Exhibit 10.50
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AGREEMENT AND PLAN OF MERGER
DATED AS OF JULY 27, 2001
By and Among
CONSECO, INC.
NOIDA ACQUISITION CORP.
AND
XXXXXXXXXX.XXX,INC.
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TABLE OF CONTENTS
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ARTICLE I DEFINITIONS................................................................................1
1.1 Definitions....................................................................................1
ARTICLE II THE MERGER.................................................................................1
2.1 The Merger.....................................................................................1
2.2 Filing of Merger Certificate and Related Certificates..........................................2
2.3 Certificate of Incorporation and By-Laws, Directors and Officers...............................2
2.4 Conversion of Securities.......................................................................2
2.5 Conseco to Make Certificates Available.........................................................3
2.6 Dividends; Transfer Taxes; Withholding.........................................................3
2.7 No Fractional Securities.......................................................................4
2.8 Adjustment of Exchange Ratio...................................................................4
2.9 No Further Ownership Rights in Exl Common Stock................................................4
2.10 Closing of Exl Transfer Books..................................................................4
2.11 Lost Certificates..............................................................................4
2.12 Further Assurances.............................................................................5
2.13 Restricted Shares..............................................................................5
2.14 Stock Options..................................................................................5
2.15 Registration of Conseco Common Stock...........................................................6
2.16 Management Incentive Plan......................................................................6
ARTICLE III REPRESENTATIONS AND WARRANTIES OF EXL......................................................7
3.1 Organization of Exl............................................................................7
3.2 Authority of Exl...............................................................................7
3.3 Organization of Exl's Subsidiary...............................................................7
3.4 Capital Stock..................................................................................7
3.5 Subsidiary.....................................................................................8
3.6 Conflicts or Violations........................................................................8
3.7 Books and Records..............................................................................9
3.8 Financial Statements...........................................................................9
3.9 Absence of Changes.............................................................................9
3.10 No Undisclosed Liabilities....................................................................11
3.11 Taxes.........................................................................................11
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3.12 Litigation....................................................................................12
3.13 Compliance With Laws..........................................................................13
3.14 Benefit Plans, ERISA and Employee Matters.....................................................13
3.15 Properties....................................................................................14
3.16 Contracts.....................................................................................14
3.17 Licenses and Permits..........................................................................16
3.18 Operations Insurance..........................................................................16
3.19 Intercompany Liabilities......................................................................17
3.20 Bank Accounts.................................................................................17
3.21 Brokers.......................................................................................17
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF CONSECO AND ACQUISITION.................................17
4.1 Organization of Conseco and Acquisition.......................................................17
4.2 Authority of Conseco and Acquisition..........................................................18
4.3 Conflicts or Violations.......................................................................18
4.4 Litigation....................................................................................18
4.5 Brokers.......................................................................................19
4.6 Capital Stock.................................................................................19
4.7 SEC Reports...................................................................................19
ARTICLE V COVENANTS OF EXL..........................................................................19
5.1 Regulatory and Other Approvals................................................................19
5.2 HSR Filings...................................................................................19
5.3 Investigation by Conseco......................................................................20
5.4 Alternative Transactions......................................................................20
5.5 Conduct of Business...........................................................................20
5.6 Financial Statements and Reports..............................................................21
5.7 Investments...................................................................................21
5.8 [Intentionally Deleted].......................................................................22
5.9 No Charter Amendments.........................................................................22
5.10 No Issuance of Securities.....................................................................22
5.11 No Dividends..................................................................................22
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5.12 No Disposal of Property.......................................................................22
5.13 No Breach or Default..........................................................................22
5.14 No Indebtedness...............................................................................22
5.15 No Acquisitions...............................................................................23
5.16 Affiliate Liabilities.........................................................................23
5.17 Resignations of Directors.....................................................................23
5.18 Notice and Cure...............................................................................23
5.19 Supplements to Schedules......................................................................23
ARTICLE VI COVENANTS OF CONSECO AND ACQUISITION......................................................24
6.1 Regulatory Approvals..........................................................................24
6.2 HSR Filings...................................................................................24
6.3 Notice and Cure...............................................................................24
6.4 Directors' and Officers' Indemnification......................................................24
ARTICLE VII CONDITIONS TO OBLIGATIONS OF CONSECO AND ACQUISITION......................................25
7.1 Representations and Warranties................................................................25
7.2 Performance...................................................................................25
7.3 Officer's Certificates........................................................................25
7.4 HSR Act Approval..............................................................................26
7.5 No Injunction.................................................................................26
7.6 No Proceeding or Litigation...................................................................26
7.7 Consents, Authorizations, etc.................................................................26
7.8 No Adverse Change.............................................................................26
7.9 Employment Agreements.........................................................................26
7.10 Opinions of Counsel...........................................................................26
ARTICLE VIII CONDITIONS TO OBLIGATIONS OF EXL..........................................................27
8.1 Representations and Warranties................................................................27
8.2 Performance...................................................................................27
8.3 Officer's Certificates........................................................................27
8.4 HSR Act Approval..............................................................................27
8.5 No Injunction.................................................................................27
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8.6 No Proceeding or Litigation...................................................................27
8.7 Employment Agreements.........................................................................28
8.8 Senior Management Incentive Plan..............................................................28
8.9 Opinion of Counsel to Conseco.................................................................28
8.10 Opinion of Tax Counsel to Exl.................................................................28
8.11 Consents, Authorizations, etc.................................................................28
ARTICLE IX SURVIVAL OF PROVISIONS; REMEDIES..........................................................28
9.1 Survival......................................................................................28
9.2 Available Remedies............................................................................28
ARTICLE X TERMINATION...............................................................................29
10.1 Termination...................................................................................29
10.2 Effect of Termination.........................................................................29
ARTICLE XI NOTICES...................................................................................30
11.1 Notices.......................................................................................30
ARTICLE XII MISCELLANEOUS.............................................................................31
12.1 Entire Agreement..............................................................................31
12.2 Expenses......................................................................................31
12.3 Public Announcements..........................................................................31
12.4 Confidentiality...............................................................................31
12.5 Waiver........................................................................................32
12.6 Amendment.....................................................................................32
12.7 Counterparts..................................................................................32
12.8 No Third Party Beneficiary....................................................................32
12.9 Governing Law.................................................................................32
12.10 Binding Effect................................................................................32
12.11 Assignment Limited............................................................................32
12.12 Headings, Gender, etc.........................................................................32
12.13 Invalid Provisions............................................................................32
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EXHIBIT LIST
Exhibit A Definitions...................................................................................A-1
Exhibit B Form of Certificate of Merger.................................................................
Exhibit C Form of Xxxxx Restricted Stock Agreement......................................................
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AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER ("Agreement") is made and entered
into as of July 27, 2001 by and between Conseco, Inc., an Indiana corporation
("Conseco"), Noida Acquisition Corp., a Delaware corporation ("Acquisition") and
XxxXxxxxxx.xxx, Inc., a Delaware corporation ("Exl").
PREAMBLE
WHEREAS, the respective Boards of Directors of Conseco, Acquisition and
Exl have approved the merger of Acquisition with and into Exl, upon the terms
and subject to the conditions set forth herein; and
WHEREAS, the parties hereto desire to make certain representations,
warranties, covenants and agreements in connection with such merger and also to
prescribe various conditions to such merger;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth in this Agreement, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
ARTICLE I
DEFINITIONS
1.1 Definitions. The capitalized terms used in this Agreement and not
defined herein shall have the meanings specified in Exhibit A. Unless the
context otherwise requires, such capitalized terms shall include the singular
and plural and the conjunctive and disjunctive forms of the terms defined.
ARTICLE II
THE MERGER
2.1 The Merger. Subject to the satisfaction or waiver of the conditions
to the Merger set forth in this Agreement, Acquisition will be merged with and
into Exl in accordance with the Delaware General Corporation Law ("GCL"). Exl
shall, prior to the Effective Time (as hereinafter defined), appropriately
complete and execute and deliver a Certificate of Merger (the "Merger
Certificate") substantially in the form of Exhibit B hereto with the effects set
forth in this Agreement and in all respects consistent with the terms of this
Agreement, together with appropriate related officers' certificates and any
other documents required under the GCL to effect the Merger consistent with this
Agreement. The Merger will have the effect set forth in the Merger Certificate
and the GCL. Exl and Acquisition are herein sometimes referred to as the
"Constituent Corporations." Exl shall be the surviving corporation (the
"Surviving Corporation") following the effectiveness of the Merger. The
identity, existence, rights, privileges, powers, franchises, properties and
assets of Exl shall continue unaffected and unimpaired by the Merger. From and
after the Effective Time (as hereinafter defined), the identity and separate
existence of Acquisition shall cease, and Exl shall succeed, without other
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transfer, to all the rights and property of Acquisition and shall be subject to
all the debts and liabilities of Acquisition in the same manner as if it had
itself incurred them in accordance with the provisions of the GCL.
2.2 Filing of Merger Certificate and Related Certificates. The Merger
will be effective as of the date and time specified in the Merger Certificate
(the "Effective Time") and the related officers' certificates and any other
documents necessary to effect the Merger in accordance with the GCL. Conseco,
Acquisition, and Exl shall cause such filing to occur as soon as practicable
after the satisfaction or waiver of the conditions to the Merger set forth in
this Agreement.
2.3 Certificate of Incorporation and By-Laws, Directors and Officers.
Immediately after the Effective Time, the Certificate of Incorporation of Exl,
as in effect at the Effective Time, shall be amended so that (i) Article 4 of
such Certificate of Incorporation reads in its entirety as follows: "The total
number of shares of all classes of capital stock which the Corporation shall
have authority to issue is 100 shares of Common Stock, par value $.01 per
share." and (ii) Articles 8 and 9 of such Certificate of Incorporation are
deleted. As so amended, such Certificate of Incorporation of Exl shall be the
Certificate of Incorporation of the Surviving Corporation until thereafter
changed or amended as provided therein or by applicable law. At the Effective
Time, the Bylaws of Exl, as in effect immediately prior to the Effective Time,
shall be the Bylaws of the Surviving Corporation until thereafter changed or
amended as provided therein or by the Certificate of Incorporation. Except as
otherwise contemplated by Section 5.17, the directors and the officers of Exl
holding office immediately prior to the Effective Time shall be the directors
and officers, respectively, of the Surviving Corporation immediately after the
Effective Time, to hold office in accordance with the Certificate of
Incorporation and By-laws of the Surviving Corporation until their respective
successors are duly elected and qualified.
2.4 Conversion of Securities. At the Effective Time, by virtue of the
Merger and without any action on the part of Conseco, Acquisition, Exl or the
holders of any securities of the Constituent Corporations:
(a) Each issued and outstanding share of common stock, par value
$.001 per share, of Acquisition shall be converted into one validly issued,
fully paid and nonassessable share of common stock of the Surviving Corporation.
(b) All shares of common stock, par value $.001 per share, of Exl
("Common Stock") that are held in the treasury of Exl or by any wholly owned
Subsidiary of Exl shall be cancelled and no capital stock of Conseco or other
consideration shall be delivered in exchange therefor.
(c) Subject to the provisions of Sections 2.7 and 2.8 hereof, each
share of Common Stock issued and outstanding immediately prior to the Effective
Time (other than shares to be cancelled in accordance with Section 2.4(b)) shall
be converted into 0.2857 (such number being the "Exchange Ratio") validly
issued, fully paid and nonassessable shares of Common Stock of Conseco ("Conseco
Common Stock"). All such shares of Common Stock, when so converted, shall no
longer be outstanding and shall automatically be cancelled and retired and each
holder of a certificate representing such shares (a "Common Stock Certificate")
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shall cease to have any rights with respect thereto, except the right to receive
(i) any dividends and other distributions in accordance with Section 2.6, (ii)
certificates representing the shares of Conseco Common Stock into which such
shares are converted and (iii) any cash, without interest, in lieu of fractional
shares to be issued or paid in consideration therefor, upon the surrender of
such certificate in accordance with Section 2.5.
2.5 Conseco to Make Certificates Available. In exchange for the
delivery of the shares of Common Stock converted in the Merger, Conseco shall
deliver at the Effective Time to each holder of shares of Common Stock
immediately prior to the Effective Time certificates representing the shares of
Conseco Common Stock issuable pursuant to Section 2.4(c) in exchange for
outstanding shares of Common Stock and cash, as required to make payments in
lieu of any fractional shares pursuant to Section 2.7.
2.6 Dividends; Transfer Taxes; Withholding. No dividends or other
distributions that are declared on or after the Effective Time on Conseco Common
Stock, or are payable to the holders of record thereof on or after the Effective
Time, will be paid to any person entitled by reason of the Merger to receive a
certificate representing Conseco Common Stock until such person surrenders the
related Common Stock Certificate or Certificates, as provided in Section 2.5,
and no cash payment in lieu of fractional shares will be paid to any such person
pursuant to Section 2.7 until such person shall so surrender the related Common
Stock Certificate or Certificates. Subject to the effect of applicable law,
there shall be paid to each record holder of a new certificate representing such
Conseco Common Stock: (i) at the time of such surrender or as promptly as
practicable thereafter, the amount of any dividends or other distributions
theretofore paid with respect to the shares of Conseco Common Stock represented
by such new certificate and having a record date on or after the Effective Time
and a payment date prior to such surrender; (ii) at the appropriate payment date
or as promptly as practicable thereafter, the amount of any dividends or other
distributions payable with respect to such shares of Conseco Common Stock and
having a record date on or after the Effective Time but prior to such surrender
and a payment date on or subsequent to such surrender; and (iii) at the time of
such surrender or as promptly as practicable thereafter, the amount of any cash
payable with respect to a fractional share of Conseco Common Stock to which such
holder is entitled pursuant to Section 2.7. In no event shall the person
entitled to receive such dividends or other distributions be entitled to receive
interest on such dividends or other distributions. If any cash or certificate
representing shares of Conseco Common Stock is to be paid to or issued in a name
other than that in which the surrendered in exchange therefor is registered, it
shall be a condition of such exchange that the Common Stock Certificate so
surrendered shall be properly endorsed and otherwise in proper form for transfer
and that the person requesting such exchange shall pay any transfer or other
taxes required by reason of the issuance of certificates for such shares of
Conseco Common Stock in a name other than that of the registered holder of the
Common Stock Certificate surrendered, or shall establish to the satisfaction of
Conseco that such tax has been paid or is not applicable. Conseco shall be
entitled to deduct and withhold from the consideration otherwise payable
pursuant to this Agreement to any holder of shares of Common Stock such amounts
as Conseco is required to deduct and withhold with respect to the making of such
payment under the Code or under any provision of state, local or foreign tax
law. To the extent that amounts are so withheld by Conseco, such withheld
amounts shall be treated for all purposes of this Agreement as having been paid
to the holder of the shares of Common Stock in respect of which such deduction
and withholding was made by Conseco.
