AGREEMENT AND PLAN OF MERGER by and among JOHNSON ELECTRIC HOLDINGS LIMITED, J.E.C. ELECTRONICS SUB ONE, INC., J.E.C. ELECTRONICS SUB TWO, INC. and PARLEX CORPORATION Dated as of August 18, 2005
Exhibit 2.1
EXECUTION COPY
by and among
XXXXXXX ELECTRIC HOLDINGS LIMITED,
J.E.C. ELECTRONICS SUB ONE, INC.,
J.E.C. ELECTRONICS SUB TWO, INC.
and
PARLEX CORPORATION
Dated as of
August 18, 2005
Table of Contents
ARTICLE I. THE MERGER |
1 | |||
1.1. The Merger |
1 | |||
1.2. Effective Time; Closing |
2 | |||
1.3. Effect of the Merger |
2 | |||
1.4. Articles of Organization; By-laws |
2 | |||
1.5. Directors and Officers |
2 | |||
1.6. Section 338(g) Election |
3 | |||
ARTICLE II. CONVERSION OF SECURITIES |
3 | |||
2.1. Conversion of Securities |
3 | |||
2.2. Employee Stock Options |
4 | |||
2.3. Dissenting Shares |
4 | |||
2.4. Surrender of Shares; Stock Transfer Books; Payment for Options |
5 | |||
ARTICLE III. REPRESENTATIONS AND WARRANTIES OF THE COMPANY |
6 | |||
3.1. Organization and Qualification; Subsidiaries |
6 | |||
3.2. Articles of Organization and By-laws |
7 | |||
3.3. Capitalization |
7 | |||
3.4. Authority Relative to This Agreement |
8 | |||
3.5. Board Approvals and Takeover Laws |
8 | |||
3.6. Required Vote |
8 | |||
3.7. No Conflict; Required Filings and Consents |
8 | |||
3.8. Permits; Compliance |
9 | |||
3.9. SEC Filings; Financial Statements |
10 | |||
3.10. Absence of Undisclosed Liabilities |
12 | |||
3.11. Absence of Certain Changes or Events |
12 | |||
3.12. Absence of Litigation |
13 | |||
3.13. Employee Benefit Plans |
13 | |||
3.14. Labor and Employment Matters |
15 | |||
3.15. Property and Leases |
17 | |||
3.16. Intellectual Property |
18 | |||
3.17. Taxes |
20 | |||
3.18. Environmental Matters |
21 |
i
3.19. Material Contracts |
22 | |||
3.20. Records |
22 | |||
3.21. Insurance |
22 | |||
3.22. Brokers |
23 | |||
3.23. Customers and Suppliers |
23 | |||
3.24. Certain Business Practices |
23 | |||
3.25. Export Controls |
24 | |||
3.26. Antiboycott Laws |
24 | |||
3.27. Affiliate Transactions |
24 | |||
3.28. Opinion of Financial Advisor |
24 | |||
ARTICLE IV. REPRESENTATIONS AND WARRANTIES OF JE HOLDINGS, PARENT AND PURCHASER |
24 | |||
4.1. Corporate Organization |
24 | |||
4.2. Authority Relative to This Agreement |
25 | |||
4.3. Board Approvals and Takeover Laws |
25 | |||
4.4. No Conflict; Required Filings and Consents |
25 | |||
4.5. Financing |
26 | |||
4.6. Brokers |
26 | |||
4.7. Absence of Litigation |
26 | |||
4.8. Ownership of Shares; MCRL Chapter 110F |
26 | |||
ARTICLE V. CONDUCT OF BUSINESS PENDING THE MERGER |
27 | |||
5.1. Conduct of Business by the Company Pending the Merger |
27 | |||
5.2. Consultation |
29 | |||
ARTICLE VI. ADDITIONAL AGREEMENTS |
29 | |||
6.1. Proxy Statement |
29 | |||
6.2. Stockholders’ Meeting |
30 | |||
6.3. Access to Information; Confidentiality |
30 | |||
6.4. No Solicitation of Transactions |
30 | |||
6.5. Employee Benefits Matters |
32 | |||
6.6. Directors’ and Officers’ Indemnification and Insurance |
32 | |||
6.7. Notification of Certain Matters |
34 | |||
6.8. HSR Act Filing |
34 | |||
6.9. Exon-Xxxxxx Provision |
34 |
ii
6.10. Public Announcements |
34 | |||
6.11. Consents and Approvals; Commercially Reasonable Efforts |
34 | |||
6.12. State Takeover Laws |
36 | |||
6.13. Infineon Joint Venture |
36 | |||
6.14. Company Warrants |
36 | |||
6.15. Remediation Activities |
36 | |||
ARTICLE VII. CONDITIONS TO THE MERGER |
36 | |||
7.1. Conditions to the Merger |
36 | |||
7.2. Conditions to Obligations of JE Holdings, Parent and Purchaser |
37 | |||
7.3. Conditions to Obligations of the Company |
37 | |||
ARTICLE VIII. TERMINATION, AMENDMENT AND WAIVER |
38 | |||
8.1. Termination |
38 | |||
8.2. Effect of Termination |
39 | |||
ARTICLE IX. GENERAL PROVISIONS |
40 | |||
9.1. Expenses |
40 | |||
9.2. Amendment |
40 | |||
9.3. Non-Survival of Representations and Warranties |
40 | |||
9.4. Waiver |
41 | |||
9.5. Notices |
41 | |||
9.6. Severability |
42 | |||
9.7. Entire Agreement; Assignment |
42 | |||
9.8. Parties in Interest |
42 | |||
9.9. Specific Performance |
42 | |||
9.10. Governing Law |
42 | |||
9.11. Waiver of Jury Trial |
43 | |||
9.12. Headings |
43 | |||
9.13. Counterparts |
43 | |||
ANNEX A. DEFINITIONS |
A-1 |
iii
AGREEMENT AND PLAN OF MERGER, dated as of August 18, 2005 (this “Agreement”), among XXXXXXX
ELECTRIC HOLDINGS LIMITED, a Bermuda corporation (“JE Holdings”), J.E.C. ELECTRONICS SUB ONE, INC.,
a Massachusetts corporation and an indirect wholly-owned Subsidiary of JE Holdings (“Parent”),
J.E.C. ELECTRONICS SUB TWO, INC., a Massachusetts corporation and a wholly owned Subsidiary of
Parent (“Purchaser”), and PARLEX CORPORATION, a Massachusetts corporation (the “Company”). Certain
terms used herein as defined terms are defined in Annex A hereof.
W I T N E S S E T H:
WHEREAS, the Boards of Directors of JE Holdings, Parent, Purchaser and the Company have each
determined that it is in the best interests of their respective stockholders for JE Holdings,
indirectly, through Parent and Purchaser, to acquire the Company upon the terms and subject to the
conditions set forth herein;
WHEREAS, the Company is willing to enter this Agreement with Parent and Purchaser only if JE
Holdings is also a party hereto, and as an inducement to the Company to enter into this Agreement,
JE Holdings has agreed to be a party hereto;
WHEREAS, the respective Boards of Directors of JE Holdings, Parent, Purchaser and the Company
have each approved the merger (the “Merger”) of Purchaser with and into the Company in accordance
with the Massachusetts Business Corporation Act, as amended (the “MBCA”), on the terms and subject
to the conditions set forth in this Agreement, whereby each issued and outstanding share of common
stock, par value $0.10 per share, of the Company (the “Company Common Stock”) (shares of Company
Common Stock being hereafter collectively referred to as “Shares”) not owned directly or indirectly
by JE Holdings, Parent, Purchaser or the Company shall be converted into the right to receive $6.75
in cash;
WHEREAS, JE Holdings, Parent, Purchaser and the Company desire to make certain
representations, warranties, covenants and agreements in connection with the Merger and to
prescribe various conditions to the Merger; and
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements
herein contained, and intending to be legally bound hereby, JE Holdings, Parent, Purchaser and the
Company hereby agree as follows:
Article I.
The Merger
1.1. The Merger. Upon the terms and subject to the conditions set forth in Article VII, and
in accordance with the MBCA, at the Effective Time (as hereinafter defined) Purchaser shall be
merged with and into the Company. As a result of the Merger, the separate corporate existence of
Purchaser shall cease and the Company shall continue as the surviving corporation of the Merger
(the “Surviving Corporation”) and shall continue to be governed by the laws of The Commonwealth of
Massachusetts. Notwithstanding anything to the contrary contained in this Section 1.1, Parent may
elect instead, at any time after Stockholder Approval (as hereinafter defined) is granted, to merge
the Company into Purchaser or any other direct or indirect wholly
owned Subsidiary of JE Holdings; provided, however, that the Company shall not
be deemed to have breached any of its representations, warranties or covenants by reason of such
election. In such event, the parties agree to execute an appropriate amendment to this Agreement
in order to reflect the foregoing and to provide, as the case may be, that Purchaser or such other
wholly owned Subsidiary of JE Holdings shall be the Surviving Corporation and that JE Holdings,
Parent, Purchaser and the Company shall make commercially reasonable efforts to comply with notice
provisions and other terms of the outstanding Convertible Notes, Preferred Shares and Warrants.
1.2. Effective Time; Closing. No later than three Business Days after the satisfaction or
waiver of the conditions set forth in Article VII, the parties hereto shall cause the Merger to be
consummated by filing articles of merger with the Secretary of State of The Commonwealth of
Massachusetts, in such forms as are required by, and executed in accordance with, the relevant
provisions of the MBCA (the date and time of such filing being the “Effective Time” and such
articles, the “Articles of Merger”). On the date of such filing, a closing shall be held at the
offices of Ropes & Xxxx LLP, Xxx Xxxxxxxxxxxxx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, or such other
place as the parties shall agree, for the purpose of confirming the satisfaction or waiver, as the
case may be, of the conditions set forth in Article VII.
1.3. Effect of the Merger. At the Effective Time, the effect of the Merger shall be as
provided in Section 11.07 of the MBCA. Without limiting the generality of the foregoing, and
subject thereto, at the Effective Time, all the property, rights, privileges, powers and franchises
of the Company and Purchaser shall vest in the Surviving Corporation, and all debts, liabilities,
obligations, restrictions, disabilities and duties of the Company and Purchaser shall become the
debts, liabilities, obligations, restrictions, disabilities and duties of the Surviving
Corporation.
1.4. Articles of Organization; By-laws. (a) At the Effective Time, subject to Section
6.6(a), the articles of organization of the Company, as in effect immediately prior to the
Effective Time, shall be the articles of organization of the Surviving Corporation until thereafter
amended as provided by law and such articles of organization.
(a) Unless otherwise determined by Parent prior to the Effective Time, and subject to Section
6.6(a), the by-laws of the Company, as in effect immediately prior to the Effective Time, shall be
the by-laws of the Surviving Corporation until thereafter amended as provided by law, the articles
of organization of the Surviving Corporation and such by-laws.
1.5. Directors and Officers. The directors of Purchaser immediately prior to the Effective
Time shall be the initial directors of the Surviving Corporation, each to hold office in accordance
with the articles of organization and by-laws of the Surviving Corporation, and the officers of the
Company immediately prior to the Effective Time shall be the initial officers of the Surviving
Corporation, in each case until their respective successors are duly elected or appointed and
qualified or until their earlier death, resignation or approval. The Company shall take all
commercially reasonable action to cause Purchaser’s appointees to be duly elected as directors and
officers of each Subsidiary of the Surviving Corporation, effective as of the Effective Time.
2
1.6. Section 338(g) Election. At the election of Parent, in its sole and absolute discretion,
Parent may make the election provided under Section 338(g) of the Internal Revenue Code, as amended
(the “Code”) (including under any comparable statutes in any other jurisdiction) with respect to
the Company and all Subsidiaries of the Company.
Article II.
Conversion of Securities.
2.1. Conversion of Securities. At the Effective Time, by virtue of the Merger and without any
action on the part of Purchaser, the Company or the holders of any of the following securities:
(a) Each share of common stock, par value $0.10 per share, of Purchaser issued and outstanding
immediately prior to the Effective Time shall be converted into and exchanged for one validly
issued, fully paid and nonassessable shares of common stock, par value $0.10 per share, of the
Surviving Corporation;
(b) Each Share and Preferred Share held in the treasury of the Company and each Share and
Preferred Share owned by JE Holdings, Purchaser, Parent or any direct or indirect wholly owned
Subsidiary of JE Holdings or of the Company immediately prior to the Effective Time shall be
canceled without any conversion thereof and no payment or distribution shall be made with respect
thereto;
(c) Each Share issued and outstanding immediately prior to the Effective Time (other than
Shares to be cancelled in accordance with Section 2.1(b) and other than Dissenting Shares (as
hereinafter defined)) shall be converted into the right to receive $6.75, payable to the holder
thereof in cash, without interest (the “Common Share Merger Consideration”), less any required
withholding taxes;
(d) Each Preferred Share issued and outstanding immediately prior to the Effective Time (other
than Preferred Shares to be cancelled in accordance with Section 2.1(b) and other than Dissenting
Shares) shall be converted into the right to receive the Liquidation Value thereof, payable to the
holder thereof in cash, without interest or additional dividends thereon (the “Preferred Share
Merger Consideration” and together with the Common Share Merger Consideration, the “Merger
Consideration”), less any required withholding taxes. Prior to the Effective Time, the Company
shall be responsible for delivering to the Paying Agent (as hereinafter defined) a list of holders
of Preferred Shares and such information as is in the Company’s possession and necessary to ensure
proper withholding; and
(e) From and after the Effective Time, all such Shares and Preferred Shares shall no longer be
outstanding and shall automatically be cancelled and retired and shall cease to exist, and each
holder of a certificate representing any such Shares or Preferred Shares, as applicable, shall
cease to have any rights with respect thereto, except the right to receive the applicable Merger
Consideration therefor upon the surrender of such certificate in accordance with Section 2.4,
without interest thereon.
3
2.2. Employee Stock Options. (a) The Company shall take all reasonable action to, as of the
Effective Time (i) terminate the stock option plans listed in Section 3.3 of the Disclosure
Schedule, (as hereinafter defined) each as amended through the date of this Agreement (the “Company
Stock Option Plans”); and (ii) cancel, at the Effective Time, each outstanding option to purchase
Shares granted under the Company Stock Option Plans (each, a “Company Stock Option”) that is
outstanding and unexercised as of such time. Subject to the foregoing, each holder of a Company
Stock Option that is outstanding and unexercised at the Effective Time, whether or not then
exercisable or vested, shall be entitled to receive from the Paying Agent (as hereinafter defined)
on behalf of the Surviving Corporation, immediately after the Effective Time, in exchange for the
cancellation of such Company Stock Option, an amount in cash equal to the excess, if any, of (i)
the Common Share Merger Consideration over (ii) the per share exercise price of such Company Stock
Option, multiplied by the number of Shares subject to such Company Stock Option as of the Effective
Time (the “Option Consideration”). Any such payment shall be subject to all applicable federal,
state and local tax withholding requirements. Prior to the Effective Time, the Company shall be
responsible for delivering to the Paying Agent (i) a list of holders of Company Stock Options, (ii)
calculations showing the respective amount of Option Consideration for each Company Stock Option,
and (iii) such information as is requested by Paying Agent and in the Company’s possession and
necessary to ensure proper withholding.
(b) The Company shall take all action reasonably necessary to approve the disposition of the
Company Stock Options in connection with the transactions contemplated by this Agreement
(collectively, the “Transactions”) so as to exempt such dispositions under Rule 16b-3 of the
Exchange Act.
2.3. Dissenting Shares. (a) Notwithstanding any provision of this Agreement to the contrary,
Shares that are outstanding immediately prior to the Effective Time and which are held by
stockholders who have not voted in favor of the Merger or consented thereto in writing and who have
demanded properly, and perfected their rights to be paid the fair value of such Shares in
accordance with Section 13.02 of the MBCA (collectively, the “Dissenting Shares”) shall not be
converted into or represent the right to receive the Merger Consideration. Such stockholders shall
be entitled to only such rights as are granted by Section 13.02 of the MBCA, except that all
Dissenting Shares held by stockholders who have failed to perfect, or who effectively shall have
withdrawn or lost their rights under such Section 13.02 of the MBCA shall thereupon be deemed to
have been converted into and to have become exchangeable for, as of the Effective Time, the right
to receive the Merger Consideration, without any interest thereon, upon surrender, in the manner
provided in Section 2.4, of the certificate or certificates that formerly evidenced such Shares.
(b) The Company shall give Parent (i) prompt notice of intent to demand the fair value of any
Shares that is communicated in writing to the Company, written withdrawals of such demands, and any
other instruments served pursuant to Section 13.02 of the MBCA and received by the Company; and
(ii) the opportunity to direct all negotiations and proceedings with respect to the exercise of
dissenter’s rights under Section 13.02 of the MBCA. The Company shall not, except with the prior
written consent of Parent, make any payment with respect to any such exercise of dissenter’s rights
or offer to settle or settle any such demands.
4
2.4. Surrender of Shares; Stock Transfer Books; Payment for Options. (a) Prior to the
Effective Time, Purchaser shall designate a bank or trust company in the United States and
reasonably acceptable to the Company to act as agent (the “Paying Agent”) for the holders of
Shares, Preferred Shares and Company Stock Options, as the case may be, to receive the funds to
which holders of Shares, Preferred Shares and Company Stock Options shall become entitled pursuant
to Sections 2.1(c), 2.1(d) and 2.2(a). Prior to the Effective Time, JE Holdings, Parent or
Purchaser shall deposit, or cause to be deposited, with the Paying Agent the aggregate Merger
Consideration and Option Consideration. If, for any reason, such funds are inadequate to pay the
amounts to which holders of Shares, Preferred Shares and Company Stock Options shall be entitled
under Sections 2.1(c), 2.1(d) and 2.2(a), JE Holdings shall take all steps necessary to enable or
cause the Surviving Corporation promptly to deposit in trust additional cash with the Paying Agent
sufficient to make all payments required under Sections 2.1(c), 2.1(d) and 2.2(a), and, as of the
Effective Time, JE Holdings and the Surviving Corporation shall become liable for payment thereof.
