Exhibit 2.1
AGREEMENT
AND PLAN OF MERGER
by and
among
72 MOBILE
HOLDINGS, LLC,
72 MOBILE
ACQUISITION CORP.
and
AIRVANA,
INC.
Dated as
of December 17, 2009
TABLE OF
CONTENTS
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ARTICLE I THE MERGER
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1
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1.1
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Effective Time of the Merger
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1
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1.2
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Closing
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1
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1.3
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Effects of the Merger
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1
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1.4
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Directors and Officers of the Surviving Corporation
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2
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ARTICLE II CONVERSION OF SECURITIES
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2
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2.1
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Conversion of Capital Stock
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2
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2.2
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Exchange of Certificates
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2
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2.3
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Company Stock Plans
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4
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2.4
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Dissenting Shares
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4
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ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE COMPANY
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5
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3.1
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Organization, Standing and Power
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5
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3.2
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Capitalization
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6
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3.3
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Subsidiaries
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7
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3.4
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Authority; No Conflict; Required Filings and Consents
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8
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3.5
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SEC Filings; Financial Statements; Information Provided
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10
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3.6
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No Undisclosed Liabilities
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11
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3.7
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Absence of Certain Changes or Events
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11
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3.8
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Taxes
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11
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3.9
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Owned and Leased Real Properties
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12
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3.10
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Intellectual Property
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13
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3.11
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Contracts
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14
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3.12
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Litigation
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15
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3.13
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Environmental Matters
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15
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3.14
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Employee Benefit Plans
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16
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3.15
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Compliance With Laws
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17
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3.16
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Permits
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17
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3.17
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Labor Matters
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17
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3.18
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Insurance
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17
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3.19
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Opinion of Financial Advisor
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17
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3.20
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Section 203 of the DGCL
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18
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3.21
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Brokers
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18
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3.22
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No Other Information
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18
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ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE BUYER AND
THE TRANSITORY SUBSIDIARY
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18
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4.1
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Organization, Standing and Power
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18
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4.2
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Authority; No Conflict; Required Filings and Consents
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18
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4.3
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SEC Filings; Information Provided
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19
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4.4
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Operations of the Transitory Subsidiary
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20
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4.5
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Financing
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20
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4.6
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Solvency
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21
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4.7
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Guarantee
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21
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4.8
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Agreements with Company Stockholders, Directors or Management
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21
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-i-
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4.9
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No Other Information
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21
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4.10
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Access to Information; Disclaimer
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21
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ARTICLE V CONDUCT OF BUSINESS
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22
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5.1
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Covenants of the Company
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24
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5.2
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Confidentiality
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24
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5.3
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Equity Financing Commitments
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24
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5.4
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Debt Financing Commitments
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25
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ARTICLE VI ADDITIONAL AGREEMENTS
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27
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6.1
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No Solicitation
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29
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6.2
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Proxy Statement
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30
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6.3
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Nasdaq Quotation
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30
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6.4
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Access to Information
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30
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6.5
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Stockholders Meeting
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30
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6.6
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Legal Conditions to the Merger
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31
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6.7
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Public Disclosure
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31
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6.8
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Indemnification
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32
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6.9
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Notification of Certain Matters
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33
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6.10
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Exemption from Liability Under Section 16(b)
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33
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6.11
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Service Credit
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33
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6.12
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Company Employee Arrangements
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34
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6.13
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Sale of Investments
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34
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6.14
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Director Resignations
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34
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6.15
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Termination of Agreements
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34
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6.16
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Internal Reorganization
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34
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ARTICLE VII CONDITIONS TO MERGER
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34
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7.1
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Conditions to Each Party’s Obligation To Effect the Merger
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34
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7.2
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Additional Conditions to Obligations of the Buyer and the
Transitory Subsidiary
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35
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7.3
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Additional Conditions to Obligations of the Company
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35
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7.4
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Frustration of Closing Conditions
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36
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ARTICLE VIII TERMINATION AND AMENDMENT
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36
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8.1
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Termination
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36
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8.2
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Effect of Termination
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37
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8.3
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Fees and Expenses
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37
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8.4
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Amendment
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39
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8.5
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Extension; Waiver
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39
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ARTICLE IX MISCELLANEOUS
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39
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9.1
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Nonsurvival of Representations, Warranties and Agreements
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39
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9.2
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Notices
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39
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9.3
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Entire Agreement
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40
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9.4
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No Third Party Beneficiaries
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41
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9.5
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Assignment
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41
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9.6
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Severability
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41
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9.7
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Counterparts and Signature
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41
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-ii-
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9.8
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Interpretation
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41
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9.9
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Governing Law
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42
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9.10
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Remedies
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42
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9.11
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Submission to Jurisdiction
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43
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9.12
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Disclosure Schedules
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43
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9.13
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Knowledge
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43
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Exhibit A
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Form of Certificate of Incorporation
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Exhibit B
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Form of Guarantee
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Exhibit C
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Form of Termination Agreement
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-iii-
TABLE OF
DEFINED TERMS
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Reference in
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Terms
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Agreement
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Acceptable Confidentiality Agreement
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Section 6.1(a)
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Acquisition Proposal
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Section 6.1(f)
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Actions
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Section 3.12
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Affiliate
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Section 3.2(c)
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Agreement
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Preamble
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Alternative Acquisition Agreement
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Section 6.1(b)
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Alternative Debt Commitment Letter
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Section 5.4(c)
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Alternative Debt Financing
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Section 5.4(c)
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Alternative Debt Financing Agreement
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Section 5.4(c)
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Ancillary Agreements
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Section 9.10(b)
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Antitrust Laws
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Section 6.6(b)
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Antitrust Order
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Section 6.6(b)
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Bankruptcy and Equity Exception
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Section 3.4(a)
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Business Day
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Section 1.2
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Buyer
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Preamble
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Buyer Damages
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Section 9.10(b)
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Buyer Disclosure Schedule
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Article IV
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Buyer Employee Plan
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Section 6.11
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Buyer Liability Limitation
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Section 9.10(b)
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Buyer Material Adverse Effect
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Section 4.1
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Buyer Parties
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Section 9.10(c)
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Buyer Termination Fee
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Section 8.3(d)
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Buyer’s Knowledge
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Section 9.13
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Certificate
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Section 2.2(b)
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Certificate of Merger
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Section 1.1
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Claims
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Section 6.8(a)
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Closing
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Section 1.2
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Closing Date
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Section 1.2
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Code
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Section 2.2(f)
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Commitment Letters
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Section 4.5(a)
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Company
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Preamble
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Company Balance Sheet
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Section 3.5(b)
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Company Board
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Section 3.4(a)
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Company Common Stock
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Section 2.1(b)
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Company Damages
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Section 9.10(b)
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Company Disclosure Schedule
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Article III
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Company Employee Plans
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Section 3.14(a)
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Company Intellectual Property
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Section 3.10(b)
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Company Leases
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Section 3.9(b)
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Company Liability Limitation
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Section 9.10(b)
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Company Material Adverse Effect
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Section 3.1
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Company Material Contracts
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Section 3.11(a)
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Company Meeting
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Section 3.4(d)
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-iv-
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Reference in
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Terms
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Agreement
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Company Parties
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Section 9.10(c)
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Company Preferred Stock
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Section 3.2(a)
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Company SEC Reports
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Section 3.5(a)
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Company Stock Options
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Section 2.3(a)
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Company Stock Plans
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Section 2.3(a)
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Company Stockholder Approval
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Section 3.4(a)
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Company Voting Proposal
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Section 3.4(a)
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Company’s Knowledge
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Section 9.13
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Confidentiality Agreement
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Section 5.2
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Continuing Employees
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Section 6.11
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Debt Commitment Letter
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Section 4.5(a)
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Debt Financing
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Section 4.5(a)
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Debt Financing Agreements
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Section 5.4(a)
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Debt Financing Sources
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Section 4.5(a)
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Dissenting Shares
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Section 2.4(a)
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DGCL
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Preamble
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Effect
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Section 3.1
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Effective Time
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Section 1.1
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Employee Benefit Plan
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Section 3.14(a)
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Environmental Law
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Section 3.13(b)
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Equity Commitment Letter
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Section 4.5(a)
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Equity Financing
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Section 4.5(a)
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ERISA
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Section 3.14(a)
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ERISA Affiliate
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Section 3.14(a)
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Exchange Act
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Section 3.2(f)
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Exchange Agent
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Section 2.2(a)
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Exchange Fund
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Section 2.2(a)
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Expense Reimbursement
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Section 8.3(b)
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Filed Company SEC Reports
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Article III
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Financing
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Section 4.5(a)
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Financial Statements
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Section 3.5(b)
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GAAP
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Section 3.5(b)
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Governmental Entity
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Section 3.4(c)
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GSO
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Section 4.5(a)
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Guarantee
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Section 4.7
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Hazardous Substance
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Section 3.13(c)
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HSR Act
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Section 3.4(c)
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Indemnified Parties
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Section 6.8(a)
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Intellectual Property
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Section 3.10(a)
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Interim Investment Agreement
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Section 4.8
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Internal Reorganization
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Section 6.16
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Investor
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Section 4.5(a)
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IRS
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Section 3.8(c)
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Lien
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Section 3.4(b)
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-v-
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Reference in
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Terms
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Agreement
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Maximum Premium
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Section 6.8(c)
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Merger
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Preamble
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Merger Consideration
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Section 2.1(c)
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Notice of Superior Proposal
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Section 6.1(b)
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Option Consideration
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Section 2.3(b)
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Ordinary Course of Business
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Section 3.6
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Outside Date
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Section 8.1(b)
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Permits
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Section 3.16
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Pre-Closing Period
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Section 5.1
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Proxy Statement
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Section 3.5(c)
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Required Company Stockholder Vote
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Section 3.4(d)
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Representatives
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Section 6.1(a)
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Rollover Commitment Letters
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Section 4.8
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Schedule 13E-3
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Section 3.5(c)
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SEC
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Section 3.5(a)
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Securities Act
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Section 3.2(c)
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Specified Time
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Section 6.1(a)
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Subsidiary
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Section 3.3(a)
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Superior Proposal
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Section 6.1(f)
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Surviving Corporation
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Section 1.1
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Tax Returns
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Section 3.8(b)
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Taxes
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Section 3.8(b)
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Termination Agreement
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Section 6.15
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Termination Fee
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Section 8.3(c)
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Third Party Intellectual Property
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Section 3.10(b)
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Transitory Subsidiary
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Preamble
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UK Stock Option
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Section 2.3(a)
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WARN
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Section 3.17
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-vi-
AGREEMENT
AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (this “Agreement”)
is entered into as of December 17, 2009, by and among 72
Mobile Holdings, LLC, a
Delaware limited liability company (the
“Buyer”), 72 Mobile Acquisition Corp., a
Delaware
corporation and a wholly owned subsidiary of the Buyer (the
“Transitory Subsidiary”), and Airvana, Inc., a
Delaware corporation (the “Company”).
WHEREAS, the Boards of Directors of the Transitory Subsidiary
and the Company have each determined that this Agreement and the
Merger are advisable and in the best interests of each
corporation and their respective stockholders and recommended
that their respective stockholders adopt this Agreement; and
WHEREAS, the acquisition of the Company shall be effected
through a merger (the “Merger”) of the Transitory
Subsidiary with and into the Company in accordance with the
terms of this Agreement and the
Delaware General Corporation Law
(the “DGCL”), as a result of which the Company shall
become a wholly owned subsidiary of the Buyer;
NOW, THEREFORE, in consideration of the foregoing and the
respective representations, warranties, covenants and agreements
set forth below, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged,
the Buyer, the Transitory Subsidiary and the Company agree as
follows:
ARTICLE I
THE MERGER
1.1
Effective Time of the
Merger. Subject to the provisions of this
Agreement, prior to the Closing, the Buyer and the Company shall
jointly prepare, and immediately following the Closing the
Company, as the surviving corporation in the Merger (the Company
following the Merger is sometimes referred to herein as the
“
Surviving Corporation”), shall cause to be
filed with the Secretary of State of the State of
Delaware, a
certificate of merger (the “
Certificate of
Merger”) in such form as is required by, and executed
by the Company in accordance with, the relevant provisions of
the DGCL and shall make all other filings or recordings required
under the DGCL. The Merger shall become effective upon the
filing of the Certificate of Merger with the Secretary of State
of the State of
Delaware or at such later time as is established
by the Buyer and the Company and set forth in the Certificate of
Merger (the “
Effective Time”).
1.2 Closing. The closing of the
Merger (the “Closing”) shall take place at
10:00 a.m., Eastern time, on a date to be specified by the
Buyer and the Company (the “Closing Date”),
which shall be no later than the second Business Day after
satisfaction or waiver of the conditions set forth in
Article VII (other than delivery of items to be delivered
at the Closing and other than satisfaction of those conditions
that by their nature are to be satisfied at the Closing, it
being understood that the occurrence of the Closing shall remain
subject to the delivery of such items and the satisfaction or
waiver of such conditions at the Closing), at the offices of
Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP, 00 Xxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxxx, unless another date, place or time is
agreed to in writing by the Buyer and the Company. For purposes
of this Agreement, a “Business Day” shall be
any day other than (a) a Saturday or Sunday or (b) a
day on which banking institutions located in Boston,
Massachusetts or New York, New York are permitted or required by
law, executive order or governmental decree to remain closed.
1.3 Effects of the Merger. At the
Effective Time (a) the Transitory Subsidiary shall be
merged with and into the Company and, as a result of the Merger,
the separate corporate existence of Transitory Subsidiary shall
cease and the Company shall continue as the Surviving
Corporation of the Merger and (b) the Certificate of
Incorporation of the Company as in effect on the date of this
Agreement shall be amended in its entirety as set forth on
Exhibit A hereto, and, as so amended, such
Certificate of Incorporation shall be the Certificate of
Incorporation of the Surviving Corporation, until further
amended in accordance with the DGCL. In addition, subject to
Section 6.8(b) hereof, after the Effective Time the Buyer
shall cause the By-laws of the Surviving Corporation to be
amended and restated in their entirety so that, as soon as
practicable following the Effective Time, they are identical to
the By-laws of the Transitory Subsidiary as in effect
immediately prior to the Effective Time, except that all
references to the name of the Transitory Subsidiary therein
shall be changed to refer to the name of the Company, and, as so
-1-
amended and restated, such By-laws shall be the By-laws of the
Surviving Corporation, until further amended in accordance with
the DGCL. The Merger shall have the effects set forth in
Section 259 of the DGCL.
1.4 Directors and Officers of the Surviving
Corporation.
(a) The directors of the Transitory Subsidiary immediately
prior to the Effective Time shall be the directors of the
Surviving Corporation, each to hold office until their
respective successors are duly elected or appointed and
qualified or their earlier death, resignation or removal in
accordance with the Certificate of Incorporation and By-laws of
the Surviving Corporation.
(b) The officers of the Company immediately prior to the
Effective Time shall be the officers of the Surviving
Corporation, each to hold office until their respective
successors are duly elected or appointed and qualified or their
earlier death, resignation or removal in accordance with the
Certificate of Incorporation and By-laws of the Surviving
Corporation.
ARTICLE II
CONVERSION
OF SECURITIES
2.1 Conversion of Capital Stock. As
of the Effective Time, by virtue of the Merger and without any
action on the part of the holder of any shares of the capital
stock of the Company or capital stock of the Transitory
Subsidiary:
(a) Capital Stock of the Transitory
Subsidiary. Each share of the common stock, par
value $0.001 per share, of the Transitory Subsidiary issued and
outstanding immediately prior to the Effective Time shall be
converted into and become one fully paid and nonassessable share
of common stock, $0.001 par value per share, of the
Surviving Corporation.
(b) Cancellation of Treasury Stock and Buyer-Owned
Stock. All shares of common stock,
$0.001 par value per share, of the Company
(“Company Common Stock”) that are owned by the
Company as treasury stock and any shares of Company Common Stock
owned by the Buyer, the Transitory Subsidiary or any other
wholly owned Subsidiary of the Buyer immediately prior to the
Effective Time shall be cancelled and shall cease to exist and
no stock of the Buyer or other consideration shall be delivered
in exchange therefor. Shares of Company Common Stock owned by
any wholly owned Subsidiary of the Company shall remain
outstanding.
(c) Merger Consideration for Company Common
Stock. Subject to Section 2.2, each share of
Company Common Stock (other than shares to be cancelled in
accordance with Section 2.1(b), Dissenting Shares (as
defined in Section 2.4(a) below) and Company Common Stock
owned by any wholly owned Subsidiary of the Company) issued and
outstanding immediately prior to the Effective Time shall be
automatically converted into the right to receive $7.65 in cash
per share (the “Merger Consideration”). As of
the Effective Time, all such shares of Company Common Stock
shall no longer be outstanding and shall automatically be
cancelled and shall cease to exist, and each holder of a
certificate representing any such shares of Company Common Stock
shall cease to have any rights with respect thereto, except the
right to receive the Merger Consideration pursuant to this
Section 2.1(c) upon the surrender of such certificate in
accordance with Section 2.2, without interest.
(d) Adjustments to Merger
Consideration. The Merger Consideration shall be
adjusted, without duplication, to reflect fully the effect of
any reclassification, stock split, reverse split, stock dividend
(including any dividend or distribution of securities
convertible into Company Common Stock), reorganization,
recapitalization or other like change with respect to Company
Common Stock occurring after the date hereof and prior to the
Effective Time.
2.2 Exchange of Certificates. The
procedures for exchanging outstanding shares of Company Common
Stock for the Merger Consideration pursuant to the Merger are as
follows:
(a) Exchange Agent. At or prior to the
Effective Time, the Buyer shall deposit or cause to be deposited
with Computershare Trust Company, N.A. or another bank or
trust company mutually acceptable to the Buyer and the Company
(the “Exchange Agent”), for the benefit of the holders
of shares of Company Common Stock outstanding immediately prior
to the Effective Time, for payment through the Exchange Agent in
accordance with this
-2-
Section 2.2, cash in an amount sufficient to make payment
of the Merger Consideration pursuant to Section 2.1(c) in
exchange for all of the outstanding shares of Company Common
Stock (the “Exchange Fund”).
(b) Exchange Procedures. Promptly (and in
any event within three (3) Business Days) after the
Effective Time, the Buyer shall cause the Exchange Agent to mail
to each holder of record of a certificate which immediately
prior to the Effective Time represented outstanding shares of
Company Common Stock (each, a “Certificate”)
(i) a letter of transmittal in customary form and
(ii) instructions for effecting the surrender of the
Certificates in exchange for the Merger Consideration payable
with respect thereto. Upon surrender of a Certificate for
cancellation to the Exchange Agent, together with such letter of
transmittal, duly executed, the holder of such Certificate shall
be paid promptly in exchange therefor cash in an amount equal to
the Merger Consideration that such holder has the right to
receive pursuant to the provisions of this Article II, and
the Certificate so surrendered shall immediately be cancelled.
In the event of a transfer of ownership of Company Common Stock
which is not registered in the transfer records of the Company,
the Merger Consideration may be paid to a person other than the
person in whose name the Certificate so surrendered is
registered, if such Certificate is presented to the Exchange
Agent, accompanied by all documents required to evidence and
effect such transfer and by evidence that any applicable stock
transfer taxes have been paid. Until surrendered as contemplated
by this Section 2.2, each Certificate shall be deemed at
any time after the Effective Time to represent only the right to
receive upon such surrender the Merger Consideration as
contemplated by this Section 2.2.
(c) No Further Ownership Rights in Company Common
Stock. All Merger Consideration paid upon the
surrender for exchange of Certificates evidencing shares of
Company Common Stock in accordance with the terms hereof shall
be deemed to have been paid in satisfaction of all rights
pertaining to such shares of Company Common Stock, and from and
after the Effective Time there shall be no further registration
of transfers on the stock transfer books of the Surviving
Corporation of the shares of Company Common Stock which were
outstanding immediately prior to the Effective Time. If, after
the Effective Time, Certificates are presented to the Surviving
Corporation or the Exchange Agent for any reason, they shall be
cancelled and exchanged as provided in this Article II.
(d) Termination of Exchange Fund. Any
portion of the Exchange Fund which remains undistributed to the
holders of Company Common Stock for one year after the Effective
Time shall be delivered to the Buyer, upon demand, and any
holder of Company Common Stock who has not previously complied
with this Section 2.2 shall be entitled to receive only
from the Buyer payment of its claim for Merger Consideration.
(e) No Liability. Notwithstanding
anything herein to the contrary, none of the Buyer, the
Transitory Subsidiary, the Company, the Surviving Corporation or
the Exchange Agent shall be liable to any holder of shares of
Company Common Stock for any amount delivered to a public
official pursuant to any applicable abandoned property, escheat
or similar law.
(f) Withholding Rights. Each of the
Buyer, the Exchange Agent and the Surviving Corporation shall be
entitled to deduct and withhold from the consideration otherwise
payable pursuant to this Agreement to any holder of shares of
Company Common Stock such amounts as it is required to deduct
and withhold with respect to the making of such payment under
the Internal Revenue Code of 1986, as amended (the
“Code”), or any other applicable state, local
or foreign tax law. To the extent that amounts are so withheld
by the Surviving Corporation, the Exchange Agent or the Buyer,
as the case may be, such withheld amounts (i) shall be
remitted by the Buyer, the Exchange Agent or the Surviving
Corporation, as the case may be, to the applicable Governmental
Entity, and (ii) shall be treated for all purposes of this
Agreement as having been paid to the holder of the shares of
Company Common Stock in respect of which such deduction and
withholding was made by the Surviving Corporation, the Exchange
Agent or the Buyer, as the case may be.
(g) Lost Certificates. If any Certificate
shall have been lost, stolen or destroyed, upon the making of an
affidavit of that fact by the person claiming such Certificate
to be lost, stolen or destroyed, the Exchange Agent shall issue
in exchange for such lost, stolen or destroyed Certificate the
Merger Consideration deliverable in respect thereof pursuant to
this Agreement; provided, however, that the
Exchange Agent may, in its discretion and as a condition
precedent to the payment of the Merger Consideration, require
the owners of such lost, stolen or destroyed Certificates to
deliver a bond in such sum as it may reasonably direct as
indemnity against any claim that may be made against Buyer, the
Exchange Agent and the Surviving Corporation with respect to the
Certificates alleged to have been lost, stolen or destroyed.
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2.3 Company Stock Plans.
(a) The Company shall take such action as shall be required:
(i) to cause the vesting of any unvested options to
purchase Company Common Stock (“Company Stock
Options”) granted under any stock option plans or other
equity-related plans of the Company (the “Company Stock
Plans”) to be accelerated in full effective immediately
prior to the Effective Time;
(ii) to effectuate the cancellation, as of the Effective
Time, of all Company Stock Options outstanding immediately prior
to the Effective Time (without regard to the exercise price of
such Company Stock Options); and
(iii) to cause, pursuant to the Company Stock Plans, each
outstanding Company Stock Option to represent as of the
Effective Time solely the right to receive, in accordance with
this Section 2.3, a lump sum cash payment in the amount of
the Option Consideration (as defined below), if any, with
respect to such Company Stock Option and to no longer represent
the right to purchase Company Common Stock or any other equity
security of the Company, the Buyer, the Surviving Corporation or
any other person or any other consideration; provided
that with respect to each Company Stock Option granted under the
Company’s 2007 Stock Incentive Plan to employees resident
in the United Kingdom (a “UK Stock Option”),
the Company shall provide the holder thereof with
(A) notice that the Company Stock Option will terminate
immediately prior to the Effective Time and represent as of the
Effective Time solely the right to receive, in accordance with
this Section 2.3, a lump sum cash payment in the amount of
the Option Consideration (as defined below), if any, with
respect to such Company Stock Option, and (B) the
opportunity to exercise the Company Stock Option prior to the
Effective Time.
(b) Each holder of a Company Stock Option so cancelled
shall receive from the Buyer, in respect and in consideration of
each such Company Stock Option, as soon as practicable following
the Effective Time (but in any event not later than three
Business Days), an amount (net of applicable taxes) equal to the
product of (i) the excess, if any, of (A) the Merger
Consideration per share of Company Common Stock over
(B) the exercise price per share of Company Common Stock
subject to such Company Stock Option, multiplied by
(ii) the total number of shares of Company Common Stock
subject to such Company Stock Option (whether or not then vested
or exercisable), without any interest thereon (the “Option
Consideration”). In the event that the exercise price of
any Company Stock Option is equal to or greater than the Merger
Consideration, such Company Stock Option shall be cancelled and
have no further force or effect.
(c) As soon as practicable following the execution of this
Agreement, the Company shall mail to each person who is a holder
of Company Stock Options a letter describing the treatment of
and, if applicable, payment for such Company Stock Options
pursuant to this Section 2.3 and providing instructions for
use in obtaining payment for such Company Stock Options. The
Buyer shall at all times from and after the Effective Time
maintain sufficient liquid funds to satisfy its obligations to
holders of Company Stock Options pursuant to this
Section 2.3.
2.4 Dissenting Shares.
(a) Notwithstanding anything to the contrary contained in
this Agreement, shares of Company Common Stock held by a holder
who has made a demand for appraisal of such shares of Company
Common Stock in accordance with the DGCL (any such shares being
referred to as “Dissenting Shares” until such time as
such holder fails to perfect or otherwise loses such
holder’s appraisal rights under the DGCL with respect to
such shares) shall, subject to Section 2.4(b), not be
converted into or represent the right to receive Merger
Consideration in accordance with Section 2.1, but shall be
entitled only to such rights as are granted by the DGCL to a
holder of Dissenting Shares.
(b) If any Dissenting Shares shall lose their status as
such (through failure to perfect or otherwise), then, as of the
later of the Effective Time or the date of loss of such status,
such shares shall automatically be converted into and shall
represent only the right to receive Merger Consideration in
accordance with Section 2.1, without interest thereon, upon
surrender of the Certificate formerly representing such shares.
(c) The Company shall give the Buyer: (i) prompt
notice and a copy of any written demand for appraisal received
by the Company prior to the Effective Time pursuant to the DGCL,
any withdrawal of any such demand and any other demand, notice
or instrument delivered to the Company prior to the Effective
Time pursuant to the
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DGCL that relate to such demand; and (ii) the opportunity
to participate in all negotiations and proceedings with respect
to any such demand, notice or instrument. The Company shall not
make any payment or settlement offer or agree to do either of
the foregoing prior to the Effective Time with respect to any
such demand, notice or instrument unless the Buyer shall have
given its written consent to such payment or settlement offer or
agreement.
ARTICLE III
REPRESENTATIONS
AND WARRANTIES OF THE COMPANY
The Company represents and warrants to the Buyer and the
Transitory Subsidiary that the statements contained in this
Article III are true and correct, except as set forth in
(x) the corresponding section of the disclosure schedule
delivered by the Company to the Buyer and the Transitory
Subsidiary and dated as of the date of this Agreement (the
“Company Disclosure Schedule”), (y) any
other section of the Company Disclosure Schedule to the extent
it is readily apparent from a reading of such disclosure that
such disclosure is applicable to such statement in this
Article III or (z) as disclosed in any Company SEC
Report filed on or after December 31, 2008 and prior to the
date hereof (the “Filed Company SEC Reports”),
other than disclosure in such Company SEC Reports referred to in
the “Risk Factors” and “Forward Looking
Statements” sections thereof or any other disclosures in
the Filed Company SEC Reports which are forward-looking in
nature.
3.1 Organization, Standing and
Power. The Company is a corporation duly
organized, validly existing and in good standing under the laws
of the jurisdiction of its incorporation and has all requisite
corporate power and authority to own, lease and operate its
properties and assets and to carry on its business as now being
conducted. Where applicable as a legal concept, the Company is
duly qualified to do business and in good standing as a foreign
corporation in each jurisdiction in which the character of the
properties it owns, operates or leases or the nature of its
activities makes such qualification necessary, except for such
failures to be so qualified or in good standing that,
individually or in the aggregate, have not had and would not
reasonably be likely to have a Company Material Adverse Effect.
