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EXHIBIT 99.P.1
CONTRIBUTION AGREEMENT
among
MERCK HOLDINGS, INC.
and
▇▇▇▇▇▇▇ ▇▇▇▇▇ CAPITAL SERVICES, INC.
and
READINGTON HOLDINGS, INC.
Dated as of August 11, 2000
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THIS CONTRIBUTION AGREEMENT (the "Agreement"), dated as of August 11,
2000, is being executed by ▇▇▇▇▇▇▇ ▇▇▇▇▇ CAPITAL SERVICES, INC. ("▇▇▇▇▇▇▇"), a
corporation organized under the laws of the State of Delaware, MERCK HOLDINGS,
INC. ("Merck"), a corporation organized under the laws of the State of Delaware,
and READINGTON HOLDINGS, INC. (the "Issuer"), a corporation organized under the
laws of the State of New Jersey.
PREAMBLE
WHEREAS, the equity interests in the Issuer are represented by
shares of Class A Senior Stock and Class B Junior Stock (each, a "Share" and
collectively, the "Shares"), and prior to the execution of this Agreement, all
of the outstanding Shares of the Issuer are owned by Merck; and
WHEREAS, Merck owns certain dividend receipts which are listed
on Schedule A attached hereto (the "Merck Receipts") and ▇▇▇▇▇▇▇ owns certain
dividend receipts which are listed on Schedule B attached hereto (the "▇▇▇▇▇▇▇
Receipts"); and
WHEREAS, the parties desire that Merck contribute the Merck
Receipts to the Issuer in exchange for 600,781 shares of Class B Junior Stock in
the Issuer; and
WHEREAS, the parties desire that ▇▇▇▇▇▇▇ contribute the
▇▇▇▇▇▇▇ Receipts to the Issuer in exchange for 18,736 shares of Class B Junior
Stock and 5,000 shares of Class A Senior Stock in the Issuer.
NOW, THEREFORE, in consideration of the premises, mutual
agreements and covenants hereinafter set forth, the parties hereby agree as
follows:
ARTICLE I
DEFINITIONS
All capitalized terms used in this Agreement shall have the meanings
provided below:
"Action" means any claim, action, suit, arbitration, inquiry,
proceeding or investigation by or before any Governmental Authority.
"Affiliate" means, with respect to any specified Person, any other
Person that, directly or indirectly through one or more intermediaries,
Controls, is controlled by or is under common control with such specified
Person.
"Agreement" shall have the meaning specified in the introduction
hereto.
"Amended and Restated Certificate of Incorporation" means the Amended
and Restated Certificate of Incorporation of the Issuer, as modified and
supplemented and in effect from time to time.
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"Certificate Register" shall have the meaning provided for such term in
the Trust Agreements.
"Class A Senior Stock" means the Class A Senior Stock, par value $1,000
per share, of the Issuer with the designations, rights and preferences set forth
in the Amended and Restated Certificate of Incorporation.
"Class B Junior Stock" means the Class B Junior Stock, par value $1,000
per share, of the Issuer with the designations, rights and preferences set forth
in the Amended and Restated Certificate of Incorporation.
"Closing" means the contribution and exchange transaction in accordance
with the terms and conditions of this Agreement, which shall take place on the
Closing Date.
"Closing Date" means the date specified in Section 2.03(a) hereof.
"Control" (including the terms "controlled by" and "under common
control with"), with respect to the relationship between or among two or more
Persons, means the possession, directly or indirectly or as trustee or executor,
of the power to direct or cause the direction of the affairs or management of a
Person, whether through the ownership of voting securities, as trustee or
executor, by contract or otherwise, including, without limitation, the
ownership, directly or indirectly, of securities having the power to elect a
majority of the board of directors or similar body governing the affairs of such
Person.
"Custodial Receipt Register" shall have the meaning provided for such
term in the Custody Agreements.
"Custodian" shall have the meaning provided for such term in the
Custody Agreements.
"Custody Agreement" shall have the meaning provided for such term in
the Dividend Receipt Purchase Agreement.
"Depositor" shall have the meaning provided for such term in the Trust
Agreements.