The funds so deposited with the Paying Agent shall not be used for any purpose except as expressly
provided in this Agreement. Such funds shall be invested by the Paying Agent as directed by JE
Holdings or Parent.
(b) Promptly, but in no event more than five Business Days after the Effective Time, the
Surviving Corporation shall cause to be mailed to each person who was, at the Effective Time, a
holder of record of Shares or Preferred Shares entitled to receive Merger Consideration pursuant to
Sections 2.1(c) or 2.1(d) a form of letter of transmittal (which shall be in a form reasonably
acceptable to the Company and shall specify that delivery shall be effected, and risk of loss and
title to the certificates evidencing such Shares or Preferred Shares (the “Certificates”) shall
pass, only upon proper delivery of the Certificates to the Paying Agent and compliance with the
standard procedures of the Paying Agent) and instructions for use in effecting the surrender of the
Certificates pursuant to such letter of transmittal. Upon surrender to the Paying Agent of a
Certificate, together with such letter of transmittal, duly completed and validly executed in
accordance with the instructions thereto, and such other documents as may be required pursuant to
such instructions, the holder of such Certificate shall be entitled to receive in exchange therefor
the Merger Consideration for each Share or Preferred Share formerly evidenced by such Certificate,
and such Certificate shall then be canceled. No interest shall accrue or be paid on the Merger
Consideration payable upon the surrender of any Certificate for the benefit of the holder of such
Certificate. If payment of the Merger Consideration is to be made to a person other than the
person in whose name the surrendered Certificate is registered on the stock transfer books of the
Company, it shall be a condition of payment that the Certificate so surrendered shall be endorsed
properly or otherwise be in proper form for transfer and that the person requesting such payment
shall have paid all transfer and other taxes required by reason of the payment of the Merger
Consideration to a person other than the registered holder of the Certificate surrendered or shall
have established to the satisfaction of the Surviving Corporation that such taxes either have been
paid or are not applicable.
(c) If any Certificate shall have been lost, stolen or destroyed, upon making of an affidavit
of that fact by the person claiming such Certificate to be lost, stolen or destroyed, the Paying
Agent shall issue in exchange for such lost, stolen or destroyed Certificate the Merger
Consideration deliverable in respect thereof determined in accordance with this Article II;
provided, however, that Parent or the Paying Agent may require the delivery of a
reasonable
5
indemnity or bond against any claim that may be made against the Surviving Corporation with
respect to such Certificate or ownership thereof.
(d) Promptly after the Effective Time, the Surviving Corporation shall cause the Paying Agent
to pay to each person who was, at the Effective Time, a holder of record of Company Stock Options,
the Option Consideration to which such person is entitled pursuant to Section 2.2(a).
(e) At any time following the ninth month after the Effective Time, the Surviving Corporation
shall be entitled to require the Paying Agent to deliver to it any funds which had been made
available to the Paying Agent and not disbursed to holders of Shares, Preferred Shares or Company
Stock Options (including, without limitation, all interest and other income received by the Paying
Agent in respect of all funds made available to it) and, thereafter, such holders shall be entitled
to look to the Surviving Corporation (subject to abandoned property, escheat and other similar
laws) only as general creditors thereof with respect to any Merger Consideration or Option
Consideration that may be payable upon due surrender of the Certificates held by them.
Notwithstanding the foregoing, neither the Surviving Corporation nor the Paying Agent shall be
liable to any holder of a Share, Preferred Share or Company Stock Option for any Merger
Consideration or Option Consideration delivered in respect of such Share, Preferred Share or
Company Stock Option to a public official pursuant to any abandoned property, escheat or other
similar law.
(f) At the close of business on the day of the Effective Time, the stock transfer books of the
Company shall be closed and thereafter there shall be no further registration of transfers of
Shares or Preferred Shares on the records of the Company. From and after the Effective Time, the
holders of Shares, Preferred Shares and Company Stock Options outstanding immediately prior to the
Effective Time shall cease to have any rights with respect to such Shares, Preferred Shares and
Company Stock Options except as otherwise provided herein or by Applicable Law.
Article III.
Representations and Warranties of the Company
Except as set forth in the corresponding sections or subsections of the written Company
Disclosure Schedule (the “Disclosure Schedule") or, except as specifically set forth in Section
3.7, as disclosed in an SEC Report (as defined in Section 3.9) filed prior to the date hereof, the
Company makes the representations and warranties to JE Holdings, Parent and Purchaser that are set
forth below. Each exception set forth in the Disclosure Schedule is identified by reference to, or
has been grouped under a heading referring to, a specific individual section or subsection of this
Agreement; provided, however, that any information disclosed therein under any
section number shall be deemed to be disclosed and incorporated in any other section of the
Disclosure Schedule where such disclosure would be appropriate and readily apparent. The
Disclosure Schedule and the information and disclosures contained therein are intended only to
qualify and limit the representations, warranties and covenants of the Company contained in this
Agreement.
3.1. Organization and Qualification; Subsidiaries. (a) Each of the Company and each
Subsidiary of the Company is an entity duly organized, validly existing and in good
6
standing under the laws of the jurisdiction of its incorporation and has the requisite
corporate power and authority to own, lease and operate its properties and to carry on its business
as it is now being conducted, except where the failure to be so organized, existing and in good
standing or to have such power and authority would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect. The Company and each Subsidiary is duly
qualified or licensed as a foreign corporation to do business, and is in good standing, in each
jurisdiction where the character of the properties owned, leased or operated by it or the nature of
its business makes such qualification or licensing necessary, except where the failure to be so
duly qualified or licensed and in good standing would not reasonably be expected to have a Material
Adverse Effect.
(b) Section 3.1(b) of the Disclosure Schedule, sets forth the name, jurisdiction of
incorporation and authorized and outstanding capital stock of each Subsidiary of the Company.
Except as disclosed in Section 3.1(b) of the Disclosure Schedule, the Company does not directly or
indirectly own any equity or similar interest in, or any interest convertible into or exchangeable
or exercisable for any equity or similar interest in, any corporation, partnership, joint venture
or other business association or entity.
3.2. Articles of Organization and By-laws. The Company has heretofore made available to
Parent a complete and correct copy of the articles of organization and the by-laws or equivalent
organizational documents, each as amended to date, of the Company and each Subsidiary. Such
articles of organization, by-laws or equivalent organizational documents are in full force and
effect. The Company is not in violation of any of the provisions of its articles of organization,
by-laws or equivalent organizational documents. Other than PIC, each of the Company’s Subsidiaries
is in compliance with its articles of organization, by-laws or equivalent organizational documents,
except as would not have a Material Adverse Effect.
3.3. Capitalization. The authorized capital stock of the Company consists of 30,000,000
Shares, $0.10 par value per share, and 1,000,000 Preferred Shares, par value $1.00 per share. As
of the date hereof, (a) 6,488,425 Shares are issued and outstanding, all of which are validly
issued, fully paid and nonassessable; (b) 665,525 Shares are issuable upon exercise of outstanding
stock options; (c) 406,250 Shares are issuable upon conversion of outstanding Preferred Shares;
(d) 484,625 Shares are issuable upon exercise of outstanding Warrants; and (e) 750,000 Shares are
issuable upon conversion of outstanding 7% Convertible Subordinated Notes due July 28, 2007 (the
"Convertible Notes”). As of the date hereof, except as set forth in Section 3.3 of the Disclosure
Schedule, there are no options, warrants or other rights, agreements, arrangements or commitments
of any character relating to the issued or unissued capital stock of the Company or any Subsidiary
or obligating the Company or any Subsidiary to issue or sell any shares of capital stock of, or
other equity interests in, the Company or any Subsidiary. All Shares subject to issuance as
aforesaid, upon issuance on the terms and conditions specified in the instruments pursuant to which
they are issuable, will be duly authorized, validly issued, fully paid and nonassessable. Except
as set forth in Section 3.3 of the Disclosure Schedule, there are no outstanding contractual
obligations of the Company or any Subsidiary to issue, repurchase, redeem or otherwise acquire any
Shares or any capital stock of any Subsidiary or to provide funds to, or make any investment (in
the form of a loan, capital contribution or otherwise) in, any Subsidiary or any other person.
Each outstanding share of capital stock of each Subsidiary is duly authorized, validly issued,
fully paid and nonassessable,
7
and, except as set forth in Section 3.3 of the Disclosure Schedule, each such share is owned
by the Company or another Subsidiary free and clear of all security interests, liens, claims,
pledges, options, rights of first refusal, agreements, limitations on the Company’s or any
Subsidiary’s voting rights, charges and other encumbrances of any nature whatsoever.
3.4. Authority Relative to This Agreement. The Company has all necessary corporate power and
authority to execute and deliver this Agreement, to perform its obligations hereunder and, subject,
in the case of the Merger, to obtaining Stockholder Approval (as defined in Section 3.6 below), to
consummate the Transactions. The execution and delivery of this Agreement by the Company and the
performance by the Company of its obligations hereunder have been duly and validly authorized by
all necessary corporate action, and no other corporate proceedings on the part of the Company are
necessary to authorize the execution and delivery of this Agreement or to consummate the
Transactions (other than, with respect to the Merger, obtaining Stockholder Approval, if and to the
extent required by Applicable Law, and the filing and recordation of appropriate merger documents
as required by the MBCA). This Agreement has been duly executed and delivered by the Company and,
assuming the due authorization, execution and delivery by JE Holdings, Parent and Purchaser,
constitutes a legal, valid and binding obligation of the Company, enforceable against the Company
in accordance with its terms, except that (i) such enforcement may be subject to applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws, now or hereafter in
effect, affecting creditors’ rights generally; and (ii) the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to equitable defenses and to the
discretion of the court before which any proceeding therefor may be brought.
3.5. Board Approvals and Takeover Laws. The Company Board of Directors (the “Board”), at a
meeting duly called and held, has unanimously (i) determined, as of the date of this Agreement,
that this Agreement and the Merger, taken together, are fair to and in the best interests of the
stockholders of the Company; (ii) duly and validly approved, as of the date of this Agreement, and
taken all corporate action required to be taken by the Board to authorize the Transactions; and
(iii) resolved to recommend, as of the date of this Agreement, that the stockholders of the Company
accept, approve and adopt this Agreement and the Merger, and none of the aforesaid actions by the
Board has been amended, rescinded or modified except as permitted by the terms of this Agreement.
Assuming the accuracy of the representations and warranties contained in Section 4.8, the actions
taken by the Board are sufficient to render inapplicable to JE Holdings, Parent, Purchaser and the
Merger, the provisions of Chapters 110C and 110F of the Massachusetts Corporation-Related Laws, as
amended (the “MCRL”). To the Company’s knowledge, no other state takeover statute, or other state
law that purports to limit or restrict business combinations or the ability to acquire or vote
shares, is applicable to the Transactions.
3.6. Required Vote. The affirmative vote of the stockholders of two-thirds of the outstanding
Shares, voting as a single class, is the only vote of the stockholders of any class or series of
the Company’s capital stock necessary to approve the Merger (the “Stockholder Approval”).
3.7. No Conflict; Required Filings and Consents. (a) The execution and delivery of this
Agreement by the Company do not, and the performance of its obligations under this
8
Agreement shall not, (i) conflict with or violate the articles of organization or by-laws or
equivalent organizational documents of the Company or any Subsidiary; (ii) assuming that all
consents, approvals, authorizations and other actions described in Section 3.7(b) have been
obtained and all filings and obligations described in Section 3.7(b) have been made and, subject,
in the case of the Merger, to obtaining Stockholder Approval, conflict with or violate any
Applicable Law or by which any property or asset of the Company or any Subsidiary is bound or
affected; or (iii) subject to obtaining the consents listed in Section 3.7 of the Disclosure
Schedule, which list does not incorporate information from or consents listed in the SEC Reports,
result in any breach of or constitute a default (or an event which, with notice or lapse of time or
both, would become a default) under, or give to others any right of termination, amendment,
acceleration or cancellation of, or result in the creation of a lien or other encumbrance on any
property or asset of the Company or any Subsidiary pursuant to, any note, bond, mortgage,
indenture, contract, agreement, lease, license, permit, franchise or other instrument or
obligation, except, with respect to clauses (ii) and (iii), for any such conflicts, violations,
breaches, defaults or other occurrences which would not prevent or materially delay consummation of
the Merger and would not reasonably be expected to have a Material Adverse Effect.
(b) The execution and delivery of this Agreement by the Company do not, and the performance of
this Agreement by the Company shall not, require any consent, approval, authorization or permit of,
or filing with or notification to, any Governmental Authority except (i) for applicable
requirements, if any, of the Exchange Act, state securities or “blue sky” laws (“Blue Sky Laws”),
state takeover laws, the pre-merger notification requirements of the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976, as amended (the “HSR Act”), the Exon-Xxxxxx provision pursuant to Section
5021 of the Omnibus Trade and Competitiveness Act of 1988 (amending Section 721 of the Defense
Production Act of 1950) (the “Exon-Xxxxxx Provision”) and the requirements in the countries where a
merger filing will be necessary and filing and recordation of appropriate merger documents as
required by the MCBA (the “Company Required Approvals”); and (ii) where the failure to obtain such
consents, approvals, authorizations or permits, or to make such filings or notifications, would not
prevent or materially delay consummation of the Merger and would not reasonably be expected to have
a Material Adverse Effect. Section 3.7(b) of the Disclosure Schedule contains a complete list of
Company Required Approvals and the countries where a merger filing is necessary, except for
countries where the failure to file would not reasonably be expected to have a Material Adverse
Effect, and does not incorporate information from, or consents listed in, the SEC Reports.
3.8. Permits; Compliance.
(a) Except with respect to Environmental Permits (as defined and addressed in Section 3.18) ,
each of the Company and the Subsidiaries is in possession of all franchises, grants,
authorizations, licenses, permits, easements, variances, exceptions, consents, certificates,
approvals and orders of any Governmental Authority necessary for each of the Company or the
Subsidiaries to own, lease and operate its properties or to carry on its business as it is now
being conducted (the “Permits”) except where the failure to have, or the suspension or cancellation
of, any of the Permits would not prevent or materially delay consummation of the Merger and would
not reasonably be expected to have a Material Adverse Effect. As of the date hereof, no suspension
or cancellation of any of the Permits is pending or, to the knowledge of the Company,
9
threatened, except where the failure to have, or the suspension or cancellation of, any of the
Permits would not prevent or materially delay consummation of the Merger and would not reasonably
be expected to have a Material Adverse Effect.
(b) After giving effect to the Transactions, to the knowledge of the Company, all such
licenses, permits, franchises and other governmental authorizations will continue to be valid and
in full force and effect, except as set forth in Section 3.8(b) of the Disclosure Schedule or as
would not reasonably be expected to have a Material Adverse Effect. The Company and its
Subsidiaries are in compliance in all material respects with Applicable Laws by which the property
and assets of the Company and its Subsidiaries are bound or affected. Neither the Company nor any
Subsidiary nor any property or asset of the Company or any Subsidiary is subject to any continuing
order of, consent decree, settlement agreement or similar written agreement with or, to the
knowledge of the Company, continuing investigation by, any Governmental Authority, or any order,
writ, judgment, injunction, decree, determination or award of any Governmental Authority that
would, as of the date hereof, prevent or materially delay consummation of the Merger or would
reasonably be expected to have a Material Adverse Effect.
3.9. SEC Filings; Financial Statements. (a) The Company and its Subsidiaries have timely
filed (or obtained an extension of the time for filing) each form, report, schedule, registration
statement, registration exemption, if applicable, definitive proxy statement and other document
(together with all amendments thereof and supplements thereto) required to be filed by the Company
or any of its Subsidiaries pursuant to the Securities Act or the Exchange Act with the Securities
and Exchange Commission (the “SEC”) since June 30, 2003 (as such documents have since the time of
their filing been amended or supplemented, the “SEC Reports”). Those SEC Reports that were not
amended or supplemented complied and all SEC Reports that amended and supplemented previous filings
complied, as of their respective dates, as to form in all material respects with the requirements
of the Securities Act or the Exchange Act, as the case may be, the Xxxxxxxx-Xxxxx Act of 2002
(“SOX”) and the rules and regulations of the SEC promulgated thereunder applicable to such SEC
Reports, in each case to the extent in effect on the date of filing. Each of the SEC Reports did
not, when filed, contain any untrue statement of a material fact or omit to state a 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, except to the extent corrected by a
subsequently filed SEC Report filed with the SEC prior to the date of this Agreement.
(b) Each of the principal executive officer of the Company and the principal financial officer
of the Company (or each former principal executive officer of the Company and each former principal
financial officer of the Company, as applicable) has made all certifications required by Rule
13a-14 or 15d-14 under the Exchange Act or Sections 302 and 906 of SOX and the rules and
regulations of the SEC promulgated thereunder with respect to the SEC Reports, and to the knowledge
of the Company, the statements contained in such certifications are true and correct. For purposes
of the preceding sentence and Section 3.9(f) hereof, “principal executive officer” and “principal
financial officer” shall have the meanings given to such terms in SOX. Neither the Company nor any
of its Subsidiaries has outstanding, or has arranged any outstanding, “extensions of credit” to
directors or executive officers within the meaning of Section 402 of SOX.
