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Document Preview Agreement and Plan of Merger |
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Title: |
Agreement and Plan of Merger |
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Entities: |
Answerthink, Inc.; DiamondCluster International Inc.; Digitas Inc.; PFC Acquisition Corp; Goldman, Sachs & Co.; Nasdaq Stock Market Inc.; Davis Polk & Wardwell; Wachtell, Lipton, Rosen & Katz |
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Date: |
2001 |
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Size: |
Preview shows 27KB of 133KB total |
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Price: |
$61 |
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ID: |
#1869957 |
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{CAPTION}
Page
{S} {C}
ARTICLE 1
THE OFFER
SECTION 1.01. The Offer 1
SECTION 1.02. Company Action 2
SECTION 1.03. Directors 3
ARTICLE 2
THE MERGER
SECTION 2.01. The Merger 4
SECTION 2.02. Conversion of Shares 5
SECTION 2.03. Surrender and Payment 5
SECTION 2.04. Dissenting Shares 7
SECTION 2.05. Stock Options 7
SECTION 2.06. Employee Stock Purchase Plan 8
SECTION 2.07. Adjustments 9
SECTION 2.08. Withholding Rights 9
SECTION 2.09. Lost Certificates 9
ARTICLE 3
THE SURVIVING CORPORATION
SECTION 3.01. Certificate of Incorporation 9
SECTION 3.02. Bylaws 9
SECTION 3.03. Directors and Officers 10
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
SECTION 4.01. Corporate Existence and Power 10
SECTION 4.02. Corporate Authorization 10
SECTION 4.03. Governmental Authorization 11
SECTION 4.04. Non-Contravention 11
SECTION 4.05. Capitalization 11
SECTION 4.06. Subsidiaries 12
SECTION 4.07. SEC Filings 13
SECTION 4.08. Financial Statements 13
SECTION 4.09. Disclosure Documents 14
SECTION 4.10. Absence of Certain Changes 14
{/TABLE}
i
{PAGE} 3
{TABLE}
{CAPTION}
Page
{S} {C}
SECTION 4.11. No Undisclosed Material Liabilities 16
SECTION 4.12. Litigation 16
SECTION 4.13. Taxes 17
SECTION 4.14. ERISA 18
SECTION 4.15. Compliance with Laws 20
SECTION 4.16. Finders' Fees 20
SECTION 4.17. Patents and Other Proprietary Rights 21
SECTION 4.18. Environmental Matters 22
SECTION 4.19. Antitakeover Provisions 23
SECTION 4.20. Rights Agreement or Plan 23
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF PARENT
SECTION 5.01. Corporate Existence and Power 23
SECTION 5.02. Corporate Authorization 23
SECTION 5.03. Governmental Authorization 23
SECTION 5.04. Non-Contravention 24
SECTION 5.05. Disclosure Documents 24
SECTION 5.06. Finders' Fees 25
SECTION 5.07. Financing 25
ARTICLE 6
COVENANTS OF THE COMPANY
SECTION 6.01. Conduct of the Company 25
SECTION 6.02. Stockholder Meeting; Proxy Material 26
SECTION 6.03. Access to Information 27
SECTION 6.04. Other Offers 27
SECTION 6.05. Section 16 Matters 29
SECTION 6.06. Notice of Certain Events 29
ARTICLE 7
COVENANTS OF PARENT
SECTION 7.01. Obligations of Merger Subsidiary 30
SECTION 7.02. Director and Officer Liability 30
SECTION 7.03. Employees 31
SECTION 7.04. Notice of Certain Events 32
{/TABLE}
ii
{PAGE} 4
{TABLE}
{S} {C}
ARTICLE 8
COVENANTS OF PARENT AND THE COMPANY
SECTION 8.01. Reasonable Best Efforts 32
SECTION 8.02. Certain Filings 33
SECTION 8.03. Public Announcements 33
SECTION 8.04. Merger Without Meeting of Stockholders 33
ARTICLE 9
CONDITIONS TO THE MERGER
SECTION 9.01. Conditions to the Obligations of Each Party 33
ARTICLE 10
TERMINATION
SECTION 10.01. Termination 34
SECTION 10.02. Effect of Termination 36
ARTICLE 11
MISCELLANEOUS
SECTION 11.01. Notices 36
SECTION 11.02. Survival 37
SECTION 11.03. Amendments; No Waivers 37
SECTION 11.04. Fees and Expenses 37
SECTION 11.05. Successors and Assigns 38
SECTION 11.06. Governing Law 39
SECTION 11.07. Jurisdiction 39
SECTION 11.08. WAIVER OF JURY TRIAL 39
SECTION 11.09. Counterparts; Effectiveness; Third Party Beneficiaries 39
SECTION 11.10. Entire Agreement 39
SECTION 11.11. Severability 39
SECTION 11.12. Specific Performance 40
SECTION 11.13. Definitions 40
{/TABLE}
iii
{PAGE} 5
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER dated as of April 26, 2001 among Compaq
Computer Corporation, a Delaware corporation ("PARENT"), Proxicom, Inc., a
Delaware corporation (the "COMPANY"), and PFC Acquisition Corp., a Delaware
corporation and a wholly-owned subsidiary of Parent ("MERGER SUBSIDIARY").
