall terminate the Dexter Corporation 401(k) Plan and
or the Employees' Savings and Profit Sharing Retirement Income Plan of
Dexter Corporation and Dexter Corporation, Nonwoven (collectively, the
"Savings Plans"). The Bidder shall determine whether any such previous
acquisition agreement would affect the proposed plan terminations and shall
notify the Company at least three (3) days prior to the Closing of its
decision to, and may at that time, terminate a Savings Plan. Unless the
Bidder has not so directed the Company, the Bidder shall receive from the
Company evidence (in a form satisfactory to the Bidder) that the Savings
Plan shall be terminated effective as of the day immediately preceding the
Closing. The Bidder shall, consistent with the terms of the Bidder's 401(k)
plan, and applicable law, allow individuals who were employees of the
Company or any Subsidiary of the Company as of immediately prior to the
Closing to participate in the Bidder's 401(k) plan and the Bidder shall
cause its 401(k) plan to accept direct rollovers and rollover contributions
(each, to the extent requested by a Savings Plan participant) in respect of
the Savings Plan account balances (including any outstanding loans) held by
such individuals.
Section 4.7 Takeover Statute. If any "fair price,"
"moratorium," "control share acquisition" or other form of anti-takeover
statute or regulation shall become applicable to the transactions
contemplated hereby, each of the Company and the Bidder and the members of
their respective Boards of Directors shall grant such approvals and take
such actions as are reasonably necessary so that the transactions
contemplated hereby may be consummated as promptly as practicable on the
terms contemplated hereby and otherwise act to eliminate or minimize the
effects of such statute or regulation on the transactions contemplated
hereby.
Section 4.8 No Solicitation by the Company.
(a) Neither the Company nor any of its Subsidiaries nor
any of the officers and directors of any of them shall, and the Company
shall direct and use its reasonable best efforts to cause its and its
Subsidiaries' employees, agents and representatives, including any
investment banker, attorney or accountant retained by it or any of its
Subsidiaries (the Company, its Subsidiaries and their respective officers,
directors, employees, agents and representatives being the "Company
Representatives") not to, directly or indirectly through another Person,
(i) initiate, solicit, encourage or otherwise knowingly facilitate any
inquiries (by way of furnishing information or otherwise) or the making of
any Acquisition Proposal or (ii) participate in any discussions or engage
in any negotiations concerning an Acquisition Proposal; provided, however,
that the Company's Board of Directors may, or may authorize the Company
Representatives to, in response to an Acquisition Proposal that the Board
of Directors of the Company concludes in good faith is, or is reasonably
likely to become, a Superior Proposal, (x) furnish information with respect
to the Company and its Subsidiaries to any Person making such Superior
Proposal and (y) participate in discussions or negotiations regarding such
Superior Proposal, provided that, prior to taking any such action, the
Company provides reasonable advance notice to the Bidder that it is taking
such action. For purposes of this Agreement "Acquisition Proposal" means
any direct or indirect inquiry, proposal or offer relating to the
acquisition or purchase of a business or shares of any class of equity
securities of the Company or any of its Subsidiaries, any tender offer or
exchange offer that, if consummated, would result in any Person
beneficially owning any class of equity securities of the Company or any of
its Subsidiaries, or any merger, reorganization, share exchange,
consolidation, business combination, recapitalization, liquidation,
dissolution or similar transaction (a "Business Combination Transaction")
involving the Company or any of its Subsidiaries, or any purchase or sale
of a substantial portion of the consolidated assets (including without
limitation stock of Subsidiaries owned directly or indirectly by the
Company) of the Company or any of its Subsidiaries (an "Asset
Transaction"); provided that the term Acquisition Proposal shall not
include the Loctite Acquisition Agreement, the ▇▇▇▇▇▇▇▇ Acquisition
Agreement or communications relating to the sale of any business covered by
any such agreement or the Company's coatings business. For purposes of this
Agreement "Superior Proposal" means an unsolicited bona fide written
Acquisition Proposal that the Board of Directors of the Company concludes
in good faith (after consultation with the Company's legal and financial
advisors) would, if consummated, provide greater aggregate value to the
Company's shareholders from a financial point of view than the transactions
contemplated by this Agreement; provided that for purposes of this
definition the term "Acquisition Proposal" shall have the meaning set forth
above, except that (x) references to "shares of any class of equity
securities of the Company" shall be deemed to be references to "100% of the
outstanding Shares" and (y) an "Acquisition Proposal" shall be deemed to
refer only to a Business Combination Transaction involving the Company or,
with respect to an Asset Transaction, such transaction must involve the
assets of the Company and its Subsidiaries, taken as a whole, and not any
Subsidiary of the Company alone.
