Agreement and Plan of Merger among Conexant Systems, Inc., Gold Holdings, Inc. and Gold Acquisition Corp. Dated as of February 20, 2011
Exhibit 2.1
Agreement and Plan of Merger
among
Conexant Systems, Inc.,
Gold Holdings, Inc.
and
Gold Acquisition Corp.
Dated as of February 20, 2011
RECITALS |
1 | |||
ARTICLE I DEFINITIONS |
3 | |||
Section 1.1. Usage |
3 | |||
Section 1.2. Certain Definitions |
3 | |||
Section 1.3. Additional Definitions |
9 | |||
ARTICLE II THE MERGER |
11 | |||
Section 2.1. The Merger |
11 | |||
Section 2.2. Effective Time |
11 | |||
Section 2.3. Closing of the Merger |
11 | |||
Section 2.4. Effects of the Merger |
11 | |||
Section 2.5. Certificate of Incorporation and Bylaws |
11 | |||
Section 2.6. Board of Directors of the Surviving Corporation |
12 | |||
Section 2.7. Officers of the Surviving Corporation |
12 | |||
Section 2.8. Subsequent Actions |
12 | |||
Section 2.9. Conversion of Capital Stock |
12 | |||
Section 2.10. Surrender of Certificates and Book-Entry Shares |
13 | |||
Section 2.11. Equity Awards |
15 | |||
Section 2.12. Appraisal Rights |
17 | |||
Section 2.13. Adjustments |
17 | |||
Section 2.14. Withholding Taxes |
17 | |||
ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE COMPANY |
17 | |||
Section 3.1. Organization and Standing |
18 | |||
Section 3.2. Subsidiaries |
18 | |||
Section 3.3. Authorization |
19 | |||
Section 3.4. Capitalization |
19 | |||
Section 3.5. Non-contravention; Required Consents |
20 | |||
Section 3.6. Company SEC Reports |
21 | |||
Section 3.7. Financial Statements |
22 | |||
Section 3.8. No Undisclosed Liabilities |
23 | |||
Section 3.9. Absence of Certain Changes |
23 | |||
Section 3.10. Material Contracts |
23 | |||
Section 3.11. Compliance with Laws |
26 |
TABLE OF CONTENTS
(continued)
(continued)
Page | ||||
Section 3.12. Litigation |
27 | |||
Section 3.13. Taxes |
27 | |||
Section 3.14. Environmental Matters |
29 | |||
Section 3.15. Employee Benefit Plans |
30 | |||
Section 3.16. Labor Matters |
32 | |||
Section 3.17. Real Property |
33 | |||
Section 3.18. Assets; Personal Property |
34 | |||
Section 3.19. Intellectual Property |
34 | |||
Section 3.20. Insurance |
38 | |||
Section 3.21. Related Party Transactions |
38 | |||
Section 3.22. Vote Required |
38 | |||
Section 3.23. Brokers |
38 | |||
Section 3.24. Opinion of Financial Advisors |
38 | |||
Section 3.25. No Other Parent Representations and Warranties |
39 | |||
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB |
39 | |||
Section 4.1. Organization and Standing |
39 | |||
Section 4.2. Authorization |
39 | |||
Section 4.3. Non-contravention; Required Consents |
40 | |||
Section 4.4. Litigation |
40 | |||
Section 4.5. Brokers |
40 | |||
Section 4.6. Availability of Funds; Financing |
41 | |||
Section 4.7. No Prior Activities |
41 | |||
Section 4.8. Capitalization of Merger Sub |
41 | |||
Section 4.9. Stock Ownership |
42 | |||
Section 4.10. No Other Company Representations and Warranties |
42 | |||
ARTICLE V COVENANTS |
42 | |||
Section 5.1. Conduct of Business by the Company |
42 | |||
Section 5.2. Proxy Statement; Company Stockholders Meeting |
45 | |||
Section 5.3. No Solicitation |
47 | |||
Section 5.4. Access to Information |
50 |
-ii-
TABLE OF CONTENTS
(continued)
(continued)
Page | ||||
Section 5.5. Governmental Filings |
51 | |||
Section 5.6. Approvals and Consents |
52 | |||
Section 5.7. Employee Benefits |
52 | |||
Section 5.8. Public Announcements |
54 | |||
Section 5.9. Indemnification; Advancement; Insurance |
54 | |||
Section 5.10. Commercially Reasonable Efforts |
56 | |||
Section 5.11. Section 16 Matters |
56 | |||
Section 5.12. Takeover Laws |
56 | |||
Section 5.13. Stockholder Litigation |
56 | |||
Section 5.14. Equity Funding |
57 | |||
Section 5.15. SMSC Fee |
57 | |||
ARTICLE VI CONDITIONS TO THE MERGER |
57 | |||
