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
Certain Terms Defined from Agreement and Plan of Merger Among
THIS AGREEMENT AND PLAN OF MERGER (this Agreement), dated as of September 14, 2012, is by and among iRobot Corporation, a Delaware corporation (Parent), Bull Dog Acquisition Corporation, a Delaware corporation (MergerCo), Evolution Robotics, Inc., a Delaware corporation (the Company) and Shareholder Representative Services LLC, a Colorado limited liability company, solely in its capacity as the Securityholders Representative (the Securityholders Representative). Certain terms used in this Agreement are defined in Section 1.1 hereof. An index of defined terms used in this Agreement is set forth in Section 1.2 hereof.
Certain Terms Defined. For the purposes of this Agreement: An Affiliate of any Person means another Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such first Person. For purposes of this definition, control (and its derivatives) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through ownership of capital stock or other securities, by contract or agreement or otherwise. Aggregate Consideration at Closing means the Merger Consideration less (i) the Aggregate Exercise Price less (ii) the Indemnification Escrow Amount less (iii) the Working Capital Escrow Amount less (iii) the Securityholders Representative Reimbursement Amount. Aggregate Exercise Price means the aggregate amount of cash consideration that is payable to the Company in respect of the exercise in full of all (a) Company Options issued and outstanding as of immediately prior to the Effective Time and to the extent vested and exercisable immediately prior to the Effective Time, which have an exercise price less than the Per Share Common Consideration (after giving effect to any acceleration of vesting in connection with the transactions contemplated by this Agreement) and (b) Company Warrants issued and outstanding as of immediately prior to the Closing. Aggregate Preferred Liquidation Payment means the sum of (i) the aggregate Per Share Preferred Liquidation Payment and (ii) if the applicable Company Warrants for the purchase of Preferred Stock have not been converted into warrants to purchase Class A Common Stock and are still issued and outstanding immediately prior to the Effective Time, (A) the aggregate Series C Warrant Consideration, (B) the aggregate Series BB Warrant Consideration and (C) the aggregate amount of cash consideration that is payable to the Company in respect of the exercise in full of all of the Series C Warrants and the exercise in full of all of the Series BB Warrants. Balance Sheet Date means June 30, 2012. Business means the business of the Company as currently conducted and proposed to be conducted. Business Day means any day other than a day on which the Securities and Exchange Commission is closed. Bylaws means the Companys Bylaws as in effect on the date hereof. Certificate of Incorporation means the Companys eighth amended and restated certificate of incorporation filed with the Secretary of State of the State of Delaware on May 11, 2012, as may be amended as of the date hereof. Certificates means the Class A Common Certificates, Class B Common Certificates, Special Stock Certificate and the Preferred Stock Certificates. Change in Control Cash Payments means any commission, obligation, severance, bonus, or other payment of any kind (including any applicable withholding or other Tax liabilities of the Company with respect to such payments) payable by the Company in cash to management or other employees accelerated or triggered (in whole or in part) by or upon the consummation of, or arising out of or in connection with, the transactions contemplated by this Agreement. Notwithstanding the foregoing, (A) the Standard Severance Payments shall not constitute Change in Control Cash Payments hereunder and (B) for the avoidance of doubt, (i) any Vested Option Consideration payable pursuant to Section 2.8 with respect to Vested Company Options and (ii) any payment of any kind pursuant to any Contract entered into by Parent or the Surviving Company with any management or other employee of the Company, shall not constitute a Change in Control Cash Payment. Class A Common Stock means any of the Class A Common Stock, $0.001 par value per share, of the Company. Class A Common Certificate means a stock certificate which immediately prior to the Effective Time represented any shares of Class A Common Stock. Class B Common Stock means any of the Class B Common Stock, $0.001 par value per share, of the Company. Class B Common Certificate means a stock certificate which immediately prior to the Effective Time represented any shares of Class B Common Stock. Code means the Internal Revenue Code of 1986, as amended. Common Warrants means (a) the warrant to purchase 30,000 shares of Class A Common Stock issued to The University of British Columbia dated as of November 24, 2010, at an exercise price of $0.18 per share of Class A Common Stock and (b) the warrant to purchase 264,706 shares of Class A Common Stock issued to Silicon Valley Bank dated as of August 23, 2012, at an exercise price of $0.34 per share of Class A Common Stock. Common Warrant Consideration means, with respect to a Common Warrant if not exercised or cancelled prior to the Effective Time, a cash amount equal to (i) the number of shares of Class A Common Stock into which it is exercisable immediately prior to the Effective Time multiplied by (ii) the excess, if any, of the Per Share Common Consideration over the exe