Preview
Full Doc
 | 2000 |
Agreement
Agreement (75K)
Doc #314790: Click preview link for longer preview.
AGREEMENT
AGREEMENT (this "Agreement"), dated as of October 11, 2000, by
and among Hexcel Corporation, a Delaware corporation (the "Company"), LXH,
L.L.C., a Delaware limited liability company ("LXH") and LXH II, L.L.C., a
Delaware limited liability company (together with LXH, the "Investors").
W I T N E S S E T H :
WHEREAS, Ciba Specialty Chemicals Holding Inc., a corporation
organized under the laws of Switzerland ("Ciba SCH"), Ciba Specialty
Chemicals Inc., a corporation organized under the laws of Switzerland and
wholly-owned subsidiary of Ciba SCH ("Ciba SCI") and Ciba Specialty
Chemicals Corporation, a corporation organized under the laws of Delaware
and wholly-owned subsidiary of Ciba SCH (collectively with Ciba SCH and
Ciba SCI, "Ciba"), own beneficially and of record an aggregate of
18,021,748 shares of common stock, par value $0.01 per share (the "Common
Stock"), of the Company;
WHEREAS, simultaneously herewith, the Investors and Ciba are
entering into a stock purchase agreement attached as Exhibit A hereto (the
"Stock Purchase Agreement"), pursuant to which Ciba has agreed to sell to
the Investors and the Investors have agreed to purchase from Ciba up to a
number of shares of Common Stock owned beneficially and of record by Ciba
(the "Shares") constituting not more than 39.3% of the issued and
outstanding shares of Common Stock;
WHEREAS, certain independent directors of the board of directors
of the Company (the "Board") have approved and consented to the sale of the
Shares by Ciba to the Investors on the terms set forth in the Stock
Purchase Agreement;
WHEREAS, in connection with the transactions contemplated by the
Stock Purchase Agreement, the Company and the Investors will enter into (i)
a governance agreement in the form of Exhibit B hereto (the "Governance
Agreement") and (ii) a registration rights agreement in the form of Exhibit
C hereto (the "Registration Rights Agreement"); and
WHEREAS, in connection with the execution by the Investors of the
Stock Purchase Agreement, the Notes (as defined in the Stock Purchase
Agreement), the Pledge Agreements (as defined in the Stock Purchase
Agreement) and all other contracts, agreements, schedules, certificates and
other documents being delivered pursuant to or in connection with the Stock
Purchase Agreement or such other documents or the transactions contemplated
thereby (the "Stock Purchase Transaction Documents"), and in order to
induce the Investors and their Affiliates to execute and deliver the
Governance Agreement and the Registration Rights Agreement, the Company is
hereby making certain representations and warranties and entering into
certain agreements.
NOW, THEREFORE, in consideration of the premises and the mutual
representations, warranties, covenants and agreements set forth in this
Agreement, the parties hereto agree as follows:
ARTICLE I
PURPOSE OF AGREEMENTS
1.1. Purpose. The Company acknowledges and agrees that it is
executing and delivering this Agreement (i) in connection with the
execution and delivery by the Investors of the Stock Purchase Transaction
Documents and the consummation of the transactions contemplated thereby,
and (ii) to induce the Investors and their Affiliates to execute and
deliver the Governance Agreement and the Registration Rights Agreement and
to consummate the transactions contemplated thereby.
1.2. Closing. The closing of the transactions contemplated hereby
shall take place at the offices of Fried, Frank, Harris, Shriver &
Jacobson, One New York Plaza, New York, New York 10004 simultaneously with
the Closing under the Stock Purchase Transaction Documents, or at such
other place, time and/or date as shall be mutually agreed by the Company
and the Investors.
1.3. Capitalized Terms. Capitalized terms not otherwise defined
herein shall have the meanings ascribed to such terms in Section 8.1.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to the Investors, as
of the date hereof and as of the Closing, as follows:
2.1. Organization; Subsidiaries. (a) The Company is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Delaware and has the requisite corporate power and authority to
carry on its business as it is now being conducted. The Company is duly
qualified and licensed as a foreign corporation to do business, and is in
good standing (and has paid all relevant franchise or analogous taxes), in
each jurisdiction where the character of its assets owned or held under
lease or the nature of its business makes such qualification necessary,
except where the failure to so qualify or be licensed would not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect. A correct and complete copy of the bylaws of the Company as
shall be in effect as of the Closing is attached hereto as Exhibit D (the
"By-Laws").
(b) Each Significant Subsidiary is a corporation, limited
liability company, limited partnership or other business entity duly
organized, validly existing and in good standing under the laws of its
jurisdiction of organization and has the power and authority to carry on
its business as it is now being conducted except where the failure to be in
good standing or to have such power and authority would not, individually
or in the aggregate, reasonably be expected to have a Material Adverse
Effect. Except as set forth on Schedule 2.1(b), (i) the Company owns,
either directly or indirectly through one or more Subsidiaries, all of the
capital stock or other equity interests of the Significant Subsidiaries
free and clear of all liens, charges, claims, security interests,
restrictions, options, proxies, voting trusts or other encumbrances
("Encumbrances") and (ii) there are no outstanding subscription rights,
options, warrants, convertible or exchangeable securities or other rights
of any character whatsoever relating to issued or unissued capital stock or
other equity interests of any Significant Subsidiary, or any contract,
agreement or other commitment of any character whatsoever relating to
issued or unissued capital stock or other equity interests of any
Significant Subsidiary or pursuant to which any Significant Subsidiary is
or may become bound to issue or grant additional shares of its capital
stock or other equity interests or related subscription rights, options,
warrants, convertible or exchangeable securities or other rights, or to
grant preemptive rights. Except for the Subsidiaries and except as set
forth on Schedule 2.1(b), the Company does not own, directly or indirectly,
any interest in any corporation, limited liability company, partnership,
business association or other Person.
2.2. Due Authorization. The Company has all right, corporate
power and authority to enter into this Agreement, the Ciba Documents, the
Governance Agreement and the Registration Rights Agreement and to
consummate the transactions contemplated hereby and thereby. The execution
and delivery by the Company of this Agreement, the Ciba Documents, the
Governance Agreement and the Registration Rights Agreement, and the
compliance by the Company with each of the provisions of this Agreement,
the Ciba Documents, the Governance Agreement and the Registration Rights
Agreement (a) are within the corporate power and authority of the Company,
and (b) have been duly authorized by all necessary corporate action of the
Company. This Agreement and the Consent and Termination Agreement have
been, and each of the Governance Agreement, the Registration Rights
Agreement and the Supplemental Indenture when executed and delivered by the
Company will be, duly and validly executed and delivered by the Company,
and each of this Agreement and each Ciba Document constitutes, and each of
such other agreements when executed and delivered by the Company will
constitute, a valid and binding agreement of the Company enforceable
against the Company in accordance with its terms except as such enforcement
is limited by bankruptcy, insolvency and other similar laws affecting the
enforcement of creditors' rights generally and for limitations imposed by
general principles of equity. The By-Laws have been duly adopted by the
Board and will be effective upon the Closing.
2.3. Capitalization. As of the date hereof, the authorized
capital stock of the Company consists of (i) 100,000,000 shares of Common
Stock, of which as of October 6, 2000, 36,950,954 shares were issued and
outstanding excluding 859,497 shares of Common Stock held in the Company's
treasury as of such date and (ii) 20,000,000 shares of Preferred Stock, no
par value per share, of which no shares are issued and outstanding. All of
314790
|
Citibank
As referenced in this Agreement:
Citibank
N.A. – and Restated
Credit Agreement, dated as of September 15, 1998, as amended, among the
Company, certain of its subsidiaries, the Lenders parties thereto, Citibank
N.A. and Credit Suisse First Boston.
"DGCL" shall mean the Delaware General Corporation Law.
"Encumbrances" shall have the meaning ascribed thereto in Section
_____________
dt 638787
;
 Goldman, Sachs
As referenced in this Agreement:
Goldman, Sachs & Co. – Partners 2000, L.P. and the Company, as amended prior to
the date hereof and the Confidentiality Agreement, dated June 19, 2000
between Goldman, Sachs & Co. and the Company.
8.7. Notices. All notices, requests, consents and other
communications hereunder to any party shall be deemed to be
_____________
dt 398542
;
|
 Fried Frank
As referenced in this Agreement:
Fried, Frank – to consummate the transactions contemplated thereby.
1.2. Closing. The closing of the transactions contemplated hereby
shall take place at the offices of Fried, Frank , Harris, Shriver &
Jacobson, One New York Plaza, New York, New York 10004 simultaneously with
the Closing under the Stock Purchase Transaction Documents,
_____________
Fried, Frank – under the Indenture shall have executed and
delivered the Supplemental Indenture; and (e) The Company shall have
received a reasonably acceptable opinion from Fried, Frank , Harris, Shriver
& Jacobson, counsel to the Investors, addressing the due authorization and
enforceability of this Agreement with respect to the Investors and
_____________
Fried, Frank – New York, New York 10004
Telecopy No.: (212) 357-5505
Attention: Mr. Sanjeev Mehra
with a copy to (which shall not constitute notice):
Fried, Frank , Harris, Shriver & Jacobson
One New York Plaza
New York, New York 10004
Telecopy No.: (212) 859-8587
Attention: Robert C. Schwenkel, Esq.
_____________
dt 390616
;
Paul Weiss
As referenced in this Agreement:
Paul, Weiss – Arps, Slate, Meagher & Flom LLP
Four Times Square
New York, New York 10036
Telecopy No.: (212) 735-2000
Attention: Joseph A. Coco, Esq.
Paul, Weiss , Rifkind, Wharton & Garrison
1285 Avenue of the Americas
New York, New York 10019-6064
Telecopy No.: (212) 757-3990
Attention: Judith R.
_____________
dt 505558
;
Skadden
As referenced in this Agreement:
Skadden, Arps – 5.1 and clauses (a) and (b)
of this Section 5.2;
(d) The Investors shall have received a reasonably acceptable
opinion from Skadden, Arps , Slate, Meagher & Flom LLP, counsel to the
Company, addressing the due authorization and enforceability of this
Agreement with respect to the Company
_____________
Skadden, Arps – Ira J. Krakower, Esq.
Vice President, General Counsel and Secretary
with a copy to each of the following (which shall not
constitute notice):
Skadden, Arps , Slate, Meagher & Flom LLP
Four Times Square
New York, New York 10036
Telecopy No.: (212) 735-2000
Attention: Joseph A. Coco, Esq.
_____________
dt 513830
|
Preview
Full Doc
| 2000 |
Agreement and Plan of Merger [Amended and Restated]
Agreement and Plan of Merger [Amended and Restated] (296K)
Doc #314846: Click preview link for longer preview.
AMENDED AND RESTATED
AGREEMENT AND PLAN OF MERGER
dated as of September 10, 2000
among
The Goldman Sachs Group, Inc.,
SLK LLC, and
SLK Acquisition L.L.C.
as Amended and Restated as of
October 31, 2000
{PAGE} 2
TABLE OF CONTENTS
{TABLE}
{CAPTION}
SECTION PAGE
------- ----
{S} {C}
RECITALS......................................................................................................... 1
ARTICLE I
Certain Definitions; Interpretation
1.01 Certain Definitions..................................................................................... 3
1.02 General Rules of Interpretation......................................................................... 10
ARTICLE II
The Merger
2.01 The Merger.............................................................................................. 10
2.02 Closing................................................................................................. 11
2.03 Tax Treatment of the Merger............................................................................. 11
ARTICLE III
Consideration; Exchange; Employee Incentives
3.01 Merger Consideration.................................................................................... 11
3.02 Exchange Procedures..................................................................................... 12
3.03 Withdrawn Member Interest and Managing Director Subordinated Debt Election.............................. 13
3.04 Withdrawn Member Interest and Managing Director Subordinated Note Documents............................. 14
3.05 Restricted Stock Units Awards........................................................................... 14
3.06 Incremental Liquidity Gain.............................................................................. 15
3.07 Adjustments to Prevent Dilution......................................................................... 15
ARTICLE IV
Actions Pending the Effective Time
4.01 Forbearances of the Company............................................................................. 16
4.02 Forbearances of Acquiror................................................................................ 19
{/TABLE}
-i-
{PAGE} 3
{TABLE}
{CAPTION}
SECTION PAGE
------- ----
{S} {C}
ARTICLE V
Representations and Warranties
5.01 Disclosure Schedules.................................................................................... 19
5.02 Standard................................................................................................ 19
5.03 Representations and Warranties with Respect to the Company.............................................. 20
5.04 Representations and Warranties with Respect to the Partnership.......................................... 36
5.05 Representations and Warranties of Acquiror.............................................................. 36
ARTICLE VI
Covenants
6.01 Reasonable Best Efforts................................................................................. 39
6.02 Access; Information..................................................................................... 40
6.03 No Rights Triggered..................................................................................... 40
6.04 Regulatory Applications................................................................................. 40
6.05 Regulatory Compliance................................................................................... 41
6.06 Performance Ranking..................................................................................... 41
6.07 Notification of Certain Matters......................................................................... 41
6.08 Public Announcements.................................................................................... 42
6.09 Fee Agreements.......................................................................................... 42
6.10 Private Placement....................................................................................... 42
6.11 Employee Benefits....................................................................................... 42
6.12 Indemnification of Members and Employees................................................................ 43
6.13 Restructuring Transactions. ............................................................................ 43
6.14 SLK 2000. .............................................................................................. 43
ARTICLE VII
Tax Matters
7.01 Tax Representations..................................................................................... 44
7.02 Covenants............................................................................................... 46
7.03 Termination of Tax Sharing Agreements................................................................... 48
7.04 Seller Tax Indemnification.............................................................................. 48
7.05 Exclusivity............................................................................................. 50
7.06 Survival of Obligations................................................................................. 50
{/TABLE}
-ii-
{PAGE} 4
{TABLE}
{CAPTION}
SECTION PAGE
------- ----
{S} {C}
7.07 Agreed Tax Treatment.................................................................................... 50
ARTICLE VIII
Conditions to Consummation of the Merger
8.01 Conditions to Each Party's Obligation to Effect the Merger.............................................. 50
8.02 Conditions to Obligations of the Company................................................................ 51
8.03 Conditions to Obligations of Acquiror and NewCo......................................................... 51
ARTICLE IX
Indemnification
9.01 Indemnification......................................................................................... 53
9.02 Notice and Defense of Claims............................................................................ 56
9.03 Survival of Representations and Warranties.............................................................. 57
ARTICLE X
Termination
10.01 Termination............................................................................................. 57
10.02 Effect of Termination and Abandonment................................................................... 58
ARTICLE XI
Miscellaneous
11.01 Entire Understanding; No Third-Party Beneficiaries...................................................... 58
11.02 Waiver; Amendment....................................................................................... 58
11.03 Expenses................................................................................................ 59
11.04 Notices................................................................................................. 59
11.05 Additional Provisions................................................................................... 60
11.06 Counterparts............................................................................................ 60
11.07 Governing Law; Enforcement; Waiver of Jury Trial........................................................ 60
{/TABLE}
-iii-
{PAGE} 5
Annex 1 Members
Annex 1A Supplement to the List of Members
Annex 2 Partners
Annex 3 Form of Amended and Restated Member Agreement
Annex 4 Form of Custody Agreement
Annex 5 Intentionally Omitted
Annex 6 Retention RSUs
Annex 7 SLK RSUs
Annex 8 Form of Acquiror Subordinated Note
Annex 9 Members who will Become Class B Members in the Merger
Annex 10 Form of Operating Agreement
Annex 11 Payments to Withdrawn Members
Annex 12 Form of Withdrawn Member Agreement
Annex 13 Agreement of Merger, dated as of October 30, 2000, of SLK
Investing Co. and SLK LLC.