(b) Except as expressly permitted by this Section 4.8,
neither the Company's Board of Directors nor any committee thereof shall
(i) withdraw, modify or change, or propose publicly to withdraw, modify or
change, in a manner adverse to the Bidder, the recommendation by such Board
of Directors or such committee of the Merger or this Agreement unless the
Board of Directors of the Company shall have determined in good faith,
after consultation with its legal and financial advisors, that, the Merger
or this Agreement is no longer in the best interests of the Company's
shareholders and that such withdrawal, modification or change is,
therefore, required in order to satisfy its fiduciary duties to the
Company's shareholders under applicable law, (ii) approve or recommend, or
propose publicly to approve or recommend, any Acquisition Proposal, or
(iii) cause the Company to enter into any letter of intent, agreement in
principle, acquisition agreement or other similar agreement (each, an
"Acquisition Agreement") related to any Acquisition Proposal.
Notwithstanding the foregoing, the Company may, in response to a Superior
Proposal, (x) take any of the actions described in clauses (i) or (ii)
above or (y) subject to this paragraph (b), terminate this Agreement (and
concurrently with or after such termination, if it so chooses, cause the
Company to enter into any Acquisition Agreement with respect to any
Superior Proposal) but only after the fifth business day following the
Bidder's receipt of written notice advising the Bidder that the Company's
Board of Directors is prepared to accept a Superior Proposal, and attaching
the most current version of any such Superior Proposal or any draft of an
Acquisition Agreement.
(c) Nothing contained in this Section 4.8 shall prohibit
the Company or its Board of Directors from at any time taking and
disclosing to its shareholders a position contemplated by Rule 14e-2
promulgated under the Exchange Act or from making any disclosure to the
Company's shareholders required by applicable law.
Section 4.9 Public Announcements. The Bidder and the Company
agree that neither one of them will issue any press release or otherwise
make any public statement or respond to any press inquiry with respect to
this Agreement or the transactions contemplated hereby without prior
consultation with the other party, except as may be required by applicable
law or the rules of any applicable stock exchange on which such party's
securities are listed.
Section 4.10 Indemnification; Insurance. (a) From and after the
Effective Time, the Bidder will indemnify and hold harmless each present
and former director and officer of the Company and its Subsidiaries (the
"Indemnified Parties"), against any costs or expenses (including attorneys'
fees), judgments, fines, losses, claims, damages or liabilities incurred in
connection with any claim, action, suit, proceeding or investigation,
whether civil, criminal, administrative or investigative, by reason of the
fact that such individual is or was a director, officer, employee or agent
of the Company or any of its Subsidiaries, or is or was serving at the
request of the Company or any of its Subsidiaries as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust
or other enterprise, whether asserted or claimed prior to, at or after the
Effective Time, to the fullest extent permitted under applicable law, and
the Bidder shall also advance fees and expenses (including attorneys fees)
as incurred to the fullest extent permitted under applicable law; provided,
that to the extent the Company and any Indemnified Party are parties to an
existing indemnification agreement, the indemnification provided for
pursuant to this Section 4.10(a) shall be provided by the Bidder in
accordance with the procedures prescribed in such indemnification
agreement.