Section 6.1. Conditions to Each Party’s Obligation to Effect the Merger
|
58 | |||
Section 6.2. Conditions to Obligations of Parent and Merger Sub |
58 | |||
Section 6.3. Conditions to Obligations of the Company |
59 | |||
ARTICLE VII TERMINATION |
60 | |||
Section 7.1. Termination |
60 | |||
Section 7.2. Effect of Termination |
61 | |||
Section 7.3. Termination Fees |
64 | |||
Section 7.4. Termination due to Non-Acceptance |
65 | |||
ARTICLE VIII MISCELLANEOUS |
65 | |||
Section 8.1. Representations and Warranties |
65 | |||
Section 8.2. Notices |
65 | |||
Section 8.3. Expenses |
66 | |||
Section 8.4. Disclosure Generally |
67 | |||
Section 8.5. Amendment |
67 | |||
Section 8.6. Extension; Waiver |
67 | |||
Section 8.7. Binding Effect; Assignment |
67 | |||
Section 8.8. Governing Law |
67 | |||
Section 8.9. Jurisdiction |
68 |
-iii-
TABLE OF CONTENTS
(continued)
(continued)
Page | ||||
Section 8.10. Severability |
68 | |||
Section 8.11. Descriptive Headings |
68 | |||
Section 8.12. Counterparts |
68 | |||
Section 8.13. Entire Agreement |
69 | |||
Section 8.14. Enforcement |
69 | |||
Exhibit A Certificate of Incorporation |
-iv-
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (this “Agreement”), dated as of February 20, 2011, is by and
among CONEXANT SYSTEMS, INC., a Delaware corporation (the “Company”), Gold Holdings, Inc.
(“Parent”), and Gold Acquisition Corp., a Delaware corporation and a wholly-owned subsidiary of
Parent (“Merger Sub”).
1
ARTICLE I
Section 1.1. Usage. Unless the context of this Agreement otherwise requires, (a)
words of any gender are deemed to include each other gender; (b) words using the singular or plural
number also include the plural or singular number, respectively; (c) the terms “hereof,” “herein,”
“hereby,” “hereto,” and derivative or similar words refer to this entire Agreement; (d) the terms
“Article” or “Section” refer to the specified Article or Section of this Agreement; (e) all
references to “dollars” or “$” refer to currency of the United States of America; (f) the term “or”
is not exclusive and (g) “include,” “including” and their derivatives mean “including without
limitation.”
Section 1.2. Certain Definitions. For purposes of this Agreement, the following
terms shall have the meanings specified in this Section 1.2:
“11.25% Notes” means the Company’s outstanding 11.25% Senior Secured Notes due 2015.
“401(k) Settlement Agreement” means the Stipulation of Settlement between Xxxxxx Xxxxxx, as
lead plaintiff, and the Company and certain of its officers and directors dated May 15, 2009 and
filed in the United States District Court for the District of New Jersey.
“Acquisition Proposal” means any inquiry, proposal or offer from any Third Party relating to
any acquisition, merger, consolidation, reorganization, share exchange, recapitalization,
liquidation, dissolution, direct or indirect business combination, asset acquisition, exclusive
license, tender or exchange offer or other similar transaction involving the Company or any of its
Subsidiaries (a) of the assets or businesses that constitute or represent 20% or more of the net
revenue or assets (measured by the fair market value thereof) of the Company and its Subsidiaries,
taken as a whole, (b) of 20% or more of the outstanding shares of Company Common Stock or any other
Company capital stock or 50% or more of capital stock of, or other equity or voting interests in,
any Subsidiary of the Company directly or indirectly holding, individually or taken together, the
assets or business referred to in clause (a) above, (c) pursuant to which the holders of the
Company Common Stock immediately preceding such transaction would hold less than 80% of the voting
equity interest in the surviving or resulting entity of such transaction or (d) of any combination
of the foregoing.