10
(c) The audited consolidated financial statements and unaudited interim consolidated financial
statements (including, in each case, the notes, if any, thereto) included in the SEC Reports (the
"Financial Statements”) complied as to form in all material respects with the published rules and
regulations of the SEC with respect thereto, were prepared in accordance with U.S. generally
accepted accounting principles (“GAAP”) applied on a consistent basis during the periods involved
(except as may be indicated therein or in the notes thereto and except with respect to unaudited
statements as permitted by Form 10-Q or 8-K or the applicable rules of the SEC) and fairly present
in all material respects (subject, in the case of the unaudited interim financial statements, to
normal, year-end audit adjustments that were not or are not expected to be, individually or in the
aggregate, materially adverse to the consolidated financial position of the Company) the
consolidated financial position of the Company and its consolidated Subsidiaries as of the
respective dates thereof and the consolidated results of their operations and cash flows for the
respective periods then ended. The Company’s foreign Subsidiaries maintain their books pursuant to
local accounting rules and adjust their books to conform to GAAP for consolidation purposes.
Therefore, the books and records of the Company and its Subsidiaries have been, and are being,
maintained in accordance with GAAP.
(d) Neither the Company nor any of its Subsidiaries is a party to, or has any commitment to
become a party to, any joint venture, off-balance sheet, partnership or any similar contract or
arrangement (including any contract or arrangement relating to any transaction or relationship
between or among the Company and any of its Subsidiaries, on the one hand, and any Affiliate,
including any structured finance, special purpose or limited purpose entity or Person, on the other
hand or any “off-balance sheet arrangements” (as defined in Item 303(a) of Regulation S-K of the
SEC), where the result, purpose or intended effect of such contract or arrangement is to avoid
disclosure of any material transaction involving, or material liabilities of, the Company or any of
its Subsidiaries in the Company’s or such Subsidiary’s published financial statements or other SEC
Reports.
(e) The Company has established and maintains a system of internal accounting controls
designed to provide reasonable assurance that (i) transactions are executed in accordance with
management’s general or specific authorizations; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with GAAP and to maintain asset
accountability; (iii) access to assets is permitted only in accordance with management’s general or
specific authorization; and (iv) the recorded accountability for assets is compared with the
existing assets at reasonable intervals and appropriate action is taken with respect to any
differences.
(f) The Company has established and maintains “disclosure controls and procedures” (as defined
in Rules 13a-15(e) and 15d-15(e) of the Exchange Act) designed to enable the principal executive
officer and principal financial officer of the Company to engage in the review and evaluation
process mandated by the Exchange Act and the rules promulgated thereunder. The Company’s
“disclosure controls and procedures” are reasonably designed to ensure that all information (both
financial and non-financial) required to be disclosed by the Company in the reports that it files
or submits under the Exchange Act is recorded, processed, summarized and reported within the time
periods specified in the rules and forms of the Company, and that all such information is
accumulated and communicated to the Company’s management as appropriate to allow timely decisions
regarding required disclosure and to make the certifications
11
of the principal executive officer and principal financial officer of the Company required
under the Exchange Act with respect to such reports.
(g) Except as set forth in Section 3.9(g) of the Disclosure Schedule, since June 30, 2003, the
Company has not received any oral or written notification of a (x) “reportable condition” or (y)
“material weakness” in the Company’s internal controls. For purposes of this Agreement, the terms
“reportable condition” and “material weakness” shall have the meanings assigned to them in the
Statements of Auditing Standards 60, as in effect on the date hereof.
(h) None of the Company’s Subsidiaries are, or has at any time since June 30, 2003, been,
subject to the reporting requirements of Sections 13(a) and 15(d) of the Exchange Act.
3.10. Absence of Undisclosed Liabilities. Except for matters reflected or reserved against in
the balance sheet (or notes thereto) as of June 30, 2004 (the “2004 Balance Sheet”) included in the
Financial Statements or as set forth in Section 3.10 of the Disclosure Schedule, as of the date of
this Agreement, neither the Company nor any of its Subsidiaries has any liabilities (whether
absolute, accrued, contingent, fixed or otherwise, or whether due or to become due) of any nature
that would be required by GAAP to be reflected on a consolidated balance sheet of the Company and
its consolidated Subsidiaries (including the notes thereto), except liabilities or obligations (i)
that were incurred in the ordinary course of business consistent with past practice since June 30,
2004; or (ii) that, individually or in the aggregate, have not had and would not reasonably be
expected to have a Material Adverse Effect on the Company.
3.11. Absence of Certain Changes or Events. Since June 30, 2004, except as contemplated by
this Agreement or set forth in Section 3.11 of the Disclosure Schedule, the Company and the
Subsidiaries have conducted their businesses only in the ordinary course and in a manner consistent
with past practice and, since June 30, 2004, there has not been (i) any change in the business,
operations, properties, condition (financial or otherwise), assets or liabilities (including,
without limitation, contingent liabilities) of the Company or any Subsidiary (assessed on a
consolidated basis) having, individually or in the aggregate, a Material Adverse Effect; (ii) any
damage, destruction or loss (whether or not covered by insurance) with respect to any property or
asset of the Company or any Subsidiary and having, individually or in the aggregate, a Material
Adverse Effect; (iii) any change by the Company in its accounting methods, principles or practices;
(iv) any revaluation by the Company of any asset (including, without limitation, any writing down
of the value of inventory or writing off of notes or accounts receivable), other than in the
ordinary course of business consistent with past practice; (v) any entry by the Company or any
Subsidiary into any commitment or transaction material to the Company and the Subsidiaries taken as
a whole; (vi) any declaration, setting aside or payment of any dividend or distribution in respect
of any capital stock of the Company or any redemption, purchase or other acquisition of any of its
securities other than regular quarterly dividends on the Preferred Shares not in excess of $1.65
per share; or (vii) any increase in or establishment of any bonus, insurance, severance, deferred
compensation, pension, retirement, profit sharing, stock option (including, without limitation, the
granting of stock options, stock appreciation rights, performance awards, or restricted stock
awards), stock purchase or other employee benefit plan, or any other increase in the compensation
payable or to become payable to any officers or key employees of the Company or any Subsidiary,
except in the ordinary course of business consistent with past practice.
12
3.12. Absence of Litigation. Except as disclosed in the SEC Reports filed prior to the date
of this Agreement or in Section 3.12 of the Disclosure Schedule, there is no litigation, suit,
claim, action, proceeding or investigation (an “Action”) pending or, to the knowledge of the
Company, threatened against the Company or any Subsidiary, or any property or asset of the Company
or any Subsidiary, before any Governmental Authority that (a) would reasonably be expected to have
a Material Adverse Effect or (b) as of the date hereof, seeks to materially delay or prevent the
consummation of any Transaction.
3.13. Employee Benefit Plans. (a) Section 3.13(a) of the Disclosure Schedule lists (i) all
material employee benefit plans (as defined in Section 3(3) of the Employee Retirement Income
Security Act of 1974, as amended (“ERISA”) and all material bonus, stock option, stock purchase,
restricted stock, incentive, deferred compensation, retiree medical or life insurance, supplemental
retirement, severance or other material benefit plans, programs or arrangements, and all material
employment, termination, severance or other contracts or agreements to which the Company or any
Subsidiary is a party, with respect to which the Company or any Subsidiary has any obligation or
which are maintained, contributed to or sponsored by the Company or any Subsidiary for the benefit
of any current or former employee, officer or director of the Company or any Subsidiary; (ii) each
material employee benefit plan for which the Company or any Subsidiary is reasonably expected to
incur liability under Section 4069 of ERISA in the event such plan has been or were to be
terminated; (iii) any material plan in respect of which the Company or any Subsidiary could
reasonably be expected to incur liability under Section 4212(c) of ERISA; and (iv) any material
contracts or legally enforceable arrangements between the Company or any Subsidiary and any
employee of the Company or any Subsidiary, including, without limitation, any contracts or
arrangements relating to a sale of the Company or any Subsidiary (collectively, with the exception
of any plans, programs or arrangements not subject to United States law, the “Plans”). The Company
has made available to Purchaser a true and complete copy of each Plan and has made available to
Purchaser a true and complete copy of each material document, if any, prepared in connection with
each such Plan, including, without limitation, as applicable (i) a copy of each trust or other
funding arrangement; (ii) each most recent summary plan description and summary of material
modifications; (iii) the most recently filed Internal Revenue Service (“IRS”) Form 5500; (iv) the
most recently received IRS determination letter for each such Plan, and (v) the most recently
prepared actuarial report and financial statement in connection with each such Plan.
(b) Except as set forth in Section 3.13(b) of the Disclosure Schedule, none of the Plans is a
multiemployer plan (within the meaning of Section 3(37) or 4001(a)(3) of ERISA) (a “Multiemployer
Plan”) or a single employer pension plan (within the meaning of Section 4001(a)(15) of ERISA) for
which the Company or any Subsidiary could incur liability under Section 4063 or 4064 of ERISA (a
"Multiple Employer Plan”). Except as set forth in Section 3.13(b) of the Disclosure Schedule, none
of the Plans (i) provides for the payment of separation, severance, termination or similar-type
benefits to any person by itself or solely or partially as a result of any transaction contemplated
by this Agreement; or (ii) obligates the Company or any Subsidiary to make any payment or provide
any benefit as a result of a “change in control,” within the meaning of such term under Section
280G of the Code. Except as set forth in Section 3.13(b) of the Disclosure Schedule, none of the
Plans provides for or promises retiree medical, disability or life insurance benefits to any
current or former employee, officer or
13
director of the Company or any Subsidiary, other than continuation coverage mandated by
Sections 601 through 608 of ERISA and Section 4980B(f) of the Code.
(c) Each Plan is currently in material compliance with, and has, for the period with respect
to which the applicable statute of limitation has not expired, been administered and operated in
all material respects in accordance with, its terms and the requirements of all Applicable Laws,
including, without limitation, ERISA and the Code. The Company and the Subsidiaries have performed
all obligations required to be performed by them under and are not in any default under or in
violation of, and the Company has no knowledge of any default or violation by any party to, any
Plan, except as would not have a Material Adverse Effect. No Action is pending or, to the
knowledge of the Company, threatened with respect to any Plan (other than claims for benefits in
the ordinary course) and, to the knowledge of the Company, no fact or event exists that could give
rise to any such Action.
(d) Each Plan that is intended to be qualified under Section 401(a) of the Code or Section
401(k) of the Code has timely received a favorable determination letter or opinion letter, as
applicable, from the IRS regarding such qualified status, which covers all of the provisions
applicable to the Plan for which determination or opinion letters, as applicable, are currently
available and each trust established in connection with any Plan which is intended to be exempt
from federal income taxation under Section 501(a) of the Code has received a determination letter
from the IRS that it is so exempt, and, to the knowledge of the Company, no fact or event has
occurred since the date of such determination letter or letters from the IRS that could reasonably
be expected to adversely affect the qualified status of any such Plan or the exempt status of any
such trust.
(e) There has not been any prohibited transaction (within the meaning of Section 406 of ERISA
or Section 4975 of the Code) that would give rise to a material liability with respect to any Plan.
Neither the Company nor any ERISA Affiliate has incurred any liability under, arising out of or by
operation of Title IV of ERISA (other than liability for premiums to the Pension Benefit Guaranty
Corporation arising in the ordinary course), including, without limitation, any liability in
connection with (i) the termination or reorganization of any employee benefit plan subject to Title
IV of ERISA, or (ii) the withdrawal from any Multiemployer Plan or Multiple Employer Plan and, to
the knowledge of the Company, no fact or event exists which could give rise to any such liability.
(f) Except as set forth in Section 3.13(f), all material contributions, premiums or payments
required to be made with respect to any Plan have been made in full on or before their due dates.
No deduction for such contributions has been challenged or disallowed by any Governmental Authority
and, to the knowledge of the Company, no fact or event exists which could give rise to any such
challenge or disallowance. All contributions, premiums and payments accrued under each Plan,
determined in accordance with prior funding and accrual practices, as adjusted to include
proportional accruals for the period ending at the Effective Time, will be discharged and paid on
or prior to the Effective Time except to the extent reflected as a liability on the Company
Financial Statements. All long-term disability benefits made available to employees of the Company
are fully insured under insurance policies and such insurance policies are in full force and
effect.
14
(g) There has been no material failure of a Plan that is a group health plan (as defined in
Section 5000(b)(1) of the Code) to meet the requirements of Code Section 4980B(f) with respect to a
qualified beneficiary (as defined in Section 4980B(g)). To the knowledge of the Company, the
Company has not made contributions to a nonconforming group health plan (as defined in Section
5000(c) of the Code) and no ERISA Affiliate of the Company has incurred a tax under Section 5000(a)
which is or could reasonably be expected to become a material liability of the Company.
(h) Section 3.13(h) of the Disclosure Schedule sets forth each plan, program or arrangement
that would be a Plan except that it is subject to the laws of a jurisdiction other than the United
States (a “Non-U.S. Benefit Plan"). With respect to each Non-U.S. Benefit Plan:
(i) all employer and employee contributions to each Non-U.S. Benefit Plan required by
law or by the terms of such Non-U.S. Benefit Plan have been timely made (except for any
instances of noncompliance that would not have a Material Adverse Effect), or, if
applicable, accrued in accordance with normal accounting practices, and a pro
rata contribution for the period prior to and including the date of this Agreement
has been made or accrued;
(ii) with respect to any Non-U.S. Benefit Plans that are not government-mandated plans
or programs, the fair market value of the assets the liability of each insurer, or the book
reserve established for any such Non-U.S. Benefit Plan, together with any accrued
contributions, is sufficient to procure or provide for the benefits determined on an ongoing
basis accrued to the date of this Agreement with respect to all current and former
participants under such Non-U.S. Benefit Plan according to the actuarial assumptions and
valuations most recently used to determine employer contributions to such Non-U.S. Benefit
Plan, and no Transaction shall cause such assets or insurance obligations to be less than
such benefit obligations; and
(iii) each Non-U.S. Benefit Plan required to be registered has been registered and has
been maintained in good standing with applicable regulatory authorities and is approved by
any applicable taxation authorities to the extent such approval is available. Each Non-U.S.
Benefit Plan is now and always has been operated in material compliance with all applicable
non-United States laws and regulations.
3.14. Labor and Employment Matters. (a) Except as set forth in Section 3.14(a) of the
Disclosure Schedule, (i) to the knowledge of the Company, there is no pending or threatened
litigation between the Company or any Subsidiary and any of their respective employees or
independent contractors; (ii) neither the Company nor any Subsidiary is a party to any collective
bargaining agreement, work council agreement, work force agreement or any other labor union
contract applicable to persons employed by the Company or any Subsidiary, nor, to the knowledge of
the Company, are there any activities or proceedings of any labor union to organize any such
employees; (iii) to the knowledge of the Company, neither the Company nor any Subsidiary has
breached or otherwise failed to comply with any provision of any agreement or contract relating to
employees or contractors, and there are no grievances outstanding against the Company or any
Subsidiary under any collective bargaining agreement, union contract, work counsel agreement or
work force agreement or contract; (iv) to the knowledge of the Company,
15
there are no unfair labor practice complaints pending against the Company or any Subsidiary
before the National Labor Relations Board or any other court or tribunal; and (v) there is no
strike, slowdown, work stoppage or lockout or, to the knowledge of the Company, threat thereof, by
or with respect to any employees of the Company or any Subsidiary. The consent of any labor union
is not required to consummate the Transactions. There is no obligation to inform, consult or
obtain consent, whether in advance or otherwise, of any works council, employee representatives or
other representative bodies in order to consummate the Transactions.
(b) To the knowledge of the Company, the Company and its Subsidiaries are, and have been, in
material compliance with all Applicable Laws relating to the employment of labor, including those
related to wages, hours, collective bargaining, notice of termination, workers compensation, state
disability law, and the payment and withholding of taxes and other sums as required by the
appropriate Governmental Authority and have withheld and paid to the appropriate Governmental
Authority or are holding for payment not yet due to such Governmental Authority all amounts
required to be withheld from employees of the Company or any Subsidiary and are not liable for any
arrears of wages, taxes, penalties or other sums for failure to comply with any of the foregoing,
except as set forth in Section 3.14(b) of the Disclosure Schedule and where noncompliance, failure
to withhold such amounts, and the incurrence of such liability would not reasonably be expected to
be material. To the knowledge of the Company, the Company and its Subsidiaries have appropriately
classified independent contractors and employees and within the three (3) years preceding the date
hereof, they have had no claims asserted in any forum for any misclassification of workers, failure
to withhold taxes, failure to provide benefits or other perquisites of employment to independent
contractors. To the knowledge of the Company, the Company and its Subsidiaries have paid in full
to all employees, or adequately accrued for in accordance with GAAP consistently, applied all
wages, salaries, commissions, bonuses, benefits and other compensation due to or on behalf of such
employees or contractors, and there is no administrative claim, court complaint, or other legal
proceeding pending before any Governmental Authority nor, to the knowledge of the Company, is there
any threatened administrative claim, court complaint or other legal proceeding regarding the
payment of wages, salary, overtime pay or other payment for services rendered with respect to any
persons currently or formerly employed or engaged by the Company or any Subsidiary other than
claims listed in Section 3.14(b) of the Disclosure Schedule. Neither the Company nor any
Subsidiary is a party to, or is otherwise bound by, any consent decree with, or citation by, any
Governmental Authority relating to employees, independent contractors or employment practices,
other than those listed in Section 3.14(b) of the Disclosure Schedule. There is no administrative
charge, court complaint, or other legal proceeding pending nor, to the knowledge of the Company, is
there any threatened administrative charge, court complaint or other legal proceeding regarding a
violation of occupational safety or health standards by the Company or any Subsidiary, other than
those listed in Section 3.14(b) of the Disclosure Schedule. There is no administrative charge,
court complaint, or other legal proceeding pending nor, to the knowledge of the Company, is there
any threatened administrative charge, court complaint or other legal proceeding regarding
discrimination in the employment or employment practices, for any reason, including, without
limitation, age, gender, race, religion or other legally protected category, which has been
asserted or is now pending or, to the knowledge of the Company, threatened before the United States
Equal Employment Opportunity Commission, or any other Governmental Authority in any jurisdiction in
which the Company or any Subsidiary have employed or employ any person, other than charges listed
in Section 3.14(b) of the Disclosure
16
Schedule. No inquiry or investigation affecting any Company or any Subsidiary has been made
or, to the knowledge of the Company, threatened by the Commission for Racial Equality, the Equal
Employment Opportunity Commission or any similar body other than inquiries or investigations listed
in Section 3.14(b) of the Disclosure Schedule.
