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Exhibit 99.2
AGREEMENT AND PLAN OF MERGER
by and between
ACCELLENT INC.
and
ACCELLENT ACQUISITION CORP.
dated as of October 7, 2005
TABLE OF CONTENTS
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ii
iii
LIST OF SCHEDULES
iv
AGREEMENT AND PLAN OF MERGER
This AGREEMENT AND PLAN OF MERGER (this “ Agreement ”), dated as of October 7, 2005, is made and entered into by and between ACCELLENT ACQUISITION CORP., a Delaware corporation (the “ Purchaser ”), and ACCELLENT INC., a Maryland corporation (the “ Company ”). The Purchaser and the Company are sometimes individually referred to herein as a “ Party ” and collectively as the “ Parties .”
W I T N E S S E T H:
WHEREAS, the Parties desire to enter into this Agreement pursuant to which the Parties propose that a to-be-formed Maryland corporation that will be a wholly owned subsidiary (“ Merger Sub ”) of the Purchaser will merge with and into the Company (the “ Merger ”) upon the terms and subject to the conditions set forth herein and in accordance with the provisions of the Maryland General Corporation Law (the “ MGCL ”) so that the Company will continue as the surviving corporation of the Merger and will become a wholly owned subsidiary of the Purchaser;
WHEREAS, the respective Boards of Directors of the Purchaser and the Company have approved the Merger and the transactions contemplated hereby, on substantially the terms and subject to the conditions set forth in this Agreement, and resolved that such Merger and transactions are advisable and in their respective stockholders’ best interests;
WHEREAS, the Board of Directors of the Company has resolved to recommend to its stockholders approval and adoption of the Merger and the transactions contemplated hereby on the terms and subject to the conditions set forth in this Agreement;
WHEREAS, the Board of Directors of the Company has directed that the Merger and the transactions contemplated hereby, on the terms and subject to the conditions set forth in this Agreement, be submitted for consideration at a special meeting of the Company’s stockholders;
WHEREAS, concurrently with the execution and delivery of this Agreement and as a condition to the willingness of Purchaser to enter into this Agreement, Purchaser and certain Equity Holders (as hereinafter defined) are entering into a voting agreement (the “ Voting Agreement ”), pursuant to which, among other things, such Equity Holders have agreed to vote all of their shares of Common Stock (as hereinafter defined) and Preferred Stock (as hereinafter defined) in favor of the transactions contemplated hereby, including the Merger, on the terms and subject to the conditions set forth in this Agreement;
WHEREAS, Purchaser has received the Financing Commitments (as hereinafter defined) and provided copies of the Financing Commitments to the Company; and
WHEREAS, the Parties desire to make certain representations, warranties and agreements in connection with the Merger.
NOW, THEREFORE, in consideration of the representations, warranties, covenants and agreements contained herein, the adequacy of which is hereby acknowledged, and intending to be legally bound hereby, the Parties hereby agree as follows:
ARTICLE ICONSTRUCTION; DEFINITIONSSection 1.1 Definitions . The following terms, as used herein, have the following meanings:
“ Affiliate ” of any specified Person means any other Person directly or indirectly Controlling or Controlled by or under direct or indirect common Control with such specified Person.
“ Aggregate Class AB Warrant Exercise Price ” means the aggregate exercise price which would be payable by all Class AB Warrant Holders if all Class AB Warrants which are otherwise outstanding and exercisable for Class AB Convertible Preferred Stock immediately prior to the Effective Time were exercised in full immediately prior to the Effective Time.
“ Aggregate Class A-8 Warrant Exercise Price ” means the aggregate exercise price, if any, which would be payable by all Class A-8 Warrant Holders if all Class A-8 Warrants which are otherwise outstanding and exercisable for Class A-8 5% Convertible Preferred Stock immediately prior to the Effective Time were exercised in full immediately prior to the Effective Time.
“ Aggregate Common Stock Option Exercise Price ” means the aggregate exercise price which would be payable by all Common Stock Option Holders if all Common Stock Options which are otherwise outstanding immediately prior to the Effective Time were exercised in full immediately prior to the Effective Time, whether or not vested.
“ Articles of Incorporation ” means the Company’s Third Articles of Amendment and Restatement, as amended.
“ Associate ” of any specified Person means any other entity of which such Person is an officer, partner or beneficial owner of 10% or more of any class of equity securities.
“ Balance Sheet ” means the unaudited consolidated balance sheet of the Company and its Subsidiaries as of June 30, 2005.
“ Business Day ” means any day except Saturday, Sunday or any day on which banks are generally not open for business in the city of New York, New York.
“ Bylaws ” means the Company’s Amended and Restated Bylaws.
“ CERCLA ” means the federal Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. §§ 9601 et seq., and the rules and regulations promulgated thereunder.
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“ Class AA Convertible Preferred Stock ” means the Company’s Class AA Convertible Preferred Stock, $0.01 par value.
“ Class AB Convertible Preferred Stock ” means the Company’s Class AB Convertible Preferred Stock, $0.01 par value.
“ Class AB Warrant ” means a warrant to purchase Class AB Convertible Preferred Stock.
“ Class AB Warrant Agreement ” means the warrant agreements by and between the Company and the Persons listed on Schedule 1.1(a) .
“ Class AB Warrant Holder ” means a holder of a Class AB Warrant outstanding immediately prior to the Effective Time.
“ Class A-1 5% Convertible Preferred Stock ” means the Company’s Class A-1 5% Convertible Preferred Stock, $0.01 par value.
“ Class A-2 5% Convertible Preferred Stock ” means the Company’s Class A-2 5% Convertible Preferred Stock, $0.01 par value.
“ Class A-3 5% Convertible Preferred Stock ” means the Company’s Class A-3 5% Convertible Preferred Stock, $0.01 par value.
“ Class A-4 5% Convertible Preferred Stock ” means the Company’s Class A-4 5% Convertible Preferred Stock, $0.01 par value.
“ Class A-5 5% Convertible Preferred Stock ” means the Company’s Class A-5 5% Convertible Preferred Stock, $0.01 par value.
“ Class A-6 5% Convertible Preferred Stock ” means the Company’s Class A-6 5% Convertible Preferred Stock, $0.01 par value.
“ Class A-7 5% Convertible Preferred Stock ” means the Company’s Class A-7 5% Convertible Preferred Stock, $0.01 par value.
“ Class A-8 5% Convertible Preferred Stock ” means the Company’s Class A-8 5% Convertible Preferred Stock, $0.01 par value.
“ Class A-8 Warrant ” means a warrant to purchase Class A-8 5% Convertible Preferred Stock.
“ Class A-8 Warrant Agreement ” means the warrant agreements by and between the Company and the Persons listed on Schedule 1.1(b) .
“ Class A-8 Warrant Dividend Amount ” means, as of immediately prior to the Effective Time, the aggregate amount of dividends that would have accrued since June 30, 2004 on the Class A-8 5% Convertible Preferred Stock issuable pursuant to the Class A-8 Warrants had the Class A-8 Warrants been exercised on June 30, 2004.
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“ Class A-8 Warrant Holder ” means a holder of a Class A-8 Warrant outstanding immediately prior to the Effective Time.
“ Class A-9 5% Convertible Preferred Stock ” means the Company’s Class A-9 5% Convertible Preferred Stock, $0.01 par value.
“ Closing ” means the consummation of the transactions contemplated by Article II of this Agreement, as set forth in Section 8.1 of this Agreement.
“ Closing Cash ” means the estimated cash of the Company as of 11:59 p.m. Eastern Time on the Closing Date less (i) the estimated aggregate amount of checks or drafts of the Company or any of its Subsidiaries outstanding as of 11:59 p.m. Eastern Time on the Closing Date (other than payments of the amounts specified in Section 3.3 or 3.6 of this Agreement) plus (ii) checks expected to be received by the Company as of 11:59 p.m. Eastern Time on the Closing Date but not yet posted and (iii) exclusive of any cash delivered by the Purchaser pursuant to Section 3.3 or Section 3.6 of this Agreement.
“ Closing Date ” means the date on which the Closing occurs.
