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EXHIBIT (D)(1)
AGREEMENT AND PLAN OF MERGER
dated as of April 27, 2000
by and between
XXXXX SYSTEMS GROUP, INC.
ASG SUB, INC.
and
VIASOFT, INC.
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AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER, dated as of April 27, 2000 (this "Agreement") by
and between Xxxxx Systems Group, Inc., a Delaware corporation ("Xxxxx Systems
"), ASG Sub, Inc., a Delaware corporation ("ASG Sub") and Viasoft, Inc., a
Delaware corporation ("Viasoft").
RECITALS
A. In furtherance of the acquisition of Viasoft by Xxxxx Systems on the terms
and subject to the conditions set forth in this Agreement, Xxxxx Systems
proposes to cause ASG Sub to make a tender offer (as it may be amended from time
to time as permitted under this Agreement, the "Xxxxx Systems Offer") to
purchase at least a majority of the issued and outstanding shares of Common
Stock, $.001 par value, of Viasoft ("Viasoft Common Stock") (including the
associated Preferred Share Purchase Rights ("Rights") issued pursuant to the
Viasoft Rights Agreement (defined below)), at a price per share of Viasoft
Common Stock (a "Share") of $8.40 net to the seller in cash and without interest
thereon (such price, as may hereafter be increased, the "Offer Price"), subject
to reduction for any applicable federal backup or other applicable withholding
or stock transfer taxes, upon the terms and subject to the conditions set forth
in this Agreement.
B. Viasoft has agreed to simultaneously make an offer (as it may be amended from
time to time as permitted under this Agreement, the "Viasoft Offer", and
together with the Xxxxx Systems Offer, the "Offer") to purchase all outstanding
Shares of Viasoft Common Stock (including the associated Rights) tendered in
connection with the Offer other than the Shares to be acquired by ASG Sub, at a
price per Share equal to the Offer Price, subject to reduction for any
applicable federal backup or other applicable withholding or stock transfer
taxes, upon the terms and subject to the conditions set forth in this Agreement.
C. The Xxxxx Systems Offer and the Viasoft Offer shall together be an offer to
acquire all of the issued and outstanding Shares, subject to the priority set
forth in this Agreement.
D. The respective Boards of Directors of Xxxxx Systems, ASG Sub and Viasoft have
approved (i) the Offer and the merger of Viasoft with ASG Sub, as set forth
below (the "Merger"), upon the terms and subject to the conditions set forth in
this Agreement, whereby each issued and outstanding Share, other than Shares
owned directly or indirectly by Xxxxx Systems or Viasoft and Dissenting Shares
(as defined in Section 3.1(c)), will be converted into the right to receive the
Offer Price, and (ii) a business combination whereby ASG Sub will be merged with
and into Viasoft in accordance with the Delaware General Corporation Law
("DGCL") with Viasoft continuing as the surviving corporation of such merger
("Surviving Corporation"). The Board of Directors of Viasoft has determined that
the consideration to be paid for each Share in the Offer and the Merger is fair
to the holders of such Shares and has resolved to recommend that Viasoft's
shareholders accept the Offer.
X. Xxxxx Systems, ASG Sub and Viasoft desire to make certain representations,
warranties, covenants and agreements in connection with the Offer and the Merger
and also to prescribe various conditions to the Offer and the Merger.
F. Concurrently with the execution and delivery of this Agreement, Xxxxx Systems
and certain shareholders of Viasoft have entered into a Shareholder Tender and
Voting Agreement, pursuant to which such shareholders have agreed to tender
their Shares in the Offer and to vote in favor of the Merger.
THEREFORE, the parties agree as follows:
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ARTICLE I
THE OFFER
1.1 THE OFFER.
(a) Subject to the provisions of this Agreement, ASG Sub will, and
Xxxxx Systems will cause ASG Sub to, commence (within the meaning of Rule 14d-2
under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) the
Xxxxx Systems Offer, and Viasoft will commence the Viasoft Offer, as promptly as
practicable but not later than five (5) business days after the public
announcement (on the date hereof or the following business day) of the execution
of this Agreement. The obligation of ASG Sub to, and of Xxxxx Systems to cause
ASG Sub to, commence the Xxxxx Systems Offer and accept for payment, and pay
for, any Shares tendered pursuant to the Xxxxx Systems Offer will be subject to
the conditions set forth in Annex 1 attached to and made part of this Agreement
and to the terms and conditions of this Agreement. The obligation of Viasoft to
commence the Viasoft Offer, and accept for payment, and pay for, any Shares
tendered pursuant to the Viasoft Offer will be subject to the conditions set
forth in Annex 2 attached to and made part of this Agreement and to the terms
and conditions of this Agreement.
(b) The Xxxxx Systems Offer and the Viasoft Offer shall be
conducted for practical reasons as a single offer, with Shares being accepted
for payment and purchased in the Offer according to the following order of
priority: (i) first, ASG Sub shall accept for payment and purchase not less than
a majority of the issued and outstanding Shares (the "Xxxxx Systems Share
Number"), (ii) and second, Viasoft shall accept for payment and purchase Shares
up to a maximum number of Shares equal to the total number of issued and
outstanding Shares, less the Shares otherwise owned by Xxxxx Systems and its
Subsidiaries and Affiliates and less the Xxxxx Systems Share Number (the
"Viasoft Share Number"). The Offer shall expire twenty (20) business days
following the commencement of the Offer (the "Initial Expiration Date" and
together with any extension permitted hereunder, the "Expiration Date"), unless
this Agreement is earlier terminated in accordance with Section 8.1.
(c) ASG Sub expressly reserves the right to waive any conditions
to the Xxxxx Systems Offer, to extend the duration of the Xxxxx Systems Offer
(subject to the limitations set forth in this Section), or to make any other
changes in the terms and conditions of the Xxxxx Systems Offer; provided,
however, that without Viasoft's prior written consent, no such change may be
made which (i) increases or decreases the price per Share payable in the Xxxxx
Systems Offer, (ii) reduces the minimum (including by waiver of the Minimum
Tender Condition, as defined in Annex 1) or maximum number of Shares to be
purchased in the Offer, (iii) imposes conditions to the Xxxxx Systems Offer in
addition to those set forth in Annex 1, (iv) changes the form of consideration
payable in the Xxxxx Systems Offer, (v) extends the expiration of the Xxxxx
Systems Offer beyond five business days following the initial expiration of the
Offer except (A) as required by the Exchange Act or (B) in the case of any such
greater than five day extension of the Xxxxx Systems Offer, in ASG Sub's
judgment, it is reasonably likely that during any such extension, any condition
set forth in Annex 1 (including the Minimum Tender Condition) which is not
satisfied as of the date of such extension will be satisfied during such
extension; provided that, without Viasoft's prior written consent, the
Expiration Date may not be extended pursuant to clause (B) of this sentence
beyond twenty (20) business days following the Initial Expiration Date; or (vi)
amends any other material terms of the Xxxxx Systems Offer in a manner adverse
to Viasoft's shareholders.
Subject to the terms and conditions of this Agreement and the Xxxxx Systems
Offer (including, if the Offer is extended or amended, the terms and conditions
of any such extension or amendment), ASG Sub will, and Xxxxx Systems will cause
ASG Sub to, accept for payment, and pay for, all shares of Viasoft Common Stock
validly tendered and not withdrawn pursuant to the Xxxxx Systems Offer as soon
as practicable after the Expiration Date, up to the number of Shares equal to
the Xxxxx Systems Share Number, in the order of priority set forth in Section
1.1(b).
(d) Viasoft expressly reserves the right to waive any conditions
to the Viasoft Offer, or to make any other changes in the terms and conditions
of the Viasoft Offer; provided, however, that without Xxxxx Systems' prior
written consent, no such change may be made which (i) increases or decreases the
price
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per Share payable in the Viasoft Offer, (ii) reduces the minimum or maximum
number of Shares to be purchased in the Offer, (iii) imposes conditions to the
Viasoft Offer in addition to those set forth in Annex 2, (iv) changes the form
of consideration payable in the Viasoft Offer, or (v) amends any other material
terms of the Viasoft Offer in a manner adverse to Xxxxx Systems or ASG Sub; and
further provided, that in the event Xxxxx Systems extends the Xxxxx Systems
Offer for any period of time in accordance with Section 1.1(c), Viasoft agrees
to extend the Viasoft Offer for the same period.
Subject to the terms and conditions of this Agreement and the Viasoft Offer
(including, if the Offer is extended or amended, the terms and conditions of any
such extension or amendment), Viasoft will accept for payment, and pay for, all
shares of Viasoft Common Stock validly tendered and not withdrawn pursuant to
the Viasoft Offer as soon as practicable after the Expiration Date, up to the
number of Shares equal to the Viasoft Share Number, in the order of priority set
forth in Section 1.1(b).
(e) As soon as reasonably practicable on the date the Offer is
commenced, (x) Xxxxx Systems and ASG Sub shall file with the Securities and
Exchange Commission (the "SEC") a Tender Offer Statement on Schedule TO
(together with all amendments thereto, the "Xxxxx Systems Schedule TO") and (y)
Viasoft shall file a Tender Offer Statement on Schedule TO (the "Viasoft
Schedule TO") and a Solicitation / Recommendation Statement on Schedule 14D-9
(the "Schedule 14D-9) with respect to the Xxxxx Systems Offer and the Viasoft
Offer, respectively, each of which will comply in all material respects with the
provisions of all applicable Federal securities laws, and will contain
(including as an exhibit) or incorporate by reference the Offer and forms of the
related letter of transmittal and summary advertisement (which documents,
together with any supplements or amendments thereto, are referred to
collectively as the "Offer Documents"). If the parties agree, Viasoft and Xxxxx
Systems may combine the Xxxxx Systems Schedule TO and the Viasoft Schedule TO
into a single, joint Tender Offer Statement on Schedule TO and all references to
the Xxxxx Systems Schedule TO and Viasoft Schedule TO shall be deemed to refer
to such joint Schedule TO. Each of Xxxxx Systems and ASG Sub agree that the
Xxxxx Systems Schedule TO and the Offer Documents, on the date filed with the
SEC and on the date first published, sent or given to Viasoft's shareholders,
will not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading, except that no representation is made by Xxxxx Systems or ASG
Sub with respect to written information supplied by Viasoft specifically for
inclusion in the Xxxxx Systems Schedule TO or the Offer Documents. Viasoft
agrees that the Viasoft Schedule TO and the Schedule 14D-9, on the date filed
with the SEC and on the date first published, sent or given to Viasoft's
shareholders, will not contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary in order
to make the statements therein, in light of the circumstances under which they
were made, not misleading, except that no representation is made by Viasoft with
respect to written information supplied by Xxxxx Systems or ASG Sub specifically
for inclusion in the Viasoft Schedule TO or the Schedule 14D-9. Xxxxx Systems
and ASG Sub further agree to take all steps necessary to cause the Xxxxx Systems
Schedule TO be filed with the SEC, and the Offer Documents to be disseminated to
the Viasoft shareholders, and Viasoft agrees to take all steps necessary to
cause the Viasoft Schedule TO and the Schedule 14D-9 to be filed with the SEC,
in each case to the extent required by applicable Federal securities laws. Each
of Xxxxx Systems and ASG Sub agrees to promptly correct the Xxxxx Systems
Schedule TO and the Offer Documents, and Viasoft agrees to promptly correct the
Viasoft Schedule TO and the Schedule 14D-9, if and to the extent that it or they
shall have become false or misleading in any material respect (and each party,
with respect to written information supplied by it specifically for use in the
Schedule TO, the Offer Documents or the Schedule 14D-9 filed by the other party,
shall promptly notify the other party of any required corrections of such
information and shall cooperate with the other party with respect to correcting
such information). Each of Xxxxx Systems and ASG Sub further agrees to
supplement the Xxxxx Systems Schedule TO, and Viasoft agrees to supplement the
Viasoft Schedule TO and the Schedule 14D-9, in either case to include any
information that shall become necessary in order to make the statements therein,
in light of the circumstances under which they were made, not misleading (and
each party shall supplement the written information provided by it specifically
for use in the Schedule TO, the Offer Documents or the Schedule 14D-9 filed by
the other party to include any information that shall become necessary in order
to make the statements therein that are based on such provided information, in
light of the circumstances under which they were made, not misleading, except
that no representation is made by Xxxxx Systems or
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ASG Sub with respect to written information supplied by Viasoft, or by Viasoft
with respect to written information supplied by Xxxxx Systems or ASG Sub,
specifically for inclusion in the Schedule TO, the Offer Documents or the
Schedule 14D-9 filed by such party). Each of Xxxxx Systems, ASG Sub and Viasoft
further agrees to take all steps necessary to cause the Xxxxx Systems Schedule
TO, the Viasoft Schedule TO and the Schedule 14D-9, as so corrected or
supplemented, to be filed with the SEC, and the Offer Documents, as so corrected
or supplemented, to be filed with the SEC and disseminated to the Viasoft
shareholders, in each case to the extent required by applicable Federal
securities laws.
Viasoft and its counsel will be given a reasonable opportunity to review the
Xxxxx Systems Schedule TO and the Offer Documents and all amendments and
supplements thereto prior to their filing with the SEC or dissemination to
shareholders of Viasoft. Xxxxx Systems and ASG Sub agree to provide Viasoft and
its counsel any comments Xxxxx Systems, ASG Sub or their counsel may receive
from the SEC or its staff with respect to the Xxxxx Systems Schedule TO or the
Offer Documents promptly after the receipt of such comments, including a copy of
such comments that are made in writing and a written summary of such comments
that are made orally.
Xxxxx Systems, ASG Sub and their counsel will be given a reasonable opportunity
to review the Viasoft Schedule TO and Schedule 14D-9 and all amendments and
supplements thereto prior to their filing with the SEC or dissemination to
shareholders of Viasoft. Viasoft agrees to provide Xxxxx Systems, ASG Sub and
their counsel any comments Viasoft or their counsel may receive from the SEC or
its staff with respect to the Viasoft Schedule TO or the Schedule 14D-9 promptly
after the receipt of such comments, including a copy of such comments that are
made in writing and a written summary of such comments that are made orally.
(f) Xxxxx Systems will provide or cause ASG Sub to provide, on a
timely basis, the funds necessary to pay for any Shares that ASG Sub becomes
obligated to pay for pursuant to the Xxxxx Systems Offer. Viasoft will provide,
on a timely basis, the funds necessary to pay for any Shares that Viasoft
becomes obligated to pay for pursuant to the Viasoft Offer.
(g) If (i) the Offer is not commenced for any reason, including
the failure of a condition set forth in Annex 1 or Annex 2 or (ii) the Offer is
not consummated upon its expiration for any reason, including due to the failure
of a condition set forth in Annex 1 or Annex 2, then subject to the provisions
of this Agreement (including the conditions precedent and termination rights set
forth in Articles VII and VIII hereof), the parties agree to take the actions
set forth in this Agreement in order to obtain Viasoft Shareholder Approval (as
defined in Section 4.1(d)) and effectuate the Merger as promptly as practicable.
1.2 VIASOFT ACTIONS.
(a) Viasoft hereby approves of and consents to the Offer and
represents that the Board of Directors of Viasoft, at a meeting duly called and
held, duly and unanimously adopted resolutions approving this Agreement, the
Offer and the Merger, determining that the terms of the Offer and the Merger are
fair to, and in the best interests of, Viasoft's shareholders and recommending
that Viasoft's shareholders accept the Offer and tender their Shares pursuant to
the Offer and approve and adopt this Agreement and approve the Merger. Viasoft
represents that its Board of Directors has received the opinion of Broadview
International LLC that the proposed consideration to be received by the holders
of Shares pursuant to the Offer and the Merger is fair to such holders from a
financial point of view, and a complete and correct signed copy of such opinion
has been delivered by Viasoft to Xxxxx Systems. Viasoft hereby consents to the
inclusion in the Offer Documents of the recommendation of Viasoft's Board of
Directors described in the first sentence of this Section 1.2(a) and has
obtained the consent of Broadview International LLC to the inclusion in the
Schedule 14D-9 of a copy of the written opinion referred to in the preceding
sentence together with the summary and other information concerning such opinion
as is required by Item 1015 of Regulation M-A promulgated under the Exchange Act
("Reg. M-A"). Viasoft has been advised by each of its directors and a majority
of its executive officers that each such person intends to tender all Shares
(other than Shares, if any, held by such person which if tendered, could cause
such person to incur liability under the provisions of Section 16(b) of the
Exchange Act) held by such person pursuant to the Offer.
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(b) In connection with the Offer, Viasoft will cause its transfer
agent promptly to furnish ASG Sub with mailing labels containing the names and
addresses of the record holders of Viasoft Common Stock as of the most recent
available date and of those persons becoming record holders subsequent to such
date, together with copies of all lists of shareholders, security position
listings and, to the extent reasonably requested, computer files and other
information in Viasoft's possession or control regarding the beneficial owners
of Viasoft Common Stock, and will furnish to ASG Sub such information and
assistance (including updated lists of shareholders, security position listings
and computer files) as Xxxxx Systems may reasonably request in communicating the
Offer to Viasoft's shareholders. Subject to the requirements of applicable law,
and except for such steps as are necessary to disseminate the Offer Documents
and any other documents necessary to consummate the Merger, Xxxxx Systems and
ASG Sub and their agents will hold in confidence the information contained in
any such labels, listings and files, will use such information only in
connection with the Offer and the Merger pursuant to this Agreement and, if this
Agreement is terminated, will, upon request, deliver, and will use their
reasonable efforts to cause their agents to deliver, to Viasoft all copies of
such information then in their possession or control.
ARTICLE II
THE MERGER
2.1 THE MERGER. Upon the terms and subject to the conditions set forth
in this Agreement, and in accordance with the DGCL, ASG Sub will be merged with
and into Viasoft at the Effective Time (as defined in Section 2.3). Following
the Effective Time, the separate corporate existence of ASG Sub will cease and
Viasoft will continue as the Surviving Corporation and will succeed to and
assume all the rights and obligations of ASG Sub in accordance with the DGCL.
Notwithstanding the foregoing, Xxxxx Systems may elect at any time prior to the
Merger to merge Viasoft with and into ASG Sub instead of merging ASG Sub into
Viasoft as provided above; provided, however, that Viasoft will not be deemed to
have breached any of its representations, warranties, covenants or agreements
set forth in this Agreement solely by reason of such election. In such event,
the parties agree to execute an appropriate amendment to this Agreement in order
to reflect the foregoing and, where appropriate, to provide that ASG Sub will be
the Surviving Corporation and will continue under the name of either "Viasoft,
Inc." or "ASG Sub, Inc." At the election of Xxxxx Systems, any other direct or
indirect Subsidiary (as defined in Section 9.3) of Xxxxx Systems may be
substituted for ASG Sub as a constituent corporation in the Merger. In such
event, the parties agree to execute an appropriate amendment to this Agreement
in order to reflect the foregoing. In no such event shall Xxxxx Systems be
relieved of any obligation under this Agreement without the prior written
consent of Viasoft.
Subject to the terms and conditions of this Agreement, Xxxxx Systems and Viasoft
agree to use all reasonable efforts to cause the Effective Time to occur as soon
as practicable after the date on which the Shares tendered pursuant to the Offer
have been accepted for payment and paid for (the "Offer Completion Date").
2.2 CLOSING. The closing of the Merger will take place on a date to be
specified by the parties, which will be no later than the second business day
after satisfaction or waiver of the conditions set forth in Article VII (the
"Closing Date"), at the Phoenix, Arizona offices of Steptoe & Xxxxxxx LLP,
counsel to Xxxxx Systems and ASG Sub, unless another date or place is agreed to
in writing by the parties hereto.
2.3 EFFECTIVE TIME. Subject to the terms and conditions of this
Agreement, as soon as practicable on or after the Closing Date, the parties will
file a Certificate of Merger (or Certificate of Ownership and Merger in the case
of a Short-Form Merger (defined below)) with the Delaware Secretary of State in
such form as required by, and executed in accordance with, the relevant
provisions of the DGCL. The Merger will become effective at such time as the
Certificate of Merger is duly filed with the Delaware Secretary of State, or at
such other time as ASG Sub and Viasoft agree should be specified in the
Certificate of Merger (the time the Merger becomes effective being hereinafter
referred to as the "Effective Time").
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2.4 EFFECTS OF THE MERGER. The Merger will have the effects set forth
in the applicable provisions of the DGCL. Without limiting the generality of the
foregoing, and subject thereto, at the Effective Time, all properties, rights,
privileges, powers and franchises of ASG Sub and Viasoft will vest in the
Surviving Corporation, and all debt, liabilities and duties of ASG Sub and
Viasoft will become the debts, liabilities and duties of the Surviving
Corporation.
2.5 CERTIFICATE OF INCORPORATION AND BYLAWS. The restated certificate
of incorporation and bylaws of the Surviving Corporation shall be amended at the
Effective Time to conform to the Certificate of Incorporation and Bylaws of ASG
Sub, except (i) the name of the Surviving Corporation will remain "Viasoft,
Inc.," (ii) the provisions of the Certificate of Incorporation of ASG Sub that
name the incorporator and the initial directors shall not be included in the
restated certificate of incorporation, and (iii) as otherwise required under the
DGCL.
2.6 DIRECTORS. The directors of ASG Sub immediately prior to the
Effective Time will be the directors of the Surviving Corporation, until the
earlier of their resignation or removal or until their respective successors are
duly elected and qualified, as the case may be.
2.7 OFFICERS. The officers of ASG Sub immediately prior to the
Effective Time will be the officers of the Surviving Corporation, until the
earlier of their resignation or removal or until their respective successors are
duly elected and qualified, as the case may be.
2.8 MERGER WITHOUT SHAREHOLDERS MEETING. If in connection with the
Offer ASG Sub acquires ownership of at least 90% of the outstanding Shares
sufficient to enable ASG Sub and Viasoft to cause the Merger to become effective
without Viasoft Shareholder Approval in accordance with Section 253 of the DGCL
(the "Short-Form Merger"), the parties hereto will, subject to the terms and
conditions of this Agreement (including Article VII) and applicable law, take
all necessary and appropriate action to cause the Short-Form Merger to become
effective as promptly as practicable.
ARTICLE III
EFFECT OF THE MERGER ON THE CAPITAL STOCK OF THE CONSTITUENT
CORPORATIONS; EXCHANGE OF CERTIFICATES
3.1 EFFECT ON 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 or any
shares of capital stock of ASG Sub:
(a) CAPITAL STOCK OF ASG SUB. Each share of capital stock of
ASG Sub issued and outstanding immediately prior to the Merger will be converted
into and become one fully paid and non-assessable share of common stock, par
value $0.01, of the Surviving Corporation.
(b) CANCELLATION OF TREASURY SHARES AND XXXXX SYSTEMS OWNED
SHARES. Each Share that is owned by Viasoft or by any Subsidiary of Viasoft and
each Share that is owned by Xxxxx Systems, ASG Sub or any Subsidiary of Xxxxx
Systems immediately before the Effective Time, will automatically be cancelled
and will cease to exist, and no consideration will be delivered in exchange
therefor.
(c) CONVERSION OF VIASOFT COMMON STOCK. Subject to Section
3.1(d), each issued and outstanding Share (other than Shares to be cancelled in
accordance with Section 3.1(b)) will be converted into the right to receive from
the Surviving Corporation in cash, without interest, the Offer Price (the
"Merger Consideration"). As of the Effective Time, all such Shares will no
longer be outstanding and will automatically be cancelled and will cease to
exist, and each holder of a certificate representing any such Shares will cease
to have any rights with respect thereto, except the right to receive the Merger
Consideration, without interest.
