AGREEMENT AND PLAN OF MERGER
DATED AS OF OCTOBER 24, 2001
AMONG
ABBOTT LABORATORIES
RAINBOW ACQUISITION CORP.
AND
VYSIS, INC.
TABLE OF CONTENTS
PAGE
---- ARTICLE I Definitions.........................................................................2
SECTION 1.01 Definitions..................................................................2
ARTICLE II The Offer and the Merger...........................................................10
SECTION 2.01 The Offer...................................................................10
SECTION 2.02 Company Actions.............................................................12
SECTION 2.03 Board of Directors; Section 14(f)...........................................13
SECTION 2.04 The Merger..................................................................14
SECTION 2.05 Closing.....................................................................14
SECTION 2.06 Effective Time..............................................................14
SECTION 2.07 Certificate of Incorporation and By-laws....................................15
SECTION 2.08 Directors...................................................................15
SECTION 2.09 Officers....................................................................15
ARTICLE III Effect on the Capital Stock of the Constituent Corporations; Exchange of
Certificates ......................................................................15
SECTION 3.01 Effect on Capital Stock.....................................................15
SECTION 3.02 Exchange of Certificates....................................................16
ARTICLE IV Representations and Warranties of the Company .....................................18
SECTION 4.01 Organization, Standing and Power............................................18
SECTION 4.02 Company Subsidiaries........................................................18
SECTION 4.03 Capital Structure...........................................................19
SECTION 4.04 Authorization; Validity of Agreement; Necessary Action......................20
SECTION 4.05 No Conflicts; Consents......................................................20
SECTION 4.06 SEC Documents; Financial Statements; Undisclosed Liabilities................21
SECTION 4.07 Information Supplied........................................................22
SECTION 4.08 Absence of Certain Changes or Events........................................22
SECTION 4.09 Taxes.......................................................................22
SECTION 4.10 Benefit Plans...............................................................24
SECTION 4.11 Litigation..................................................................25
SECTION 4.12 Compliance with Applicable Laws.............................................25
SECTION 4.13 Contracts; Debt Instruments.................................................25
SECTION 4.14 Intellectual Property.......................................................26
SECTION 4.15 Takeover Laws...............................................................27
SECTION 4.16 Brokers.....................................................................27
SECTION 4.17 Regulatory Compliance.......................................................27
SECTION 4.18 Opinion of Financial Advisor................................................28
SECTION 4.19 Employee Matters............................................................28
SECTION 4.20 Insurance...................................................................29
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SECTION 4.21 Environmental, Health and Safety Laws.......................................29
SECTION 4.22 Customers and Suppliers.....................................................30
SECTION 4.23 Transactions with Affiliates................................................30
SECTION 4.24 Condition of Assets.........................................................31
SECTION 4.25 Real and Personal Property..................................................31
SECTION 4.26 Certain Business Practices..................................................31
ARTICLE V Representations and Warranties of Parent and Sub ..................................32
SECTION 5.01 Organization, Standing and Power............................................32
SECTION 5.02 Sub.........................................................................32
SECTION 5.03 Financing...................................................................32
SECTION 5.04 Ownership of Company Common Stock...........................................32
SECTION 5.05 Authorization; Validity of Agreement; Necessary Action......................32
SECTION 5.06 No Conflicts; Consents......................................................32
SECTION 5.07 Information Supplied........................................................33
SECTION 5.08 Brokers.....................................................................33
SECTION 5.09 Litigation..................................................................33
ARTICLE VI Covenants Relating to Conduct of Business .........................................34
SECTION 6.01 Conduct of Business.........................................................34
SECTION 6.02 Certain Tax Matters.........................................................36
SECTION 6.02 No Solicitation ............................................................37
ARTICLE VII Additional Agreements .............................................................39
SECTION 7.01 Preparation of Proxy Statement; Stockholders Meeting........................39
SECTION 7.02 Access to Information; Confidentiality......................................39