(c) Except as disclosed in Section 3.14(c) of the Disclosure Schedule, (i) all existing
contracts of employment to which the Company or, to the knowledge of the Company, any Subsidiary is
a party are terminable by the Company or any Subsidiary on three months’ notice or less without
compensation (other than in accordance with applicable legislation); (ii) neither the Company nor
any Subsidiary has an established pattern or practice with respect to the payment of standard
severance or separation pay to similarly situated employees following the termination of employment
of any employee for any reason (i.e. for cause, not for cause or voluntary termination); (iii)
neither the Company nor, to the knowledge of the Company, any Subsidiary has any outstanding
liability to pay compensation for loss of employment to any present or former employee or to make
any payment for breach of any agreement listed in Section 3.13(a) of the Disclosure Schedule; (iv)
there is no term of employment ¸ whether contractual or otherwise, of any employee of the Company
or, to the knowledge of the Company, any Subsidiary which shall entitle that employee to treat the
consummation of the Transactions as amounting to a breach of his contract of employment or
otherwise entitling him to any payment or benefit whatsoever or entitling him to treat himself as
redundant or otherwise dismissed or released from any obligation.
(d) Within the six (6) years preceding the date hereof, the Company and its Subsidiaries have
complied with all notice obligations under the WARN Act and any state equivalent.
3.15. Property and Leases. (a) The Company and the Subsidiaries have sufficient title to all
their properties and assets to conduct their respective businesses as currently conducted, with
only such exceptions as would not reasonably be expected to have a Material Adverse Effect.
(b) Except as disclosed in Section 3.15(b) of the Disclosure Schedule, the Company does not
own any real property.
(c) Section 3.15(c) of the Disclosure Schedule contains an accurate and complete list of all
leases of real property leased for the use or benefit of the Company or any Subsidiary to which the
Company or any Subsidiary is a party (the “Leases"). All amendments and modifications to the
Leases are in full force and effect and described in Section 3.15(c) of the Disclosure Schedule,
and there exists no default under any Lease by the Company or any Subsidiary, nor any event which,
with notice or lapse of time or both, would constitute a default thereunder by the Company or any
Subsidiary, except as would not reasonably be expected to have a Material Adverse Effect.
(d) The Company has made available to Purchaser a true, correct and complete copy of each
Lease, including all amendments, supplements or other modifications thereto, and (i) each Lease is
legal, valid, binding and enforceable against the Company and the Subsidiaries party thereto in
accordance with the terms thereof, subject to bankruptcy, insolvency, fraudulent
17
conveyance, reorganization, moratorium or other similar laws relating to creditor’s rights and
to general principles of equity; (ii) neither the Company and the Subsidiaries, nor, to the
Company’s knowledge, any other party to any Lease, has waived any material term or condition
thereof, and all material covenants to be performed by the Company and the Subsidiaries prior to
the date hereof or, to the Company’s knowledge, by any other party to any Lease, have been
performed in all material respects; (iii) none of the Company and the Subsidiaries or, to the
Company’s knowledge, any other party to any Lease, is in material breach or default under any
lease, and no event or circumstance exists or has occurred which, with the delivery of notice, the
passage of time or both, would constitute a material breach or default by the Company or any
Subsidiary or, to the Company’s knowledge, by any other party thereto, permit the termination,
modification or acceleration of rent under any Lease; and (iv) the Company and the Subsidiaries
have not subleased, or collaterally assigned or granted any security interest in any Lease or any
interest therein.
3.16. Intellectual Property. (a) Section 3.16 of the Disclosure Schedule contains a list of
all Intellectual Property material to the conduct of the businesses of the Company and the
Subsidiaries as currently conducted or as contemplated to be conducted and either owned by or
registered in the name of the Company or any of the Subsidiaries or owned by others and licensed to
the Company or any of the Subsidiaries, specifying as to each, as applicable:
(i) the nature of such Intellectual Property;
(ii) the owner of such Intellectual Property;
(iii) in the case of Intellectual Property owned by or registered in the name of the
Company or any of the Subsidiaries (collectively, the “Company Owned Intellectual
Property”), the jurisdictions by or in which such Intellectual Property has been issued or
registered or in which an application for such issuance or registration has been filed,
including the respective registration or application numbers and dates of issuance,
registration and filing, as applicable; and
(iv) contracts, licenses, sublicenses, agreements and other arrangements as to which
the Company or any of the Subsidiaries is a party and pursuant to which any person
(including the Company or any of the Subsidiaries) is authorized to use such Intellectual
Property (collectively, the “IP Contracts”), including the identity of all parties thereto,
a description of the nature and subject matter thereof, the applicable royalties and the
terms thereof.
(b) Except as would not reasonably be expected to have a Material Adverse Effect, the conduct
of the businesses of the Company and the Subsidiaries as currently conducted or as contemplated to
be conducted does not (i) infringe upon or misappropriate the Intellectual Property rights or
rights of publicity or privacy of, or libel or defame, any third party or constitute unfair
competition or trade practices with respect to Company Owned Intellectual Property in the
jurisdictions in which the Company and its Subsidiaries do business (nor does the Company have any
knowledge of any basis therefore); and (ii) to the knowledge of the Company, infringe upon or
misappropriate the Intellectual Property rights or rights of publicity or privacy of, or libel or
defame, any third party or constitute unfair competition or trade
18
practices with respect to all other Intellectual Property used by the Company or any of the
Subsidiaries in the jurisdictions in which they do business (nor does the Company have any
knowledge of any basis therefore).
(c) Except as set forth in Section 3.16(c) of the Disclosure Schedule, each item of
Intellectual Property currently used by each of the Company and the Subsidiaries and material to
the conduct of its business as currently conducted or as contemplated to be conducted is either (i)
exclusively owned by it and was created solely by its employees acting within the scope of their
employment or by third parties, all of which employees and third parties have validly assigned all
of their rights, including Intellectual Property rights therein in writing, to it; or (ii) duly and
validly licensed to it for use in the manner currently used by it or as contemplated to be used by
it.
(d) Except as set forth in Section 3.16(d) of the Disclosure Schedule, each item of Company
Owned Intellectual Property (i) is subsisting and in full force and effect; (ii) has not been
abandoned or passed into the public domain; (iii) is free and clear of any lien, security interest
or other encumbrance; (iv) to the knowledge of the Company, has not been, and is not currently,
infringed upon or misappropriated by any third parties; (v) is not subject to any outstanding
judgment, order, decree, stipulation or injunction; and (vi) is not the subject of any charge,
complaint, action, suit, proceeding, hearing, investigation, claim or demand, pending or
threatened, which challenges the legality, validity, enforceability, use or ownership thereof.
(e) The Company has delivered to Parent copies of all United States, non-United States and
international:
(i) patents and patent applications of the Company and each of the Subsidiaries; and
(ii) registrations of the Company and each of the Subsidiaries of, and applications to
register, other Intellectual Property rights, including, without limitation, trademarks,
service marks, trade dress, logos, trade names, corporate names, Internet domain names and
addresses, copyrightable works, copyrights and mask works (collectively, under both clauses
(i) and (ii), “Registered Intellectual Property”).
Except as would not reasonably be expected to have a Material Adverse Effect, all necessary
registration, maintenance and renewal fees in connection with each item of Registered Intellectual
Property have been paid and all necessary documents and certificates in connection with such
Registered Intellectual Property have been filed with the relevant patent, copyright, trademark or
other Governmental Authority or domain name registrar(s) in the United States or non-United States
jurisdictions, as the case may be (including, without limitation, the United States Patent and
Trademark Office, the United States Copyright Office or their respective counterparts in any
relevant non-United States jurisdiction), for the purposes of maintaining such Registered
Intellectual Property.
(f) The Company has no knowledge of any facts, circumstances or information that (i) would
render any Registered Intellectual Property invalid or unenforceable; (ii) would adversely affect
any pending application for any Registered Intellectual Property; or (iii) would
19
adversely affect or impede the ability of any of the Company or the Subsidiaries to use any
Intellectual Property in the manner currently used by it in the conduct of its business or as
contemplated to be used.
(g) All officers, management employees, and technical and professional employees, and
consultants of the Company and the Subsidiaries are party to written obligations with the Company
and the Subsidiaries, as applicable, which documents such individual’s obligations to maintain in
confidence all confidential or proprietary information acquired by them in the course of their
employment or services to the Company or a Subsidiary, as applicable, and to assign to the Company
and the Subsidiaries all inventions made by them within the scope of their employment during such
employment and for a reasonable period thereafter.
3.17. Taxes. (a) (i) All material Tax Returns that are required to be filed by or with
respect to Taxes of the Company and each Subsidiary have been filed or caused to be filed or will
be filed in a timely manner (with applicable extension periods), and such Tax Returns are true,
accurate and complete in all material respects; (ii) all Taxes shown to be due on such Tax Returns
have been timely paid in full or will be timely paid in full by the due date thereof; (iii) any
deficiencies resulting from examinations of such Tax Returns have either been paid or are being
contested in good faith; and (iv) no waivers of statutes of limitation have been given by or
requested with respect to any Taxes of the Company or any Subsidiary; and (v) each of the Company
and its Subsidiaries has withheld and paid over all material Taxes required to have been withheld
and paid over, and complied with all material information reporting and backup withholding
requirements, including maintenance of required records with respect thereto, in connection with
amounts paid or owing to any employee, creditor, independent contractor, or other third party.
(b) Except as set forth in Section 3.17 of the Disclosure Schedule, neither the Company nor
any Subsidiary has received written notice of any claim made by a Government Authority in a
jurisdiction in which the Company or any Subsidiary does not file Tax Returns, that the Company or
a Subsidiary may be required to file Tax Returns or to pay Taxes by that jurisdiction.
(c) Except as set forth in Section 3.17 of the Disclosure Schedule, no federal, state, local
or foreign audits, examinations or other administrative proceedings have been commenced or are
pending with regard to any Tax Returns with respect to Taxes of the Company or any Subsidiary.
(d) Except as set forth in Section 3.17 of the Disclosure Schedule, there is no material tax
lien (other than for current taxes not yet due and payable) against the assets of the Company or
any Subsidiary.
(e) None of the assets of the Company or any Subsidiary is (i) “tax exempt use property”
within the meaning of Section 168(h) of the Code; or (ii) subject to any lease made pursuant to
former Section 168(f)(8) of the Code.
(f) Neither the Company nor any Subsidiary has made an election under Section 341(f) of the
Code.
20
(g) The accruals and reserves for taxes reflected in the 2004 Balance Sheet are adequate to
cover all taxes accruable through the date of the 2004 Balance Sheet (including interest and
penalties, if any, thereon) in accordance with generally accepted accounting principles.
(h) The Company and each of the Subsidiaries is a “United States Person” within the meaning of
Section 7701(a)(30) of the Code.
(i) The Company has not been the “distributing corporation” (within the meaning of Section
355(c)(2) of the Code) with respect to a transaction described in Section 355 of the Code within
the 3-year period ending as of the date of this Agreement.
(j) Neither the Company nor any Subsidiary is a party to any compensatory agreements with
respect to the performance of services which payment thereunder would result in a nondeductible
expense to the Group pursuant to Sections 162(m).
(k) Neither the Company nor any Subsidiary has agreed, nor is it required to make, any
adjustment under Code Section 481(a) by reason of a change in accounting method or otherwise.
(l) Neither the Company nor any Subsidiary is a party to any joint venture, partnership or
other agreement, contract or arrangement (either in writing or verbally, formally or informally)
which could be treated as a partnership for federal income tax purposes, except any joint venture,
partnership or other agreement, contract or arrangement (either in writing or verbally, formally or
informally) that elects to be treated as a partnership for federal income tax purposes at the
request of Parent or Purchaser.
(m) Neither the Company nor any Subsidiary has participated in a “listed transaction” within
the meaning of Treasury Regulations Section 1.6011-4.
(n) The Company and its Subsidiaries have made available (or will make available prior to
closing) information to Parent, Purchaser and their representatives for the purposes of determining
(i) the basis of the Company or its Subsidiary in its assets; (ii) the basis of the stockholders
of Company’s Subsidiary in its stock (or the amount of any excess loss account); (iii) the amount
of any net operating loss, net capital loss, unused investment or other credit, unused foreign tax,
or excess charitable contribution allocable to the Company or its Subsidiary; and (iv) any Code
Section 382 limitation applicable to the Company or its Subsidiary.
3.18. Environmental Matters. Except as described in Section 3.18 of the Disclosure Schedule
and except as would not reasonably be expected to result in a Material Adverse Effect, (a) the
Company and its Subsidiaries have at all times been and are in full compliance with all applicable
Environmental Laws; (b) none of the properties currently or formerly owned, leased or operated by
the Company or its Subsidiaries (including, without limitation, soils and surface and ground
waters) are contaminated with any Hazardous Substance to an extent that would require the Company
or its Subsidiaries to make any report, filing or application, or take responsive action or that
could cause liability for the Company or its Subsidiaries, under Environmental Laws; (c) none of
the Company and its Subsidiaries have received any written notice of liability for any
contamination by Hazardous Substances at any site containing
21
Hazardous Substances generated, transported, stored, treated or disposed by the Company or its
Subsidiaries; (d) none of the Company and its Subsidiaries are actually or allegedly liable for any
damages, remediation, or penalties, or subject to any claim by any person or Governmental Authority
for any injunctive or monetary relief (including, without limitation, pending or threatened liens)
arising out of or relating to any failure to comply with any Environmental Law or exposure of any
person to Hazardous Substances; (e) the Company and its Subsidiaries are in compliance with all
permits, licenses and other authorizations required under any Environmental Law (“Environmental
Permits”), and, to the knowledge of the Company and its Subsidiaries, all past non-compliance with
Environmental Laws or Environmental Permits has been resolved without any pending, ongoing or
future obligation, costs or liability; (f) the Company and its Subsidiaries have made available to
Purchaser complete and correct copies of all studies, reports, surveys, assessments, audits,
correspondence, investigations, analysis, tests, and other documents (whether in hard copy or
electronic form) in the Company’s or Subsidiaries’ possession regarding the presence or alleged
presence of Hazardous Substances at, on, or affecting any property currently or formerly owned or
operated by the Company and its Subsidiaries and (g) neither the execution of this Agreement nor
the consummation of the Transactions will require any investigation, remediation or other action
with respect to Hazardous Substances.
3.19. Material Contracts. There are no contracts or agreements that are material contracts
(as defined in Item 601(b)(10) of Regulation S-K) to which the Company or any Subsidiary is a party
or by which Company or any Subsidiary is bound (the “Material Contracts") other than (a) those
Material Contracts identified on the exhibit indices of SEC Reports and (b) those Material
Contracts entered into by the Company or a Subsidiary in compliance with Section 5.1. In addition,
(i) each Material Contract is valid, subsisting, in full force and effect and is enforceable
against Company or the applicable Subsidiary, and, to the knowledge of the Company, the other
parties thereto in accordance with its terms; (ii) none the Company and its Subsidiaries, nor to
the knowledge of Company, any other party, is in breach of or in default under any provision of any
Material Contract, except for breaches or defaults which have not had and would not reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect; (iii) the Company
and the Subsidiaries are not in receipt of any written claim of default under any such agreement;
and (iv) neither the execution of this Agreement nor the consummation of any Transaction shall
have, individually or in the aggregate, a Material Adverse Effect with respect to any Material
Contract. To the knowledge of the Company, no condition or circumstance exists which would
reasonably be expected to constitute a default of a provision under any Material Contracts, except
for defaults which have not had, and would not reasonably be expected to have, individually or in
the aggregate, a Material Adverse Effect. Unredacted copies of any Material Contracts filed with
the SEC pursuant to a confidential treatment request have been made available to Parent.
3.20. Records. The corporate record books of the Company and each Subsidiary, other than PIC,
contain accurate records of all material meetings and accurately reflect all other material actions
taken by the respective boards and the committees thereof. Complete and accurate copies of all
such record books have been made available by the Company to Parent.
3.21. Insurance. (a) Section 3.21 of the Disclosure Schedule sets forth, as of the date
hereof, all material policies of insurance maintained by or for the benefit of the Company and the
Subsidiaries, including any dealing with or regarding the ownership, use, or operation of any of
22
their respective assets and properties and that (i) have been issued to the Company or any
Subsidiary or (ii) that are held by any Affiliate of the Company or any Subsidiary for the benefit
of the Company and the Subsidiaries (collectively, the “Insurance Policies").
(b) As of the date hereof, the Insurance Policies are reasonably believed by the Company to be
(i) underwritten by entities of recognized financial responsibility and solvency, and (ii)
sufficient to protect against such losses and risks and in such amounts as are customary in the
businesses in which the Company and Subsidiaries are engaged.