“Affiliate” means, with respect to any Person, any other Person which directly or indirectly
controls, is controlled by or is under common control with such Person. For purposes of the
immediately preceding sentence, the term “control” (including, with correlative meanings, the terms
“controlling,” “controlled by” and “under common control with”), as used with respect to any
Person, means the possession, directly or indirectly, of the power to direct or cause the direction
of the management and policies of such Person, whether through ownership of voting securities, by
contract or otherwise.
“Associate” has the meaning ascribed to such term in Rule 12b-2 under the Exchange Act.
2
“Business Day” means a day, other than Saturday, Sunday or other day on which commercial banks
in the States of California or New York are authorized or required by Law to close.
“Code” means the Internal Revenue Code of 1986, as amended.
“Collective Bargaining Agreement” means any agreement or arrangement between or applying to,
one or more employees and a trade union, works council, group of employees or any other employee
representative body, for collective bargaining or other negotiating or consultation purposes.
“Company Common Stock” means the common stock, par value $0.01 per share, of the Company.
“Company Employees” means the employees of the Company and its Subsidiaries as of the date
hereof.
“Company IP” means all Owned Company IP and Licensed Company IP.
“Company Material Adverse Effect” means any circumstance, development, event, condition,
effect or change that had or has a material adverse effect on (a) the ability of the Company to
timely consummate the transactions contemplated hereby or (b) the business, financial condition,
assets, liabilities or results of operations of the Company and its Subsidiaries, taken as a whole,
other than, in the case of clause (b), to the extent resulting from (i) the effects of changes,
after the date hereof, that are generally applicable to the industry in which the Company and its
Subsidiaries operate, (ii) the effects of changes, after the date hereof, in general economic or
market conditions in the United States or any other country or region in the world, or conditions
in the global economy generally, (iii) the effects of changes, after the date hereof, in applicable
Laws or accounting rules, (iv) the effects of acts of war or terrorism (in the case of each of
clauses (i), (ii), (iii) and (iv), other than to the extent any change had or has or, with the
passage of time, would be reasonably likely to have a disproportionate effect on the Company and
its Subsidiaries, taken as a whole, relative to other industry participants), (v) any failure by
the Company to meet internal or analysts’ estimates, projections or forecasts of revenues, earnings
or other financial or business metrics, in and of itself (it being understood that the underlying
cause(s) of any such failure may be taken into consideration), (vi) any decline in the market price
or change in the trading volume of the Company Common Stock, in and of itself (it being understood
that the underlying cause(s) of any such decline or change may be taken into consideration), (vii)
the termination of the Prior Agreement and the payment by the Company of the Termination Fee (as
defined in the Prior Agreement) pursuant to the Prior Agreement, or (viii) the effect of the public
announcement or pendency of this Agreement or the transactions contemplated hereby (provided that
this clause (viii) shall be disregarded to the extent “Company Material Adverse Effect” modifies or
qualifies the Company’s representations or warranties contained in Section 3.5).
3
“Contract” means any written or oral agreement, contract, subcontract, settlement agreement,
lease, binding understanding, instrument, note, bond, mortgage, indenture, option, warranty,
instrument, purchase order, license, sublicense, insurance policy, benefit plan or legally binding
commitment or undertaking of any nature, as in effect as of the date hereof or as may hereinafter
be in effect.
“DGCL” means the General Corporation Law of the State of Delaware, as the same exists or may
hereafter be amended.
“Employee Plan” means each bonus, pension, profit sharing, deferred compensation, incentive
compensation, stock ownership, stock purchase, stock option, phantom stock or other equity-based,
retirement (including early retirement and supplemental retirement), severance or termination pay,
salary continuation, vacation, supplemental unemployment benefit, disability, death benefit,
hospitalization, medical, life or other insurance, or other employee benefit plan, program,
agreement, arrangement, fund or commitment (whether or not in writing or funded), including any
“employee benefit plan” as defined in Section 3(3) of ERISA, whether or not subject to ERISA, and
each employment, retention, consulting, change in control or termination plan, program, arrangement
or agreement entered into, maintained, sponsored or contributed to, or required to be entered into,
maintained sponsored, or contributed to, by the Company or any of its Subsidiaries for the benefit
of any current or former employee, consultant, independent contractor or director of the Company or
any of its Subsidiaries or to which the Company or any of its Subsidiaries has any obligation to
contribute or with respect to which the Company or any of its Subsidiaries has any Liability,
direct or indirect, contingent or otherwise (other than workers compensation, unemployment
compensation and other governmental programs) and including any Liability arising out of an
indemnification, guarantee, hold harmless or similar agreement with respect to such employees,
consultants, independent contractors and directors.