“ Closing Date Indebtedness ” means all Indebtedness (other than (i) capital lease obligations and (ii) Indebtedness up to $1,000,000 in the aggregate of the type specified in clauses (ii) and (iv) in the definition of Indebtedness, without duplication) of the Company and any of its Subsidiaries, as of the Closing Date, (other than intercompany Indebtedness) including any interest accrued thereon and excluding any prepayment or similar penalties and expenses which would be payable if such Indebtedness were paid in full as of the Closing Date (including any contractual payment premium, defeasance costs, consent solicitation payment, tender premium or prepayment or similar penalty payable in connection with the Debt Offer for the 10% Senior Subordinated Notes). Closing Date Indebtedness shall not include any liabilities related to Company Letters of Credit and Surety Bonds which have not been drawn down upon as of the Closing.
“ Code ” means the United States Internal Revenue Code of 1986, as amended.
“ Common Stock ” means the Company’s Common Stock, $0.01 par value, including shares of Restricted Stock.
“ Common Stock Option ” means an option to purchase Common Stock issued pursuant to the Stock Option Plan.
“ Common Stock Option Holder ” means a holder of a Common Stock Option outstanding immediately prior to the Effective Time.
“ Common Stockholder ” means a holder of Common Stock, including Restricted Stock, outstanding immediately prior to the Effective Time.
“ Company Ancillary Documents ” means any certificate, agreement, document or other instrument, other than this Agreement, to be executed and delivered by the Company in connection with the transactions contemplated hereby.
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“ Company Benefit Plan ” means each Employee Benefit Plan under which (i) the Company or any of its Subsidiaries has any liabilities directly or indirectly or (ii) any current or former employee, director, officer or independent contractor of the Company or any of its Subsidiaries has any present or future right to benefits and which are contributed to, sponsored by or maintained by the Company or any of its Subsidiaries.
“ Company Intellectual Property ” means any Intellectual Property that is owned, used or held for use by or licensed to the Company or any of its Subsidiaries, including the Company Software.
“ Company Licensed Software ” means all Software (other than Company Proprietary Software) used by or licensed to the Company or any of its Subsidiaries.
“ Company Material Adverse Effect ” means any state of facts, change, event, effect or occurrence (when taken together with all other states of fact, changes, events, effects or occurrences) that is materially adverse to the business, properties, assets, liabilities, financial condition, or results of operations of the Company and its Subsidiaries taken as a whole; provided, however, that in no event shall any of the following, alone or in combination, be deemed to constitute a Company Material Adverse Effect: (i) a downturn in general economic, business, regulatory or political conditions or other changes therein, (ii) effects or changes that are generally applicable to the industries and markets in which the Company and its Subsidiaries operate, (iii) changes in the United States or world financial markets, (iv) changes in applicable Law or in GAAP, (v) any ratings decline or price decline in Accellent Corp.’s publicly traded debt, (vi) effects arising from war or terrorism or (vii) effects directly or primarily arising out of the execution or delivery of this Agreement, the transactions contemplated hereby or the public announcement thereof, unless, in the case of the foregoing clauses (i), (ii), (iii) and (vi) such change, event, effect or occurrence has had a materially disproportionate effect on the Company and its Subsidiaries taken as a whole as compared to other Persons in the industry in which the Company and its Subsidiaries operate.
“ Company Proprietary Software ” means all Software owned by the Company or any of its Subsidiaries.
“ Company Registered Intellectual Property ” means all of the Registered Intellectual Property owned by or filed in the name of the Company or any of its Subsidiaries.
“ Company Software ” means the Company Licensed Software and the Company Proprietary Software.
“ Company Stock ” means Common Stock, Class A-1 5% Convertible Preferred Stock, Class A-2 5% Convertible Preferred Stock, Class A-3 5% Convertible Preferred Stock, Class A-4 5% Convertible Preferred Stock, Class A-5 5% Convertible Preferred Stock, Class A-6 5% Convertible Preferred Stock, Class A-7 5% Convertible Preferred Stock, Class A-8 5% Convertible Preferred Stock, Class A-9 5% Convertible Preferred Stock, Class AA Convertible Preferred Stock and Class AB Convertible Preferred Stock.
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“ Confidential Information ” means any data or information of the Company or any of its Subsidiaries (including trade secrets) that is valuable to the operation of the Company’s or any of its Subsidiaries’ business and not generally known to the public or competitors.
“ Contract ” means any written contract, agreement, indenture, note, bond, loan, instrument, lease, mortgage, permit, franchise, license, binding commitment or other arrangement.
“ Control ” means, when used with respect to any specified Person, the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise.
“ DLJ ” means DLJ Merchant Banking III, Inc. and its Affiliates, as applicable.
“ DLJ Management Agreement ” means the letter agreement, dated June 30, 2004, as amended June 9, 2005, between the Company and DLJ.
“ Employee Benefit Plan ” means (a) any plan, fund, program, policy, agreement, arrangement or scheme, including each plan, fund, program, policy, agreement, arrangement or scheme maintained or required to be maintained under the Laws of a jurisdiction outside the United States of America pursuant to which a Person provides compensation or benefits (other than base salary or base hourly wages) for services rendered to such Person by employees, former employees, directors, managers, officers, consultants, independent contractors, contingent workers or leased employees or the dependents of any of them (whether written or oral), (b) any plan, program or policy described in Section 3(3) of ERISA (as determined without regard to whether such plan, program, or policy is subject to ERISA, and including all Employment Agreements and all stock option, fringe benefit, collective bargaining, bonus, incentive, deferred compensation, employee loan and all other employee benefit plans, agreements, programs, policies or other arrangements (including any funding mechanism therefor now in effect or required in the future as a result of the transactions contemplated by this Agreement or otherwise))) with respect to which such Person has any liabilities, direct or indirect, and (c) any agreements or other arrangements which provide benefits upon a termination of employment with such Person or upon a change in control of such Person.
“ Employment Agreement ” means any employment contract, consulting agreement, termination or severance agreement, change of control agreement, non-compete agreement or any other agreement respecting the terms and conditions of employment or payment of compensation, or of a consulting or independent contractor relationship in respect of any current or former officer, employee, consultant or independent contractor.
“ Environmental Laws ” means all Laws relating to protection of human health and the environment (including surface or ground water, drinking water supply, soil, surface or subsurface strata or medium, or ambient air), pollution control and harmful or hazardous materials, including CERCLA.
“ Equity Holders ” means the Common Stockholders, Preferred Stockholders, Phantom Stockholders, Class AB Warrant Holders, Class A-8 Warrant Holders and Common Stock Option Holders, as determined immediately prior to the Effective Time.
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“ Equity Stock ” means Common Stock, Preferred Stock, Phantom Stock, Class AB Warrants, Class A-8 Warrants and Common Stock Options.
“ ERISA ” means the United States Employee Retirement Income Security Act of 1974, as amended, and the rules and regulations promulgated thereunder.
“ ERISA Affiliate ” means any Person (whether incorporated or unincorporated) that together with the Company or any of its Subsidiaries would be deemed a “single employer” within the meaning of Section 414 of the Code.
“ Exchange Act ” means the Securities Exchange Act of 1934, as amended.
“ Financial Statements ” means (a) the audited consolidated balance sheet of the Company and its Subsidiaries as of December 31, 2004 and the audited consolidated statements of income, stockholders’ equity and cash flows of the Company and its Subsidiaries for the 12-month period then ended and (b) the unaudited consolidated balance sheet of the Company and its Subsidiaries as of June 30, 2005 and the unaudited consolidated statements of income, stockholders’ equity and cash flows of the Company and its Subsidiaries for the 6-month period then ended.
“ Food and Drug Laws ” means the United States Federal Food, Drug, and Cosmetic Act of 1938, as amended (21 U.S.C. §§ 301 et seq.) and similar or related Laws relating to medical devices or components of medical devices.
