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Agreement and Plan of Reorganization
Agreement and Plan of Reorganization (236K)
Doc #153509: Click preview link for longer preview.
AGREEMENT AND PLAN OF REORGANIZATION
This Agreement and Plan of Reorganization (this Agreement) is entered into as of December 9, 2002, to become effective on the date Silicon Image, Inc., a Delaware corporation (Parent) exercises its call option (pursuant to the Purchase Option Agreement), by and among Parent, TWN Acquisition Corp., a Delaware corporation and a wholly-owned subsidiary of Parent (Merger Sub), TransWarp Networks, Inc., a Delaware corporation (Company), Thomas Pak, as stockholder agent (the Stockholder Agent), and certain stockholders of Company listed on the signature page hereto (collectively, the Significant Stockholders and each individually, a Significant Stockholder), each of whom immediately prior to the consummation of the Merger (as defined below) will be a stockholder of Company.
RECITALS
A. The parties intend that, subject to the terms and conditions hereinafter set forth, Company will merge with and into Merger Sub (the Merger), with Merger Sub to be the surviving corporation of the Merger (the Surviving Corporation), all pursuant to the terms and conditions of this Agreement and the Certificate of Merger substantially in the form attached hereto as Exhibit A (the Certificate of Merger) and the applicable provisions of the laws of the State of Delaware. The parties intend for the Merger to be treated as a non-taxable reorganization within the meaning of Section 368(a) of the Internal Revenue Code of 1986, as amended (the Code), and in furtherance thereof, intend that this Agreement will be a plan of reorganization within the meaning of Sections 354(a) and 361(a) of the Code. The Merger will be accounted for as a purchase transaction for financial accounting purposes.
B. The Board of Directors of Company has determined that the Merger is in the best interest of Company and its stockholders (the Company Stockholders), has approved the Merger and, accordingly, has agreed to effect the Merger provided for herein upon the terms and conditions of this Agreement.
C. Prior to the effectiveness of this Agreement, the Board of Directors of Parent shall have determined that the Merger is in the best interests of Parent and its stockholders, shall have approved the Merger and, accordingly, shall have agreed to effect the Merger provided for herein upon the terms and conditions of this Agreement, including the creation of Merger Sub.
D. Concurrently with the execution of this Agreement, and as a condition and an inducement for Parent to enter into this Agreement, certain stockholders of Company are entering into agreements to, among other things, vote their shares of Company stock to approve the Merger in the form attached hereto as Exhibit B (the Voting Agreements).
E. Concurrently with the execution of this Agreement, and as a condition and an inducement for Parent to enter into this Agreement, certain stockholders of Company are entering into non-competition agreements with Parent in the form attached hereto as Exhibit C (the Non-Competition Agreements), which will only be effective upon the closing of the Merger.
1
F. Company has granted to Parent a call option to make effective this Agreement, such call option agreement is attached hereto as Exhibit D (the Option Agreement)
NOW, THEREFORE, the parties hereto agree as follows:
1. PLAN OF REORGANIZATION
1.1 The Merger. As soon as practicable after the Closing (as defined in Section 5.1), the Certificate of Merger will be filed with the Secretary of State of the State of Delaware. The effective time of the Merger (the Effective Time) shall be the time of filing of the Certificate of Merger with the Secretary of State of Delaware unless otherwise specified in the Certificate of Merger which will occur on the Closing Date (as defined in Section 5.1) at 10 a.m. P.S.T. or at such other time as Parent and Company may mutually agree. Subject to the terms and conditions of this Agreement and the applicable provisions of Delaware law, Company will be merged with and into Merger Sub in a statutory merger pursuant to the Certificate of Merger.
1.2 Conversion and Exchange of Shares.
(a) Conversion of Merger Sub Stock. At the Effective Time, each share of Merger Sub common stock that is issued and outstanding immediately prior to the Effective Time will constitute one validly issued, fully paid and nonassessable share of common stock of the Surviving Corporation. Each certificate evidencing ownership of shares of Merger Sub common stock will evidence ownership of such shares of common stock of the Surviving Corporation.
(b) Conversion of Series A Stock. Each share of outstanding Companys Series A Preferred Stock, par value $0.0001 (the Company Series A Stock), that is issued and outstanding immediately prior to the Effective Time will, by virtue of the Merger, and without further action on the part of any holder thereof, be automatically converted into the right to receive, and shall be exchangeable for (subject to Sections 1.2(f), 1.2(h), 1.2(i), 1.2(j), 1.3 and 1.10), at the Effective Time, that fraction of a fully paid and nonassessable shares of Parent common stock, $0.001 par value per share (Parent Common Stock) equal to the Series A Exchange Number (as defined in Section 1.2(e) below);
(c) Conversion of Company Common Stock. Each share of outstanding common stock of Company, par value $0.0001 (the Company Common Stock), that is issued and outstanding immediately prior to the Effective Time will, by virtue of the Merger, and without further action on the part of any holder thereof, be automatically converted into the right to receive, and shall be exchangeable for (subject to Sections 1.2(f), 1.2(h), 1.2(i), 1.2(j), 1.3 and 1.10), at the Effective Time that fraction of a fully paid and nonassessable shares of Parent Common Stock equal to the Common Stock Exchange Number (as defined in Section 1.2(e) below);
153509
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Silicon Image
As referenced in this Agreement and Plan of Reorganization:
SILICON IMAGE, INC. –
EX-2.01 3 j9583_ex2d01.htm EX-2.01
EXHIBIT 2.01
AGREEMENT AND PLAN OF REORGANIZATION
AMONG
SILICON IMAGE, INC. ,
TWN ACQUISITION CORP.,
TRANSWARP NETWORKS, INC.,
THOMAS PAK, AS STOCKHOLDER AGENT,
AND
CERTAIN STOCKHOLDERS OF TRANSWARP NETWORKS, INC.
DECEMBER 9, 2002
This agreement will become effective on the date
_____________
Silicon Image, Inc. – INC.,
TWN ACQUISITION CORP.,
TRANSWARP NETWORKS, INC.,
THOMAS PAK, AS STOCKHOLDER AGENT,
AND
CERTAIN STOCKHOLDERS OF TRANSWARP NETWORKS, INC.
DECEMBER 9, 2002
This agreement will become effective on the date Silicon Image, Inc. exercises its call option, automatically and with no further action by any of the parties hereto
AGREEMENT AND PLAN OF REORGANIZATION
This Agreement and Plan of Reorganization (this Agreement)
_____________
Silicon Image, Inc. – the parties hereto
AGREEMENT AND PLAN OF REORGANIZATION
This Agreement and Plan of Reorganization (this Agreement) is entered into as of December 9, 2002, to become effective on the date Silicon Image, Inc. , a Delaware corporation (Parent) exercises its call option (pursuant to the Purchase Option Agreement), by and among Parent, TWN Acquisition Corp., a Delaware corporation and a wholly-owned subsidiary
_____________
Silicon Image, Inc. – deemed given upon actual delivery or, if mailed by registered or certified mail, on the third business day following deposit in the mails, addressed as follows:
(a) If to Parent:
Silicon Image, Inc.
1060 East Arques Ave.
Sunnyvale, CA 94086
Attention: Howard Freedland, Esq.