“Environmental Law” means any Laws relating to pollution, the protection of the environment
(including, without limitation, ambient or indoor air, surface water, groundwater, sediments, land,
or subsurface strata), human health as affected by the environment or Hazardous Substances, or
natural resources, or otherwise relating to the production, use, emission, handling, storage,
treatment, transportation, recycling, disposal, discharge, release or presence of, or exposure to,
any Hazardous Substances or the investigation, clean-up or other remediation or analysis thereof.
“Equity Compensation Plans” means the Company’s equity compensation plans as listed on Section
2.11(a) of the Company Disclosure Schedule, each individual agreement evidencing the grant of Stock
Options, Restricted Shares or Restricted Stock Units under any of such plans, and each individual
agreement providing for the grant, other than under any of such plans, of Stock Options, Restricted
Shares or Restricted Stock Units with respect to the Shares that is listed on the Company
Disclosure Schedule.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended.
4
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder.
“GAAP” means generally accepted accounting principles in the United States.
“Governmental Entity” means any government or governmental or regulatory body thereof, or
political subdivision thereof, whether federal, state, local or foreign, or any agency,
instrumentality or authority thereof, any self-regulatory organization or any court, tribunal or
arbitrator (public or private).
“Hazardous Substance” means any pollutant, contaminant, chemical, petroleum or any fraction
thereof, asbestos or asbestos-containing material, polychlorinated biphenyls, or toxic,
radioactive, infectious, disease-causing or hazardous substance, material, waste or agent,
including, without limitation, all substances, materials, wastes or agents which are identified,
regulated, the subject of liability or requirements for remediation under, or otherwise subject to,
any Environmental Law.
“HSR Act” means the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, and the
rules and regulations promulgated thereunder.
“Indenture” means the indenture, dated as of March 10, 2010, by and among the Company, the
subsidiary guarantors party thereto and The Bank of New York Mellon Trust Company, N.A., as Trustee
and Collateral Trustee, including the form of the Company’s 11.25% Notes attached as Exhibit A
thereto.
“Intellectual Property” means common law and statutory rights anywhere in the world associated
with (a) United States and foreign patents and applications therefor and all reissues, divisions,
renewals, extensions, provisionals, continuations and continuations-in-part thereof (“Patents”);
(b) trade secrets, confidential information or proprietary know how (“Trade Secrets”); (c) all
copyrights (including copyrights in Software), copyrights registrations and applications therefor,
and all other rights corresponding thereto throughout the world (“Copyrights”); (d) mask works,
mask work registrations and applications therefor, and any equivalent or similar rights in
semiconductor masks, layouts, architectures or topology (“Mask Works”); (e) Internet domain names
(“Domain Names”); (f) industrial designs and any registrations and applications therefor throughout
the world; (g) trade names, common law trademarks and service marks, trademark and service xxxx
registrations and applications therefor throughout the world (“Trademarks”); (h) databases and data
collections and all rights therein throughout the world; (i) moral and economic rights of authors
and inventors, however denominated, throughout the world; and (j) any similar or equivalent rights
to any of the foregoing or any other intellectual property rights anywhere in the world.
“knowledge”, or words or phrases of similar import or meaning as used in this Agreement, means
with respect to the Company, the actual knowledge of any of the persons listed on Section 1.2 of
the Company Disclosure Schedule.
“Laws” means any laws (including common law), statutes, ordinances, regulations, rules, Orders
and requirements of any Governmental Entity.
5
“Legal Proceeding” means any action, claim, suit, litigation, proceeding (public or private),
arbitration, criminal prosecution, audit or investigation by or before any Governmental Entity.