“ Fully Diluted Shares ” means an amount equal to the sum of (a) the total number of shares of Common Stock outstanding immediately prior to the Effective Time, plus (b) the total number of shares of Common Stock that the shares of Preferred Stock outstanding immediately prior to the Effective Time are convertible into at such time pursuant to the Articles of Incorporation, if any plus (c) the total number of shares of Common Stock that all shares of Class AB Preferred Stock issuable upon exercise of the Class AB Warrants outstanding immediately prior to the Effective Time are convertible into at such time pursuant to the Articles of Incorporation, if any, plus (d) the total number of shares of Common Stock that all shares of Class A-8 5% Convertible Preferred Stock issuable upon exercise of the Class A-8 Warrants outstanding immediately prior to the Effective Time are convertible into at such time pursuant to the Articles of Incorporation, if any, plus (e) the total number of shares of Common Stock that all shares of Class A-1 5% Convertible Preferred Stock, Class A-2 5% Convertible Preferred Stock or Class A-7 5% Convertible Preferred Stock associated with the Phantom Stock, as applicable, outstanding immediately prior to the Effective Time would be convertible into at such time pursuant to the Articles of Incorporation, if any, plus (f) the total number of shares of Common Stock that all Common Stock Options outstanding immediately prior to the Effective Time are exercisable into at such time and without any withholding of shares to pay the exercise price or Taxes.
“ GAAP ” means generally accepted accounting principles as applied in the United States of America.
“ Governmental Entity ” means any national, federal, state, provincial, county, municipal or local government, foreign or domestic, or any political subdivision thereof or any court,
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administrative or regulatory agency, department, instrumentality, body or commission or other governmental authority or agency, domestic or foreign.
“ Hazardous Materials ” means any polychlorinated biphenyls, urea-formaldehyde insulation, asbestos, waste, material, pollutant, contaminant, hazardous substance, toxic, ignitable, reactive or corrosive substance, hazardous waste, solid waste, petroleum or petroleum-derived substance or waste, or any constituent of any such substance or waste, the use, storage, handling or disposal of which is in any way governed by, subject to, or could reasonably be expected to give rise to liability under, any applicable Environmental Law.
“ HSR Act ” means the United States Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and the rules and regulations promulgated thereunder.
“ Indebtedness ” means (i) indebtedness for borrowed money, whether secured or unsecured, (ii) obligations under conditional or installment sale or other title retention Contracts relating to purchased property (but not including any earnout obligations), (iii) capital lease obligations and (iv) guarantees of any of the foregoing of another Person.
“ Intellectual Property ” means all intellectual property rights, including: (a) all United States and foreign patents and applications therefor and all reissues, divisionals, renewals, extensions, provisionals, continuations and continuations-in-part thereof; (b) all inventions (whether patentable or not), invention disclosures, improvements, mask works, trade secrets, manufacturing processes, test and qualification processes, designs, schematics, proprietary information, know-how, technology, technical data and customer lists, and all documentation to the extent embodying any of the foregoing throughout the world; (c) all works of authorship (whether copyrightable or not), copyrights, copyright registrations and applications therefor throughout the world; (d) all industrial designs and any registrations and applications therefor throughout the world; (e) all Software; (f) all internet uniform resource locators, domain names, trade names, logos, slogans, designs, trade dress, common law trademarks and service marks, trademark and service mark and trade dress registrations and applications therefor throughout the world; (g) all databases and data collections and all rights therein throughout the world; (h) all moral and economic rights of authors and inventors, however denominated, throughout the world; (i) all rights to obtain renewals, continuations, divisionals or other extensions of legal protections pertaining to any of the foregoing, and (j) all legal actions and rights and remedies at law or in equity for any past, current or future infringement, misappropriation, or other violation of any of the foregoing, including the right to receive all proceeds and damages therefrom.
“ Intellectual Property License Agreements ” means all licenses, contracts and other agreements granting any right to use or practice any rights under any Intellectual Property used or held for use in the business and operations of the Company and its Subsidiaries as currently conducted.
“ Knowledge ” (a) with respect to the Company means the actual knowledge, after reasonable inquiry, of Ron Sparks, Stewart A. Fisher, Daniel Croteau, Gary D. Curtis, Larry J. Czapla, Jeffrey M. Farina, Dan DeSantis, Tim Matthews, and William Howell on the date hereof and (b) with respect to the Purchaser means the actual knowledge, after reasonable inquiry, of Kenneth Freeman, Michael Michelson, Jim Momtazee and Karan Swani on the date hereof.
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“ KRG ” means KRG Capital Partners L.L.C., a Delaware limited liability company, and its Affiliates, as applicable.
“ KRG Management Agreement ” means the Management Agreement, dated as of July 6, 1999, as amended on May 31, 2000, June 30, 2004 and June 9, 2005, between the Company and KRG.
“ Laws ” means all laws, statutes, rules, codes, regulations, restrictions, ordinances, orders, decrees, approvals, directives, judgments, injunctions, writs, awards and decrees of, or issued by, any Governmental Entities.
“ Leased Real Property ” means those parcels of real property or portions thereof which the Company or any of its Subsidiaries is the lessee (together with those fixtures and improvements thereon which are included in the terms of the leases therefor).
“ Licenses ” means all notifications, licenses, permits (including environmental, construction and operation permits), franchises, certificates, approvals, exemptions, classifications, registrations and other similar documents and authorizations issued by any Governmental Entity, and applications therefor.
“ Liens ” mean all mortgages, liens, pledges, security interests, charges, claims, restrictions and encumbrances of any nature whatsoever.
“ Ordinary Course ” means the ordinary course of business consistent with past practice of the Company and its Subsidiaries.
“ Owned Real Property ” means parcels of real property owned by the Company or any of its Subsidiaries (together with all fixtures and improvements thereon).
“ Per Class AB Warrant Closing Merger Consideration ” means, with respect to each Class AB Warrant, the amount, if any, by which (a) (i) the Per Share Equity Stock Closing Merger Consideration multiplied by (ii) the number of shares of Common Stock for which the shares of Class AB Preferred Stock issuable upon exercise of such Class AB Warrant would be convertible into immediately prior to the Effective Time pursuant to the Class AB Warrant Agreement and the Articles of Incorporation, if any, exceeds (b) the portion of the Aggregate Class AB Warrant Exercise Price relating to such Class AB Warrant.
“ Per Class A-8 Warrant Closing Merger Consideration ” means, with respect to each Class A-8 Warrant, the amount, if any, by which (a) (i) the Per Share Equity Stock Closing Merger Consideration multiplied by (ii) the number of shares of Common Stock for which the shares of Class A-8 5% Convertible Preferred Stock issuable upon exercise of such Class A-8 Warrant would be convertible into immediately prior to the Effective Time pursuant to the Class A-8 Warrant Agreements and the Articles of Incorporation, if any, exceeds (b) the portion of the Aggregate Class A-8 Warrant Exercise Price relating to such Class A-8 Warrant.
“ Per Common Stock Option Closing Merger Consideration ” means, with respect to each Common Stock Option the amount, if any, by which (a) (i) the Per Share Equity Stock Closing Merger Consideration multiplied by (ii) the number of shares of Common Stock for which such
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Common Stock Option is exercisable into immediately prior to the Effective Time pursuant to the Stock Option Plan exceeds (b) (i) the per share exercise price of such Common Stock Option multiplied by (ii) the number of shares of Common Stock for which such Common Stock Option is exercisable into immediately prior to the Effective Time pursuant to the Stock Option Plan.
“ Per Share Equity Stock Closing Merger Consideration ” means an amount equal to (a) (i) the Merger Consideration plus (ii) the Aggregate Common Stock Option Exercise Price plus (iii) the Aggregate Class AB Warrant Exercise Price plus (iv) the Aggregate Class A-8 Warrant Exercise Price minus (v) the Preferred Dividend Amount minus (vi) the Class A-8 Warrant Dividend Amount divided by (b) the number of Fully Diluted Shares.
“ Per Share Phantom Stock Closing Merger Consideration ” means an amount equal to (a) the number of shares of Common Stock that each share of Class A-1 5% Convertible Preferred Stock, Class A-2 5% Convertible Preferred Stock or Class A-7 5% Convertible Preferred Stock associated with each such share of Phantom Stock, as applicable, is convertible into immediately prior to the Effective Time pursuant to the Articles of Incorporation multiplied by (b) the Per Share Equity Stock Closing Merger Consideration.