The Company has made available to the Buyer complete and correct
copies of the certificate of incorporation and bylaws of the
Company, as amended to the date of this Agreement, and is not in
violation in any material respect of any of the provisions
contained in such documents. For purposes of this Agreement, the
term “Company Material Adverse Effect” means
any effect, change, event, circumstance or development (each, an
“Effect”) that is, or would be reasonably
likely to be, individually or in the aggregate, materially
adverse to the business, financial condition or results of
operations of the Company and its Subsidiaries, taken as a
whole; provided, however, that none of the
following, or any Effect arising or resulting from any of the
following, shall constitute, or shall be considered in
determining whether there has occurred, or may, would or could
occur, a Company Material Adverse Effect:
(a) general economic conditions (or changes in such
conditions) in the United States or any other country or region
in the world, or conditions in the global economy generally;
(b) conditions (or changes in such conditions) in the
securities markets, credit markets, currency markets or other
financial markets in the United States or any other country or
region in the world, including (i) changes in interest
rates in the United States or any other country or region in the
world and changes in exchange rates for the currencies of any
countries and (ii) any suspension of trading in securities
(whether equity, debt, derivative or hybrid securities)
generally on any securities exchange or over-the-counter market
operating in the United States or any other country or region in
the world;
(c) conditions (or changes in conditions) in the industries
or markets in which the Company operates;
(d) political conditions (or changes in such conditions) in
the United States or any other country or region in the world or
acts of war, sabotage or terrorism (including any escalation or
general worsening of any such acts of war, sabotage or
terrorism) in the United States or any other country or region
in the world occurring after the date hereof;
(e) earthquakes, hurricanes, tsunamis, tornadoes, floods,
mudslides, wild fires or other natural disasters, weather
conditions and other force majeure events in the United States
or any other country or region in the world occurring after the
date hereof;
-5-
(f) the announcement of this Agreement or the pendency or
consummation of the transactions contemplated hereby, including
the identity of the Buyer or the termination or potential
termination of (or the failure or potential failure to renew or
enter into) any contracts with customers, suppliers,
distributors or other business partners, to the extent caused by
the pendency or the announcement of the transactions
contemplated by this Agreement;
(g) changes after the date hereof in law or other legal or
regulatory conditions (or the interpretation thereof) or changes
after the date hereof in GAAP or other accounting standards (or
the interpretation thereof) or that result from any action taken
for the purpose of complying with any such changes;
(h) any actions taken or failure to take action, in each
case, to which the Buyer has approved, consented to or requested
in writing; or compliance with the terms of, or the taking of
any action required by, this Agreement (including
Section 6.6 but excluding the first sentence of
Section 5.1);
(i) any fees or expenses incurred in connection with the
transactions contemplated by this Agreement;
(j) changes in the Company’s stock price or the
trading volume of the Company’s stock, or any failure by
the Company to meet any public estimates or expectations of the
Company’s revenue, earnings or other financial performance
or results of operations for any period, or any failure by the
Company to meet any internal budgets, plans or forecasts of its
revenues, earnings or other financial performance or results of
operations (provided that the exception in this clause
shall not prevent or otherwise affect a determination that any
Effect underlying such change or failure has resulted in, or
contributed to, a Company Material Adverse Effect); and
(k) any legal proceedings made or brought by any of the
current or former stockholders of the Company (on their own
behalf or on behalf of the Company) against the Company arising
out of or related to this Agreement or the Merger;
provided, further, however, that any Effect referred to
in clauses (a) through (e) may be taken into account
for purposes of each such respective clause if, and only to the
extent that, such Effect adversely affects the Company and its
Subsidiaries, taken as a whole, in a materially disproportionate
manner relative to (x) other participants operating in
industries in which the Company and its Subsidiaries operate in
the case of clause (c) or (y) other participants
operating in industries and the affected geography in which the
Company and its Subsidiaries operate in the case of clauses (a),
(b), (d) and (e). With respect to references to
“Company Material Adverse Effect” in the
representations and warranties set forth in Section 3.4(b)
and Section 3.4(c) the exception set forth in
clause (f) shall not apply.
3.2 Capitalization.
(a) The authorized capital stock of the Company as of the
date of this Agreement consists of 350,000,000 shares of
Company Common Stock and 10,000,000 shares of preferred
stock, $0.001 par value per share (“Company
Preferred Stock”). The rights and privileges of each
class of the Company’s capital stock are as set forth in
the Company’s Certificate of Incorporation. As of the close
of business on December 11, 2009,
(i) 62,879,603 shares of Company Common Stock were
issued and outstanding, (ii) 13,724,285 shares of
Company Common Stock were reserved for issuance pursuant to
outstanding Company Stock Options and (iii) no shares of
Company Preferred Stock were issued or outstanding. There are no
unvested restricted stock awards of Company Common Stock
outstanding.
(b) Section 3.2(b) of the Company Disclosure Schedule
sets forth a complete and accurate list, as of the close of
business on December 11, 2009, of: (i) all Company
Stock Plans, indicating for each Company Stock Plan, as of such
date, the number of shares of Company Common Stock issued under
such Plan, the number of shares of Company Common Stock subject
to outstanding options under such Plan and the number of shares
of Company Common Stock reserved for future issuance under such
Plan; and (ii) all outstanding Company Stock Options,
indicating with respect to each such Company Stock Option the
name of the holder thereof, the Company Stock Plan under which
it was granted, the number of shares of Company Common Stock
subject to such Company Stock Option, the exercise price, the
date of grant, and the vesting schedule. The Company has made
available to the Buyer complete and accurate copies of all
Company Stock Plans and the forms of all stock option agreements
evidencing Company Stock Options.
-6-
(c) Except (i) as set forth in this Section 3.2
and (ii) as reserved for future grants under Company Stock
Plans, as of the date of this Agreement, (A) there are no
equity securities of, or other equity or voting interest in, the
Company, or any security exchangeable or convertible into or
exercisable for such equity securities, issued, reserved for
issuance or outstanding and (B) there are no options,
warrants, equity securities, calls, rights, commitments or other
rights or agreements of any character to which the Company or
any of its Subsidiaries is a party or by which the Company or
any of its Subsidiaries is bound obligating the Company or any
of its Subsidiaries to issue, exchange, transfer, deliver or
sell, or cause to be issued, exchanged, transferred, delivered
or sold, any capital stock or other equity or voting interests
of the Company or any security or rights convertible into or
exchangeable or exercisable for any such shares or other equity
interests, or obligating the Company or any of its Subsidiaries
to grant, extend, accelerate the vesting of, otherwise modify or
amend or enter into any such option, warrant, equity security,
call, right, commitment, agreement or other similar contract
relating to any capital stock of, or other equity or voting
interest (including any voting debt) including any agreements
granting any preemptive rights, subscription rights,
anti-dilutive rights, rights of first refusal or similar rights
with respect to any securities of the Company. The Company does
not have any outstanding equity compensation relating to the
capital stock of the Company. Neither the Company nor any of its
Subsidiaries has any obligation to make any payments based on
the price or value of Company Common Stock or any other
securities of the Company or dividends paid thereon. No direct
or indirect Subsidiary of the Company owns any Company Common
Stock. Neither the Company nor any of its Affiliates is a party
to or is bound by any agreements or understandings with respect
to the voting (including voting trusts and proxies) or sale or
transfer (including agreements imposing transfer restrictions)
of any shares of capital stock or other equity interests of the
Company or with respect to the election or appointment of
directors of the Company or its Subsidiaries. For purposes of
this Agreement, the term “Affiliate” when used
with respect to any party shall mean any person who is an
“affiliate” of that party within the meaning of
Rule 405 promulgated under the Securities Act of 1933, as
amended (the “Securities Act”). There are no
registration rights, rights agreement, “poison pill”
anti-takeover plan or other similar agreement or understanding
to which the Company or any of its Subsidiaries is a party or by
which it or they are bound with respect to any equity security
of any class of the Company.
(d) All outstanding shares of Company Common Stock are, and
all shares of Company Common Stock subject to issuance as
specified in Section 3.2(b) above, 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 and not subject to or
issued in violation of any purchase option, call option, right
of first refusal, preemptive right, subscription right or any
similar right under any provision of the DGCL, the
Company’s Certificate of Incorporation or By-laws or any
agreement to which the Company is a party or is otherwise bound.
(e) There are no obligations, contingent or otherwise, of
the Company or any of its Subsidiaries to repurchase, redeem or
otherwise acquire any shares of Company Common Stock or the
capital stock of the Company or any of its Subsidiaries or to
provide funds to the Company or any Subsidiary of the Company
(other than as provided in award agreements relating to Company
Stock Options as they relate to using shares of Company Common
Stock to pay income Taxes) or any obligations binding on the
Company to grant or extend such rights.
(f) The Company Common Stock constitutes the only
outstanding class of securities of the Company registered under
the Securities Act or the Securities Exchange Act of 1934, as
amended (the “Exchange Act”).
(g) As of the date hereof, there is no outstanding
indebtedness for borrowed money of the Company and its
Subsidiaries other than indebtedness identified in
Section 3.2(g) of the Company Disclosure Schedule.
3.3 Subsidiaries.
(a) Section 3.3 of the Company Disclosure Schedule
sets forth, as of the date of this Agreement, the name and
jurisdiction of organization of each Subsidiary of the Company
and sets forth a complete and accurate list of all outstanding
securities of each Subsidiary and the registered and beneficial
owner thereof. For purposes of this Agreement, the term
“Subsidiary” means, with respect to any party,
any corporation, partnership, trust, limited liability company
or other non-corporate business enterprise in which such party
(or another Subsidiary of such party) holds stock or other
ownership interests representing (A) more that 50% of the
voting power of all outstanding stock or ownership interests of
such entity or (B) the right to receive more than 50% of
the net assets of such entity available for distribution to the
holders of outstanding stock or ownership interests upon a
liquidation or dissolution of such entity.
-7-
(b) Each Subsidiary of the Company is duly organized,
validly existing and in good standing (to the extent such
concepts are applicable) under the laws of the jurisdiction of
its organization, has all requisite company power and authority
to own, lease and operate its properties and assets and to carry
on its business as now being conducted. Where applicable as a
legal concept, each Subsidiary of the Company is duly qualified
to do business and in good standing as a foreign company in each
jurisdiction in which the character of the properties it owns,
operates or leases or the nature of its activities makes such
qualification necessary, except for such failures to be so
qualified or in good standing that, individually or in the
aggregate, have not had and would not reasonably be likely to
have a Company Material Adverse Effect. All of the outstanding
shares of capital stock and other equity securities or interests
of each Subsidiary of the Company are duly authorized, validly
issued, fully paid, nonassessable and free of preemptive rights
and all such shares are owned, of record and beneficially, by
the Company or another of its wholly-owned Subsidiaries free and
clear of all security interests, liens, claims, pledges,
agreements, limitations in the Company’s voting rights,
charges or other encumbrances (including any restriction on the
right to vote, sell or otherwise dispose of such capital stock
or other equity or voting interests).
(c) Except as set forth in this Section 3.3,
(A) there are no equity securities of, or other equity or
voting interest in, any of the Subsidiaries of the Company, or
any security exchangeable or convertible into or exercisable for
such equity securities, issued, reserved for issuance or
outstanding and (B) there are no options, warrants, equity
securities, calls, rights, commitments or other rights or
agreements of any character to which the Company or any of its
Subsidiaries is a party or by which the Company or any of its
Subsidiaries is bound obligating the Company or any of its
Subsidiaries to issue, exchange, transfer, deliver or sell, or
cause to be issued, exchanged, transferred, delivered or sold,
any capital stock or other equity or voting interests of any of
the Company’s Subsidiaries or any security or rights
convertible into or exchangeable or exercisable for any such
shares or other equity interests, or obligating the Company or
any of its Subsidiaries to grant, extend, accelerate the vesting
of, otherwise modify or amend or enter into any such option,
warrant, equity security, call, right, commitment, agreement or
other similar contract relating to any capital stock of, or
other equity or voting interest (including any voting debt)
including any agreements granting any preemptive rights,
subscription rights, anti-dilutive rights, rights of first
refusal or similar rights with respect to any securities of the
Company’s Subsidiaries. None of the Company’s
Subsidiaries has any outstanding equity compensation relating to
the capital stock of any of the Company’s Subsidiaries.
Neither the Company nor any of its Subsidiaries has any
obligation to make any payments based on the price or value of
any securities of the Company’s Subsidiaries or dividends
paid thereon. Neither the Company nor any of its Affiliates is a
party to or is bound by any agreements or understandings with
respect to the voting (including voting trusts and proxies) or
sale or transfer (including agreements imposing transfer
restrictions) of any shares of capital stock or other equity
interests of any of the Subsidiaries of the Company.
(d) The Company does not control directly or indirectly or
have any direct or indirect equity participation or similar
interest in (and neither the Company nor any of its Subsidiaries
has any obligation to make an investment in or capital
contribution to) any corporation, partnership, limited liability
company, joint venture, trust or other business association or
entity which is not a Subsidiary of the Company.
3.4 Authority; No Conflict; Required Filings and
Consents.
(a) The Company has all requisite corporate power and
authority to enter into, execute and deliver this Agreement and
each Ancillary Agreement to which it is a party and, subject, in
the case of this Agreement, to the adoption of this Agreement
(the “Company Voting Proposal”) by the
Company’s stockholders under the DGCL (the “Company
Stockholder Approval”), to perform its obligations
hereunder and thereunder and to consummate the transactions
contemplated by this Agreement and the Ancillary Agreements to
which it is a party. Without limiting the generality of the
foregoing, the Board of Directors of the Company (the
“Company Board”), at a meeting duly called and
held, by the unanimous vote of all directors (i) determined
that the Merger is fair and in the best interests of the Company
and its stockholders, (ii) approved this Agreement, the
performance of the Company of its covenants and obligations
hereunder, and declared its advisability in accordance with the
provisions of the DGCL, (iii) directed that this Agreement
be submitted to the stockholders of the Company for their
adoption and recommended that the stockholders of the Company
vote in favor of the adoption of this Agreement,
(iv) approved each of the Ancillary Agreements to which the
Company is a party, and (v) to the extent necessary,
adopted a resolution having the effect of causing the Company
not to be subject to any state takeover law or similar law that
might otherwise apply to the Merger and any other transactions
contemplated by this Agreement or any Ancillary
-8-
Agreement to which the Company is a party. The execution and
delivery of this Agreement and the Ancillary Agreements to which
the Company is a party, the performance of the Company of its
covenants and obligations hereunder and thereunder, and the
consummation of the transactions contemplated by this Agreement
and such Ancillary Agreements by the Company have been duly
authorized by all necessary corporate action on the part of the
Company, with the consummation of such transactions contemplated
by this Agreement subject only to the required receipt of the
Company Stockholder Approval. This Agreement and each Ancillary
Agreement to which the Company is a party have been duly
executed and delivered by the Company and constitute the valid
and binding obligation of the Company, enforceable against the
Company in accordance with its and their terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to
or affecting creditors’ rights and to general equity
principles (the “Bankruptcy and Equity
Exception”).
(b) The execution and delivery of this Agreement and the
Ancillary Agreements to which the Company is a party by the
Company do not, and the performance by the Company of its
obligations hereunder and under such Ancillary Agreements and
the consummation by the Company of the transactions contemplated
by this Agreement and the Ancillary Agreements to which the
Company is a party shall not, (i) conflict with, or result
in any violation or breach of, any provision of the Certificate
of Incorporation or By-laws of the Company or of the charter,
by-laws, or other organizational document of any Subsidiary of
the Company, (ii) conflict with, or result in any violation
or breach of, or constitute (with or without notice or lapse of
time, or both) a default (or give rise to a right of
termination, modification, cancellation or acceleration of any
obligation or loss of any material benefit) under, require a
consent or waiver under, constitute a change in control under,
require the payment of a penalty under or result in the
imposition of any mortgage, pledge, lien, charge, encumbrance,
option to purchase, lease or otherwise acquire any interest or
security interest (“Lien”) on the
Company’s or any of its Subsidiary’s properties,
rights or assets under, any of the terms, conditions or
provisions of any lease, license, contract or other agreement,
instrument or obligation to which the Company or any of its
Subsidiaries is a party or by which any of them or any of their
properties, rights or assets may be bound, or
(iii) subject, in the case of this Agreement, to obtaining
the Company Stockholder Approval and compliance with the
requirements specified in clauses (i) through (v) of
Section 3.4(c), conflict with or violate any permit,
concession, franchise, license, judgment, injunction, order,
decree, statute, law, ordinance, rule or regulation applicable
to the Company or any of its Subsidiaries or any of its or their
respective properties, rights or assets, except in the case of
clauses (ii) and (iii) of this Section 3.4(b) for
any such conflicts, violations, breaches, defaults,
terminations, modifications, cancellations, accelerations,
losses, penalties or Liens, and for any consents or waivers not
obtained, that, individually or in the aggregate, are not
reasonably likely to have a Company Material Adverse Effect.
(c) No consent, approval, license, permit, order or
authorization of, or registration, declaration, notice or filing
with, any court, arbitrational tribunal, administrative agency
or commission or other governmental or regulatory authority,
agency or instrumentality (a “
Governmental
Entity”) or any stock market or stock exchange on which
shares of Company Common Stock are listed for trading is
required by or with respect to the Company or any of its
Subsidiaries in connection with the execution and delivery by
the Company of this Agreement or any Ancillary Agreement to
which the Company is a party, the performance by the Company of
its obligations hereunder or thereunder or the consummation by
the Company of the transactions contemplated by this Agreement
or such Ancillary Agreements, except for (i) the pre-merger
notification requirements under the
Xxxx-Xxxxx-Xxxxxx
Antitrust Improvements Act of 1976, as amended (the “
HSR
Act”) and any other applicable foreign antitrust law,
(ii) the filing of the Certificate of Merger with the
Delaware Secretary of State and appropriate corresponding
documents with the appropriate authorities of other states in
which the Company is qualified as a foreign corporation to
transact business, (iii) filings required under, and
compliance with the requirements of, the Securities Act and
Exchange Act, (iv) such consents, approvals, orders,
authorizations, registrations, declarations and filings as may
be required under applicable state securities laws, and
(v) such other consents, approvals, licenses, permits,
orders, authorizations, registrations, declarations, notices and
filings which, if not obtained or made, would not be reasonably
likely to have a Company Material Adverse Effect.
(d) The affirmative vote for adoption of the Company Voting
Proposal by the holders of at least a majority of the
outstanding shares of Company Common Stock on the record date
for the meeting of the Company’s stockholders (the
“Company Meeting”) to consider the Company Voting
Proposal (the “Required Company Stockholder Vote”) is
the only vote of the holders of any class or series of the
Company’s capital stock or other
-9-
securities necessary for the adoption of this Agreement and for
the consummation by the Company of the other transactions
contemplated by this Agreement. There are no bonds, debentures,
notes or other indebtedness of the Company having the right to
vote (or convertible into, or exchangeable for, securities
having the right to vote) on any matters on which stockholders
of the Company may vote.
3.5 SEC Filings; Financial Statements; Information
Provided.
(a) The Company has filed all registration statements,
certifications, forms, reports and other documents required to
be filed by the Company with the Securities and Exchange
Commission (the “SEC”) since January 1, 2007. All
such registration statements, certifications, forms, reports and
other documents (including those that the Company may file after
the date hereof until the Closing) are referred to herein as the
“Company SEC Reports.” The Company SEC Reports
(i) were or will be filed on a timely basis, (ii) at
the time filed, complied, or will comply when filed, as to form
in all material respects with the applicable requirements of the
Securities Act, the Exchange Act and the Xxxxxxxx-Xxxxx Act of
2002, as the case may be, and the rules and regulations of the
SEC thereunder applicable to such Company SEC Reports, and
(iii) did not or will not at the time they were or are
filed contain any untrue statement of a material fact or omit to
state a material fact required to be stated or incorporated in
such Company SEC Reports or necessary in order to make the
statements in such Company SEC Reports, in the light of the
circumstances under which made, not misleading. As of the date
of this Agreement, there are no outstanding or unresolved
comments in comment letters received from the SEC. As of the
date of this Agreement, the Company has not received written
notice that any of the Company SEC Reports is the subject of
ongoing SEC review that is still pending. No Subsidiary of the
Company is subject to the reporting requirements of
Section 13(a) or Section 15(d) of the Exchange Act. No
executive officer of the Company has failed to make the
certifications required of him or her under section 302 or
906 of the Xxxxxxxx-Xxxxx Act. Neither the Company nor any of
its executive officers has received written notice from any
Governmental Entity challenging or questioning the accuracy of
such certifications.
(b) Each of the consolidated financial statements
(including, in each case, any related notes and schedules)
contained (or incorporated by reference) or to be contained (or
to be incorporated by reference) in the Company SEC Reports (the
“Financial Statements”) at the time filed
(i) complied or will comply as to form in all material
respects with applicable accounting requirements and the
published rules and regulations of the SEC with respect thereto,
(ii) were or will be prepared in accordance with United
States generally accepted accounting principles
(“GAAP”) applied on a consistent basis throughout the
periods involved (except as may be indicated in the notes to
such Financial Statements or, in the case of unaudited interim
financial statements, as permitted by the SEC on
Form 10-Q
under the Exchange Act), and (iii) fairly presented or will
fairly present in all material respects the consolidated
financial position of the Company and its Subsidiaries as of the
dates indicated and the consolidated results of their operations
and cash flows for the periods indicated, except that the
unaudited interim financial statements were or are subject to
normal and recurring year-end adjustments. Since January 1,
2008, there has been no material change in the Company’s
accounting methods or principles that would be required to be
disclosed in the Company’s Financial Statements in
accordance with GAAP, except as described in the notes to such
Company Financial Statements. There are no unconsolidated
Subsidiaries of the Company or any off-balance sheet
arrangements of any type (including any off-balance sheet
arrangement required to be disclosed pursuant to
Item 303(a)(4) of
Regulation S-K
promulgated under the Securities Act) that have not been so
described in the Company SEC Reports nor any obligations to
enter into any such arrangements. The consolidated, unaudited
balance sheet of the Company as of June 28, 2009 is
referred to herein as the “Company Balance Sheet.”
(c) The proxy statement to be sent to the stockholders of
the Company in connection with the Company Meeting (as amended
or supplemented from time to time, the “Proxy
Statement”) and the
Rule 13E-3
transaction statement on
Schedule 13E-3
relating to the adoption of this Agreement by the stockholders
of the Company (as amended or supplemented from time to time,
the
“Schedule 13E-3”)
shall not, on the date the Proxy Statement (including any
amendment or supplement) is first mailed to stockholders of the
Company or at the time of the Company Meeting, or, in the case
of the
Schedule 13E-3
(including any amendment or supplement or document to be
incorporated by reference), on the date it is filed with the
SEC, contain any statement which, at such time and in light of
the circumstances under which made, is false or misleading with
respect to any material fact, or omit to state any material fact
required to be stated therein or necessary in order to make the
statements made therein not false or misleading in light of the
circumstances under which made; or, with respect to the Proxy
Statement, omit to state
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any material fact required to be stated therein or necessary to
correct any statement in any earlier communication with respect
to the solicitation of proxies for the Company Meeting which has
become false or misleading. The Proxy Statement and the
Schedule 13E-3
will comply as to form in all material respects with the
requirements of the Exchange Act. Notwithstanding the foregoing,
the Company makes no representation or warranty with respect to
information supplied by or on behalf of the Buyer or the
Transitory Subsidiary for inclusion or incorporation by
reference in the Proxy Statement or the
Schedule 13E-3.
If at any time prior to the Company Meeting any fact or event
relating to the Company or any of its Affiliates which should be
set forth in an amendment or supplement to the Proxy Statement
or the
Schedule 13E-3
should be discovered by the Company or should occur, the Company
shall, promptly after becoming aware thereof, inform the Buyer
of such fact or event.
(d) The Company has implemented disclosure controls and
procedures (as defined in
Rule 13a-15(e)
of the Exchange Act) that are reasonably designed to ensure that
material information relating to the Company, including its
Subsidiaries, required to be included in reports filed under the
Exchange Act is made known to the chief executive officer and
chief financial officer of the Company by others within those
entities. Neither the Company nor, to the Company’s
Knowledge, the Company’s independent registered public
accounting firm, has identified or been made aware of
“significant deficiencies” or “material
weaknesses” (as defined by the Public Company Accounting
Oversight Board) in the design or operation of the
Company’s internal controls and procedures which could
reasonably adversely affect the Company’s ability to
record, process, summarize and report financial data, in each
case which has not been subsequently remediated. To the
Company’s Knowledge, there is no fraud, whether or not
material, that involves the Company’s management or other
employees who have a significant role in the preparation of
financial statements or the internal control over financial
reporting utilized by the Company and its Subsidiaries. As of
the date hereof, neither the Company nor any of its Subsidiaries
has outstanding, “extensions of credit” to directors
or executive officers of the Company within the meaning of
Section 402 of the Xxxxxxxx-Xxxxx Act of 2002. The Company
is in compliance with the applicable listing and other rules and
regulations of The Nasdaq Global Market.
3.6 No Undisclosed
Liabilities. Except (i) as disclosed in the
Company Balance Sheet, (ii) for contractual liabilities or
liabilities, in each case incurred in the ordinary course of
business consistent in all material respects with past practice
(the “Ordinary Course of Business”) after the date of
the Company Balance Sheet and (iii) for liabilities
incurred in accordance with this Agreement, the Company and its
Subsidiaries do not have any liabilities (whether accrued,
absolute, contingent or otherwise) of any nature, either matured
or unmatured that, individually or in the aggregate, are
reasonably likely to have a Company Material Adverse Effect.
3.7 Absence of Certain Changes or
Events. Since December 28, 2008, there has
not been a Company Material Adverse Effect. Since the date of
the Company Balance Sheet, (a) the Company and its
Subsidiaries have conducted their respective businesses only in
the Ordinary Course of Business and (b) there has not been
any other action or event that would have required the consent
of the Buyer or be prohibited under Section 5.1 of this
Agreement (other than paragraphs (b), (k) and (l) of
Section 5.1) had such action or event occurred after the
date of this Agreement.
3.8 Taxes.
(a) Each of the Company and its Subsidiaries has filed all
material Tax Returns that it was required to file, and all such
Tax Returns were correct and complete in all material respects.
(b) Each of the Company and its Subsidiaries has paid on a
timely basis all Taxes due and payable, whether or not shown to
be due on any such Tax Return or, where payment is not yet due,
has made adequate provision for all Taxes in the Financial
Statements of the Company in accordance with GAAP. For purposes
of this Agreement, (i) “Taxes” means all
taxes, charges, fees, levies or other similar assessments or
liabilities, including income, gross receipts, ad valorem,
premium, value-added, excise, real property, personal property,
sales, use, services, transfer, withholding, employment, payroll
and franchise taxes imposed by the United States of America or
any state, local or foreign government, or any agency thereof,
or other political subdivision of the United States or any such
government, and any interest, fines, penalties, assessments or
additions to tax resulting from, attributable to or incurred in
connection with any tax or any contest or dispute thereof and
(ii) “Tax Returns” means all reports,
returns, declarations, statements or other information required
to be supplied to a taxing authority in connection with Taxes.
-11-
(c) The Company has made available to the Buyer correct and
complete copies of all federal income and other material Tax
Returns, examination reports and statements of deficiencies
assessed against or agreed to by the Company or any of its
Subsidiaries since January 1, 2005. The federal income Tax
Returns of the Company and each of its Subsidiaries have been
audited by the Internal Revenue Service (the
“IRS”) or are closed by the applicable statute
of limitations for all taxable years through the taxable year
specified in Section 3.8(c) of the Company Disclosure
Schedule. No material examination or audit of any Tax Return of
the Company or any of its Subsidiaries by any Governmental
Entity is currently in progress or, to the Company’s
Knowledge, threatened or contemplated and there is no
outstanding assessment, dispute or claim concerning any material
Tax liability of the Company or any of its Subsidiaries.
(d) Neither the Company nor any of its Subsidiaries will be
required to include any item of income in, or exclude any item
of deduction from, taxable income for any taxable period or
portion thereof ending after the Closing Date as a result of any
change in the method of accounting for a taxable period or
portion thereof ending on or prior to the Closing Date,
“closing agreement” as described in Section 7121
of the Code (or any corresponding or similar provision of state,
local or foreign income Tax law) executed on or prior to the
Closing Date, or material prepaid amount received on or prior to
the Closing Date.
(e) Neither the Company nor any of its Subsidiaries:
(i) has made any payments, is obligated to make any
payments, or is a party to any agreement that could obligate it
to make any payments that will be treated as an “excess
parachute payment” under Section 280G of the Code; or
(ii) has any actual or potential liability for any Taxes of
any person (other than the Company and its Subsidiaries) under
Treasury
Regulation Section 1.1502-6
(or any similar provision of law in any jurisdiction), or as a
transferee or successor, by contract or otherwise.
(f) Neither the Company nor any of its Subsidiaries
(i) is or has ever been a member of a group of corporations
with which it has filed (or been required to file) consolidated,
combined or unitary Tax Returns, other than a group of which
only the Company and its Subsidiaries are or were members or
(ii) is a party to or bound by or has any continuing
obligation under any Tax indemnity, Tax sharing or Tax
allocation agreement.
(g) All Taxes required to be withheld, collected or
deposited by or with respect to the Company and each of its
Subsidiaries have been timely withheld, collected or deposited
as the case may be, and, to the extent required, have been paid
to the relevant taxing authority.
(h) Neither the Company nor any of its Subsidiaries has
been either a “distributing corporation” or a
“controlled corporation” in a distribution occurring
during the last two (2) years in which the parties to such
distribution treated the distribution as one to which
Section 355 of the Code is applicable.
(i) Neither the Company nor any of its Subsidiaries has
entered into a “listed transaction” that has given
rise to a disclosure obligation under Section 6011 of the
Code and the Treasury Regulations promulgated thereunder, and
there are no Tax Liens upon any of the assets or properties of
the Company or any of its Subsidiaries.
3.9 Owned and Leased Real Properties.
(a) Neither the Company nor any of its Subsidiaries owns
any real property.
(b) Section 3.9(b) of the Company Disclosure Schedule
sets forth a complete and accurate list as of the date of this
Agreement of all material real property leased, subleased or
licensed to or by the Company or any of its Subsidiaries,
whether as sublandlord, tenant or subtenant, (collectively
“Company Leases”) and the location of the premises.
Each of the Company Leases is a valid and binding obligation of
the Company or one of its Subsidiaries, enforceable in
accordance with its terms. Neither the Company nor any of its
Subsidiaries nor, to the Company’s Knowledge, any other
party to any Company Lease is in default under any of the
Company Leases, except where the existence of such defaults,
individually or in the aggregate, has not had and is not
reasonably likely to have a Company Material Adverse Effect.
Neither the Company nor any of its Subsidiaries leases,
subleases or licenses any real property to any person other than
the Company and its Subsidiaries. The Company has made available
to the Buyer complete and accurate copies of all Company Leases.
-12-
3.10 Intellectual Property.
(a) The Company and its Subsidiaries own, license,
sublicense or otherwise possess legally enforceable rights to
use, free and clear of all Liens, all Intellectual Property
necessary to conduct the business of the Company and its
Subsidiaries as currently conducted, the absence of which,
individually or in the aggregate, is not reasonably likely to
have a Company Material Adverse Effect. For purposes of this
Agreement, the term “Intellectual Property”
means all intellectual and industrial property rights, including
(i) patents, trademarks, service marks, trade names, domain
names, other source indicators, copyrights, designs and trade
secrets, (ii) applications for and registrations of such
patents, trademarks, service marks, trade names, domain names,
other source indicators, copyrights and designs,
(iii) processes, formulae, methods, schematics, technology,
know-how, computer software programs and applications (including
source and object code) and systems and (iv) other tangible
or intangible proprietary or confidential information and
materials.
