AGREEMENT AND PLAN OF MERGER

 

Exhibit 2.1

 

AGREEMENT AND PLAN OF MERGER

 

THIS AGREEMENT AND PLAN OF MERGER, dated as of January 22, 2005 (this “ Agreement ”), is made by and among Monsanto Company, a Delaware corporation (“ Parent ”), Monsanto Sub, Inc., a Delaware corporation and wholly owned subsidiary of Parent (“ Merger Sub ”), and Seminis, Inc., a Delaware corporation (the “ Company ”).

 

WHEREAS, the board of directors of the Company (the “ Company Board ”), Parent and Merger Sub have determined that this Agreement and the merger of Merger Sub with and into the Company, with the Company as the surviving corporation, upon the terms and subject to the conditions set forth in this Agreement (the “ Merger ”) are advisable and in the best interests of their respective corporations and stockholders and have approved this Agreement and the Merger;

 

WHEREAS, as a condition and inducement to Parent’s willingness to enter into this Agreement and incurring the obligations set forth herein, Parent has required the holders of all the outstanding shares of common stock, par value $.01 per share, of the Company (the “ Company Common Stock ”) to enter into support agreements, of even date herewith (each, a “ Support Agreement ”), pursuant to which, among other things, and subject to the terms and conditions therein, each Person party to a Support Agreement agrees to vote, or cause to be voted, all shares of Company Common Stock beneficially owned by such stockholder in favor of the Merger;

 

WHEREAS, as additional conditions and inducements to Parent’s willingness to enter into this Agreement and incur the obligations set forth herein, Parent has required (i) each of Alfonso Romo Garza, Bruno Ferrari, Mateo Mazal, Bernardo Jimenez, Gaspar Alvarez, Jose Manuel Madero, Charles Edward Green, Franco Campana and Jean Pierre Posa to enter into noncompetition and nonsolicitation agreements of even date herewith (collectively, the “ Non-Compete Agreements ”) and (ii) each of Alfonso Romo Garza, Bernardo Jimenez and Mateo Mazal to enter into a separation agreement of even date herewith with the Company (the “ Separation Agreements ”), pursuant to which each of Alfonso Romo Garza, Bernardo Jimenez and Mateo Mazal, respectively, has agreed with the Company to terminate his employment as of the Closing Date; and

 

WHEREAS, Parent, Merger Sub and the Company desire to make certain representations, warranties, covenants and agreements in connection with the Merger and also to prescribe various conditions to the Merger;

 

NOW, THEREFORE, in consideration of the representations, warranties, covenants and agreements contained in this Agreement, the parties agree as follows:

 

ARTICLE I.

 

CERTAIN DEFINITIONS

 

As used in this Agreement, the following terms shall have the respective meanings set forth below:

 

“ Affiliate ” of a specified Person means a Person who, directly or indirectly, through one or more intermediaries controls, is controlled by or is under common control with such specified Person. For purposes of this definition, “control” (including, with correlative meanings, the terms “controlled by” and “under common control with”) means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting shares, by contract or otherwise.

 

“ Agreement ” shall have the meaning set forth in the preamble.

 

“ Award Cancellation Time ” means the time that is on the Closing Date and immediately prior to the Effective Time.

 

“ Award List ” shall have the meaning set forth in Section 3.10(a).

 

“ Benefit Plans ” shall have the meaning set forth in Section 4.10(a).

 

“ Business Day ” shall mean any day, other than a Saturday, Sunday or legal holiday on which banks are permitted to close in the City and State of New York.

 

“ Certificate ” shall have the meaning set forth in Section 3.8(d).

 

“ Certificate of Designation ” means Certificate of Designation of Preferences and Rights of Class C PIK Preferred Stock of Seminis, Inc. filed with the Secretary of State of the State of Delaware on September 29, 2003.

 

“ Certificate of Merger ” shall have the meaning set forth in Section 3.2.

 

“ Closing ” shall have the meaning set forth in Section 3.2.

 

“ Closing Date ” shall have the meaning set forth in Section 3.2.

 

“ Co-Investment Agreements ” shall mean, collectively, that certain (i) 15% Co-Investment Rights Agreement, dated as of September 29, 2003, between the Company and Marinet, (ii) Hurdle Co-Investment Rights Agreement, dated as of September 29, 2003, between the Company and Marinet, (iii) Hurdle Co-Investment Rights Agreement, dated as of September 29, 2003, between the Company and Fox Paine Capital Fund II, L.P., (iv) Hurdle Co-Investment Rights Agreement, dated as of September 29, 2003, between the Company and Fox Paine Capital Fund II Co-Investors, L.P., (v) Hurdle Co-Investment Rights Agreement, dated as of September 29, 2003, between the Company and the E and A ‘J’ Trust, (vi) Hurdle Co-Investment Rights Agreement, dated as of September 29, 2003, between the Company and FPC Investment GP, (vii) Hurdle Co-Investment Rights Agreement, dated as of September 29, 2003, between the

 

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Company and FPSH Coinvestment Fund I, LLC, (viii) Hurdle Co-Investment Rights Agreement, dated as of September 29, 2003, between the Company and FPSH Coinvestment Fund II, LLC, (ix) Hurdle Co-Investment Rights Agreement, dated as of September 29, 2003, between the Company and FPSH Coinvestment Fund III, LLC, (x) Hurdle Co-Investment Rights Agreement, dated as of September 29, 2003, between the Company and FPSH Coinvestment Fund IV, LLC and (xi) Hurdle Co-Investment Rights Agreement, dated as of September 29, 2003, between the Company and FPSH Coinvestment Fund V, LLC.

 

“ Co-Investment Rights ” shall have the meaning set forth in Section 3.12(a).

 

“ Co-Investment Rights Payment ” shall have the meaning set forth in Section 3.12(a).

 

“ Code ” means the Internal Revenue Code of 1986, as amended.

 

“ Company ” shall have the meaning set forth in the preamble.

 

“ Company 2004 10-K ” shall have the meaning set forth in Section 4.15(a).

 

“ Company Balance Sheet ” means the audited consolidated balance sheet of the Company for the period ended September 30, 2004, contained in the Company’s 2004 10-K.

 

“ Company Board ” shall have the meaning set forth in the recitals.

 

“ Company Common Stock ” shall have the meaning set forth in the recitals.

 

“ Company Competing Transaction ” means any recapitalization, merger, consolidation or other business combination involving the Company, or direct or indirect acquisition of shares of Company Common Stock representing 15% or more of the voting power of the Company or any material portion of the assets (except for acquisitions of assets in the ordinary course of business consistent with past practice) of the Company and its Subsidiaries, or any combination of the foregoing.

 

“ Company Credit Agreement ” means the Credit Agreement, dated as of September 29, 2003, among Seminis Vegetable Seeds, Inc., as the borrower, the Company as the parent guarantor, the financial institutions listed on Schedule 2.01 thereof, as lenders, Citicorp North America, Inc., as administrative agent for the lenders, Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A., Rabobank International, New York Branch and CIBC World Markets Corp., as co-documentation agents, Harris Trust and Savings Bank, as syndication agent and joint lead arranger and Citigroup Global Markets Inc, as joint lead arranger, as amended by Amendment No. 1 thereto dated as of January 15, 2004.

