EXHIBIT 2.3
Agreement and Plan of Merger, dated August 28, 1997
EXHIBIT 2.3
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER is dated as of August 28, 1997, by and
between PROJECT Z CORPORATION, a Delaware corporation ("Merger Sub"), and
AVID CORPORATION, a Pennsylvania corporation (the "Company").
R E C I T A L S
A. Merger Sub's authorized stock consists of 100 shares of common
stock, of One Cent ($.01) par value each, all of which shares are issued and
outstanding.
B. Triangle Pharmaceuticals Inc., a Delaware corporation ("Parent"), is
the owner of all of the issued and outstanding capital stock of Merger Sub.
C. The Parent, Merger Sub, and the Company have entered into an
Agreement and Plan of Reorganization, dated as of June 30, 1997 (the
"Reorganization Agreement"), which contemplates the merger of Merger Sub with
and into the Company (the "Merger") in accordance with this Agreement and
Plan of Merger.
D. The respective Boards of Directors of Merger Sub and the Company
deem it advisable and in the best interest of each such corporation and their
respective shareholders that Merger Sub be merged with and into the Company
as provided herein and in the Reorganization Agreement, and they have
accordingly adopted resolutions approving the Reorganization Agreement and
this Agreement and Plan of Merger.
E. The Parent, as the sole shareholder of Merger Sub, has approved this
Agreement and Plan of Merger in accordance with the laws of the State of
Delaware, and the shareholders of the Company have approved this Agreement
and Plan of Merger in accordance with the laws of the Commonwealth of
Pennsylvania and the Articles of Incorporation of the Company at a special
meeting of the shareholders of the Company.
Capitalized terms not otherwise defined herein shall have the meanings
given them in the Reorganization Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements set forth herein, the parties hereto agree as
follows:
ARTICLE I.
THE MERGER
At the Effective Time (as defined in Article V hereof), Merger Sub shall
be merged with and into the Company (sometimes referred to herein as the
"Surviving Corporation"), which shall continue to be a domestic business
corporation governed by the laws of the Commonwealth of Pennsylvania and the
separate corporate existence of Merger Sub shall thereupon cease. The Merger
shall be completed pursuant to the provisions of and shall have the effect
provided in, the applicable provisions of the Delaware General Corporation
Law and the Pennsylvania Business Corporation Law ("Pennsylvania Law").
Without limiting the generality of the foregoing, and subject thereto, at the
Effective Time, all the property, rights, privileges, powers and franchises
of the Company and Merger Sub shall vest in the Surviving Corporation, and
all debts, liabilities and duties of the Company and Merger Sub shall become
the debts, liabilities and duties of the Surviving Corporation.
ARTICLE II.
ARTICLES OF INCORPORATION AND BY-LAWS
At the Effective Time, the Restated Articles of Incorporation of the
Company, attached as Exhibit A hereto, shall be the Articles of Incorporation
of the Company as the Surviving Corporation, until duly amended in accordance
with law.
At the Effective Time, the By-Laws of the Company, as in effect
immediately prior to the Effective Time, shall be the By-Laws of the Company
as the Surviving Corporation, until duly amended in accordance with law.
ARTICLE III.
DIRECTORS AND OFFICERS
The director(s) of Merger Sub immediately prior to the Effective Time
shall be the initial director(s) of the Surviving Corporation, each to hold
office in accordance with the Certificate of Incorporation and Bylaws of the
Surviving Corporation. The officers of Merger Sub immediately prior to the
Effective Time shall be the initial officers of the Surviving Corporation,
each to hold office in accordance with the Bylaws of the Surviving
Corporation.
ARTICLE IV.
CONSIDERATION AND MANNER AND BASIS OF CONVERTING SHARES
A. CONSIDERATION TO BE ISSUED. The consideration to be issued by
Parent in the Merger (the "Merger Consideration") shall be the Cash
Consideration (as defined in Section IV.A.1 below) plus the Stock
Consideration (as defined in Section IV.A.2 below).
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1. CASH CONSIDERATION. The "Cash Consideration" shall be
$1,250,000 less the amount of (i) the Severance Payments (as defined in
Section 4.1(n) of the Reorganization Agreement), (ii) the Bridge Debt (as
defined in Section 4.1(m) of the Reorganization Agreement) and (iii) the
Unpaid Company Liabilities (as defined in Section 5.19 of the Reorganization
Agreement). The portion of the Cash Consideration, if any, remaining after
deduction of all of the Third Party Expenses (as defined in Section 5.5 of
the Reorganization Agreement) of the Company (the "Cash Distribution") and
after Parent withholds the Assumed Option Amount (as defined in Section
IV.C.3 below) and the Assumed Warrant Amount (as defined in Section IV.C.4)
below), shall be paid to the Exchange Agent (as defined in Section IV.E.1
below) within ten (10) business days after the Closing for distribution
pursuant to Section IV.E.2 below.