Annex 14 Member Merger Consideration
Annex 15 Indemnification Percentages of Members
Annex 16 Form of Assignment and Assumption Agreement
Annex 17 Nonconforming Managing Director Subordinated Notes
Note: Certain of these annexes have been omitted from this Exhibit 2.1 pursuant
to Item 601(b)(2) of Regulation S-K. The Registrant hereby agrees to furnish
supplementally a copy of any omitted annex to the SEC upon request.
-iv-
{PAGE} 6
AMENDED AND RESTATED AGREEMENT AND PLAN OF MERGER,
dated as of September 10, 2000, as amended and restated as of October 31, 2000,
among The Goldman Sachs Group, Inc. ("Acquiror"), SLK LLC (the "Company"), and
SLK Acquisition L.L.C. ("NewCo").
RECITALS
A. The Company. The Company is a New York limited liability
company having its principal place of business in New York, New York. Annex 1
(which, for purposes of this Agreement, shall include the supplement thereto
delivered on the date hereof and that is attached hereto as Annex 1A) lists the
names and profit and loss allocations of all the members of the Company (each, a
"Member", and collectively, the "Members") after giving effect to the
Restructuring Transactions.
B. The Partnership. Spear, Leeds & Kellogg, L.P. (the
"Partnership") is a New York limited partnership having its principal place of
business in New York, New York. The Company is the sole general partner of the
Partnership. Annex 2 lists the names and profit and loss allocations of all
partners of the Partnership (each, a "Partner" and collectively, the
"Partners").
C . Acquiror. Acquiror is a Delaware corporation, having its
principal place of business in New York, New York.
D. NewCo. NewCo is a New York limited liability company formed
solely for the purpose of effecting the Merger (as defined below). NewCo is
owned 99% by Acquiror and 1% by SLK Acquisition Holdings, Inc., a Delaware
corporation and a wholly owned subsidiary of Acquiror.
E. The Merger. Subject to the terms and conditions contained
in this Agreement, the Company and Acquiror intend to effect the merger (the
"Merger") of NewCo with and into the Company, with the Company being the limited
liability company surviving such merger. In connection with the Merger, the Cash
Consideration (as defined below) being paid to Members in respect of their
Company Membership Interests (as defined below) is approximately $2.1 billion
and the aggregate number of shares of Acquiror Common Stock (as defined below)
being issued to Members in respect of their Company Membership Interests is
approximately 34.4 million, having a value of $4.4 billion as of the date of the
Original Agreement (in each case, before adjustments for pre-closing
distributions to Members, the Restructuring Transactions and consideration paid
or issued under 3.03).
F. Amendment and Restatement. Acquiror and the Company entered
into an Agreement and Plan of Merger, dated as of September 10, 2000 (the
"Original Agreement"); Section 11.02 of the Original Agreement provides that the
Original Agreement may be amended by an agreement in writing between the parties
approved or authorized by their respective Boards of Directors or similar
governing body and executed in the same manner as the Original Agreement as
originally executed and delivered by the parties. Acquiror and the Company
desire to amend and
{PAGE} 7
restate the provisions of the Original Agreement in accordance with Section
11.02 in order to add NewCo and SLK 2000, LLC as parties hereto and to make
certain other changes agreed to by Acquiror and the Company. The parties hereby
agree that the Original Agreement shall constitute the agreement of the parties
until such time as the Members representing a majority in interest of the
Members shall have executed and delivered a Member Agreement (as defined below),
at which time this Agreement, as so amended and restated hereby, shall hereafter
(subject to Section 11.01) constitute the entire agreement of the parties hereto
with respect to the matters set forth herein.
G. Supplemental Agreements. Each of the Members identified as
such in Annex 1 (other than AC Trust, which will enter into a Member Agreement
prior to the Closing) has previously entered into an instrument in which he or
she adopted and consented to the Original Agreement and the transactions
contemplated thereby (each, an "Original Member Agreement"). In addition, each
of the Members identified as such in Annex 1 executed a Supplemental Members
Agreement which is attached as an Annex to the Original Member Agreement (the
"Supplemental Members Agreement"). Further, one individual has entered into an
agreement with Acquiror similar to the Member Agreement (as defined below) and
each Member identified as such in Annex 1 and Annex 1A has, as of the date
hereof, executed an amendment and restatement of the Original Member Agreement
(the Original Member Agreement, as amended and restated (and as it may be
further amended from time to time), the "Member Agreement" (which term shall
also refer to that similar agreement executed and delivered by such other
individual and referred to in this sentence) substantially in the form of Annex
3, in which such Member has, among other things, (i) agreed to an amendment and
restatement of the Member Agreement which adopts and consents to the Original
Agreement, this Amended and Restated Agreement and Plan of Merger and the
Supplemental Members Agreement and (ii) adopted the SLK Investing Merger
Agreement (as defined below) and the transactions contemplated thereby. (The
Original Member Agreements and the Member Agreements, together with the Custody
Agreements and the counterparts to the Acquiror Shareholders Agreement to be
executed by the Members pursuant to Section 2(e) of the Member Agreement, are
referred to collectively as the "Supplemental Agreements".)
H. SLK Investing Co. Certain of the Members, who directly or
indirectly hold all of the partnership interests in SLK Investing Co. L.P., a
New York limited partnership ("SLK Investing"), have caused SLK Investing Co. to
merge with and into the Company (the "SLK Investing Merger") so that the Company
currently owns all of the Class A limited partnership interests in the
Partnership.
NOW, THEREFORE, in consideration of the premises, and of the
mutual covenants, representations, warranties and agreements contained herein
and in the Supplemental Agreements, the parties agree as follows:
-2-
{PAGE} 8
ARTICLE I
CERTAIN DEFINITIONS; INTERPRETATION
1.01 Certain Definitions. The following terms are used in this
Agreement and the Supplemental Agreements with the meanings set forth below:
"Acquiror" has the meaning assigned in the preamble to this
Agreement.
"Acquiror Common Stock" means the Common Stock, par value
$0.01 per share, of Acquiror.
"Acquiror Financial Statements" shall have the meaning
assigned in Section 5.05(d).
"Acquiror Party" means each of Acquiror, its respective
directors, officers, employees, agents and controlling persons, and
each of the heirs, executors, successors and assigns of any of the
foregoing and, without duplication, the Surviving LLC (effective at the
Effective Time).
"Acquiror Shareholders Agreement" means the Shareholders'
Agreement, dated May 7, 1999, among Acquiror and the other parties
named therein.
"Acquiror Subordinated Notes" has the meaning assigned in
Section 3.03.
"Affiliate" means, with respect to any specified person, any
other person directly or indirectly controlling or controlled by or
under direct or indirect common control with such specified person. For
the purposes of this definition, (a) "control" when used with respect
to any specified person means the power to direct the management and
policies of such person, directly or indirectly, whether through the
ownership of voting securities, by contract or otherwise; and (b) the
terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Agreement" means this agreement, as amended or modified from
time to time in accordance with Section 11.02.
"business day" means any day other than a Saturday, a Sunday
or a day on which banks in New York City are authorized or obligated by
law or executive order to close.
"Cash Consideration" has the meaning assigned in Section
3.01(a).
"CBOE" means the Chicago Board Options Exchange, Incorporated.
"CFTC" means the United States Commodity Futures Trading
Commission.
-3-
{PAGE} 9
"Chosen Courts" has the meaning set forth in Section 11.07(a).
"Clearing Agreement" has the meaning assigned in Section
5.03(h).
"Closing" and "Closing Date" have the meanings assigned in
Section 2.02.
"Closing Stock Price" has the meaning assigned in Section
3.06.
"Code" means the Internal Revenue Code of 1986, as amended,
and the rules and regulations thereunder.
"Company" has the meaning assigned in the preamble to this
Agreement.
"Company Membership Interests" means the membership interests
in the Company.
"Compensation Plans" has the meaning assigned in Section
5.03(o).
"Confidentiality Agreement" means the letter agreement, dated
March 6, 2000, between the Partnership and the Acquiror.
"Constitutive Documents" means, with respect to any person,
such person's articles or certificate of incorporation and by-laws,
limited liability company agreement or operating agreement, partnership
agreement or other constitutive documents.
"Contract" means, with respect to any person, any agreement,
314846
|
Goldman Sachs
As referenced in this Agreement and Plan of Merger [Amended and Restated]:
Goldman Sachs Group, – MERGER
{TEXT}
{PAGE} 1
Exhibit 2.1
AMENDED AND RESTATED
AGREEMENT AND PLAN OF MERGER
dated as of September 10, 2000
among
The Goldman Sachs Group, Inc.,
SLK LLC, and
SLK Acquisition L.L.C.
as Amended and Restated as of
October 31, 2000
{PAGE} 2
TABLE OF
_____________
Goldman Sachs Group, – RESTATED AGREEMENT AND PLAN OF MERGER,
dated as of September 10, 2000, as amended and restated as of October 31, 2000,
among The Goldman Sachs Group, Inc. ("Acquiror"), SLK LLC (the "Company"), and
SLK Acquisition L.L.C. ("NewCo").
RECITALS
A. The Company. The Company is a New
_____________
Goldman Sachs Group, – the Americas
New York, New York 10019
Facsimile: (212) 757-3990
Attention: Robert B. Schumer, Esq.
If to Acquiror or NewCo to:
The Goldman Sachs Group, Inc.
One New York Plaza
New York, New York 10004
Facsimile: (212) 902-3000
Attention: Gregory Palm
General Counsel and Managing Director
_____________
GOLDMAN SACHS GROUP, – this
Agreement to be executed in counterparts by their duly authorized officers, all
as of the day and year first above written.
THE GOLDMAN SACHS GROUP, INC.
By: /s/ DAN H. JESTER
---------------------------------------------
Name: Dan H. Jester
Title: Vice President and Treasurer
SLK LLC
By SLK Management Inc., its
_____________
Goldman Sachs Group, – AND RESTATED MEMBER AGREEMENT, dated as of September
10, 2000, as amended and restated as of October 26, 2000 (this "Agreement"),
between The Goldman Sachs Group, Inc., a Delaware corporation ("Acquiror"), the
signatory hereto, who is the owner of that membership interest ("Membership
Interest") of SLK LLC, a
_____________
dt 378592
;
Goldman, Sachs
As referenced in this Agreement and Plan of Merger [Amended and Restated]:
Goldman, Sachs &
Co. – reasonable
best efforts to cause such registration statement to become effective as soon as
reasonably practicable. The Excess Shares shall be sold through Goldman, Sachs &
Co. in such manner as Goldman, Sachs & Co. shall determine in its sole
discretion. The Members whose Excess Shares are included in the
_____________
Goldman, Sachs & Co. – statement to become effective as soon as
reasonably practicable. The Excess Shares shall be sold through Goldman, Sachs &
Co. in such manner as Goldman, Sachs & Co. shall determine in its sole
discretion. The Members whose Excess Shares are included in the registration
statement shall pay all of their
_____________
dt 398576
;
Paul Weiss
As referenced in this Agreement and Plan of Merger [Amended and Restated]:
Paul, Weiss – Broadway
New York, New York 10271
Facsimile: (212) 433-7294
Attention: Carl H. Hewitt
General Counsel and Managing Director
With a copy to:
Paul, Weiss , Rifkind, Wharton & Garrison
1285 Avenue of the Americas
New York, New York 10019
Facsimile: (212) 757-3990
Attention: Robert B. Schumer, Esq.
_____________
dt 505560
;
|
Sullivan
As referenced in this Agreement and Plan of Merger [Amended and Restated]:
Sullivan & Cromwell, – conditions).
2.02 Closing. The closing of the Merger (the "Closing") shall
take place at 9:00 a.m. at the offices of Sullivan & Cromwell, 125 Broad Street,
New York, New York, or at such other place as the parties shall agree, on the
date on which
_____________
Sullivan & Cromwell
– York Plaza
New York, New York 10004
Facsimile: (212) 902-3000
Attention: Gregory Palm
General Counsel and Managing Director
With a copy to:
Sullivan & Cromwell
125 Broad Street
New York, New York 10004
Facsimile: (212) 558-3588
Attention: James C. Morphy, Esq.
-59-
{PAGE} 65
11.05
_____________
dt 570672
;
SLK LLC;
SLK Acquisition L.L.C.
|
Preview
Full Doc
| 2000 |
Agreement and Plan of Merger
Agreement and Plan of Merger (273K)
Doc #314870: Click preview link for longer preview.