 

“ Company Disclosure Schedule ” means the schedule of disclosures delivered by the Company to Parent and Merger Sub concurrent with the execution of this Agreement.

 

“ Company Employees ” means any employee of the Company as of the Closing Date.

 

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“ Company Germplasm ” means the germplasm used in the breeding or research programs of the Company and its Subsidiaries.

 

“ Company Indenture ” means the Indenture, dated as of September 29, 2003, between Seminis Vegetable Seeds, Inc., the Guarantors named therein and Wells Fargo Bank, National Association, as Trustee.

 

“ Company Intellectual Property ” means the intellectual property rights used in the conduct of the business of the Company or its Subsidiaries, including all patents and patent applications, plant variety protection certificates and applications therefor, trademarks, trademark registrations and applications, domain names, copyrights and copyright registrations and applications, computer programs, technology, know-how, trade secrets, proprietary processes, inventions, service marks, original works of authorship and formulae, together with the goodwill associated with the foregoing.

 

“ Company’s Knowledge ” means the actual knowledge, after reasonable inquiry, of Bernardo Jimenez, Alfonso Romo Garza, Mateo Mazal, Bruno Ferrari, C. Edward Green, Jose Manuel Madero, Gaspar Alvarez, Keith Redenbaugh, Oscar Velasco, Franco Campana, Jean Pierre Posa, Juliet Ream, Bruno Rossolini, Dieter Holtz, Patrick Turner, Steve Witt and, with respect to seedmen’s claims only, Pieter Vandenberg.

 

“ Company Material Adverse Effect ” means any event, change, circumstance, effect or state of facts that is or is reasonably likely to be materially adverse to (a) the business, results of operations, condition (financial or otherwise), assets or liabilities of the Company and its Subsidiaries, taken as a whole, or (b) the ability of the Company to consummate the Merger, except to the extent that such adverse effect results from (i) general economic conditions or changes therein, (ii) financial or securities market fluctuations or conditions, (iii) changes in, or events or conditions affecting, the industries or businesses in which the Company and its Subsidiaries operate, (iv) the announcement of the transactions contemplated by this Agreement, or (v) any actions that may be required pursuant to Section 6.6(a) or 9.7, which effect in the case of clauses (i), (ii) and (iii) does not disproportionately affect the Company and its Subsidiaries in a material and adverse manner.

 

“ Company Notes ” shall mean the $190,000,000 aggregate principal amount of 10¼% Senior Subordinated Notes due 2013 and the $140,000,000 aggregate principal amount of 10¼% Senior Subordinated Notes due 2013, the terms of which are governed by the Company Indenture.

 

“ Company Permits ” shall have the meaning set forth in Section 4.9.

 

“ Company Preferred Stock ” shall mean the Class C PIK Preferred Stock of the Company, par value $.01 per share.

 

“ Company PVP Certificates ” shall have the meaning set forth in Section 4.12(a).

 

“ Company SEC Documents ” shall have the meaning set forth in Section 4.4(a).

 

“ Company Securities ” shall have the meaning set forth in Section 4.2(a).

 

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“ Company Stock Plans ” shall have the meaning set forth in Section 3.10(a).

 

“ Company Stockholder Approval ” means the vote of a majority of the voting power of the Company Common Stock for the adoption of this Agreement and the Merger, or the obtainment of written consents of all of the Company Stockholders in favor of adoption of this Agreement and the Merger.

 

“ Confidentiality Agreement ” shall have the meaning set forth in Section 6.5(a).

 

“ Controlled Group Liability ” shall have the meaning set forth in Section 4.10(f).

 

“ CVR Agreement ” shall mean a contingent value right agreement, between Marinet and the Parent in the form of Exhibit A.

 

“ CVR Option Notice ” shall have the meaning set forth in Section 3.12(b).

 

“ Desarrollo ” means Desarrollo Consolidado de Negocios, S.A. de C.V.

 

“ DGCL ” means the General Corporation Law of the State of Delaware.

 

“ Dissenting Shares ” shall have the meaning set forth in Section 3.9.

 

“ Effective Time ” shall have the meaning set forth in Section 3.2.

 

“ Environmental Claim ” shall have the meaning set forth in Section 4.17(a).

 

“ Environmental Laws ” means all applicable statutes, laws, ordinances, codes, common law, licenses, permits, rules, regulations, orders, demands, approvals, authorizations and similar items of any Governmental Entity relating to pollution or Hazardous Substances or protection of human health or the environment (including ambient air, surface water, ground water, land surface or subsurface strata) or emissions, discharges, releases, disposal or handling of any pollutants or Hazardous Substances.

 

“ ERISA ” shall have the meaning set forth in Section 4.10(a).

 

“ ERISA Affiliate ” shall have the meaning set forth in Section 4.10(c).

 

“ Exchange Act ” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.

 

“ Existing Policy ” shall have the meaning set forth in Section 6.8(c).

 

“ Financial Statements ” shall have the meaning set forth in Section 4.4(a).

 

“ GAAP ” means U.S. generally accepted accounting principles.

 

“ Governmental Entity ” shall have the meaning set forth in Section 4.6.

 

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“ Hazardous Substance ” means any substance presently listed, defined, designated or classified as hazardous, toxic, radioactive or dangerous, or otherwise regulated, under any Environmental Law, including any toxic waste, pollutant, contaminant, hazardous substance, toxic substance, hazardous waste, special waste, industrial substance or petroleum or any derivative or byproduct thereof, radon, radioactive material, asbestos, or asbestos containing material, urea formaldehyde, foam insulation or polychlorinated biphenyls, lead or lead-based paints or materials.

 

“ HMO ” shall have the meaning set forth in Section 4.10(c).

 

“ HSR Act ” means the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended.

 

“ Indebtedness ” of any Person means (a) all obligations of such Person for borrowed money or for the deferred purchase price of property or services (other than current trade liabilities incurred in the ordinary course of business and payable in accordance with customary practices, and excluding ordinary operating leases), (b) any other obligations of such Person that are evidenced by a note, bond, debenture or similar instrument, (c) all obligations under conditional sale or other title retention agreements relating to property purchased, (d) capital lease or sale-leaseback obligations, (e) all liabilities secured by any Lien on any property (other than ordinary operating leases), and (f) any guarantee or assumption of any of the foregoing in clauses (a) through (e) above or guaranty of minimum equity or capital or any make-whole or similar obligation or any other guarantee of indebtedness of a third party.

 

“ Indemnified Parties ” shall have the meaning set forth in Section 6.8(b).

 

“ Insurance Policies ” shall have the meaning set forth in Section 4.16.

 

“ IRS ” means the U.S. Internal Revenue Service.

 

“ Key Employee ” means any Chief Executive Officer, President, Executive Vice President or Senior Vice President or other employee of the Company or its Subsidiaries whose annual base salary (excluding bonuses and other non-salary compensation) exceeds $100,000.

 

“ Leased Real Property ” shall have the meaning set forth in Section 4.18(a).

 

“ Lien ” means, with respect to any asset (including any security), any security interests, liens, claims, charges, title defects, deficiencies or exceptions (including, with respect to Real Property Leases, subleases, assignments, licenses or other agreements granting to any third party any interest in a Real Property Lease or any right to the use or occupancy of any Leased Real Property), mortgages, pledges, easements, encroachments, restrictions on use, rights-of-way, rights of first refusal, options, conditional sales or other title retention agreements, covenants, conditions or other similar restrictions (including restrictions on transfer) or other encumbrances of any nature whatsoever in respect of such asset.

