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Exhibit 99.1
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER, dated as of January 22, 2005
(this
"Agreement"), is made by and among Monsanto Company, a Delaware
corporation
("Parent"), Monsanto Sub, Inc., a Delaware corporation and
wholly owned
subsidiary of Parent ("Merger Sub"), and Seminis, Inc., a
Delaware corporation
(the "Company").
WHEREAS, the board of directors of the Company (the "Company
Board"),
Parent and Merger Sub have determined that this Agreement and
the merger of
Merger Sub with and into the Company, with the Company as the
surviving
corporation, upon the terms and subject to the conditions set
forth in this
Agreement (the "Merger") are advisable and in the best interests
of their
respective corporations and stockholders and have approved this
Agreement and
the Merger;
WHEREAS, as a condition and inducement to Parent's willingness
to enter
into this Agreement and incurring the obligations set forth
herein, Parent has
required the holders of all the outstanding shares of common
stock, par value
$.01 per share, of the Company (the "Company Common Stock") to
enter into
support agreements, of even date herewith (each, a "Support
Agreement"),
pursuant to which, among other things, and subject to the terms
and conditions
therein, each Person party to a Support Agreement agrees to
vote, or cause to be
voted, all shares of Company Common Stock beneficially owned by
such stockholder
in favor of the Merger;
WHEREAS, as additional conditions and inducements to
Parent's
willingness to enter into this Agreement and incur the
obligations set forth
herein, Parent has required (i) each of Alfonso Romo Garza,
Bruno Ferrari, Mateo
Mazal, Bernardo Jimenez, Gaspar Alvarez, Jose Manuel Madero,
Charles Edward
Green, Franco Campana and Jean Pierre Posa to enter into
noncompetition and
nonsolicitation agreements of even date herewith (collectively,
the "Non-Compete
Agreements") and (ii) each of Alfonso Romo Garza, Bernardo
Jimenez and Mateo
Mazal to enter into a separation agreement of even date herewith
with the
Company (the "Separation Agreements"), pursuant to which each of
Alfonso Romo
Garza, Bernardo Jimenez and Mateo Mazal, respectively, has
agreed with the
Company to terminate his employment as of the Closing Date;
and
WHEREAS, Parent, Merger Sub and the Company desire to make
certain
representations, warranties, covenants and agreements in
connection with the
Merger and also to prescribe various conditions to the
Merger;
NOW, THEREFORE, in consideration of the representations,
warranties,
covenants and agreements contained in this Agreement, the
parties agree as
follows:
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ARTICLE I.
CERTAIN DEFINITIONS
As used in this Agreement, the following terms shall have
the
respective meanings set forth below:
"Affiliate" of a specified Person means a Person who, directly
or
indirectly, through one or more intermediaries controls, is
controlled by or is
under common control with such specified Person. For purposes of
this
definition, "control" (including, with correlative meanings, the
terms
"controlled by" and "under common control with") means the
possession, direct or
indirect, of the power to direct or cause the direction of the
management and
policies of a Person, whether through the ownership of voting
shares, by
contract or otherwise.
"Agreement" shall have the meaning set forth in the
preamble.
"Award Cancellation Time" means the time that is on the Closing
Date
and immediately prior to the Effective Time.
"Award List" shall have the meaning set forth in Section
3.10(a).
"Benefit Plans" shall have the meaning set forth in Section
4.10(a).
"Business Day" shall mean any day, other than a Saturday, Sunday
or
legal holiday on which banks are permitted to close in the City
and State of New
York.
"Certificate" shall have the meaning set forth in Section
3.8(d).
"Certificate of Designation" means Certificate of Designation
of
Preferences and Rights of Class C PIK Preferred Stock of
Seminis, Inc. filed
with the Secretary of State of the State of Delaware on
September 29, 2003.
"Certificate of Merger" shall have the meaning set forth in
Section
3.2.
"Closing" shall have the meaning set forth in Section 3.2.
"Closing Date" shall have the meaning set forth in Section
3.2.
"Co-Investment Agreements" shall mean, collectively, that
certain (i)
15% Co-Investment Rights Agreement, dated as of September 29,
2003, between the
Company and Marinet, (ii) Hurdle Co-Investment Rights Agreement,
dated as of
September 29, 2003, between the Company and Marinet, (iii)
Hurdle Co-Investment
Rights Agreement, dated as of September 29, 2003, between the
Company and Fox
Paine Capital Fund II, L.P., (iv) Hurdle Co-Investment Rights
Agreement, dated
as of September 29, 2003, between the Company and Fox Paine
Capital Fund II
Co-Investors, L.P., (v) Hurdle Co-Investment Rights Agreement,
dated as of
September 29, 2003, between the Company and the E and A `J'
Trust, (vi) Hurdle
Co-Investment Rights Agreement, dated as of September 29, 2003,
between the
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Company and FPC Investment GP, (vii) Hurdle Co-Investment Rights
Agreement,
dated as of September 29, 2003, between the Company and FPSH
Coinvestment Fund
I, LLC, (viii) Hurdle Co-Investment Rights Agreement, dated as
of September 29,
2003, between the Company and FPSH Coinvestment Fund II, LLC,
(ix) Hurdle
Co-Investment Rights Agreement, dated as of September 29, 2003,
between the
Company and FPSH Coinvestment Fund III, LLC, (x) Hurdle
Co-Investment Rights
Agreement, dated as of September 29, 2003, between the Company
and FPSH
Coinvestment Fund IV, LLC and (xi) Hurdle Co-Investment Rights
Agreement, dated
as of September 29, 2003, between the Company and FPSH
Coinvestment Fund V, LLC.
"Co-Investment Rights" shall have the meaning set forth in
Section
3.12(a).
"Co-Investment Rights Payment" shall have the meaning set forth
in
Section 3.12(a).
"Code" means the Internal Revenue Code of 1986, as amended.
"Company" shall have the meaning set forth in the preamble.
"Company 2004 10-K" shall have the meaning set forth in
Section
4.15(a).
"Company Balance Sheet" means the audited consolidated balance
sheet of
the Company for the period ended September 30, 2004, contained
in the Company's
2004 10-K.
"Company Board" shall have the meaning set forth in the
recitals.
"Company Common Stock" shall have the meaning set forth in
the
recitals.
"Company Competing Transaction" means any recapitalization,
merger,
consolidation or other business combination involving the
Company, or direct or
indirect acquisition of shares of Company Common Stock
representing 15% or more
of the voting power of the Company or any material portion of
the assets (except
for acquisitions of assets in the ordinary course of business
consistent with
past practice) of the Company and its Subsidiaries, or any
combination of the
foregoing.
"Company Credit Agreement" means the Credit Agreement, dated as
of
September 29, 2003, among Seminis Vegetable Seeds, Inc., as the
borrower, the
Company as the parent guarantor, the financial institutions
listed on Schedule
2.01 thereof, as lenders, Citicorp North America, Inc., as
administrative agent
for the lenders, Cooperatieve Centrale Raiffeisen-Boerenleenbank
B.A., Rabobank
International, New York Branch and CIBC World Markets Corp., as
co-documentation
agents, Harris Trust and Savings Bank, as syndication agent and
joint lead
arranger and Citigroup Global Markets Inc, as joint lead
arranger, as amended by
Amendment No. 1 thereto dated as of January 15, 2004.
"Company Disclosure Schedule" means the schedule of
disclosures
delivered by the Company to Parent and Merger Sub concurrent
with the execution
of this Agreement.
"Company Employees" means any employee of the Company as of the
Closing
Date.
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"Company Germplasm" means the germplasm used in the breeding
or
research programs of the Company and its Subsidiaries.
"Company Indenture" means the Indenture, dated as of September
29,
2003, between Seminis Vegetable Seeds, Inc., the Guarantors
named therein and
Wells Fargo Bank, National Association, as Trustee.
