Exhibit 2.1
AGREEMENT AND PLAN OF MERGER
dated as of July 22, 2009,
among
BRISTOL-MYERS SQUIBB COMPANY,
PUMA ACQUISITION CORPORATION
and
MEDAREX, INC.
TABLE OF CONTENTS
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Page
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ARTICLE I
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The Offer
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SECTION 1.01.
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The Offer
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1
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SECTION 1.02.
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Company Actions
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4
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SECTION 1.03.
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Top-Up Option
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5
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ARTICLE II
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The Merger
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SECTION 2.01.
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The Merger
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6
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SECTION 2.02.
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Closing
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6
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SECTION 2.03.
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Effective Time of the Merger
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6
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SECTION 2.04.
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Effects of the Merger
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7
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SECTION 2.05.
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Certificate of Incorporation and
By-laws
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7
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SECTION 2.06.
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Directors
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7
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SECTION 2.07.
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Officers
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7
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ARTICLE III
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Effect of the Merger on the Capital Stock of the
Constituent Corporations; Exchange of Certificates
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SECTION 3.01.
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Effect on Capital Stock
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7
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SECTION 3.02.
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Exchange of Certificates
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8
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ARTICLE IV
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Representations and Warranties
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SECTION 4.01.
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Representations and Warranties of the
Company
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10
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SECTION 4.02.
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Representations and Warranties of Parent and
Sub
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35
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ARTICLE V
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Covenants Relating to Conduct of
Business
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SECTION 5.01.
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Conduct of Business
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38
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SECTION 5.02.
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No Solicitation
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42
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ARTICLE VI
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Additional Agreements
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SECTION 6.01.
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Preparation of the Proxy Statement; Shareholders
Meeting
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46
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SECTION 6.02.
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Access to Information;
Confidentiality
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47
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SECTION 6.03.
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Reasonable Best Efforts; Consultation and
Notice
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48
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SECTION 6.04.
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Equity Awards
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51
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SECTION 6.05.
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Indemnification, Exculpation and
Insurance
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53
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SECTION 6.06.
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Fees and Expenses
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54
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SECTION 6.07.
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Public Announcements
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55
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SECTION 6.08.
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Sub and Surviving Corporation
Compliance
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55
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SECTION 6.09.
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Directors
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55
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SECTION 6.10.
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Rule 14d-10 Matters
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56
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SECTION 6.11.
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Rights Agreement
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56
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SECTION 6.12.
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Company Benefit Plan Matters
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56
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SECTION 6.13.
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Convertible Notes
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58
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ARTICLE VII
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Conditions Precedent
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SECTION 7.01.
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Conditions to Each Party’s Obligation to
Effect the Merger
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58
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ARTICLE VIII
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Termination, Amendment and Waiver
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SECTION 8.01.
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Termination
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59
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SECTION 8.02.
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Effect of Termination
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60
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SECTION 8.03.
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Amendment
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61
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SECTION 8.04.
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Extension; Waiver
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61
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ARTICLE IX
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General Provisions
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SECTION 9.01.
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Nonsurvival of Representations and
Warranties
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61
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SECTION 9.02.
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Notices
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61
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SECTION 9.03.
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Definitions
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62
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SECTION 9.04.
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Exhibits and Schedules;
Interpretation
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64
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SECTION 9.05.
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Counterparts
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65
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ii
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SECTION 9.06.
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Entire Agreement; No Third-Party
Beneficiaries
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65
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SECTION 9.07.
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Governing Law
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65
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SECTION 9.08.
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Assignment
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65
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SECTION 9.09.
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Consent to Jurisdiction; Service of Process;
Venue
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65
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SECTION 9.10.
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Waiver of Jury Trial
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66
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SECTION 9.11.
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Enforcement
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66
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SECTION 9.12.
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Consents and Approvals
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66
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SECTION 9.13.
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Severability
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66
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EXHIBIT A
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Conditions to the Offer
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EXHIBIT B
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Form of Amended and Restated Certificate of
Incorporation of the Surviving Corporation
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ANNEX I
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Company Benefit Plan Matters
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iii
GLOSSARY
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Term
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Section
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Acquisition Agreement
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5.02(b)
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Adverse Recommendation Change
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5.02(b)
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Adverse Recommendation Change Notice
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5.02(b)
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affiliate
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9.03(a)
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Agreement
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Preamble
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Arrangements
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4.01(s)
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beneficial ownership
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9.03(b)
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business day
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9.03(c)
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Certificate
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3.01(c)
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Certificate of Merger
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2.03
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Closing
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2.02
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Closing Date
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2.02
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Code
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1.01(d)
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Commonly Controlled Entity
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4.01(m)(i)
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Company
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Preamble
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Company Benefit Agreement
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4.01(m)(i)
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Company Benefit Plan
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4.01(m)(i)
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Company By-laws
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4.01(a)
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Company Certificate
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2.05(a)
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Company Common Stock
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Recitals
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Company Disclosure Schedule
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4.01
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Company Personnel
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4.01(l)
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Company Preferred Stock
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4.01(c)(i)
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Company Rights
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4.01(c)(i)
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Company RSUs
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4.01(c)(ii)
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Company SEC Documents
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4.01(e)(i)
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Company Stock Options
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4.01(c)(ii)
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Company Stock Plans
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4.01(c)(ii)
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Compensation and Organization
Committee
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4.01(s)
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Confidentiality Agreement
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1.02(c)
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Continuing Employees
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6.12(a)
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Contract
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4.01(d)(ii)
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Convertible Notes
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4.01(c)(ii)
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Covered Intellectual Property Rights
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4.01(p)(i)
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Covered Securityholders
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4.01(s)
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Department of Treasury
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2.03
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Effective Time
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2.03
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Employment Compensation Arrangement
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4.01(s)
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Environmental Claim
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4.01(k)(ii)
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Environmental Law
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4.01(k)(ii)
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Environmental Permit
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4.01(k)(ii)
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ERISA
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4.01(m)(i)
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Event
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9.03(g)
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iv
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Exchange Act
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1.01(a)
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Expiration Date
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Exhibit A
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FDA
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4.01(r)(iii)
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Filed Company SEC Documents
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4.01(e)(i)
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GAAP
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4.01(e)(i)
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GFCO
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1.01(a)
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Governmental Entity
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4.01(d)(iii)
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Grant Date
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4.01(c)(iv)
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Hazardous Material
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4.01(k)(ii)
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Health Authorities
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4.01(r)(iv)
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Health Laws
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4.01(r)(iv)
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Holder
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6.13(a)
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HSR Act
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4.01(d)(iii)
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indebtedness
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4.01(e)(i)
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Indenture
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6.13(a)
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Independent Director
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6.09(b)
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Information Statement
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4.01(d)(iii)
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Intellectual Property Rights
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4.01(p)(i)
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Judgment
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4.01(d)(ii)
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knowledge
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9.03(f)
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Law
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4.01(d)(ii)
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Legal Restraints
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7.01(b)
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Liens
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4.01(b)
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Material Adverse Effect
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9.03(g)
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Material Contract
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4.01(i)(B)
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Medicines
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4.01(r)(iv)
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Merger
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Recitals
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Merger Consideration
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3.01(c)
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Minimum Tender Condition
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Exhibit A
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NASDAQ
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1.03(a)
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NJBCA
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2.01
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Offer
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Recitals
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Offer Closing
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1.01(a)
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Offer Closing Date
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1.01(a)
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Offer Conditions
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1.01(a)
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Offer Documents
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1.01(b)
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Offer Price
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Recitals
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Ordinary Course Agreements
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4.01(p)(v)
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Parent
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Preamble
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Parent Approval
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4.02(b)(i)
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Parent Benefit Plan
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6.12(b)
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Paying Agent
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3.02(a)
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Permits
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4.01(j)
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Permitted Liens
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4.01(o)
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person
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9.03(h)
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Proxy Statement
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4.01(d)(iii)
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v
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Purchase Plan
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4.01(c)(ii)
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Release
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4.01(k)(ii)
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Representatives
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5.02(a)
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Rights Agreement
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4.01(c)(i)
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Schedule 14D-9
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1.02(b)
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SEC
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1.01(a)
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Securities Act
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1.03(c)
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Shareholder Approval
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4.01(d)(i)
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Shareholders Meeting
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6.01(b)
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Social Security Act
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4.01(r)(i)
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SOX
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4.01(e)(i)
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Specified Assets
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6.03(a)
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Specified Contracts
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4.01(q)
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Sub
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Preamble
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Subsidiary
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9.03(i)
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Superior Proposal
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5.02(a)
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Superior Proposal Notice
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5.02(b)
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Surviving Corporation
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2.01
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Tail Period
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6.05(c)
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Takeover Proposal
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5.02(a)
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tax returns
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4.01(n)(xi)
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taxes
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4.01(n)(xi)
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Termination Date
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8.01(b)(i)
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Termination Fee
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6.06(b)
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Top-Up Option
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1.03(a)
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Top-Up Shares
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1.03(a)
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Trustee
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6.13(a)
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vi
AGREEMENT AND PLAN OF MERGER dated
as of July 22, 2009 (this “ Agreement ”),
by and among Bristol-Myers Squibb Company, a Delaware corporation
(“ Parent ”), Puma Acquisition Corporation, a
New Jersey corporation and a wholly-owned subsidiary of Parent
(“ Sub ”), and Medarex, Inc., a New Jersey
corporation (the “ Company ”).
WHEREAS Parent is the beneficial
owner of 2,879,223 shares of common stock, par value $.01 per
share, of the Company (the “ Company Common Stock
”), including the associated Company Rights, representing
approximately 2.2% of the outstanding shares of Company Common
Stock;
WHEREAS Parent desires to acquire
the remaining outstanding shares of Company Common Stock, including
the associated Company Rights, on the terms and subject to the
conditions set forth in this Agreement;
WHEREAS in furtherance of the
acquisition of the remaining outstanding shares of Company Common
Stock by Parent on the terms and subject to the conditions set
forth in this Agreement, Parent proposes to cause Sub to make a
tender offer (as it may be amended from time to time as permitted
under this Agreement, the “ Offer ”) to purchase
all the remaining outstanding shares of Company Common Stock,
including the associated Company Rights, for consideration of a
price per share of Company Common Stock (including the associated
Company Rights) of $16.00 (such amount, or any other amount per
share paid pursuant to the Offer and this Agreement, the “
Offer Price ”), net to the seller in cash, without
interest, on the terms and subject to the conditions set forth in
this Agreement;
WHEREAS the Boards of Directors of
each of the Company and Sub have approved the merger of Sub with
and into the Company (the “ Merger ”), on the
terms and subject to the conditions set forth in this Agreement;
and
WHEREAS Parent, Sub and the Company
desire to make certain representations, warranties, covenants and
agreements in connection with the Offer and the Merger and also to
prescribe various conditions to the Offer and the
Merger.