 

“ Management Agreement ” shall mean that certain Management Fee Letter Agreement, dated as of May 30, 2003, between Seminis Merger Corp., Fox Paine & Company, LLC and Desarrollo, as amended.

 

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“ Marinet ” means Marinet Investments, LLC.

 

“ Material Contracts ” shall have the meaning set forth in Section 4.15(a).

 

“ Merger ” shall have the meaning set forth in the recitals.

 

“ Merger Approvals ” means any approval, consent, order, exemption or waiver under the HSR Act, and similar rules and regulations of foreign Governmental Entities relating to competition and merger control matters.

 

“ Merger Consideration ” shall have the meaning set forth in Section 3.8(d).

 

“ Merger Sub ” shall have the meaning set forth in the preamble.

 

“ MS Common Stock ” means shares of common stock, par value $.01 per share, of Merger Sub.

 

“ New Company Common Stock ” shall mean the shares of common stock of the Surviving Corporation, par value $.01 per share.

 

“ New Plans ” shall have the meaning set forth in Section 6.12(b).

 

“ NOL Carryforwards ” shall have the meaning specified in Section 4.13.

 

“ Non-Compete Agreements ” shall have the meaning set forth in the recitals.

 

“ Old Plans ” shall have the meaning set forth in Section 6.12(b)(i).

 

“ Outside Date ” shall mean July 31, 2005.

 

“ Owned Real Property ” shall have the meaning set forth in Section 4.18(a).

 

“ Parent ” shall have the meaning set forth in the preamble.

 

“ Parent Disclosure Schedule ” means the schedule of disclosures delivered by Parent to the Company concurrent with the execution of this Agreement.

 

“ Parent Material Adverse Effect ” means any event, change, circumstance, effect or state of facts that is or is reasonably expected to be materially adverse to the ability of Parent or Merger Sub to consummate the Merger.

 

“ PBGC ” means the Pension Benefit Guaranty Corporation.

 

“ Per Share Amount ” shall mean $10.52.

 

“ Permitted Exceptions ” shall have the meaning set forth in Section 4.20(e).

 

“ Permitted Liens ” means (a) growers’, mechanics’, carriers’, workers’, repairers’, materialmen’s, warehousemen’s, and other similar Liens arising in the ordinary course of the

 

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Company’s business and either (i) for sums not yet due and payable or (ii) such Liens as are less than $100,000 in amount and are being contested in good faith and by appropriate proceedings, (b) Liens under the Company Credit Agreement, (c) Liens for current Taxes not yet due or payable or being contested in good faith or for supplemental Taxes for which the Company has not received a written notice of assessment, and (d) any other covenants, conditions, restrictions, reservations, rights and non-monetary Liens incurred or suffered in the ordinary course of business and that (i) do not materially detract from the current use of the applicable Real Property and (ii) would not, individually or in the aggregate, have a Company Material Adverse Effect.

 

“ Person ” means an individual, corporation, limited liability company, partnership, association, trust, unincorporated organization, other entity or “group” (as defined in the Exchange Act).

 

“ Proxy Statement ” shall have the meaning set forth in Section 6.2.

 

“ Real Property ” shall have the meaning set forth in Section 4.18(a).

 

“ Real Property Lease ” shall mean any contract or agreement to which the Company or any of its Subsidiaries is a party relating to the lease of real property used by the Company or its Subsidiaries requiring annual payments in excess of (or reasonably expected to be in excess of) $100,000.

 

“ Record Date ” shall mean the date on which holders of Company Common Stock on such date, as reflected on the Company’s (or its transfer agent’s) books and records, shall be entitled to vote at the Stockholders Meeting, if held, which date shall be determined in accordance with the Company’s Bylaws and other applicable requirements.

 

“ Related Agreements ” shall mean the Support Agreement, the Non-Compete Agreements and the Separation Agreements.

 

“ Related Transactions ” shall mean the transactions contemplated by the Related Agreements.

 

“ Required Approval ” shall have the meaning set forth in Section 7.1(b)(iii).

 

“ Restricted Shares ” means shares of restricted stock granted under any Company Stock Plan.

 

“ RSU ” shall have the meaning set forth in Section 3.10(a).

 

“ SEC ” means the U.S. Securities and Exchange Commission.

 

“ Securities Act ” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.

 

“ Separation Agreements ” shall have the meaning set forth in the recitals.

 

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“ Stock Option ” shall have the meaning set forth in Section 3.10(a).

 

“ Stockholders’ Agreement ” shall mean the Amended and Restated Stockholders’ Agreement, dated as of September 29, 2003, by and among Seminis, Inc. and the investors listed on the signature pages thereto.

 

“ Stockholders Meeting ” shall have the meaning set forth in Section 6.1.

 

“ Subsidiary ” means, with respect to any Person, any other Person, whether incorporated or unincorporated or domestic or foreign to the United States, of which (a) such first Person or any other Subsidiary of such first Person is a general partner (excluding such partnerships where such first Person or any Subsidiary of such first Person does not have a majority of the voting interest in such partnership) or (b) at least a majority of the securities or other interests having by their terms ordinary voting power to elect a majority of the board of directors or others performing similar functions with respect to such corporation or other organization is, directly or indirectly, owned or controlled by such first Person or by any one or more of its Subsidiaries, or by such first Person and one or more of its Subsidiaries.

 

“ Support Agreement ” shall have the meaning set forth in the recitals.

 

“ Surviving Corporation ” shall have the meaning set forth in Section 3.1.

 

“ Tail Period ” shall have the meaning set forth in Section 6.8(c).

 

“ Tax Returns ” means all reports, returns, information returns, statements, declarations and certifications required to be filed with respect to Taxes.

 

“ Taxes ” means all U.S. or non-U.S. federal, national, state or local taxes, assessments, levies or other governmental charges in the nature of taxes, including all income, franchise, gross receipt, custom duties, withholding, employment, unemployment insurance, social security, sales, use, excise, real and personal property, stamp, transfer, value added taxes (VAT) and workers’ compensation taxes, and other taxes, duties or assessments of any nature whatsoever, together with all interest, penalties and additions payable with respect thereto.

 

“ Transmittal Documents ” shall have the meaning set forth in Section 3.11(a).

 

“ WARN Act ” shall have the meaning set forth in Section 4.11(b).

 

“ Warrant Agreements ” shall have the meaning set forth in Section 4.2(a).

 

“ Warrants ” shall have the meaning set forth in Section 3.13.

 

ARTICLE II.

 

RESTRUCTURING OF PREFERRED STOCK

 

SECTION 2.1. Company Preferred Stock . Upon Closing, Parent shall cause the Company to provide to the holders of Company Preferred Stock a Change of Control Offer (as

 

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defined in the Certificate of Designation) as required by Part 7 of the Certificate of Designation and, if necessary, will provide to the Company the funds required to redeem the Preferred Stock.

 

ARTICLE III.

