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Title: |
Agreement and Plan of Merger |
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Entities: |
King Pharmaceuticals Inc.; Merrill Lynch, Pierce, Fenner & Smith Inc.; Mylan Laboratories Inc.; Bank of New York; Goldman, Sachs & Co.; Cravath, Swaine & Moore LLP; Skadden, Arps, Slate, Meagher & Flom LLP; Summit Merger Corporation |
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Date: |
2004 |
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Size: |
Preview shows 13KB of 334KB total |
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Price: |
$82 |
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ID: |
#281640 |
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Start of Preview |
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AGREEMENT AND PLAN OF MERGER
BY AND AMONG
MYLAN LABORATORIES INC.
SUMMIT MERGER CORPORATION
AND
KING PHARMACEUTICALS, INC.
DATED AS OF JULY 23, 2004
{PAGE}
AGREEMENT AND PLAN OF MERGER
TABLE OF CONTENTS
ARTICLE I THE MERGER...........................................................2
SECTION 1.1 The Merger.....................................................2
SECTION 1.2 Closing........................................................2
SECTION 1.3 Effective Time.................................................2
SECTION 1.4 Effects of the Merger..........................................2
SECTION 1.5 Organizational Documents of the Surviving Corporation..........2
SECTION 1.6 Directors and Officers of the Surviving Corporation............3
ARTICLE II EFFECTS OF THE MERGER; EXCHANGE OF CERTIFICATES.....................3
SECTION 2.1 Effect on Capital Stock........................................3
SECTION 2.2 Exchange of Shares and Certificates............................4
ARTICLE III REPRESENTATIONS AND WARRANTIES.....................................7
SECTION 3.1 Representations and Warranties of the Company..................7
SECTION 3.2 Representations and Warranties of Parent and Merger Sub.......36
ARTICLE IV COVENANTS RELATING TO CONDUCT OF BUSINESS..........................51
SECTION 4.1 Conduct of Business...........................................51
SECTION 4.2 No Solicitation...............................................56
ARTICLE V ADDITIONAL AGREEMENTS...............................................60
SECTION 5.1 Preparation of SEC Documents; Stockholders' Meetings..........60
SECTION 5.2 Accountant's Letters and Consents.............................62
SECTION 5.3 Access to Information; Confidentiality........................63
SECTION 5.4 Antitrust Filings; Reasonable Best Efforts....................65
SECTION 5.5 Indemnification...............................................66
SECTION 5.6 Employee Benefits.............................................69
SECTION 5.7 Fees and Expenses.............................................70
SECTION 5.8 Public Announcements..........................................70
SECTION 5.9 Listing.......................................................71
SECTION 5.10 Tax-Free Reorganization Treatment.............................71
SECTION 5.11 Conveyance Taxes..............................................71
SECTION 5.12 Equity Awards.................................................71
SECTION 5.13 Affiliates....................................................73
SECTION 5.14 Notification of Certain Matters...............................73
SECTION 5.15 Rights Plans; State Takeover Laws.............................74
SECTION 5.16 Reservation of Parent Common Stock............................74
SECTION 5.17 Stockholder Litigation........................................74
SECTION 5.18 Convertible Debentures........................................74
SECTION 5.19 Settlements...................................................75
i
{PAGE}
ARTICLE VI CONDITIONS PRECEDENT...............................................75
SECTION 6.1 Conditions to Each Party's Obligation to Effect the Merger....75
SECTION 6.2 Conditions to Obligations of the Company......................76
SECTION 6.3 Conditions to Obligations of Parent and Merger Sub............77
ARTICLE VII TERMINATION.......................................................78
SECTION 7.1 Termination...................................................78
SECTION 7.2 Effect of Termination.........................................80
SECTION 7.3 Payments......................................................80
SECTION 7.4 Amendment.....................................................81
SECTION 7.5 Extension; Waiver.............................................81
ARTICLE VIII GENERAL PROVISIONS...............................................82
SECTION 8.1 Nonsurvival of Representations and Warranties.................82
SECTION 8.2 Notices.......................................................82
SECTION 8.3 Definitions...................................................83
SECTION 8.4 Terms Defined Elsewhere.......................................89
SECTION 8.5 Interpretation................................................92
SECTION 8.6 Counterparts..................................................93
SECTION 8.7 Entire Agreement; No Third-Party Beneficiaries................93
SECTION 8.8 Governing Law.................................................93
SECTION 8.9 Assignment....................................................93
SECTION 8.10 Consent to Jurisdiction.......................................93
SECTION 8.11 Headings, etc.................................................94
SECTION 8.12 Severability..................................................94
SECTION 8.13 Failure or Indulgence Not Waiver; Remedies Cumulative.........94
SECTION 8.14 Waiver of Jury Trial..........................................94
SECTION 8.15 Specific Performance..........................................94
ii
{PAGE}
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (this "Agreement") is made and
entered into as of July 23, 2004, by and among MYLAN LABORATORIES INC., a
Pennsylvania corporation ("Parent"), SUMMIT MERGER CORPORATION, a Tennessee
corporation and a direct wholly-owned subsidiary of Parent ("Merger Sub"), and
KING PHARMACEUTICALS, INC., a Tennessee corporation (the "Company").