NOW, THEREFORE, in consideration of
the foregoing and the respective representations, warranties,
covenants and agreements set forth herein, the parties hereto agree
as follows:
ARTICLE
I
The
Offer
SECTION 1.01.
The Offer. (a) Subject to the terms of this
Agreement, as promptly as practicable (but in no event later than
seven business days) after the date of this Agreement, Sub shall,
and Parent shall cause Sub to, commence, within the meaning of
Rule 14d-2 under the Securities Exchange Act of 1934, as
amended (together with the rules and regulations promulgated
thereunder, the “ Exchange Act ”), the
Offer.
The obligations
of Sub to, and of Parent to cause Sub to, accept for payment, and
pay for, any shares of Company Common Stock tendered pursuant to
the Offer are subject to the conditions set forth in
Exhibit A (the “ Offer Conditions
”). The initial expiration date of the Offer shall be
midnight, New York City time, on the 20th business day following
the commencement of the Offer (determined pursuant to
Rule 14d-1(g)(3) under the Exchange Act). Sub
expressly reserves the right, in its sole discretion, to waive, in
whole or in part, any Offer Condition or modify the terms of the
Offer; provided , however , that, without the prior
written consent of the Company, Sub shall not (i) reduce the
number of shares of Company Common Stock subject to the Offer,
(ii) reduce the Offer Price, (iii) change, modify or
waive the Minimum Tender Condition, (iv) add to the conditions
set forth in Exhibit A or modify or change any Offer Condition
in a manner adverse in any material respect to any holders of
Company Common Stock, (v) except as otherwise provided in this
Section 1.01(a), extend or otherwise change the expiration
date of the Offer, (vi) change the form of consideration
payable in the Offer or (vii) otherwise amend, modify or
supplement any of the terms of the Offer in a manner adverse in any
material respect to any holders of Company Common Stock.
Notwithstanding anything in this Agreement to the contrary, Sub
may, in its sole discretion, without consent of the Company,
(A) without limiting Parent’s or Sub’s obligations
under the following sentence, extend the Offer on one or more
occasions, in consecutive increments of up to five business days
(or such longer period as the parties hereto may agree) each, if on
any then-scheduled expiration date of the Offer any of the Offer
Conditions shall have occurred and be continuing, until such time
as such condition or conditions shall no longer exist,
(B) extend the Offer for any period required by any rule,
regulation, interpretation or position of the Securities and
Exchange Commission (the “ SEC ”) or the staff
thereof applicable to the Offer and (C) if Parent determines
in good faith that a filing with the German Federal Cartel Office
(the “ GFCO ”) is required in connection with
the Offer or the Merger, extend the Offer on one or more occasions,
in increments of up to five business days (or such longer period as
the parties hereto may agree) each, for an aggregate period of time
of not more than 25 business days, until the waiting period
required by the GFCO (and any extension thereof) has been
terminated or has expired. Parent and Sub agree that, to the
extent requested in writing by the Company prior to any
then-scheduled expiration date of the Offer, Sub shall (and Parent
shall cause Sub to) (A) if any of the Offer Conditions set
forth in clause (ii) of Exhibit A or in paragraph (a),
(b) or (d)(2) of clause (iii) of Exhibit A
shall have occurred and be continuing on such then-scheduled
expiration date (and have not been waived by Sub), and provided
that it is reasonably expected that such condition or conditions
shall cease to exist prior to the Termination Date, extend the
Offer on one or more occasions, in consecutive increments of up to
five business days each (or such longer period as the parties
hereto may agree), until such time as such Offer Conditions no
longer exist and (B) if any of the Minimum Tender Condition or
the Offer Conditions set forth in paragraph (d) (other than
paragraph (d)(2)) or (e) of clause (iii) of
Exhibit A shall have occurred and be continuing on such
then-scheduled expiration date (and have not been waived by Sub),
but all the other Offer Conditions set forth in Exhibit A
shall not have occurred and be continuing on such then-scheduled
expiration date, extend the Offer on one or more occasions, in
consecutive increments of up to five business days (or such longer
period as the parties hereto may agree) each, for an aggregate
period of time of not more than 20 business days. On
the
2
terms and subject to the conditions of the Offer
and this Agreement, Sub shall, and Parent shall cause Sub to,
accept and pay for (subject to any withholding of tax pursuant to
Section 1.01(d)) all shares of Company Common Stock validly
tendered and not validly withdrawn pursuant to the Offer that Sub
becomes obligated to purchase pursuant to the Offer as soon as
practicable after the expiration date of the Offer (as it may be
extended and re-extended in accordance with this
Section 1.01(a)). Acceptance for payment of shares of
Company Common Stock pursuant to and subject to the conditions of
the Offer is referred to in this Agreement as the “ Offer
Closing ”, and the date on which the Offer Closing occurs
is referred to in this Agreement as the “ Offer Closing
Date ”. Sub expressly reserves the right, in its
sole discretion, to extend the Offer for a “subsequent
offering period” in accordance with Rule 14d-11 under
the Exchange Act following the Offer Closing, and the Offer
Documents may, in Sub’s sole discretion, provide for such a
reservation of right. The Offer may not be terminated
prior to its expiration date (as such expiration date may be
extended and re-extended in accordance with this
Section 1.01(a)), unless this Agreement is validly terminated
in accordance with Article VIII. If the Offer is
terminated or withdrawn by Sub, or this Agreement is terminated in
accordance with Section 8.01, prior to the acceptance for
payment of Company Common Stock tendered in the Offer, Sub shall
promptly return, and shall cause any depository acting on behalf of
Sub to return, all tendered Company Common Stock to the registered
holders thereof. Nothing contained in this
Section 1.01(a) shall affect any termination rights in
Article VIII.
(b) On the date of
commencement of the Offer, Parent and Sub shall file with the SEC a
Tender Offer Statement on Schedule TO filed under cover of Schedule
TO with respect to the Offer, which shall contain an offer to
purchase and a related letter of transmittal and summary
advertisement (such Schedule TO and the documents included therein
pursuant to which the Offer will be made, together with any
supplements or amendments thereto, the “ Offer
Documents ”). The Company shall promptly furnish to
Parent and Sub all information concerning the Company required by
the Exchange Act to be set forth in the Offer Documents. Each
of Parent, Sub and the Company shall promptly correct any
information supplied by it for inclusion or incorporation by
reference in the Offer Documents if and to the extent that such
information shall have become false or misleading in any material
respect, and each of Parent and Sub shall take all steps necessary
to amend or supplement the Offer Documents and to cause the Offer
Documents as so amended or supplemented to be filed with the SEC
and disseminated to the holders of Company Common Stock, in each
case as and to the extent required by applicable Federal securities
Laws. Parent and Sub shall promptly notify the Company upon
the receipt of any comments from the SEC, or any request from the
SEC for amendments or supplements, to the Offer Documents, and
shall provide the Company with copies of all correspondence between
them and their representatives, on the one hand, and the SEC, on
the other hand. Prior to the filing of the Offer Documents
(including any amendment or supplement thereto) with the SEC or
dissemination thereof to the shareholders of the Company, or
responding to any comments of the SEC with respect to the Offer
Documents, Parent and Sub shall provide the Company a reasonable
opportunity to review and comment on such Offer Documents or
response (including the proposed final version thereof), and Parent
and Sub shall give reasonable consideration to any such
comments.
3
(c) Parent
shall provide or cause to be provided to Sub on a timely basis the
funds necessary to pay for any shares of Company Common Stock that
Sub becomes obligated to accept for payment, and pay for, pursuant
to the Offer.
(d) Sub
shall be entitled to deduct and withhold from the consideration
otherwise payable pursuant to the Offer to any holder of shares of
Company Common Stock such amounts as Sub is required to deduct and
withhold with respect to the making of such payment under the
Internal Revenue Code of 1986, as amended (the “ Code
”), or any other Law. To the extent that amounts are so
withheld and paid over by Sub to the appropriate Governmental
Entity, such withheld amounts shall be treated for all purposes of
this Agreement as having been paid to the holder of the shares of
Company Common Stock in respect of which such deduction and
withholding was made by Sub.
SECTION 1.02.
Company Actions. (a) The Company hereby
approves of and consents to the Offer, the Merger and the other
transactions contemplated by this Agreement.
(b) On or
as promptly as practicable after the date the Offer Documents are
filed with the SEC, the Company shall file with the SEC a
Solicitation/ Recommendation Statement on Schedule 14D-9 with
respect to the Offer (such Schedule 14D-9, together with any
supplements or amendments thereto, the “ Schedule
14D-9 ”) containing the recommendation described in
Section 4.01(d)(i) and shall mail the Schedule 14D-9
to the shareholders of the Company. Parent and Sub shall
promptly furnish to the Company all information concerning Parent
and Sub required by the Exchange Act to be set forth in the
Schedule 14D-9. Each of the Company, Parent and Sub
shall promptly correct any information supplied by it for inclusion
or incorporation by reference in the Schedule 14D-9 if and to
the extent that such information shall have become false or
misleading in any material respect, and the Company shall take all
steps necessary to amend or supplement the Schedule 14D-9 and
to cause the Schedule 14D-9 as so amended or supplemented to
be filed with the SEC and disseminated to the shareholders of the
Company, in each case as and to the extent required by applicable
Federal securities Laws. The Company shall promptly notify
Parent upon the receipt of any comments from the SEC, or any
request from the SEC for amendments or supplements, to the
Schedule 14D-9, and shall provide Parent with copies of all
correspondence between the Company and its representatives, on the
one hand, and the SEC, on the other hand. Prior to the filing
of the Schedule 14D-9 (including any amendment or supplement
thereto) with the SEC or mailing thereof to the shareholders of the
Company, or responding to any comments of the SEC with respect to
the Schedule 14D-9, the Company shall provide Parent a
reasonable opportunity to review and comment on such
Schedule 14D-9 or response (including the proposed final
version thereof), and the Company shall give reasonable
consideration to any such comments. The Company hereby
consents to the inclusion in the Offer Documents of the
recommendation of the Board of Directors of the Company contained
in the Schedule 14D-9.