"Company Intellectual Property" means the intellectual property
rights
used in the conduct of the business of the Company or its
Subsidiaries,
including all patents and patent applications, plant variety
protection
certificates and applications therefor, trademarks, trademark
registrations and
applications, domain names, copyrights and copyright
registrations and
applications, computer programs, technology, know-how, trade
secrets,
proprietary processes, inventions, service marks, original works
of authorship
and formulae, together with the goodwill associated with the
foregoing.
"Company's Knowledge" means the actual knowledge, after
reasonable
inquiry, of Bernardo Jimenez, Alfonso Romo Garza, Mateo Mazal,
Bruno Ferrari, C.
Edward Green, Jose Manuel Madero, Gaspar Alvarez, Keith
Redenbaugh, Oscar
Velasco, Franco Campana, Jean Pierre Posa, Juliet Ream, Bruno
Rossolini, Dieter
Holtz, Patrick Turner, Steve Witt and, with respect to seedmen's
claims only,
Pieter Vandenberg.
"Company Material Adverse Effect" means any event, change,
circumstance, effect or state of facts that is or is reasonably
likely to be
materially adverse to (a) the business, results of operations,
condition
(financial or otherwise), assets or liabilities of the Company
and its
Subsidiaries, taken as a whole, or (b) the ability of the
Company to consummate
the Merger, except to the extent that such adverse effect
results from (i)
general economic conditions or changes therein, (ii) financial
or securities
market fluctuations or conditions, (iii) changes in, or events
or conditions
affecting, the industries or businesses in which the Company and
its
Subsidiaries operate, (iv) the announcement of the transactions
contemplated by
this Agreement, or (v) any actions that may be required pursuant
to Section
6.6(a) or 9.7, which effect in the case of clauses (i), (ii) and
(iii) does not
disproportionately affect the Company and its Subsidiaries in a
material and
adverse manner.
"Company Notes" shall mean the $190,000,000 aggregate principal
amount
of 10 1/4% Senior Subordinated Notes due 2013 and the
$140,000,000 aggregate
principal amount of 10 1/4% Senior Subordinated Notes due 2013,
the terms of
which are governed by the Company Indenture.
"Company Permits" shall have the meaning set forth in Section
4.9.
"Company Preferred Stock" shall mean the Class C PIK Preferred
Stock of
the Company, par value $.01 per share.
"Company PVP Certificates" shall have the meaning set forth in
Section
4.12(a).
"Company SEC Documents" shall have the meaning set forth in
Section
4.4(a).
"Company Securities" shall have the meaning set forth in
Section
4.2(a).
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"Company Stock Plans" shall have the meaning set forth in
Section
3.10(a).
"Company Stockholder Approval" means the vote of a majority of
the
voting power of the Company Common Stock for the adoption of
this Agreement and
the Merger, or the obtainment of written consents of all of the
Company
Stockholders in favor of adoption of this Agreement and the
Merger.
"Confidentiality Agreement" shall have the meaning set forth in
Section
6.5(a).
"Controlled Group Liability" shall have the meaning set forth
in
Section 4.10(f).
"CVR Agreement" shall mean a contingent value right agreement,
between
Marinet and the Parent in the form of Exhibit A.
"CVR Option Notice" shall have the meaning set forth in
Section
3.12(b).
"Desarrollo" means Desarrollo Consolidado de Negocios, S.A. de
C.V.
"DGCL" means the General Corporation Law of the State of
Delaware.
"Dissenting Shares" shall have the meaning set forth in Section
3.9.
"Effective Time" shall have the meaning set forth in Section
3.2.
"Environmental Claim" shall have the meaning set forth in
Section
4.17(a).
"Environmental Laws" means all applicable statutes, laws,
ordinances,
codes, common law, licenses, permits, rules, regulations,
orders, demands,
approvals, authorizations and similar items of any Governmental
Entity relating
to pollution or Hazardous Substances or protection of human
health or the
environment (including ambient air, surface water, ground water,
land surface or
subsurface strata) or emissions, discharges, releases, disposal
or handling of
any pollutants or Hazardous Substances.
"ERISA" shall have the meaning set forth in Section 4.10(a).
"ERISA Affiliate" shall have the meaning set forth in Section
4.10(c).
"Exchange Act" means the Securities Exchange Act of 1934, as
amended,
and the rules and regulations promulgated thereunder.
"Existing Policy" shall have the meaning set forth in Section
6.8(c).
"Financial Statements" shall have the meaning set forth in
Section
4.4(a).
"GAAP" means U.S. generally accepted accounting principles.
"Governmental Entity" shall have the meaning set forth in
Section 4.6.
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"Hazardous Substance" means any substance presently listed,
defined,
designated or classified as hazardous, toxic, radioactive or
dangerous, or
otherwise regulated, under any Environmental Law, including any
toxic waste,
pollutant, contaminant, hazardous substance, toxic substance,
hazardous waste,
special waste, industrial substance or petroleum or any
derivative or byproduct
thereof, radon, radioactive material, asbestos, or asbestos
containing material,
urea formaldehyde, foam insulation or polychlorinated biphenyls,
lead or
lead-based paints or materials.
"HMO" shall have the meaning set forth in Section 4.10(c).
"HSR Act" means the Hart-Scott-Rodino Antitrust Improvements Act
of
1976, as amended.
"Indebtedness" of any Person means (a) all obligations of such
Person
for borrowed money or for the deferred purchase price of
property or services
(other than current trade liabilities incurred in the ordinary
course of
business and payable in accordance with customary practices, and
excluding
ordinary operating leases), (b) any other obligations of such
Person that are
evidenced by a note, bond, debenture or similar instrument, (c)
all obligations
under conditional sale or other title retention agreements
relating to property
purchased, (d) capital lease or sale-leaseback obligations, (e)
all liabilities
secured by any Lien on any property (other than ordinary
operating leases), and
(f) any guarantee or assumption of any of the foregoing in
clauses (a) through
(e) above or guaranty of minimum equity or capital or any
make-whole or similar
obligation or any other guarantee of indebtedness of a third
party.
"Indemnified Parties" shall have the meaning set forth in
Section
6.8(b).
"Insurance Policies" shall have the meaning set forth in Section
4.16.
"IRS" means the U.S. Internal Revenue Service.
"Key Employee" means any Chief Executive Officer, President,
Executive
Vice President or Senior Vice President or other employee of the
Company or its
Subsidiaries whose annual base salary (excluding bonuses and
other non-salary
compensation) exceeds $100,000.
"Leased Real Property" shall have the meaning set forth in
Section
4.18(a).
"Lien" means, with respect to any asset (including any
security), any
security interests, liens, claims, charges, title defects,
deficiencies or
exceptions (including, with respect to Real Property Leases,
subleases,
assignments, licenses or other agreements granting to any third
party any
interest in a Real Property Lease or any right to the use or
occupancy of any
Leased Real Property), mortgages, pledges, easements,
encroachments,
restrictions on use, rights-of-way, rights of first refusal,
options,
conditional sales or other title retention agreements,
covenants, conditions or
other similar restrictions (including restrictions on transfer)
or other
encumbrances of any nature whatsoever in respect of such
asset.
"Management Agreement" shall mean that certain Management Fee
Letter
Agreement, dated as of May 30, 2003, between Seminis Merger
Corp., Fox Paine &
Company, LLC and Desarrollo, as amended.
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"Marinet" means Marinet Investments, LLC.
"Material Contracts" shall have the meaning set forth in
Section
4.15(a).
"Merger" shall have the meaning set forth in the recitals.
"Merger Approvals" means any approval, consent, order, exemption
or
waiver under the HSR Act, and similar rules and regulations of
foreign
Governmental Entities relating to competition and merger control
matters.