(d) SHARES OF DISSENTING SHAREHOLDERS. Notwithstanding anything
in this Agreement to the contrary, to the extent provided by the DGCL, any
issued and outstanding Shares held by a person (a "Dissenting Shareholder") who
has not voted in favor of the Merger or consented thereto in writing and
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who elects to demand appraisal of his shares and complies with all the
provisions of the DGCL concerning the right of holders of Viasoft Common Stock
to require appraisal of their Shares ("Dissenting Shares") will not be converted
as described in Section 3.1(c) and therefore the holder thereof will not receive
the Merger Consideration, but will have the right to receive such consideration
as may be determined to be due to such Dissenting Shareholder pursuant to the
laws of the State of Delaware. If, after the Effective Time, such Dissenting
Shareholder withdraws his demand for appraisal or fails to perfect or otherwise
loses his right of appraisal, in any case pursuant to the DGCL, his Shares will
be deemed to be converted as of the Effective Time into the right to receive the
Merger Consideration. Viasoft will give Xxxxx Systems (i) prompt notice of any
demands for appraisal of Shares received by Viasoft and (ii) the opportunity to
participate in and direct all negotiations and proceedings with respect to any
such demands. Viasoft will not, without the prior written consent of Xxxxx
Systems, make any payment with respect to, or enter into a binding settlement
agreement or make a written offer to settle, any such demands.
(e) ADJUSTMENTS. If, during the period between the date of this
Agreement and the Effective Time, any change in the outstanding shares of
Viasoft Common Stock shall occur, including by reason of any reclassification,
recapitalization, stock split or combination, exchange or readjustment of shares
of Viasoft Common Stock, or stock dividend thereon with a record date during
such period, the cash payable pursuant to the Offer, the Merger Consideration
and any other amounts payable pursuant to this Agreement shall be appropriately
adjusted.
3.2 EXCHANGE OF CERTIFICATES.
(a) PAYING AGENT. Prior to the Effective Time, Xxxxx Systems
will select a bank or trust company to act as paying agent (the "Paying Agent")
for the payment of the Merger Consideration upon surrender of certificates
representing Viasoft Common Stock.
(b) XXXXX SYSTEMS TO PROVIDE FUNDS. Xxxxx Systems and ASG Sub
will take all steps necessary to provide to the Paying Agent on a timely basis,
as and when needed after the Effective Time, funds necessary to pay for the
Shares as a result of the Merger pursuant to Section 3.1.
(c) EXCHANGE PROCEDURE. As soon as reasonably practicable after
the Effective Time, Xxxxx Systems will instruct the Paying Agent to mail to each
holder of record of a certificate or certificates which immediately prior to the
Effective Time represented outstanding Shares (the "Certificates") whose Shares
were converted into the right to receive the Merger Consideration pursuant to
Section 3.1: (i) a letter of transmittal (which will specify that delivery will
be effected, and risk of loss and title to the Certificates will pass, only upon
delivery of the Certificates to the Paying Agent and will be in a form and have
such other provisions as Xxxxx Systems may reasonably specify) and (ii)
instructions for use in effecting the surrender of the Certificates in exchange
for the Merger Consideration. Upon surrender of a Certificate for cancellation
to the Paying Agent or to such other agent or agents as may be appointed by
Xxxxx Systems, together with such letter of transmittal, duly executed, and such
other documents as may reasonably be required by the Paying Agent, the holder of
such Certificate will be entitled to receive in exchange therefor the Merger
Consideration, and the Certificate so surrendered will forthwith be cancelled.
In the event of a transfer of ownership of Viasoft Common Stock which is not
registered in the transfer records of Viasoft, payment may be made to a person
other than the person in whose name the Certificate so surrendered is
registered, if such Certificate is properly endorsed or otherwise in proper form
for transfer and the person requesting such payment pays any transfer or other
taxes required by reason of the payment to a person other than the registered
holder of such Certificate or establishes to the satisfaction of the Surviving
Corporation that such tax has been paid or is not applicable. Until surrendered
as contemplated by this Section 3.2, each Certificate will be deemed at any time
after the Effective Time to represent only the right to receive upon such
surrender the Merger Consideration. No interest will be paid or will accrue on
the cash payable upon the surrender of any Certificate.
(d) NO FURTHER OWNERSHIP RIGHTS IN VIASOFT COMMON STOCK. As of
the Effective Time, all cash paid upon the surrender of Certificates in
accordance with the terms of this Article III will be deemed to have been paid
in full satisfaction of all rights pertaining to the Shares previously
represented by such
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Certificates, and there will be no further registration of transfers on the
stock transfer books of Viasoft of the Shares which were outstanding immediately
prior to the Effective Time. If, after the Effective Time, Certificates are
presented to the Surviving Corporation or the Paying Agent for any reason, they
will be cancelled and exchanged as provided in this Article III.
(e) FAILURE TO TIMELY SURRENDER; NO LIABILITY. Promptly
following the date that is six months after the Effective Time, the Paying Agent
will return to the Surviving Corporation all Merger Consideration and other
cash, property and instruments in its possession relating to the transactions
described in this Agreement, and the Paying Agent's duties will terminate.
Thereafter, each holder of a Certificate formerly representing a Share may
surrender such Certificate to the Surviving Corporation and (subject to
applicable abandoned property, escheat and similar laws) receive in exchange
therefor the Merger Consideration (without interest thereon). Notwithstanding
the foregoing, the Surviving Corporation will be entitled to receive from time
to time all interest or other amounts earned with respect to any cash deposited
with the Paying Agent as such amounts accrue or become available. If any
Certificates will not have been surrendered prior to 2 years after the Effective
Time (or immediately prior to such earlier date on which any payment pursuant to
this Article III would otherwise escheat to or become the property of any
Governmental Entity (as defined in Section 4.1(d)), the cash payment in respect
of such Certificate will, to the extent permitted by applicable law, become the
property of the Surviving Corporation, free and clear of all claims or interests
of any person previously entitled thereto. To the fullest extent permitted by
law, none of Xxxxx Systems, ASG Sub, Viasoft, the Surviving Corporation or the
Paying Agent will be liable to any person in respect of any cash delivered to a
public official pursuant to any applicable abandoned property, escheat or
similar law.
(f) WITHHOLDING TAXES. The right of any person to receive any
payment or consideration pursuant to this Agreement and the transactions
contemplated herein will be subject to any applicable requirements with respect
to the withholding of Taxes.
(g) LOST, STOLEN OR DESTROYED CERTIFICATES. If any certificates
evidencing Shares have been lost, stolen or destroyed, the Paying Agent will pay
to such holder the Merger Consideration required pursuant to Section 3.1, in
exchange for such lost, stolen or destroyed certificates, upon the making of an
affidavit of that fact by the holder thereof with such assurances as the Paying
Agent, in its discretion and as a condition precedent to the payment of the
Merger Consideration, may reasonably require of the holder of such lost, stolen
or destroyed certificates and, the Paying Agent, in its discretion and as a
condition precedent to the issuance thereof, may require that the owner of such
lost, stolen or destroyed certificate give the Paying Agent and Xxxxx Systems a
bond in such sum as it may direct as indemnity against any claim that may be
made against the Paying Agent or Xxxxx Systems with respect to the Certificate.
(h) SUPPLEMENTARY ACTION. If at any time after the Effective
Time, any further assignments or assurances in law or any other things are
necessary or desirable to vest or to perfect or confirm of record in the
Surviving Corporation the title to any property or rights of Viasoft or ASG Sub,
or otherwise to carry out the provisions of this Agreement, the officers and
directors of the Surviving Corporation are hereby authorized and empowered, in
the name of and on behalf of Viasoft and ASG Sub to execute and deliver any and
all things necessary or proper to vest or to perfect or confirm title to such
property or rights in the Surviving Corporation, and otherwise to carry out the
purposes and provisions of this Agreement.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
4.1 REPRESENTATIONS AND WARRANTIES OF VIASOFT. Except as set forth in
the disclosure letter delivered by Viasoft to Xxxxx Systems concurrently with
the execution of this Agreement (the "Viasoft Disclosure Letter"), Viasoft
represents and warrants to Xxxxx Systems and ASG Sub as follows:
(a) ORGANIZATION, STANDING AND CORPORATE POWER. Viasoft and
each of its Subsidiaries is a corporation or partnership duly organized, validly
existing and in good standing under the laws of the
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jurisdiction in which it is organized and has the requisite corporate or
partnership power and authority to carry on its business as now being conducted.
Viasoft and each of its Subsidiaries is duly qualified or licensed to do
business and is in good standing in each jurisdiction in which the nature of its
business or the ownership or leasing of its properties makes such qualification
or licensing necessary, other than in such jurisdictions where the failure to be
so qualified or licensed individually or in the aggregate would not have a
Material Adverse Effect on Viasoft. Viasoft has made available to Xxxxx Systems
complete and correct copies of its certificate of incorporation and bylaws and
the articles of incorporation and bylaws or other organizational documents of
its Subsidiaries, in each case as amended to the date of this Agreement.
(b) SUBSIDIARIES. Section 4.1(b) of the Viasoft Disclosure
Letter lists each Subsidiary of Viasoft containing the capitalization of each
Subsidiary, the jurisdiction in which each Subsidiary is organized or formed and
the current directors and executive officers of each Subsidiary of Viasoft.
Except as set forth in Section 4.1(b) of the Viasoft Disclosure Letter, all the
outstanding shares of capital stock of each such Subsidiary have been validly
issued and are fully paid and nonassessable and (except as may be required by
foreign jurisdictions) are owned by Viasoft, by another Subsidiary of Viasoft or
by Viasoft and another such Subsidiary, free and clear of all pledges, claims,
liens, charges, encumbrances and security interests of any kind or nature
whatsoever, other than resale restrictions imposed by applicable securities laws
(collectively, "Liens"). Except for the capital stock of its Subsidiaries,
Viasoft does not own, directly or indirectly, any capital stock or other
ownership interest in any corporation, partnership, joint venture or other
entity.
(c) CAPITAL STRUCTURE. The authorized capital stock of Viasoft
consists of 48,000,000 shares of Viasoft Common Stock and 2,000,000 shares of
preferred stock, $0.001 par value ("Viasoft Preferred Stock"). At the close of
business on April 25, 2000, (i) 18,102,179 shares of Viasoft Common Stock and no
shares of Viasoft Preferred Stock were issued and outstanding, (ii) 1,353,954
shares of Viasoft Common Stock were held by Viasoft in its treasury, and (iii)
3,567,740 shares of Viasoft Common Stock were reserved for issuance upon
exercise of outstanding (y) options granted under any of the Viasoft Option
Plans (as defined below) and (z) rights granted under the ESPP (as defined
below).
Except as set forth in Section 4.1(c)(i) of the Viasoft Disclosure
Letter, the only plans or arrangements pursuant to which Viasoft is obligated to
issue Shares or pursuant to which Options are outstanding are Viasoft's 1986
Stock Option Plan, the 1994 Equity Incentive Plan, the 1997 Equity Incentive
Plan, the Outside Director Stock Plan and the resolutions of the Board of
Directors of Viasoft referenced in Section 4.1(c)(i) of the Viasoft Disclosure
Letter, each as amended, (together, the "Viasoft Option Plans"), and Viasoft's
Employee Stock Purchase Plan (the "ESPP").
Except as set forth above, at the close of business on April 25, 2000, no
shares of capital stock or other voting securities of Viasoft were issued,
reserved for issuance or outstanding. There are no outstanding stock
appreciation rights. All outstanding shares of capital stock of Viasoft are duly
authorized, validly issued, fully paid and non assessable and not subject to
preemptive rights created by Viasoft's certificate of incorporation, bylaws or
any agreement to which Viasoft is a party. There are no bonds, debentures, notes
or other indebtedness of Viasoft having the right to vote (or convertible into,
or exchangeable for, securities having the right to vote) on any matters on
which shareholders of Viasoft may vote. Except as set forth above or in Section
4.1(c)(ii) of the Viasoft Disclosure Letter, as of the date of this Agreement,
there are no outstanding securities, options, warrants, calls, rights,
commitments, agreements, arrangements or undertakings of any kind to which
Viasoft or any of its Subsidiaries is a party or by which any of them is bound
obligating Viasoft or any of its Subsidiaries to issue, deliver or sell, or
cause to be issued, delivered or sold, additional shares of capital stock or
other voting securities of Viasoft or of any of its Subsidiaries or obligating
Viasoft or any of its Subsidiaries to issue, grant, extend or enter into any
such security, option, warrant, call, right, commitment, agreement, arrangement
or undertaking. As of the date of this Agreement, there are no outstanding
contractual obligations (x) of Viasoft or any of its Subsidiaries to repurchase,
redeem or otherwise acquire any shares of capital stock of Viasoft or any of its
Subsidiaries or (y) of Viasoft to vote or to dispose of any shares of the
capital stock of any of its Subsidiaries.
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(d) AUTHORITY; NONCONTRAVENTION. Viasoft has all the requisite
corporate power and authority to enter into this Agreement and, subject to, if
required by law, adoption and approval of the Merger Agreement and approval of
the Merger by an affirmative vote of the holders of a majority of the
outstanding shares of Viasoft Common Stock (the "Viasoft Shareholder Approval"),
to consummate the transactions contemplated by this Agreement. The execution and
delivery of this Agreement by Viasoft and the consummation by Viasoft of the
transactions contemplated by this Agreement have been duly authorized by all
necessary corporate action on the part of Viasoft, subject to Viasoft
Shareholder Approval, if such approval is required by law. This Agreement has
been duly executed and delivered by Viasoft and constitutes a valid and binding
obligation of Viasoft, enforceable against Viasoft in accordance with its terms
(except as enforcement hereof may be limited by (i) bankruptcy, insolvency,
reorganization, moratorium and similar laws, both state and federal, affecting
the enforcement of creditors' rights or remedies in general as from time to time
in effect or (ii) the exercise by courts of equity powers). The execution and
delivery of this Agreement do not, and the consummation of the transactions
contemplated by this Agreement and compliance with the provisions of this
Agreement will not, conflict with, or result in any violation of, or default
(with or without notice or lapse of time or both) under, or give rise to a right
of termination, cancellation or acceleration of any obligation or the loss of a
material benefit under, or result in the creation of any Lien upon any of the
properties or assets of Viasoft or any of its Subsidiaries under (i) the
certificate of incorporation or bylaws of Viasoft or the comparable charter or
organizational documents of any of its Subsidiaries, (ii) except as set forth in
Section 4.1(d) of the Viasoft Disclosure Letter (including change of control or
acceleration rights under Viasoft Option Plans or other agreements disclosed
therein), any loan or credit agreement, note, bond, mortgage, indenture, lease
or other agreement, instrument, permit, concession, franchise or license
applicable to Viasoft or any of its Subsidiaries or their respective properties
or assets or (iii) any governmental filings and other matters referred to in the
following sentence, any judgment, order, decree, statute, law, ordinance, rule
or regulation applicable to Viasoft or any of its Subsidiaries or their
respective properties or assets, other than, in the case of clause (ii) or
(iii), any such conflicts, violations, defaults, rights or Liens that
individually or in the aggregate would not (x) have a Material Adverse Effect on
Viasoft, (y) materially impair the ability of Viasoft to perform its obligations
under this Agreement or (z) prevent the consummation of any of the transactions
contemplated by this Agreement.
No consent, approval, order or authorization of, or registration, declaration or
filing with, any federal, state or local government or any court, administrative
or regulatory agency or commission or other governmental authority or agency,
domestic or foreign (a "Governmental Entity") or any other Person, is required
by or with respect to Viasoft or any of its Subsidiaries in connection with the
execution and delivery of this Agreement by Viasoft or the consummation by
Viasoft of the transactions contemplated by this Agreement, except for:
(1) the filing of a pre-merger notification and report form by
Viasoft under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of
0000 (xxx "XXX Xxx") and any similar filings and approvals
required under foreign jurisdictions,
(2) the filing with the SEC and the National Association of
Securities Dealers, Inc. of (A) the Viasoft Schedule TO, (B) the
Schedule 14D-9 and related Information Statement, (C) a proxy or
information statement relating to Viasoft Shareholder Approval, if
such approval is required by law (as amended or supplemented from
time to time, the "Proxy Statement"), and (D) such reports under
Section 13(a) of the Exchange Act as may be required in connection
with this Agreement and the transactions contemplated by this
Agreement, and any other applicable requirements under state
securities or "blue sky" laws and state takeover laws,
(3) the filing of the Certificate of Merger with the Delaware
Secretary of State and appropriate documents with the relevant
authorities of other states in which Viasoft is qualified to do
business,
(4) such other consents, approvals, orders, authorizations,
registrations, declarations and filings as would not individually
or in the aggregate (A) have a Material Adverse Effect on Viasoft,
(B) materially impair the ability of Viasoft to perform its
obligations under this
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Agreement or (C) prevent or have a Material Adverse Effect on the
ability of Viasoft to consummate any of the transactions
contemplated by this Agreement and
(5) any of the foregoing disclosed pursuant to the following
sentence. Section 4.1(d) of the Viasoft Disclosure Letter lists
all consents, waivers and approvals under any of Viasoft's or any
of its Subsidiaries' agreements, contracts, licenses or leases
required to be obtained in connection with the consummation of the
transactions contemplated hereby, which if, individually or in the
aggregate, were not obtained, would result in a Material Adverse
Effect on Viasoft.
(e) SEC DOCUMENTS; FINANCIAL STATEMENTS.
(i) Viasoft has filed in a timely manner all required
reports, schedules, forms, statements and other documents with the SEC and any
relevant state securities regulatory bodies since the date on which it became
subject to the requirements of the Securities Act of 1933, as amended, (the
"Securities Act") or the Exchange Act. All such required reports, schedules,
forms, statements and other documents filed by Viasoft with the SEC (including
those that Viasoft may file subsequent to the date hereof) are referred to
herein as the "SEC Documents". As of their respective dates, the SEC Documents
complied in all material respects with the requirements of the Securities Act or
the Exchange Act, as the case may be, and the rules and regulations of the SEC
promulgated thereunder applicable to such SEC Documents, and none of the SEC
Documents, when filed, contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading. Except to the extent that information contained
in any SEC Document has been revised or superseded by a later filed SEC
Document, none of the SEC Documents contains any untrue statement of a material
fact or omits to state any material fact required to be stated therein or
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading. None of Viasoft's Subsidiaries is
required to file any forms, reports or other documents with the SEC.
(ii) The financial statements of Viasoft included in the
SEC Documents, including those filed after the date hereof until the Closing,
comply as to form in all material respects with applicable accounting
requirements and the published rules and regulations of the SEC with respect
thereto, have been prepared in accordance with GAAP (except, in the case of
unaudited statements, as permitted by the rules and regulations of the SEC)
applied on a consistent basis during the periods involved (except as may be
indicated in the notes thereto) and fairly present in all material respects the
consolidated financial position of Viasoft and its consolidated Subsidiaries as
of the dates thereof and the consolidated results of their operations and cash
flows for the periods then ended (subject, in the case of unaudited statements,
to normal year-end audit adjustments). Except as set forth in Section 4.1(e) of
the Viasoft Disclosure Letter or as contemplated by this Agreement neither
Viasoft nor any of its Subsidiaries has any liabilities or obligations of any
nature (whether accrued, absolute, contingent or otherwise) required by GAAP to
be set forth on a consolidated balance sheet of Viasoft and its consolidated
Subsidiaries or in the related notes to the consolidated financial statements
prepared in accordance with GAAP which are, individually or in the aggregate,
material to the business, results of operations or financial condition of
Viasoft and its Subsidiaries taken as a whole, except liabilities (i) provided
for in the most recent consolidated balance sheet included in the SEC Documents
or (ii) incurred since the date of such balance sheet in the ordinary course of
business consistent with past practices.
(iii) Maintenance Revenues. Viasoft's maintenance revenues
for Viasoft's fiscal year ended June 30, 1999, as calculated in accordance with
GAAP applied on a consistent basis with prior audited periods and Viasoft's
accounting policies, were not less than the amount set forth in Section
4.1(e)(iii) of the Viasoft Disclosure Letter.
(f) INFORMATION SUPPLIED. None of the information supplied or
to be supplied by Viasoft specifically for inclusion or incorporation by
reference in (i) the Offer Documents, (ii) the Schedule 14D-9, (iii) the
information to be filed by Viasoft in connection with the Offer pursuant to Rule
14f-1 promulgated under the Exchange Act (the "Information Statement") or (iv)
the Proxy Statement, will, in the case of the
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Offer Documents, the Schedule 14D-9 and the Information Statement, at the
respective times the Offer Documents, the Schedule 14D-9 and the Information
Statement are filed with the SEC or first published, sent or given to Viasoft's
shareholders, or, in the case of the Proxy Statement, at the time the Proxy
Statement is first mailed to Viasoft's shareholders or at the time of the
Shareholders Meeting (as defined in Section 6.1(a)), contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements therein, in light of
the circumstances under which they are made, not misleading. The Schedule 14D-9,
the Information Statement, the Proxy Statement and the Viasoft Schedule TO will
comply as to form in all material respects with the requirements of the Exchange
Act and the rules and regulations thereunder, except that no representation or
warranty is made by Viasoft with respect to statements made or incorporated by
reference therein based on information supplied by Xxxxx Systems or ASG Sub
specifically for inclusion or incorporation by reference therein.
(g) ABSENCE OF CERTAIN CHANGES OR EVENTS. Except as
specifically contemplated by this Agreement, or disclosed in Section 4.1(g) of
the Viasoft Disclosure Letter, since the date of the most recently audited
financial statements included in the SEC Documents, Viasoft has conducted its
business only in the ordinary course, and there has not been (i) any Material
Adverse Change affecting Viasoft, (ii) any declaration, setting aside or payment
of any dividend or other distribution (whether in cash, stock or property) with
respect to any of Viasoft's capital stock, (iii) any split, combination or
reclassification of any of its capital stock or any issuance or authorization of
any issuance of any other securities in respect of, in lieu of or in
substitution for shares of its capital stock, (iv)(x) any granting by Viasoft or
any of its Subsidiaries to any executive officer of Viasoft or any of its
Subsidiaries of any increase in excess of $10,000 per annum in compensation,
except in the ordinary course of business consistent with prior practice or as
was required under employment agreements in effect as of the date of the most
recent audited financial statements included in the SEC Documents, (y) any
granting by Viasoft or any of its Subsidiaries to any executive officer of any
increase in excess of $10,000 per annum in severance or termination pay, except
as was required under any employment, severance or termination agreements in
effect as of the date of the most recent audited financial statements included
in the SEC Documents, or (z) any entry by Viasoft or any of its Subsidiaries
into any employment, severance or termination agreement with any executive
officer, (v) any damage, destruction or loss, whether or not covered by
insurance, that has or could reasonably be expected to have a Material Adverse
Effect on Viasoft, (vi) any change in accounting methods, principles or
practices by Viasoft materially affecting its assets, liabilities or business,
except insofar as may have been required by a change in GAAP and SEC rules and
regulations, or (vii) any material revaluation of any of Viasoft's assets,
including, without limitation, writing down the value of capitalized inventory
or writing off accounts receivable, other than in the ordinary course consistent
with past practice.
(h) INTELLECTUAL PROPERTY.
(i) Viasoft and its Subsidiaries own, or are licensed or
otherwise possess legally enforceable rights to use, all patents, trademarks,
trade names, service marks, copyrights, and any applications therefor,
maskworks, net lists, schematics, technology, know-how, trade secrets,
inventory, ideas, algorithms, processes, computer software programs or
applications (in both source code and object code form), and tangible or
intangible proprietary information or material ("Intellectual Property") that
are material to the business of Viasoft and its Subsidiaries as currently
conducted by Viasoft and its Subsidiaries.
(ii) Section 4.1(h)(ii) of the Viasoft Disclosure Letter
lists (x) all patents and patent applications and all registered and
unregistered trademarks, trade names and service marks, registered copyrights
and information concerning unregistered copyrights in the current versions of
certain Viasoft products specified on such list, in each case which Viasoft
considers to be material to its business and included in the Intellectual
Property, including the jurisdictions in which each such Intellectual Property
right has been issued or registered or in which any application for such
issuance and registration has been filed, (y) all material licenses,
sublicenses, and other agreements as to which Viasoft is a party and pursuant to
which any person other than Viasoft is authorized to use any Intellectual
Property (other than end-user licenses in Viasoft's current standard form
provided to Xxxxx Systems' counsel, with
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modifications in individual cases none of which would result in a Material
Adverse Effect), and (z) all material licenses, sublicenses and other agreements
as to which Viasoft is a party and pursuant to which Viasoft is authorized to
use any third party Intellectual Property, including software ("Third Party
Intellectual Property Rights") which are incorporated in, are, or form a part of
any Viasoft product that is material to its business.