“ Permitted Liens ” means (a) Liens for Taxes not yet due and payable; (b) any interest or title of a lessor or sublessor or statutory Liens of landlords with respect to Leased Real Property; (c) Liens of carriers, warehousemen, mechanics, materialmen, and repairmen incurred in the Ordinary Course and not yet delinquent; (d) in the case of Real Property, in addition to items (a) and (b), zoning, building, or other restrictions, variances, covenants, rights of way, encumbrances, easements and other minor irregularities in title that were not incurred in connection with any Indebtedness, and do not, individually or in the aggregate, materially adversely affect the value or use of, or access to, such Real Property for its current purposes; (e) Liens securing the Closing Date Indebtedness as disclosed in Schedule 4.7 (which Liens shall be terminated on the Closing Date upon payment in full of the Closing Date Indebtedness); (f) in the case of Intellectual Property, third party license agreements entered into in the Ordinary Course; (g) Liens incurred in connection with capital lease obligations of the Company or any of its Subsidiaries; (h) Liens incurred in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other types of social security, or to secure the performance of tenders, statutory obligations, surety and appeal bonds, bids, leases, government contracts, trade contracts, performance and return of money bonds and other similar obligations (exclusive of obligations for the payment of borrowed money), so long as no foreclosure, sale or similar proceedings have been commenced with respect to any portion of the assets of the Company or any of its Subsidiaries on account thereof; and (i) Liens incurred in connection with consigned goods or purchase money indebtedness (including indebtedness of the Company and its Subsidiaries for industrial revenue bonds or other similar governmental and municipal bonds) incurred in the Ordinary Course to provide all or a portion of the purchase price of an asset.
“ Person ” means, any individual, corporation, partnership, joint venture, association, limited liability company, trust, unincorporated organization, other entity or Governmental Entity.
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“ Phantom Stock ” means the Company’s Phantom Stock associated with the Class A-1 5% Convertible Preferred Stock, the Company’s Phantom Stock associated with the Class A-2 5% Convertible Preferred Stock and the Company’s Phantom Stock associated with the Class A-7 5% Convertible Preferred Stock.
“ Phantom Stock Plans ” means the Company’s Star Guide Phantom Stock Plan adopted January 1, 2000, the 2000 Employee Phantom Stock Plan adopted January 2001 and the Venusa 2003 Earn-Out Plan adopted February 28, 2003.
“ Phantom Stockholders ” means the holders of any Phantom Stock outstanding immediately prior to the Effective Time.
“ Preferred Dividend Amount ” means the aggregate amount of accrued and unpaid dividends related to the Preferred Dividend Shares as of immediately prior to the Effective Time pursuant to the Articles of Incorporation and the Phantom Stock Plans.
“ Preferred Dividend Shares ” means Class A-1 5% Convertible Preferred Stock, Class A-2 5% Convertible Preferred Stock, Class A-3 5% Convertible Preferred Stock, Class A-4 5% Convertible Preferred Stock, Class A-5 5% Convertible Preferred Stock, Class A-6 5% Convertible Preferred Stock, Class A-7 5% Convertible Preferred Stock, Class A-8 5% Convertible Preferred Stock, Class A-9 5% Convertible Preferred Stock and the Phantom Stock.
“ Preferred Dividend Stockholders ” means the holders of any Preferred Dividend Shares outstanding immediately prior to the Effective Time.
“ Preferred Stock ” means Class A-1 5% Convertible Preferred Stock, Class A-2 5% Convertible Preferred Stock, Class A-3 5% Convertible Preferred Stock, Class A-4 5% Convertible Preferred Stock, Class A-5 5% Convertible Preferred Stock, Class A-6 5% Convertible Preferred Stock, Class A-7 5% Convertible Preferred Stock, Class A-8 5% Convertible Preferred Stock, Class A-9 5% Convertible Preferred Stock, Class AA Convertible Preferred Stock and Class AB Convertible Preferred Stock.
“ Preferred Stockholders ” means the holders of any Preferred Stock outstanding immediately prior to the Effective Time.
“ Purchaser Ancillary Documents ” means any certificate, agreement, document or other instrument, other than this Agreement, to be executed and delivered by the Purchaser in connection with the transactions contemplated hereby.
“ Purchaser Material Adverse Effect ” means any state of facts, change, event, effect or occurrence that is materially adverse to the ability of Purchaser to satisfy its obligations under this Agreement and consummate the transactions contemplated hereby.
“ Real Property ” means the Leased Real Property and the Owned Real Property.
“ Registered Intellectual Property ” means all United States and foreign: (a) patents and patent applications (including provisional applications); (b) registered trademarks and service marks, applications to register trademarks and service marks, registered and applications to
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register trade dress, intent-to-use trademark or service mark applications, or other registrations or applications for trademarks and service marks and trade dress; (c) registered copyrights and applications for copyright registration; (d) domain name registrations; and (e) any other registrations or applications to register Intellectual Property anywhere in the world.
“ Release ” means, with respect to any Hazardous Material, any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping or disposing into any surface or ground water, drinking water supply, soil, surface or subsurface strata or medium, or the ambient air.
“ Restricted Stock ” means a share of Common Stock awarded pursuant and subject to the restrictions and limitations set forth in Section 12 of the Stock Option Plan (whether vested or unvested).
“ Securities Act ” means the Securities Act of 1933, as amended.
“ Shareholders’ Agreement ” means the Amended and Restated Shareholders’ Agreement, dated as of June 30, 2004, among the Company and the stockholders listed on the signature pages thereto.
“ Software ” means all computer software programs, together with any error corrections, updates, modifications, or enhancements thereto, in both machine-readable form and human-readable form.
“ Stock Option Plan ” means the Company’s Amended and Restated 2000 Stock Option and Incentive Plan.
“ Subsidiary ” means any Person of which the Company (or other specified Person) shall own directly or indirectly through a Subsidiary, a nominee arrangement or otherwise at least a majority of the outstanding capital stock (or other shares of beneficial interest) entitled to vote generally or otherwise have the power to elect a majority of the board of directors or similar governing body or the legal power to direct the business or policies of such Person.
“ Tax Return ” means any report, return, declaration or other information required to be supplied to a Governmental Entity in connection with Taxes, including estimated returns and reports of every kind with respect to Taxes and any amendment thereto.
“ Taxes ” means all taxes, assessments, charges, duties, fees, levies and other governmental charges, including income, franchise, capital stock, real property, personal property, tangible, withholding, employment, payroll, social security, social contribution, unemployment compensation, disability, transfer, sales, use, excise, gross receipts, value-added and all other taxes of any kind for which the Company or any of its Subsidiaries may have any liability imposed by any Governmental Entity, whether disputed or not, and any charges, interest, additions to tax, or penalties imposed by any Governmental Entity.
“ Transaction Expenses ” means the fees and expenses described on Schedule 1.1(c) .
“ Treasury Regulations ” means the Income Tax Regulations promulgated under the Code.
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Section 1.2 Construction . Unless the context of this Agreement otherwise clearly requires, (a) references to the plural include the singular, and references to the singular include the plural, (b) references to one gender include the other gender, (c) the words “include,” “includes” and “including” do not limit the preceding terms or words and shall be deemed to be followed by the words “without limitation” or words having similar import, (d) the terms “hereof,” “herein,” “hereunder,” “hereto” and similar terms in this Agreement refer to this Agreement as a whole and not to any particular provision of this Agreement, (e) the terms “day” and “days” mean and refer to calendar day(s) and (f) the terms “year” and “years” mean and refer to calendar year(s). Unless otherwise set forth herein, references in this Agreement to (i) any document, instrument or agreement (including this Agreement) includes and incorporates all exhibits, schedules and other attachments thereto and (ii) a particular Law means such Law as amended, modified, supplemented or succeeded, from time to time and in effect at any given time. All Article, Section, Exhibit and Schedule references herein are to Articles, Sections, Exhibits and Schedules of this Agreement, unless otherwise specified. This Agreement shall not be construed as if prepared by one of the Parties, but rather according to its fair meaning as a whole, as if all Parties had prepared it.