“Liabilities” means any liability, indebtedness, obligation or commitment of any kind (whether
accrued, absolute, contingent, matured, unmatured or otherwise and whether or not required to be
recorded or reflected on a balance sheet under GAAP).
“Licensed Company IP” means all Intellectual Property used or held for use in connection with
the business of the Company and its Subsidiaries under license with Third Party licensors.
“Lien” means any claim, lien, pledge, option, charge, security interest or encumbrance, and,
with respect to Owned Real Property or Leased Real Property, deed of trust, mortgage, easement,
restriction, imperfection of title or other adverse matters of record affecting title thereto.
“Nasdaq” means The Nasdaq Global Select Market.
“Non-Employee Director” means a member of the Company Board immediately prior to the Effective
Time who is not then employed by the Company.
“Order” means any judgment, decision, decree, injunction, ruling, writ, assessment or order of
any Governmental Entity that is binding on any Person or its property under applicable Law.
“Owned Company IP” means all Intellectual Property owned or purported to be owned by the
Company and its Subsidiaries.
“Parent Material Adverse Effect” means any circumstance, development, event, condition, effect
or change that had or has a material adverse effect on the ability of (a) Parent to timely
consummate the transactions contemplated hereby or (b) the Equity Investor to timely fulfill its
obligations under the Equity Commitment.
“Permitted Liens” means (a) statutory Liens for Taxes not yet due and payable or which are
being contested in good faith and for which adequate reserves have been established in accordance
with GAAP, (b) Liens imposed by law, such as landlords’, mechanics’, laborers’, carriers’,
materialmen’s, suppliers’ and vendors’ Liens, arising in the ordinary course of business for sums
not yet due and payable, or that are being contested in good faith by appropriate proceedings and
for which appropriate reserves have been established in accordance with GAAP, (c) Liens arising
under equipment leases entered into in the ordinary course of business consistent with past
practice, (d) exceptions and exclusions from coverage under any policies of title insurance issued
to the Company or any of its Subsidiaries and made available to Parent prior to the date of this
Agreement, and (e) such other Liens as do not materially detract from the value of or otherwise
materially interfere with the present use of any of the Company’s or its Subsidiaries’ properties
or otherwise materially impair the Company’s or its Subsidiaries’ business operations.
6
“Person” means any individual, corporation, partnership, limited liability company, trust,
unincorporated organization, association, firm, joint venture, joint-stock company, Governmental
Entity or other entity.
“Representative” means, with respect to any Person, such Person’s directors, officers,
employees, agents and representatives, including any investment banker, financial advisor,
attorney, accountant or other advisor, agent or controlled Affiliate.
“Restricted Shares” means all restricted Shares granted to any employee or director of the
Company or any of its Subsidiaries under any of the Equity Compensation Plans.
“Restricted Stock Units” means all restricted stock units in respect of the Shares granted to
any employee or director of the Company or any of its Subsidiaries under any of the Equity
Compensation Plans.
“SEC” means the Securities and Exchange Commission.
“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder.
“Shares” means shares of the Company Common Stock.
“Software” means computer software, including all source code, object code and firmware.
“Stock Options” means all options to purchase Shares granted to any employee or director of
the Company or any of its Subsidiaries under any of the Equity Compensation Plans.
“Specified Jurisdiction” means with respect to each of the Company and each of its
Subsidiaries, any federal, state, local or foreign tax jurisdiction specified for the Company or
such Subsidiary, as applicable, in Section 3.13(a) of the Company Disclosure Schedule.
“Subsidiary” means, with respect to any Person, any corporation or other legal entity of which
50% or more of the outstanding voting securities or other voting equity interests are owned,
directly or indirectly, by such Person at the time of such determination.
“Superior Proposal” means any unsolicited bona fide written offer in respect of an Acquisition
Proposal (provided, that for the purposes of this definition all references to 20% or 80%
in the definition of “Acquisition Proposal” shall be replaced by references to a “majority”)
received by the Company after the date hereof that is on terms that the Company Board in good faith
determines (after consultation with its financial advisor and outside legal counsel), taking into
account all factors that the Company Board determines in good faith to be relevant, including the
price, form of consideration, closing conditions and ability to finance the proposal, (a) would, if
consummated, result in a transaction that is more favorable from a financial point of view to the
holders of Company Common Stock than the transactions contemplated hereby (including the terms of
any proposal by Parent to modify the terms hereof) and (b) is reasonably likely to be completed on
the terms proposed.
