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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: |
Apple Computer, Inc.; Digital Music Group, Inc.; Google, Inc. |
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Date: |
2006 |
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Size: |
Preview shows 52KB of 178KB total |
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Price: |
$64 |
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ID: |
#2496657 |
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Start of Preview |
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AGREEMENT AND PLAN OF MERGER
BY AND AMONG
DIGITAL MUSIC GROUP, INC.
LONGTAIL ACQUISITION CORP.
DIGITAL RIGHTS AGENCY LLC
TUHIN ROY
and
RAPFOGEL PARTNERS LTD.
Dated as of September 8, 2006
TABLE OF CONTENTS
| Page | ||||
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ARTICLE I |
THE MERGER | 2 | ||
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1.1 |
The Merger |
2 | ||
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1.2 |
Effective Time |
2 | ||
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1.3 |
Effect of the Merger |
2 | ||
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1.4 |
Articles of Incorporation and Bylaws |
2 | ||
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1.5 |
Directors and Officers |
3 | ||
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1.6 |
Effect of Merger on the Capitalization of the Constituent Corporations |
3 | ||
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1.7 |
Dissenting Units |
4 | ||
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1.8 |
Mechanics of Exchange |
5 | ||
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1.9 |
No Assumption of Company Options or Warrants |
7 | ||
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1.10 |
Member Loans |
7 | ||
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1.11 |
No Further Ownership Rights in Company Units |
7 | ||
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1.12 |
Withholding Taxes |
7 | ||
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1.13 |
Taking of Necessary Action; Further Action |
7 | ||
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ARTICLE II |
REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE SUBSTANTIAL MEMBERS | 7 | ||
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2.1 |
Organization of the Company |
8 | ||
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2.2 |
Company Capital Structure |
8 | ||
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2.3 |
Subsidiaries |
9 | ||
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2.4 |
Authority |
9 | ||
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2.5 |
No Conflict |
10 | ||
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2.6 |
Governmental Consents |
10 | ||
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2.7 |
Company Financial Statements |
10 | ||
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2.8 |
Internal Controls |
10 | ||
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2.9 |
No Undisclosed Liabilities; Guarantees |
11 | ||
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2.10 |
No Changes |
11 | ||
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2.11 |
Accounts Receivable |
14 | ||
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2.12 |
Tax Matters |
14 | ||
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2.13 |
Restrictions on Business Activities |
15 | ||
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2.14 |
Title to Properties; Absence of Liens and Encumbrances; Condition of Equipment |
15 | ||
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2.15 |
Intellectual Property |
17 | ||
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2.16 |
Content |
20 | ||
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2.17 |
Agreements, Contracts and Commitments |
21 | ||
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2.18 |
Interested Party Transactions |
22 | ||
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2.19 |
Governmental Authorization |
22 | ||
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2.20 |
Litigation |
22 | ||
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2.21 |
Minute Book |
22 | ||
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2.22 |
Environmental Matters |
23 | ||
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2.23 |
Brokers and Finders Fees |
23 | ||
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2.24 |
Employee Benefit Plans and Compensation |
24 | ||
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2.25 |
Insurance |
26 | ||
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2.26 |
Compliance with Laws |
26 | ||
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2.27 |
Foreign Corrupt Practices Act |
26 | ||
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2.28 |
Warranties; Indemnities |
26 | ||
CONFIDENTIAL
INDEX OF DEFINED TERMS
(continued)
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2.29 |
Content Owners, Outlet Channels and Suppliers |
27 | ||
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2.30 |
Complete Copies of Materials |
27 | ||
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2.31 |
Representations Complete |
27 | ||
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2.32 |
Information Statement |
27 | ||
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ARTICLE III |
REPRESENTATIONS AND WARRANTIES OF PURCHASER AND MERGER SUB | 27 | ||
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3.1 |
Organization and Standing |
27 | ||
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3.2 |
Authority |
27 | ||
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3.3 |
Consents |
28 | ||
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3.4 |
Brokers and Finders Fees |
28 | ||
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3.5 |
SEC Documents |
28 | ||
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3.6 |
Shares of Purchaser Common Stock |
28 | ||
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3.7 |
Board of Directors |
29 | ||
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3.8 |
Representations Complete |
29 | ||
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3.9 |
Rule 144 |
29 | ||
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ARTICLE IV |
ADDITIONAL AGREEMENTS | 29 | ||
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4.1 |
Confidentiality |
29 | ||
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4.2 |
Public Disclosure |
29 | ||
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4.3 |
Additional Documents and Further Assurances |
29 | ||
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4.4 |
Purchaser Options |
29 | ||
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4.5 |
Expenses |
30 | ||
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4.6 |
Tax Filings |
30 | ||
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4.7 |
Release of Guarantees |
31 | ||
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4.8 |
Processing and Distribution of Content |
31 | ||
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4.9 |
Tax Election |
32 | ||
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4.10 |
Rule 144 Compliance |
32 | ||
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ARTICLE V |
CONDITIONS TO THE MERGER | 32 | ||
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5.1 |
Conditions to Obligations of Each Party to Effect the Merger |
32 | ||
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5.2 |
Conditions to the Obligations of Purchaser and Merger Sub |
32 | ||
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5.3 |
Conditions to Obligations of the Company |
35 | ||
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ARTICLE VI |
SURVIVAL OF REPRESENTATIONS AND WARRANTIES | 35 | ||
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6.1 |
Survival of Representations and Warranties |
35 | ||
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6.2 |
Indemnification |
36 | ||
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6.3 |
Maximum Payments; Deductible Amount; Remedy |
36 | ||
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ARTICLE VII |
GENERAL PROVISIONS | 38 | ||
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7.1 |
Notices |
38 | ||
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7.2 |
Amendment |
39 | ||
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7.3 |
Extension; Waiver |
39 | ||
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7.4 |
Interpretation |
39 | ||
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7.5 |
Counterparts |
40 | ||
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7.6 |
Currency |
40 | ||
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7.7 |
Entire Agreement; Assignment |
40 | ||
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7.8 |
Severability |
40 | ||
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7.9 |
Other Remedies |
40 | ||
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7.10 |
Power of Attorney |
40 | ||
-ii-
CONFIDENTIAL
INDEX OF DEFINED TERMS
(continued)
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7.11 |
Governing Law; Exclusive Jurisdiction |
40 | ||
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7.12 |
Rules of Construction |
41 | ||
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7.13 |
Waiver of Jury Trial |
41 | ||
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7.14 |
Arbitration |
41 | ||
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ARTICLE VIII |
DEFINITIONS | 42 | ||
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8.1 |
Definitions |
42 | ||
-iii-
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (this Agreement) is made and entered into as of September 8, 2006 by and among Digital Music Group, Inc., a Delaware corporation (Purchaser), Longtail Acquisition Corp., a California corporation (Merger Sub), Digital Rights Agency LLC, a California limited liability company (the Company), and Tuhin Roy and Rapfogel Partners Ltd., a Texas limited partnership (each, a Substantial Member). Certain capitalized terms used but not otherwise defined herein are defined in Article VIII hereof.
RECITALS
A. The Board of Directors of Purchaser believe it is advisable and in the best interests of Purchaser and its stockholders that Purchaser acquire the Company through the statutory merger of Merger Sub with and into the Company (the Merger), following which the surviving entity will be a wholly-owned subsidiary of Purchaser, and, in furtherance thereof, the Board of Directors of Purchaser has approved this Agreement and the Merger and directed the officers of Purchaser to execute and deliver this Agreement.
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