Section 1.3 Other Definitions . Each of the following terms is defined in the Section set forth opposite such term:
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Section 1.4 Accounting Terms . All accounting terms not specifically defined herein shall be construed in accordance with GAAP.
ARTICLE IIMERGERSection 2.1 Agreement to Merge . Subject to the terms and conditions of this Agreement, on the Closing Date, Merger Sub shall, in accordance with the provisions of the MGCL, merge with and into the Company at the Effective Time. The Parties shall cause articles of merger (the “ Articles of Merger ”) to be properly executed and filed for record on the Closing Date with the State Department of Assessments and Taxation of the State of Maryland. The “ Effective Time ” shall be the time at which the Articles of Merger are duly accepted for record by the State Department of Assessments and Taxation of the State of Maryland or such later time as may be specified in the Articles of Merger.
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Section 2.2 Effect of the Merger . At the Effective Time, the effect of the Merger shall be as provided in this Agreement and the applicable provisions of the MGCL, including Section 3-114 of the MGCL. Subject to the foregoing, from and after the Effective Time, the Surviving Corporation (as defined below) shall possess all assets, rights, privileges, immunities, powers and franchises and be subject to all the obligations, restrictions, disabilities, liabilities, debts and duties of the Company and Merger Sub. From and after the Effective Time, the separate corporate existence of Merger Sub shall cease and the Company shall continue as the surviving corporation in the Merger (the Company, as the surviving corporation in the Merger, sometimes being referred to herein as the “ Surviving Corporation ”).
Section 2.3 Articles of Incorporation and Bylaws . Subject to Section 6.11 hereof, the Articles of Incorporation and bylaws of the Company in effect immediately prior to the Effective Time shall be the articles of incorporation and bylaws of the Surviving Corporation, until the same shall thereafter be altered, amended or repealed in accordance with applicable Law.
Section 2.4 Directors and Officers . The directors of Merger Sub immediately prior to the Effective Time shall become, as of the Effective Time, and shall remain the directors of the Surviving Corporation after the Merger until their successors are duly elected or appointed and qualify or until their earlier death, resignation or removal. The officers of the Company immediately prior to the Effective Time shall become, as of the Effective Time, and shall remain the officers of the Surviving Corporation after the Merger until their successors are duly elected or appointed and qualify or until their earlier death, resignation or removal.
ARTICLE IIIMERGER CONSIDERATION; ADJUSTMENTSSection 3.1 Merger Consideration . The aggregate cash amount to be paid by the Purchaser at Closing (the “ Merger Consideration ”) shall be an amount equal to (a) One Billion Two Hundred Seventy Million Dollars ($1,270,000,000), plus (b) the amount of the Closing Cash, if any, calculated in accordance with Section 3.7 of this Agreement, minus (c) the aggregate amount of Transaction Expenses, minus (d) the Closing Date Indebtedness; provided, however, there shall be no duplication in any of the reductions.
Section 3.2 Closing Certificate and Closing Date Expense Certificate .
(a) Not less than 1 Business Day prior to the Closing Date, the Company shall deliver to the Purchaser a certificate (the “ Closing Certificate ”), signed by the Chief Financial Officer or the Chief Executive Officer of the Company (on behalf and in the name of the Company), which sets forth in reasonable detail the name of each Equity Holder, the portion of the Merger Consideration to be paid to such Equity Holder at the Closing pursuant to Section 3.4 of this Agreement, the number of Fully Diluted Shares (including the numbers attributable to the different classes of Equity Stock), the Preferred Dividend Amount, the Class A-8 Warrant Dividend Amount, the Aggregate Common Stock Option Exercise Price, the Aggregate Class AB Warrant Exercise Price, the Aggregate Class A-8 Warrant Exercise Price, the Per Share Equity Stock Closing Merger Consideration, the Per Share Phantom Stock Closing Merger Consideration, the Per Common Stock Option Closing Merger Consideration, the Per Class AB Warrant Closing
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Merger Consideration, the Per Class A-8 Warrant Closing Merger Consideration, and the amounts payable by the Purchaser to the Paying Agent pursuant to Sections 3.3(a)-(g) of this Agreement. The Closing Certificate shall also certify that the portion of the Merger Consideration paid to each Equity Holder at Closing pursuant to Section 3.4 set forth therein has been determined in accordance with this Agreement, the Articles of Incorporation, the Bylaws and the governing terms of all of the Equity Stock of the Company.(b) Not less than 2 Business Days prior to the Closing Date, the Company shall deliver to the Purchaser a statement from the Company (the “ Closing Date Expense Statement ”) signed by the Chief Financial Officer or the Chief Executive Officer (on behalf and in the name of the Company) which sets forth, by payee, the aggregate amount of the Transaction Expenses.Section 3.3 Payment of Merger Consideration . On the Closing Date, the Purchaser shall pay to the Paying Agent the Merger Consideration, which shall be distributed among the holders of Equity Stock without duplication by the Paying Agent as follows and in accordance with Section 3.5
(a) payment to the Preferred Dividend Stockholders of the Preferred Dividend Amount.(b) payment to the Preferred Stockholders of an amount equal to the Per Share Equity Stock Closing Merger Consideration multiplied by the total number of shares of Common Stock into which the total number of shares of Preferred Stock outstanding immediately prior to the Effective Time are convertible at such time pursuant to the Articles of Incorporation.(c) payment to the Phantom Stockholders of an amount equal to the Per Share Phantom Stock Closing Merger Consideration multiplied by the number of shares of Phantom Stock outstanding immediately prior to the Effective Time.(d) payment to the Common Stockholders of an amount equal to the Per Share Equity Stock Closing Merger Consideration multiplied by the number of shares of Common Stock outstanding immediately prior to the Effective Time.(e) payment to the Common Stock Option Holders of the aggregate Per Common Stock Option Closing Merger Consideration payable with respect to all Common Stock Options outstanding and exercisable immediately prior to the Effective Time.(f) payment to the Class AB Warrant Holders of the aggregate Per Class AB Warrant Closing Merger Consideration payable with respect to all Class AB Warrants outstanding and exercisable immediately prior to the Effective Time.(g) payment to the Class A-8 Warrant Holders of the Class A-8 Warrant Dividend Amount and the aggregate Per Class A-8 Warrant Closing Merger
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Consideration payable with respect to all Class A-8 Warrants outstanding and exercisable immediately prior to the Effective Time.The amount payable to each Equity Holder shall be determined in accordance with Section 3.4. No interest shall accrue or be paid on the amounts payable pursuant to this Article III.
Section 3.4 Effect on Stock . As of the Effective Time, by virtue of the Merger and without any action on the part of any Equity Holder:
(a) Subject to the other provisions of this Section 3.4,(i) Each issued and outstanding share of Preferred Stock shall be converted into the right to receive, upon the surrender of the certificate formerly representing such share of Preferred Stock, an amount equal to the number of shares of Common Stock that each such share of Preferred Stock is convertible into immediately prior to the Effective Time pursuant to the Articles of Incorporation multiplied by (2) the Per Share Equity Stock Closing Merger Consideration.(ii) Each issued and outstanding share of Phantom Stock shall be converted into the right to receive an amount equal to the Per Share Phantom Stock Closing Merger Consideration allocable to such share of Phantom Stock in accordance with this Agreement and the Phantom Stock Plans (and subject to any applicable withholding for any taxes imposed thereon).(iii) Each issued and outstanding share of Common Stock shall be converted into the right to receive, upon the surrender of the certificate formerly representing such share of Common Stock, an amount equal to the Per Share Equity Stock Closing Merger Consideration.(iv) Each issued and outstanding Common Stock Option (whether vested or unvested) shall be deemed to be cancelled and converted into the right to receive an amount equal to the Per Common Stock Option Closing Merger Consideration allocable to such Common Stock Option in accordance with this Agreement, the Stock Option Plan and the Articles of Incorporation (and subject to any applicable withholding for any taxes imposed thereon).(v) Each issued and outstanding Class AB Warrant shall be converted into the right to receive an amount equal to the Per Class AB Warrant Closing Merger Consideration allocable to such Class AB Warrant.(vi) Each issued and outstanding Class A-8 Warrant shall be converted into the right to receive an amount equal to the Per Class A-8 Warrant Closing Merger Consideration allocable to such Class A-8 Warrant.