"Merger Consideration" shall have the meaning set forth in
Section
3.8(d).
"Merger Sub" shall have the meaning set forth in the
preamble.
"MS Common Stock" means shares of common stock, par value $.01
per
share, of Merger Sub.
"New Company Common Stock" shall mean the shares of common stock
of the
Surviving Corporation, par value $.01 per share.
"New Plans" shall have the meaning set forth in Section
6.12(b).
"NOL Carryforwards" shall have the meaning specified in Section
4.13.
"Non-Compete Agreements" shall have the meaning set forth in
the
recitals.
"Old Plans" shall have the meaning set forth in Section
6.12(b)(i).
"Outside Date" shall mean July 31, 2005.
"Owned Real Property" shall have the meaning set forth in
Section
4.18(a).
"Parent" shall have the meaning set forth in the preamble.
"Parent Disclosure Schedule" means the schedule of
disclosures
delivered by Parent to the Company concurrent with the execution
of this
Agreement.
"Parent Material Adverse Effect" means any event, change,
circumstance,
effect or state of facts that is or is reasonably expected to be
materially
adverse to the ability of Parent or Merger Sub to consummate the
Merger.
"PBGC" means the Pension Benefit Guaranty Corporation.
"Per Share Amount" shall mean $10.52.
"Permitted Exceptions" shall have the meaning set forth in
Section
4.20(e).
"Permitted Liens" means (a) growers', mechanics', carriers',
workers',
repairers', materialmen's, warehousemen's, and other similar
Liens arising in
the ordinary course of the
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Company's business and either (i) for sums not yet due and
payable or (ii) such
Liens as are less than $100,000 in amount and are being
contested in good faith
and by appropriate proceedings, (b) Liens under the Company
Credit Agreement,
(c) Liens for current Taxes not yet due or payable or being
contested in good
faith or for supplemental Taxes for which the Company has not
received a written
notice of assessment, and (d) any other covenants, conditions,
restrictions,
reservations, rights and non-monetary Liens incurred or suffered
in the ordinary
course of business and that (i) do not materially detract from
the current use
of the applicable Real Property and (ii) would not, individually
or in the
aggregate, have a Company Material Adverse Effect.
"Person" means an individual, corporation, limited liability
company,
partnership, association, trust, unincorporated organization,
other entity or
"group" (as defined in the Exchange Act).
"Proxy Statement" shall have the meaning set forth in Section
6.2.
"Real Property" shall have the meaning set forth in Section
4.18(a).
"Real Property Lease" shall mean any contract or agreement to
which the
Company or any of its Subsidiaries is a party relating to the
lease of real
property used by the Company or its Subsidiaries requiring
annual payments in
excess of (or reasonably expected to be in excess of)
$100,000.
"Record Date" shall mean the date on which holders of Company
Common
Stock on such date, as reflected on the Company's (or its
transfer agent's)
books and records, shall be entitled to vote at the Stockholders
Meeting, if
held, which date shall be determined in accordance with the
Company's Bylaws and
other applicable requirements.
"Related Agreements" shall mean the Support Agreement, the
Non-Compete
Agreements and the Separation Agreements.
"Related Transactions" shall mean the transactions contemplated
by the
Related Agreements.
"Required Approval" shall have the meaning set forth in
Section
7.1(b)(iii).
"Restricted Shares" means shares of restricted stock granted
under any
Company Stock Plan.
"RSU" shall have the meaning set forth in Section 3.10(a).
"SEC" means the U.S. Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended,
and the
rules and regulations promulgated thereunder.
"Separation Agreements" shall have the meaning set forth in
the
recitals.
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"Stock Option" shall have the meaning set forth in Section
3.10(a).
"Stockholders' Agreement" shall mean the Amended and
Restated
Stockholders' Agreement, dated as of September 29, 2003, by and
among Seminis,
Inc. and the investors listed on the signature pages
thereto.
"Stockholders Meeting" shall have the meaning set forth in
Section 6.1.
"Subsidiary" means, with respect to any Person, any other
Person,
whether incorporated or unincorporated or domestic or foreign to
the United
States, of which (a) such first Person or any other Subsidiary
of such first
Person is a general partner (excluding such partnerships where
such first Person
or any Subsidiary of such first Person does not have a majority
of the voting
interest in such partnership) or (b) at least a majority of the
securities or
other interests having by their terms ordinary voting power to
elect a majority
of the board of directors or others performing similar functions
with respect to
such corporation or other organization is, directly or
indirectly, owned or
controlled by such first Person or by any one or more of its
Subsidiaries, or by
such first Person and one or more of its Subsidiaries.
"Support Agreement" shall have the meaning set forth in the
recitals.
"Surviving Corporation" shall have the meaning set forth in
Section
3.1.
"Tail Period" shall have the meaning set forth in Section
6.8(c).
"Tax Returns" means all reports, returns, information
returns,
statements, declarations and certifications required to be filed
with respect to
Taxes.
"Taxes" means all U.S. or non-U.S. federal, national, state or
local
taxes, assessments, levies or other governmental charges in the
nature of taxes,
including all income, franchise, gross receipt, custom duties,
withholding,
employment, unemployment insurance, social security, sales, use,
excise, real
and personal property, stamp, transfer, value added taxes (VAT)
and workers'
compensation taxes, and other taxes, duties or assessments of
any nature
whatsoever, together with all interest, penalties and additions
payable with
respect thereto.
"Transmittal Documents" shall have the meaning set forth in
Section
3.11(a).
"WARN Act" shall have the meaning set forth in Section
4.11(b).
"Warrant Agreements" shall have the meaning set forth in
Section
4.2(a).
"Warrants" shall have the meaning set forth in Section 3.13.
ARTICLE II.
RESTRUCTURING OF PREFERRED STOCK
SECTION 2.1. Company Preferred Stock. Upon Closing, Parent shall
cause
the Company to provide to the holders of Company Preferred Stock
a Change of
Control Offer (as
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defined in the Certificate of Designation) as required by Part 7
of the
Certificate of Designation and, if necessary, will provide to
the Company the
funds required to redeem the Preferred Stock.
ARTICLE III.
THE MERGER
SECTION 3.1. The Merger. Subject to the conditions of this
Agreement
and in accordance with the DGCL, the parties hereto shall
consummate the Merger
pursuant to which (a) Merger Sub shall merge with and into the
Company and the
separate corporate existence of Merger Sub shall thereupon
cease, (b) the
Company shall be the surviving corporation in the Merger
(sometimes referred to
as the "Surviving Corporation") and shall continue to be
governed by the laws of
the State of Delaware, and (c) the corporate existence of the
Company, with all
of its rights, privileges, immunities, powers and franchises,
shall continue
unaffected by the Merger.
SECTION 3.2. Effective Time. As soon as practicable after
the
satisfaction or waiver (to the extent permitted by applicable
law) of the
conditions set forth in Article VII, the parties hereto shall
cause a
certificate of merger substantially in the form attached hereto
as Exhibit B
(the "Certificate of Merger") to be executed and filed on the
Closing Date (or
on such other date as Parent and the Company may agree) with the
Secretary of
State of the State of Delaware in such form as required by, and
executed in
accordance with, the relevant provisions of the DGCL. The
closing of the Merger
(the "Closing") will take place (a) at the offices of Willkie
Farr & Gallagher
LLP, 787 Seventh Avenue, New York, New York, at 10:00 a.m. New
York City time as
soon as reasonably practicable (but in any event no later than
the third
Business Day) after satisfaction or waiver (to the extent
permitted by
applicable law) of the conditions set forth in Article VII
(other than those
conditions that are to be satisfied at the Closing, but subject
to the
satisfaction or waiver (to the extent permitted by applicable
law) of such other
conditions), or (b) at such other place or time and/or such
other date as the
parties may agree. The date on which the Closing occurs is
referred to in this
Agreement as the "Closing Date." The Merger shall become
effective at such time
as the Certificate of Merger is duly filed with the Secretary of
State of the
State of Delaware or at such later date and time as the parties
shall agree and
as shall be specified in the Certificate of Merger (the time the
Merger becomes
effective, the "Effective Time").