 

THE MERGER

 

SECTION 3.1. The Merger . Subject to the conditions of this Agreement and in accordance with the DGCL, the parties hereto shall consummate the Merger pursuant to which (a) Merger Sub shall merge with and into the Company and the separate corporate existence of Merger Sub shall thereupon cease, (b) the Company shall be the surviving corporation in the Merger (sometimes referred to as the “ Surviving Corporation ”) and shall continue to be governed by the laws of the State of Delaware, and (c) the corporate existence of the Company, with all of its rights, privileges, immunities, powers and franchises, shall continue unaffected by the Merger.

 

SECTION 3.2. Effective Time . As soon as practicable after the satisfaction or waiver (to the extent permitted by applicable law) of the conditions set forth in Article VII, the parties hereto shall cause a certificate of merger substantially in the form attached hereto as Exhibit B (the “ Certificate of Merger ”) to be executed and filed on the Closing Date (or on such other date as Parent and the Company may agree) with the Secretary of State of the State of Delaware in such form as required by, and executed in accordance with, the relevant provisions of the DGCL. The closing of the Merger (the “ Closing ”) will take place (a) at the offices of Willkie Farr & Gallagher LLP, 787 Seventh Avenue, New York, New York, at 10:00 a.m. New York City time as soon as reasonably practicable (but in any event no later than the third Business Day) after satisfaction or waiver (to the extent permitted by applicable law) of the conditions set forth in Article VII (other than those conditions that are to be satisfied at the Closing, but subject to the satisfaction or waiver (to the extent permitted by applicable law) of such other conditions), or (b) at such other place or time and/or such other date as the parties may agree. The date on which the Closing occurs is referred to in this Agreement as the “ Closing Date .” The Merger shall become effective at such time as the Certificate of Merger is duly filed with the Secretary of State of the State of Delaware or at such later date and time as the parties shall agree and as shall be specified in the Certificate of Merger (the time the Merger becomes effective, the “ Effective Time ”).

 

SECTION 3.3. Effects of the Merger . The Merger shall have the effects as set forth in the applicable provisions of the DGCL. Without limiting the generality of the foregoing, and subject thereto, at the Effective Time, all the properties, rights, privileges, powers and franchises of the Company and Merger Sub shall vest in the Surviving Corporation, and all debts, liabilities and duties of the Company and Merger Sub shall become the debts, liabilities and duties of the Surviving Corporation.

 

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SECTION 3.4. Certificate of Incorporation and Bylaws .

 

(a) The certificate of incorporation of the Company in effect immediately prior to the Effective Time shall be the certificate of incorporation of the Surviving Corporation until amended in accordance with its terms and applicable law.

 

(b) The bylaws of Merger Sub in effect immediately prior to the Effective Time, in the form attached hereto as Exhibit C, shall be the bylaws of the Surviving Corporation until amended in accordance with their terms and applicable law.

 

SECTION 3.5. Directors . The directors of Merger Sub immediately prior to the Effective Time shall be the initial directors of the Surviving Corporation, each to hold office in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until such director’s successor is duly elected or appointed and qualified.

 

SECTION 3.6. Officers . Subject to the terms of the Separation Agreements, the officers of the Company immediately prior to the Effective Time shall be the initial officers of the Surviving Corporation, each to hold office in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until such officer’s successor is duly elected or appointed and qualified.

 

SECTION 3.7. Subsequent Actions . If, at any time after the Effective Time, the Surviving Corporation shall determine in good faith or be advised that any deeds, bills of sale, assignments, assurances or any other actions or things are necessary or desirable to vest, perfect or confirm of record or otherwise in the Surviving Corporation its right, title or interest in, to or under any of the rights, properties or assets of either of the Company or Merger Sub acquired or to be acquired by the Surviving Corporation as a result of, or in connection with the Merger or otherwise to carry out this Agreement, the officers and directors of the Surviving Corporation shall be authorized to execute and deliver, in the name and on behalf of either the Company or Merger Sub, all such deeds, bills of sale, assignments and assurances and to take and do, in the name and on behalf of each of such corporations or otherwise, all such other actions and things as may be necessary or desirable to vest, perfect or confirm any and all right, title and interest in, to and under such rights, properties or assets in the Surviving Corporation or otherwise to carry out this Agreement.

 

SECTION 3.8. Effect on the Capital Stock . As of the Effective Time, by virtue of the Merger and without any action on the part of the Company, Parent, Merger Sub or any holder of any shares of Company Common Stock, Company Preferred Stock or any shares of capital stock of Merger Sub:

 

(a) Each share of MS Common Stock issued and outstanding immediately prior to the Effective Time shall be converted into one share of New Company Common Stock following the Merger.

 

(b) Each share of Company Common Stock, if any, that is owned by Parent or Merger Sub immediately prior to the Effective Time shall automatically be canceled and retired and shall cease to exist, and no cash, Company Common Stock or other consideration shall be delivered or deliverable in exchange therefor.

 

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(c) Each share of Company Common Stock that is owned by or held in the treasury of the Company immediately prior to the Effective Time shall automatically be canceled and retired and shall cease to exist, and no cash, Company Common Stock or other consideration, including the Merger Consideration, shall be delivered or deliverable in exchange therefor.

 

(d) Shares of Company Common Stock issued and outstanding immediately prior to the Effective Time (other than any shares to be canceled pursuant to Sections 3.8(b) and 3.8(c) and any Dissenting Shares) held by each stockholder of the Company shall be converted into the right to receive an amount in cash (the “ Merger Consideration ”) equal to the product of (A) the number of shares of Company Common Stock owned by such stockholder immediately prior to the Effective Time, and (B) the Per Share Amount. The Merger Consideration shall be payable to the holder of shares of Company Common Stock, without interest thereon, upon the surrender of the certificate or certificates formerly representing such shares of Company Common Stock (each, a “ Certificate ”) in the manner provided in Section 3.11, less any required withholding of U.S. federal, state, local or foreign Taxes. From and after the Effective Time, all such shares of Company Common Stock so converted into the Merger Consideration shall no longer be outstanding and shall be deemed to be canceled and retired and shall cease to exist, and each holder of a Certificate or Certificates shall cease to have any rights with respect thereto, except the right to receive the Merger Consideration therefor upon the surrender of such Certificate or Certificates in accordance with Section 3.11 (or, with respect to Dissenting Shares, as provided in Section 3.9).

 

(e) Each share of Company Preferred Stock issued and outstanding or held by the Company as treasury stock immediately prior to the Effective Time shall remain issued and outstanding or held as treasury stock, as the case may be, and shall be unaffected by the Merger.

 

SECTION 3.9. Dissenting Shares . Anything in this Agreement to the contrary notwithstanding, each share of Company Common Stock or Company Preferred Stock outstanding immediately prior to the Effective Time and held by a holder who has not voted in favor of the Merger or consented thereto in writing and who has demanded appraisal for such share of Company Common Stock or Company Preferred Stock in accordance with Section 262 of the DGCL, if such Section 262 of the DGCL provides for appraisal rights for such shares of Company Common Stock or Company Preferred Stock in the Merger (“ Dissenting Shares ”), shall not, in the case of the Company Common Stock, be converted into or be exchangeable for the right to receive the Merger Consideration unless and until such holder of Company Common Stock as the case may be, fails to perfect or withdraws or otherwise loses his right to appraisal and payment under the DGCL (and, in the case of the Preferred Stock, shall be treated in accordance with the DGCL). If, after the Effective Time, any such holder fails to perfect or withdraws or loses his right to appraisal, such Dissenting Shares shall: (w) in the case of Company Common Stock, thereupon be treated as if such shares had been converted as of the Effective Time into the right to receive the Merger Consideration, if any, to which such holder is entitled, without interest or dividends thereon; and (x) in the case of Company Preferred Stock, be treated in accordance with the DGCL. The Company shall give Parent (y) prompt notice of any demands received by the Company for appraisal of shares of Company Common Stock or Company Preferred Stock, if applicable, attempted written withdrawals of such demands, and any other instruments served pursuant to the DGCL and received by the Company relating to

 

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stockholders’ rights to appraisal with respect to the Merger; and (z) the opportunity to direct all negotiations and proceedings with respect to any exercise of such appraisal rights under the DGCL. The Company shall not, except with the prior written consent of Parent, voluntarily make any payment with respect to any demands for payment of fair value for capital stock of the Company, offer to settle or settle any such demands or approve any withdrawal of any such demands.