(b) For six years from the Effective Time, the Bidder
shall maintain in effect the Company's and its Subsidiaries' current
directors' and officers' liability insurance policies (the "Company
Policies") covering those Persons who are currently covered by the Company
Policies; provided, however, that in no event shall the Bidder be required
to expend in any one year an amount in excess of 150% of the annual
premiums currently paid by the Company for such insurance, and provided
further, that if the annual premiums of such insurance coverage exceeds
such amount, the Bidder shall be obligated to obtain a policy with the
greatest coverage available for a cost not exceeding such amount; and
provided further that the Bidder may meet its obligations under this
paragraph by covering the above Persons under the Bidder's insurance policy
or policies on the terms described above.
Section 4.11 Additional Reports and Information.
(a) The Company shall furnish to the Bidder copies of all
reports of the type referred to in Section 3.4 which it or Life
Technologies files with the SEC on or after the date hereof, and the
Company represents and warrants that as of the respective dates thereof,
such reports will not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they
were made, not misleading. The audited consolidated financial statements
and the unaudited consolidated interim financial statements included in
such reports (including any related notes and schedules) will fairly
present the financial position of the Company and its consolidated
Subsidiaries or Life Technologies and its consolidated Subsidiaries, as the
case may be, as of the dates thereof and the results of operations and cash
flows or other information included therein for the periods or as of the
date then ended (subject, in the case of the interim financial statements,
to normal, recurring year-end adjustments), in each case in accordance with
GAAP consistently applied during the periods involved (except as otherwise
disclosed in the notes thereto). The Company shall furnish to the Bidder on
a monthly basis a consolidating balance sheet for the Company and its
consolidated subsidiaries and the monthly internal financial report for
Life Technologies and its Subsidiaries which are currently being prepared
in the ordinary course of business (with deletions reasonably necessary to
comply with applicable antitrust laws).
(b) The Bidder shall furnish to the Company copies of all
reports of the type referred to in Section 3.4 which it files with the SEC
on or after the date hereof, and the Bidder represents and warrants that as
of the respective dates thereof, such reports will not contain any untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading. The audited
consolidated financial statements and the unaudited consolidated interim
financial statements included in such reports (including any related notes
and schedules) will fairly present the financial position of the Bidder and
its consolidated Subsidiaries as of the dates thereof and the results of
operations and cash flows or other information included therein for the
periods or as of the date then ended (subject, in the case of the interim
financial statements, to normal, recurring year-end adjustments), in each
case in accordance with past practice and GAAP consistently applied during
the periods involved (except as otherwise disclosed in the notes thereto).
Section 4.12 Affiliates. As soon as practicable, the Company
shall deliver to the Bidder a list identifying, to the best of the
Company's knowledge, all Persons who will be, at the time of the Company
Shareholder Approval, deemed to be "affiliates" of the Company for purposes
of Rule 145 under the Securities Act. The Company shall advise the Bidder
of any additions or deletions to or from such list from time to time
thereafter. The Company shall use its reasonable best efforts to cause each
such Person to deliver to the Bidder at least 30 days prior to the Closing
Date a written "affiliates" agreement in customary form and substance.
Section 4.13 Nasdaq National Market Quotation. The Bidder shall
use its best efforts to cause the shares of Bidder Common Stock to be
issued in connection with the transactions contemplated by this Agreement
to be approved for quotation on the Nasdaq National Market, subject to
official notice of issuance, prior to the Closing Date.
Section 4.14 Tax-Free Reorganization. The Bidder and the Company
intend that the Merger will qualify as a reorganization within the meaning
of Section 368(a) of the Code. The Bidder and the Company shall each use
all reasonable efforts to cause the Merger to so qualify and to obtain the
opinions of their respective tax counsel referred to in Sections 5.2(a) and
5.3(a), including the execution of the representation letters referred to
therein. Neither the Bidder nor the Company shall knowingly take any
action, or knowingly fail to take any action, that would cause the Merger
not to qualify as a reorganization within the meaning of Section 368(a) of
the Code, unless otherwise required pursuant to a "determination" within
the meaning of Section 1313(a) of the Code.
