The Agreement And Plan of Merger is a fundamental document in corporate mergers and acquisitions under New Zealand law. It is utilized when companies seek to combine their operations through a formal merger structure, whether through amalgamation under the Companies Act 1993 or other merger mechanisms. The document addresses crucial aspects including transaction structure, purchase price and consideration, representations and warranties, closing conditions, and regulatory compliance requirements. It must comply with New Zealand's specific legal framework, including the Companies Act 1993, Takeovers Code, Commerce Act 1986, and where applicable, the Overseas Investment Act 2005. The agreement is particularly important for transactions involving public companies, regulated industries, or foreign investment, where additional regulatory oversight may be required. It serves as the primary transaction document that governs the rights and obligations of all parties throughout the merger process.
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1. Parties: Identifies and defines all parties to the merger agreement, including the acquiring company, target company, and any parent companies or merger subsidiaries
2. Background: Sets out the context of the merger, including the nature of the businesses and the purpose of the transaction
3. Definitions: Comprehensive definitions of terms used throughout the agreement
4. The Merger: Details the structure of the merger, including the legal mechanism for combination and surviving entity
5. Conversion of Securities: Describes how shares, options, and other securities will be converted or cancelled in the merger
6. Closing Mechanics: Procedures for closing the transaction, including timing, deliverables, and requirements
7. Representations and Warranties: Statements of fact by both parties about their business, operations, and legal status
8. Covenants: Obligations of the parties between signing and closing, including operation of business and obtaining approvals
9. Conditions to Closing: Prerequisites that must be satisfied before the merger can be completed
10. Termination: Circumstances under which the agreement can be terminated and the consequences
11. Employee Matters: Treatment of employees, benefits, and compensation arrangements post-merger
12. General Provisions: Standard legal provisions including governing law, notices, amendments, and interpretation
1. Break-up Fee: Terms of any break-up or termination fee payable if the deal fails under certain circumstances
2. Go-Shop Provisions: Provisions allowing the target to seek superior offers for a specified period
3. Voting Agreements: Terms of any agreements with major shareholders regarding voting in favor of the merger
4. Financing Conditions: Specific provisions related to financing arrangements for the merger
5. Tax Matters: Specific provisions dealing with tax implications and structuring
6. Intellectual Property: Special provisions for handling intellectual property in technology or IP-heavy mergers
7. Competition Law Compliance: Specific provisions relating to competition law approvals and compliance
8. Foreign Investment Provisions: Required when the merger involves foreign investment requiring regulatory approval
1. Disclosure Schedules: Detailed disclosures and exceptions to representations and warranties
2. Form of Merger Certificate: Template for the certificate to be filed with the Companies Office
3. Required Consents: List of third-party and regulatory consents required for closing
4. Material Contracts: List of important contracts affected by the merger
5. Employee Information: Details of key employees, benefit plans, and employment agreements
6. Real Property: List of owned and leased real property
7. Intellectual Property: Schedule of patents, trademarks, and other IP rights
8. Form of Shareholder Approval: Template for shareholder resolutions and approvals
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