(b) The execution and delivery of this Agreement by the
Company and the consummation by the Company of the transactions
contemplated hereby will not result in the breach of, or create
on behalf of any third party the right to terminate, accelerate
or modify, (i) any license, sublicense or other agreement
relating to any Intellectual Property owned by the Company that
is material to the business of the Company and its Subsidiaries,
taken as a whole (the “Company Intellectual
Property”), or (ii) any license, sublicense and
other agreement as to which the Company or any of its
Subsidiaries is a party and pursuant to which the Company or any
of its Subsidiaries is authorized to use any third party
Intellectual Property that is material to the business of the
Company and its Subsidiaries, taken as a whole, excluding
generally commercially available, off-the-shelf software
licenses with less than $100,000 in annual license fees (the
“Third Party Intellectual Property”).
Section 3.10(b)(i) of the Company Disclosure Schedule sets
forth a complete and accurate list of all patents and patent
applications and trademark registrations and applications,
copyright registrations and domain names owned by the Company or
its Subsidiaries and Section 3.10(b)(ii) of the Company
Disclosure Schedule sets forth a complete and accurate list of
all licenses for Third Party Intellectual Property.
(c) All patents and applications and registrations for
patents, trademarks, service marks and copyrights which are held
by the Company or any of its Subsidiaries and which are material
to the business of the Company and its Subsidiaries, taken as a
whole, as currently conducted, are subsisting. No patent or
applications and registrations for patents, trademarks, service
marks or copyrights have unintentionally expired or been
abandoned or cancelled and, to the Company’s Knowledge,
there are no claims challenging the validity or enforceability
of the Company Intellectual Property. To the Company’s
Knowledge, no third party is infringing, violating or
misappropriating any of the Company Intellectual Property,
except for infringements, violations or misappropriations that,
individually or in the aggregate, are not reasonably likely to
have a Company Material Adverse Effect.
(d) The conduct of the business of the Company and its
Subsidiaries as currently conducted does not infringe, violate
or constitute a misappropriation of any Intellectual Property of
any third party, except for such infringements, violations and
misappropriations that, individually or in the aggregate, are
not reasonably likely to have a Company Material Adverse Effect.
Since January 1, 2005, neither the Company nor any of its
Subsidiaries has received any written claim or notice (including
cease and desist letters or invitations to take a patent
license) alleging any infringement, violation or
misappropriation of any Intellectual Property.
(e) None of the software that is distributed or made
available to others by the Company incorporates or is derived
from any software subject to an “open source” or
similar license that requires the licensing or distribution of
its source code to others. No source code for the Company’s
software has been deposited in escrow, and none of the
Company’s source code has been made available to any third
party except for such disclosures that, individually or in the
aggregate, are not reasonably likely to have a Company Material
Adverse Effect.
(f) Except as would not, individually or in the aggregate,
be reasonably likely to have a Company Material Adverse Effect:
(i) the Company and its Subsidiaries have taken
commercially reasonable steps to protect and maintain
(x) their confidential information and trade secrets,
(y) their sole ownership of material proprietary
Intellectual Property (including by entering into Intellectual
Property assignment agreements with all persons who have created
or contributed to material proprietary Intellectual Property)
and (z) the security and integrity of their material
systems and software; and (ii) to the Company’s
Knowledge, all software and systems owned or used by the
-13-
Company or its Subsidiaries are (x) free from any material
defect, bug, virus, error or corruptant, and (y) fully
functional and operate and run in a reasonable and efficient
business manner.
3.11 Contracts.
(a) Section 3.11(a) of the Company Disclosure Schedule
sets forth a complete and accurate list of all contracts and
agreements to which the Company or any of its Subsidiaries is a
party as of the date of this Agreement that are material to the
business, financial condition or results of operations of the
Company and its Subsidiaries, taken as a whole, including
without limitation (collectively, the “Company Material
Contracts”):
(i) any agreement, contract or commitment in connection
with which or pursuant to which the Company and its Subsidiaries
will spend or receive (or are expected to spend or receive), in
the aggregate, more than $100,000 during the current fiscal year
or during the next fiscal year;
(ii) any non-competition or other agreement that prohibits
or otherwise restricts in any material respect, the Company or
any of its Subsidiaries or Affiliates from freely engaging in
business anywhere in the world (including any agreement
restricting the Company or any of its Subsidiaries or Affiliates
from competing in any line of business or in any geographic area
or that grants to any party most-favored-nation or similar
rights);
(iii) any “material contract” (as such term is
defined in Item 601(b)(10) of
Regulation S-K
of the SEC) with respect to the Company and its Subsidiaries;
(iv) any agreement relating to Intellectual Property that
is material to the business of the Company and its Subsidiaries,
taken as a whole, (excluding generally commercially available,
off-the-shelf software licenses with less than $100,000 in
annual license fees);
(v) any contract (A) relating to the disposition or
acquisition by the Company or any of its Subsidiaries after the
date of this Agreement of a material amount of assets other than
in the Ordinary Course of Business, or (B) pursuant to
which the Company or any of its Subsidiaries will acquire after
the date of this Agreement any material ownership interest in
any other Person or other business enterprise other than the
Company’s Subsidiaries;
(vi) any mortgages, indentures, guarantees, loans or credit
agreements, security agreements or other contracts relating to
the borrowing of money, extension of credit, surety bonds or
guarantees of indebtedness in each case in excess of $100,000
other than (A) accounts receivables and payables, and
(B) loans to direct or indirect wholly-owned Subsidiaries,
in each case in the Ordinary Course of Business;
(vii) any contract that involves any material joint
venture, partnership or similar arrangement;
(viii) any contract or agreement that would obligate the
Company or any of its Subsidiaries to file a registration
statement under the Securities Act, which filing has not yet
been made;
(ix) any agreement that involves, other than sales or
repurchases of inventory in the Ordinary Course of Business,
acquisitions or dispositions, directly or indirectly (by merger
or otherwise), of assets or capital stock or other voting
securities or equity interests of another person or the Company
or any of its Subsidiaries (A) for aggregate consideration
in excess of $200,000 or (B) that involves continuing or
contingent obligations of the Company or any of its Subsidiaries
that are material to the Company and its Subsidiaries taken as a
whole or is not yet consummated; and
(x) any agreement that relates to any material settlement,
other than (A) releases immaterial in nature or amount
entered into with former employees or independent contractors of
the Company in the Ordinary Course of Business in connection
with the routine cessation of such employee’s or
independent contractor’s employment with the Company,
(B) settlement agreements for cash only (which has been
paid) and does not exceed $200,000 as to such settlement or
(C) settlement agreements entered into more than one year
prior to the date of this Agreement under which neither the
Company nor any of its Subsidiaries has any continuing material
obligations, liabilities or rights (excluding releases).
(b) Each Company Material Contract is valid and binding on
the Company (and/or each such Subsidiary of the Company party
thereto) and, to the Company’s Knowledge, each other party
thereto, and is in full force and effect
-14-
except to the extent it has previously expired in accordance
with its terms or where the failure to be in full force and
effect, individually or in the aggregate, is not reasonably
likely to have a Company Material Adverse Effect. Neither the
Company nor any of its Subsidiaries nor, to the Company’s
Knowledge, any other party to any Company Material Contract is
or is alleged in writing to be in violation or breach of or in
default under any Company Material Contract (nor does there
exist any condition which, upon the passage of time or the
giving of notice or both, would cause such a violation or breach
of or default under any Company Material Contract), except for
violations, breaches or defaults that, individually or in the
aggregate, are not reasonably likely to have a Company Material
Adverse Effect. Neither the Company nor any of its Subsidiaries
has received notice in writing that any party which is currently
doing business with the Company or any of its Subsidiaries
intends to terminate, limit or restrict its relationship with
the Company or any of its Subsidiaries. The Company has made
available to the Buyer a complete and accurate copy of each
Company Material Contract.
(c) Neither the Company nor any of its Subsidiaries has
entered into any transaction, agreement, arrangement or
understanding with any Affiliate (including any director or
officer) of the Company or any of its Subsidiaries or any
transaction that would be subject to disclosure pursuant to
Item 404 of
Regulation S-K.
3.12 Litigation. There is no
action, suit, proceeding, claim, demand, arbitration, charge or
investigation (collectively “Actions”) pending
or, to the Company’s Knowledge, threatened against the
Company or any of its Subsidiaries or any of their securities,
rights, assets or properties that, individually or in the
aggregate, if adversely determined, would reasonably be expected
to have a Company Material Adverse Effect. There are no material
judgments, rulings, orders, decrees, writs or injunctions
outstanding against the Company or any of its Subsidiaries or to
which the Company or any of its Subsidiaries are subject.
3.13 Environmental Matters.
(a) Except for matters that, individually or in the
aggregate, would not reasonably be expected to have a Company
Material Adverse Effect: (i) the Company and each of its
Subsidiaries is in compliance with all, and has not violated
any, applicable Environment Laws; (ii) neither the Company
nor any of its Subsidiaries is subject to any Action relating to
any Environmental Law, and to the Company’s Knowledge, no
such Action against the Company or any of its Subsidiaries is
threatened; (iii) neither the Company nor any of its
Subsidiaries has, since January 1, 2005, received any
written notice alleging any of them is not in compliance with
applicable Environmental Laws or is subject to liability
relating to any Environmental Law; (iv) Hazardous
Substances are not present at and have not been disposed of,
arranged to be disposed of, transported, released or threatened
to be released at or from any of the properties or facilities
currently or formerly owned, leased or operated by the Company
or any of its Subsidiaries in violation of, or in a condition or
a manner or to a location that would reasonably be expected to
give rise to liability to the Company or any of its Subsidiaries
under or relating to, any Environmental Law; and
(v) neither the Company nor any of its Subsidiaries has
contractually assumed or provided indemnity against any
liability of any other person or entity relating to any
Environmental Laws.
(b) For purposes of this Agreement, the term
“Environmental Law” means any law, regulation, rule,
common law, order, decree or permit requirement of any
governmental jurisdiction relating to: (i) the protection,
investigation or restoration of the environment, human health
and safety, or natural resources, (ii) the handling, use,
storage, treatment, transport, disposal, release or threatened
release of any Hazardous Substance or (iii) noise, odor or
wetlands protection.
(c) For purposes of this Agreement, the term
“Hazardous Substance” means: (i) any
substance that is regulated or which falls within the definition
of a “pollutant,” “contaminant,”
“waste,” “hazardous substance,”
“hazardous waste” or “hazardous material”
pursuant to any Environmental Law, (ii) any petroleum,
petroleum product or by-product, asbestos-containing material,
polychlorinated biphenyls, radioactive materials or radon, or
(iii) any substance or material that would otherwise
reasonably be expected to result in liability under any
applicable Environmental Law.
(d) The parties agree that the only representations and
warranties of the Company in this Agreement as to any
Environmental Law or Hazardous Substance or any obligations or
liabilities related to any Environmental Law or Hazardous
Substance are those contained in this Section 3.13 and
Sections 3.4, 3.6, 3.11 and 3.16 hereof. Without
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limiting the generality of the foregoing, the Buyer specifically
acknowledges that the representations and warranties contained
in Section 3.15 do not relate to Environmental Laws or
Hazardous Substances.
3.14 Employee Benefit Plans.
(a) Section 3.14(a) of the Company Disclosure Schedule
sets forth a complete and accurate list as of the date of this
Agreement of all Employee Benefit Plans maintained, or
contributed to, by the Company, any of the Company’s
Subsidiaries or any of their ERISA Affiliates (together, the
“Company Employee Plans”). For purposes of this
Agreement, the following terms shall have the following
meanings: (i) “Employee Benefit Plan”
means any “employee pension benefit plan” (as defined
in Section 3(2) of ERISA), any “employee welfare
benefit plan” (as defined in Section 3(1) of ERISA),
and any other written or oral plan, agreement or arrangement
involving direct or indirect compensation, insurance coverage,
severance benefits, disability benefits, fringe benefits,
employee loan, employment, change in control, deferred
compensation, bonuses, stock options, stock purchase, restricted
stock unit, stock appreciation or other forms of incentive
compensation or post-retirement compensation and all unexpired
severance agreements, for the benefit of, or relating to, any
current or former employee, director or consultant of the
Company or any of its Subsidiaries or an ERISA Affiliate;
(ii) “ERISA” means the Employee Retirement
Income Security Act of 1974, as amended; and
(iii) “ERISA Affiliate” means any entity
which is a member of (A) a controlled group of corporations
(as defined in Section 414(b) of the Code), (B) a
group of trades or businesses under common control (as defined
in Section 414(c) of the Code), or (C) an affiliated
service group (as defined under Section 414(m) of the Code
or the regulations under Section 414(o) of the Code), any
of which includes or included the Company or a Subsidiary of the
Company.
(b) With respect to each Company Employee Plan, the Company
has made available to the Buyer a complete and accurate copy of
(i) such Company Employee Plan, (ii) the most recent
annual report (Form 5500) filed with the IRS and
(iii) each trust agreement, group annuity contract and
summary plan description, if any, relating to such Company
Employee Plan.
(c) Each Company Employee Plan is being administered in
accordance with ERISA, the Code and all other applicable laws
and the regulations thereunder and in accordance with its terms
except for failures to comply or violations that, individually
or in the aggregate, are not reasonably likely to have a Company
Material Adverse Effect.
(d) All the Company Employee Plans that are intended to be
qualified under Section 401(a) of the Code have received
determination letters from the IRS to the effect that such
Company Employee Plans are qualified and the plans and trusts
related thereto are exempt from federal income taxes under
Sections 401(a) and 501(a), respectively, of the Code, no
such determination letter has been revoked and revocation has
not been threatened.
(e) Neither the Company, any of the Company’s
Subsidiaries nor any of their ERISA Affiliates has (i) ever
maintained an “employee pension benefit plan” (as
defined in Section 3(2) of ERISA) which was ever subject to
Section 412 of the Code or Title IV of ERISA or
(ii) ever been obligated to contribute to a
“multiemployer plan” (as defined in
Section 4001(a)(3) of ERISA).
(f) Neither the Company nor any of its Subsidiaries is a
party to any (i) agreement with any current or former
stockholder, director, executive officer or other employee or
consultant of the Company or any of its Subsidiaries
(A) the benefits of which are contingent, or the terms of
which are materially altered, upon the occurrence of a
transaction involving the Company or any of its Subsidiaries of
the nature of any of the transactions contemplated by this
Agreement, (B) providing any term of employment or
compensation guarantee or (C) providing severance benefits
or other benefits after the termination of employment of such
director, executive officer, consultant or key employee; or
(ii) agreement or plan binding the Company or any of its
Subsidiaries, including any stock option plan, stock
appreciation right plan, restricted stock plan, stock purchase
plan or severance benefit plan, any of the benefits of which
shall be increased, or the vesting of the benefits of which
shall be accelerated, by the occurrence of any of the
transactions contemplated by this Agreement or the value of any
of the benefits of which shall be calculated on the basis of any
of the transactions contemplated by this Agreement. No Company
Employee Plan exists and there are no other contracts, plans or
arrangements (written or otherwise) covering any current or
former stockholder, director, executive officer or other
employee or consultant of the Company or any of its Subsidiaries
that, individually or collectively, as a result of the execution
of this Agreement or the transactions contemplated
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hereunder (whether alone or in connection with any other
events), would reasonably be expected to result in any payments
which would result in the loss of a deduction under
Section 280G of the Code or which would be subject to an
excise tax under Section 4999 of the Code.
(g) Neither the Company nor any of its Subsidiaries has any
direct or indirect liability, whether absolute or contingent,
with respect to any misclassification of any person as an
independent contractor rather than as an employee, or with
respect to any employee leased from another employer.
(h) None of the Company Employee Plans promises or provides
retiree medical or other retiree welfare benefits to any person,
except as required by applicable law.
3.15 Compliance With Laws. The
Company and each of its Subsidiaries is in compliance with, is
not in violation of, and, since January 1, 2008, has not
received any written notice alleging any violation with respect
to, any applicable statute, law, order or regulation with
respect to the conduct of its business, or the ownership or
operation of its properties, rights or assets, except for
failures to comply or violations that, individually or in the
aggregate, are not reasonably likely to have a Company Material
Adverse Effect.
3.16 Permits. The Company and each
of its Subsidiaries have all permits, licenses, franchises,
governmental consents, registrations, orders, grants or other
authorizations of Governmental Entities (collectively,
“Permits”) required to conduct their businesses
as now being conducted, except for such Permits the absence of
which, individually or in the aggregate, is not reasonably
likely to have a Company Material Adverse Effect. The Company
and each of its Subsidiaries are in compliance with the terms of
the Permits, except for such failures to comply that,
individually or in the aggregate, are not reasonably likely to
have a Company Material Adverse Effect.
3.17 Labor
Matters. Section 3.17 of the Company
Disclosure Schedule contains a list as of the date of this
Agreement of all employees of the Company and each of its
Subsidiaries whose annual rate of base compensation exceeds
$75,000 per year, along with the position and the annual rate of
base compensation of each such person. The Company is not a
party to or subject to, and is not currently negotiating in
connection with entering into, any collective bargaining
agreement or other contract or understanding with a labor union
or organization. Neither the Company nor any of its Subsidiaries
is the subject of any proceeding asserting that the Company or
any of its Subsidiaries has committed an unfair labor practice
or is seeking to compel the Company or any of its Subsidiaries
to bargain with any labor union or labor organization that,
individually or in the aggregate, is reasonably likely to have a
Company Material Adverse Effect. There are no pending or, to the
Company’s Knowledge, threatened labor strikes, disputes,
walkouts, work stoppages, slow-downs or lockouts involving the
Company or any of its Subsidiaries that, individually or in the
aggregate, are reasonably likely to have a Company Material
Adverse Effect. The Company and each of its Subsidiaries is in
compliance with all applicable laws respecting employment and
employment practices, terms and conditions of employment and
wages and hours except for any noncompliance that, individually
or in the aggregate, has not had and would not reasonably be
expected to have a Company Material Adverse Effect. Neither the
Company nor any of its Subsidiaries has incurred any liability
or obligation under the Worker Adjustment and Retraining
Notification Act (“WARN”) or similar laws or
regulations of any jurisdiction within the last six months which
remains unsatisfied.
3.18 Insurance. Each of the Company
and its Subsidiaries maintains insurance policies with reputable
insurance carriers against all risks of a character and in such
amounts as are usually insured against by similarly situated
companies in the same or similar businesses and sufficient to
comply with applicable law. All such insurance policies are in
full force and effect, no notice of cancellation or modification
has been received, and there is no existing default or event
which, with the giving of notice or lapse of time or both, would
constitute a default, by any insured thereunder, except for such
defaults that would not be reasonably expected to have,
individually or in the aggregate, a Company Material Adverse
Effect. There is no material claim pending under any of such
policies as to which coverage has been questioned, denied or
disputed by the underwriters of such policies and there has been
no threatened termination of, or material premium increase with
respect to, any such policies.
3.19 Opinion of Financial
Advisor. The financial advisor to the Special
Committee of the Board of Directors of the Company, Xxxxxxx,
Xxxxx & Co., has delivered to the Special Committee an
opinion, dated the date of this Agreement, to the effect that,
as of such date and based upon and subject to the limitations
and assumptions set forth therein, the $7.65 in cash per share
of Company Common Stock to be paid to the holders
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(other than such holders party to the Rollover Commitment
Letters) of shares of Company Common Stock pursuant to this
Agreement is fair to such holders from a financial point of
view. The Company shall deliver an executed copy of such opinion
to the Buyer promptly following receipt of such opinion in
written form.
3.20 Section 203 of the
DGCL. The Company Board has taken all actions
necessary so that the restrictions contained in Section 203
of the DGCL applicable to a “business combination” (as
defined in Section 203) shall not apply to the
execution, delivery or performance of this Agreement, any of the
Ancillary Agreements or the consummation of the Merger or the
other transactions contemplated by this Agreement or any of the
Ancillary Agreements. No other state anti-takeover statute
applies to the Company as a result of the transactions
contemplated hereby or any of the Ancillary Agreements,
including the Merger.
3.21 Brokers. No agent, broker,
investment banker, financial advisor or other firm or person is
or shall be entitled, as a result of any action, agreement or
commitment of the Company or any of its Affiliates, to any
broker’s, finder’s, investment banking, financial
advisor’s or other similar fee or commission in connection
with any of the transactions contemplated by this Agreement,
except for those persons identified on Section 3.21 of the
Company Disclosure Schedule whose fees and expenses shall be
paid by the Company. The Company has made available to the Buyer
a complete and accurate copy of all agreements pursuant to which
any person identified on Section 3.21 of the Company
Disclosure Schedule is entitled to any fees and expenses in
connection with any of the transactions contemplated by this
Agreement.
3.22 No Other Information. The
Company acknowledges that neither the Buyer, the Transitory
Subsidiary nor any of their Affiliates or Representatives make
any representations or warranties as to any matter whatsoever
except as expressly set forth in Article IV of this
Agreement. The representations and warranties set forth in
Article IV of this Agreement are made solely by the Buyer
and the Transitory Subsidiary, and the Company will have no
recourse against any Representative of the Buyer or the
Transitory Subsidiary including any former, current or future
general or limited partner, member, officer, employee or
stockholder of the Buyer or any of its Affiliates in connection
with or arising out of the transactions contemplated by this
Agreement, except as may be expressly set forth in this
Agreement.
ARTICLE IV
REPRESENTATIONS
AND WARRANTIES OF THE BUYER AND THE
TRANSITORY
SUBSIDIARY
The Buyer and the Transitory Subsidiary represent and warrant to
the Company that the statements contained in this
Article IV are true and correct, except as set forth in the
corresponding section of the disclosure schedule delivered by
the Buyer and the Transitory Subsidiary to the Company and dated
as of the date of this Agreement (the “Buyer Disclosure
Schedule”).
4.1 Organization, Standing and
Power. Each of the Buyer and the Transitory
Subsidiary is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization,
has all requisite organizational power and authority to own,
lease and operate its properties and assets and to carry on its
business as now being conducted, and is duly qualified to do
business and, where applicable as a legal concept, is in good
standing as a foreign entity in each jurisdiction in which the
character of the properties it owns, operates or leases or the
nature of its activities makes such qualification necessary,
except for such failures to be so organized, qualified or in
good standing, individually or in the aggregate, that are not
reasonably likely to have a Buyer Material Adverse Effect. For
purposes of this Agreement, the term “Buyer Material
Adverse Effect” means any Effect that would individually or
in the aggregate, prevent or materially delay or materially
impair the ability of the Buyer or the Transitory Subsidiary to
consummate the transactions contemplated by this Agreement.
4.2 Authority; No Conflict; Required Filings and
Consents.
(a) Each of the Buyer and the Transitory Subsidiary has all
requisite organizational power and authority to enter into,
execute and deliver this Agreement and each Ancillary Agreement
to which it is a party, to perform its obligations hereunder and
thereunder and to consummate the transactions contemplated by
this Agreement and such Ancillary Agreements. The execution and
delivery of this Agreement and the Ancillary Agreements to which
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the Buyer or the Transitory Subsidiary is a party, the
performance of each of the Buyer and the Transitory Subsidiary
of its covenants and obligations hereunder and thereunder and
the consummation of the transactions contemplated by this
Agreement and such Ancillary Agreements by the Buyer and the
Transitory Subsidiary have been duly authorized by all necessary
organizational action on the part of each of the Buyer and the
Transitory Subsidiary other than adoption of this Agreement by
the Buyer in its capacity as sole stockholder of Transitory
Subsidiary (the Buyer hereby agreeing to adopt this Agreement in
its capacity as sole stockholder of Transitory Subsidiary as
soon as practicable after the execution hereof). This Agreement
and each Ancillary Agreement to which the Buyer or Transitory
Subsidiary is a party have been duly executed and delivered by
each of the Buyer and the Transitory Subsidiary and constitute
the valid and binding obligation of each of the Buyer and the
Transitory Subsidiary, enforceable against each of them in
accordance with its and their terms, subject to the Bankruptcy
and Equity Exception.
(b) The execution and delivery of this Agreement and the
Ancillary Agreements to which the Buyer or the Transitory
Subsidiary is a party by each of the Buyer and the Transitory
Subsidiary do not, and the performance of each the Buyer and the
Transitory Subsidiary of its obligations hereunder and under
such Ancillary Agreements and the consummation by the Buyer and
the Transitory Subsidiary of the transactions contemplated by
this Agreement and such Ancillary Agreements shall not,
(i) conflict with, or result in any violation or breach of,
any provision of the Certificate of Incorporation or By-laws of
the Transitory Subsidiary or similar charter documents of the
Buyer, (ii) conflict with, or result in any violation or
breach of, or constitute (with or without notice or lapse of
time, or both) a default (or give rise to a right of
termination, modification, cancellation or acceleration of any
obligation or loss of any material benefit) under, require a
consent or waiver under, constitute a change in control under,
require the payment of a penalty under or result in the
imposition of any Lien on the Buyer’s or the Transitory
Subsidiary’s properties, rights or assets under, any of the
terms, conditions or provisions of any lease, license, contract
or other agreement, instrument or obligation to which the Buyer
or the Transitory Subsidiary is a party or by which any of them
or any of their properties, rights or assets may be bound, or
(iii) subject to compliance with the requirements specified
in clauses (i) and (ii) of Section 4.2(c),
conflict with or violate any permit, concession, franchise,
license, judgment, injunction, order, decree, statute, law,
ordinance, rule or regulation applicable to the Buyer or the
Transitory Subsidiary or any of its or their respective
properties, rights or assets, except in the case of
clauses (ii) and (iii) of this Section 4.2(b) for
any such conflicts, violations, breaches, defaults,
terminations, modifications, cancellations, accelerations,
losses, penalties or Liens, and for any consents or waivers not
obtained, that, individually or in the aggregate, are not
reasonably likely to have a Buyer Material Adverse Effect.
(c) No consent, approval, license, permit, order or
authorization of, or registration, declaration, notice or filing
with, any Governmental Entity or any stock market or stock
exchange on which shares of its capital stock are listed for
trading is required by or with respect to the Buyer or the
Transitory Subsidiary in connection with the execution and
delivery by the Buyer and the Transitory Subsidiary of this
Agreement or any Ancillary Agreement to which the Buyer or the
Transitory Subsidiary is a party or the consummation by the
Buyer or the Transitory Subsidiary of the transactions
contemplated by this Agreement or such Ancillary Agreements,
except for (i) the pre-merger notification requirements
under the HSR Act and any other applicable foreign antitrust
law, (ii) the filing of the Certificate of Merger with the
Delaware Secretary of State and appropriate corresponding
documents with the appropriate authorities of other states in
which the Company is qualified as a foreign corporation to
transact business and (iii) filings required under, and
compliance with the requirements of, the Securities Act and
Exchange Act.
(d) No vote of the holders of any class or series of the
Buyer’s equity securities or other securities is necessary
for the consummation by the Buyer of the transactions
contemplated by this Agreement.
4.3 SEC Filings; Information Provided.
(a) Neither the Buyer nor any subsidiary or parent of the
Buyer (other than portfolio companies of the Buyer or parent of
the Buyer not participating in the Merger) is subject to the
reporting requirements of Section 13(a) or
Section 15(d) of the Exchange Act.
(b) The information to be supplied by or on behalf of the
Buyer for inclusion in the Proxy Statement (including any
amendment or supplement) to be sent to the stockholders of the
Company in connection with the Company Meeting or in the
Schedule 13E-3
(including any amendment or supplement) shall not, on the date
the Proxy
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Statement (including any amendment or supplement) is first
mailed to stockholders of the Company or at the time of the
Company Meeting, or, in the case of the
Schedule 13E-3
(including any amendment or supplement), on the date it is filed
with the SEC, contain any statement which, at such time and in
light of the circumstances under which it shall be made, is
false or misleading with respect to any material fact, or omit
to state any material fact required to be stated therein or
necessary in order to make the statements made therein not false
or misleading in light of the circumstances under which made;
or, with respect to the Proxy Statement, omit to state any
material fact required to be stated therein or necessary to
correct any statement in any earlier communication with respect
to the solicitation of proxies for the Company Meeting which has
become false or misleading. If at any time prior to the Company
Meeting any fact or event relating to the Buyer or any of its
Affiliates which should be set forth in an amendment or
supplement to the Proxy Statement or the
Schedule 13E-3
should be discovered by the Buyer or should occur, the Buyer
shall, promptly after becoming aware thereof, inform the Company
of such fact or event.
4.4 Operations of the Transitory
Subsidiary. The Transitory Subsidiary was formed
solely for the purpose of engaging in the transactions
contemplated by this Agreement, has engaged in no other business
activities and has conducted its operations only as contemplated
by this Agreement.
4.5 Financing.
(a) The Buyer has delivered to the Company complete and
correct copies of (i) a fully executed commitment letter
from GSO Capital Partners LP (“GSO”) including
the term sheets attached thereto (the “Debt Commitment
Letter”), pursuant to which such financial institution
has committed (on behalf of certain funds managed by GSO), upon
the terms and subject to the conditions set forth therein, to
provide debt financing in an amount up to $170 million in
connection with the transactions contemplated by this Agreement;
and (ii) a fully executed commitment letter from S.A.C.
