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.
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<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
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<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
<PAGE>
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
