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Title: |
Agreement and Plan of Merger |
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Date: |
2001 |
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Preview shows 27KB of 234KB total |
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$48 |
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#1320100 |
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<SEQUENCE>2
<FILENAME>planofmerger.txt
<DESCRIPTION>EXHIBIT 2.1 - PLAN OF MERGER
<TEXT>
AGREEMENT AND PLAN OF MERGER
BY AND AMONG
PERKINELMER, INC.,
PABLO ACQUISITION CORP.
AND
PACKARD BIOSCIENCE COMPANY
DATED AS OF JULY 13, 2001
<PAGE>
ARTICLE I THE MERGER........................................................1
1.1 Effective Time of the Merger..........................................1
1.2 Closing...............................................................2
1.3 Effects of the Merger.................................................2
1.4 Directors and Officers................................................2
ARTICLE II CONVERSION OF SECURITIES.........................................2
2.1 Conversion of Capital Stock...........................................2
2.2 Exchange of Certificates..............................................4
ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE COMPANY...................7
3.1 Organization, Standing and Power; Subsidiaries........................7
3.2 Capitalization........................................................8
3.3 Authority; No Conflict; Required Filings and Consents................11
3.4 SEC Filings; Financial Statements; Information Provided..............12
3.5 No Undisclosed Liabilities...........................................14
3.6 Absence of Certain Changes or Events.................................15
3.7 Taxes................................................................15
3.8 Owned and Leased Real Properties.....................................16
3.9 Intellectual Property................................................17
3.10 Agreements, Contracts and Commitments...............................18
3.11 Litigation..........................................................19
3.12 Environmental Matters...............................................19
3.13 Employee Benefit Plans..............................................22
3.14 Compliance With Laws................................................24
3.15 Permits.............................................................25
3.16 Labor Matters.......................................................25
3.17 Insurance...........................................................25
3.18 Warranty............................................................25
3.19 Customers and Suppliers.............................................25
3.20 No Existing Discussions.............................................26
3.21 Opinion of Financial Advisor........................................26
3.22 Section 203 of the DGCL Not Applicable..............................26
3.23 Brokers.............................................................26
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE BUYER AND THE TRANSITORY
SUBSIDIARY....................................................26
4.1 Organization, Standing and Power.....................................27
4.2 Capitalization.......................................................27
4.3 Authority; No Conflict; Required Filings and Consents................28
4.4 SEC Filings; Financial Statements; Information Provided..............29
4.5 No Undisclosed Liabilities...........................................31
4.6 Absence of Certain Changes or Events.................................31
4.7 Tax Matters..........................................................31
4.8 Litigation...........................................................31
4.9 Intellectual Property................................................31
4.10 Agreements, Contracts and Commitments...............................32
4.11 Environmental Matters...............................................32
4.12 Compliance With Laws................................................32
<PAGE>
4.13 Permits.............................................................32
4.14 Operations of the Transitory Subsidiary.............................32
ARTICLE V CONDUCT OF BUSINESS.............................................33
5.1 Covenants of the Company............................................33
5.2 Covenants of the Buyer..............................................36
5.3 Confidentiality.....................................................36
ARTICLE VI ADDITIONAL AGREEMENTS..........................................37
6.1 No Solicitation.....................................................37
6.2 Joint Proxy Statement/Prospectus; Registration Statement............39
6.3 Nasdaq Quotation....................................................40
6.4 Access to Information...............................................40