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2.7 No Fractional Securities. No certificates or scrip representing
fractional shares of Conseco Common Stock shall be issued upon the surrender for
exchange of Common Stock Certificates pursuant to this Article II, and no
Conseco dividend or other distribution or stock split shall relate to any
fractional share, and no fractional share shall entitle the owner thereof to
vote or to any other rights of a security holder of Conseco. In lieu of any such
fractional share, each holder of Common Stock who would otherwise have been
entitled to a fraction of a share of Conseco Common Stock upon surrender of
Common Stock Certificates for exchange pursuant to this Article II will be paid
an amount in cash (without interest), rounded to the nearest cent, determined by
multiplying (i) the per share closing price on the New York Stock Exchange, Inc.
(the "NYSE") of Conseco Common Stock (as reported in the NYSE Composite
Transactions) on the date of the Effective Time (or, if the shares of Conseco
Common Stock do not trade on the NYSE on such date, the first day of trading of
shares of Conseco Common Stock on the NYSE after the Effective Time) by (ii) the
fractional interest to which such holder would otherwise be entitled. As
promptly as practicable after the determination of the amount of cash, if any,
to be paid to holders of fractional share interests, Conseco shall forward
payments to such holders of fractional share interests subject to and in
accordance with the terms of Section 2.6 and this Section 2.7.
2.8 Adjustment of Exchange Ratio. In the event of any reclassification,
stock split or stock dividend with respect to Conseco Common Stock, any change
or conversion of Conseco Common Stock into other securities of Conseco or any
other dividend or distribution with respect to Conseco Common Stock other than
normal quarterly cash dividends as the same may be adjusted from time to time
pursuant to the terms of this Agreement (or if a record date with respect to any
of the foregoing should occur) prior to the Effective Time, appropriate and
proportionate adjustments, if any, shall be made to the Exchange Ratio, and all
references to the Exchange Ratio in this Agreement shall be deemed to be to the
Exchange Ratio as so adjusted.
2.9 No Further Ownership Rights in Exl Common Stock. All shares of
Conseco Common Stock issued upon the surrender for exchange of Common Stock
Certificates in accordance with the terms hereof (including any cash paid
pursuant to Section 2.7) shall be deemed to have been issued in full
satisfaction of all rights pertaining to the shares of Common Stock represented
by such Common Stock Certificates.
2.10 Closing of Exl Transfer Books. At the Effective Time, the stock
transfer books of Exl shall be closed and no transfer of shares of Common Stock
shall thereafter be made on the records of Exl. If, after the Effective Time,
Common Stock Certificates are presented to the Surviving Corporation or Conseco,
such Common Stock Certificates shall be cancelled and exchanged as provided in
this Article II.
2.11 Lost Certificates. If any Common Stock Certificate shall have been
lost, stolen or destroyed, upon the making of an affidavit of that fact by the
person claiming such Common Stock Certificate to be lost, stolen or destroyed
and, if required by Conseco, the posting by such person of a bond, in such
reasonable amount as Conseco may direct as indemnity against any claim that may
be made against Conseco with respect to such Common Stock Certificate, Conseco
will issue in exchange for such lost, stolen or destroyed Certificate the shares
of Conseco Common Stock, any cash in lieu of fractional shares of Conseco Common
Stock to
4
which the holders thereof are entitled pursuant to Section 2.7 and any
dividends or other distributions to which the holders thereof are entitled
pursuant to Section 2.6.
2.12 Further Assurances. If at any time after the Effective Time the
Surviving Corporation shall consider or be advised that any deeds, bills of
sale, assignments or assurances or any other acts or things are necessary,
desirable or proper (a) to vest, perfect or confirm, of record or otherwise, in
the Surviving Corporation its right, title or interest in, to or under any of
the rights, privileges, powers, franchises, properties or assets of either of
the Constituent Corporations, or (b) otherwise to carry out the purposes of this
Agreement, the Surviving Corporation and its proper officers and directors or
their designees shall be authorized to execute and deliver, in the name and on
behalf of either of the Constituent Corporations, all such deeds, bills of sale,
assignments and assurances and to do, in the name and on behalf of either
Constituent Corporation, all such other acts and things as may be necessary,
desirable or proper to vest, perfect or confirm the Surviving Corporation's
right, title or interest in, to or under any of the rights, privileges, powers,
franchises, properties or assets of such Constituent Corporation and otherwise
to carry out the purposes of this Agreement.
2.13 Restricted Shares. On the Effective Date, Xxxxx (and his spouse)
shall enter into a Restricted Stock Agreement in the form attached hereto as
Exhibit C with respect to the shares of Conseco Common Stock to be issued to
Xxxxx and his spouse pursuant to this Agreement. On the Effective Date, Xxxxxx
and Kapoor shall each enter into a Restricted Stock Agreement with respect to
the shares of Conseco Common Stock to be issued to each of them pursuant to this
Agreement.
2.14 Stock Options. Not later than the Effective Time, each Exl Stock
Option which is outstanding immediately prior to the Effective Time pursuant to
Exl's stock option plans (other than any "stock purchase plan" within the
meaning of Section 423 of the Code) in effect on the date hereof (the "Stock
Plans") shall become and represent an option to purchase the number of shares of
Conseco Common Stock (a "Substitute Option") (decreased to the nearest full
share) determined by multiplying (i) the number of shares of Common Stock
subject to such Exl Stock Option immediately prior to the Effective Time by (ii)
the Exchange Ratio. The exercise price per share of each Substitute Option shall
be adjusted so that the aggregate exercise price to be paid upon exercise of
such Substitute Option shall be the same as the aggregate exercise price of the
Exl Stock Option converted pursuant to this Section. Conseco shall pay cash to
holders of Exl Stock Options in lieu of issuing fractional shares of Conseco
Common Stock upon the exercise of Substitute Options for shares of Conseco
Common Stock. After the Effective Time, except as provided above in this Section
2.14, each Substitute Option shall be exercisable upon the same terms and
conditions as were applicable under the related Exl Stock Option immediately
prior to or at the Effective Time. Conseco and Exl shall take all necessary
action to implement the provisions of the Section 2.14 and shall cause a
registration statement on Form S-8 to be filed with the United States Securities
and Exchange Commission (the "SEC") within thirty days of the Effective Time to
register the shares of Conseco Common Stock to be issued pursuant to the
exercise of the Substitute Options which registration statement will be
effective upon filing with the SEC under the current rules of the SEC. Exl
agrees that it will not grant any stock appreciation rights or limited stock
appreciation rights and will not permit cash payments to holders of Exl Stock
Options in lieu of the substitution therefor of Substitute Options, as described
in this Section 2.14.
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2.15 Registration of Conseco Common Stock.
(a) Upon the election by the holders of a majority of the shares of
Common Stock within five (5) days after the Effective Time, Conseco shall file a
registration statement with the SEC within thirty days of the Effective Time to
register the shares of Conseco Common Stock issued pursuant to this Agreement
(to the extent shares may be resold pursuant to the provisions of Section 2.13
of this Agreement) on the Effective Time to permit the resale of such shares,
subject to the terms and provisions of this Agreement and the Restricted Stock
Agreements to be entered into in accordance with Section 2.13 of this Agreement.
Conseco shall use its commercially reasonable best efforts to cause such
registration statement to become effective as soon as possible and shall
maintain the effectiveness of such registration statement for one year from the
date of the Effective Time.
(b) No shareholder of Exl may include any of its shares of Conseco
Common Stock in such registration statement pursuant to this Agreement unless
such shareholder furnishes to Conseco in writing such information as Conseco may
reasonably request for use in connection with such registration statement or
prospectus or preliminary prospectus included therein and in any application to
be filed with or under state securities laws.
(c) Notwithstanding the foregoing, Conseco may suspend the
effectiveness of such registration statement by written notice to the
shareholders for a period not to exceed an aggregate of 45 days in any 90-day
period (each such period, a "Suspension Period") if:
(1) an event occurs and is continuing as a result of which such
registration statement would in Conseco's reasonable judgment,
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make
the statements therein not misleading; and
(2) Conseco reasonably determines that the disclosure of such
event at such time would have a Material Adverse Effect on the
business of Conseco and its subsidiaries taken as a whole;
provided, however, that in the event the disclosure relates to a previously
undisclosed proposed or pending material business transaction, the disclosure of
which would impede Conseco's ability to consummate such transaction, Conseco may
extend a suspension Period from 45 days to 60 days; provided, however, that
suspension Periods shall not exceed an aggregate of 90 days in any 360-day
period. In the event the registration statement referred to herein is no longer
effective, Conseco shall continue to make information publicly available and
shall file all such information with the U.S. Securities and Exchange
Commission, in order to satisfy the requirements of Rule 144(c) under the
Securities Act of 1933 and thereby permit a shareholder of Exl to sell his or
her shares of Conseco Common Stock received pursuant to this Agreement pursuant
to Rule 144 under the Securities Act of 1933.
2.16 Management Incentive Plan. As soon as practicable after the
Effective Time, Conseco shall adopt a management incentive plan for the benefit
of the management of Exl and its subsidiaries other than Xxxxx Xxxxxx and Xxxxxx
Xxxxxx, who will participate in the Senior Management Incentive Plan.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES OF EXL
Exl hereby represents and warrants to Conseco and Acquisition as
follows:
3.1 Organization of Exl. Exl is a corporation duly organized, validly
existing, and in good standing under the Laws of Delaware and has the requisite
corporate power and corporate authority to enter into this Agreement and to
perform its obligations under this Agreement. Exl is duly licensed, qualified,
or admitted to do business and is in good standing in all jurisdictions in which
the failure to be so licensed, qualified, or admitted and in good standing,
individually or in the aggregate with other such failures, has or would
reasonably be expected to have a Material Adverse Effect. Exl has furnished to
Conseco true and complete copies of its articles or certificate of incorporation
or organization (as certified by the appropriate governmental or regulatory
authorities) and its by-laws, in each case including all amendments thereto.
3.2 Authority of Exl. The Board of Directors of Exl has duly and
validly approved this Agreement and the transactions contemplated hereby. The
execution and delivery of this Agreement by Exl and the performance by Exl of
its obligations under this Agreement have been duly and validly authorized by
all necessary corporate action on the part of Exl, including the approval of the
transactions contemplated hereby by shareholders of Exl. This Agreement
constitutes a valid and binding obligation of Exl and is enforceable against it
in accordance with its terms, except to the extent that enforcement thereof may
be limited by or subject to applicable bankruptcy, insolvency, reorganization,
moratorium, or other similar Laws now or hereafter in effect affecting
creditors' rights generally and by general principles of equity (regardless of
whether enforcement is sought in equity or at law).
3.3 Organization of Exl's Subsidiary. Exl's Subsidiary is an India
corporation duly organized, validly existing, and in good standing as a private
limited company under the Laws of its jurisdiction of organization, and Exl's
Subsidiary has made all required filings with India authorities, including,
without limitation, the India Registrar of Companies. Exl's Subsidiary is duly
licensed, qualified, or admitted to do business and is in good standing in all
jurisdictions in which the failure to be so licensed, qualified, or admitted and
in good standing, individually or in the aggregate with other such failures, has
or would reasonably be expected to have a Material Adverse Effect on its
Business or Condition. Exl has furnished to Conseco true and complete copies of
the certificate of incorporation, memorandum of association and articles of
association (as certified by the appropriate governmental or regulatory
authorities) of Exl's Subsidiary, in each case including all amendments thereto.
3.4 Capital Stock. The authorized capital stock of Exl and Exl's
Subsidiary, and the shares issued therefrom, consist solely of the shares of
capital stock so listed in Section 3.4 of the Disclosure Schedule. All such
issued shares of capital stock are duly authorized, validly issued, outstanding,
fully paid, and nonassessable and, except as otherwise indicated, all such
shares of capital stock are owned beneficially and of record as described in
Section 3.4 of the Disclosure Schedule, free and clear of all Liens, except for
Liens disclosed in Section 3.4 of the Disclosure Schedule. Except for the Common
Stock and the Exl Stock Options, no securities issued by Exl are held
beneficially or of record by any Person. Except as disclosed in Section 3.4 of
the
7
Disclosure Schedule, there are no outstanding securities, obligations, rights,
subscriptions, warrants, options, phantom stock rights, or (except for this
Agreement) other Contracts of any kind that give any Person the right to (a)
purchase or otherwise receive or be issued any shares of capital stock of Exl or
Exl's Subsidiary (or any interest therein) or any security or Liability of any
kind convertible into or exchangeable for any shares of capital stock of Exl or
Exl's Subsidiary (or any interest therein) or (b) receive any benefits or rights
similar to any rights enjoyed by or accruing to a holder of the Common Stock or
any rights to participate in the equity, income, or election of directors or
officers of the Company or Exl's Subsidiary.