SECTION 7.03 Reasonable Best Efforts; Notification.......................................40
SECTION 7.04 Stock Options...............................................................41
SECTION 7.05 Indemnification; D&O Insurance..............................................41
SECTION 7.06 Public Announcements........................................................42
SECTION 7.07 Transfer Taxes..............................................................43
SECTION 7.08 Employee Benefit Matters....................................................43
SECTION 7.09 State Takeover Laws.........................................................44
SECTION 7.10 Termination Notifications...................................................44
ARTICLE VIII Conditions Precedent ..............................................................44
SECTION 8.01 Conditions to Each Party's Obligation to Effect the Merger..................44
ARTICLE IX Termination, Amendment and Waiver .................................................45
SECTION 9.01 Termination.................................................................45
SECTION 9.02 Effect of Termination.......................................................46
SECTION 9.03 Amendment...................................................................46
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TABLE OF CONTENTS
(continued)
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SECTION 9.04 Extension; Waiver...........................................................46
SECTION 9.05 Procedure for Termination, Amendment, Extension or Waiver...................46
ARTICLE X General Provisions ................................................................47
SECTION 10.01 Nonsurvival of Representations and Warranties...............................47
SECTION 10.02 Notices.....................................................................47
SECTION 10.03 Interpretation..............................................................48
SECTION 10.04 Severability................................................................48
SECTION 10.05 Counterparts................................................................48
SECTION 10.06 Entire Agreement; No Third-Party Beneficiaries..............................48
SECTION 10.07 Governing Law...............................................................49
SECTION 10.08 Assignment..................................................................49
SECTION 10.09 Enforcement.................................................................49
EXHIBIT A Conditions of the Offer
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AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER dated as of October 24, 2001 (the "AGREEMENT"), by and among ABBOTT LABORATORIES, an Illinois corporation ("PARENT"), RAINBOW ACQUISITION CORP., a Delaware corporation and a wholly owned subsidiary of Parent ("SUB"), and VYSIS, INC., a Delaware corporation (the "COMPANY").
WHEREAS, the respective Boards of Directors of Parent, Sub and the Company have approved, and deem it to be advisable and in the best interests of their respective stockholders to consummate, the acquisition of the Company by Parent on the terms and subject to the conditions set forth in this Agreement;
WHEREAS, in furtherance of such acquisition, Parent proposes to cause Sub to make a tender offer (as it may be amended from time to time as permitted under this Agreement, the "OFFER") to purchase all of the issued and outstanding shares of Company Common Stock (as defined herein) for U.S. $30.50 per share of Company Common Stock (the "Offer Price"), net to the seller in cash upon the terms and subject to the conditions set forth in this Agreement;
WHEREAS, the respective Boards of Directors of Sub and the Company have each approved the merger (the "MERGER") of Sub into the Company on the terms and subject to the conditions set forth in this Agreement, whereby each issued share of Company Common Stock, other than shares directly or indirectly owned by Parent or the Company and Dissenters' Shares (as hereinafter defined), will be converted into the right to receive an amount in cash equal to the Offer Price;
WHEREAS, the Company Board (as defined herein) has determined that the consideration to be paid for each share of Company Common Stock in the Offer and the Merger is fair to the holders of such shares of Company Common Stock and has resolved to recommend that the holders of such shares of Company Common Stock accept the Offer and approve and adopt this Agreement and each of the Transactions (as defined herein) upon the terms and subject to the conditions set forth herein;
WHEREAS, Parent, Sub and the Company desire to make certain representations, warranties, covenants and agreements in connection with the Offer and the Merger and also to prescribe various conditions to the Offer and the Merger; and
WHEREAS, as a condition and inducement to Parent's and Sub's entering into this Agreement and incurring the obligations set forth herein, the Major Stockholder (as defined herein) concurrently herewith, is entering into a Stockholder Agreement (as defined herein), dated as of the date hereof, with Parent and Sub, pursuant to which such Major Stockholder is agreeing, among other things, to tender the shares of Company Common Stock held by it in the Offer and to grant Parent a proxy with respect to the voting of such shares of Company Common Stock, upon the terms and subject to the conditions set forth in the Stockholder Agreement, and in order to induce Parent and Sub to enter into this Agreement, the Company Board has approved the execution and delivery of the Stockholder Agreement and the transactions contemplated therein.