2. STOCK CONSIDERATION. The "Stock Consideration" shall be the
number of shares of Parent Common Stock equal to the sum of (x) the First
Payment (as defined in Section IV.A.2.a below), plus (y) the Milestone
Payments (as defined in Section IV.A.2.b below).
a. FIRST PAYMENT. The "First Payment" shall be 400,000
shares of Parent Common Stock which Parent shall deliver into an escrow
account within ten (10) business days after the Closing as set forth in
Section IV.E.2 below.
b. MILESTONE PAYMENTS. The "Milestone Payments" are the
number of shares of Parent Common Stock, if any, that Parent is required to
deliver to the Exchange Agent pursuant to this Section IV.A.2.b.
(i) In the event that Parent, in its sole discretion, (x)
Initiates (as defined in Section 1.6(b)(iii) of the Reorganization Agreement)
a Definitive Clinical Trial (as defined in Section 1.6(b)(iii) of the
Reorganization Agreement) with the Lead Compound (as defined in Section
1.6(b)(iii) of the Reorganization Agreement), or (y) notifies the
Securityholder Agent (as defined in Section 7.2(g) of the Reorganization
Agreement) in a writing that specifically references Section 1.6(b)(ii)(A) of
the Reorganization Agreement of its election to continue the development of
the Lead Compound even if Parent has not Initiated a Definitive Clinical
Trial with the Lead Compound, Parent shall within seventy-five (75) days
thereafter make available to the Exchange Agent (as defined in Section IV.E.1
below) for distribution pursuant to Section IV.E below, 1,600,000 shares of
Parent Common Stock.
(ii) If neither of the conditions described in Section
IV.A.2.b.(i) above is satisfied on or prior to eighteen (18) months after the
Closing Date and the Securityholder Agent elects not to exercise the Lead
Compound Option (as defined in Section 5.17 of the Reorganization Agreement)
within the thirty (30) day period set forth in Section 5.17 of the
Reorganization Agreement, Parent shall within seventy-five (75) days
thereafter make available to the Exchange Agent for distribution pursuant to
Section IV.E below, 100,000 shares of Parent Common Stock.
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(iii) If one of the conditions described in Section
IV.A.2.b(i) above is satisfied and thereafter a New Drug Application ("NDA")
is approved by the United States Food and Drug Administration ("FDA") for the
Lead Compound in accordance with Section 1.6(b)(ii)(C) of the Reorganization
Agreement, Parent shall within ten (10) business days thereafter make
available to the Exchange Agent for distribution pursuant to Section IV.E
below, 250,000 shares of Parent Common Stock.
(iv) If one of the conditions described in Section
IV.A.2.b(i) above is satisfied and thereafter an NDA is approved by the FDA
for the Lead Compound in accordance with Section 1.6(b)(ii)(D) of the
Reorganization Agreement, Parent shall within ten (10) business days
thereafter make available to the Exchange Agent for distribution pursuant to
Section IV.E below, 250,000 shares of Parent Common Stock.
(v) If neither of the conditions described in Section
IV.A.2.b(i) above is satisfied and thereafter an NDA is approved by the FDA
for the Lead Hepatitis Compound (as defined in Section 1.6(b)(iii) of the
Reorganization Agreement), Parent shall within ten (10) business days
thereafter make available to the Exchange Agent for distribution pursuant to
Section IV.E below, 250,000 shares of Parent Common Stock.
B. DISTRIBUTION OF MERGER CONSIDERATION. The Merger Consideration,
when distributed by the Exchange Agent pursuant to Section IV.E below, shall
be distributed as follows:
1. DISTRIBUTION OF CASH DISTRIBUTION. The Cash Distribution
(other than the portion of the Cash Distribution withheld by Parent for the
Assumed Option Amount and the Assumed Warrant Amount) shall be distributed
ratably among the holders of the Company Common Stock in proportion to the
number of shares of Company Common Stock held by each holder. The portion of
the Cash Distribution withheld by Parent for the Assumed Option Amount and
the Assumed Warrant Amount shall be delivered by Parent to the Exchange Agent
at the same time that Parent delivers shares of Parent Common Stock, if any,
issued pursuant to Section IV.A.2.b(i) or (ii) above, and such portion of the
Cash Distribution shall be distributed, after the expiration of the Assumed
Options and the Assumed Warrants, among the holders of Assumed Options and
Assumed Warrants who timely and properly exercise their Assumed Options and
Assumed Warrants so that such holders receive the portion of the Cash
Distribution that they would have received had they exercised their Assumed
Options and Assumed Warrants immediately prior to the Effective Time. Any
portion of the Cash Distribution withheld by Parent for the Assumed Option
Amount and the Assumed Warrant Amount not required to be distributed pursuant
to the preceding sentence shall be added to and be distributed as part of the
Designated Assets (as defined in Section IV.B.2 below). Notwithstanding
anything to the contrary in this Agreement and Plan of Merger, in no event
shall any holder receiving a portion of the Cash Distribution distributed
pursuant to this Section IV.B.1 be required to pay any portion of such Cash
Distribution to any other holder
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of Company Common Stock or Company Preferred Stock on account of the
distribution arrangements described in Section IV.B.2 below.