(iii) To Viasoft's knowledge, there is no unauthorized
use, disclosure, infringement or misappropriation of any Intellectual Property
rights of Viasoft or any of its Subsidiaries, any trade secret material to
Viasoft or any of its Subsidiaries, or any Intellectual Property right of any
third party to the extent licensed by or through Viasoft or any of its
Subsidiaries, by any third party, including any employee or former employee of
Viasoft or any of its Subsidiaries. To Viasoft's knowledge, no Viasoft
Intellectual Property or product or service of Viasoft is subject to any
proceeding or outstanding decree, order, judgment, agreement, or stipulation
restricting in any manner the use, transfer, or licensing thereof by Viasoft, or
which may affect the validity, use or enforceability of such Viasoft
Intellectual Property. Neither Viasoft nor any of its Subsidiaries has entered
into any agreement to indemnify any other person against any charge of
infringement of any Intellectual Property, other than indemnification provisions
contained in licenses, purchase, service or work orders with customers,
distribution and reseller agreements, or other agreements arising in the
ordinary course of business.
(iv) Viasoft is not, nor will it be as a result of the
execution and delivery of this Agreement or the performance of its obligations
under this Agreement, in material breach of any license, sublicense or other
agreement relating to Viasoft Intellectual Property or Third Party Intellectual
Property Rights, Viasoft's service offerings or its ability to exploit its
products which could reasonably be expected to result in a Material Adverse
Effect on Viasoft.
(v) Except as disclosed in Section 4.1(h)(v) of the
Viasoft Disclosure Letter, no suit, action, proceeding or claim involving
Viasoft which involves a claim of infringement of any patents, trademarks,
service marks, copyrights or violation of any trade secret or other proprietary
right, or breach of any license or agreement involving Intellectual Property is
currently pending or, to the knowledge of Viasoft, is threatened, nor, to the
knowledge of Viasoft, is there any reasonable basis therefor. The manufacture,
marketing, licensing or sale of Viasoft's products and the provision of
Viasoft's services does not, to Viasoft's knowledge after due inquiry of each of
Viasoft's executive officers, directors and officers in charge of Viasoft's
corporate functions, infringe any patent, trademark, service xxxx, copyright,
trade secret or other proprietary right of any third party.
(vi) Viasoft has not received notice from any third party
and does not otherwise know or have reason to know that the operation of the
business of Viasoft or any act, product or service of Viasoft, infringes or
misappropriates any Third Party Intellectual Property Rights or constitutes
unfair competition or trade practices under the laws of any jurisdiction.
(vii) Except as set forth in Section 4.1(h)(vii) of the
Viasoft Disclosure Letter, to the knowledge of Viasoft, no Person has previously
infringed or misappropriated or is infringing or misappropriating any
Intellectual Property material to Viasoft.
(viii) Except as set forth in Section 4.1(h)(viii) of the
Viasoft Disclosure Letter, all current and former employees and consultants of
Viasoft have signed a confidentiality/nondisclosure agreement substantially in
the forms attached to the Viasoft Disclosure Letter. All current and former
employees and consultants of Viasoft involved in product development work have
signed an invention assignment agreement in the form attached to the Viasoft
Disclosure Letter. To Viasoft's knowledge, no such current or former employees
or consultants of Viasoft have violated any such agreement or otherwise
misappropriated any trade secrets of Viasoft or of any third party. Viasoft does
not believe it is or will be necessary to utilize any inventions, trade secrets
or proprietary information of any of its employees made prior to their
employment by Viasoft, except for inventions, trade secrets or proprietary
information that have been assigned to Viasoft.
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(ix) Viasoft has taken all reasonable and appropriate
steps to protect and preserve the confidentiality of all Intellectual Property
deemed confidential or trade secret and not otherwise protected by patents or
copyrights ("Confidential Information"). All use, disclosure or appropriation of
material Confidential Information owned by Viasoft by or to a third party has
been pursuant to the terms of a written agreement between Viasoft and such third
party. All use, disclosure or appropriation by Viasoft of Confidential
Information not owned by Viasoft has been pursuant to the terms of a written
agreement between Viasoft and the owner of such Confidential Information, or is
otherwise lawful.
(x) Except as set forth in Section 4.1(h)(x) of the
Viasoft Disclosure Letter, Viasoft has fully documented in writing or in other
tangible media all material technology, computer programs or Intellectual
Property which are incorporated in, are, or form a material part of any product
licensed or sold to customers by Viasoft or its Subsidiaries and that are
material to the business of Viasoft and its Subsidiaries as currently conducted
by Viasoft and its Subsidiaries, including without limitation, having a complete
annotated source code listing for all of the foregoing with respect to year 2000
compliance or conformity.
(xi) Except as set forth in Section 4.1(h)(xi) of the
Viasoft Disclosure Letter, Viasoft does not know or has reason to know of any
outstanding claims by customers relating to year 2000 products and services
provided by Viasoft to such customers, nor has any such customer asserted, to
the knowledge of Viasoft, any reasonable basis for such claims.
(xii) Except as set forth in Section 4.1(h)(xii) of the
Viasoft Disclosure Letter, Viasoft has no object and/or source code and/or
documentation escrow deposit and/or maintenance obligations to any third party,
including, without limitation, deposit obligations relating to bug fixes and/or
upgrades and/or revisions and/or new versions in connection with any of
Viasoft's products.
(i) LITIGATION. Except as disclosed in Section 4.1(i) of the
Viasoft Disclosure Letter, as of the date of this Agreement, there is no suit,
action or proceeding pending or, to the knowledge of Viasoft, threatened against
Viasoft or any of its Subsidiaries, nor, to the knowledge of Viasoft, is there
any reasonable basis therefor, that individually or in the aggregate could
reasonably be expected to (i) have a Material Adverse Effect on Viasoft, (ii)
challenge or seek to enjoin or seek damages with respect to Viasoft's entering
into and performing this Agreement or that impair the ability of Viasoft to
perform its obligations under this Agreement or (iii) prevent the consummation
of any of the transactions contemplated by this Agreement, nor is there any
judgment, decree, injunction, rule or order of any Governmental Entity or
arbitrator pending, or to the knowledge of Viasoft, threatened against Viasoft
or any of its Subsidiaries having, or which is reasonably likely to have, any
effect referred to in the foregoing clauses (i), (ii) or (iii) above.
(j) ABSENCE OF CHANGES IN BENEFIT PLANS. Except as disclosed in
Section 4.1(j) of the Viasoft Disclosure Letter, since the date of the most
recent audited financial statements included in the SEC Documents, there has not
been any adoption or amendment in any material respect by Viasoft or any of its
Subsidiaries of any collective bargaining agreement or any bonus, pension,
profit sharing, deferred compensation, incentive compensation, stock ownership,
stock purchase, stock option, phantom stock, retirement, vacation, severance,
disability, death benefit, hospitalization, medical or other plan, arrangement
or understanding (whether or not legally binding) providing benefits to any
current or former employee, officer or director of Viasoft or any of its
Subsidiaries. Except as disclosed in Section 4.1(j) of the Viasoft Disclosure
Letter, there exist no employment, consulting, severance, termination or
indemnification agreements, arrangements or understandings between Viasoft or
any of its Subsidiaries and any current or former employee, officer or director
of Viasoft or any of its Subsidiaries as to which there is or could be aggregate
liability on the part of Viasoft or any of its Subsidiaries in excess of
$10,000.
(k) ERISA COMPLIANCE.
(i) To Viasoft's knowledge, Viasoft is in compliance in all
material respects with all applicable laws, agreements and contracts relating to
employment, employment practices, wages, hours, and terms
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and conditions of employment, including, but not limited to, employee
compensation matters. Except as set forth in Section 4.1(k) of the Viasoft
Disclosure Letter, Viasoft does not have any employment contracts or consulting
agreements currently in effect that are not terminable at will (other than
agreements with the sole purpose of providing for the confidentiality of
proprietary information or assignment of inventions).
(ii) Viasoft (w) has never been and is not now subject to a
union organizing effort, (x) is not subject to any collective bargaining
agreement with respect to any of its employees, (y) is not subject to any other
contract, written or oral, with any trade or labor union, employees' association
or similar organization and (z) does not have any current labor disputes.
(iii) Neither Viasoft nor any trade or business which is under
common control with Viasoft within the meaning of Section 414 of the Internal
Revenue Code of 1986, as amended (the "Revenue Code") (a "Viasoft Tax
Affiliate") has a retirement or deferred compensation plan which is subject to
Section 412 of the Revenue Code or subject to Title IV of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA") or maintains a
"multiemployer plan" as defined in Section 3(37) of ERISA. Neither Viasoft nor
any Viasoft Tax Affiliate maintains, contributes to, or has any liability for
the medical, health, life, or other welfare benefits for present or future
terminated employees (other than any welfare benefit provided in compliance with
the Consolidated Omnibus Budget Reconciliation Act or similar laws). Neither
Viasoft nor any Viasoft Tax Affiliate has any trusts that are intended to be
qualified under Revenue Code section 501(a)(9) and none have had such trusts in
the past.
(iv) Viasoft has made available to Xxxxx Systems a true and
complete copy of, to the extent applicable, (A) each Viasoft Employee Plan, as
defined in subparagraph (v) below (B) each trust agreement related to such
Viasoft Employee Plan, (C) the most recent summary plan description for each
Viasoft Employee Plan for which such a description is required, (D) the most
recent United States Internal Revenue Service ("IRS") determination letter
issued with respect to any Viasoft Employee Plan and Viasoft's application to
the IRS for such letter, and (E) for the three most recent years (w) except as
set forth in Section 4.01(k)(iv) of the Viasoft Disclosure Letter, the Form 5500
and attached schedules, (x) audited financial statements and valuation reports,
(y) Forms PBGC-1 (if applicable) and all attachments thereto, and (z) attorneys'
responses to auditors' requests for information.
(v) To Viasoft's knowledge, each employment, severance or other
similar contract, arrangement or policy, each "employee benefit plan" as defined
in Section 3(3) of ERISA and each plan or arrangement (written or oral)
providing for insurance coverage (including any self-insured arrangements),
workers' benefits, vacation benefits, severance benefits, disability benefits,
death benefits, hospitalization benefits, retirement benefits, deferred
compensation, pension, profit-sharing, bonuses, stock options, stock purchase,
phantom stock, stock appreciation or other forms of incentive compensation or
post-retirement insurance, compensation or benefits for employees, consultants
or directors which is entered into, maintained or contributed to by Viasoft or
any Viasoft Tax Affiliate and covers any employee or former employee of Viasoft
or any Viasoft Tax Affiliate (collectively referred to as "Viasoft Employee
Plans") has been maintained in compliance in all material respects with its
terms and with the requirements prescribed by any and all statutes, orders,
rules and regulations that are applicable to such Viasoft Employee Plan.
Viasoft's Employee Plans are listed in Section 4.1(k)(v) of the Viasoft
Disclosure Letter. Any Viasoft Employee Plan which is intended to be qualified
within the meaning of Revenue Code section 401(a) is so qualified and has
received a favorable determination letter as to its qualified status, and, to
Viasoft's knowledge, nothing has occurred, whether by action or failure to act,
which would cause the loss of such qualification.
(vi) Except as set forth in Section 4.1(k)(vi) of the Viasoft
Disclosure Letter, all required payments, insurance premiums, and contributions
to any Viasoft Employee Plan for all periods prior to the Effective Time have
been timely made or are accrued on Viasoft's financial statements and adequate
reserves have been provided for any accrued payments, premiums or contributions
(or portions thereof) attributable to service on or prior to the Effective Time.
No Viasoft Employee Plan provides for an increase in benefits on or after the
Effective Time (excluding any agreements between Viasoft and individual
employees). No Viasoft Employee Plan contains any contractual language which
limits
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Viasoft's (or it's successors') ability to amend or terminate such plan without
obligation or liability (other than those obligations or liabilities for which
specific assets have been set aside in a trust or other funding vehicle) and no
participant in any Viasoft Employee plan has retained the right to continue
benefits under any predecessor documents governing a Viasoft Employee Plan.
(vii) There has been no amendment to, written interpretation or
announcement (whether or not written) by Viasoft relating to, or change in
employee participation or coverage under, any Viasoft Employee Plan that would
increase materially the expense of maintaining such Viasoft Employee Plan above
the level of the expense incurred in respect thereof for Viasoft's fiscal year
ended June 30, 1999. For each Viasoft Employee Plan for which a Form 5500 has
been filed, no material change has occurred with respect to a matter covered by
the most recent Form 5500 since this date hereof. Such Form 5500s were timely
filed and at the time of filing, such Forms correctly reflected the facts
regarding the income, activities, status or other matters of the Plan or any of
the information required to be shown thereon.
(viii) To Viasoft's knowledge, all Viasoft Employee Plans, to the
extent applicable, are in compliance, in all material respects, with (x) the
continuation coverage requirements of Section 4980B of the Revenue Code and
Sections 601 through 608 of ERISA, (y) the Americans with Disabilities Act of
1990, as amended, and (z) the Family Medical and Leave Act of 1993, as amended,
and the regulations thereunder. To Viasoft's knowledge, any notices required by
ERISA or the Revenue Code or any state or federal law or any ruling or
regulation of any state or federal agency with respect to Viasoft's Employee
Plans, including but not limited to notices required by section 204(h) of ERISA
or its predecessor or section 606 of ERISA and section 4980(f)(6) of the Revenue
Code, have been timely and appropriately given.
(ix) To Viasoft's knowledge, neither Viasoft nor any of its
respective Subsidiaries or Affiliates, nor any employee or officer of such
entity, nor any fiduciary (as that term is defined in section 3(21) of ERISA) of
any Viasoft Employee Plan ("Fiduciary") has engaged in a prohibited transaction
as such term is defined in Revenue Code section 4975 or section 406 of ERISA,
nor have any of the above-mentioned entities or individuals engaged in any other
action or failure to act that would subject them to any taxes, penalties, or
other liabilities under Revenue Code sections 4971, 4972, 4975, 4976, 4977,
4979, 4980 or 4980B, or fines or penalties imposed under ERISA sections 409,
502(i) or 501(l). Neither Viasoft nor any Viasoft Tax Affiliate nor any Viasoft
Employee Plan has entered into a closing agreement or similar arrangement with
the IRS or the Department of labor with respect to such Plan, nor have any
errors with respect to such Plans been corrected pursuant to voluntary
correction programs established by the IRS or the Department of Labor. No
Government Entities, including the IRS and the Department of labor, have given
Viasoft, any Viasoft Tax Affiliate, any Viasoft Employee Plan, any officer of
employee of such entity, or any Fiduciary, notice regarding any pending claim,
charge, complaint or audit with respect to a Viasoft Employee Plan.
(x) No benefit payable or which may become payable by Viasoft
or any of its Subsidiaries pursuant to any Viasoft Employee Plan or as a result
of or arising under this Agreement or the Agreement of Merger will constitute an
"excess parachute payment" (as defined in Section 280G(b)(1) of the Revenue
Code) which is subject to the imposition of an excise Tax under Section 4999 of
the Revenue Code or which would not be deductible by reason of Section 280G of
the Revenue Code. Except as set forth in Section 4.1(k)(x) of the Viasoft
Disclosure Letter, neither Viasoft nor its Subsidiaries is a party to any: (x)
agreement (other than as described in (y) below) with any executive officer or
other key employee thereof (A) the benefits of which are contingent, or the
terms of which are materially altered, upon the occurrence of a transaction
involving Viasoft or its Subsidiaries in the nature of any of the transactions
contemplated by this Agreement or the consummation of the transactions
contemplated hereby, (B) providing any term of employment or compensation
guarantee, or (C) providing severance benefits or other benefits after the
termination of employment of such employee regardless of the reason for such
termination of employment, or (y) agreement or plan, including, without
limitation, any stock option plan, stock appreciation rights plan or stock
purchase plan, any of the benefits of which will be materially increased, or the
vesting of benefits of which will be materially accelerated, by the execution
and delivery of this Agreement or the consummation of the transactions
contemplated hereby.
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(xi) Viasoft has made available to Xxxxx Systems a list of the
names of all employees of Viasoft and of any of its Subsidiaries and their
salaries as of the most recent practicable date.
(l) TAXES.
(i) Except as set forth in Section 4.1(l)(i) of the
Viasoft Disclosure Letter, Viasoft and each of its Subsidiaries has duly filed
on a timely basis all material Tax Returns required to be filed by it. To
Viasoft's knowledge, all such Returns are true, complete and correct in all
material respects. Neither Viasoft nor any of its Subsidiaries has been
delinquent in the payment of any material Tax nor is there any material Tax
deficiency outstanding, proposed or assessed against Viasoft or any of its
Subsidiaries, nor has Viasoft or any of its Subsidiaries executed any unexpired
waiver of any statute of limitations on or extending the period for the
assessment or collection of any Tax. To Viasoft's knowledge, neither Viasoft nor
any of its Subsidiaries has any liability for any material unpaid Taxes which
has not been accrued for or reserved on the balance sheet of Viasoft contained
in the most recent financial statements contained in the SEC Documents (the
"Viasoft Balance Sheet") in accordance with GAAP, whether asserted or
unasserted, contingent or otherwise, which is material to Viasoft, other than
any liability for unpaid Taxes that may have accrued since the date of the
Viasoft Balance Sheet in connection with the operation of the business of
Viasoft and its Subsidiaries in the ordinary course. To Viasoft's knowledge, the
most recent financial statements contained in the SEC Documents properly reflect
in accordance with GAAP all Taxes payable by or properly accruable by Viasoft
and its Subsidiaries for all taxable periods and portions thereof through the
date of such financial statements.
(ii) Except as set forth in Section 4.1(l)(ii) of the
Viasoft Disclosure Letter, none of the Returns of Viasoft and each of its
Subsidiaries have been examined by the Internal Revenue Service or any other
taxing authority during the 5 year period ending on the Closing Date which has
resulted or may result in a liability in excess of $10,000 per Return or in
excess of $50,000 for all Returns. None of Viasoft and its Subsidiaries has
entered into any closing agreement with respect to any taxable year since 1995.
Except as set forth in Section 4.1(l)(ii) of the Viasoft Disclosure Letter, to
Viasoft's knowledge, none of Viasoft and its Subsidiaries is a party to any
audit, dispute, claim, action or proceeding relating to, or for the assessment
or collection of, Taxes, nor has such event been asserted or threatened in
writing against Viasoft or any of its Subsidiaries or any of their assets that
involves a liability or potential liability in excess of $10,000 per Return or
in excess of $50,000 for all Returns. Viasoft and each of its Subsidiaries has
disclosed on their federal income tax returns all positions taken therein that
could give rise to a substantial understatement penalty within the meaning of
Revenue Code Section 6662. Neither Viasoft nor any of its Subsidiaries is (nor
has ever been) a party to any Tax sharing agreement with any party other than
Viasoft or its Subsidiaries. There are no Liens or security interests on any of
the assets of Viasoft or its Subsidiaries that arose in connection with any
failure (or alleged failure) to pay Taxes.
(iii) Except as set forth in Schedule 4.1(l)(iii) of the
Viasoft Disclosure Letter, neither Viasoft nor any Subsidiary is a party to any
safe harbor lease within the meaning of Section 168(f)(8) of the Revenue Code,
as in effect prior to amendment by the Tax Equity and Fiscal Responsibility Act
of 1982. Viasoft is not and has not been a United States real property holding
corporation within the meaning of Section 897(c)(2) of the Revenue Code during
the applicable period specified in Section 897(c)(l)(A)(ii) of the Revenue Code.
Neither Viasoft nor any Subsidiary has participated in an international boycott
as defined in Revenue Code Section 999. Neither Viasoft nor any Subsidiary is a
member of, a partner in, or otherwise owns an interest in a partnership, limited
liability or other "pass through" entity. Neither Viasoft nor any Subsidiary has
agreed, nor is it required to make, any adjustment under Revenue Code Section
481(a) by reason of a change in accounting method or otherwise. Neither Viasoft
nor any of its Subsidiaries owns any interest in any controlled foreign
corporation (as defined in Section 957 of the Revenue Code), passive foreign
investment company (as defined in Section 1296 of the Revenue Code) or other
entity, the income of which is required to be included in the income of Viasoft
or any of its Subsidiaries. Neither Viasoft nor any of its Subsidiaries has been
a "distributing" or "controlled" corporation as defined in Section 355 of the
Revenue Code in a transaction intended to qualify under Section 355 and Section
368(a)(1)(D) of the Revenue Code within the two years immediately prior to the
signing of this Agreement. Neither Viasoft nor any Subsidiary has liability for
the Taxes in excess of $10,000 of any person for any taxable period beginning or
ending during the 5 year period ending on the
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Closing Date under Treasury Regulation ss.1.1502-6 (or any similar provision of
state, local or foreign law) as a transferee or successor, by contract or
otherwise. Neither Viasoft nor any Subsidiary has granted a power of attorney
with respect to any matter relating to Taxes in the last three years, except
with respect to matters for which both (i) the identity of the attorney or
representative appointed, and a description of the Tax matter covered, by the
power of attorney is set forth in Section 4.1(l)(iii) of the Viasoft Disclosure
Letter, and (ii) a copy of the power of attorney is provided to Xxxxx Systems.
(iv) Neither Viasoft nor any of its Subsidiaries has
filed any consent agreement under Section 341(f) of the Revenue Code or agreed
to have Section 341(f)(2) of the Revenue Code apply to any disposition of a
subsection (f) asset (as defined in Section 341(f)(4) of the Revenue Code) owned
by Viasoft or any of its Subsidiaries.
(v) All material Tax elections for Viasoft and its
Subsidiaries are set forth in the Returns to which such elections relate. Except
as set forth in Section 4.1(l)(v) of the Viasoft Disclosure Letter, Viasoft
and/or each of its Subsidiaries does not have a net operating loss or other tax
attributes presently subject to limitation under Code ss.ss.382, 383, or 384 or
the underlying Treasury Regulations.
(vi) As used in this Agreement, "Tax" or "Taxes" will
mean all taxes, however, denominated, including any interest, penalties or other
additions to tax that may become payable in respect thereof, imposed by any
federal, territorial, state, local or foreign government or any agency or
political subdivision of any such government, which taxes will include, without
limiting the generality of the foregoing, all income or profits taxes
(including, but not limited to, federal income taxes and state income taxes),
payroll and employee withholding taxes, unemployment insurance, social security
taxes, sales and use taxes, ad valorem taxes, excise taxes, franchise taxes,
gross receipts taxes, business license taxes, occupation taxes, real and
personal property taxes, stamp taxes, environmental taxes, transfer taxes,
workers' compensation, Pension Benefit Guaranty Corporation premiums and other
governmental charges, and other obligations of the same or of a similar nature
to any of the foregoing, which Viasoft or any of its Subsidiaries is required to
pay, withhold or collect. As used in this Agreement, "Returns" will mean all
reports, estimates, declarations of estimated tax, information statements and
returns relating to, or required to be filed in connection with, any Taxes,
including information returns or reports with respect to withholding and other
payments to third parties.
(vii) Certain Tax Matters. Viasoft has delivered to Xxxxx
Systems certain tax information with respect to Viasoft and its Subsidiaries, a
copy of which is included in Section 4.1(l)(vii) of the Viasoft Disclosure
Letter. Such information is true and correct in all material respect as of the
date, and subject to all the conditions and assumptions, specified therein.
(m) NO EXCESS PARACHUTE PAYMENTS. Any amount that could be
received (whether in cash or property or the vesting of property) as a result of
any of the transactions contemplated by this Agreement by any employee, officer
or director of Viasoft or any of its affiliates who is a "disqualified
individual" (as such term is defined in proposed Treasury Regulation Section
1.280G-1) under any employment, severance or termination agreement, other
compensation arrangement or benefit plan currently in effect would not be
characterized as an "excess parachute payment" (as such term is defined in
Section 280G(b)(1) of the Revenue Code). There is no agreement, contract or
arrangement to which Viasoft or any of its Subsidiaries is a party that may
result in the payment of any amount that would not be deductible pursuant to
Sections 280G, 162 or 404 of the Revenue Code.
(n) COMPLIANCE WITH APPLICABLE LAWS; ENVIRONMENTAL LAWS.