 

SECTION 3.10. List of Other Equity Awards; Treatment of Other Equity Awards .

 

(a) Section 3.10(a) of the Company Disclosure Schedule contains a true and complete list (the “ Award List ”) of each option to purchase shares of Company Common Stock (a “ Stock Option ”) and each restricted stock unit ( “ RSU ”) granted under each employee and director stock incentive or compensation plan, agreement or arrangement (the “ Company Stock Plans ”) outstanding as of the date hereof (along with the exercise prices thereof, if applicable).

 

(b) At the Award Cancellation Time, each then-outstanding Stock Option and RSU (whether vested or unvested), shall be canceled and, in consideration of such cancellation, the Company shall pay or cause to be paid to the holder on the first Business Day following the Award Cancellation Time, in full satisfaction of such Stock Option or RSU, as applicable, less any applicable withholding tax, an amount in cash equal to the product of (i) (x) in the case of any Stock Option, the excess of the Per Share Amount over the exercise price per share of such unexercised Stock Option, if any, or (y) in the case of any RSU, the Per Share Amount and (ii) the number of shares of Company Common Stock subject to such Stock Option, or RSU, as applicable.

 

(c) The Company shall (i) take all actions reasonably necessary to cause the actions and effects specified in Section 3.10(b) to occur, (ii) take all actions reasonably necessary, with Parent’s assistance, to ensure that, effective as of the Award Cancellation Time, no holder of Stock Options or RSU will have any right to receive any shares of capital stock of the Company or, if applicable, the Surviving Corporation, upon exercise of any Stock Option or settlement of any RSU, as applicable, or any other event, and (iii) provide its reasonable cooperation to Parent in connection with the actions contemplated by this Section 3.10.

 

SECTION 3.11. Payment for Shares .

 

(a) As soon as reasonably practicable after the date hereof but in no event later than the earlier of (i) 30 days after the date hereof and (ii) five days prior to the Closing Date, Parent shall mail by overnight courier to each record holder of an outstanding Certificate(s), whose shares of Company Common Stock are to be converted pursuant to Section 3.8(d) into the right to receive the Merger Consideration (i) a letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Certificate(s) shall pass, only upon proper delivery of the Certificate(s) to Parent and shall be in such form and have such other provisions not inconsistent with this Agreement as Parent may reasonably designate), and (ii) instructions for use in effecting the surrender of the Certificates in exchange for payment of the Merger Consideration (together, the “ Transmittal Documents ”). Upon surrender of a Certificate(s) for cancellation to Parent or to such other agent or agents as may be appointed by Parent, together with such letter of transmittal and any other required documents, duly executed,

 

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the holder of such Certificate(s) shall be entitled to receive in exchange therefor as of the Effective Time the Merger Consideration in respect of all shares of Company Common Stock formerly represented by such surrendered Certificate(s), without any interest thereon, pursuant to Section 3.8(d). The Certificate(s) so surrendered shall forthwith be canceled. If payment of the Merger Consideration is to be made to a Person other than the Person in whose name the surrendered Certificate(s) is registered, it shall be a condition of payment that the Certificate(s) so surrendered shall be properly endorsed or shall otherwise be in proper form for transfer, that the signatures on the Certificate(s) or any related stock power shall be properly guaranteed and that the Person requesting such payment shall have established to the satisfaction of Parent that any transfer and other Taxes required by reason of the payment of the Merger Consideration to a Person other than the registered holder of the Certificate(s) surrendered have been paid or are not applicable. Until surrendered in accordance with the provisions of and as contemplated by this Section 3.11, any Certificate(s) (other than Certificate(s) representing shares of Company Common Stock subject to Sections 3.8(b) and (c) and other than Dissenting Shares) shall be deemed, at any time after the Effective Time, to represent only the right to receive the Merger Consideration in cash without interest as contemplated by this Section 3.11. Upon the surrender of a Certificate(s) in accordance with the terms and instructions contained in the Transmittal Documents, Parent shall pay to the holder of such Certificate(s) in exchange therefor cash in an amount equal to the Merger Consideration (other than Certificate(s) representing shares of Company Common Stock subject to Sections 3.8(b) and (c) and other than Dissenting Shares) by wire transfer of immediately available funds to the account(s) designated by such holder on or before (i) the Closing Date, if such holder surrendered such documentation to the Parent on or prior to 12:00p.m., New York City time, on the Business Day preceding the Closing Date, or (ii) the second Business Day after such delivery, if such delivery is made after such time.

 

(b) At the Effective Time, the stock transfer books of the Company shall be closed and there shall not be any further registration of transfers of any shares of capital stock thereafter on the records of the Company. If, after the Effective Time, a Certificate (other than those subject to Sections 3.8(b) and (c)) is presented to the Surviving Corporation, it shall be canceled and exchanged for the consideration provided for, and in accordance with the procedures set forth, in this Section 3.11. No interest shall accrue or be paid on any cash payable upon the surrender of a Certificate.

 

(c) From and after the Effective Time, the holders of Certificates shall cease to have any rights with respect to shares of Company Common Stock represented by such Certificates except as otherwise provided herein or by applicable law.

 

(d) If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the Person claiming such Certificate to be lost, stolen or destroyed, Parent shall pay or cause to be paid in exchange for such lost, stolen or destroyed Certificate the relevant portion of the Merger Consideration in accordance with Section 3.8(d) for shares of Company Common Stock represented thereby. When authorizing such payment of any portion of the Merger Consideration in exchange therefor, Parent may, in its discretion and as a condition precedent to the payment thereof, require the owner of such lost, stolen or destroyed Certificate to give the Surviving Corporation a bond in such sum as it may direct as indemnity against any claim that may be made against the Surviving Corporation with respect to the Certificate alleged to have been lost, stolen or destroyed.

 

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(e) Promptly following the date that is one year after the Effective Time, holders of Certificates shall be entitled to look to the Surviving Corporation (subject to abandoned property, escheat or similar laws) only as a general creditor thereof with respect to any portion of the Merger Consideration payable upon due surrender of their Certificates, without any interest thereon.

 

(f) The Merger Consideration paid in the Merger shall be net to the holder of shares of Company Common Stock in cash, subject to reduction only for any applicable required federal, state, local or foreign withholding Taxes. To the extent that amounts are so withheld, such amounts shall be treated for all purposes of this Agreement as having been paid to the Person in respect of which such withholding was made.

