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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: |
Nymex Holdings Inc; Bank of New York; Skadden, Arps, Slate, Meagher & Flom LLP |
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Date: |
2006 |
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Size: |
Preview shows 46KB of 175KB total |
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Price: |
$63 |
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ID: |
#2259525 |
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Start of Preview |
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AGREEMENT AND PLAN OF MERGER
By and Among
NEW YORK MERCANTILE EXCHANGE,
COMEX ACQUISITION CORP.
and
COMMODITY EXCHANGE, INC.
TABLE OF CONTENTS
| Page | ||||
| ARTICLE I | ||||
| THE MERGER | ||||
|
1.1 |
The Merger | 1 | ||
|
1.2 |
Effective Time | 2 | ||
|
1.3 |
Effects of the Merger | 2 | ||
|
1.4 |
Name | 2 | ||
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1.5 |
Officers and Directors; COMEX Governors Committee | 2 | ||
|
1.6 |
Certificate of Incorporation | 2 | ||
|
1.7 |
By-Laws and Rules | 2 | ||
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1.8 |
Conversion of Memberships; Consideration | 3 | ||
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1.9 |
Conversion of Membership in NewCo | 7 | ||
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1.10 |
Limitation on Future Rights | 8 | ||
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1.11 |
Approval of Members | 8 | ||
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1.12 |
Proxy Materials | 9 | ||
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ARTICLE II
THE CLOSING
| ||||
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2.1 |
Closing | 9 | ||
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2.2 |
The Companys Actions at Closing | 9 | ||
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2.3 |
The Buyers and NewCos Actions at Closing | 10 | ||
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ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
| ||||
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3.1 |
Corporate Status; Organizational Documents | 11 | ||
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3.2 |
Authorization; Vote Required | 11 | ||
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3.3 |
Binding Agreement | 11 | ||
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3.4 |
Compliance with Instruments and Law | 11 | ||
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3.5 |
Memberships | 12 | ||
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3.6 |
Consents | 12 | ||
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3.7 |
Subsidiaries | 12 | ||
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3.8 |
Proxy Materials | 12 | ||
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3.9 |
CFTC, Regulatory Matters | 12 | ||
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3.10 |
Litigation | 12 | ||
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3.11 |
Financial Statements | 13 | ||
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3.12 |
Absence of Changes | 13 | ||
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3.13 |
Tax Matters | 14 | ||
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3.14 |
Intellectual Property Rights | 16 | ||
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3.15 |
Title/Sufficiency of Assets | 17 | ||
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3.16 |
Material Agreements | 17 | ||
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3.17 |
Insurance | 17 | ||
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3.18 |
Employees | 17 | ||
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3.19 |
Employee Benefit Plans | 17 | ||
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3.20 |
Licenses and Permits | 19 | ||
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3.21 |
Investment Bankers Fees | 19 | ||
i
| Page | ||||
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3.22 |
Other Information | 20 | ||
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3.23 |
No Implied Representations | 20 | ||
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE BUYER AND NEWCO
| ||||
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4.1 |
Corporate Status | 20 | ||
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4.2 |
Authorization; Vote Required | 20 | ||
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4.3 |
Binding Agreement | 20 | ||
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4.4 |
Compliance with Instruments and Law | 20 | ||
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4.5 |
Consents | 21 | ||
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4.6 |
Litigation | 21 | ||
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4.7 |
CFTC, Regulatory Matters | 21 | ||
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4.8 |
Financial Statements | 21 | ||
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4.9 |
Absence of Changes | 22 | ||
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4.10 |
Licenses and Permits | 22 | ||
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4.11 |
Proxy Materials | 22 | ||
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4.12 |
Material; Materially | 22 | ||
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ARTICLE V
OTHER AGREEMENTS
| ||||
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5.1 |
No Solicitation | 22 | ||
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5.2 |
Conduct of Business Prior to Closing | 22 | ||
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5.3 |
No Publicity | 24 | ||
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5.4 |
Notification of Changes | 24 | ||
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5.5 |
Access to Information; Cooperation in Developing Consolidation Plan | 24 | ||
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5.6 |
Officers and Directors Indemnification, Insurance | 25 | ||
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5.7 |
Best Efforts | 25 | ||
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5.8 |
Headquarters; Floor Reconfiguration | 26 | ||
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5.9 |
COMEX Members | 26 | ||
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5.10 |
Severance Plans for Company Employees | 26 | ||
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5.11 |
Other Benefit Arrangements of Company Employees | 26 | ||
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5.12 |
Crediting Service of Company Employees | 27 | ||
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5.13 |
Second Stage Merger | 27 | ||
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5.14 |
Distribution of Proxy Materials | 28 | ||
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5.15 |
Opinion of Company Financial Advisor | 28 | ||
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5.16 |
Equity Interests in the COMEX Division of the Buyer | 28 | ||
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5.17 |
NYMEX ACCESSSM | 28 | ||
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5.18 |
Clearing and Trade Processing Matters | 28 | ||
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5.19 |
Mergers, Sale of Assets, etc. | 28 | ||
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5.20 |
CEC Price Structure | 29 | ||
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5.21 |
Amendments to By-Laws and Rules | 29 | ||
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5.22 |
Trading Privileges in NYMEX Division Contracts | 29 | ||
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5.23 |
Competing Contracts | 29 | ||
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5.24 |
Board of Directors of the Buyer and the Initial Surviving Corporation | 29 | ||
ii
| Page | ||||
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ARTICLE VI
CONDITIONS TO OBLIGATIONS OF THE BUYER
| ||||
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6.1 |
Member Approval | 30 | ||
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6.2 |
COMEX Clearing Association, Inc. | 30 | ||
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6.3 |
Commodity Futures Clearing Corp. of New York | 30 | ||
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6.4 |
No Injunctions, Restraints or Proceedings | 30 | ||
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6.5 |
Consents | 30 | ||
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6.6 |
Performance | 30 | ||
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6.7 |
Representations and Warranties Correct | 30 | ||
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ARTICLE VII
CONDITIONS TO OBLIGATION OF THE COMPANY
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7.1 |
Member Approval | 31 | ||
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7.2 |
By-Laws and Rules | 31 | ||
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7.3 |
No Injunctions, Restraints or Proceedings | 31 | ||
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7.4 |
Consents | 31 | ||
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7.5 |
Performance | 31 | ||
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7.6 |
Representations and Warranties Correct | 31 | ||
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7.7 |
Tax Laws | 31 | ||
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ARTICLE VIII
TERMINATION; RIGHT OF RECOVERY; CERTAIN DISPUTES
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8.1 |
Termination | 32 | ||
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8.2 |
Effect of Termination | 33 | ||
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8.3 |
Payment to Buyer Under Certain Circumstances | 33 | ||
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8.4 |
Payment to the Company Under Certain Circumstances | |||
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End of Preview |
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