(i) Viasoft and each of its Subsidiaries has in effect
all federal, state, local and foreign governmental approvals, authorizations,
certificates, filings, franchises, licenses, notices, permits and rights
("Permits") necessary for it to own, lease or operate its properties and assets
and to carry on its business as now conducted, and there has occurred no default
under any such Permit, except for the lack of Permits and for defaults under
Permits which individually or in the aggregate would not have a Material Adverse
Effect on Viasoft. To Viasoft's knowledge, Viasoft and its Subsidiaries are in
compliance with all applicable statutes, laws, ordinances, rules, orders and
regulations of any Governmental Entity, except
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for noncompliance which individually or in the aggregate would not have a
Material Adverse Effect on Viasoft.
(ii) Viasoft and its Subsidiaries are, and have been, and
each of Viasoft's former Subsidiaries, while Subsidiaries of Viasoft, was in
compliance with all applicable Environmental Laws except for noncompliance which
individually or in the aggregate would not have a Material Adverse Effect on
Viasoft. The term "Environmental Laws" means any federal, state or local
statute, code, ordinance, rule, regulation, policy, guideline, permit, consent,
approval, license, judgment, order, writ, decree, directive, injunction or other
authorization, including the requirement to register underground storage tanks,
relating to: (x) Releases or threatened Releases of Hazardous Material into the
environment, including into ambient air, soil, sediments, land surface or
subsurface, buildings or facilities, surface water, ground water, publicly-owned
treatment works, septic systems or land; or (y) the generation, treatment,
storage, disposal, use, handling, manufacturing, transportation or shipment of
Hazardous Material.
(iii) During the period of ownership or operation by
Viasoft and its Subsidiaries of any of their respective current or previously
owned or leased properties, there have been no Releases of Hazardous Material by
Viasoft or its Subsidiaries, or, to Viasoft's knowledge, any other party, in
violation of Environmental Laws in, on, under or affecting such properties or,
to the knowledge of Viasoft, any surrounding site, and none of Viasoft or its
Subsidiaries have disposed of any Hazardous Material or any other substance in a
manner that could reasonably be anticipated to lead to a Release in violation of
Environmental Laws, except in each case for those which individually or in the
aggregate would not have a Material Adverse Effect on Viasoft. Prior to the
period of ownership or operation by Viasoft and its Subsidiaries of any of their
respective currently or previously owned or leased properties, to the knowledge
of Viasoft, there were no Releases of Hazardous Material in, on, under or
affecting any such property or any surrounding site. The term "Release" has the
meaning set forth in 42 U.S.C. Sections. 9601(22). The term "Hazardous Material"
means (1) hazardous materials, pollutants, contaminants, constituents, medical
or infectious wastes, hazardous wastes and hazardous substances as those terms
are defined in the following statutes and their implementing regulations: the
Hazardous Materials Transportation Act, 49 U.S.C. Sections. 1801 et seq., the
Resource Conservation and Recovery Act, 42 U.S.C. Sections. 6901 et seq., the
Comprehensive Environmental Response, Compensation and Liability Act, as amended
by the Superfund Amendments and Reauthorization Act, 42 U.S.C. Sections. 9601 et
seq., the Clean Water Act, 33 U.S.C. Sections. 1251 et seq., the Toxic
Substances Control Act, 15 U.S.C. Sections. 2601 et seq., and the Clean Air Act,
42 U.S.C. Sections. 7401 et seq., (2) petroleum, including crude oil and any
fractions thereof, (3) natural gas, synthetic gas and any mixtures thereof, (4)
asbestos and/or asbestos containing material, (5) radon and (6) PCBs, or
materials or fluids containing PCBs.
(o) STATE TAKEOVER STATUTES; RIGHTS AGREEMENT. No Delaware
takeover statute or similar statute or regulation applies so as to impede, delay
or otherwise adversely affect, the Offer, the Merger, this Agreement, or any of
the transactions contemplated by this Agreement. Other than the Rights Plan
described in Section 4.1(o) of the Viasoft Disclosure Letter, Viasoft is not a
party to, nor affected by, any "rights agreement", "poison pill" or similar
plan, agreement or arrangement (a "Rights Arrangement") affecting the
capitalization of, or issuance of capital stock by, Viasoft, which would be
triggered by the Offer, the Merger, this Agreement or any other transaction
contemplated hereby. In particular, the restrictions on business combinations
applicable to "interested stockholders" contained in Section 203 of the DGCL
will not apply to the Offer, the Merger and the other transactions contemplated
hereby.
(p) BROKERS; SCHEDULE OF FEES AND EXPENSES. No broker,
investment banker, financial advisor or other person, other than Broadview
International LLC, the fees and expenses of which will be paid by Viasoft (and a
copy of whose engagement letter has been provided to Xxxxx Systems), is entitled
to any broker's, finder's, financial advisor's or other similar fee or
commission, nor to any fee that is contingent on closing of the transactions
contemplated hereby or that is based on a percentage of the transaction value,
in connection with the transactions contemplated by this Agreement based upon
arrangements made by or on behalf of Viasoft. Assuming consummation of the
Merger, no such engagement letter obligates Viasoft to continue to use their
services or pay fees or expenses in connection with any future transaction.
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(q) OPINION OF FINANCIAL ADVISOR. Viasoft's Board of Directors
has received the opinion of Broadview International LLC, dated the date of this
Agreement, to the effect that, as of such date, the consideration to be received
in the Offer and the Merger by Viasoft's shareholders is fair to Viasoft's
shareholders (other than Xxxxx Systems and ASG Sub) from a financial point of
view, and a signed copy of such opinion has been delivered to Xxxxx Systems.
(r) CONTRACTS, DEBT INSTRUMENTS.
(i) Set forth in Section 4.1(r) of the Viasoft
Disclosure Letter is (x) a list of all loan or credit agreements, notes, bonds,
mortgages, indentures and other agreements and instruments pursuant to which any
indebtedness of Viasoft or any of its Subsidiaries in an aggregate principal
amount in excess of $75,000 is outstanding or may be incurred and (y) the
respective principal amounts currently outstanding thereunder. For purposes of
this Agreement, "indebtedness" will mean, with respect to any person, without
duplication, (A) all obligations of such person for borrowed money, or with
respect to deposits or advances of any kind to such person, (B) all obligations
of such person evidenced by bonds, debentures, notes or similar instruments, (C)
all obligations of such person upon which interest charges are customarily paid,
(D) all obligations of such person under conditional sale or other title
retention agreements relating to property purchased by such person, (E) all
obligations of such person issued or assumed as the deferred purchase price of
property or services (excluding obligations of such person to creditors for raw
materials, inventory, services and supplies incurred in the ordinary course of
such person's business), (F) all capitalized lease obligations of such person,
(G) all obligations of others secured by any lien on property or assets owned or
acquired by such person, whether or not the obligations secured thereby have
been assumed, (H) all obligations of such person under interest rate or currency
hedging transactions (valued at the termination value thereof), (I) all letters
of credit issued for the account of such person (excluding letters of credit
issued for the benefit of suppliers to support accounts payable to suppliers
incurred in the ordinary course of business) and (J) all guarantees and
arrangements having the economic effect of a guarantee of such person of any
indebtedness of any other person.
(ii) Neither Viasoft nor any of its Subsidiaries is in
violation of or in default under (nor does there exist any condition which upon
the passage of time or the giving of notice would cause such a violation of or
default under): (x) its certificate of incorporation or bylaws, (y) any loan or
credit agreement, note, bond, mortgage, indenture, lease, permit, concession,
franchise, license or any other contract, agreement, arrangement or
understanding to which it is a party or by which it or any of its properties or
assets is bound, (z) any order, writ, injunction, decree, statute, rule or
regulation applicable to Viasoft or any of its Subsidiaries, except for
violations or defaults that individually or in the aggregate would not have a
Material Adverse Effect on Viasoft.
(iii) Except as set forth in Section 4.1(r) of the Viasoft
Disclosure Letter, neither Viasoft nor any of its Subsidiaries is a party to or
is bound by: (x) any agreement of indemnification or guaranty not entered into
in the ordinary course of business other than indemnification agreements between
Viasoft or any of its Subsidiaries and any of their respective officers or
directors; (y) any agreement, contract or commitment currently in force relating
to the disposition or acquisition of assets not in the ordinary course of
business or any ownership interest in any corporation, partnership, joint
venture or other business enterprise; or (z) any material joint marketing or
development agreement.
(s) CERTAIN AGREEMENTS. Except as set forth in Section 4.1(s)
of the Viasoft Disclosure Letter, Viasoft and its Subsidiaries are not parties
to or subject to any agreement currently in effect (or with respect to which
Viasoft has ongoing obligations other than obligations related to confidential
information or protection of intellectual property) which falls within any of
the following classifications:
(i) any employment, deferred compensation, bonus or
contract of a similar nature requiring payments other than salary in excess of
$50,000 by Viasoft or any Subsidiary;
(ii) any contract or agreement that materially restricts
or materially impairs Viasoft or any of its Subsidiaries or employees from
carrying on such person's business as now conducted or any part
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thereof or from competing in any line of business with any person, corporation
or other entity or that grants any exclusive license or distribution rights;
(iii) any collective bargaining agreement or other such
contract or agreement with any labor organization;
(iv) any lease of personal property requiring rental
payments of $200,000 or more throughout its term and having a term of one year
or more, whether as lessor or lessee;
(v) any mortgage, pledge, conditional sales contract,
security agreement, option, or any other similar agreement with respect to any
interest of Viasoft or any Subsidiary in personal property;
(vi) any stock purchase, stock option, stock bonus, stock
ownership, profit sharing, group insurance, bonus, deferred compensation,
severance pay, pension, retirement, savings or other incentive, change in
control, welfare or employee plan or material agreement providing benefits to
any present or former employees, officers or directors of Viasoft or any of its
Subsidiaries;
(vii) any agreement to acquire equipment or commitment to
make capital expenditures by Viasoft or any Subsidiary of $50,000 or more;
(viii) any agreement for the sale of any material
properties or assets or for the grant of any preferential right to purchase any
such material properties or assets or which requires the consent of any third
party to the transfer and assignment of any such material properties or assets,
other than in the ordinary course of business in connection with Viasoft's sale
of properties or assets;
(ix) any agreement requiring Viasoft to indemnify any
current or former officer, director, employee or agent;
(x) any agreement of any kind, including any
distributorship, sales, marketing or representative agreement, which involves
future payments or performance of services or delivery of items, requiring
payments of $250,000 or more by Viasoft or any Subsidiary; or
(xi) any agreement with a customer of Viasoft providing
for services to be performed for such customer for a fixed or capped fee or
payment structure.
(xii) any partnership, joint venture, strategic alliance
or cooperation agreement (or any agreement similar to any of the foregoing);
(xiii) any voting or other agreement governing how any
shares shall be voted, or
(xiv) any contract or other agreement which would prohibit
or materially delay the consummation of the Merger or any transactions
contemplated by this Agreement.
Neither Viasoft nor any Subsidiary is in default under any
contract or agreement, nor, to the knowledge of Viasoft, are any other parties
to such agreements in default, and to Viasoft's knowledge, no act or omission
has occurred which, with notice or lapse of time or both, would constitute a
default under any term or provision of any contract or agreement, except in each
of the foregoing cases for such defaults which, individually or in the
aggregate, would not have a Material Adverse Effect on Viasoft. Each agreement
disclosed pursuant to this Section is in full force and effect and true and
complete copies of all such agreements have been provided to Xxxxx Systems or
its representatives.
(t) TITLE TO PROPERTIES.
(i) Section 4.1(t) of the Viasoft Disclosure Letter
lists all real property interests owned or leased by Viasoft or its
Subsidiaries. Viasoft and each of its Subsidiaries has good and marketable title
to, or valid leasehold interests in, all of its material properties and assets,
free and clear of all liens except
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for defects in title, easements, restrictive covenants liens and similar
encumbrances or impediments that individually or in the aggregate would not
materially interfere with its ability to conduct its business as currently
conducted.
(ii) Viasoft and each of its Subsidiaries has complied in
all material respects with the terms of all material leases to which it is a
party and under which it is in occupancy, and all such leases are in full force
and effect. Viasoft and each of its Subsidiaries enjoys peaceful and undisturbed
possession under all such material leases.
(u) LABOR MATTERS. Except as set forth in Section 4.1(u) of
the Viasoft Disclosure Letter, (i) to Viasoft's knowledge, Viasoft and its
Subsidiaries are operating and have operated their businesses in compliance in
all material respects with all applicable laws relating to such businesses
respecting employment and employment practices, terms and conditions of
employment and wages and hours, including the Immigration Reform and Control Act
("IRCA"), the Worker Adjustment and Retraining Notification Act of 1988 ("WARN
Act"), any such applicable laws respecting employment of foreign nationals,
employment discrimination, equal opportunity, affirmative action, employee
privacy, wrongful or unlawful termination, workers' compensation, occupational
safety and health requirements, labor/management relations and unemployment
insurance, the Family and Medical Leave Act or related matters, and Viasoft and
its Subsidiaries are not engaged in and have not engaged in any unlawful
practice relating to such businesses under such applicable laws, or in any
unfair labor practice relating to the business of Viasoft or its Subsidiaries;
(ii) no Governmental Entity has given Viasoft or any of its Subsidiaries written
notice regarding any pending charge, audit, claim, complaint, investigation or
review by or before any Governmental Entity concerning or requesting in writing
to explain any conflicts with or violations of any such laws relating to the
business conducted by Viasoft or such Subsidiary or in connection with the
operation of the business, nor, to the knowledge of Viasoft, is any such
investigation threatened or pending, nor, to the knowledge of Viasoft, has any
such investigation occurred during the last two years; (iii) there is no labor
strike, dispute, slowdown or stoppage actually pending or, to the knowledge of
Viasoft, threatened against or affecting the business, and neither Viasoft nor
any Subsidiary has experienced any work stoppage or other material labor
difficulty relating to the business in the last two years; (iv) to the knowledge
of Viasoft, no union representation question or union organizational activity
exists respecting employees and, to Viasoft's knowledge, no one has petitioned
within the last two years, and no one is now petitioning, for union
representation of any employees; (v) there exists no collective bargaining
agreement or other contract or agreement relating to the business with any labor
union or association representing any employee, and no collective bargaining
agreement affecting employees is currently being negotiated; and (vi) to
Viasoft's knowledge, Viasoft and its Subsidiaries are in material compliance
with all obligations under all Viasoft Employee Plans and all employment
contracts and are not delinquent in payments to any employees for any wages,
salaries, commissions, bonuses or other compensation for any services performed
by them relating to the business or amounts required to be reimbursed to such
employees. Except as set forth in Section 4.1(u) of the Viasoft Disclosure
Letter, there are no pending or, to the knowledge of Viasoft, threatened
proceedings, claims (other than routine claims for benefits), actions or suits
of any nature (x) under or alleging violation of IRCA, WARN or any law
respecting employment of foreign nationals, employment discrimination, equal
opportunity, affirmative action, employee privacy, wrongful or unlawful
termination or demotion, sexual and other harassment, workers' compensation,
occupational safety and health requirements, labor/management relations
(including any grievances or arbitration proceeding arising out of or under any
collective bargaining agreements) and unemployment insurance, or matters
involving any employee; (y) relating to alleged unlawful employment practices or
unfair labor practices involving any employee (or the equivalent thereof under
any law); or (z) relating to alleged breaches of any of Viasoft Employee Plans
by Viasoft, any Affiliate, any officer or employee of such entities, or by any
Fiduciary. To the knowledge of Viasoft, no facts or circumstances exists which
could give rise to such actions, suits, arbitration, or claims, and Viasoft
shall promptly notify in writing of any pending or threatened actions, suits,
arbitration, or claims arising between the date hereof and the Effective Time.
To Viasoft's knowledge, no employee of Viasoft has in any material respect
violated any employment contract, confidentiality agreement, patent disclosure
agreement or noncompetition agreement between such employee and any former
employer of such employee due to such employee being employed by Viasoft or any
of its Subsidiaries or disclosing to Viasoft or any of its Subsidiaries trade
secrets or proprietary information of any such employer. No
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employee of Viasoft or any of its Subsidiaries has given notice to Viasoft or
any of its Subsidiaries, nor is Viasoft otherwise aware, that any employee
intends to terminate his or her employment with Viasoft or any of its
Subsidiaries. Section 4.1(u) of the Viasoft Disclosure Letter sets forth a true
and complete list of all material manuals, brochures or publications or similar
documents (in print or electronic form) of Viasoft and each Subsidiary regarding
office administration, personnel matters and hiring, evaluation, supervision,
training, termination and promotion of employees of Viasoft or any Subsidiary,
including but not limited to any affirmative action plan, if any.
(v) GOVERNMENT CONTRACTS. All representations, certifications
and disclosures made by Viasoft or any subsidiary to any Government Contract
Party have been in all material respects current, complete and accurate at the
times they were made. Except as set forth in Section 4.1(v) of the Viasoft
Disclosure Letter, there have been no acts, omissions or noncompliance with
regard to any applicable public contracting statute, regulation or contract
requirement (whether express or incorporated by reference) relating to any
contracts of Viasoft or any subsidiary with any Government Contract Party in
either case that have led to or is reasonably likely to lead to, either before
or after the Closing Date, (a) any material claim or dispute involving Viasoft
or any subsidiary and/or Xxxxx Systems or ASG Sub as successor in interest to
Viasoft and any Government Contract Party or (b) any suspension, debarment or
contract termination, or proceeding related thereto. There has been no act or
omission that relates to the marketing, licensing or selling to any Government
Contract Party of any of Viasoft technical data, computer software, products and
services and that has led to or is reasonably likely to lead to, either before
or after the Closing Date, any cloud on any of Viasoft's or its subsidiaries'
rights in and to its technical data, computer software, products and services.
There is currently no dispute between Viasoft or any of its subsidiaries and any
Government Contract Party. For purposes of this Section, the term "Government
Contract Party" means any independent or executive agency, division,
subdivision, audit group or procuring office of the federal, state, county,
local or municipal government, including any prime contractor of the federal
government and any higher level subcontractor of a prime contractor of the
federal government and including any employees or agents thereof, in each case
acting in such capacity.
(w) WARRANTIES, GUARANTEES AND INDEMNITIES. Except as
disclosed in Section 4.1(w) of the Viasoft Disclosure Letter, neither Viasoft
nor any of its Subsidiaries has provided to its customers rights to obtain
refunds or made any other warranties, guarantees or indemnities with respect to
the products or services it provides to such customers except where Viasoft's
liability is limited to (i) amounts paid to Viasoft pursuant to the contract in
which such right, warranty, guaranty or indemnity appears and lost profits and
consequential damages are expressly excluded, and/or (ii) Viasoft's obligation
to use reasonable efforts to remedy a deficiency under such contract without
further charge to the customer.
(x) CUSTOMER RELATIONSHIPS. Each of Viasoft and its
Subsidiaries has good commercial working relationships with its customers and
suppliers. None of Viasoft's top twenty-five customers (based on Viasoft's
consolidated revenues for the four fiscal quarters ended March 31, 2000 (each, a
"Material Customer")) has, from April 1, 2000 to the date of this Agreement,
cancelled or otherwise terminated its relationship with Viasoft or any
Subsidiary thereof, decreased or limited materially the amount of product or
services ordered from Viasoft or any Subsidiary thereof, or threatened to take
any such action other than in the ordinary course upon completion of customer
projects.
(y) PRODUCT AND SERVICE QUALITY. Except as set forth in
Section 4.1(y) of the Viasoft Disclosure Letter, all products manufactured,
sold, licensed, leased or delivered by Viasoft and its Subsidiaries and all
services provided by Viasoft and its Subsidiaries, to customers on or prior to
the Closing Date conform in all material respects to applicable contractual
commitments, express and implied warranties, product specifications and quality
standards and none of Viasoft or its Subsidiaries has any material liability
(and to Viasoft's knowledge, there is no reasonable basis for any present or
future action, suit, proceeding, hearing, investigation, charge, complaint,
claim or demand against Viasoft or its Subsidiaries giving rise to any material
liability) for replacement or repair thereof or other damages in connection
therewith. Except as set forth in Section 4.1(y) of the Viasoft Disclosure
Letter, neither Viasoft nor its Subsidiaries has received a complaint from a
Material Customer regarding Viasoft's or its Subsidiaries' services pursuant to
which such Material Customer is withholding payment of any material
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amounts payable to Viasoft or such Subsidiary, or which is the subject of an
ongoing dispute or correspondence between Viasoft and such customer.
(z) DISCLOSURE. Nothing in the Viasoft Disclosure Letter will
be deemed adequate to disclose an exception to a representation or warranty made
herein unless the disclosure identifies the exception with reasonable
particularity and describes the relevant facts in reasonable detail; provided
that a particular matter need only be disclosed once in such manner so long as
it is cross-referenced wherever else reasonably applicable in the Viasoft
Disclosure Letter in a manner sufficiently clear to identify to which
representation or warranty an exception is being made.
(aa) RELATED PARTY TRANSACTIONS. Except as set forth in
Viasoft's Disclosure Letter, no director or officer of Viasoft or any of its
Subsidiaries, and no member of their immediate families has any direct or
indirect interest in (i) any material equipment or other property, real or
personal, tangible or intangible, including without limitation, any item of
intellectual property, used in connection with or pertaining to Viasoft or any
of its Subsidiaries, or (ii) any creditor, supplier, customer, manufacturer,
agent, representative, or distributor of products of Viasoft or any of its
Subsidiaries; provided, however, that no such director or officer or other
person shall be deemed to have such an interest solely by virtue of the
ownership by such person, such person's immediate family or their respective
Affiliates of less than two percent (2%) of the outstanding voting stock or debt
securities of which are traded on a recognized stock exchange or quoted on the
National Association of Securities Dealers Automated Quotation System.
(bb) INSURANCE. Section 4.1(bb) of the Viasoft Disclosure Letter
sets forth a true and complete list of all insurance policies carried by, or
covering Viasoft and its Subsidiaries with respect to their businesses, assets
and properties, together with, in respect of each such policy, the name of the
insurer, the policy number, the type of policy, the amount of coverage and the
deductible. True and complete copies of each such policy have previously been
provided to Xxxxx Systems. All such policies are in full force and effect, and
no notice of cancellation has been received by Viasoft with respect to any such
policy. All premiums due on such policies have been paid in a timely manner, and
Viasoft and its Subsidiaries have complied in all material respects with the
terms and provisions of such policies.
4.2 REPRESENTATIONS AND WARRANTIES OF XXXXX SYSTEMS AND ASG SUB. Xxxxx
Systems and ASG Sub represent and warrant to Viasoft as follows:
(a) ORGANIZATION, STANDING AND CORPORATE POWER. Each of Xxxxx
Systems and ASG Sub is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware and has the requisite
corporate power and authority to carry on its business as now being conducted.
Each of Xxxxx Systems and ASG Sub is duly qualified or licensed to do business
and is in good standing in each jurisdiction in which the nature of its business
or the ownership or leasing of its properties makes such qualification or
licensing necessary, other than in such jurisdictions where the failure to be so
qualified or licensed individually or in the aggregate would not have a material
adverse effect on Xxxxx Systems.
(b) AUTHORITY. Xxxxx Systems and ASG Sub have all requisite
corporate power and authority to enter into this Agreement and to consummate the
transactions contemplated by this Agreement. The execution and delivery of this
Agreement by Xxxxx Systems and ASG Sub and the consummation by Xxxxx Systems and
ASG Sub of the transactions contemplated by this Agreement have been duly
authorized by all necessary corporate action on the part of Xxxxx Systems and
ASG Sub. This Agreement has been duly executed and delivered by Xxxxx Systems
and ASG Sub and constitutes a valid and binding obligation of each such party,
enforceable against each such party in accordance with its terms (except as
enforcement hereof may be limited by (i) bankruptcy, insolvency, reorganization,
moratorium and similar laws, both state and federal, affecting the enforcement
of creditors' rights or remedies in general as from time to time in effect or
(ii) the exercise by courts of equity powers).
