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Title: |
Agreement and Plan of Merger |
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Entities: |
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Date: |
2007 |
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Preview shows 53KB of 250KB total |
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$67 |
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ID: |
#2795374 |
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AGREEMENT AND PLAN OF MERGER
by and among
XEROX CORPORATION
RG ACQUISITION I CORP.
and
GLOBAL IMAGING SYSTEMS, INC.
Dated as of April 1, 2007
TABLE OF CONTENTS
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ARTICLE ITHE OFFER |
1 | |||
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1.1 |
The Offer. |
1 | ||
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1.2 |
Seller Actions. |
3 | ||
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1.3 |
Directors. |
4 | ||
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1.4 |
Top-Up Option. |
5 | ||
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ARTICLE IITHE MERGER |
5 | |||
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2.1 |
The Merger. |
5 | ||
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2.2 |
Closing; Effective Time. |
5 | ||
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2.3 |
Effects of the Merger. |
5 | ||
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2.4 |
Certificate of Incorporation and Bylaws. |
6 | ||
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2.5 |
Directors and Officers. |
6 | ||
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2.6 |
Stockholders Meeting. |
6 | ||
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2.7 |
Merger Without Meeting of Stockholders |
7 | ||
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ARTICLE IIIEFFECT OF THE MERGER ON THE SELLER CAPITAL STOCK; EXCHANGE OF SHARES |
7 | |||
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3.1 |
Conversion of Capital Stock |
7 | ||
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3.2 |
Seller Stock-Based Awards. |
7 | ||
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3.3 |
Exchange of Certificates. |
8 | ||
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3.4 |
Appraisal Rights. |
9 | ||
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ARTICLE IVREPRESENTATIONS AND WARRANTIES OF THE PARENT AND THE PURCHASER |
10 | |||
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4.1 |
Corporate Organization. |
10 | ||
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4.2 |
Authority; No Violation. |
10 | ||
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4.3 |
Consents and Approvals. |
11 | ||
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4.4 |
Brokers Fees. |
11 | ||
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4.5 |
Legal Proceedings. |
11 | ||
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4.6 |
Available Funds. |
11 | ||
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4.7 |
Certain Compensation Arrangements. |
11 | ||
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4.8 |
Offer Documents; Proxy Statement; the Parent Information. |
12 | ||
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4.9 |
No Other Representations or Warranties. |
12 | ||
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ARTICLE VREPRESENTATIONS AND WARRANTIES OF THE SELLER |
12 | |||
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5.1 |
Corporate Organization. |
12 | ||
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5.2 |
Capitalization. |
13 | ||
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5.3 |
Authority; No Violation. |
15 | ||
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5.4 |
Consents and Approvals. |
16 | ||
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5.5 |
Financial Statements. |
16 | ||
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5.6 |
Brokers Fees. |
16 | ||
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5.7 |
Absence of Certain Changes or Events. |
17 | ||
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5.8 |
Legal Proceedings. |
17 | ||
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5.9 |
Reports. |
17 | ||
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5.10 |
Absence of Undisclosed Liabilities. |
18 | ||
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5.11 |
Compliance with Applicable Laws and Reporting Requirements. |
18 | ||
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5.12 |
Taxes and Tax Returns. |
19 | ||
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5.13 |
Employee Benefit Programs. |
21 | ||
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5.14 |
Labor and Employment Matters. |
23 | ||
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5.15 |
Material Contracts. |
23 | ||
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5.16 |
Properties. |
25 | ||
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5.17 |
Environmental, Health and Safety Liability. (a) |
26 | ||
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5.18 |
State Takeover Laws; Required Stockholder Vote. |
26 | ||
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5.19 |
Intellectual Property. |
27 | ||
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5.20 |
Insurance. |
28 | ||
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5.21 |
Opinion of Sellers Financial Advisors. |
28 | ||
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5.22 |