(c) With respect to each Insurance Policy:
(i) assuming that the entity underwriting such Policy is duly organized and has the
requisite power and authority (both corporate and regulatory) to underwrite such a Policy,
the Policy is legal, valid, binding and enforceable in accordance with its terms and, except
for policies that have expired under their terms in the ordinary course, is in full force
and effect;
(ii) none of the Company and its Subsidiaries is in material breach or default
(including any such breach or default with respect to the payment of premiums or the giving
of notice), and, to the knowledge of the Company, no event has occurred which, with notice
or the lapse of time, would constitute a breach or default, or permit termination or
modification, under the Policy; and
(iii) to the knowledge of the Company, no insurer on the Policy has been declared
insolvent or placed in receivership, conservatorship or liquidation.
3.22. Brokers. No broker, finder or investment banker (other than Xxxxxxx & Company) (the
"Company’s Financial Advisor”) is entitled to any brokerage, finder’s or other fee or commission in
connection with the Transactions based upon arrangements made by or on behalf of the Company or any
Subsidiary. The Company has heretofore furnished to Parent a complete and correct copy of all
agreements between the Company and the Company’s Financial Advisor pursuant to which such firm
would be entitled to any payment relating to the Transactions. The fees and expenses of Xxxxxxx &
Company will be paid or caused to be paid by the Company.
3.23. Customers and Suppliers. There has not been any change in the business relationship of
the Company or any Subsidiary with any customer who accounted for more than ten percent (10%) of
the Company’s sales (on a consolidated basis) during the period from January 1, 2004 to the date
hereof, or any supplier from whom the Company and the Subsidiaries purchased more than five percent
(5%) of the goods or services (on a consolidated basis) which it purchased during the same period
except for such change as would not reasonably be expected to have a Material Adverse Effect.
3.24. Certain Business Practices. To the knowledge of the Company, none of the Company or any
director, officer, employee or agent of the Company or any Subsidiary acting on behalf of the
Company or any Subsidiary has (a) used any funds for unlawful contributions, gifts, entertainment
or other unlawful payments relating to political activity; (b) made any unlawful payment to any
foreign or domestic government official or employee or to any foreign
23
or domestic political party or campaign or violated any provision of the Foreign Corrupt
Practices Act of 1977, as amended; (c) consummated any transaction, made any payment, entered into
any agreement or arrangement or taken any other action in violation of Section 1128B(b) of the
Social Security Act, as amended; or (d) made any other unlawful payment.
3.25. Export Controls. The Company is and, for the past five (5) years, has been in
compliance with all Applicable Laws relating to export control and trade embargoes except to the
extent that noncompliance with such Applicable Laws would not reasonably be expected to have a
Material Adverse Effect.
3.26. Antiboycott Laws. The Company has not violated the antiboycott prohibitions contained
in 50 U.S.C. § 2401 et seq. or taken any action that would reasonably be expected to result in a
penalty under Section 999 of the Code except to the extent that such violation or action would not
reasonably be expected to have a Material Adverse Effect.
3.27. Affiliate Transactions. Except as set forth in Section 3.27 of the Disclosure Schedule,
there are no existing contracts, transactions, indebtedness or other arrangements, or any related
series thereof, between the Company or any of the Subsidiaries, on the one hand, and any of the
directors, officers or other Affiliates of the Company and the Subsidiaries, on the other hand,
that would be required to be disclosed under Item 404 of Regulation S-K.
3.28. Opinion of Financial Advisor. The Company has received the oral opinion of the
Company’s Financial Advisor, as of August 16, 2005, to the effect that, as of such date, the
consideration to be received in the Merger by the Company’s common stockholders is fair to the
Company’s stockholders from a financial point of view, and a copy of such opinion in written form
shall be delivered to Parent and Purchaser as soon as reasonably practicable after the date hereof.
The Company has been authorized by the Company’s Financial Advisor to permit the inclusion of such
opinion in its entirety in the Proxy Statement.
Article IV.
Representations and Warranties of JE Holdings, Parent and Purchaser
JE Holdings, Parent and Purchaser hereby, jointly and severally, represent and warrant to the
Company that:
4.1. Corporate Organization. JE Holdings is a corporation duly organized, validly existing
and in good standing under the laws of the jurisdiction of its incorporation. Parent and Purchaser
are newly-formed corporations duly organized, validly existing and in good standing under the laws
of the jurisdiction of their incorporation and have engaged in no business other than in connection
with the Transactions. Each of JE Holdings, Parent and Purchaser has the requisite corporate power
and authority and all necessary approvals from Governmental Authorities to own, lease and operate
its properties and to carry on its business as it is now being conducted, except where the failure
to be so organized, existing or in good standing or to have such power, authority and approvals
would not, individually or in the aggregate, have a material adverse effect on the business or
operations of JE Holdings, Parent and Purchaser and their respective Subsidiaries taken as a whole.
24
4.2. Authority Relative to This Agreement. Each of JE Holdings, Parent and Purchaser has all
necessary corporate power and authority to execute and deliver this Agreement, to perform its
obligations hereunder and consummate the Transactions. The execution and delivery of this
Agreement by JE Holdings, Parent and Purchaser and the performance by JE Holdings, Parent and
Purchaser of their obligations hereunder have been duly and validly authorized by all necessary
corporate action, and no other corporate proceedings on the part of JE Holdings, Parent or
Purchaser are necessary to authorize the execution and delivery of this Agreement or to consummate
the Transactions (other than, with respect to the Merger, the filing and recordation of appropriate
merger documents as required by the MBCA). This Agreement has been duly and validly executed and
delivered by JE Holdings, Parent and Purchaser and, assuming due authorization, execution and
delivery by the Company, constitutes a legal, valid and binding obligation of each of JE Holdings,
Parent and Purchaser enforceable against each of JE Holdings, Parent and Purchaser in accordance
with its terms.
4.3. Board Approvals and Takeover Laws. The Board of Directors of JE Holdings (the “JE
Board”), at a meeting duly called and held, has (i) duly and validly approved, as of the date of
this Agreement, and taken all corporate action required to be taken by the JE Board to authorize
the consummation of the Transactions; and (ii) determined, as of the date of this Agreement, that
no vote of the stockholders of JE Holdings is required in order for JE Holdings to accept, approve
and adopt this Agreement and the Merger, and none of the aforesaid actions by the JE Board has been
amended, rescinded or modified except as permitted by the terms of this Agreement.
4.4. No Conflict; Required Filings and Consents. (a) The execution and delivery of this
Agreement by JE Holdings, Parent and Purchaser do not, and the performance of their obligations
under this Agreement shall not, (i) conflict with or violate the articles of organization or
by-laws or similar documents of JE Holdings, Parent or Purchaser; (ii) assuming that all consents,
approvals, authorizations and other actions described in Section 4.4(b) have been obtained and all
filings and obligations described in Section 4.4(b) have been made and, subject, in the case of the
Merger, to obtaining Stockholder Approval, conflict with or violate any Applicable Law or by which
any property or asset of either of them is bound or affected; or (iii) result in any breach of, or
constitute a default (or an event which, with notice or lapse of time or both, would become a
default) under, or give to others any rights of termination, amendment, acceleration or
cancellation of, or result in the creation of a lien or other encumbrance on any property or asset
of JE Holdings, Parent or Purchaser pursuant to, any note, bond, mortgage, indenture, contract,
agreement, lease, license, permit, franchise or other instrument or obligation to which JE
Holdings, Parent or Purchaser is a party or by which JE Holdings, Parent or Purchaser or any
property or asset of either of them is bound or affected, except, with respect to clauses (ii) and
(iii), for any such conflicts, violations, breaches, defaults or other occurrences which would not
prevent or materially delay consummation of the Transactions or otherwise prevent or materially
xxxxx XX Holdings, Parent or Purchaser from performing any of their material obligations under this
Agreement.
(b) The execution and delivery of this Agreement by JE Holdings, Parent and Purchaser do not,
and the performance of this Agreement by JE Holdings, Parent and Purchaser shall not, require any
consent, approval, authorization or permit of, or filing with, or notification to, any Governmental
Authority, except (i) for applicable requirements, if any, of the Exchange
25
Act, Blue Sky Laws, state takeover laws, the HSR Act and the requirements in the countries
where a merger filing will be necessary or advisable, the Exon-Xxxxxx Provision and the filing and
recordation of appropriate merger documents as required by the MBCA; (ii) where the failure to
obtain such consents, approvals, authorizations or permits, or to make such filings or
notifications, would not prevent or materially delay consummation of the Transactions, or otherwise
prevent or materially xxxxx XX Holdings, Parent or Purchaser from performing their material
obligations under this Agreement; and (iii) where, pursuant to the Listing Rules of the Hong Kong
Stock Exchange, JE Holdings at the time of signing of this Agreement makes a notice filing with the
Hong Kong Stock Exchange, discloses the Merger’s principal terms in a newspaper announcement
following the signing, and following the signing will distribute a circular to shareholders in
substantially the same form as the newspaper announcement. JE Holdings shall provide the Company
and its counsel the opportunity to review the notice filing, newspaper announcement and circular,
including all amendments and supplements thereto, prior to their being filed with the Hong Kong
Stock Exchange or published, as the case may be, and shall give the Company and its counsel the
opportunity to review all responses to requests for additional information and replies to comments
prior to their being filed with, or sent to, the Hong Kong Stock Exchange.
4.5. Financing. JE Holdings, Parent and Purchaser have, and will have available to them at
and after the Effective Time, sufficient funds to consummate the Transactions, including without
limitation payment in full of amounts due for the Merger Consideration, Option Consideration and
Warrant Consideration and all fees and expenses incurred in connection with the Transactions.
4.6. Brokers. No broker, finder or investment banker (other than Xxxxxx Xxxxxx & Co. Inc.) is
entitled to any brokerage, finder’s or other fee or commission in connection with the Transactions
based upon arrangements made by or on behalf of JE Holdings, Parent or Purchaser. The fees and
expenses of Xxxxxx Xxxxxx & Co. Inc. will be paid or caused to be paid by JE Holdings, Parent or
Purchaser.
4.7. Absence of Litigation. There is no litigation, suit, claim, action, proceeding or
investigation pending or, to the knowledge of JE Holdings, Parent or Purchaser, threatened against
JE Holdings, Parent or Purchaser, or any property or asset of JE Holdings, Parent, Purchaser or any
Subsidiary, before any Governmental Authority that seeks to materially delay or prevent the
consummation of any Transaction. None of JE Holdings, Parent, Purchaser or any Subsidiary nor any
property or asset of JE Holdings, Parent, Purchaser or any Subsidiary is subject to any continuing
order of, consent decree, settlement agreement or similar written agreement with or, to the
knowledge of JE Holdings, Parent or Purchaser, continuing investigation by, any Governmental
Authority, or any order, writ, judgment, injunction, decree, determination or award of any
Governmental Authority that would prevent or materially delay consummation of the Transactions.
4.8. Ownership of Shares; MCRL Chapter 110F. None of JE Holdings, Parent or Purchaser owns
any Shares or Preferred Shares. During the three years prior to the execution of this Agreement,
none of JE Holdings, Parent, Purchaser or any of their respective Affiliates or associates has
been, with respect to the Company, an “interested stockholder” within the meaning of and as defined
in the MCRL Chapter 110F.
26
Article V.
Conduct of Business Pending the Merger
5.1. Conduct of Business by the Company Pending the Merger. The Company covenants and agrees
that, between the date of this Agreement and the Effective Time, except as contemplated by this
Agreement and as set forth in Section 5.1 of the Disclosure Schedule or unless Parent shall
otherwise agree in writing, the businesses of the Company and the Subsidiaries shall be conducted
only in, and the Company and the Subsidiaries shall not take any action except in, the ordinary
course of business and in a manner consistent with past practice; and the Company shall use
commercially reasonable efforts to preserve substantially intact the business organization of the
Company and the Subsidiaries, to keep available the services of the current officers and key
employees and consultants of the Company and the Subsidiaries and to preserve the current
relationships of the Company and the Subsidiaries with customers, suppliers and other persons with
which the Company or any Subsidiary has significant business relations. Except as expressly
contemplated by this Agreement and Section 5.1 of the Disclosure Schedule, neither the Company nor
any Subsidiary shall, between the date of this Agreement and the Effective Time, directly or
indirectly, do, or propose to do, any of the following without the prior written consent of Parent:
(a) amend or otherwise change its articles of organization or by-laws or equivalent
organizational documents;
(b) issue, sell, pledge, dispose of, grant, encumber, or authorize the issuance, sale, pledge,
disposition, grant or encumbrance of any shares of any class of capital stock of the Company or any
Subsidiary, or any options, warrants, convertible securities or other rights of any kind to acquire
any shares of such capital stock, or any other ownership interest (including, without limitation,
any phantom interest), of the Company or any Subsidiary (except for the issuance of a maximum of
2,306,400 Shares issuable pursuant to the Company Stock Option Plans, Preferred Shares, Convertible
Notes and Warrants outstanding on the date hereof);
(c) declare, set aside, make or pay any dividend or other distribution, payable in cash,
stock, property or otherwise, with respect to any of its capital stock, except for regular
quarterly dividends on the Preferred Shares declared and paid at times consistent with past
practice in an aggregate amount not in excess of $1.65 per Share;
(d) reclassify, combine, split, subdivide or redeem, or purchase or otherwise acquire,
directly or indirectly, any of its capital stock;
(e) (i) acquire (including, without limitation, by merger, consolidation or acquisition of
stock or assets or any other business combination) any corporation, partnership, other business
organization or any division thereof or any material amount of assets, other than pending
acquisitions or minority investments, in each case publicly announced prior to the date hereof;
(ii) incur any indebtedness for borrowed money or issue any debt securities or assume, guarantee or
endorse, or otherwise become responsible for, the obligations of any person, or make any loans or
advances, except in the ordinary course of business and consistent with past practice; (iii)
transfer, lease, license, sell, mortgage, pledge, dispose of, or encumber any of its material
27
assets (other than sales of obsolete assets and inventory in the ordinary course of business
consistent with past practice); (iv) authorize, pay, discharge or satisfy any claims, liabilities,
commitments or obligations (whether absolute, accrued, contingent or otherwise) in excess of
$250,000, other than the payment, discharge or satisfaction of any such claims, liabilities,
commitments or obligations, in the ordinary course of business consistent with past practice, or
reflected or reserved against in, or contemplated by, the 2004 Balance Sheet;
(f) increase the compensation payable or to become payable or the benefits provided to its
directors, officers or employees, except for increases in the ordinary course of business and
consistent with past practice in salaries or wages of employees of the Company or any Subsidiary
who are not directors or executive officers of the Company, or grant any severance or termination
pay to, or enter into any employment or severance agreement with, any director, executive officer
or other employee of the Company or of any Subsidiary, or establish, adopt, enter into or amend any
collective bargaining, bonus, profit-sharing, thrift, compensation, stock option, restricted stock,
pension, retirement, deferred compensation, employment, termination, severance or other plan,
agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee;
(g) take any action, other than commercially reasonable and usual actions in the ordinary
course of business and consistent with past practice, with respect to accounting policies or
procedures (including, without limitation, procedures with respect to the payment of accounts
payable and collection of accounts receivable);
(h) make any material tax election or settle or compromise any material United States federal,
state, local or other non-United States income tax liability, except in the ordinary course of
business or in a manner consistent with past practice; or change any of the accounting methods used
by the Company materially affecting the Company’s assets, liabilities or business, except for such
changes required by GAAP;
(i) enter into, amend, modify or consent to the termination of any Material Contract, or
amend, waive, modify or consent to the termination of the Company’s or any Subsidiary’s rights
thereunder, other than in the ordinary course of business and consistent with past practice,
including any new or materially amended joint venture or supply agreement with Infineon
Technologies AG or any Affiliate thereof (“Infineon”);
(j) permit any material insurance policy naming the Company as a beneficiary or a loss payee
to be cancelled or terminated without notice to Parent;
(k) create any material Subsidiaries or adopt a plan of complete or partial liquidation,
dissolution, restructuring, recapitalization or other reorganization of the Company or any Company
Subsidiary (other than the Merger);
(l) commence or settle any material Action; or
(m) announce an intention, enter into any formal or informal agreement or otherwise make a
commitment, to do any of the foregoing.
28
5.2. Consultation. In connection with the continuing operation of the business of the Company
and its Subsidiaries between the date of this Agreement and the Effective Time, the Company shall
use commercially reasonable efforts to consult in good faith on a regular basis with the
representatives of Parent to report material operational developments and the general status of
ongoing operations pursuant to procedures reasonably requested in writing by Parent or its
representatives; provided, that the consultation required by this Section 5.2 shall be
conducted in a manner so as not to disrupt in any material respect the business of the Company and
its Subsidiaries. JE Holdings, Parent and Purchaser acknowledge that none of JE Holdings, Parent or
Purchaser shall have any approval rights under this Section 5.2. The Company acknowledges that any
such consultation shall not constitute a waiver by JE Holdings, Parent or Purchaser of any rights
it may have under this Agreement and that none of JE Holdings, Parent or Purchaser shall have any
liability or responsibility for any actions of the Company and any of its Subsidiaries or any of
their respective directors or officers with respect to matters that are the subject of such
consultations.
Article VI.