SECTION 3.3. Effects of the Merger. The Merger shall have the
effects
as set forth in the applicable provisions of the DGCL. Without
limiting the
generality of the foregoing, and subject thereto, at the
Effective Time, all the
properties, rights, privileges, powers and franchises of the
Company and Merger
Sub shall vest in the Surviving Corporation, and all debts,
liabilities and
duties of the Company and Merger Sub shall become the debts,
liabilities and
duties of the Surviving Corporation.
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SECTION 3.4. Certificate of Incorporation and Bylaws.
(a) The certificate of incorporation of the Company in
effect
immediately prior to the Effective Time shall be the certificate
of
incorporation of the Surviving Corporation until amended in
accordance with its
terms and applicable law.
(b) The bylaws of Merger Sub in effect immediately prior to
the Effective Time, in the form attached hereto as Exhibit C,
shall be the
bylaws of the Surviving Corporation until amended in accordance
with their terms
and applicable law.
SECTION 3.5. Directors. The directors of Merger Sub immediately
prior
to the Effective Time shall be the initial directors of the
Surviving
Corporation, each to hold office in accordance with the
certificate of
incorporation and bylaws of the Surviving Corporation until such
director's
successor is duly elected or appointed and qualified.
SECTION 3.6. Officers. Subject to the terms of the
Separation
Agreements, the officers of the Company immediately prior to the
Effective Time
shall be the initial officers of the Surviving Corporation, each
to hold office
in accordance with the certificate of incorporation and bylaws
of the Surviving
Corporation until such officer's successor is duly elected or
appointed and
qualified.
SECTION 3.7. Subsequent Actions. If, at any time after the
Effective
Time, the Surviving Corporation shall determine in good faith or
be advised that
any deeds, bills of sale, assignments, assurances or any other
actions or things
are necessary or desirable to vest, perfect or confirm of record
or otherwise in
the Surviving Corporation its right, title or interest in, to or
under any of
the rights, properties or assets of either of the Company or
Merger Sub acquired
or to be acquired by the Surviving Corporation as a result of,
or in connection
with the Merger or otherwise to carry out this Agreement, the
officers and
directors of the Surviving Corporation shall be authorized to
execute and
deliver, in the name and on behalf of either the Company or
Merger Sub, all such
deeds, bills of sale, assignments and assurances and to take and
do, in the name
and on behalf of each of such corporations or otherwise, all
such other actions
and things as may be necessary or desirable to vest, perfect or
confirm any and
all right, title and interest in, to and under such rights,
properties or assets
in the Surviving Corporation or otherwise to carry out this
Agreement.
SECTION 3.8. Effect on the Capital Stock. As of the Effective
Time, by
virtue of the Merger and without any action on the part of the
Company, Parent,
Merger Sub or any holder of any shares of Company Common Stock,
Company
Preferred Stock or any shares of capital stock of Merger
Sub:
(a) Each share of MS Common Stock issued and outstanding
immediately prior to the Effective Time shall be converted into
one share of New
Company Common Stock following the Merger.
(b) Each share of Company Common Stock, if any, that is
owned
by Parent or Merger Sub immediately prior to the Effective Time
shall
automatically be canceled and retired and shall cease to exist,
and no cash,
Company Common Stock or other consideration shall be delivered
or deliverable in
exchange therefor.
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(c) Each share of Company Common Stock that is owned by or
held in the treasury of the Company immediately prior to the
Effective Time
shall automatically be canceled and retired and shall cease to
exist, and no
cash, Company Common Stock or other consideration, including the
Merger
Consideration, shall be delivered or deliverable in exchange
therefor.
(d) Shares of Company Common Stock issued and outstanding
immediately prior to the Effective Time (other than any shares
to be canceled
pursuant to Sections 3.8(b) and 3.8(c) and any Dissenting
Shares) held by each
stockholder of the Company shall be converted into the right to
receive an
amount in cash (the "Merger Consideration") equal to the product
of (A) the
number of shares of Company Common Stock owned by such
stockholder immediately
prior to the Effective Time, and (B) the Per Share Amount. The
Merger
Consideration shall be payable to the holder of shares of
Company Common Stock,
without interest thereon, upon the surrender of the certificate
or certificates
formerly representing such shares of Company Common Stock (each,
a
"Certificate") in the manner provided in Section 3.11, less any
required
withholding of U.S. federal, state, local or foreign Taxes. From
and after the
Effective Time, all such shares of Company Common Stock so
converted into the
Merger Consideration shall no longer be outstanding and shall be
deemed to be
canceled and retired and shall cease to exist, and each holder
of a Certificate
or Certificates shall cease to have any rights with respect
thereto, except the
right to receive the Merger Consideration therefor upon the
surrender of such
Certificate or Certificates in accordance with Section 3.11 (or,
with respect to
Dissenting Shares, as provided in Section 3.9).
(e) Each share of Company Preferred Stock issued and
outstanding or held by the Company as treasury stock immediately
prior to the
Effective Time shall remain issued and outstanding or held as
treasury stock, as
the case may be, and shall be unaffected by the Merger.
SECTION 3.9. Dissenting Shares. Anything in this Agreement to
the
contrary notwithstanding, each share of Company Common Stock or
Company
Preferred Stock outstanding immediately prior to the Effective
Time and held by
a holder who has not voted in favor of the Merger or consented
thereto in
writing and who has demanded appraisal for such share of Company
Common Stock or
Company Preferred Stock in accordance with Section 262 of the
DGCL, if such
Section 262 of the DGCL provides for appraisal rights for such
shares of Company
Common Stock or Company Preferred Stock in the Merger
("Dissenting Shares"),
shall not, in the case of the Company Common Stock, be converted
into or be
exchangeable for the right to receive the Merger Consideration
unless and until
such holder of Company Common Stock as the case may be, fails to
perfect or
withdraws or otherwise loses his right to appraisal and payment
under the DGCL
(and, in the case of the Preferred Stock, shall be treated in
accordance with
the DGCL). If, after the Effective Time, any such holder fails
to perfect or
withdraws or loses his right to appraisal, such Dissenting
Shares shall: (w) in
the case of Company Common Stock, thereupon be treated as if
such shares had
been converted as of the Effective Time into the right to
receive the Merger
Consideration, if any, to which such holder is entitled, without
interest or
dividends thereon; and (x) in the case of Company Preferred
Stock, be treated in
accordance with the DGCL. The Company shall give Parent (y)
prompt notice of any
demands received by the Company for appraisal of shares of
Company Common Stock
or Company Preferred Stock, if applicable, attempted written
withdrawals of such
demands, and any other instruments served pursuant to the DGCL
and received by
the Company relating to
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stockholders' rights to appraisal with respect to the Merger;
and (z) the
opportunity to direct all negotiations and proceedings with
respect to any
exercise of such appraisal rights under the DGCL. The Company
shall not, except
with the prior written consent of Parent, voluntarily make any
payment with
respect to any demands for payment of fair value for capital
stock of the
Company, offer to settle or settle any such demands or approve
any withdrawal of
any such demands.
SECTION 3.10. List of Other Equity Awards; Treatment of Other
Equity
Awards.
(a) Section 3.10(a) of the Company Disclosure Schedule
contains a true and complete list (the "Award List") of each
option to purchase
shares of Company Common Stock (a "Stock Option") and each
restricted stock unit
( "RSU") granted under each employee and director stock
incentive or
compensation plan, agreement or arrangement (the "Company Stock
Plans")
outstanding as of the date hereof (along with the exercise
prices thereof, if
applicable).