(c) In
connection with the Offer and the Merger, the Company shall cause
its transfer agent to furnish Parent and Sub promptly with mailing
labels containing the
4
names and
addresses of the record holders of Company Common Stock as of a
recent date and of those persons becoming record holders subsequent
to such date, together with copies of all lists of shareholders,
security position listings and computer files and all other
information in the Company’s possession or control regarding
the beneficial owners of Company Common Stock, and shall furnish to
Sub such information and assistance (including updated lists of
shareholders, security position listings and computer files) as
Parent may reasonably request in communicating the Offer to holders
of Company Common Stock. Subject to the requirements of
applicable Law, and except for such steps as are necessary to
disseminate the Offer Documents and any other documents necessary
to consummate the transactions contemplated by this Agreement,
Parent and Sub shall hold in confidence the information contained
in any such labels, listings and files in accordance with the
requirements of the Confidentiality Agreement dated June 2,
2009 between Parent and the Company (as it may be amended from time
to time, the “ Confidentiality Agreement ”),
shall use such information only in connection with the Offer and
the Merger and, if this Agreement shall be terminated, shall, upon
request, destroy all copies of such information then in their
possession or control.
SECTION 1.03.
Top-Up Option. (a) The Company hereby grants to
Sub an irrevocable option (the “ Top-Up Option
”), exercisable only on the terms and conditions set forth in
this Section 1.03, to purchase at a price per share equal to
the Offer Price paid in the Offer up to that number of newly issued
shares of Company Common Stock (the “ Top-Up Shares
”) equal to the lowest number of shares of Company Common
Stock that, when added to the number of shares of Company Common
Stock owned by Parent and its Subsidiaries at the time of exercise
of the Top-Up Option, shall constitute one share more than 90% of
the shares of Company Common Stock outstanding immediately after
the issuance of the Top-Up Shares on a “fully diluted
basis” (which assumes conversion or exercise of all
derivative securities regardless of the conversion or exercise
price, the vesting schedule or other terms and conditions thereof);
provided , however , that (i) the Top-Up Option
shall not be exercisable for a number of shares of Company Common
Stock in excess of the shares of Company Common Stock authorized
and unissued or held in the treasury of the Company at the time of
exercise of the Top-Up Option (giving effect to the shares of
Company Common Stock issuable pursuant to all then-outstanding
stock options, restricted stock units and any other rights to
acquire Company Common Stock as if such shares were outstanding),
(ii) the issuance of the Top-Up Shares shall not require
approval of the Company’s shareholders under applicable Law
(including the rules of The NASDAQ Stock Market LLC (“
NASDAQ ”)) and (iii) the exercise of the Top-Up
Option and the issuance and delivery of the Top-Up Shares shall not
be prohibited by any Law or Judgment. The Top-Up Option shall
be exercisable at any one time following the Offer Closing and
prior to the earlier to occur of (a) the Effective Time and
(b) the termination of this Agreement in accordance with its
terms. The obligation of the Company to issue and deliver the
Top-Up Shares upon the exercise of the Top-Up Option is subject
only to the condition that no Legal Restraint that has the effect
of preventing the exercise of the Top-Up Option or the issuance and
delivery of the Top-Up Shares in respect of such exercise shall be
in effect.
(b) The
parties shall cooperate to ensure that the issuance and delivery of
the Top-Up Shares comply with all applicable Laws, including
compliance with an
5
applicable
exemption from registration of the Top-Up Shares under the
Securities Act. In the event Sub wishes to exercise the
Top-Up Option, Sub shall give the Company at least three business
days prior written notice, specifying (i) the number of shares
of the Company Common Stock owned by Parent and its Subsidiaries at
the time of such notice and (ii) a place and a time for the
closing of such purchase. The Company shall, as soon as
practicable following receipt of such notice, deliver written
notice to Sub specifying, based on the information provided by Sub
in its notice, the number of Top-Up Shares. At the closing of
the purchase of Top-Up Shares, the purchase price owed by Sub to
the Company therefor shall be paid to the Company (i) in cash,
by wire transfer or cashier’s check or (ii) by issuance
by Sub to the Company of a promissory note on terms reasonably
satisfactory to the Company.
(c) Parent
and Sub acknowledge that the Top-Up Shares that Sub may acquire
upon exercise of the Top-Up Option will not be registered under the
Securities Act and will be issued in reliance upon an applicable
exemption from registration under the Securities Act. Each of
Parent and Sub hereby represents and warrants to the Company that
Sub is, and will be, upon the purchase of the Top-Up Shares, an
“accredited investor,” as defined in Rule 501 of
Regulation D under the Securities Act. Sub agrees that the
Top-Up Option and the Top-Up Shares to be acquired upon exercise of
the Top-Up Option are being and will be acquired by Sub for the
purpose of investment and not with a view to, or for resale in
connection with, any distribution thereof (within the meaning of
the Securities Act of 1933, as amended (including the
rules and regulations promulgated thereunder, the “
Securities Act ”)).
ARTICLE
II
The
Merger
SECTION 2.01.
The Merger. Upon the terms and subject to the
conditions set forth in this Agreement, and in accordance with the
New Jersey Business Corporation Act (the “ NJBCA
”), Sub shall be merged with and into the Company at the
Effective Time. At the Effective Time, the separate corporate
existence of Sub shall cease and the Company shall continue as the
surviving corporation (the “ Surviving Corporation
”).
SECTION 2.02.
Closing. The closing of the Merger (the “
Closing ”) will take place at the offices of Cravath,
Swaine & Moore LLP, 825 Eighth Avenue, New York,
New York 10019, at 10:00 a.m., New York City
time, on a date to be specified by the parties, which shall be not
later than the second business day after satisfaction or waiver of
the conditions set forth in Article VII, other than those
conditions that by their terms are to be satisfied at the Closing,
but subject to the satisfaction or waiver of those conditions,
unless another time, date or place is agreed to in writing by
Parent and the Company. The date on which the Closing occurs
is referred to in this Agreement as the “Closing
Date”.
SECTION 2.03.
Effective Time of the Merger. Upon the terms and
subject to the conditions set forth in this Agreement, as soon as
practicable on or after the
6
Closing Date, a
certificate of merger (the “ Certificate of Merger
”) shall be duly prepared, executed and acknowledged by the
Parent and, to the extent applicable, the Company, in accordance
with the relevant provisions of the NJBCA and shall be filed by
Parent with the Department of Treasury of the State of New Jersey
(the “ Department of Treasury ”). The
Merger shall become effective on such date and at such time as the
Certificate of Merger is duly filed with the Department of Treasury
or at such subsequent date and time, not to exceed 90 days after
the date of filing the Certificate of Merger, as Parent and the
Company shall agree and specify in the Certificate of Merger.
The date and time at which the Merger becomes effective is referred
to in this Agreement as the “Effective
Time”.
SECTION 2.04.
Effects of the Merger. The Merger shall have the
effects specified in the NJBCA, including as set forth in
Section 14A:10-6 thereof.
SECTION 2.05.
Certificate of Incorporation and By-laws. (a)
The Certificate of Incorporation of the Company, as heretofore
amended (the “ Company Certificate ”), shall be
amended at the Effective Time to read in the form of Exhibit B
hereto and, as so amended, the Company Certificate shall be the
certificate of incorporation of the Surviving Corporation until
thereafter changed or amended as provided therein or by applicable
Law.
(b) The
By-laws of Sub as in effect immediately prior to the Effective Time
shall be the By-laws of the Surviving Corporation until thereafter
changed or amended as provided therein or by applicable
Law.
SECTION 2.06.
Directors. The directors of Sub immediately prior to
the Effective Time shall be the directors of the Surviving
Corporation until the earlier of their resignation or removal or
until their respective successors are duly elected and qualified,
as the case may be.
SECTION 2.07.
Officers. The officers of Sub immediately prior to
the Effective Time shall be the officers of the Surviving
Corporation until the earlier of their resignation or removal or
until their respective successors are duly elected and qualified,
as the case may be.
ARTICLE
III
Effect of the
Merger on the Capital Stock of the Constituent Corporations;
Exchange
of Certificates
SECTION 3.01.
Effect on Capital Stock. At the Effective Time, by
virtue of the Merger and without any action on the part of the
holder of any shares of Company Common Stock, or the holder of any
shares of capital stock of Parent or Sub:
(a)
Capital Stock of Sub. Each share of common stock of
Sub, par value $0.01 per share, issued and outstanding immediately
prior to the Effective Time shall be converted into and become one
validly issued, fully paid and
7
nonassessable
share of common stock, par value $0.01 per share, of the Surviving
Corporation.
(b)
Cancellation of Treasury Stock and Parent-Owned Stock.
All shares of Company Common Stock that are owned as
treasury stock by the Company or owned by Parent or Sub immediately
prior to the Effective Time shall automatically be canceled and
shall cease to exist, and no consideration shall be delivered or
deliverable in exchange therefor.
(c)
Conversion of Company Common Stock. Each share of
Company Common Stock issued and outstanding immediately prior to
the Effective Time (other than shares to be canceled in accordance
with Section 3.01(b)) shall be converted into the right to
receive from the Surviving Corporation, in cash and without
interest, an amount equal to the Offer Price paid in the Offer (the
“ Merger Consideration ”). At the
Effective Time such shares shall no longer be outstanding and shall
automatically be canceled and shall cease to exist, and each holder
of a certificate, or evidence of shares held in book-entry form,
that immediately prior to the Effective Time represented any such
shares (a “ Certificate ”) shall cease to have
any rights with respect thereto, except the right to receive the
Merger Consideration in accordance with the terms of this
Agreement.
(d)
Adjustment Events. If, between the date of this
Agreement and the Effective Time, the outstanding shares of Company
Common Stock are changed into, or exchanged for, a different number
or class of shares by reason of any stock dividend, split,
combination, subdivision or reclassification of shares,
reorganization, recapitalization or other similar transaction, then
the Offer Price and the Merger Consideration (as applicable)
payable per share of Company Common Stock shall be adjusted to the
extent appropriate to fairly reflect the effects of such
transaction.