 

(g) Anything to the contrary in this Section 3.11 notwithstanding, to the fullest extent permitted by law, neither Parent nor the Surviving Corporation shall be liable to any holder of a Certificate for any amount properly delivered to a public official pursuant to any applicable abandoned property, escheat or similar law. If Certificates are not surrendered prior to two years after the Effective Time, unclaimed funds payable with respect to such Certificates shall, to the extent permitted by applicable law, become the property of Parent, free and clear of all claims or interest of any Person previously entitled thereto.

 

SECTION 3.12. Co-Investment Rights .

 

(a) Subject to the terms of Section 3.12(b), provided that the holder of co-investment rights set forth in any of the Co-Investment Agreements (the “Co-Investment Rights”) has executed the Support Agreement, notwithstanding anything to the contrary set forth in the Co-Investment Agreement applicable to such Co-Investment Rights, on the Closing Date, such Co-Investment Rights will be terminated, and, in consideration of such termination, the Company shall pay to the holder of such Co-Investment Rights as of the Effective Time, in full satisfaction of its Co-Investment Rights, less any applicable withholding tax, an amount in cash (a “ Co-Investment Rights Payment ”) equal to the product of (i) the excess of the Per Share Amount over $3.40 and (ii) the number of shares of Company Common Stock that each holder of Co-Investment Rights is entitled to receive pursuant to its Co-Investment Rights as set forth in Section 3.12(a) of the Company Disclosure Schedule.

 

(b) Notwithstanding anything herein to the contrary, Marinet may, no later than five (5) Business Days prior to the Closing Date, deliver to Parent a notice informing Parent that Marinet elects to reduce the Co-Investment Rights Payment it would otherwise be entitled to receive pursuant to Section 3.12(a) in exchange for the contingent value right described in the CVR Agreement (the “ CVR Option Notice ”). In the event Marinet delivers to Parent a CVR Option Notice in accordance with this Section 3.12(b), (i) the Co-Investment Rights Payment otherwise payable to Marinet pursuant to Section 3.12(a) will be reduced by $50,000,000 and (ii) Parent and Marinet will execute and deliver the CVR Agreement at the Closing.

 

SECTION 3.13. Warrant Agreements . Provided that the holder of outstanding warrants to purchase Company Common Stock (the “Warrants”) granted under any of the Warrant Agreements has executed the Support Agreement, notwithstanding anything to the contrary set forth in the Warrant Agreement applicable to such Warrants, upon consummation of the Merger,

 

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such Warrants, whether or not then exercisable or vested, shall be acquired by the Company for cancellation in consideration of payment to the holder of such Warrants of an amount in respect thereof equal to the product of (A) the excess, if any, of the Per Share Amount over the per share exercise price thereof and (B) the number of shares of Company Common Stock subject thereto (such payment to be net of applicable required withholding taxes) as set forth in Section 3.13 of the Company Disclosure Schedule.

 

ARTICLE IV.

 

REPRESENTATIONS AND WARRANTIES OF THE COMPANY

 

Except as set forth in the Company 2004 10-K or in the Company Disclosure Schedule (it being understood that any matter set forth in any section of the Company Disclosure Schedule shall be deemed disclosed with respect to any other section of the Company Disclosure Schedule to the extent such matter is disclosed in a way as to make its relevance to the information called for by such other section reasonably clear on its face), the Company hereby represents and warrants to Parent and Merger Sub as follows:

 

SECTION 4.1. Organization and Qualification; Subsidiaries .

 

(a) Each of the Company and its Subsidiaries is a corporation duly organized, validly existing and, if applicable, in good standing under the laws of the jurisdiction of its incorporation and has all requisite corporate or other power and authority and all necessary governmental approvals to own, lease and operate its properties and to carry on its businesses as now being conducted, except where the failure to be in good standing or to have such power, authority and governmental approvals, would not, individually or in the aggregate, have a Company Material Adverse Effect. The Company has heretofore delivered to Parent accurate and complete copies of the certificate of incorporation and bylaws, as currently in effect, of the Company. Section 4.1(a) of the Company Disclosure Schedule sets forth a complete list of the Company’s Subsidiaries.

 

(b) Each of the Company and its Subsidiaries is duly qualified or licensed and, if applicable, in good standing to do business in each jurisdiction in which the property owned, leased or operated by it or the nature of the business conducted by it makes such qualification or licensing necessary, except in such jurisdictions where the failure to be so duly qualified or licensed and in good standing would not, individually or in the aggregate, have a Company Material Adverse Effect.

 

(c) The Company does not own, directly or indirectly, and has not entered into any agreement to acquire any equity in (other than equity of its Subsidiaries) or debt of (other than debt of its Subsidiaries and other than short-term investments of the Company’s working capital in high-grade commercial paper or similar high-grade, short-term instruments) or similar interest, or assets operated as a business of, any Person.

 

SECTION 4.2. Capitalization of the Company and its Subsidiaries .

 

(a) The authorized capital stock of the Company consists of: (i) 200,000,000 shares of Company Common Stock, and (ii) 5,000,000 shares of preferred stock of the Company,

 

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par value $.01 per share, 400,000 shares of which are designated as shares of Company Preferred Stock. As of the date hereof, (i) 64,333,205 shares of Company Common Stock were issued and outstanding and (ii) 50,000 shares of Company Preferred Stock were issued and outstanding. All of the outstanding shares of Company Common Stock and Company Preferred Stock have been validly issued, and are fully paid, nonassessable and free of preemptive rights. As of the date hereof, a total of (i) 4,937,802 shares of Company Common Stock were reserved for issuance pursuant to outstanding Stock Options and RSUs, and no other shares of Company Common Stock are subject to issuance pursuant to Stock Options or any other equity based awards, (ii) 3,873,108 shares of Company Common Stock were reserved for issuance upon the exercise of currently outstanding warrants issued under the warrant agreements listed in Section 4.2(a) of the Company Disclosure Schedule (the “ Warrant Agreements ”) and (iii) 32,664,256 shares of Company Common Stock were reserved for issuance upon the exercise of Co-Investment Rights. Set forth in Section 4.2(a) of the Company Disclosure Schedule is a complete and accurate list of (i) the Company Stock Plans and the number of shares of Company Common Stock reserved for issuance pursuant to Stock Options outstanding as of the date hereof under each such Company Stock Plan, and no other shares of Company Common Stock are subject to issuance pursuant to such Company Stock Plans, (ii) all warrant agreements to acquire capital stock of the Company and the number of shares of Company Common Stock reserved for issuance pursuant to such warrant agreements, and no other shares of capital stock of the Company are subject to issuance pursuant to such warrant agreements and (iii) all Co-Investment Agreements to acquire capital stock of the Company and the number of shares of Company Common Stock reserved for issuance pursuant to such Co-Investment Agreements, and no other shares of capital stock of the Company are subject to issuance pursuant to such Co-Investment Agreements. Since January 19, 2005, no shares of capital stock of the Company have been issued other than pursuant to Stock Options set forth on the Award List, Warrant Agreements or Co-Investment Agreements existing as of date hereof, and since January 19, 2005, no Stock Options, Restricted Shares, Warrants or Co-Investment Rights have been granted. Except as set forth above or in Section 4.2(a) of the Company Disclosure Schedule, there are no outstanding (i) shares of capital stock (including Restricted Shares) or other voting securities of the Company, (ii) securities of the Company or any of its Subsidiaries convertible into or exchangeable for shares of capital stock or voting securities of the Company, (iii) options, warrants or other rights to acquire from the Company or any of its Subsidiaries, or obligations of the Company or any of its Subsidiaries to issue or sell, any capital stock, voting securities or securities convertible into or exchangeable for capital stock or voting securities of the Company, or (iv) equity equivalents, interests in the ownership or earnings of the Company or other similar rights (collectively, “ Company Securities ”). Other than as contemplated by this Agreement, Stockholders’ Agreement or employment agreements set forth in Section 4.10(a) of the Company Disclosure Schedule, there are no outstanding obligations of the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any Company Securities.