2. DISTRIBUTION OF DESIGNATED ASSETS.
a. DESIGNATED ASSETS. The distribution arrangement described
in this Section IV.B.2 shall apply to the following (collectively, the
"Designated Assets"): (A) the Stock Consideration; (B) the cash, if any,
actually received by Parent on account of the exercise of Assumed Options and
Assumed Warrants; and (C) any portion of the Cash Distribution withheld by
Parent for the Assumed Option Amount and the Assumed Warrant Amount not
required to be distributed pursuant to Section IV.B.1 above.
b. DISTRIBUTION PROCEDURES. The Designated Assets shall be
distributed as follows:
(i) First, if the amount of the Cash Distribution is less
than $1,000,000, a portion of the First Payment shall be distributed ratably
among the holders of the Company Common Stock. The portion of the First
Payment to be distributed to the holders of Company Common Stock shall be a
number of shares with a dollar value equal to $1,000,000 minus the amount of
the Cash Distribution, with the First Payment shares to be valued pursuant to
Section IV.B.5 below.
(ii) Second, the remaining Designated Assets shall be
distributed ratably among the holders of the Company Series A Preferred
Stock, the Company Series B Preferred Stock and the Company Series C
Preferred Stock (collectively, "Company Preferred Stock"), until each such
holder has respectively received the full Series A Preference Amount, Series
B Preference Amount and Series C Preference Amount (each as defined in
Section IV.B.6 below) for all shares of Company Preferred Stock held by such
holder. In the event that the value of the Designated Assets available for
distribution under this Section IV.B.2.b(ii) is less than the amount that is
required to satisfy in full all of the Preference Amounts (as defined in
Section IV.B.6 below), the amount of the Designated Assets available for
distribution under this Section IV.B.2.b(ii) shall be distributed ratably
among the holders of the Company Preferred Stock in proportion to the
Preference Amount each holder would otherwise be entitled to receive. All
Stock Consideration distributed pursuant to this Section IV.B.2.b(ii) shall
be valued pursuant to Section IV.B.5 below.
(iii) Third, any remaining Designated Assets shall be
distributed ratably among the holders of the Company Common Stock and the
Company Series C Preferred Stock in proportion to the number of shares of
Company Common Stock held by each holder (taking into account, for purposes
of calculating the amount deemed received by holders of Company Common Stock
under this Section IV.B.2.b(iii)), the portion of the Cash Distribution, if
any, received at any time by the holders of the Company Common Stock as well
as the amount distributed to holders of the Company Common Stock pursuant
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to Section IV.B.2.b(i). The parties intend that the Designated Assets shall
be distributed under this Section IV.B.2.b(iii) so that each holder of
Company Common Stock and each holder of Company Series C Preferred Stock
receives an amount equal to the holder's pro rata portion (in proportion to
the number of shares of Company Common Stock held or deemed held by each
holder) of the sum of the Designated Assets distributed under this Section
IV.B.2.b(iii) plus the portion of the Cash Distribution received at any time
by the holders of Company Common Stock. For purposes of this Section
IV.B.2.b(iii), each holder of the Company Series C Preferred Stock will be
deemed to hold the number of shares of Company Common Stock that would have
been issued to the holder had the holder converted all of his or her Company
Series C Preferred Stock into Company Common Stock on the Revaluation Date
(as defined in Section IV.B.2.c below).
c. REVALUATION OF DESIGNATED ASSETS. Notwithstanding any
prior distribution of the Designated Assets, as of the date on which all
unexercised Assumed Options and Assumed Warrants expire (the "Revaluation
Date") and prior to release to any Former Company Stockholders (as defined in
Section 5.17 of the Reorganization Agreement) of any portion of the Escrow
Fund (as defined in Section 7.2(a) of the Reorganization Agreement), the
Designated Assets shall be redistributed among the Former Company
Stockholders in accordance with Section IV.B.2.b based on the valuation of
such Designated Assets as of the Revaluation Date. Solely for purposes of
the redistribution of the Designated Assets as of the Revaluation Date
contemplated by this Section IV.B.2.c, the shares of Parent Common Stock
included in such Designated Assets shall be valued at the average of the
closing prices of Parent Common Stock on the Nasdaq National Market for the
five (5) consecutive trading days ending five (5) trading days prior to the
Revaluation Date. No revaluation or redistribution of any of the Designated
Assets shall occur with respect to the Stock Consideration, if any,
distributed by Parent after the Revaluation Date. In no event, however,
shall the aggregate value of the Merger Consideration distributed to the
holders of Company Preferred Stock be less than the aggregate value of the
Merger Consideration distributed to the holders of the Company Common Stock
and the holders of Assumed Options and Assumed Warrants.