3.5 Subsidiary. Except as disclosed in Section 3.5 of the Disclosure
Schedule, Exl has no subsidiaries and does not Control (whether directly or
indirectly, whether through the ownership of securities or by Contract or proxy,
and whether alone or in combination with others) any corporation, partnership,
business organization, or other Person nor has any corporation been merged or
liquidated into Exl or Exl's Subsidiary since the date Exl acquired Exl's
Subsidiary.
3.6 Conflicts or Violations. The execution and delivery of this
Agreement by Exl do not, and the performance by Exl of its obligations under
this Agreement will not:
(a) subject to obtaining the approvals contemplated by Sections 5.1
and 5.2 and Sections 6.1 and 6.2 hereof, violate any Material term or provision
of any Law or any writ, judgment, decree, injunction, or similar order
applicable to Exl or Exl's Subsidiary;
(b) conflict with or result in a Material violation or breach of,
or constitute (with or without notice or lapse of time or both) a Material
default under, any of the terms, conditions or provisions of the articles or
certificate of incorporation memorandum or articles of association or by-laws of
Exl or Exl's Subsidiary;
(c) result in the creation or imposition of any Material Lien upon
Exl or Exl's Subsidiary, or any of their respective Assets and Properties that
individually or in the aggregate with any other Liens has or would reasonably be
expected to have a Material Adverse Effect on the validity or enforceability of
this Agreement, on the ability of Exl to perform its obligations under this
Agreement, or on the Business or Condition of Exl or Exl's Subsidiary;
(d) conflict with or result in a violation or breach of, or
constitute (with or without notice or lapse of time or both) a default under, or
give to any Person any right of termination, cancellation, acceleration, or
modification in or with respect to, any Contract to which Exl or Exl's
Subsidiary is a party or by which any of their respective Assets or Properties
may be bound and as to which any such conflicts, violations, breaches, defaults,
or rights individually or in the aggregate have or would reasonably be expected
to have a Material Adverse Effect on the validity or enforceability of this
Agreement, on the ability of Exl to perform its obligations under this
Agreement, or on the Business or Condition of Exl or Exl's Subsidiary; or
(e) require Exl or Exl's Subsidiary to obtain any consent,
approval, or action of, or make any filing with or give any notice to, any
Person except (i) as contemplated in Section 6.1 or 6.2 hereof, (ii) as
disclosed in Section 3.6(e) of the Disclosure Schedule, (iii) those
8
required in order for Exl and Exl's Subsidiary to perform the Services Agreement
(as hereinafter defined), (iv) those which the failure to obtain, make, or give
individually or in the aggregate with any other such failures has or would
reasonably be expected to have no Material Adverse Effect on the validity or
enforceability of this Agreement, on the ability of Exl to perform its
obligations under this Agreement, or on the Business or Condition of Exl or
Exl's Subsidiary.
3.7 Books and Records. Except as would not have a Material Adverse
Effect, the minute books and other similar records of Exl and Exl's Subsidiary
contain a true and complete record of all actions taken at all meetings and by
all written consents in lieu of meetings of its stockholders, Boards of
Directors, and each committee thereof. The Books and Records of Exl and Exl's
Subsidiary have been maintained in all Material respects in accordance with Law.
3.8 Financial Statements. Exl has previously delivered to Conseco the
following GAAP Statement: the audited consolidated balance sheet of Exl as of
March 31, 2001 and the related audited statements of operations, shareholders'
equity, and cash flow for the year then ended, together with the notes related
thereto. Such GAAP Statement (and the notes related thereto, whether or not
included therein) was prepared in accordance with GAAP, and fairly presents (in
accordance with GAAP) the financial position of Exl and Exl's Subsidiary, on a
consolidated basis, as of the date thereof and the related results of
operations, shareholder's equity, and cash flow of Exl and its Subsidiary, on a
consolidated basis, for and during the period covered thereby.
3.9 Absence of Changes. Since March 31, 2001, except as otherwise
provided for in, or expressly contemplated by, this Agreement and except as
disclosed in Section 3.9 of the Disclosure Schedule or in the Financial
Statements delivered to Conseco pursuant to Section 3.8 hereof, (i) there has
not been, occurred, or arisen any change in, or any event (including without
limitation any damage, destruction, or loss whether or not covered by
insurance), condition, or state of facts of any character that individually or
in the aggregate has had or would reasonably be expected to have a Material
Adverse Effect and (ii) except as disclosed in Section 3.9 of the Disclosure
Schedule, (without limiting the generality of the foregoing) there has not been,
occurred or arisen:
(a) any declaration, setting aside, or payment of any dividend or
other distribution in respect of the capital stock of Exl or Exl's Subsidiary or
any direct or indirect redemption, purchase or other acquisition by Exl or Exl's
Subsidiary of any such stock or of any interest in or right to acquire any such
stock;
(b) any issuance, sale or disposition by either Exl or Exl's
Subsidiary of any debenture, note, stock or other security issued by Exl or
Exl's Subsidiary, or any Material modification or amendment of any right of the
holder of any outstanding debenture, stock or other security issued by Exl or
Exl's Subsidiary;
(c) any Lien created on or in any of the Assets and Properties of
Exl or Exl's Subsidiary or assumed by any of them with respect to any of such
Assets and Properties which Lien relates to Liabilities individually or in the
aggregate exceeding $100,000;
9
(d) any prepayment of any Liabilities individually or in the
aggregate exceeding $100,000;
(e) any Liability involving the borrowing of money in amounts in
excess of $100,000 by Exl or Exl's Subsidiary;
(f) any damage, destruction or loss (whether or not covered by
insurance) affecting any of the Assets and Properties of Exl or Exl's Subsidiary
which damage, destruction or loss individually exceeds $100,000;
(g) any strike, labor difficulty or union organizational campaign
(in process or threatened) at or affecting Exl or Exl's Subsidiary;
(h) any Material change in any investment, financial reporting,
marketing or accounting practice or policy followed by Exl or Exl's Subsidiary,
or in any assumption underlying such a practice or policy, or in any method of
calculating any bad debt, contingency, or other reserve for financial reporting
or any other accounting purposes;
(i) any payment, discharge, or satisfaction by Exl or Exl's
Subsidiary of any Material Lien or Liability other than Liens or Liabilities
that were paid, discharged, or satisfied since March 31, 2001 in the ordinary
course of business.
(j) except for fair value received, in the ordinary course of
business and consistent with past practice, any cancellation of any Material
Liability owed to Exl or Exl's Subsidiary by any other Person;
(k) except in the ordinary course of business and consistent with
past practice, any sale, transfer, or conveyance of any investments, or any
other Assets and Properties, of Exl or Exl's Subsidiary with an individual book
value or with an aggregate book value in excess of $100,000;
(l) any amendment, termination, waiver, disposal, failure to comply
with the terms and conditions, or lapse of, or other failure to preserve, any
Material license, permit or other form of authorization of Exl or Exl's
Subsidiary;
(m) except for any transactions or arrangements which are not
Material, any transaction or arrangement under which Exl or Exl's Subsidiary
paid, loaned or advanced any amount to or in respect of, or sold, transferred,
or leased any of its Assets and Properties or any services to, (i) any officer
or director of Exl or Exl's Subsidiary (except for payments of salaries and
wages in the ordinary course of business and consistent with past practice), or
of any Affiliate of Exl, (ii) any Affiliate of Exl, or of any such officer or
director, or (iii) any business or other Person in which Exl, any such officer
or director, or any such Affiliate has any Material interest, except for
advances made to, or reimbursements of, officers or directors of Exl or Exl's
Subsidiary for travel and other business expenses in reasonable amounts in the
ordinary course of business and consistent with past practice;
(n) any amendment of, or any failure to perform all of its
obligations under, or any default under, or any waiver of any right under, or
any termination (other than on the stated
10
expiration date) of, any Contract that involves or reasonably would involve the
annual expenditure or receipt by Exl or Exl's Subsidiary of more than $100,000;
(o) any amendment to the articles or certificate of incorporation,
memorandum or articles of association or by-laws of Exl or Exl's Subsidiary;
(p) any expenditure or commitment for additions to property, plant,
equipment or other tangible or intangible capital assets of Exl or Exl's
Subsidiary, which exceed $100,000 in the aggregate;
(q) any Contract to take any of the actions set forth in paragraphs
(a) through (p) of this Section 3.9.
3.10 No Undisclosed Liabilities. Except to the extent reflected or
disclosed in the Financial Statements delivered to Conseco pursuant to Section
3.8 hereof, or except as disclosed in the Disclosure Schedule, (i) there were no
material Liabilities affecting Exl or Exl's Subsidiary as of March 31, 2001,
required, in accordance with GAAP, to be reflected in such Financial Statements
and (ii) since March 31, 2001, neither Exl nor Exl's Subsidiary has incurred any
Material Liabilities other than those that would not be required to be disclosed
in financial statements of Exl or Exl's Subsidiary in accordance with GAAP for
any period after March 31, 2001 whether or not any such financial statements
have actually been prepared.
3.11 Taxes. Except as disclosed in Section 3.11 of the Disclosure
Schedule (with paragraph references corresponding to those set forth below):
(a) All Tax Returns required to be filed with respect to Exl and
Exl's Subsidiary or any Tax Returns of which Exl or Exl's Subsidiary are or were
consolidated members have been duly and timely filed, and all such Tax Returns
are true and complete in all Material respects. Exl, and Exl's Subsidiary, or
other members of the consolidated group (i) have duly and timely paid (or
requested extensions of the time to pay) all Taxes that are shown thereon as
due, or that are otherwise due and payable for the periods covered by such Tax
Returns and have made all required estimated payments of Taxes sufficient to
avoid any penalties for underpayment, or (ii) have duly provided for all such
Taxes in the Financial Statements. There are no Material Liens with respect to
Taxes (except for Liens with respect to real property Taxes not yet delinquent)
upon any of the Assets and Properties of Exl or Exl's Subsidiary, or any member
of a consolidated return of which Exl or Exl's Subsidiary are members.
(b) With respect to any period through March 31, 2001 for which Tax
Returns have not yet been filed, or for which Taxes are not yet due or owing,
Exl and Exl's Subsidiary have made due and sufficient current accruals for such
Taxes in accordance with GAAP, and such current accruals through March 31, 2001
are duly and fully provided for in the Financial Statements of Exl and Exl's
Subsidiary for the period then ended.
(c) The United States federal income Tax Returns of Exl and Exl's
Subsidiary and of each affiliated group (within the meaning of the Code) of
which Exl and Exl's Subsidiary are or have been members have not been audited or
examined by the IRS. The state, local and foreign Tax Returns of Exl and Exl's
Subsidiary and of each affiliated or consolidated group of
11
which they are or have been members have not been audited or examined, and all
statutes of limitation for all applicable state, local and foreign taxable
periods through the respective years specified in Section 3.11(c) of the
Disclosure Schedule have expired. There are no outstanding agreements, waivers
or arrangements extending the statutory period of limitation applicable to any
claim for, or the period for the collection or assessment of, Taxes due from
Exl, or Exl's Subsidiary, or any consolidated Tax Return of which Exl or Exl's
Subsidiary is or was a member for any taxable period. Exl has previously
delivered to Conseco copies, which are true and complete in all Material
respects, of each of (i) the most recent audit reports relating to the United
States federal, state, local and foreign Taxes due from Exl or Exl's Subsidiary
and (ii) the United States federal, state, local and foreign Tax Returns, for
each of the last three taxable years, filed by Exl or Exl's Subsidiary, and Exl
has made available to Conseco for inspection true and correct copies of such
returns, which are true and complete in all Material respects (insofar as such
returns relate to Exl or Exl's Subsidiary) filed by any affiliated or
consolidated group of which Exl or Exl's Subsidiary was then a member.
(d) No audit or other proceeding by any court, governmental or
regulatory authority, or similar Person is pending or, to the Knowledge of Exl,
threatened with respect to any Taxes due from Exl or Exl's Subsidiary or any
past or present consolidated Affiliates or any Tax Return filed by or relating
to Exl, or Exl's Subsidiary or any past or present consolidated Affiliates. To
the Knowledge of Exl, no assessment of Tax is proposed or is threatened against
Exl, or Exl's Subsidiary or any past or present consolidated Affiliates or any
of their respective Assets and Properties.
(e) Neither Exl nor Exl's Subsidiary have been or is in violation
of any applicable Law relating to the reporting of interest, dividends,
insurance policy benefits, benefit surrenders, miscellaneous income, or other
similar amounts to any applicable authority.
(f) Neither Exl nor Exl's Subsidiary are parties to, are bound by,
or have any obligation under, any Tax Sharing Contract or similar Contract.
(g) For any period following the Effective Time, Exl will not have
any obligation to any former parent company or any Affiliates thereof for Taxes
which were paid or should have been paid in accordance with any tax sharing
agreement.
(h) Exl's Subsidiary has a tax holiday under the Laws of India, and
such tax holiday is in full force and effect and shall not be affected by the
transactions contemplated by this Agreement.
3.12 Litigation. Except as disclosed in Section 3.12 of the Disclosure
Schedule (with paragraph references corresponding to those set forth below):
(a) There are no actions, suits, investigations or proceedings
pending, or, to the Knowledge of Exl, threatened, against Exl or Exl's
Subsidiary or their respective Assets and Properties, at law or in equity, in,
before, or by any Person that individually or in the aggregate have or would
reasonably be expected to have a Material Adverse Effect.