The parties hereto agree as follows:
ARTICLE 1
THE OFFER
SECTION 1.01. The Offer. (a) Provided that nothing shall have occurred
that, had the Offer referred to below been commenced, would give rise to a right
to terminate the Offer pursuant to any of the conditions set forth in Annex I
hereto, within five business days after the date hereof, Merger Subsidiary shall
commence an offer (the "OFFER") to purchase all of the outstanding shares of
common stock, par value $0.01 per share, of the Company (the "COMPANY STOCK") at
a price of $5.75 per share, net to the seller in cash. The Offer shall be
subject to the condition that there shall be validly tendered in accordance with
the terms of the Offer, prior to the expiration date of the Offer and not
withdrawn, a number of shares of Company Stock that, together with the shares of
Company Stock then owned by Parent and its Affiliates, represents at least a
majority of the shares of Company Stock outstanding on a fully-diluted basis
(the "MINIMUM CONDITION") and to the other conditions set forth in Annex I
hereto. Merger Subsidiary expressly reserves the right to waive any of the
conditions to the Offer and to make any change in the terms of or conditions to
the Offer; provided that, without the prior written consent of the Company, (i)
the Minimum Condition may not be waived and (ii) no change may be made that
changes the form of consideration to be paid, decreases the price per share of
Company Stock or the number of shares of Company Stock sought in the Offer or
imposes conditions to the Offer in addition to those set forth in Annex I. If
any of the conditions to the Offer is not satisfied or waived on any scheduled
expiration date of the Offer, Merger Subsidiary shall extend the Offer from time
to time until such conditions are satisfied or waived; provided that Merger
Subsidiary shall not be required to extend the Offer beyond August 1, 2001. Any
individual extension of the Offer pursuant to the preceding sentence shall not
exceed 10 business days. If at the expiration of the Offer all of the conditions
to the Offer have been satisfied or
{PAGE} 6
waived, Merger Subsidiary may (and if the number of shares of Company Stock
validly tendered and not withdrawn pursuant to the Offer equals 80% or more, but
less than 90% of the outstanding shares of Company Stock, shall) extend the
Offer pursuant to an amendment to the Offer providing for a "subsequent offering
period" not to exceed 20 business days to the extent permitted under, and in
compliance with, Rule 14d-11 under the Securities Exchange Act of 1934, as
amended (the "EXCHANGE ACT"). Subject to the foregoing and applicable law and
upon the terms and subject to the conditions of the Offer, Merger Subsidiary
shall, and Parent shall cause it to, accept for payment, as promptly as
permitted under applicable securities laws, and pay for, as promptly as
practicable after the date on which Merger Subsidiary first accepts shares for
payment pursuant to the Offer (the "ACCEPTANCE DATE"), all shares of Company
Stock validly tendered and not withdrawn pursuant to the Offer.
(b) As soon as practicable on the date of commencement of the Offer,
Parent and Merger Subsidiary shall file with the Securities and Exchange
Commission (the "SEC") a Tender Offer Statement on Schedule TO (the "SCHEDULE
TO") with respect to the Offer (such Schedule TO and such documents included
therein pursuant to which the Offer will be made, together with any supplements
or amendments thereto, the "OFFER DOCUMENTS"). Parent, Merger Subsidiary and the
Company each agrees promptly to correct any information provided by it for use
in the Offer Documents if and to the extent that such information shall have
become false or misleading in any material respect. Parent and Merger Subsidiary
agree to take all steps necessary to cause the Schedule TO as so corrected to be
filed with the SEC and the other Offer Documents as so corrected to be
disseminated to holders of shares of Company Stock, in each case as and to the
extent required by applicable federal securities laws. The Company and its
counsel shall be given an opportunity to review and comment on the Offer
Documents prior to their being filed with the SEC or disseminated to the holders
of shares of Company Stock.