Additional Agreements
6.1. Proxy Statement.
(a) Subject to the terms of this Agreement and to its fiduciary duties under Applicable Law as
advised by independent counsel, as promptly as practicable following the date of this Agreement,
the Company shall, with the assistance and approval of JE Holdings, prepare and file the Proxy
Statement with the SEC under the Exchange Act (such proxy statement, as amended and supplemented,
the “Proxy Statement”), and shall use its commercially reasonable efforts to have the Proxy
Statement cleared by the SEC. JE Holdings, Parent, Purchaser and the Company shall cooperate with
each other in the preparation of the Proxy Statement, and the Company shall notify Parent of the
receipt of any comments of the SEC with respect to the Proxy Statement and of any requests by the
SEC for any amendment or supplement thereto or for additional information and shall provide to
Parent promptly copies of all correspondence between the Company or any representative of the
Company and the SEC. The Company shall provide Parent and its counsel the opportunity to review
the Proxy Statement, including all amendments and supplements thereto, prior to it being filed with
the SEC and shall give Parent and its counsel the opportunity to review all responses to requests
for additional information and replies to comments prior to their being filed with, or sent to, the
SEC. Subject to the terms of this Agreement and to its fiduciary duties under Applicable Law as
advised by independent counsel, each of the Company, JE Holdings, Parent and Purchaser agrees to
use its commercially reasonable efforts, after consultation with the other parties hereto, to
respond promptly to all such comments of and requests by the SEC and to cause the Proxy Statement
and all required amendments and supplements thereto to be mailed to the holders of Shares entitled
to vote at the Stockholders’ Meeting at the earliest practicable time.
(b) None of the information supplied or to be supplied by the Company, JE Holdings, Parent or
Purchaser for inclusion or incorporation by reference in the Proxy Statement will, at the date of
mailing to stockholders and at the time of the Stockholders Meeting, contain any untrue statement
of a material fact or omit to state any material fact required to be stated therein or
29
necessary in order to make the statements therein, in light of the circumstances under which
they were made, not misleading. The Proxy Statement will comply as to form in all material respects
with the requirements of the Exchange Act.
6.2. Stockholders’ Meeting. Subject to the terms of this Agreement and to its fiduciary
duties under Applicable Law as advised by independent counsel, as promptly as practicable following
the date that the Company has received confirmation that the staff of the SEC has no comments or no
further comments on the Proxy Statement, the Company, acting through its Board, and in accordance
with Applicable Law and the Company’s articles of organization and by-laws, shall (i) duly call,
give notice of, convene and hold an annual or special meeting of its stockholders for the purpose
of considering and taking action on this Agreement and the Transactions (the “Stockholders’
Meeting”); (ii) include in the Proxy Statement, and not subsequently withdraw or modify in any
manner adverse to JE Holdings, Parent or Purchaser the recommendation of the Board that the
stockholders of the Company approve and adopt this Agreement and the Transactions; and (iii) use
its best efforts to obtain such approval and adoption. At the Stockholders’ Meeting, JE Holdings,
Parent and Purchaser shall cause all Shares then owned by them and their Subsidiaries to be voted
in favor of the approval and adoption of this Agreement and the Transactions.
6.3. Access to Information; Confidentiality. (a) From the date hereof until the Effective
Time, to the extent permitted by Applicable Law, the Company shall, and shall cause the
Subsidiaries and the officers, directors, employees, auditors and agents of the Company and the
Subsidiaries to, afford the officers, employees and agents of JE Holdings, Parent and Purchaser
reasonable access at reasonable times to the officers, employees, agents, properties, offices,
plants and other facilities, books and records of the Company and each Subsidiary, and shall
xxxxxxx XX Holdings, Parent and Purchaser with such financial, operating and other data and
information (“Confidential Information”) as JE Holdings, Parent or Purchaser, through their
officers, employees or agents, may reasonably request.
(b) From and after the date hereof, JE Holdings, Parent and Purchaser shall, and shall cause
their respective Affiliates and their respective officers, directors, employees, agents and
representatives to comply with the provisions of the Nondisclosure Agreement in their treatment of
Confidential Information.
(c) No investigation pursuant to this Section 6.3 shall affect any representation or warranty
in this Agreement of any party hereto or any condition to the obligations of the parties hereto.
6.4. No Solicitation of Transactions.
(a) Neither the Company nor any Subsidiary shall, directly or indirectly, through any officer,
director, agent or otherwise, (i) solicit, initiate or knowingly encourage the submission of, any
Acquisition Proposal, including a Superior Proposal; or (ii) participate in any discussions or
negotiations regarding, or furnish to any person, any non-public information with respect to any
Acquisition Proposal, except that the Company may take any action referred to in this clause (ii)
if (I) the Board determines in good faith, after having received advice from outside legal counsel,
that such action is consistent with the fiduciary duties of the Board under Applicable
30
Law, (II) the Board determines in good faith that the Acquisition Proposal is reasonably
likely to lead to a Superior Proposal, and (III) after giving prior written notice to JE Holdings
and entering into a customary confidentiality agreement. For purposes of this Agreement, a
"Superior Proposal” means any bona fide written proposal, not solicited, initiated or knowingly
encouraged in violation of this Section 6.4, made by a third person to acquire, directly or
indirectly, for consideration consisting of cash and/or securities, 50% or more of the outstanding
equity securities of the Company entitled to vote generally in the election of directors or a
substantial portion of the assets of the Company and its Subsidiaries on a consolidated basis, if
and only if, the Board reasonably determines (after consultation with its financial advisor and
outside counsel) (i) that the proposed transaction would be more favorable from a financial point
of view to its stockholders than the Merger and the Transactions taking into account at the time of
determination any changes to the terms of this Agreement that as of that time had been proposed by
JE Holdings, Parent and Purchaser; and (ii) that the person or entity making such Superior Proposal
is capable of consummating such Acquisition Proposal (based upon, among other things, the
availability of financing and the degree of certainty of obtaining financing, the expectation of
obtaining required regulatory approvals and the identity and background of such person).
(b) Except as set forth in this Section 6.4(b), neither the Board nor any committee thereof
shall withdraw or modify, or propose to withdraw or modify, in a manner adverse to JE Holdings,
Parent or Purchaser, the approval or recommendation by the Board or any such committee of this
Agreement, the Merger or the Transactions. Notwithstanding the foregoing, if, prior to receipt of
Stockholder Approval, the Board determines in good faith (i) after having received advice from
outside counsel, that such action is consistent with the fiduciary duties of the Board under
Applicable Law; and (ii) that an Acquisition Proposal constitutes a Superior Proposal, the Board or
a committee thereof, as applicable, may withdraw or modify its approval or recommendation of the
Merger.
(c) The Company shall, and shall direct or cause its directors, officers, employees,
representatives and agents to, immediately cease and cause to be terminated any discussions or
negotiations with any parties that may be ongoing prior to the date hereof with respect to any
Acquisition Proposal.
(d) The Company shall promptly advise JE Holdings orally and in writing of (i) any Acquisition
Proposal or any request for information with respect to any Acquisition Proposal, the material
terms and conditions of such Acquisition Proposal or request and the identity of the person making
such Acquisition Proposal or request; (ii) any material changes in any such Acquisition Proposal or
request; and (iii) any non-public information concerning the operations of the Company or any of
its Subsidiaries that is provided to such person or its representatives, which was not previously
provided to JE Holdings.
(e) The Company agrees, except as consistent with the Board’s fiduciary duties under
Applicable Law, after having received advice from outside legal counsel, not to release any third
party from, or waive any provision of, any confidentiality or standstill agreement to which the
Company is a party, except as may be necessary to submit an Acquisition Proposal hereunder.
31
6.5. Employee Benefits Matters. (a) JE Holdings, Parent and Purchaser agree that following
the Effective Time, the Surviving Corporation and its Subsidiaries and successors shall provide
those persons who, immediately prior to the Effective Time, were employees of the Company or its
Subsidiaries (“Retained Employees”) with employee plans and programs which provide benefits that
are substantially similar in the aggregate than those provided to similarly situated employees of
JE Holdings. Employees of the Company or any Subsidiary shall receive credit for purposes of
accrual of seniority with respect to termination or severance benefits and eligibility to
participate and vesting and benefit accrual (but, except as required by Applicable Law, not for
benefit accruals under any defined benefit pension plan) under any employee benefit plan, program
or arrangement that is established or maintained by the Surviving Corporation or any of its
Subsidiaries and in which such employees are eligible to participate after the Effective Time for
service accrued or deemed accrued prior to the Effective Time with the Company or any Subsidiary;
provided, however, that such crediting of service shall not operate to duplicate
any benefit or the funding of any such benefit. In addition, with respect to any medical, dental,
pharmaceutical and/or vision benefit plan of JE Holdings in which employees of the Company may
participate following the Effective Time (a “New Plan”), JE Holdings shall cause all pre-existing
condition exclusion and actively-at-work requirements to be waived for such employees and their
covered dependents (provided, however, that such waiver shall not apply to any
pre-existing condition that excluded any such employee or dependent prior to the Effective Time
from the corresponding Plan maintained by the Company) and shall provide that any covered expenses
incurred on or before the Effective Time by an employee or an employee’s covered dependents shall
be taken into account for purposes of satisfying applicable deductible, coinsurance and maximum
out-of-pocket provisions under the relevant New Plan after the Effective Time to the same extent as
such expenses are taken into account for the benefit of similarly situated employees of JE Holdings
and its Subsidiaries. Subject to the provisions of this Section 6.5, nothing shall require JE
Holdings to provide the Retained Employees with any particular employee benefit plans, agreements,
or programs or preclude or limit JE Holdings’ ability to modify, amend, or terminate any New Plan
or any of the Company’s Plans as it deems appropriate.
(b) In addition, JE Holdings, Parent and Purchaser shall provide severance arrangements to the
individuals set forth in Schedule 6.5(b) for the time periods and for the amounts contained
therein.
6.6. Directors’ and Officers’ Indemnification and Insurance. (a) The articles of
organization and by-laws of the Surviving Corporation shall contain provisions no less favorable
with respect to indemnification than as are set forth in Article 6D of the Company’s articles of
organization, which provisions shall not be amended, repealed or otherwise modified for a period of
six years from the Effective Time in any manner that would adversely affect the rights thereunder
of individuals who, at or prior to the Effective Time, were directors, officers, employees,
fiduciaries or agents of the Company, unless such modification shall be required by Applicable Law.
(b) JE Holdings shall cause the Surviving Corporation and any successor to the Surviving
Corporation, to the fullest extent permitted under Applicable Law, to indemnify, defend and hold
harmless (including any obligation to advance funds for expenses) from and after the Effective
Time, each present and former director, officer or employee of the Company
32
or any of its Subsidiaries (collectively, the “Indemnified Parties”) against any costs or
expenses (including attorneys’ fees), judgments, fines, losses, claims, damages, liabilities and
amounts paid in settlement in connection with any actual or threatened claim, Action, suit,
proceeding or investigation, whether civil, criminal, administrative or investigative, (i) arising
out of or pertaining to the Transactions; or (ii) otherwise with respect to any acts or omissions
occurring at or prior to the Effective Time, to the same extent as provided in the Company’s
articles of organization or by-laws or any applicable contract or agreement as in effect on the
date hereof, in each case for a period of six years after the date hereof. In the event of any
such claim, Action, suit, proceeding or investigation, the Surviving Corporation shall, to the
extent permitted by Massachusetts law, pay the expenses incurred by the Indemnified Parties from
time to time in advance of the disposition of such claim, Action, suit, proceeding or
investigation, including the reasonable fees of counsel selected by the Indemnified Parties, which
counsel shall be reasonably satisfactory to the Surviving Corporation, promptly after statements
therefor are received; provided, however, that the Surviving Corporation shall not
be liable for any settlement effected without its written consent (which consent shall not be
unreasonably withheld); and provided, further, that the Surviving Corporation shall
not be obligated pursuant to this Section 6.6(b)) to pay the fees and expenses of more than one
counsel for all Indemnified Parties in any single action except to the extent that two or more of
such Indemnified Parties shall have conflicting interests in the outcome of such action; and
provided, further, that, in the event that any claim for indemnification is
asserted or made within such six-year period, all rights to indemnification in respect of such
claim shall continue until the disposition of such claim.
(c) JE Holdings shall cause the Surviving Corporation to use its best efforts to maintain in
effect, for six years from the Effective Time, the current directors’ and officers’ liability
insurance policies maintained by the Company with respect to matters occurring at and prior to the
Effective Time; provided, however, that the Surviving Corporation may substitute
therefor policies of similar coverage containing terms and conditions that are not materially less
favorable to such directors and officers; provided, further, that in no event shall
the Surviving Corporation be required to expend pursuant to this Section 6.6(c) more than an amount
per year equal to 200% of the current annual premiums paid by the Company for such insurance (which
premiums the Company represents and warrants to be $140,000 per annum in the aggregate);
provided, further, that if the Surviving Corporation is unable to obtain the amount
of insurance required by this Section 6.6(c) for such aggregate premiums, the Surviving Corporation
shall obtain as much insurance (up to the amount of insurance required by this Section 6.6(c)) as
is possible for such aggregate premium.
(d) In the event the Company or the Surviving Corporation or any of their respective
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 substantially all of its properties and assets to any person, then, and in each such case,
proper provision shall be made so that the successors and assigns of the Company or the Surviving
Corporation, as the case may be, or at JE Holdings’ option, JE Holdings, shall assume the
obligations set forth in this Section 6.6.
(e) JE Holdings guarantees that if for any reason the Company or the Surviving Corporation, as
the case may be, shall not meet its obligations pursuant to this Section 6.6, it shall meet such
obligations in full when and as such obligations arise.
33
6.7. Notification of Certain Matters. The Company shall give prompt notice to JE Holdings,
and JE Holdings shall give prompt notice to the Company, of (i) the occurrence or non-occurrence of
any event, the occurrence or non-occurrence of which reasonably could be expected to cause any
representation or warranty contained in this Agreement to be untrue or inaccurate in any material
respect from the date hereof until the Effective Time; and (ii) any failure of the Company, JE
Holdings, Parent or Purchaser, as the case may be, to comply with or satisfy any covenant or
agreement to be complied with or satisfied by it hereunder; provided, however, that
the delivery of any notice pursuant to this Section 6.7 shall not limit or otherwise affect the
remedies available hereunder to the party receiving such notice.
6.8. HSR Act Filing. As promptly as possible after the date of this Agreement, if required by
any Applicable Law, each of JE Holdings and Company shall file, or cause to be filed, with the
Federal Trade Commission (the “FTC”) and the Antitrust Division of the United States Department of
Justice (the “Antitrust Division”) a pre-merger notification in accordance with the HSR Act with
respect to the Merger pursuant to this Agreement, and shall file an antitrust notification in any
other jurisdiction if required by any Applicable Law. Each of JE Holdings and Company shall
furnish promptly, or cause to be furnished promptly, to the FTC, the Antitrust Division and any
other requesting Governmental Authority any additional information requested by either of them
pursuant to the HSR Act or any other antitrust notification in connection with such filings. JE
Holdings and Company shall cooperate fully with each other in connection with the making of all
such filings or responses, including providing copies of all such documents to the other party and
its advisors prior to filing or responding. JE Holdings shall pay, or cause to be paid, the
applicable HSR Act filing fee and any other applicable antitrust fees.
6.9. Exon-Xxxxxx Provision. JE Holdings and the Company agree that at any time prior to the
Effective Time, if any action is necessary or desirable to carry out the requirements of the
Exon-Xxxxxx Provision, they shall cause their respective proper officers and directors to use their
commercially reasonable efforts to take all such action.
6.10. Public Announcements. JE Holdings and the Company agree that no public release or
announcement concerning the Transactions or the Merger shall be issued by either party without the
prior consent of the other party (which consent shall not be unreasonably withheld), except as such
release or announcement may be required by Applicable Law or the rules or regulations of any United
States or non-United States securities exchange (including, without limitation, the listing
requirements of the Hong Kong Stock Exchange), in which case the party required to make the release
or announcement shall use its best efforts to allow the other party reasonable time to comment on
such release or announcement in advance of such issuance.
6.11. Consents and Approvals; Commercially Reasonable Efforts.
(a) Prior to the Effective Time, upon the terms and subject to the conditions of this
Agreement, and subject to Section 6.4, except to the extent that, after consultation with outside
legal counsel to the Company, the Company Board determines that to do so would not be in the best
interests of the Company and its stockholders and would be inconsistent with the Company Board’s
fiduciary duties to the Company’s stockholders under Applicable Law, JE Holdings,
34
Parent, Purchaser and the Company agree to use their respective commercially reasonable
efforts to take, or cause to be taken, all reasonable actions, and to do, or cause to be done, all
things reasonably necessary and appropriate, under Applicable Laws to consummate and make effective
the Transactions as promptly as practicable including, but not limited to (i) the preparation and
filing of all forms, registrations and notices required to be filed to consummate the Transactions
and the taking of such actions as are reasonably necessary to obtain any requisite approvals,
consents, orders, exemptions or waivers by any third party or Governmental Authority; (ii) the
defending of any lawsuits or other legal proceedings, whether judicial or administrative,
challenging this Agreement or the consummation of the Transactions, including when reasonable,
seeking to have any stay or temporary restraining order entered by any court or other Governmental
Authority vacated or reversed; and (iii) the satisfaction of the other parties’ conditions to
closing. In addition, except as otherwise contemplated in Section 6.4 or as required by Applicable
Law, no party hereto shall take any action after the date hereof that would reasonably be expected
to materially delay the obtaining of, or result in not obtaining, any permission, approval or
consent from any Governmental Authority necessary to be obtained prior to Closing.