Capital Management, LLC (the “Investor”) (the
“Equity Commitment Letter”), pursuant to which
the Investor has committed that it
and/or its
affiliates or designated co-investors will, upon the terms and
subject only to the conditions set forth therein, provide equity
financing in the aggregate amount of $103.1 million in
connection with the transactions contemplated by this Agreement.
The Debt Commitment Letter and the Equity Commitment Letter are
hereinafter referred to collectively as the “Commitment
Letters.” The financing contemplated pursuant to the
Debt Commitment Letter is hereinafter referred to as the
“Debt Financing” and the financing contemplated
pursuant to the Equity Commitment Letter is hereinafter referred
to as the “Equity Financing.” The financing
contemplated pursuant to the Debt Commitment Letter and the
Equity Commitment Letter, respectively, is hereinafter referred
to collectively as the “Financing.” The persons
providing the Financing pursuant to the Debt Commitment Letter
(or any Alternative Debt Financing) are hereinafter referred to
as the “Debt Financing Sources.”
(b) The Debt Commitment Letter is in full force and effect
and is a legal, valid and binding obligation of the Buyer and,
to the Buyer’s Knowledge, the other party thereto; the
Equity Commitment Letter is in full force and effect and is a
legal, valid and binding obligation of the Buyer and the other
party thereto; all commitment fees and other fees required to be
paid pursuant to either Commitment Letter have been paid in full
or will be duly paid in full when due; as of the date of this
Agreement, the Commitment Letters have not been amended or
terminated; and, as of the date of this Agreement, no event has
occurred which, with or without notice, lapse of time or both,
would constitute a breach or default thereunder. The
consummation of the Financing is subject to no contingency or
contingencies other than those set forth in the copies of the
Commitment Letters delivered to the Company. As of the date of
this Agreement, neither the Buyer nor the Transitory Subsidiary
has any reason to believe that any of the conditions to the
Financing will not be satisfied or the Financing will not be
available on the Closing Date as contemplated in the Commitment
Letters. Assuming the accuracy of the representations and
warranties set forth in Sections 3.2(a), 3.2(b), 3.2(c),
3.2(g) and 3.5(b) to the standards set forth in
Section 7.2(a), the aggregate proceeds of the Financing,
together with any cash or cash equivalents (including upon the
sale of the Company’s investments pursuant to
Section 6.13) held by the Company as of the Effective Time,
if funded, will be sufficient to enable the Buyer to pay in cash
all amounts required to be paid by it, the Surviving Corporation
and the Transitory Subsidiary in connection with the
transactions contemplated by this Agreement, including the
Merger Consideration, the Option Consideration and all payments,
fees and expenses related to or arising out of the transactions
contemplated by this Agreement.
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(c) Neither the Buyer nor the Transitory Subsidiary is, as
of the date hereof, aware of any fact, occurrence or condition
that makes any of the assumptions or statements set forth in any
Commitment Letter inaccurate in any material respect or that
would cause the commitments provided in any Commitment Letter to
be terminated or ineffective or any of the conditions contained
therein not to be met.
(d) The equity investment by the Investor under the Equity
Commitment Letter is not subject to any condition other than the
fulfillment in accordance with the terms hereof of the
conditions to the Buyer’s and the Transitory
Subsidiary’s obligations to consummate the Merger set forth
in Section 7.1 and Section 7.2
4.6 Solvency. Assuming,
(a) satisfaction of the conditions to the Buyer’s
obligations to consummate the Merger as set forth herein and
(b) the accuracy of the representations and warranties of
the Company set forth in Article III hereof (for such
purposes, such representations and warranties shall be true and
correct in all material respects without giving effect to any
Company’s Knowledge, materiality or Company Material
Adverse Effect qualification or exception), (i) immediately
after giving effect to the transactions contemplated by this
Agreement and the closing of any financing to be obtained by the
Buyer or any of its Affiliates in order to effect the
transactions contemplated by this Agreement, the Surviving
Corporation shall, as of such date, be able to pay its debts as
they become due and shall own property having a fair saleable
value greater than the amounts required to pay its debts
(including a reasonable estimate of the amount of all contingent
liabilities) as they become absolute and mature; and
(ii) immediately after giving effect to the transactions
contemplated by this Agreement and the closing of any financing
to be obtained by the Buyer or any of its Affiliates in order to
effect the transactions contemplated by this Agreement, the
Surviving Corporation shall not have, as of such date,
unreasonably small capital to carry on its business. Neither the
Buyer nor the Transitory Subsidiary is entering into the
transactions contemplated by this Agreement with the intent to
hinder, delay or defraud either present or future creditors of
the Buyer or the Surviving Corporation.
4.7 Guarantee. Concurrently with
the execution of this Agreement, the Buyer has delivered to the
Company the duly executed guarantee of Investor in the form
attached as Exhibit B to this Agreement (the
“Guarantee”). The Guarantee is valid and in full force
and effect, and no event has occurred which, with or without
notice, lapse of time or both, would constitute a default on the
part of the Investor under the Guarantee.
4.8 Agreements with Company Stockholders,
Directors or Management. As of the date hereof,
except for that certain Holdings Interim Investors Agreement,
dated as of the date hereof, among the Buyer, the Transitory
Subsidiary and the other parties appearing on the signature
pages thereto (the “Interim Investors
Agreement”) and those certain Rollover Commitment
Letters, dated as of the date hereof among the Buyer and the
other parties appearing on the signature pages thereto (the
“Rollover Commitment Letters”), neither the
Buyer, the Transitory Subsidiary nor any of their respective
Affiliates is a party to any contract or agreement with any
member of the Company’s management, directors or
stockholders that relate in any way to this Agreement or the
transactions contemplated by this Agreement.
4.9 No Other Information. Each of
the Buyer and the Transitory Subsidiary acknowledges that
neither the Company nor any of its Affiliates or Representatives
make any representations or warranties as to any matter
whatsoever except as expressly set forth in Article III of
this Agreement. The representations and warranties set forth in
Article III of this Agreement are made solely by the
Company, and neither the Buyer nor the Transitory Subsidiary
will have any recourse against any Representative of the Company
including any former, current or future general or limited
partner, member, officer, employee or stockholder of the Company
or any of its Affiliates in connection with or arising out of
the transactions contemplated by this Agreement, except as may
be expressly set forth in this Agreement or as provided in any
Ancillary Agreement.
4.10 Access to Information;
Disclaimer. The Buyer and the Transitory
Subsidiary each acknowledges and agrees that it (a) has had
an opportunity to discuss the business and affairs of the
Company and its Subsidiaries with the management of the Company,
(b) has had reasonable access to (i) the books and
records of the Company and its Subsidiaries and (ii) the
electronic dataroom maintained by the Company for purposes of
the transactions contemplated by this Agreement, (c) has
been afforded the opportunity to ask questions of and receive
answers from officers of the Company and (d) has conducted
its own independent investigation of the Company and its
Subsidiaries, their respective businesses and the transactions
contemplated hereby, and has not relied on any representation,
warranty or other statement by any person on behalf of the
Company or any of its Subsidiaries, other
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than the representations and warranties of the Company expressly
contained in Article III of this Agreement and that all
other representations and warranties are specifically disclaimed.
ARTICLE V
CONDUCT OF
BUSINESS
5.1 Covenants of the
Company. Except as expressly provided or
permitted herein, set forth in Section 5.1 of the Company
Disclosure Schedule or as consented to in writing by the Buyer
(which consent shall not be unreasonably withheld, conditioned
or delayed), during the period commencing on the date of this
Agreement and ending at the Effective Time or such earlier date
as this Agreement may be terminated in accordance with its terms
(the “Pre-Closing Period”), the Company shall,
and shall cause each of its Subsidiaries to, act and carry on
its business in the Ordinary Course of Business, and use
commercially reasonable efforts to maintain and preserve its and
each of its Subsidiary’s business organization and good
standing under applicable law, assets, rights and properties,
preserve its and each of its Subsidiary’s business
relationships and contracts with customers, strategic partners,
suppliers, distributors and others having business dealings with
it and keep available the services of its current officers,
employees and consultants. Without limiting the generality of
the foregoing, except as expressly provided or permitted herein
or as set forth in Section 5.1 of the Company Disclosure
Schedule, during the Pre-Closing Period the Company shall not,
and shall not permit any of its Subsidiaries to, directly or
indirectly, do any of the following without the prior written
consent of the Buyer (which consent shall not be unreasonably
withheld, conditioned or delayed):
(a) (i) declare, set aside or pay any dividends on, or
make any other distributions (whether in cash, securities or
other property) in respect of, any shares of its capital stock
(other than dividends and distributions made in the Ordinary
Course of Business by a direct or indirect wholly owned
Subsidiary of the Company to its parent), (ii) split,
combine, subdivide, pledge, modify or reclassify any shares of
its capital stock or any of its other securities or rights, or
make any change in the number of shares of its authorized
capital stock, (iii) issue, authorize for issuance, sell,
grant or subject to any Lien any shares of its capital stock or
any of its other securities or rights convertible into,
exchangeable or exercisable for or evidencing the right to
subscribe for or purchase shares of its capital stock or any of
its other securities or ownership interests (provided the
Company may issue shares of Company Common Stock as required to
be issued upon the exercise of Company Stock Options outstanding
on the date hereof in accordance with their terms), or
(iv) purchase, redeem or otherwise acquire any shares of
its capital stock or any other of its securities or any rights,
warrants or options to acquire any such shares or other
securities, except, in the case of this clause (iv), for the
acquisition of shares of Company Common Stock (A) from
holders of Company Stock Options in full or partial payment of
the exercise price payable by such holder upon exercise of
Company Stock Options to the extent required or permitted under
the terms of such Company Stock Options, (B) pursuant to
the forfeiture of Company Stock Options or (C) from former
employees, directors and consultants in accordance with
agreements in effect on the date hereof providing for the
repurchase of shares in connection with any termination of
services to the Company or any of its Subsidiaries, in the case
of each of the foregoing clauses (A), (B) and (C),
outstanding on the date hereof in accordance with the terms of
the applicable Company Stock Plan in effect on the date hereof;
(b) except as permitted by Section 5.1(q), issue,
deliver, sell, grant, pledge or otherwise dispose of or encumber
any shares of its capital stock, any other voting securities or
any securities convertible into or exchangeable for, or any
rights, warrants or options to acquire, any such shares, voting
securities or convertible or exchangeable securities (other than
the issuance of shares of Company Common Stock upon the exercise
of Company Stock Options outstanding on the date of this
Agreement);
(c) amend its certificate of incorporation, by-laws or
other comparable charter or organizational documents;
(d) acquire or license (as licensee) (i) by merging or
consolidating with, or by purchasing all or a substantial
portion of the assets or any stock or other equity interest of,
or by any other manner, any business or any corporation,
partnership, joint venture, limited liability company,
association or other business organization or division thereof,
(ii) any assets that are material, in the aggregate, to the
Company and its Subsidiaries, taken as a whole, except purchases
of inventory and raw materials in the Ordinary Course of
Business, or (iii) any real property material to the
Company and its Subsidiaries taken as a whole;
-22-
(e) enter into any transaction, including any merger,
acquisition, joint venture, disposition, lease, contract or debt
or equity financing that would reasonably be expected to impair,
delay or prevent Buyer’s obtaining the financing
contemplated by the Commitment Letters;
(f) enter into any new line of business material to it and
its Subsidiaries, taken as a whole;
(g) sell, lease, license, pledge, or otherwise dispose of
or encumber any material properties, material rights or material
assets of the Company or of any of its Subsidiaries other than
in the Ordinary Course of Business, so long as the value or
purchase price, in any single instance, for such properties,
rights or assets does not exceed $250,000;
(h) adopt or implement any stockholder rights plan;
(i) adopt a plan or agreement of complete or partial
liquidation or dissolution, consolidation, restructuring,
recapitalization or other reorganization of the Company or any
of the Company’s Subsidiaries;
(j) amend any term of any outstanding equity security or
equity interest of the Company or any of its Subsidiaries;
(k) (i) incur, assume or otherwise become liable for
any indebtedness for borrowed money or guarantee or endorse any
such indebtedness of another person (other than (A) in
connection with the financing of trade receivables in the
Ordinary Course of Business, (B) letters of credit or
similar arrangements issued to or for the benefit of suppliers
and manufacturers in the Ordinary Course of Business and
(C) pursuant to existing credit facilities in the Ordinary
Course of Business), (ii) issue or sell any debt securities
or warrants or other rights to acquire any debt securities of
the Company or any of its Subsidiaries, guarantee any debt
securities of another person, enter into any “keep
well” or other agreement to maintain any financial
statement condition of another person (other than the Company or
any of its Subsidiaries) or enter into any arrangement having
the economic effect of any of the foregoing, provided, however,
that the Company may, in the Ordinary Course of Business, invest
in debt securities maturing not more than ninety (90) days
after the date of investment, (iii) enter into or make any
loans, advances (other than routine non-material advances to
employees of the Company and its Subsidiaries in the Ordinary
Course of Business) or capital contributions to, or investment
in, any other person, other than the Company or any of its
direct or indirect Subsidiaries, provided, however, that the
Company may, in the Ordinary Course of Business, invest in debt
securities maturing not more than ninety (90) days after
the date of investment, or (iv) other than in the Ordinary
Course of Business, enter into any hedging agreement or other
financial agreement or arrangement designed to protect the
Company or its Subsidiaries against fluctuations in commodities
prices or exchange rates;
(l) pay, discharge, settle or compromise any pending or
threatened suit, action or claim which (i) requires payment
to or by the Company or any Subsidiary (exclusive of
attorney’s fees) in excess of $100,000 in any single
instance or in excess of $250,000 in the aggregate,
(ii) involves injunctive or equitable relief or
restrictions on the business activities of the Company or any of
its Subsidiaries, (iii) would involve the issuance of
Company securities or (iv) relates to the transactions
contemplated hereby; provided, however, notwithstanding anything
in this Agreement to the contrary, the Company or any of its
Subsidiaries may pay, discharge, settle or compromise any
pending or threatened suit, action or claim (other than any
suit, action or claim relating to Taxes) if the amount required
to be paid by the Company and its Subsidiaries pursuant thereto
(net of the retention amount) is covered by insurance;
(m) make (i) any expenditures with respect to its
femtocell business during any period beginning on
December 1, 2009 and ending on December 31, 2009 or
the last day of any month thereafter, in excess of the
cumulative monthly budgeted expenditures for such period as set
forth in Section 5.1(m) of the Company Disclosure Schedule
or (ii) any capital expenditures or other expenditures with
respect to its property, plant or equipment in any fiscal
quarter in excess of the aggregate amount for the Company and
its Subsidiaries, taken as a whole, disclosed in
Section 3.7(b) of the Company Disclosure Schedule;
(n) make any material changes in accounting methods,
principles or practices (or change an annual accounting period),
except insofar as is required by a change in GAAP;
(o) (i) other than in the Ordinary Course of Business,
(A) modify, amend, terminate or waive any material rights
under any Company Material Contract or (B) enter into any
contract, which if entered into prior to the date
-23-
hereof would have been a Company Material Contract or
(ii) enter into any (x) new contract that contains a
change in control provision in favor of the other party or
parties thereto or would otherwise require a material payment to
or give rise to any material rights to such other party or
parties in connection with the transactions contemplated hereby
or (y) non-competition or other agreement that prohibits or
otherwise restricts in any material respect, the Company or any
of its Subsidiaries or Affiliates from freely engaging in
business anywhere in the world (including any agreement
restricting the Company or any of its Subsidiaries or Affiliates
from competing in any line of business or in any geographic
area);
(p) make or change any material Tax election, file any
material amendment to any Tax Return with respect to any
material amount of Taxes, settle or compromise any material Tax
liability, agree to any extension or waiver of the statute of
limitations with respect to the assessment or determination of a
material amount of Taxes, enter into any material closing
agreement with respect to any Tax or take any action to
surrender any right to claim a material Tax refund;
(q) except as required to comply with applicable law or
agreements, plans or arrangements existing on the date hereof,
(i) adopt, enter into, terminate or materially amend any
employment, severance or similar agreement or material benefit
plan for the benefit or welfare of any current or former
director, officer or employee or any collective bargaining
agreement (except in the Ordinary Course of Business and only if
such arrangement is terminable on sixty (60) days’ or
less notice without either a penalty or a termination payment),
(ii) increase in any material respect the compensation or
fringe benefits of, or pay any bonus to, any director, officer
or employee (except for semi-annual increases of salaries for
non-officer employees in the Ordinary Course of Business, which
in no event shall be greater than four percent (4%) per annum,
or the payment of annual bonuses and commissions in the Ordinary
Course of Business under any Company Employee Plan to
non-officer employees for the Company’s 2009 fiscal year),
(iii) accelerate the payment, right to payment or vesting
of any material compensation or benefits, including any
outstanding options or restricted stock awards, other than as
contemplated by this Agreement, (iv) grant any equity
compensation, (v) grant any severance or termination pay to
any present or former director, officer, employee or consultant
of the Company or its Subsidiaries, other than as required
pursuant to the terms of a Company Employee Plan in effect on
the date of the Agreement or (vi) take any action other
than in the Ordinary Course of Business to fund or in any other
way secure the payment of compensation or benefits under any
Company Employee Plan;
(r) effectuate or permit a “plant closing” or
“mass layoff,” as those terms are defined in WARN,
affecting in whole or in part any site of employment, facility,
operating unit or employee of the Company or any of its
Subsidiaries;
(s) grant any material refunds, credits, rebates or other
allowances by the Company or its Subsidiaries to any end user,
customer, reseller or distributor, in each case, other than in
the Ordinary Course of Business;
(t) open any facility or office greater than
5,000 square feet; or
(u) authorize any of, or commit or agree, in writing or
otherwise, to take any of, the foregoing actions.
5.2 Confidentiality. The parties
acknowledge that S.A.C. Private Capital Group, LLC and the
Company have previously executed a confidentiality agreement,
dated as of March 27, 2009 (as amended, supplemented or
otherwise modified, the “Confidentiality
Agreement”), which Confidentiality Agreement shall
continue in full force and effect in accordance with its terms,
except as expressly modified herein.
5.3 Equity Financing Commitments.
(a) The Buyer and the Transitory Subsidiary acknowledge
that they have committed to provide, subject to the Equity
Commitment Letter, the Equity Financing, including
(i) maintaining in effect the Equity Commitment Letter,
(ii) ensuring the accuracy of all representations and
warranties of the Buyer or the Transitory Subsidiary set forth
in the Equity Commitment Letter, (iii) complying with all
covenants and agreements of the Buyer or the Transitory
Subsidiary set forth in the Equity Commitment Letter,
(iv) satisfying on a timely basis all conditions applicable
to the Buyer or the Transitory Subsidiary set forth in the
Equity Commitment Letter that are within their control,
(v) upon satisfaction of such conditions and other
conditions set forth in Section 7.1 and Section 7.2
(other than those conditions that by their nature are to be
satisfied at the Closing, subject to the fulfillment or waiver
of
-24-
those conditions), consummating the financing contemplated by
the Equity Commitment Letter at or prior to the Closing (and in
any event prior to the Outside Date) and (vi) fully
enforcing the obligations of the Investor and its investment
affiliates (and the rights of the Buyer and the Transitory
Subsidiary) under the Equity Commitment Letter.
(b) Neither the Buyer nor the Transitory Subsidiary shall
amend, alter, or waive, or agree to amend, alter or waive (in
any case whether by action or inaction), any term of the Equity
Commitment Letter without the prior written consent of the
Company. Each of the Buyer and the Transitory Subsidiary agrees
to notify the Company promptly if at any time prior to the
Closing Date (i) the Equity Commitment Letter expires or is
terminated for any reason (or if any person attempts or purports
to terminate the Equity Commitment Letter, whether or not such
attempted or purported termination is valid), (ii) the
Investor refuses to provide or expresses an intent in writing to
refuse to provide the full Equity Financing on the terms set
forth in the Equity Commitment Letter or (iii) for any
reason the Buyer or the Transitory Subsidiary no longer believes
in good faith that it will be able to obtain all or any portion
of the Equity Financing on the terms set forth in the Equity
Commitment Letter.
5.4 Debt Financing Commitments.
(a) The Buyer and the Transitory Subsidiary shall use their
respective reasonable best efforts to obtain the Debt Financing
on the terms and conditions set forth in the Debt Commitment
Letter (or terms not materially less favorable, in the
aggregate, to the Buyer and the Transitory Subsidiary taken as a
whole (including with respect to the conditionality thereof))
(provided, that, Buyer and the Transitory Subsidiary may replace
or amend the Debt Financing Commitment Letters to add lenders,
lead arrangers, bookrunners, syndication agents or similar
entities which had not executed the Debt Financing Commitment
Letters as of the date hereof, or otherwise so long as the terms
would not adversely impact the ability of the Buyer and
Transitory Subsidiary to timely consummate the transactions
contemplated hereby or the likelihood of the consummation of the
transactions contemplated hereby), including by using reasonable
best efforts to (i) maintain in effect the Debt Commitment
Letter and negotiate a definitive agreement (collectively, the
“Debt Financing Agreements”) with respect to
the Debt Commitment Letter on the terms and conditions set forth
in the Debt Commitment Letter (or on terms not materially less
favorable, in the aggregate, to the Buyer and the Transitory
Subsidiary, taken as a whole, (including with respect to the
conditionality thereof) than the terms and conditions in the
Debt Commitment Letter), (ii) ensure the accuracy of all
representations and warranties of the Buyer or the Transitory
Subsidiary set forth in the Debt Commitment Letter or Debt
Financing Agreement, (iii) comply with all covenants and
agreements of the Buyer or the Transitory Subsidiary set forth
in the Debt Commitment Letter or Debt Financing Agreement,
(iv) satisfy on a timely basis all conditions applicable to
the Buyer or the Transitory Subsidiary set forth in the Debt
Commitment Letter or Debt Financing Agreement that are within
their control and (v) upon satisfaction of such conditions
and the other conditions set forth in Section 7.1 and
Section 7.2 (other than those conditions that by their
nature are to be satisfied at the Closing, subject to the
fulfillment or waiver of those conditions), to consummate the
Debt Financing at or prior to the Closing (and in any event
prior to the Outside Date). In the event that all conditions in
the Debt Commitment Letter (other than the availability of
funding of any of the financing contemplated under the Equity
Commitment Letter) have been satisfied or, upon funding will be
satisfied, each of the Buyer and the Transitory Subsidiary shall
use its reasonable best efforts to cause the lender party to the
Debt Commitment Letter to fund on the Closing Date the Debt
Financing required to consummate the transactions contemplated
by this Agreement and otherwise enforce its rights under the
Debt Commitment Letter. The Buyer will furnish to the Company
correct and complete copies of any Debt Financing Agreement or
any Alternative Debt Commitment Letter and, in each case,
ancillary documents thereto (redacted to the extent necessary to
comply with confidentiality agreements, provided that such
redacted information does not relate to the amounts or
conditionality of, or contain any conditions precedent to, the
funding of the Debt Financing).
(b) The Buyer shall keep the Company reasonably informed
with respect to all material activity concerning the Debt
Financing and shall give the Company prompt notice of any
material adverse change with respect to the Debt Financing.
Without limiting the foregoing, each of the Buyer and the
Transitory Subsidiary agrees to notify the Company promptly, and
in any event within one (1) Business Day, if at any time
prior to the Closing Date (i) a Debt Commitment Letter
expires or is terminated for any reason (or if any person
attempts or purports to terminate a Debt Commitment Letter,
whether or not such attempted or purported termination is
valid), (ii) the lender refuses to provide all or any
portion of the Debt Financing contemplated by a Debt Commitment
Letter on the terms set forth
-25-
therein, or (iii) for any reason the Buyer or the
Transitory Subsidiary no longer believes in good faith that it
will be able to obtain all or any portion of the Debt Financing
on substantially the terms described in the Debt Commitment
Letters. Neither the Buyer nor the Transitory Subsidiary shall,
nor shall it permit any of its Affiliates to, without the prior
written consent of the Company, take any action or enter into
any transaction, including any merger, acquisition, joint
venture, disposition, lease, contract or debt or equity
financing, that could reasonably be expected to impair, delay or
prevent consummation of all or any portion of the Debt
Financing. Neither the Buyer nor the Transitory Subsidiary shall
amend or alter, or agree to amend or alter, a Debt Commitment
Letter in any manner that would materially impair, delay or
prevent the transactions contemplated by this Agreement without
the prior written consent of the Company.
(c) If all or any portion of the Debt Financing becomes
unavailable on the terms and conditions contemplated in a Debt
Commitment Letter or Debt Financing Agreement, each of the Buyer
and the Transitory Subsidiary shall use its reasonable best
efforts to arrange to promptly obtain such Debt Financing from
alternative sources in an amount sufficient, when added to the
portion of the Financing that is available, to pay in cash all
amounts required to be paid by the Buyer, the Surviving
Corporation and the Transitory Subsidiary in connection with the
transactions contemplated by this Agreement, including the
Merger Consideration, the Option Consideration and all payments,
fees and expenses related to or arising out of the transactions
contemplated by this Agreement (“Alternative Debt
Financing”) and to obtain a new financing commitment letter
(the “Alternative Debt Commitment Letter”) and a new
definitive agreement with respect thereto (the “Alternative
Debt Financing Agreement”) that provides for financing on
terms not materially less favorable, in the aggregate, to the
Buyer and the Transitory Subsidiary taken as a whole and in an
amount that is sufficient, when added to the portion of the
Financing that is available together with any cash or cash
equivalents held by the Company as of the Effective Time, to pay
in cash all amounts required to be paid by the Buyer, the
Surviving Corporation and the Transitory Subsidiary in
connection with the transactions contemplated by this Agreement,
including the Merger Consideration, the Option Consideration and
all payments, fees and expenses related to or arising out of the
transactions contemplated by this Agreement. In such event, the
term “Debt Financing” as used in this Agreement shall
be deemed to include any Alternative Debt Financing, the term
“Debt Commitment Letter” as used in this Agreement
shall be deemed to include any Alternative Debt Commitment
Letter, and the term “Debt Financing Agreement” as
used in this Agreement shall be deemed to include any
Alternative Debt Financing Agreement.
(d) The Company agrees to, and shall cause the Company
Subsidiaries to, and shall use its commercially reasonable
efforts to cause their respective representatives, including
legal and accounting advisors to, provide the Buyer with such
cooperation in connection with the arrangement of the financings
contemplated by the Debt Commitment Letters as may be reasonably
requested by the Buyer, including (i) assisting in the
preparation for, and participating in, a reasonable number of
meetings, presentations, due diligence sessions and similar
presentations to and with rating agencies and the parties acting
as lead arrangers or agents for, and prospective purchasers and
lenders of, the Debt Financing, (ii) assisting with the
preparation of materials for rating agency presentations,
offering documents, information memoranda (including the
delivery of one or more customary representation letters), and
similar documents required in connection with the Financing,
(iii) executing and delivering any pledge and security
documents, other definitive financing documents, or other
certificates, opinions or documents as may be reasonably
requested by the Buyer and otherwise reasonably facilitating the
pledging of collateral (including a certificate of the chief
financial officer of the Company or any Subsidiary with respect
to solvency matters), using commercially reasonable efforts to
obtain consents of accountants for use of their reports in any
materials relating to the Debt Financing, (iv) furnishing
the Buyer and its Financing sources with the financial
statements and financial data of the Company required by
paragraph (ii) under the heading “Conditions to
Close” in Exhibit A to the Debt Commitment Letter,
(v) using commercially reasonable efforts to obtain surveys
and title insurance as reasonably requested by the Buyer in
order to facilitate the Debt Financing and (vi) taking all
corporate actions necessary to permit the consummation of the
Debt Financing and to permit the proceeds thereof to be made
available to the Surviving Corporation, including the entering
into of one or more credit agreements or other instruments on
terms satisfactory to the Buyer in connection with the Debt
Financing immediately prior to, and conditioned upon the
occurrence of, the Effective Time to the extent the direct
borrowing or debt incurrence by the Company is contemplated in
the Debt Commitment Letters; provided that (i) such
requested cooperation does not unreasonably interfere with the
ongoing operations of the Company and its Subsidiaries,
(ii) neither the Company nor any of its Subsidiaries shall
be required to pay any commitment or other similar fee or incur
any other liability in connection
-26-
with the financings contemplated by the Debt Commitment Letter
prior to the Effective Time, (iii) such cooperation shall
not require preparation of any pro forma financial information
by the Company, and (iv) no participation in any road shows
shall be required. If the Closing should not occur by the
Outside Date, the Buyer shall, promptly upon request by the
Company, reimburse the Company for all reasonable and documented
out-of-pocket costs incurred by the Company or any of its
Subsidiaries in connection with such cooperation. All non-public
or otherwise confidential information regarding the Company
obtained by the Buyer or the Transitory Subsidiary or any of
their respective Representatives pursuant to this
Section 5.4(d) shall be kept confidential in accordance
with the Confidentiality Agreement. The Buyer shall indemnify
and hold harmless the Company and its Subsidiaries from and
against any and all liabilities, losses, damages, claims, costs,
expenses, interest, awards, judgments and penalties suffered or
incurred by them in connection with the arrangement of the Debt
Financing (other than to the extent that such losses arise from
the gross negligence or willful misconduct of the Company, any
of its Subsidiaries or any of their respective Representatives)
and any information utilized in connection therewith (other than
information provided by the Company or the Company
Subsidiaries). The Company hereby consents to the reasonable use
of its and the Company Subsidiaries’ logos in connection
with the Debt Financing, provided that such logos are used
solely in a manner that is not intended to nor reasonably likely
to harm or disparage the Company or any of the Company
Subsidiaries or the reputation or goodwill of the Company or any
of the Company Subsidiaries and its or their marks.
(e) The Buyer and the Transitory Subsidiary each
acknowledge and agree that the obtaining of the Debt Financing
is not a condition to the Closing.