AGREEMENT AND PLAN OF MERGER
dated as of September 10, 2000
by and between
The Goldman Sachs Group, Inc.
and
SLK LLC
================================================================================
{PAGE} 2
TABLE OF CONTENTS
{TABLE}
{CAPTION}
SECTION PAGE
------- ----
{S} {C}
RECITALS.................................................................................................. 1
ARTICLE I
Certain Definitions; Interpretation
1.01 Certain Definitions..................................................................................2
1.02 General Rules of Interpretation......................................................................9
ARTICLE II
The Merger
2.01 The Merger...........................................................................................9
2.02 Closing.............................................................................................10
2.03 Tax Treatment of the Merger.........................................................................10
2.04 Organization of NewCo...............................................................................10
ARTICLE III
Consideration; Exchange; Employee Incentives
3.01 Merger Consideration................................................................................10
3.02 Exchange Procedures.................................................................................11
3.03 Withdrawn Member and Managing Director Subordinated Debt Election...................................12
3.04 Election Procedures.................................................................................13
3.05 Restricted Stock Units Awards.......................................................................13
3.06 Incremental Liquidity Gain..........................................................................14
3.07 Adjustments to Prevent Dilution.....................................................................14
ARTICLE IV
Actions Pending the Effective Time
4.01 Forbearances of the Company.........................................................................15
4.02 Forbearances of Acquiror............................................................................18
{/TABLE}
-i-
{PAGE} 3
{TABLE}
{CAPTION}
SECTION PAGE
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{S} {C}
ARTICLE V
Representations and Warranties
5.01 Disclosure Schedules................................................................................18
5.02 Standard............................................................................................18
5.03 Representations and Warranties with Respect to the Company..........................................19
5.04 Representations and Warranties with Respect to the Partnership......................................34
5.05 Representations and Warranties of Acquiror..........................................................34
5.06 Representations Regarding NewCo.....................................................................37
ARTICLE VI
Covenants
6.01 Reasonable Best Efforts.............................................................................37
6.02 Access; Information.................................................................................38
6.03 No Rights Triggered.................................................................................38
6.04 Regulatory Applications.............................................................................38
6.05 Regulatory Compliance...............................................................................39
6.06 Performance Ranking.................................................................................39
6.07 Notification of Certain Matters.....................................................................39
6.08 Public Announcements................................................................................40
6.09 Fee Agreements......................................................................................40
6.10 Private Placement...................................................................................40
6.11 Employee Benefits...................................................................................41
6.12 Indemnification of Members and Employees............................................................41
ARTICLE VII
TAX MATTERS
7.01 Tax Representations.................................................................................41
7.02 Covenants...........................................................................................43
7.03 Termination of Tax Sharing Agreements...............................................................45
7.04 Seller Tax Indemnification..........................................................................45
7.05 Exclusivity.........................................................................................47
{/TABLE}
-ii-
{PAGE} 4
{TABLE}
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{S} {C}
7.06 Survival of Obligations.............................................................................47
7.07 Agreed Tax Treatment................................................................................47
ARTICLE VIII
Conditions to Consummation of the Merger
8.01 Conditions to Each Party's Obligation to Effect the Merger..........................................47
8.02 Conditions to Obligations of the Company............................................................48
8.03 Conditions to Obligations of Acquiror and NewCo.....................................................48
ARTICLE IX
Indemnification
9.01 Indemnification.....................................................................................50
9.02 Notice and Defense of Claims........................................................................52
9.03 Survival of Representations and Warranties..........................................................53
ARTICLE X
Termination
10.01 Termination.........................................................................................53
10.02 Effect of Termination and Abandonment...............................................................54
ARTICLE XI
Miscellaneous
11.01 Entire Understanding; No Third-Party Beneficiaries..................................................55
11.02 Waiver; Amendment...................................................................................55
11.03 Expenses............................................................................................55
11.04 Notices.............................................................................................55
11.05 Additional Provisions...............................................................................56
11.06 Counterparts........................................................................................56
11.07 Governing Law; Enforcement; Waiver of Jury Trial....................................................57
{/TABLE}
-iii-
{PAGE} 5
Annex 1 Members
Annex 2 Partners
Annex 3 Form of Member Agreement
Annex 4 Form of Custody Agreement
Annex 5 Intentionally Omitted
Annex 6 Retention RSUs
Annex 7 SLK RSUs
Annex 8 Acquiror Subordinated Note
Note: Certain of these annexes have been omitted from this Exhibit 2.1 pursuant
to Item 601(b)(2) of Regulation S-K. The Registrant hereby agrees to furnish
supplementally a copy of any omitted annex to the SEC upon request.
-iv-
{PAGE} 6
AGREEMENT AND PLAN OF MERGER, dated as of September 10, 2000,
by and between The Goldman Sachs Group, Inc. ("Acquiror") and SLK LLC (the
"Company").
RECITALS
A. The Company. The Company is a New York limited
liability company having its principal place of business in New York, New York.
Annex 1 lists the names and profit and loss allocations of all the members of
the Company (each, a "Member", and collectively, the "Members").
B. The Partnership. Spear, Leeds & Kellogg, L.P. (the
"Partnership") is a New York limited partnership having its principal place of
business in New York, New York. The Company is the sole general partner of the
Partnership. Annex 2 lists the names and profit and loss allocations of all
partners of the Partnership (each, a "Partner" and collectively, the
"Partners").
C . Acquiror. Acquiror is a Delaware corporation, having
its principal place of business in New York, New York.
D. The Merger. Subject to the terms and conditions
contained in this Agreement, the Company and Acquiror intend to effect the
merger (the "Merger") of a direct or indirect wholly owned subsidiary of
Acquiror that will be organized as a New York limited liability company
("NewCo") with and into the Company, with the Company being the limited
liability company surviving such merger.
E. Supplemental Agreements. Each of the Members
identified as such in Annex 1 will, prior to Closing, enter into an instrument
substantially in the appropriate form of Annex 3, in which each Member will have
adopted and consented to this Agreement and the transactions contemplated hereby
(each, a "Member Agreement") and to the Supplemental Members Agreement which is
attached as an Annex to the Member Agreement (the "Supplemental Members
Agreement"). (The Member Agreements and the Supplemental Members Agreement
referred to in this Recital E, together with the Custody Agreements and the
counterparts to the Acquiror Shareholders Agreement to be executed by the
Members pursuant to Section 2(e) of the Member Agreement, are referred to
collectively as the "Supplemental Agreements".)
F. SLK Investing Co. The Members directly or indirectly
holding all of the partnership interests in SLK Investing Co. will agree
simultaneously herewith to cause SLK Investing Co. to transfer all of the Class
A limited partnership interest it owns in the Partnership to Acquiror or its
designee at the Effective Time.
NOW, THEREFORE, in consideration of the premises, and of the
mutual covenants, representations, warranties and agreements contained herein
and in the Supplemental Agreements, the parties agree as follows:
{PAGE} 7
ARTICLE I
CERTAIN DEFINITIONS; INTERPRETATION
1.01 Certain Definitions. The following terms are used in
this Agreement and the Supplemental Agreements with the meanings set forth
below:
"Acquiror" has the meaning assigned in the preamble to this
Agreement.
"Acquiror Common Stock" means the Common Stock, par value
$0.01 per share, of Acquiror.
"Acquiror Financial Statements" shall have the meaning
assigned in Section 5.05(d).
"Acquiror Party" means each of Acquiror, its respective
directors, officers, employees, agents and controlling persons, and
each of the heirs, executors, successors and assigns of any of the
foregoing and, without duplication, the Surviving LLC (effective at the
Effective Time).
"Acquiror Shareholders Agreement" means the Shareholders'
Agreement, dated May 7, 1999, among Acquiror and the other parties
named therein.
"Acquiror Subordinated Notes" has the meaning assigned in
Section 3.03.
"Affiliate" means, with respect to any specified person, any
other person directly or indirectly controlling or controlled by or
under direct or indirect common control with such specified person. For
the purposes of this definition, (a) "control" when used with respect
to any specified person means the power to direct the management and
policies of such person, directly or indirectly, whether through the
ownership of voting securities, by contract or otherwise; and (b) the
terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Agreement" means this agreement, as amended or modified from
time to time in accordance with Section 11.02.
"business day" means any day other than a Saturday, a Sunday
or a day on which banks in New York City are authorized or obligated by
law or executive order to close.
"Cash Consideration" has the meaning assigned in Section
3.01(a).
"Cash Pool Amount" means $2.1 billion reduced by the sum of
(A) any amount of the Withdrawn Member Amount that is exchanged for
cash or Acquiror Subordinated Notes pursuant to Section 3.03 and (B)
any amount paid by Acquiror pursuant to Section 8.03(g) to acquire all
of the outstanding Class A limited partnership interests of the
Partnership and
-2-
{PAGE} 8
(C) any charitable contribution, but in no event in excess of
$100,000,000, the Members may cause the Company or the Partnership to
make after the date hereof.
"CBOE" means the Chicago Board Options Exchange, Incorporated.
"CFTC" means the United States Commodity Futures Trading
Commission.
"Chosen Courts" has the meaning set forth in Section 11.07(a).
"Clearing Agreement" has the meaning assigned in Section
5.03(h).
"Closing" and "Closing Date" have the meanings assigned in
Section 2.02.
"Closing Stock Price" has the meaning assigned in Section
3.06.
"Code" means the Internal Revenue Code of 1986, as amended,
and the rules and regulation thereunder.
"Company" has the meaning assigned in the preamble to this
Agreement.
"Company Membership Interests" means the membership interests
in the Company.
"Compensation Plans" has the meaning assigned in Section
5.03(o).
"Confidentiality Agreement" means the letter agreement, dated
March 6, 2000, between the Partnership and the Acquiror.
"Consideration Percentage" means, with respect to any Member,
a percentage on a schedule previously agreed to by the Company and
Acquiror. The Company may deliver to Acquiror a revised schedule
changing the Consideration Percentage of any Member or Members if
necessary to reflect any changes in capital at least five (5) days
prior to the Closing.
"Constitutive Documents" means, with respect to any person,
such person's articles or certificate of incorporation and by-laws,
limited liability company agreement or operating agreement, partnership
agreement or other constitutive documents.
"Contract" means, with respect to any person, any agreement,
indenture, undertaking, debt instrument, contract, lease,
understanding, arrangement, or commitment to which such person or any
of its Subsidiaries is a party or by which any of them may be bound or
to which any of their properties may be subject.
"Custodian" has the meaning assigned in the form of Custody
Agreement.
-3-
{PAGE} 9
"Custody Agreements" means, collectively, a Custody Agreement
to be entered into by each of the Members and each other person who
will receive Acquiror Common Stock in the Merger or by election
pursuant to Section 3.03, in substantially the form of Annex 4.
"Disclosure Schedule" has the meaning assigned in Section
5.01.
"Effective Time" has the meaning assigned in Section 2.01(e).
"Election Deadline" has the meaning assigned in Section 3.04.
"Employees" has the meaning set forth in Section 5.03(o).
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended.
"ERISA Affiliate" has, with respect to any person, the meaning
assigned in Section 5.03(o).
"ERISA Plans" has the meaning assigned in Section 5.03(k).
"Excess Shares" shall mean , initially, that number of shares
of Acquiror Common Stock equal to the quotient derived by dividing (I)the
product of (A) the amount by which the Closing Stock Price exceeds $128.025,
times (B) the Stock Pool Amount, times (C) 0.27 by (II) the Closing Stock Price,
provided, that, if the sale price of shares of Acquiror Common Stock sold
pursuant to Section 3.05 is different from the Closing Stock Price, such number
shall be adjusted so as to enable the Members to receive net proceeds (without
regard to income taxes payable in respect of such sales) not less than the
product described in clause (I) above (it being understood that if, at the time
of any sales of shares of Acquiror Common Stock during the same tax year as the
Closing, the sale price(s) of the shares is less than the Closing Stock Price,
then the number of Excess Shares shall be adjusted appropriately to reflect the
314870
|
Goldman Sachs
As referenced in this Agreement and Plan of Merger:
Goldman Sachs Group, – OF MERGER
{TEXT}
{PAGE} 1
Exhibit 2.1
================================================================================
AGREEMENT AND PLAN OF MERGER
dated as of September 10, 2000
by and between
The Goldman Sachs Group, Inc.
and
SLK LLC
================================================================================
{PAGE} 2
TABLE OF CONTENTS
{TABLE}
{CAPTION}
SECTION PAGE
------- ----
{S} {C}
RECITALS.................................................................................................. 1
ARTICLE I
Certain Definitions; Interpretation
_____________
Goldman Sachs Group, – to the SEC upon request.
-iv-
{PAGE} 6
AGREEMENT AND PLAN OF MERGER, dated as of September 10, 2000,
by and between The Goldman Sachs Group, Inc. ("Acquiror") and SLK LLC (the
"Company").
RECITALS
A. The Company. The Company is a New York limited
liability company having its
_____________
Goldman Sachs Group, – the Americas
New York, New York 10019
Facsimile: (212) 757-3990
Attention: Robert B. Schumer, Esq.
If to Acquiror or NewCo to:
The Goldman Sachs Group, Inc.
One New York Plaza
New York, New York 10004
Facsimile: (212) 902-3000
Attention: Gregory Palm
General Counsel and Managing Director
_____________
GOLDMAN SACHS GROUP, – this
Agreement to be executed in counterparts by their duly authorized officers, all
as of the day and year first above written.
THE GOLDMAN SACHS GROUP, INC.
By: /s/ HENRY M. PAULSON, JR.
-------------------------
Name: Henry M. Paulson, Jr.
Title: Chairman and Chief Executive Officer
SLK LLC
By SLK
_____________
Goldman Sachs Group, – Chief Executive Officer
{PAGE} 64
Annex 3
Form of Member Agreement
MEMBER AGREEMENT, dated as of September 10, 2000 (this
"Agreement"), between The Goldman Sachs Group, Inc., a Delaware corporation
("Acquiror"), the signatory hereto, who is the owner of that membership interest
("Membership Interest") of SLK LLC, a
_____________
dt 378653
;
Goldman, Sachs
As referenced in this Agreement and Plan of Merger:
Goldman, Sachs &
Co. – reasonable
best efforts to cause such registration statement to become effective as soon as
reasonably practicable. The Excess Shares shall be sold through Goldman, Sachs &
Co. in such manner as Goldman, Sachs & Co. shall determine in its sole
discretion. The Members whose Excess Shares are included in the
_____________
Goldman, Sachs & Co. – statement to become effective as soon as
reasonably practicable. The Excess Shares shall be sold through Goldman, Sachs &
Co. in such manner as Goldman, Sachs & Co. shall determine in its sole
discretion. The Members whose Excess Shares are included in the registration
statement shall pay all of their
_____________
dt 398601
;
Paul Weiss
As referenced in this Agreement and Plan of Merger:
Paul, Weiss – New York 10271
Facsimile: (212) 433-7294
Attention: Carl H. Hewitt
General Counsel and Managing Director
-55-
{PAGE} 61
With a copy to:
Paul, Weiss , Rifkind, Wharton & Garrison
1285 Avenue of the Americas
New York, New York 10019
Facsimile: (212) 757-3990
Attention: Robert B. Schumer, Esq.