Section 4.15 Disclosure Schedule SupplementFrom time to
time after the date of this Agreement and prior to the Effective Time, the
Company will promptly supplement or amend the Company Disclosure Schedule
with respect to any matter hereafter arising which, if existing or
occurring at or prior to the date of this Agreement, would have been
required to be set forth or described in the Company Disclosure Schedule or
which is necessary to correct any information in a schedule or in any
representation and warranty of the Company which has been rendered
inaccurate thereby in any material respect. From time to time after the
date of this Agreement and prior to the Effective Time, the Bidder will
promptly supplement or amend the Bidder Disclosure Schedule with respect to
any matter hereafter arising which, if existing or occurring at or prior to
the date of this Agreement, would have been required to be set forth or
described in the Bidder Disclosure Schedule or which is necessary to
correct any information in a schedule or in any representation and warranty
of the Bidder which has been rendered inaccurate thereby in any material
respect. For purposes of determining the accuracy of the representations
and warranties of the Company contained in this Agreement and the accuracy
of the representations and warranties of the Bidder contained in this
Agreement in order to determine the fulfillment of the conditions set forth
in Sections 5.2(b) and 5.3(b), the Company Disclosure Schedule and the
Bidder Disclosure Schedule shall be deemed to include only that information
contained therein on the date of this Agreement and shall be deemed to
exclude any information contained in any subsequent supplement or amendment
thereto.
Section 4.16 Voting of Life Technologies Common Stock. Unless
this Agreement shall have been terminated in accordance with its terms, the
Company hereby agrees to vote all of the shares of Life Technologies Common
Stock beneficially owned by it in favor of the approval and adoption of the
Life Technologies Merger Agreement at any meeting of the shareholders of
Life Technologies held for that purpose.
ARTICLE V
CONDITIONS TO THE MERGER
Section 5.1 Conditions to Each Party's Obligation to Effect the
Merger. The respective obligations of each party to effect the Merger shall
be subject to the fulfillment at or prior to the Effective Time of the
following conditions:
(a) The Company Shareholder Approval shall have been
obtained.
(b) The Bidder Shareholder Approval shall have been
obtained.
(c) All of the conditions to the Life Technologies Merger
shall have been satisfied or waived in accordance with the terms of the
Life Technologies Merger Agreement, and the Life Technologies Merger shall
be effective simultaneously with the Effective Time. The condition set
forth in this paragraph (c) shall not be waivable by either party.
(d) No statute, rule, regulation, executive order,
decree, ruling or permanent injunction shall have been enacted, entered,
promulgated or enforced by any Governmental Entity which prohibits the
consummation of the Merger substantially on the terms contemplated hereby;
provided that the party seeking to rely upon this condition has fully
complied with and performed its obligations pursuant to Section 4.3.
(e) The applicable waiting period under the HSR Act shall
have expired or been terminated.
(f) The shares of Bidder Common Stock to be issued in the
Merger shall have been approved for quotation on the Nasdaq National
Market, subject to official notice of issuance.
(g) The Registration Statement shall have become
effective in accordance with the provisions of the Securities Act, and no
stop order suspending such effectiveness shall have been issued and remain
in effect.