 

(b) All of the outstanding capital stock of, or other ownership interests in, each Subsidiary of the Company is owned by the Company, directly or indirectly, free and clear of any Lien or any other limitation or restriction (including any restriction on the right to vote or sell the same, except as may be provided as a matter of law). All such shares have been validly issued, fully paid and nonassessable, and have been issued free of preemptive rights. There are no outstanding securities of the Company or any of its Subsidiaries convertible into or exchangeable for, no options or other rights to acquire from the Company or any of its

 

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Subsidiaries, and no other contract, understanding, arrangement or obligation (whether or not contingent) providing for the issuance or sale, directly or indirectly, of, any capital stock or other ownership interests in, or any other securities of, any Subsidiary of the Company. There are no outstanding equity equivalents, interests in the ownership or earnings or similar rights of any Subsidiary of the Company. There are no contractual obligations of the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any outstanding shares of capital stock or other ownership interests in any Subsidiary of the Company, other than as contemplated by this Agreement and the Stockholders’ Agreement.

 

(c) No class of equity securities of the Company or any of its Subsidiaries is registered or required to be registered under the Exchange Act. No Subsidiary of the Company owns any capital stock in the Company.

 

(d) Other than the Support Agreements and the Stockholders’ Agreement, there are no voting trusts or other agreements or understandings to which the Company or any of its Subsidiaries or to the Company’s Knowledge, any of the Company’s stockholders, is a party with respect to the voting of the capital stock of the Company or any of its Subsidiaries.

 

(e) Other than with respect to the Indebtedness set forth in Section 4.2(e) of the Company Disclosure Schedule, there is no Indebtedness of the Company or any of its Subsidiaries existing that contains any material restriction upon, or imposes any material penalty with respect to (i) the prepayment of such Indebtedness, (ii) the incurrence of Indebtedness by the Company or its Subsidiaries, respectively, or (iii) the ability of the Company or its Subsidiaries to grant any Liens on its properties or assets.

 

SECTION 4.3. Authority Relative to this Agreement .

 

(a) The Company has all the necessary corporate power and authority to execute and deliver this Agreement and, subject to obtaining Company Stockholder Approval, to consummate the transactions contemplated hereby in accordance with the terms hereof. The execution, delivery and performance of this Agreement by the Company and the consummation by it of the transactions contemplated hereby have been duly and validly authorized by all necessary corporate action, and, except for obtaining the Company Stockholder Approval, no other corporate action or corporate proceeding on the part of the Company is necessary to authorize the execution and delivery by the Company of this Agreement and the consummation by it of the transactions contemplated hereby. This Agreement has been duly and validly executed and delivered by the Company and, assuming due and valid authorization, execution and delivery by Parent and Merger Sub, constitutes a valid, legal and binding agreement of the Company, enforceable against the Company in accordance with its terms, except that such enforcement may be subject to (i) any bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or other laws, now or hereafter in effect, affecting creditors’ rights generally, and (ii) the effect of general principles of equity (regardless of whether enforceability is considered in a proceeding of law or equity).

 

(b) The Company Board, at a meeting thereof duly called and held prior to the date hereof (i) determined that this Agreement, the Related Agreements to which it is a party, the Merger and the Related Transactions are in the best interests of the Company and its

 

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stockholders, (ii) approved and declared advisable this Agreement and the Merger, and (iii) resolved to recommend that the Company’s stockholders adopt this Agreement and the Merger.

 

SECTION 4.4. SEC Reports; Financial Statements .

 

(a) Since September 29, 2003, the Company has filed with the SEC all forms, reports, schedules, statements and other documents required to be filed by it under the Securities Act and the Exchange Act (any such documents filed since September 29, 2003 and prior to the Closing Date collectively, including all exhibits and schedules thereto and documents incorporated by reference therein, the “ Company SEC Documents ”). The Company SEC Documents, including any financial statements or schedules included therein, at the time filed, or, in the case of registration statements, on their respective effective dates, (i) complied in all material respects with the applicable requirements of the Securities Act and the Exchange Act, as the case may be and (ii) did not at the time filed (or, in the case of registration statements, at the time of effectiveness) contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading. No Subsidiary of the Company is required to file any form, report or other document with the SEC pursuant to Section 13 or 15(d) of the Exchange Act. The financial statements included in the Company SEC Documents (the “ Financial Statements ”) (i) have been prepared from, and are in accordance with, the books and records of the Company and its Subsidiaries, (ii) complied on the date of filing and effectiveness thereof in all material respects with applicable accounting requirements and with the published rules and regulations of the SEC with respect thereto on the date of filing and effectiveness thereof, (iii) have been prepared in accordance with GAAP as in effect as of the dates of such financial statements applied on a consistent basis during the periods involved (except as may be indicated in the notes thereto and, in the case of unaudited statements, as permitted by the rules and regulations of the SEC during the periods involved), and (iv) fairly present in all material respects in accordance with GAAP the consolidated financial position and the consolidated results of operations and cash flows (and changes in financial position, if any) of the Company and its Subsidiaries as of the times and for the periods referred to therein, except that any Financial Statements that are unaudited, interim financial statements were or are subject to normal and recurring year end adjustments which were not and are not expected, individually or in the aggregate, to be material in amount.

 

(b) Except as otherwise available via the SEC’s Electronic Data Gathering, Analysis, and Retrieval (EDGAR) service, the Company has heretofore made available to Parent, in the form filed with the SEC (including any amendments thereto), (i) its Annual Reports on Form 10-K for its most recently completed fiscal year and (ii) all other reports (other than Quarterly Reports on Form 10-Q) or registration statements filed by the Company with the SEC since September 29, 2003.

 

SECTION 4.5. Proxy Statement . In the event a Stockholders Meeting is held, none of the information included in the Proxy Statement will, at the time mailed to the Company’s stockholders or at the time of the Stockholders Meeting contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which such statements are made, not misleading, except that no representation is made by the Company with respect to

 

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statements made in or omitted from the Proxy Statement relating to Parent or its Affiliates based on information supplied by Parent or its Affiliates for inclusion or incorporation by reference in the Proxy Statement. The Proxy Statement will comply as to form in all material respects with the requirements of the DGCL.

