Preview | Agreement and Plan of Merger |

Document Preview

Agreement and Plan of Merger

Click "Add to Cart" button to purchase document.
Documents are emailed immediately after purchase.
You can also browse documents by title, category, or company... or click here for help finding documents.

Title:

Agreement and Plan of Merger

Entities:

Celestica Inc.

Date:

2003

Size:

Preview shows 60KB of 542KB total

Price:

$87

ID:

#1128827

► Plans ► Agreements ► Agreements & Plans of Merger
► Technology ► Electronic Instruments & Controls

Start of Preview

AGREEMENT AND PLAN OF MERGER

by and among:

CELESTICA INC.

MSL ACQUISITION SUB INC.

and

MANUFACTURERS' SERVICES LIMITED

Dated as of October 14, 2003

TABLE OF CONTENTS

			Page
SECTION 1:	Description of Transaction		1
	1.1	Merger of the Company with and into Merger Sub	1
	1.2	Effect of the Merger	1
	1.3	Closing; Effective Time	1
	1.4	Certificate of Incorporation and Bylaws; Directors and Officers	2
	1.5	Conversion of Shares	2
	1.6	Closing of the Company's Transfer Books	3
	1.7	Exchange of Certificates	3
	1.8	Shares of Dissenting Preferred Stockholders	5
	1.9	Tax Consequences	5
	1.10	Further Action	5
SECTION 2:	Representations and Warranties of the Company		5
	2.1	Organization and Good Standing	5
	2.2	Authority; No Conflict	6
	2.3	Capitalization	7
	2.4	SEC Reports	8
	2.5	Financial Statements	8
	2.6	Property; Sufficiency of Assets; Inventories	9
	2.7	Receivables; Customers	10
	2.8	Equipment; Real Property; Leaseholds	10
	2.9	Proprietary Assets	11
	2.10	No Undisclosed Liabilities	13
	2.11	Taxes	13
	2.12	Employee Benefits	15
	2.13	Compliance with Legal Requirements; Governmental Authorizations	17
	2.14	Environmental Matters	18
	2.15	Legal Proceedings	19
	2.16	Absence of Certain Changes and Events	19
	2.17	Contracts; No Defaults	21
	2.18	Sale of Products; Performance of Services	22
	2.19	Insurance	22
	2.20	Labor Matters	23
	2.21	Interests of Officers and Directors	23
	2.22	Rights Plan; State Antitakeover Laws; DGCL	23
	2.23	Certain Payments	23
	2.24	Opinion of Financial Advisor	24
	2.25	Brokers	24
	2.26	Board Recommendation	24
	2.27	F-4/Proxy Statement	24

SECTION 3:	Representations and Warranties of Parent and Merger Sub		24
	3.1	Organization and Good Standing	24
	3.2	Authority; No Conflict	24
	3.3	Capital Structure	25
	3.4	SEC Reports	26
	3.5	Financial Statements	26
	3.6	Tax Matters	27
	3.7	No Undisclosed Liabilities	27
	3.8	Legal Proceedings	27
	3.9	Absence of Certain Changes and Events	27
	3.10	Brokers	27
	3.11	F-4/Proxy Statement	27
	3.12	Company Stock	27
SECTION 4:	Certain Pre-Closing Covenants of the Company and Parent		28
	4.1	Access and Investigation	28
	4.2	Operation of the Business; Certain Notices; Tax Returns	28
	4.3	No Solicitation	32
SECTION 5:	Additional Covenants of the Parties		33
	5.1	Registration Statement; Proxy Statement	33
	5.2	Company Stockholders' Meeting	34
	5.3	Regulatory Approvals; Consents	34
	5.4	Stock Options and Preferred Stock	35
	5.5	Employee Benefits	37
	5.6	Indemnification of Officers and Directors	38
	5.7	Disclosure	39
	5.8	Resignation of Officers and Directors	39
	5.9	Section 16b-3	39
	5.10	Affiliate Agreements	39
	5.11	Listing	39
	5.12	Officers' Tax Certificates	39
SECTION 6:	Conditions Precedent to Obligations of Each Party		40
	6.1	Effectiveness of Form F-4 Registration Statement	40
	6.2	Listing	40
	6.3	Stockholder Approval	40
	6.4	HSR Act	40
	6.5	No Restraints	40
	6.6	Foreign Antitrust Laws	40
SECTION 7:	Conditions Precedent to Obligations of Parent and Merger Sub		41
	7.1	Accuracy of Representations	41
	7.2	Capitalization	41
	7.3	Relevant Jurisdictions	41
	7.4	Customer Notices	41
	7.5	No Material Adverse Effect	41
	7.6	Performance of Covenants	41
	7.7	Consents	41
	7.8	Agreements and Documents	42
	7.9	No Litigation	42
	7.10	Tax Opinion	42

SECTION 8:	Conditions Precedent to Obligation of the Company		42
	8.1	Accuracy of Representations	42
	8.2	Performance of Covenants	42
	8.3	Documents	42
	8.4	Tax Opinion	42
	8.5	No Litigation	43
SECTION 9:	Termination		43
	9.1	Termination	43
	9.2	Effect of Termination	44
	9.3	Expenses; Termination Fees	44
SECTION 10:	Miscellaneous Provisions		47
	10.1	Amendment	47
	10.2	Waiver; Remedies Cumulative	47
	10.3	No Survival	47
	10.4	Entire Agreement	47
	10.5	Execution of Agreement; Counterparts; Electronic Signatures	47
	10.6	Governing Law	48
	10.7	Consent to Jurisdiction; Venue	48
	10.8	WAIVER OF JURY TRIAL	48
	10.9	Disclosure Schedules	48
	10.10	Assignments and Successors	48
	10.11	No Third Party Rights	49
	10.12	Notices	49
	10.13	Cooperation	50
	10.14	Construction; Usage	50
	10.15	Enforcement of Agreement	51
	10.16	Severability	51
	10.17	Time of Essence	51

iii

EXHIBITS

Exhibit A		Certain Definitions
Exhibit B		Forms of Stockholder Agreements
		B-1 Form of Institutional Stockholder Agreement
		B-2 Form of Employee Stockholder Agreement
Exhibit C		Certificate of Incorporation of the Surviving Corporation
Exhibit D		Form of Affiliate Agreement