Section 5.2 Conditions to Obligation of the Bidder to Effect
the Merger. The obligation of the Bidder to effect the Merger shall be
subject to the satisfaction at or prior to the Effective Time of the
following additional conditions, unless waived in writing by the Bidder:
(a) The Bidder shall have received an opinion of ▇▇▇▇
▇▇▇▇ ▇▇▇▇ & Freidenrich LLP, special tax counsel to the Bidder, dated as of
the Effective Time, to the effect that the Merger will qualify as a
reorganization within the meaning of Section 368(a) of the Code. The
issuance of such opinion shall be conditioned upon the receipt by such tax
counsel of customary representation letters from each of the Bidder and the
Company, in each case, in form and substance reasonably satisfactory to
such tax counsel and the issuance of the opinion of counsel to the Company
provided in Section 5.3(a). The specific provisions of each such
representation letter shall be in form and substance reasonably
satisfactory to such tax counsel, and each such representation letter shall
be dated on or before the date of such opinion and shall not have been
withdrawn or modified in any material respect. The opinion condition
referred to in this Section 5.2(a) shall not be waivable after receipt of
the Company Shareholder Approval and the Bidder Shareholder Approval
referred to in Sections 5.1(a) and 5.1(b), unless further Company
shareholder approval is obtained with appropriate disclosure.
(b) The representations and warranties of the Company set
forth in this Agreement that are qualified by materiality or Material
Adverse Effect shall be true and correct, and the representations and
warranties of the Company set forth in this Agreement that are not so
qualified shall be true and correct in all material respects, in each case
as if such representations or warranties were made as of the Effective Time
(other than those that speak as of a specific date or as of the date
hereof, which representations and warranties shall be true and correct or
true and correct in all material respects, as the case may be, as of such
specific date or as of the date hereof, respectively).
(c) The Company shall have performed and complied in all
material respects with all agreements and obligations required by this
Agreement to be performed and complied with by it on or prior to the
Closing Date.
(d) The transactions contemplated by each of the Loctite
Acquisition Agreement and the ▇▇▇▇▇▇▇▇ Acquisition Agreement shall have
been consummated substantially in accordance with the terms thereof.
(e) The Company shall have furnished a certificate of an
executive officer to evidence compliance with the conditions set forth in
Section 5.2(b) and (c) of this Agreement.
Section 5.3 Conditions to Obligation of the Company to Effect
the Merger. The obligation of the Company to effect the Merger shall be
subject to the satisfaction at or prior to the Effective Time of the
following additional conditions, unless waived in writing by the Company:
(a) The Company shall have received an opinion of
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special tax counsel to the
Company, dated as of the Effective Time, to the effect that the Merger will
qualify as a reorganization within the meaning of Section 368(a) of the
Code. The issuance of such opinion shall be conditioned upon the receipt by
such tax counsel of customary representation letters from each of the
Bidder and the Company, in each case, in form and substance reasonably
satisfactory to such tax counsel. The specific provisions of each such
representation letter shall be in form and substance reasonably
satisfactory to such tax counsel, and each such representation letter shall
be dated on or before the date of such opinion and shall not have been
withdrawn or modified in any material respect. The opinion condition
referred to in this Section 5.3(a) shall not be waivable after receipt of
the Company Shareholder Approval and the Bidder Shareholder Approval
referred to in Sections 5.1(a) and 5.1(b), unless further Company
shareholder approval is obtained with appropriate disclosure.
(b) The representations and warranties of the Bidder set
forth in this Agreement that are qualified by materiality or Material
Adverse Effect shall be true and correct, and the representations and
warranties of the Company set forth in this Agreement that are not so
qualified shall be true and correct in all material respects, in each case,
as if such representations or warranties were made as of the Effective Time
(other than those that speak as of a specific date or as of the date
hereof, which representations and warranties shall be true and correct or
true and correct in all material respects, as the case may be, as of such
specific date or as of the date hereof, respectively).
(c) The Bidder shall have performed and complied in all
material respects with all agreements and obligations required by this
Agreement to be performed and complied with by it on or prior to the
Closing Date.
(d) The Bidder shall have furnished a certificate of an
executive officer of the Bidder to evidence compliance with the conditions
set forth in Section 5.3(b) and (c) of this Agreement.