3. TAX ALLOCATION OF MERGER CONSIDERATION. Solely in connection
with tax matters, the Merger Consideration will be allocated among the
holders of Company Common Stock and Company Preferred Stock consistent with
the distribution arrangements described in Section IV.B.1 and 2 above (making
the assumption that none of the First Payment is paid to Parent pursuant to
Article VII of the Reorganization Agreement).
4. CERTIFICATES OF SECURITYHOLDER AGENT; RELEASE.
a. CERTIFICATES. Not later than fifteen (15) days prior to
the date that any of the Merger Consideration is to be delivered by Parent to
the Exchange Agent pursuant to Section IV.E.2 for distribution to the Former
Company Stockholders, the Securityholder Agent shall deliver to Parent a
certificate (each, an "Agent Certificate")
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identifying each of the Former Company Stockholders and the portion of such
Merger Consideration, if any, that each such Former Company Stockholder is
entitled to receive pursuant to Section IV.B.1 and 2 above. Parent shall be
entitled to rely without investigation on the information set forth in each
Agent Certificate in delivering the Merger Consideration to the Exchange
Agent for distribution pursuant to Section IV.E.2 Notwithstanding anything to
the contrary in the Reorganization Agreement or this Agreement and Plan of
Merger, Parent shall not be obligated to deliver any portion of the Merger
Consideration to the Exchange Agent unless and until the Securityholder Agent
shall have delivered an Agent Certificate to Parent with respect to such
portion of the Merger Consideration as required by this Section IV.B.4.a.
b. RELEASE. The Company, for itself, each of its
Subsidiaries, all Former Company Stockholders and each of their respective
officers, directors, stockholders, partners, agents, administrators,
representatives, affiliates, predecessors in interest, successors and
assigns, hereby unconditionally and forever releases and discharges Parent,
each of its subsidiaries (including the Surviving Corporation), and each of
their respective officers, directors, stockholders, partners, agents,
administrators, representatives, affiliates, predecessors in interest,
successors and assigns (the "Released Parties") of and from any and all
claims, causes of action, liabilities, obligations, costs and expenses of
every kind and nature whatsoever, at law or in equity, whether contractual,
common law, statutory, federal, state or otherwise, known or unknown,
suspected or unsuspected, direct or derivative, which now exists or may exist
at any time in the future based upon or relating in any manner to the
distribution of the Merger Consideration pursuant to Section IV.B or any
dispute with respect to the interpretation of the manner in which the Merger
Consideration is to be distributed pursuant to Section IV.B. This release
shall not apply to Parent's obligation to deliver the Merger Consideration to
the Exchange Agent pursuant to Section IV.E.2 in accordance with the
information contained in the Agent Certificates.
5. VALUATION OF STOCK CONSIDERATION; SHARE NUMBERS. For purposes
of determining the value of the shares of Parent Common Stock distributed
pursuant to Section IV.B.2 (other than Section IV.B.2.c), Parent Common Stock
distributed by the Exchange Agent shall be valued at the average of the
closing prices of Parent Common Stock on the Nasdaq National Market for the
five (5) consecutive trading days ending five (5) trading days prior to the
date the Parent Common Stock is delivered by Parent to the Exchange Agent.
All references to numbers of shares of Parent Common Stock in this Agreement
and Plan of Merger shall be automatically adjusted to reflect any stock
splits, stock dividends, stock combinations, reverse splits or similar
changes in Parent Common Stock between the date of this Agreement and Plan of
Merger and the dates shares of Parent Common Stock are issued pursuant to the
Merger.