"Dividend Certificates" shall have the meaning provided for such term
in the Trust Agreements.
"Dividend Receipt Purchase Agreement" means the Dividend Receipt
Purchase Agreement dated as of August 11, 2000 between Merck and ▇▇▇▇▇▇▇.
"Dividend Receipts" means the Merck Receipts and the ▇▇▇▇▇▇▇ Receipts,
collectively.
"Encumbrance" means any security interest, pledge, mortgage, lien,
charge, encumbrance, adverse claim, preferential arrangement or restriction of
any kind, including, without limitation, any restriction on the use, voting,
transfer, receipt of income or other exercise of any attributes of ownership.
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"Governmental Authority" means any federal, state or local government,
governmental, regulatory or administrative authority, agency or commission or
any court, tribunal, or judicial or arbitral body.
"Governmental Order" means any order, writ, judgment, injunction,
decree, stipulation, determination or award entered by or with any Governmental
Authority.
"Investment Company Act" means the Investment Company Act of 1940, as
amended.
"Income Receipts" shall have the meaning provided for such term in the
Custody Agreements.
"Investor Letter" shall have the meaning provided for such term in the
Dividend Receipt Purchase Agreement.
"Issuer" shall have the meaning provided for such term in the
introduction hereto.
"Law" means any federal, state or local statute, law, ordinance,
regulation, rule or code.
"Merck" shall have the meaning provided for such term in the
introduction hereto.
"Merck Receipts" shall have the meaning provided for such term in the
Preamble.
"▇▇▇▇▇▇▇" shall have the meaning provided for such term in the
introduction hereto.
"▇▇▇▇▇▇▇ Receipts" shall have the meaning provided for such term in the
Preamble.
"Permitted Assigns" means, with respect to ▇▇▇▇▇▇▇, any Affiliate of
▇▇▇▇▇▇▇, and with respect to Merck, any Affiliate of Merck.
"Person" means any individual, partnership, firm, corporation, limited
liability company, association, trust, unincorporated organization or other
entity.
"Primary Trustee" shall have the meaning provided for such term in the
Dividend Receipt Purchase Agreement.
"Securities Act" means the Securities Act of 1933, as amended.
"Shareholder Agreement" means the shareholder agreement between Merck
and ▇▇▇▇▇▇▇, dated as of the date hereof.
"Shares" shall have the meaning provided for such term in the Preamble.
"Transferee Representation Letter" shall have the meaning provided for
such term in the Dividend Receipt Purchase Agreement.
"Trust Agreement" shall have the meaning provided for such term in the
Dividend Receipt Purchase Agreement.
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ARTICLE II
EXCHANGE AND CONTRIBUTION
SECTION 2.01. CONTRIBUTION. Upon the terms and subject to the
conditions contained in this Agreement, at the Closing, Merck shall contribute
the Merck Receipts, and ▇▇▇▇▇▇▇ shall contribute the ▇▇▇▇▇▇▇ Receipts, to the
capital of the Issuer.
SECTION 2.02. ISSUANCE OF SHARES AND PAYMENT OF CASH. In
exchange for the Merck Receipts contributed to the Issuer by Merck pursuant to
Section 2.01 above, the Issuer will issue to Merck 600,781 fully paid and
non-assessable shares of Class B Junior Stock, and in exchange for the ▇▇▇▇▇▇▇
Receipts contributed to the Issuer by ▇▇▇▇▇▇▇ pursuant to Section 2.01 above,
the Issuer will issue to ▇▇▇▇▇▇▇ 5,000 fully paid and non-assessable shares of
Class A Senior Stock and 18,736 fully paid and non-assessable shares of Class B
Junior Stock.
SECTION 2.03. CLOSING. (a) Subject to the terms and conditions
of this Agreement, the Closing shall take place at the offices of ▇▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ at 10:00 A.M. New York time, on
August 11, 2000, or at such other place or at such other time or on such other
date as the representatives of Merck, Merrill and the Issuer may mutually agree
upon.