Schedule 14D-9; Proxy Statement; Seller Information. |
28 | ||
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5.23 |
Transactions with Certain Persons. |
28 | ||
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5.24 |
No Other Representations or Warranties. |
28 | ||
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ARTICLE VICOVENANTS RELATING TO CONDUCT OF BUSINESS |
29 | |||
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6.1 |
Conduct of Business Pending the Effective Time. |
29 | ||
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6.2 |
Certain Tax Matters. |
31 | ||
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6.3 |
Litigation. |
31 | ||
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ARTICLE VIIADDITIONAL AGREEMENTS |
32 | |||
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7.1 |
Third Party Consents and Regulatory Approvals. |
32 | ||
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7.2 |
No Solicitation. |
33 | ||
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7.3 |
Access to Information. |
36 | ||
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7.4 |
Employment and Benefit Matters. |
36 | ||
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7.5 |
Directors and Officers Indemnification and Insurance. |
37 | ||
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7.6 |
Additional Agreements. |
38 | ||
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7.7 |
Advice of Changes. |
38 | ||
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7.8 |
Publicity. |
38 | ||
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7.9 |
Rule 16b-3 Actions. |
38 | ||
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7.10 |
Rule 14d-10 Matters. |
39 | ||
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7.11 |
Retention Agreements. |
39 | ||
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7.12 |
2006 Financial Statements. |
39 | ||
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ARTICLE VIIICONDITIONS PRECEDENT TO THE CONSUMMATION OF THE MERGER |
40 | |||
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8.1 |
Conditions. |
40 | ||
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ARTICLE IXTERMINATION, AMENDMENT AND WAIVER |
40 | |||
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9.1 |
Termination. |
40 | ||
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9.2 |
Effect of Termination. |
41 | ||
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9.3 |
Amendment. |
42 | ||
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9.4 |
Extension; Waiver. |
42 | ||
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ARTICLE XMISCELLANEOUS |
42 | |||
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10.1 |
Nonsurvival of Representations, Warranties and Agreements. |
42 | ||
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10.2 |
Expenses. |
43 | ||
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10.3 |
Notices. |
43 | ||
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10.4 |
Interpretation. |
44 | ||
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10.5 |
Counterparts. |
44 | ||
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10.6 |
Entire Agreement. |
44 | ||
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10.7 |
Governing Law; Jurisdiction and Venue; Waiver of Jury Trial. |
44 | ||
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10.8 |
Consent and Approvals. |
44 | ||
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10.9 |
Assignment; Reliance of Other Parties. |
44 | ||
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10.10 |
Specific Performance. |
45 | ||
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10.11 |
Definitions. |
45 | ||
ii
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER (the Agreement), dated as of April 1, 2007, by and among Xerox Corporation, a New York corporation (the Parent), RG Acquisition I Corp., a Delaware corporation and a wholly owned subsidiary of the Parent (the Purchaser), and Global Imaging Systems, Inc., a Delaware corporation (the Seller).
Recitals
A. The boards of directors of each of the Purchaser, the Seller and the Parent have approved the acquisition of the Seller by the Parent on the terms and conditions set forth in this Agreement.
B. Pursuant to this Agreement, and subject to the terms and conditions set forth herein, the Purchaser has agreed to commence a tender offer (the Offer) to purchase all the Sellers common stock, par value $0.01 per share (Seller Common Stock) at a price per share of $29.00 net to the selling stockholders in cash, without interest (such amount or any greater amount per share paid pursuant to the Offer being hereafter referred to as the Offer Price).
C. The board of directors of the Seller has (A) by unanimous vote of the directors (i) determined that this Agreement, the Offer and the Merger (as defined below) are advisable, and in the best interest of the Seller and its stockholders, (ii) approved the Offer and the merger of the Purchaser with and into the Seller, with the Seller as the surviving corporation (the Merger and, with the Offer and the other transactions contemplated hereby, the Transaction) in accordance with the General Corporation Law of the State of Delaware (the DGCL) and (iii) approved this Agreement and (B) is recommending that the Sellers stockholders accept the Offer, tender their shares of Seller Common Stock into the Offer, approve the Merger and adopt this Agreement.