(b) At the Award Cancellation Time, each then-outstanding
Stock Option and RSU (whether vested or unvested), shall be
canceled and, in
consideration of such cancellation, the Company shall pay or
cause to be paid to
the holder on the first Business Day following the Award
Cancellation Time, in
full satisfaction of such Stock Option or RSU, as applicable,
less any
applicable withholding tax, an amount in cash equal to the
product of (i) (x) in
the case of any Stock Option, the excess of the Per Share Amount
over the
exercise price per share of such unexercised Stock Option, if
any, or (y) in the
case of any RSU, the Per Share Amount and (ii) the number of
shares of Company
Common Stock subject to such Stock Option, or RSU, as
applicable.
(c) The Company shall (i) take all actions reasonably
necessary to cause the actions and effects specified in Section
3.10(b) to
occur, (ii) take all actions reasonably necessary, with Parent's
assistance, to
ensure that, effective as of the Award Cancellation Time, no
holder of Stock
Options or RSU will have any right to receive any shares of
capital stock of the
Company or, if applicable, the Surviving Corporation, upon
exercise of any Stock
Option or settlement of any RSU, as applicable, or any other
event, and (iii)
provide its reasonable cooperation to Parent in connection with
the actions
contemplated by this Section 3.10.
SECTION 3.11. Payment for Shares.
(a) As soon as reasonably practicable after the date hereof
but in no event later than the earlier of (i) 30 days after the
date hereof and
(ii) five days prior to the Closing Date, Parent shall mail by
overnight courier
to each record holder of an outstanding Certificate(s), whose
shares of Company
Common Stock are to be converted pursuant to Section 3.8(d) into
the right to
receive the Merger Consideration (i) a letter of transmittal
(which shall
specify that delivery shall be effected, and risk of loss and
title to the
Certificate(s) shall pass, only upon proper delivery of the
Certificate(s) to
Parent and shall be in such form and have such other provisions
not inconsistent
with this Agreement as Parent may reasonably designate), and
(ii) instructions
for use in effecting the surrender of the Certificates in
exchange for payment
of the Merger Consideration (together, the "Transmittal
Documents"). Upon
surrender of a Certificate(s) for cancellation to Parent or to
such other agent
or agents as may be appointed by Parent, together with such
letter of
transmittal and any other required documents, duly executed,
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<PAGE>
the holder of such Certificate(s) shall be entitled to receive
in exchange
therefor as of the Effective Time the Merger Consideration in
respect of all
shares of Company Common Stock formerly represented by such
surrendered
Certificate(s), without any interest thereon, pursuant to
Section 3.8(d). The
Certificate(s) so surrendered shall forthwith be canceled. If
payment of the
Merger Consideration is to be made to a Person other than the
Person in whose
name the surrendered Certificate(s) is registered, it shall be a
condition of
payment that the Certificate(s) so surrendered shall be properly
endorsed or
shall otherwise be in proper form for transfer, that the
signatures on the
Certificate(s) or any related stock power shall be properly
guaranteed and that
the Person requesting such payment shall have established to the
satisfaction of
Parent that any transfer and other Taxes required by reason of
the payment of
the Merger Consideration to a Person other than the registered
holder of the
Certificate(s) surrendered have been paid or are not applicable.
Until
surrendered in accordance with the provisions of and as
contemplated by this
Section 3.11, any Certificate(s) (other than Certificate(s)
representing shares
of Company Common Stock subject to Sections 3.8(b) and (c) and
other than
Dissenting Shares) shall be deemed, at any time after the
Effective Time, to
represent only the right to receive the Merger Consideration in
cash without
interest as contemplated by this Section 3.11. Upon the
surrender of a
Certificate(s) in accordance with the terms and instructions
contained in the
Transmittal Documents, Parent shall pay to the holder of such
Certificate(s) in
exchange therefor cash in an amount equal to the Merger
Consideration (other
than Certificate(s) representing shares of Company Common Stock
subject to
Sections 3.8(b) and (c) and other than Dissenting Shares) by
wire transfer of
immediately available funds to the account(s) designated by such
holder on or
before (i) the Closing Date, if such holder surrendered such
documentation to
the Parent on or prior to 12:00p.m., New York City time, on the
Business Day
preceding the Closing Date, or (ii) the second Business Day
after such delivery,
if such delivery is made after such time.
(b) At the Effective Time, the stock transfer books of the
Company shall be closed and there shall not be any further
registration of
transfers of any shares of capital stock thereafter on the
records of the
Company. If, after the Effective Time, a Certificate (other than
those subject
to Sections 3.8(b) and (c)) is presented to the Surviving
Corporation, it shall
be canceled and exchanged for the consideration provided for,
and in accordance
with the procedures set forth, in this Section 3.11. No interest
shall accrue or
be paid on any cash payable upon the surrender of a
Certificate.
(c) From and after the Effective Time, the holders of
Certificates shall cease to have any rights with respect to
shares of Company
Common Stock represented by such Certificates except as
otherwise provided
herein or by applicable law.
(d) If any Certificate shall have been lost, stolen or
destroyed, upon the making of an affidavit of that fact by the
Person claiming
such Certificate to be lost, stolen or destroyed, Parent shall
pay or cause to
be paid in exchange for such lost, stolen or destroyed
Certificate the relevant
portion of the Merger Consideration in accordance with Section
3.8(d) for shares
of Company Common Stock represented thereby. When authorizing
such payment of
any portion of the Merger Consideration in exchange therefor,
Parent may, in its
discretion and as a condition precedent to the payment thereof,
require the
owner of such lost, stolen or destroyed Certificate to give the
Surviving
Corporation a bond in such sum as it may direct as indemnity
against any claim
that may be made against the Surviving Corporation with respect
to the
Certificate alleged to have been lost, stolen or destroyed.
14
<PAGE>
(e) Promptly following the date that is one year after the
Effective Time, holders of Certificates shall be entitled to
look to the
Surviving Corporation (subject to abandoned property, escheat or
similar laws)
only as a general creditor thereof with respect to any portion
of the Merger
Consideration payable upon due surrender of their Certificates,
without any
interest thereon.
(f) The Merger Consideration paid in the Merger shall be net
to the holder of shares of Company Common Stock in cash, subject
to reduction
only for any applicable required federal, state, local or
foreign withholding
Taxes. To the extent that amounts are so withheld, such amounts
shall be treated
for all purposes of this Agreement as having been paid to the
Person in respect
of which such withholding was made.
(g) Anything to the contrary in this Section 3.11
notwithstanding, to the fullest extent permitted by law, neither
Parent nor the
Surviving Corporation shall be liable to any holder of a
Certificate for any
amount properly delivered to a public official pursuant to any
applicable
abandoned property, escheat or similar law. If Certificates are
not surrendered
prior to two years after the Effective Time, unclaimed funds
payable with
respect to such Certificates shall, to the extent permitted by
applicable law,
become the property of Parent, free and clear of all claims or
interest of any
Person previously entitled thereto.
SECTION 3.12. Co-Investment Rights.
(a) Subject to the terms of Section 3.12(b), provided that
the
holder of co-investment rights set forth in any of the
Co-Investment Agreements
(the "Co-Investment Rights") has executed the Support Agreement,
notwithstanding
anything to the contrary set forth in the Co-Investment
Agreement applicable to
such Co-Investment Rights, on the Closing Date, such
Co-Investment Rights will
be terminated, and, in consideration of such termination, the
Company shall pay
to the holder of such Co-Investment Rights as of the Effective
Time, in full
satisfaction of its Co-Investment Rights, less any applicable
withholding tax,
an amount in cash (a "Co-Investment Rights Payment") equal to
the product of (i)
the excess of the Per Share Amount over $3.40 and (ii) the
number of shares of
Company Common Stock that each holder of Co-Investment Rights is
entitled to
receive pursuant to its Co-Investment Rights as set forth in
Section 3.12(a) of
the Company Disclosure Schedule.