General Counsel
Phone: (408) 616-4000
Fax: (408) 830-9531
with a copy to:
Fenwick & West LLP
_____________
Silicon Image, Inc. – Street, Suite 1500
San Francisco, CA 94111
Attention: David K. Michaels, Esq.
Phone: (415) 875-2300
Fax: (415) 281-1350
(b) If to Merger Sub:
TWN Acquisition Corp.
c/o Silicon Image, Inc.
1060 East Arques Ave.
Sunnyvale, CA 94086
48
Attention: Howard Freedland
Secretary
Phone: (408) 616-4000
Fax: (408) 830-9531
with a copy to:
Fenwick & West LLP
275
_____________
dt 1460803
;
Silicon Image
As referenced in this Agreement and Plan of Reorganization:
SILICON IMAGE, INC. –
EX-2.01 3 j9583_ex2d01.htm EX-2.01
EXHIBIT 2.01
AGREEMENT AND PLAN OF REORGANIZATION
AMONG
SILICON IMAGE, INC. ,
TWN ACQUISITION CORP.,
TRANSWARP NETWORKS, INC.,
THOMAS PAK, AS STOCKHOLDER AGENT,
AND
CERTAIN STOCKHOLDERS OF TRANSWARP NETWORKS, INC.
DECEMBER 9, 2002
This agreement will become effective on the date
_____________
Silicon Image, Inc. – INC.,
TWN ACQUISITION CORP.,
TRANSWARP NETWORKS, INC.,
THOMAS PAK, AS STOCKHOLDER AGENT,
AND
CERTAIN STOCKHOLDERS OF TRANSWARP NETWORKS, INC.
DECEMBER 9, 2002
This agreement will become effective on the date Silicon Image, Inc. exercises its call option, automatically and with no further action by any of the parties hereto
AGREEMENT AND PLAN OF REORGANIZATION
This Agreement and Plan of Reorganization (this Agreement)
_____________
Silicon Image, Inc. – the parties hereto
AGREEMENT AND PLAN OF REORGANIZATION
This Agreement and Plan of Reorganization (this Agreement) is entered into as of December 9, 2002, to become effective on the date Silicon Image, Inc. , a Delaware corporation (Parent) exercises its call option (pursuant to the Purchase Option Agreement), by and among Parent, TWN Acquisition Corp., a Delaware corporation and a wholly-owned subsidiary
_____________
Silicon Image, Inc. – deemed given upon actual delivery or, if mailed by registered or certified mail, on the third business day following deposit in the mails, addressed as follows:
(a) If to Parent:
Silicon Image, Inc.
1060 East Arques Ave.
Sunnyvale, CA 94086
Attention: Howard Freedland, Esq.
General Counsel
Phone: (408) 616-4000
Fax: (408) 830-9531
with a copy to:
Fenwick & West LLP
_____________
Silicon Image, Inc. – Street, Suite 1500
San Francisco, CA 94111
Attention: David K. Michaels, Esq.
Phone: (415) 875-2300
Fax: (415) 281-1350
(b) If to Merger Sub:
TWN Acquisition Corp.
c/o Silicon Image, Inc.
1060 East Arques Ave.
Sunnyvale, CA 94086
48
Attention: Howard Freedland
Secretary
Phone: (408) 616-4000
Fax: (408) 830-9531
with a copy to:
Fenwick & West LLP
275
_____________
dt 1460812
;
 Mellon Investor
As referenced in this Agreement and Plan of Reorganization:
Mellon Investor Services, – registered in the name of the holder of such certificate. Parent shall make available to Mellon Investor Services, L.L.C. (the Exchange Agent) certificates representing Parent Common Stock to be issued
dt 41195
;
|
U.S. Bank, NA
As referenced in this Agreement and Plan of Reorganization:
U.S. Bank National Association, – corporation (Parent), Thomas Pak, as the stockholder agent (the Stockholder Agent), to the stockholders of TransWarp Networks, Inc., a Delaware corporation (Company), and U.S. Bank National Association, as Escrow Agent (the Escrow Agent).
RECITALS
A. Parent, Company, TWN Acquisition Corp., a Delaware corporation and a wholly-owned subsidiary of
_____________
U.S. BANK NATIONAL ASSOCIATION. – ONLY IN ACCORDANCE WITH THE TERMS OF AN ESCROW AGREEMENT AMONG THE ISSUER, THOMAS PAK (AS STOCKHOLDER AGENT OF THE HOLDER THEREOF), AND U.S. BANK NATIONAL ASSOCIATION. A COPY OF SUCH AGREEMENT IS ON FILE AT THE PRINCIPAL OFFICE OF THE ISSUER.
5
(j) Updating. Parent and the Stockholder
_____________
U.S. Bank National Association
– is deposited in the United States mail, first class certified or registered mail, postage prepaid, addressed as follows:
If to the Escrow Agent:
U.S. Bank National Association
550 S. Hope Street, 5th Floor
Los Angeles, CA 90071
Attn: Corporate Trust Services
(Silicon Image/TransWarp Escrow)
Fax Number: (213) 533-
_____________
U.S. Bank National Association
– By:
/s/ Thomas Pak
Name:
Robert G. Gargus
Name: Thomas Pak
Title:
Vice President Finance and Administration and Chief Financial Officer
ESCROW AGENT:
U.S. Bank National Association
By:
/s/ Paula M. Oswald
Name:
Paula M. Oswald
Title:
Vice President
EXHIBIT A
To Escrow Agreement
Company Stockholder
Initial Escrow
Shares
_____________
dt 187792
;
 Brobeck Phleger
As referenced in this Agreement and Plan of Reorganization:
Brobeck, Phleger – on Company or Parent.
7.7 Opinion of Companys Counsel. Parent shall have received from Brobeck, Phleger & Harrison LLP, counsel to Company, an opinion substantially in the form attached hereto
Brobeck, Phleger – Attention: Bill Weir
Phone: (408) 635-0091
Fax: (408) 635-0095
with a copy to:
Brobeck, Phleger & Harrison LLP
2000 University Ave.
East Palo Alto, CA 94303
Attention: Curtis L.
Brobeck, Phleger – Fremont, CA 94536
Phone: (408) 635-0091
Fax: (408) 635-0095
with a copy to:
Brobeck, Phleger & Harrison LLP
2000 University Ave.
East Palo Alto, CA 94303
Attention: Curtis L.
Brobeck Phleger – 51
%
Korea Technology Investment Corp.
9,827
2.51
%
ShinJe Tahk
1,492
0.38
%
Brobeck Phleger & Harrison LLP
1,244
0.32
%
Curtis Mo
310
0.08
%
KyongWon Pak
dt 30526
;
More... |
| Preview
Full Doc
| 2001 |
Agreement and Plan of Merger and Reorganization
Agreement and Plan of Merger and Reorganization (239K)
Doc #290039: Click preview link for longer preview.
AGREEMENT AND PLAN OF MERGER AND REORGANIZATION
BY AND BETWEEN
MICREL, INCORPORATED
KOURNIKOVA ACQUISITION SUB, INC.
KENDIN COMMUNICATIONS INC.