SECTION 3.02.
Exchange of Certificates. (a) Paying
Agent. Prior to the Effective Time, Parent shall enter
into an agreement with such bank or trust company as may be
designated by Parent and reasonably acceptable to the Company to
act as agent for the payment of the Merger Consideration upon
surrender of Certificates (the “ Paying Agent
”). At the Effective Time, Parent shall, or shall cause
the Surviving Corporation to, deposit with the Paying Agent funds
in amounts and at the times necessary for the payment of the Merger
Consideration pursuant to Section 3.01(c) upon surrender
of Certificates, it being understood that any and all interest or
other amounts earned with respect to such funds shall be for the
account of and turned over to Parent in accordance with
Section 3.02(g).
(b)
Exchange Procedure. As soon as reasonably practicable
after the Effective Time, Parent shall cause the Paying Agent to
mail to each holder of record of a Certificate (i) a form of
letter of transmittal (which shall specify that delivery shall be
effected, and risk of loss and title to the Certificates held by
such person shall pass, only upon proper delivery of the
Certificates to the Paying Agent and shall be in a form
and
8
have such other
provisions as Parent may reasonably specify) and
(ii) instructions for use in effecting the surrender of the
Certificates in exchange for the Merger Consideration. Upon
surrender of a Certificate for cancellation to the Paying Agent or
to such other agent or agents as may be appointed by Parent,
together with such letter of transmittal, duly completed and
validly executed, and such other documents as may reasonably be
required by the Paying Agent, the holder of such Certificate shall
be entitled to receive in exchange therefor the amount of Merger
Consideration that such holder has the right to receive pursuant to
Section 3.01(c), and the Certificate so surrendered shall
forthwith be canceled. In the event of a transfer of
ownership of Company Common Stock that is not registered in the
stock transfer books of the Company, payment of the Merger
Consideration in exchange therefor may be made to a person other
than the person in whose name the Certificate so surrendered is
registered if, upon presentation to the Paying Agent, such
Certificate shall be properly endorsed or otherwise be in proper
form for transfer and the person requesting such payment shall pay
any transfer or other taxes required by reason of the payment to a
person other than the registered holder of such Certificate or
establish to the satisfaction of the Surviving Corporation that
such taxes have been paid or are not applicable. No interest
shall be paid or shall accrue on the cash payable upon surrender of
any Certificate.
(c) No
Further Ownership Rights in Company Common Stock. All
cash paid upon the surrender of a Certificate in accordance with
the terms of this Article III shall be deemed to have been
paid in full satisfaction of all rights pertaining to the shares of
Company Common Stock formerly represented by such
Certificate. At the close of business on the day on which the
Effective Time occurs, the stock transfer books of the Company
shall be closed, and there shall be no further registration of
transfers on the stock transfer books of the Surviving Corporation
of the shares that were outstanding immediately prior to the
Effective Time. If, after the close of business on the day on
which the Effective Time occurs, Certificates are presented to the
Surviving Corporation or the Paying Agent for transfer or any other
reason, they shall be canceled and exchanged as provided in this
Article III.
(d) No
Liability. None of Parent, Sub, the Company, the
Surviving Corporation or the Paying Agent shall be liable to any
person in respect of any cash that would otherwise have been
payable in respect of any Certificate that is delivered to a public
official in accordance with any applicable abandoned property,
escheat or similar Law. If any Certificates shall not have
been surrendered prior to the date which is one year after the
Effective Time (or immediately prior to such earlier date on which
any Merger Consideration would otherwise escheat to or become the
property of any Governmental Entity), any such Merger Consideration
in respect thereof shall, to the extent permitted by applicable
Law, become the property of the Surviving Corporation, free and
clear of all claims or interest of any person previously entitled
thereto.
(e) Lost
Certificates. If any Certificate shall have been lost,
stolen, defaced or destroyed, upon the making of an affidavit of
that fact in form and substance reasonably satisfactory to Parent
by the person claiming such Certificate to be lost, stolen, defaced
or destroyed and, if required by the Surviving Corporation, the
posting by such person of a bond in such amount as the Surviving
Corporation may direct as
9
indemnity against
any claim that may be made against it with respect to such
Certificate, the Paying Agent shall pay the Merger Consideration in
respect of such lost, stolen, defaced or destroyed
Certificate.
(f)
Withholding Rights. Parent, the Surviving Corporation
or the Paying Agent, as applicable, shall be entitled to deduct and
withhold from the Merger Consideration otherwise payable pursuant
to this Agreement to any holder of shares of Company Common Stock
such amounts as Parent, the Surviving Corporation or the Paying
Agent is required to deduct and withhold with respect to the making
of such payment under the Code or any other Law. To the
extent that amounts are so withheld and paid over to the
appropriate Governmental Entity by Parent, the Surviving
Corporation or the Paying Agent, such withheld amounts shall be
treated for all purposes of this Agreement as having been paid to
the holder of the shares of Company Common Stock in respect of
which such deduction and withholding was made by Parent, the
Surviving Corporation or the Paying Agent.
(g)
Termination of Fund. At any time following the date
which is six months after the Effective Time, Parent or the
Surviving Corporation shall be entitled to require the Paying Agent
to deliver to it any funds (including any interest or other amounts
earned with respect thereto) that had been made available to the
Paying Agent and which have not been disbursed to holders of
Certificates, and thereafter, subject to the time limitations in
Section 3.02(d), such holders shall be entitled to look only
to the Surviving Corporation (subject to abandoned property,
escheat or similar Laws) as general creditors thereof with respect
to the payment of any Merger Consideration that may be payable upon
surrender of any Certificates held by such holders, as determined
pursuant to this Agreement, without any interest
thereon.
ARTICLE
IV
Representations and
Warranties
SECTION 4.01.
Representations and Warranties of the Company. Except
as set forth in the disclosure schedule (with specific reference to
the particular Section or subsection of this Agreement to
which the information set forth in such disclosure schedule
relates; provided , however , that any information
set forth in one Section of such disclosure schedule shall be
deemed to apply to each other Section or subsection thereof or
hereof to the extent the applicability of such information to such
other Section or subsection is reasonably apparent from
the text of the disclosure made) delivered by the Company to Parent
prior to the execution of this Agreement (the “ Company
Disclosure Schedule ”), the Company represents and
warrants to Parent and Sub as follows:
(a)
Organization, Standing and Corporate Power. The
Company is a corporation duly organized and validly existing and in
good standing under the laws of the State of New Jersey, each of
its Subsidiaries is a corporation duly organized, validly existing
and in good standing (in the jurisdictions that recognize the
concept of good standing) under the laws of the jurisdiction of its
incorporation or formation, as the case may be, and each of the
Company and its
10
Subsidiaries has
all requisite power and authority and possesses all governmental
licenses, franchises, permits, authorizations and approvals
necessary to enable it to use its corporate or other name and to
own, lease or otherwise hold and operate its properties and other
assets and to carry on its business as presently conducted and as
currently proposed by its management to be conducted, except where
the failure to be in good standing (except with respect to the
Company), have such power or authority or possess such governmental
licenses, permits, authorizations or approvals, individually or in
the aggregate, has not had and would not reasonably be expected to
have a Material Adverse Effect. Each of the Company and its
Subsidiaries is duly qualified or licensed to do business and is in
good standing (in jurisdictions that recognize the concept of good
standing) in each jurisdiction in which the nature of its business
or the ownership, leasing or operation of its properties makes such
qualification or licensing necessary, other than in such
jurisdictions where the failure to be so qualified or licensed or
to be in good standing, individually or in the aggregate, has not
had and would not reasonably be expected to have a Material Adverse
Effect. The Company has made available to Parent, prior to
the execution of this Agreement, complete and accurate copies of
the Company Certificate and its By-laws (the “ Company
By-laws ”), and the comparable organizational documents
of each of its Subsidiaries, in each case as amended to the date
hereof. The Company has made available to Parent complete and
accurate copies of the minutes (or, in the case of minutes that
have not yet been finalized, drafts thereof) of, and resolutions
approved and adopted at, all meetings of the shareholders of the
Company and each of its Subsidiaries, the Boards of Directors of
the Company and each of its Subsidiaries and the committees of each
of such Boards of Directors, in each case held since
January 1, 2007 and prior to the date hereof, except for that
portion of any minutes that discuss the Merger or the other
transactions contemplated by this Agreement or any current or prior
alternatives thereto considered by the Board of Directors of the
Company or any such committee thereof.
(b)
Subsidiaries. Section 4.01(b) of the
Company Disclosure Schedule lists each Subsidiary of the Company
and, for each such Subsidiary, the jurisdiction of incorporation or
formation and each jurisdiction in which such Subsidiary is
qualified or licensed to do business. All issued and
outstanding shares of capital stock of, or other equity interests
in, each such Subsidiary have been validly issued and are fully
paid and nonassessable and are owned directly or indirectly by the
Company free and clear of all pledges, liens, charges, encumbrances
or security interests of any kind or nature whatsoever (other than
liens, charges and encumbrances for current taxes not yet due and
payable) (collectively, “ Liens ”), and free of
any restriction on the right to vote, sell or otherwise dispose of
such capital stock or other equity interests. Except for the
capital stock of, or voting securities or equity interests in, its
Subsidiaries, the Company does not own, directly or indirectly, any
capital stock of, or other voting securities or equity interests
in, any corporation, limited liability company, partnership, joint
venture, association or other entity.
11
(c)
Capital Structure. (i) The authorized capital
stock of the Company consists of 200,000,000 shares of Company
Common Stock and 2,000,000 shares of preferred stock, par
value $1.00 per share (“ Company Preferred Stock
”), of which 250,000 shares of Company Preferred Stock were
designated by the Board of Directors of the Company as
Series A Junior Participating Preferred Stock and are issuable
upon exercise of the rights (the “ Company Rights
”) under the Rights Agreement dated as of May 23, 2001,
between the Company and Continental Stock Transfer & Trust
Company, as amended by the Amendment to Rights Agreement dated as
of November 6, 2007 (as amended, the “ Rights
Agreement ”).