(c) NO CONFLICT. The execution and delivery of this Agreement
do not, and the consummation of the transactions contemplated by this Agreement
and compliance with the provisions of this Agreement
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will not, conflict with, or result in any violation of, or default (with or
without notice or lapse of time or both) under, or give rise to a right of
termination, cancellation or acceleration of any obligation or to loss of a
material benefit under, or result in the creation of any Lien upon any of the
properties or assets of Xxxxx Systems or ASG Sub under (i) the certificate of
incorporation or bylaws of Xxxxx Systems or the certificate of incorporation or
bylaws of ASG Sub, (ii) any loan or credit agreement, note, bond, mortgage,
indenture, lease or other agreement, instrument, permit, concession, franchise
or license applicable to Xxxxx Systems or ASG Sub or their respective properties
or assets or (iii) assuming all notices, filings, reports and other filings
described in Section 4.2(d) have been properly given or made, any judgment,
order, decree, statute, law, ordinance, rule or regulation applicable to Xxxxx
Systems, ASG Sub or their respective properties or assets, other than, in the
case of clause (ii) or (iii), any such conflicts, violations, defaults, rights
or Liens that individually or in the aggregate would not (x) have a material
adverse effect on Xxxxx Systems and its Subsidiaries, taken as a whole, (y)
materially impair the ability of Xxxxx Systems or ASG Sub to perform their
obligations under this Agreement or (z) prevent the consummation of any of the
transactions contemplated by this Agreement.
(d) REQUIRED FILINGS AND CONSENTS. No waiver, consent,
approval, order or authorization of, or registration, declaration or filing
with, any Governmental Entity or any other Person is required by or with respect
to Xxxxx Systems or ASG Sub in connection with the execution and delivery of
this Agreement or the consummation by Xxxxx Systems or ASG Sub, as the case may
be, of any of the transactions contemplated by this Agreement, except for (i)
the filing of a pre-merger notification and report form under the HSR Act, (ii)
the filing with the SEC and the National Association of Securities Dealers, Inc.
of (A) the Offer Documents and (B) such reports under Sections 13(a), 13(d) and
16(a) of the Exchange Act as may be required in connection with this Agreement
and the transactions contemplated by this Agreement, (iii) filings as may be
required by any applicable "blue sky" laws, (iv) the filing of the Certificate
of Merger or an agreement of merger with the Delaware Secretary of State and
appropriate documents with the relevant authorities of other states in which
Viasoft is qualified to do business and (v) such other waivers, consents,
approvals, orders, authorizations, registrations, declarations and filings as
would not individually or in the aggregate (A) have a material adverse effect on
Xxxxx Systems and its Subsidiaries, taken as a whole, (B) impair the ability of
Xxxxx Systems and ASG Sub to perform their respective obligations under this
Agreement or (C) prevent the consummation of any of the transactions
contemplated by this Agreement.
(e) INFORMATION SUPPLIED. None of the information supplied or
to be supplied by Xxxxx Systems or ASG Sub specifically for inclusion or
incorporation by reference in the Offer Documents, the Schedule 14D-9, the
Information Statement or the Proxy Statement will, at the respective times such
documents are filed with the SEC or first published, sent or given to Viasoft's
shareholders, contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary in order to make
the statements therein, in light of the circumstances under which they are made,
not misleading. The Offer Documents will comply as to form in all material
respects with the requirements of the Exchange Act and the rules and regulations
promulgated thereunder, except that no representation or warranty is made by
Xxxxx Systems or ASG Sub with respect to statements made or incorporated by
reference therein based on information supplied by Viasoft specifically for
inclusion or incorporation by reference therein.
(f) BROKERS. Except for Xxxxxxx Xxxxx and Advest, the fees and
costs of which Xxxxx Systems will pay or cause to be paid, no broker, investment
banker, financial advisor or other person is entitled to any broker's, finder's,
financial advisor's or other similar fee or commission in connection with the
transactions contemplated by this Agreement based upon arrangements made by or
on behalf of Xxxxx Systems or ASG Sub.
(g) FINANCING.
(i) At the expiration of the Offer and on and after the
Effective Time, Xxxxx Systems will cause ASG Sub to, and ASG Sub will, have
available all the funds necessary to pay for the acquisition of all Shares that
ASG Sub is obligated to pay for pursuant to the Offer and Merger and to timely
perform the obligations of Xxxxx Systems and ASG Sub under this Agreement.
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(ii) Without limiting the foregoing, Xxxxx Systems and
ASG Sub have, on or prior to the date hereof, entered into a credit agreement
(the "Credit Agreement") with LaSalle Bank N.A. ("LaSalle"), KeyBank National
Association ("KeyBank"), and the financial institutions that are or may from
time to time become parties thereto (together with their respective successors
and assigns, the "Banks" and collectively with LaSalle and KeyBank, "Lenders"),
pursuant to which Lenders have agreed, subject to the terms and conditions
contained in the Credit Agreement and no other conditions, to provide financing
in an amount sufficient to pay for a number of Shares equal to the Xxxxx Systems
Share Number in accordance with the Xxxxx Systems Offer, together with the fees
and expenses to be incurred by Xxxxx Systems and ASG Sub in connection with the
transactions contemplated by this Agreement and the Credit Agreement (the
"Financing"). Xxxxx Systems has furnished to Viasoft a true and complete copy of
the Credit Agreement.
(iii) The Credit Agreement is in full force and effect and
has not been withdrawn, amended or terminated in any manner. Xxxxx Systems is
not aware of any fact, circumstance or condition that is reasonably likely to
result in any of the conditions set forth in the Credit Agreement not being
satisfied.
(iv) The Financing together with the Viasoft Contribution
Amount are sufficient to pay the aggregate consideration to the holder of Shares
and the Options as contemplated by this Agreement and to make all other
necessary payments of fees and expenses required to be paid by Xxxxx Systems and
ASG Sub in connection with the transactions contemplated by this Agreement.
(h) LITIGATION. As of the date of this Agreement, there is no
suit, action or proceeding pending or, to the knowledge of Xxxxx Systems,
threatened against Xxxxx Systems or any of its Subsidiaries that individually or
in the aggregate could reasonably be expected to (i) impair the ability of Xxxxx
Systems to perform its obligations under this Agreement, (ii) prevent the
consummation of any of the transactions contemplated by this Agreement, or (iii)
impair the ability of Xxxxx Systems to timely consummate the Financing, nor is
there any judgment, decree, injunction, rule or order of any Governmental Entity
or arbitrator pending, or to the knowledge of Xxxxx Systems threatened, against
Xxxxx Systems or any of its Subsidiaries having, or which is reasonably likely
to have, any effect referred to in the foregoing clauses (i) through (iii)
above.
(i) FINANCIAL STATEMENTS. The balance sheets as of March 31,
2000, December 31, 1999 and December 31, 1998, the statements of operations, the
statements of changes in stockholder's equity and comprehensive income and the
statements of cash flows for the years (or in the case of March 31, 2000, the
quarter) then ended (the "Xxxxx Systems Financial Statements") delivered to
Viasoft have been prepared in accordance with GAAP, except as may be indicated
in the notes thereto, and fairly present in all material respects the
consolidated financial position of Xxxxx Systems and its consolidated
Subsidiaries as of the dates thereof and the consolidated results of their
operations and cash flows for the periods then ended (subject, in the case of
unaudited statements to normal year and audit adjustments). Neither Xxxxx
Systems nor any of its Subsidiaries has any liabilities or obligations of any
nature (whether accrued, absolute, contingent or otherwise) required by GAAP to
be set forth on a consolidated balance sheet of Xxxxx Systems and its
consolidated Subsidiaries or in the related notes to the consolidated financial
statements prepared in accordance with GAAP which are, individually or in the
aggregate, material to the business, results of operations or financial
condition of Xxxxx Systems and its Subsidiaries taken as a whole, except
liabilities (i) provided for in the most recent consolidated balance sheet
included in the Xxxxx Systems Financial Statements or (ii) incurred since the
date of such balance sheet in the ordinary course of business consistent with
past practices.
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ARTICLE V
COVENANTS RELATING TO CONDUCT OF BUSINESS
5.1 CONDUCT OF BUSINESS.
(a) CONDUCT OF BUSINESS BY VIASOFT. From the date of this
Agreement until the Effective Time, Viasoft will, and will cause its
Subsidiaries to, carry on its and their respective businesses in the ordinary
course consistent with past practice and use all reasonable efforts to preserve
intact their current business organizations, to preserve their relationships
with distributors, licensors, contractors, customers, suppliers, lenders and
others having business dealings with any of them (other than officers and
employees) and to comply in all material respects with all applicable laws and
regulations. Without limiting the generality of the foregoing, except as may be
expressly permitted by other provisions of this Agreement, as set forth in
Section 5.1 of the Viasoft Disclosure Letter cross-referenced to a subsection of
this Section 5.1, or as may be agreed to in writing by Xxxxx Systems, Viasoft
will not, and will not permit any of its Subsidiaries to:
(i) (x) declare, set aside or pay any dividends on, or
make any other distributions in respect of, any of its capital stock, other than
dividends and distributions by any direct or indirect wholly owned Subsidiary of
Viasoft to its parent, or in the case of less than wholly owned Subsidiaries, as
required by agreements existing on the date of this Agreement, (y) split,
combine or reclassify any of its capital stock or issue or authorize the
issuance of any other securities in respect of, in lieu of or in substitution
for shares of its capital stock or (z) purchase, redeem or otherwise acquire any
shares of capital stock of Viasoft or any of its Subsidiaries or any other
securities thereof or any rights, warrants or options to acquire any such shares
or other securities;
(ii) issue, deliver, sell, pledge or otherwise encumber
any shares of its capital stock, any other voting securities or any securities
convertible into, or any rights, warrants or options to acquire, any such
shares, voting securities or convertible securities (other than the issuance of
Viasoft Common Stock upon the exercise of Options (as defined in Section 6.4)
outstanding on the date of this Agreement and in accordance with their present
terms and pursuant to the ESPP); provided that, without the prior written
consent of Xxxxx Systems, in no event (other than such exercise of Options) will
Viasoft issue any shares of its capital stock during the period commencing with
the consummation of the Offer and ending at the Effective Time;
(iii) except as set forth in Section 5.1(a)(iii) of
the Viasoft Disclosure Letter, amend its certificate of incorporation, bylaws or
other comparable charter or organizational documents;
(iv) acquire or agree to acquire (x) by merging or
consolidating with, or by purchasing a substantial portion of the assets of, or
by any other manner, any business or any corporation, partnership, joint
venture, association or other business organization or division thereof or (y)
any assets that individually or in the aggregate are material to Viasoft and its
Subsidiaries taken as a whole, except in the ordinary course of business
consistent with past practice;
(v) sell, lease, license, mortgage or otherwise encumber
or subject to any Lien or otherwise dispose of any of its properties or assets
(including Intellectual Property), except for sales, leases, licenses, or
encumbrances of its properties or assets in the ordinary course of business
consistent with past practice;
(vi) (x) incur any indebtedness for borrowed money or
draw down on any credit facility or arrangement or guarantee any indebtedness of
another person, issue or sell any debt securities or warrants or other rights to
acquire any debt securities of Viasoft 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 or enter into
any arrangement having the economic effect of any of the foregoing or (y) make
any loans or advances to, or investments in, any other person, other than any
Subsidiary of Viasoft;
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(vii) make or agree to make any new capital expenditure or
expenditures which individually is in excess of $50,000 or which in the
aggregate are in excess of $250,000;
(viii) make any material tax election or change any method
of accounting with respect to taxes, file any amended tax returns that may have
a material adverse effect on Viasoft or any of its Subsidiaries, or settle or
compromise any federal, state, local or foreign tax liability or refund;
(ix) pay, discharge, settle or satisfy any material
claims, liabilities or obligations (absolute, accrued, asserted or unasserted,
contingent or otherwise), other than as set forth in Section 5.1(a)(ix) of the
Viasoft Disclosure Letter or the payment, discharge, settlement or satisfaction,
in the ordinary course of business consistent with past practice or in
accordance with their terms, of liabilities reflected or reserved against in, or
contemplated by, the most recent consolidated financial statements (or the notes
thereto) of Viasoft included in the SEC Documents or incurred since the date of
such financial statements in the ordinary course of business consistent with
past practice in accordance with the terms of this Section 5.1;
(x) except as expressly contemplated hereby, waive,
release or assign any rights or claims under any contract or agreement binding
on Viasoft or any Subsidiary; or, except as expressly contemplated hereby or in
the ordinary course of business consistent with past practice, enter into,
modify, amend or terminate any contract or agreement binding on Viasoft or any
Subsidiary; or, in any event, enter into any contract or agreement binding on
Viasoft or any Subsidiary which would be required to be disclosed in Section
4.1(s) of the Viasoft Disclosure Letter;
(xi) [omitted]
(xii) except as contemplated by this Agreement or as set
forth in Section 5.1(a)(xii) of the Viasoft Disclosure Letter, adopt or amend in
any material respect any employee benefit or employee stock purchase or employee
option plan, or enter into any employment contract, pay any special bonus or
special remuneration to any director or employee, or increase the salaries or
wage rates of its officers or employees other than in the ordinary course of
business, consistent with past practice, or change in any material respect any
management policies or procedures, waive any stock repurchase rights,
accelerate, amend or change the period of exercisability of any Options (as
defined in Section 6.4), or authorize cash payments in exchange for any Options,
or otherwise alter or commit to any compensation, benefit or severance
arrangement for or with any officer or employee of Viasoft or enter into any
related or interested party transaction;
(xiii) except as set forth in Section 5.1(a)(xiii) of the
Viasoft Disclosure Letter, grant or provide any severance or termination pay to
any officer or employee except payments pursuant to written plans or agreements
outstanding on the date hereof and described in the Viasoft Disclosure Letter;
(xiv) except as contemplated by this Agreement, pursue any
merger, consolidation, restructuring, recapitalization of Viasoft or its
Subsidiaries, or otherwise take any actions (including seeking or soliciting
corporate approvals) directed towards seeking to liquidate or dissolve Viasoft
or to take advantage of bankruptcy or other creditor protection laws or that
would or are reasonably likely to render Viasoft insolvent or to cause Viasoft
to become involved in bankruptcy proceedings, including soliciting creditor
arrangements or moratoria (subject in each case to Viasoft's right to take
action consistent with Sections 5.2 and 6.1);
(xv) except as described in Section 5.1(a)(xv) of the
Viasoft Disclosure Letter, initiate any litigation or other proceeding or settle
or compromise any pending suit, action, audit or claim relating to Viasoft or
its Subsidiaries;
(xvi) take any action that would cause or constitute a
material breach of any representation or warranty made by Viasoft in this
Agreement;
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(xvii) other than the Rights Plan disclosed in Section
4.1(o) of the Viasoft Disclosure Letter, enter into any Rights Arrangement, or
take or permit any other action which could have the effect of causing the
representation made in Section 4.1(o) to be untrue in any respect; or
(xviii) authorize any of, or commit or agree to take any
of, the foregoing actions.
(b) OTHER ACTIONS. Viasoft and Xxxxx Systems will not, and
will not permit any of their respective Subsidiaries to, knowingly and willfully
take any deliberate action that would cause (i) any of the representations and
warranties of such party set forth in this Agreement to become untrue in any
material respect as of the date when made or (ii) any of the conditions to the
Offer set forth in Annex 1 or Annex 2 or any of the conditions to the Merger set
forth in this Agreement to not be satisfied (subject in each case to Viasoft's
right to take action consistent with Sections 5.2 and 6.1).
5.2 NO SOLICITATION. From and after the date of this Agreement until
the earlier of the Effective Time or termination of this Agreement in accordance
with its terms, neither Viasoft nor any Subsidiary, officer, director, or
employee of, or any financial advisor, attorney, accountant, agent or other
advisory or representative retained by, Viasoft, will directly or indirectly
solicit, discuss, or engage in negotiations with, or provide any information to
any person, other than Xxxxx Systems, ASG Sub and their respective
representatives, concerning any possible Takeover Proposal. Viasoft will
promptly notify Xxxxx Systems if any such inquiries or proposals are received
by, or any such information is required from, or any such negotiations or
discussions are sought to be initiated or continued with Viasoft.
Notwithstanding the foregoing, nothing contained in this Agreement will prevent
Viasoft's Board of Directors from furnishing information to or entering into
discussions or negotiations with any unsolicited person or entity or taking any
other action that Viasoft's Board of Directors reasonably concludes (after
consultation with its outside legal counsel) may be required of it in order to
exercise its fiduciary duties, as a Board of Directors, under applicable laws,
as such fiduciary duties would exist in the absence of this Section 5.2. For
purposes of this Agreement, "Takeover Proposal" means any offer or proposal
relating to any transaction or series of related transactions (other than the
transactions contemplated by this Agreement) involving: (a) any acquisition or
purchase from Viasoft by any person or "group" (as defined under Section 13(d)
of the Exchange Act and the rules and regulations thereunder) of more than a 10%
interest in the total outstanding voting securities of Viasoft or any of its
Subsidiaries or any tender offer or exchange offer that if consummated would
result in any person or "group" (as defined under Section 13(d) of the Exchange
Act and the rules and regulations thereunder) beneficially owning 10% or more of
the total outstanding voting securities of Viasoft or any of its Subsidiaries or
any merger, consolidation, business combination or similar transaction involving
Viasoft pursuant to which the shareholders of Viasoft immediately preceding such
transaction hold less than 90% of the equity interests in the surviving or
resulting entity of such transaction; (b) any sale, lease (other than in the
ordinary course of business), exchange, transfer, license (other than in the
ordinary course of business), acquisition or disposition of more than 10% of the
assets of Viasoft; or (c) any liquidation or dissolution of Viasoft.
5.3 MATTERS RELATING TO FINANCING.
(a) Xxxxx Systems shall cause to be satisfied on or before the
Expiration Date, and to continue to be satisfied until payment has been made for
all Shares to be purchased in the Offer and until the Merger Consideration has
been paid in full, all requirements under the Credit Agreement and the Financing
which are conditions to closing the transactions constituting the Financing and
to drawing the cash proceeds thereunder. Notwithstanding the foregoing, Xxxxx
Systems' obligations under this Agreement are not contingent upon receipt by
Xxxxx Systems of any funds pursuant to the Credit Agreement, the Financing or
otherwise.
(b) In the event Xxxxx Systems receives any written or oral
communications to the effect that any Lender under the Credit Agreement is
contemplating not providing the Financing or is terminating or canceling or
modifying in any material respect the Credit Agreement, or that the Financing is
unlikely to be obtained, Xxxxx Systems shall immediately communicate such event
to Viasoft and provide Viasoft with a true and complete copy of any such written
communication.
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5.4 MATTERS RELATING TO VIASOFT GUARANTEE. At Xxxxx Systems' written
request, Viasoft shall fully and unconditionally guarantee (the "Guarantee") the
Financing and shall secure such Guarantee by a first priority lien on and
security interest in substantially all of the assets of Viasoft (including, to
the extent not used to purchase Shares in the Viasoft Offer, the Cardinal Cash)
(the "Financing Lien"), on terms reasonably required by the Lenders, such
Guarantee and Financing Lien to be effective immediately upon the acceptance for
payment of, and payment for, a number of Shares by ASG Sub pursuant to the Offer
that satisfies the Minimum Tender Condition. In connection with the closing of
the Financing, Viasoft shall execute and deliver a solvency certificate with
respect to Viasoft in form reasonably requested by the Lenders.
5.5 ADDITIONAL VIASOFT INFORMATION. Viasoft will provide to Xxxxx
Systems all information required by Schedule 13E-3 to be included in the Offer
Documents and the Xxxxx Systems Schedule TO with respect to Viasoft and its
Affiliates and such information shall be true and correct in all material
respects.
ARTICLE VI
ADDITIONAL AGREEMENTS
6.1 SHAREHOLDER APPROVAL; PREPARATION OF PROXY STATEMENT.
(a) If Viasoft Shareholder Approval is required by law in
order to effect the Merger, Viasoft will, as soon as practicable following the
expiration of the Offer, duly call, give notice of, convene and hold a meeting
of its shareholders (the "Shareholders Meeting") for the purpose of obtaining
Viasoft Shareholder Approval. Subject to applicable law and the provisions of
Section 6.1(c): (i) Viasoft will, through its Board of Directors, recommend to
its shareholders that Viasoft Shareholder Approval be given; (ii) the Proxy
Statement will include a statement to the effect that Viasoft's Board of
Directors recommends that Viasoft Shareholder Approval be given at the
Shareholders Meeting; and (iii) neither Viasoft's Board of Directors nor any
committee thereof will withdraw, amend or modify, or propose or resolve to
withdraw, amend or modify in a manner adverse to Xxxxx Systems, the
recommendation of Viasoft's Board of Directors that Viasoft Shareholder Approval
be given at the Shareholders Meeting. Notwithstanding the foregoing, if in
connection with the Offer, ASG Sub will acquire and will maintain ownership of
at least 90% of the outstanding Shares sufficient to enable ASG Sub to effect
the Short-Form Merger, the parties will, at the request of Xxxxx Systems, take
all necessary and appropriate action to cause the Short-Form Merger to become
effective as soon as practicable after the expiration of the Offer without a
Shareholders Meeting in accordance with Section 253 of the DGCL. Without
limiting the generality of the foregoing, Viasoft agrees that its obligations
pursuant to the first sentence of this Section 6.1(a) will not be affected by
(i) the commencement, public proposal, public disclosure or communication to
Viasoft of any Takeover Proposal (including a superior proposal) or (ii) the
withdrawal or modification by Viasoft's Board of Directors of its approval or
recommendation of the Offer, this Agreement, the Merger or Viasoft Shareholder
Approval.
(b) If Viasoft Shareholder Approval is required by law in
order to effect the Merger, Viasoft will, as soon as practicable following the
expiration of the Offer, prepare and file a preliminary Proxy Statement with the
SEC and will use its best efforts to respond to any comments of the SEC or its
staff and to cause the Proxy Statement to be mailed to Viasoft's shareholders as
promptly as practicable after responding to all such comments to the
satisfaction of the staff. Viasoft will notify Xxxxx Systems promptly of the
receipt of any comments from the SEC or its staff and of any request by the SEC
or its staff for amendments or supplements to the Proxy Statement or for
additional information and will supply Xxxxx Systems with copies of all
correspondence between Viasoft or any of its representatives, on the one hand,
and the SEC or its staff, on the other hand, with respect to the Proxy Statement
or the Merger. If at any time prior to the Shareholders Meeting there will occur
any event that Viasoft determines, on advice of its outside counsel, should be
set forth in an amendment or supplement to the Proxy Statement, Viasoft will
promptly prepare and mail to its shareholders such an amendment or supplement.
Except as required by law, Viasoft will not mail any Proxy Statement, or any
amendment or supplement thereto, to which Xxxxx Systems reasonably objects.
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(c) Nothing in this Agreement will prevent Viasoft's Board of
Directors from withholding, withdrawing, amending or modifying its
recommendation in favor of the Offer, this Agreement, the Merger or Viasoft
Shareholder Approval if (i)(A) a superior proposal is made to Viasoft and is not
withdrawn, (B) Viasoft provides written notice to Xxxxx Systems (a "Notice of
Superior Proposal") advising Xxxxx Systems that Viasoft has received a superior
proposal, specifying all of the material terms and conditions of such superior
proposal and identifying the person or entity making such superior proposal, (C)
Xxxxx Systems will not have, within three business days of Xxxxx Systems'
receipt of the Notice of Superior Proposal, made an offer that Viasoft's Board
by a majority vote determines in its good faith judgment, after consultation
with its financial adviser, to be at least as favorable to Viasoft's
shareholders as such superior proposal (it being agreed that Viasoft's Board of
Directors will convene a meeting to consider any such offer by Xxxxx Systems
promptly following the receipt thereof), (D) Viasoft's Board of Directors
concludes in good faith, after consultation with qualified outside counsel,
that, in light of such superior proposal, the withholding, withdrawal, amendment
or modification of such recommendation is required in order for Viasoft's Board
of Directors to comply with its fiduciary obligations to Viasoft's shareholders
under applicable law and (E) Viasoft will not have violated any of the
restrictions set forth in Section 5.2 or this Section 6.1; or (ii) as otherwise
required by applicable law. Viasoft will provide Xxxxx Systems with at least
three business days prior notice (or such lesser prior notice as provided to the
members of Viasoft's Board of Directors but in no event less than twenty-four
hours) of any meeting of Viasoft's Board of Directors at which Viasoft's Board
of Directors is reasonably expected to consider any Takeover Proposal to
determine whether such Takeover Proposal is a superior proposal. For purposes of
this Agreement, "superior proposal" will mean an unsolicited, bona fide written
offer made by a third party to consummate any of the following transactions: (i)
a merger, consolidation, business combination, sale of assets or similar
transaction involving Viasoft pursuant to which the Shares outstanding
immediately preceding such transaction will represent less than 50% of the
equity interest in the surviving or resulting entity of such transaction or (ii)
the acquisition by any person or group (including by way of a tender offer or an
exchange offer or a two step transaction involving a tender offer followed with
reasonable promptness by a merger involving Viasoft), directly or indirectly, of
ownership of 100% of the then-outstanding shares of capital stock of Viasoft, on
terms and conditions that Viasoft's Board of Directors determines, in its
reasonable judgment, after consultation with its financial adviser, to be more
favorable to Viasoft shareholders than the terms of the Merger; provided,
however, that any such offer will not be deemed to be a "superior proposal" if
any financing required to consummate the transaction contemplated by such offer
is not committed and is not likely in the reasonable judgment of Viasoft's Board
of Directors (after consultation with its financial adviser) to be obtained by
such third party on a timely basis.