(b) Prior to the Effective Time, each party shall promptly consult with the other parties
hereto with respect to, provide any necessary information with respect to, and provide the other
party (or its counsel) copies of, all filings made by such party with any Governmental Authority or
any other information supplied by such party to a Governmental Authority in connection with this
Agreement and the Transactions. Each party hereto shall promptly inform the other of any
communication from any Governmental Authority regarding any of the Transactions unless otherwise
prohibited by Applicable Law. If any party hereto or Affiliate thereof receives a request for
additional information or documentary material from any such Government Authority with respect to
the Transactions, then such party shall endeavor in good faith to make, or cause to be made, as
soon as reasonably practicable and after consultation with the other party, an appropriate response
in compliance with such request. To the extent that transfers, amendments or modifications of
Permits (including environmental Permits) are required as a result of the execution of this
Agreement or consummation of the Transactions, the Company shall use its commercially reasonable
efforts to effect such transfers.
(c) In case at any time after the Effective Time any further action is necessary or desirable
to carry out the purposes of this Agreement, the proper officers and directors of the Company, JE
Holdings, Parent and Purchaser shall use their commercially reasonable efforts to take, or cause to
be taken, all such necessary actions, except to the extent that, after consultation with outside
legal counsel to the Company, the Company Board determines that to do so would not be in the best
interests of the Company and its stockholders and would be inconsistent with the Company Board’s
fiduciary duties to the Company’s stockholders under Applicable Law.
(d) For purposes of this Section 6.11, “commercially reasonable efforts” of JE Holdings,
Parent and Purchaser shall not require JE Holdings, Parent and Purchaser to agree to any
prohibition, limitation, or other requirement which would prohibit or materially limit the
ownership or operation by the Company or any of the Company Subsidiaries, or by JE Holdings,
Parent, Purchaser or any of their Subsidiaries, of all or any portion of the business or assets of
the Company or any of the Company Subsidiaries or JE Holdings, Parent or Purchaser or any of their
Subsidiaries, or compel JE Holdings, Parent or Purchaser or any of their Subsidiaries to
35
dispose of or hold separate all or any portion of the business or assets of the Company or any
of the Company Subsidiaries or JE Holdings, Parent or Purchaser Subsidiaries or any of their
Subsidiaries. The Company shall not agree to any such prohibition, limitation, or other
requirement without the prior written consent of JE Holdings, Parent or Purchaser.
6.12. State Takeover Laws. If any state takeover statute, or any other state law that
purports to limit or restrict business combinations or the ability to acquire or vote shares,
becomes or is deemed to become applicable to the Company or the Merger, then the Company Board
shall take all action necessary to render such statute or law inapplicable to the foregoing, except
to the extent that, after consultation with outside legal counsel to the Company, the Company Board
determines that to do so would not be in the best interests of the Company and its stockholders and
would be inconsistent with the Company Board’s fiduciary duties to the Company’s stockholders under
Applicable Law.
6.13. Infineon Joint Venture. The Company shall timely advise JE Holdings orally and in
writing of any material developments with respect to the Company’s joint venture or supply
agreement with Infineon.
6.14. Company Warrants. Prior to the Effective Time, the Company shall use its reasonable
best efforts to negotiate settlements with the individual warrant holders, on terms specified or
approved by JE Holdings or Parent, pursuant to which each warrant to purchase Shares that is
outstanding as of the date hereof, as set forth in Section 6.14 of the Disclosure Schedule
(collectively, the “Warrants”, and the agreements with the Warrant holders governing such Warrants,
the “Warrant Agreements”), will be cancelled immediately prior to the Effective Time. For the
purposes of this Section 6.14, “reasonable best efforts” of the Company shall not require the
Company to agree to (i) make any payments or waive any rights in respect of the Warrants or Warrant
Agreements or (ii) amend the Warrants or Warrant Agreements, in each case, unless the Merger is
consummated.
6.15. Remediation Activities. The Company shall continue with the remediation activities at
its Methuen site as described in the Remedial Activity Measure reports submitted to the
Massachusetts Department of Environmental Protection (the “Remediation Activities”) and shall use
its commercially reasonable efforts to take, or cause to be taken, all actions, to complete as much
of the Remediation Activities as reasonably practicable before the Effective Time. The Company
shall timely advise Parent orally and in writing of any material developments with respect to the
Remediation Activities that would result in any material change in the scope of the Remediation
Activities or the Company’s related liability.
Article VII.
Conditions to the Merger
7.1. Conditions to the Merger. The respective obligations of each party to effect the Merger
shall be subject to the satisfaction or waiver, at or prior to the Effective Time, of the following
conditions:
36
(a) This Agreement and the Transactions shall have been approved and adopted by Stockholder
Approval to the extent required by the MBCA and the articles of organization of the Company;
(b) Any waiting period (and any extension thereof) applicable to the consummation of the
Merger under the HSR Act and the Exon-Xxxxxx Provision and in the countries listed in Section
3.7(b) of the Disclosure Schedule where a merger filing was necessary shall have expired or been
terminated;
(c) No Governmental Authority shall have enacted, issued, promulgated, enforced or entered any
Applicable Law (whether temporary, preliminary or permanent) which is then in effect and has the
effect of making the Merger illegal or otherwise preventing or prohibiting consummation of the
Merger (including without limitation any preliminary or permanent injunction which would prevent
the consummation of the Merger).
7.2. Conditions to Obligations of JE Holdings, Parent and Purchaser. The obligations of JE
Holdings, Parent and Purchaser to effect the Merger are also subject to the satisfaction or waiver
by JE Holdings at or prior to the Effective Time of the following conditions:
(a) The representations and warranties of the Company as set forth in this Agreement shall be
true and correct both when made and at and as of the Effective Time, as if made at and as of such
time (except to the extent expressly made as of an earlier date, in which case as of such date),
except where the failure of such representations and warranties to be so true and correct (without
giving effect to any limitation as to “materiality” or “Material Adverse Effect” set forth therein)
does not have, and would not reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect;
(b) The Company shall have performed in all material respects all obligations required to be
performed by it under this Agreement at or prior to the Effective Time;
(c) Since the date of this Agreement, there shall not have occurred any change, event,
circumstance or development that has had, or is reasonably likely to have, a Material Adverse
Effect; and
(d) JE Holdings shall have received a certificate of an executive officer of the Company,
certifying that the conditions set forth in Sections 7.2(a),
7.2(b) and 7.2(c) have been satisfied.
7.3. Conditions to Obligations of the Company. The obligations of the Company to effect the
Merger are also subject to the satisfaction or waiver by the Company at or prior to the Effective
Time of the following conditions:
(a) The representations and warranties of JE Holdings, Parent and Purchaser as set forth in
this Agreement shall be true and correct in all material respects both when made and at and as of
the Effective Time, as if made at and as of such time (except to the extent expressly made as of an
earlier date, in which case as of such date);
37
(b) JE Holdings, Parent and Purchaser shall have performed in all material respects all
obligations required to be performed by them under this Agreement at or prior to the Effective
Time; and
(c) The Company shall have received a certificate of an executive officer of JE Holdings,
certifying that the conditions set forth in Sections 7.3(a) and 7.3(b) have been satisfied.
Article VIII.
Termination, Amendment and Waiver
8.1. Termination. This Agreement may be terminated and the Merger and the other Transactions
may be abandoned at any time prior to the Effective Time, notwithstanding any Stockholder Approval:
(a) By mutual written consent of each of JE Holdings, Parent, Purchaser and the Company duly
authorized by the JE Boards and the Board; or
(b) By JE Holdings, Parent, Purchaser or the Company if (i) the Effective Time shall not have
occurred on or before January 15, 2005 (the “Termination Date”); provided, however,
that the right to terminate this Agreement under this Section 8.1(b) shall not be available to any
party whose failure to fulfill any obligation under this Agreement has been the cause of, or
resulted in, the failure of the Effective Time to occur on or before such date or (ii) any
Governmental Authority shall have enacted, issued, promulgated, enforced or entered any injunction,
order, decree or ruling (whether temporary, preliminary or permanent) which has become final and
nonappealable and has the effect of making consummation of the Merger illegal or otherwise
preventing or prohibiting consummation of the Merger; or
(c) By the Company (i) if there shall have been a breach of any representation, warranty,
covenant or agreement on the part of JE Holdings, Parent or Purchaser contained in this Agreement,
such that (x) the conditions set forth in Section 7.3(a) or 7.3(b) would not be capable of being
satisfied and (y) such breach is not capable of being cured or, if reasonably capable of being
cured, shall not have been cured prior to the earlier of (I) ten (10) Business Days following
notice of such breach and (II) the Termination Date; provided that the Company shall not
have the right to terminate this Agreement pursuant to this Section 8.1(c) if the Company is then
in material breach of any of its representations, warranties, covenants or agreements contained in
this Agreement; or (ii) prior to the Stockholder Approval of this Agreement provided that the
Company has complied with the terms and conditions of Section 6.4(b); or
(d) By JE Holdings (i) if there shall have been a breach of any representation, warranty,
covenant or agreement on the part of the Company contained in this Agreement, such that (x) the
conditions set forth in Sections 7.2(a), 7.2(b) and 7.2(c) would not be capable of being satisfied
and (y) such breach is not capable of being cured or, if reasonably capable of being cured, shall
not have been cured prior to the earlier of (I) ten (10) Business Days following notice of such
breach and (II) the Termination Date; provided that JE Holdings shall not have the right to
terminate this Agreement pursuant to this Section 8.1(d) if JE Holdings, Parent or
38
Purchaser is then in material breach of any of its representations, warranties, covenants or
agreements contained in this Agreement; or (ii) if the Board of Directors (x) shall have withdrawn,
modified or changed in a manner adverse to JE Holdings, Parent or Purchaser its approval or
recommendation of the Transactions, or shall have resolved to effect any of the foregoing, or (y)
shall have recommended to the stockholders of the Company an Acquisition Proposal other than the
Transactions, or shall have resolved to effect any of the foregoing; or
(e) By any party if, upon a vote thereon at the Stockholders’ Meeting or any postponement or
adjournment thereof, this Agreement shall not gain Stockholder Approval.
8.2. Effect of Termination. (a) In the event of the termination of this Agreement pursuant
to Section 8.1, this Agreement shall forthwith become void and there shall be no liability or
obligation on the part of any party hereto, except with respect to Section 6.10, this Section 8.2,
and Article IX, which shall survive such termination.
(b) In the event that this Agreement is terminated by the Company pursuant to Section
8.1(c)(ii) or by JE Holdings pursuant to Section 8.1(d)(ii), then the Company shall pay two million
dollars ($2,000,000) (such amount, the “Termination Fee”) to JE Holdings, at or prior to the time
of termination in the case of a termination pursuant to Section 8.1(c)(ii) or as promptly as
practicable (but in any event within two (2) Business Days) in the case of a termination pursuant
to Section 8.1(d)(ii), payable by wire transfer of same day funds.
(c) In the event that (i) this Agreement is terminated by JE Holdings pursuant to Section
8.1(d)(i), and (ii) at any time after the date of this Agreement and prior to the event giving rise
to JE Holdings’ right to terminate this Agreement under Section 8.1(d)(i), an Acquisition Proposal
shall have been made known to the Company, and (iii) within 12 months after such termination, the
Company or any of the Company’s Subsidiaries enters into an agreement in respect of such
Acquisition Proposal or a transaction pursuant to which such Acquisition Proposal is consummated,
then the Company shall pay the Termination Fee to JE Holdings by wire transfer of same day funds on
the date of the agreement in respect of the Acquisition Proposal or, if earlier, on the date of the
consummation of the transaction in respect of the Acquisition Proposal, as may be applicable
(provided that, for the purposes of this Section 8.2(c), the term “Acquisition Proposal”
shall have the meaning assigned to such term in Annex A, except that the references to “30% or
more” shall be deemed to be references to “50% or more of the Company and its Subsidiaries on a
consolidated basis”).
(d) In the event that (i) this Agreement is terminated by the Company, JE Holdings, Parent or
Purchaser pursuant to Section 8.1(e), then the Company shall pay to JE Holdings an amount in cash
equal to the JE Expense Reimbursement Amount, payable by wire transfer of same day funds
concurrently with or prior to such termination if terminated by the Company and on the Business Day
following such termination if terminated by JE Holdings, Parent or Purchaser; and (ii) (I) this
Agreement is terminated by the Company, JE Holdings, Parent or Purchaser pursuant to Section
8.1(e), (II) at any time after the date of this Agreement and prior to the Stockholders’ Meeting an
Acquisition Proposal shall have been publicly disclosed, and (III) within 12 months after such
termination, the Company or any of the Company’s Subsidiaries enters into an agreement in respect
of such Acquisition Proposal or a transaction pursuant to which such Acquisition Proposal is
consummated, then the Company shall pay to JE Holdings an
39
amount equal to the Termination Fee minus the JE Expense Reimbursement Amount (to the extent
such amount has previously been paid to JE Holdings) by wire transfer of same day funds on the date
of the agreement in respect of the Acquisition Proposal or, if earlier, on the date of the
consummation of the transaction in respect of the Acquisition Proposal, as may be applicable
(provided that, for the purposes of this Section 8.2(c), the term “Acquisition Proposal”
shall have the meaning assigned to such term in Annex A, except that the references to “50% or more
of the Company and its Subsidiaries on a consolidated basis”).
(e) The Company acknowledges that the agreements contained in this Section 8.2 are an integral
part of the Transactions, and that, without these agreements, JE Holdings, Parent and Purchaser
would not enter into this Agreement; accordingly, if the Company fails to timely pay any amount
required to be paid by it pursuant to this Section 8.2, and, in order to obtain the payment, JE
Holdings, Parent or Purchaser commences a suit which results in a judgment against the Company for
the payment set forth in this Section 8.2, the Company shall pay to JE Holdings, Parent or
Purchaser its reasonable costs and expenses (including reasonable attorneys’ fees) in connection
with this suit, together with interest on the amount due from each date for payment until the date
of the payment at the prime rate of Citibank, N.A. then in effect on the date the payment was
required to be made plus one percent (1%). Notwithstanding anything to the contrary in this
Agreement, JE Holdings’ right to receive payment of the Termination Fee pursuant to this Section
8.2 shall be the exclusive remedy of JE Holdings, Parent and Purchaser against the Company for any
liability resulting from this Agreement, and upon payment of the Termination Fee in accordance with
this Section 8.2, neither the Company nor any of its respective stockholders, directors, officers
or agents, as the case may be, shall have any further liability or obligation relating to or
arising out of this Agreement or the Transactions.
Article IX.
General Provisions
9.1. Expenses. Except as set forth in Section 8.2, all costs and expenses incurred in
connection with this Agreement and the Transactions shall be paid by the party incurring such
expenses, whether or not any Transaction is consummated.
9.2. Amendment. This Agreement may be amended by the parties hereto by action taken by or on
behalf of their respective Boards of Directors at any time prior to the Effective Time;
provided, however, that, after the approval and adoption of this Agreement and the
Transactions by Stockholder Approval, no amendment may be made that would reduce the amount or
change the type of consideration into which each Share, Preferred Share or Company Stock Option
shall be converted upon consummation of the Merger or otherwise adversely affect the rights of the
Company’s equityholders. This Agreement may not be amended except by an instrument in writing
signed by each of the parties hereto.
9.3. Non-Survival of Representations and Warranties. None of the representations and
warranties in this Agreement or in any schedule, instrument or other document delivered pursuant to
this Agreement shall survive the Effective Time. The covenants and agreements contained herein
shall survive in accordance with their respective terms.
40
9.4. Waiver. At any time prior to the Effective Time, any party hereto may (i) extend the
time for the performance of any obligation or other act of any other party hereto; (ii) waive any
inaccuracy in the representations and warranties of any other party contained herein or in any
document delivered pursuant hereto; and (iii) waive compliance with any agreement of any other
party or any condition to its own obligations contained herein. Any such extension or waiver shall
be valid if set forth in an instrument in writing signed by the party or parties to be bound
thereby.
9.5. Notices. All notices, requests, claims, demands and other communications hereunder shall
be in writing and shall be given (and shall be deemed to have been duly given upon receipt) by
delivery in person, by facsimile (with receipt confirmed by telephone or automatic transmission
report) or by registered or certified mail (postage prepaid, return receipt requested) to the
respective parties at the following addresses (or at such other address for a party as shall be
specified in a notice given in accordance with this Section 9.5):
(a) | If to JE Holdings, Parent or Purchaser, addressed to it at: | ||
c/o Johnson Electric Capital Limited Xxxxxxx Building, 6-22 Dai Shun Street Tai Po Industrial Estate, New Territories Hong Kong Attention: Xxxxxxxxxxx Xxxxxx Fax: 000-0000-0000 |
|||
With a copy to: | |||
Xxxxxxxx & Xxxxxxxx LLP 0000 Xxxxxx xx xxx Xxxxxxxx Xxx Xxxx, XX 00000 Attention: Xxxx X. Xxxxxxx, Esq. Fax: 000-000-0000 |
|||
Xxxxxxxx & Xxxxxxxx LLP Suite 3803 Bund Center Xx. 000 Xxx Xx Xxxx Xxxx Xxxxxxxx 000000, Xxxxxx’s Republic of China Attention: Xxxxxxx X. Xxxxx, Esq. Fax: (000-00) 00 0000 0000 |
|||
(b) | If to the Company prior to the Effective Time, addressed to it at: | ||
Parlex Corporation Xxx Xxxxxx Xxxxx Xxxxxxx, XX 00000 Attention: Xxxxx X. Xxxxxx Fax: 000-000-0000 |
41
with a copy to:
Ropes & Xxxx, LLP
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx, Esq.
Fax: 000-000-0000
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx, Esq.