(ii) At the close of
business on July 21, 2009, (A) 128,952,242 shares of
Company Common Stock were issued and 128,918,402 shares of Company
Common Stock were issued and outstanding,
(B) 33,840 shares of Company Common Stock were held by
the Company in its treasury, (C) 10,936,935 shares of Company
Common Stock were reserved for issuance upon conversion of the
Company’s 2.25% Convertible Senior Notes due May 15,
2011 (the “ Convertible Notes ”),
(D) 30,106,413 shares of Company Common Stock were reserved
and available for issuance pursuant to the Company’s 2005
Equity Incentive Plan, 2004 New Employee Stock Option Plan, 2002
New Employee Stock Option Plan, 2001 Stock Option Plan, 2001
Non-Director/Officer Employee Stock Option Plan, 2000 Stock Option
Plan, 2000 Non-Director/Officer Employee Stock Option Plan, 1999
Stock Option Plan and 1997 Stock Option Plan (such plans, together
with the Company’s 2002 Employee Stock Purchase Plan (the
“ Purchase Plan ”), the “ Company Stock
Plans ”), of which 20,218,799 shares of Company Common
Stock were subject to outstanding options (other than purchase
rights under the Purchase Plan) to acquire shares of Company Common
Stock from the Company (the “ Company Stock Options
”) and 932,248 shares of Company Common Stock were subject to
outstanding restricted stock units with respect to Company Common
Stock (the “ Company RSUs ”), (E) 8,955,366
shares of Company Common Stock were reserved and available for
issuance pursuant to the Purchase Plan and (F) no shares of
Company Preferred Stock were issued or outstanding or were held by
the Company as treasury shares.
(iii) Since the close of
business on July 21, 2009 until the date of this Agreement,
(A) there have been no issuances by the Company of shares of
capital stock or other voting securities or equity interests of the
Company, other than issuances of shares of Company Common Stock
(including the associated Company Rights) pursuant to the
conversion of the Convertible Notes, the exercise of Company Stock
Options and purchase rights under the Purchase Plan and the
settlement of Company RSUs, in each case outstanding as of the
close of business on July 21, 2009, and only in accordance
with their terms as in effect on such date, and (B) there have
been no issuances by the Company of securities convertible into, or
exchangeable or exercisable for, or options, warrants or other
rights to acquire, or shares of deferred stock, restricted stock
units, stock-based performance units, stock appreciation rights or
“phantom” stock awards with respect to, any such stock,
interests or securities, or
12
derivative securities or other
rights that are linked to the value of Company Common Stock or the
value of the Company or any part thereof, other than purchase
rights under the Purchase Plan and Company Rights.
(iv) There are no outstanding
shares of Company Common Stock or Company Preferred Stock subject
to vesting or restrictions on transfer imposed by the Company, and
all outstanding Company Stock Options and Company RSUs have been
granted under the Company Stock Plans. All grants under the
Company Stock Plans of Company Stock Options and Company RSUs were
accounted for in accordance with GAAP in the financial statements
(including the related notes) of the Company and disclosed in the
Company SEC Documents in accordance with the Exchange Act and all
other applicable Laws. Each grant of a Company Stock Option
was duly authorized no later than the date on which the grant of
such Company Stock Option was by its terms to be effective (the
“ Grant Date ”) by all necessary corporate
action, including, as applicable, approval by the Board of
Directors of the Company (or a duly constituted and authorized
committee thereof) and any required shareholder approval by the
necessary number of votes or written consents, each such grant was
made in accordance with the terms of the applicable compensation
plan or arrangement of the Company, the Exchange Act and all other
applicable Laws and regulatory rules or requirements,
including the rules of the NASDAQ, and the per share exercise
price of each Company Stock Option was equal to the fair market
value (within the meaning of Section 422 of the Code, in the
case of each Company Stock Option intended to qualify as an
“incentive stock option”, and within the meaning of
Section 409A of the Code, in the case of each other Company
Stock Option) of a share of Company Common Stock on the applicable
Grant Date. The Company has not knowingly granted, and there is no
and has been no Company policy or practice to knowingly grant,
Company Options prior to, or otherwise knowingly coordinate the
grant of Company Options with, the release or other public
announcement of material information regarding the Company or any
of its Subsidiaries or their financial results or prospects.
Each Company Stock Option intended to qualify as an
“incentive stock option” under Section 422 of the
Code, if any, so qualifies. Other than the Company Stock
Plans, there is no plan, contract, agreement or arrangement
providing for the grant of options to acquire shares of Company
Common Stock by the Company or any of its Subsidiaries. All
Company Stock Options and Company RSUs that are outstanding as of
the date hereof are evidenced by stock option agreements,
restricted stock unit agreements or other award agreements, in each
case substantially in the forms made available to Parent prior to
the date hereof, except that the forms of such agreements differ
with respect to the number of Company Stock Options, Company RSUs
or shares covered thereby, the exercise price (if applicable),
vesting schedule and expiration date applicable thereto and other
similar terms; provided that no stock option agreement,
restricted stock unit agreement or other award agreement contains
terms that are inconsistent in any material respect with, or
material terms in addition to, such forms.
13
(v) As of the close of
business on July 21, 2009, there were outstanding Company
Stock Options to purchase 18,571,605 shares of Company Common Stock
with exercise prices on a per share basis lower than the Merger
Consideration, and the weighted average exercise price of such
Company Stock Options was equal to $8.07 per share. As of the
close of business on July 21, 2009, approximately 9,151 shares
of Company Common Stock were subject to outstanding purchase rights
under the Purchase Plan based on payroll information for the period
ended July 10, 2009 (assuming the fair market value per share
of Company Common Stock determined in accordance with the terms of
the Purchase Plan on the last day of the offering period in effect
under the Purchase Plan on the date hereof will be equal to the
Merger Consideration and that payroll deductions continue at the
current rate). Each Company Stock Option and each Company RSU
may, by its terms, be treated at the Effective Time as set forth in
Section 6.04(a)(i) or 6.04(a)(ii), as applicable, and all
rights to purchase shares of Company Common Stock under the
Purchase Plan may, by their terms, be treated in accordance with
Section 6.04(a)(iii). No holder of a Company Stock
Option or Company RSU or right to purchase shares of Company Common
Stock under the Purchase Plan that is outstanding at the Effective
Time is entitled, at the Effective Time, to any treatment of such
Company Stock Option or Company RSU or right to purchase shares of
Company Common Stock under the Purchase Plan other than as provided
in Section 6.04(a), and after the Effective Time no holder of
a Company Stock Option or Company RSU or right to purchase shares
of Company Common Stock under the Purchase Plan (or former such
holder) shall have the right to acquire any capital stock of the
Company or any other equity interest therein.
(vi) All outstanding shares
of capital stock of the Company are, and all shares which may be
issued pursuant to the Convertible Notes, the Company Stock
Options, the Company RSUs or purchase rights under the Purchase
Plan will be, when issued in accordance with the terms thereof,
duly authorized, validly issued, fully paid and nonassessable and
not subject to preemptive rights. Except for the Convertible
Notes, there are no bonds, debentures, notes or other indebtedness
of the Company having the right to vote (or convertible into, or
exchangeable for, securities having the right to vote) on any
matters on which shareholders of the Company are entitled to
vote. Except as set forth above in
Section 4.01(b) or this Section 4.01(c), as of the
date hereof, (A) there are not issued, reserved for issuance
or outstanding (1) any shares of capital stock or other voting
securities or equity interests of the Company or any of its
Subsidiaries, (2) any securities of the Company or any of its
Subsidiaries convertible into or exchangeable or exercisable for
shares of capital stock or other voting securities or equity
interests of the Company or any of its Subsidiaries, (3) any
warrants, calls, options or other rights to acquire from the
Company or any of its Subsidiaries, and no obligation of the
Company or any of its Subsidiaries to issue, any capital stock,
voting securities, equity interests or securities convertible into
or exchangeable or exercisable for capital stock or voting
securities of the Company or any of its Subsidiaries or
(4) any shares of deferred stock, restricted stock units,
stock-based performance units, stock
14
appreciation rights or
“phantom” stock awards with respect to any capital
stock of the Company or any of its Subsidiaries, or derivative
securities or other rights that are linked to the value of the
Company Common Stock or the value of the Company, any of its
Subsidiaries or any part thereof and (B) there are not any
outstanding obligations of the Company or any of its Subsidiaries
to repurchase, redeem or otherwise acquire any such securities or
to issue, deliver or sell, or cause to be issued, delivered or
sold, any such securities (except pursuant to the forfeiture of
Company Stock Options and Company RSUs or the acquisition by the
Company of shares of Company Common Stock in settlement of the
exercise price of a Company Stock Option or the tax withholding
obligations of holders of Company Stock Options and Company RSUs,
in each case in accordance with their terms as in effect on the
date of this Agreement). Neither the Company nor any of its
Subsidiaries is a party to any voting or other agreement with
respect to the voting of any such securities and, to the knowledge
of the Company, as of the date hereof, there are no irrevocable
proxies and no voting agreements with respect to any such
securities.
(d)
Authority; Noncontravention. (i) The Company
has all requisite corporate power and authority to execute and
deliver this Agreement, to consummate the Merger and the other
transactions contemplated by this Agreement, subject, in the case
of the Merger, if required by applicable Law, to the affirmative
vote of a majority of the outstanding shares of the Company Common
Stock cast in favor of approving this Agreement (the “
Shareholder Approval ”), and to comply with the
provisions of and perform its obligations under this
Agreement. The execution and delivery of this Agreement by
the Company, the consummation by the Company of the Merger and the
other transactions contemplated by this Agreement and the
compliance by the Company with the provisions of this Agreement
have been duly authorized by all necessary corporate action on the
part of the Company, and no other corporate proceedings on the part
of the Company are necessary to authorize this Agreement, to
consummate the Merger and the other transactions contemplated by
this Agreement, subject, in the case of the Merger, if required by
applicable Law, to obtaining the Shareholder Approval, or to comply
with the provisions of and perform its obligations under this
Agreement. This Agreement has been duly executed and
delivered by the Company and, assuming the due authorization,
execution and delivery by each of the other parties hereto,
constitutes a legal, valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms.