ARTICLE VI
TERMINATION
Section 6.1 Termination. This Agreement may be terminated at
any time prior to the Effective Time, whether before or after obtaining the
Company Shareholder Approval and the Bidder Shareholder Approval:
(a) by the mutual written consent of the Company and the
Bidder;
(b) by either the Bidder or the Company, if the Merger
has not been consummated by October 31, 2000 (the "Expiration Date"),
provided, however, that in the event either the condition set forth in
Section 5.1(e) shall not have been satisfied or, prior to September 15,
2000, the Registration Statement shall not have been declared effective,
the Expiration Date shall be extended to the earlier of (x) the later of
(1) the date which is three business days after the date on which the
condition set forth in Section 5.1(e) is satisfied and (2) the date which
is three business days following the date of the Company Shareholders
Meeting and (y) December 31, 2000; provided further, that the right to
terminate this Agreement under this clause (b) shall not be available to
any party whose failure to fulfill any of its obligations under this
Agreement has been the cause of or resulted in the failure to consummate
the Merger by such date;
(c) by either the Bidder or the Company if (i) a statute,
rule, regulation or executive order shall have been enacted, entered,
promulgated or enforced by any Governmental Entity prohibiting the
consummation of the Merger substantially on the terms contemplated hereby;
or (ii) an order, decree, ruling or injunction shall have been entered
permanently restraining, enjoining or otherwise prohibiting the
consummation of the Merger substantially on the terms contemplated hereby
and such order, decree, ruling or injunction shall have become final and
non-appealable; provided, that the party seeking to terminate this
Agreement pursuant to this Section 6.1(c)(ii) shall have used its
reasonable best efforts to remove such order, decree, ruling or injunction;
(d) by the Company in accordance with Section 4.8(b);
provided that the Company shall have complied with all provisions of
Section 4.8(b); and provided further that any such termination shall not be
effective unless the Termination Fee pursuant to Section 6.3 shall have
been paid contemporaneously with such termination;
(e) by the Bidder or the Company, if after the Company
convenes and holds the Company Shareholders Meeting and certifies the vote
with respect to the Merger the Company's shareholders have failed to
deliver the affirmative votes necessary to confer the Company Shareholder
Approval;
(f) by the Bidder or the Company, if after the Bidder
convenes and holds the Bidder Shareholders Meeting and certifies the vote
with respect to the Merger and the amendment of the Bidder's certificate of
incorporation, the Bidder's shareholders shall have failed to deliver the
affirmative votes necessary to confer the Bidder Shareholder Approval;
(g) by the Bidder, if there has been a material violation
or breach by the Company of any agreement, representation or warranty
contained in this Agreement that has rendered the satisfaction of any
condition to the obligations of the Bidder impossible and such violation or
breach has not been waived by the Bidder;
(h) by the Company, if there has been a material
violation or breach by the Bidder of any agreement, representation or
warranty contained in this Agreement that has rendered the satisfaction of
any condition to the obligations of the Company, impossible and such
violation or breach has not been waived by the Company;
(i) by the Bidder or the Company, if the Life
Technologies Merger Agreement shall have been terminated in accordance with
its terms; or
(j) in the event that the Expiration Date is extended
beyond October 31, 2000, by the Bidder or the Company, at any time after
the tenth business day following the termination of either the Loctite
Acquisition Agreement or the ▇▇▇▇▇▇▇▇ Acquisition Agreement, in accordance
with its terms.
Section 6.2 Effect of Termination. In the event of termination
of this Agreement pursuant to Section 6.1, written notice thereof shall
forthwith be given to the other party or parties specifying the provision
hereof pursuant to which such termination is made, and this Agreement shall
terminate and be of no further force and effect (except for the provisions
of Sections 4.3 (b), 6.3 and 7.2), and there shall be no other liability on
the part of the Bidder or the Company except liability arising out of a
willful breach of this Agreement.