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(vii) Each share of Company Stock held by the Company shall be canceled and extinguished without any conversion thereof and no payment shall be made with respect thereto.(viii) Each share of Company Stock held by any Subsidiary shall remain outstanding and no payment shall be made with respect thereto.(ix) Each share of Company Stock held by Purchaser or Merger Sub shall be cancelled and no payment shall be made with respect thereto.(b) Each share of common stock of Merger Sub issued and outstanding immediately prior to the Effective Time of the Merger will be converted into one share of Common Stock of the Surviving Corporation, and such Common Stock of the Surviving Corporation issued on that conversion will constitute all of the issued and outstanding shares of capital stock of the Surviving Corporation immediately following the Effective Time.Section 3.5 Exchange of Certificates .
(a) Prior to the Effective Time, Purchaser shall (i) appoint Corporate Stock Transfer or such other Person (reasonably acceptable to Purchaser) as shall hereafter be designated in writing by the Company to serve as the Paying Agent (the “ Paying Agent ”), and (ii) enter into a paying agent agreement, in form and substance reasonably acceptable to the Company, with the Paying Agent for the payment of the Merger Consideration in accordance with this Article III. At the Effective Time, Purchaser shall deposit, or cause the Surviving Corporation to deposit, with the Paying Agent, for the benefit of the holders of shares of Equity Stock, cash in an amount sufficient to pay the aggregate Merger Consideration required to be paid pursuant to Section 3.1 (such cash being hereinafter referred to as the “ Exchange Fund ”). The Exchange Fund shall not be used for any other purpose other than as set forth herein.(b) Promptly after the Effective Time, Purchaser shall cause the Paying Agent to mail to each holder of Equity Stock as of the Effective Time whose shares or other interests were converted pursuant to Section 3.4(a) into the right to receive the Merger Consideration: (i) a letter of transmittal (a “ Letter of Transmittal ”) (which shall specify that delivery shall be effected, and risk of loss and title to the Equity Stock shall pass, only upon delivery of the certificate or certificates, if any, (the “ Certificates ”) which immediately prior to the Effective Time represented Equity Stock to the Paying Agent and shall be in such form and have such other provisions not inconsistent with this Agreement as Purchaser and the Surviving Corporation shall reasonably specify) and (ii) instructions for use in effecting the surrender of the Equity Stock in exchange for the Merger Consideration to which the holder of such Equity Stock is entitled pursuant to Section 3.4 (without limiting the effect of Section 3.5(f)). Prior to receiving any portion of the Merger Consideration, each holder of Equity Stock shall have delivered to the Paying Agent (i) a properly completed and duly executed Letter of Transmittal and (ii) the Certificates, if any, held of record by such holder. Upon surrender of a Certificate to the Paying Agent, together with such Letter of Transmittal, duly executed, the holder
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of such Certificate shall be entitled to receive in exchange therefor the consideration into which the shares represented by such Certificate shall have been converted pursuant to Section 3.4, and the Certificate so surrendered shall be canceled. If the portion of the Merger Consideration is to be paid to a Person other than the Person in whose name the Certificate so surrendered is registered, it shall be a condition of exchange that such Certificate shall be properly endorsed or otherwise in proper form for transfer and that the Person requesting such exchange shall pay any transfer or other Taxes required by reason of the exchange to a Person other than the registered holder of such Certificate or establish to the reasonable satisfaction of the Company that such Tax has been paid or is not applicable. Until surrendered as contemplated by this Section 3.5, each Certificate shall be deemed as of the Effective Time of the Merger to represent only the right to receive, upon surrender of such Certificate in accordance with this Section 3.5(b), the consideration into which the shares represented by such Certificate shall have been converted pursuant to Section 3.4(a). If any certificate evidencing any share of Company Stock shall have been lost, stolen or destroyed, the Paying Agent may, in its discretion and as a condition precedent to the issuance of any consideration pursuant to Section 3.3, require the owner of such lost, stolen or destroyed certificate to provide an appropriate affidavit and an appropriate indemnification undertaking, in form and substance reasonably acceptable to Purchaser, with respect to such certificate.(c) All Merger Consideration paid upon the surrender of Certificates in accordance with the terms of this Article III shall be deemed to have been exchanged and paid in full satisfaction of all rights pertaining to the shares previously represented by such Certificates and there shall be no further registration of transfers on the stock transfer books of the Surviving Corporation of shares of Preferred Stock and Common Stock that were issued and outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Corporation or the Paying Agent for any reason, they shall be canceled and exchanged for the portion of the Merger Consideration as provided in this Article III.(d) Any portion of the Exchange Fund which remains undistributed to the holders of Equity Stock twelve (12) months after the Effective Time shall, at the request of the Surviving Corporation, be delivered to the Surviving Corporation or otherwise on the instruction of the Surviving Corporation, and any holders of Equity Stock who have not surrendered the Certificates associated with such Equity Stock, if any, in compliance with this Section 3.5 shall after such delivery to the Surviving Corporation look only to the Surviving Corporation (subject to abandoned property, escheat and similar laws) for payment, as general creditors thereof, of their claim for the Merger Consideration, without interest, to which such holders may be entitled pursuant to Section 3.4. Any such portion of the Exchange Fund remaining unclaimed by holders of Equity Stock immediately prior to such time as such amounts would otherwise escheat to or become property of any Governmental Entity shall, to the extent permitted by law, become the property of Purchaser free and clear of any claims or interest of any Person previously entitled thereto.(e) Notwithstanding anything to the contrary in this Section 3.5, neither the Paying Agent, the Company, the Purchaser, the Surviving Corporation nor any party
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hereto shall be liable to any Person in respect of any Merger Consideration for any amount properly delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law.(f) The Paying Agent, the Purchaser, the Company or the Surviving Corporation (as appropriate) shall be entitled to deduct and withhold from consideration otherwise payable pursuant to this Agreement to any Equity Holder such amounts as are required to be deducted and withheld with respect to the making of such payment under the Code, or any provision of state, local or foreign Tax Law. To the extent that amounts are so withheld by the Paying Agent, the Purchaser, the Company or the Surviving Corporation, as the case may be, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the Equity Holder in respect of which such deduction and withholding was made by the Paying Agent, the Purchaser, the Company or the Surviving Corporation, as the case may be.Section 3.6 Payment of Other Amounts Payable at Closing . On the Closing Date, the Purchaser shall:
(a) on behalf of the Company, pay to such account or accounts of the lenders specified in, and in accordance with, the Payoff Letters, delivered to Purchaser at least 2 Business Days prior to the Closing Date, the aggregate amount of the Closing Date Indebtedness (other than amounts paid pursuant to clause (b) below and the amount of any untendered 10% Senior Subordinated Notes if the Debt Offer is being consummated);(b) on behalf of the Company, pay pursuant to the terms of the Debt Offer, the aggregate amount necessary to consummate the Debt Offer;(c) on behalf of the Company, pay to such account or accounts of the parties to which Transaction Expenses are owed as the Company specifies to the Purchaser in writing at least 2 Business Days prior to the Closing Date, the aggregate amount of the Transaction Expenses, to the extent not paid prior to the Closing Date; and(d) on behalf of the Company, pay to such account or accounts of the insurers of the policy referred to in Section 6.11(b) as the Company specifies to the Purchaser in writing at least 2 Business Days prior to the Closing Date, to the extent not paid prior to the Closing Date, the aggregate amount of the D&O Tail Premium.Section 3.7 Closing Cash Calculation . No later than 3 days prior to the Closing Date, the Company shall cause to be prepared and delivered to the Purchaser a calculation of the Closing Cash which calculation shall be prepared in good faith based on the books and records of the Company. The Company shall provide the Purchaser and its Representatives access to such books and records as is reasonably requested by them to verify the calculation of the Closing Cash. The Company shall only make appropriate revisions to the calculation of the Closing Cash as are mutually agreed upon by the Purchaser and the Company.
