Agreement and Plan of Merger, dated May 23, 2005

EX-1.01 2 dex101.htm AGREEMENT AND PLAN OF MERGER, DATED MAY 23, 2005 Agreement and Plan of Merger, dated May 23, 2005

Exhibit 1.01

EXECUTION COPY

AGREEMENT AND PLAN OF MERGER

by and among

JDS UNIPHASE CORPORATION,

JDSU ACQUISITION VII, INC.,

and

ACTERNA INC.

May 23, 2005


		Page
ARTICLE 1	DEFINITIONS	2

Section 1.01	Defined Terms	2

ARTICLE 2	THE MERGER	13

Section 2.01	The Merger	13
Section 2.02	Closing and Effective Time	13
Section 2.03	Effect of the Merger	14
Section 2.04	Certificate of Incorporation; Bylaws	14
Section 2.05	Directors and Officers	14

ARTICLE 3	MERGER CONSIDERATION; CONVERSION OF SECURITIES; EXCHANGE OF CERTIFICATES	14

Section 3.01	Calculation and Payment of the Merger Consideration	14
Section 3.02	Effect on Capital Stock	15
Section 3.03	Options	16
Section 3.04	Warrants	17
Section 3.05	Payment of the Payoff Amount and Delivery of Merger Consideration	17
Section 3.06	No Liability	18
Section 3.07	Lost, Stolen and Destroyed Certificates	18
Section 3.08	Return of Merger Consideration	18
Section 3.09	Closing Cash Adjustment	19
Section 3.10	The Representative	20
Section 3.11	Illustrative Example	22

ARTICLE 4	REPRESENTATIONS AND WARRANTIES OF THE COMPANY	22

Section 4.01	Corporate Existence and Power	22
Section 4.02	Corporate Authorization	22
Section 4.03	Capitalization	23
Section 4.04	Governmental Authorization	23
Section 4.05	Noncontravention; No Required Consents	23
Section 4.06	Subsidiaries	24
Section 4.07	Financial Statements	24
Section 4.08	Absence of Certain Changes	25
Section 4.09	No Undisclosed Liabilities	25
Section 4.10	Taxes	25
Section 4.11	Properties	27
Section 4.12	Intellectual Property	28
Section 4.13	Contracts	29
Section 4.14	No Violation of Law	30
Section 4.15	Litigation	30
Section 4.16	Form S-4 and Proxy Statement	30
Section 4.17	Labor Matters	31
Section 4.18	Employee Benefit Plans	31
Section 4.19	Environmental Matters	33
Section 4.20	Affiliate Transactions	34
Section 4.21	Change of Control Payments	34
Section 4.22	Insurance	34
Section 4.23	Books and Records	34
Section 4.24	Products	34
Section 4.25	Customers, Distributors and Suppliers	35
Section 4.26	Accounts Receivable	35


		Page
Section 4.27	Inventory	35
Section 4.28	Brokers’ and Finders’ Fees	36
Section 4.29	Opinion of Financial Advisor	36
Section 4.30	Takeover Statutes	36

ARTICLE 5	REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB	36

Section 5.01	Corporate Existence and Power	36
Section 5.02	Parent Capitalization	36
Section 5.03	Ownership of Merger Sub; No Prior Activities	37
Section 5.04	Corporate Authorization	37
Section 5.05	Governmental Authorization	37
Section 5.06	Noncontravention; No Required Consents	37
Section 5.07	Litigation	38
Section 5.08	No Violation of Law	38
Section 5.09	Financing	38
Section 5.10	Form S-4 and Proxy Statement	38
Section 5.11	SEC Filings; Financial Statements	38
Section 5.12	Absence of Certain Changes or Events	39
Section 5.13	Parent Common Stock	39
Section 5.14	No Undisclosed Liabilities	39
Section 5.15	Environmental Matters	39
Section 5.16	Intellectual Property	39
Section 5.17	Ownership of Shares	40
Section 5.18	Brokers	40

ARTICLE 6	PRE-CLOSING COVENANTS	40

Section 6.01	Commercially Reasonable Best Efforts	40
Section 6.02	Company Operation of Business	41
Section 6.03	Publicity	44
Section 6.04	Access	44
Section 6.05	Notice of Developments	44
Section 6.06	Form S-4, Proxy Statement, Stockholder Meeting	44
Section 6.07	No Solicitation	46
Section 6.08	Cooperation for Payoff Amount	47
Section 6.09	Parent Conduct of Business	47
Section 6.10	Market Listing	48
Section 6.11	Accountant’s Letters	48
Section 6.12	Selling Stockholder Shelf Registration Statement	48
Section 6.13	Section 16 Approvals	51
Section 6.14	Solicitation of CPRs	51