(d) Nothing contained in this Agreement will prohibit Viasoft
or its Board of Directors from taking and disclosing to its shareholders a
position contemplated by Rules 14d-9 and 14e-2(a) promulgated under the Exchange
Act.
(e) Xxxxx Systems agrees to cause all shares of Viasoft Common
Stock purchased pursuant to the Offer and all other shares of Viasoft Common
Stock owned by ASG Sub or any other Subsidiary of Xxxxx Systems to be voted in
favor of Viasoft Shareholder Approval.
6.2 ACCESS TO INFORMATION; CONFIDENTIALITY. Viasoft will, and will
cause each of its Subsidiaries to, afford to Xxxxx Systems, and to Xxxxx
Systems' officers, employees, accountants, counsel, financial advisers and other
representatives, reasonable access during normal business hours during the
period prior to the Effective Time to all their respective properties, books,
contracts, commitments, personnel and records and, during such period, Viasoft
will, and will cause each of its Subsidiaries to, furnish or make available
promptly to Xxxxx Systems (a) a copy of each report, schedule, registration
statement and other document filed by it during such period pursuant to the
requirements of federal or state securities laws and (b) all other information
concerning its business, properties and personnel as Xxxxx Systems may
reasonably request. Any disclosure that may be required by law, regulation or
rule will be coordinated by and between the parties and their advisors prior to
such disclosure. Except as required by law or the rules and regulations of the
NASDAQ National Market, Xxxxx Systems will hold, and will cause its officers,
employees, accountants, counsel, financial advisers and other representatives
and affiliates to hold, in confidence any confidential information in accordance
with the Confidentiality Agreement dated March 2, 2000, between Xxxxx Systems
and Viasoft (the "Confidentiality Agreement").
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6.3 REASONABLE EFFORTS; NOTIFICATION.
(a) Upon the terms and subject to the conditions set forth in
this Agreement, each of the parties agrees to use its reasonable efforts to
take, or cause to be taken, all actions, and to do, or cause to be done, and to
use its reasonable efforts to assist and cooperate with the other parties in
doing, all things necessary, proper or advisable to consummate and make
effective, in the most expeditious manner practicable, the Offer, the Merger and
the other transactions contemplated by this Agreement, including (i) obtaining
all necessary actions or non actions, waivers, consents and approvals from
Governmental Entities and making all necessary registrations and filings
(including filings with Governmental Entities, if any) and taking all reasonable
steps as may be necessary to obtain an approval or waiver from, or to avoid an
action or proceeding by, any Governmental Entity, (ii) obtaining all necessary
consents, approvals or waivers from third parties, including but not limited to
those set forth in Section 4.1(d) of the Viasoft Disclosure Letter, (iii)
defending any lawsuits or other legal proceedings, whether judicial or
administrative, challenging this Agreement or the consummation of any of the
transactions contemplated by this Agreement, including seeking to have any stay
or temporary restraining order entered by any court or other Governmental Entity
vacated or reversed and (iv) executing and delivering any additional instruments
necessary to consummate the transactions contemplated by, and to fully carry out
the purposes of, this Agreement; provided, however, that Viasoft's Board of
Directors shall not be required to take any action otherwise required by this
sentence that it has determined in good faith, based on the advice of outside
counsel, would be reasonably likely to constitute a breach of its fiduciary
duties to Viasoft's stockholders under applicable law. In connection with and
without limiting the foregoing, Viasoft and its Board of Directors will (A) take
all action necessary to ensure that no state takeover statute or similar statute
or regulation is or becomes applicable to the Offer, the Merger, this Agreement
or any of the other transactions contemplated by this Agreement and (B) if any
state takeover statute or similar statute or regulation becomes applicable to
the Offer, the Merger, this Agreement, or any other transaction contemplated by
this Agreement, take all action necessary to ensure that the Offer, the Merger
and the other transactions contemplated by this Agreement may be consummated as
promptly as practicable on the terms contemplated by this Agreement and
otherwise to minimize the effect of such statute or regulation on the Offer, the
Merger and the other transactions contemplated by this Agreement.
(b) Viasoft will give prompt notice to Xxxxx Systems, and
Xxxxx Systems will give prompt notice to Viasoft, of: (i) the breach of any
material representation or warranty made by it contained in this Agreement or
(ii) the failure by it to comply with or satisfy in any material respect any
covenant, condition or agreement to be complied with or satisfied by it under
this Agreement; provided, however, that no such notification will affect the
representations, warranties, covenants, or agreements of the parties or the
conditions to the obligations of the parties under this Agreement.
6.4 STOCK PLANS.
(a) OPTIONS OUTSTANDING. Viasoft currently maintains the
Viasoft Option Plans, which provide for the granting of options to purchase and
awards of Viasoft Common Stock, and the ESPP, which permits employees to
purchase Viasoft Common Stock. On and after the date of this Agreement, Viasoft
shall take all actions necessary to amend each Viasoft Option Plan and the ESPP
to provide that, except as set forth in Section 6.4(a) of the Viasoft Disclosure
Letter, no further options, awards or rights to receive equity shall be granted
or offered under any Viasoft Option Plan or the ESPP after the date hereof.
Except as set forth in Section 6.4(a) of the Viasoft Disclosure Letter, Viasoft
agrees to take all actions necessary to cause the ESPP to terminate on or before
the Effective Time, and all participant contributions and deferral amounts
credited on behalf of the participants under the ESPP Plan at the time of such
termination shall be paid to them in cash by Viasoft as soon as administratively
practicable thereafter.
(b) CONVERSION OF OPTIONS. On or before the Effective Time,
Viasoft will cause each then outstanding and unexercised option to purchase
shares of Viasoft Common Stock granted under any of the Viasoft Option Plans
(the "Options"), whether or not then exercisable or vested, to be converted into
an obligation of Viasoft to pay, and a right of the holder thereof to receive in
full satisfaction of such
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Option, cash in an amount in respect thereof equal to the product of (i) the
excess, if any, of the per share Offer Price over the exercise price thereof and
(ii) the number of shares of Viasoft Common Stock subject to such Option, less
any income or employment tax withholding required under the Revenue Code or any
provision of foreign, state or local law.
6.5 POST MERGER EMPLOYMENT BENEFITS.
(a) Employees of Viasoft who become employed by Xxxxx Systems
or any Subsidiary thereof after the Effective Time will become eligible to
participate in the same standard employee benefit plans as are generally
available to similarly situated employees of Xxxxx Systems, and such employees
will receive credit for all service with Viasoft for purposes of any "employee
benefit plan" as such term is defined in Section 3(3) of ERISA. Upon the request
of Xxxxx Systems, to the extent permitted by applicable law, any Viasoft
Employee Plans will be terminated immediately prior to the Effective Time.
(b) As soon as practicable after the Effective Time, Viasoft
shall provide Xxxxx Systems with a list of all individuals who were participants
or received benefits from any Viasoft Employee Plan, together with a list of
each such participant's credited service with respect to each plan (if
applicable) and each participant's benefits in such Plan. Viasoft shall, as soon
as practicable after the Effective Time, provide Xxxxx Systems with such
additional information in Viasoft's possession as may be reasonably requested by
Xxxxx Systems, and necessary for Xxxxx Systems to administer any Viasoft
Employee Plan that it has assumed.
6.6 INDEMNIFICATION, EXCULPATION AND INSURANCE.
(a) From and after the Effective Time, Xxxxx Systems will
fulfill and honor and will cause the Surviving Corporation to fulfill and honor
in all respects the obligations of Viasoft pursuant to any indemnification
agreements (including those set forth in Viasoft's certificate of incorporation
and bylaws) between Viasoft and any of its Subsidiaries and their respective
directors and officers (each, an "Indemnified Party") existing prior to the date
hereof; provided that Xxxxx Systems and the Surviving Corporation will have no
obligation to indemnify an Indemnified Party thereunder in respect of claims,
liabilities or damages arising out of a breach of a representation or covenant
made by Viasoft in this Agreement knowingly and willfully caused by such
Indemnified Party. From and after the Effective Time, such obligations will be
the joint and several obligations of Xxxxx Systems and the Surviving Corporation
and, by executing this Agreement, Xxxxx Systems hereby assumes such obligations.
Xxxxx Systems will cause to be maintained for a period of not less than six
years after the Effective Time Viasoft's current directors' and officers'
insurance and indemnification policy to the extent that it provides coverage for
events occurring prior to the Effective Time (the "D&O Insurance") for all
persons who are directors and officers of Viasoft on, or within one year prior
to, the date of this Agreement. If the existing D&O Insurance cannot be
maintained, expires or is terminated or cancelled during such six-year period,
Xxxxx Systems will use all reasonable efforts to cause to be obtained such
equivalent D&O Insurance as can be obtained for the remainder of such period.
The certificate of incorporation and bylaws of the Surviving Corporation will
contain the same provisions with respect to indemnification and elimination of
liability for monetary damages as are set forth in the certificate of
incorporation and bylaws of Viasoft, which provisions will not be amended,
repealed or otherwise modified from the Effective Time in any manner that would
adversely affect the rights thereunder of individuals who, as of the date
hereof, within one year prior to the date hereof, or any time after the date
hereof and prior to the Effective Time, were directors, officers, employees or
agents of Viasoft or its Subsidiaries, unless such modification is required by
law and Xxxxx Systems will take all necessary action to cause such provisions to
be continuously applicable to all such persons after the Effective Time.
(b) This Section 6.6 will survive any termination of this
Agreement and the consummation of the Merger at the Effective Time and will be
binding on all successors and assigns of Xxxxx Systems or the Surviving
Corporation. In the event that Xxxxx Systems or the Surviving Corporation or any
of their successors or assigns consolidates with or merges into any other person
and will not be the continuing or surviving corporations or entities of such
consolidation or merger, then and in each such case, proper provisions will be
made so that the successors and assigns of Xxxxx Systems or the Surviving
Corporation
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will assume the obligations of Xxxxx Systems or the Surviving Corporation, as
the case may be, set forth in this Section 6.6.
6.7 DIRECTORS. Promptly upon the acceptance for payment of, and
payment for, a number of Shares by ASG Sub and Viasoft pursuant to the Offer
that satisfies the Minimum Tender Condition, ASG Sub will be entitled to
designate for appointment or election to Viasoft's Board of Directors, upon
written notice to Viasoft, such number of persons so that the designees of ASG
Sub constitute the same percentage (but in no event less than a majority) of
Viasoft's Board of Directors (rounded up to the next whole number) as the
percentage of Shares acquired in connection with the Offer. Viasoft will, upon
ASG Sub's request, promptly increase the size of the Board of Directors and/or
secure the resignations of such number of directors as is necessary to enable
Xxxxx Systems' designees to be elected or appointed to the Board of Directors
and will cause ASG Sub's designees to be so elected or appointed. Subject to
applicable law, Viasoft will take all action requested by Xxxxx Systems
necessary to effect any such election, including mailing to its shareholders the
Information Statement containing the information required by Section 14(f) of
the Exchange Act and Rule 14f-1 promulgated thereunder, and Viasoft agrees to
make such mailing with the mailing of the Schedule 14D-9 (provided that ASG Sub
will have provided to Viasoft on a timely basis all information required to be
included in the Information Statement with respect to ASG Sub's designees).
Following the election or appointment of ASG Sub's designees pursuant to this
Section 6.7, and prior to the Effective Time, (i) any amendment or termination
of this Agreement, extension for the performance or waiver of the obligations or
other acts of Xxxxx Systems or ASG Sub or exercise or waiver of Viasoft's rights
or remedies hereunder, will require the concurrence of a majority of Viasoft's
directors (including, if Xxxxx Systems so elects, a majority of Viasoft's
non-employee directors) (or the concurrence of the sole remaining director, if
there is only one remaining) then in office who are directors of Viasoft on the
date hereof, or are directors (other than directors designated by ASG Sub in
accordance with this Section 6.7) designated by such persons or person to fill
any vacancy (the "Continuing Directors"), and (ii) no act or omission of Viasoft
authorized, directed or permitted by Viasoft's Board of Directors without the
concurrence of a majority of the Continuing Directors (or the sole remaining
Continuing Director, if there is only one remaining) shall constitute a
violation or breach of any of Viasoft's representations, warranties, obligations
or covenants contained in this Agreement or otherwise form a basis for Xxxxx
Systems to terminate this Agreement or to assert that any covenant or obligation
has not been performed or that any condition to the Closing has not been
satisfied.
6.8 FEES AND EXPENSES. All fees and expenses incurred in connection
with the Offer, the Merger, this Agreement and the transactions contemplated by
this Agreement will be paid by the party incurring such fees or expenses,
whether or not the Offer or the Merger is consummated; provided, however, that
(i) Viasoft agrees to promptly assume and pay, or reimburse Xxxxx Systems for,
all reasonable legal, accounting and investment banking fees payable and
expenses incurred by Xxxxx Systems in connection with this Agreement and the
transactions contemplated hereby, up to a maximum of $200,000, following
termination of this Agreement pursuant to Sections 8.1(c), 8.1(d) or 8.1(f)
hereof, and (ii) Xxxxx Systems agrees to promptly assume and pay, or reimburse
Viasoft for, all reasonable legal, accounting and investment banking fees
payable and expenses incurred by Viasoft in connection with this Agreement and
the transactions contemplated hereby, up to a maximum of $200,000, following
termination of this Agreement pursuant to Section 8.1(e) hereof.
6.9 PUBLIC ANNOUNCEMENTS. Xxxxx Systems and ASG Sub, on the one hand,
and Viasoft, on the other hand, will consult with each other before issuing, and
provide each other the opportunity to review, comment upon and concur with, any
press release or other public statements with respect to the transactions
contemplated by this Agreement, including the Offer and the Merger, and will not
issue any such press release or make any such public statement prior to such
consultation, except as may be required by applicable law, court process or by
obligations pursuant to any listing agreement with the NASDAQ National Market.
The parties agree that the initial press release to be issued with respect to
the transactions contemplated by this Agreement will be in the form heretofore
agreed to by the parties, and the parties agree to cooperate to file such press
release with the SEC promptly upon issuance in accordance with applicable law.
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6.10 SHAREHOLDER LITIGATION. Viasoft will give Xxxxx Systems the
opportunity to participate in the defense or settlement of any shareholder
litigation against Viasoft and its directors and officers relating to any of the
transactions contemplated by this Agreement until the purchase of Viasoft Common
Stock pursuant to the Offer or the prior termination of this Agreement in
accordance with its terms, and thereafter, to the extent permitted under
applicable law (taking into account the fiduciary duties of Viasoft's Board of
Directors) or any applicable insurance policies, Viasoft will give Xxxxx Systems
the opportunity to direct the defense of such litigation and, if Xxxxx Systems
so chooses to direct such litigation, Xxxxx Systems will give Viasoft and its
directors and officers an opportunity to participate in such litigation;
provided, however, that no settlement thereof will be agreed to without Xxxxx
Systems and Viasoft consent, which consent will not be unreasonably withheld,
and provided further that no settlement requiring a payment by an officer,
director or other representative will be agreed to without such person's
consent.
ARTICLE VII
CONDITIONS PRECEDENT
7.1 CONDITIONS TO EACH PARTY'S OBLIGATION TO EFFECT THE MERGER. The
respective obligation of each party to effect the Merger is subject to the
satisfaction or waiver on or prior to the Effective Time of the following
conditions:
(a) VIASOFT SHAREHOLDER APPROVAL. If required by applicable
law, Viasoft Shareholder Approval will have been obtained.
(b) HSR ACT. All waiting periods, if any, under the HSR Act
relating to the transactions contemplated hereby will have expired or terminated
early and all material foreign antitrust approvals required to be obtained prior
to the Merger in connection with the transactions contemplated hereby will have
been obtained.
(c) NO INJUNCTIONS OR RESTRAINTS. No statute, rule,
regulation, executive order, decree, temporary restraining order, preliminary or
permanent injunction, judgment or other order or ruling issued by any court of
competent jurisdiction or other Governmental Entity or other legal restraint or
prohibition will be in effect which would (i) make the Merger or the acquisition
or holding by Xxxxx Systems or its affiliates of Viasoft Common Stock or Common
Stock of the Surviving Corporation illegal or otherwise prevent the consummation
of the Merger, (ii) prohibit Xxxxx Systems or ASG Sub's ownership or operation
of Viasoft, or (iii) compel Xxxxx Systems or Viasoft to dispose of or hold
separate, all or a material portion of the business or assets of Xxxxx Systems
and its Subsidiaries taken as a whole, or Viasoft and its Subsidiaries taken as
a whole, or (iv) impose material limitations on the ability of Xxxxx Systems or
ASG Sub or their respective Affiliates effectively to exercise full ownership
and financial benefits of the Surviving Corporation, or impose any condition to
the Merger which would be material and adverse to Xxxxx Systems or Viasoft's
shareholders.
7.2 CONDITIONS TO XXXXX SYSTEMS AND ASG SUB'S OBLIGATION TO EFFECT THE
MERGER. The obligations of Xxxxx Systems and ASG Sub to effect the Merger are
subject to the satisfaction or waiver on or prior to the Effective Time of the
following conditions:
(a) the representations and warranties of Viasoft set forth in
this Agreement will be true and correct in all material respects on the Closing
Date as if made on and as of the Closing Date, and Xxxxx Systems will have
received a certificate with respect to the foregoing signed by a duly authorized
officer of Viasoft; provided, that the failure of any such representations or
warranties of Viasoft to be true and correct as of the date of this Agreement or
as of the Closing Date shall not excuse Xxxxx Systems and ASG Sub from their
respective obligations to effect the Merger, unless as a result of such failure,
on the Closing Date, (i) the Viasoft Cash shall be less than an amount equal to
$83,000,000, minus the aggregate amount expended by Viasoft to purchase Shares
pursuant to the Viasoft Offer, or (ii) the Claims Reserve shall be greater than
$5,000,000.
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(b) Viasoft will have performed in all material respects each
of its covenants and obligations under this Agreement required to be performed
by it at or prior to the Effective Time pursuant to the terms hereof, and Xxxxx
Systems will have received a certificate with respect to the foregoing signed by
a duly authorized officer of Viasoft; provided that the failure by Viasoft to
perform any covenant or obligation set forth in Section 5.1 of this Agreement,
shall not excuse Xxxxx Systems and ASG Sub from their respective obligations to
effect the Merger, unless as a result of such failure, on the Closing Date, (i)
the Viasoft Cash shall be less than an amount equal to $83,000,000, minus the
aggregate amount expended by Viasoft to purchase Shares pursuant to the Viasoft
Offer, or (ii) the Claims Reserve shall be greater than $5,000,000.
(c) there will not have occurred any Material Adverse Change
in Viasoft or any event that is reasonably likely to result in a Material
Adverse Effect on Viasoft; provided that no change or event shall excuse Xxxxx
Systems and ASG Sub from their respective obligations to effect the Merger,
unless as a result of such change or event, on the Closing Date, (i) the Viasoft
Cash shall be less than an amount equal to $83,000,000, minus the aggregate
amount expended by Viasoft to purchase Shares pursuant to the Viasoft Offer, or
(ii) the Claims Reserve shall be greater than $5,000,000.
(d) there will not be pending or overtly threatened any suit,
action or proceeding brought by or on behalf of any Governmental Entity (nor
will the staff of the Federal Trade Commission or the staff of the Antitrust
Division of the Department of Justice have recommended the commencement of
such), or any suit, action or proceeding (other than Excluded Litigation)
brought by or on behalf of any shareholder of Viasoft or any other person or
party (but only if such suit, action or proceeding is reasonably deemed by Xxxxx
Systems to have a reasonable likelihood of success) directly or indirectly (i)
challenging the acquisition by Xxxxx Systems or ASG Sub of any shares of Viasoft
Common Stock, seeking to restrain or prohibit the making or consummation of the
Offer or the Merger or the performance of any of the other transactions
contemplated by this Agreement, or alleging that any such acquisition or other
transaction relates to, involves or constitutes a breach of fiduciary duty by
Viasoft's directors or a violation of federal securities law or applicable
corporate law, (ii) seeking to prohibit or limit the ownership or operation by
Viasoft, Xxxxx Systems or any of their respective Subsidiaries of a material
portion of the business or assets of Viasoft and its Subsidiaries, taken as a
whole, or Xxxxx Systems and its Subsidiaries, taken as a whole, or to compel
Viasoft or Xxxxx Systems to dispose of or hold separate any material portion of
the business or assets of Viasoft and its Subsidiaries, taken as a whole, or
Xxxxx Systems and its Subsidiaries, taken as a whole, as a result of the Offer
or any of the other transactions contemplated by this Agreement, (iii) seeking
to impose material limitations on the ability of Xxxxx Systems or ASG Sub to
acquire or hold, or exercise full rights of ownership of, any shares of Viasoft
Common Stock accepted for payment pursuant to the Offer including without
limitation the right to vote Viasoft Common Stock accepted for payment by it on
all matters properly presented to the shareholders of Viasoft, (iv) seeking to
prohibit Xxxxx Systems or any of its Subsidiaries from effectively managing or
controlling in any material respect the business or operations of Viasoft and
its Subsidiaries taken as a whole, or (v) seeking to impose a condition to the
Merger which would be material and adverse to Xxxxx Systems;
(e) all third party consents, the failure of which to obtain
would have a Material Adverse Effect on Viasoft, will have been obtained;
provided, that the failure to obtain any such consent shall not excuse Xxxxx
Systems and ASG Sub from their respective obligations to effect the Merger,
unless as a result of such failure, on the Closing Date, (i) the Viasoft Cash
shall be less than an amount equal to $83,000,000, minus the aggregate amount
expended by Viasoft to purchase Shares pursuant to the Viasoft Offer, or (ii)
the Claims Reserve shall be greater than $5,000,000; and
(f) the Viasoft Cash shall not be less than $83,000,000 minus
the aggregate amount expended by Viasoft to purchase Shares pursuant to the
Viasoft Offer.
7.3 CONDITIONS TO VIASOFT'S OBLIGATION TO EFFECT THE MERGER. The
obligation of Viasoft to effect the Merger is subject to the satisfaction or
waiver on or prior to the Effective Time of the following conditions:
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(a) the representations and warranties of Xxxxx Systems set
forth in this Agreement will be true and correct in all material respects on the
Closing Date as if made on and as of the Closing Date, and Viasoft will have
received a certificate with respect to the foregoing signed by duly authorized
officers of Xxxxx Systems and ASG Sub; and
(b) Xxxxx Systems and ASG Sub will have performed in all
material respects each of its covenants and obligations under this Agreement
required to be performed by it at or prior to the Effective Time pursuant to the
terms hereof, and Viasoft will have received a certificate with respect to the
foregoing signed by duly authorized officers of Xxxxx Systems and ASG Sub.