6. DEFINITIONS OF PREFERENCE AMOUNTS.
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a. SERIES A PREFERENCE AMOUNT. The "Series A Preference
Amount" shall mean an amount per share for each share of the Company's Series
A Preferred Stock outstanding immediately prior to the Effective Time equal
to the greater of (A) the sum of $0.75 plus (1) all accrued and unpaid
dividends on such share, whether or not earned or declared, immediately prior
to the Effective Time, and (2) an amount equal to the amount of dividends
that would have accrued on such share from the Effective Time through the
Revaluation Date if the Merger had not occurred and such share had remained
outstanding through the Revaluation Date, and (B) the amount that would have
been payable to the holder of such share had such share and all other shares
of the Company's Series A Preferred Stock and Series B Preferred Stock been
converted into Company Common Stock on the Revaluation Date.
b. SERIES B PREFERENCE AMOUNT. The "Series B Preference
Amount" shall mean an amount per share for each share of the Company's Series
B Preferred Stock outstanding immediately prior to the Effective Time equal
to the greater of (A) the sum of $1.50 plus (1) all accrued and unpaid
dividends on such share, whether or not earned or declared, immediately prior
to the Effective Time, and (2) an amount equal to the amount of dividends
that would have accrued on such share from the Effective Time through the
Revaluation Date if the Merger had not occurred and such share had remained
outstanding through the Revaluation Date, and (B) the amount that would have
been payable to the holder of such share had such share and all other shares
of the Company's Series A Preferred Stock and Series B Preferred Stock been
converted into Company Common Stock on the Revaluation Date.
c. SERIES C PREFERENCE AMOUNT. The "Series C Preference
Amount" shall mean an amount per share for each share of the Company's Series
C Preferred Stock outstanding immediately prior to the Effective Time equal
to the sum of $1.75 plus (A) all accrued and unpaid dividends on such share,
whether or not earned or declared, immediately prior to the Effective Time,
and (B) an amount equal to the amount of dividends that would have accrued on
such share from the Effective Time through the Revaluation Date if the Merger
had not occurred and such share had remained outstanding through the
Revaluation Date.
d. PREFERENCE AMOUNTS. The "Preference Amounts" shall mean
collectively the Series A Preference Amount, the Series B Preference Amount
and the Series C Preference Amount.
7. TREATMENT OF HOLDERS OF ASSUMED OPTIONS AND ASSUMED WARRANTS.
For purposes of all distributions to the holders of the Company Common Stock
pursuant to this Section IV.B, the holder of each Assumed Option and the
holder of each Assumed Warrant that is timely and properly exercised after
the Closing shall be treated as, and shall be entitled to receive the portion
of the Merger Consideration that such holder would have received had such
portion of the Assumed Option or Assumed Warrant been exercised immediately
prior to
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the Effective Time and the holder been, the holder of the number of shares of
the Company Common Stock that would have been issued immediately prior to the
Effective Time upon exercise of the portion of the Assumed Option or Assumed
Warrant that is timely and properly exercised by such holder. For example,
the holder of an Assumed Option that represented the right to purchase 100
shares of the Company Common Stock immediately prior to the Closing shall, in
the event the Assumed Option is timely and properly exercised after the
Closing, be treated as, and shall be entitled to receive the portion of the
Merger Consideration that such holder would have received had such holder
been, the holder of 100 shares of the Company Common Stock immediately prior
to the Closing.
8. CORPORATE TRANSACTIONS INVOLVING PARENT. If after the
Effective Time Parent is acquired by merger (including by reverse triangular
merger), or is a party to a consolidation, or liquidates, all references to
"Parent Common Stock" in this Agreement and Plan of Merger shall thereafter
mean, on a per-share basis, the amount of cash, securities and/or other
property received by Parent stockholders for their (pre-transaction) Parent
Common Stock in such transaction.
C. EFFECT ON COMPANY CAPITAL STOCK.
1. CONVERSION OF COMPANY CAPITAL STOCK. Each share of Company
Capital Stock issued and outstanding immediately prior to the Effective Time
(other than any shares of Company Capital Stock to be canceled pursuant to
Section IV.C.2 and any Dissenting Shares (as defined and to the extent
provided in Section IV.D.1) shall be canceled and extinguished and be
converted automatically into the right to receive that portion of the Merger
Consideration set forth in Section IV.B, upon surrender of the certificate
representing such share of Company Capital Stock in the manner provided in
Section IV.E.
2. CANCELLATION OF COMPANY-OWNED STOCK. Each share of Company
Capital Stock owned by the Company or any direct or indirect wholly-owned
subsidiary of the Company immediately prior to the Effective Time shall be
canceled and extinguished without any conversion thereof.
3. STOCK OPTIONS.
a. OPTIONS ASSUMED. At the Effective Time, each option to
purchase Company Common Stock issued under the Company's 1992 Incentive Stock
Option and Non-Qualified Stock Option Plan, the Company's 1993 Incentive
Stock Option and Non-Qualified Stock Option Plan and/or the Company's 1995
Incentive Stock Option and Non-Qualified Stock Option Plan, each as amended
through the date hereof (the "Option Plans"), or otherwise, whose holder
executes the amendment required by Section 6.3(m) of the Reorganization
Agreement prior to the Effective Time (each an "Assumed Option"), shall be
assumed by Parent in accordance with Sections 1.8.(c)(i)(A) and (B) of the
Reorganization Agreement.