(b) There are no actions, suits, investigations or proceedings
pending or, to the Knowledge of Exl, threatened, and no event, fact or
circumstance has arisen or occurred that may
12
reasonably be expected to result in the commencement of any action, suit,
proceeding or investigation, against Exl or Exl's Subsidiary or any of their
respective Assets and Properties, at law or in equity, in, before, or by any
Person that individually involves a claim or claims for any injunction or
similar relief or for Damages exceeding $100,000 or an unspecified amount of
Damages, or that individually or in the aggregate have or would reasonably be
expected to have a Material Adverse Effect.
(c) There are no writs, judgments, decrees or similar orders of any
Person outstanding against Exl or Exl's Subsidiary that individually exceed
$100,000 or that individually or in the aggregate have or would reasonably be
expected to have a Material Adverse Effect.
3.13 Compliance With Laws. Except as disclosed in Section 3.13 of the
Disclosure Schedule, (i) neither Exl nor Exl's Subsidiary has been or is in
Material violation (or with or without notice or lapse of time or both, would be
in Material violation) of any term or provision of any Law or any writ,
judgment, decree, injunction or similar order applicable to either of them or
any of their respective Assets and Properties, except for violations that are
barred by an applicable statute of limitations and (ii) neither Exl nor Exl's
Subsidiary has been or is in violation of the Foreign Exchange (Borrowing or
Lending in Foreign Exchange) Regulations, 2000 of the Government of India, the
External Commercial Borrowings Policy of the Government of India or any Laws
related to export obligations applicable to the activities of Exl or Exl's
Subsidiary. Without limiting the generality of the foregoing, except as
disclosed in Section 3.13 of the Disclosure Schedule:
(a) Since formation of Exl, Exl and Exl's Subsidiary have duly and
validly filed or caused to be so filed all Material reports, statements,
documents, registrations, filings or submissions that were required by Law to be
filed with any Person including, without limitation, all reports required to be
filed with the Development Commission, NEPZ of the Government of India and the
filing of the SOFTEX form with the Ministry of Information Technology,
Government of India; all such filings complied in all Material respects with
applicable Laws when filed, and to the Knowledge of Exl, no Material
deficiencies have been asserted by any Person with respect to any such filings.
(b) No Real Estate has been used for the storage, treatment,
generation, transportation, manufacture, processing, handling, production,
distribution, deposit, burial, use, or disposal of any Hazardous Substance
except in compliance with Environmental Laws; neither Exl nor Exl's Subsidiary
has any liability (or would with notice or lapse of time or both, have any such
liability) arising out of or resulting from a Release of any Hazardous Substance
on or from any Real Estate; and Exl and Exl's Subsidiary have complied in all
Material respects and, to the knowledge of Exl, all previous owners of Real
Estate have complied with all applicable Environmental Laws relating to any Real
Estate and the business, activities and processing respectively conducted
thereon.
3.14 Benefit Plans, ERISA and Employee Matters. Except as disclosed in
the Financial Statements or in the Disclosure Schedule, neither Exl nor Exl's
Subsidiary has any Liability under any Benefit Plan maintained by either Exl or
Exl's Subsidiary or otherwise which covers any employee who provided services to
or on behalf of Exl or Exl's Subsidiary. Exl's
13
Subsidiary is in compliance with the Employees Provident Funds and Miscellaneous
Provisions Act, 1952 and the Employees Provident Funds Scheme, 1952, and the
provident fund established by Exl's Subsidiary has been exempted pursuant to
such acts and is in compliance with the terms and provisions of such exemption.
The XxxXxxxxxx.xxx Employees' Provident Fund qualifies as a recognized provident
fund under the Indian Income Tax Act, 1961. The Subsidiary is in compliance with
all other employee and social security and welfare legislation prevailing in
India.
3.15 Properties. Except as disclosed in Section 3.15 of the Disclosure
Schedule (with paragraph references corresponding to those set forth below):
(a) Each of Exl and Exl's Subsidiary has good and valid title to
all debentures, notes, stocks, securities, and other similar assets that are
owned by it, free and clear of all Liens.
(b) Each of Exl and Exl's Subsidiary own good title to, or has a
valid leasehold interest in, free and clear of all Liens, all Real Estate and
all tangible personal property used in the conduct of its business, operations,
or affairs.
(c) Except as set forth in Section 3.15(c) of the Disclosure
Schedule, each of Exl and Exl's Subsidiary has, and immediately after the
Effective Time, the Surviving Corporation will have, the non-exclusive right to
use, after the Effective Time, free and clear of any royalty or other payment
obligations, claims of infringement or alleged infringement, or other Liens, (i)
all marks, names, trademarks, service marks, patents, patent rights, assumed
names, logos, trade secrets, copyrights, trade names, and service marks that are
used in the conduct of its business, operations, or affairs (of which a true and
complete list and description is included in Section 3.15(c) of the Disclosure
Schedule), (ii) all Material computer software, programs, and similar systems
owned by or licensed to it or used in the conduct of its business, operations,
or affairs (of which a true and complete list and description is included in
Section 3.15(c) of the Disclosure Schedule) and (iii) all other intellectual
property of any kind used in the conduct of its business, operations or affairs.
Except as set forth in Section 3.15(c) of the Disclosure Schedule, neither Exl
nor Exl's Subsidiary is in conflict with or in violation or infringement of, nor
has Exl or Exl's Subsidiary received any notice of any conflict with or
violation or infringement of or any claimed conflict with any asserted rights of
any other Person with respect to any intellectual property or any Material
computer software, programs, or similar systems, including without limitation
any of such items required to be disclosed in Section 3.15(c) of the Disclosure
Schedule.
3.16 Contracts. Section 3.16 of the Disclosure Schedule (with paragraph
references corresponding to those set forth below) contains a true and complete
list of each of the following Contracts or other documents or arrangements (true
and complete copies, or, if none, written descriptions, of which have been made
available to Conseco, together with all amendments thereto), to which Exl or
Exl's Subsidiary is a party, or by which any of the Assets and Properties of Exl
or Exl's Subsidiary is bound:
(a) all Material consulting contracts, other than Contracts
terminable without penalty or other Liability upon 30 days or less notice;
14
(b) all Contracts with any Person containing any provision or
covenant limiting the ability of Exl or Exl's Subsidiary to engage in any line
of business or to compete with or to obtain products or services from any Person
or limiting the ability of any Person to compete with or to provide products or
services to Exl or Exl's Subsidiary;
(c) all partnership, joint venture, profit-sharing, or similar
Contracts with any Person;
(d) all Contracts relating to the borrowing of money by Exl or
Exl's Subsidiary or to the direct or indirect guarantee by Exl or Exl's
Subsidiary of any obligation for borrowed money in excess of $100,000 in the
aggregate or any other Liability in excess of $100,000 in respect of
indebtedness of any other Person, including without limitation any Contract
relating to (i) the maintenance of compensating balances that are not terminable
by Exl or Exl's Subsidiary without penalty or other Liability upon not more than
30 calendar days' notice, (ii) any line of credit or similar facility, (iii) the
payment for property, products, or services of any other Person even if such
property, products, or services have not yet been conveyed, delivered, or
rendered, or (iv) the obligation to take-or-pay, keep-well, make-whole, or
maintain surplus or earnings levels or perform other financial ratios or
requirements; and Section 3.16(d) of the Disclosure Schedule contains a true and
complete list of any requirements for consents or approvals of creditors needed
under any such Contract for Exl to consummate the transactions contemplated
hereby;
(e) all leases or subleases of real property used in the business,
operations, or affairs of Exl or Exl's Subsidiary, and all other Material
leases, subleases, or rental or use Contracts for which Exl or Exl's Subsidiary
is liable with evidence of the payment of all applicable stamp duties and
registration under the Indian Registration Act, 1908 with the Sub-Registrar of
Assurances, as applicable;
(f) all Material Contracts relating to the future disposition or
acquisition of any Assets and Properties of any Person or of any interest in any
business enterprise;
(g) all Contracts or arrangements (including without limitation
those relating to allocations of expenses, personnel, services, or facilities)
with Exl or any Affiliate of Exl other than Exl or Exl's Subsidiary;
(h) all outstanding proxies, powers of attorney, or similar
delegations of authority, except for powers of attorney for the service of
process pursuant to applicable corporate Laws;
(i) all Material Contracts for the provision of administrative or
other services by or for Exl or Exl's Subsidiary to or from any other Person;
(j) all Material Contracts for any product, service, equipment,
facility, or similar item that by their respective terms do not expire or
terminate or are not terminable by Exl or Exl's Subsidiary, without penalty or
other Liability, upon not more than 30 days' or less notice;
15
(k) all Material Contracts relating to the use of computer software
in the business of Exl or Exl's Subsidiary; and
(l) all other Contracts (other than Contracts terminable without
penalty or other Liability upon 30 days or less notice) that involve the payment
or potential payment, pursuant to the terms of such Contracts, by or to Exl or
Exl's Subsidiary of more than $100,000 individually or $500,000 in the aggregate
(with respect to Contracts relating to the same general subject matter).
Each Contract disclosed or required to be disclosed in the Disclosure
Schedule pursuant to this Section 3.16 is in full force and effect and
constitutes a valid and binding obligation of Exl or Exl's Subsidiary (whichever
is a party thereto) and, to the knowledge of Exl, a valid and binding obligation
of all other parties thereto, in accordance with its terms, except to the extent
that enforcement thereof may be limited by or subject to applicable bankruptcy,
insolvency, reorganization, moratorium, or other similar laws now or hereafter
in effect affecting creditors' rights generally and by general principles of
equity (regardless of whether enforcement is sought in equity or at law); and
neither Exl nor Exl's Subsidiary nor, to the Knowledge of Exl, any other party
to such Contract has materially violated, breached or defaulted under any such
Contract or, with or without notice or lapse of time or both, would be in
material violation or breach of or default under any such Contract. Except as
disclosed in Section 3.16 of the Disclosure Schedule, neither Exl nor Exl's
Subsidiary is a party to or bound by any Contract that (i) was not entered into
in the ordinary course of business and consistent with past practice or (ii) the
performance of which by Exl or Exl's Subsidiary or the failure to perform by the
other party has or would reasonably be expected to have, individually or in the
aggregate with the performance of or failure to perform pursuant to any other
such Contracts, a Material Adverse Effect on the Business or Condition of Exl or
Exl's Subsidiary. Neither Exl nor Exl's Subsidiary is a party to or bound by any
collective bargaining or similar labor Contract.
3.17 Licenses and Permits. Except as disclosed in Section 3.17 of the
Disclosure Schedule (with paragraph references corresponding to those set forth
below):
(a) Each of Exl and Exl's Subsidiary owns or validly holds and is
in compliance with the terms and conditions of, all Material licenses,
franchises, permits, approvals, authorizations, exemptions, classifications,
certificates, registrations, and similar documents or instruments that are
required or material for its business, operation, and affairs; and
(b) all such Material licenses, franchises, permits, approvals,
authorizations, exemptions, classifications, certificates, registrations, and
similar documents or instruments are valid, binding, and in full force and
effect, and the subsidiary has issued or provided, as the case may be, all such
undertakings, guarantees, bonds and indemnities that are required to be provided
to any governmental or regulatory authority in connection therewith under
applicable law and policy, including, without limitation, those required under
the Export and Import Policy of the Government of India.
3.18 Operations Insurance. Section 3.18 of the Disclosure Schedule
contains a true and complete list and description of all Material liability,
property, workers compensation, directors and officers liability, and other
similar insurance Contracts that insure the business,
16
operations, or affairs of Exl or Exl's Subsidiary or affect or relate to the
ownership, use, or operations of any of their respective Assets and Properties
and (a) that have been issued to Exl or Exl's Subsidiary (including without
limitation the names and addresses of the insurers, the expiration dates
thereof, and the annual premiums and payment terms thereof) or (b) that are held
by any Affiliate of Exl (other than Exl's Subsidiary) for the benefit of Exl or
Exl's Subsidiary. All such insurance is in full force and effect and, to the
Knowledge of Exl, is with financially sound and reputable insurers and, in light
of the respective business, operations, and affairs of Exl and Exl's Subsidiary,
is in amounts and provides coverage that are reasonable and customary for
Persons in similar businesses.
3.19 Intercompany Liabilities. Except as reflected in the Financial
Statements, or except as disclosed in Section 3.19 of the Disclosure Schedule,
(a) there are no Liabilities between Exl or Exl's Subsidiary on the one hand,
and any securityholder, officer or director of Exl or any affiliate or family
member of any such person on the other, and (b) except for services as an
employee or director, no securityholder, officer or director of Exl or Exl's
Subsidiary or any affiliate or family member of any such person provides or
causes to be provided to Exl or Exl's Subsidiary any products, services,
equipment, facilities, or similar items.
3.20 Bank Accounts. Section 3.20 of the Disclosure Schedule contains
(a) a true and complete list of the names and locations of all banks, trust
companies, securities brokers, and other financial institutions at which Exl or
Exl's Subsidiary has an account or safe deposit box or maintains a banking,
custodial, trading, or other similar relationship and (b) a true and complete
list and description of each such account, box, and relationship, indicating in
each case the account number and the names of the respective employees of Exl or
Exl's Subsidiary authorized to transact business with respect thereto.