D. The parties desire to make certain representations, warranties and agreements in connection with the Transaction and to prescribe certain conditions to the Transaction.
Agreement
In consideration of the foregoing and the mutual covenants, representations, warranties and agreements contained herein, and intending to be legally bound hereby, the parties agree as follows:
ARTICLE I THE OFFER
1.1 The Offer.
(a) Provided that this Agreement shall not have been terminated in accordance with Article IX hereof and none of the events set forth in Annex I hereto (the Tender Offer Conditions) shall have occurred and be continuing, on April 4, 2007 (or such other day as the parties shall agree in writing), the Parent shall cause the Purchaser (and the Seller shall cooperate with the Parent and the Purchaser) to commence (within the meaning of Rule 14d-2 of the Exchange Act) an offer to purchase all outstanding shares of Seller Common Stock at the Offer Price and shall use its reasonable best efforts to consummate the Offer, subject to the terms and conditions hereof and thereof. Subject to the terms and conditions of this Agreement and to the satisfaction or waiver of the Tender Offer Conditions, the Purchaser shall, and the Parent shall cause it to, promptly after the expiration of the Offer, accept for payment, and pay for (after giving effect to any required withholding Tax), all shares of Seller Common Stock validly tendered pursuant to the Offer and not withdrawn (the time and date of acceptance for payment, the Acceptance Date).
(b) The Purchaser expressly reserves the right, in its sole discretion, to waive, in whole or in part, any Tender Offer Condition or modify the terms of the Offer; provided, however, that without the prior written consent of the Seller, the Purchaser shall not decrease the Offer Price or change the form of consideration payable in the Offer, waive or amend the Minimum Condition (as defined in Annex I hereto), decrease the
1
number of shares of Seller Common Stock sought to be purchased in the Offer, impose additional conditions to the Offer or amend any other term of the Offer in any manner adverse to the holders of shares of Seller Common Stock. The Offer shall remain open until 12:00 midnight, New York time, on the date that is twenty-five (25) Business Days after the commencement (determined pursuant to Rule 14d-1(g)(3) under the Exchange Act) of the Offer (the Expiration Date), unless the Purchaser shall have extended the period of time for which the Offer is open pursuant to, and in accordance with, the succeeding sentence or as may be required by applicable Laws or interpretations or positions of the Securities and Exchange Commission or its staff (the SEC), in which event the term Expiration Date shall mean the latest time and date as the Offer, as so extended, may expire; provided, however, that the Purchaser may, in its sole discretion, provide a subsequent offering period after the Expiration Date, in accordance with Rule 14d-11 under the Exchange Act. If on any then scheduled Expiration Date, any of the Tender Offer Conditions is not satisfied or waived by the Purchaser, the Purchaser may extend the Offer from time to time; provided, however, that, on such Expiration Date, (i) if the waiting period under the HSR Act or under any applicable foreign statutes or regulations applicable to the Offer or the Merger shall have not expired or been terminated, the Purchaser shall extend the Offer from time to time until the expiration or termination under the HSR Act or any other material applicable foreign statutes or regulations or (ii) if any of the Tender Offer Conditions set forth in paragraphs (a) or (b) of Annex I hereto shall have occurred and be continuing, the Purchaser shall extend the Offer from time to time in consecutive increments of up to five (5) Business Days each until the time such condition or conditions shall no longer exist or any of the matters described in such paragraphs (a) or (b) shall have become final and non-appealable; provided, further, however that the Purchaser shall not be required to extend the Offer beyond the Outside Date (defined in Section 9.1(b) below). Nothing contained in this paragraph shall affect any termination rights in Article IX. Subject to the terms of the Offer and this Agreement and the satisfaction of all the Tender Offer Conditions as of the Expiration Date, the Purchaser will accept for payment and pay for all shares of Seller Common Stock validly tendered and not validly withdrawn pursuant to the Offer promptly after the Expiration Date of the Offer.
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