_____________
dt 505561
;
|
Sullivan
As referenced in this Agreement and Plan of Merger:
Sullivan & Cromwell, – conditions).
2.02 Closing. The closing of the Merger (the "Closing")
shall take place at 9:00 a.m. at the offices of Sullivan & Cromwell, 125 Broad
Street, New York, New York, or at such other place as the parties shall agree,
on the date on which
_____________
Sullivan & Cromwell
– York Plaza
New York, New York 10004
Facsimile: (212) 902-3000
Attention: Gregory Palm
General Counsel and Managing Director
With a copy to:
Sullivan & Cromwell
125 Broad Street
New York, New York 10004
Facsimile: (212) 558-3588
Attention: James C. Morphy, Esq.
11.05 Additional Provisions. (a)
_____________
dt 570683
;
SLK LLC
|
Preview
Full Doc
| 2003 |
Agreement and Plan of Merger
Agreement and Plan of Merger (213K)
Doc #371271: Click preview link for longer preview.
AGREEMENT AND PLAN OF MERGER
Dated as of December 12, 2003
Among
ABBOTT LABORATORIES
SENATOR ACQUISITION CORPORATION
and
I-STAT CORPORATION
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS
1
Section 1.01
Definitions
1
ARTICLE II THE OFFER AND THE MERGER
10
Section 2.01
The Offer
10
Section 2.02
Company Actions
11
Section 2.03
Board of . . .
371271
|
Goldman Sachs
As referenced in this Agreement and Plan of Merger:
Goldman Sachs Group, – based on information supplied by the Company for inclusion or incorporation by reference therein.
Section 5.07 Brokers. No broker, investment banker, financial advisor or other Person, other than The Goldman Sachs Group, Inc., the fees and expenses of which will be paid by Parent, is entitled to any broker's, finder's, financial advisor's or other similar fee or commission
_____________
dt 1014325
;
Abbott Labs
As referenced in this Agreement and Plan of Merger:
ABBOTT LABORATORIES – 99_a1.htm EX-99.A1
QuickLinks -- Click here to rapidly navigate through this document
Exhibit 99a1
EXECUTION COPY
AGREEMENT AND PLAN OF MERGER
Dated as of December 12, 2003
Among
ABBOTT LABORATORIES
SENATOR ACQUISITION CORPORATION
and
I-STAT CORPORATION
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS
1
Section 1.01
Definitions
1
ARTICLE II THE OFFER AND THE MERGER
10
Section
_____________
Abbott Laboratories, – Section 10.08
Assignment
49
Section 10.09
Enforcement
49
ii
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER dated as of December 12, 2003 (the "Agreement"), among Abbott Laboratories, an Illinois corporation ("Parent"), Senator Acquisition Corporation, a Delaware corporation ("Sub"), and a wholly owned subsidiary of Parent, and i-STAT Corporation, a Delaware corporation (the "Company").
WHEREAS, the
_____________
Abbott Laboratories
– receipt by the parties at the following addresses (or at such other address for a party as shall be specified by like notice):
(a)
if to Parent or Sub, to
Abbott Laboratories
100 Abbott Park Road
Building AP6D, Department 6392
Abbott Park, Illinois 60064-6020
Attention: President and Chief Operations Officer,
Medical Products Group
Fax: (847) 938-6277
47
and
Abbott
_____________
Abbott Laboratories
– Abbott Laboratories
100 Abbott Park Road
Building AP6D, Department 6392
Abbott Park, Illinois 60064-6020
Attention: President and Chief Operations Officer,
Medical Products Group
Fax: (847) 938-6277
47
and
Abbott Laboratories
100 Abbott Park Road
Building AP6D, Department 322
Abbott Park, Illinois 60064-6020
Attention: Divisional Vice President,
Domestic Legal Operations
Fax: (847) 938-1206
with a copy to:
Mayer,
_____________
ABBOTT LABORATORIES
– this Agreement or any Transaction.
[Intentionally left blank]
49
IN WITNESS WHEREOF, Parent, Sub and the Company have duly executed this Agreement, all as of the date first written above.
ABBOTT LABORATORIES
By:
/s/ RICHARD A. GONZALEZ
Name: Richard A. Gonzalez
Title: President and Chief Operating Officer,
Medical Products Group
SENATOR ACQUISITION CORPORATION
By:
/s/ THOMAS C. FREYMAN
Name: Thomas C.
_____________
dt 1333863
;
CSFB LLC
As referenced in this Agreement and Plan of Merger:
Credit Suisse First Boston LLC – futures and forward contracts or other similar risk management arrangements.
Section 4.27 Brokers; Fees and Expenses.
(a) No broker, investment banker, financial advisor or other Person, other than (i) Credit Suisse First Boston LLC ("CSFB"), and (ii) The Delaware Bay Company, Inc. ("Delaware Bay"), the fees and expenses of which will be paid by the Company, is entitled to any broker's, finder'
_____________
dt 1051462
;
|
Mayer Brown
As referenced in this Agreement and Plan of Merger:
Mayer, Brown – event, the parties shall execute an appropriate amendment to this Agreement in order to reflect the foregoing.
Section 2.06 Closing. The Closing shall take place at the offices of Mayer, Brown , Rowe & Maw LLP, 190 South LaSalle Street, Chicago, Illinois 60603 at 10:00 a.m. on the second Business Day following the satisfaction (or, to the extent permitted
_____________
Mayer, Brown – Abbott Laboratories
100 Abbott Park Road
Building AP6D, Department 322
Abbott Park, Illinois 60064-6020
Attention: Divisional Vice President,
Domestic Legal Operations
Fax: (847) 938-1206
with a copy to:
Mayer, Brown , Rowe & Maw LLP
190 South LaSalle Street
Chicago, Illinois 60603-3441
Attention: James T. Lidbury
Fax: (312) 701-7711
(b)
if to the Company, to
i-STAT Corporation
_____________
dt 1047530
;
Paul Hastings
As referenced in this Agreement and Plan of Merger:
Paul, Hastings – 7711
(b)
if to the Company, to
i-STAT Corporation
104 Windsor Center Drive
East Windsor, New Jersey 08520
Attention: William Moffitt
Fax: (609) 426-3901
with a copy to:
Paul, Hastings , Janofsky & Walker LLP
1055 Washington Boulevard
Stamford, CT 06901
Attention: Esteban A. Ferrer, Esq.
Fax: (203) 359-3031
Section 10.03 Interpretation. When a reference is made in
_____________
dt 1021331
|
Preview
Full Doc
| 2000 |
Agreement and Plan of Reorganization
Agreement and Plan of Reorganization (250K)
Doc #1357700: Click preview link for longer preview.
AGREEMENT AND PLAN OF REORGANIZATION
DATED AS OF AUGUST 26, 2000
BETWEEN
VOICESTREAM WIRELESS CORPORATION
AND
POWERTEL, INC.
--------------------------------------------------------------------------------
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
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. . .
1357700
|
Goldman Sachs
As referenced in this Agreement and Plan of Reorganization:
Goldman Sachs Group, – in Section 3.09.
"VoiceStream Principal Stockholders" shall mean John W. Stanton; Theresa E.
Gillespie; PN Cellular, Inc.; Stanton Family Trust; Stanton Communications
Corporation; GS Capital Partners, L.P.; The Goldman Sachs Group, Inc.; Bridge
Street Fund 1992, L.P.; Stone Street Fund 1992, L.P.; Sonera Corporation; Sonera
Holding B.V.; Hutchison Telecommunications PCS (USA) Limited; Hutchison
Telecommunications Holdings (USA) Limited
_____________
dt 1534287
;
Citibank
As referenced in this Agreement and Plan of Reorganization:
Citibank, N.A. – the filing of any lawsuit or other legal
action, taken to collect payment, together with interest on the amount of any
unpaid fee at the publicly announced prime rate of Citibank, N.A. , from the date
such fee was required to be paid.
SECTION 5.11 Public Announcements. VoiceStream and Powertel will consult
with each other and with DT before issuing any
_____________
dt 1479687
;
Deutsche Telekom
As referenced in this Agreement and Plan of Reorganization:
Deutsche Telekom AG, – Delaware corporation ("Powertel"). Except
as otherwise set forth herein, capitalized (and certain other) terms used herein
shall have the meanings set forth in Section 8.03.
WITNESSETH:
WHEREAS, VoiceStream and Deutsche Telekom AG, an AKTIENGESELLSCHAFT ("DT")
entered into an Agreement and Plan of Merger dated as of July 23, 2000 (as
amended or modified from time to time, the "DT Merger Agreement"),
_____________
Deutsche Telekom AG
– b) Copies of all notices delivered to VoiceStream or Powertel pursuant to
this Agreement shall also be provided by the party providing such notice to DT
at the following address:
Deutsche Telekom AG
140 Friedrich-Ebert Allee
53113 Bonn
Germany
Attn: Kevin Copp
Telecopy No: 49-228-181-44177
with a copy to:
Cleary, Gottlieb, Steen & Hamilton
One Liberty Plaza
New
_____________
dt 1393632
;
|
Cleary Gottlieb
As referenced in this Agreement and Plan of Reorganization:
Cleary, Gottlieb – notice to DT
at the following address:
Deutsche Telekom AG
140 Friedrich-Ebert Allee
53113 Bonn
Germany
Attn: Kevin Copp
Telecopy No: 49-228-181-44177
with a copy to:
Cleary, Gottlieb , Steen & Hamilton
One Liberty Plaza
New York, New York
Attn: Robert P. Davis
Telecopy No: 212-225-3999
or to such other addresses as DT may have furnished
_____________
dt 1401922
;
Preston Gates
As referenced in this Agreement and Plan of Reorganization:
Preston Gates – Day after satisfaction
or waiver of the conditions set forth in Article VI (excluding conditions that,
by their terms, cannot be satisfied except at the Closing), at the offices of
Preston Gates & Ellis LLP, 701 Fifth Avenue, Suite 5000, Seattle, WA 98104-7078,
unless this Agreement shall have been terminated and the transactions
contemplated by this Agreement abandoned pursuant to
_____________
Preston Gates – facts or circumstances relating to VoiceStream or its Affiliates,
including any covenants or undertakings of VoiceStream pursuant to this
Agreement, that would prevent Jones, Day, Reavis & Pogue and/or Preston Gates &
Ellis LLP from delivering the opinion referred to in Section 6.03(b) as of the
date hereof.
SECTION 3.16 Interim Operations and Performance of Sub. Sub
_____________
Preston Gates – by a duly authorized officer to such effect.
-38-
<PAGE> 43
(b) Tax Opinion. VoiceStream shall have received an opinion of Jones, Day,
Reavis & Pogue and/or Preston Gates & Ellis LLP, in form and substance
reasonably satisfactory to VoiceStream, dated the Closing Date, substantially to
the effect that, on the basis of facts, representations and assumptions set
_____________
Preston Gates – will constitute a reorganization within the
meaning of Section 368(a) of the Code for federal income tax purposes.
In rendering such opinion, Jones, Day, Reavis & Pogue and/or Preston Gates
& Ellis LLP may receive and rely upon representations from others, including
representations from (i) Powertel and (ii) VoiceStream contained in certificates
substantially in the form of the Powertel
_____________
Preston Gates – like
notice):
if to VoiceStream to:
Voicestream Wireless Corporation
3650 131st Avenue S.E.
Bellevue, Washington 98006
Attn: Alan R. Bender
Telecopy No: 425-586-8080
with a copy to:
Preston Gates & Ellis LLP
701 Fifth Avenue, Suite 5000
Seattle, WA 98104
Attn: Richard B. Dodd, Esq.
Telecopy No: 206-623-7022
if to Powertel, to:
Powertel, Inc.
1239 O.
_____________
dt 1354760
|
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| 2000 |
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AGREEMENT AND PLAN OF REORGANIZATION
DATED AS OF AUGUST 26, 2000
BETWEEN
VOICESTREAM WIRELESS CORPORATION
AND
POWERTEL, INC.
--------------------------------------------------------------------------------
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
. . .
1358071
|
Goldman Sachs
As referenced in this Agreement and Plan of Reorganization:
Goldman Sachs Group, – in Section 3.09.
"VoiceStream Principal Stockholders" shall mean John W. Stanton; Theresa E.
Gillespie; PN Cellular, Inc.; Stanton Family Trust; Stanton Communications
Corporation; GS Capital Partners, L.P.; The Goldman Sachs Group, Inc.; Bridge
Street Fund 1992, L.P.; Stone Street Fund 1992, L.P.; Sonera Corporation; Sonera
Holding B.V.; Hutchison Telecommunications PCS (USA) Limited; Hutchison
Telecommunications Holdings (USA) Limited
_____________
dt 1534288
;
Citibank
As referenced in this Agreement and Plan of Reorganization:
Citibank, N.A. – the filing of any lawsuit or other legal
action, taken to collect payment, together with interest on the amount of any
unpaid fee at the publicly announced prime rate of Citibank, N.A. , from the date
such fee was required to be paid.
SECTION 5.11 Public Announcements. VoiceStream and Powertel will consult
with each other and with DT before issuing any
_____________
dt 1479688
;
Deutsche Telekom
As referenced in this Agreement and Plan of Reorganization:
Deutsche Telekom AG, – Delaware corporation ("Powertel"). Except
as otherwise set forth herein, capitalized (and certain other) terms used herein
shall have the meanings set forth in Section 8.03.