SECTION 1.02. Company Action. (a) The Company hereby consents to the
Offer and represents that its Board of Directors, at a meeting duly called and
held has (i) determined that this Agreement and the transactions contemplated
hereby, including the Offer and the Merger, are fair to and in the best
interests of the Company's stockholders, (ii) approved and adopted this
Agreement and the transactions contemplated hereby, including the Offer and the
Merger, in accordance with the requirements of the Delaware General Corporation
Law (the "DELAWARE LAW") and (iii) subject to Section 6.04(b), resolved to
recommend acceptance of the Offer and adoption of this Agreement by its
stockholders. The Company further represents that Goldman, Sachs & Co. has
delivered to the Board of Directors of the Company its oral opinion (to be
subsequently confirmed in writing) to the effect that, as of the date of this
Agreement, the consideration to
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{PAGE} 7
be received by the holders of shares of Company Stock pursuant to the terms of
the Offer and the Merger is fair to such holders from a financial point of view.
The Company will promptly furnish Parent with a list of its stockholders,
mailing labels and any available listing or computer file containing the names
and addresses of all record holders of shares of Company Stock and lists of
securities positions of shares of Company Stock held in stock depositories, in
each case true and correct as of the most recent practicable date, and will
provide to Parent such additional information (including updated lists of
stockholders, mailing labels and lists of securities positions) and such other
assistance as Parent may reasonably request in connection with the Offer.
(b) As soon as practicable on the day that the Offer is commenced, the
Company shall file with the SEC and disseminate to holders of shares of Company
Stock, in each case as and to the extent required by applicable federal
securities laws, a Solicitation/Recommendation Statement on Schedule 14D-9
(together with any amendments or supplements thereto, the "SCHEDULE 14D-9")
that, subject to Section 6.04(b), shall reflect the recommendations of the Board
of Directors of the Company referred to above. Each of the Company, Parent and
Merger Subsidiary agrees promptly to correct any information provided by it for
use in the Schedule 14D-9 if and to the extent that it shall have become false
or misleading in any material respect. The Company agrees to take all steps
necessary to cause the Schedule 14D-9 as so corrected to be filed with the SEC
and to be disseminated to holders of shares of Company Stock, in each case as
and to the extent required by applicable federal securities laws. Parent and its
counsel shall be given an opportunity to review and comment on the Schedule
14D-9 prior to its being filed with the SEC.
SECTION 1.03. Directors. (a) Effective upon the acceptance for payment
of any shares of Company Stock pursuant to the Offer, Parent shall be entitled
to designate the number of directors, rounded up to the next whole number, on
the Board of Directors of the Company that equals the product of (i) the total
number of directors on the Board of Directors of the Company (giving effect to
the election of any additional directors pursuant to this Section) and (ii) the
percentage that the number of shares of Company Stock beneficially owned by
Parent and its Affiliates (including shares of Company Stock accepted for
payment) bears to the total number of shares of Company Stock outstanding, and
the Company shall take all action necessary to cause Parent's designees to be
elected or appointed to the Board of Directors of the Company, including
increasing the number of directors, and seeking and accepting resignations of
incumbent directors. At such time, subject to applicable law and applicable
stock exchange regulations, the Company will also use its reasonable best
efforts to cause individuals designated by Parent to constitute the number of
members, rounded up to the next whole number, on (i) each committee of the Board
and (ii)
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{PAGE} 8
each board of directors of each Subsidiary of the Company (and each committee
thereof) that represents the same percentage as such individuals represent on
the Board of Directors of the Company.
(b) The Company's obligations to appoint Parent's designees to the
Board of Directors of the Company shall be subject to Section 14(f) of the
Exchange Act and Rule 14f-1 promulgated thereunder. The Company shall promptly
take all actions, and shall include in the Schedule 14D-9 such information with
respect to the Company and its officers and directors, as Section 14(f) and Rule
14f-1 require in order to fulfill its obligations under this Section. Parent
shall supply to the Company in writing and be solely responsible for any
information with respect to itself and its nominees, officers, directors and
affiliates required by Section 14(f) and Rule 14f-1.
(c) Following the election or appointment of Parent's designees
pursuant to Section 1.03(a) and until the Effective Time, the approval of a
majority of the directors of the Company then in office who were not designated
by Parent shall be required to authorize (and such authorization shall
constitute the authorization of the Board of Directors of the Company and no
other action on the part of the Company, including any action by any other
director of the Company, shall be required to authorize) any amendment or
termination of this Agreement, any waiver of compliance with any of the
agreements or conditions contained herein for the benefit of the Company or any
action as to which the consent or agreement of the Company is required
hereunder. Following the election or appointment of Parent's designees pursuant
to Section 1.03(a) and until the Effective Time, the Company shall use its
reasonable best efforts to ensure that at least one of the directors of the
Company not designated by Parent shall remain a member of the Board of Directors
of the Company.
