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Title: |
Agreement and Plan of Merger |
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Entities: |
Chase Securities Inc.; Cott Corp; PepsiAmericas, Inc.; PepsiCo, Inc.; Salomon Smith Barney Inc.; Briggs & Morgan |
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Date: |
2000 |
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Preview shows 32KB of 248KB total |
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$56 |
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ID: |
#1682338 |
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<DESCRIPTION>EXHIBIT 2.1
<TEXT>
<PAGE>
--------------------------------------------------------------------------------
AGREEMENT AND PLAN OF MERGER
Among
WHITMAN CORPORATION,
ANCHOR MERGER SUB, INC.
and
PEPSIAMERICAS, INC.
Dated as of August 18, 2000
--------------------------------------------------------------------------------
<PAGE>
ARTICLE I DEFINITIONS
ARTICLE II THE MERGER
<TABLE>
<CAPTION>
PAGE
----
<S> <C> <C>
SECTION 2.1. The Merger.................................................. 8
SECTION 2.2. Effective Time.............................................. 8
SECTION 2.3. Closing..................................................... 8
SECTION 2.4. Certificate of Incorporation and By-Laws.................... 8
SECTION 2.5. Directors................................................... 8
SECTION 2.6. Officers.................................................... 8
ARTICLE III EFFECT OF THE MERGER ON THE CAPITAL STOCK OF MERGER SUB
AND THE COMPANY; EXCHANGE OF CERTIFICATES
SECTION 3.1. Effect of the Merger on Capital Stock....................... 9
SECTION 3.2. Exchange of Certificates.................................... 12
SECTION 3.3. Options and Warrants........................................ 14
SECTION 3.4. Transfer of Shares after the Effective Time................. 14
SECTION 3.5. Escheat..................................................... 14
ARTICLE IV CONTINGENT PAYMENTS
SECTION 4.1. Target Performance Criteria................................. 15
SECTION 4.2. Determination of Contingent Payments........................ 15
SECTION 4.3. Delivery of Contingent Payment Shares....................... 17
SECTION 4.4. Affiliated Transactions Committee........................... 17
SECTION 4.5. Assignability; Ordinary Course.............................. 18
SECTION 4.6. Time Limit.................................................. 18
SECTION 4.7. Option to Purchase Additional Parent Common Shares.......... 18
SECTION 4.8. Definitions................................................. 19
ARTICLE V REPRESENTATIONS AND WARRANTIES OF THE COMPANY
SECTION 5.1. Organization................................................ 20
SECTION 5.2. Subsidiaries................................................ 20
SECTION 5.3. Capitalization.............................................. 20
SECTION 5.4. Authority................................................... 22
SECTION 5.5. Consents and Approvals; Violations.......................... 22
SECTION 5.6. SEC Reports and Financial Statements........................ 23
SECTION 5.7. Absence of Certain Changes or Events........................ 23
SECTION 5.8. No Undisclosed Liabilities.................................. 23
SECTION 5.9. Employee Benefit Plans, Labor Matters....................... 24
SECTION 5.10. Contracts; Indebtedness..................................... 26
SECTION 5.11. Litigation.................................................. 26
SECTION 5.12. Compliance with Applicable Law.............................. 26
SECTION 5.13. Taxes....................................................... 27
SECTION 5.14. Environmental Matters....................................... 28
SECTION 5.15. Intellectual Property....................................... 28
SECTION 5.16. Real Property............................................... 28
SECTION 5.17. Title Insurance............................................. 29
SECTION 5.18. Required Vote............................................... 29
SECTION 5.19. Brokers, Schedule of Fees and Expense....................... 29
SECTION 5.20. Opinion of Financial Advisors............................... 29
</TABLE>
i
<PAGE>
<TABLE>
<CAPTION>
PAGE
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<S> <C> <C>
ARTICLE VI REPRESENTATIONS AND WARRANTIES OF PARENT
AND MERGER SUB
SECTION 6.1. Organization................................................ 29
SECTION 6.2. Subsidiaries................................................ 30
SECTION 6.3. Capitalization.............................................. 30
SECTION 6.4. Authority................................................... 31
SECTION 6.5. Consents and Approvals, No Violations....................... 31
SECTION 6.6. SEC Reports and Financial Statements........................ 32
SECTION 6.7. Absence of Certain Changes or Events........................ 32
SECTION 6.8. No Undisclosed Liabilities.................................. 32