AND
WITH RESPECT TO ARTICLES VIII AND IX ONLY,
JOHN C.C. FAN,
SOLELY IN HIS CAPACITY AS STOCKHOLDERS' AGENT
May 4, 2001
_____________________________________________________________________________
Morrison & Foerster LLP
755 Page Mill Road
Palo Alto, CA 94304
{PAGE}
TABLE OF CONTENTS
Page
ARTICLE I THE MERGER 2
1.1 The MERGER. 2
1.2 Closing; Effective Time. 2
1.3 Effect of the Merger. 2
1.4 Certificate of Incorporation; Bylaws. 2
1.5 Directors and Officers. 3
1.6 Effect on Capital Stock. 3
1.7 Surrender of Certificates. 5
1.8 No Further Ownership Rights in Company Capital Stock. 7
1.9 Tax and Accounting Consequences. 8
1.10 Withholding Rights. 8
1.11 Exemption from Registration. 8
1.12 Legends. 9
1.13 Taking of Necessary Action; Further Action. 11
ARTICLE II REPRESENTATIONS AND WARRANTIES OF COMPANY 11
2.1 Organization, Standing and Power. 11
2.2 Capital Structure. 12
2.3 Authority. 13
2.4 Financial Statements. 14
2.5 Absence of Certain Changes. 15
2.6 Absence of Undisclosed Liabilities. 16
2.7 Proceedings; Orders. 17
2.8 Restrictions on Business Activities. 17
2.9 Governmental Authorization. 17
2.10 Title to Personal Property. 18
2.11 Intellectual Property. 18
2.12 Environmental Matters. 20
2.13 Taxes. 21
2.14 Employee Benefit Plans. 22
2.15 Certain Agreements Affected by the Merger. 24
2.16 Employee Matters. 24
2.17 Interested Party Transactions. 26
2.18 Insurance. 26
2.19 Compliance With Laws. 26
2.20 Minute Books. 26
2.21 Brokers' and Finders' Fees. 26
2.22 Company Affiliates Agreements; Stockholder Voting Agreements;
Irrevocable Proxies. 26
2.23 Vote Required. 27
i
{PAGE}
2.24 Board Approval. 27
2.25 Inventory. 27
2.26 Accounts Receivable. 27
2.27 Customers and Suppliers. 28
2.28 Material Contracts. 28
2.29 No Breach of Material Contracts. 29
2.30 Material Third Party Consents. 29
2.31 Real Property. 30
2.32 Information Statement. 31
2.33 Accounting and Reorganization Matters. 31
2.34 Export Control Laws. 31
2.35 Representations Complete. 31
ARTICLE III REPRESENTATIONS AND WARRANTIES OF PARENT AND
MERGER SUB 32
3.1 Organization, Standing and Power. 32
3.2 Capital Structure. 32
3.3 Authority. 32
3.4 SEC Documents; Financial Statements. 33
3.5 Absence of Certain Changes. 34
3.6 Absence of Undisclosed Liabilities. 34
3.7 Litigation. 34
3.8 Broker's and Finders' Fees. 34
3.9 Board Approval; No Shareholder Approval Required. 34
3.10 Interim Operations of Merger Sub. 35
3.11 Information Statement. 35
3.12 Accounting and Reorganization Matters. 35
3.13 Representations Complete. 35
ARTICLE IV CONDUCT PRIOR TO THE EFFECTIVE TIME 35
4.1 Conduct of Business of Company. 35
4.2 Restriction on Conduct of Business of Company. 36
4.3 No Solicitation. 38
4.4 Restriction on Conduct of Business of Parent. 39
ARTICLE V ADDITIONAL AGREEMENTS 39
5.1 Information Statement. 39
5.2 Company Stockholders Meeting. 40
5.3 Access to Information; Disclosure Schedule Updates. 40
5.4 Confidentiality. 41
5.5 Public Disclosure. 42
5.6 Consents; Cooperation. 42
5.7 Affiliates Agreements and Holder Representation Agreement. 43
5.8 Legal Requirements. 43
ii
{PAGE}
5.9 Blue Sky Laws. 44
5.10 Employee Benefit Plans. 44
5.11 Escrow Agreement. 46
5.12 Expenses. 46
5.13 Treatment as Reorganization. 47
5.14 Reasonable Best Efforts and Further Assurances. 47
5.15 Takeover Statutes. 47
5.16 Warrants and Convertible Securities. 47
5.17 Pooling Accounting. 47
5.18 Pooling Letters. 48
5.19 Notices. 48
5.20 Waivers of Rights of First Refusal. 48
5.21 Listing of Additional Shares. 49
5.22 FIRPTA Certificate. 49
5.23 Resignation of Directors and Officers. 49
5.24 Indemnification of Former Company Directors and Officers. 49
5.25 Good Standing Certificates. 49
ARTICLE VI CONDITIONS TO THE MERGER 50
6.1 Conditions to Obligations of Each Party to Effect the
Merger. 50
6.2 Additional Conditions to Obligations of Company. 50
6.3 Additional Conditions to the Obligations of Parent. 51
ARTICLE VII TERMINATION, AMENDMENT AND WAIVER 53
7.1 Termination. 53
7.2 Effect of Termination. 54
7.3 Termination Fees. 54
7.4 Amendment. 55
7.5 Extension; Waiver. 55
ARTICLE VIII ESCROW AND INDEMNIFICATION 55
8.1 Escrow Fund. 55
8.2 Indemnification. 55
8.3 Payment for Parent Damages. 56
8.4 Escrow Period. 57
8.5 Claims upon Escrow Fund. 57
8.6 Objections to Claims. 58
8.7 Resolution of Conflicts; Arbitration. 58
8.8 Stockholders' Agent. 59
8.9 Actions of the Stockholders' Agent. 61
8.10 Third-Party Claims. 61
8.11 Voting Rights and Cash Distributions With Respect to Escrow
Shares. 62
ARTICLE IX GENERAL PROVISIONS 62
iii
{PAGE}
9.1 Non-Survival at Effective Time. 62
9.2 Notices. 62
9.3 Interpretation. 64
9.4 Counterparts; Facsimile Delivery. 64
9.5 Entire Agreement; Nonassignability; Parties in Interest. 64
9.6 Severability. 64
9.7 Remedies Cumulative. 65
9.8 Governing Law. 65
9.9 Rules of Construction. 65
APPENDICES AND SCHEDULES
Appendix 1 - Index of Certain Definitions
Company Disclosure Schedule
Schedule 5.7(a) - List of Company Affiliates
Schedule 5.7(b) - List of Parent Affiliates
EXHIBITS
Exhibit A - Certificate of MERGER
Exhibit B-1 - Company Affiliates Agreement
Exhibit B-2 - Parent Affiliates Agreement
Exhibit C - Stockholder Voting Agreement
Exhibit D - Confidentiality Agreement
Exhibit E - Holder Representation Agreement
Exhibit F-1 - ISO Replacement Option Agreement
Exhibit F-2 - NSO Replacement Option Agreement
Exhibit G - Escrow Agreement
Exhibit H - FIRPTA Notice
Exhibit I - IRS Notice
Exhibit J-1 - Company Tax Certificate
Exhibit J-2 - Parent Tax Certificate
Exhibit K - Form of Legal Opinion of Wilson Sonsini Goodrich &
Rosati, Professional Corporation
iv
{PAGE}
AGREEMENT AND PLAN OF merger and REORGANIZATION
THIS AGREEMENT AND PLAN OF MERGER AND REORGANIZATION (the
"Agreement") is made as of May 4, 2001 (the "Execution Date") by and among
MICREL, INCORPORATED, a California corporation ("Parent"), KOURNIKOVA
ACQUISITION SUB, INC., a Delaware corporation ("Merger Sub"), KENDIN
COMMUNICATIONS INC., a Delaware corporation ("Company"), and, with respect to
Articles VIII and IX only John C.C. Fan, an individual resident of the State
of Massachusetts, solely in his capacity as Stockholders' Agent
("Stockholders' Agent"). Certain terms used in this Agreement are defined in
Appendix 1.