6.5 Stockholders Meetings...............................................41
6.6 [Intentionally Omitted].............................................42
6.7 Legal Conditions to the Merger......................................42
6.8 Public Disclosure...................................................45
6.9 Reorganization......................................................45
6.10 Affiliate Agreements................................................45
6.11 NYSE Listing........................................................45
6.12 Employee Matters....................................................45
6.13 Stockholder Litigation..............................................48
6.14 Representation on Buyer Board.......................................48
6.15 Indemnification.....................................................48
6.16 Notification of Certain Matters.....................................48
6.17 Exemption from Liability Under Section 16(b)........................49
6.18 Termination of 401(k) Plan..........................................49
ARTICLE VII CONDITIONS TO MERGER..........................................50
7.1 Conditions to Each Party's Obligation To Effect the Merger..........50
7.2 Additional Conditions to Obligations of the Buyer and the
Transitory Subsidiary.............................................50
7.3 Additional Conditions to Obligations of the Company.................52
ARTICLE VIII TERMINATION AND AMENDMENT.....................................53
8.1 Termination.........................................................53
8.2 Effect of Termination...............................................55
8.3 Fees and Expenses...................................................55
8.4 Amendment...........................................................58
8.5 Extension; Waiver...................................................58
ARTICLE IX MISCELLANEOUS...................................................58
9.1 Nonsurvival of Representations and Warranties........................58
9.2 Notices..............................................................58
9.3 Entire Agreement.....................................................59
9.4 No Third Party Beneficiaries.........................................59
9.5 Assignment...........................................................59
9.6 Severability.........................................................60
9.7 Counterparts and Signature...........................................60
9.8 Interpretation.......................................................60
9.9 Governing Law........................................................61
9.10 Submission to Jurisdiction..........................................61
-ii-
<PAGE>
9.11 Remedies............................................................61
9.12 WAIVER OF JURY TRIAL................................................62
Exhibit A Form of Stockholder's Agreement
Exhibit B Persons Subject to Voting Agreements
Exhibit C Form of Voting Agreement
Exhibit D Form of Affiliate Agreement
-iii-
<PAGE>
TABLE OF DEFINED TERMS
Reference in
Terms Agreement
----- ------------
Acquisition Proposal Section 6.1(f)
Affiliate Section 3.2(d)
Affiliate Agreement Section 6.10
Agreement Preamble
Alternative Acquisition Agreement Section 6.1(b)
Antitrust Laws Section 6.7(b)
Antitrust Order Section 6.7(b)
Buyer Preamble
Buyer Balance Sheet Section 4.4(b)
Buyer Board Section 4.3(a)
Buyer Common Stock Section 2.1(c)
Buyer Disclosure Schedule Article IV
Buyer Intellectual Property Section 4.9
Buyer Material Adverse Effect Section 4.1
Buyer Permits Section 4.13
Buyer Preferred Stock Section 4.2(a)
Buyer SEC Reports Section 4.4(a)
Buyer Stockholders Meeting Section 3.4(c)
Buyer Voting Proposal Section 6.5(b)
Certificate of Merger Section 1.1
Certificates Section 2.2(b)
Closing Section 1.2
Closing Date Section 1.2
Code Recitals
Company Preamble
Company Balance Sheet Section 3.4(b)
Company Board Section 3.3(a)
Company Common Stock Section 2.1(b)
Company Disclosure Schedule Article III
Company Employee Plans Section 3.13(a)
Company Employees Section 6.12(d)
Company Insiders Section 6.17(c)
Company Intellectual Property Section 3.9(a)
Company Leases Section 3.8(c)
Company Material Adverse Effect Section 3.1(a)
Company Material Contracts Section 3.10(a)
Company Permits Section 3.15
Company Preferred Stock Section 3.2(a)
Company Rights Section 3.2(b)
Company SEC Reports Section 3.4(a)
Company Stock Options Section 3.2(b)
Company Stock Plans Section 3.2(b)
-iv-
<PAGE>
Reference in
Terms Agreement
----- ------------
Company Stockholder Approval Section 3.3(a)
Company Stockholders Meeting Section 3.4(c)
Company Voting Proposal Section 3.3(a)
Confidentiality Agreement Section 5.3
Constituent Corporations Section 1.3
Contamination Section 3.12(c)
DGCL Recitals
Divestiture Section 6.7(c)
EDGAR Section 3.4(a)
Effective Time Section 1.1
Employee Benefit Plan Section 3.13(a)
Environmental Law Section 3.12(b)
ERISA Section 3.13(a)