(f) The Company shall deliver to the Buyer a certificate
executed by the Chief Financial Officer of the Company setting
forth Adjusted EBITDA (as defined in Section 5.4(f) of the
Company Disclosure Schedule) for the month ended
December 31, 2009 and each month thereafter, together with
supporting calculations in reasonable detail, by twenty
(20) days following the end of each such month.
ARTICLE VI
ADDITIONAL
AGREEMENTS
6.1 No Solicitation.
(a) No Solicitation or
Negotiation. Except as set forth in this
Section 6.1, from and after the date hereof until the
termination of this Agreement in accordance with the terms
hereof (the “Specified Time”), neither the
Company nor any of its Subsidiaries shall, and the Company shall
use reasonable best efforts to cause the Company’s and its
Subsidiaries’ respective directors, officers, employees,
investment bankers, attorneys, accountants and other advisors or
representatives (such directors, officers, employees, investment
bankers, attorneys, accountants, other advisors and
representatives, collectively,
“Representatives”) not to, directly or
indirectly:
(i) solicit, initiate or knowingly encourage any inquiries
or the making of any proposal or offer that constitutes, or
could reasonably be expected to lead to, any Acquisition
Proposal; or
(ii) enter into, continue or otherwise participate in any
discussions or negotiations regarding, or furnish to any person
any non-public information in response to, or otherwise for the
purpose of encouraging or facilitating, any Acquisition Proposal.
Notwithstanding anything to the contrary set forth in this
Agreement, the Company may, prior to obtaining the Company
Stockholder Approval, (A) furnish information with respect
to the Company to and (B) engage in discussions or
negotiations (including solicitation of a revised Acquisition
Proposal) with a person (and the Representatives of such person)
that has made an Acquisition Proposal that did not result from a
breach of this Section 6.1, and subject to compliance with
Section 6.1(b) and Section 6.1(c), that the Company
Board determines in good faith (after consultation with outside
counsel and its financial advisors) either constitutes a
Superior Proposal or is reasonably likely to lead to a Superior
Proposal. Any such furnishing of information regarding the
Company shall be pursuant to a confidentiality agreement not
materially less restrictive of such Person in any respect than
the Confidentiality Agreement (an “Acceptable
Confidentiality Agreement”); provided that the Company
shall promptly make available to the Buyer any material
non-public information concerning the Company or its
Subsidiaries that is furnished to such Person which was not
previously delivered to the Buyer
-27-
or its Representatives. From and after the date hereof, the
Company shall not grant any waiver, amendment or release under
any standstill agreement without the prior written consent of
the Buyer.
(b) No Change in Recommendation or Alternative
Acquisition Agreement. Prior to the Specified
Time, neither the Company Board nor any committee thereof shall:
(i) except as set forth in this Section 6.1(b) ,
withhold, withdraw or modify, in a manner adverse to the Buyer,
the approval or recommendation by the Company Board or any
committee thereof with respect to the Company Voting Proposal;
(ii) cause or permit the Company to enter into any letter
of intent, memorandum of understanding, agreement in principle,
acquisition agreement,
merger agreement or similar agreement (an
“
Alternative Acquisition Agreement”) providing
for the consummation of a transaction contemplated by any
Acquisition Proposal (other than an Acceptable Confidentiality
Agreement entered into in compliance with
Section 6.1(a)); or
(iii) except as set forth in this Section 6.1(b),
adopt, approve or recommend any Acquisition Proposal.
Notwithstanding anything to the contrary set forth in this
Agreement (but subject to the immediately following paragraph),
the Company Board may withhold, withdraw or modify its
recommendation with respect to the Company Voting Proposal if
the Company Board or an authorized committee thereof determines
in good faith, after consultation with outside legal counsel
that failure to do so would be inconsistent with its fiduciary
obligations under applicable law; provided,
however, that the Company shall not be entitled to
approve or recommend another Acquisition Proposal unless
(i) it has complied in all material respects with the
provisions of this Section 6.1, (ii) the Company Board
or an authorized committee thereof has concluded in good faith
(after consultation with independent financial advisors and
outside legal counsel) that such Acquisition Proposal would
constitute a Superior Proposal if no changes were made to this
Agreement, (iii) prior to any such approval or
recommendation of another Acquisition Proposal, the Company has
provided written notice (a “Notice of Superior
Proposal”) to the Buyer that the Company intends to
take such action and describing the identity and material terms
and conditions of the Superior Proposal that is the basis of
such action, including with such Notice of Superior Proposal a
copy of the relevant proposed transaction agreements with the
Person making such Superior Proposal, (iv) during the four
(4) Business Day period following the Company’s
delivery of the Notice of Superior Proposal, the Company shall,
and shall cause its financial and legal advisors to, negotiate
with the Buyer and the Transitory Subsidiary in good faith (to
the extent the Buyer and the Transitory Subsidiary desire to
negotiate) to make such modification or adjustments in the terms
and conditions of this Agreement so that such Superior Proposal
ceases to constitute a Superior Proposal, and (v) following
the end of such four (4) Business Day period, the Company
Board or an authorized committee thereof shall have determined
in good faith, taking into account any changes to the terms of
this Agreement proposed in writing by the Buyer to the Company
in response to the Notice of Superior Proposal or otherwise,
that the Superior Proposal giving rise to the Notice of Superior
Proposal continues to constitute a Superior Proposal. Any
amendment to the financial terms or any other material amendment
of such Superior Proposal shall require a new Notice of Superior
Proposal and the Company shall be required to comply again with
the requirements of this Section 6.1(b) (provided that
references to the four (4) Business Day period above shall
be deemed to be references to a forty-eight (48) hour
period).
Notwithstanding anything to the contrary set forth in this
Agreement, the Company shall provide written notice to the Buyer
at least four (4) Business Days in advance of the Company
Board or an authorized committee’s intention to withhold,
withdraw or modify its recommendation with respect to the
Company Voting Proposal for any reason other than a Superior
Proposal and during such four (4) Business Day period
following the Company’s delivery of such notice, the
Company shall, and shall cause its financial and legal advisors
to, negotiate with the Buyer and the Transitory Subsidiary in
good faith (to the extent the Buyer and the Transitory
Subsidiary desire to negotiate) to make such modification or
adjustments in the terms and conditions of this Agreement such
that the Company Board or authorized committee, after
consultation with outside legal counsel, does not continue to
believe that the failure to withhold, withdraw or modify such
recommendation would be inconsistent with its fiduciary
obligations under applicable law.
-28-
(c) Notices to the Buyer. From and after
the date hereof, the Company shall promptly (and in any event
within one (1) Business Day) advise the Buyer orally, with
written confirmation to follow (together with a written copy of
such Acquisition Proposal), of the Company’s receipt of any
written Acquisition Proposal and the material terms and
conditions of any such Acquisition Proposal (including material
amendments or modifications thereto).
(d) Certain Permitted Disclosure. Nothing
contained in this Section 6.1 or in Section 6.5 (or
elsewhere in this Agreement) shall be deemed to prohibit the
Company from taking and disclosing to its stockholders a
position with respect to a tender offer contemplated by
Rule 14d-9
or
Rule 14e-2
promulgated under the Exchange Act or from making any disclosure
to the Company’s stockholders if, in the good faith
judgment of the Company Board, after consultation with outside
counsel, failure to so disclose would be inconsistent with its
obligations under applicable law; provided,
however, that the Company Board and the Company shall not
recommend that the stockholders of the Company tender their
shares in connection with any tender offer or exchange offer (or
otherwise approve or recommend any Acquisition Proposal) unless
the requirements of Section 6.1(b) have been satisfied.
(e) Cessation of Ongoing Discussions. The
Company shall, and shall cause its Subsidiaries to and direct
their respective Representatives to, cease immediately all
discussions or negotiations commenced prior to the date hereof
with any person (other than the parties hereto) regarding any
proposal that constitutes, or could reasonably be expected to
lead to, an Acquisition Proposal and shall request that all
confidential information previously furnished to any such
persons be promptly returned or destroyed.
(f) Definitions. For purposes of this
Agreement:
“Acquisition Proposal” means any proposal or
offer for, whether in a single transaction or series of related
transactions, alone or in combination (other than the Merger),
(i) a merger, consolidation, tender offer,
recapitalization, reorganization, share exchange, business
combination or similar transaction involving the Company (other
than any such transaction (x) involving solely the Company
and one or more of its Subsidiaries or (y) that, if
consummated, would not result in any person or “group”
within the meaning of Section 13(d) of the Exchange Act,
owning 20% or more of any class or series of capital stock or
voting securities of the Company), (ii) the issuance by the
Company of its equity securities that, if consummated, would
result in any person or “group”, within the meaning of
Section 13(d) of the Exchange Act, owning 20% or more of
any class or series of capital stock or voting securities of the
Company, (iii) the acquisition in any manner (including by
virtue of the transfer of equity interests in one or more
Subsidiaries of the Company) of, directly or indirectly, 20% or
more of the consolidated total assets or consolidated revenue or
consolidated earnings of the Company and its Subsidiaries, in
each case other than the transactions contemplated by this
Agreement (including any proposed amendments of this Agreement
proposed by the Buyer) or (iv) a dissolution or liquidation
of the Company or similar transaction involving the Company.
“Superior Proposal” means any bona fide written
Acquisition Proposal which was not obtained in violation of
Section 6.1 (except that, for purposes of this definition,
references in the definition of “Acquisition Proposal”
to “20%” shall be “50%”) on terms which the
Company Board or any authorized committee thereof determines in
its good faith judgment (after consultation with its financial
advisor and outside legal counsel) to be (i) more favorable
from a financial point of view to the holders of Company Common
Stock (in their capacity as such) than the Merger, taking into
account all the terms and conditions of such proposal and this
Agreement (including any written proposal by the Buyer to amend
the terms of this Agreement) and (ii) reasonably capable of
being completed on the terms proposed, taking into account all
financial, regulatory, legal and other aspects of such proposal.
6.2 Proxy Statement. As promptly as
practicable after the execution of this Agreement, the Company
shall prepare the Proxy Statement and file it with the SEC and
the Company and Buyer shall jointly prepare and file the
Schedule 13E-3
with the SEC and the Company and the Buyer shall cooperate with
each other in connection with the preparation of the foregoing.
The Company shall use commercially reasonable efforts to respond
as promptly as practicable to any comments of the SEC or its
staff concerning the Proxy Statement or the
Schedule 13E-3
and shall cause the Proxy Statement to be mailed to its
stockholders at the earliest practicable time after the
resolution of any such comments. The Company shall notify the
Buyer promptly upon the receipt of any comments from the SEC or
its staff or any other government officials and of any request
by the SEC or its staff or any other government officials for
amendments or supplements to the Proxy Statement or the
Schedule 13E-3
and shall supply the Buyer with
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copies of all correspondence between the Company or any of its
representatives, on the one hand, and the SEC, or its staff or
any other government officials, on the other hand, with respect
to the Proxy Statement or the
Schedule 13E-3.
Notwithstanding anything to the contrary stated above, prior to
filing or mailing the Proxy Statement or the
Schedule 13E-3
(including any amendment or supplement to the Proxy Statement or
Schedule 13E-3)
or responding to any comments of the SEC with respect thereto,
(i) the Company shall cooperate and provide the Buyer with
a reasonable opportunity to review and comment on the Proxy
Statement and responses relating thereto and shall consider in
good faith and include in such documents and responses comments
reasonably proposed by the Buyer and (ii) the Company and
the Buyer shall cooperate and provide each other with a
reasonable opportunity to review and comment on the
Schedule 13E-3
and responses relating thereto and shall consider in good faith
comments reasonably proposed by the other party. The Company
shall use commercially reasonable efforts to cause all documents
that it is responsible for filing with the SEC or other
regulatory authorities under this Section 6.2 to comply in
all material respects with all applicable requirements of law
and the rules and regulations promulgated thereunder. Whenever
any event occurs which is required to be set forth in an
amendment or supplement to the Proxy Statement or the
Schedule 13E-3,
the Buyer or the Company, as the case may be, shall promptly
inform the other of such occurrence and cooperate in filing with
the SEC or its staff or any other government officials,
and/or
mailing to stockholders of the Company, such amendment or
supplement.
6.3 Nasdaq Quotation. The Company
agrees to use commercially reasonable efforts to continue the
quotation of the Company Common Stock on The Nasdaq Stock Market
during the term of this Agreement. Prior to the Closing Date,
the Company shall cooperate with the Buyer and use commercially
reasonable efforts to take, or cause to be taken, all actions,
and do or cause to be done all things, reasonably necessary,
proper or advisable on its part under applicable Laws and rules
and policies of The Nasdaq Global Market to cause the delisting
of the Company of the Company Common Stock from The Nasdaq
Global Market and the deregistration of the Company Common Stock
under the Exchange Act as promptly as practicable after the
Effective Time.
6.4 Access to Information. During
the Pre-Closing Period, the Company shall (and shall cause each
of its Subsidiaries to) afford to the Buyer and its Affiliates
and their respective Representatives, reasonable access, upon
reasonable notice, during normal business hours and in a manner
that does not materially disrupt or interfere with business
operations, to all of its properties, books, contracts,
commitments, personnel and records as the Buyer shall reasonably
request, provided, however, that the Company shall
not be required to afford access, or to disclose any
information, that in the good faith judgment of the Company
would (i) result in the disclosure of any trade secrets of
third parties, (ii) violate any obligation of the Company
or any of its Subsidiaries with respect to confidentiality,
(iii) jeopardize protections afforded the Company or any of
its Subsidiaries under the attorney-client privilege or the
attorney work product doctrine, or (iv) violate any
applicable law, regulation, rule, judgment or order. The Buyer
will hold any such information which is nonpublic in confidence
in accordance with the Confidentiality Agreement.
6.5 Stockholders Meeting. The
Company, acting through the Company Board or an authorized
committee thereof, shall take all actions in accordance with
applicable law, its Certificate of Incorporation and By-laws and
the rules of The Nasdaq Stock Market to promptly and duly call,
give notice of, convene and hold as promptly as practicable the
Company Meeting for the purpose of considering and voting upon
the Company Voting Proposal. Subject to Section 6.1,
(a) the Company Board and any authorized committee thereof
shall recommend adoption of the Company Voting Proposal by the
stockholders of the Company and include such recommendation in
the Proxy Statement and (b) the Company Board and any
committee thereof shall not withhold, withdraw or modify, or
publicly propose or resolve to withhold, withdraw or modify in a
manner adverse to the Buyer, the recommendation of the Company
Board that the Company’s stockholders vote in favor of the
Company Voting Proposal. Subject to Section 6.1, the
Company shall take all action that is both reasonable and lawful
to solicit from its stockholders proxies in favor of the Company
Voting Proposal and shall take all other action reasonably
necessary or advisable to secure the vote or consent of the
stockholders of the Company required by the rules of The Nasdaq
Stock Market or the DGCL to obtain such approvals.
Notwithstanding anything to the contrary contained in this
Agreement, the Company, after consultation with the Buyer, may
adjourn or postpone the Company Meeting to the extent necessary
to ensure that any required supplement or amendment to the Proxy
Statement is provided to the Company’s stockholders or, if
as of the time for which the Company Meeting is originally
scheduled (as set forth in the Proxy Statement) there are
insufficient shares of Company Common Stock represented (either
in person or by proxy) to constitute a quorum necessary to
conduct the business of the Company Meeting.
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6.6 Legal Conditions to the Merger.
(a) Subject to the terms hereof, including Section 6.1
and Section 6.6(b), the Company and the Buyer shall each
use their respective reasonable best efforts to:
(i) take, or cause to be taken, all actions, and do, or
cause to be done, and to assist and cooperate with the other
parties in doing, all things necessary, proper or advisable to
consummate and make effective the transactions contemplated
hereby as promptly as practicable;
(ii) as promptly as practicable, obtain from any
Governmental Entity or any other third party any consents,
licenses, permits, waivers, approvals, authorizations, or orders
required to be obtained or made by the Company or the Buyer or
any of their Subsidiaries in connection with the authorization,
execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby;
(iii) as promptly as practicable, make all necessary
filings, and thereafter make any other required submissions,
with respect to this Agreement and the Merger required under
(A) the Exchange Act, and any other applicable federal or
state securities laws, (B) the HSR Act and any related
governmental request thereunder, and (C) any other
applicable law; and
(iv) execute or deliver any additional instruments
necessary to consummate the transactions contemplated by, and to
fully carry out the purposes of, this Agreement.
The Company and the Buyer shall cooperate with each other in
connection with the making of all such filings, including
providing copies of all such documents to the non-filing party
and its advisors prior to filing and, if requested, accepting
reasonable additions, deletions or changes suggested in
connection therewith. The Company and the Buyer shall use their
respective reasonable best efforts to furnish to each other all
information required for any application or other filing to be
made pursuant to the rules and regulations of any applicable law
(including all information required to be included in the Proxy
Statement) in connection with the transactions contemplated by
this Agreement. For the avoidance of doubt, the Buyer and the
Company agree that nothing contained in this Section 6.6(a)
shall modify or affect their respective rights and
responsibilities under Section 6.6(b).
(b) Subject to the terms hereof, the Buyer and the Company
agree, and shall cause each of their respective Subsidiaries, to
cooperate and to use their respective reasonable best efforts to
obtain any government clearances or approvals required for
Closing under the HSR Act, the Xxxxxxx Act, as amended, the
Xxxxxxx Act, as amended, the Federal Trade Commission Act, as
amended, and any other federal, state or foreign law, regulation
or decree designed to prohibit, restrict or regulate actions for
the purpose or effect of monopolization or restraint of trade
(collectively “Antitrust Laws”), to respond to any
government requests for information under any Antitrust Law, and
to contest and resist any action, including any legislative,
administrative or judicial action, and to have vacated, lifted,
reversed or overturned any decree, judgment, injunction or other
order (whether temporary, preliminary or permanent) (an
“Antitrust Order”) that restricts, prevents or
prohibits the consummation of the Merger or any other
transactions contemplated by this Agreement under any Antitrust
Law. The parties hereto will consult and cooperate with one
another, and consider in good faith the views of one another, in
connection with, and provide to the other parties in advance,
any analyses, appearances, presentations, memoranda, briefs,
arguments, opinions and proposals made or submitted by or on
behalf of any party hereto in connection with proceedings under
or relating to any Antitrust Law.
(c) The Company shall give (or shall cause its Subsidiaries
to give) any notices to third parties, and use, and cause its
Subsidiaries to use, its reasonable best efforts to obtain any
third party consents required in connection with the Merger that
are (i) necessary to consummate the transactions
contemplated hereby (including any notices and consents) or
(ii) disclosed or required to be disclosed in the Company
Disclosure Schedule, it being understood that the Company shall
not make any payment or incur any liability in connection with
the fulfillment of its obligations under this Section 6.6
without the prior written consent of the Buyer (such consent not
to be unreasonably withheld, conditioned or delayed).
6.7 Public Disclosure. Except as
may be required by law or stock market regulations, (a) the
press release announcing the execution of this Agreement shall
be issued only in such form as shall be mutually agreed upon by
the Company and the Buyer and (b) the Buyer and the Company
shall each use its commercially reasonable efforts
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to consult with the other party before issuing any other press
release or otherwise making any public statement with respect to
the Merger or this Agreement.
6.8 Indemnification.
(a) From the Effective Time through the sixth anniversary
of the date on which the Effective Time occurs, the Surviving
Corporation shall indemnify and hold harmless each person who is
now, or has been at any time prior to the date hereof, or who
becomes prior to the Effective Time, a director or officer of
the Company or any of its Subsidiaries (the “Indemnified
Parties”), against all claims, losses, liabilities,
damages, judgments, fines and reasonable fees, costs and
expenses, including attorneys’ fees and disbursements,
incurred in connection with any claim, action, suit, proceeding
or investigation, whether civil, criminal, administrative or
investigative (collectively, “Claims”), arising out of
or pertaining to the fact that the Indemnified Party is or was
an officer or director of the Company or any of its
Subsidiaries, whether asserted or claimed prior to, at or after
the Effective Time, to the fullest extent permitted under the
DGCL for officers and directors of
Delaware corporations. The
Surviving Corporation shall have the right to control the
defense of any Claim covered under this Section 6.8(a).
Each Indemnified Party will be entitled to advancement of
expenses incurred in the defense of any such Claim, from the
Surviving Corporation within ten (10) business days of
receipt by the Surviving Corporation from the Indemnified Party
of a request therefor and upon the receipt by the Surviving
Corporation of an undertaking by such Indemnified Party to repay
such advanced expenses if it shall ultimately be determined that
such person is not entitled to be indemnified pursuant to this
Section 6.8(a).
(b) From the Effective Time through the sixth anniversary
of the date on which the Effective Time occurs, the Certificate
of Incorporation and By-laws of the Surviving Corporation shall
contain, and the Buyer shall cause the Certificate of
Incorporation and By-laws of the Surviving Corporation to so
contain, provisions no less favorable with respect to
indemnification, advancement of expenses and exculpation of
present and former directors and officers of the Company and its
Subsidiaries than are presently set forth in the Certificate of
Incorporation and By-laws of the Company.
(c) The Surviving Corporation shall maintain, and the Buyer
shall cause the Surviving Corporation to maintain, at no expense
to the beneficiaries, in effect for six (6) years from the
Effective Time the current policies of the directors’ and
officers’ liability insurance maintained by the Company
(provided that the Buyer may substitute therefor policies of at
least the same coverage with respect to matters existing or
occurring at or prior to the Effective Time, including a
“tail” policy) with respect to matters existing or
occurring at or prior to the Effective Time (including the
transactions contemplated by this Agreement), so long as the
annual premium therefor would not be in excess of 300% of the
last annual premium paid prior to the Effective Time (such 300%,
the “Maximum Premium”); provided,
however, that if the aggregate annual premiums for such
insurance shall exceed the Maximum Premium, then the Surviving
Corporation shall provide or cause to be provided a policy for
the Indemnified Parties with the best coverage as shall then be
available at an annual premium not in excess of the Maximum
Premium. The Company may, prior to the Effective Time, with the
Buyer’s prior written consent (such consent not to be
unreasonably withheld, conditioned or delayed), purchase a
six-year prepaid “tail policy” on terms and conditions
providing at least substantially equivalent benefits as the
current policies of directors’ and officers’ liability
insurance maintained by the Company and its Subsidiaries with
respect to matters existing or occurring at or prior to the
Effective Time, covering without limitation the transactions
contemplated hereby. If such prepaid “tail policy” has
been obtained by the Company, it shall be deemed to satisfy all
obligations to obtain insurance pursuant to this
Section 6.8(c) and the Surviving Corporation shall cause
such policy to be maintained in full force and effect, for its
full term, and to honor all of its obligations thereunder.
(d) To the fullest extent permitted by law, the Surviving
Corporation shall, and the Buyer shall cause the Surviving
Corporation to, pay all expenses, including reasonable
attorneys’ fees, that may be incurred by the persons
referred to in this Section 6.8 in connection with their
successful enforcement of their rights provided in this
Section 6.8.
(e) The Buyer and the Transitory Subsidiary agree that all
rights to exculpation, indemnification and advancement of
expenses for acts or omissions occurring at or prior to the
Effective Time, whether asserted or claimed prior to, at or
after the Effective Time, now existing in favor of the current
or former directors or officers, as the case may be, of the
Company or any of its Subsidiaries as provided in their
respective certificates of
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incorporation or by-laws or other organization documents or in
any agreement shall survive the Merger and shall continue in
full force and effect, subject to the terms thereof. The
provisions of this Section 6.8 are intended to be in
addition to the rights otherwise available to the current
officers and directors of the Company by law, charter, statute,
by-law or agreement, and shall operate for the benefit of, and
shall be enforceable by, each of the Indemnified Parties, their
heirs and their representatives. Following the Effective Time,
the obligations set forth in this Section 6.8 shall not be
terminated, amended or otherwise modified in any manner that
adversely affects any Indemnified Party and their heirs and
representatives, without the prior written consent of such
affected Indemnified Person or other person.
(f) If the Surviving Corporation or any of its successors
or assigns shall (i) consolidate with or merge into any
other person and shall not be the continuing or surviving
corporation or entity of such consolidation or merger, or
(ii) transfer all or substantially all of its properties
and assets to any person, then, and in each such case, proper
provisions shall be made so that the successors and assigns of
the Surviving Corporation shall assume all of the obligations of
the Surviving Corporation set forth in this Section 6.8.
(g) Nothing in this Agreement is intended to, shall be
construed to or shall release, waive or impair any rights to
directors’ and officers’ insurance claims under any
policy that is or has been in existence with respect to the
Company or any of its Subsidiaries for any of their respective
directors, officers or other employees, it being understood and
agreed that the indemnification provided for in this
Section 6.8 is not prior to or in substitution for any such
claims under such policies.
6.9 Notification of Certain
Matters. During the Pre-Closing Period, the Buyer
shall give prompt notice to the Company, and the Company shall
give prompt notice to the Buyer, of (a) the occurrence, or
failure to occur, of any event, which occurrence or failure to
occur is reasonably likely to cause any representation or
warranty of such party contained in this Agreement to be untrue
or inaccurate in any material respect, in each case at any time
from and after the date of this Agreement until the Effective
Time, or (b) any material failure of the Buyer and the
Transitory Subsidiary or the Company, as the case may be, or of
any officer, director, employee or agent thereof, to comply with
or satisfy any covenant, condition or agreement to be complied
with or satisfied by it under this Agreement. Notwithstanding
the above, the delivery of any notice pursuant to this
Section 6.9 will not limit or otherwise affect the remedies
available hereunder to the party receiving such notice or the
conditions to such party’s obligation to consummate the
Merger.
6.10 Exemption from Liability Under
Section 16(b). Prior to the Effective Time,
the Company shall take steps as may be reasonably requested by
any party hereto to cause dispositions of Company equity
securities (including derivative securities) pursuant to the
transactions contemplated hereby by each individual who is a
director or officer of the Company to be exempt under
Rule 16b-3
promulgated under the Exchange Act to the extent permitted by
applicable law.
6.11 Service Credit. Following the
Effective Time, the Buyer will give each employee of the Buyer
or the Surviving Corporation or their respective Subsidiaries
who shall have been an employee of the Company or any of its
Subsidiaries immediately prior to the Effective Time
(“Continuing Employees”) full credit for prior service
with the Company or its Subsidiaries for purposes of
(a) eligibility and vesting under any Buyer Employee Plans
(as defined below), (b) determination of benefit levels
under any Buyer Employee Plan or policy relating to vacation or
severance and (c) determination of “retiree”
status under any Buyer Employee Plan, in each case for which the
Continuing Employee is otherwise eligible and in which the
Continuing Employee is offered participation, but except where
such credit would result in a duplication of benefits. In
addition, the Buyer shall waive, or cause to be waived, any
limitations on benefits relating to pre-existing conditions to
the same extent such limitations are waived under any comparable
plan of the Buyer and recognize for purposes of annual
deductible and out-of-pocket limits under its medical and dental
plans, deductible and out-of-pocket expenses paid by Continuing
Employees in the calendar year in which the Effective Time
occurs. For purposes of this Agreement, the term “Buyer
Employee Plan” means any “employee pension benefit
plan” (as defined in Section 3(2) of ERISA), any
“employee welfare benefit plan” (as defined in
Section 3(1) of ERISA), and any other written or oral plan,
agreement or arrangement, including insurance coverage,
severance benefits, disability benefits, deferred compensation,
bonuses, stock options, stock purchase, restricted stock unit,
stock appreciation or other forms of incentive compensation or
post-retirement compensation and all unexpired severance
agreements, for the benefit of, or relating to, any current or
former
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employee of the Buyer or any of its Subsidiaries or any entity
which is a member of (A) a controlled group of corporations
(as defined in Section 414(b) of the Code), (B) a
group of trades or businesses under common control (as defined
in Section 414(c) of the Code) or (C) an affiliated
service group (as defined in Section 414(m) of the Code or
the regulations under Section 414(o) of the Code), any of
which includes or included the Buyer or a Subsidiary of the
Buyer.
6.12 Company Employee
Arrangements. Prior to the Effective Time, if the
Buyer, the Transitory Subsidiary or any of their respective
Affiliates provides a compensatory contract or agreement to any
employee of the Company or any of its Subsidiaries for
consideration in connection with the Merger, the Buyer or
Transitory Subsidiary shall promptly thereafter provide the
final execution version of such Contract, if any, to the Company.
6.13 Sale of Investments. The
Company shall use commercially reasonable efforts to take all
actions reasonably requested by the Buyer in order to cause all,
or such portion as the Buyer shall request, of the Company and
its Subsidiaries’ unrestricted cash, cash equivalents and
marketable securities to be liquidated and converted at, or
close to, the then current market rates into cash of the Company
that is available to the Company at the Effective Time to be
used to pay the Merger Consideration. If this Agreement is
terminated by the Company pursuant to Section 8.1(h) or
Section 8.1(i), the Buyer shall, subject to
Section 9.10(b), promptly upon request by the Company,
reimburse the Company for all reasonable and documented
out-of-pocket costs incurred by the Company or any of its
Subsidiaries in complying with this Section 6.13.
6.14 Director Resignations. Prior
to the Closing, the Company shall deliver to the Buyer
resignations executed by each director of the Company in office
immediately prior to the Effective Time, which resignations
shall be effective at the Effective Time and which resignations
shall not have been revoked.
6.15 Termination of Agreements. At
or prior to the Closing, the Company shall, at the request of
Buyer, execute an agreement provided by Buyer in the form
attached as Exhibit C hereto (the
“Termination Agreement”) terminating the Third
Amended and Restated Investor Rights Agreement among the Company
and certain of its stockholders.