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Section 3.8 Letters of Credit . At the Closing, the Purchaser shall cause the Company to remain an obligor on any letters of credit or surety bonds of the Company existing immediately prior to Closing (“ Company Letters of Credit and Surety Bonds ”). Notwithstanding anything to the contrary provided in this Agreement, the Parties hereby acknowledge that the Company Letters of Credit and Surety Bonds (to the extent not drawn upon as of the Closing) shall not be deemed to be a liability of the Company for purposes of this Agreement.
(a) Provided that this Agreement shall not have been terminated in accordance with Section 9.1, the Company shall, upon receiving any request by Purchaser to do so, promptly commence or cause to be commenced an offer to purchase, and related consent solicitations (the “ Consent Solicitation ”) with respect to all of the outstanding aggregate principal amount of Accellent Corp.’s 10% Senior Subordinated Notes due 2012 (the “ 10% Senior Subordinated Notes ”) on price terms that are acceptable to Purchaser and such other customary terms and conditions as are reasonably acceptable to Purchaser (including the related consent solicitation, the “ Debt Offer ”). Such Consent Solicitation shall seek to eliminate substantially all the restrictive covenants contained therein (as reasonably agreed to by the Company and the Purchaser and in a manner consistent with the provisions set forth on Schedule 3.9). The Company shall waive any of the conditions to the Debt Offer as may be reasonably requested by Purchaser (other than the condition that the Debt Offer is conditioned on the Closing of the Merger and the transactions contemplated hereby) and shall not, without the consent of Purchaser, waive any condition to the Debt Offer or make any changes to the terms and conditions of the Debt Offer other than as agreed between Purchaser and the Company).
(b) The Company covenants and agrees that, immediately following the consent expiration date, assuming the requisite consents are received, it shall cause Accellent Corp. to execute a supplemental indenture to the indenture governing the 10% Senior Subordinated Notes, which supplemental indenture shall implement the amendments set forth in the Offer Documents (as hereinafter defined) and shall become operative immediately prior to the Effective Time, subject to the terms and conditions of this Agreement (including the conditions to the Debt Offer). Concurrent with the Closing, Purchaser shall cause the Company to accept for payment and thereafter promptly pay for properly tendered and not withdrawn 10% Senior Subordinated Notes. Unless otherwise agreed by the Company, no Debt Offer shall be required to close prior to the Closing.
(c) Promptly after the date of this Agreement, the Company shall prepare or cause to be prepared all necessary and appropriate documentation in connection with the Debt Offer, including the offer to purchase, related letter of transmittal and other related documents (collectively, the “ Offer Documents ”). Purchaser and the Company shall cooperate with each other in the preparation of the Offer Documents. All mailings to the holders of the 10% Senior Subordinated Notes in connection with the Debt Offer shall be subject to the prior review and comment by the Company and Purchaser and shall be reasonably acceptable to each of them. If at any time prior to the completion of the Debt Offer any information in the Offer Documents should be discovered by the Company or Purchaser which should be set forth in an amendment or supplement to the Offer Documents, so that the Offer Documents shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or
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necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading, the party that discovers such information shall promptly notify the other party, and an appropriate amendment or supplement describing such information shall be disseminated to the holders of the 10% Senior Subordinated Notes. Notwithstanding anything to the contrary in this Section 3.9, the Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other applicable Law to the extent such Laws are applicable in connection with the Debt Offer. To the extent that the provisions of any applicable Law conflict with this Section 3.9, the Company shall comply with the applicable Law and shall not be deemed to have breached its obligations hereunder by such compliance.
(d) In the event that this Agreement is terminated pursuant to Section 9.1 other than as a result of a breach of this Agreement by the Company, then the Purchaser shall promptly reimburse the Company for any reasonable out-of-pocket costs, fees and expenses incurred by the Company or its Subsidiaries in connection with the Debt Offer and shall indemnify the Company for any liabilities incurred by the Company pursuant to the Debt Offer, except to the extent that the Company’s actions are inconsistent with the instructions of Purchaser.
ARTICLE IVREPRESENTATIONS AND WARRANTIES OF THE COMPANYExcept as set forth in the written disclosure schedules delivered by the Company to the Purchaser in connection with the execution and delivery of this Agreement (the “ Company Disclosure Schedules ”), it being acknowledged and agreed by the Purchaser that any matter set forth in any schedule, section or subsection of the Company Disclosure Schedules shall be deemed to be a disclosure for all purposes of this Agreement and all other schedules, sections or subsections of the Company Disclosure Schedules to which such matter could reasonably be expected to be pertinent (to the extent such disclosure sets forth on its face facts in sufficient detail so that the relevance of such disclosure is reasonably apparent to a reader of such disclosure), but shall expressly not be deemed to constitute an admission by the Company or any of its Subsidiaries, or otherwise imply, that any such matter rises to the level of a Company Material Adverse Effect or is otherwise material for purposes of this Agreement or the Company Disclosure Schedules, the Company represents and warrants to the Purchaser as follows as of the date hereof and the Closing Date:
Section 4.1 Organization . The Company and each of its Subsidiaries is a corporation or other entity duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation or organization. The Company and each of its Subsidiaries has all requisite corporate power and corporate authority and all material licenses, permits and authorizations necessary to own, lease and operate its properties and assets and to carry on its business as now being conducted. The Company and each of its Subsidiaries is duly qualified or licensed to transact business as a foreign corporation or other organization, as applicable, and is in good standing in each other jurisdiction in which the ownership or leasing of its properties or assets or the conduct of its business requires such qualification, except where the failure to so qualify, be licensed or to be in good standing has not had and would not, individually or in the aggregate, reasonably be expected to result in a Company Material Adverse Effect. The Company has heretofore made available to the Purchaser correct and complete copies of (i) the
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charter, bylaws, limited liability company agreement, partnership agreement or other similar governing documents of the Company and each of its Subsidiaries as currently in effect and all amendments thereto or restatements thereof and (ii) the corporate or other organizational record books, as applicable, with respect to actions taken by their stockholders and boards of directors or other governing bodies, as applicable. The minute books of the Company and its Subsidiaries include copies of minutes of all meetings of the directors or stockholders of the Company and its Subsidiaries held on or after September 30, 2003 and complete and accurate copies of all resolutions passed or other actions taken by the boards of and the stockholders of the Company and its Subsidiaries on or after September 30, 2003.