RECITALS
A. The Boards of Directors of Parent, Merger Sub and Company
each have determined that the acquisition of Company by Parent through the
merger of Merger Sub with and into Company pursuant to the terms and subject
to the conditions set forth herein (the "Merger") is in the best interests of
their respective companies and stockholders and/or shareholders.
B. Merger Sub is a wholly-owned subsidiary of Parent.
C. Pursuant to the Merger, among other things, each
outstanding share of Company Capital Stock shall be converted into shares of
common stock of Parent, at the rate set forth herein.
D. Company and Parent desire to make certain representations,
warranties, covenants and other agreements in connection with the Merger.
E. The parties intend, by executing this Agreement, to adopt a
plan of reorganization within the meaning of Section 368 of Code, and to
cause the Merger to qualify as a reorganization under the provisions of
Section 368(a) of the Code.
F. The parties intend that for financial accounting purposes,
the Merger shall be accounted for as a pooling-of-interests.
G. As an inducement to Parent to enter into this Agreement,
the officers and directors and certain of the Company Stockholders have
concurrently herewith entered into Stockholder Voting Agreements to vote the
shares of Company Capital Stock owned by such Persons to approve and adopt
this Agreement and approve the Merger.
F. The Parent Affiliates and the Company Affiliates have
concurrently herewith entered into Parent Affiliates Agreements and Company
Affiliates Agreements, respectively, agreeing to certain restrictions on the
transfer of Parent Common Stock in connection with the accounting for the
Merger as a pooling-of-interests.
G. Deloitte & Touche LLP has concurrently herewith delivered
to each of Parent and Company their respective pooling letters as provided in
Sections 5.18(a) and 5.18(b),
1
{PAGE}
and will deliver at Closing a "bring-down" of
such pooling letters to each of Parent and Company.
NOW, THEREFORE, in consideration of the covenants and
representations set forth herein, and for other good and valuable
consideration, the parties hereto agree as follows:
ARTICLE I
THE MERGER
1.1 The Merger.
Subject to and in accordance with the terms and conditions set
forth in this Agreement, at the Effective Time, Merger Sub shall be merged
with and into Company, which shall be the surviving corporation (the
"Surviving Corporation") in the Merger, and the separate existence of Merger
Sub shall thereupon cease. The name of the Surviving Corporation shall
remain "Kendin Communications Inc." The Merger shall have the effects set
forth in the applicable provisions of Delaware Law.
1.2 Closing; Effective Time.
The closing of the transactions contemplated hereby (the
"Closing") shall take place as soon as practicable, but not later than the
second business day, after the satisfaction or waiver of each of the
conditions set forth in Article VI hereof (other than those conditions which,
by their terms, are to be satisfied or waived on the Closing Date) or at such
other time as the parties hereto agree in writing (the "Closing Date"). The
Closing shall take place at the offices of Morrison & Foerster, LLP, 755 Page
Mill Road, Palo Alto, California, or at such other location as the parties
hereto agree in writing. In connection with the Closing, the parties hereto
shall cause the Merger to be consummated by filing the Certificate of Merger,
in the form attached hereto as Exhibit A (the "Certificate of Merger"), with
the Secretary of State of the State of Delaware, in accordance with the
relevant provisions of Delaware Law (the time of such filing with the
Secretary of State of Delaware (or such later time as may be agreed in
writing by the parties hereto and specified in the Certificate of Merger)
being the "Effective Time").
1.3 Effect of the Merger.
At the Effective Time, the effect of the Merger shall be as
provided in this Agreement, the Certificate of Merger and the applicable
provisions of Delaware Law. Without limiting the generality of the
foregoing, and subject thereto, at the Effective Time, all the property,
rights, privileges, powers and franchises of Company and the Merger Sub shall
vest in the Surviving Corporation, and all debts, liabilities and duties of
Company and the Merger Sub shall become the debts, liabilities and duties of
the Surviving Corporation.
1.4 Certificate of Incorporation; Bylaws.
(a) At the Effective Time, the Certificate of
Incorporation of Company, as in effect immediately prior to the Effective
Time, shall be the Certificate of Incorporation of the Surviving Corporation
until thereafter amended as provided by Delaware Law and such Certificate of
Incorporation; provided, that as of the Effective Time, Company's Certificate
of Incorporation shall be amended as set forth in Annex A to the Certificate
of Merger.
2
{PAGE}
(b) The Bylaws of Merger Sub, as in effect immediately
prior to the Effective Time, shall be the Bylaws of the Surviving Corporation
until thereafter amended as provided by Delaware Law and such Bylaws.
1.5 Directors and Officers.
At the Effective Time, the directors of Merger Sub, as in
effect immediately prior to the Effective Time, shall be the directors of the
Surviving Corporation, until their respective successors are duly elected or
appointed and qualified. The officers of Merger Sub, as in effect
immediately prior to the Effective Time, shall be the officers of the
Surviving Corporation, until their respective successors are duly elected or
appointed and qualified.
1.6 Effect on Capital Stock.
(a) Conversion of Company Capital Stock.
(i) By virtue of the Merger and without any action
on the part of Parent, Company, the Merger Sub or the holders of any of
Company's securities, at the Effective Time, each share of Company Capital
Stock issued and outstanding immediately prior to the Effective Time
(excluding any shares cancelled pursuant to Section 1.6(b) and excluding any
Dissenting Shares) will be cancelled and extinguished and automatically
converted into the right to receive that number of shares of Parent Common
Stock equal to the Exchange Ratio and cash in lieu of fractional shares (less
any amount required to be withheld under foreign, federal, state or local tax
laws) in accordance with Section 1.6(e); provided that the maximum number of
shares of Parent Common Stock to be issued (including shares of Parent Common
Stock to be reserved for issuance upon exercise of Company Options converted
into Parent Options) and upon exercise, exchange or conversion of Company
Convertible Securities (other than those which are exercised or exchanged for
or converted into Company Capital Stock on or prior to the Effective Time))
and in exchange for the acquisition by Parent of all outstanding Company
Capital Stock and all unexpired and unexercised, unexchanged or unconverted
outstanding Company Convertible Securities shall not be more than 6,176,762
shares of Parent Common Stock, reduced as a result of any Dissenting Shares.
(ii) To the extent that any Company Stockholder
holds shares of Company Capital Stock issued and outstanding immediately
prior to the Effective Time that are unvested or are subject to a repurchase
option, risk of forfeiture or other condition under any applicable restricted
stock purchase agreement or other agreement with Company ("Restricted
Stock"), the shares of Parent Common Stock issued to such holder in the
Merger in exchange for such holder's shares of Restricted Stock shall also be
unvested and subject to the same repurchase option, risk of forfeiture or
other condition post-Merger.