WITNESSETH:
WHEREAS, VoiceStream and Deutsche Telekom AG, an AKTIENGESELLSCHAFT ("DT")
entered into an Agreement and Plan of Merger dated as of July 23, 2000 (as
amended or modified from time to time, the "DT Merger Agreement"),
_____________
Deutsche Telekom AG
– b) Copies of all notices delivered to VoiceStream or Powertel pursuant to
this Agreement shall also be provided by the party providing such notice to DT
at the following address:
Deutsche Telekom AG
140 Friedrich-Ebert Allee
53113 Bonn
Germany
Attn: Kevin Copp
Telecopy No: 49-228-181-44177
with a copy to:
Cleary, Gottlieb, Steen & Hamilton
One Liberty Plaza
New
_____________
dt 1393634
;
|
Cleary Gottlieb
As referenced in this Agreement and Plan of Reorganization:
Cleary, Gottlieb – notice to DT
at the following address:
Deutsche Telekom AG
140 Friedrich-Ebert Allee
53113 Bonn
Germany
Attn: Kevin Copp
Telecopy No: 49-228-181-44177
with a copy to:
Cleary, Gottlieb , Steen & Hamilton
One Liberty Plaza
New York, New York
Attn: Robert P. Davis
Telecopy No: 212-225-3999
or to such other addresses as DT may have furnished
_____________
dt 1401924
;
Preston Gates
As referenced in this Agreement and Plan of Reorganization:
Preston Gates – Day after satisfaction
or waiver of the conditions set forth in Article VI (excluding conditions that,
by their terms, cannot be satisfied except at the Closing), at the offices of
Preston Gates & Ellis LLP, 701 Fifth Avenue, Suite 5000, Seattle, WA 98104-7078,
unless this Agreement shall have been terminated and the transactions
contemplated by this Agreement abandoned pursuant to
_____________
Preston Gates – facts or circumstances relating to VoiceStream or its Affiliates,
including any covenants or undertakings of VoiceStream pursuant to this
Agreement, that would prevent Jones, Day, Reavis & Pogue and/or Preston Gates &
Ellis LLP from delivering the opinion referred to in Section 6.03(b) as of the
date hereof.
SECTION 3.16 Interim Operations and Performance of Sub. Sub
_____________
Preston Gates – by a duly authorized officer to such effect.
-38-
<PAGE> 43
(b) Tax Opinion. VoiceStream shall have received an opinion of Jones, Day,
Reavis & Pogue and/or Preston Gates & Ellis LLP, in form and substance
reasonably satisfactory to VoiceStream, dated the Closing Date, substantially to
the effect that, on the basis of facts, representations and assumptions set
_____________
Preston Gates – will constitute a reorganization within the
meaning of Section 368(a) of the Code for federal income tax purposes.
In rendering such opinion, Jones, Day, Reavis & Pogue and/or Preston Gates
& Ellis LLP may receive and rely upon representations from others, including
representations from (i) Powertel and (ii) VoiceStream contained in certificates
substantially in the form of the Powertel
_____________
Preston Gates – like
notice):
if to VoiceStream to:
Voicestream Wireless Corporation
3650 131st Avenue S.E.
Bellevue, Washington 98006
Attn: Alan R. Bender
Telecopy No: 425-586-8080
with a copy to:
Preston Gates & Ellis LLP
701 Fifth Avenue, Suite 5000
Seattle, WA 98104
Attn: Richard B. Dodd, Esq.
Telecopy No: 206-623-7022
if to Powertel, to:
Powertel, Inc.
1239 O.
_____________
dt 1354761
|
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Agreement and Plan of Reorganization
Agreement and Plan of Reorganization (211K)
Doc #1396176: Click preview link for longer preview.
Execution Counterpart
________________________________________________________________________________
AGREEMENT AND PLAN OF REORGANIZATION
between
CORVIS CORPORATION
("Purchaser")
and
THE SELLERS PARTY HERETO
("Sellers")
Dated as of April 28, 2000
________________________________________________________________________________
<PAGE>
AGREEMENT AND PLAN OF . . .
1396176
|
Goldman Sachs
As referenced in this Agreement and Plan of Reorganization:
GOLDMAN SACHS GROUP, – Name:
Title:
77
<PAGE>
CRESCENDO III EXECUTIVE FUND, LP
By _____________________________
Name:
Title:
78
<PAGE>
INNOVACOM 1
By _____________________________
Name:
Title:
79
<PAGE>
THE GOLDMAN SACHS GROUP, INC.
By _____________________________
Name:
Title:
GOLDMAN SACHS INVESTMENTS LIMITED
By _____________________________
Name:
Title:
STONE STREET FUND 2000, LP
By _____________________________
Name:
Title:
BRIDGE SPECIAL OPPORTUNITIES FUND 2000, LP
By
_____________
dt 1534295
;
|
France Telecom
As referenced in this Agreement and Plan of Reorganization:
France Telecom – 211 Shares
held by certain Sellers to prevent dilution of their existing shareholdings in
the Company (the "Anti-Dilution Warrants"), (c) the warrants to acquire 24,450
Shares held by France Telecom Technologie S.A. (the "FTT Warrants"), and (d) all
stock options held by employees of the Company. In the event that, as the result
of the foregoing sentence, any Person
_____________
France Telecom – Purchaser,
that all consents set forth on Schedule 3.3 have been obtained;
------------
(c) the Escrow Agreement duly executed by Sellers and the Escrow
Agent;
(d) letter of each of France Telecom S.A. and France Telecom
Technologie S.A. consenting to the sale of the Company to Purchaser
pursuant hereto and such other matters as Purchaser shall reasonably
require, all for
_____________
France Telecom
– forth on Schedule 3.3 have been obtained;
------------
(c) the Escrow Agreement duly executed by Sellers and the Escrow
Agent;
(d) letter of each of France Telecom S.A. and France Telecom
Technologie S.A. consenting to the sale of the Company to Purchaser
pursuant hereto and such other matters as Purchaser shall reasonably
require, all for purposes of (i) that
_____________
France Telecom – sale of the Company to Purchaser
pursuant hereto and such other matters as Purchaser shall reasonably
require, all for purposes of (i) that certain contract, dated May 19,
1999, between France Telecom S.A. and the Company, and (ii) that
certain contract, dated May 19, 1999, between France Telecom
Technologie S.A. and the Company;
(e) letters to each of the employees
_____________
France Telecom
– all for purposes of (i) that certain contract, dated May 19,
1999, between France Telecom S.A. and the Company, and (ii) that
certain contract, dated May 19, 1999, between France Telecom
Technologie S.A. and the Company;
(e) letters to each of the employees of the Company listed on
Schedule 9.2(e), signed by each such employee, prior to
_____________
dt 1347707
|
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Agreement and Plan of Merger
Agreement and Plan of Merger (251K)
Doc #1489834: Click preview link for longer preview.
AGREEMENT AND PLAN OF MERGER
This AGREEMENT AND PLAN OF MERGER (this "Agreement") is entered into as of
October 3, 2005, by and among Dex Media, Inc., a Delaware corporation (the
"Company"), R.H. Donnelley Corporation, a Delaware corporation ("Parent"), and
Forward Acquisition Corp., a Delaware corporation and wholly owned subsidiary of
Parent ("Merger Sub").
RECITALS:
A. The Boards of Directors of the Company, Parent and Merger Sub have
determined that it is in the . . .
1489834
|
Goldman Sachs
As referenced in this Agreement and Plan of Merger:
Goldman Sachs Group, – providing for certain rights of the Company Sponsors;
F. In connection with the parties entering into this Agreement, Parent,
R.H. Donnelley, Inc. and certain investment partnerships affiliated with The
Goldman Sachs Group, Inc. (collectively, the "GS Funds") are entering into an
agreement pursuant to which, among other things, the GS Funds have agreed to
vote in favor of the issuance of
_____________
dt 1681965
;
R.H. Donnelley
As referenced in this Agreement and Plan of Merger:
R.H. Donnelley, Inc – agreements (the "Sponsor Stockholders Agreements"), effective as of
the Effective Time, providing for certain rights of the Company Sponsors;
F. In connection with the parties entering into this Agreement, Parent,
R.H. Donnelley, Inc . and certain investment partnerships affiliated with The
Goldman Sachs Group, Inc. (collectively, the "GS Funds") are entering into an
agreement pursuant to which, among other things, the GS Funds
_____________
R.H. Donnelley Inc – the GS Funds in accordance with the terms and subject to the conditions of
the Stock Purchase and Support Agreement, dated as of October 3, 2005, by and
among Parent, R.H. Donnelley Inc . and the Stockholders of Parent listed on
Schedule A attached thereto, as it may be amended from time to time (the
"Redemption Agreement"). Notwithstanding anything to the contrary in
_____________
dt 1690107
;
|
IBEW
As referenced in this Agreement and Plan of Merger:
International Brotherhood of Electrical Workers, – of
the Company, Parent, (iii) with or to a labor union or guild (including any
collective bargaining agreement) except for the Agreement, effective as of May
16, 1998, between the International Brotherhood of Electrical Workers, AFL-CIO,
Local 1269 and the Company, and the Agreement for Clerical, Production and Sales
Employees, effective October 16, 2003, between the Communications Workers of
America and Dex Media
_____________
dt 1675235
;
Lehman Brothers
As referenced in this Agreement and Plan of Merger:
Lehman Brothers Inc – or finder or
incurred any liability for any broker's fees, commissions or finder's fees in
connection with the Merger or related transactions contemplated by this
Agreement, other than Lehman Brothers Inc . and Merrill Lynch & Co. (the
"Company's Advisors"), which firms the Company retained pursuant to engagement
letters, copies of which have been provided to Parent.
3.8 Absence
_____________
Lehman Brothers Inc – qualifying as a "reorganization" within the
meaning of Section 368(a) of the Code.
3.22 Opinions. Prior to the execution of this Agreement, the Company has
received opinions from Lehman Brothers Inc . and Merrill Lynch & Co., copies of
which have been or will promptly be provided to Parent, to the effect that as of
the date thereof and based upon
_____________
dt 1679557
;
Wachovia Bank
As referenced in this Agreement and Plan of Merger:
Wachovia
Bank, N.A. – not result in the ability of
any Person to exercise any "Rights" under the Rights Agreement (the "Company
Rights Agreement"), dated as of July 27, 2004, between the Company and Wachovia
Bank, N.A. , (ii) neither Parent nor any of its affiliates is or will become an
"Acquiring Person" under the Company Rights Agreement, (iii) neither a
"Distribution Date" or "Shares Acquisition Date"
_____________
dt 1691143
|
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Agreement and Plan of Merger
Agreement and Plan of Merger (395K)
Doc #1603202: Click preview link for longer preview.
AGREEMENT AND PLAN OF MERGER
by and among
NEW YORK STOCK EXCHANGE, INC.,
ARCHIPELAGO HOLDINGS, INC.
and
SUCH OTHER PERSONS THAT BECOME SIGNATORIES
HERETO
PURSUANT TO THE TERMS HEREOF
Dated as of April 20, 2005
TABLE OF CONTENTS
ARTICLE I
Formation of NYSE Merger Corporation Sub, Holdco, Holdco Subsidiaries and Trust
Page
1.1.
Organization of NYSE Merger Corporation Sub
1
1.2.
Organization of Holdco
2
1.3.
Organization of . . .
1603202
|
Goldman Sachs
As referenced in this Agreement and Plan of Merger:
Goldman Sachs Group, – L.P.
By:
Name:
Title:
A-11
Exhibit A
Ownership of Shares by the Stockholder
Name
Address
Number of Shares
GOLDMAN SACHS EXECUTION & CLEARING, L.P.
c/o The Goldman Sachs Group, Inc.
85 Broad Street
New York, New York 10004
5,877,797
GS ARCHIPELAGO INVESTMENT, L.L.C.
c/o The Goldman Sachs Group, Inc.
85 Broad Street
New
_____________
Goldman Sachs Group, – CLEARING, L.P.
c/o The Goldman Sachs Group, Inc.
85 Broad Street
New York, New York 10004
5,877,797
GS ARCHIPELAGO INVESTMENT, L.L.C.
c/o The Goldman Sachs Group, Inc.
85 Broad Street
New York, New York 10004
1,264,877
SLK-HULL DERIVATIVES LLC
c/o The Goldman Sachs Group, Inc.
85 Broad Street
New York, New
_____________
Goldman Sachs Group, – ARCHIPELAGO INVESTMENT, L.L.C.
c/o The Goldman Sachs Group, Inc.
85 Broad Street
New York, New York 10004
1,264,877
SLK-HULL DERIVATIVES LLC
c/o The Goldman Sachs Group, Inc.
85 Broad Street
New York, New York 10004
163,048
TOTAL
7,305,722
A-12
Exhibit B
General
Atlantic Partners 77, L.P.
GAP-W
Holdings, L.
_____________
dt 1681968
;
|
Citibank
As referenced in this Agreement and Plan of Merger:
Citibank, N.A. – pay the other party its costs and expenses (including attorneys' fees) in connection with such suit,
together with interest on the amount of the fee at the prime rate of Citibank, N.A. in effect on the date such payment was required to be paid, from the date such payment was required through the date
of payment.
ARTICLE X
Miscellaneous and General
_____________
dt 1675674
;
Wachtell Lipton
As referenced in this Agreement and Plan of Merger:
Wachtell, Lipton – in the DGCL.
2.2. Closing. Unless otherwise mutually agreed in writing between NYSE and Archipelago, the closing for the
Mergers (the "Closing") shall take place at the offices of Wachtell, Lipton , Rosen & Katz, 51 West 52nd Street, New York, New York
10019, at 11:59 p.m. on the last business day (the "Closing Date") of the week in
_____________
Wachtell, Lipton – the Chief Executive
Officer of Archipelago to such effect.
(c) IRS Ruling or Tax Opinion. NYSE shall have received a private letter ruling from the IRS or the opinion of
Wachtell, Lipton , Rosen & Katz, counsel to NYSE, dated the Closing Date, in either case to the effect that (i) the NYSE Corporation Merger will qualify as a reorganization within the
_____________
Wachtell,
Lipton – by facsimile:
(a) If
to NYSE, to:
New
York Stock Exchange, Inc.
11 Wall Street
6th Floor
New York, NY 10005
Attention: Richard P. Bernard, Esq.
with
a copy to:
Wachtell,
Lipton , Rosen & Katz
51 West 52nd Street
New York, NY 10019
Tel: (212) 403-1000
Fax: (212) 403-2000
Attention: David C. Karp, Esq.
(b) If
to Archipelago, to:
_____________
Wachtell,
Lipton – by facsimile:
(a) If
to NYSE, to:
New
York Stock Exchange, Inc.
11 Wall Street 6th Floor
New York, NY 10005
Attention: Richard P. Bernard, Esq.
with
a copy to:
Wachtell,
Lipton , Rosen & Katz
51 West 52nd Street
New York, NY 10019
Tel: (212) 403-1000
Fax: (212) 403-2000
Attention: David C. Karp, Esq.