(b) At the Closing, (i) Merck and ▇▇▇▇▇▇▇ shall deliver to the
Issuer duly executed instruments of transfer relating to the Merck Receipts and
the ▇▇▇▇▇▇▇ Receipts respectively, and (ii) the Issuer shall deliver or cause to
be delivered to Merck and ▇▇▇▇▇▇▇ (x) duly executed Investor Letters in the form
of Appendix C to each of the Trust Agreements addressed to the Primary Trustee,
(y) duly executed Transferee Representation Letters in the form of Appendix D to
each of the Custody Agreements addressed to the Custodian and the Depositor, and
(z) share certificates evidencing the shares of Class A Senior Stock and Class B
Junior Stock to be issued pursuant to Section 2.02 in a form satisfactory to
Merck and ▇▇▇▇▇▇▇.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE ISSUER
As an inducement to Merck and ▇▇▇▇▇▇▇ to enter into this
Agreement, the Issuer hereby represents and warrants to Merck and ▇▇▇▇▇▇▇ as
follows:
SECTION 3.01. ORGANIZATION AND AUTHORITY OF THE ISSUER. The
Issuer is a corporation, duly organized, validly existing and in good standing
under the laws of the State of New Jersey and has full corporate power and
authority to enter into this Agreement, to carry out its obligations hereunder
and to consummate the transactions contemplated hereby.
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The execution and delivery of this Agreement by the Issuer,
the performance by the Issuer of its obligations hereunder and the consummation
by the Issuer of the transactions contemplated hereby, have been duly authorized
by all requisite corporate action on the part of the Issuer. This Agreement has
been duly executed and delivered by the Issuer and constitutes a valid and
binding obligation of the Issuer enforceable against the Issuer in accordance
with its terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability relating to
or affecting creditors' rights and to general principles of equity.
SECTION 3.02. AUTHORIZED SHARES OF THE ISSUER. As of the date
hereof, the Issuer has 624,626 authorized shares of capital stock, of which
5,000 are shares of Class A Senior Stock, and 619,626 are shares of Class B
Junior Stock.
SECTION 3.03. ISSUED AND OUTSTANDING SHARES. The shares of
Class A Senior Stock and Class B Junior Stock to be issued pursuant to Section
2.02 above have been duly and validly authorized and, when issued and delivered
against the contribution of the Dividend Receipts as provided herein, will be
duly and validly issued and fully paid and non-assessable. Upon the issuance of
such shares pursuant to Section 2.02 above, there will be issued and outstanding
5,000 shares of Class A Senior Stock and 619,626 shares of Class B Junior
Stock.
SECTION 3.04. NO CONFLICT. The execution, delivery and
performance of this Agreement by the Issuer do not and will not (a) violate,
conflict with or result in the breach of the Issuer's Amended and Restated
Certificate of Incorporation or the By-laws of the Issuer, (b) conflict with or
violate any Law or Governmental Order applicable to the Issuer or (c) conflict
with, or result in any breach of, constitute a default (or event which with the
giving of notice or lapse of time, or both, would become a default) under,
require any consent under, or give to others any rights of termination,
amendment, acceleration, suspension, revocation, or cancellation of, or result
in the creation of any Encumbrance on any of the assets or properties of the
Issuer pursuant to, any note, bond, mortgage or indenture, contract, agreement,
lease, sublease, license, permit, franchise or other instrument or arrangement
to which the Issuer is a party or by which any of such assets or properties are
bound or affected, in each case where such violation, conflict, breach or
default would have a material adverse effect on the ability of the Issuer to
consummate the transactions contemplated by this Agreement.
SECTION 3.05. ABSENCE OF LITIGATION. There is no lawsuit,
action, proceeding or investigation pending or, to the Issuer's knowledge,
threatened against the Issuer which purports to affect the validity,
enforceability or legality of this Agreement or the consummation of the
transactions contemplated hereby.
SECTION 3.06. SECURITIES ACT COMPLIANCE. Neither the Issuer,
nor any of its Affiliates, nor any Person acting on its or their behalf has (a)
offered the Shares, or solicited offers to buy the Shares, under circumstances
that would require the registration of the Shares under the Securities Act or
(b) engaged in any form of general solicitation or general advertising (within
the meaning of Regulation D under the Securities Act) in connection with any
offer or sale of the Shares.