ERISA Affiliate Section 3.13(a)
ESPP Section 6.12(a)
Exchange Act Section 3.3(c)
Exchange Agent Section 2.2(a)
Exchange Fund Section 2.2(a)
Exchange Ratio Section 2.1(c)
GAAP Section 3.4(b)
Governmental Entity Section 3.3(c)
Hazardous Substance Section 3.12(e)
HSR Act Section 3.3(c)
indebtedness Section 3.5(b)
Indemnified Parties Section 6.15(a)
Insurance Policies Section 3.17
Intellectual Property Section 3.9(a)
Joint Proxy Statement/Prospectus Section 3.4(c)
Merger Recitals
Merger Consideration Section 2.1(c)
New Plans Section 6.12(e)
NYSE Section 2.2(e)
Old Plans Section 6.12(e)
Outside Date Section 8.1(b)
Real Estate Section 3.8(a)
Registration Statement Section 3.4(c)
Regulation MA Filing Section 3.4(c)
Release Section 3.12(d)
Representatives Section 6.1(a)
Rule 145 Affiliate Section 2.2(j)
SEC Section 3.3(c)
Section 16 Information Section 6.17(b)
Securities Act Section 3.3(c)
-v-
<PAGE>
Terms Reference in Agreement
----- ----------------------
Significant Subsidiary Section 3.1(b)
Specified Time Section 6.1(a)
Stockholder Designee Section 6.14
Stockholder's Agreement Recitals
Subsidiary Section 3.1(b)
Superior Proposal Section 6.1(f)
Surviving Corporation Section 1.3
Taxes Section 3.7(b)
Tax Returns Section 3.7(b)
Transitory Subsidiary Recitals
Voting Agreements Recitals
-vi-
<PAGE>
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (this "Agreement"), dated as of July 13,
2001, is by and among PerkinElmer, Inc., a Massachusetts corporation (the
"Buyer"), Pablo Acquisition Corp., a Delaware corporation and a wholly owned
subsidiary of the Buyer (the "Transitory Subsidiary"), and Packard BioScience
Company, a Delaware corporation (the "Company").
WHEREAS, the boards of directors of the Buyer and the Company deem it
advisable and in the best interests of each corporation and their respective
stockholders that the Buyer acquire the Company;
WHEREAS, the acquisition of the Company shall be effected through a merger
(the "Merger") of the Transitory Subsidiary with and into the Company in
accordance with the terms of this Agreement and the General Corporation Law of
the State of Delaware (the "DGCL"), as a result of which the Company shall
become a wholly owned subsidiary of the Buyer;
WHEREAS, concurrently with the execution and delivery of this Agreement
and as a condition and inducement to the Buyer's willingness to enter into this
Agreement, (i) Stonington Capital Appreciation 1994 Fund, L.P. has entered into
a Stockholder's Agreement, dated as of the date of this Agreement, in the form
attached hereto as EXHIBIT A (the "Stockholder's Agreement") and (ii) the
individuals and entities listed in EXHIBIT B hereto have each entered into
Voting Agreements, in the form attached hereto as EXHIBIT C (the "Voting
Agreements"), pursuant to which, among other things, such stockholders have
agreed to give the Buyer a proxy to vote all of the shares of capital stock of
the Company that such stockholders own in favor of the Merger; and
WHEREAS, for United States federal income tax purposes, it is intended
that the Merger shall qualify as a reorganization within the meaning of Section
368(a) of the Internal Revenue Code of 1986, as amended (the "Code");
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements set forth below, the
Buyer, the Transitory Subsidiary and the Company agree as follows:
ARTICLE I
THE MERGER
1.1 EFFECTIVE TIME OF THE MERGER. Subject to the provisions of this
Agreement, prior to the Closing, the Buyer shall prepare, and on the Closing
Date or as soon as practicable thereafter the Buyer shall cause to be filed with
the Secretary of State of the State of Delaware, a certificate of merger (the
"Certificate of Merger") in such form as is required by, and executed by the
Surviving Corporation in accordance with, the relevant provisions of the DGCL
and shall make all other filings or recordings required under the DGCL. The
Merger shall become effective upon the filing of the Certificate of Merger with
the Secretary of State of the State of
<PAGE>
Delaware or at such later time as is established by the Buyer and the Company
and set forth in the Certificate of Merger (the "Effective Time").
1.2 CLOSING. The closing of the Merger (the "Closing") shall take place at
10:00 a.m., Boston time, on a date to be specified by the Buyer and the Company
(the "Closing Date"), which shall be no later than the second business day after
satisfaction or waiver of the conditions set forth in Article VII (other than
delivery of items to be delivered at the Closing and other than satisfaction of
those conditions that by their nature are to be satisfied at the Closing, it
being understood that the occurrence of the Closing shall remain subject to the
delivery of such items and the satisfaction or waiver of such conditions at the
Closing), at the offices of Hale and Dorr LLP, 60 State Street, Boston,
Massachusetts, unless another date, place or time is agreed to in writing by the
Buyer and the Company.