(b) If
to the Stockholder,
_____________
Wachtell,
Lipton – by facsimile:
(a) If
to NYSE, to:
New
York Stock Exchange, Inc.
11 Wall Street 6th Floor
New York, NY 10005
Attention: Richard P. Bernard, Esq.
with
a copy to:
Wachtell,
Lipton , Rosen & Katz
51 West 52nd Street
New York, NY 10019
Tel: (212) 403-1000
Fax: (212) 403-2000
Attention: David C. Karp, Esq.
(b) If
to the Stockholder,
_____________
dt 1653391
|
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Agreement and Plan of Merger (251K)
Doc #1655830: Click preview link for longer preview.
<DESCRIPTION>AGREEMENT AND PLAN OF MERGER
<TEXT>
<PAGE>
AGREEMENT AND PLAN OF MERGER
This AGREEMENT AND PLAN OF MERGER (this "Agreement") is entered into as of
October 3, 2005, by and among Dex Media, Inc., a Delaware corporation (the
"Company"), R.H. Donnelley Corporation, a Delaware corporation ("Parent"), and
Forward Acquisition Corp., a Delaware corporation and wholly owned subsidiary of
Parent ("Merger . . .
1655830
|
Goldman Sachs
As referenced in this Agreement and Plan of Merger:
Goldman Sachs Group, – providing for certain rights of the Company Sponsors;
F. In connection with the parties entering into this Agreement, Parent,
R.H. Donnelley, Inc. and certain investment partnerships affiliated with The
Goldman Sachs Group, Inc. (collectively, the "GS Funds") are entering into an
agreement pursuant to which, among other things, the GS Funds have agreed to
vote in favor of the issuance of
_____________
dt 1681970
;
R.H. Donnelley
As referenced in this Agreement and Plan of Merger:
R.H. Donnelley, Inc – agreements (the "Sponsor Stockholders Agreements"), effective as of
the Effective Time, providing for certain rights of the Company Sponsors;
F. In connection with the parties entering into this Agreement, Parent,
R.H. Donnelley, Inc . and certain investment partnerships affiliated with The
Goldman Sachs Group, Inc. (collectively, the "GS Funds") are entering into an
agreement pursuant to which, among other things, the GS Funds
_____________
R.H. Donnelley Inc – the GS Funds in accordance with the terms and subject to the conditions of
the Stock Purchase and Support Agreement, dated as of October 3, 2005, by and
among Parent, R.H. Donnelley Inc . and the Stockholders of Parent listed on
Schedule A attached thereto, as it may be amended from time to time (the
"Redemption Agreement"). Notwithstanding anything to the contrary in
_____________
dt 1649105
;
|
IBEW
As referenced in this Agreement and Plan of Merger:
International Brotherhood of Electrical Workers, – of
the Company, Parent, (iii) with or to a labor union or guild (including any
collective bargaining agreement) except for the Agreement, effective as of May
16, 1998, between the International Brotherhood of Electrical Workers, AFL-CIO,
Local 1269 and the Company, and the Agreement for Clerical, Production and Sales
Employees, effective October 16, 2003, between the Communications Workers of
America and Dex Media
_____________
dt 1675236
;
Lehman Brothers
As referenced in this Agreement and Plan of Merger:
Lehman Brothers Inc – or finder or
incurred any liability for any broker's fees, commissions or finder's fees in
connection with the Merger or related transactions contemplated by this
Agreement, other than Lehman Brothers Inc . and Merrill Lynch & Co. (the
"Company's Advisors"), which firms the Company retained pursuant to engagement
letters, copies of which have been provided to Parent.
3.8 Absence
_____________
Lehman Brothers Inc – qualifying as a "reorganization" within the
meaning of Section 368(a) of the Code.
3.22 Opinions. Prior to the execution of this Agreement, the Company has
received opinions from Lehman Brothers Inc . and Merrill Lynch & Co., copies of
which have been or will promptly be provided to Parent, to the effect that as of
the date thereof and based upon
_____________
dt 1679706
;
Wachovia Bank
As referenced in this Agreement and Plan of Merger:
Wachovia
Bank, N.A. – not result in the ability of
any Person to exercise any "Rights" under the Rights Agreement (the "Company
Rights Agreement"), dated as of July 27, 2004, between the Company and Wachovia
Bank, N.A. , (ii) neither Parent nor any of its affiliates is or will become an
"Acquiring Person" under the Company Rights Agreement, (iii) neither a
"Distribution Date" or "Shares Acquisition Date"
_____________
dt 1652593
|
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Agreement and Plan of Merger
Agreement and Plan of Merger (251K)
Doc #1658987: Click preview link for longer preview.
<DESCRIPTION>AGREEMENT AND PLAN OF MERGER
<TEXT>
<PAGE>
AGREEMENT AND PLAN OF MERGER
This AGREEMENT AND PLAN OF MERGER (this "Agreement") is entered into as of
October 3, 2005, by and among Dex Media, Inc., a Delaware corporation (the
"Company"), R.H. Donnelley Corporation, a Delaware corporation ("Parent"), and
Forward Acquisition Corp., a Delaware corporation and wholly owned subsidiary of
Parent ("Merger . . .
1658987
|
Goldman Sachs
As referenced in this Agreement and Plan of Merger:
Goldman Sachs Group, – providing for certain rights of the Company Sponsors;
F. In connection with the parties entering into this Agreement, Parent,
R.H. Donnelley, Inc. and certain investment partnerships affiliated with The
Goldman Sachs Group, Inc. (collectively, the "GS Funds") are entering into an
agreement pursuant to which, among other things, the GS Funds have agreed to
vote in favor of the issuance of
_____________
dt 1681971
;
R.H. Donnelley
As referenced in this Agreement and Plan of Merger:
R.H. Donnelley, Inc – agreements (the "Sponsor Stockholders Agreements"), effective as of
the Effective Time, providing for certain rights of the Company Sponsors;
F. In connection with the parties entering into this Agreement, Parent,
R.H. Donnelley, Inc . and certain investment partnerships affiliated with The
Goldman Sachs Group, Inc. (collectively, the "GS Funds") are entering into an
agreement pursuant to which, among other things, the GS Funds
_____________
R.H. Donnelley Inc – the GS Funds in accordance with the terms and subject to the conditions of
the Stock Purchase and Support Agreement, dated as of October 3, 2005, by and
among Parent, R.H. Donnelley Inc . and the Stockholders of Parent listed on
Schedule A attached thereto, as it may be amended from time to time (the
"Redemption Agreement"). Notwithstanding anything to the contrary in
_____________
dt 1649106
;
|
IBEW
As referenced in this Agreement and Plan of Merger:
International Brotherhood of Electrical Workers, – of
the Company, Parent, (iii) with or to a labor union or guild (including any
collective bargaining agreement) except for the Agreement, effective as of May
16, 1998, between the International Brotherhood of Electrical Workers, AFL-CIO,
Local 1269 and the Company, and the Agreement for Clerical, Production and Sales
Employees, effective October 16, 2003, between the Communications Workers of
America and Dex Media
_____________
dt 1675238
;
Lehman Brothers
As referenced in this Agreement and Plan of Merger:
Lehman Brothers Inc – or finder or
incurred any liability for any broker's fees, commissions or finder's fees in
connection with the Merger or related transactions contemplated by this
Agreement, other than Lehman Brothers Inc . and Merrill Lynch & Co. (the
"Company's Advisors"), which firms the Company retained pursuant to engagement
letters, copies of which have been provided to Parent.
3.8 Absence
_____________
Lehman Brothers Inc – qualifying as a "reorganization" within the
meaning of Section 368(a) of the Code.
3.22 Opinions. Prior to the execution of this Agreement, the Company has
received opinions from Lehman Brothers Inc . and Merrill Lynch & Co., copies of
which have been or will promptly be provided to Parent, to the effect that as of
the date thereof and based upon
_____________
dt 1679711
;
Wachovia Bank
As referenced in this Agreement and Plan of Merger:
Wachovia
Bank, N.A. – not result in the ability of
any Person to exercise any "Rights" under the Rights Agreement (the "Company
Rights Agreement"), dated as of July 27, 2004, between the Company and Wachovia
Bank, N.A. , (ii) neither Parent nor any of its affiliates is or will become an
"Acquiring Person" under the Company Rights Agreement, (iii) neither a
"Distribution Date" or "Shares Acquisition Date"
_____________
dt 1652594
|
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Agreement and Plan of Merger (251K)
Doc #1659051: Click preview link for longer preview.
<DESCRIPTION>AGREEMENT AND PLAN OF MERGER
<TEXT>
<PAGE>
AGREEMENT AND PLAN OF MERGER
This AGREEMENT AND PLAN OF MERGER (this "Agreement") is entered into as of
October 3, 2005, by and among Dex Media, Inc., a Delaware corporation (the
"Company"), R.H. Donnelley Corporation, a Delaware corporation ("Parent"), and
Forward Acquisition Corp., a Delaware corporation and wholly owned subsidiary of
Parent ("Merger . . .
1659051
|
Goldman Sachs
As referenced in this Agreement and Plan of Merger:
Goldman Sachs Group, – providing for certain rights of the Company Sponsors;
F. In connection with the parties entering into this Agreement, Parent,
R.H. Donnelley, Inc. and certain investment partnerships affiliated with The
Goldman Sachs Group, Inc. (collectively, the "GS Funds") are entering into an
agreement pursuant to which, among other things, the GS Funds have agreed to
vote in favor of the issuance of
_____________
dt 1681972
;
R.H. Donnelley
As referenced in this Agreement and Plan of Merger:
R.H. Donnelley, Inc – agreements (the "Sponsor Stockholders Agreements"), effective as of
the Effective Time, providing for certain rights of the Company Sponsors;
F. In connection with the parties entering into this Agreement, Parent,
R.H. Donnelley, Inc . and certain investment partnerships affiliated with The
Goldman Sachs Group, Inc. (collectively, the "GS Funds") are entering into an
agreement pursuant to which, among other things, the GS Funds
_____________
R.H. Donnelley Inc – the GS Funds in accordance with the terms and subject to the conditions of
the Stock Purchase and Support Agreement, dated as of October 3, 2005, by and
among Parent, R.H. Donnelley Inc . and the Stockholders of Parent listed on
Schedule A attached thereto, as it may be amended from time to time (the
"Redemption Agreement"). Notwithstanding anything to the contrary in
_____________
dt 1649107
;
|
IBEW
As referenced in this Agreement and Plan of Merger:
International Brotherhood of Electrical Workers, – of
the Company, Parent, (iii) with or to a labor union or guild (including any
collective bargaining agreement) except for the Agreement, effective as of May
16, 1998, between the International Brotherhood of Electrical Workers, AFL-CIO,
Local 1269 and the Company, and the Agreement for Clerical, Production and Sales
Employees, effective October 16, 2003, between the Communications Workers of
America and Dex Media
_____________
dt 1675239
;
Lehman Brothers
As referenced in this Agreement and Plan of Merger:
Lehman Brothers Inc – or finder or
incurred any liability for any broker's fees, commissions or finder's fees in
connection with the Merger or related transactions contemplated by this
Agreement, other than Lehman Brothers Inc . and Merrill Lynch & Co. (the
"Company's Advisors"), which firms the Company retained pursuant to engagement
letters, copies of which have been provided to Parent.
3.8 Absence
_____________
Lehman Brothers Inc – qualifying as a "reorganization" within the
meaning of Section 368(a) of the Code.
3.22 Opinions. Prior to the execution of this Agreement, the Company has
received opinions from Lehman Brothers Inc . and Merrill Lynch & Co., copies of
which have been or will promptly be provided to Parent, to the effect that as of
the date thereof and based upon
_____________
dt 1679712
;
Wachovia Bank
As referenced in this Agreement and Plan of Merger:
Wachovia
Bank, N.A. – not result in the ability of
any Person to exercise any "Rights" under the Rights Agreement (the "Company
Rights Agreement"), dated as of July 27, 2004, between the Company and Wachovia
Bank, N.A. , (ii) neither Parent nor any of its affiliates is or will become an
"Acquiring Person" under the Company Rights Agreement, (iii) neither a
"Distribution Date" or "Shares Acquisition Date"
_____________
dt 1652595
|
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Agreement and Plan of Merger
Agreement and Plan of Merger (251K)
Doc #1659395: Click preview link for longer preview.
<DESCRIPTION>AGREEMENT AND PLAN OF MERGER
<TEXT>
<PAGE>
AGREEMENT AND PLAN OF MERGER
This AGREEMENT AND PLAN OF MERGER (this "Agreement") is entered into as of
October 3, 2005, by and among Dex Media, Inc., a Delaware corporation (the
"Company"), R.H. Donnelley Corporation, a Delaware corporation ("Parent"), and
Forward Acquisition Corp., a Delaware corporation and wholly owned subsidiary of
Parent ("Merger . . .
1659395
|
Goldman Sachs
As referenced in this Agreement and Plan of Merger:
Goldman Sachs Group, – providing for certain rights of the Company Sponsors;
F. In connection with the parties entering into this Agreement, Parent,
R.H. Donnelley, Inc. and certain investment partnerships affiliated with The
Goldman Sachs Group, Inc. (collectively, the "GS Funds") are entering into an
agreement pursuant to which, among other things, the GS Funds have agreed to
vote in favor of the issuance of
_____________
dt 1681973
;
R.H. Donnelley
As referenced in this Agreement and Plan of Merger:
R.H. Donnelley, Inc – agreements (the "Sponsor Stockholders Agreements"), effective as of
the Effective Time, providing for certain rights of the Company Sponsors;
F. In connection with the parties entering into this Agreement, Parent,
R.H. Donnelley, Inc . and certain investment partnerships affiliated with The
Goldman Sachs Group, Inc. (collectively, the "GS Funds") are entering into an
agreement pursuant to which, among other things, the GS Funds
_____________
R.H. Donnelley Inc – the GS Funds in accordance with the terms and subject to the conditions of
the Stock Purchase and Support Agreement, dated as of October 3, 2005, by and
among Parent, R.H. Donnelley Inc . and the Stockholders of Parent listed on
Schedule A attached thereto, as it may be amended from time to time (the
"Redemption Agreement"). Notwithstanding anything to the contrary in
_____________
dt 1649108
;
|
IBEW
As referenced in this Agreement and Plan of Merger:
International Brotherhood of Electrical Workers, – of
the Company, Parent, (iii) with or to a labor union or guild (including any
collective bargaining agreement) except for the Agreement, effective as of May
16, 1998, between the International Brotherhood of Electrical Workers, AFL-CIO,
Local 1269 and the Company, and the Agreement for Clerical, Production and Sales
Employees, effective October 16, 2003, between the Communications Workers of
America and Dex Media
_____________
dt 1675242
;
Lehman Brothers
As referenced in this Agreement and Plan of Merger:
Lehman Brothers Inc – or finder or
incurred any liability for any broker's fees, commissions or finder's fees in
connection with the Merger or related transactions contemplated by this
Agreement, other than Lehman Brothers Inc . and Merrill Lynch & Co. (the
"Company's Advisors"), which firms the Company retained pursuant to engagement
letters, copies of which have been provided to Parent.