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b. OPTIONS NOT ASSUMED. Prior to the Effective Time, the
Company and its Board of Directors shall take all actions necessary to
accelerate and terminate each option to purchase Company Common Stock whether
issued under one of the Option Plans or otherwise, whose holder does not
execute the amendment required by Section 6.3(m) of the Reorganization
Agreement prior to the Effective Time.
4. WARRANTS.
a. WARRANTS ASSUMED. At the Effective Time, each warrant to
purchase Company Common Stock outstanding immediately prior to the Effective
Time whose holder executes the amendment required by Section 6.3(m) of the
Reorganization Agreement prior to the Effective Time (each, an "Assumed
Warrant") shall be assumed by Parent in accordance with Sections 1.8(d)(i)(A)
and (B) of the Reorganization Agreement.
b. WARRANTS NOT ASSUMED. Prior to the Effective Time, the
Company and its Board of Directors shall use their best efforts to cause each
holder of a warrant to purchase Company Capital Stock outstanding at any time
prior to the Effective Time to execute the amendment required by Section
6.3(m) of the Reorganization Agreement or to exercise the warrant in full
prior to the Effective Time.
5. CAPITAL STOCK OF MERGER SUB. Each share of Common Stock of
Merger Sub issued and outstanding immediately prior to the Effective Time
shall be converted into and exchanged for one validly issued, fully paid and
nonassessable share of Common Stock of the Surviving Corporation. Each stock
certificate of Merger Sub evidencing ownership of any such shares of Common
Stock of the Merger Sub shall, as of the Effective Time, evidence ownership
of such shares of Common Stock of the Surviving Corporation.
6. FRACTIONAL SHARES. No fraction of a share of Parent Common
Stock will be issued, but in lieu thereof, each holder of shares of Company
Capital Stock who would otherwise be entitled to a fraction of a share of
Parent Common Stock (after aggregating all fractional shares of Parent Common
Stock to be received by such holder) shall be entitled to receive, without
any interest, from Parent an amount of cash (rounded to the nearest whole
cent) equal to the product of (i) such fraction, multiplied by (ii) the
average of the closing prices of Parent Common Stock on the Nasdaq National
Market for the five (5) consecutive trading days ending five (5) trading days
prior to the date the Parent Common Stock from which the holder would, but
for this Section IV.C.6, otherwise be entitled to a fraction of a share is
delivered by Parent to the Exchange Agent.
D. DISSENTING SHARES.
1. Notwithstanding any provision of this Agreement and Plan of
Merger to the contrary, any shares of Company Capital Stock held by a holder
who has demanded and perfected appraisal or dissenters' rights for such
shares in accordance with Pennsylvania Law
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and who, as of the Effective Time, has not effectively withdrawn or lost such
appraisal or dissenters' rights ("Dissenting Shares") shall not be converted
into or represent a right to receive the portion of the Merger Consideration
otherwise issuable with respect to such shares pursuant to Section IV.B, but
the holder thereof shall only be entitled to such rights as are granted by
Pennsylvania Law.
2. Notwithstanding the provisions of Section IV.D.1, if any holder
of shares of Company Capital Stock who demands appraisal of such shares under
Pennsylvania Law shall effectively withdraw or lose (through failure to
perfect or otherwise) the right to appraisal, then, as of the later of the
Effective Time and the occurrence of such event, such holder's shares shall
automatically be converted into and represent only the right to receive the
portion of the Merger Consideration issuable with respect to such shares
pursuant to Section IV.B, without interest thereon, upon surrender of the
certificate representing such shares.
3. The Company shall give Parent (i) prompt notice of any written
demands for appraisal of any shares of Company Capital Stock, withdrawals of
such demands, and any other instruments served pursuant to Pennsylvania Law
and received by the Company and (ii) the opportunity to participate in all
negotiations and proceedings with respect to demands for appraisal under
Pennsylvania Law. The Company shall not, except with the prior written
consent of Parent, voluntarily make any payment with respect to any demands
for appraisal of Company Capital Stock or offer to settle or settle any such
demands.
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E. SURRENDER OF CERTIFICATES.
1. EXCHANGE AGENT. Prior to the Effective Time, Parent shall
designate, subject to the consent of the Company, which will not be
unreasonably withheld or delayed, a bank or trust company with assets of not
less than $500 million to act as exchange agent (the "Exchange Agent").