3.21 Brokers. Except as disclosed in Section 3.21 of the Disclosure
Schedule, all negotiations relative to this Agreement and the transactions
contemplated hereby have been carried out by Exl directly with Conseco, without
the intervention of any Person on behalf of Conseco in such manner as to give
rise to any valid claim by any Person against Conseco, Exl or Exl's Subsidiary
for a finder's fee, brokerage commission, or similar payment.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF CONSECO AND ACQUISITION
Conseco and Acquisition hereby represent and warrant to Exl as follows:
4.1 Organization of Conseco and Acquisition. Each of Conseco and
Acquisition are duly organized, and validly existing, under the Laws of its
respective jurisdiction of organization and has the requisite power and
Corporate authority to enter into this Agreement and to perform its obligations
under this Agreement. Each of Conseco and Acquisition are duly licensed,
qualified, or admitted to do business in all jurisdictions in which the failure
to be so licensed, qualified, or admitted, individually or in the aggregate with
other such failures, has or would reasonably be expected to have a Material
Adverse Effect on the validity or enforceability of this Agreement, on the
ability of Conseco or Acquisition to perform its obligations under this
Agreement or on the Business or Condition of Conseco or Acquisition.
17
4.2 Authority of Conseco and Acquisition. Each of Conseco and
Acquisition has duly and validly approved this Agreement and the transactions
contemplated hereby. The performance by Conseco and Acquisition of its
obligations under this Agreement have been duly and validly authorized by all
necessary action on the part of Conseco and Acquisition. This Agreement
constitutes a valid, and binding obligation of each of Conseco and Acquisition
and is enforceable against Conseco in accordance with its terms, except to the
extent that enforcement may be limited by or subject to applicable bankruptcy,
insolvency, reorganization, moratorium, or other similar Laws now or hereafter
in effect affecting creditors' rights generally and by general principles of
equity (regardless of whether enforcement is sought in equity or at law).
4.3 Conflicts or Violations. The execution and delivery of this
Agreement by Conseco and Acquisition do not, and the performance by Conseco and
Acquisition of their respective obligations under this Agreement will not:
(a) subject to obtaining the approvals contemplated by Sections 6.1
and 6.2 hereof, violate any Material term or provision of any Law or any writ,
judgment, decree, injunction, or similar order applicable to Conseco and
Acquisition;
(b) conflict with or result in a Material violation or breach of,
or constitute (with or without notice or lapse of time or both) a material
default under, any of the terms, conditions, or provisions of the articles or
certificate of incorporation or by-laws of Conseco or Acquisition;
(c) result in the creation or imposition of any Material Lien upon
Conseco or Acquisition or any of their respective Assets and Properties that
individually or in the aggregate with any other Liens has or would reasonably be
expected to have a Material Adverse Effect;
(d) conflict with or result in a violation or breach of, or
constitute (with or without notice or lapse of time or both) a default under, or
give to any Person any right of termination, cancellation, acceleration, or
modification in or with respect to, any Contract to which Conseco or Acquisition
is a party or by which any of their respective Assets and Properties may be
bound and as to which any such conflicts, violations, breaches, defaults, or
rights individually or in the aggregate have or would reasonably be expected to
have a Material Adverse Effect; or
(e) require Conseco or Acquisition to obtain any consent, approval,
or action of, or make any filing with or give any notice to, any Person except
(i) as contemplated in Section 6.1 or 6.2 hereof, (ii) or those which the
failure to obtain, make, or give individually or in the aggregate with other
such failures has or would reasonably be expected to have no Material Adverse
Effect.
4.4 Litigation. There are no actions, suits, investigations, or
proceedings pending against Conseco or Acquisition, or, to the Knowledge of
Conseco, threatened, and, to the Knowledge of Conseco, no event, fact or
circumstance has arisen or occurred that may reasonably be expected to result in
any action, suit, investigation or proceeding, against Conseco or Acquisition at
law or in equity, in, before, or by any Person, that individually or in the
aggregate have or would reasonably be expected to have a Material Adverse
Effect.
18
4.5 Brokers. All negotiations relative to this Agreement and the
transactions contemplated hereby have been carried out by Conseco directly with
Exl, without the intervention of any Person on behalf of Conseco in such manner
as to give rise to any valid claim by any Person against Exl or Exl's Subsidiary
for a finder's fee, brokerage commission, or similar payment.
4.6 Capital Stock. The shares of Conseco Common Stock to be issued
pursuant to this Agreement will be duly authorized, validly issued and non
assessable.
4.7 SEC Reports. Conseco has filed with the SEC, on a timely basis, all
forms, reports, schedules, registration statements, proxy statements and other
documents required to be filed with the SEC under the Securities Act of 1933, as
amended, and under the Securities Exchange Act of 1934, as amended (together
with all amendments thereof and supplements thereto, the "Conseco SEC Reports").
The Conseco SEC Reports (i) complied in all material respects with the
requirements of the Securities Act of 1933, as amended, or the Securities
Exchange Act of 1934, as amended, as the case may be, and (ii) did not contain
any untrue statement of material fact or omit to state any material fact
required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
ARTICLE V
COVENANTS OF EXL
Exl covenants agrees with Conseco that, at all times before the
Effective Time, Exl will comply, and will cause Exl's Subsidiary to comply, with
all covenants and provisions of this Article V, except to the extent Conseco and
Acquisition otherwise consent in writing or to the extent otherwise required or
permitted by this Agreement.
5.1 Regulatory and Other Approvals. Exl will cause Exl's Subsidiary to,
(a) take all commercially reasonable steps necessary or desirable, and proceed
diligently and in good faith and use all commercially reasonable efforts to
obtain, as promptly as practicable, all approvals required to consummate the
transactions contemplated hereby, (b) take all commercially reasonable steps
necessary or desirable, and proceed diligently and in good faith and use all
commercially reasonable efforts to obtain, as promptly as practicable, all
approvals, authorizations, and clearances of governmental and regulatory
authorities required of Exl and Exl's Subsidiary to permit Exl to consummate the
transactions contemplated hereby, (c) provide such other information and
communications to such governmental and regulatory authorities as Conseco or
such authorities may reasonably request, and (d) cooperate with Conseco in
obtaining, as promptly as practicable, all approvals, authorizations, and
clearances of governmental or regulatory authorities and others required of
Conseco to consummate the transactions contemplated hereby.
5.2 HSR Filings. Exl will (a) take promptly all actions necessary to
make the filings required of Exl or its Affiliates under the HSR Act, if any,
(b) comply at the earliest practicable date with any request for additional
information received by Exl or its Affiliates from the Federal Trade Commission
or Antitrust Division of the Department of Justice pursuant to the XXX Xxx,
00
(c) cooperate with Conseco in connection with Conseco's filings under the HSR
Act, and (d) request early termination of the applicable waiting period.
5.3 Investigation by Conseco. Exl will provide, and will cause Exl's
Subsidiary to provide, (a) Conseco, its lenders, and their respective counsel,
accountants and other representatives with access, upon reasonable notice and
during normal business hours, to all facilities, employees, accountants, Assets
and Properties, and Books and Records of Exl and Exl's Subsidiary and will
furnish Conseco and such other Persons during such period with all such
information and data (including without limitation copies of Contracts, Benefit
Plans, and other Books and Records) concerning the business, operations, and
affairs of Exl and Exl's Subsidiary as Conseco or any of such other Persons
reasonably may request and (b) Conseco with notice of, and reports of all
actions approved at, all meetings (and all actions by written consent in lieu
thereof) of the respective boards of directors and stockholders of Exl and Exl's
Subsidiary, other than such meetings or actions that (i) are in the ordinary
course of business and consistent with past practice of Exl and Exl's
Subsidiary, or (ii) involve only matters related to the consummation of the
transactions contemplated herein.
5.4 Alternative Transactions. Exl will not take, and will not permit
Exl's Subsidiary to take, and will use commercially reasonable efforts to cause
its Affiliates and any other Person acting for or on behalf of any of them, not
to take, directly or indirectly, any action, except as permitted or required by
this Agreement, (i) to solicit or initiate any offer or proposal from any Person
to acquire directly or indirectly any shares of capital stock or any other
securities of Exl or Exl's Subsidiary or any interests therein or, (ii) to
merge, consolidate, or combine, or to permit any other Person to merge,
consolidate or combine, with Exl or Exl's Subsidiary, (iii) to liquidate,
dissolve, or reorganize Exl or Exl's Subsidiary, or (iv) to sell or transfer any
Material Assets and Properties of Exl's Subsidiary or any interests therein
(individually or collectively, an "Acquisition Proposal").
5.5 Conduct of Business. Exl and Exl's Subsidiary will conduct their
business only in the ordinary course and consistent with past practice, except
as otherwise provided in this Agreement or except as may be consented to in
writing by Conseco. Without limiting the generality of the foregoing, Exl will
or will cause Exl's Subsidiary to:
(a) use all commercially reasonable efforts to (i) preserve intact
its present business organization, reputation, and customer relations, (ii) keep
available the services of its present key officers, directors, employees,
agents, consultants, and other similar representatives, (iii) maintain all
licenses, qualifications, and authorizations to do business in each jurisdiction
in which it is so licensed, qualified, or authorized, (iv) maintain in full
force and effect, without any material amendment, all Material Contracts,
documents, and arrangements set forth in Section 3.16 of the Disclosure Schedule
hereof, (v) maintain all of its Assets and Properties in good working order and
condition, ordinary wear and tear excepted, (vi) obtain all licenses necessary
to perform the Services Agreement and (vii) continue all current marketing and
selling activities relating to its business, operations, or affairs in
accordance with its current marketing plan.
(b) cause the Books and Records of Exl and Exl's Subsidiary to be
maintained in the usual manner and consistent with past practice and not permit
a Material change in any Material investment, financial reporting, or accounting
practice or policy of Exl or Exl's
20
Subsidiary or in any assumption underlying such a practice or policy, or in any
method of calculating any bad debt, contingency, or other reserve for financial
reporting purposes.
(c) (i) prepare properly and file duly and validly all reports and
all Tax Returns required by Exl or Exl's Subsidiary to be filed with any
governmental or regulatory authorities with respect to its business, operations,
or affairs, and (ii) to pay in full and when due (or request extensions of time
to pay) all Taxes indicated by such Tax Returns or otherwise levied or assessed
upon it or any of its Assets and Properties, and to withhold or collect and pay
to the proper taxing authorities or hold in separate bank accounts for such
payment all Taxes that it is required to so withhold or collect and pay, unless
such Taxes are being contested in good faith and, reasonable reserves therefor
have been established and reflected in its Books and Records.
(d) use all commercially reasonable efforts to maintain in full
force and effect until the Effective Time substantially the same levels of
coverage as the insurance afforded under the Contracts listed in Section 3.16 of
the Disclosure Schedule. Any and all benefits under such Contracts paid or
payable prior to the Effective Time with respect to the business, operations,
affairs, or Assets and Properties of Exl or Exl's Subsidiary shall be paid or
payable to it.
(e) cause Exl and Exl's Subsidiary to continue to comply in all
material respects with all Laws applicable to their business, operations, or
affairs.
(f) refrain from electing any new executive officers or directors
and refrain from entering into any employment agreements other than in the
ordinary course of those contemplated by this Agreement.
(g) refrain from the payment of obligations except in the ordinary
course and in accordance with the terms of any such obligation.
(h) refrain from the forgiveness of any debt except in the ordinary
course.
5.6 Financial Statements and Reports.
(a) As promptly as practicable after each calendar quarter ending
between the date hereof and the Effective Time, Exl will deliver to Conseco true
and complete copies of the unaudited financial statements of Exl and Exl's
Subsidiary for the quarter then ended.
(b) Exl has delivered to Conseco the following GAAP Statements: the
audited consolidated balance sheet of Exl as of March 31, 2001, and the related
audited consolidated statements of operation, shareholders' equity, and cash
flows for the year then ended, together with the notes and consolidating
supplementary schedules related thereto.
(c) As promptly as practicable, Exl will deliver to Conseco true
and complete copies of such other financial statements, reports, or analyses as
may be delivered by Exl to the Exl Board of Directors or to the shareholders of
Exl.
5.7 Investments. Exl and Exl's Subsidiary will invest its future cash
flow, to the extent not used in its operations, any cash from matured and
maturing investments, any cash
21
proceeds from the sale of its Assets and Properties, and any cash funds
currently held by it, exclusively in cash equivalent assets or in short-term
investments (consisting of United States government issued or guaranteed
securities, commercial paper rated A-1 or P-1, or certificates of deposit issued
by one or more of the banks or financial institutions listed in Section 5.7 of
the Disclosure Schedule, or in money market funds), except (i) as otherwise
required by Law, (ii) as required to provide cash (in the ordinary course of
business and consistent with past practice) to meet its reasonably anticipated
current obligations or (iii) in accordance with the investment policy set forth
in Section 5.7 of the Disclosure Schedule.
5.8 [Intentionally Deleted]
5.9 No Charter Amendments. Exl will not amend and will cause Exl's
Subsidiary to refrain from amending its articles or certificate of incorporation
or organization, memorandum or articles of association or by-laws and from
taking any action with respect to any such amendment.
5.10 No Issuance of Securities. Exl will not authorize or issue and
will cause Exl's Subsidiary to refrain from authorizing or issuing any shares of
its capital stock or other equity securities or entering into any Contract or
granting any option, warrant, or right calling for the authorization or issuance
of any such shares or other equity securities, or creating or issuing any
securities directly or indirectly convertible into or exchangeable for any such
shares or other equity securities, or issuing any options, warrants, or rights
to purchase any such convertible securities; provided that the issuance of
shares pursuant to stock options outstanding on the date hereof shall not be
restricted hereby.
5.11 No Dividends. Exl will not declare, set aside, or pay and will
cause Exl's Subsidiary to refrain from declaring, setting aside, or paying any
dividend or other distribution in respect of its capital stock and from directly
or indirectly redeeming, purchasing, or otherwise acquiring any of its capital
stock or any interest in or right to acquire any such stock.