7
“Tax Agreement” means a written agreement, one of the principal purposes of which is the
sharing or allocation of Taxes.
“Tax Returns” means all returns, declarations, reports, statements and other documents
required to be filed in respect of any Taxes.
“Taxes” means (a) all federal, state, local or foreign taxes, charges, fees, levies or other
assessments, including, without limitation, all net income, gross income, gross receipts, capital,
sales, use, ad valorem, transfer, franchise, profits, license, withholding, payroll, employment,
unemployment, disability, excise, severance, stamp, property, alternative or add-on minimum,
capital stock, estimated, registration, social security (or similar) and value added taxes,
customs, duties, fees, assessments and charges of any kind whatsoever and (b) all interest,
penalties, fines, additions to tax or additional amounts imposed on or with respect to any amount
described in clause (a).
“Third Party” means any Person or “group” (as defined under Section 13(d) of the Exchange Act)
other than Parent, Merger Sub and their Affiliates or Representatives, and including, for the
avoidance of doubt, SMSC.
“Treasury Shares” means the Shares held by the Company as treasury stock.
Section 1.3. Additional Definitions. For purposes of this Agreement, the
following terms shall have the meanings specified in the respective sections of this Agreement set
forth opposite each of the capitalized terms below:
Term | Section Reference | |
Adjournment Proposal
|
Section 5.2(e) | |
Advance
|
Section 5.15 | |
Agreement
|
Preamble | |
Antitrust Laws
|
Section 5.5(a) | |
Antitrust Matters
|
Section 5.5(b) | |
Assets
|
Section 3.18 | |
Book-Entry Shares
|
Section 2.9(d) | |
Cancelled RSU
|
Section 2.11(d) | |
Cancelled Stock Option
|
Section 2.11(b) | |
Certificate
|
Section 2.9(d) | |
Certificate of Merger
|
Section 2.2 | |
Closing
|
Section 2.3 | |
Closing Date
|
Section 2.3 | |
Company
|
Preamble | |
Company Board
|
Recitals | |
Company Board Recommendation
|
Recitals | |
Company Board Recommendation Change
|
Section 5.3(c) | |
Company Disclosure Schedule
|
Article III | |
Company Form 10-K
|
Article III | |
Company IP Agreements
|
Section 3.19(c) | |
Company Products
|
Section 3.19(a) |
8
Term | Section Reference | |
Company SEC Reports
|
Section 3.6 | |
Company Securities
|
Section 3.4(c) | |
Company Stockholders Meeting
|
Section 5.2(e) | |
Company Stockholder Meeting Proposals
|
Section 5.2(a) | |
Company Subsidiary Securities
|
Section 3.2(c) | |
Confidentiality Agreement
|
Section 5.4(d) | |
Consent
|
Section 3.5(b) | |
Consideration Fund
|
Section 2.10(a) | |
Current Option
|
Section 2.11(b) | |
Current Policy Coverage
|
Section 5.9(b) | |
Current Restricted Share
|
Section 2.11(c) | |
Dissenting Shares
|
Section 2.12 | |
Effective Time
|
Section 2.2 | |
Employee Plans
|
Section 3.15(a) | |
Equity Commitment
|
Section 4.6 | |
Equity Funding
|
Section 4.6 | |
Equity Investor
|
Recitals | |
ERISA Affiliate
|
Section 3.15(a) | |
ESPP
|
Section 3.4(c) | |
Expense Cap
|
Section 7.3(c) | |
Identified Company Representations
|
Section 6.2(a)(i) | |
Indemnified Persons
|
Section 5.9(a) | |
International Employee Plans
|
Section 3.15(a) | |
Intervening Event
|
Section 5.3(e) | |
Leased Real Property
|
Section 3.17(b) | |
Leases
|
Section 3.17(b) | |
Material Contract
|
Section 3.10(a) | |
Merger
|
Recitals | |
Merger Consideration
|
Section 2.9(a) | |
Merger Proposal
|
Section 5.2(e) | |
Merger-Related Proposals
|
Section 5.2(e) | |
Merger Sub
|
Preamble | |
Open source
|
Section 3.19(j) | |
Outside Date
|
Section 7.1(b)(i) | |
Owned Real Property
|
Section 3.17(a) | |
Parent
|
Preamble | |
Parent Disclosure Schedule
|
Article IV | |
Parent Plans
|
Section 5.7(b) | |
Permits
|
Section 3.11(a) | |
Paying Agent
|
Section 2.10(a) | |
Prior Agreement
|
Recitals | |
Proxy Statement
|
Section 5.2(a) | |
Qualifying Amendment
|
Section 5.2(c) | |
Regulation M-A Filing
|
Section 5.2(d) | |
Requisite Stockholder Approval
|
Section 3.22 |
9
Term | Section Reference | |
Xxxxxxxx-Xxxxx Act
|
Section 3.6 | |
Surviving Corporation
|
Recitals | |
