Certain Terms Defined from Agreement and Plan of Merger
AGREEMENT AND PLAN OF MERGER (this Agreement), dated as of May 31, 2015, by and among Duke Acquisition Holdings, LLC, a Delaware limited liability company (Parent), Duke Acquisition, Inc., a Delaware corporation and a wholly owned Subsidiary of Parent (Merger Sub), MacDermid Americas Acquisitions Inc., a Delaware corporation (Carve-out Buyer), and OM Group, Inc., a Delaware corporation (the Company).
Certain Terms Defined. The following terms shall have the meanings set forth below for purposes of this Agreement: Acceptable Confidentiality Agreement means any confidentiality agreement between the Company and the Person making the Company Takeover Proposal having provisions substantially similar to and on the terms no less favorable to the Company than the provisions of the Confidentiality Agreement (including, for the avoidance of doubt, standstill provisions no less favorable to the Company than those contained in the Confidentiality Agreement). Action means any and all claims (including any cross-claim or counterclaim), causes of action, suits, charges, complaints, litigation, demands, arbitration, proceedings (including any civil, criminal, administrative, investigative or appellate proceeding), hearings, inquiries, investigations, audits and disputes, whenever or however arising. Affiliate means, with respect to any specified Person, any Person that, directly or indirectly, controls, is controlled by, or is under common control with, such specified Person, through one or more intermediaries or otherwise; provided, that (other than in the case of the definition of Parent Non-Recourse Persons, ARTICLE IX and Section 10.11) that in no event shall Parent, Merger Sub or any of its Subsidiaries be considered an Affiliate of any portfolio company or investment fund (excluding investment funds focused on private equity) affiliated with Apollo Global Management, LLC, nor shall any portfolio company or investment fund (excluding investment funds focused on private equity) affiliated with Apollo Global Management, LLC, be considered to be an Affiliate of Parent, Merger Sub or any of its Subsidiaries. For the avoidance of doubt, following the Closing, Affiliates of Carve-out Buyer shall include those entities comprising the SC Business acquired by Carve-out Buyer pursuant to the Carve-out Transaction. Anti-Corruption Laws means all applicable Laws related to anti-corruption, anti-bribery and anti-money laundering. AO Business means the specialty functional additives and chemicals business operated and conducted by the Company and its Subsidiaries and the assets held by the Company and its Subsidiaries used or held for use in connection therewith. Business means the business of the Company and its Subsidiaries, taken as a whole, as of the date hereof. Business Day means any day other than a Saturday, Sunday or a day on which banks in New York, New York are authorized or obligated by Law or Order to close. Canadian Subsidiaries means EaglePicher Energy Products ULC and OMG Belleville Limited. Carve-out Buyer Material Adverse Effect means an event or effect that prevents or materially delays or materially impairs the ability of Carve-out Buyer to consummate the Transactions (other than the Merger) and the Carve-out Transaction. Carve-out Buyer Non-Recourse Persons means Carve-out Buyer, Guarantor P, Carve-out Buyers Financing Sources or any other financing source of Carve-out Buyer or Guarantor P, or, in each case, any of their respective affiliates, and any of their respective former, current or future, direct or indirect equity holders, controlling persons, stockholders, directors, officers, employees, agents, Affiliates, members, managers, general or limited partners, attorneys, advisors or other Representatives, or any of their respective successors or assigns. Carve-out Buyer Specified Approvals means those approvals that relate to Transaction set forth as items 5 (United States), 8 (Germany) and 1 (China) on Section 11.2 of the Company Disclosure Letter. Carve-out Buyer Transaction Documents means, collectively, this Agreement, the Carve-out Buyer Debt Commitment Letter, the Limited Guaranty, the Carve-out Purchase Agreement, the Interim Agreement and any other documents, instruments and agreements contemplated hereby or thereby. Carve-out Purchase Agreement means the Purchase and Separation Agreement, dated the date hereof, between Carve-out Buyer and Parent. COB Expenses means reasonable and documented out of pocket fees and expenses incurred by Carve-Out Buyer and its respective Affiliates in connection with this Agreement and the Transactions (including all fees and expenses of Financing Sources, counsel, accountants, investment banks, advisors and consultants to Carve-Out Buyer), up to $7,500,000. Code means the Internal Revenue Code of 1986, as amended. Company Acquisition Agreement means any letter of intent, agreement in principle, memorandum of understanding, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement constituting or relating to, or which is intended to or is reasonably likely to lead to, any Company Takeover Proposal; provided, that for purposes of this definition, an Acceptable Confidentiality Agreement shall not be deemed to be a Company Acquisition Agreement. Company Expenses means the reasonable and documented out of pocket fees