The Board of Directors of the Company, at a meeting duly called and
held and at which a quorum was present, duly adopted resolutions
(i) approving this Agreement, the Merger and the other
transactions contemplated by this Agreement, (ii) declaring
that it is in the best interests of the Company and the
shareholders of the Company that are unaffiliated with Parent that
the Company enter into this Agreement and consummate the Merger and
the other transactions contemplated by this Agreement on the terms
and subject to the conditions set forth herein,
(iii) declaring that the terms of the Offer and the Merger are
fair to the Company and the Company’s shareholders that
are
15
unaffiliated with
Parent and (iv) recommending that the Company’s
shareholders accept the Offer, tender their shares of Company
Common Stock pursuant to the Offer and, if required by applicable
Law, approve this Agreement, which resolutions, except to the
extent permitted by Section 5.02, have not been rescinded,
modified or withdrawn in any way. The Company and its Board
of Directors have amended the Rights Agreement (subject only to
execution by Continental Stock Transfer & Trust Company,
as Rights Agent to the Rights Agreement, which the Company shall
cause to take place as soon as practicable, but in no event later
than two days after the date hereof) and otherwise have taken all
action necessary to (i) render the Company Rights inapplicable
to this Agreement, the Offer, the Merger and the other transactions
contemplated by this Agreement and (ii) ensure that
(A) neither Parent nor any of its affiliates or associates is
or will become an “Acquiring Person” (as defined in the
Rights Agreement) by reason of this Agreement, the Offer, the
Merger or any other transaction contemplated by this Agreement,
(B) a “Distribution Date” (as defined in the
Rights Agreement) shall not occur, and the Company Rights to
purchase Series A Junior Participating Preferred Stock shall
not become exercisable, by reason of this Agreement, the Offer, the
Merger or any other transaction contemplated by this Agreement and
(C) the Company Rights shall expire, and the “Final
Expiration Date” (as defined in the Rights Agreement) shall
occur, immediately prior to the Offer Closing.
(ii) The execution and
delivery of this Agreement by the Company do not, and the
consummation of the Offer, the Merger and the other transactions
contemplated by this Agreement and compliance by the Company with
the provisions of this Agreement will not, conflict with, or result
in any violation or breach of, or default (with or without notice
or lapse of time, or both) under, or give rise to a right of, or
result in, termination, cancellation or acceleration of any
obligation or to the loss of a benefit under, or result in the
creation of any Lien in or upon any of the properties or other
assets of the Company or any of its Subsidiaries under,
(x) the Company Certificate or the Company By-laws or the
comparable organizational documents of any of its Subsidiaries,
(y) any loan or credit agreement, bond, debenture, note,
mortgage, indenture, lease, supply agreement, license agreement,
development agreement, distribution agreement or other legally
binding contract, agreement, obligation, commitment, arrangement,
understanding, instrument, permit, franchise or license, whether
oral or written (each, including all amendments thereto, a “
Contract ”), to which the Company or any of its
Subsidiaries is a party or any of their respective properties or
other assets is subject or (z) subject (i) in the case of
the Merger, if required by applicable Law, to obtaining the
Shareholder Approval and (ii) to the governmental filings and
the other matters referred to in
Section 4.01(d)(iii) below, any (A) Federal, state
or local, domestic or foreign, statute, law, code, ordinance,
rule or regulation of any Governmental Entity (each, a “
Law ”) or (B) Federal, state or local, domestic
or foreign, judgment, injunction, order, writ or decree of any
Governmental Entity or arbitrator (each, a “ Judgment
”), in each case applicable to the Company or any of its
Subsidiaries or their respective properties or other assets, other
than, in
16
the case of
clauses (y) and (z), any such conflicts, violations,
breaches, defaults, rights, losses or Liens that, individually or
in the aggregate, have not had and would not reasonably be expected
to have a Material Adverse Effect.
(iii) No consent, approval,
order or authorization of, action by or in respect of, or
registration, declaration or filing with, any Federal, state or
local, domestic or foreign government, any court, administrative,
regulatory or other governmental agency, commission or authority or
any non-governmental self-regulatory agency, commission or
authority (each, a “ Governmental Entity ”) is
required by or with respect to the Company or any of its
Subsidiaries in connection with the execution and delivery of this
Agreement by the Company or the consummation of the Offer, the
Merger or the other transactions contemplated by this Agreement or
the compliance by the Company with the provisions of this
Agreement, except for (1) the filing of a premerger
notification and report form by the Company under the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended
(including the rules and regulations promulgated thereunder,
the “ HSR Act ”), and the receipt, termination
or expiration, as applicable, of approvals or waiting periods
required under the HSR Act or any other applicable competition,
merger control, antitrust or similar Law, (2) the filing with
the SEC of (A) the Schedule 14D-9, (B) if required
by applicable Law, a proxy statement relating to the approval by
the shareholders of the Company of this Agreement (as amended or
supplemented from time to time, the “ Proxy Statement
”), (C) an information statement required in connection
with the Offer under Rule 14f-1 under the Exchange Act (as
amended or supplemented from time to time, the “
Information Statement ”) and (D) such reports
under the Exchange Act as may be required in connection with this
Agreement, the Offer, the Merger and the other transactions
contemplated by this Agreement, (3) any required applications
and filings with, or approvals from, the New Jersey Department of
Environmental Protection in order to timely comply with the New
Jersey Industrial Site Recovery Act and the regulations promulgated
thereunder, (4) the filing of the Certificate of Merger with
the Secretary of State and appropriate documents with the relevant
authorities of other states in which the Company or any of its
Subsidiaries is qualified to do business, (5) any filings
required under the rules and regulations of NASDAQ and
(6) such other consents, approvals, orders, authorizations,
actions, registrations, declarations and filings the failure of
which to be obtained or made, individually or in the aggregate, has
not had and would not reasonably be expected to have a Material
Adverse Effect.
(e)
Company SEC Documents. (i) The Company has
filed or furnished, as applicable, all reports, schedules, forms,
statements and other documents (including exhibits and other
information incorporated therein) with the SEC required to be filed
or furnished, as applicable, by the Company since and including
January 1, 2007, under the Securities Act, the Exchange Act
and the Sarbanes-Oxley Act of 2002 (including the rules and
regulations promulgated thereunder, “ SOX
”) (such documents, together with any documents
and
17
information
incorporated therein by reference and together with any documents
filed during such period by the Company with the SEC on a voluntary
basis on Current Reports on Form 8-K, the “ Company
SEC Documents ”). As of their respective filing
dates, the Company SEC Documents complied in all material respects
with the requirements of the Securities Act, the Exchange Act and
SOX applicable to such Company SEC Documents, and none of the
Company SEC Documents contained any untrue statement of a material
fact or omitted to state a material fact required to be stated
therein or necessary in order to make the statements therein, in
light of the circumstances under which they were made, not
misleading. Except to the extent that information contained
in any Company SEC Document filed or furnished to the SEC on or
after January 1, 2009 has been revised, amended, supplemented
or superseded by a later Filed Company SEC Document, neither the
Company’s Annual Report on Form 10-K for the fiscal year
ended December 31, 2008, nor any other Company SEC Document
filed with or furnished to the SEC on or after January 1, 2009
contains any untrue statement of a material fact or omits to state
any material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances
under which they were made, not misleading, which, individually or
in the aggregate, would require an amendment, supplement or
corrective filing to any such Company SEC Document. The
Company has made available to Parent copies of all comment letters
received by the Company from the SEC since January 1, 2006
(excluding all letters received from the SEC indicating that the
SEC would not be reviewing any registration statement filed with
the SEC by the Company) and relating to the Company SEC Documents,
together with all written responses of the Company thereto.
As of the date of this Agreement, the Company has not received any
written notification of, and to the knowledge of the Company there
are no, outstanding or unresolved comments in such comment letters
received by the Company from the SEC. The Company has not
received any written notice from the SEC that any of the Company
SEC Documents is the subject of any ongoing review by the
SEC. Each of the financial statements (including the related
notes) of the Company included in the Company SEC Documents
complied at the time it was filed as to form in all material
respects with the applicable accounting requirements and the
published rules and regulations of the SEC with respect
thereto in effect at the time of filing, has been prepared in
accordance with generally accepted accounting principles in the
United States (“ GAAP ”) (except, in the case of
unaudited statements, as permitted by the rules and
regulations of the SEC) applied on a consistent basis during the
periods involved (except as may be indicated in the notes thereto)
and fairly presented in all material respects the consolidated
financial position of the Company and its consolidated Subsidiaries
as of the dates thereof and the consolidated results of their
operations and cash flows for the periods then ended (subject, in
the case of unaudited statements, to normal year-end audit
adjustments). Except as disclosed in the most recent audited
financial statements (including the notes thereto) included in the
Company SEC Documents filed by the Company and publicly available
prior to the date of this Agreement (the “ Filed Company
SEC Documents ”), neither the Company nor any of
its
18
Subsidiaries has
any liabilities or obligations of any nature (whether accrued,
absolute, contingent or otherwise) that, individually or in the
aggregate, would reasonably be expected to have a Material Adverse
Effect. None of the Subsidiaries of the Company is, or has at
any time been, subject to the reporting requirements of
Sections 13(a) and 15(d) of the Exchange
Act. Except as disclosed in the most recent audited financial
statements (including the notes thereto) included in the Filed
Company SEC Documents, neither the Company nor any of its
Subsidiaries has any (A) indebtedness for borrowed money,
(B) indebtedness evidenced by any bond, debenture, note,
mortgage, indenture or other debt instrument or debt security,
(C) accounts payable to trade creditors and accrued expenses
not arising in the ordinary course of business, (D) amounts
owing as deferred purchase price for the purchase of any property
or (E) guarantees with respect to any indebtedness or
obligation of a type described in clauses (A) through
(D) above of any other person (collectively, “
indebtedness ”), and no indebtedness is subject to, or
secured by, any Liens.