Transferred Employees
|
Section 5.7(a) |
ARTICLE II
Section 2.1. The Merger. Upon the terms and subject to the conditions hereof, and
in accordance with the DGCL, the Merger shall be consummated as promptly as practicable following
the satisfaction or waiver, if permissible, of the conditions set forth in Article VI. At
the Effective Time and upon the terms and subject to the conditions of this Agreement and in
accordance with the DGCL, Merger Sub shall be merged with and into the Company, the separate
corporate existence of Merger Sub shall cease and the Company shall continue as the Surviving
Corporation.
Section 2.2. Effective Time. Subject to the terms and conditions set forth in
this Agreement, the parties hereto shall cause a Certificate of Merger (the “Certificate of
Merger”) with respect to the Merger to be filed with the Secretary of State of the State of
Delaware on the Closing Date in such form as is required by, and executed in accordance with, the
relevant provisions of the DGCL. The Merger shall be effective at such time as the Certificate of
Merger is duly filed with the Secretary of State of the State of Delaware in accordance with the
DGCL or at such later time as Parent and the Company may agree upon and set forth in the
Certificate of Merger (the “Effective Time”).
Section 2.3. Closing of the Merger. Unless this Agreement shall have been
terminated and the Merger shall have been abandoned pursuant to Section 7.1 (or Section
7.4), the closing of the Merger (the “Closing”) will take place at a time and on a date (the
“Closing Date”) to be specified by the parties, which shall be no later than the third Business Day
following the day on which the last of the conditions set forth in Article VI is satisfied
or waived (other than delivery of any items to be delivered at the Closing), at the offices of
Xxxxxxxx and Xxxxx LLP, 000 Xxxxxxxxxx Xxxxxx, Xxx Xxxxxxxxx, XX, unless another time, date or
place is agreed to in writing by the parties hereto.
Section 2.4. Effects of the Merger. The Merger shall have the effects set forth
in the DGCL. Without limiting the generality of the foregoing and subject thereto, at the
Effective Time, all the properties, rights, privileges, powers and franchises of the Company and
Merger Sub shall vest in the Surviving Corporation and all debts, liabilities, obligations and
duties of the Company and Merger Sub shall become the debts, liabilities, obligations and duties of
the Surviving Corporation.
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Section 2.5. Certificate of Incorporation and Bylaws. Subject to Section
5.9 hereof, at the Effective Time, the certificate of incorporation of the Company shall be
amended to read as set forth in Exhibit A attached hereto and, as so amended, shall be the
certificate of incorporation of the Surviving Corporation until thereafter amended in accordance
with applicable Law and such certificate of incorporation. Subject to Section 5.9 hereof,
the bylaws of Merger Sub in effect immediately prior to the Effective Time shall be the bylaws of
the Surviving Corporation, except that the name of the Surviving Corporation shall be “Conexant
Systems, Inc.”, until thereafter amended in accordance with applicable Law, the certificate of
incorporation of the Surviving Corporation and such bylaws.
Section 2.6. Board of Directors of the Surviving Corporation. The directors of
Merger Sub immediately prior to the Effective Time shall be the directors of the Surviving
Corporation until their respective successors have been duly elected or appointed and qualified, or
until their earlier death, resignation or removal in accordance with the certificate of
incorporation and bylaws of the Surviving Corporation.
Section 2.7. Officers of the Surviving Corporation. The officers of Merger Sub
immediately prior to the Effective Time shall be the officers of the Surviving Corporation until
their respective successors have been duly elected or appointed and qualified, or until their
earlier death, resignation or removal in accordance with the certificate of incorporation and
bylaws of the Surviving Corporation.
