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Title: |
Agreement and Plan of Merger |
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Entities: |
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Date: |
2006 |
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Size: |
Preview shows 62KB of 242KB total |
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Price: |
$86 |
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ID: |
#2611367 |
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Start of Preview |
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AGREEMENT AND PLAN OF MERGER
among:
NVIDIA CORPORATION,
a Delaware corporation;
PARTRIDGE ACQUISITION, INC.,
a Delaware corporation;
and
PORTALPLAYER, INC.,
a Delaware corporation
Dated as of November 6, 2006
TABLE OF CONTENTS
| PAGE | ||||
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SECTION 1. |
DESCRIPTION OF TRANSACTION | 1 | ||
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1.1 |
Merger of Merger Sub into the Company | 1 | ||
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1.2 |
Effect of the Merger | 1 | ||
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1.3 |
Closing; Effective Time | 1 | ||
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1.4 |
Certificate of Incorporation and Bylaws; Directors and Officers | 2 | ||
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1.5 |
Effect on Capital Stock | 2 | ||
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1.6 |
Closing of the Companys Transfer Books | 3 | ||
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1.7 |
Surrender of Certificates | 3 | ||
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1.8 |
Dissenting Shares | 5 | ||
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1.9 |
Further Action | 5 | ||
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SECTION 2. |
REPRESENTATIONS AND WARRANTIES OF THE COMPANY | 5 | ||
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2.1 |
Subsidiaries; Due Organization; Qualification to do Business | 6 | ||
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2.2 |
Certificate of Incorporation and Bylaws | 6 | ||
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2.3 |
Capitalization; Rights to Acquire Stock | 6 | ||
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2.4 |
SEC Filings; Financial Statements | 9 | ||
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2.5 |
Absence of Changes | 11 | ||
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2.6 |
Title to Assets | 12 | ||
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2.7 |
Real Property; Real Property Leases; Equipment | 13 | ||
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2.8 |
Intellectual Property | 14 | ||
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2.9 |
Contracts | 19 | ||
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2.10 |
Customers; Company Products; Services | 22 | ||
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2.11 |
Liabilities | 23 | ||
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2.12 |
Compliance with Legal Requirements; Certain Business Practices | 24 | ||
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2.13 |
Governmental Authorizations | 24 | ||
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2.14 |
Tax Matters. | 25 | ||
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2.15 |
Employee and Labor Matters; Benefit Plans | 28 | ||
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2.16 |
Environmental Matters | 34 | ||
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2.17 |
Insurance | 35 | ||
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2.18 |
Transactions with Affiliates | 35 | ||
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2.19 |
Legal Proceedings; Orders | 35 | ||
i.
TABLE OF CONTENTS
(CONTINUED)
| PAGE | ||||
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2.20 |
Authority; Inapplicability of Anti-takeover Statutes; Binding Nature of Agreement | 36 | ||
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2.21 |
Vote Required | 36 | ||
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2.22 |
Non-Contravention; Consents | 37 | ||
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2.23 |
Fairness Opinion | 37 | ||
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2.24 |
Financial Advisor | 37 | ||
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2.25 |
Disclosure | 38 | ||
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SECTION 3. |
REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB | 38 | ||
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3.1 |
Due Organization; Etc. | 38 | ||
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3.2 |
Authority | 38 | ||
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3.3 |
Binding Nature of Agreement | 38 | ||
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3.4 |
No Vote Required | 38 | ||
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3.5 |
Financing | 38 | ||
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3.6 |
Non-Contravention | 38 | ||
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3.7 |
Disclosure | 39 | ||
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SECTION 4. |
CERTAIN COVENANTS OF THE COMPANY | 39 | ||
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4.1 |
Access and Investigation | 39 | ||
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4.2 |
Operation of the Companys Business | 40 | ||
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4.3 |
No Solicitation | 44 | ||
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SECTION 5. |
ADDITIONAL COVENANTS OF THE PARTIES | 45 | ||
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5.1 |
Proxy Statement | 45 | ||
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5.2 |
Company Stockholders Meeting | 46 | ||
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5.3 |
Stock Options; Company Warrants; Company ESPP | 47 | ||
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5.4 |
Employee Matters | 49 | ||
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5.5 |
Indemnification of Officers and Directors | 50 | ||
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5.6 |
Regulatory Approvals; Additional Agreements | 51 | ||
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5.7 |
Disclosure | 53 | ||
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5.8 |
Resignation of Directors | 53 | ||
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5.9 |
Internal Controls | 53 | ||
ii
TABLE OF CONTENTS
(CONTINUED)
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SECTION 6. |
CONDITIONS PRECEDENT TO OBLIGATIONS OF PARENT AND MERGER SUB | 53 | ||
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6.1 |
Accuracy of Representations | 53 | ||
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6.2 |
Performance of Covenants | 54 | ||
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6.3 |
Antitrust Approvals | 54 | ||
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6.4 |
Stockholder Approval | 54 | ||
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6.5 |
Certificate | 55 | ||
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6.6 |
No Company Material Adverse Effect | 55 | ||
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6.7 |