(b) Notwithstanding anything herein to the contrary, Marinet
may, no later than five (5) Business Days prior to the Closing
Date, deliver to
Parent a notice informing Parent that Marinet elects to reduce
the Co-Investment
Rights Payment it would otherwise be entitled to receive
pursuant to Section
3.12(a) in exchange for the contingent value right described in
the CVR
Agreement (the "CVR Option Notice"). In the event Marinet
delivers to Parent a
CVR Option Notice in accordance with this Section 3.12(b), (i)
the Co-Investment
Rights Payment otherwise payable to Marinet pursuant to Section
3.12(a) will be
reduced by $50,000,000 and (ii) Parent and Marinet will execute
and deliver the
CVR Agreement at the Closing.
SECTION 3.13. Warrant Agreements. Provided that the holder
of
outstanding warrants to purchase Company Common Stock (the
"Warrants") granted
under any of the Warrant Agreements has executed the Support
Agreement,
notwithstanding anything to the contrary set forth in the
Warrant Agreement
applicable to such Warrants, upon consummation of the
Merger,
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<PAGE>
such Warrants, whether or not then exercisable or vested, shall
be acquired by
the Company for cancellation in consideration of payment to the
holder of such
Warrants of an amount in respect thereof equal to the product of
(A) the excess,
if any, of the Per Share Amount over the per share exercise
price thereof and
(B) the number of shares of Company Common Stock subject thereto
(such payment
to be net of applicable required withholding taxes) as set forth
in Section 3.13
of the Company Disclosure Schedule.
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Except as set forth in the Company 2004 10-K or in the
Company
Disclosure Schedule (it being understood that any matter set
forth in any
section of the Company Disclosure Schedule shall be deemed
disclosed with
respect to any other section of the Company Disclosure Schedule
to the extent
such matter is disclosed in a way as to make its relevance to
the information
called for by such other section reasonably clear on its face),
the Company
hereby represents and warrants to Parent and Merger Sub as
follows:
SECTION 4.1. Organization and Qualification; Subsidiaries.
(a) Each of the Company and its Subsidiaries is a
corporation
duly organized, validly existing and, if applicable, in good
standing under the
laws of the jurisdiction of its incorporation and has all
requisite corporate or
other power and authority and all necessary governmental
approvals to own, lease
and operate its properties and to carry on its businesses as now
being
conducted, except where the failure to be in good standing or to
have such
power, authority and governmental approvals, would not,
individually or in the
aggregate, have a Company Material Adverse Effect. The Company
has heretofore
delivered to Parent accurate and complete copies of the
certificate of
incorporation and bylaws, as currently in effect, of the
Company. Section 4.1(a)
of the Company Disclosure Schedule sets forth a complete list of
the Company's
Subsidiaries.
(b) Each of the Company and its Subsidiaries is duly
qualified
or licensed and, if applicable, in good standing to do business
in each
jurisdiction in which the property owned, leased or operated by
it or the nature
of the business conducted by it makes such qualification or
licensing necessary,
except in such jurisdictions where the failure to be so duly
qualified or
licensed and in good standing would not, individually or in the
aggregate, have
a Company Material Adverse Effect.
(c) The Company does not own, directly or indirectly, and
has
not entered into any agreement to acquire any equity in (other
than equity of
its Subsidiaries) or debt of (other than debt of its
Subsidiaries and other than
short-term investments of the Company's working capital in
high-grade commercial
paper or similar high-grade, short-term instruments) or similar
interest, or
assets operated as a business of, any Person.
SECTION 4.2. Capitalization of the Company and its
Subsidiaries.
(a) The authorized capital stock of the Company consists of:
(i) 200,000,000 shares of Company Common Stock, and (ii)
5,000,000 shares of
preferred stock of the Company,
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<PAGE>
par value $.01 per share, 400,000 shares of which are designated
as shares of
Company Preferred Stock. As of the date hereof, (i) 64,333,205
shares of Company
Common Stock were issued and outstanding and (ii) 50,000 shares
of Company
Preferred Stock were issued and outstanding. All of the
outstanding shares of
Company Common Stock and Company Preferred Stock have been
validly issued, and
are fully paid, nonassessable and free of preemptive rights. As
of the date
hereof, a total of (i) 4,937,802 shares of Company Common Stock
were reserved
for issuance pursuant to outstanding Stock Options and RSUs, and
no other shares
of Company Common Stock are subject to issuance pursuant to
Stock Options or any
other equity based awards, (ii) 3,873,108 shares of Company
Common Stock were
reserved for issuance upon the exercise of currently outstanding
warrants issued
under the warrant agreements listed in Section 4.2(a) of the
Company Disclosure
Schedule (the "Warrant Agreements") and (iii) 32,664,256 shares
of Company
Common Stock were reserved for issuance upon the exercise of
Co-Investment
Rights. Set forth in Section 4.2(a) of the Company Disclosure
Schedule is a
complete and accurate list of (i) the Company Stock Plans and
the number of
shares of Company Common Stock reserved for issuance pursuant to
Stock Options
outstanding as of the date hereof under each such Company Stock
Plan, and no
other shares of Company Common Stock are subject to issuance
pursuant to such
Company Stock Plans, (ii) all warrant agreements to acquire
capital stock of the
Company and the number of shares of Company Common Stock
reserved for issuance
pursuant to such warrant agreements, and no other shares of
capital stock of the
Company are subject to issuance pursuant to such warrant
agreements and (iii)
all Co-Investment Agreements to acquire capital stock of the
Company and the
number of shares of Company Common Stock reserved for issuance
pursuant to such
Co-Investment Agreements, and no other shares of capital stock
of the Company
are subject to issuance pursuant to such Co-Investment
Agreements. Since January
19, 2005, no shares of capital stock of the Company have been
issued other than
pursuant to Stock Options set forth on the Award List, Warrant
Agreements or
Co-Investment Agreements existing as of date hereof, and since
January 19, 2005,
no Stock Options, Restricted Shares, Warrants or Co-Investment
Rights have been
granted. Except as set forth above or in Section 4.2(a) of the
Company
Disclosure Schedule, there are no outstanding (i) shares of
capital stock
(including Restricted Shares) or other voting securities of the
Company, (ii)
securities of the Company or any of its Subsidiaries convertible
into or
exchangeable for shares of capital stock or voting securities of
the Company,
(iii) options, warrants or other rights to acquire from the
Company or any of
its Subsidiaries, or obligations of the Company or any of its
Subsidiaries to
issue or sell, any capital stock, voting securities or
securities convertible
into or exchangeable for capital stock or voting securities of
the Company, or
(iv) equity equivalents, interests in the ownership or earnings
of the Company
or other similar rights (collectively, "Company Securities").
Other than as
contemplated by this Agreement, Stockholders' Agreement or
employment agreements
set forth in Section 4.10(a) of the Company Disclosure Schedule,
there are no
outstanding obligations of the Company or any of its
Subsidiaries to repurchase,
redeem or otherwise acquire any Company Securities.
(b) All of the outstanding capital stock of, or other
ownership interests in, each Subsidiary of the Company is owned
by the Company,
directly or indirectly, free and clear of any Lien or any other
limitation or
restriction (including any restriction on the right to vote or
sell the same,
except as may be provided as a matter of law). All such shares
have been validly
issued, fully paid and nonassessable, and have been issued free
of preemptive
rights. There are no outstanding securities of the Company or
any of its
Subsidiaries convertible into or exchangeable for, no options or
other rights to
acquire from the Company or any of its
17
<PAGE>
Subsidiaries, and no other contract, understanding, arrangement
or obligation
(whether or not contingent) providing for the issuance or sale,
directly or
indirectly, of, any capital stock or other ownership interests
in, or any other
securities of, any Subsidiary of the Company. There are no
outstanding equity
equivalents, interests in the ownership or earnings or similar
rights of any
Subsidiary of the Company. There are no contractual obligations
of the Company
or any of its Subsidiaries to repurchase, redeem or otherwise
acquire any
outstanding shares of capital stock or other ownership interests
in any
Subsidiary of the Company, other than as contemplated by this
Agreement and the
Stockholders' Agreement.