2. PARENT TO PROVIDE CASH AND COMMON STOCK. Parent shall make
available to the Exchange Agent (i) the Cash Distribution (other than the
portion of the Cash Distribution reserved for the Assumed Option Amount and
the Assumed Warrant Amount) within ten (10) business days after the Closing
and (ii) the aggregate number of shares of Parent Common Stock issuable
pursuant to Section IV.A.2 at the times set forth in Section IV.A.2; provided
that, on behalf of the holders of Company Capital Stock, Parent shall deposit
the First Payment into an escrow account within ten (10) business days after
the Closing. The portion of the Escrow Amount contributed on behalf of each
holder of Company Capital Stock shall be in proportion to the aggregate
number of shares of Parent Common Stock which such holder would otherwise be
entitled to receive from the First Payment pursuant to Section IV.B by virtue
of such holder's ownership of outstanding shares of Company Capital Stock,
and assuming for the purposes of such allocation that the holders of all
Assumed Options and the holders of all Assumed Warrants are the holders of
the number of shares of the Company Common Stock that would have been issued
had all of the Assumed Options and all of the Assumed Warrants been exercised
in full immediately prior to the Effective Time (assuming that the exercise
price was paid in cash).
3. EXCHANGE PROCEDURES. Promptly after the Effective Time, the
Surviving Corporation shall cause to be mailed to each holder of record of a
certificate or certificates (the "Certificates") which immediately prior to
the Effective Time represented outstanding shares of Company Capital Stock
and which shares were converted into the right to receive the portion of the
Merger Consideration issuable with respect to such shares pursuant to Section
IV.B, (i) a letter of transmittal (which shall specify that delivery shall be
effected, and risk of loss and title to the Certificates shall pass, only
upon delivery of the Certificates to the Exchange Agent and shall be in such
form and have such other provisions as Parent may reasonably specify) and
(ii) instructions for use in effecting the surrender of the Certificates in
exchange for the Merger Consideration. Upon surrender of a Certificate for
cancellation to the Exchange Agent or to such other agent or agents as may be
appointed by Parent, together with such letter of transmittal, duly completed
and validly executed in accordance with the instructions thereto, the holder
of such Certificate shall be entitled to receive in exchange therefor the
portion of the Merger Consideration issuable pursuant to Section IV.B (less
the First Payment to be deposited in the Escrow Fund on such holder's behalf
pursuant to Article VII of the Reorganization Agreement) as and when the
Exchange Agent receives the Merger Consideration with respect to the shares
of Company Capital Stock represented by such Certificate, and the Certificate
so surrendered shall forthwith be canceled. Subject to and in accordance
with the provisions of Article VII of the Reorganization Agreement, Parent
shall
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cause to be distributed to the Escrow Agent (as defined in Article VII of the
Reorganization Agreement) a certificate or certificates representing the
number of shares of Parent Common Stock equal to the First Payment, which
certificate shall be registered in the name of the Escrow Agent. Such shares
shall be beneficially owned by the holders on whose behalf such shares were
deposited in the Escrow Fund and shall be available to compensate Parent as
provided in Article VII of the Reorganization Agreement. Until so
surrendered, each outstanding Certificate that, prior to the Effective Time,
represented shares of Company Capital Stock will be deemed from and after the
Effective Time, for all corporate purposes, other than the payment of
dividends, to evidence the right to receive in accordance with Section IV.C.1
the portion of the Merger Consideration issuable pursuant to Section IV.B
(less the Escrow Amount to be deposited in the Escrow Fund on such holder's
behalf pursuant to Article VII of the Reorganization Agreement) as and when
the Exchange Agent receives the Merger Consideration with respect to the
shares of Company Capital Stock represented by such Certificate.
4. DISTRIBUTIONS WITH RESPECT TO UNEXCHANGED SHARES. No dividends
or other distributions with respect to Parent Common Stock declared or made
after the date such shares are to be distributed to the holders of the
Company Capital Stock and with a record date after such date will be paid to
the holder of any unsurrendered Certificate with respect to the shares of
Parent Common Stock represented thereby until the holder of record of such
Certificate shall surrender such Certificate. Subject to applicable law,
following surrender of any such Certificate, there shall be paid to the
record holder of the certificates representing whole shares of Parent Common
Stock issued in exchange therefor, without interest, at the time of such
surrender, the amount of dividends or other distributions with a record date
after the date such shares are to be distributed to the holders of the
Company Capital Stock theretofore payable with respect to such whole shares
of Parent Common Stock.
5. TRANSFERS OF OWNERSHIP. If any certificate for shares of
Parent Common Stock is to be issued in a name other than that in which the
Certificate surrendered in exchange therefor is registered, it will be a
condition of the issuance thereof that the Certificate so surrendered will be
properly endorsed and otherwise in proper form for transfer and that the
person requesting such exchange will have paid to Parent or any agent
designated by it any transfer or other taxes required by reason of the
issuance of a certificate for shares of Parent Common Stock in any name other
than that of the registered holder of the Certificate surrendered, or
established to the satisfaction of Parent or any agent designated by it that
such tax has been paid or is not payable.