(ii) Each of the principal
executive officer of the Company and principal financial officer of
the Company (or each former such officer) has made all
certifications required by Rule 13a-14 or 15d-14 under
the Exchange Act and Sections 302 and 906 of SOX with
respect to the Company SEC Documents, and the statements contained
in such certifications were true and accurate as of the date such
certifications were made. The Company maintains a system of
“internal control over financial reporting” (as defined
in Rules 13a-15(f) and 15d-15(f) of the Exchange
Act) as required under Rules 13a-15(a) and
15d-15(a) under the Exchange Act and such system is designed
to provide reasonable assurance (A) regarding the reliability
of the Company’s financial reporting and the preparation of
financial statements for external purposes in accordance with GAAP
and (B) that transactions of the Company are being made only
in accordance with the authorization of management and directors of
the Company. The “disclosure controls and
procedures” (as defined in Rules 13a-15(e) and
15d-15(e) of the Exchange Act) of the Company comply with
Rules 13a-15(a) and 15d-15(a) under the Exchange Act
and are designed to ensure that all material information relating
to the Company and its Subsidiaries is communicated to the
Company’s management, including the chief executive officer
and chief financial officer of the Company.
(iii) Since January 1,
2007, the Company has not received any oral or written notification
of any “material weakness” in the Company’s
internal control over financial reporting. There is no
outstanding “significant deficiency” or “material
weakness” which the Company’s independent accountants
certify has not been appropriately and adequately remedied by the
Company, other than, in the case of any “significant
deficiencies”, any such deficiency which, individually or in
the aggregate, has not had or would not reasonably be expected to
have a Material Adverse Effect. For purposes of this
Agreement, the terms “significant deficiency” and
“material weakness” shall have the meanings assigned to
them in Release No. 2007-005 of the Public Company
Accounting Oversight Board, as in effect on the date
hereof.
19
(iv) (A) The Company
has not received any written notification of, and to the knowledge
of the Company there are no, pending (1) formal or informal
investigations of the Company by the SEC or (2) inspections of
an audit of the Company’s financial statements by the Public
Company Accounting Oversight Board and (B) there are no
pending investigations by the Audit Committee of the Board of
Directors of the Company regarding any complaint, allegation,
assertion or claim that the Company or any of its Subsidiaries has
engaged in improper or illegal accounting or auditing practices or
maintains improper or inadequate internal accounting
controls.
(f)
Information Supplied. None of the information
included or incorporated by reference in the Schedule 14D-9,
the Information Statement or the Proxy Statement (and none of the
information supplied by the Company in writing specifically for
inclusion or incorporation by reference in the Offer Documents)
will, in the case of the Schedule 14D-9, the Information
Statement and the Offer Documents, at the respective times the
Schedule 14D-9, the Information Statement and the Offer
Documents are filed with the SEC or first published, sent or given
to the Company’s shareholders or, in the case of the Proxy
Statement, at the time the Proxy Statement is first mailed to the
Company’s shareholders or at the time of the Shareholders
Meeting, contain any statement that, in light of the circumstances
under which it is made, is false or misleading with respect to any
material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they are made,
not false or misleading, except that no representation or warranty
is made by the Company with respect to statements made or
incorporated by reference in the Schedule 14D-9, the
Information Statement or the Proxy Statement based on information
supplied by Parent or Sub in writing specifically for inclusion or
incorporation by reference therein. The Schedule 14D-9,
the Information Statement and the Proxy Statement will comply as to
form in all material respects with the requirements of the Exchange
Act.
(g)
Absence of Certain Changes or Events. Between
December 31, 2008 and the date of this Agreement, the Company
and its Subsidiaries have conducted their respective businesses
only in the ordinary course consistent with past practice, and
there has not been any change, development, event or condition
arising in such period that, individually or in the aggregate, has
had or would reasonably be expected to have a Material Adverse
Effect, and during such period there has not been any action which,
if it had been taken or occurred after the execution of this
Agreement, would have required the consent of Parent pursuant to
the second sentence of Section 5.01(a) of this
Agreement.
(h)
Litigation. Except as disclosed in the Filed Company
SEC Documents, (A) there is no claim, suit, action or
proceeding pending or, to the knowledge of the Company, threatened
against the Company or any of its Subsidiaries or any of their
respective assets or properties, (B) there is no Judgment
outstanding against the Company or any of its Subsidiaries or any
of their respective assets, and (C) the Company has not
received any written
20
notification of,
and to the knowledge of the Company there is no, investigation by
any Governmental Entity involving the Company or any of its
Subsidiaries or any of their respective assets that, in the case of
each of clauses (A), (B) and (C), individually or in the
aggregate, has had or would reasonably be expected to have a
Material Adverse Effect.
(i)
Contracts. (A) Except for Contracts that are
filed as an exhibit to a Filed Company SEC Document,
Section 4.01(i) of the Company Disclosure Schedule
contains a complete and correct list, as of the date of this
Agreement, of each Contract described below in this
Section 4.01(i)(A) under which the Company or any of its
Subsidiaries has any current or future rights, responsibilities,
obligations or liabilities (in each case, whether contingent or
otherwise) or to which any of their respective properties or assets
is subject, in each case as of the date of this
Agreement:
(i) each Contract to which the
Company or any of its Subsidiaries is a party that restricts the
ability of the Company or any of its Subsidiaries to
(A) compete with any person in any area or (B) engage in
any activity or business in connection with the Covered Products or
the Covered Platforms;
(ii) each Contract to which the
Company or any of its Subsidiaries is a party (x) providing
for exclusivity or any similar requirement or pursuant to which the
Company or any of its Subsidiaries is restricted in any way with
respect to the research, development, testing, distribution, sale,
supply, license, marketing, promotion, co-promotion or
manufacturing of the Covered Products or Covered Platforms or
(y) which after the Effective Time would restrict Parent or
any of its Subsidiaries in any material respect with respect to the
products of Parent or any of its Subsidiaries that have been
commercialized or are in Phase II or Phase III clinical development
(or the foreign equivalent thereof) in the United States or any
foreign jurisdiction with respect to any clinical indication of
such product;
(iii) each Contract to which
the Company or any of its Subsidiaries is a party granting the
other party to such Contract or a third party “most favored
nation” pricing or terms that (1) applies or apply to
the Company or any of its Subsidiaries or (2) following the
Effective Time, would apply to Parent or any of its Subsidiaries
other than the Surviving Corporation;
(iv) each Contract to which the
Company or any of its Subsidiaries is a party containing any
“non-solicitation”, “no-hire” or similar
provision, in each case, which provision (1) restricts the
Company or any of its Subsidiaries in soliciting, hiring, engaging,
retaining or employing current or former employees of, or providers
of material services to, any of the entities set forth in
Section 4.01(i)(A)(iv)(x) of the Company Disclosure
Schedule or (2) restricts the Company or any of its
Subsidiaries in any other material respect;
21
(v) each Contract to which the
Company or any of its Subsidiaries is a party with any beneficial
owner of any shares of Company Common Stock, or securities
convertible into, or exchangeable for, or any options, warrants,
calls or rights to acquire, any shares of Company Common Stock,
(1) where such Contract provides for consideration payable to
such beneficial owner or any of its affiliates as a result of the
tender of the shares of Company Common Stock beneficially owned by
such beneficial owner in the Offer or (2) where the amount
payable under such Contract is calculated based on the number of
shares of Company Common Stock tendered, or to be tendered, in the
Offer by such beneficial owner;
(vi) each Contract to which the
Company or any of its Subsidiaries is a party containing any
standstill provisions which in any respect limits (1) the
ability of any person to acquire the securities or assets of the
Company or any of its Subsidiaries or (2) the ability of the
Company or any of its Subsidiaries to acquire the securities or
assets of any person; and
(vii) except for the Contracts
described above, each material Contract to which the Company or any
of its Subsidiaries is a party not made in the ordinary course of
business consistent with past practice.
(B) The Company has made
available to Parent a complete and correct copy of each of the
Contracts referred to in Sections 4.01(i)(A),
4.01(p)(v) and 4.01(q). Except as disclosed in the Filed
Company SEC Documents, as of the date hereof, neither the Company
nor any of its Subsidiaries is a party to, and none of their
respective properties or other assets is subject to, any Contract
that is of a nature required to be filed as an exhibit to a report
or filing under the Securities Act or the Exchange Act and the
rules and regulations promulgated thereunder. Each Contract of
the Company or any of its Subsidiaries that is required to be set
forth on Section 4.01(i), 4.01(p)(i)(v) or
4.01(q) of the Company Disclosure Schedule or required to be
filed as an exhibit to the Filed Company SEC Documents (a “
Material Contract ”) is in full force and effect
(except for those Contracts that have expired or have been
terminated in accordance with their terms) and is a legal, valid
and binding agreement of the Company or its Subsidiary, as the case
may be, and, to the knowledge of the Company, of each other party
thereto, enforceable against the Company or such Subsidiary, as the
case may be, and, to the knowledge of the Company, each other party
thereto, in each case, in accordance with its terms, except for
such failures to be in full force and effect or to be legal, valid,
binding or enforceable that, individually or in the aggregate, have
not had and would not reasonably be expected to have a Material
Adverse Effect. Each of the Company and its Subsidiaries has
performed or is performing all obligations required to be performed
by it under the Material Contracts and is not (with or without
notice or lapse of time, or both) in breach or default thereunder,
and has not waived or failed to enforce any rights or benefits
thereunder, and, to the knowledge of the Company, no other party to
any of the Material Contracts is (with or without notice or lapse
of time, or both) in breach or default thereunder, and there
has
22
occurred no event giving to others
(with or without notice or lapse of time, or both) any right of
termination, amendment or cancellation of any Material Contract or
any license thereunder, except for, in each case, any such failures
to perform, breaches, defaults, waivers, failures to enforce or
events that, individually or in the aggregate, have not had and
would not reasonably be expected to have a Material Adverse
Effect.