7.4 CONDITIONS TO THE SHORT-FORM MERGER. Notwithstanding the foregoing
provisions of this Article VII, the only conditions to Xxxxx Systems' and ASG
Sub's obligation to effect the Short-Form Merger, if the Short-Form Merger may
be effected pursuant to applicable law, will be the conditions set forth in
Section 7.1(b) and (c).
ARTICLE VIII
TERMINATION, AMENDMENT AND WAIVER
8.1 TERMINATION. This Agreement may be terminated at any time prior to
the Effective Time, whether before or after approval of matters presented in
connection with the Merger by the shareholders of Viasoft:
(a) BY MUTUAL WRITTEN CONSENT duly authorized by the Boards of
Directors of Xxxxx Systems and Viasoft;
(b) BY EITHER XXXXX SYSTEMS OR VIASOFT,
(i) if the Merger has not been consummated on or prior
to September 15, 2000; provided, however, that the right to terminate this
Agreement under this Section 8.1(b)(i) will not be available to any party whose
action or failure to act has been a principal cause of or resulted in the
failure of the Merger to occur on or before such date and such action or failure
to act constitutes a breach of this Agreement;
(ii) if any Governmental Entity issues an order, decree
or ruling or takes any other action permanently enjoining, restraining or
otherwise prohibiting the Merger and such order, decree or ruling or other
action becomes final and nonappealable; or
(iii) if any required approval of Viasoft's shareholders
contemplated by this Agreement has not been obtained by reason of the failure to
obtain the required vote at the Shareholders Meeting duly convened therefor and
at any adjournment thereof; provided, however, that the right to terminate this
Agreement pursuant to this Section 8.1(b)(iii) will not be available to Viasoft
where the failure to obtain Viasoft Shareholder Approval was caused by (x) the
action or failure to act of Viasoft or (y) a breach of the Shareholder Tender
and Voting Agreement by any party thereto other than Xxxxx Systems or ASG Sub;
(c) BY XXXXX SYSTEMS, if (i) Viasoft's Board of Directors or
any committee thereof fails to recommend the Offer, the Merger, this Agreement,
or Viasoft Shareholder Approval, including any failure to include such
recommendation in the Schedule 14D-9 or the Proxy Statement, or has so resolved;
(ii) Viasoft's Board of Directors or any committee thereof withdraws or modifies
(including by amendment of the Schedule 14D-9 or Proxy Statement) in a manner
adverse to Xxxxx Systems or ASG Sub its approval or recommendation of the Offer,
the Merger, this Agreement, or Viasoft Shareholder Approval, approves or
recommends any Takeover Proposal (including a superior proposal), or resolves to
do any of the foregoing; (iii) Viasoft enters into any letter of intent or
similar document, agreement or commitment with respect to any Takeover Proposal
(including a superior proposal) or Viasoft's Board of Directors or any committee
thereof resolves to do so; (iv) Viasoft's Board of Directors or any committee
thereof upon a request to reaffirm Viasoft's approval or recommendation of the
Offer, the Merger or this Agreement, fails
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to do so within two business days after such request is made or has so resolved;
or (v) a tender or exchange offer relating to securities of Viasoft is commenced
by a person unaffiliated with Xxxxx Systems, and Viasoft does not send to its
security holders pursuant to Rule 14e-2 promulgated under the Exchange Act,
within 10 business days after such tender or exchange offer is first published
sent or given, a statement disclosing that Viasoft recommends rejection of such
tender or exchange offer;
(d) BY XXXXX SYSTEMS, if (i) any of the representations and
warranties of Viasoft set forth in this Agreement fail to be true and correct in
any material respect as of the date of the Agreement or cease to be true and
correct in any material respect at any time thereafter, or (ii) Viasoft breaches
or fails to perform in any material respect any obligation or to comply in any
material respect with any agreement or covenant of Viasoft to be performed or
complied with by it; provided that if any such breach or failure in the case of
clauses (i) or (ii) (other than a breach of Sections 5.2 or 6.1 or any other
breach that has caused irreparable harm) is curable by Viasoft through the
exercise of its reasonable efforts, then Xxxxx Systems may not terminate this
Agreement under this subsection (d) until ten business days after written notice
thereof has been given to Viasoft by Xxxxx Systems and unless at such time the
matter has not been cured; and further provided, that no breach or failure in
the case of clauses (i) or (ii) shall be grounds for Xxxxx Systems to terminate
this Agreement unless as a result of such failure, on the proposed date of
termination, (i) the Viasoft Cash shall be less than an amount equal to
$83,000,000, minus the aggregate amount expended by Viasoft to purchase Shares
pursuant to the Viasoft Offer, or (ii) the Claims Reserve shall be greater than
$5,000,000.
(e) BY VIASOFT, if (i) any of the representations and
warranties of Xxxxx Systems or ASG Sub set forth in this Agreement fail to be
true and correct in any material respect as of the date of the Agreement or
cease to be true and correct in any material respect at any time thereafter, or
(ii) if Xxxxx Systems or ASG Sub breaches or fails to perform in any material
respect any obligation or to comply in any material respect with any agreement
or covenant of Xxxxx Systems or ASG Sub to be performed or complied with by
either of them; provided that if any such breach or failure (other than a breach
that has caused irreparable harm) is curable by Xxxxx Systems or ASG Sub through
the exercise of their reasonable efforts, then Viasoft may not terminate this
Agreement under this subsection (e) until ten business days after written notice
thereof has been given to Xxxxx Systems and ASG Sub by Viasoft and unless at
such time the matter has not been cured.
(f) BY VIASOFT, if the Board of Directors of Viasoft will have
withheld, withdrawn, modified or amended its recommendation in favor of this
Agreement, the Offer, the Merger or Viasoft Shareholder Approval as permitted
pursuant to Section 6.1(c) and will have authorized Viasoft to enter into an
agreement with a third party with respect to a superior proposal;
(g) BY VIASOFT, if (i) Xxxxx Systems, ASG Sub or any of their
affiliates will have failed to commence the Xxxxx Systems Offer on or prior to
five (5) business days following the date of the initial public announcement of
the Offer or will have terminated the Xxxxx Systems Offer, or (ii) the Offer
expires without Xxxxx Systems, ASG Sub or their Affiliates, as the case may be,
purchasing Shares pursuant thereto; provided that in each case Viasoft may not
terminate this Agreement pursuant to this Section 8.1(g) if Viasoft is then in
material breach of this Agreement;
(h) BY XXXXX SYSTEMS, if Viasoft or any of its affiliates will
have failed to commence the Viasoft Offer on or prior to five (5) business days
following the date of the initial public announcement of the Offer; provided
that Xxxxx Systems may not terminate this Agreement pursuant to this Section
8.1(h) if Xxxxx Systems is then in material breach of this Agreement; or
(i) BY XXXXX SYSTEMS, if either on the Expiration Date or at
the Effective Time, the Viasoft Cash shall be less than $83,000,000 minus the
aggregate amount expended by Viasoft to purchase Shares pursuant to the Viasoft
Offer.
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8.2 EFFECT OF TERMINATION.
(a) If this Agreement is terminated by either Viasoft or Xxxxx
Systems as provided in Section 8.1, this Agreement will forthwith become void
and have no effect, without any liability or obligation on the part of Xxxxx
Systems, ASG Sub or Viasoft, other than the provisions of the last sentence of
Section 6.2, Section 6.8, this Section 8.2 and Article IX; provided, however,
(i) that, except as provided in Section 8.2(b), to the extent that such
termination results from the breach by a party of any of its representations,
warranties, covenants or agreements set forth in this Agreement, such breaching
party may be held liable for damages for such breach; and (ii) that (A) if this
Agreement is terminated by Xxxxx Systems pursuant to Section 8.1(c) or by
Viasoft pursuant to Section 8.1(f), Viasoft will pay or cause to be paid a fee
equal to $8,000,000 in immediately available funds within two business days of
such termination, (B) if this Agreement is terminated by Xxxxx Systems pursuant
to Sections 8.1(b)(i) or 8.1(d), or by Xxxxx Systems or Viasoft pursuant to
Section 8.1(b)(iii), and, prior to such termination under any of such Sections
listed in this clause (B), a third party has publicly announced a Takeover
Proposal, the consummation of which would constitute an Acquisition Event, and
within 12 months following the termination of this Agreement, an Acquisition
Event is consummated or Viasoft enters into a definitive agreement providing for
an Acquisition Event, Viasoft will pay or cause to be paid to Xxxxx Systems a
fee equal to $8,000,000 in immediately available funds within two business days
after the consummation of such Acquisition Event or the entry by Viasoft into
such definitive agreement; provided, that if such Acquisition Event provides for
a consideration per Share less than the Offer Price but greater than the closing
price per Share on the NASDAQ National Market on the trading day immediately
prior to the public announcement of the execution of this Agreement (the
"Pre-Offer Price"), the fee payable by Viasoft pursuant to this clause (y) will
be $2,000,000, and if such Acquisition Event provides for a consideration per
Share less than or equal to the Pre-Offer Price, no fee will be payable by
Viasoft pursuant to this clause (B), and (C) if this Agreement is terminated by
Viasoft pursuant to Section 8.1(e) due to the failure of Xxxxx Systems' and ASG
Sub's representations and warranties in Section 4.2(g) to be true and correct or
the failure of Xxxxx Systems or ASG Sub to perform their obligations pursuant to
Section 1.1(f), Section 3.2(b) or Section 5.3, Xxxxx Systems will pay or cause
to be paid to Viasoft a fee equal to 3,000,000 in immediately available funds
within five business days of such termination.
(b) No termination of this Agreement will affect the
obligations of the parties contained in the Confidentiality Agreement, all of
which obligations will survive in accordance with their terms. For the purposes
of this Agreement, "Acquisition Event" means any of the following transactions
(other than the transactions contemplated by this Agreement): (i) a merger,
consolidation, business combination, recapitalization, liquidation, dissolution
or similar transaction involving Viasoft pursuant to which the shareholders of
Viasoft immediately preceding such transaction hold less than 50% of the
aggregate equity interests in the surviving or resulting entity of such
transaction, (ii) a sale or other disposition by Viasoft of assets representing
in excess of 50% of the aggregate fair market value of Viasoft's business
immediately prior to such sale or (iii) the acquisition by any person or group
(including by way of a tender offer or an exchange offer or issuance by
Viasoft), directly or indirectly, of beneficial ownership or a right to acquire
beneficial ownership of shares representing in excess of 50% of the voting power
of the then outstanding shares of capital stock of Viasoft. Payment of the
amounts described in this Section 8.2 will not be in lieu of damages incurred in
the event of breach of this Agreement; provided, that Viasoft shall not be
liable to Xxxxx Systems or ASG Sub for any failure by Viasoft to purchase any
Shares pursuant to the Viasoft Offer, if the Viasoft Cash shall be insufficient
to make such purchase.
8.3 AMENDMENT. This Agreement may be amended by the parties at any
time before or after obtaining Viasoft Shareholder Approval, if Viasoft
Shareholder Approval is required by law; provided, however, that after any
required Viasoft Shareholder Approval, there will not be made any amendment that
by law requires further approval by such shareholders without the further
approval of such shareholders. This Agreement may not be amended except by an
instrument in writing signed on behalf of each of the parties.
8.4 EXTENSION; WAIVER. At any time prior to the Effective Time, the
parties may (a) extend the time for the performance of any of the obligations or
other acts of the other parties, (b) waive any inaccuracies in the
representations and warranties contained in this Agreement or in any document
delivered pursuant
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to this Agreement or (c) subject to the proviso of Section 8.3, waive compliance
with any of the agreements or conditions contained in this Agreement. Any
agreement on the part of a party to any such extension or waiver will be valid
only if set forth in an instrument in writing signed on behalf of such party.
The failure of any party to this Agreement to assert any of its rights under
this Agreement or otherwise will not constitute a waiver of those rights.
8.5 PROCEDURE FOR TERMINATION, AMENDMENT, EXTENSION OR WAIVER. A
termination of this Agreement pursuant to Section 8.1, an amendment of this
Agreement pursuant to Section 8.3 or an extension or waiver pursuant to Section
8.4 will, in order to be effective, require in the case of Xxxxx Systems, ASG
Sub or Viasoft, action by its Board of Directors or the duly authorized designee
of its Board of Directors; provided, however, that in the event that ASG Sub's
designees are appointed or elected to the Board of Directors of Viasoft as
provided in Section 6.7, after the acceptance for payment of shares of Viasoft
Common Stock pursuant to the Offer and prior to the Effective Time, the
affirmative vote of the Continuing Directors will be required by Viasoft to (i)
amend or terminate this Agreement by Viasoft, (ii) exercise or waive any of
Viasoft's rights or remedies under this Agreement or (iii) extend the time for
performance of or waive Xxxxx Systems' and ASG Sub's respective obligations
under this Agreement.
ARTICLE IX
GENERAL PROVISIONS
9.1 NONSURVIVAL OF REPRESENTATIONS AND WARRANTIES. None of the
representations and warranties in this Agreement or in any instrument delivered
pursuant to this Agreement will survive the Effective Time. This Section 9.1
will not limit any covenant or agreement of the parties which by its terms
contemplates performance after the Effective Time.
9.2 NOTICES. All notices, requests, claims, demands and other
communications under this Agreement will be in writing and will be deemed given
if delivered personally, telecopied (which is confirmed) or sent by overnight
courier (providing proof of delivery) to the parties at the following addresses
(or at such other address for a party as will be specified by like notice):
(a) if to Xxxxx Systems or ASG Sub, to
Xxxxx Systems Group, Inc.
0000 Xxxxx Xxxxxx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxx, CEO and President
Facsimile: (000) 000-0000
with copies to:
Xxxxx Systems Group, Inc.
0000 Xxxxx Xxxxxx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxxxxxx X. Xxxxxx, Esq., General Counsel
Facsimile: (000) 000-0000
and
Steptoe & Xxxxxxx, LLP
0000 Xxxxxxxxxxx Xxxxxx, XX
Xxxxxxxxxx, XX 00000
Attention: Xxxxxx X. XxXxxxxxxx, Esq.
Facsimile: (000) 000-0000
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(b) if to Viasoft, to
Viasoft, Inc.
0000 X. Xxxxxxxxx Xxxx
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxx, President
Facsimile: (000) 000-0000
with a copy to:
Viasoft, Inc.
0000 X. Xxxxxxxxx Xxxx
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxx, Esq., General Counsel
Facsimile: (000) 000-0000
and
Xxxxxx Xxxxxxx
The Phoenix Plaza
0000 X. Xxxxxxx Xxxxxx
Xxxxxx-Xxxxx Xxxxx
Xxxxxxx, XX 00000-0000
Attention: Xxxxxxx Xxxxxx, Esq.
Facsimile: (000) 000-0000
9.3 DEFINITIONS. For purposes of this Agreement:
"ACQUISITION EVENT" is defined in Section 8.2(c) of this
Agreement.
"AFFILIATE" of any person means another person that directly or
indirectly, through one or more intermediaries, controls, is
controlled by, or is under common control with, such first person.
"AGREEMENT" means this Agreement and Plan of Merger and all
Annexes, Exhibits and Amendments hereto.
"XXXXX SYSTEMS" is defined in the introductory paragraph of this
Agreement.
"XXXXX SYSTEMS SCHEDULE TO" is defined in Section 1.1(e) of this
Agreement.
"XXXXX SYSTEMS SHARE NUMBER" is defined in Section 1.1 (b) of this
Agreement.
"ASG SUB" is defined in the introductory paragraph of this
Agreement.
"CERTIFICATES" is defined in Section 3.2(c) of this Agreement.
"CLAIMS RESERVE" means the aggregate amount of all assessments,
losses, damages, liabilities, settlements, judgments, fines,
penalties, interest, costs and expenses (including fees and
disbursements of counsel) which have been or are reasonably likely
to be imposed upon or incurred by either Viasoft or Xxxxx Systems
as a result of the violation or breach by Viasoft of any of its
representations, warranties or covenants contained in this
Agreement.
"CLOSING DATE" is defined in Section 2.2 of this Agreement.
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"CONFIDENTIALITY AGREEMENT" is defined in Section 6.2 of this
Agreement.
"CONFIDENTIAL INFORMATION" is defined in Section 4.1(h)(ix) of
this Agreement.
"CONTINUING DIRECTORS" is defined in Section 6.7 of this
Agreement.
"CREDIT AGREEMENT" is defined in Section 4.2(g)(ii) of this
Agreement.
"DISSENTING SHAREHOLDER" is defined in Section 3.1(d) of this
Agreement.
"DISSENTING SHARES" is defined in Section 3.1(d) of this
Agreement.
"DGCL" is defined in Recital D of this Agreement.
"EFFECTIVE TIME" is defined in Section 2.3 of this Agreement.
"ENVIRONMENTAL LAWS" is defined in Section 4.1(n)(ii) of this
Agreement.
"ERISA" is defined in Section 4.1(k)(iii) of this Agreement.
"ESPP" is defined in Section 4.1(c) of this Agreement.
"EXCHANGE ACT" is defined in Section 1.1(a) of this Agreement.
"EXCLUDED LITIGATION" means any lawsuit, action or other legal
proceeding brought by any Person against Viasoft, Xxxxx Systems or
ASG Sub or their respective Affiliates on the basis of a cause of
action described in Section 4.1(i) of the Viasoft Disclosure
Letter.
"EXPIRATION DATE" is defined in Section 1.1(b) of this Agreement.
"FIDUCIARY" is defined in Section 4.1(k)(ix) of this Agreement.
"FINANCING" is defined in Section 4.2(g)(ii) of this Agreement.
"FINANCING LIEN" is defined in Section 5.4 of this Agreement.
"GAAP" means generally accepted accounting principles.
"GOVERNMENT CONTRACT PARTY" is defined in Section 4.1(v) of this
Agreement.
"GOVERNMENTAL ENTITY" is defined in Section 4.1(d) of this
Agreement.
"GUARANTEE" is defined in Section 5.4 of this Agreement.
"HAZARDOUS MATERIAL" is defined in Section 4.1(n)(iii) of this
Agreement.
"HSR ACT" is defined in Section 4.1(d) of this Agreement.
"INDEMNIFIED PARTY" is defined in Section 6.6(a) of this
Agreement.
"INFORMATION STATEMENT" is defined in Section 4.1(f) of this
Agreement.
"INTELLECTUAL PROPERTY" is defined in Section 4.1(h)(i) of this
Agreement.
"IRCA" is defined in Section 4.1(u) of this Agreement.
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"IRS" means the Internal Revenue Service.
"LENDERS" is defined in Section 4.2(g)(ii) of this Agreement.
"LIENS" is defined in Section 4.1(b) of this Agreement.
"MATERIAL ADVERSE CHANGE" or "MATERIAL ADVERSE EFFECT" means, when
used in connection with Viasoft or in connection with Viasoft and
its Subsidiaries, any change or effect that is or would be
materially adverse to Viasoft and its Subsidiaries, taken as a
whole, taking into account the business, properties, assets,
employees, financial condition or results of operations of Viasoft
and its Subsidiaries as a whole, excluding those changes, effects
and developments that directly result from (i) the announcement of
the Offer or the Merger, (ii) any act or omission of Xxxxx Systems
or ASG Sub, (iii) any Excluded Litigation, (iv) general economic
conditions, or (v) conditions generally affecting the industry in
which Viasoft competes (provided that such conditions do not
materially and adversely affect Viasoft disproportionately);
provided that the resignation or other voluntary termination for
any reason of the employment of any number of Viasoft's or its
Subsidiaries' officers or employees shall not be deemed to be a
Material Adverse Change or Material Adverse Effect and shall not
otherwise form a basis for Xxxxx Systems to terminate this
Agreement or to assert that any covenant or obligation has not
been performed or that any condition to the Closing has not been
satisfied.
"MATERIAL CUSTOMER" is defined in Section 4.1(x) of this
Agreement.
"MERGER" is defined in Recital D of this Agreement.
"MERGER CONSIDERATION" is defined in Section 3.1(c) of this
Agreement.
"MINIMUM TENDER CONDITION" is defined in Annex 1 attached to this
Agreement.
"NON-US COMPETITION LAWS" means the competition and antitrust laws
of any country other than the United States.
"NOTICE OF SUPERIOR PROPOSAL" is defined in Section 6.1(c) of this
Agreement.
"OFFER" is defined in Recital B of this Agreement.
"OFFER COMPLETION DATE" is defined in Section 2.1 of this
Agreement.
"OFFER DOCUMENTS" is defined in Section 1.1(e) of this Agreement.
"OFFER PRICE" is defined in Recital A of this Agreement.
"OPTIONS" is defined in Section 6.4(b) of this Agreement.
"PAYING AGENT" is defined in Section 3.2(a) of this Agreement.
"PERMITS" is defined in Section 4.1(n)(i) of this Agreement.
"PERSON" means an individual, corporation, limited liability
company, partnership, joint venture, association, trust,
unincorporated organization or other entity.
"PRE-OFFER PRICE" is defined in Section 8.2 of this Agreement.
"PROXY STATEMENT" is defined in Section 4.1(d) of this Agreement.
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"RETURNS" is defined in Section 4.1(l)(vi) of this Agreement.
"REVENUE CODE" is defined in Section 4.1(k)(iii) of this
Agreement.
"RIGHTS" is defined in the Recitals Section of this Agreement.
"RIGHTS ARRANGEMENT" is defined in Section 4.1(o) of this
Agreement.
"SCHEDULE 14D-9" is defined in Section 1.1(e) of this Agreement.
"SEC" is defined in Section 1.1(e) of this Agreement.
"SEC DOCUMENTS" is defined in Section 4.1(e) of this Agreement.
"SECURITIES ACT" is defined in Section 4.1(e) of this Agreement.
"SHARE" is defined in Recital A of this Agreement.
"SHAREHOLDER TENDER AND VOTING AGREEMENT" means that Shareholder
Tender and Voting Agreement dated of even date herewith by and
between ASG Sub and certain Viasoft shareholders.
"SHAREHOLDERS MEETING" is defined in Section 6.1(a) of this
Agreement.
"SHORT-FORM MERGER" is defined in Section 2.8 of this Agreement.
"SUBSIDIARY" of any person means another person, an amount of the
voting securities, other voting ownership or voting partnership
interests of which is sufficient to elect at least a majority of
its Board of Directors or other governing body (or, if there are
no such voting interests, 50% or more of the equity interests of
which) is owned directly or indirectly by such first person.
"SUPERIOR PROPOSAL" is defined in Section 6.1(c) of this
Agreement.
"SURVIVING CORPORATION" is defined in Recital D of this Agreement.
"TAKEOVER PROPOSAL" is defined in Section 5.2 of this Agreement.
"TAX" OR "TAXES" is defined in Section 4.1(l)(vi) of this
Agreement.
"THIRD PARTY INTELLECTUAL PROPERTY RIGHTS" is defined in Section
4.1(h)(ii) of this Agreement.
"VIASOFT" is defined in the introductory paragraph of this
Agreement.
"VIASOFT TAX AFFILIATE" is defined in Section 4.1(k)(iii) of this
Agreement.
"VIASOFT BALANCE SHEET" is defined in Section 4.1(l)(i) of this
Agreement.
"VIASOFT CASH" means as of any date the total amount of cash, cash
equivalents and marketable securities and investments of Viasoft
and its Subsidiaries.
"VIASOFT COMMON STOCK" is defined in Recital A of this Agreement.
"VIASOFT CONTRIBUTION AMOUNT" is the amount of cash required by
Viasoft to accept and pay for a number of Shares equal to the
Viasoft Share Number in accordance with the Viasoft Offer.
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"VIASOFT DISCLOSURE LETTER" is defined in Section 4.1 of this
Agreement.
"VIASOFT EMPLOYEE PLANS" is defined in Section 4.1(k)(v) of this
Agreement.
"VIASOFT OPTION PLANS" is defined in Section 4.1(c) of this
Agreement.
"VIASOFT PREFERRED STOCK" is defined in Section 4.1(c) of this
Agreement.
"VIASOFT RIGHTS PLAN" is defined in Section 4.1(o) of the Viasoft
Disclosure Letter.
"VIASOFT SHARE NUMBER" is defined in Section 1.1 (b) of this
Agreement.
"VIASOFT SHAREHOLDER APPROVAL" is defined in Section 4.1(d) of
this Agreement.
"VIASOFT SCHEDULE TO" is defined in Section 1.1(e) of this
Agreement.