5.12 No Disposal of Property. Except as otherwise expressly
contemplated in this Agreement, each of Exl and Exl's Subsidiary will not(a)
dispose of any of its Material Assets and Properties or permit any of its Assets
and Properties from becoming subject to any Material Liens, except to the extent
any such disposition or any such Lien is made or incurred for fair value in the
ordinary course of the business and consistent with past practice, (b) sell any
part of its operations or other business to any third party, (c) enter into any
contracts obligating it to administer the insurance operations of any other
Person and (d) enter into any Contracts permitting any other Person to
administer its operations.
5.13 No Breach or Default. Each of Exl and Exl's Subsidiary will not
violate, breach, or default, and will not take or fail to take any action that
(with or without notice or lapse of time or both) would constitute a violation,
breach, or default, in any way under any term or provision of any Material
Contract to which it is a party or by which any of its Assets and Properties is
or may be bound.
5.14 No Indebtedness. Except as disclosed in the Disclosure Schedules,
each of Exl and Exl's Subsidiary will not create, incur, assume, guarantee, or
otherwise become liable for,
22
and will not cancel, pay, agree to cancel or pay, or otherwise provide for a
complete or partial discharge in advance of a scheduled payment date with
respect to, any Material Liability, and will not waive any right to receive any
direct or indirect payment or other benefit under any Liability owing to it.
5.15 No Acquisitions. Each of Exl and Exl's Subsidiary will not (a)
merge, consolidate, or otherwise combine or agree to merge, consolidate, or
otherwise combine with any other Person, (b) acquire or agree to acquire blocks
of business or all or substantially all of the Assets and Properties or capital
stock or other equity securities of any other Person, or (c) otherwise acquire
or agree to acquire control of any other Person.
5.16 Affiliate Liabilities. At least five Business Days before the
Effective Time, Exl will deliver to Conseco a true and complete list and
description of all Liabilities between Exl or Exl's Subsidiary and Exl or any
Affiliate of Exl scheduled to be outstanding on the Effective Time. Such list
and description shall set forth Exl's estimate, which may be expressed as a
range, of the dollar amount of such Liabilities. Except for those Liabilities
disclosed in Section 5.16 of the Disclosure Schedule, all such Liabilities shall
be paid, at or prior to the Effective Time. Except as disclosed in Section 5.16
of the Disclosure Schedule, neither Exl nor Exl's Subsidiary will enter into any
Contract or, except as required by any Contract disclosed in Section 3.16 of the
Disclosure Schedule, engage in any transaction with any other Affiliate of Exl.
5.17 Resignations of Directors. The initial members of the board of
Directors of Exl immediately after the Effective Time shall be Xxxx X. Xxxxx,
Xxxxxxx X. Xxxxxx, Xxxxx Xxxxxx, Xxxxxxx Xxxxxx, Xxxxx Xxxxxx, Xxxxxx Xxxxxx,
Xxxxxxx Xxxxxxxxxx and Xxxxx Xxxxxxx. Exl will endeavor to have the other
members of the Board of Directors of Exl to tender, effective at the Effective
Time, their resignations from such Board of Directors.
5.18 Notice and Cure. Exl will notify Conseco promptly in writing of,
and contemporaneously will provide Conseco with true and complete copies of any
and all information or documents relating to, and will use all commercially
reasonable efforts to cure before the Effective Time, any event, transaction, or
circumstance occurring after the date of this Agreement that causes or will
cause any covenant or agreement of Exl under this Agreement to be breached, or
that renders or will render untrue any representation or warranty of Exl
contained in this Agreement as if the same were made on or as of the date of
such event, transaction, or circumstance. Exl also will use all commercially
reasonable efforts to cure, before the Effective Time, any violation or breach
of any representation, warranty, covenant, or agreement made by it in this
Agreement, whether occurring or arising before or after the date of this
Agreement.
5.19 Supplements to Schedules. At any time or from time to time after
the date hereof and prior to the Effective Time, Exl may supplement or amend the
Disclosure Schedule with respect to any matter arising after the date hereof
which, if existing or occurring at the date hereof, would have been required to
be set forth or described therein.
23
ARTICLE VI
COVENANTS OF CONSECO AND ACQUISITION
Conseco and Acquisition covenant and agree with Exl that, at all times
before the Effective Time, Conseco and Acquisition will comply with all
covenants and provisions of this Article VI, except to the extent Exl otherwise
consents in writing or to the extent otherwise required or permitted by this
Agreement.
6.1 Regulatory Approvals. Conseco will, and Acquisition will, (a) take
all commercially reasonable steps necessary or desirable, and proceed diligently
and in good faith and use all commercially reasonable efforts to obtain, as
promptly as practicable, all approvals, authorizations, and clearances of
governmental and regulatory authorities required of Conseco and Acquisition to
consummate the transactions contemplated hereby, (b) provide such other
information and communications to such governmental and regulatory authorities
as Exl or such authorities may reasonably request, and (c) cooperate with Exl,
and Exl's Subsidiary in obtaining, as promptly as practicable, all approvals,
authorizations, and clearances of governmental or regulatory authorities
required of Exl and Exl's Subsidiary to consummate the transactions contemplated
hereby.
6.2 HSR Filings. Conseco and Acquisition will (a) take promptly all
actions necessary to make the filings required of Conseco and Acquisition or
their respective Affiliates under the HSR Act, (b) comply at the earliest
practicable date with any request for additional information received by Conseco
and Acquisition or their respective Affiliates from the Federal Trade Commission
or Antitrust Division of the Department of Justice pursuant to the HSR Act, (c)
cooperate with Exl in connection with Exl's filings under the HSR Act, and (d)
request early termination of the applicable waiting period.
6.3 Notice and Cure. Conseco or Acquisition will notify Exl promptly in
writing of, and contemporaneously will provide Exl with true and complete copies
of any and all information or documents relating to, and will use all
commercially reasonable efforts to cure before the Effective Time, any event,
transaction, or circumstance occurring after the date of this Agreement that
causes or will cause any covenant or agreement of Conseco or Acquisition under
this Agreement to be breached, or that renders or will render untrue any
representation or warranty of Conseco or Acquisition contained in this Agreement
as if the same were made on or as of the date of such event, transaction, or
circumstance. Each of Conseco and Acquisition also will use all commercially
reasonable efforts to cure, before the Effective Time, any violation or breach
of any representation, warranty, covenant, or agreement made by it in this
Agreement, whether occurring or arising before or after the date of this
Agreement.
6.4 Directors' and Officers' Indemnification.
(a) Except to the extent required by law, until the fifth
anniversary of the Effective Time, Conseco will not take any action so as to
amend, modify or repeal the provisions for indemnification of directors,
officers, stockholders, employees or agents contained in any contracts or in the
certificates or articles of incorporation or bylaws (or other comparable charter
documents) of the Surviving Corporation and its Subsidiaries (which as of the
Effective Time
24
shall be no less favorable to such individuals than those maintained by Exl and
its subsidiaries on the date hereof) in such a manner as would materially and
adversely affect the rights of any individual who shall have served as a
director, officer, stockholder, employee or agent of Exl or any of its
subsidiaries prior to the Effective Time (each an "Indemnified Party") to be
indemnified by such corporations in respect of their serving in such capacities
prior to the Effective Time.
(b) The provisions of this Section are intended to be for the
benefit of, and shall be enforceable by, each Indemnified Party, and his or her
heirs and legal representatives, and shall be in addition to any other rights an
Indemnified Party may have under the certificate or articles of incorporation or
bylaws of the Surviving Corporation or any of its Subsidiaries, under applicable
law.
(c) In the event the Surviving Corporation, or any of its
successors or assigns, (i) consolidates with or merges into any other person and
shall not be the continuing or surviving corporation or entity of such
consolidation or merger or (ii) transfers all or a material portion of its
properties, assets or operations to any person, then, in each such case, Conseco
shall assume the indemnification obligations of the Surviving Corporation
referred to in paragraph (a) of this Section.
ARTICLE VII
CONDITIONS TO OBLIGATIONS OF CONSECO AND ACQUISITION
The obligations of Conseco and Acquisition hereunder are subject to the
fulfillment, at or before the Effective Time, of each of the following
conditions (all or any of which may be waived in whole or in part by Conseco and
Acquisition).
7.1 Representations and Warranties. On and as of the Effective Time
there shall not exist any breaches of representations and warranties made by Exl
in this Agreement, assuming such representations and warranties were made on and
as of the Effective Time, which breaches individually or in the aggregate have
or would reasonably be expected to have a Material Adverse Effect on Exl or
Exl's Subsidiary.
7.2 Performance. Exl shall have performed or complied in all material
respects with all agreements, covenants, obligations, and conditions required by
this Agreement to be so performed or complied with by it at or before the
Effective Time, including those specifically referred to elsewhere in this
Article VII.
7.3 Officer's Certificates. Exl shall have delivered to Conseco a
certificate, dated the Effective Time in form reasonably acceptable to Conseco
and executed by the chief executive officer and the chief financial officer of
Exl, certifying (with respect to Exl and, as appropriate, Exl's Subsidiary) as
to the fulfillment of the conditions set forth in Sections 7.1, 7.2, 7.5, 7.6,
7.7 and 7.8 hereof. In addition, Exl shall have delivered to Conseco a
certificate, dated the Effective Time and executed by an officer of Exl,
certifying that Exl has duly and validly taken all corporate action necessary to
authorize its execution and delivery of this Agreement and its performance of
its obligations under this Agreement, and that the resolutions (true and
25
complete copies of which shall be attached to the certificate) of the Board of
Directors and shareholders of Exl with respect to this Agreement and the
transactions contemplated hereby have been duly and validly adopted and are in
full force and effect.
7.4 HSR Act Approval. All waiting periods applicable to this Agreement
and the transactions contemplated hereby under the HSR Act shall have expired or
been waived.
7.5 No Injunction. There shall not be in effect on the Effective Time
any writ, judgment, injunction, decree, or similar order of any court or similar
Person restraining, enjoining, or otherwise preventing consummation of any of
the transactions contemplated by this Agreement.
7.6 No Proceeding or Litigation. There shall not be instituted, pending
or, to the Knowledge of Conseco or Acquisition or to the Knowledge of Exl,
threatened, any action, suit, investigation, or other proceeding in, before, or
by any court, governmental or regulatory authority, or other Person to restrain,
enjoin, or otherwise prevent consummation of any of the transactions
contemplated by this Agreement or to recover any Damages or obtain other relief
as a result of this Agreement or any of the transactions contemplated hereby or
as a result of any Contract entered into in connection with or as a condition
precedent to the consummation hereof, which action, suit, investigation, or
other proceeding would, in the reasonable opinion of Conseco, result in a
decision, ruling, or finding that individually or in the aggregate has or would
reasonably be expected to have a Material Adverse Effect on the validity or
enforceability of this Agreement, on the ability of Exl to perform its
obligations under this Agreement, or on the Business or condition of Exl and
Exl's Subsidiary. There shall not be in effect on the Effective Time any
voluntary or involuntary bankruptcy, receivership, conservatorship, or similar
proceeding with respect to Exl or Exl's Subsidiary.
7.7 Consents, Authorizations, etc. All material orders, consents,
permits, authorizations, approvals, and waivers of every Person necessary to
permit Exl to perform its obligations under this Agreement and to consummate the
transactions contemplated hereby shall have been obtained and shall be in full
force and effect.
7.8 No Adverse Change. Except (i) as disclosed in Section 3.9 of the
Disclosure Schedule, (ii) for changes or developments relating to the conduct of
the business of Exl and Exl's Subsidiary after the date of this Agreement in
conformity with the requests of Conseco, Acquisition or as otherwise provided
for or expressly contemplated in this Agreement, there shall not have been,
occurred, or arisen any change, event (including without limitation any damage,
destruction, or loss whether or not covered by insurance), condition, or state
of facts of any character that individually or in the aggregate has or would
reasonably be expected to have a Material Adverse Effect on Exl and Exl's
Subsidiary.
7.9 Employment Agreements. Messrs. Kapoor and Xxxxxx shall have each
entered into an employment agreement with Conseco, Inc., to be effective as of
the Effective Time.
7.10 Opinions of Counsel. Exl shall have delivered to Conseco (a) the
opinion of Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP, counsel to Exl, as to the matters
set forth on Schedule
26
7.10(a), and (b) the opinion Xxxxxx & Xxxxxx, Exl's local counsel in India as to
the matters set forth on Schedule 7.10(b).
ARTICLE VIII
CONDITIONS TO OBLIGATIONS OF EXL
The obligations of Exl hereunder are subject to the fulfillment, at or
before the Effective Time, of each of the following conditions (all or any of
which may be waived in whole or in part by Exl.
8.1 Representations and Warranties. On and as of the Effective Time
there shall not exist any breaches of representations and warranties made by
Conseco or Acquisition in this Agreement, assuming such representations and
warranties were made on and as of the Effective Time, which breaches
individually or in the aggregate have or would reasonably be expected to have a
Material Adverse Effect on Conseco.
8.2 Performance. Conseco and Acquisition shall have performed or
complied in all material respects with all agreements, covenants, obligations,
and conditions required by this Agreement to be so performed or complied with by
Conseco and Acquisition at or before the Effective Time.