Section 6.3 Termination Fee. In the event that (i) this
Agreement shall have been terminated pursuant to Section 6.1(d) or (ii) an
Acquisition Proposal for the Company shall have been publicly announced
and, following such announcement, this Agreement is terminated pursuant to
Section 6.1(e) and, within 12 months of such termination, a Business
Combination Transaction involving a change of control of the Company or an
Asset Transaction involving a sale of all or substantially all of the
assets of the Company and its consolidated subsidiaries is consummated,
then, the Company shall pay to the Bidder a fee equal to $65 million (the
"Termination Fee"), payable by wire transfer of same day funds or by
cashier's check, in accordance with the provisions of the next sentence. In
the event the Termination Fee is payable (x) pursuant to clause (i) of the
preceding sentence, payment of the termination fee shall be a condition to
the effectiveness of termination pursuant to Section 6.1(d) and (y)
pursuant to clause (ii) of the preceding sentence, the Termination Fee
shall be payable promptly, but in no event later than two days after the
date of consummation of the Business Combination Transaction or Asset
Transaction. The Company acknowledges that the agreements contained in this
Section 6.3 are an integral part of the transactions contemplated by this
Agreement, and that, without these agreements, the Bidder would not enter
into this Agreement.
ARTICLE VII
MISCELLANEOUS
Section 7.1 No Survival of Representations and
Warranties. None of the representations and warranties in this Agreement or
in any instrument delivered pursuant to this Agreement shall survive the
Effective Time.
Section 7.2 Expenses. Except as otherwise expressly
contemplated by this Agreement, all costs and expenses incurred in
connection with this Agreement and the transactions contemplated hereby
shall be paid by the party incurring such costs and expenses.
Section 7.3 Counterparts; Effectiveness. This Agreement may be
executed in two or more separate counterparts, each of which shall be
deemed to be an original but all of which shall constitute one and the same
agreement. This Agreement shall become effective when each party hereto
shall have received a counterpart hereof signed by the other party hereto.
Section 7.4 Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of Delaware, without
regard to the principles of conflicts of laws thereof, except to the extent
the provisions of this Agreement are expressly governed by or derive their
authority from the CBCA.
Section 7.5 Notices. All notices and other communications
hereunder shall be in writing (including telecopy or similar writing) and
shall be effective (a) if given by telecopy, when such telecopy is
transmitted to the telecopy number specified in this Section 7.5 and the
appropriate telecopy confirmation is received or (b) if given by any other
means, when delivered at the address specified in this Section 7.5:
To the Bidder:
Invitrogen Corporation
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
copy to:
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ & Freidenrich LLP
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Cameron ▇▇▇ ▇▇▇▇▇, Esq.
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
To the Company:
Dexter Corporation
▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: General Counsel
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
copy to:
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Section 7.6 Assignment; Binding Effect. Neither this Agreement
nor any of the rights, interests or obligations hereunder shall be assigned
by either of the parties hereto (whether by operation of law or otherwise)
without the prior written consent of the other parties. Subject to the
first sentence of this Section 7.6, this Agreement shall be binding upon
and shall inure to the benefit of the parties hereto and their respective
successors and permitted assigns. Any assignment not permitted under this
Section 7.6 shall be null and void.
Section 7.7 Severability. Any term or provision of this
Agreement which is invalid or unenforceable in any jurisdiction shall, as
to that jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without rendering invalid or unenforceable the remaining
terms and provisions of this Agreement in any other jurisdiction. If any
provision of this Agreement is so broad as to be unenforceable, such
provision shall be interpreted to be only so broad as is enforceable.
Section 7.8 Enforcement of Agreement. The parties hereto agree
that money damages or other remedy at law would not be sufficient or
adequate remedy for any breach or violation of, or a default under, this
Agreement by them and that in addition to all other remedies available to
them, each of them shall be entitled to the fullest extent permitted by law
to an injunction restraining such breach, violation or default or
threatened breach, violation or default and to any other equitable relief,
including, without limitation, specific performance, without bond or other
security being required.