(c) No class of equity securities of the Company or any of
its
Subsidiaries is registered or required to be registered under
the Exchange Act.
No Subsidiary of the Company owns any capital stock in the
Company.
(d) Other than the Support Agreements and the Stockholders'
Agreement, there are no voting trusts or other agreements or
understandings to
which the Company or any of its Subsidiaries or to the Company's
Knowledge, any
of the Company's stockholders, is a party with respect to the
voting of the
capital stock of the Company or any of its Subsidiaries.
(e) Other than with respect to the Indebtedness set forth in
Section 4.2(e) of the Company Disclosure Schedule, there is no
Indebtedness of
the Company or any of its Subsidiaries existing that contains
any material
restriction upon, or imposes any material penalty with respect
to (i) the
prepayment of such Indebtedness, (ii) the incurrence of
Indebtedness by the
Company or its Subsidiaries, respectively, or (iii) the ability
of the Company
or its Subsidiaries to grant any Liens on its properties or
assets.
SECTION 4.3. Authority Relative to this Agreement.
(a) The Company has all the necessary corporate power and
authority to execute and deliver this Agreement and, subject to
obtaining
Company Stockholder Approval, to consummate the transactions
contemplated hereby
in accordance with the terms hereof. The execution, delivery and
performance of
this Agreement by the Company and the consummation by it of the
transactions
contemplated hereby have been duly and validly authorized by all
necessary
corporate action, and, except for obtaining the Company
Stockholder Approval, no
other corporate action or corporate proceeding on the part of
the Company is
necessary to authorize the execution and delivery by the Company
of this
Agreement and the consummation by it of the transactions
contemplated hereby.
This Agreement has been duly and validly executed and delivered
by the Company
and, assuming due and valid authorization, execution and
delivery by Parent and
Merger Sub, constitutes a valid, legal and binding agreement of
the Company,
enforceable against the Company in accordance with its terms,
except that such
enforcement may be subject to (i) any bankruptcy, insolvency,
reorganization,
moratorium, fraudulent transfer or other laws, now or hereafter
in effect,
affecting creditors' rights generally, and (ii) the effect of
general principles
of equity (regardless of whether enforceability is considered in
a proceeding of
law or equity).
(b) The Company Board, at a meeting thereof duly called and
held prior to the date hereof (i) determined that this
Agreement, the Related
Agreements to which it is a party, the Merger and the Related
Transactions are
in the best interests of the Company and its
18
<PAGE>
stockholders, (ii) approved and declared advisable this
Agreement and the
Merger, and (iii) resolved to recommend that the Company's
stockholders adopt
this Agreement and the Merger.
SECTION 4.4. SEC Reports; Financial Statements.
(a) Since September 29, 2003, the Company has filed with the
SEC all forms, reports, schedules, statements and other
documents required to be
filed by it under the Securities Act and the Exchange Act (any
such documents
filed since September 29, 2003 and prior to the Closing Date
collectively,
including all exhibits and schedules thereto and documents
incorporated by
reference therein, the "Company SEC Documents"). The Company SEC
Documents,
including any financial statements or schedules included
therein, at the time
filed, or, in the case of registration statements, on their
respective effective
dates, (i) complied in all material respects with the applicable
requirements of
the Securities Act and the Exchange Act, as the case may be and
(ii) did not at
the time filed (or, in the case of registration statements, at
the time of
effectiveness) contain any untrue statement of a material fact
or omit to state
a material fact required to be stated therein or necessary in
order to make the
statements made therein, in light of the circumstances under
which they were
made, not misleading. No Subsidiary of the Company is required
to file any form,
report or other document with the SEC pursuant to Section 13 or
15(d) of the
Exchange Act. The financial statements included in the Company
SEC Documents
(the "Financial Statements") (i) have been prepared from, and
are in accordance
with, the books and records of the Company and its Subsidiaries,
(ii) complied
on the date of filing and effectiveness thereof in all material
respects with
applicable accounting requirements and with the published rules
and regulations
of the SEC with respect thereto on the date of filing and
effectiveness thereof,
(iii) have been prepared in accordance with GAAP as in effect as
of the dates of
such financial statements applied on a consistent basis during
the periods
involved (except as may be indicated in the notes thereto and,
in the case of
unaudited statements, as permitted by the rules and regulations
of the SEC
during the periods involved), and (iv) fairly present in all
material respects
in accordance with GAAP the consolidated financial position and
the consolidated
results of operations and cash flows (and changes in financial
position, if any)
of the Company and its Subsidiaries as of the times and for the
periods referred
to therein, except that any Financial Statements that are
unaudited, interim
financial statements were or are subject to normal and recurring
year end
adjustments which were not and are not expected, individually or
in the
aggregate, to be material in amount.
(b) Except as otherwise available via the SEC's Electronic
Data Gathering, Analysis, and Retrieval (EDGAR) service, the
Company has
heretofore made available to Parent, in the form filed with the
SEC (including
any amendments thereto), (i) its Annual Reports on Form 10-K for
its most
recently completed fiscal year and (ii) all other reports (other
than Quarterly
Reports on Form 10-Q) or registration statements filed by the
Company with the
SEC since September 29, 2003.
SECTION 4.5. Proxy Statement. In the event a Stockholders
Meeting is
held, none of the information included in the Proxy Statement
will, at the time
mailed to the Company's stockholders or at the time of the
Stockholders Meeting
contain any untrue statement of a material fact or omit to state
any material
fact required to be stated therein or necessary in order to make
the statements
therein, in light of the circumstances under which such
statements are made, not
misleading, except that no representation is made by the Company
with respect to
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<PAGE>
statements made in or omitted from the Proxy Statement relating
to Parent or its
Affiliates based on information supplied by Parent or its
Affiliates for
inclusion or incorporation by reference in the Proxy Statement.
The Proxy
Statement will comply as to form in all material respects with
the requirements
of the DGCL.
SECTION 4.6. Consents and Approvals, No Violations. No filing
with or
notice to, and no permit, authorization, consent or approval of,
any federal,
state, local or foreign court or tribunal or administrative,
governmental,
arbitral or regulatory body, agency or authority (each, a
"Governmental
Entity"), is required on the part of the Company or any of its
Subsidiaries for
the execution, delivery and performance by the Company of this
Agreement or the
Related Agreements or the consummation by the Company of the
transactions
contemplated hereby or thereby, except (a) pursuant to the
applicable
requirements of the Securities Act and the Exchange Act, (b) the
filing of the
Certificate of Merger pursuant to the DGCL, (c) where the
failure to obtain such
permits, authorizations, consents or approvals or to make such
filings or give
such notice would not, individually or in the aggregate, have a
Company Material
Adverse Effect, and (d) in connection with the requirements of
the HSR Act and
the rules and regulations in foreign jurisdictions governing
antitrust or merger
control matters. Neither the execution, delivery and performance
of this
Agreement or the Related Agreements to which it is a party by
the Company, nor
the consummation by the Company of the transactions contemplated
hereby or
thereby will (i) conflict with or result in any breach of any
provision of the
respective certificate of incorporation or bylaws (or similar
governing
documents) of the Company or of any its Subsidiaries, (ii)
result in a violation
or breach of, or constitute (with or without due notice or lapse
of time or
both) a default (or give rise to any right of termination,
amendment,
cancellation, alteration or acceleration, or result in the
creation of a Lien on
any property or asset of the Company or any of its Subsidiaries,
or trigger any
rights of first refusal) under, any of the terms, conditions or
provisions of
any note, bond, mortgage, indenture, lease, license, contract,
agreement or
other instrument or obligation to which the Company or any of
its Subsidiaries
is a party or by which any of them or any of their respective
properties,
capital stock or assets may be bound or result in the loss or
impairment of the
Company's or any of its Subsidiary's right to use the Company
Intellectual
Property, Company PVP Certificates or Company Germplasm, or
(iii) violate any
order, writ, injunction, decree, law, statute, rule or
regulation applicable to
the Company or any of its Subsidiaries or any of their
respective properties or
assets, except in the case of (ii) or (iii) above for
violations, breaches,
defaults or other occurrences that would not, individually or in
the aggregate,
have a Company Material Adverse Effect.