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01 DEFINITIONS. As used in this Agreement, the following terms shall have the following meanings:
"ACTIVITIES TO DATE" has the meaning set forth in SECTION 4.17(a).
"AFFILIATE" means, for any Person, another Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such first Person, where "control" means the possession, directly or indirectly, of the power to direct or cause the direction of the management policies of a Person, whether through the ownership of voting securities, by contract, as trustee or executor, or otherwise.
"AGREEMENT" has the meaning set forth in the heading hereof.
"ALTERNATIVE ACQUISITION" means any direct or indirect acquisition of all or a substantial part of the business and properties of the Company or any of the Company Subsidiaries or any capital stock of the Company or any of the Company Subsidiaries, whether by merger, tender offer, exchange offer, sale of assets or similar transactions involving the Company or any Company Subsidiary, division or operating or principal business unit of the Company.
"ALTERNATIVE ACQUISITION PROPOSAL" has the meaning set forth in SECTION 6.03(a).
"APPLICABLE LAW" means any statute, law (including common law), ordinance, rule or regulation applicable to the Company, any Company Subsidiary, Parent or any Parent Subsidiary or their respective properties or assets.
"APPOINTMENT TIME" has the meaning set forth in SECTION 2.03(a).
"APPROVALS" has the meaning set forth in SECTION 4.17(a).
"BP" means BP America, Inc., a Delaware corporation.
"BUSINESS DAY" means any day on which the principal offices of the SEC in Washington, D.C. are open to accept filings, or, in the case of determining a date when any payment is due, any day on which banks are not required or authorized to close in The City of New York.
"CERTIFICATE" or "CERTIFICATES" mean the certificate or certificates that immediately prior to the Effective Time represented outstanding shares of Company Common Stock.
"CERTIFICATE OF MERGER" means a certificate of merger, or other appropriate documents, to be filed with the Secretary of State of the State of Delaware to effect the Merger.
"CLOSING" means the closing of the Merger.
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"CLOSING DATE" means the date on which the Closing occurs.
"CODE" means the Internal Revenue Code of 1986, as amended.
"COMPANY" has the meaning set forth in the heading hereof.
"COMPANY AGREEMENT" means any Contract or other instrument or obligation to which the Company or any Company Subsidiary is a party or by which any of them or any of their respective properties or assets may be bound.
"COMPANY BOARD" means the Board of Directors of the Company.
"COMPANY BOARD RECOMMENDATION" has the meaning set forth in Section 7.01(b).
"COMPANY BY-LAWS" means the by-laws of the Company, as amended to the date of this Agreement.
"COMPANY CAPITAL STOCK" has the meaning set forth in SECTION 4.03.
"COMPANY CHARTER" means the certificate of incorporation of the Company, as amended to the date of this Agreement.
"COMPANY COMMON STOCK" means the common stock, $.001 par value per share, of the Company.
"COMPANY DISCLOSURE LETTER" means the letter, dated as of the date of this Agreement, delivered by the Company to Parent and Sub pursuant to ARTICLE IV.
"COMPANY EMPLOYEES" means the employees of the Company and the Company Subsidiaries.
"COMPANY INTELLECTUAL PROPERTY RIGHTS" means Intellectual Property Rights that are owned by, or exclusively licensed to, the Company and the Company Subsidiaries, including without limitation, Copyrights, Domain Names, Licenses In to the extent that such licenses are exclusive, Patents Owned, Patents Licensed to the extent that such patents are exclusively licensed, and Trademarks.
"COMPANY MATERIAL ADVERSE EFFECT" means a material adverse effect on the business, properties (including intangible properties), assets, liabilities, financial condition or operations or results of operations of the Company and the Company Subsidiaries taken as a whole, or a material adverse effect on the ability of the Company to perform its obligations under this Agreement or on the ability of the Company to consummate the Offer, the Merger and the other Transactions without material deviation from the time frame such actions would otherwise be consummated in the absence of such effect; PROVIDED, that, for purposes of this Agreement, a Company Material Adverse Effect shall not include, alone or in combination: (i) changes to the United States economy in general or to the healthcare industry in general that are not unique to the Company or the Company Subsidiaries or (ii) any change resulting from the announcement or disclosure of the Transactions.