Fax: 000-000-0000
9.6. Severability. If any term or other provision of this Agreement is invalid, illegal or
incapable of being enforced by any rule of law, or public policy, all other conditions and
provisions of this Agreement shall nevertheless remain in full force and effect so long as the
economic or legal substance of the Transactions is not affected in any manner materially adverse to
any party. Upon such determination that any term or other provision is invalid, illegal or
incapable of being enforced, the parties hereto shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the parties as closely as possible in a mutually
acceptable manner in order that the Transactions be consummated as originally contemplated to the
fullest extent possible.
9.7. Entire Agreement; Assignment. This Agreement and the other documents referred to herein
constitute the entire agreement among the parties with respect to the subject matter hereof and
supersede all prior agreements and undertakings, both written and oral, among the parties, or any
of them, with respect to the subject matter hereof. This Agreement shall not be assigned (whether
pursuant to a merger, by operation of law or otherwise), except that Parent and Purchaser may
assign all or any of their rights and obligations hereunder to any Affiliate of Parent,
provided that no such assignment shall relieve the assigning party of its obligations
hereunder if such assignee does not perform such obligations.
9.8. Parties in Interest. This Agreement shall be binding upon and inure solely to the
benefit of each party hereto, and nothing in this Agreement, express or implied, is intended to or
shall confer upon any other person any right, benefit or remedy of any nature whatsoever under or
by reason of this Agreement, other than Section 6.6 (which is intended to be for the benefit of the
persons covered thereby and may be enforced by such persons).
9.9. Specific Performance. The parties hereto agree that irreparable damage would occur in
the event any provision of this Agreement were not performed in accordance with the terms hereof
and that the parties shall be entitled to specific performance of the terms hereof, in addition to
any other remedy at law or equity.
9.10. Governing Law. This Agreement shall be governed by, and construed in accordance with,
the laws of The Commonwealth of Massachusetts applicable to contracts executed in and to be
performed in that Commonwealth. All actions and proceedings arising out of or relating to this
Agreement shall be heard and determined in any Massachusetts state or United States District Court
sitting in the City of Boston. The parties hereto hereby (i) submit to the exclusive jurisdiction
of any Massachusetts state or United States District Court sitting in the City of Boston for the
purpose of any Action arising out of or relating to this Agreement brought by any party hereto; and
(ii) irrevocably waive, and agree not to assert by way of motion, defense, or otherwise, in any
such Action, any claim that it is not subject personally to the
42
jurisdiction of the above-named courts, that its property is exempt or immune from attachment
or execution, that the Action is brought in an inconvenient forum, that the venue of the Action is
improper, or that this Agreement or the Transactions may not be enforced in or by any of the
above-named courts.
9.11. Waiver of Jury Trial. Each of the parties hereto hereby waives to the fullest extent
permitted by Applicable Law any right it may have to a trial by jury with respect to any litigation
directly or indirectly arising out of, under or in connection with this Agreement or the
Transactions. Each of the parties hereto (i) certifies that no representative, agent or attorney
of any other party has represented, expressly or otherwise, that such other party would not, in the
event of litigation, seek to enforce that foregoing waiver; and (ii) acknowledges that it and the
other parties hereto have been induced to enter into this Agreement and the Transactions, as
applicable, by, among other things, the mutual waivers and certifications in this Section 9.11.
9.12. Headings. The descriptive headings contained in this Agreement are included for
convenience of reference only and shall not affect in any way the meaning or interpretation of this
Agreement.
9.13. Counterparts. This Agreement may be executed and delivered (including by facsimile
transmission) in one or more counterparts, and by the different parties hereto in separate
counterparts, each of which when executed shall be deemed to be an original but all of which taken
together shall constitute one and the same agreement.
[The remainder of this page has been left blank intentionally.]
43
IN WITNESS WHEREOF, JE Holdings, Parent, Purchaser and the Company have caused this Agreement
to be executed as of the date first written above by their respective officers thereunto duly
authorized.
XXXXXXX ELECTRIC HOLDINGS LIMITED | ||||
By | /s/ Xxxxxxxxxxx Xxxxxx | |||
Name: Xxxxxxxxxxx Xxxxxx Title: Authorized Signatory |
||||
J.E.C. ELECTRONICS SUB ONE, INC. | ||||
By | /s/ Xxxxxxxxxxx Xxxxxx | |||
Name: Xxxxxxxxxxx Xxxxxx Title: Chief Executive Officer |
||||
J.E.C. ELECTRONICS SUB TWO, INC. | ||||
By | /s/ Xxxxxxxxxxx Xxxxxx | |||
Name: Xxxxxxxxxxx Xxxxxx Title: Chief Executive Officer |
PARLEX CORPORATION | ||||
By | /s/ Xxxxx X. Xxxxxx | |||
Name: Xxxxx X. Xxxxxx Title: Chief Executive Officer |
A. Definitions |
For purposes of this Agreement:
“Acquisition Proposal” means (a) any bona fide written proposal or offer from any
person relating to any direct or indirect acquisition of (i) all or a substantial part of the
assets of the Company and its Subsidiaries taken on a consolidated basis, or (ii) over 30% of any
class of equity securities of the Company (including the issuance of any convertible stock and debt
and considered on an as-converted basis) entitled to vote in the election of directors; (b) any
tender offer or exchange offer, as defined pursuant to the Exchange Act, that, if consummated,
would result in any person beneficially owning 30% or more of any class of equity securities of the
Company; or (c) any merger, consolidation, business combination, sale of all or a substantial part
of the assets, recapitalization, liquidation, dissolution or similar transaction involving the
Company, in each case, other than the Transactions; provided, however, that for
purposes of Section 8.2 hereof each reference herein to “30%” shall be changed to “50% or more of
the Company and its Subsidiaries on a consolidated basis”; provided, further,
however, that offers for the sale of the Multilayer Division and the Laminated Cable
Division will not be considered an Acquisition Proposal. An Acquisition Proposal includes a
Superior Proposal.
“Affiliate” shall have the meaning set forth in Rule 12b-2 of the Exchange Act.
“Applicable Law” means all provisions applying to a person or its property of (a)
constitutions, treaties, statutes, laws (including the common law), rules, regulations, ordinances
or orders of a Governmental Authority (including the SEC) having jurisdiction over the person; (b)
governmental approvals, orders, decisions, injunctions, judgments, awards and decrees of or
agreements with a Governmental Authority having jurisdiction over the person; (iii) GAAP; (v) the
Securities Act; (c) the Exchange Act; (d) ERISA; (e) the Code; and (f) applicable Blue Sky Laws.
“beneficial owner” shall be determined in accordance with Rule 13d-3 and Rule 13d-5
under the Exchange Act.
“Business Day” means any day on which banks are not required or authorized to close in
the City of New York or Hong Kong.
“control” (including the terms “controlled by” and “under common control
with”) means the possession, directly or indirectly, or as trustee or executor, of the power to
direct or cause the direction of the management and policies of a person, whether through the
ownership of voting securities, as trustee or executor, by contract or credit arrangement or
otherwise.
“Environmental Laws” means any United States federal, state, local or non-United
States laws relating to (a) releases or threatened releases of Hazardous Substances or materials
containing Hazardous Substances; (b) the manufacture, handling, transport, use, treatment, storage
or disposal of Hazardous Substances or materials containing Hazardous Substances; or (c) pollution
or protection of the indoor or outdoor environment, health or natural resources.
“ERISA Affiliate” means any trade or business (whether or not incorporated) under
common control with the Company or any Subsidiary and which, together with the Company or
A-1
any Subsidiary, is treated as a single employer within the meaning of Section 414(b), (c), (m)
or (o) of the Code.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules
and regulations thereunder.
“Governmental Authority” means any: (a) nation, principality, state, commonwealth,
province, territory, county, municipality, district or other jurisdiction of any nature; (b)
federal, state, local, municipal, foreign or other government; (c) governmental or
quasi-governmental authority of any nature (including any governmental division, subdivision,
department, agency, bureau, branch, office, commission, council, board, instrumentality, officer,
official, representative, organization, unit, body or entity and any court or other tribunal); (d)
multinational organization or body; or (e) individual, entity or body exercising, or entitled to
exercise, any executive, legislative, judicial, administrative, regulatory, police, military or
taxing authority or power of any nature.
“Hazardous Substances” means (a) those substances defined in or regulated as hazardous
or toxic substances, materials or wastes under the following United States federal statutes and
their state counterparts, as each may be amended from time to time, and all regulations thereunder:
the Hazardous Materials Transportation Act, the Resource Conservation and Recovery Act, the
Comprehensive Environmental Response, Compensation and Liability Act, as amended, the Clean Water
Act, the Safe Drinking Water Act, the Atomic Energy Act, the Federal Insecticide, Fungicide, and
Rodenticide Act and the Clean Air Act; (b) petroleum and petroleum products, including crude oil
and any fractions thereof; (c) natural gas, synthetic gas, and any mixtures thereof; (d)
polychlorinated biphenyls, asbestos and radon; and (e) any substance, material or waste regulated
as a hazardous or toxic substance, material or waste by any Governmental Authority pursuant to any
Environmental Law.
“Intellectual Property” means any and all (by whatever name or term known or
designated) tangible and intangible, now known or hereafter existing, world-wide (including,
without limitation, United States, non-United States and international) (a) rights associated with
works of authorship, including but not limited to copyrightable works, copyrights, moral rights and
mask works; (b) trademark, service xxxx, trade dress, logo, trade name and corporate name rights
and other source identifiers; (c) internet domain names, addresses and uniform resource locators
and all associated e-mail addresses; (d) trade secret rights, including know-how and confidential
and proprietary information; (e) patents, patentable inventions, designs algorithms and other
industrial property rights, including, without limitation, utility patents, design patents, plant
patents, statutory invention registrations and defensive publications; (f) all other intellectual
and industrial property rights (of every kind and nature, including, without limitation, “rental”
rights and rights to remuneration), whether arising by operation of law, contract, license or
otherwise; and (g) all registrations, initial applications, renewals, extensions, continuations,
divisions or reissues thereof now or hereafter, made, existing, or in force.
“JE Expense Reimbursement Amount” means an amount, not to exceed four hundred
thousand dollars ($400,000), equal to the documented and out-of-pocket fees and expenses of JE
Holdings and its Affiliates incurred in connection with the preparation and execution of this
A-2
Agreement and the Transactions contemplated hereby, including, without limitation, fees and
expenses of legal, Tax and financial advisors.
“knowledge” “to the knowledge of,” or any similar phrase shall mean, with respect to
the Company, to the conscious awareness after reasonable inquiry of Xxxxx X. Xxxxxx, Xxxxxxxx X.
Xxxxxxx, Xxxx Xxxx and Xxxxxxx Xxxx.
“Laminated Cable Division” means a division of the Company, which manufactures flat or
round wire laminated to a flexible substrate material, providing connections between electronic
sub-systems.
“Liquidation Value” with respect to each Preferred Share, shall mean an amount equal
to $80.00 per share (subject to equitable adjustment for any stock splits, stock dividends,
combinations, reorganizations, reclassifications, recapitalizations or other similar events
affecting the Preferred Shares after the date of issuance of such Preferred Shares and prior to the
Effective Time), plus an amount equal to all accrued and unpaid dividends on such Preferred Share
as of the Effective Time.
“Material Adverse Effect” means any event, circumstance, change or effect that is
materially adverse to the business, condition (financial or otherwise) or results of operations of
the Company and the Subsidiaries, taken as a whole; provided, however, that a
Material Adverse Effect shall not include events, circumstances, changes and effects (a) that are
generally applicable to (i) the business segments in which the Company conducts its business or
(ii) either the United States economy or global economy as a whole; provided that the
Company and its Subsidiaries are not disproportionately affected thereby; (b) to the extent that
they are caused by any change in applicable accounting requirements or principles, or applicable
laws, rules or regulations, which occurs or becomes effective after the date hereof; or (c) to the
extent attributable to the announcement of pending Transactions or compliance with the terms of
this Agreement that impacts the Company or any of its Subsidiaries.
“Multilayer Division” means a subdivision of the Company’s flexible circuits business
division, which manufactures multiple layers of circuitry that are stacked and then laminated.
“Nondisclosure Agreement” means that letter agreement governing the provision and
treatment of Evaluation Material (as defined therein), dated as of March 7, 2005, between Xxxxxxx
Electric Capital Limited and the Company.
“person” means an individual, corporation, partnership, limited partnership, limited
liability company, syndicate, person (including, without limitation, a “person” as defined in
Section 13(d)(3) of the Exchange Act), trust, association or entity or government, political
subdivision, agency or instrumentality of a government.
“PIC” means Parlex International Corporation, a United States Virgin Islands
corporation.
“Preferred Shares” mean all issued and outstanding shares of the Company’s Series A
Convertible Preferred Stock, par value $1.00 per share.
A-3
“Securities Act” means the Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder.
“Subsidiary” or “Subsidiaries” of the Company, the Surviving Corporation,
Parent, JE Holdings or any other person means an Affiliate controlled by such person, directly or
indirectly, through one or more intermediaries.
“Tax” or “Taxes” means (a) all federal, state, local, foreign and other net
income, gross income, gross receipts, value-added, sales, use, ad valorem, transfer, franchise,
profits, license, lease, service, service use, withholding, payroll, employment, excise, severance,
stamp, occupation, premium, property, windfall profits, customs, duties, alternative minimum taxes
or other taxes, fees, assessments or charges in the nature of taxes, together with any interest,
any penalties or additions to tax with respect thereto, and including any fees or penalties imposed
on a person in respect of any information Tax Return made to a Governmental Authority; (b) any
liability amounts described in clause (a), whether as a result of transferee liability, being a
member of an affiliated, consolidated, combined or unitary group for any period, or otherwise
through operation of law that is imposed by reason of Treas. reg. 1.1502-6, or similar provision of
law; and (c) any liability for the payment of amounts described in clause (a) or (b) as a result of
any tax sharing, tax indemnity or tax allocation agreement or any other express or implied
agreement to indemnify any other person.
“Tax Returns” means all returns and reports (including elections, declarations,
disclosures, schedules, estimates and information returns) required to be supplied to a Government
Authority (or any agent thereof) relating to Taxes.
A-4
In addition to the foregoing definitions, the following terms shall have the definitions specified
on the pages of the Agreement listed below:
2004 Balance Sheet |
12 | |||
Acquisition Proposal |
A-1 | |||
Action |
13 | |||
affiliate |
A-1 | |||
Agreement |
1 | |||
Antitrust Division |
34 | |||
Applicable Law |
A-1 | |||
Articles of Merger |
2 | |||
beneficial owner |
A-1 | |||
Blue Sky Laws |
9 | |||
Board |
8 | |||
business day |
A-1 | |||
Certificates |
5 | |||
Code |
3 | |||
Common Share Merger Consideration |
3 | |||
Company |
1 | |||
Company Common Stock |
1 | |||
Company Owned Intellectual Property |
18 | |||
Company Required Approvals |
9 | |||
Company Stock Option |
4 | |||
Company Stock Option Plans |
4 | |||
Company’s Financial Advisor |
23 | |||
Confidential Information |
30 | |||
control |
A-1 | |||
Convertible Notes |
7 | |||
Disclosure Schedule |
6 | |||
Dissenting Shares |
4 | |||
Effective Time |
2 | |||
Environmental Laws |
A-1 | |||
Environmental Permits |
22 | |||
ERISA |
13 | |||
ERISA Affiliate |
A-1 | |||
Exchange Act |
A-2 | |||
Exon-Xxxxxx Provision |
9 | |||
Financial Statements |
11 | |||
FTC |
34 | |||
GAAP |
11 | |||
Governmental Authority |
A-2 | |||
Hazardous Substances |
A-2 | |||
HSR Act |
9 | |||
Indemnified Parties |
33 | |||
Infineon |
28 | |||
Insurance Policies |
23 | |||
Intellectual Property |
A-2 | |||
IP Contracts |
18 | |||
IRS |
13 | |||
JE Board |
00 | |||
XX Xxxxxxx
Xxxxxxxxxxxxx Xxxxxx |
X-0 | |||
XX Holdings |
1 | |||
knowledge |
A-2 | |||
Laminated Cable Division |
A-3 | |||
Leases |
17 | |||
Liquidation Value |
A-3 | |||
Material Adverse Effect |
A-3 | |||
Material Contracts |
22 | |||
MBCA |
1 | |||
MCRL |
8 | |||
Merger |
1 | |||
Merger Consideration |
3 | |||
Multiemployer Plan |
13 | |||
Multilayer Division |
A-3 | |||
Multiple Employer Plan |
13 | |||
New Plan |
32 | |||
Nondisclosure Agreement |
A-3 | |||
Option Consideration |
4 | |||
Parent |
1 | |||
Paying Agent |
5 | |||
Permits |
9 | |||
person |
A-4 | |||
PIC |
A-4 | |||
Plans |
13 | |||
Preferred Share Merger Consideration |
3 | |||
Preferred Shares |
A-4 | |||
Proxy Statement |
29 | |||
Purchaser |
1 | |||
Registered Intellectual Property |
19 | |||
Retained Employees |
32 | |||
SEC |
10 | |||
SEC Reports |
10 | |||
Securities Act |
A-4 | |||
Shares |
1 | |||
SOX |
10 | |||
Stockholder Approval |
8 | |||
Stockholders’ Meeting |
30 | |||
Subsidiary |
A-4 | |||
Superior Proposal |
31 | |||
Surviving Corporation |
1 | |||
Tax or Taxes |
X-0 |
X-0
Xxx Xxxxxxx |
X-0 | |||
Xxxxxxxxxxx Date |
00 | |||
Xxxxxxxxxxx Xxx |
00 | |||
Xxxxxxxxxxxx |
0 | |||
Xxxxxx Xxxxxx Person |
21 | |||
Warrant Agreements |
36 | |||
Warrants |
36 |
A-6