SECTION 4.7. No Default. None of the Company or any of its
Subsidiaries
is in default, breach or violation (and no event has occurred
that with notice
or the lapse of time or both would constitute a default, breach
or violation) of
any term, condition or provision of (a) its certificate of
incorporation or
bylaws (or similar governing documents), (b) any note, bond,
mortgage,
indenture, lease, license, contract, agreement or other
instrument or obligation
to which the Company or any of its Subsidiaries is now a party
or by which any
of them or any of their respective properties or assets may be
bound or (c) any
order, writ, injunction, decree, law, statute, rule or
regulation applicable to
the Company, any of its Subsidiaries or any of their respective
properties or
assets, except in the case of (b) or (c) above for violations,
breaches or
defaults that would not, individually or in the aggregate, have
a Company
Material Adverse Effect.
20
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SECTION 4.8. No Undisclosed Liabilities; Absence of Changes.
(a) Except (i) for liabilities incurred since September 30,
2004 in the ordinary course of business consistent with past
practice, or (ii)
for liabilities and obligations reasonably required by the
Merger or any other
transactions contemplated by this Agreement or the Related
Agreements, neither
the Company nor any of its Subsidiaries has, or has incurred
since September 30,
2004, any material liabilities or obligations of any nature,
whether or not
absolute, accrued, contingent or otherwise, that would be
required to be
reflected or reserved against on a consolidated balance sheet,
or in the notes
thereto, of the Company and its Subsidiaries prepared in
accordance with GAAP.
(b) Other than as reasonably required by this Agreement and
the Related Agreements, (i) since September 30, 2004 and prior
to the date
hereof, the Company and its Subsidiaries have conducted their
businesses in the
ordinary course of business consistent with past practice, and
(ii) since
September 30, 2004 and prior to the date hereof, the Company has
not taken any
of the actions set forth in paragraphs (a) through (q) of
Section 6.3.
(c) Since September 30, 2004, there has not been any Company
Material Adverse Effect.
SECTION 4.9. Compliance with Applicable Law.
(a) Except as would not, individually or in the aggregate,
have a Company Material Adverse Effect: (i) the Company and its
Subsidiaries
hold all permits, licenses, variances, exemptions, orders and
approvals of all
Governmental Entities necessary for them to own, lease or
operate their
properties and assets and to carry on their businesses as now
conducted
("Company Permits"); (ii) there has not occurred any default
under, or violation
of, or failure of compliance under, any such Company Permit;
(iii) the
businesses of the Company and its Subsidiaries, including but
not limited to
their practices with respect to the employment of labor are not
being, and have
not been, conducted in violation of any law, ordinance,
regulation, order,
judgment, injunction, writ or decree of any Governmental Entity;
and (iv) there
is (and during the past two years, there has been) no claim,
action, proceeding,
review or investigation pending or threatened against the
Company or any
Subsidiary of the Company or any of their respective products
by, on behalf of
or before any Governmental Entity.
(b) To the Company's Knowledge, neither the Company nor any
of
its Subsidiaries, nor any director, officer, agent or employee
of the Company or
any of its Subsidiaries, has, in the past five years, acting on
behalf of the
Company or any of its Subsidiaries, (i) made, authorized,
offered or promised to
make any unlawful payment or transfer of anything of value,
directly or
indirectly through a third party, to any officer, employee or
representative of
a foreign government or any department, agency or
instrumentality thereof
(including any state-owned enterprise), political party,
political campaign or
public international organization, in violation of the U.S.
Foreign Corrupt
Practices Act of 1977, as amended, or any applicable law of
similar effect; (ii)
otherwise taken any action which would cause the Company or any
of its
Subsidiaries to be in violation of the U.S. Foreign Corrupt
Practices Act of
1977, as amended, or any applicable law of similar effect; or
(iii) violated any
applicable law pertaining to export controls, antiboycott
restrictions or trade
sanctions.
21
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SECTION 4.10. Employee Benefit Matters.
(a) Section 4.10(a) of the Company Disclosure Schedule sets
forth a complete list of all material employee, consultant or
director benefit
plans, arrangements or agreements, including any employee
welfare benefit plan
within the meaning of Section 3(1) of the Employee Retirement
Income Security
Act of 1974, as amended ("ERISA"), any employee pension benefit
plan within the
meaning of Section 3(2) of ERISA (whether or not such plan is
subject to ERISA)
and any material bonus, incentive, deferred compensation,
retirement, welfare
benefit, vacation, stock purchase, stock option, equity,
severance, termination,
indemnity, employment, change of control or fringe benefit plan,
program,
arrangement or agreement that provides benefits to any current
or former
employee or director of the Company or any of its Subsidiaries
or any
beneficiary or dependent thereof or with respect to which the
Company or any of
its Subsidiaries could have a material liability (collectively,
the "Benefit
Plans"). The Company has made available to Parent for each
Benefit Plan, if
applicable, true and complete copies of (i) each Benefit Plan
(or, in the case
of any unwritten Benefit Plan, a description thereof) and any
amendment thereto,
(ii) the most recent summary plan description (or similar
document), (iii) the
most recent Annual Reports (Form 5500 Series) and accompanying
schedules, if
any, (iv) the most recent actuarial report, and (v) the most
recent
determination letter from the IRS (if applicable).
(b) Section 4.10(b) of the Company Disclosure Schedule
contains a complete and accurate list of all Key Employees,
setting forth their
respective names, current positions, salaries and target
bonuses.
(c) (i) Each Benefit Plan has been maintained and
administered
in material compliance with its terms and with all applicable
laws including
ERISA and the Code; (ii) each Benefit Plan intended to be
qualified under
Section 401(a) of the Code is so qualified and has been
determined by the IRS to
be so qualified, and, to the Company's Knowledge, no event has
occurred that
could reasonably be expected to adversely affect the qualified
status of such
Benefit Plan; (iii) neither the Company nor any of its
Subsidiaries has incurred
or is reasonably likely to incur any material liability or
penalty under
Sections 4975 or 4976 of the Code or Sections 409 or 502(i) of
ERISA; (iv) there
are no pending, or to the Company's Knowledge threatened, claims
against or
otherwise involving any of the Benefit Plans (other than routine
claims for
benefits); (v) no Benefit Plan is under audit or investigation
by the IRS, the
Department of Labor or the PBGC or any other Governmental
Entity, and no such
audit or investigation is pending or, to the Company's
Knowledge, threatened;
(vi) all contributions or other payments required to be made, as
well as all
required filings with Governmental Entities required to be made,
as of the date
of this Agreement to or pursuant to the Benefit Plans with
respect to the
Company or any of its Subsidiaries have been made; (vii) neither
the Company nor
any entity under "common control" with the Company within the
meaning of
Sections 414(b), (c), (m) or (o) of the Code or Section 4001 of
ERISA (an "ERISA
Affiliate") has at any time contributed to, or been required to
contribute to,
any "pension plan" (as defined in Section 3(2) of ERISA)
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