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SECTION 3.07. INVESTMENT PURPOSE. The Issuer is acquiring the
Dividend Receipts solely for the purpose of investment and not with a view to,
or for offer or sale in connection with, any distribution thereof and the Issuer
acknowledges and agrees that in acquiring the Dividend Receipts in accordance
with the provisions hereof, it is exercising its own independent judgment and
assessment, and that it has consulted and will consult with its own legal,
regulatory, tax, business, investment, financial and accounting advisors, as to
the consequences of the acquisition, ownership or any subsequent reoffer or
resale by it of the Dividend Receipts. The Issuer acknowledges that it
understands that the Dividend Receipts shall, unless and until such time that
the Dividend Receipts are registered under the Securities Act and the Investment
Company Act, bear a legend stating that the Dividend Receipts have not been
registered under the Securities Act and the Investment Company Act, and that the
Dividend Receipts may not hereafter be transferred except (a) in the case of the
Dividend Receipts issued by the Custodian, in compliance with the Securities Act
and in accordance with Section 2.7(c) of the Custody Agreement, and (b) in the
case of the Dividend Receipts issued by the Primary Trustee (i) to either a
"qualified institutional buyer" (as defined under Rule 144A of the Securities
Act) or an "accredited investor" (as defined in Rule 501 of Regulation D under
the Securities Act) who executes and delivers an Investor Letter to the Primary
Trustee, (ii) with the consent of the Primary Trustee, and (iii) to a "qualified
purchaser" within the meaning of Section 3(c)(7) of the Investment Company Act.
SECTION 3.08. STATUS OF THE ISSUER. The Issuer is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act
and a "qualified purchaser" within the meaning of Section 3(c)(7) of the
Investment Company Act.
SECTION 3.09. ASSETS AND LIABILITIES. Set forth on Schedule C
hereto is a complete and accurate statement of all assets and liabilities of the
Issuer as of June 30, 2000.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF MERCK
As an inducement to the Issuer and ▇▇▇▇▇▇▇ to enter into this
Agreement, Merck hereby represents and warrants to the Issuer and ▇▇▇▇▇▇▇ as
follows:
SECTION 4.01. ORGANIZATION AND AUTHORITY OF MERCK. Merck is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware and has full corporate power and authority to enter
into this Agreement, to carry out its obligations hereunder and to consummate
the transactions contemplated hereby.
The execution and delivery of this Agreement by Merck, the
performance by Merck of its obligations hereunder and the consummation by Merck
of the transactions contemplated hereby, have been duly authorized by all
requisite corporate action on the part of Merck. This Agreement has been duly
executed and delivered by Merck and constitutes a valid and binding obligation
of Merck enforceable against Merck in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors' rights
and to general principles of equity.
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SECTION 4.02. NO CONFLICT. The execution, delivery and
performance of this Agreement by Merck do not and will not (a) violate, conflict
with or result in the breach of the Restated Certificate of Incorporation or
By-laws of Merck, (b) conflict with or violate any Law or Governmental Order
applicable to Merck or (c) conflict with, or result in any breach of, constitute
a default (or event which with the giving of notice or lapse of time, or both,
would become a default) under, require any consent under, or give to others any
rights of termination, amendment, acceleration, suspension, revocation or
cancellation of, or result in the creation of any Encumbrance on any of the
assets or properties of Merck pursuant to, any note, bond, mortgage or
indenture, contract, agreement, lease, sublease, license, permit, franchise or
other instrument or arrangement to which Merck is a party or by which any of
such assets or properties are bound or affected, in each case where such
violation, conflict, breach or default would have a material adverse effect on
the ability of Merck to consummate the transactions contemplated by this
Agreement.
SECTION 4.03. ABSENCE OF LITIGATION. There is no lawsuit,
action, proceeding or investigation pending or, to Merck's knowledge, threatened
against Merck which purports to affect the validity, enforceability or legality
of this Agreement or the consummation of the transactions contemplated hereby.