(iii) No adjustment shall be made in the number of
shares of Parent Common Stock issued in the Merger as a result of (x) any
increase or decrease in the market price of Parent Common Stock prior to the
Effective Time, or (y) any cash proceeds received by Company from the date
hereof to the Closing Date pursuant to the exercise of currently outstanding
290039
|
Morrison
As referenced in this Agreement and Plan of Merger and Reorganization:
Morrison & Foerster – WITH RESPECT TO ARTICLES VIII AND IX ONLY,
JOHN C.C. FAN,
SOLELY IN HIS CAPACITY AS STOCKHOLDERS' AGENT
May 4, 2001
_____________________________________________________________________________
Morrison & Foerster LLP
755 Page Mill Road
Palo Alto, CA 94304
{PAGE}
TABLE OF CONTENTS
Page
ARTICLE I THE MERGER 2
1.1 The MERGER.
_____________
Morrison & Foerster, – at such
other time as the parties hereto agree in writing (the "Closing Date"). The
Closing shall take place at the offices of Morrison & Foerster, LLP, 755 Page
Mill Road, Palo Alto, California, or at such other location as the parties
hereto agree in writing. In connection
_____________
Morrison & Foerster – Jose, CA 95131
Attention: J. Vincent Tortolano
Facsimile No.: (408) 474-1077
Telephone No.: (408) 474-1236
62
{PAGE}
with a copy to:
Morrison & Foerster LLP
755 Page Mill Road
Palo Alto, CA 94304-1018
Attention: Stephen J. Schrader, Esq.
Facsimile No.: (650) 494-0792
Telephone No.: (650)
_____________
dt 241950
;
|
WSGR
As referenced in this Agreement and Plan of Merger and Reorganization:
Wilson Sonsini – Exhibit I - IRS Notice
Exhibit J-1 - Company Tax Certificate
Exhibit J-2 - Parent Tax Certificate
Exhibit K - Form of Legal Opinion of Wilson Sonsini Goodrich &
Rosati, Professional Corporation
iv
{PAGE}
AGREEMENT AND PLAN OF merger and REORGANIZATION
THIS AGREEMENT AND PLAN OF MERGER AND REORGANIZATION (the
"
_____________
Wilson Sonsini – shall any Proceeding brought by a Governmental
Body seeking the foregoing be pending.
(e) Opinions. Parent shall have received a legal opinion
from Wilson Sonsini Goodrich & Rosati, Professional Corporation, Company's
legal counsel, dated the Closing Date, in substantially the form of Exhibit
K.
(f) No Material
_____________
Wilson Sonsini – Drive
Sunnyvale, CA 94085
Attn: Ray Wallin, CFO
Facsimile No.: (408) 735-1119
Telephone No.: (408) 735-1118 x216
with a copy to:
Wilson Sonsini Goodrich & Rosati, Professional Corporation
650 Page Mill Road
Palo Alto, CA 94304
Attn: Michael J. Danaher, Esq.
Facsimile No.: (650) 845-5000
_____________
Wilson Sonsini – Attn: John J. Concannon III, Esq.
Facsimile No.: (617) 951-8736
Telephone No.: (617) 951-8874
63
{PAGE}
and a further copy to:
Wilson Sonsini Goodrich & Rosati, Professional Corporation
650 Page Mill Road
Palo Alto, CA 94304
Attn: Michael J. Danaher, Esq.
Facsimile No.: (650) 845-5000
_____________
dt 237744
|
| Preview
Full Doc
| 2001 |
Agreement and Plan of Merger
Agreement and Plan of Merger (251K)
Doc #313949: Click preview link for longer preview.
AGREEMENT AND PLAN OF MERGER
DATED AS OF JANUARY 15, 2001
BY AND AMONG
XIRCOM, INC.,
INTEL CORPORATION
AND
ESR ACQUISITION CORPORATION
{PAGE} 2
TABLE OF CONTENTS
{TABLE}
{S} {C}
Article 1 THE OFFER........................................................................2
1.1 The Offer....................................................................2
1.2 Company Actions..............................................................4
1.3 Boards of Directors and Committees; Section 14(f) of Exchange Act............6
Article 2 THE MERGER.......................................................................7
2.1 The Merger...................................................................7
2.2 Effective Time...............................................................7
2.3 Closing of the Merger........................................................7
2.4 Effects of the Merger........................................................8
2.5 Articles of Incorporation and Bylaws.........................................8
2.6 Directors....................................................................8
2.7 Officers.....................................................................8
2.8 Conversion of Shares.........................................................8
2.9 Dissenters' Rights...........................................................9
2.10 Exchange of Certificates.....................................................9
2.11 Stock Options...............................................................11
2.12 Withholding Taxes...........................................................12
Article 3 REPRESENTATIONS AND WARRANTIES OF THE COMPANY...................................13
3.1 Organization and Qualification; Subsidiaries; Investments...................13
3.2 Capitalization of the Company and its Subsidiaries..........................14
3.3 Authority Relative to this Agreement; Recommendation........................15
3.4 SEC Reports; Financial Statements...........................................16
3.5 Information Supplied........................................................16
3.6 Consents and Approvals; No Violations.......................................17
3.7 No Default..................................................................18
3.8 No Undisclosed Liabilities; Absence of Changes..............................18
3.9 Litigation..................................................................19
3.10 Compliance with Applicable Law..............................................20
3.11 Employee Benefits...........................................................20
3.12 Labor and Employment Matters................................................22
{/TABLE}
i
{PAGE} 3
{TABLE}
{S} {C}
3.13 Environmental Laws and Regulations..........................................24
3.14 Taxes.......................................................................25
3.15 Intellectual Property.......................................................27
3.16 Insurance...................................................................32
3.17 Certain Business Practices..................................................33
3.18 Product Warranties..........................................................33
3.19 Suppliers and Customers.....................................................33
3.20 Material Contracts..........................................................33
3.21 Vote Required...............................................................34
3.22 Opinion of Financial Advisor................................................34
3.23 Brokers.....................................................................34
3.24 Takeover Statutes...........................................................34
3.25 Representations Complete....................................................35
Article 4 REPRESENTATIONS AND WARRANTIES OF PARENT AND ACQUISITION........................35
4.1 Organization................................................................35
4.2 Authority Relative to this Agreement........................................35
4.3 Information Supplied........................................................36
4.4 Consents and Approvals; No Violations.......................................36
4.5 Litigation..................................................................36
4.6 Brokers.....................................................................37
4.7 Financing...................................................................37
4.8 No Prior Activities.........................................................37
Article 5 COVENANTS.......................................................................37
5.1 Conduct of Business of the Company..........................................37
5.2 No Solicitation or Negotiation..............................................40
5.3 Meeting of Shareholders.....................................................42
5.4 Access to Informaton........................................................43
5.5 Certain Filings; Reasonable Efforts.........................................44
5.6 Public Announcements........................................................45
5.7 Indemnification and Directors' and Officers' Insurance......................46
5.8 Notification of Certain Matters.............................................47
{/TABLE}
ii
{PAGE} 4
{TABLE}
{S} {C}
5.9 Additions to and Modification of Company Disclosure Schedule................47
5.10 Access to Company Employees.................................................48
5.11 Company Compensation and Benefit Plans......................................48
5.12 Statement of Cash and Net Working Capital...................................49
5.13 Takeover Statutes...........................................................49
Article 6 CONDITIONS TO CONSUMMATION OF THE MERGER........................................49
6.1 Conditions to Each Party's Obligations to Effect the Merger.................49
6.2 Conditions to Obligations of the Company....................................50
6.3 Conditions to Obligations of Parent and Acquisition.........................50
Article 7 TERMINATION; AMENDMENT; WAIVER..................................................51
7.1 Termination.................................................................51
7.2 Effect of Termination.......................................................53
7.3 Fees and Expenses...........................................................53
7.4 Amendment...................................................................55
7.5 Extension; Waiver...........................................................55
Article 8 MISCELLANEOUS...................................................................55
8.1 Nonsurvival of Representations and Warranties...............................55
8.2 Entire Agreement; Assignment................................................55
8.3 Validity....................................................................56
8.4 Notices.....................................................................56
8.5 Governing Law and Venue; Waiver of Jury Trial...............................57
8.6 Descriptive Headings........................................................58
8.7 Parties in Interest.........................................................58
8.8 Certain Definitions.........................................................58
8.9 Personal Liability..........................................................59