3.8 Absence
_____________
Lehman Brothers Inc – qualifying as a "reorganization" within the
meaning of Section 368(a) of the Code.
3.22 Opinions. Prior to the execution of this Agreement, the Company has
received opinions from Lehman Brothers Inc . and Merrill Lynch & Co., copies of
which have been or will promptly be provided to Parent, to the effect that as of
the date thereof and based upon
_____________
dt 1679715
;
Wachovia Bank
As referenced in this Agreement and Plan of Merger:
Wachovia
Bank, N.A. – not result in the ability of
any Person to exercise any "Rights" under the Rights Agreement (the "Company
Rights Agreement"), dated as of July 27, 2004, between the Company and Wachovia
Bank, N.A. , (ii) neither Parent nor any of its affiliates is or will become an
"Acquiring Person" under the Company Rights Agreement, (iii) neither a
"Distribution Date" or "Shares Acquisition Date"
_____________
dt 1652596
|
Preview
Full Doc
| 2005 |
Agreement and Plan of Merger
Agreement and Plan of Merger (251K)
Doc #1659591: Click preview link for longer preview.
AGREEMENT AND PLAN OF MERGER
This AGREEMENT AND PLAN OF MERGER (this "Agreement") is entered into as of
October 3, 2005, by and among Dex Media, Inc., a Delaware corporation (the
"Company"), R.H. Donnelley Corporation, a Delaware corporation ("Parent"), and
Forward Acquisition Corp., a Delaware corporation and wholly owned subsidiary of
Parent ("Merger Sub").
RECITALS:
A. The Boards of Directors of the Company, Parent and Merger Sub have
determined that it is in the . . .
1659591
|
Goldman Sachs
As referenced in this Agreement and Plan of Merger:
Goldman Sachs Group, – providing for certain rights of the Company Sponsors;
F. In connection with the parties entering into this Agreement, Parent,
R.H. Donnelley, Inc. and certain investment partnerships affiliated with The
Goldman Sachs Group, Inc. (collectively, the "GS Funds") are entering into an
agreement pursuant to which, among other things, the GS Funds have agreed to
vote in favor of the issuance of
_____________
dt 1681974
;
R.H. Donnelley
As referenced in this Agreement and Plan of Merger:
R.H. Donnelley, Inc – agreements (the "Sponsor Stockholders Agreements"), effective as of
the Effective Time, providing for certain rights of the Company Sponsors;
F. In connection with the parties entering into this Agreement, Parent,
R.H. Donnelley, Inc . and certain investment partnerships affiliated with The
Goldman Sachs Group, Inc. (collectively, the "GS Funds") are entering into an
agreement pursuant to which, among other things, the GS Funds
_____________
R.H. Donnelley Inc – the GS Funds in accordance with the terms and subject to the conditions of
the Stock Purchase and Support Agreement, dated as of October 3, 2005, by and
among Parent, R.H. Donnelley Inc . and the Stockholders of Parent listed on
Schedule A attached thereto, as it may be amended from time to time (the
"Redemption Agreement"). Notwithstanding anything to the contrary in
_____________
dt 1649109
;
|
IBEW
As referenced in this Agreement and Plan of Merger:
International Brotherhood of Electrical Workers, – of
the Company, Parent, (iii) with or to a labor union or guild (including any
collective bargaining agreement) except for the Agreement, effective as of May
16, 1998, between the International Brotherhood of Electrical Workers, AFL-CIO,
Local 1269 and the Company, and the Agreement for Clerical, Production and Sales
Employees, effective October 16, 2003, between the Communications Workers of
America and Dex Media
_____________
dt 1675243
;
Lehman Brothers
As referenced in this Agreement and Plan of Merger:
Lehman Brothers Inc – or finder or
incurred any liability for any broker's fees, commissions or finder's fees in
connection with the Merger or related transactions contemplated by this
Agreement, other than Lehman Brothers Inc . and Merrill Lynch & Co. (the
"Company's Advisors"), which firms the Company retained pursuant to engagement
letters, copies of which have been provided to Parent.
3.8 Absence
_____________
Lehman Brothers Inc – qualifying as a "reorganization" within the
meaning of Section 368(a) of the Code.
3.22 Opinions. Prior to the execution of this Agreement, the Company has
received opinions from Lehman Brothers Inc . and Merrill Lynch & Co., copies of
which have been or will promptly be provided to Parent, to the effect that as of
the date thereof and based upon
_____________
dt 1679716
;
Wachovia Bank
As referenced in this Agreement and Plan of Merger:
Wachovia
Bank, N.A. – not result in the ability of
any Person to exercise any "Rights" under the Rights Agreement (the "Company
Rights Agreement"), dated as of July 27, 2004, between the Company and Wachovia
Bank, N.A. , (ii) neither Parent nor any of its affiliates is or will become an
"Acquiring Person" under the Company Rights Agreement, (iii) neither a
"Distribution Date" or "Shares Acquisition Date"
_____________
dt 1652597
|
Preview
Full Doc
| 2005 |
Agreement and Plan of Merger
Agreement and Plan of Merger (251K)
Doc #1659604: Click preview link for longer preview.
AGREEMENT AND PLAN OF MERGER
This AGREEMENT AND PLAN OF MERGER (this "Agreement") is entered into as of
October 3, 2005, by and among Dex Media, Inc., a Delaware corporation (the
"Company"), R.H. Donnelley Corporation, a Delaware corporation ("Parent"), and
Forward Acquisition Corp., a Delaware corporation and wholly owned subsidiary of
Parent ("Merger Sub").
RECITALS:
A. The Boards of Directors of the Company, Parent and Merger Sub have
determined that it is in the . . .
1659604
|
Goldman Sachs
As referenced in this Agreement and Plan of Merger:
Goldman Sachs Group, – providing for certain rights of the Company Sponsors;
F. In connection with the parties entering into this Agreement, Parent,
R.H. Donnelley, Inc. and certain investment partnerships affiliated with The
Goldman Sachs Group, Inc. (collectively, the "GS Funds") are entering into an
agreement pursuant to which, among other things, the GS Funds have agreed to
vote in favor of the issuance of
_____________
dt 1681975
;
R.H. Donnelley
As referenced in this Agreement and Plan of Merger:
R.H. Donnelley, Inc – agreements (the "Sponsor Stockholders Agreements"), effective as of
the Effective Time, providing for certain rights of the Company Sponsors;
F. In connection with the parties entering into this Agreement, Parent,
R.H. Donnelley, Inc . and certain investment partnerships affiliated with The
Goldman Sachs Group, Inc. (collectively, the "GS Funds") are entering into an
agreement pursuant to which, among other things, the GS Funds
_____________
R.H. Donnelley Inc – the GS Funds in accordance with the terms and subject to the conditions of
the Stock Purchase and Support Agreement, dated as of October 3, 2005, by and
among Parent, R.H. Donnelley Inc . and the Stockholders of Parent listed on
Schedule A attached thereto, as it may be amended from time to time (the
"Redemption Agreement"). Notwithstanding anything to the contrary in
_____________
dt 1649110
;
|
IBEW
As referenced in this Agreement and Plan of Merger:
International Brotherhood of Electrical Workers, – of
the Company, Parent, (iii) with or to a labor union or guild (including any
collective bargaining agreement) except for the Agreement, effective as of May
16, 1998, between the International Brotherhood of Electrical Workers, AFL-CIO,
Local 1269 and the Company, and the Agreement for Clerical, Production and Sales
Employees, effective October 16, 2003, between the Communications Workers of
America and Dex Media
_____________
dt 1675244
;
Lehman Brothers
As referenced in this Agreement and Plan of Merger:
Lehman Brothers Inc – or finder or
incurred any liability for any broker's fees, commissions or finder's fees in
connection with the Merger or related transactions contemplated by this
Agreement, other than Lehman Brothers Inc . and Merrill Lynch & Co. (the
"Company's Advisors"), which firms the Company retained pursuant to engagement
letters, copies of which have been provided to Parent.
3.8 Absence
_____________
Lehman Brothers Inc – qualifying as a "reorganization" within the
meaning of Section 368(a) of the Code.
3.22 Opinions. Prior to the execution of this Agreement, the Company has
received opinions from Lehman Brothers Inc . and Merrill Lynch & Co., copies of
which have been or will promptly be provided to Parent, to the effect that as of
the date thereof and based upon
_____________
dt 1679717
;
Wachovia Bank
As referenced in this Agreement and Plan of Merger:
Wachovia
Bank, N.A. – not result in the ability of
any Person to exercise any "Rights" under the Rights Agreement (the "Company
Rights Agreement"), dated as of July 27, 2004, between the Company and Wachovia
Bank, N.A. , (ii) neither Parent nor any of its affiliates is or will become an
"Acquiring Person" under the Company Rights Agreement, (iii) neither a
"Distribution Date" or "Shares Acquisition Date"
_____________
dt 1652598
|
Preview
Full Doc
| 2007 |
Agreement and Plan of Merger
Agreement and Plan of Merger (203K)
Doc #3237774: Click preview link for longer preview.
EXECUTION VERSION
AGREEMENT AND PLAN OF MERGER
among
MARLIN HOLDCO LP,
MARLIN MERGECO INC.
and
WASTE INDUSTRIES USA, INC.
Dated as of December 17, 2007
TABLE OF CONTENTS
Page
Article I
THE MERGER
Section 1.1
The Merger
1
Section 1.2
Closing
1
Section 1.3
Effective Time
2
. . .
3237774
| | |
| Full Doc
| 2004 |
Agreement as to Expenses and Liabilities
Agreement as to Expenses and Liabilities (8K)
Doc #314288: This document is immediately available for purchase, but does not have a preview available for viewing.
314288
|
Goldman Sachs
As referenced in this Agreement as to Expenses and Liabilities:
Goldman Sachs Group, – EXHIBIT 4.3
AGREEMENT AS TO EXPENSES AND LIABILITIES
AGREEMENT AS TO EXPENSES AND LIABILITIES, dated as of February 20, 2004, between The Goldman Sachs Group, Inc., a Delaware corporation, in its capacity as Holder (as defined in the Trust Agreement referred to below) of the Common Securities
_____________
Goldman Sachs Group, – Trust).
Witnesseth:
Whereas, the Issuer Trust intends to issue its Common Securities (the Common Securities) to and receive Junior Subordinated Debentures from The Goldman Sachs Group, Inc. and to issue and sell 6.345% Capital Securities (the Capital Securities) with such powers, preferences and special rights and restrictions
_____________
Goldman Sachs Group, – be deemed given when mailed or upon receipt of an answer-back, if sent by telex):
Goldman Sachs Capital I
c/o The Goldman Sachs Group, Inc.
85 Broad Street
New York, NY 10004
Facsimile No.: 212-902-3325
Attention: Corporate Treasury Debt Administration
The Goldman Sachs Group,
_____________
Goldman Sachs Group, – The Goldman Sachs Group, Inc.
85 Broad Street
New York, NY 10004
Facsimile No.: 212-902-3325
Attention: Corporate Treasury Debt Administration
The Goldman Sachs Group, Inc.
85 Broad Street
New York, NY 10004
Facsimile No.: 212-902-3325
Attention: Corporate Treasury Debt Administration
Section 2.4 Governing
_____________
Goldman Sachs Group, – NEW YORK.
-4-
EXHIBIT 4.3
In Witness Whereof, the undersigned have executed this Agreement as of the date first above written.
The Goldman Sachs Group, Inc.
By:
/s/ Veronica Foo
Name: Veronica Foo
Title: Assistant Treasurer
Goldman Sachs Capital I
By:
/s/ Veronica Foo
Name: Veronica Foo
_____________
dt 377162
| |
| Full Doc
| 2004 |
Agreement as to Expenses and Liabilities [Form]
Agreement as to Expenses and Liabilities [Form] (9K)
Doc #314338: This document is immediately available for purchase, but does not have a preview available for viewing.
{DOCUMENT}
{TYPE}EX-4.18
{SEQUENCE}18
{FILENAME}y93279s3exv4w18.txt
{DESCRIPTION}FORM OF AGMT AS TO EXPENSES & LIABILITIES-GS CAP I
{TEXT}
{PAGE}
Exhibit 4.18
[FORM OF]
AGREEMENT AS TO EXPENSES AND LIABILITIES
AGREEMENT AS TO EXPENSES AND LIABILITIES, dated as of [ ], between The
Goldman Sachs Group, Inc., a Delaware corporation, in its capacity as Holder (as
defined in the Trust Agreement referred to below) of the Common Securities
referred to below (in such capacity, and together with its successors in such
capacity, the "Common Securityholder"), and Goldman Sachs Capital I, a Delaware
statutory trust (the "Issuer Trust").
W I T N E S S E T H :
WHEREAS, the Issuer Trust intends to issue its Common Securities (the
"Common Securities") to and receive Subordinated Debentures from The Goldman
Sachs Group, Inc. and to issue and sell [ ]% Capital Securities (the "Capital
Securities") with such powers, preferences and special rights and restrictions
as are set forth in the Amended and Restated Trust Agreement of the Issuer
Trust, dated as of [ ], as the same may be amended from time to time (the
"Trust Agreement"); and
WHEREAS, the Common Securityholder will own all of the Common
Securities of the Issuer Trust;
WHEREAS, terms used but not defined herein have the meanings set
forth in the Trust Agreement;
NOW, THEREFORE, for good and valid consideration, the receipt and
sufficiency of which are hereby acknowledged:
ARTICLE 1.
Section 1.1 Guarantee by the Common Securityholder.