SECTION 4.04. COMPLIANCE WITH SECURITIES LAWS. Neither Merck,
nor any of its Affiliates, nor any Person acting on its or their behalf has (a)
offered the Dividend Receipts, or solicited any offers to buy the Dividend
Receipts, under circumstances that would require the registration of the
Dividend Receipts under the Securities Act or (b) engaged in any form of general
solicitation or general advertising (within the meaning of Regulation D under
the Securities Act) in connection with any offer or sale of the Dividend
Receipts.
SECTION 4.05. INVESTMENT PURPOSE. Merck is acquiring the
Shares solely for the purpose of its own account and not for the account of any
other Person and not with a view to, or for offer or sale in connection with,
any distribution thereof and Merck acknowledges and agrees that in acquiring the
Shares in accordance with the provisions hereof, it is exercising its own
independent judgment and assessment, and that it shall consult with its own
legal, regulatory, tax, business, investment, financial and accounting advisors,
as to the consequences of the acquisition, ownership or any subsequent reoffer
or resale by it of the Shares. Merck acknowledges that it understands that the
stock certificates evidencing the Shares to be issued by it shall, unless and
until such time that the Shares are registered under the Securities Act, bear a
legend stating that (i) the Shares have not been registered under the Securities
Act, (ii) were issued in reliance upon Merck's representation that the Shares
were being acquired for investment and not for resale, (iii) will not be
transferred on the books of the Issuer unless accompanied by an opinion of
counsel, satisfactory to the Issuer, that such transfer may properly be made
without registration under the Securities Act or that the Shares have been so
registered under a registration statement which is in effect at the date of such
transfer and (iv) are also subject to the restrictions on transfer contained in
this Agreement and the Shareholder Agreement and no transfer of the Shares will
be made on the books of the Issuer unless accompanied by evidence of compliance
with the terms of this Agreement and the Shareholder Agreement.
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SECTION 4.06. STATUS OF MERCK. Merck is a "qualified institutional
buyer" within the meaning of Rule 144A under the Securities Act.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF ▇▇▇▇▇▇▇
As an inducement to the Issuer and Merck to enter into this
Agreement, ▇▇▇▇▇▇▇ hereby represents and warrants to the Issuer and Merck as
follows:
SECTION 5.01. ORGANIZATION AND AUTHORITY OF ▇▇▇▇▇▇▇. ▇▇▇▇▇▇▇
is a corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware and has full corporate power and authority to
enter into this Agreement, to carry out its obligations hereunder and to
consummate the transactions contemplated hereby.
The execution and delivery of this Agreement by ▇▇▇▇▇▇▇, the
performance by ▇▇▇▇▇▇▇ of its obligations hereunder and the consummation by
▇▇▇▇▇▇▇ of the transactions contemplated hereby, have been duly authorized by
all requisite corporate action on the part of ▇▇▇▇▇▇▇. This Agreement has been
duly executed and delivered by ▇▇▇▇▇▇▇ and constitutes a valid and binding
obligation of ▇▇▇▇▇▇▇ enforceable against ▇▇▇▇▇▇▇ in accordance with its terms,
subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or affecting
creditors' rights and to general principles of equity.
SECTION 5.02. NO CONFLICT. The execution, delivery and
performance of this Agreement by ▇▇▇▇▇▇▇ do not and will not (a) violate,
conflict with or result in the breach of the Certificate of Incorporation or
By-laws of ▇▇▇▇▇▇▇, (b) conflict with or violate any Law or Governmental Order
applicable to ▇▇▇▇▇▇▇ or (c) conflict with, or result in any breach of,
constitute a default (or event which with the giving of notice or lapse of time,
or both, would become a default) under, require any consent under, or give to
others any rights of termination, amendment, acceleration, suspension,
revocation or cancellation of, or result in the creation of any Encumbrance on
any of the assets or properties of ▇▇▇▇▇▇▇ pursuant to, any note, bond, mortgage
or indenture, contract, agreement, lease, sublease, license, permit, franchise
or other instrument or arrangement to which ▇▇▇▇▇▇▇ is a party or by which any
of such assets or properties are bound or affected, in each case where such
violation, conflict, breach or default would have a material adverse effect on
the ability of ▇▇▇▇▇▇▇ to consummate the transactions contemplated by this
Agreement.