6.16 Internal Reorganization. The
Company shall initiate the internal reorganization transactions
described in Section 6.16 of the Company Disclosure
Schedule (the “Internal Reorganization”) in accordance
therewith and take reasonable steps to allow the Internal
Reorganization to be consummated as promptly as practicable
following the Closing. The Company agrees to reasonably
cooperate with the Buyer with respect to effectuating the
Internal Reorganization as promptly as practicable following the
Closing; provided that (i) such requested cooperation does
not unreasonably interfere with the ongoing operations of the
Company and its Subsidiaries and (ii) neither the Company
nor any of its Subsidiaries shall be required to pay any fees or
incur any liability in connection with the Internal
Reorganization prior to the Effective Time. If this Agreement is
terminated in accordance with Article VIII, the Buyer
shall, subject to Section 9.10(b), promptly upon request by
the Company, reimburse the Company for all reasonable and
documented out-of-pocket costs incurred by the Company or any of
its Subsidiaries in connection with such cooperation.
ARTICLE VII
CONDITIONS
TO MERGER
7.1 Conditions to Each Party’s Obligation To
Effect the Merger. The respective obligations of
each party to this Agreement to effect the Merger shall be
subject to the satisfaction on or prior to the Closing Date of
the following conditions:
(a) Stockholder Approval. The Company
Voting Proposal shall have been adopted at the Company Meeting,
at which a quorum is present, by the Required Company
Stockholder Vote.
(b) HSR Act. The waiting period
applicable to the consummation of the Merger under the HSR Act
shall have expired or been terminated.
(c) Governmental Approvals. Other than
the filing of the Certificate of Merger, all authorizations,
consents, orders or approvals of, or declarations or filings
with, or expirations of waiting periods imposed by, any
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Governmental Entity in connection with the Merger and the
consummation of the other transactions contemplated by this
Agreement, the failure of which to file, obtain or occur is
reasonably likely to have a Buyer Material Adverse Effect or a
Company Material Adverse Effect, shall have been filed, been
obtained or occurred on terms and conditions which would not
reasonably be likely to have a Buyer Material Adverse Effect or
a Company Material Adverse Effect.
(d) Proxy Statement. No order suspending
the use of the Proxy Statement shall have been issued and no
proceeding for that purpose shall have been initiated or
threatened in writing by the SEC or its staff.
(e) No Injunctions. No Governmental
Entity of competent jurisdiction shall have enacted, issued,
promulgated, enforced or entered any order, executive order,
stay, decree, judgment or injunction (preliminary or permanent)
or statute, rule or regulation which is in effect and which has
the effect of making the Merger illegal or otherwise prohibiting
consummation of the Merger or the other transactions
contemplated by this Agreement; provided, however,
that a party may not assert that this condition has not been
satisfied unless such party shall have used its reasonable best
efforts to prevent the enforcement or entry of such order,
executive order, stay, decree, judgment or injunction or
statute, rule or regulation, including taking such action as is
required to comply with Section 6.6, and to appeal as
promptly as possible any order, executive order, stay, decree,
judgment or injunction that may be issued.
7.2 Additional Conditions to Obligations of the
Buyer and the Transitory Subsidiary. The
obligations of the Buyer and the Transitory Subsidiary to effect
the Merger shall be subject to the satisfaction on or prior to
the Closing Date of each of the following additional conditions,
any of which may be waived, in writing, exclusively by the Buyer
and the Transitory Subsidiary:
(a) Representations and Warranties. The
representations and warranties of the Company (i) set forth
in the first sentence of Section 3.7 shall be true and
correct in all respects as of the Closing Date as if made on and
as of the Closing Date, (ii) set forth in Section 3.2,
Section 3.4(a) and Section 3.20, disregarding all
qualifications contained therein relating to materiality or
Company Material Adverse Effect, shall be true and correct in
all material respects as of the Closing Date as if made on and
as of the Closing Date (or, if given as of a specific date, at
and as of such date) and (iii) set forth in
Article III hereof (other than the Sections of
Article III described in clauses (i) and
(ii) above), disregarding all qualifications contained
therein relating to materiality or Company Material Adverse
Effect, shall be true and correct as of the Closing Date as if
made on and as of the Closing Date (or, if given as of a
specific date, at and as of such date), except in the case of
this clause (iii) where the failure to be so true and
correct has not resulted in or would not reasonably be likely to
result in, individually or in the aggregate, a Company Material
Adverse Effect.
(b) Performance of Obligations of the
Company. The Company shall have performed in all
material respects all obligations required to be performed by it
under this Agreement on or prior to the Closing Date.
(c) No Material Adverse Effect. Since the
date of this Agreement, there shall not have occurred any
Company Material Adverse Effect.
(d) Adjusted EBITDA. Adjusted EBITDA (as
defined in Section 5.4(f) of the Company Disclosure
Schedule) for the twelve (12) month period ended at least
30 days prior to the Closing Date shall not be less than
$95 million.
(e) Officer’s Certificate. The
Company shall have delivered to the Buyer a certificate, dated
as of the Closing Date, signed by the chief executive officer or
the chief financial officer of the Company, certifying to the
satisfaction of the conditions specified in Sections 7.2(a)
through 7.2(d).
7.3 Additional Conditions to Obligations of the
Company. The obligation of the Company to effect
the Merger shall be subject to the satisfaction on or prior to
the Closing Date of each of the following additional conditions,
any of which may be waived, in writing, exclusively by the
Company:
(a) Representations and Warranties. The
representations and warranties of the Buyer and the Transitory
Subsidiary set forth in this Agreement shall be true and correct
as of the Closing Date as though made on and as of the Closing
Date (except (i) to the extent such representations and
warranties are specifically made as of a particular date, in
which case such representations and warranties shall be true and
correct as of such date, (ii) for changes
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contemplated by this Agreement, and (iii) where the failure
to be true and correct (without regard to any materiality or
Buyer Material Adverse Effect qualifications contained therein),
individually or in the aggregate, has not had a Buyer Material
Adverse Effect.
(b) Performance of Obligations of the Buyer and the
Transitory Subsidiary. The Buyer and the
Transitory Subsidiary shall have performed in all material
respects all obligations required to be performed by them under
this Agreement on or prior to the Closing Date.
(c) Officer’s Certificate. The Buyer
shall have delivered to the Company a certificate, dated as of
the Closing Date, signed by the chief executive officer, chief
financial officer or other duly authorized officer of the Buyer,
certifying to the satisfaction of the conditions specified in
Sections 7.3(a) and 7.3(b).
(d) Solvency Certificate. The Buyer shall
have delivered to the Company a solvency certificate
substantially similar in form and substance to the solvency
certificate to be delivered to the lenders pursuant to the Debt
Commitment Letter or any agreements entered into in connection
with the Debt Financing.
7.4 Frustration of Closing
Conditions. None of the Company, the Buyer or the
Transitory Subsidiary may rely on the failure of any condition
set forth in Section 7.2 or 7.3, as the case may be, to be
satisfied if such failure was caused by such party’s
failure to use the standard of efforts required from such party
to consummate the Merger and the other transactions contemplated
by this Agreement, including as required by and subject to
Sections 5.3, 5.4 and 6.6.
ARTICLE VIII
TERMINATION
AND AMENDMENT
8.1 Termination. This Agreement may
be terminated at any time prior to the Effective Time (with
respect to Sections 8.1(b) through 8.1(i), by written
notice by the terminating party to the other party), whether
before or, subject to the terms hereof, after adoption of this
Agreement by the stockholders of the Company:
(a) by mutual written consent of the Buyer, the Transitory
Subsidiary and the Company; or
(b) by either the Buyer or the Company if the Merger shall
not have been consummated by June 15, 2010 (the
“Outside Date”) (provided 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 a principal cause of or resulted
in the failure of the Merger to occur on or before the Outside
Date); or
(c) by either the Buyer or the Company if a Governmental
Entity of competent jurisdiction shall have issued a
nonappealable final order, decree or ruling or taken any other
nonappealable final action, in each case having the effect of
permanently restraining, enjoining or otherwise prohibiting the
Merger (provided that the right to terminate this Agreement
under this Section 8.1(c) shall not be available to any
party whose failure to fulfill any obligation under this
Agreement has been a principal cause of or resulted in such
order, decree, ruling or other action); or
(d) by either the Buyer or the Company if at the Company
Meeting at which a vote on the Company Voting Proposal is taken,
the Required Company Stockholder Vote in favor of the Company
Voting Proposal shall not have been obtained; or
(e) by the Buyer, if: (i) the Company Board or any
committee thereof shall have failed to recommend approval of the
Company Voting Proposal in the Proxy Statement or shall have
withheld, withdrawn, amended or modified its recommendation of
the Company Voting Proposal in a manner adverse to the Buyer;
(ii) the Company Board or any committee thereof shall have
adopted, approved, endorsed or recommended to the stockholders
of the Company an Acquisition Proposal (other than the Merger);
(iii) a tender offer or exchange offer for outstanding
shares of Company Common Stock shall have been commenced (other
than by the Buyer or an Affiliate of the Buyer) and the Company
Board or any committee thereof recommends that the stockholders
of the Company tender their shares in such tender or exchange
offer or, within ten (10) Business Days after the public
announcement of such tender or exchange offer or, if earlier,
prior to the date of the Company Meeting, the Company Board or a
committee thereof fails to recommend against acceptance of such
offer and reaffirm the recommendation of the Company Voting
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Proposal; (iv) the Company enters into an Alternative
Acquisition Agreement or (v) the Company or the Company
Board or any committee thereof shall have publicly announced its
intention to do any of the foregoing; or
(f) by the Company, if the Company Board or an authorized
committee thereof, pursuant to and in compliance with
Section 6.1, shall have adopted, approved, endorsed or
recommended, or publicly proposed to adopt, approve, endorse or
recommend, to the stockholders of the Company any Acquisition
Proposal; provided, however, that the Company
shall prior to or simultaneously with a termination pursuant to
this Section 8.1(f) pay the Termination Fee to the Buyer or
another Person designated by the Buyer; or
(g) by the Buyer, if there has been a breach of or failure
to perform any representation, warranty, covenant or agreement
on the part of the Company set forth in this Agreement, which
breach or failure to perform (i) would cause the conditions
set forth in Section 7.2 not to be satisfied, and
(ii) shall not have been cured, or is not capable of being
cured, within 20 days following receipt by the Company of
written notice of such breach or failure to perform from the
Buyer (or, if earlier, the Outside Date); provided,
however, that the Buyer shall not have the right to
terminate this Agreement pursuant to this Section 8.1(g) if
it or the Transitory Subsidiary is then in material breach of
any of its representations, warranties, covenants or other
agreements hereunder that would result in the conditions to
Closing set forth in Sections 7.3(a) or 7.3(b) not being
satisfied; or
(h) by the Company, if there has been a breach of or
failure to perform any representation, warranty, covenant or
agreement on the part of the Buyer or the Transitory Subsidiary
set forth in this Agreement, which breach or failure to perform
(i) would cause the conditions set forth in
Sections 7.3(a) or 7.3(b) not to be satisfied, and
(ii) shall not have been cured, or is not capable of being
cured, within 20 days following receipt by the Buyer of
written notice of such breach or failure to perform from the
Company (or, if earlier, the Outside Date); provided,
however, that the Company shall not have the right to
terminate this Agreement pursuant to this Section 8.1(h) if
it is then in material breach of any of its representations,
warranties, covenants or other agreements hereunder that would
result in the conditions to Closing set forth in
Sections 7.2(a) or 7.2(b) not being satisfied; or
(i) by the Company, if all of the conditions set forth in
Sections 7.1 and 7.2 have been satisfied (other than those
conditions that by their nature are to be satisfied by actions
taken at the Closing) and the Company has indicated in writing
that the Company is ready and willing to consummate the
transactions contemplated by this Agreement (subject to the
satisfaction of all of the conditions set forth in
Sections 7.1 and 7.3), and the Buyer and the Transitory
Subsidiary fail to consummate the transactions contemplated by
this Agreement within ten (10) Business Days following the
date the Closing should have occurred pursuant to
Section 1.2 (for the avoidance of doubt, it being
understood that in accordance with the proviso to
Section 8.1(b), during such period of ten
(10) Business Days following the date the Closing should
have occurred pursuant to Section 1.2, the Buyer shall not
be entitled to terminate this Agreement pursuant to
Section 8.1(b)).
8.2 Effect of Termination. In the
event of termination of this Agreement as provided in
Section 8.1 this Agreement shall immediately become void
and there shall be no liability or obligation on the part of the
Buyer, the Company, the Transitory Subsidiary or their
respective officers, directors, stockholders or Affiliates;
provided that (a) subject to Section 9.10,
Section 8.3(c) and Section 8.3(d), any such
termination shall not relieve any party from liability for any
willful breach of this Agreement and (b) the
Confidentiality Agreement (subject to its terms), the provisions
of Sections 5.2 (Confidentiality) and 8.3 (Fees and
Expenses), Section 8.4 (Amendment), Section 8.5
(Extension; Waiver), this Section 8.2 (Effect of
Termination) and Article IX (Miscellaneous) of this
Agreement, the Guarantee (subject to its terms) and the
indemnification and reimbursement provisions of
Sections 5.4(d), 6.13 and 6.16 of this Agreement shall
remain in full force and effect and survive any termination of
this Agreement. Nothing shall limit or prevent any party from
exercising any rights or remedies it may have under
Section 9.10 hereof in lieu of terminating this Agreement
pursuant to Section 8.1.
8.3 Fees and Expenses.
(a) Except as set forth in this Section 8.3, all fees
and expenses incurred in connection with this Agreement and the
transactions contemplated hereby shall be paid by the party
incurring such fees and expenses, whether or not the Merger is
consummated.
(b) Provided that the Buyer has not received payment of a
Termination Fee pursuant to Section 8.3(c), the Company
shall pay the Buyer up to $3.0 million as reimbursement for
expenses actually incurred by or on behalf of
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the Buyer or its Affiliates relating to the transactions
contemplated by this Agreement (including, but not limited to,
reasonable fees and expenses of the Buyer’s counsel,
accountants, financial advisors and financing sources, but
excluding any discretionary fees paid to such financial
advisors), in the event of the termination of this Agreement by
the Buyer or the Company pursuant to Section 8.1(d) or
Section 8.1(g) (other than terminations due to breaches of
Section 6.1 or Section 6.5). The expenses payable
pursuant to this Section 8.3(b) shall be paid by wire
transfer of
same-day
funds within 10 Business Days after demand therefor following
the occurrence of the event giving rise to the payment
obligation described in this Section 8.3(b). The expense
reimbursement pursuant to this Section 8.3(b) is referred
to herein as the “Expense Reimbursement.” The payment
of the Expense Reimbursement pursuant to this
Section 8.3(b) shall not relieve the Company of any
subsequent obligation to pay the Termination Fee pursuant to
Section 8.3(c).
(c) The Company shall pay the Buyer a termination fee of
$15.0 million (the “Termination Fee”)
(i) in the event of the termination of this Agreement
pursuant to Section 8.1(e), Section 8.1(f) or
Section 8.1(g) (due to breaches of Section 6.1 or
Section 6.5), or (ii) if (A) an Acquisition
Proposal shall have been communicated to the Company or a member
of the Company Board (whether or not publicly disclosed) and not
withdrawn (and, if publicly disclosed, not publicly withdrawn)
prior to a termination referred to in the succeeding clause (B),
(B) following the occurrence of an event described in the
preceding clause (A), this Agreement is terminated by the
Company or the Buyer pursuant to Section 8.1(b) or
Section 8.1(d) or by the Buyer pursuant to
Section 8.1(g) (other than terminations due to breaches of
Section 6.1 or Section 6.5) and (C) prior to or
within twelve (12) months following the date this Agreement
is terminated, the Company enters into a definitive acquisition
agreement with respect to or consummates any Acquisition
Proposal (in each case whether or not the Acquisition Proposal
was the same Acquisition Proposal referred to in clause (A));
provided, however, that for purposes of
clause (C) of this Section 8.3(c), the references to
“20%” in the definition of Acquisition Proposal shall
be deemed to be references to “50%.” The Company shall
be entitled to credit against payment of the Termination Fee in
respect of any Expense Reimbursement previously paid under
Section 8.3(b).
In the event that the Buyer shall receive full payment pursuant
to this Section 8.3(c), the receipt of the Termination Fee
shall be deemed to be liquidated damages for any and all losses
or damages suffered or incurred by the Buyer, the Transitory
Subsidiary, any of their respective Affiliates or any other
person in connection with this Agreement (and the termination
hereof), the transactions contemplated hereby (and the
abandonment thereof) or any matter forming the basis for such
termination, and none of the Buyer, the Transitory Subsidiary,
any of their respective Affiliates or any other person shall be
entitled to bring or maintain any other claim, action or
proceeding against the Company or any of its Affiliates arising
out of this Agreement, any of the transactions contemplated
hereby or any matters forming the basis for such termination;
provided, however, that nothing in this
Section 8.3(c) shall limit the rights of Buyer and
Transitory Sub under Section 9.10(a) or the rights of the
Buyer or its Affiliates under and to the extent provided in the
Ancillary Agreements. Any fee due under clause (i) of this
Section 8.3(c) shall be paid to the Buyer or its designee
by wire transfer of
same-day
funds within two Business Days after the date of termination of
this Agreement if such termination is pursuant to
Section 8.1(e) but shall be due simultaneously with such
termination if pursuant to Section 8.1(f). Any fee due
under clause (ii) of this Section 8.3(c) shall be paid
to the Buyer or its designee by wire transfer of
same-day
funds within two Business Days after the earlier of the entry
into a definitive agreement with respect to any Acquisition
Proposal or the consummation of an Acquisition Proposal.
Notwithstanding anything to the contrary, the Company shall not
owe any obligation to pay the Termination Fee if this Agreement
is terminated pursuant to Section 8.1(b) after the Company
has provided the written indication referred to in
Section 8.1(i) unless the Company refuses to consummate the
Closing during the time period contemplated by
Section 8.1(i).
(d) The Buyer shall pay, or cause to be paid, the Company a
termination fee of $25.0 million (the “Buyer
Termination Fee”) if this Agreement is terminated by the
Company pursuant to Section 8.1(h) or Section 8.1(i).
Any fee due under this Section 8.3(d) shall be paid to the
Company or its designee by wire transfer of
same-day
funds within two (2) Business Days after the date of
termination of this Agreement pursuant to Section 8.1(h) or
Section 8.1(i).
In the event that the Company shall receive full payment
pursuant to this Section 8.3(d), the receipt of the Buyer
Termination Fee shall be deemed to be liquidated damages for any
and all losses or damages suffered or incurred by the Company or
any other person in connection with this Agreement or the
Guarantee (and the
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termination hereof), the transactions contemplated hereby (and
the abandonment thereof) or any matter forming the basis for
such termination, and neither the Company nor any other person
shall be entitled to bring or maintain any other claim, action
or proceeding against the Buyer, the Transitory Subsidiary or
any other Buyer Party arising out of this Agreement or the
Guarantee, any of the transactions contemplated hereby or any
matters forming the basis for such termination. Notwithstanding
anything to the contrary, if a court of competent jurisdiction
has ordered the Buyer or the Transitory Subsidiary to pay the
Buyer Termination Fee pursuant to this Section 8.3(d), the
Company shall not be entitled to enforce such order if
(x) the Buyer delivers to the Company, within five
(5) Business Days following the issuance of such order, a
notice electing to consummate the Closing in accordance with
Article II of this Agreement and (y) the Closing
occurs within three (3) Business Days following the
delivery of such notice.
(e) If the Company or the Buyer, as the case may be, fails
to timely pay any amount due pursuant to this Section 8.3,
and, in order to obtain the payment, the Buyer or the Company,
as the case may be, commences a suit which results in a judgment
against the other party for the payment set forth in this
Section 8.3, such paying party shall pay the other party
its reasonable and documented costs and expenses (including
reasonable and documented attorneys’ fees) in connection
with such suit, together with interest on such amount at the
prime rate of JPMorgan Chase & Co. in effect on the
date such payment was required to be made through the date such
payment was actually received.
(f) The parties acknowledge that the agreements contained
in this Section 8.3 are an integral part of the
transactions contemplated by this Agreement, and that, without
these agreements, the parties would not enter into this
Agreement. Except as provided in Section 8.3(c) and
Section 8.3(d), respectively, payment of the fees and
expenses described in this Section 8.3 shall not be in lieu
of liability for damages incurred in the event of a breach of
this Agreement described in Section 8.2(a), but otherwise
shall constitute the sole and exclusive remedy of the parties in
connection with any termination of this Agreement.
8.4 Amendment. This Agreement may
be amended by the parties hereto, by action taken or authorized
by their respective Boards of Directors, at any time before or
after approval of the matters presented in connection with the
Merger by the stockholders of any party, but, after any such
approval, no amendment shall be made which by law requires
further approval by such stockholders without such further
approval. This Agreement may not be amended except by an
instrument in writing signed on behalf of each of the parties
hereto.
8.5 Extension; Waiver. At any time
prior to the Effective Time, the parties hereto, by action taken
or authorized by their respective Boards of Directors, may, to
the extent legally allowed, (i) extend the time for the
performance of any of the obligations or other acts of the other
parties hereto, (ii) waive any inaccuracies in the
representations and warranties contained herein or in any
document delivered pursuant hereto and (iii) waive
compliance with any of the agreements or conditions contained
herein. Any agreement on the part of a party hereto to any such
extension or waiver shall be valid only if set forth in a
written instrument signed on behalf of such party. Such
extension or waiver shall not be deemed to apply to any time for
performance, inaccuracy in any representation or warranty, or
noncompliance with any agreement or condition, as the case may
be, other than that which is specified in the extension or
waiver. The failure of any party to this Agreement to assert any
of its rights under this Agreement or otherwise shall not
constitute a waiver of such rights.
ARTICLE IX
MISCELLANEOUS
9.1 Nonsurvival of Representations, Warranties and
Agreements. None of the representations,
warranties and agreements in this Agreement or in any instrument
delivered pursuant to this Agreement shall survive the Effective
Time, except for any covenant or agreement of the parties that
by its terms contemplates performance after the Effective Time.
9.2 Notices. All notices and other
communications hereunder shall be in writing and shall be deemed
duly delivered (i) four Business Days after being sent by
registered or certified mail, return receipt requested, postage
prepaid, (ii) one Business Day after being sent for next
Business Day delivery, fees prepaid, via a reputable nationwide
overnight courier service, or (iii) on the date of
confirmation of receipt (or, the first Business Day
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following such receipt if the date of such receipt is not a
Business Day) of transmission by facsimile, in each case to the
intended recipient as set forth below:
(a) if to the Buyer or the Transitory Subsidiary, to
c/o S.A.C.
Capital Advisors, L.P.
00 Xxxxxxxx Xxxxx Xx
Xxxxxxxx, XX 00000
Attn: General Counsel
Telecopy:
(000) 000-0000
with a copy to:
Xxxxxxx Xxxxxxx & Xxxxxxxx LLP
1999 Avenue of the Stars
00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxxx
Telecopy:
(000) 000-0000
(b) if to the Company, to
Airvana, Inc.
00 Xxxxx Xxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxxx
Telecopy:
(000) 000-0000
with copies to:
Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxx X. Xxxxxx and Xxx X. Xxxxxxxx
Telecopy:
(000) 000-0000
and
Ropes & Xxxx LLP
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX
00000-0000
Attn: Xxxx X. Xxxxxxx and Xxxxx X. Xxxxx
Telecopy:
(000) 000-0000
Any party to this Agreement may give any notice or other
communication hereunder using any other means (including
personal delivery, messenger service, telex, ordinary mail or
electronic mail), but no such notice or other communication
shall be deemed to have been duly given unless and until it
actually is received by the party for whom it is intended. Any
party to this Agreement may change the address to which notices
and other communications hereunder are to be delivered by giving
the other parties to this Agreement notice in the manner herein
set forth.
9.3 Entire Agreement. This
Agreement (including the Schedules and Exhibits hereto and the
documents and instruments referred to herein that are to be
delivered at the Closing) constitutes the entire agreement among
the parties to this Agreement and supersedes any prior
understandings, agreements or representations by or among the
parties hereto, or any of them, written or oral, with respect to
the subject matter hereof (including that certain letter
agreement between the Company and S.A.C. Private Capital Group,
LLC, dated August 25, 2009, regarding reimbursement of
expenses), and the parties hereto specifically disclaim reliance
on any such prior understandings, agreements or representations
to the extent not embodied in this Agreement. Notwithstanding
the foregoing, the
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Confidentiality Agreement shall remain in effect in accordance
with its terms; provided, however, that, if the
Effective Time occurs, the Confidentiality Agreement shall
terminate as of the Effective Time.
9.4 No Third Party
Beneficiaries. Except (a) for the right of
holders of Common Stock to receive the Merger Consideration
pursuant to and in accordance with Section 2.1 (with
respect to which holders of Company Common Stock shall be third
party beneficiaries following the Effective Time if the
Effective Time occurs), (b) as provided in Section 6.8
(with respect to which the Indemnified Parties shall be third
party beneficiaries) and (c) as set forth in the last
sentence of this Section 9.4, this Agreement is not
intended, and shall not be deemed, to confer any rights or
remedies upon any person other than the parties hereto and their
respective successors and permitted assigns, to create any
agreement of employment with any person or to otherwise create
any third-party beneficiary hereto. The representations and
warranties in this Agreement are the product of negotiations
among the parties hereto and are for the sole benefit of the
parties hereto. Any inaccuracies in such representations and
warranties are subject to waiver by the parties hereto in
accordance with Section 8.5 without notice or liability to
any other person. In some instances, the representations and
warranties in this Agreement may represent an allocation among
the parties hereto of risks associated with particular matters
regardless of the knowledge of any of the parties hereto.
Consequently, persons other than the parties hereto may not rely
upon the representations and warranties in this Agreement as
characterizations of actual facts or circumstances as of the
date of this Agreement or as of any other date. The Buyer
Parties shall be express third party beneficiaries with respect
to Sections 8.2 (but solely to the extent Section 8.2
provides for the survival following the termination of this
Agreement of Sections 8.3(d), 9.10(b) and 9.11), 8.3(d),
9.10(b) and 9.11 of this Agreement.
9.5 Assignment. Neither this
Agreement nor any of the rights, interests or obligations under
this Agreement may be assigned or delegated, in whole or in
part, by operation of law or otherwise by any of the parties
hereto without the prior written consent of the other parties,
and any such assignment without such prior written consent shall
be null and void; provided, however, that the
Buyer or the Transitory Subsidiary may assign its rights,
interests or obligations under this Agreement to any Subsidiary
of the Buyer without the consent of the other parties hereto,
but no such assignment shall relieve the assigning party of its
obligations hereunder. Subject to the preceding sentence, this
Agreement shall be binding upon, inure to the benefit of, and be
enforceable by, the parties hereto and their respective
successors and permitted assigns.
9.6 Severability. Any term or
provision of this Agreement that is invalid or unenforceable in
any situation in any jurisdiction shall not affect the validity
or enforceability of the remaining terms and provisions hereof
or the validity or enforceability of the offending term or
provision in any other situation or in any other jurisdiction.
If the final judgment of a court of competent jurisdiction
declares that any term or provision hereof is invalid or
unenforceable, the parties hereto agree that the court making
such determination shall have the power to limit the term or
provision, to delete specific words or phrases, or to replace
any invalid or unenforceable term or provision with a term or
provision that is valid and enforceable and that comes closest
to expressing the intention of the invalid or unenforceable term
or provision, and this Agreement shall be enforceable as so
modified. In the event such court does not exercise the power
granted to it in the prior sentence, the parties hereto agree to
replace such invalid or unenforceable term or provision with a
valid and enforceable term or provision that will achieve, to
the extent possible, the economic, business and other purposes
of such invalid or unenforceable term.
9.7 Counterparts and
Signature. This Agreement may be executed in two
or more counterparts, each of which shall be deemed an original
but all of which together shall be considered one and the same
agreement and shall become effective when counterparts have been
signed by each of the parties hereto and delivered to the other
parties, it being understood that all parties need not sign the
same counterpart. This Agreement may be executed and delivered
by facsimile transmission.
9.8 Interpretation. When reference
is made in this Agreement to an Article or a Section, such
reference shall be to an Article or Section of this Agreement,
unless otherwise indicated. The table of contents, table of
defined terms and headings contained in this Agreement are for
convenience of reference only and shall not affect in any way
the meaning or interpretation of this Agreement. The language
used in this Agreement shall be deemed to be the language chosen
by the parties hereto to express their mutual intent, and no
rule of strict construction shall be applied against, nor shall
there be a presumption that any ambiguities in this Agreement
shall be resolved against, any party. Whenever the context may
require, any pronouns used in this Agreement shall include the
corresponding
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masculine, feminine or neuter forms, and the singular form of
nouns and pronouns shall include the plural, and vice versa. Any
reference to any federal, state, local or foreign statute or law
shall be deemed also to refer to all rules and regulations
promulgated thereunder, unless the context requires otherwise.
Whenever the words “include,” “includes” or
“including” are used in this Agreement, they shall be
deemed to be followed by the words “without
limitation.” The words “in writing” include
electronic correspondence and
e-mail. No
summary of this Agreement prepared by any party shall affect the
meaning or interpretation of this Agreement.
9.9
Governing Law. This Agreement
shall be governed by and construed in accordance with the
internal laws of the State of
Delaware without giving effect to
any choice or conflict of law provision or rule (whether of the
State of Delaware or any other jurisdiction) that would cause
the application of laws of any jurisdictions other than those of
the State of Delaware.