8.10 Specific Performance........................................................59
8.11 Counterparts................................................................60
{/TABLE}
iii
{PAGE} 5
TABLE OF DEFINED TERMS
{TABLE}
{CAPTION}
Term Page
---- ----
{S} {C}
Acquisition .......................................................... 1
affiliate ............................................................ 58
Agreement ............................................................ 1
Agreement of Merger .................................................. 7
Applicable Law ....................................................... 58
Assumed Options ...................................................... 11
business day ......................................................... 59
capital stock ........................................................ 59
CCC .................................................................. 7
Certificate of Merger ................................................ 7
Certificate of Ownership ............................................. 7
Certificate of Ownership and Merger .................................. 7
Certificates ......................................................... 10
Closing .............................................................. 7
Closing Date ......................................................... 7
Code ................................................................. 12
Company .............................................................. 1
Company Acquisition .................................................. 59
Company Board ........................................................ 2
Company Common Stock ................................................. 1
Company Disclosure Schedule .......................................... 13
Company Financial Advisor ............................................ 4
Company Permits ...................................................... 20
Company Policies ..................................................... Annex A
Company SEC Reports .................................................. 16
Company Securities ................................................... 14
Company Stock Option ................................................. 11
Compensation and Benefit Plans ....................................... 20
Continuing Directors ................................................. 6
Contract ............................................................. 34
Copyrights ........................................................... 28
Current Assets ....................................................... Annex A
Current Liabilities .................................................. Annex A
DGCL ................................................................. 7
Dissenting Shareholders .............................................. 9
Dissenting Shares .................................................... 9
DOI .................................................................. Annex A
Effective Time ....................................................... 7
Environmental Laws ................................................... 24
ERISA ................................................................ 20
Exchange Act ......................................................... 2
{/TABLE}
iv
{PAGE} 6
{TABLE}
{S} {C}
Exchange Agent ....................................................... 9
Exchange Fund ........................................................ 9
Exchange Ratio ....................................................... 12
Fairness Opinion ..................................................... 4
Final Date ........................................................... 51
Final Statement Date ................................................. 50
Foreign Plans ........................................................ 22
GAAP ................................................................. 16
Governmental Entity .................................................. 17
Hazardous Material ................................................... 24
HSR Act .............................................................. 17
Inbound License Agreements ........................................... 29
include .............................................................. 59
Indemnified Liabilities .............................................. 46
Indemnified Persons .................................................. 46
Insurance Policies ................................................... 32
Insured Parties ...................................................... 47
Intellectual Property ................................................ 27
Lien ................................................................. 15
Material Adverse Effect on Parent .................................... 35
Material Adverse Effect on the Company ............................... 13
Material Contract .................................................... 34
Meeting .............................................................. 42
Merger ............................................................... 7
Merger Consideration ................................................. 8
Minimum Condition .................................................... 2
Nasdaq ............................................................... 12
Net Working Capital .................................................. Annex A
Notice of Superior Proposal .......................................... 41
Offer ................................................................ 1
Offer Documents ...................................................... 3
Offer Price .......................................................... 1
Option Account ....................................................... 11
Other Interests ...................................................... 14
Outbound License Agreements .......................................... 29
Parent ............................................................... 1
Parent Common Stock .................................................. 11
Patents .............................................................. 28
person ............................................................... 59
Proxy Statement ...................................................... 17
Qualified Plans ...................................................... 21
Schedule 14D-9 ....................................................... 5
Schedule TO .......................................................... 3
SEC .................................................................. 3
Securities Act ....................................................... 16
{/TABLE}
v
{PAGE} 7
{TABLE}
{S} {C}
Shares ............................................................... 1
Software ............................................................. 31
Stock Option Agreement ............................................... 1
Stock Option Plans ................................................... 11
subsidiary ........................................................... 59
Superior Proposal .................................................... 42
Supply Contracts ..................................................... 32
Surviving Corporation ................................................ 7
Takeover Statute ..................................................... 34
Tax .................................................................. 25
Tax Return ........................................................... 25
Third Party .......................................................... 42
Third Party Acquisition .............................................. 42
Total Cash ........................................................... Annex A
Trade Secrets ........................................................ 28
Trademarks ........................................................... 28
Voting Agreement ..................................................... 1
{/TABLE}
vi
{PAGE} 8
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (this "Agreement"), dated as
of January 15, 2001, is by and among Xircom, Inc., a California corporation (the
"Company"), Intel Corporation, a Delaware corporation ("Parent"), and ESR
Acquisition Corporation, a Delaware corporation and a direct wholly-owned
subsidiary of Parent ("Acquisition"). Capitalized terms used but not otherwise
defined herein shall have the meanings ascribed to such terms in Section 8.8 of
this Agreement.
WHEREAS, the Boards of Directors of the Company, Parent and
Acquisition have each (i) determined that the Merger (as defined below) is
advisable and fair and in the best interests of their respective stockholders
and (ii) approved the Merger upon the terms and subject to the conditions set
forth in this Agreement;
WHEREAS, in furtherance thereof, it is proposed that Acquisition
shall, promptly after the public announcement hereof, commence a tender offer
(the "Offer") to acquire all of the outstanding shares (the "Shares") of common
stock, par value $0.001 per share, of the Company (the "Company Common Stock"),
at a price of Twenty-Five Dollars ($25.00) per Share, net to the seller in cash,
without interest, less any required withholding taxes (such amount, or any
greater amount per share paid pursuant to the Offer, being hereinafter referred
to as the "Offer Price"), in accordance with the terms and subject to the
conditions provided herein;
WHEREAS, concurrently with the execution and delivery of this
Agreement and as a condition and inducement to Parent's willingness to enter
into this Agreement, Parent and the Company have entered into a Stock Option
Agreement, dated as of the date hereof, in the form attached hereto as Exhibit A
(the "Stock Option Agreement"), pursuant to which the Company has granted to
Parent an option to purchase shares of Company Common Stock under certain
circumstances; and
WHEREAS, concurrently with the execution and delivery of this
Agreement and as a condition and inducement to Parent's willingness to enter
into this Agreement, certain shareholders of the Company have entered into a
Tender and Voting Agreement, dated as of the date of this Agreement, in the form
attached hereto as Exhibit B (the "Voting Agreement"), pursuant to which such
shareholders have agreed to tender to Acquisition all Shares beneficially owned
by such shareholders and to vote, if necessary, all voting securities of the
Company beneficially owned by them in favor of approval and adoption of this
Agreement and the Merger.