SECTION 5.03. ABSENCE OF LITIGATION. There is no lawsuit,
action, proceeding or investigation pending or, to ▇▇▇▇▇▇▇'▇ knowledge,
threatened against ▇▇▇▇▇▇▇ which purports to affect the validity, enforceability
or legality of this Agreement or the consummation of the transactions
contemplated hereby.
SECTION 5.04. COMPLIANCE WITH SECURITIES LAWS. Neither
▇▇▇▇▇▇▇, nor any of its Affiliates, nor any Person acting on its or their behalf
has (a) offered the Dividend Receipts, or solicited any offers to buy the
Dividend Receipts, under circumstances that would require the registration of
the Dividend Receipts under the Securities Act or (b) engaged in any form of
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general solicitation or general advertising (within the meaning of Regulation D
under the Securities Act) in connection with any offer or sale of the Dividend
Receipts.
SECTION 5.05. INVESTMENT PURPOSE. ▇▇▇▇▇▇▇ is acquiring the
Shares solely for its own account and not for the account of any other Person
and not with a view to, or for offer or sale in connection with, any
distribution thereof and ▇▇▇▇▇▇▇ acknowledges and agrees that in acquiring the
Shares in accordance with the provisions hereof, it is exercising its own
independent judgment and assessment, and that it shall consult with its own
legal, regulatory, tax, business, investment, financial and accounting advisors,
as to the consequences of the acquisition, ownership or any subsequent reoffer
or resale by it of the Shares. ▇▇▇▇▇▇▇ acknowledges that it understands that the
stock certificates evidencing the Shares shall, until such time that the Shares
are registered under the Securities Act, bear a legend stating that the Shares
(i) have not been registered under the Securities Act, (ii) were issued in
reliance upon ▇▇▇▇▇▇▇'▇ representation that the Shares were being acquired for
investment and not for resale, (iii) will not be transferred on the books of the
Issuer unless accompanied by an opinion of counsel, satisfactory to the Issuer,
that such transfer may properly be made without registration under the
Securities Act or that the Shares have been so registered under a registration
statement which is in effect at the date of such transfer and (iv) are also
subject to the restrictions on transfer contained in this Agreement and the
Shareholder Agreement and no transfer of the Shares will be made on the books of
the Issuer unless accompanied by evidence of compliance with the terms of this
Agreement and the Shareholder Agreement.
SECTION 5.06. STATUS OF ▇▇▇▇▇▇▇. ▇▇▇▇▇▇▇ is a "qualified
institutional buyer" within the meaning of Rule 144A promulgated by the
Securities and Exchange Commission under the Securities Act.
ARTICLE VI
ADDITIONAL AGREEMENTS
SECTION 6.01. FURTHER ACTION. Subject to the terms and
conditions of this Agreement, each of the parties hereto shall use all
reasonable efforts to take or cause to be taken all appropriate action, do or
cause to be done all things necessary, proper or advisable, and execute and
deliver such documents and other papers, as may be required to carry out the
provisions of this Agreement and consummate and make effective the transactions
contemplated by this Agreement.
SECTION 6.02. INVESTIGATION. Each of Merck and ▇▇▇▇▇▇▇
acknowledges and agrees that (i) the Issuer has furnished or given each of Merck
and ▇▇▇▇▇▇▇ adequate access to all information relating to the Issuer and the
Shares, including the value of the Shares, and has made available to each of
Merck and ▇▇▇▇▇▇▇ an opportunity to ask questions and receive answers concerning
the terms and conditions of the investment by each of Merck and ▇▇▇▇▇▇▇ in the
Shares and (ii) based on the information obtained by it as provided in (i) above
and such other investigation as each of Merck and ▇▇▇▇▇▇▇ has deemed adequate,
each of Merck and ▇▇▇▇▇▇▇ has made its own inquiry and investigation concerning
the Issuer and has, based on such information, formed an independent judgment
concerning the Issuer and the Shares, including the value of the Shares.