EXECUTION COPY

AGREEMENT AND PLAN OF MERGER

This Agreement and Plan of Merger ("Agreement") is made and entered into as of October 14, 2003, by and among CELESTICA INC., a corporation organized under the laws of the Province of Ontario, Canada ("Parent"); MSL ACQUISITION SUB INC., a Delaware corporation and a wholly owned subsidiary of Parent ("Merger Sub"), and Manufacturers' Services Limited, a Delaware corporation (the "Company"). Certain capitalized terms used in this Agreement are defined in Exhibit A.

RECITALS

Parent, Merger Sub and the Company intend to effect a merger of the Company with and into the Merger Sub in accordance with this Agreement and the DGCL (the "Merger"). Upon consummation of the Merger, the Company will cease to exist, and the Merger Sub will remain a wholly owned subsidiary of Parent.

It is intended that the Merger qualify as a reorganization within the meaning of Section 368(a) of the Internal Revenue Code of 1986, as amended (the "Code").

The respective boards of directors of Parent, Merger Sub and the Company have declared the advisability of and approved this Agreement and approved the Merger.

As a condition to the willingness of Parent and Merger Sub to enter into this Agreement and to consummate the Merger and the other transactions contemplated hereby, Parent has required that (a) specified officers and directors of the Company agree, among other things, to vote all shares of Company Common Stock beneficially owned by such officers and directors in favor of the adoption of this Agreement in the event that such matter is put to the stockholders of the Company for a vote and (b) certain stockholders of the Company agree, among other things (i) to vote all shares of Company Common Stock, Series A Preferred and Series B Preferred beneficially owned by such stockholders in favor of the adoption of this Agreement in the event that such matter is put to the stockholders of the Company for a vote, and (ii) to grant an option to Parent for the purchase, under certain circumstances, of a portion of the shares of Company Common Stock beneficially owned by such stockholders and representing 30% of the aggregate voting power of the outstanding capital stock of the Company (the "Stockholder Options"), all as specified in, and in accordance with, the terms and provisions of stockholder agreements, dated as of the date hereof, among each stockholder (collectively, the "Stockholders"), Parent and Merger Sub, the forms of which are attached hereto as Exhibit B-1 and Exhibit B-2 (the "Stockholder Agreements"); and in order to induce Parent and Merger Sub to enter into this Agreement, the Stockholders are each executing and delivering their respective Stockholder Agreements simultaneously herewith.

AGREEMENT

The parties to this Agreement, intending to be legally bound, agree as follows:

SECTION 1: Description of Transaction.

1.1 Merger of the Company with and into Merger Sub. Upon the terms and subject to the conditions set forth in this Agreement, at the Effective Time, the Company shall be merged with and into Merger Sub, and the separate existence of the Company shall cease. Following the Effective Time, Merger Sub shall continue as the surviving corporation (the "Surviving Corporation").

1.2 Effect of the Merger. The Merger shall have the effects set forth in this Agreement and in the applicable provisions of the DGCL.

1.3 Closing; Effective Time. The consummation of the transactions contemplated by this Agreement (the "Closing") shall take place at the offices of Hale and Dorr LLP, 60 State Street, Boston, Massachusetts 02109, at 10:00 a.m. on a date to be designated by Parent (the "Closing Date"), which shall be no later than the fifth business day after the satisfaction or waiver of the last to be satisfied or waived of the conditions set forth in Sections 6, 7 and 8 (other than those conditions that by their nature are to be satisfied at the Closing, but subject to the satisfaction or waiver of such conditions). Subject to the provisions of this Agreement, a certificate of merger satisfying the applicable requirements of the DGCL (the "Certificate of Merger") shall be duly executed by the Company and, simultaneously with or as soon as practicable following the Closing, filed with the

Secretary of State of the State of Delaware (the "Secretary of State"). The Merger shall become effective upon the later of: (a) the date and time of the filing of the Certificate of Merger with the Secretary of State, or (b) such later date and time as may be specified in the Certificate of Merger with the consent of Parent (the "Effective Time").

1.4 Certificate of Incorporation and Bylaws; Directors and Officers. At the Effective Time:

(a): the Certificate of Incorporation of Merger Sub shall be amended in the Merger to read in its entirety as set forth on Exhibit C hereof;
(b): The bylaws of Merger Sub immediately prior to the Effective Time shall be the bylaws of the Surviving Corporation; and
(c): the directors of the Surviving Corporation immediately after the Effective Time shall be the respective individuals who are directors of Merger Sub immediately prior to the Effective Time; and the officers of the Surviving Corporation immediately after the Effective Time shall be the respective individuals who are officers of the Company immediately prior to the Effective Time.

1.5 Conversion of Shares.

(a)

At the Effective Time, by virtue of the Merger and without any further action on the part of Parent, Merger Sub, the Company or any stockholder of the Company or Merger Sub:

(i)

any shares of Company Common Stock then held by the Company or any wholly owned Subsidiary of the Company (or held in the Company's treasury) shall be canceled and shall cease to exist, and no consideration shall be delivered in exchange therefor;

End of Preview

Home Intelligence Services Subscriptions News About Us