ARTICLE 7	POST-CLOSING COVENANTS	51

Section 7.01	Employee Matters	51
Section 7.02	Directors’ and Officers’ Indemnification	52
Section 7.03	Consents and Approvals	53
Section 7.04	Tax Matters	53

ARTICLE 8	CONDITIONS TO OBLIGATION TO CLOSE	56

Section 8.01	Conditions to Obligations of Each Party Under This Agreement	56
Section 8.02	Additional Conditions to Obligations of Parent and Merger Sub	57


		Page
Section 8.03	Additional Conditions to Obligations of the Company	57

ARTICLE 9	TERMINATION	58

Section 9.01	Termination	58
Section 9.02	Effect of Termination	59

ARTICLE 10	INDEMNIFICATION	60

Section 10.01	Indemnification of Parent	60
Section 10.02	Indemnification by Parent	60
Section 10.03	Third Party Claims	60
Section 10.04	Payment of Claims	62
Section 10.05	Limitations on Indemnification	63
Section 10.06	Amendment of Representative Operating Agreement	64
Section 10.07	Exclusive Remedy	64
Section 10.08	Effect of Insurance and Other Recoveries	64
Section 10.09	No Double Recovery	64

ARTICLE 11	MISCELLANEOUS	65

Section 11.01	Expenses	65
Section 11.02	Survival of Representations and Warranties	65
Section 11.03	No Third-Party Beneficiaries	65
Section 11.04	Entire Agreement	65
Section 11.05	Incorporation of Exhibits and Schedules	65
Section 11.06	Succession and Assignment	66
Section 11.07	Counterparts and Facsimile Signatures	66
Section 11.08	Headings	66
Section 11.09	Notices	66
Section 11.10	Governing Law	67
Section 11.11	Jurisdiction; Waiver of Jury Trial	67
Section 11.12	Amendments and Waivers	67
Section 11.13	Severability	68
Section 11.14	Construction	68
Section 11.15	Acknowledgements by Parent and Merger Sub	68
Section 11.16	Specific Performance	68

Exhibits


Exhibit A		Form of Representative Operating Agreement

iii

INDEX OF DEFINED TERMS


Defined Term		Page
Accounting Arbitrator		2, 19
Acquisition Proposal		2
Actual Stock Value		58
Additional Consideration		58
Adjusted Cash Merger Consideration		2
Adjusted Parent Shares Merger Consideration		2
Adjustment Amount		2
Administrative Agent		2
Advisors		2
Affiliate		2
Affiliate Agreements		1
Affiliate Stockholders		48
Aggregate Option Cash Payment		2
Aggregate Option Stock Payment		2
Aggregate Parent Shares Closing Value		58
Agreement		1, 2
Agreement Date		2
Ancillary Documents		2
Applicable Law		2
Business Assets		2, 27
Business Day		2
Cash Merger Consideration		3, 14
Cash Percentage		3
CERCLA		3, 33
Certificate of Merger		3, 14
Certificates		3, 18
Closing		3, 13
Closing Cash		3
Closing Cash Adjustment Reserve Amount		4, 17
Closing Date		4
Code		4
Collateral Source		4, 64
Common Stock		4
Common Stockholders		4, 18
Company		4, 1
Company Balance Sheet		4, 24
Company Balance Sheet Date		4, 24
Company Budget		4, 41
Company Certificate		4
Company Disclosure Schedules		4, 22, 24
Company Financial Statements		4, 24
Company Indemnified Parties		4
Company Intellectual Property		4
Company Plan		4, 16
Company Stockholders		4
Company Subsidiary Securities		4, 24
Comparable Benefits		4
Confidentiality Agreement		4, 44
Consent		4


Defined Term		Page
Contingent Payment Right		4
Continuing Employee		5
Contract		5
CPR		4
Credit Agreement		5
Designated German and United Kingdom Pension Plans		5
Development		5, 44
DGCL		5
Dissenting Shares		5, 16
Dollars		5
EC Merger Regulations		5, 23
Effective Time		5, 14
Employee Benefit Plan		5
Encumbrances		5
Environmental Approval		6
Environmental Claim		6
Environmental Laws		6
ERISA		6
ERISA Affiliate		6
Estimated Closing Cash		6, 15
Estimated Closing Funded Debt		6
Exchange Act		6
Exchange Agent		6, 17
Executive Promissory Notes		3
Foreign Competition Laws		6, 23
Form S-4		45
Fully-Diluted Company Shares		7
Funded Debt		6
GAAP		7
Governmental Body		7
Group Return		7, 26
Hazardous Materials		7
HSR Act		7
Hypothetical Aggregate Merger Consideration Value		7
Hypothetical Cash Merger Consideration		7
Hypothetical Value of Merger Consideration Per Share		7
Indemnification Control Person		8
Indemnification Reserve Amount		8, 17
Indemnified Party		8
Indemnifying Party		8
Intellectual Property		8
International Plan		8
IRS		8
Knowledge		8
Leased Real Property		8, 27
Lender Debt		9
Lenders		5, 9
Loss		9
Losses		9, 60
Material Adverse Effect		9
Material Contracts		9