9.10 Remedies.
(a) Except as otherwise provided herein, any and all
remedies herein expressly conferred upon a party will be deemed
cumulative with and not exclusive of any other remedy conferred
hereby, or by law or equity upon such party, and the exercise by
a party of any one remedy will not preclude the exercise of any
other remedy. The parties hereto agree that irreparable damage
would occur in the event that any of the provisions of this
Agreement were not performed by the Company in accordance with
their specific terms or were otherwise breached by the Company.
It is accordingly agreed that, subject to Section 8.3, the
Buyer and the Transitory Subsidiary shall be entitled to an
injunction or injunctions to prevent breaches of this Agreement
and to enforce specifically the terms and provisions of this
Agreement, in each case without posting a bond or undertaking,
this being in addition to any other remedy to which they are
entitled at law or in equity. The parties further acknowledge
that the Company shall not be entitled to an injunction or
injunctions to prevent breaches of this Agreement against the
Buyer or the Transitory Subsidiary or to enforce specifically
the terms and provisions of this Agreement or otherwise obtain
any equitable relief or remedy against the Buyer or the
Transitory Subsidiary.
(b) Notwithstanding anything herein to the contrary, the
maximum aggregate liability of the Company under or relating to
this Agreement to any person shall be limited to the Termination
Fee (inclusive of the Expense Reimbursement) plus any amounts
that may be payable by the Company under Section 8.3(e)
(the “Company Liability Limitation”) and the maximum
aggregate liability of the Buyer and the Transitory Subsidiary
under or relating to this Agreement to any person shall be
limited to the Buyer Termination Fee (inclusive of any amounts
owed pursuant to the indemnification and reimbursement
provisions of Sections 5.4(d), 6.13 and 6.16) plus any
amounts that may be payable by the Buyer under
Section 8.3(e) (the “Buyer Liability
Limitation”) and in no event shall (i) the Company
or any of its Affiliates seek any recovery, judgment or damages
of any kind, including consequential, indirect or punitive
damages, against the Buyer, the Transitory Subsidiary, the
Investor or any other Buyer Parties (as defined below) in excess
of the Buyer Liability Limitation in connection with this
Agreement or the transactions contemplated hereby and
(ii) the Buyer or Transitory Subsidiary seek any other
recovery, judgment or damages of any kind, including
consequential, indirect or punitive damages, against the
Company, its Subsidiaries or any other Company Parties in excess
of the Company Liability Limitation in connection with this
Agreement or the transactions contemplated hereby;
provided, however, that nothing in this
Section 9.10(b) shall limit the rights of the Buyer and the
Transitory Subsidiary under Section 9.10(a) or the rights
of the parties hereto under and to the extent provided in the
Ancillary Agreements. “Ancillary Agreements”
shall mean the Interim Investors Agreement, the Rollover
Commitment Letters and the Termination Agreement. Without
limiting the rights of the Buyer or its Affiliates under and to
the extent provided in Section 9.10(a) and the Ancillary
Agreements, the Buyer and the Transitory Subsidiary acknowledge
and agree that each of them has no right of recovery against,
and no personal liability shall attach to, in each case with
respect to damages of the Buyer or its Affiliates
(“Buyer Damages”), any of the Company Parties
(other than the Company to the extent provided in this
Agreement), through the Company or otherwise, whether by or
through attempted piercing of the corporate veil, by or through
a claim by or on behalf of the Company against any Company
Party, by the enforcement of any assessment or by any legal or
equitable proceeding, by virtue of any statute, regulation or
applicable Law, or otherwise. Without limiting the rights of the
Company under and to the extent provided in the Ancillary
Agreements, the Company acknowledges and agrees that it has no
right of recovery against, and no personal liability shall
attach to, in each case with respect to damages of the Company
and its Affiliates (“Company Damages”), any of
the Buyer Parties (as defined below) (other than the Buyer and
the Transitory Subsidiary to the
-42-
extent provided in this Agreement and the Investor to the extent
provided in the Guarantee), through the Buyer or otherwise,
whether by or through attempted piercing of the corporate,
limited partnership or limited liability company veil, by or
through a claim by or on behalf of the Buyer against the
Investor or any other Buyer Party, by the enforcement of any
assessment or by any legal or equitable proceeding, by virtue of
any statute, regulation or applicable Law, or otherwise, except
for its rights to recover from the Investor (but not any other
Buyer Party (including any general partner or managing member))
under and to the extent provided in the Guarantee and subject to
the Buyer Liability Limitation and the other limitations
described therein. Recourse against the Investor under the
Guarantee shall be the sole and exclusive remedy of the Company
and its Affiliates against the Investor and any other Buyer
Party (other than the Buyer and the Transitory Subsidiary to the
extent provided in this Agreement) in respect of any liabilities
or obligations arising under, or in connection with, this
Agreement or the transactions contemplated hereby.
(c) For purposes hereof: (i) “Buyer
Parties” shall mean, collectively, the Buyer, the
Transitory Subsidiary, the Investor, the Debt Financing Sources
and any of their respective former, current or future directors,
officers, employees, agents, general or limited partners,
managers, members, stockholders, Affiliates or assignees or any
former, current or future director, officer, employee, agent,
general or limited partner, manager, member, stockholder,
Affiliate or assignee of any of the foregoing, and (ii)
“Company Parties” shall mean, collectively, the
Company and its Subsidiaries and any of their respective former,
current or future directors, officers, employees, agents,
general or limited partners, managers, members, stockholders,
Affiliates or assignees or any former, current or future
director, officer, employee, agent, general or limited partner,
manager, member, stockholder, Affiliate or assignee of any of
the foregoing.
9.11 Submission to
Jurisdiction. Each of the parties to this
Agreement (a) consents to submit itself to the personal
jurisdiction of the Court of Chancery of the State of Delaware
in any action or proceeding arising out of or relating to this
Agreement or any of the transactions contemplated by this
Agreement, (b) agrees that all claims in respect of such
action or proceeding may be heard and determined only in such
court, (c) agrees that it shall not attempt to deny or
defeat such personal jurisdiction by motion or other request for
leave from such court, and (d) agrees not to bring any
action or proceeding arising out of or relating to this
Agreement or any of the transactions contemplated by this
Agreement in any other court. Each of the parties hereto waives
any defense of inconvenient forum to the maintenance of any
action or proceeding so brought and waives any bond, surety or
other security that might be required of any other party with
respect thereto. To the fullest extent permitted by law, any
party hereto may make service on another party by sending or
delivering a copy of the process to the party to be served at
the address and in the manner provided for the giving of notices
in Section 9.2. Nothing in this Section 9.11, however,
shall affect the right of any party to serve legal process in
any other manner permitted by law.
9.12 Disclosure Schedules. The
Company Disclosure Schedule and the Buyer Disclosure Schedule
shall each be arranged in Sections corresponding to the numbered
Sections contained in Article III, in the case of the
Company Disclosure Schedule, or Article IV, in the case of
the Buyer Disclosure Schedule, and the disclosure in any Section
shall qualify (a) the corresponding Section in
Article III or Article IV, as the case may be, and
(b) the other Sections in Article III or
Article IV, as the case may be, to the extent that it is
readily apparent from a reading of such disclosure that it also
qualifies or applies to such other Sections. The inclusion of
any information in the Company Disclosure Schedule or the Buyer
Disclosure Schedule shall not be deemed to be an admission or
acknowledgment, in and of itself, that such information is
required by the terms hereof to be disclosed, is material, has
resulted in or would result in a Company Material Adverse Effect
or a Buyer Material Adverse Effect, or is outside the Ordinary
Course of Business.
9.13 Knowledge. For purposes of
this Agreement, the term “Company’s
Knowledge” means the actual knowledge of the
individuals identified in Section 9.13 of the Company
Disclosure Schedule, and the term “Buyer’s
Knowledge” means the actual knowledge of the
individuals identified in Section 9.13 of the Buyer
Disclosure Schedule.
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IN WITNESS WHEREOF, the Buyer, the Transitory Subsidiary and the
Company have caused this Agreement to be signed by their
respective officers thereunto duly authorized as of the date
first written above.
72 MOBILE HOLDINGS, LLC
Name: Xxxxx Xxxxxx
72 MOBILE ACQUISITION CORP.
Name: Xxxxx Xxxxxx
AIRVANA, INC.
Name: Xxxxxxx Xxxxxx
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EXHIBIT A
FORM OF
RESTATED
CERTIFICATE OF INCORPORATION
OF
AIRVANA, INC.
FIRST. The name of the corporation is Airvana, Inc.
(the “Corporation”).
SECOND. The address of the Corporation’s
registered office in the State of Delaware is Corporation
Trust Center, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000. The name of its registered agent at such
address is The Corporation Trust Company.
THIRD. The purpose of the Corporation is to engage in
any lawful act or activity for which corporations may be
organized under the General Corporation Law of the State of
Delaware (the “DGCL”).
FOURTH. The total number of shares of stock which the
Corporation shall have authority to issue is one thousand
(1,000) shares of common stock, par value $0.001 per share.
FIFTH. The board of directors of the Corporation,
acting by the vote of any member or members of the board of
directors representing a majority of the votes entitled to be
cast at a meeting of the board of directors, is expressly
authorized to adopt, amend or repeal the bylaws of the
Corporation.
SIXTH. Except to the extent that the DGCL prohibits
the elimination or limitation of liability of directors for
breaches of fiduciary duty, no director of the Corporation shall
be personally liable to the Corporation or its stockholders for
monetary damages for any breach of fiduciary duty as a director,
notwithstanding any provision of law imposing such liability. No
amendment to or repeal of this provision shall apply to or have
any effect on the liability or alleged liability of any director
of the Corporation for or with respect to any acts or omissions
of such director occurring prior to such amendment or repeal. If
the DGCL is amended to permit further elimination or limitation
of the personal liability of directors, then the liability of a
director of the Corporation shall be eliminated or limited to
the fullest extent permitted by the DGCL as so amended.
SEVENTH. The Corporation shall provide
indemnification as follows:
1. Actions, Suits and Proceedings Other than by or in
the Right of the Corporation. The Corporation shall
indemnify each person who was or is a party or threatened to be
made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the
Corporation) by reason of the fact that he or she is or was, or
has agreed to become, a director or officer of the Corporation,
or is or was serving, or has agreed to serve, at the request of
the Corporation, as a director, officer, partner, employee or
trustee of, or in a similar capacity with, another corporation,
partnership, joint venture, trust or other enterprise (including
any employee benefit plan) (all such persons being referred to
hereafter as an “Indemnitee”), or by reason of any
action alleged to have been taken or omitted in such capacity,
against all expenses (including attorneys’ fees),
liabilities, losses, judgments, fines, excise taxes and
penalties arising under the Employee Retirement Income Security
Act of 1974, and amounts paid in settlement actually and
reasonably incurred by or on behalf of such Indemnitee in
connection with such action, suit or proceeding and any appeal
therefrom, if such Indemnitee acted in good faith and in a
manner which such Indemnitee reasonably believed to be in, or
not opposed to, the best interests of the Corporation, and, with
respect to any criminal action or proceeding, had no reasonable
cause to believe his or her conduct was unlawful. The
termination of any action, suit or proceeding by judgment,
order, settlement, conviction or upon a plea of nolo contendere
or its equivalent, shall not, of itself, create a presumption
that such Indemnitee did not act in good faith and in a manner
which such Indemnitee reasonably believed to be in, or not
opposed to, the best interests of the Corporation, and, with
respect to any criminal action or proceeding, had reasonable
cause to believe that his or her conduct was unlawful.
2. Actions or Suits by or in the Right of the
Corporation. The Corporation shall indemnify any Indemnitee
who was or is a party to or threatened to be made a party to any
threatened, pending or completed action or suit by or in the
right of the Corporation to procure a judgment in its favor by
reason of the fact that such Indemnitee is or was, or has agreed
to become, a director or officer of the Corporation, or is or
was serving, or has agreed to serve, at the
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request of the Corporation, as a director, officer, partner,
employee or trustee of, or in a similar capacity with, another
corporation, partnership, joint venture, trust or other
enterprise (including any employee benefit plan), or by reason
of any action alleged to have been taken or omitted in such
capacity, against all expenses (including attorneys’ fees)
and, to the extent permitted by law, amounts paid in settlement
actually and reasonably incurred by or on behalf of Indemnitee
in connection with such action, suit or proceeding and any
appeal therefrom, if such Indemnitee acted in good faith and in
a manner which such Indemnitee reasonably believed to be in, or
not opposed to, the best interests of the Corporation, except
that no indemnification shall be made under this Section 2
of this Article SEVENTH in respect of any claim, issue or
matter as to which such Indemnitee shall have been adjudged to
be liable to the Corporation, unless, and only to the extent,
that the Court of Chancery of the State of Delaware or the court
in which such action or suit was brought shall determine upon
application that, despite the adjudication of such liability but
in view of all the circumstances of the case, such Indemnitee is
fairly and reasonably entitled to indemnity for such expenses
(including attorneys’ fees) which the Court of Chancery of
the State of Delaware or such other court shall deem proper.
3. Indemnification for Expenses of Successful Party.
Notwithstanding any other provisions of this
Article SEVENTH, to the extent that an Indemnitee has been
successful, on the merits or otherwise, in defense of any
action, suit or proceeding referred to in Sections 1 and 2
of this Article SEVENTH, or in defense of any claim, issue
or matter therein, or on appeal from any such action, suit or
proceeding, such Indemnitee shall be indemnified against all
expenses (including attorneys’ fees) actually and
reasonably incurred by or on behalf of Indemnitee in connection
therewith. Without limiting the foregoing, if any action, suit
or proceeding is disposed of, on the merits or otherwise
(including a disposition without prejudice), without
(i) the disposition being adverse to such Indemnitee,
(ii) an adjudication that such Indemnitee was liable to the
Corporation, (iii) a plea of guilty or nolo contendere by
such Indemnitee, (iv) an adjudication that such Indemnitee
did not act in good faith and in a manner he or she reasonably
believed to be in or not opposed to the best interests of the
Corporation, and (v) with respect to any criminal
proceeding, an adjudication that such Indemnitee had reasonable
cause to believe his or her conduct was unlawful, then such
Indemnitee shall be considered for the purposes hereof to have
been wholly successful with respect thereto.
4. Notification and Defense of Claim. As a condition
precedent to an Indemnitee’s right to be indemnified, such
Indemnitee must notify the Corporation in writing as soon as
practicable of any action, suit, proceeding or investigation
involving such Indemnitee for which indemnity will or could be
sought. With respect to any action, suit, proceeding or
investigation of which the Corporation is so notified, the
Corporation will be entitled to participate therein at its own
expense
and/or to
assume the defense thereof at its own expense, with legal
counsel reasonably acceptable to Indemnitee. After notice from
the Corporation to such Indemnitee of its election so to assume
such defense, the Corporation shall not be liable to such
Indemnitee for any legal or other expenses subsequently incurred
by such Indemnitee in connection with such action, suit,
proceeding or investigation, other than as provided below in
this Section 4 of this Article SEVENTH. Such
Indemnitee shall have the right to employ his or her own counsel
in connection with such action, suit, proceeding or
investigation, but the fees and expenses of such counsel
incurred after notice from the Corporation of its assumption of
the defense thereof shall be at the expense of such Indemnitee
unless (i) the employment of counsel by such Indemnitee has
been authorized by the Corporation, (ii) counsel to such
Indemnitee shall have reasonably concluded that there may be a
conflict of interest or position on any significant issue
between the Corporation and such Indemnitee in the conduct of
the defense of such action, suit, proceeding or investigation or
(iii) the Corporation shall not in fact have employed
counsel to assume the defense of such action, suit, proceeding
or investigation, in each of which cases the fees and expenses
of counsel for such Indemnitee shall be at the expense of the
Corporation, except as otherwise expressly provided by this
Article SEVENTH. The Corporation shall not be entitled,
without the consent of such Indemnitee, to assume the defense of
any claim brought by or in the right of the Corporation or as to
which counsel for such Indemnitee shall have reasonably made the
conclusion provided for in clause (ii) above. The
Corporation shall not be required to indemnify such Indemnitee
under this Article SEVENTH for any amounts paid in
settlement of any action, suit, proceeding or investigation
effected without its written consent. The Corporation shall not
settle any action, suit, proceeding or investigation in any
manner which would impose any penalty or limitation on such
Indemnitee without such Indemnitee’s written consent.
Neither the Corporation nor Indemnitee will unreasonably
withhold or delay its consent to any proposed settlement.
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5. Advance of Expenses. Subject to the provisions of
Section 6 of this Article SEVENTH, in the event of any
threatened or pending action, suit, proceeding or investigation
of which the Corporation receives notice under this
Article SEVENTH, any expenses (including attorneys’
fees) incurred by or on behalf of an Indemnitee in defending an
action, suit, proceeding or investigation or any appeal
therefrom shall be paid by the Corporation in advance of the
final disposition of such matter; provided, however, that the
payment of such expenses incurred by or on behalf of such
Indemnitee in advance of the final disposition of such matter
shall be made only upon receipt of an undertaking by or on
behalf of such Indemnitee to repay all amounts so advanced in
the event that it shall ultimately be determined that such
Indemnitee is not entitled to be indemnified by the Corporation
as authorized in this Article SEVENTH; and provided further
that no such advancement of expenses shall be made under this
Article SEVENTH if it is determined (in the manner
described in Section 6 of this Article SEVENTH) that
(i) such Indemnitee did not act in good faith and in a
manner he or she reasonably believed to be in, or not opposed
to, the best interests of the Corporation, or (ii) with
respect to any criminal action or proceeding, such Indemnitee
had reasonable cause to believe his or her conduct was unlawful.
Such undertaking shall be accepted without reference to the
financial ability of such Indemnitee to make such repayment.
6. Procedure for Indemnification and Advancement of
Expenses. In order to obtain indemnification or advancement
of expenses pursuant to Section 1, 2, 3 or 5 of this
Article SEVENTH, an Indemnitee shall submit to the
Corporation a written request. Any such advancement of expenses
shall be made promptly, and in any event within 60 days
after receipt by the Corporation of the written request of such
Indemnitee, unless (i) the Corporation has assumed the
defense pursuant to Section 4 of this Article SEVENTH
(and none of the circumstances described in Section 4 of
this Article SEVENTH that would nonetheless entitle the
Indemnitee to indemnification for the fees and expenses of
separate counsel have occurred) or (ii) the Corporation
determines within such
60-day
period that such Indemnitee did not meet the applicable standard
of conduct set forth in Section 1, 2 or 5 of this
Article SEVENTH, as the case may be. Any such
indemnification, unless ordered by a court, shall be made with
respect to requests under Section 1 or 2 of this
Article SEVENTH only as authorized in the specific case
upon a determination by the Corporation that the indemnification
of Indemnitee is proper because Indemnitee has met the
applicable standard of conduct set forth in Section 1 or 2,
as the case may be. Such determination shall be made in each
instance (a) by a majority vote of the directors of the
Corporation consisting of persons who are not at that time
parties to the action, suit or proceeding in question
(“disinterested directors”), whether or not a quorum,
(b) by a committee of disinterested directors designated by
majority vote of disinterested directors, whether or not a
quorum, (c) if there are no disinterested directors, or if
the disinterested directors so direct, by independent legal
counsel (who may, to the extent permitted by law, be regular
legal counsel to the Corporation) in a written opinion, or
(d) by the stockholders of the Corporation.
7. Remedies. The right to indemnification or
advancement of expenses as granted by this Article SEVENTH
shall be enforceable by Indemnitee in any court of competent
jurisdiction. Neither the failure of the Corporation to have
made a determination prior to the commencement of such action
that indemnification is proper in the circumstances because an
Indemnitee has met the applicable standard of conduct, nor an
actual determination by the Corporation pursuant to
Section 6 of this Article SEVENTH that an Indemnitee
has not met such applicable standard of conduct, shall be a
defense to the action or create a presumption that an Indemnitee
has not met the applicable standard of conduct. An
Indemnitee’s expenses (including attorneys’ fees)
reasonably incurred in connection with successfully establishing
such Indemnitee’s right to indemnification, in whole or in
part, in any such proceeding shall also be indemnified by the
Corporation. Notwithstanding the foregoing, in any suit brought
by an Indemnitee to enforce a right to indemnification hereunder
it shall be a defense that the Indemnitee has not met any
applicable standard for indemnification set forth in the DGCL.
8. Limitations. Notwithstanding anything to the
contrary in this Article SEVENTH, except as set forth in
Section 7 of this Article SEVENTH, the Corporation
shall not indemnify an Indemnitee pursuant to this
Article SEVENTH in connection with a proceeding (or part
thereof) initiated by such Indemnitee unless the initiation
thereof was approved by the Board of Directors of the
Corporation. Notwithstanding anything to the contrary in this
Article SEVENTH, the Corporation shall not indemnify an
Indemnitee to the extent such Indemnitee is reimbursed from the
proceeds of insurance, and in the event the Corporation makes
any indemnification payments to an Indemnitee and such
Indemnitee is subsequently reimbursed from the proceeds of
A-3
insurance, such Indemnitee shall promptly refund indemnification
payments to the Corporation to the extent of such insurance
reimbursement.
9. Subsequent Amendment. No amendment, termination
or repeal of this Article SEVENTH or of the relevant
provisions of the DGCL or any other applicable laws shall
adversely affect or diminish in any way the rights of any
Indemnitee to indemnification under the provisions hereof with
respect to any action, suit, proceeding or investigation arising
out of or relating to any actions, transactions or facts
occurring prior to the final adoption of such amendment,
termination or repeal.
10. Other Rights. The indemnification and
advancement of expenses provided by this Article SEVENTH
shall not be deemed exclusive of any other rights to which an
Indemnitee seeking indemnification or advancement of expenses
may be entitled under any law (common or statutory), agreement
or vote of stockholders or disinterested directors or otherwise,
both as to action in such Indemnitee’s official capacity
and as to action in any other capacity while holding office for
the Corporation, and shall continue as to an Indemnitee who has
ceased to be a director or officer, and shall inure to the
benefit of the estate, heirs, executors and administrators of
such Indemnitee. Nothing contained in this Article SEVENTH
shall be deemed to prohibit, and the Corporation is specifically
authorized to enter into, agreements with officers and directors
providing indemnification rights and procedures different from
those set forth in this Article SEVENTH. In addition, the
Corporation may, to the extent authorized from time to time by
its Board of Directors, grant indemnification rights to other
employees or agents of the Corporation or other persons serving
the Corporation and such rights may be equivalent to, or greater
or less than, those set forth in this Article SEVENTH.
11. Partial Indemnification. If an Indemnitee is
entitled under any provision of this Article SEVENTH to
indemnification by the Corporation for some or a portion of the
expenses (including attorneys’ fees), judgments, fines or
amounts paid in settlement actually and reasonably incurred by
or on behalf of such Indemnitee in connection with any action,
suit, proceeding or investigation and any appeal therefrom but
not, however, for the total amount thereof, the Corporation
shall nevertheless indemnify such Indemnitee for the portion of
such expenses (including attorneys’ fees), judgments, fines
or amounts paid in settlement to which such Indemnitee is
entitled.
12. Primacy of Indemnification. The Corporation
hereby acknowledges that an Indemnitee may have certain rights
to indemnification, advancement of expenses
and/or
insurance provided by S.A.C. Private Capital Group, LLC
and/or
certain of its affiliates (collectively, the
“Fund Indemnitors”). The Corporation hereby
agrees (i) that as between the Corporation and the
Fund Indemnitors, the Corporation is the indemnitor of
first resort with respect to matters which are the subject of
indemnification or advancement of expenses under this
Article SEVENTH (i.e., its obligations to the Indemnitees
are primary and any obligation of the Fund Indemnitors to
advance expenses or to provide indemnification for the same
expenses or liabilities incurred by the Indemnitees are
secondary), (ii) that it shall be required to advance the
full amount of expenses incurred by the Indemnitees and shall be
liable for the full amount of all expenses, judgments,
penalties, fines and amounts paid in settlement to the extent
legally permitted and as required by these Articles (or any
agreement between the Corporation and the Indemnitee), without
regard to any rights the Indemnitee may have against the
Fund Indemnitors, and, (iii) that it irrevocably
waives, relinquishes and releases the Fund Indemnitors from
any and all claims against the Fund Indemnitors for
contribution, subrogation or any other recovery of any kind in
respect thereof. The Corporation further agrees that no
advancement or payment by the Fund Indemnitors on behalf of
any Indemnitee with respect to any claim for which the
Indemnitee has sought indemnification from the Corporation shall
affect the foregoing and the Fund Indemnitors shall have a
right of contribution
and/or be
subrogated to the extent of such advancement or payment to all
of the rights of recovery of an Indemnitee against the
Corporation.
13. Insurance. The Corporation may purchase and
maintain insurance, at its expense, to protect itself and any
director, officer, employee or agent of the Corporation or
another corporation, partnership, joint venture, trust or other
enterprise (including any employee benefit plan) against any
expense, liability or loss incurred by him or her in any such
capacity, or arising out of his or her status as such, whether
or not the Corporation would have the power to indemnify such
person against such expense, liability or loss under the DGCL.
14. Savings Clause. If this Article SEVENTH or
any portion hereof shall be invalidated on any ground by any
court of competent jurisdiction, then the Corporation shall
nevertheless indemnify each Indemnitee as to any expenses
(including attorneys’ fees), judgments, fines and amounts
paid in settlement in connection with any action,
A-4
suit, proceeding or investigation, whether civil, criminal or
administrative, including an action by or in the right of the
Corporation, to the fullest extent permitted by any applicable
portion of this Article SEVENTH that shall not have been
invalidated and to the fullest extent permitted by applicable
law.
15. Definitions. Terms used herein and defined in
Section 145(h) and Section 145(i) of the DGCL shall
have the respective meanings assigned to such terms in such
Section 145(h) and Section 145(i).
EIGHTH.
1. To the fullest extent permitted by law, the Corporation
acknowledges that: (i) S.A.C. Private Capital Group, LLC,
its affiliates (other than the Corporation), and its and their
respective partners, members, officers, directors and employees,
and each Paragraph (2) Person (as defined below)
(collectively, the “Exempt Persons”) shall have no
duty (fiduciary, contractual or otherwise) not to, directly or
indirectly (a) engage in the same or similar business
activities or lines of business as the Corporation or any of its
subsidiaries, including those deemed to be competing with the
Corporation or any of its subsidiaries, (b) do business
with any client, customer or vendor of the Corporation or any of
its subsidiaries or (c) enter into and perform one or more
agreements (or modifications or supplements to pre-existing
agreements) with the Corporation or any of its subsidiaries,
including, in the cases of clauses (a), (b) or (c), any
such matters as may be corporate opportunities; and (ii) no
Exempt Person nor any officer, director or employee thereof
shall be deemed to have breached any duties (fiduciary,
contractual or otherwise), if any, to the Corporation, any of
its subsidiaries or its stockholders solely by reason of any
Exempt Person engaging in any such activity or entering into
such transactions, including any corporate opportunities.
2. The Corporation and its subsidiaries shall have no
interest or expectation in, nor right to be informed of, any
corporate opportunity, and in the event that any Exempt Person
acquires knowledge of a potential transaction or matter which
may be a corporate opportunity, such Exempt Person, to the
fullest extent permitted by law, has no duty (fiduciary,
contractual or otherwise) or obligation to communicate or offer
such corporate opportunity to the Corporation or any of its
subsidiaries, stockholders or to any other person and shall not,
to the fullest extent permitted by law, be liable to the
Corporation or any of its subsidiaries, stockholders or any
other person for breach of any fiduciary duty as a director,
officer or stockholder of the Corporation or any of its
subsidiaries by reason of the fact that any Exempt Person
acquires or seeks such corporate opportunity for itself, directs
such corporate opportunity to another person or entity, or
otherwise does not communicate information regarding such
corporate opportunity to the Corporation or its subsidiaries,
stockholders or any other person, and the Corporation and its
subsidiaries, to the fullest extent permitted by law, waive and
renounce any claim that such business opportunity constituted a
corporate opportunity that should have been presented to the
Corporation or any of its affiliates; provided, that if an
opportunity is expressly communicated to a Paragraph
(2) Person in his or her capacity as a director or officer
of the Corporation or subsidiary of the Corporation for the
express purpose of causing such opportunity to be communicated
to the Corporation or such subsidiary, then such Paragraph
(2) Person shall satisfy his or her fiduciary obligation,
if any, by communicating the opportunity, or, in lieu thereof,
the identity of the party initiating the communication, to the
board of directors. For the purposes of this Certificate of
Incorporation, (a) “corporate opportunity” shall
include, without limitation, any potential transaction,
investment or business opportunity or prospective economic or
competitive advantage in which the Corporation or any of its
subsidiaries could have any expectancy or interest; and
(b) “Paragraph (2) Person” shall mean any
director or officer of the Corporation or any of its
subsidiaries who is also a director, officer or employee of any
of S.A.C. Private Capital Group, LLC, its affiliates (other than
the Corporation), and its and their respective partners and
members.
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EXHIBIT B
EXECUTION
VERSION
LIMITED
GUARANTEE
LIMITED GUARANTEE, dated as of December 17, 2009
(this “Limited Guarantee”), by S.A.C. Capital
Management, LLC (the “Guarantor”) in favor of
Airvana, Inc. (the “Guaranteed Party”).
1.