SECTION 6.9. Employee Benefit Plans, Labor Matters....................... 33
SECTION 6.10. Contracts; Indebtedness..................................... 34
SECTION 6.11. Litigation.................................................. 35
SECTION 6.12. Compliance with Applicable Law.............................. 35
SECTION 6.13. Taxes....................................................... 36
SECTION 6.14. Environmental Matters....................................... 36
SECTION 6.15. Intellectual Property....................................... 37
SECTION 6.16. Real Property............................................... 37
SECTION 6.17. Title Insurance............................................. 37
SECTION 6.18. Required Vote............................................... 37
SECTION 6.19. Brokers, Schedule of Fees and Expense....................... 37
SECTION 6.20. Opinion of Financial Advisor................................ 38
SECTION 6.21. Merger Sub.................................................. 38
ARTICLE VII COVENANTS
SECTION 7.1. Company Interim Operations.................................. 38
SECTION 7.2 Parent Interim Operations................................... 41
SECTION 7.3. No Solicitation............................................. 43
SECTION 7.4. Third Party Standstill Agreements........................... 44
SECTION 7.5. Certain Litigation.......................................... 44
SECTION 7.6. Indemnification; Directors' and Officers' Insurance......... 44
SECTION 7.7. Listing of Parent Common Shares............................. 45
SECTION 7.8. Employee Benefits........................................... 45
SECTION 7.9. Payment of Dividends........................................ 46
ARTICLE VIII ADDITIONAL ARRANGEMENTS
SECTION 8.1. Registration Statement, Proxy Statement..................... 46
SECTION 8.2. Stockholders' Meetings...................................... 48
SECTION 8.3. Access to Information....................................... 48
SECTION 8.4. Reasonable Best Efforts..................................... 48
SECTION 8.5. Notices of Certain Events................................... 49
SECTION 8.6. Tax-Free Reorganization..................................... 49
SECTION 8.7. Public Announcements........................................ 49
SECTION 8.8. Affiliates of the Company................................... 49
SECTION 8.9. Board of Directors; Chief Executive Officer of Parent....... 49
SECTION 8.10. Amendment of PepsiCo Shareholder Agreement and Parent
By-Laws; Pohlad Companies Shareholder Agreement............. 50
SECTION 8.11. Redemption of Series AA Preferred Stock..................... 50
</TABLE>
ii
<PAGE>
<TABLE>
<CAPTION>
PAGE
----
<S> <C> <C>
ARTICLE IX CONDITIONS PRECEDENT
SECTION 9.1. Conditions to Each Party's Obligation To Effect the
Merger...................................................... 50
SECTION 9.2. Conditions to the Company's Obligation to Effect the
Merger...................................................... 51
SECTION 9.3. Conditions to Parent's and Merger Sub's Obligation to Effect
the Merger.................................................. 52
ARTICLE X TERMINATION
SECTION 10.1. Termination................................................. 53
SECTION 10.2. Effect of Termination....................................... 53
SECTION 10.3. Fees and Expenses........................................... 54
ARTICLE XI MISCELLANEOUS
SECTION 11.1. Survival of Representations and Warranties.................. 54
SECTION 11.2. Notices..................................................... 54
SECTION 11.3. Amendment................................................... 55
SECTION 11.4. Extension, Waiver........................................... 55
SECTION 11.5. Interpretation.............................................. 55
SECTION 11.6. Counterparts................................................ 55
SECTION 11.7. Entire Agreement, No Third Party Beneficiaries.............. 55
SECTION 11.8. Governing Law............................................... 55
SECTION 11.9. Assignment.................................................. 55
SECTION 11.10. Enforcement................................................. 56
SECTION 11.11. Severability................................................ 56
SECTION 11.12. WAIVER OF JURY TRIAL........................................ 56
EXHIBITS
Exhibit A Form of Company Stockholder Voting Agreement
Exhibit B Form of Parent Stockholder Voting Agreement
Exhibit C Form of Rule 145 Affiliate Agreement
Exhibit D Form of Amended and Restated PepsiCo Shareholder Agreement
Exhibit E Form of Amendment to Parent By-laws
Exhibit F Form of Pohlad Companies Shareholder Agreement
</TABLE>
iii
<PAGE>
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER, dated as of August 18, 2000 (this
"AGREEMENT"), among Whitman Corporation, a Delaware corporation ("PARENT"),
Anchor Merger Sub, Inc., a Delaware corporation and a wholly owned subsidiary of
Parent ("MERGER SUB"), and PepsiAmericas, Inc., a Delaware corporation (the
"COMPANY").