(a) The Company has the corporate right, power and capacity to execute and deliver this Agreement and each Company Ancillary Document and to perform its obligations hereunder and thereunder and to consummate the transactions contemplated hereby and thereby, subject in the case of the consummation of the Merger to the affirmative vote of a majority of all of the votes entitled to be cast on the approval of the Merger in accordance with the MGCL and the Articles of Incorporation (the “ Company Stockholder Approval ”). This Agreement has been and, as of the Closing Date, the Company Ancillary Documents shall be, duly executed and delivered by the Company and do or shall, as the case may be, assuming due authorization, execution and delivery of this Agreement by Purchaser and the Company Ancillary Documents by the Purchaser and Merger Sub, if they are a party to such agreement, constitute the valid and binding agreements of the Company, enforceable against the Company in accordance with their respective terms, except as such enforceability (i) may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar Laws, now or hereafter in effect, affecting or relating to enforcement of creditors’ rights generally, and (ii) is subject to general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity).(b) At a meeting duly called and held, the Board of Directors of the Company in accordance with the applicable provisions of the MGCL, the Articles of Incorporation, the Bylaws and other governing documents of the Company (i) determined that the Merger and the transactions contemplated hereby on substantially the terms and subject to the conditions set forth in this Agreement are advisable and fair to and in the best interests of the Company and its stockholders, (ii) authorized, approved and adopted the Merger and the transactions contemplated hereby on the terms and subject to the conditions set forth in this Agreement, (iii) resolved (subject to Section 6.4(d)) to recommend that the Company’s stockholders vote for the approval and adoption of the Merger and the transactions contemplated hereby on the terms and subject to the conditions set forth in this Agreement and (iv) directed that the Merger, on the terms and subject to the conditions set forth in this Agreement, be submitted for consideration at a special meeting of the Company’s stockholders in accordance with Section 6.2. The actions of the Board of Directors of the Company referred to in this Section 4.2(b), which have been taken on or prior to the date hereof, and the Company Stockholder Approval constitute the only corporate or stockholder action on the part of the Company required to approve, authorize and adopt the Merger, this Agreement and the transactions
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contemplated hereby under the MGCL, the Articles of Incorporation, the Bylaws and other governing documents of the Company.Section 4.3 Capitalization . (a) Schedule 4.3(a) accurately and completely sets forth the capital structure of the Company and each of its Subsidiaries, as of the date hereof, including the number of shares of capital stock or other equity interests of the Company and each of its Subsidiaries which are authorized and which are issued and outstanding. All of the issued and outstanding shares of capital stock or other equity interests of the Company and each of its Subsidiaries are duly authorized, validly issued, fully paid and nonassessable, free and clear of any preemptive rights other than those set forth on Schedule 4.3(a) , and are held of record by the Persons and in the amounts set forth on Schedule 4.3(a) . Schedule 4.3(a) sets forth a list of all outstanding options, restricted stock and phantom stock relating to the capital stock or other equity interests of the Company or any of its Subsidiaries, including, with respect to each award of such options, restricted stock and phantom stock, the name of the applicable Equity Holder, the exercise price (if applicable), and the number and kind of shares of capital stock or other equity interests subject to such award. Except as disclosed on Schedule 4.3(a) : (i) no shares of capital stock or other equity interests of the Company or any of its Subsidiaries are reserved for issuance or are held as treasury shares or are held by any Subsidiary of the Company; (ii) there are no outstanding or authorized options, preferred stock, restricted stock, phantom stock, warrants, rights, calls, commitments, subscriptions, agreements, obligations, convertible or exchangeable securities or other plans or commitments, contingent or otherwise, relating to the capital stock or other equity interests of the Company or any of its Subsidiaries other than as contemplated by this Agreement and (iii) there are no outstanding Contracts or other agreements of the Company or any of its Subsidiaries or to the Knowledge of the Company, the Equity Holders or any other Person to purchase, redeem or otherwise acquire any outstanding shares of capital stock or other equity interests of the Company or any of its Subsidiaries, or securities or obligations of any kind convertible into any shares of the capital stock or other equity interests of the Company or any of its Subsidiaries other than pursuant to this Agreement or the Voting Agreement.
(b) Schedule 4.3(b) sets forth a true and complete list of all Indebtedness for which the Company or any of its Subsidiaries is liable or responsible as of the date hereof. The Company has heretofore delivered or made available to Purchaser accurate or complete copies of each Contract governing such Indebtedness.
Section 4.4 Subsidiaries . Schedule 4.4 lists each Subsidiary of the Company. Except as set forth on Schedule 4.4 , the Company owns (beneficially and as of record), directly or indirectly through one or more Subsidiaries, all of the issued and outstanding capital stock or other equity or other ownership interests of each Subsidiary, free and clear of all Liens other than Liens related to the Closing Date Indebtedness and limitations imposed by federal and state securities Laws. Except as set forth on Schedule 4.4 , neither the Company nor any of its Subsidiaries owns, directly or indirectly, any capital stock or other equities, securities or interests in any other corporation or in any other Person or other entity.
Section 4.5 Absence of Restrictions and Conflicts . The execution, delivery and performance of this Agreement and the Company Ancillary Documents, the consummation of the transactions contemplated hereby and thereby, and the compliance with the terms and
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conditions hereof and thereof, do not or will not (as the case may be), with the passing of time or the giving of notice or both, violate or conflict with, constitute a breach of or default under, or result in the loss of any benefit under (a) any term or provision of the charter, bylaws, limited liability company agreement, partnership agreement or other similar governing documents of the Company or any of its Subsidiaries, (b) except as indicated on Schedule 4.13(a) , any Contract or other instrument applicable to the Company or any of its Subsidiaries or (c) to the Knowledge of the Company, any Law applicable to the Company or any of its Subsidiaries, other than with respect to clauses (b) and (c) above any violation, conflict, breach, default or loss that would not, individually or in the aggregate, reasonably be expected to result in a Company Material Adverse Effect. No consent, approval, registration, order or authorization of, filing with, or notice to any Governmental Entity is required with respect to the Company or any of its Subsidiaries in connection with the execution, delivery or performance of this Agreement or the Company Ancillary Documents or the consummation of the transactions contemplated hereby or thereby, other than (i) the filing of the Articles of Merger for record with the State Department of Assessments and Taxation of the State of Maryland in accordance with the MGCL, (ii) compliance with any applicable requirements of the HSR Act or any competition, merger control, antitrust or similar Law, (iii) compliance with any applicable requirements of the Securities Act or the Exchange Act and (iv) such consents, approvals, registrations, orders, authorizations, notices and filings that would not, individually or in the aggregate, reasonably be expected to result in a Company Material Adverse Effect.
(a) Schedule 4.6(a) sets forth a correct and complete list of the Owned Real Property and the current owner of each parcel of Owned Real Property. The Company has made available to the Purchaser copies of each deed for each parcel of Owned Real Property and all title insurance policies, deeds, title commitments, plats, easements, covenants, surveys, or plans delivered to the Company or any of the Subsidiaries in connection with the Company’s or any of the Subsidiaries’ investigation, purchase, financing or refinancing of the Owned Real Property, in each case to the extent in the Company’s or such Subsidiaries possession. To the Knowledge of the Company, the Owned Real Property is not in violation of any Permitted Liens, except for any such violation which would not reasonably be expected to result in a Company Material Adverse Effect.(b) Schedule 4.6(b) sets forth a correct and complete list of the Leased Real Property. Except as described in Schedule 4.6(b) , (i) the Company has made available to the Purchaser, true and complete copies of the leases in effect at the date hereof relating to the Leased Real Property, and all amendments thereto, (ii) neither the Company nor any of the Subsidiaries, nor to the Knowledge of the Company, any of their landlords or tenants, as the case may be, is in default under any lease relating to any Leased Real Property (each a “ Lease ”) beyond any applicable notice, grace or cure period and neither the Company nor any of the Subsidiaries has received or delivered a written notice of default or objection to any party to any Lease to pay and perform its obligations, which default would reasonably be expected to have a Company Material Adverse Effect; (iii) no Lease has been assigned, sublet, mortgaged, deeded in trust or otherwise encumbered by the Company or any of the Subsidiaries, (iv) to the Knowledge of the
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Company, the Leases constitute all written and oral agreements of any kind, between the Company and its landlord or tenant, as the case may be, for the leasing, rental, use or occupancy of the Leased Real Property and (v) no third party has the right to cancel or terminate a Lease.(c) Each of the Company and its Subsidiaries has good record and marketable title in fee simple to, or valid leasehold interests in, all real property necessary or used in the Ordinary Course of its business, except for such defects in title as would not reasonably be expected to result in a Company Material Adverse Effect. The Real Property is not subject to any Liens, other than Permitted Liens and those Liens as would not reasonably be expected to result in a Company Material Adverse Effect.Section 4.7 Title to Assets; Related Matters . Except with respect to the Real Property or as set forth on Schedule 4.7 :
(a) The Company and its Subsidiaries have good and marketable title to all of their respective property and assets necessary for or used in the conduct of their businesses as currently being conducted, free and clear of all Liens, except Permitted Liens.(b) The buildings, equipment, improvements and other items of tangible personal property and assets of the Company and its Subsidiaries necessary for the conduct of their businesses as currently being conducted (i) are in operating condition and capable of being used for their intended purposes, considering age and service thereof and subject to ordinary wear and tear and (ii) are usable in the Ordinary Course, except in each of cases (i) an | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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