6. NO LIABILITY. Notwithstanding anything to the contrary in this
Section IV.E, none of the Exchange Agent, the Surviving Corporation or any
party to this Agreement and Plan of Merger shall be liable to a holder of
shares of Parent Common Stock or Company Capital Stock for any amount
properly paid to a public official pursuant to any applicable abandoned
property, escheat or similar law.
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7. NO FURTHER OWNERSHIP RIGHTS IN COMPANY COMMON STOCK. All
shares of Parent Common Stock issued upon the surrender for exchange of
shares of Company Capital Stock in accordance with the terms hereof shall be
deemed to have been issued in full satisfaction of all rights pertaining to
such shares of Company Capital Stock, and there shall be no further
registration of transfers on the records of the Surviving Corporation of
shares of Company Capital Stock which were outstanding immediately prior to
the Effective Time. If, after the Effective Time, Certificates are presented
to the Surviving Corporation for any reason, they shall be canceled and
exchanged as provided in this Section IV.E.
8. LOST, STOLEN OR DESTROYED CERTIFICATES. In the event any
Certificates evidencing shares of Company Capital Stock shall have been lost,
stolen or destroyed, the Exchange Agent shall issue in exchange for such
lost, stolen or destroyed Certificates, upon the making of an affidavit of
that fact by the holder thereof, such shares of Parent Common Stock, if any,
as may be required to be delivered in exchange therefor pursuant to Section
IV.B; provided, however, that Parent may, in its discretion and as a
condition precedent to the issuance thereof, require the owner of such lost,
stolen or destroyed Certificates to deliver a bond in such sum as it may
reasonably direct as indemnity against any claim that may be made against
Parent or the Exchange Agent with respect to the Certificates alleged to have
been lost, stolen or destroyed.
ARTICLE V
EFFECTIVE TIME
As used in this Agreement and Plan of Merger, the term "Effective Time"
shall mean the time of confirmation by the Secretary of State of the
Commonwealth of Pennsylvania of the filing of this Agreement and Plan of
Merger and the officers' certificates required by Pennsylvania Law with the
Secretary of State of the Commonwealth of Pennsylvania.
ARTICLE VI
ABANDONMENT OF MERGER
This Agreement and Plan of Merger shall be terminated and abandoned
without further action by the parties hereto in the event that the
Reorganization Agreement is terminated in accordance with its terms, and in
such event this Agreement and Plan of Merger shall have no further force and
there shall be no liability on the part of the parties hereto to each other,
except to the extent otherwise provided in the Reorganization Agreement.
ARTICLE VII
AMENDMENT
Subject to applicable law, this Agreement and Plan of Merger may be
amended, modified or supplemented only by written agreement of Merger Sub and
the Company, duly authorized by each of their respective Boards of Directors,
at any time prior to the filing of
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the officers' certificates required by Pennsylvania Law with respect to the
Merger with the Secretary of State of the Commonwealth of Pennsylvania;
provided, however, that no such amendment, modification or supplement shall
change the amount or the form of the consideration to be furnished to the
Company shareholders in accordance with Article IV hereof.
[Remainder of This Page Intentionally Left Blank]
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IN WITNESS HEREOF, the parties hereto have executed this Agreement and
Plan of Merger as of the date first written above.
AVID CORPORATION
By: /s/ FORREST H. ANTHONY
-------------------------------------
Forrest H. Anthony, President
and Chief Executive Officer
By: /s/ RICHARD DRIANSKY
-------------------------------------
Richard Driansky, Secretary
PROJECT Z CORPORATION
By: /s/ M. NIXON ELLIS
-------------------------------------
M. Nixon Ellis, President
By: /s/ CHRIS A. RALLIS
-------------------------------------
Chris A. Rallis, Secretary
[SIGNATURE PAGE TO AGREEMENT AND PLAN OF MERGER]
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EXHIBIT A
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
AVID CORPORATION
In compliance with the requirements of the Pennsylvania Business
Corporation Law of 1988, as amended, 15Pa.C.S. Section 1911 et seq. (relating
to amendment of articles of incorporation), the corporation hereby desires to
amend and restate its Articles of Incorporation in their entirety as follows:
1. NAME. The name of the corporation is:
Avid Corporation
2. ADDRESS. The address of this corporation's registered office in this
Commonwealth is:
3401 Market Street, Suite 300
Philadelphia, PA 19104
Philadelphia County
3. INCORPORATION. The corporation was incorporated under the
Pennsylvania Business Corporation Law of 1988.
4. PERPETUAL EXISTENCE. The corporation shall have perpetual existence.
5. STOCK. The aggregate number of shares the corporation shall have the
authority to issue is One Hundred (100) shares of Common Stock, par value
$.01 per share.
6. CUMULATIVE VOTING. The shareholders of the corporation shall not be
entitled to cumulate votes in the election of directors.
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