WHEREAS, the respective Boards of Directors of Parent, Merger Sub and the
Company have determined that it is advisable and in the best interests of their
respective stockholders for the Company to merge with and into Merger Sub, upon
the terms and subject to the conditions of this Agreement (the "MERGER");
WHEREAS, the respective Boards of Directors of Parent and the Company have
determined that the Merger is in furtherance of and consistent with their
respective business strategies and is in the best interest of their respective
stockholders, and Parent has approved this Agreement and the Merger as the sole
stockholder of Merger Sub;
WHEREAS, for United States federal income tax purposes, it is intended that
the Merger shall qualify as a tax-free reorganization within the meaning of
Section 368 of the Code;
WHEREAS, Parent, Merger Sub and the Company desire to make certain
representations, warranties, covenants and agreements in connection with the
Merger;
WHEREAS, Parent and Merger Sub have required, as a condition to their
willingness to enter into this Agreement, that certain stockholders of the
Company enter into a Voting Agreement (the "COMPANY STOCKHOLDER VOTING
AGREEMENT") with Parent and Merger Sub, substantially in the form attached
hereto as EXHIBIT A, concurrently with the execution and delivery of this
Agreement; and
WHEREAS, the Company has required, as a condition to its willingness to
enter into this Agreement, that certain stockholders of Parent enter into a
Voting Agreement (the "PARENT STOCKHOLDER VOTING AGREEMENT") with the Company,
substantially in the form attached hereto as EXHIBIT B, concurrently with the
execution and delivery of this Agreement.
NOW, THEREFORE, in consideration of the mutual representations, warranties,
covenants and agreements set forth herein, Parent, Merger Sub and the Company
hereby agree as follows:
ARTICLE I
DEFINITIONS
As used in this Agreement, the following terms shall have the respective
meanings set forth below:
"ACCOUNTING FIRM": As defined in SECTION 4.8.
"ADJUSTED EBITDA": As defined in SECTION 4.8.
"AFFILIATE": As defined in Rule 12b-2 under the Exchange Act.
"AFFILIATED TRANSACTION COMMITTEE": The Affiliated Transaction Committee of
the Board of Directors of Parent established in accordance with the by-laws of
Parent.
"AGGREGATE ADJUSTED EBITDA": As defined in SECTION 4.8.
"AGGREGATE CONTINGENT PAYMENT": As defined in SECTION 4.1(C).
"AGREED ADJUSTMENTS": As defined in SECTION 4.2(C).
"AGREEMENT": As defined in the Preamble.
"AMENDED AND RESTATED PEPSICO SHAREHOLDER AGREEMENT": As defined in
SECTION 8.10(A).
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"AUTHORIZATION": As defined in SECTION 5.5.
"BENEFIT PLANS": As defined in SECTION 7.8(B).
"BLUE SKY LAWS": As defined in SECTION 5.5.
"CASH CONSIDERATION": As defined in SECTION 3.1(C)(I).
"CASH ELECTION": As defined in SECTION 3.1(D).
"CASH ELECTION NUMBER": As defined in SECTION 3.1(D).
"CASH ELECTION SHARE": As defined in SECTION 3.1(D).
"CASH FRACTION": As defined in SECTION 3.1(E).
"CERTIFICATE OF MERGER": The certificate of merger with respect to the
Merger, containing the provisions required by, and executed in accordance with,
Section 251 of the DGCL.
"CLAIM": As defined in SECTION 7.6(A).
"CLOSING": The closing of the Merger.
"CLOSING DATE": The date on which the Closing occurs.
"CODE": The Internal Revenue Code of 1986, as amended, and all regulations
promulgated thereunder, as in effect from time to time.
"COMPANY": As defined in the Preamble.
"COMPANY BENEFIT PLANS": As defined in SECTION 5.9(A).
"COMPANY CHARTER": The Amended and Restated Certificate of Incorporation of
the Company, as amended to the date hereof.
"COMPANY CLASS A COMMON SHARES": Shares of Class A Common Stock, par value
$.01 per share, of the Company.
"COMPANY CLASS B COMMON SHARES": Shares of Class B Common Stock, par value
$.01 per share, of the Company.
"COMPANY COMMON CERTIFICATES": As defined in SECTION 3.L(H).
"COMPANY COMMON SHARES": Company Class A Common Shares and Company Class B
Common Shares.
"COMPANY DISCLOSURE STATEMENT": The disclosure statement, dated the date of
this Agreement, delivered by the Company to Parent.