ARTICLE 2
THE MERGER
SECTION 2.01. The Merger. (a) At the Effective Time, Merger Subsidiary
shall be merged (the "MERGER") into the Company in accordance with the Delaware
Law, whereupon the separate existence of Merger Subsidiary shall cease, and the
Company shall be the surviving corporation (the "SURVIVING CORPORATION").
(b) As soon as practicable after satisfaction or, to the extent
permitted hereunder, waiver of all conditions to the Merger, the Company and
Merger Subsidiary will file a certificate of merger with the Delaware Secretary
of State
4
{PAGE} 9
and make all other filings or recordings required by the Delaware Law in
connection with the Merger. The Merger shall become effective at the close of
business on the day on which the certificate of merger is duly filed with the
Delaware Secretary of State or at such later time as the Company and Parent may
agree and specify in the certificate of merger (the "EFFECTIVE TIME").
(c) From and after the Effective Time, the Surviving Corporation shall
possess all the rights, powers, privileges and franchises and be subject to all
of the obligations, liabilities, restrictions and disabilities of the Company
and Merger Subsidiary, all as provided under the Delaware Law.
SECTION 2.02. Conversion of Shares. At the Effective Time:
(a) except as otherwise provided in Section 2.02(b) or Section 2.04,
each share of Company Stock outstanding immediately prior to the Effective Time
shall be converted into the right to receive $5.75 in cash, or such higher price
as is paid in the Offer, without interest (the "MERGER CONSIDERATION");
(b) each share of Company Stock held by the Company as treasury stock
or owned by Parent or any of its Subsidiaries immediately prior to the Effective
Time shall be canceled, and no payment shall be made with respect thereto; and
(c) each share of common stock of Merger Subsidiary outstanding
immediately prior to the Effective Time shall be converted into and become one
share of common stock of the Surviving Corporation with the same rights, powers
and privileges as the shares so converted and shall constitute the only
outstanding shares of capital stock of the Surviving Corporation.
SECTION 2.03. Surrender and Payment. (a) Prior to the Effective Time,
Parent shall appoint an agent (the "EXCHANGE AGENT") for the purpose of
exchanging certificates representing shares of Company Stock (the
"CERTIFICATES") for the Merger Consideration. Parent will make available to the
Exchange Agent, as needed, the Merger Consideration to be paid in respect of the
shares of Company Stock. Promptly after the Effective Time, Parent will send, or
will cause the Exchange Agent to send, to each holder of shares of Company Stock
at the Effective Time a letter of transmittal and instructions (which shall
specify that the delivery shall be effected, and risk of loss and title shall
pass, only upon proper delivery of the Certificates to the Exchange Agent) for
use in such exchange.
(b) Each holder of shares of Company Stock that have been converted
into the right to receive the Merger Consideration will be entitled to receive,
upon
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{PAGE} 10
surrender to the Exchange Agent of a Certificate, together with a properly
completed letter of transmittal, the Merger Consideration payable for each share
of Company Stock represented by such Certificate. Until so surrendered, each
such Certificate shall represent after the Effective Time for all purposes only
the right to receive such Merger Consideration.
(c) If any portion of the Merger Consideration is to be paid to a
Person other than the Person in whose name the surrendered Certificate is
registered, it shall be a condition to such payment that the Certificate so
surrendered shall be properly endorsed or otherwise be in proper form for
transfer and that the Person requesting such payment shall pay to the Exchange
Agent any transfer or other taxes required as a result of such payment to a
Person other than the registered holder of such Certificate or establish to the
satisfaction of the Exchange Agent that such tax has been paid or is not
payable.
(d) After the Effective Time, there shall be no further registration of
transfers of shares of Company Stock. If, after the Effective Time, Certificates
are presented to the Surviving Corporation, they shall be canceled and exchanged
for the Merger Consideration provided for, and in accordance with the procedures
set forth, in this Article 2.
(e) Any portion of the Merger Consideration made available to the
Exchange Agent pursuant to Section 2.03(a) (and any interest or other income
earned thereon) that remains unclaimed by the holders of shares of Company Stock
six months after the Effective Time shall be returned to Parent, upon demand,
and any such holder who has not exchanged shares of Company Stock for the Merger
Consideration in accordance with this Section 2.03 prior to that time shall
thereafter look only to Parent for payment of the Merger Consideration in
respect of such shares of Company Stock without any interest thereon.
Notwithstanding the foregoing, Parent shall not be liable to any holder of
shares of Company Stock for any amount paid to a public official pursuant to
applicable abandoned property, escheat or similar laws. Any amounts remaining
unclaimed by holders of shares of Company Stock two years after the Effective
Time (or such earlier date immediately prior to such time when the amounts would
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