8.3 Officer's Certificates. Each of Conseco and Acquisition shall have
delivered to Exl a certificate, dated the Effective Time in form reasonably
acceptable to Exl and executed by the chief executive officer or the chief
financial officer of Conseco and Acquisition, certifying (with respect to
Conseco and Acquisition) as to the fulfillment of the conditions set forth in
Sections 8.1, 8.2, 8.4, 8.5, 8.6, 8.8 and 8.11 hereof. In addition, each of
Conseco and Acquisition shall have delivered to Exl a certificate, dated the
Effective Time and executed by the secretary or any assistant secretary of
Conseco and Acquisition, respectively certifying (as appropriate) that each of
Conseco and Acquisition has duly and validly taken all action necessary to
authorize its execution and delivery of this Agreement and its performance of
its obligations under this Agreement, and that the resolutions (true and
complete copies of which shall be attached to the certificate) of the respective
Board of Directors of Conseco and Acquisition with respect to this Agreement and
the transactions contemplated hereby have been duly and validly adopted and are
in full force and effect.
8.4 HSR Act Approval. All waiting periods applicable to this Agreement
and the transactions contemplated hereby under the HSR Act shall have expired or
been waived.
8.5 No Injunction. There shall not be in effect on the Effective Time
any writ, judgment, injunction, decree, or similar order of any court or similar
Person restraining, enjoining, or otherwise preventing consummation of any of
the transactions contemplated by this Agreement.
8.6 No Proceeding or Litigation. There shall not be instituted, pending
or, to the Knowledge of Conseco or Acquisition or to the Knowledge of Exl,
threatened, any action, suit, investigation, or other proceeding in, before, or
by any court, governmental or regulatory authority, or other Person to restrain,
enjoin, or otherwise prevent consummation of any of the
27
transactions contemplated by this Agreement or to recover any Damages or obtain
other relief as a result of this Agreement or any of the transactions
contemplated hereby or as a result of any Contract entered into in connection
with or as a condition precedent to the consummation hereof, which action, suit,
investigation, or other proceeding may, in the reasonable opinion of Exl, result
in a decision, ruling, or finding that individually or in the aggregate has or
would reasonably be expected to have a Material Adverse Effect on the validity
or enforceability of this Agreement or on the ability of Conseco or Acquisition
to perform its obligations under this Agreement. There shall not be in effect on
the Effective Time any voluntary or involuntary bankruptcy, receivership,
conservatorship, or similar proceeding with respect to Conseco and Acquisition.
8.7 Employment Agreements. Messrs. Kapoor and Xxxxxx shall have each
entered into an employment agreement with Conseco, Inc. to be effective as of
the Effective Time, on such terms and in such form as are satisfactory to
Conseco.
8.8 Senior Management Incentive Plan. Conseco shall have adopted the
Senior Management Incentive Plan for the benefit of Xxxxxx Xxxxxx and Xxxxx
Xxxxxx.
8.9 Opinion of Counsel to Conseco. Conseco and Acquisition shall have
delivered to Exl the opinion, in form and substance reasonably acceptable to
such counsel and Exl's counsel, dated the Effective Time, of Xxxxx X. Xxxxxx,
counsel to Conseco and Acquisition.
8.10 Opinion of Tax Counsel to Exl. Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP,
counsel to Exl, shall have delivered to Exl an opinion, in form and substance
reasonably acceptable to Exl, as to the tax-free nature of the Merger and the
transactions contemplated hereby.
8.11 Consents, Authorizations, etc. All material orders, consents,
permits, authorizations, approvals and waivers of every Person necessary to
permit Conseco and Acquisition to perform their respective obligations under
this Agreement and to consummate the transactions contemplated hereby shall have
been obtained and shall be in full force and effect.
ARTICLE IX
SURVIVAL OF PROVISIONS; REMEDIES
9.1 Survival. The representations, warranties, covenants, and
agreements made by Exl and Conseco and Acquisition in this Agreement, or in any
certificate delivered by Exl or Conseco or Acquisition pursuant to Section 7.3
or Section 8.3 hereof, respectively, will not survive the Effective Time.
9.2 Available Remedies. Each party expressly agrees that, consistent
with its intention and agreement to be bound by the terms of this Agreement and
to consummate the transactions contemplated hereby, subject only to the
performance or satisfaction of precedent conditions or of precedent requirements
imposed upon another party hereto, the remedy of specific performance shall be
available to a non-breaching and non-defaulting party to enforce performance of
this Agreement by a breaching or defaulting party, including, without
limitation, to require the consummation of the Merger at the Effective Time. The
rights and remedies provided for in this Agreement are cumulative and are not
exclusive of any rights or remedies
28
that any party may otherwise have at law or in equity. The rights and remedies
of any party based upon, arising out of or otherwise in respect of any breach of
any representation, warranty, covenant or agreement contained in this Agreement
shall in no way be limited by the fact that the act, omission, occurrence or
other state of facts upon which any claim of any such breach is based may also
be the subject matter of any other representation, warranty, covenant or
agreement contained in this Agreement (or in any other agreement between the
parties) as to which there is no breach.
ARTICLE X
TERMINATION
10.1 Termination. This Agreement may be terminated, and the
transactions contemplated hereby may be abandoned, upon notice by the
terminating party to the other party:
(a) at any time before the Effective Time, by mutual written
agreement of Exl, Conseco and Acquisition; or
(b) at any time by Exl in the event of any material breach of any
representation, warranty, covenant or agreement on the part of Conseco or Exl
Acquisition or if any material representation of Conseco shall have become
untrue, in either case such that the conditions set forth in Article VIII are
incapable of being satisfied by September 30, 2001;
(c) at any time by Conseco and Exl Acquisition in the event of any
material breach of any representation, warranty, covenant or agreement on the
part of Exl if any representation of Exl shall have become untrue, such that the
conditions set forth in Article VII are incapable of being satisfied by
September 30, 2001; and
(d) at any time after September 30, 2001, by Exl, on the one hand,
or Conseco and Acquisition, on the other hand, if the transactions contemplated
by this Agreement have not been consummated on or before such date and such
failure to consummate is not caused by a breach of this Agreement (or any
representation, warranty, covenant, or agreement included herein) by the parties
electing to terminate pursuant to this clause (d); provided, however, that any
party may by notice to the others extend such date to December 31, 2001, if the
only conditions to Effective Time not satisfied as of September 30, 2001, are
those set forth in Sections 7.4, 7.7, 8.4 or 8.11 hereof.
10.2 Effect of Termination. If this Agreement is validly terminated
pursuant to Section 10.1 hereof, this Agreement will thereupon become null and
void, and there will be no Liability on the part of Exl, Acquisition or Conseco
(or any of their respective Employee, consultants, or other representatives),
except that (a) the provisions in Section 12.2 and 12.4 will continue to apply
following any such termination and (b) any such termination shall be without
prejudice to any claim which either party may have against the other for breach
of this Agreement (or any representation, warranty, covenant, or agreement
included herein). All reasonable out-of-pocket expenses incurred in connection
with this Agreement and the transactions contemplated hereby by a non-breaching
party who terminates this Agreement pursuant to Section 10.1 hereof will be
reimbursed promptly by the breaching party.
29
ARTICLE XI
NOTICES
11.1 Notices. All notices and other communications under this Agreement
must be in writing and will be deemed to have been duly given if delivered,
telecopied or mailed, by certified mail, return receipt requested, first-class
postage prepaid, to the parties at the following addresses:
If to Exl, to:
XxxXxxxxxx.xxx, Inc.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxx, Chief Financial Officer
Telephone: 000-000-0000
Telecopy: 000-000-0000
with a copy to:
Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx, LLP
000 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000-0000
Attention: Xxxxxxx Xxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
If to Conseco or Exl Acquisition, to:
Conseco, Inc.
00000 X. Xxxxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
All notices and other communications required or permitted under this Agreement
that are addressed as provided in this Article XI will, if delivered personally,
be deemed given upon delivery, will, if delivered by telecopy, be deemed
delivered when confirmed and will, if delivered by mail in the manner described
above, be deemed given on the third Business Day after the day it is deposited
in a regular depository of the United States mail. Any party from time to time
may change its address for the purpose of notices to that party by giving a
similar notice specifying a new address, but no such notice will be deemed to
have been given until it is actually received by the party sought to be charged
with the contents thereof.
30
ARTICLE XII
MISCELLANEOUS
12.1 Entire Agreement. Except for documents executed by Exl,
Acquisition and Conseco pursuant hereto, this Agreement supersedes all prior
discussions and agreements between the parties with respect to the subject
matter of this Agreement, and this Agreement (including the exhibits hereto, the
Disclosure Schedule, and other Contracts and documents delivered in connection
herewith) contains the sole and entire agreement between the parties hereto with
respect to the subject matter hereof.
12.2 Expenses. Except as otherwise expressly provided in this Agreement
(including without limitation as provided in Section 10.2 hereof), Conseco will
pay Exl's reasonable and customary costs and expenses in connection with this
Agreement and the transactions contemplated hereby. In no event, shall such
costs and expenses exceed $100,000.
12.3 Public Announcements. At all times at or before the Effective
Time, Exl and Conseco will each consult with the other before issuing or making
any reports, statements, or releases to the public with respect to this
Agreement or the transactions contemplated hereby and will use good faith
efforts to agree on the text of a joint public report, statement, or release or
will use good faith efforts to obtain the other party's approval of the text of
any public report, statement, or release to be made solely on behalf of a party.
If Exl and Conseco are unable to agree on or approve any such public report,
statement, or release and such report, statement, or release is, in the opinion
of legal counsel to a party, required by Law or may be appropriate in order to
discharge such party's disclosure obligations, then such party may make or issue
the legally required report, statement, or release. Any such report, statement,
or release approved or permitted to be made pursuant to this Section 13.3 may be
disclosed or otherwise provided by Exl or Conseco to any Person, including
without limitation to any employee or customer of either party hereto and to any
governmental or regulatory authority. Exl shall not issue or make any reports,
statements or releases to the public with respect to the Agreement.
12.4 Confidentiality. Each of Exl, Conseco and Exl Acquisition will
hold, and will cause its respective Affiliates and their respective employees,
consultants, and other representatives to hold, in strict confidence, unless
compelled to disclose by judicial or administrative process (including without
limitation in connection with obtaining the necessary approval of insurance
regulatory authorities) or by other requirements of Law, all documents and
confidential or proprietary information concerning the other party furnished to
it by the other party or such other party's employees, consultants, or
representatives in connection with this Agreement or the transactions
contemplated hereby, except to the extent that such documents or information can
be shown to have been (a) previously lawfully known by the party receiving such
documents or information, (b) in the public domain through no fault of such
receiving party, or (c) later acquired by the receiving party from other sources
not themselves bound by, and in breach of, a confidentiality agreement. Except
as provided in Sections 5.1, 5.2, 6.1 and 6.2 hereof, no party hereto will
disclose or otherwise provide any such documents or confidential or proprietary
information to any other Person, except to either party's lenders and investors
and to either party's respective auditors, actuaries, attorneys, financial
advisors, and other consultants and advisors who need such documents or
information in connection with this Agreement, and
31
the parties hereto agree to cause each of the foregoing to be subject to and
bound by the confidentiality provisions hereof.
12.5 Waiver. Any term or condition of this Agreement may be waived at
any time by the party that is entitled to the benefit thereof; such waiver must
be in writing and must be executed by the Chairman of the Board, chief executive
officer, chief financial officer, general counsel, or chief operating officer of
such party. A waiver on one occasion will not be deemed to be a waiver of the
same or any other breach on a future occasion. All remedies, either under this
Agreement, or by Law or otherwise afforded, will be cumulative and not
alternative.
12.6 Amendment. This Agreement may be modified or amended only by a
writing duly executed by or on behalf of all parties hereto.
12.7 Counterparts. This Agreement may be executed simultaneously in any
number of counterparts, each of which will be deemed an original, but all of
which will constitute one and the same instrument.
12.8 No Third Party Beneficiary. The terms and provisions of this
Agreement are intended solely for the benefit of the parties hereto, and their
respective successors or assigns, and it is not the intention of the parties to
confer third-party beneficiary rights upon any other Person.
12.9 Governing Law. This Agreement shall be governed by and construed
in accordance with the Laws of the State of Delaware applicable to a Contract
executed and performable in such state.
12.10 Binding Effect. This Agreement is binding upon and will inure to
the benefit of the parties and their respective successors and assignees.
12.11 Assignment Limited. Except as otherwise provided herein, this
Agreement or any right hereunder or part hereof may not be assigned by any party
hereto without the prior written consent of the other party hereto.
12.12 Headings, Gender, etc. The headings used in this Agreement have
been inserted for convenience and do not constitute matter to be construed or
interpreted in connection with this Agreement. Unless the context of this
Agreement otherwise requires, (a) words of any gender are deemed to include each
other gender; (b) words using the singular or plural number also include the
plural or singular number, respectively; (c) the terms "hereof," "herein,"
"hereby," "hereto," and derivative or similar words refer to this entire
Agreement; (d) the terms "Article" or "Section" refer to the specified Article
or Section of this Agreement; and (e) all references to "dollars" or "$" refer
to currency of the United States of America.
12.13 Invalid Provisions. If any provision of this Agreement is held to
be illegal, invalid, or unenforceable under any present or future Law, and if
the rights or obligations of Exl, Conseco or Acquisition under this Agreement
will not be materially and adversely affected thereby, (a) such provision will
be fully severable; (b) this Agreement will be construed and enforced as if such
illegal, invalid, or unenforceable provision had never comprised a part hereof;
(c) the remaining provisions of this Agreement will remain in full force and
effect and will not
32
be affected by the illegal, invalid, or unenforceable provision or by its
severance herefrom; and (d) in lieu of such illegal, invalid, or unenforceable
provision, there will be added automatically as a part of this Agreement a
legal, valid, and enforceable provision as similar in terms to such illegal,
invalid, or unenforceable provision as may be possible.