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SECTION 6.03. LEGAL, TAX AND REGULATORY TREATMENT. Each of
Merck and ▇▇▇▇▇▇▇ represents and warrants to the Issuer that, in connection with
the purchase of the Shares, and with respect to any information or communication
received regarding the value of the Shares, it has had the opportunity to
consult with its own legal, regulatory, tax, business, investment, financial and
accounting advisors to the extent it deems necessary, and it has and will
continue to make its own decisions (including, without limitation, decisions
regarding the appropriateness and/or suitability of the purchase of the Shares)
based upon its own judgment and upon any advice from such advisors as it deems
necessary. Each of Merck and ▇▇▇▇▇▇▇ agrees that the Issuer has not made any
representation, warranty or assurance as to the legal, regulatory, tax,
business, investment, financial or accounting treatment or consequences
regarding the purchase of and investment in the Shares, except as expressly set
forth herein.
ARTICLE VII
CONDITIONS TO CLOSING
SECTION 7.01. CONDITIONS TO OBLIGATIONS OF THE ISSUER. The
obligations of the Issuer to consummate the transactions contemplated by this
Agreement shall be subject to the conditions that (i) the representations and
warranties of Merck and ▇▇▇▇▇▇▇ contained in this Agreement shall have been true
and correct when made and shall be true and correct in all material respects on
the Closing Date, with the same force and effect, as if made as of the Closing
Date and (ii) the covenants and agreements contained in this Agreement to be
complied with by Merck and ▇▇▇▇▇▇▇, including the obligations of Merck and
▇▇▇▇▇▇▇ under Article II hereof, at or prior to the Closing shall have been
complied with as of the Closing Date in all material respects.
SECTION 7.02. CONDITIONS TO OBLIGATIONS OF MERCK. The
obligations of Merck to consummate the transactions contemplated by this
Agreement shall be subject to the conditions that (i) the representations and
warranties of the Issuer and ▇▇▇▇▇▇▇ contained in this Agreement shall have been
true and correct when made and shall be true and correct in all material
respects on the Closing Date, with the same force and effect, as if made as of
the Closing Date, and (ii) the covenants and agreements contained in this
Agreement to be complied with by the Issuer and ▇▇▇▇▇▇▇ at or prior to the
Closing, including the obligations of the Issuer and ▇▇▇▇▇▇▇ under Article II
hereof, shall have been complied with as of the Closing Date in all material
respects.
SECTION 7.03. CONDITIONS TO OBLIGATIONS OF ▇▇▇▇▇▇▇. The
obligations of ▇▇▇▇▇▇▇ to consummate the transactions contemplated by this
Agreement shall be subject to the conditions that (i) the representations and
warranties of the Issuer and Merck contained in this Agreement shall have been
true and correct when made and shall be true and correct in all material
respects on the Closing Date, with the same force and effect, as if made as of
the Closing Date, and (ii) the covenants and agreements contained in this
Agreement to be complied with by the Issuer and Merck, including the obligations
of the Issuer and Merck under Article II hereof, at or prior to the Closing
shall have been complied with as of the Closing Date in all material respects.
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ARTICLE VIII
GENERAL PROVISIONS
SECTION 8.01. INDEMNIFICATION. Each party hereby agrees to
indemnify each other party and its Affiliates and hold such other party and its
Affiliates harmless from any and all damage, loss, liability and expense
(including, without limitation, reasonable expenses of investigation and
reasonable attorney's fees and expenses in connection with any Action) incurred
or suffered by such other party or any of its Affiliates, arising out of any
misrepresentation or breach of warranty, covenant or agreement contained in this
Agreement made or to be performed by the indemnifying party.
SECTION 8.02. EXPENSES. Except as otherwise specified in this
Agreement, all costs and expenses, including, without limitation, fees and
disbursements of financial advisors and accountants, incurred in connection with
this Agreement and the transactions contemplated hereby shall be paid by the
respective party incurring such costs and expenses, whether or not the Closing
shall have occurred; provided however, that reasonable fees and disbursements of
corporate counsel to Merrill shall be paid by Merck.