"COMPANY EMPLOYEES": As defined in SECTION 7.8(A).
"COMPANY FINANCIAL ADVISOR": As defined in SECTION 5.19.
"COMPANY LEASES": As defined in SECTION 5.16.
"COMPANY OPTION": As defined in SECTION 3.3(A).
"COMPANY OWNED REAL PROPERTY": As defined in SECTION 5.16.
"COMPANY PERMITS": As defined in SECTION 5.12(A).
"COMPANY PERMITTED LIENS": All (i) matters listed or described in
SECTION 5.16 of the Company Disclosure Statement, (ii) easements, covenants,
rights-of-way and other Liens or restrictions which do not, individually or in
the aggregate, materially detract from the value or impair the present and
2
<PAGE>
continued use, operation and maintenance of the property subject thereto, or
impair the operation of the Company or any of its Subsidiaries and (iii) real
estate taxes not yet due or payable.
"COMPANY REAL PROPERTY": As defined in SECTION 5.16.
"COMPANY SEC REPORTS": As defined in SECTION 5.6.
"COMPANY STOCKHOLDER APPROVAL": As defined in SECTION 5.4(A).
"COMPANY STOCKHOLDERS' MEETING": As defined in SECTION 8.2(A).
"COMPANY STOCKHOLDER VOTING AGREEMENT": As defined in the Preamble.
"COMPANY TAX CERTIFICATE": As defined in SECTION 9.2(C).
"COMPANY TITLE POLICIES": As defined in SECTION 5.17.
"COMPANY WARRANT": As defined in SECTION 3.3(B).
"CONFIDENTIALITY AGREEMENT": The Confidentiality Agreement, dated as of
March 1, 2000, between Parent and the Company.
"CONTINGENT EARNOUT EXCHANGE RATIO" means the number, rounded down to the
nearest ten-thousandth, equal to the Exchange Ratio MULTIPLIED BY 0.1316;
PROVIDED, that in the event Parent (i) changes (or establishes a record date for
changing) the number of Parent Common Shares issued and outstanding prior to a
Contingent Share Earned Date as a result of a stock split, stock dividend, stock
combination, recapitalization, reclassification, reorganization or similar
transaction with respect to the outstanding Parent Common Shares or (ii) pays or
makes an extraordinary dividend or distribution in respect of Parent Common
Shares (other than a distribution referred to in clause (i) of this sentence)
and, in either case, the record date therefor shall be after the Effective Time
but prior to a Contingent Share Earned Date, the Contingent Earnout Exchange
Ratio shall be proportionately adjusted. Regular periodic cash dividends and
increases thereon consistent with past practices shall not be considered
extraordinary for purposes of the preceding sentence.
"CONTINGENT PAYMENT CONSIDERATION": As defined in SECTION 3.1(C)(III).
"CONTINGENT PAYMENT ELECTION": As defined in SECTION 3.1(G).
"CONTINGENT PAYMENT RECORD HOLDER": As defined in ARTICLE IV.
"CONTINGENT PAYMENTS": As defined in SECTION 4.1(C).
"CONTINGENT SHARE DELIVERY DATE": As defined in SECTION 4.8.
"CONTINGENT SHARE EARNED DATE": As defined in SECTION 4.8.
"CONTRACT": As defined in SECTION 5.5.
"CONTROL": With respect to any Person, the possession, direct or indirect,
of the power to direct or cause the direction of the management and policies of
such Person, whether through the ownership of voting securities, by contract, or
otherwise.
"DGCL": The General Corporation Law of the State of Delaware.
"DAKOTA HOLDINGS": Dakota Holdings, LLC, a Delaware limited liability
company.
"DISSENTING SHARES": As defined in SECTION 3.L(L).
"EFFECTIVE TIME": As defined in SECTION 2.2.
"ELECTION": As defined in SECTION 3.1(G).
"ELECTION DEADLINE": As defined in SECTION 3.1(J).
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<PAGE>
"ENVIRONMENTAL LAW": Any Law relating to any matter of pollution, protection
of the environment, environmental regulation or control or regarding Hazardous
Substances on, under or emanating from any of the Company's or Parent's
properties, as applicable, or any of their respective Subsidiaries' properties
or any other properties.
"ERISA": As defined in SECTION 5.9(A).
"EXCESS PARENT COMMON SHARES": As defined in SECTION 3.2(D).
"EXCHANGE ACT": The Securities Exchange Act of 1934, as amended, and the
rules and regulations promulgated thereunder.