No Restraints | 55 | ||
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6.8 |
No Governmental Litigation | 55 | ||
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6.9 |
No Other Litigation | 55 | ||
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6.10 |
Sarbanes-Oxley Certifications | 55 | ||
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SECTION 7. |
CONDITIONS PRECEDENT TO OBLIGATION OF THE COMPANY | 56 | ||
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7.1 |
Accuracy of Representations | 56 | ||
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7.2 |
Performance of Covenants | 56 | ||
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7.3 |
Stockholder Approval | 56 | ||
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7.4 |
Certificate | 56 | ||
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7.5 |
Antitrust Approval | 56 | ||
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7.6 |
No Restraints | 56 | ||
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SECTION 8. |
TERMINATION | 56 | ||
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8.1 |
Termination | 56 | ||
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8.2 |
Effect of Termination | 58 | ||
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8.3 |
Expenses; Termination Fees | 59 | ||
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SECTION 9. |
MISCELLANEOUS PROVISIONS | 60 | ||
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9.1 |
Amendment | 60 | ||
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9.2 |
Waiver | 60 | ||
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9.3 |
No Survival of Representations and Warranties | 60 | ||
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9.4 |
Entire Agreement; Counterparts; Exchanges by Facsimile or Electronic Delivery | 60 | ||
iii
TABLE OF CONTENTS
(CONTINUED)
| PAGE | ||||
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9.5 |
Applicable Law; Jurisdiction | 61 | ||
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9.6 |
Disclosure Schedule | 61 | ||
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9.7 |
Attorneys Fees | 61 | ||
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9.8 |
Assignability; No Third Party Rights | 61 | ||
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9.9 |
Notices | 61 | ||
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9.10 |
Cooperation | 62 | ||
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9.11 |
Severability | 62 | ||
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9.12 |
Construction | 63 | ||
iv
EXECUTION COPY
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER is made and entered into as of November 6, 2006, by and among NVIDIA CORPORATION, a Delaware corporation (Parent), PARTRIDGE ACQUISITION, INC., a Delaware corporation and a wholly-owned subsidiary of Parent (Merger Sub), and PORTALPLAYER, INC., a Delaware corporation (the Company). Certain capitalized terms used in this Agreement are defined in Exhibit A.
RECITALS
A. Parent, Merger Sub and the Company intend to effect a merger of Merger Sub with and into the Company in accordance with this Agreement and the DGCL (the Merger). Upon consummation of the Merger, Merger Sub will cease to exist, and the Company will become a wholly-owned subsidiary of Parent.
B. The respective boards of directors of Parent, Merger Sub and the Company have approved this Agreement, the Merger and the Contemplated Transactions.
C. In order to induce Parent to enter into this Agreement and cause the Merger to be consummated, certain stockholders of the Company are executing voting agreements in favor of Parent concurrently with the execution and delivery of this Agreement (the Voting Agreements).
AGREEMENT
The parties to this Agreement, intending to be legally bound, agree as follows:
SECTION 1. DESCRIPTION OF TRANSACTION
1.1 Merger of Merger Sub into the Company. Upon the terms and subject to the conditions set forth in this Agreement, at the Effective Time (as defined in Section 1.3), Merger Sub shall be merged with and into the Company, and the separate existence of Merger Sub shall cease. The Company will continue as the surviving corporation in the Merger (the Surviving Corporation).
1.2 Effect of the Merger. The Merger shall have the effects set forth in this Agreement and in the applicable provisions of the DGCL.
1.3 Closing; Effective Time. The closing of the Merger and the consummation of those transactions contemplated by this Agreement that are to be consummated at the time of the Merger (the Closing) shall take place at the offices of Cooley Godward Kronish LLP, 3175 Hanover Street, Palo Alto, California, on a date to be designated by Parent (the Closing Date), which shall be no later than the fifth business day after the satisfaction or waiver of the last to be satisfied or waived of the conditions set forth in Sections 6 and 7 (other than the conditions set forth in Sections 6.5 and 7.4, which by their nature are to be satisfied at the Closing, but subject to the satisfaction or waiver of such conditions). The Merger shall become effective at the time of the filing of a certificate of merger with the Secretary of State of the State of Delaware in accordance with the DGCL or at such later time as may be specified in such statement of merger with the consent of Parent (the time as of which the Merger becomes effective being referred to as the Effective Time).
1.4 Certificate of Incorporation and Bylaws; Directors and Officers. Unless otherwise determined by Parent prior to the Effective Time:
(a) the Certificate of Incorporation of the Surviving Corporation shall be amended and restated immediately after the Effective Time in a form acceptable to Parent;
(b) the Bylaws of the Surviving Corporation shall be amended and restated as of the Effective Time to conform to the Bylaws of Merger Sub as in effect immediately prior to the Effective Time; and
(c) the directors and officers of the Surviving Corporation immediately after the Effective Time shall be the respective individuals who are directors and officers of Merger Sub immediately prior to the Effective Time.
1.5 Effect on Capital Stock.
(a) At the Effective Time, by virtue of, and simultaneously with, the Merger and without any further action on the part of Parent, Merger Sub, the Company or any stockholder of the Company:
(i) any shares of Company Common Stock held by the Company or any wholly owned Subsidiary of the Company (or held in the Companys treasury) immediately prior to the Effective Time shall be canceled and retired and shall cease to exist, and no consideration shall be delivered in exchange therefor;
(ii) any shares of Company Common Stock held by Parent, Merger Sub or any other wholly-owned Subsidiary of Parent immediately prior to the Effective Time shall be canceled and retired and shall cease to exist, and no consideration shall be delivered in exchange therefor;
(iii) except as provided in clauses (i) and (ii) above, and subject to Section 1.5(b), each share of Company Common Stock outstanding immediately prior to the Effective Time shall be converted into the right to receive $13.50 in cash, without any interest thereon (the Merger Consideration);
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