SECTION 8.03. NOTICES. All notices, requests, claims, demands
and other communications hereunder shall be in writing and shall be deemed to
have been duly given or made as of the date delivered if delivered personally or
by courier, as of the date received if mailed by registered or certified mail
(postage prepaid, return receipt requested) or as of the date sent if sent by
cable, facsimile, telegram or telex, to the respective parties at the following
addresses or facsimile numbers (or at such other address or facsimile number for
a party as shall be specified in a notice given in accordance with this Section
8.03):
(a) if to the Issuer:
Readington Holdings, Inc.
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇
(b) if to Merck:
Merck Holdings, Inc.
One ▇▇▇▇▇▇ Square
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
(c) if to Merrill
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▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital Services, Inc.
World ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
SECTION 8.04. HEADINGS. The descriptive headings contained in
this Agreement are for convenience of reference only and shall not affect in any
way the meaning or interpretation of this Agreement.
SECTION 8.05. SEVERABILITY. If any term or other provision of
this Agreement is invalid, illegal or incapable of being enforced by any Law or
public policy, all other terms and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
materially adverse to any party. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties hereto
shall negotiate in good faith to modify this Agreement so as to effect the
original intent of the parties as closely as possible, in an acceptable manner,
in order that the transactions contemplated hereby are consummated as originally
contemplated to the greatest extent possible.
SECTION 8.06. ASSIGNMENTS, PARTIES IN INTEREST, BINDING
EFFECT. This Agreement may not be assigned or delegated by any party hereto to
any Person other than Permitted Assigns of such party without the prior written
consent of the other parties hereto, and any purported assignment without such
consent shall be void. This Agreement, including the representations and
warranties herein, shall be binding upon and inure solely to the benefit of the
parties hereto and their respective successors and Permitted Assigns whether so
expressed or not, and, except as expressly provided in Section 8.01, nothing
herein, express or implied, is intended to or shall confer upon any other Person
any legal or equitable right, benefit or remedy of any nature whatsoever under
or by reason of this Agreement.
SECTION 8.07. GOVERNING LAW. This Agreement shall be governed
by, and construed in accordance with, the laws of the State of New York.
SECTION 8.08. COUNTERPARTS. This Agreement may be executed in
one or more counterparts, and by the different parties hereto in separate
counterparts, each of which when executed shall be deemed to be an original but
all of which taken together shall constitute one and the same agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto duly authorized,
as of the date first above written.
READINGTON HOLDINGS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Secretary
MERCK HOLDINGS, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: President
▇▇▇▇▇▇▇ ▇▇▇▇▇ CAPITAL SERVICES, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Managing Director
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SCHEDULE A
MERCK RECEIPTS
Income Receipts for dividends in respect of 158,729,010 shares issued by ▇▇▇▇▇▇▇
▇▇▇▇▇ Institutional Money Market Fund.
Income Receipts for dividends payable in respect of 192,398,800 shares issued by
▇▇▇▇▇▇▇ ▇▇▇▇▇ Premier Institutional Money Market Fund.
Dividend Certificates relating to 129,869,190 shares of Short-Term Investments
Liquid Assets Portfolio.
Dividend Certificates relating to 144,299,100 shares of Short-Term Investments
Co.-Prime Assets Portfolio.
Dividend Certificates relating to 144,299,100 shares of Short-Investments Trust
Treasury Portfolio.
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SCHEDULE B
MERRILL RECEIPTS
Income Receipts for dividends in respect of 6,270,990 shares issued by ▇▇▇▇▇▇▇
▇▇▇▇▇ Institutional Money Market Fund.
Income Receipts for dividends payable in respect of 7,601,200 shares issued by
▇▇▇▇▇▇▇ ▇▇▇▇▇ Premier Institutional Money Market Fund.
Dividend Certificates relating to 5,130,810 shares of Short-Term Investments
Liquid Assets Portfolio.
Dividend Certificates relating to 5,700,900 shares of Short-Term Investments
Co.-Prime Assets Portfolio.
Dividend Certificates relating to 5,700,900 shares of Short-Investments Trust
Treasury Portfolio.
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SCHEDULE C
ASSETS AND LIABILITIES OF READINGTON HOLDINGS, INC
June 30, 2000
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(unaudited)
Assets
------
Cash and cash equivalents ...................................... $200
Liabilities .................................................... 0
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