"EXCHANGE AGENT": As defined in SECTION 3.2(A).
"EXCHANGE RATIO": The number, rounded down to the nearest ten-thousandth,
equal to $3.80 DIVIDED BY the Parent Closing Price; PROVIDED, HOWEVER, (i) if
the Parent Closing Price exceeds $16.0738, then the Exchange Ratio shall be
0.2364 and (ii) if the Parent Closing Price is less than $13.1513, then the
Exchange Ratio shall be 0.2889.
"EXECUTIVE AGREEMENTS": As defined in SECTION 7.8(C).
"FIXED EARNOUT EXCHANGE RATIO": The number, rounded down to the nearest
ten-thousandth, equal to the Exchange Ratio MULTIPLIED BY 0.7368.
"FORM OF ELECTION": As defined in SECTION 3.1(D).
"GAAP": As defined in SECTION 5.6.
"GOVERNMENTAL ENTITY": As defined in SECTION 5.5.
"HAZARDOUS SUBSTANCE": Any toxic or hazardous materials or substances,
including asbestos, contaminants, pollutants, chemicals, flammable explosives,
radioactive materials, petroleum and petroleum products and any substances
defined as, or included in the definition of, "hazardous substances," "hazardous
wastes," "hazardous materials" or "toxic substances" under any Environmental
Law.
"HSR ACT": As defined in SECTION 5.5.
"INDEMNIFIED PARTIES": As defined in SECTION 7.6(A).
"INDEPENDENT AUDITORS": KPMG LLP or such other nationally recognized
accounting firm appointed by the Board of Directors of Parent from time to time
as the auditors of Parent.
"INTELLECTUAL PROPERTY": All industrial and intellectual property rights,
including Proprietary Technology, patents, patent applications, patent rights,
trademarks, trademark applications, trademark rights, trade names, trade name
rights and registrations, service marks, service mark applications, service mark
rights and registrations, copyrights, know-how, licenses, trade secrets,
proprietary processes, formulae and customer lists.
"IRS": As defined in SECTION 5.9(A).
"LAW": Any federal, state, local or foreign law, statute, code, ordinance,
rule, regulation promulgated, or order, judgment, writ, stipulation, award,
injunction or decree entered, by a Governmental Entity.
"LIENS": As defined in SECTION 5.2.
"LOSSES AND EXPENSES": Any and all losses, costs, obligations, liabilities,
settlement payments, awards, judgments, fines, penalties, damages, expenses,
monetary deficiencies or other charges (including reasonable attorneys' fees and
expenses).
4
<PAGE>
"MATERIAL ADVERSE EFFECT": With respect to Parent, a material adverse effect
on the business, properties, operations, condition (financial or otherwise) or
prospects of Parent and its Subsidiaries, taken as a whole. With respect to the
Company, a material adverse effect on the business, properties, operations,
condition (financial or otherwise) or prospects of the Company and its
Subsidiaries, taken as a whole.
"MATERIAL COMPANY CONTRACTS": As defined in SECTION 5.10(A).
"MATERIAL PARENT CONTRACTS": As defined in SECTION 6.10(A).
"MEASUREMENT PERIOD": As defined in SECTION 4.8.
"MERGER": As defined in the Preamble.
"MERGER CONSIDERATION": As defined in SECTION 3.1(C)(III).
"MERGER SUB": As defined in the Preamble.
"MULTIEMPLOYER PLAN": As defined in SECTION 5.9(B).
"MULTIPLE EMPLOYER PLAN": As defined in SECTION 5.9(B).
"NO ELECTION SHARES": As defined in SECTION 3.1(I).
"NYSE": The New York Stock Exchange.
"PARENT": As defined in the Preamble.
"PARENT BENEFIT PLANS": As defined in SECTION 6.9(A).
"PARENT COMMON SHARES": Shares of common stock, par value $.01 per share, of
Parent.
"PARENT CLOSING PRICE": The average of the per share closing prices of the
Parent Common Shares, as reported in the NYSE Composite Transactions, during the
fifteen (15) consecutive trading days ending five trading days immediately prior
to the earlier of (i) the Company Stockholders' Meeting or (ii) the Parent
Stockholders' Meeting.
"PARENT DISCLOSURE STATEMENT": The disclosure statement, dated the date of
this Agreement, delivered by Parent to the Company.
"PARENT FINANCIAL ADVISOR": As defined in SECTION 6.19.
"PARENT LEASES": As defined in SECTION 6.16.