Section 7.9 Entire Agreement; Third-Party Beneficiaries. This
Agreement together with the Life Technologies Merger Agreement, the
Confidentiality Agreement, dated February 27, 2000, the Confidentiality
Agreement, dated July 1, 2000, the Company Disclosure Schedule, the Bidder
Disclosure Schedule and exhibits hereto constitute the entire agreement,
and supersede all other prior agreements and understandings, both written
and oral, among the parties, or any of them, with respect to the subject
matter hereof and thereof and except for the provisions of Section 4.6 and
Section 4.10, is not intended to and shall not confer upon any Person other
than the parties hereto any rights or remedies hereunder.
Section 7.10 Headings. Headings of the Articles and Sections of
this Agreement are for convenience of the parties only, and shall be given
no substantive or interpretive effect whatsoever.
Section 7.11 Definitions. References in this Agreement to (a)
"Subsidiaries" of the Company or the Bidder shall mean any corporation or
other form of legal entity of which more than 50% of the outstanding voting
securities are on the date hereof directly or indirectly owned by the
Company or the Bidder or in which the Company or the Bidder has the right
to elect a majority of the members of the board of directors or other
similar governing body; (b) "Significant Subsidiaries" shall mean
Subsidiaries which constitute "significant subsidiaries" under Rule 405
promulgated by the SEC under the Securities Act; (c) "affiliates" shall
mean, as to any Person, any other Person which, directly or indirectly,
controls, or is controlled by, or is under common control with, such
Person; and (d) "Person" shall mean an individual, a corporation, a
partnership, an association, a trust or any other entity or organization,
including, without limitation, a Governmental Entity. As used in the
definition of "affiliates," "control" (including, with its correlative
meanings, "controlled by" and "under common control with") shall mean the
possession, directly or indirectly, of the power to direct or cause the
direction of management or policies of a Person, whether through the
ownership of securities or partnership or other ownership interests, by
contract or otherwise. "Including," as used herein, shall mean "including,
without limitation."
Section 7.12 Finders or Brokers. Except for ▇▇▇▇▇▇ Brothers Inc.
with respect to the Company, and ▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ Securities
Corporation with respect to the Bidder, neither the Company nor the Bidder
nor any of their respective Subsidiaries has employed any investment
banker, broker, finder or intermediary in connection with the transactions
contemplated hereby who might be entitled to any fee or any commission in
connection with or upon consummation of the Merger.
Section 7.13 Amendment or Supplement. At any time prior to the
Effective Time, this Agreement may be amended or supplemented in any and
all respects, whether before or after the Company Shareholder Approval and
the Bidder Shareholder Approval, by written agreement of the parties
hereto, by action taken by their respective Boards of Directors, with
respect to any of the terms contained in this Agreement; provided, however
that following the Company Shareholder Approval and the Bidder Shareholder
Approval there shall be no amendment or change to the provisions hereof
which would reduce the amount or change the type of consideration into
which each Share shall be converted upon consummation of the Merger or
other change requiring shareholder approval without further approval by the
shareholders of the Company.
Section 7.14 Extension of Time, Waiver, Etc. At any time prior
to the Effective Time, any party may (a) extend the time for the
performance of any of the obligations or acts of any other party hereto;
(b) waive any inaccuracies in the representations and warranties of any
other party hereto contained herein or in any document delivered pursuant
hereto; or (c) subject to the proviso of Section 7.13 waive compliance with
any of the agreements or conditions of any other party hereto contained
herein. Notwithstanding the foregoing no failure or delay by the Company or
the Bidder in exercising any right hereunder shall operate as a waiver
thereof nor shall any single or partial exercise thereof preclude any other
or further exercise thereof or the exercise of any other right hereunder.
Any agreement on the part of a party hereto to any such extension or waiver
shall be valid only if set forth in an instrument in writing signed on
behalf of such party.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered as of the date first above
written.
INVITROGEN CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chairman & CEO
DEXTER CORPORATION
By: /s/ K. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------------
Name: K. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Chairman & CEO