(j)
Permits; Compliance with Laws. Except as disclosed in
the Filed Company SEC Documents, (i) the Company and its
Subsidiaries have (whether directly or pursuant to Contracts in
which third parties have effectively granted to the Company or its
Subsidiaries the rights of such third parties) in effect all
certificates, permits, licenses, franchises, approvals,
concessions, qualifications, registrations, certifications and
similar authorizations from any Governmental Entity, including all
Health Authority requirements under Health Laws, (collectively,
“ Permits ”) that are necessary for the Company
and its Subsidiaries to own, lease or operate their properties and
assets, to conduct research and development, and to carry on their
businesses as currently conducted, except where the failure to have
such Permits, individually or in the aggregate, has not had and
would not reasonably be expected to have a Material Adverse Effect,
(ii) each of the Company and its Subsidiaries is, and since
January 1, 2006 has been, in compliance in all material
respects with the terms of its Permits and all applicable Laws and
Judgments, (iii) neither the Company nor any of its
Subsidiaries has received any written communication since
January 1, 2006 from any Governmental Entity or employee,
licensee, licensor, vendor or supplier of the Company or any of its
Subsidiaries that alleges that the Company or any of its
Subsidiaries is not in compliance in all material respects with, or
is subject to any liability under, any material Permit, Law or
Judgment or relating to the revocation or modification of any
material Permit and (iv) neither the Company nor any of its
Subsidiaries has received any written notice that any investigation
or review by any Governmental Entity is pending with respect to the
Company or any of its Subsidiaries or any of the properties, assets
or operations of the Company or any of its Subsidiaries or that any
such investigation or review is contemplated. This
Section 4.01(j) does not relate to environmental matters,
labor relations matters, employee benefits matters, tax matters or
regulatory compliance matters to the extent such matters and their
compliance with specific Laws, Judgments or Permits are the
subjects of Sections 4.01(k), 4.01(l), 4.01(m),
4.01(n) or 4.01(r), respectively.
(k)
Environmental Matters. (i) Except as disclosed
in the Filed Company SEC Documents, (A) the assets,
properties, businesses and operations of each of the Company and
its Subsidiaries are, and for the past seven years have been, in
compliance in all material respects with all applicable
Environmental Laws, and neither the Company nor any of its
Subsidiaries has received any written communication alleging that
the Company or any of its Subsidiaries is in material violation of,
or has any material liability under, any Environmental Law or
Environmental Permit, (B) each of the Company and its
Subsidiaries has obtained and is, and for the past seven years has
been, operating in compliance in all
23
material respects
with all Environmental Permits, and all such Environmental
Permits are currently in effect, and neither the Company nor any of
its Subsidiaries has been notified in writing of any material
adverse change in the terms and conditions of such Environmental
Permits and (C) there is no Environmental Claim pending or, to
the knowledge of the Company, threatened against the Company or any
of its Subsidiaries or any of their respective predecessors.
There has been no Release of any Hazardous Material at, on, in,
under, to or from any property or facility currently or formerly
owned, leased, operated or used (including any third party disposal
or recycling locations) by the Company or any of its Subsidiaries
that would reasonably be expected to result in liability, or any
material obligation or loss, under any Environmental Law for the
Company or any of its Subsidiaries or for any person whose
liabilities the Company or any of its Subsidiaries has, or may
have, retained or assumed, either contractually or by operation of
law. To the knowledge of the Company, there are no facts,
circumstances or conditions with respect to any of the current or
former assets, properties, businesses or operations of the Company
or its Subsidiaries that have resulted, or would reasonably be
expected to result, in a material violation of, or material
liability under, any Environmental Law.
(ii) The term “
Environmental Claim ” means any administrative,
regulatory or judicial action, suit, proceeding, order, claim,
directive, Lien, or written notice, demand or request or, to the
knowledge of the Company, investigation by or from any Governmental
Entity or any other person seeking information or alleging
liability relating to or arising out of any Environmental Law or
Environmental Permit, including a Release of, or human exposure to,
any Hazardous Material. The term “ Environmental
Permit ” means any permit, license, exemption,
registration, emissions allocation or credit, order, franchise,
authorization, consent or approval required under any applicable
Environmental Law for the Company or its Subsidiaries to conduct
its respective businesses. The term “ Environmental
Law ” means any Law, Judgment or legally binding Contract
relating to pollution, contamination or cleanup, or protection or
restoration of the environment or natural resources, or human
health as it relates to the environment. The term “
Hazardous Material ” means any (a) medical,
biological or biohazardous material, including any infectious
material, biological product, bodily fluid, stock, culture,
diagnostic specimen or regulated animal or medical waste,
(b) petroleum product, derivative or by-product,
asbestos-containing material, radon, urea formaldehyde foam
insulation, polychlorinated biphenyls, radioactive materials, toxic
mold or fungi, or (c) other chemical, substance, material or
waste that in relevant form, quantity or concentration is regulated
under any Environmental Law. The term “ Release
” means any release, spill, emission, leaking, pumping,
emitting, depositing, discharging, injecting, escaping, leaching,
dispersing, dumping, pouring, disposing or migrating into, onto or
through the environment (including ambient air, surface water,
ground water, land surface or subsurface strata) or within any
building, structure, facility or fixture.
24
(l)
Labor Relations. There are no collective bargaining
or other labor union agreements to which the Company or any of its
Subsidiaries is a party or by which the Company or any of its
Subsidiaries is bound. None of the employees of the Company
or any of its Subsidiaries are represented by any union with
respect to their employment by the Company or any such
Subsidiary. Since January 1, 2006, neither the Company
nor any of its Subsidiaries has experienced any labor disputes,
union organization attempts, strikes, work stoppages, slowdowns or
lockouts. There is no unfair labor practice charge or
complaint or other proceeding pending, or, to the knowledge of the
Company, threatened against the Company or any of its Subsidiaries
before the National Labor Relations Board or any similar
Governmental Entity. Except as disclosed in the Filed Company
SEC Documents, the Company is, and has been, in compliance with all
applicable Laws respecting employment, including discrimination or
harassment in employment, terms and conditions of employment,
termination of employment, wages, overtime classifications, hours,
occupational safety and health, employee whistle-blowing,
immigration, employee privacy, employment practices and
classification of employees, consultants and independent
contractors, except for those failures to be in compliance that,
individually or in the aggregate, have not had and would not
reasonably be expected to have a Material Adverse Effect. The
Company does not have and is not reasonably likely to incur any
material liability under the Worker Adjustment and Retraining
Notification Act of 1988. No current or former director,
officer, employee or independent contractor of the Company or any
of its Subsidiaries (each, a “ Company Personnel
”) is primarily based outside of the United
States.
(m)
Employee Benefits. (i)
Section 4.01(m)(i)(1) of the Company Disclosure Schedule
sets forth a complete and accurate list of each material
(A) “employee pension benefit plan” (as defined in
Section 3(2) of the Employee Retirement Income Security
Act of 1974, as amended (“ ERISA ”)),
(B) “employee welfare benefit plan” (as defined in
Section 3(1) of ERISA), (C) post-retirement or
employment health or medical plan, program, policy or arrangement,
(D) bonus, incentive or deferred compensation or equity or
equity-based compensation plan, program, policy or arrangement,
(E) severance, change in control, retention or termination
plan, program, policy or arrangement or (F) other compensation
or benefit plan, program, policy or arrangement, in each case,
sponsored, maintained, contributed to or required to be maintained
or contributed to by the Company, any of its Subsidiaries or any
other person or entity that, together with the Company, is treated
as a single employer under Section 414 of the Code (each, a
“ Commonly Controlled Entity ”) for the benefit
of any Company Personnel (each, and for purposes of this
definition, without regard to materiality, a “ Company
Benefit Plan ”). Section 4.01(m)(i)(2) of
the Company Disclosure Schedule sets forth a complete and accurate
list of each material employment, consulting, bonus, incentive or
deferred compensation, equity or equity-based compensation,
severance, change in control, retention, termination or other
contract between the Company or any of its Subsidiaries, on the one
hand, and any Company Personnel, on the other hand (each, a “
Company Benefit Agreement ”). With respect to each
Company Benefit Plan and Company Benefit
25
Agreement, in
existence in written form, the Company has made available to Parent
complete and accurate copies of (A) such Company Benefit Plan
or Company Benefit Agreement, including any amendment thereto,
(B) each trust, insurance, annuity or other funding Contract
related thereto, (C) the most recent audited financial
statements and actuarial or other valuation reports prepared with
respect thereto, (D) the two most recent annual reports on
Form 5500 required to be filed with the Internal Revenue
Service with respect thereto, to the extent applicable and
(E) the most recent determination letter (or opinion letter)
issued by the Internal Revenue Service, to the extent
applicable. There are no material, unwritten Company Benefit
Plans or Company Benefit Agreements.
(ii) Except for those
matters that, individually or in the aggregate, have not had and
would not reasonably be expected to have a Material Adverse Effect,
(A) other than as disclosed in the Filed Company SEC
Documents, (x) each Company Benefit Plan and Company
Benefit Agreement (and any related trust or other funding vehicle)
has been administered in accordance with its terms and is in
compliance with ERISA, the Code and all other applicable Laws,
(y) each of the Company and its Subsidiaries is in compliance
with ERISA, the Code and all other Laws applicable to Company
Benefit Plans and Company Benefit Agreements with respect to
employee benefits matters and (z) none of the Company or any
of its Subsidiaries has received written notice of, and, to the
knowledge of the Company, there are no investigations by any
Governmental Entity with respect to, or termination proceedings or
other claims, suits or proceedings (except routine claims for
benefits payable in the ordinary course) against or involving, any
Company Benefit Plan or Company Benefit Agreement, (B) none of
the Company or any Commonly Controlled Entity has engaged in any
transactions that are reasonably expected to result in the
imposition of penalties pursuant to Section 502(i) of
ERISA, damages pursuant to Section 409 of ERISA or a tax
pursuant to Section 4975(a) of the Code and (C) each
Company Benefit Plan that is intended to be qualified under
Section 401(a) of the Code has received a favorable
determination letter (or opinion letter) from the Internal Revenue
Service that such Company Benefit Plan is qualified and the plan
and trust related thereto are exempt from Federal income taxes
under Section 401(a) and 501(a), respectively, of the
Code, and no condition exists and no event has occurred that would
reasonably be expected by the Company to result in the revocation
of such letter (or if such Company Benefit Plan has not been
determined to be so qualified, such Company Benefit Plan may still
be amended within the remedial amendment period to make any
amendments necessary to obtain a favorable determination or opinion
as to the qualified status of such Company Benefit
Plan).
(iii) None of the Company,
any of its Subsidiaries or any Commonly Controlled Entity has,
within the past six years, sponsored, maintained, contributed to or
been required to maintain or contribute to, or has any actual or
contingent liability under, any Company Benefit Plan that is
subject to Section 302 or Title IV of ERISA or
Section 412 of the Code or is otherwise a defined benefit plan
that is subject to the Laws of a foreign jurisdiction.
No
26
Company Benefit Plan or Company
Benefit Agreement provides material health, medical or other
welfare benefits after retirement or other termination of
employment (other tha
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