"WARN ACT" is defined in Section 4.1(u) of this Agreement.
9.4 INTERPRETATION. When a reference is made in this Agreement to an
Article, Section, Annex, Exhibit or Schedule, such reference is to an Article or
a Section of, or an Annex, Exhibit or Schedule to, this Agreement unless
otherwise indicated. The headings contained in this Agreement are for reference
purposes only and will not affect in any way the meaning or interpretation of
this Agreement. Whenever the words "include", "includes" or "including" are used
in this Agreement, they will 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 Agreement will refer to this Agreement as a whole and
not to any particular provision of this Agreement. When used in this Agreement
with respect to Viasoft, Xxxxx Systems or ASG Sub, the word "knowledge" and
words of similar import mean the actual knowledge of those officers, directors
and other executive personnel of such corporation with specific responsibility
for the matter as to which such knowledge is expressed. All terms defined in
this Agreement will have the defined meanings when used in any certificate or
other document made or delivered pursuant hereto unless otherwise defined
therein. The definitions contained in this Agreement 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 are
also to its permitted successors and assigns. References to a law or statute in
this Agreement include all amendments and modifications to such law or statute,
and all rules and regulations promulgated thereunder. References to Viasoft in
this Agreement refer also to Viasoft's Subsidiaries unless the context would
clearly indicate otherwise.
9.5 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, all of which will be considered one and the same agreement and
will become effective when one or more counterparts have been signed by each of
the parties and delivered to the other parties.
9.6 ENTIRE AGREEMENT; NO THIRD-PARTY BENEFICIARIES. This Agreement,
the exhibits and schedules hereto, the Viasoft Disclosure Letter, the
Shareholder Tender and Voting Agreement, and the Confidentiality Agreement
constitute the entire agreement, and supersede all prior agreements and
understandings, both written and oral, among the parties with respect to the
subject matter of this Agreement and, other than Sections 6.6 and 6.10, are not
intended to confer upon any person other than the parties any rights or remedies
hereunder.
9.7 GOVERNING LAW. This Agreement will be governed by, and construed
in accordance with, the laws of Delaware, regardless of the laws that might
otherwise govern under applicable principles of conflict of laws thereof.
9.8 ASSIGNMENT. Neither this Agreement nor any of the rights,
interests or obligations under this Agreement will be assigned, in whole or in
part, by operation of law or otherwise by any of the parties without the prior
written consent of the other parties, except that ASG Sub may assign, in its
sole discretion, any of or all of its rights, interests and obligations under
this Agreement to Xxxxx Systems or to
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47
any direct or indirect wholly owned Subsidiary of Xxxxx Systems, but no such
assignment will relieve ASG Sub and Xxxxx Systems of any of its obligations
under this Agreement. This Agreement will be binding upon, inure to the benefit
of, and be enforceable by, the parties and their respective successors and
assigns.
9.9 ENFORCEMENT. The parties agree that irreparable damage would occur
in the event that any of the provisions of this Agreement were not performed in
accordance with their specific terms or were otherwise breached. It is
accordingly agreed that the parties will 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 any court of the United States
located in the State of Florida, the State of Delaware or the State Arizona or
in Florida, Delaware or Arizona state court, this being in addition to any other
remedy to which they are entitled at law or in equity. In addition, each of the
parties hereto (a) consents to submit itself to the personal jurisdiction and
venue of any federal court located in the State of Florida, the State of
Delaware or the State of Arizona or any Florida, Delaware or Arizona state court
in the event any dispute arises out of this Agreement or any of the transactions
contemplated by this Agreement, (b) agrees that it will not attempt to deny or
defeat such personal jurisdiction or choice of venue by motion or other request
for leave from any such court and (c) agrees that it will not bring any action
relating to this Agreement any of the transactions contemplated by this
Agreement in any court other than a federal or state court sitting in the State
of Florida, in the State of Delaware, or in the State of Arizona.
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48
IN WITNESS WHEREOF, Xxxxx Systems, ASG Sub and Viasoft have caused this
Agreement to be signed by their respective officers thereunto duly authorized,
all as of the date first written above.
XXXXX SYSTEMS GROUP, INC. VIASOFT, INC.
/s/ XXXXXX X. XXXXX /s/ XXXXXX X. XXXXXXXX
--------------------- --------------------------------
By: By:
------------------ -----------------------------
Name: Xxxxxx X. Xxxxx Name: Xxxxxx X. Xxxxxxxx
---------------- ---------------------------
Title: CEO Title: Chairman, CEO & President
--------------- --------------------------
ASG SUB, INC.
/s/ XXXXXX X. XXXXX
---------------------
By:
------------------
Name: Xxxxxx X. Xxxxx
----------------
Title: President
---------------
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ANNEX 1
TO AGREEMENT AND PLAN OF MERGER
CONDITIONS TO THE XXXXX SYSTEMS OFFER
Notwithstanding any other term of the Xxxxx Systems Offer or the Agreement, ASG
Sub will not be required to accept for payment or, subject to any applicable
rules and regulations of the SEC, including Rule 14e-l(c) under the Exchange Act
(relating to ASG Sub's obligation to pay for or return tendered Shares of
Viasoft Common Stock after the termination or withdrawal of the Xxxxx Systems
Offer), pay for any Shares of Viasoft Common Stock not theretofore accepted for
payment or paid for, and may terminate or amend the Xxxxx Systems Offer, IF
(a) there shall not have been validly tendered (and not withdrawn) prior to
12:00 midnight on the Expiration Date that number of Shares of Viasoft
Common Stock which, when added to the Shares then beneficially owned by
Xxxxx Systems and its Subsidiaries and Affiliates (including ASG Sub),
would represent 51% or more of the fully-diluted shares of Viasoft Common
Stock outstanding (assuming the exercise of all options and warrants and
the conversion or exchange of all securities convertible or exchangeable
into shares of Viasoft Common Stock) at the close of business on the
business day immediately preceding the day on which the Offer will expire
or terminate (the "Minimum Tender Condition"); or
(b) any consents of, filings with or expirations of waiting periods imposed by,
any Governmental Entity applicable to the purchase of shares of Viasoft
Common Stock pursuant to the Offer under the HSR Act, and any of the
foregoing under Non-US Competition Laws which if not obtained would have a
material adverse effect on (i) Xxxxx Systems', ASG Sub's or Viasoft's
ability to consummate the Offer, or (ii) the operation or scope of the
business of the Surviving Corporation, shall not have been obtained, filed,
expired or been terminated; or
(c) at any time after the date of the Agreement and before the acceptance of
such Shares of Viasoft Common Stock for payment or the payment therefor
(whether or not any shares have heretofore been accepted for payment or
paid pursuant to the Xxxxx Systems Offer), any of the following conditions
exists and is continuing:
(i) there will be pending or overtly threatened any suit,
action or proceeding brought by or on behalf of any
Governmental Entity (or the staff of the Federal Trade
Commission or the staff of the Antitrust Division of the
Department of Justice will have recommended the
commencement of such), or any suit, action or proceeding
(other than Excluded Litigation) brought by or on behalf of
any shareholder of Viasoft or any other person or party
(but only if such suit, action or proceeding is deemed by
Xxxxx Systems to have a reasonable likelihood of success)
directly or indirectly (A) challenging the acquisition by
ASG Sub of any shares of Viasoft Common Stock pursuant to
the Offer, seeking to restrain or prohibit the making or
consummation of the Offer or the Merger or the performance
of any of the other transactions contemplated by the
Agreement, or alleging that any such acquisition or other
transaction relates to, involves or constitutes a breach of
fiduciary duty by Viasoft's directors or a violation of
federal securities law or applicable corporate law, (B)
seeking to prohibit or limit the ownership or operation by
Viasoft, Xxxxx Systems or any of their respective
Subsidiaries of a material portion of the business or
assets of Viasoft and its Subsidiaries, taken as a whole,
or Xxxxx Systems
50
and its Subsidiaries, taken as a whole, or to compel
Viasoft or Xxxxx Systems to dispose of or hold separate any
material portion of the business or assets of Viasoft and
its Subsidiaries, taken as a whole, or Xxxxx Systems and
its Subsidiaries, taken as a whole, as a result of the
Offer or any of the other transactions contemplated by the
Agreement, (C) seeking to impose material limitations on
the ability of Xxxxx Systems and its Subsidiaries to
acquire or hold, or exercise full rights of ownership of,
any shares of Viasoft Common Stock accepted for payment
pursuant to the Xxxxx Systems Offer including without
limitation the right to vote Viasoft Common Stock accepted
for payment by ASG Sub on all matters properly presented to
the shareholders of Viasoft, (D) seeking to prohibit Xxxxx
Systems and its Subsidiaries from effectively managing or
controlling in any material respect the business or
operations of Viasoft and its Subsidiaries taken as a
whole, or (E) seeking to impose a material condition to the
Offer, the Merger or the Agreement which would be adverse
to Xxxxx Systems;
(ii) there will be any statute, rule, regulation, judgment,
order or injunction enacted, entered, enforced, promulgated
or deemed applicable to the Offer or the Merger, or any
other action will be taken by any Governmental Entity or
court, other than the application to the Offer or the
Merger of applicable waiting periods under the HSR Act,
that is reasonably likely to result, in any of the
consequences referred to in clauses (A) through (E) of
paragraph (c)(i) above;
(iii) there will have occurred any Material Adverse Change in
Viasoft and its Subsidiaries taken as a whole or any event
that is reasonably likely to result in a Material Adverse
Effect on Viasoft and its Subsidiaries taken as a whole;
provided that no change or event shall excuse Xxxxx Systems
or ASG Sub from their respective obligations to consummate
the Xxxxx Systems Offer unless, as a result of such change
or event, (A) the Viasoft Cash shall be less than
$83,000,000, or (B) the Claims Reserve shall be greater
than $5,000,000;
(iv) (A) Viasoft's Board of Directors or any committee thereof
will have failed to recommend the Offer, the Merger, the
Agreement, or Viasoft Shareholder Approval, including any
failure to include such recommendation in the Schedule
14D-9 or the Proxy Statement, or will have so resolved; (B)
Viasoft's Board of Directors or any committee thereof will
have withdrawn or modified (including by amendment of the
Schedule 14D-9 or Proxy Statement) in a manner adverse to
Xxxxx Systems its approval or recommendation of the Offer,
the Merger, the Agreement, or Viasoft Shareholder Approval,
will have approved or recommended any Takeover Proposal
(including a superior proposal),or will have resolved to do
any of the foregoing; (C) Viasoft will have entered into
any letter of intent or similar document, agreement or
2
51
commitment with respect to any Takeover Proposal (including
a superior proposal) or Viasoft's Board of Directors or any
committee thereof will have resolved to do so; (D)
Viasoft's Board of Directors or any committee thereof upon
a request to reaffirm Viasoft's approval or recommendation
of the Offer, the Merger or the Agreement, will have failed
to do so within two business days after such request is
made or will have so resolved; or (E) a tender or exchange
offer relating to securities of Viasoft will have been
commenced by a person unaffiliated with Xxxxx Systems or
ASG Sub, and Viasoft will not have sent to its security
holders pursuant to Rule 14e-2 promulgated under the
Exchange Act, within 10 business days after such tender or
exchange offer is first published sent or given, a
statement disclosing that Viasoft recommends rejection of
such tender or exchange offer;
(v) any of the representations and warranties of Viasoft set
forth in the Agreement will have failed to be true and
correct in any material respect as of the date of the
Agreement or will have ceased to be true and correct in any
material respect at any time thereafter; provided that if
any such failure is curable by Viasoft through the exercise
of its reasonable efforts, then Xxxxx Systems and ASG Sub
may not terminate the Offer under this subsection (b)(v)
(and will extend the Offer, if requested to do in writing
by Viasoft) until ten business days after written notice
thereof has been given to Viasoft by Xxxxx Systems and ASG
Sub and unless at such time the matter has not been cured;
and further provided, that the failure of any such
representations or warranties of Viasoft to be true and
correct as of the date of the Agreement or at any time
thereafter shall not excuse Xxxxx Systems or ASG Sub from
their respective obligations to consummate the Xxxxx
Systems Offer unless, as a result of such failure, (i) the
Viasoft Cash shall be less than $83,000,000, or (ii) the
Claims Reserve shall be greater than $5,000,000;
(vi) Viasoft will have breached or failed to perform in any
material respect any obligation or to comply in any
material respect with any agreement or covenant of Viasoft
to be performed or complied with by it; provided that if
any such breach or failure (other than a breach of Sections
5.2 or 6.1 or any other breach that has caused irreparable
harm) is curable by Viasoft through the exercise of its
reasonable efforts, then Xxxxx Systems and ASG Sub may not
terminate the Offer under this subsection (b)(vi) (and will
extend the Offer, if requested to do so in writing by
Viasoft) until ten business days after written notice
thereof has been given to Viasoft by Xxxxx Systems and ASG
Sub and unless at such time the matter has not been cured;
and further provided that the failure by Viasoft to perform
any covenant set forth in Section 5.1 of the Agreement
shall not excuse Xxxxx Systems or ASG Sub from their
respective obligations to consummate the Xxxxx Systems
Offer unless, as a result of such failure, (A) the Viasoft
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52
Cash shall be less than $83,000,000, or (B) the Claims
Reserve shall be greater than $5,000,000;
(vii) the Agreement will have been terminated in accordance with
its terms;
(viii) there will have occurred (A) any general suspension of
trading in, or limitation on prices for, securities on the
Nasdaq National Market, (B) the declaration of a banking
moratorium or any suspension of payments in respect of
banks in the United States (whether or not mandatory), (C)
the commencement of a war, armed hostilities or other
international or national calamity directly or indirectly
involving the United States and having a Material Adverse
Effect on Viasoft or materially adversely affecting (or
materially delaying) the consummation of the Offer, (D) any
limitation or proposed limitation (whether or not
mandatory) by any U.S. governmental authority or agency, or
any other event, that materially adversely affects
generally the extension of credit by banks or other
financial institutions, or (E) in the case of any of the
situations described in clauses (A) through (D) inclusive
existing at the date of commencement of the Xxxxx Systems
Offer, a material escalation or worsening thereof;
(ix) any person (which includes a "person" as such term is
defined in Section 13(d)(3) of the Exchange Act) other than
Xxxxx Systems and any of its Subsidiaries and Affiliates
(including ASG Sub), or any group of which any of them is a
member, will have entered into a definitive agreement or an
agreement in principle with Viasoft with respect to a
tender offer or exchange offer for any shares of Viasoft
Common Stock or merger, consolidation or other business
combination with or involving Viasoft or any of its
Subsidiaries;
(x) any bankruptcy proceedings will have been instituted with
respect to Viasoft and not dismissed; or
(xi) any third party consents, the failure of which to obtain
would have a Material Adverse Effect on Viasoft, will not
have been obtained; provided, that the failure to obtain
any such consent shall not excuse Xxxxx Systems or ASG Sub
from their respective obligations to consummate the Xxxxx
Systems Offer, unless as a result of such failure (A) the
Viasoft Cash shall be less than $83,000,000, or (B) the
Claims Reserve shall be greater than $5,000,000;
(d) the Viasoft Offer shall fail to be consummated in accordance with the
Agreement at the same time as the Xxxxx Systems Offer, provided that such
failure is not the result of any breach of any of the representations,
warranties or covenants of Xxxxx Systems or ASG Sub under the Merger
Agreement; or
(e) on the Expiration Date, the Viasoft Cash shall be less than $83,000,000;
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53
which, in the reasonable judgment of Xxxxx Systems, in any such case, and
regardless of the circumstances giving rise to any such condition (other
than any action or inaction by Xxxxx Systems or ASG Sub which constitutes a
breach of the Agreement), makes it inadvisable to proceed with the Xxxxx
Systems Offer or with such acceptance for payment or payment for Shares.
The foregoing conditions are for the sole benefit of Xxxxx Systems, ASG Sub
and their respective Affiliates and may be asserted by Xxxxx Systems or ASG
Sub regardless of the circumstances giving rise to such condition (other
than any action or inaction by Xxxxx Systems or ASG Sub which constitutes a
breach of the Agreement) or may be waived by Xxxxx Systems or ASG Sub in
whole or in part at any time and from time to time in their sole discretion
(except for the Minimum Tender Condition). The failure by Xxxxx Systems or
ASG Sub at any time to exercise any of the foregoing rights will not be
deemed a waiver of any such right, the waiver of any such right with respect
to particular facts and circumstances will not be deemed a waiver with
respect to any other facts and circumstances and each such right will be
deemed an ongoing right that may be asserted at any time and from time to
time.
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54
ANNEX 2
TO AGREEMENT AND PLAN OF MERGER
CONDITIONS TO THE VIASOFT OFFER
Notwithstanding any other term of the Viasoft Offer or the Agreement, Viasoft
will not be required to accept for payment or, subject to any applicable rules
and regulations of the SEC, including Rule 14e-l(c) under the Exchange Act
(relating to Viasoft's obligation to pay for or return tendered Shares of
Viasoft Common Stock after the termination or withdrawal of the Viasoft Offer),
pay for any Shares of Viasoft Common Stock not theretofore accepted for payment
or paid for, and may terminate or amend the Viasoft Offer, IF
(a) the Minimum Tender Condition shall not have been satisfied at 12:00
midnight on the Expiration Date; or
(b) any consents of, filings with or expirations of waiting periods imposed by,
any Governmental Entity applicable to the purchase of shares of Viasoft
Common Stock pursuant to the Offer under the HSR Act, and any of the
foregoing under Non-US Competition Laws which if not obtained would have a
material adverse effect on (i) Xxxxx Systems', ASG Sub's or Viasoft's
ability to consummate the Offer, or (ii) the operation or scope of the
business of the Surviving Corporation, shall not have been obtained, filed,
expired or been terminated; or
(c) at any time after the date of the Agreement and before the acceptance of
such Shares of Viasoft Common Stock for payment or the payment therefor
(whether or not any shares have heretofore been accepted for payment or
paid pursuant to the Viasoft Offer), any of the following conditions exists
and is continuing:
(i) there will be pending or overtly threatened any
suit, action or proceeding brought by or on behalf
of any Governmental Entity (or the staff of the
Federal Trade Commission or the staff of the
Antitrust Division of the Department of Justice will
have recommended the commencement of such), or any
suit, action or proceeding (other than Excluded
Litigation) brought by or on behalf of any
shareholder of Viasoft or any other person or party
(but only if such suit, action or proceeding is
deemed by Viasoft to have a reasonable likelihood of
success) directly or indirectly (A) challenging the
acquisition of any shares of Viasoft Common Stock
pursuant to the Offer, seeking to restrain or
prohibit the making or consummation of the Offer or
the Merger or the performance of any of the other
transactions contemplated by the Agreement, or
alleging that any such acquisition or other
transaction relates to, involves or constitutes a
breach of fiduciary duty by Viasoft's directors or a
violation of federal securities law or applicable
corporate law or (B) seeking to impose a material
condition to the Offer, Merger or Agreement which
would be adverse to Viasoft's shareholders;
(ii) there will be any statute, rule, regulation,
judgment, order or injunction enacted, entered,
enforced, promulgated or deemed applicable to the
Offer or the Merger, or any other action will be
taken by any Governmental Entity or court, other
than the application to the Offer or the Merger of
applicable waiting periods under the HSR Act, that
is reasonably likely to
55
result, in any of the consequences referred to in
clauses (A) and (B) of paragraph (c)(i) above;
(iii) (A) Viasoft's Board of Directors or any committee
thereof will have failed to recommend the Offer, the
Merger, the Agreement, or Viasoft Shareholder
Approval, including any failure to include such
recommendation in the Schedule 14D-9 or the Proxy
Statement, or will have so resolved; (B) Viasoft's
Board of Directors or any committee thereof will
have withdrawn or modified (including by amendment
of the Schedule 14D-9 or Proxy Statement) in a
manner adverse to Xxxxx Systems its approval or
recommendation of the Offer, the Merger, the
Agreement, or Viasoft Shareholder Approval, will
have approved or recommended any Takeover Proposal
(including a superior proposal),or will have
resolved to do any of the foregoing; (C) Viasoft
will have entered into any letter of intent or
similar document, agreement or commitment with
respect to any Takeover Proposal (including a
superior proposal) or Viasoft's Board of Directors
or any committee thereof will have resolved to do
so; (D) Viasoft's Board of Directors or any
committee thereof upon a request to reaffirm
Viasoft's approval or recommendation of the Offer,
the Merger or the Agreement, will have failed to do
so within two business days after such request is
made or will have so resolved; or (E) a tender or
exchange offer relating to securities of Viasoft
will have been commenced by a person unaffiliated
with Xxxxx Systems or ASG Sub, and Viasoft will not
have sent to its security holders pursuant to Rule
14e-2 promulgated under the Exchange Act, within 10
business days after such tender or exchange offer is
first published sent or given, a statement
disclosing that Viasoft recommends rejection of such
tender or exchange offer; but only if, in the case
of clauses (A) through (E) above, any such action or
non-action would not constitute a breach of
Viasoft's obligations under the Agreement;
(iv) any of the representations and warranties of Xxxxx
Systems or ASG Sub set forth in the Agreement will
have failed to be true and correct in any material
respect as of the date of the Agreement or will have
ceased to be true and correct in any material
respect at any time thereafter; provided that if any
such failure is curable by Xxxxx Systems or ASG Sub
through the exercise of their reasonable efforts,
then Viasoft may not terminate the Offer under this
subsection (b)(v) until ten business days after
written notice thereof has been given to Xxxxx
Systems and ASG Sub by Viasoft and unless at such
time the matter has not been cured;
(v) Xxxxx Systems or ASG Sub will have breached or
failed to perform in any material respect any
obligation or to comply in any material respect with
any agreement or covenant of Xxxxx Systems or ASG
Sub to be performed or complied with by either of
them; provided that if any such breach or failure is
curable by Xxxxx Systems or ASG Sub through the
exercise of
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56
their reasonable efforts, then Viasoft may not
terminate the Offer under this subsection (b)(vi)
until ten business days after written notice thereof
has been given to Xxxxx Systems and ASG Sub by
Viasoft and unless at such time the matter has not
been cured;
(vi) the Agreement will have been terminated in
accordance with its terms;
(vii) there will have occurred (A) any general suspension
of trading in, or limitation on prices for,
securities on the Nasdaq National Market, (B) the
declaration of a banking moratorium or any
suspension of payments in respect of banks in the
United States (whether or not mandatory), (C) the
commencement of a war, armed hostilities or other
international or national calamity directly or
indirectly involving the United States and having a
Material Adverse Effect on Viasoft or materially
adversely affecting (or materially delaying) the
consummation of the Offer, (D) any limitation or
proposed limitation (whether or not mandatory) by
any U.S. governmental authority or agency, or any
other event, that materially adversely affects
generally the extension of credit by banks or other
financial institutions, or (E) in the case of any of
the situations described in clauses (A) through (D)
inclusive existing at the date of commencement of
the Viasoft Offer, a material escalation or
worsening thereof; or
(d) the Xxxxx Systems Offer shall fail to be consummated in accordance with
the Agreement at the same time as the Viasoft Offer; provided that such
failure is not the result of any breach of any of the representations,
warranties or covenants of Viasoft under the Merger Agreement;
which, in the reasonable judgment of Viasoft, in any such case, and regardless
of the circumstances giving rise to any such condition (other than any action or
inaction by Viasoft which constitutes a breach of the Agreement), makes it
inadvisable to proceed with the Viasoft Offer or with such acceptance for
payment or payment for Shares.
The foregoing conditions are for the sole benefit of Viasoft and its Affiliates
and may be asserted by Viasoft regardless of the circumstances giving rise to
such condition (other than any action or inaction by Viasoft which constitutes a
breach of the Agreement) or may be waived by Viasoft in whole or in part at any
time and from time to time in its sole discretion (except for the Minimum Tender
Condition). The failure by Viasoft or any Affiliate of Viasoft at any time to
exercise any of the foregoing rights will not be deemed a waiver of any such
right, the waiver of any such right with respect to particular facts and
circumstances will not be deemed a waiver with respect to any other facts and
circumstances and each such right will be deemed an ongoing right that may be
asserted at any time and from time to time.
3