"PARENT OPTION": As defined in SECTION 3.3(A).
"PARENT OWNED REAL PROPERTY": As defined in SECTION 6.16.
"PARENT PERMITS": As defined in SECTION 6.12(A).
"PARENT PERMITTED LIENS": All (i) matters listed or described in
SECTION 6.16 of the Parent Disclosure Statement, (ii) easements, covenants,
rights-of-way and other Liens or restrictions which do not, individually or in
the aggregate, materially detract from the value or impair the present and
continued use, operation and maintenance of the property subject thereto, or
impair the operation of Parent or any of its Subsidiaries and (iii) real estate
taxes not yet due or payable.
"PARENT PREFERRED SHARES": As defined in SECTION 6.3.
"PARENT REAL PROPERTY": As defined in SECTION 6.16.
"PARENT REFERENCE PRICE": $14.6125.
"PARENT RIGHTS AGREEMENT": The Rights Agreement, dated as of May 20, 1999,
by and between Parent and First Chicago Trust Company of New York, as Rights
Agent.
5
<PAGE>
"PARENT SEC REPORTS": As defined in SECTION 6.6.
"PARENT STOCKHOLDER APPROVAL": As defined in SECTION 6.4.
"PARENT STOCKHOLDER VOTING AGREEMENT": As defined in the Preamble.
"PARENT STOCKHOLDERS' MEETING": As defined in SECTION 8.2(B).
"PARENT STOCK INCENTIVE PLANS": As defined in SECTION 6.3.
"PARENT TAX CERTIFICATE": As defined in SECTION 9.2(C).
"PARENT TITLE POLICIES": As defined in SECTION 6.17.
"PARENT WARRANT": As defined in SECTION 3.3(B).
"PBGC": As defined in SECTION 5.9(B).
"PEPSICO": PepsiCo, Inc, a North Carolina corporation.
"PERMIT": Any permit, grant, authorization, exception, consent, certificate,
clearance, license, variance, exemption, order, concession, franchise and
approval of a Governmental Entity.
"PERSON": Any individual or corporation, company, partnership, trust,
incorporated or unincorporated association, joint venture or other entity of any
kind.
"POHLAD COMPANIES": Pohlad Companies, a Minnesota corporation.
"POHLAD COMPANIES SHAREHOLDER AGREEMENT": As defined in SECTION 8.10(C).
"PRELIMINARY CONTINGENT PAYMENT REPORT": As defined in SECTION 4.2(A).
"PROPRIETARY TECHNOLOGY": All proprietary processes, formulae, inventions,
trade secrets, know-how, development tools and other proprietary rights used by
the Company and its Subsidiaries or Parent and its Subsidiaries, as the case may
be, pertaining to any product, software or service manufactured, marketed,
licensed or sold by the Company and its Subsidiaries or Parent and its
Subsidiaries, as the case may be, in the conduct of their business or used or
employed in the development, license, sale, marketing, distribution or
maintenance thereof, and all documentation and media constituting, describing or
relating to the above, including manuals, memoranda, know-how, notebooks,
software, records and disclosures.
"PROXY STATEMENT": As defined in SECTION 8.1(A).
"REGISTRATION STATEMENT": As defined in SECTION 8.1(A).
"REPRESENTATIVES": As defined in SECTION 8.3.
"RIGHTS": Parent's preferred share purchase rights issued pursuant to the
Parent Rights Agreement for so long as the Parent Rights Agreement or any
replacement or alternative rights plan is in existence.
"RULE 145 AFFILIATE": As defined in SECTION 8.8.
"SCHEDULE 13E-3": As defined in SECTION 8.1(A).
"SEC": The Securities and Exchange Commission.
"SECTION 16": As defined in SECTION 7.8(B).
"SECURITIES ACT": The Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder.
"SHAREHOLDER TAX CERTIFICATE": As defined in SECTION 9.2(C).
6
<PAGE>
"SHARE ISSUANCE": As defined in SECTION 6.4.
"SHARES REPRESENTATIVES": As defined in SECTION 3.1(D).
"SPECIAL COMMITTEE FINANCIAL ADVISOR": As defined in SECTION 5.19.
"STOCK CONSIDERATION": As defined in SECTION 3.1(C)(II).
"STOCK ELECTION": As defined in SECTION 3.1(F).
"SUBSCRIPTION SHARES": 1,710,863 shares of Parent Common Stock made
available for purchase by Contingent Payment Record Holders pursuant to
SECTION 4.7.
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