Subject to the terms and conditions hereof, the Common Securityholder
hereby irrevocably and unconditionally guarantees to each person or entity to
whom the Issuer Trust is now or hereafter becomes indebted or liable (the
"Beneficiaries") the full payment, when and as due, of any and all Obligations
(as hereinafter defined) to such Beneficiaries. As used herein, "Obligations"
means any costs, expenses or liabilities of the Issuer Trust, other than
obligations of the Issuer Trust to pay to holders of any Trust Securities the
amounts due to such holders pursuant to the terms of the Trust Securities. This
Agreement is intended to be for the benefit of, and to be enforceable by, all
such Beneficiaries, whether or not such Beneficiaries have received notice
hereof.
Section 1.2 Subordination of Guarantee.
The guarantee and other liabilities and obligations of the Common
Securityholder under this Agreement shall constitute unsecured obligations of
the Common Securityholder and shall rank subordinate and junior in right of
payment to all Senior
{PAGE}
Debt (as defined in the Indenture) of the Common Securityholder to the extent
and in the manner set forth in the Indenture with respect to the Subordinated
Debentures, and the provisions of Article XIV of the Indenture will apply,
mutatis mutandis, to the obligations of the Common Securityholder hereunder. The
314338
|
Goldman Sachs
As referenced in this Agreement as to Expenses and Liabilities [Form]:
Goldman Sachs Group, – PAGE}
Exhibit 4.18
[FORM OF]
AGREEMENT AS TO EXPENSES AND LIABILITIES
AGREEMENT AS TO EXPENSES AND LIABILITIES, dated as of [ ], between The
Goldman Sachs Group, Inc., a Delaware corporation, in its capacity as Holder (as
defined in the Trust Agreement referred to below) of the Common Securities
_____________
Goldman
Sachs Group, – E T H :
WHEREAS, the Issuer Trust intends to issue its Common Securities (the
"Common Securities") to and receive Subordinated Debentures from The Goldman
Sachs Group, Inc. and to issue and sell [ ]% Capital Securities (the "Capital
Securities") with such powers, preferences and special rights and restrictions
as are
_____________
Goldman Sachs Group, – be deemed given
when mailed or upon receipt of an answer-back, if sent by telex):
Goldman Sachs Capital I
c/o The Goldman Sachs Group, Inc.
85 Broad Street
New York, NY 10004
Facsimile No.:
Attention:
The Goldman Sachs Group, Inc.
85 Broad Street
New York, NY
_____________
Goldman Sachs Group, – telex):
Goldman Sachs Capital I
c/o The Goldman Sachs Group, Inc.
85 Broad Street
New York, NY 10004
Facsimile No.:
Attention:
The Goldman Sachs Group, Inc.
85 Broad Street
New York, NY 10004
Facsimile No.:
Attention:
Section 2.4 Governing Law.
THIS AGREEMENT SHALL BE GOVERNED BY
_____________
GOLDMAN SACHS GROUP, – STATE OF NEW YORK.
-4-
{PAGE}
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date first above written.
THE GOLDMAN SACHS GROUP, INC.
By:________________________
Name:
Title:
GOLDMAN SACHS CAPITAL I
By:_________________________
Name:
Administrative Trustee
-5-
{/TEXT}
{/DOCUMENT}
_____________
dt 377326
;
|
BNY
As referenced in this Agreement as to Expenses and Liabilities [Form]:
Bank of New York, – in respect of the Capital Securities, under any Obligation, under the
Guarantee Agreement dated the date hereof by the Common Securityholder and The
Bank of New York, as guarantee trustee, or under this Agreement for any reason
whatsoever.
This Agreement shall be continuing, irrevocable, unconditional and
absolute.
Section 1.
_____________
dt 572866
|
| Full Doc
| 2004 |
Agreement as to Expenses and Liabilities [Form]
Agreement as to Expenses and Liabilities [Form] (9K)
Doc #314339: This document is immediately available for purchase, but does not have a preview available for viewing.
{DOCUMENT}
{TYPE}EX-4.19
{SEQUENCE}19
{FILENAME}y93279s3exv4w19.txt
{DESCRIPTION}FORM OF AGMT EXPENSES/LIABILITIES-GS CAP II
{TEXT}
{PAGE}
Exhibit 4.19
[FORM OF]
AGREEMENT AS TO EXPENSES AND LIABILITIES
AGREEMENT AS TO EXPENSES AND LIABILITIES, dated as of [ ], between
The Goldman Sachs Group, Inc., a Delaware corporation, in its capacity as Holder
(as defined in the Trust Agreement referred to below) of the Common Securities
referred to below (in such capacity, and together with its successors in such
capacity, the "Common Securityholder"), and Goldman Sachs Capital II, a Delaware
statutory trust (the "Issuer Trust").
W I T N E S S E T H :
WHEREAS, the Issuer Trust intends to issue its Common Securities (the
"Common Securities") to and receive Subordinated Debentures from The Goldman
Sachs Group, Inc. and to issue and sell [ ]% Capital Securities (the "Capital
Securities") with such powers, preferences and special rights and restrictions
as are set forth in the Amended and Restated Trust Agreement of the Issuer
Trust, dated as of [ ], as the same may be amended from time to time (the
"Trust Agreement"); and
WHEREAS, the Common Securityholder will own all of the Common Securities
of the Issuer Trust;
WHEREAS, terms used but not defined herein have the meanings set forth in
the Trust Agreement;
NOW, THEREFORE, for good and valid consideration, the receipt and
sufficiency of which are hereby acknowledged:
ARTICLE 1.
Section 1.1 Guarantee by the Common Securityholder.
Subject to the terms and conditions hereof, the Common Securityholder
hereby irrevocably and unconditionally guarantees to each person or entity to
whom the Issuer Trust is now or hereafter becomes indebted or liable (the
"Beneficiaries") the full payment, when and as due, of any and all Obligations
(as hereinafter defined) to such Beneficiaries. As used herein, "Obligations"
means any costs, expenses or liabilities of the Issuer Trust, other than
obligations of the Issuer Trust to pay to holders of any Trust Securities the
amounts due to such holders pursuant to the terms of the Trust Securities. This
Agreement is intended to be for the benefit of, and to be enforceable by, all
such Beneficiaries, whether or not such Beneficiaries have received notice
hereof.
Section 1.2 Subordination of Guarantee.
The guarantee and other liabilities and obligations of the Common
Securityholder under this Agreement shall constitute unsecured obligations of
the Common Securityholder and shall rank subordinate and junior in right of
payment to all Senior
{PAGE}
Debt (as defined in the Indenture) of the Common Securityholder to the extent
and in the manner set forth in the Indenture with respect to the Subordinated
Debentures, and the provisions of Article XIV of the Indenture will apply,
mutatis mutandis, to the obligations of the Common Securityholder hereunder. The
314339
|
Goldman Sachs
As referenced in this Agreement as to Expenses and Liabilities [Form]:
Goldman Sachs Group, – PAGE}
Exhibit 4.19
[FORM OF]
AGREEMENT AS TO EXPENSES AND LIABILITIES
AGREEMENT AS TO EXPENSES AND LIABILITIES, dated as of [ ], between
The Goldman Sachs Group, Inc., a Delaware corporation, in its capacity as Holder
(as defined in the Trust Agreement referred to below) of the Common Securities
_____________
Goldman
Sachs Group, – E T H :
WHEREAS, the Issuer Trust intends to issue its Common Securities (the
"Common Securities") to and receive Subordinated Debentures from The Goldman
Sachs Group, Inc. and to issue and sell [ ]% Capital Securities (the "Capital
Securities") with such powers, preferences and special rights and restrictions
as are
_____________
Goldman Sachs Group, – be deemed given
when mailed or upon receipt of an answer-back, if sent by telex):
Goldman Sachs Capital II
c/o The Goldman Sachs Group, Inc.
85 Broad Street
New York, NY 10004
Facsimile No.:
Attention:
The Goldman Sachs Group, Inc.
85 Broad Street
New York, NY
_____________
Goldman Sachs Group, – telex):
Goldman Sachs Capital II
c/o The Goldman Sachs Group, Inc.
85 Broad Street
New York, NY 10004
Facsimile No.:
Attention:
The Goldman Sachs Group, Inc.
85 Broad Street
New York, NY 10004
Facsimile No.:
Attention:
Section 2.4 Governing Law.
THIS AGREEMENT SHALL BE GOVERNED BY
_____________
GOLDMAN SACHS GROUP, – STATE OF NEW YORK.
-4-
{PAGE}
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date first above written.
THE GOLDMAN SACHS GROUP, INC.
By:________________________
Name:
Title:
GOLDMAN SACHS CAPITAL II
By:_________________________
Name:
Administrative Trustee
-5-
{/TEXT}
{/DOCUMENT}
_____________
dt 377328
;
|
BNY
As referenced in this Agreement as to Expenses and Liabilities [Form]:
Bank of New York, – in respect of the Capital Securities, under any Obligation, under the
Guarantee Agreement dated the date hereof by the Common Securityholder and The
Bank of New York, as guarantee trustee, or under this Agreement for any reason
whatsoever.
This Agreement shall be continuing, irrevocable, unconditional and
absolute.
Section 1.
_____________
dt 572867
|
| Full Doc
| 2004 |
Agreement as to Expenses and Liabilities [Form]
Agreement as to Expenses and Liabilities [Form] (9K)
Doc #314340: This document is immediately available for purchase, but does not have a preview available for viewing.
{DOCUMENT}
{TYPE}EX-4.20
{SEQUENCE}20
{FILENAME}y93279s3exv4w20.txt
{DESCRIPTION}FORM OF AGMT EXPENSES/LIABILITIES-GS CAP III
{TEXT}
{PAGE}
Exhibit 4.20
[FORM OF]
AGREEMENT AS TO EXPENSES AND LIABILITIES
Agreement as to Expenses and Liabilities, dated as of [ ] , between The
Goldman Sachs Group, Inc., a Delaware corporation, in its capacity as Holder (as
defined in the Trust Agreement referred to below) of the Common Securities
referred to below (in such capacity, and together with its successors in such
capacity, the "Common Securityholder"), and Goldman Sachs Capital III, a
Delaware statutory trust (the "Issuer Trust").
W i t n e s s e t h :
Whereas, the Issuer Trust intends to issue its Common Securities (the
"Common Securities") to and receive Subordinated Debentures from The Goldman
Sachs Group, Inc. and to issue and sell [ ]% Capital Securities (the "Capital
Securities") with such powers, preferences and special rights and restrictions
as are set forth in the Amended and Restated Trust Agreement of the Issuer
Trust, dated as of [ ], as the same may be amended from time to time (the
"Trust Agreement"); and
Whereas, the Common Securityholder will own all of the Common Securities
of the Issuer Trust;
Whereas, terms used but not defined herein have the meanings set forth in
the Trust Agreement;
Now, Therefore, for good and valid consideration, the receipt and
sufficiency of which are hereby acknowledged:
ARTICLE 1.
Section 1.1 Guarantee by the Common Securityholder.
Subject to the terms and conditions hereof, the Common Securityholder
hereby irrevocably and unconditionally guarantees to each person or entity to
whom the Issuer Trust is now or hereafter becomes indebted or liable (the
"Beneficiaries") the full payment, when and as due, of any and all Obligations
(as hereinafter defined) to such Beneficiaries. As used herein, "Obligations"
means any costs, expenses or liabilities of the Issuer Trust, other than
obligations of the Issuer Trust to pay to holders of any Trust Securities the
amounts due to such holders pursuant to the terms of the Trust Securities. This
Agreement is intended to be for the benefit of, and to be enforceable by, all
such Beneficiaries, whether or not such Beneficiaries have received notice
hereof.
Section 1.2 Subordination of Guarantee.
The guarantee and other liabilities and obligations of the Common
Securityholder under this Agreement shall constitute unsecured obligations of
the Common Securityholder and shall rank subordinate and junior in right of
payment to all Senior
{PAGE}
Debt (as defined in the Indenture) of the Common Securityholder to the extent
and in the manner set forth in the Indenture with respect to the Subordinated
Debentures, and the provisions of Article XIV of the Indenture will apply,
mutatis mutandis, to the obligations of the Common Securityholder hereunder. The
314340
|
Goldman Sachs
As referenced in this Agreement as to Expenses and Liabilities [Form]:
Goldman Sachs Group, – PAGE}
Exhibit 4.20
[FORM OF]
AGREEMENT AS TO EXPENSES AND LIABILITIES
Agreement as to Expenses and Liabilities, dated as of [ ] , between The
Goldman Sachs Group, Inc., a Delaware corporation, in its capacity as Holder (as
defined in the Trust Agreement referred to below) of the Common Securities
_____________
Goldman
Sachs Group, – e t h :
Whereas, the Issuer Trust intends to issue its Common Securities (the
"Common Securities") to and receive Subordinated Debentures from The Goldman
Sachs Group, Inc. and to issue and sell [ ]% Capital Securities (the "Capital
Securities") with such powers, preferences and special rights and restrictions
as are
_____________
Goldman Sachs Group, – be deemed given
when mailed or upon receipt of an answer-back, if sent by telex):
Goldman Sachs Capital III
c/o The Goldman Sachs Group, Inc.
85 Broad Street
New York, NY 10004
Facsimile No.:
Attention:
The Goldman Sachs Group, Inc.
85 Broad Street
New York, NY
_____________
Goldman Sachs Group, – telex):
Goldman Sachs Capital III
c/o The Goldman Sachs Group, Inc.
85 Broad Street
New York, NY 10004
Facsimile No.:
Attention:
The Goldman Sachs Group, Inc.
85 Broad Street
New York, NY 10004
Facsimile No.:
Attention:
Section 2.4 Governing Law.
THIS AGREEMENT SHALL BE GOVERNED BY
_____________
GOLDMAN SACHS GROUP, – STATE OF NEW YORK.
-4-
{PAGE}
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date first above written.
THE GOLDMAN SACHS GROUP, INC.
By:________________________
Name:
Title:
GOLDMAN SACHS CAPITAL III
By:_________________________
Name:
Administrative Trustee
-5-
{/TEXT}
{/DOCUMENT}
_____________
dt 377331
;
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BNY
As referenced in this Agreement as to Expenses and Liabilities [Form]:
Bank of New York, – in respect of the Capital Securities, under any Obligation, under the
Guarantee Agreement dated the date hereof by the Common Securityholder and The
Bank of New York, as guarantee trustee, or under this Agreement for any reason
whatsoever.
This Agreement shall be continuing, irrevocable, unconditional and
absolute.
Section 1.
_____________
dt 572870
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