NOW, THEREFORE, in consideration of the foregoing premises and
the representations, warranties, covenants and agreements herein contained, and
intending to be legally bound hereby, the Company, Parent and Acquisition hereby
agree as follows:
{PAGE} 9
ARTICLE 1
THE OFFER
SECTION 1.1. The Offer.
(a) Provided that this Agreement shall not have been terminated
and subject to the terms hereof, within ten (10) business days after the public
announcement of the execution hereof by the parties, Acquisition shall (and
Parent shall cause Acquisition to) commence (within the meaning of Rule 14d-2
under the Securities Exchange Act of 1934, as amended (the "Exchange Act")), the
Offer for all of the Shares, at the Offer Price. The obligation of Acquisition
to accept for payment and to pay for any Shares tendered (and the obligation of
Parent to cause Acquisition to accept for payment and to pay for any Shares
tendered) shall be subject only to (i) the condition that at least a majority of
Shares on a fully-diluted basis (including for purposes of such calculation all
Shares issuable upon exercise of all vested Company Stock Options (as defined in
Section 2.11) and unvested Company Stock Options that vest (or upon consummation
of the Offer will vest) prior to the Final Date (as defined in Section 7.1), but
excluding any Shares held by the Company or any of its subsidiaries) be validly
tendered and not withdrawn prior to the expiration of the Offer or otherwise
already be beneficially owned by Parent or Acquisition (the "Minimum
Condition"), and (ii) the satisfaction or the waiver by Acquisition of the other
conditions set forth in Annex A. Acquisition expressly reserves the right to
waive any such condition, to increase the Offer Price or to make any other
changes in the terms and conditions of the Offer; provided, however, that unless
previously approved by the Company in writing, no change may be made that (i)
decreases the Offer Price, (ii) changes the form of consideration to be paid in
the Offer, (iii) reduces the maximum number of Shares to be purchased in the
Offer, (iv) imposes conditions to the Offer in addition to those set forth in
Annex A, (v) amends the conditions set forth in Annex A to broaden the scope of
such conditions, (vi) amends any other term of the Offer in a manner adverse to
the holders of the Shares, (vii) extends the Offer except as provided in Section
1.1(b), or (viii) amends or waives the Minimum Condition. It is agreed that the
conditions set forth in Annex A are for the sole benefit of Parent and
Acquisition and may be waived by Parent and Acquisition, in whole or in part, at
any time and from time to time, in their sole discretion, other than the Minimum
Condition, as to which prior written approval of the Company is required. The
failure by Parent and Acquisition at any time to exercise any of the foregoing
rights shall not be deemed a waiver of any such right, and each such right shall
be deemed an ongoing right that may be asserted at any time and from time to
time. The Company agrees that no Shares held by the Company or any of its
subsidiaries will be tendered in the Offer.
(b) Subject to the terms and conditions hereof, the Offer shall
expire at midnight, New York City time, on the date that is twenty (20) business
days after the date the Offer is commenced; provided, however, that without the
consent of the Company's Board of Directors (the "Company Board"), Acquisition
may (i) from time to time extend the Offer, if at the scheduled expiration date
of the Offer any of the conditions to the Offer shall not have been satisfied or
waived, until such time as such conditions are satisfied or
2
{PAGE} 10
waived; (ii) extend the Offer for any period required by any rule, regulation,
interpretation or position of the Securities and Exchange Commission (the "SEC")
or the staff thereof applicable to the Offer; (iii) if the first purchase of
Shares under the Offer shall not have occurred prior to March 31, 2001, extend
the Offer to the later of April 10, 2001 and the date on which all conditions to
the Offer have been satisfied; or (iv) extend the Offer for any reason on one or
more occasions for an aggregate period of not more than ten (10) business days
beyond the latest expiration date that would otherwise be permitted under clause
(i), (ii) or (iii) of this sentence if on such expiration date there shall not
have been tendered at least ninety percent (90%) of the outstanding Shares.
Parent and Acquisition agree that, if any one or more of the conditions to the
Offer set forth on Annex A are not satisfied and none of the events set forth in
paragraphs (a) through (f) of Annex A that would permit Acquisition not to
accept tendered Shares for payment has occurred and is continuing at the time of
any scheduled expiration date of the Offer, then, provided, that such conditions
are reasonably capable of being satisfied, Acquisition shall extend the Offer
from time to time unless any such condition is no longer reasonably capable of
being satisfied or any such event has occurred; provided, however, that in no
event shall Acquisition be required to extend the Offer beyond March 31, 2001
(provided that if on March 31, 2001 the condition set forth in clause (ii) of
the first paragraph of Annex A hereto regarding the HSR Act (as defined in
Section 3.6 below) is not satisfied and none of the events set forth in
paragraphs (a) through (f) of Annex A that would permit Acquisition not to
accept Shares tendered for payment has occurred and is continuing, such date
shall be automatically extended to May 15, 2001). Acquisition may provide a
"subsequent offering period" (as contemplated by Rule 14d-11 of the Exchange
Act) of not less than three business days following its acceptance of and
payment for the Shares in the Offer. Subject to the terms and conditions of the
Offer and this Agreement, Acquisition shall (and Parent shall cause Acquisition
to) accept for payment, and pay for, all Shares validly tendered and not
313949
|
Citibank
As referenced in this Agreement and Plan of Merger:
Citibank, N.A. – with such
suit and (ii) interest on the amount that was determined to be due and payable
hereunder at the rate announced by Citibank, N.A. as its "reference rate" in
effect on the date such payment was required to be made.
SECTION 7.4. Amendment. This Agreement
_____________
dt 341220
;
Citibank
As referenced in this Agreement and Plan of Merger:
Citibank, N.A. – with such
suit and (ii) interest on the amount that was determined to be due and payable
hereunder at the rate announced by Citibank, N.A. as its "reference rate" in
effect on the date such payment was required to be made.
SECTION 7.4. Amendment. This Agreement
_____________
dt 341220
;
|
Gibson Dunn
As referenced in this Agreement and Plan of Merger:
Gibson Dunn – 2300 Corporate Center Drive
Thousand Oaks, California 91320
Telecopier: (805) 376-9311
Attention: Chief Financial Officer
56
{PAGE} 64
with a copy to: Gibson Dunn & Crutcher LLP
4 Park Plaza
Irvine, California 92614
Telecopier: (949) 475-4648
Attention: Thomas Magill
or to such other address as the
_____________
dt 426939
;
Weil Gotshal
As referenced in this Agreement and Plan of Merger:
Weil, Gotshal – satisfaction (or waiver) of the latest to occur of the conditions set
forth in Article 5 of this Agreement at the offices of Weil, Gotshal & Manges
LLP, 2882 Sand Hill Road, Suite 280, Menlo Park, California 94025, unless
another time, date or place is agreed to in
_____________
Weil, Gotshal – General Counsel
and: Intel Corporation
2200 Mission College Boulevard
Santa Clara, California 95052
Telecopier: (408) 765-8871
Attention: Treasurer
with a copy to: Weil, Gotshal & Manges LLP
2882 Sand Hill Road
Suite 280
Menlo Park, California 94025
Telecopier: (650) 854-3713
Attention: Richard S. Millard
if to
_____________
dt 544643
;
More... |
| Preview
Full Doc
| 2004 |
Agreement and Plan of Merger and Reorganization
Agreement and Plan of Merger and Reorganization (326K)
Doc #316017: Click preview link for longer preview.