 

SECTION 4.6. Consents and Approvals, No Violations . No filing with or notice to, and no permit, authorization, consent or approval of, any federal, state, local or foreign court or tribunal or administrative, governmental, arbitral or regulatory body, agency or authority (each, a “ Governmental Entity ”), is required on the part of the Company or any of its Subsidiaries for the execution, delivery and performance by the Company of this Agreement or the Related Agreements or the consummation by the Company of the transactions contemplated hereby or thereby, except (a) pursuant to the applicable requirements of the Securities Act and the Exchange Act, (b) the filing of the Certificate of Merger pursuant to the DGCL, (c) where the failure to obtain such permits, authorizations, consents or approvals or to make such filings or give such notice would not, individually or in the aggregate, have a Company Material Adverse Effect, and (d) in connection with the requirements of the HSR Act and the rules and regulations in foreign jurisdictions governing antitrust or merger control matters. Neither the execution, delivery and performance of this Agreement or the Related Agreements to which it is a party by the Company, nor the consummation by the Company of the transactions contemplated hereby or thereby will (i) conflict with or result in any breach of any provision of the respective certificate of incorporation or bylaws (or similar governing documents) of the Company or of any its Subsidiaries, (ii) 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, alteration or acceleration, or result in the creation of a Lien on any property or asset of the Company or any of its Subsidiaries, or trigger any rights of first refusal) 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 Company or any of its Subsidiaries is a party or by which any of them or any of their respective properties, capital stock or assets may be bound or result in the loss or impairment of the Company’s or any of its Subsidiary’s right to use the Company Intellectual Property, Company PVP Certificates or Company Germplasm, or (iii) violate any order, writ, injunction, decree, law, statute, rule or regulation applicable to the Company or any of its Subsidiaries or any of their respective properties or assets, except in the case of (ii) or (iii) above for violations, breaches, defaults or other occurrences that would not, individually or in the aggregate, have a Company Material Adverse Effect.

 

SECTION 4.7. No Default . None of the Company or any of its Subsidiaries is in default, breach or violation (and no event has occurred that with notice or the lapse of time or both would constitute a default, breach or violation) of any term, condition or provision of (a) its certificate of incorporation or bylaws (or similar governing documents), (b) any note, bond, mortgage, indenture, lease, license, contract, agreement or other instrument or obligation to which the Company or any of its Subsidiaries is now a party or by which any of them or any of their respective properties or assets may be bound or (c) any order, writ, injunction, decree, law, statute, rule or regulation applicable to the Company, any of its Subsidiaries or any of their respective properties or assets, except in the case of (b) or (c) above for violations, breaches or defaults that would not, individually or in the aggregate, have a Company Material Adverse Effect.

 

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SECTION 4.8. No Undisclosed Liabilities; Absence of Changes .

 

(a) Except (i) for liabilities incurred since September 30, 2004 in the ordinary course of business consistent with past practice, or (ii) for liabilities and obligations reasonably required by the Merger or any other transactions contemplated by this Agreement or the Related Agreements, neither the Company nor any of its Subsidiaries has, or has incurred since September 30, 2004, any material liabilities or obligations of any nature, whether or not absolute, accrued, contingent or otherwise, that would be required to be reflected or reserved against on a consolidated balance sheet, or in the notes thereto, of the Company and its Subsidiaries prepared in accordance with GAAP.

 

(b) Other than as reasonably required by this Agreement and the Related Agreements, (i) since September 30, 2004 and prior to the date hereof, the Company and its Subsidiaries have conducted their businesses in the ordinary course of business consistent with past practice, and (ii) since September 30, 2004 and prior to the date hereof, the Company has not taken any of the actions set forth in paragraphs (a) through (q) of Section 6.3.

 

(c) Since September 30, 2004, there has not been any Company Material Adverse Effect.

 

SECTION 4.9. Compliance with Applicable Law .

 

(a) Except as would not, individually or in the aggregate, have a Company Material Adverse Effect: (i) the Company and its Subsidiaries hold all permits, licenses, variances, exemptions, orders and approvals of all Governmental Entities necessary for them to own, lease or operate their properties and assets and to carry on their businesses as now conducted (“ Company Permits ”); (ii) there has not occurred any default under, or violation of, or failure of compliance under, any such Company Permit; (iii) the businesses of the Company and its Subsidiaries, including but not limited to their practices with respect to the employment of labor are not being, and have not been, conducted in violation of any law, ordinance, regulation, order, judgment, injunction, writ or decree of any Governmental Entity; and (iv) there is (and during the past two years, there has been) no claim, action, proceeding, review or investigation pending or threatened against the Company or any Subsidiary of the Company or any of their respective products by, on behalf of or before any Governmental Entity.

 

(b) To the Company’s Knowledge, neither the Company nor any of its Subsidiaries, nor any director, officer, agent or employee of the Company or any of its Subsidiaries, has, in the past five years, acting on behalf of the Company or any of its Subsidiaries, (i) made, authorized, offered or promised to make any unlawful payment or transfer of anything of value, directly or indirectly through a third party, to any officer, employee or representative of a foreign government or any department, agency or instrumentality thereof (including any state-owned enterprise), political party, political campaign or public international organization, in violation of the U.S. Foreign Corrupt Practices Act of 1977, as amended, or any applicable law of similar effect; (ii) otherwise taken any action which would cause the Company or any of its Subsidiaries to be in violation of the U.S. Foreign Corrupt Practices Act of 1977, as amended, or any applicable law of similar effect; or (iii) violated any applicable law pertaining to export controls, antiboycott restrictions or trade sanctions.

 

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SECTION 4.10. Employee Benefit Matters .

 

(a) Section 4.10(a) of the Company Disclosure Schedule sets forth a complete list of all material employee, consultant or director benefit plans, arrangements or agreements, including any employee welfare benefit plan within the meaning of Section 3(1) of the Employee Retirement Income Security Act of 1974, as amended (“ ERISA ”), any employee pension benefit plan within the meaning of Section 3(2) of ERISA (whether or not such plan is subject to ERISA) and any material bonus, incentive, deferred compensation, retirement, welfare benefit, vacation, stock purchase, stock option, equity, severance, termination, indemnity, employment, change of control or fringe benefit plan, program, arrangement or agreement that provides benefits to any current or former employee or director of the Company or any of its Subsidiaries or any beneficiary or dependent thereof or with respect to which the Company or any of its Subsidiaries could have a material liability (collectively, the “ Benefit Plans ”). The Company has made available to Parent for each Benefit Plan, if applicable, true and complete copies of (i) each Benefit Plan (or, in the case of any unwritten Benefit Plan, a description thereof) and any amendment thereto, (ii) the most recent summary plan description (or similar document), (iii) the most recent Annual Reports (Form 5500 Series) and accompanying schedules, if any, (iv) the most recent actuarial report, and (v) the most recent determination letter from the IRS (if applicable).

 

(b) Section 4.10(b) of the Company Disclosure Schedule contains a complete and accurate list of all Key Employees, setting forth their respective names, current positions, salaries and target bonuses.

 

(c) (i) Each Benefit Plan has been maintained and administered in material compliance with its terms and with all applicable laws including ERISA and the Code; (ii) each Benefit Plan intended to be qualified under Section 401(a) of the Code is so qualified and has been determined by the IRS to be so qualified, and, to the Company’s Knowledge, no event has occurred that could reasonably be expected to adversely affect the qualified status of such Benefit Plan; (iii) neither the Company nor any of its Subsidiaries has incurred or is reasonably likely to incur any material liability or penalty under Sections 4975 or 4976 of the Code or Sections 409 or 502(i) of ERISA; (iv) there are no pending, or to the Company’s Knowledge