33
IN WITNESS WHEREOF, this Agreement has been duly executed and delivered
by the duly authorized officers of Exl, Conseco and Acquisition, effective as of
the date first written above.
CONSECO, INC.
By: /s/ Xxxxx Xxxxxx
--------------------------------------------
Xxxxx Xxxxxx, Executive Vice President,
Strategic Business Development
NOIDA ACQUISITION CORP.
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------------------
Xxxxxx X. Xxxxxx, President
XXXXXXXXXX.XXX, INC.
By: /s/ Xxxxx Xxxxxx
-------------------------------------------------
Xxxxx Xxxxxx, Chief Financial Officer
34
Exhibit A
DEFINITIONS OF TERMS
"Affiliate" shall mean any Person that directly, or indirectly through
one or more intermediaries, Controls, is Controlled by, or is under common
Control with the Person specified.
"Agreement" shall mean this Agreement and Plan of Merger, together with
the exhibits attached hereto, the Disclosure Schedule, and the Contracts and
other documents to be executed and delivered respectively by the parties
pursuant hereto.
"Assets and Properties" shall mean all assets and properties of every
kind, nature, character, and description (whether real, personal, or mixed,
whether tangible or intangible, whether absolute, accrued, contingent, fixed, or
otherwise, and wherever situated) as now operated, owned, or leased by a
specified Person, including without limitation cash, cash equivalents,
securities, accounts and notes receivable, real estate, equipment, furniture,
fixtures, insurance or annuities in force, goodwill, and going-concern value.
"Benefit Plans" shall mean all Employee Pension Benefit Plans, all
Employee Welfare Benefit Plans, all stock bonus, stock ownership, stock option,
stock purchase, stock appreciation rights, phantom stock, and other stock plans
(whether qualified or non-qualified), and all other pension, welfare, severance,
retirement, bonus, deferred compensation, incentive compensation, insurance
(whether life, accident and health, or other and whether key man, group, workers
compensation, or other), profit sharing, disability, thrift, day care, legal
services, leave of absence, layoff, and supplemental or excess benefit plans,
and all other benefit Contracts, arrangements, or procedures having the effect
of a plan, in each case existing on or before the Effective Time in connection
with the performance of services under which Exl or Exl's Subsidiary is or may
hereafter become obligated in any manner (including without limitation
obligations to make contributions or other payments); provided, however, that
such term shall include severance benefit programs but shall not include (a)
routine employment policies and procedures developed and applied in the ordinary
course of business and consistent with past practice, including without
limitation sick leave, vacation, and (b) directors and officers liability
insurance.
"Books and Records" shall mean all accounting, financial reporting,
Tax, business, marketing, corporate, and other files, documents, instruments,
papers, books, and records of a specified Person, including without limitation,
ledgers, journals, deeds, titles, policies, manuals, minute books, stock
certificates and books, stock transfer ledgers, Contracts, franchises, permits,
agency lists, policyholder lists, supplier lists, reports, computer files,,
operating data or plans, and environmental studies or plans.
"Business Day" shall mean a day other than Saturday, Sunday, or any day
on which the principal commercial banks located in New York are authorized or
obligated to close under the Laws of New York.
A-1
"Business or Condition" shall mean the organization, existence,
authority, capitalization, business, licenses, condition (financial or
otherwise), cash flow, management, prospects, solvency, results of operations,
Liabilities, or Assets and Properties of a specified Person.
"CERCLA" shall mean the Comprehensive Environmental Response,
Compensation and Liability Act.
"Code" shall mean the Internal Revenue Code of 1986, as amended
(including without limitation any successor code), and the rules and regulations
promulgated thereunder.
"Commercially reasonable efforts" or "commercially reasonable steps,"
when used with respect to any party, shall mean the reasonable efforts of a
party without the requirement that such party incur any unanticipated (as of the
date hereof) out-of-pocket expenses, including the making of any capital
contribution, or incur any other unanticipated (as of the date hereof) burden or
commence or pursue litigation in any action, suit or proceeding, whether
administrative, civil or criminal.
"Common Stock" shall have the meaning ascribed to it in Section 2.4
hereof.
"Conseco" shall have the meaning ascribed to it in the preamble of this
Agreement.
"Contract" shall mean any agreement, lease, sublease, license,
sublicense, promissory note, evidence of indebtedness, insurance policy,
annuity, or other contract or commitment (whether written or oral).
"Control" (and its derivative terms "Controlled" "Controls", etc.)
shall mean the power and right to direct the management and policies of another
Person, whether by ownership of voting securities, the ability to elect a
majority of the Board of Directors or other managing board or committee,
management contract, or otherwise.
"Damages" shall mean any and all monetary damages, Liabilities, fines,
fees, penalties, interest obligations, deficiencies, losses, and expenses
(including without limitation punitive, treble, or other exemplary or
extra-contractual damages, amounts paid in settlement, interest, court costs,
costs of investigation, reasonable fees and expenses of attorneys, accountants,
actuaries, and other experts, and other reasonable expenses of litigation or of
any claim, default, or assessment).
"Disclosure Schedule" shall mean the bound record dated as of the date
of this Agreement, as amended, supplemented and revised in accordance with this
Agreement, furnished by Exl to Conseco, and containing all lists, descriptions,
exceptions, and other information and materials as are required to be included
therein pursuant to this Agreement.
"Effective Time" shall have the meaning set forth in Section 2.2 or
such other date as Conseco and Exl may mutually agree upon in writing.
"Employee Pension Benefit Plan" shall mean each employee pension
benefit plan (whether or not insured), as defined in Section 3(2) of ERISA,
which is or was in existence on or before the Effective Time, which covers any
employee who provided services to or on behalf of
A-2
Exl or Exl's Subsidiary and to which Exl or Exl's Subsidiary is or would
hereafter become obligated in any manner as an employer, and (ii) each master or
prototype (as well as any individually designed) pension, profit sharing,
defined benefit, Code Section 401(k), and other retirement or employee benefit
plan or Contract (including, but not limited to, simplified employee pension
plans, Code Section 403(a), (b) and (c) annuities, Xxxxx plans, and individual
retirement accounts and annuities) offered or sold by Exl or Exl's Subsidiary
to, or maintained or sponsored for the benefit of any employees of, any other
entity, and each other plan, program or Contract which provides benefits to any
employees of any other entity with respect to which Exl or Exl's Subsidiary
provides services.
"Employee Welfare Benefit Plan" shall mean each employee welfare
benefit plan (whether or not insured), as defined in Section 3(1) of ERISA,
which is or was in existence on or before the Effective Time and to which, or in
connect with which, Exl or Exl's Subsidiary is or may become obligated in any
manner.
"Environmental Laws" shall mean any Federal, state or local law,
statute, ordinance or regulation pertaining to the environmental condition on or
under any property including, without limitation, CERCLA and the Toxic Substance
Control Act, and the rules and regulations thereunder.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as amended (including without limitation any successor act), and the rules and
regulations promulgated thereunder.
"ERISA Affiliate" shall mean any Person under common Control (as
defined in Section 414 of the Code) with Exl, or Exl's Subsidiary.
"Exl" shall have the meaning ascribed to it in the preamble of this
Agreement.
"Exl's Subsidiary" shall mean exl Xxxxxxx.xxx(India) Pvt. Ltd., a
corporation organized under the laws of India.
"Financial Statements" shall mean the GAAP Statement.
"GAAP" shall mean generally accepted accounting principles,
consistently applied throughout the specified period and in the immediately
prior comparable period.
"GAAP Statement" shall mean the financial statements of Exl and Exl's
Subsidiary, on a consolidated basis, prepared in accordance with GAAP and
delivered to Conseco pursuant to Section 3.8 hereof.
"GCL" shall have the meaning ascribed to it in Section 2.1 hereof.
"Hazardous Substance" shall mean (i) any and all hazardous, toxic or
dangerous waste, substance, pollutant, contaminant, radiation or material
defined as such in, or deemed as such for purposes of, CERCLA, or any other
Environmental Law and (ii) any petroleum or petroleum-based products.
X-0
"XXX Xxx" shall mean Section 7A of the Xxxxxxx Act (Title II of the
Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976), as amended (including
without limitation any successor act), and the rules and regulations promulgated
thereunder.
"Indemnified Party" shall mean a Person claiming indemnification under
Section 6.4 hereof.
"IRS" shall mean the United States Internal Revenue Service or any
successor agency.
"Knowledge of Conseco" means the actual knowledge of or knowledge which
would have been obtained in a reasonable investigation by any officer of
Conseco.
"Knowledge of Exl" means the actual knowledge of or knowledge which
would have been obtained in a reasonable investigation by any officer of Exl or
Exl's Subsidiary.
"Laws" shall mean all laws, statutes, ordinances, regulations, and
other pronouncements having the effect of law of the United States of America,
any foreign country, or any domestic or foreign state, province, commonwealth,
city, country, municipality, territory, protectorate, possession, court,
tribunal, agency, government, department, commission, arbitrator, board, bureau,
or instrumentality thereof.
"Liabilities" shall mean all debts, obligations, and other liabilities
of a Person (whether absolute, accrued, contingent, fixed, or otherwise, or
whether due or to become due).
"Lien" shall mean any mortgage, pledge, assessment, security interest,
lease, sublease, lien, adverse claim, levy, charge, or other encumbrance of any
kind, or any conditional sale Contract, title retention Contract, or other
Contract to give or to refrain from giving any of the foregoing other than
Permitted Encumbrances.
"Material" shall mean having a value, a financial impact or an effect,
or causing or resulting in Damages, in an amount of $100,000 or more, whether
from a single item, event, occurrence, omission, breach or default or in the
aggregate from all directly related items, events, occurrences, omissions,
breaches or defaults.
"Material Adverse Effect" with respect to any Person means any change
or effect that is or is reasonably likely to be materially adverse to the
business, (condition/financial or otherwise), properties, assets (including
intangible assets), liabilities or prospects of such person and its
subdivisions, taken as a whole, or to the validity or enforceability of this
Agreement, or to the ability of such Person to perform its obligations under
this agreement.
"Merger Certificate" shall have the meaning ascribed to it in Section
2.1 hereof.
"Merger Consideration" shall have the meaning ascribed to it in Section
2.4 hereof.
"Notice Period" shall have the meaning ascribed to it in Section 10.4
hereof.
"PBGC" shall mean the Pension Benefit Guaranty Corporation established
under ERISA.
A-4
"Permitted Encumbrances" shall mean the following encumbrances: (i)
Liens for taxes or assessments or other governmental charges or levies (a) that
are not yet due and payable, (b) that are being contested in good faith and have
been adequately reserved for, or (c) the nonpayment which is permitted by the
terms of this Agreement; (ii) pledges or deposits securing obligations under
worker's compensation, unemployment insurance, social security or public
liability laws or similar legislation; (iii) pledges or deposits securing bids,
tenders, contracts (other than contracts for the payment of money) or leases to
which Exl or any of its Affiliates is a party as lessee made in the ordinary
course of business; (iv) workers', mechanics', suppliers', carriers',
warehousemen's or other similar liens arising in the ordinary course of business
and securing indebtedness aggregating not in excess of $50,000 at any time
outstanding, not yet due and payable; (v) deposits securing or in lieu of
surety, appeal or customs bonds in proceedings to which Exl or any of its
Affiliates is a party; (vi) pledges or deposits effected by Exl or any of its
Affiliates as a condition to obtaining or maintaining any License of such
Person; (vii) any attachment or judgment lien, unless the judgment it secures
shall not, within 60 days after the entry thereof, have been discharged or
execution thereof stayed pending appeal, or shall not have been discharged
within 60 days after the expiration of any such stay; or (viii) zoning
restrictions, easements, licenses, or other restrictions on the use of real
property or other minor irregularities in title (including leasehold title)
thereto, so long as the same do not materially impair the use, value, or
marketability of such real property, leases or leasehold estates.
"Person" shall mean any natural person, corporation, general
partnership, limited partnership, proprietorship, trust, union, association,
court, tribunal, agency, government, department, commission, self-regulatory
organization, arbitrator, board, bureau, instrumentality, or other entity,
enterprise, authority, or business organization.
"Real Estate" means all real property and interests therein, including
without limitation leasehold interests, owned or held at any time by Exl or
Exl's Subsidiary or nominee thereof.
"Release" shall mean any spilling, leaking, pumping, pouring, emitting,
emptying, discharging, injecting, escaping, leaching, migrating, dumping or
other disposal in any amount into or onto the air, ground or surface water,
land, or other parts of the environment, however caused, not permitted by or in
compliance with Environmental Laws.
"Shares" shall mean all issued and outstanding shares of capital stock
of Exl.
"Stock Options" shall mean all issued options to and in shares of
capital stock of Exl.
"Subsidiary" shall mean each of those Persons, regardless of
jurisdiction of organization, of which another Person, directly or indirectly
through one or more Subsidiary, Controls securities having more than 50% of the
voting power of such Person (without giving effect to any contingent voting
rights).
"Surviving Corporation" shall have the meaning ascribed to it in
Section 2.1 hereof.
"Taxes" shall mean all taxes, charges, fees, levies, or other similar
assessments or Liabilities (whether imposed directly or through withholding),
including without limitation income, gross receipts, ad valorem, premium,
excise, real property, personal property, sales, use, transfer, licensing,
withholding, employment, payroll, and franchise taxes imposed by the United
A-5
States of America or any state, local, or foreign government, or any
subdivision, or agency; and such term shall include any interest, penalties,
assessments, or additions to tax resulting from, attributable to, or incurred in
connection with any such tax or any contest or dispute thereof and shall also
include these same items paid pursuant to a tax-sharing agreement.
"Tax Returns" shall mean any report, return, or other information
required to be supplied to a taxing authority in connection with Taxes.
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