AGREEMENT AND PLAN OF MERGER AND REORGANIZATION
among
ST ASSEMBLY TEST SERVICES LTD,
CAMELOT MERGER, INC.
and
CHIPPAC, INC.
Dated as of February 10, 2004
================================================================================
TABLE OF CONTENTS
. . .
316017
|
ChipPAC
As referenced in this Agreement and Plan of Merger and Reorganization:
CHIPPAC, INC. – FILENAME}a2129155zex-16.txt
{DESCRIPTION}EXHIBIT 16
{TEXT}
{Page}
Exhibit 16
EXECUTION COPY
================================================================================
AGREEMENT AND PLAN OF MERGER AND REORGANIZATION
among
ST ASSEMBLY TEST SERVICES LTD,
CAMELOT MERGER, INC.
and
CHIPPAC, INC.
Dated as of February 10, 2004
================================================================================
{Page}
TABLE OF CONTENTS
{Table}
{Caption}
PAGE
{S} {C}
ARTICLE I
THE MERGER
SECTION 1.01. The Merger........................................................2
SECTION 1.02. Effective
_____________
CHIPPAC,
INC. – among ST ASSEMBLY TEST SERVICES LTD, a Singapore
public company limited by shares ("PARENT"), CAMELOT MERGER, INC., a Delaware
corporation and a wholly owned subsidiary of Parent ("MERGER SUB"), and CHIPPAC,
INC. , a Delaware corporation (the "COMPANY").
WHEREAS, upon the terms and subject to the conditions of this
Agreement and in accordance with the General Corporation Law of the State of
_____________
ChipPAC, Inc. – that, at the
Effective Time, Article I of the Certificate of Incorporation of the Surviving
Corporation shall be amended to read as follows: "The name of the corporation is
STATS ChipPAC, Inc. "
(b) At the Effective Time, the By-laws of Merger Sub, as in effect
immediately prior to the Effective Time, shall be the By-laws of the Surviving
Corporation
_____________
ChipPAC, Inc. – employee; PROVIDED
that the Company and Parent hereby agree that, notwithstanding the
foregoing, award grants may be made to employees of the Company and the
Company Subsidiaries pursuant to the ChipPAC, Inc. Employee Retention Plan
and the ChipPAC, Inc. Special Bonus Plan as contemplated in Section
6.05(c);
(viii) (A) exercise its discretion with respect to or otherwise
voluntarily accelerate
_____________
ChipPAC, Inc. – hereby agree that, notwithstanding the
foregoing, award grants may be made to employees of the Company and the
Company Subsidiaries pursuant to the ChipPAC, Inc. Employee Retention Plan
and the ChipPAC, Inc. Special Bonus Plan as contemplated in Section
6.05(c);
(viii) (A) exercise its discretion with respect to or otherwise
voluntarily accelerate the vesting of any Company Stock Award
_____________
dt 1321988
;
ChipPAC
As referenced in this Agreement and Plan of Merger and Reorganization:
CHIPPAC, INC. – FILENAME}a2129155zex-16.txt
{DESCRIPTION}EXHIBIT 16
{TEXT}
{Page}
Exhibit 16
EXECUTION COPY
================================================================================
AGREEMENT AND PLAN OF MERGER AND REORGANIZATION
among
ST ASSEMBLY TEST SERVICES LTD,
CAMELOT MERGER, INC.
and
CHIPPAC, INC.
Dated as of February 10, 2004
================================================================================
{Page}
TABLE OF CONTENTS
{Table}
{Caption}
PAGE
{S} {C}
ARTICLE I
THE MERGER
SECTION 1.01. The Merger........................................................2
SECTION 1.02. Effective
_____________
CHIPPAC,
INC. – among ST ASSEMBLY TEST SERVICES LTD, a Singapore
public company limited by shares ("PARENT"), CAMELOT MERGER, INC., a Delaware
corporation and a wholly owned subsidiary of Parent ("MERGER SUB"), and CHIPPAC,
INC. , a Delaware corporation (the "COMPANY").
WHEREAS, upon the terms and subject to the conditions of this
Agreement and in accordance with the General Corporation Law of the State of
_____________
ChipPAC, Inc. – that, at the
Effective Time, Article I of the Certificate of Incorporation of the Surviving
Corporation shall be amended to read as follows: "The name of the corporation is
STATS ChipPAC, Inc. "
(b) At the Effective Time, the By-laws of Merger Sub, as in effect
immediately prior to the Effective Time, shall be the By-laws of the Surviving
Corporation
_____________
ChipPAC, Inc. – employee; PROVIDED
that the Company and Parent hereby agree that, notwithstanding the
foregoing, award grants may be made to employees of the Company and the
Company Subsidiaries pursuant to the ChipPAC, Inc. Employee Retention Plan
and the ChipPAC, Inc. Special Bonus Plan as contemplated in Section
6.05(c);
(viii) (A) exercise its discretion with respect to or otherwise
voluntarily accelerate
_____________
ChipPAC, Inc. – hereby agree that, notwithstanding the
foregoing, award grants may be made to employees of the Company and the
Company Subsidiaries pursuant to the ChipPAC, Inc. Employee Retention Plan
and the ChipPAC, Inc. Special Bonus Plan as contemplated in Section
6.05(c);
(viii) (A) exercise its discretion with respect to or otherwise
voluntarily accelerate the vesting of any Company Stock Award
_____________
dt 1306809
;
Citibank
As referenced in this Agreement and Plan of Merger and Reorganization:
Citibank, N.A. – unpaid
Fee, commencing on the date that the Fee became due, at a rate equal to the
rate of interest publicly announced by Citibank, N.A. , from time to time,
in The City of New York, as such bank's Prime Rate plus 2.00%. Payment of
the
_____________
Citibank, N.A. – to receive
ten Parent Ordinary Shares.
"PARENT DEPOSIT AGREEMENT" means the Deposit Agreement, dated as of
February 8, 2001, by and among Parent, Citibank, N.A. , as Depositary, and
the holders from time to time of Parents ADSs evidenced by Parent ADRs
issued thereunder, as amended through the
_____________
dt 638497
;
|
Citicorp Venture
As referenced in this Agreement and Plan of Merger and Reorganization:
Citicorp Venture Capital, Ltd – of the
management and policies of a person, whether through the ownership of
voting securities, as trustee or executor, by contract or credit
arrangement or otherwise.
"CVC GROUP" means (i) Citicorp Venture Capital, Ltd ., (ii) Citicorp
Mezzanine III, L.P. and (iii) CCT Partners VI, L.P.
"ELIGIBLE COMPANY STOCKHOLDERS" means holders or deemed holders of
Company Shares (including partners of a partnership
_____________
dt 1533432
;
|