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"COMPANY OPTION PLANS" means the 1996 Stock Incentive Plan, the 1998 Long Term Incentive Plan, the 1998 Outside Director Stock Option, the 1999 Outside Directors Stock Option Plan and the 2001 Long Term Incentive Plan.
"COMPANY PLANS" has the meaning set forth in SECTION 4.10(a).
"COMPANY PREFERRED STOCK" has the meaning set forth in SECTION 4.03.
"COMPANY REPRESENTATIVES" has the meaning set forth in Section 6.03(a).
"COMPANY SAR" means any stock appreciation right linked to the price of Company Common Stock and granted under any Company Option Plan.
"COMPANY SEC DOCUMENTS" means all reports, schedules, forms, statements and other documents required to be filed by the Company with the SEC since December 31, 1997.
"COMPANY STOCK OPTION" means any option to purchase Company Common Stock granted under any Company Option Plan.
"COMPANY STOCKHOLDER APPROVAL" has the meaning set forth in SECTION 4.04(c).
"COMPANY STOCKHOLDERS MEETING" means a meeting of the Company's stockholders for the purpose of seeking Company Stockholder Approval.
"COMPANY SUBSIDIARIES" means all the Subsidiaries of the Company.
"CONFIDENTIALITY AGREEMENT" means the confidentiality agreement, dated April 17, 2001, as amended on August 21, 2001, between the Company and Parent.
"CONSENT" means any consent, approval, license, Permit, Order or authorization.
"CONTRACT" means any contract, lease, license, indenture, note, bond, mortgage, agreement, concession, franchise, instrument, undertaking, commitment, understanding or other arrangement (whether written or oral).
"COPYRIGHTS" means the copyright registrations set forth in Section 1.01(a) of the Company Disclosure Letter.
"DETERMINATION LETTER" has the meaning set forth in Section 4.10(c).
"DGCL" means the Delaware General Corporation Law, as amended from time to time.
"D&O INSURANCE" means directors' and officers' insurance.
"DISSENTERS' SHARES" means shares of Company Common Stock that are outstanding immediately prior to the Effective Time and that are held by any Person who is entitled to demand and properly demands payment of the fair value of such shares pursuant to, and who complies in all respects with, Section 262 of the DGCL.
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"DOMAIN NAMES" means the Internet domain names set forth in Section 1.01(b) of the Company Disclosure Letter.
"EFFECTIVE TIME" has the meaning set forth in SECTION 2.06.
"ENVIRONMENTAL CLAIM" shall mean any claim, action, investigation or notice by any person or entity alleging potential liability for investigatory, cleanup or governmental response costs, or natural resources or property damages, or personal injuries, attorney's fees or penalties relating to (i) the presence, or release into the environment, of any Hazardous Substances at any location owned or operated by the Company or any Company Subsidiary, prior to the Effective Time or in the past, or (ii) any violation, or alleged violation, of any Environmental, Health and Safety Law.
"ENVIRONMENTAL, HEALTH AND SAFETY LAWS" means the Comprehensive Environmental Response, Compensation and Liability Act of 1980, the Resource Conservation and Recovery Act of 1976 and the Occupational Safety and Health Act of 1970, each as amended, together with all other Applicable Laws (including rules, regulations, codes, common law, plans, injunctions, judgments, Orders, decrees, rulings and charges thereunder) of any Governmental Entity concerning pollution or protection of the environment, public health and safety, or employee health and safety, including laws relating to emissions, discharges, releases, or threatened releases of Hazardous Substances into ambient air, surface water, ground water, or lands or otherwise relating to the manufacture, generation, processing, distribution, use, treatment, storage, disposal, clean-up, transport, or handling of Hazardous Substances, in each case as in effect prior to the Effective Time.
"ERISA" means the Employee Retirement Income Security Act of 1974, as amended.