LIMITED GUARANTEE. To induce the
Guaranteed Party to enter into that certain Agreement and Plan
of Merger, dated as of December 17, 2009 (as amended,
restated, supplemented or otherwise modified from time to time
pursuant to the terms thereof, the “
Merger
Agreement”), by and among the Guaranteed Party, 72
Mobile Acquisition Corp. and 72 Mobile Holdings, LLC (the
“
Buyer”), pursuant to which and subject to the
terms and conditions of which the Guaranteed Party will become a
wholly owned subsidiary of the Buyer (the
“
Merger”), the Guarantor, intending to be
legally bound, hereby absolutely, irrevocably and
unconditionally guarantees to the Guaranteed Party, on the terms
and conditions set forth herein the due and punctual payment as
and when due of the payment obligations of Buyer with respect to
(a) the Buyer Termination Fee, subject to the limitations
of the
Merger Agreement, (b) any amounts payable by Buyer
pursuant to Section 8.3(e) of the
Merger Agreement in
respect of the Buyer Termination Fee, subject to the limitations
of the
Merger Agreement, (c) any amounts payable by Buyer
pursuant to Section 5.4(d) of the
Merger Agreement;
(d) any amounts payable by Buyer pursuant to
Section 6.13 of the
Merger Agreement and (e) any
amounts payable by Buyer pursuant to Section 6.16 of the
Merger Agreement ((a) through (e) collectively, the
“
Obligations”), provided that notwithstanding
anything to the contrary contained in this Limited Guarantee, in
no event shall the Guarantor’s aggregate liability under
this Limited Guarantee exceed $25,000,000.00, plus any amounts
payable by Buyer pursuant to Section 8.3(e) of the
Merger
Agreement in respect of the Buyer Termination Fee, plus any
Reimbursement Obligations, less the portion of the foregoing
amounts, if any, indefeasibly paid to the Guaranteed Party by
the Buyer that is not rescinded or otherwise returned, the
Transitory Subsidiary or any other Person (the
“
Cap”), it being understood that this Limited
Guarantee may not be enforced without giving effect to the Cap.
The Guaranteed Party hereby agrees that in no event shall the
Guarantor be required to pay any amount to the Guaranteed Party
under, in respect of, or in connection with this Limited
Guarantee, the Equity Commitment Letter, the
Merger Agreement or
the transactions contemplated hereby and thereby other than as
expressly set forth herein. All payments hereunder shall be made
in lawful money of the United States, in immediately available
funds. Each capitalized term used but not defined herein shall
have the meaning ascribed to it in the Merger Agreement, except
as otherwise provided.
If the Buyer fails to pay the Obligations when due, then all of
the Guarantor’s liabilities to the Guaranteed Party
hereunder in respect of such Obligations shall, at the
Guaranteed Party’s option, become immediately due and
payable and the Guaranteed Party may at any time and from time
to time, at the Guaranteed Party’s option, take any and all
actions available hereunder or under applicable law to collect
the Obligations from the Guarantor. In furtherance of the
foregoing, the Guarantor acknowledges that the Guaranteed Party
may, in its sole discretion, bring and prosecute a separate
action or actions against the Guarantor for the full amount of
the Obligations (subject to the Cap) regardless of whether any
action is brought against the Buyer.
The Guarantor agrees to pay on demand all reasonable and
documented out-of-pocket expenses (including reasonable fees and
expenses of counsel) incurred by the Guaranteed Party in
connection with the enforcement of its rights hereunder if the
Guarantor fails or refuses to make any payment to the Guaranteed
Party hereunder when due and payable and it is judicially
determined that the Guarantor is required to make such payment
hereunder. Amounts payable to the Guaranteed Party pursuant to
the previous sentence shall be referred to herein as the
“Reimbursement Obligations”.
2. NATURE OF GUARANTEE. The
Guarantor’s liability hereunder is absolute, unconditional,
irrevocable and continuing irrespective of any modification,
amendment or waiver of or any consent to departure from the
Merger Agreement that may be agreed to by the Buyer or the
Transitory Subsidiary. In the event that any payment to the
Guaranteed Party in respect of the Obligations is rescinded or
must otherwise be returned for any reason whatsoever, the
Guarantor shall remain liable hereunder with respect to the
Obligations (subject to the Cap) as if such payment had not been
made. This Limited Guarantee is an unconditional and continuing
guarantee of payment
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and not of collection, and the Guaranteed Party shall not be
required to proceed against the Buyer or the Transitory
Subsidiary before proceeding against the Guarantor hereunder.
3. CHANGES IN OBLIGATION, CERTAIN
WAIVERS. The Guarantor agrees that the Guaranteed
Party may, in its sole discretion, at any time and from time to
time, without notice to or further consent of the Guarantor,
extend the time of payment of the Obligations, and may also make
any agreement with the Buyer or the Transitory Subsidiary for
the extension or renewal thereof, in whole or in part, without
in any way impairing or affecting the Guarantor’s
obligations under this Limited Guarantee or affecting the
validity or enforceability of this Limited Guarantee. The
Guarantor agrees that the obligations of the Guarantor hereunder
shall not be released or discharged, in whole or in part, or
otherwise affected by (a) the failure or delay on the part
of the Guaranteed Party to assert any claim or demand or to
enforce any right or remedy against the Buyer or the Transitory
Subsidiary; (b) any change in the time, place or manner of
payment of any of the Obligations, or any rescission, waiver,
compromise, consolidation, or other amendment or modification of
any of the terms or provisions of the Merger Agreement made in
accordance with the terms thereof; (c) the addition or
substitution of any entity or other Person now or hereafter
liable with respect to the Obligations or otherwise interested
in the transactions contemplated by the Merger Agreement;
(d) any change in the corporate existence, structure or
ownership of the Buyer, the Transitory Subsidiary or any Person
now or hereafter liable with respect to the Obligations or
otherwise interested in the transactions contemplated by the
Merger Agreement; (e) the existence of any claim, set-off
or other right which the Guarantor may have at any time against
the Buyer, the Transitory Subsidiary or the Guaranteed Party or
any of their respective Affiliates, whether in connection with
the Obligations or otherwise except as provided herein;
(f) the adequacy of any other means the Guaranteed Party
may have of obtaining payment related to the Obligations;
(g) any insolvency, bankruptcy, reorganization or other
similar proceeding affecting the Buyer, the Transitory
Subsidiary or any other Person now or hereafter liable with
respect to the Obligations or otherwise interested in the
transactions contemplated by the Merger Agreement; and
(h) any discharge of the Guarantor as a matter of
applicable law (other than as a result of, and to the extent of,
payment of the Obligations in accordance with the terms of the
Merger Agreement). To the fullest extent permitted by applicable
law, the Guarantor hereby expressly waives any and all rights or
defenses arising by reason of any applicable law which would
otherwise require any election of remedies by the Guaranteed
Party. The Guarantor waives promptness, diligence, notice of the
acceptance of this Limited Guarantee and of the Obligations,
presentment, demand for payment, notice of non-performance,
default, dishonor and protest, notice of the Obligations
incurred and all other notices of any kind, all defenses which
may be available by virtue of any valuation, stay, moratorium or
other similar applicable law now or hereafter in effect, and all
suretyship defenses generally (other than fraud by the
Guaranteed Party or any of its Affiliates or defenses to the
payment of the Obligations that are available to Buyer under the
Merger Agreement or breach by the Guaranteed Party of this
Limited Guarantee). The Guarantor acknowledges that it will
receive substantial direct and indirect benefits from the
transactions contemplated by the Merger Agreement and that the
waivers, agreements, covenants, obligations and other terms in
this Limited Guarantee are knowingly made and agreed to in
contemplation of such benefits. The Guaranteed Party hereby
covenants and agrees that it shall not institute, directly or
indirectly, and shall cause its Affiliates not to institute,
directly or indirectly, any proceeding or bring any other claim
arising under, in respect of or in connection with the Equity
Commitment Letter, the Merger Agreement or the transactions
contemplated thereby, against the Guarantor or any Non-Recourse
Party (as defined in Section 9 herein), except for claims
against the Guarantor under this Limited Guarantee (subject to
the limitations described herein) and claims under the
Confidentiality Agreement. The Guarantor hereby covenants and
agrees that it shall not assert, directly or indirectly, in any
proceeding that this Limited Guarantee is illegal, invalid or
unenforceable in accordance with its terms.
4. NO WAIVER; CUMULATIVE RIGHTS. For so
long as this Limited Guarantee shall remain in effect in
accordance with Section 8 hereof, no failure to exercise,
and no delay in exercising, any right, remedy or power hereunder
shall operate as a waiver thereof; nor shall any single or
partial exercise of any right, remedy or power hereunder
preclude any other or future exercise of any right, remedy or
power hereunder. Each and every right, remedy and power hereby
granted to the Guaranteed Party shall be cumulative and not
exclusive of any other, and may be exercised by the Guaranteed
Party at any time or from time to time. The Guaranteed Party
shall not have any obligation to proceed at any time or in any
manner against, or exhaust any or all of the Guaranteed
Party’s rights against, the Buyer, the Transitory
Subsidiary or any other Person now or hereafter liable for any
Obligation or interested in the transactions contemplated by the
Merger Agreement prior to proceeding against the Guarantor.
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5. REPRESENTATIONS AND WARRANTIES. The
Guarantor hereby represents and warrants that:
(a) It has all requisite limited liability company power
and authority to execute, deliver and perform this Limited
Guarantee; the execution, delivery and performance of this
Limited Guarantee have been duly and validly authorized by all
necessary action, and do not contravene any provision of the
Guarantor’s charter, partnership agreement, operating
agreement or similar organizational documents, or any applicable
law or contractual restriction binding on the Guarantor or its
assets; and the Person executing and delivering this Limited
Guarantee on behalf of the Guarantor is duly authorized to do so;
(b) all consents, approvals, authorizations, permits of,
filings with and notifications to, any governmental entity
necessary for the due execution, delivery and performance of
this Limited Guarantee by the Guarantor have been obtained or
made and all conditions thereof have been duly complied with,
and no other action by, and no notice to or filing with, any
governmental entity is required in connection with the
execution, delivery or performance of this Limited Guarantee;
(c) this Limited Guarantee constitutes a legal, valid and
binding obligation of the Guarantor enforceable against the
Guarantor in accordance with its terms, subject to (i) the
effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or other similar applicable laws
affecting creditors’ rights generally, and
(ii) general equitable principles (whether considered in a
proceeding in equity or at law); and
(d) the Guarantor has the financial capacity to pay and
perform its obligations under this Limited Guarantee, and all
funds necessary for the Guarantor to fulfill its obligations
under this Limited Guarantee shall be available to the Guarantor
(or its permitted assignee pursuant to Section 6 hereof)
for so long as this Limited Guarantee shall remain in effect in
accordance with Section 8 hereof.
6. NO ASSIGNMENT. Neither this Limited
Guarantee nor any right or obligation hereunder may be assigned
by any party (by operation of law or otherwise) without the
prior written consent of the other party, except that, without
the prior written consent of the Guaranteed Party, this Limited
Guarantee may be assigned, in whole or in part, by the Guarantor
to one or more of its Affiliates or to one or more investment
funds sponsored or managed by the Guarantor or one or more of
its Affiliates; provided, that any such assignment will
not release the Guarantor from its obligations hereunder. Any
attempted assignment in violation of this section shall be null
and void.
7. NOTICES. All notices, requests,
claims, demands and other communications hereunder shall be
given by the means specified in the Merger Agreement (and shall
be deemed given as specified therein), as follows:
if to the Guarantor:
c/o S.A.C.
Capital Advisors, L.P.
00 Xxxxxxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: General Counsel
Facsimile:
(000) 000-0000
with a copy to (which alone shall not constitute notice):
Xxxxxxx Xxxxxxx & Xxxxxxxx LLP
1999 Avenue of the Stars — 00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxx
Facsimile:
(000) 000-0000
If to the Guaranteed Party, as provided in the Merger Agreement.
8. CONTINUING GUARANTEE. This Limited
Guarantee may not be revoked or terminated and shall remain in
full force and effect and shall be binding on the Guarantor, its
successors and permitted assigns until the Obligations have been
paid in full. Notwithstanding the foregoing, this Limited
Guarantee shall terminate and the Guarantor shall have no
further obligations under this Limited Guarantee as of the
earliest of (i) the Closing in accordance with the terms of
the Merger Agreement, including payment of the Merger
Consideration, (ii) the valid termination of the Merger
Agreement in accordance with its terms under circumstances set
forth in the Merger
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Agreement in which Buyer would not be obligated to pay the Buyer
Termination Fee and (iii) the payment to the Guaranteed
Party by any combination of Buyer
and/or the
Guarantor of the full amount of the Obligations. Notwithstanding
any other term or provision of this Limited Guarantee, in the
event that the Guaranteed Party or any of its Affiliates asserts
in any litigation or other proceeding that the provisions of
Section 1 hereof limiting the Guarantor’s liability to
the Cap or any other provisions of this Limited Guarantee are
illegal, invalid or unenforceable in whole or in part, or
asserting any theory of liability against the Guarantor or any
Non-Recourse Party with respect to the transactions contemplated
by the Merger Agreement other than liability of the Guarantor
under this Limited Guarantee (as limited by the provisions of
Section 1) or under the Confidentiality Agreement,
then (x) the obligations of the Guarantor under this
Limited Guarantee shall terminate ab initio and shall
thereupon be null and void, (y) if the Guarantor has
previously made any payments under this Limited Guarantee, it
shall be entitled to recover such payments from the Guaranteed
Party, and (z) neither the Guarantor, nor any Non-Recourse
Parties shall have any liability to the Guaranteed Party or any
of its Affiliates with respect to the Equity Commitment Letter,
the Merger Agreement or the transactions contemplated by the
Merger Agreement or under this Limited Guarantee.
9. NO RECOURSE. Notwithstanding anything
that may be expressed or implied in this Limited Guarantee or
any document or instrument delivered in connection herewith, by
its acceptance of the benefits of this Limited Guarantee, the
Guaranteed Party covenants, agrees and acknowledges that no
Person other than the Guarantor has any obligation hereunder and
that, notwithstanding that the Guarantor
and/or
certain investment managers, managers or general partners of it
or its Affiliates may be partnerships or limited liability
companies, the Guaranteed Party has no right of recovery under
this Limited Guarantee, or any claim based on such obligations
against, and no personal liability shall attach to, the former,
current or future equity holders, controlling persons,
directors, officers, employees, agents, Affiliates (other than
the Guarantor or any assignee under
Section 6) including, for the avoidance of doubt,
S.A.C. Private Capital Group, LLC, members, managers or general
or limited partners of the Guarantor or Buyer, or any former,
current or future equity holder, controlling person, director,
officer, employee, general or limited partner, member, manager,
Affiliate (other than the Guarantor or any assignee under
Section 6) or agent of any of the foregoing
(collectively, each of the foregoing but not including the
Buyer, the Transitory Subsidiary or their respective assignees
themselves, a “Non-Recourse Party”), through
Buyer or otherwise, whether by or through attempted piercing of
the corporate veil, by or through a claim by or on behalf of
Buyer against any Non-Recourse Party (including a claim to
enforce the Equity Commitment Letter), by the enforcement of any
assessment or by any legal or equitable proceeding, by virtue of
any statute, regulation or applicable law, or otherwise, and the
Guaranteed Party further covenants, agrees and acknowledges that
the only rights of recovery that the Guaranteed Party has in
respect of the Equity Commitment Letter, the Merger Agreement or
the transactions contemplated thereby against any Non-Recourse
Party are its rights (i) to recover from the Guarantor (but
not any Non-Recourse Party) under and to the extent expressly
provided in this Limited Guarantee and subject to the Cap and
the other limitations described herein and (ii) under the
Confidentiality Agreement. The Guaranteed Party acknowledges and
agrees that Buyer has no assets other than certain contract
rights and cash in a de minimis amount and that no
additional funds are expected to be contributed to Buyer unless
and until the Closing occurs. Other than with respect to a claim
brought under the Confidentiality Agreement, recourse against
the Guarantor under and pursuant to the terms of this Limited
Guarantee shall be the sole and exclusive remedy of the
Guaranteed Party and all of its Affiliates against the Guarantor
and the Non-Recourse Parties in respect of any liabilities or
obligations arising under, or in connection with, the Equity
Commitment Letter, the Merger Agreement or the transactions
contemplated thereby, including by piercing of the corporate
veil or a claim by or on behalf of Buyer. The Guaranteed Party
hereby covenants and agrees that it shall not institute, and it
shall cause its Affiliates not to institute, any proceeding or
bring any other claim arising under, or in connection with, the
Equity Commitment Letter, the Merger Agreement or the
transactions contemplated thereby against the Guarantor or any
Non-Recourse Party except for claims against the Guarantor under
this Limited Guarantee and claims under the Confidentiality
Agreement. Nothing set forth in this Limited Guarantee shall
confer or give or shall be construed to confer or give to any
Person other than the Guaranteed Party (including any Person
acting in a representative capacity) any rights or remedies
against any Person including the Guarantor, except as expressly
set forth herein.
10. GOVERNING LAW; JURISDICTION. This
Limited Guarantee shall be governed by and construed in
accordance with the internal laws of the State of Delaware
without giving effect to any choice or conflict of law provision
or rule (whether of the State of Delaware or any other
jurisdiction) that would cause the application of
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laws of any jurisdictions other than those of the State of
Delaware. Each of the parties to this Limited Guarantee
(a) consents to submit itself to the personal jurisdiction
of the Court of Chancery of the State of Delaware in any action
or proceeding arising out of or relating to this Limited
Guarantee, (b) agrees that all claims in respect of such
action or proceeding may be heard and determined only in such
court, (c) agrees that it shall not attempt to deny or
defeat such personal jurisdiction by motion or other request for
leave from such court, (d) agrees not to bring any action
or proceeding arising out of or relating to this Limited
Guarantee in any other court, and (e) agrees that service
of process upon such party in any action or proceeding shall be
effective under any manner permitted under the laws of the State
of Delaware. Each of the parties hereto waives any defense of
inconvenient forum to the maintenance of any such action or
proceeding so brought and waives any bond, surety or other
security that might be required of any other party with respect
thereto.
11. WAIVER OF JURY TRIAL. EACH PARTY
ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE
UNDER THIS LIMITED GUARANTEE IS LIKELY TO INVOLVE COMPLICATED
AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY
HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR
INDIRECTLY ARISING OUT OF OR RELATING TO THIS LIMITED GUARANTEE.
EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (I) 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 THE FOREGOING
WAIVER, (II) EACH PARTY UNDERSTANDS AND HAS CONSIDERED THE
IMPLICATIONS OF THIS WAIVER, (III) EACH PARTY MAKES THIS
WAIVER VOLUNTARILY, AND (IV) EACH PARTY HAS BEEN INDUCED TO
ENTER INTO THIS LIMITED GUARANTEE BY, AMONG OTHER THINGS, THE
MUTUAL WAIVERS AND CERTIFICATIONS EXPRESSED ABOVE.
12. COUNTERPARTS. This Limited Guarantee
may be executed in any number of counterparts (including by
facsimile and via email by .pdf delivery), each such counterpart
when executed being deemed to be an original instrument, and all
such counterparts shall together constitute one and the same
agreement.
13. NO THIRD PARTY BENEFICIARIES. Except
as provided in Section 9, the parties hereby agree that
their respective representations, warranties and covenants set
forth herein are solely for the benefit of the other party
hereto and its successors and permitted assigns, in accordance
with and subject to the terms of this Limited Guarantee, and
this Limited Guarantee is not intended to, and does not, confer
upon any Person other than the parties hereto and their
respective successors and permitted assigns any rights or
remedies hereunder, including the right to rely upon the
representations and warranties set forth herein.
14. CONFIDENTIALITY. This Limited
Guarantee shall be treated as confidential and is being provided
to the Guaranteed Party solely in connection with the Merger.
This Limited Guarantee may not be used, circulated, quoted or
otherwise referred to in any document by the Guaranteed Party or
its Affiliates except with the prior written consent of the
Guarantor in each instance; provided that no such written
consent is required for any disclosure of the existence of this
Limited Guarantee to the legal, financial and accounting
advisors to the Guaranteed Party, or to the extent required by
applicable law, by the applicable rules of any national
securities exchange, in connection with any SEC filing relating
to the Merger or in connection with any litigation relating to
the Merger, the Merger Agreement and the transactions
contemplated thereby and hereby.
15. MISCELLANEOUS.
(a) This Limited Guarantee contains the entire agreement
between the parties relative to the subject matter hereof and
supersedes all prior agreements and undertakings between the
parties with respect to the subject matter hereof. No amendment,
modification or waiver of any provision hereof shall be
enforceable unless approved by the Guaranteed Party and the
Guarantor in writing.
(b) Any term or provision hereof that is prohibited or
unenforceable in any situation in the
agreed-upon
jurisdiction shall be ineffective solely to the extent of such
prohibition or unenforceability without invalidating the
remaining provisions hereof; provided, however,
that this Limited Guarantee may not be enforced without giving
effect to the limitation of the amount payable hereunder to the
Cap provided in Section 1 hereof and the provisions of
Sections 8 and 9 and this Section 15(b).
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(c) When a reference is made in this Limited Guarantee to a
Section, such reference shall be to a Section of this Limited
Guarantee unless otherwise indicated. The headings contained in
this Limited Guarantee are for reference purposes only and shall
not affect in any way the meaning or interpretation of this
Limited Guarantee. Whenever the words “include,”
“includes” or “including” are used in this
Limited Guarantee, they shall be deemed to be followed by the
words “without limitation”. The words
“hereof,” “herein” and “hereunder”
and words of similar import when used in this Limited Guarantee
shall refer to this Limited Guarantee as a whole and not to any
particular provision of this Limited Guarantee. The definitions
contained in this Limited Guarantee are applicable to the
singular as well as the plural forms of such terms and to the
masculine as well as to the feminine and neuter genders of such
term. References to a “person” will be interpreted
broadly to include, without limitation, any individual,
corporation, company, group, partnership, limited liability
company, other entity or any governmental representative or
authority, as well as such person’s permitted successors
and assigns.
(d) All parties acknowledge that each party and its counsel
have reviewed this Limited Guarantee and that any rule of
construction to the effect that any ambiguities are to be
resolved against the drafting party shall not be employed in the
interpretation of this Limited Guarantee.
[Remainder
of page intentionally left blank]
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IN WITNESS WHEREOF, the Guarantor has caused this Limited
Guarantee to be duly executed and delivered as of the date first
written above.
GUARANTOR:
S.A.C. CAPITAL MANAGEMENT, LLC
Name:
[Signature
Page to Limited Guarantee]
IN WITNESS WHEREOF, the Guaranteed Party has caused this Limited
Guarantee to be duly executed and delivered as of the date first
written above.
GUARANTEED PARTY:
AIRVANA, INC.
Name:
[Signature
Page to Limited Guarantee]
EXHIBIT C
TERMINATION
AGREEMENT
This TERMINATION AGREEMENT (this “Termination
Agreement”) is entered into as of
[ ]
[ ],
[ ],
by and among Airvana, Inc., a Delaware corporation (the
“Company”), and the undersigned parties
(each, a “Releasor”).
WHEREAS, the Company, 72 Mobile Holdings, LLC, a Delaware
limited liability company (“Buyer”), and
72 Mobile Acquisition Corp., a Delaware corporation and wholly
owned subsidiary of Buyer (“Transitory
Subsidiary”), are parties to that certain Agreement
and Plan of Merger, dated as of December 17, 2009 (the
“Merger Agreement”);
WHEREAS, each Releasor and the stockholders of the
Company will receive a significant financial benefit in
connection with the consummation of the transactions
contemplated by the Merger Agreement;
WHEREAS, each Releasor is a party to the Third Amended
and Restated Investor Rights Agreement, dated June 6, 2007
(the “Investor Rights Agreement”),
between or among such Releasor, on the one hand, and the
Company, on the other hand; and
WHEREAS, Section 2.7(b)(9) of the Interim Investors
Agreement, dated as of December 17, 2009, the (the
“Interim Investors Agreement”) by and
among the Buyer and Transitory Subsidiary, and the other parties
thereto, and Section 6.15 of the Merger Agreement,
contemplate that each Releasor and the Company shall execute and
deliver this Termination Agreement.
NOW, THEREFORE, in consideration of the foregoing and the
mutual representations, warranties, covenants and agreements
herein contained and for other good and valuable consideration,
the adequacy, receipt and sufficiency of which are hereby
acknowledged, and intending to be legally bound, the parties
hereto hereby agree as follows:
1. Definitions. Capitalized terms used
but not defined in this Termination Agreement shall have the
meanings ascribed thereto in the Merger Agreement.
2. Termination of the Investor Rights
Agreement. Each of the Company and the Releasors
hereby agrees that the Investor Rights Agreement is hereby
amended such that it shall automatically terminate and be of no
further force or effect and that no rights thereunder shall
survive, effective as of immediately prior to the Effective Time.
3. Release. For good and valuable
consideration, the receipt and legal sufficiency of which is
acknowledged by each Releasor, each Releasor (on its own behalf
and on behalf of its Affiliates, successors, assigns, heirs,
executors, attorneys and agents), effective as of the Effective
Time, releases, waives and discharges each of the Company and
its Affiliates and their respective officers, directors,
stockholders, partners, members, agents, successors and assigns
(collectively, the “Released Persons”)
from any and all causes of action, debts, sums of money,
covenants, agreements, promises, damages, judgments, claims and
demands whatsoever (including those sounding in contract or
tort, in each case, whether current or prospective), fees, costs
and losses of any kind whatsoever (whether direct, indirect,
consequential, incidental or otherwise), known or unknown, in
its own right or derivatively, in law or equity (collectively,
the “Claims”), that in any way arise
from or out of, are based upon, or relate to the Investor Rights
Agreement, and any Claims that may have been brought thereunder.
This Section 3 is for the benefit of the Released Persons
and shall be enforceable by any of them directly against each
Releasor. With respect to such Claims, each Releasor hereby
expressly waives any and all rights conferred upon him, her or
it by any statute or rule of law which provides that a release
does not extend to claims which the claimant does not know or
suspect to exist in his, her or its favor at the time of
executing the release, which if known by him, her or it would
have materially affected his, her or its settlement with the
released party.
4. Representations and Warranties. Each
party hereto represents and warrants to the other parties hereto
that: (i) it has the requisite entity power and authority,
or if an individual, legal capacity, to enter into and perform
its obligations under this Termination Agreement; (ii) the
execution, delivery and performance of this Termination
Agreement have been duly and validly authorized; and
(iii) this Termination Agreement has been duly and validly
executed and delivered by each party hereto and constitutes a
valid and binding agreement of such party, enforceable in
accordance with its terms, subject to the effects of bankruptcy,
insolvency, fraudulent conveyance,
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reorganization, moratorium and other similar laws relating to or
affecting creditors’ rights generally, general equitable
principles (whether considered in a proceeding in equity or at
law) and any implied covenant of good faith and fair dealing.
The Releasors hereby represent to the Company that such
Releasors hold a majority of the shares of Common Stock (as
defined in the Investor Rights Agreement) issued or issuable
upon conversion of the Registrable Shares (as defined in the
Investor Rights Agreement) by Preferred Investors (as defined in
the Investor Rights Agreement) and that the consent of no other
person other than the Company is required to amend the Investor
Rights Agreement even though all parties to the Investor Rights
Agreement will be affected by the execution of this Termination
Agreement.
5. Termination. Notwithstanding any
provision in this Termination Agreement to the contrary, in the
event that the Merger Agreement is terminated pursuant to the
terms thereof, this Termination Agreement shall automatically
terminate and shall be null and void.
6. Amendment; Waiver. This Termination
Agreement may not be amended other than in an instrument in
writing signed by all of the parties hereto and Buyer and may
not be waived other than in an instrument in writing signed by
the party granting such waiver and Buyer.
7. Successors. This Termination Agreement
shall be binding upon and shall inure to the benefit of the
parties hereto and their respective successors.
8. Counterparts. This Termination
Agreement may be executed in one or more counterparts, which
when taken together shall constitute one and the same agreement.
9. Severability. Any term or provision of
this Termination Agreement which is invalid or unenforceable in
any jurisdiction shall, as to that jurisdiction, be ineffective
to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and
provisions of this Termination Agreement in any other
jurisdiction. If any provision of this Termination Agreement is
so broad as to be unenforceable, such provision shall be
interpreted to be only as broad as is enforceable.
10. Third Party Beneficiary. Buyer is a
third party beneficiary to this Agreement and has the right to
enforce this Agreement directly.
11. Governing Law; Submission to
Jurisdiction. This Termination Agreement shall be
governed by and construed in accordance with the internal laws
of the State of Delaware without giving effect to any choice or
conflict of law provision or rule (whether of the State of
Delaware or any other jurisdiction) that would cause the
application of laws of any jurisdictions other than those of the
State of Delaware. Each of the parties to this Termination
Agreement (a) consents to submit itself to the personal
jurisdiction of the Court of Chancery of the State of Delaware
in any action or proceeding arising out of or relating to this
Termination Agreement, (b) agrees that all claims in
respect of such action or proceeding may be heard and determined
only in such court, (c) agrees that it shall not attempt to
deny or defeat such personal jurisdiction by motion or other
request for leave from such court, and (d) agrees not to
bring any action or proceeding arising out of or relating to
this Termination Agreement in any other court. Each of the
parties hereto waives any defense of inconvenient forum to the
maintenance of any such action or proceeding so brought and
waives any bond, surety or other security that might be required
of any other party with respect thereto.
12. Waiver of Jury Trial. EACH PARTY
HERETO ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY
ARISE UNDER THIS TERMINATION AGREEMENT IS LIKELY TO INVOLVE
COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY
HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH
PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION
DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS
TERMINATION AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY.
13. Specific Performance. The parties
hereto agree that irreparable damage would occur in the event
any provision of this Termination Agreement was not performed in
accordance with the terms hereof and that the parties hereto,
including Buyer as a third party beneficiary, shall be entitled
to specific performance of the terms hereof, in addition to any
other remedy at law or equity.
[Remainder of Page Left Blank Intentionally]
C-2
IN WITNESS WHEREOF, the undersigned have caused this Termination
Agreement to be executed as of the date first written above.
COMPANY:
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RELEASORS:
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[ ]
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[Signature Page to Termination Agreement]