W I T N E S S E T H:
WHEREAS, the respective Boards of Directors of Parent, Merger Sub
and the Company have deemed it advisable and in the best interests of their
respective corporations and stockholders that the parties hereto consummate
the transactions contemplated herein; and
WHEREAS, in furtherance thereof, the Boards of Directors of each of
Parent, Merger Sub and the Company have adopted and approved this Agreement
and the merger of Merger Sub with and into the Company with the Company
continuing as the surviving corporation (the "Merger"), upon the terms and
subject to the conditions set forth in this Agreement and in accordance with
the provisions of the Tennessee Business Corporation Act (the "TBCA"); and
WHEREAS, the Boards of Directors of each of the Company and Merger
Sub have determined to recommend to their respective stockholders the approval
and adoption of this Agreement and the Merger; and
WHEREAS, the Board of Directors of Parent has approved, and has
determined to recommend to its stockholders approval of, the issuance of
shares of Parent Common Stock (as defined in Section 2.1(a)) in connection
with the Merger (the "Stock Issuance"); and
WHEREAS, Parent, as the sole stockholder of Merger Sub, has approved
this Agreement and the Merger; and
WHEREAS, for United States federal income tax purposes, it is
intended that the Merger shall qualify as a reorganization within the meaning
of Section 368(a) of the Internal Revenue Code of 1986, as amended (the
"Code"), and this Agreement is intended to be, and is hereby, adopted as a
plan of reorganization within the meaning of Section 368 of the Code.
NOW, THEREFORE, in consideration of the foregoing and the
representations, warranties, covenants and agreements set forth herein, and
for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree as follows:
1
{PAGE}
ARTICLE I
THE MERGER
SECTION 1.1 THE MERGER. Upon the terms and subject to the conditions
set forth in this Agreement, and in accordance with the TBCA, at the Effective
Time (as defined in Section 1.3), Merger Sub shall be merged with and into the
Company, the separate corporate existence of Merger Sub shall cease and the
Company shall continue as the surviving corporation in the Merger (the
"Surviving Corporation").
SECTION 1.2 CLOSING. The closing of the Merger (the "Closing") shall
take place at 10:00 a.m., New York City time, on a date to be specified by the
parties, which shall be no later than the second business day after
satisfaction or waiver of all of the conditions set forth in Article VI (other
than delivery of items to be delivered at the Closing and other than those
conditions that by their nature are to be satisfied at the Closing, it being
understood that the occurrence of the Closing shall remain subject to the
satisfaction or waiver of such conditions at the Closing) at the offices of
Skadden, Arps, Slate, Meagher & Flom LLP, Four Times Square, New York, New
York 10036, unless another time, date or place is agreed to in writing by the
parties hereto. The date on which the Closing occurs is referred to herein as
the "Closing Date."
SECTION 1.3 EFFECTIVE TIME. Subject to the terms and conditions of
this Agreement, as soon as practicable on the Closing Date, the parties shall
cause the Merger to be consummated by filing articles of merger in such form
as required by, and executed in accordance with, the relevant provisions of
the TBCA (the "Articles of Merger") with the Secretary of State of the State
of Tennessee (the "Secretary of State") and shall make all other filings or
recordings required under the TBCA. The Merger shall become effective at such
time as the Articles of Merger are duly filed with the Secretary of State, or
at such subsequent date or time as Parent and the Company shall agree and
specify in the Articles of Merger. The time at which the Merger becomes
effective is referred to herein as the "Effective Time."
SECTION 1.4 EFFECTS OF THE MERGER. At the Effective Time, the Merger
shall have the effects set forth in this Agreement and in the applicable
provisions of the TBCA.
SECTION 1.5 ORGANIZATIONAL DOCUMENTS OF THE SURVIVING CORPORATION.
At the Effective Time, the Company Charter (as defined in Section 3.1(a)(ii))
shall be amended and restated in its entirety to be identical to the charter
of Merger Sub, as in effect immediately prior to the Effective Time, until
thereafter amended in accordance with Applicable Law (as defined in Section
3.1(g)(ii)) and as provided in such charter; provided, however, that at the
Effective Time, Article I of the charter of the Surviving Corporation shall be
amended and restated in its entirety to read as follows: "The name of the
corporation is King Pharmaceuticals, Inc." At the Effective Time, the Company
Bylaws (as defined in Section 3.1(a)(ii)) shall be amended and restated in
their entirety to be identical to the bylaws of Merger Sub, as in effect
immediately prior to the Effective Time, until thereafter amended in
accordance with Applicable Law and as provided in such bylaws.
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