"ERISA AFFILIATE" means, with respect to any Person, any corporation, trade or business which, together with such Person, is a member of a controlled group of corporations or a group of trades or businesses under common control within the meaning of Section 414 of the Code.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"EXCHANGE AGENT" means the bank or trust company selected by Parent prior to the Effective Time to act as exchange agent for the payment of the Merger Consideration.
"EXCHANGE FUND" has the meaning set forth in SECTION 3.02(a).
"FDA" means the United States Food and Drug Administration or any successor agency.
"FDCA" means the Federal Food, Drug and Cosmetic Act, as amended.
"FILED COMPANY SEC DOCUMENTS" means all Company SEC Documents that were filed and publicly available prior to the date of this Agreement.
"FINANCIAL STATEMENTS" means the consolidated financial statements of the Company and the Company Subsidiaries included in each of the Company's Annual Report on Form 10-K for
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the fiscal year ended December 31, 2000, the Company's Quarterly Report on Form 10-Q for the quarters ended March 31, 2001 and June 30, 2001, including in each case the footnotes thereto.
"FULLY DILUTED SHARES" has the meaning set forth in EXHIBIT A hereto.
"GAAP" as to any Person means generally accepted United States accounting principles.
"GOVERNMENTAL ENTITY" means any:
(i) federal, state, local, municipal or foreign government;
(ii) governmental or quasi-governmental authority of any
nature (including any governmental agency, branch, board, department,
official, instrumentality or entity and any court or other tribunal);
or
(iii) body exercising, or entitled to exercise, any
administrative, executive, judicial, legislative, police, regulatory,
or taxing authority or power of any nature.
"HAZARDOUS SUBSTANCE" means: (i) any petrochemical or petroleum products, radioactive materials, asbestos in any form that is or could become friable, urea formaldehyde foam insulation, transformers or other equipment that contain dielectric fluid containing polychlorinated biphenyls, and radon gas; (ii) any chemicals, materials or substances defined as or included in the definition of "hazardous substances," "hazardous wastes," "hazardous materials," "restricted hazardous materials," "extremely hazardous substances," "toxic substances," "contaminants" or "pollutants" or words of similar meaning and regulatory effect; or (iii) any other chemical, material or substance, exposure to which is prohibited, limited, or regulated by any applicable Environmental, Health and Safety Law.
"HSR ACT" means the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended.
"INDEBTEDNESS" means all liabilities or obligations, whether primary or secondary or absolute or contingent: (i) for borrowed money; (ii) evidenced by notes, bonds, debentures, guarantees or similar obligations; or (iii) secured by Liens.
"INDEMNIFIED PERSON" has the meaning set forth in SECTION 7.05(a).
"INDEPENDENT DIRECTORS" has the meaning set forth in SECTION 2.03(a).
"INTELLECTUAL PROPERTY RIGHTS" means any or all of the following and all worldwide common law and statutory rights in, arising out of, or associated with: (i) patents and applications therefor and all reissues, divisions, renewals, extensions, provisionals, continuations and continuations-in-part thereof; (ii) trade secrets (including proprietary know-how, technology, technical data and customer lists, and all documentation relating to any of the foregoing); (iii) copyrights, copyright registrations and applications therefor; (iv) Internet domain names; (v) industrial designs and any registrations and applications therefor; (vi) trade names, logos, common law trademarks and service marks, trademark and service mark
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registrations and applications therefor; and (vii) all moral rights of authors and inventors, however denominated.
"INTERCOMPANY AGREEMENTS" has the meaning set forth in Section 4.23(a).
"IRS" means the Internal Revenue Service.
"KNOWLEDGE" means the actual knowledge of the executive officers of the Company or Parent, after reasonable inquiry, as applicable.
"LICENSES IN" means the license agreements set forth in Section 1.01(c) of the Company Disclosure Letter.
"LICENSES OUT" means the license agreements set forth in Section 1.01(d) of the Company Disclosure Letter.
"LIENS" means pledges, liens, charges, mortgages, encumbrances and security interests of any kind or nature w ...
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