1.3 EFFECTS OF THE MERGER. At the Effective Time (i) the separate existence
of the Transitory Subsidiary shall cease and the Transitory Subsidiary shall be
merged with and into the Company (the Transitory Subsidiary and the Company are
sometimes referred to herein as the "Constituent Corporations" and the Company
following the Merger is sometimes referred to herein as the "Surviving
Corporation"), (ii) the Certificate of Incorporation of the Company as in effect
on the date of this Agreement shall be amended so that Article FOURTH of such
Certificate of Incorporation reads in its entirety as follows: "The total number
of shares of all classes of stock which the Corporation shall have authority to
issue is 1,000, all of which shall consist of common stock, $.01 par value per
share," and, as so amended, such Certificate of Incorporation shall be the
Certificate of Incorporation of the Surviving Corporation, until further amended
in accordance with the DGCL and (iii) the By-laws of the Transitory Subsidiary
as in effect immediately prior to the Effective Time shall be amended to change
all references to the name of the Transitory Subsidiary to refer to the name of
the Company, and, as so amended, such By-laws shall be the By-laws of the
Surviving Corporation, until further amended in accordance with the DGCL. The
Merger shall have the effects set forth in Section 259 of the DGCL.
1.4 DIRECTORS AND OFFICERS. The directors and officers of the Transitory
Subsidiary immediately prior to the Effective Time shall be the initial
directors and officers of the Surviving Corporation, each to hold office in
accordance with the Certificate of Incorporation and By-laws of the Surviving
Corporation.
ARTICLE II
CONVERSION OF SECURITIES
2.1 CONVERSION OF CAPITAL STOCK. As of the Effective Time, by virtue of the
Merger and without any action on the part of the holder of any shares of the
capital stock of the Company or capital stock of the Transitory Subsidiary:
(a) CAPITAL STOCK OF THE TRANSITORY SUBSIDIARY. Each share of the common
stock of the Transitory Subsidiary issued and outstanding immediately prior to
the Effective Time shall
- 2 -
<PAGE>
be converted into and become one fully paid and nonassessable share of common
stock, $.01 par value per share, of the Surviving Corporation.
(b) CANCELLATION OF TREASURY STOCK AND BUYER-OWNED STOCK. All shares of
common stock, $.002 par value per share, of the Company ("Company Common Stock")
that areowned by the Company as treasury stock or by any wholly owned Subsidiary
of the Company and any shares of Company Common Stock owned by the Buyer, the
Transitory Subsidiary or any other wholly owned Subsidiary of the Buyer
immediately prior to the Effective Time shall be cancelled and shall cease to
exist and no stock of the Buyer or other consideration shall be delivered in
exchange therefor.
(c) CONVERSION OF COMPANY COMMON STOCK. Subject to Section 2.2, each
share of Company Common Stock (other than shares to be cancelled in accordance
with Section 2.1(b)) issued and outstanding immediately prior to the Effective
Time shall be automatically converted into the right to receive 0.311 shares
(the "Exchange Ratio") of common stock, $1.00 par value per share, of the Buyer
("Buyer Common Stock") upon surrender of the certificate representing such share
of Company Common Stock in the manner provided in Section 2.2. The Exchange
Ratio is sometimes referred to as the "Merger Consideration." As of the
Effective Time, all such shares of Company Common Stock shall no longer be
outstanding and shall automatically be cancelled and shall cease to exist, and
each holder of a certificate representing any such shares of Company Common
Stock shall cease to have any rights with respect thereto, except the right to
receive the Merger Consideration pursuant to this Section 2.1(c) and any cash in
lieu of fractional shares of Buyer Common Stock to be issued or paid in
consideration therefor upon surrender of such certificate in accordance with
Section 2.2, without interest.
(d) ADJUSTMENTS TO EXCHANGE RATIO. In the event of any reclassification,
stock split, reverse split, stock dividend (including any dividend or
distribution of securities convertible into Buyer Common Stock or Company Common
Stock, as the case may be), reorganization, recapitalization or other like
change with respect to Buyer Common Stock or Company Common Stock, as the case
may be, occurring (or for which a record date is established) after the date
hereof and prior to the Effective Time, the Exchange Ratio shall be
proportionately adjusted to reflect fully such event.
(e) UNVESTED STOCK. At the Effective Time, any Merger Consideration issued
or paid in accordance with Section 2.1(c) with respect to any unvested shares of
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