Defined Term		Page
Material IP Agreements
Material IP Contracts		9
Material Lease		9, 27
Material Leased Real Property		9, 27
Merger		1, 9
Merger Consideration		9
Merger Sub		1, 9
Net Cash Merger Consideration		9, 17
Net Per Share Cash Merger Consideration		9
Non-Competition Agreements		9
Open Source Software		9
Option Holders		9, 18
Option Payment		9
Options		9, 16
Order		9
Ordinary Course of Business		10
Owned Company Intellectual Property		10
Owned Real Property		10, 27
Parent		1, 10
Parent Business Intellectual Property		40
Parent Common Stock		10
Parent Common Stock Closing Price		10
Parent Common/Closing Price
Parent Disclosure Schedules		10, 36
Parent Indemnified Parties		10, 60
Parent Permits		38
Parent Preferred Shares		36
Parent Return		10, 53
Parent SEC Reports		10, 38
Parent Shares		10, 15
Parent Shares Merger Consideration		10
Parent Shares Minimum Value		58
Parent Stock Plans		36
Parent Threshold		63
Parties		1, 10
Party		1, 10
Payoff Amount		10, 17
Per Share Cash Merger Consideration		10, 15
Per Share Merger Consideration		11, 16
Per Share Stock Merger Consideration		11
Permit		10
Permits		10
Permitted Encumbrances		10
Person		11
Potential Acquiror		11
Pre-Closing Tax Statement		11, 54
Pre-Closing Taxes		11
Pro Rata		11
Proceeding(s)		11
Proxy Statement		11, 45
Real Property		11


Defined Term		Page
Registered Intellectual Property		11
Release		11
Representative		1, 11
Representative Operating Agreement		11
Representative Reimbursement Amount		11, 17
Representative Share		11, 16
Requisite Information		49
Requisite Lender Approval		11
Requisite Stockholder Approval		11, 22
Rights		12
Sarbanes-Oxley Act		39
SEC		12
Securities Act		12
Selling Stockholder		12
Selling Stockholders		48
Shelf Registered Shares		48
Shelf Registration Statement		48
Statement of Closing Cash and Funded Debt		12, 19
Statement of Estimated Closing Cash and Funded Debt		12, 15
Stock Percentage		12
Stockholder Indemnified Parties		12, 60
Stockholder Meeting		12, 44
Subsidiary		12
Superior Proposal		12
Survival Date		65
Surviving Corporation		12, 13
Takeover Statute		12, 36
Tax		12
Tax Arbitrator		12, 54
Tax Return		12
Tax Statement Dispute		13, 54
Taxes		12
Taxing Authority		13
Termination Fee		13
Third Parties		13
Third Party		13
Third Party Claim		13, 60
Third Party Interests		13, 24
Threatened		13
Threshold		13, 63
Transaction Expense		13, 65
Transactions		13
Voting Agreements		1
Warrant Agent		13
Warrants		13, 17
Withholdings		13

vii

AGREEMENT AND PLAN OF MERGER

This AGREEMENT AND PLAN OF MERGER (this “Agreement”) is made and entered into as of May 23, 2005 (“Agreement Date”) by and among (i) Acterna Inc., a Delaware corporation (the “Company”), (ii) JDS Uniphase Corporation, a Delaware corporation (“Parent”), (iii) JDSU Acquisition VII, Inc., a Delaware corporation and a wholly-owned subsidiary of Parent (“Merger Sub”) and (iv) for the limited purpose of agreeing to perform the duties specified in Section 3.09, Section 3.10 and Article 10, Antelope Indemnity Holdings, LLC, a Delaware limited liability company (the “Representative”). Parent, Merger Sub and the Company are referred to herein collectively as the “Parties” or individually as a “Party.”

WHEREAS, the Board of Directors of the Company has deemed it advisable and in the best interest of the Company’s stockholders to enter into this Agreement and to consummate the transactions contemplated hereby on the terms and subject to the conditions provided for in this Agreement and has approved this Agreement in accordance with the DGCL, upon the terms and conditions contained herein;

WHEREAS, in furtherance thereof it is proposed that the acquisition of the Company by Parent be accomplished by the merger of Merger Sub with and into the Company (the “Merger”), with the Company being the surviving corporation in