Section 2.8. Subsequent Actions. If, at any time after the Effective Time, the
Surviving Corporation shall consider or be advised that any certificates, deeds, bills of sale,
assignments, assurances or any other actions or things are necessary or desirable to vest, perfect
or confirm of record or otherwise in the Surviving Corporation its right, title or interest in, to
or under any of the rights, properties or assets of either of the Company or Merger Sub acquired or
to be acquired by the Surviving Corporation as a result of, or in connection with, the Merger or
otherwise to carry out this Agreement, the officers and directors of the Surviving Corporation
shall be authorized to execute and deliver, in the name and on behalf of either the Company or
Merger Sub, all such certificates, deeds, bills of sale, assignments and assurances and to take and
do, in the name and on behalf of each of such corporations or otherwise, all such other actions and
things as may be necessary or desirable to vest, perfect or confirm any and all right, title and
interest in, to and under such rights, properties or assets in the Surviving Corporation or
otherwise to carry out this Agreement.
Section 2.9. Conversion of Capital Stock. At the Effective Time, by virtue of the
Merger and without any action on the part of Parent, Merger Sub, the Company or the holder of any
of the following securities:
(a) Company Common Stock. Each Share (other than Shares owned by Parent, Merger
Sub or any Subsidiary of Parent or Merger Sub, Treasury Shares and Dissenting Shares) issued and
outstanding immediately prior to the Effective Time shall be converted into and represent the right
to receive $2.40 (the “Merger Consideration”) in cash and without interest thereon (subject to any
applicable withholding tax) in accordance with Section 2.10.
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(b) Capital Stock of Merger Sub. Each share of common stock, par value $0.01 per
share, of Merger Sub issued and outstanding immediately prior to the Effective Time shall be
converted into and become one fully paid and nonassessable share of common stock, par value $0.01
per share, of the Surviving Corporation.
(c) Cancellation of Treasury Shares and Parent- and Merger Sub-Owned Shares. Each
Treasury Share and each Share held by Parent, Merger Sub or any Subsidiary of Parent or Merger Sub
immediately prior to the Effective Time shall automatically be canceled and shall cease to exist
and no consideration shall be delivered or deliverable in exchange therefor.
(d) Cancellation of Shares. As of the Effective Time, all Shares converted into
the right to receive the Merger Consideration pursuant to Section 2.9(a) shall no longer be
outstanding and shall automatically be canceled and shall cease to exist, and each holder of a
certificate representing any such Shares (a “Certificate”) or of book-entry Shares (“Book-Entry
Shares”) which immediately prior to the Effective Time represented any such Shares shall cease to
have any rights with respect thereto, except the right to receive the Merger Consideration.
Section 2.10. Surrender of Certificates and Book-Entry Shares.
(a) Paying Agent. Prior to the Effective Time, Parent shall appoint an
institution reasonably acceptable to the Company to act as paying agent (the “Paying Agent”) in
accordance with an agreement reasonably satisfactory to the Company to receive the consideration
necessary to make the payments and deliveries contemplated by Section 2.9, which agreement
shall provide that Parent shall deposit or cause to be deposited with the Paying Agent, for the
benefit of the holders of Shares for exchange in accordance with this Article II, at or
prior to the Effective Time, cash in an amount sufficient to make payments of the Merger
Consideration (such consideration being deposited hereinafter referred to as the “Consideration
Fund”). The Paying Agent shall, pursuant to irrevocable instructions, make payments out of the
Consideration Fund as provided for in this Article II, and the Consideration Fund shall not
be used for any other purpose. All expenses of the Paying Agent shall be paid by Parent or the
Surviving Corporation.
(i) Certificates. As soon as reasonably practicable after the Effective
Time, Parent shall cause the Paying Agent to mail to each holder of record of a Certificate
whose Shares were converted into the right to receive the Merger Consideration (A) a form of
letter of transmittal (which shall specify that delivery shall be effected, and risk of loss
and title to the Certificates shall pass, only upon proper delivery of the Certificates to
the Paying Agent and which shall be in customary form and contain customary provisions) and
(B) instructions for use in effecting the surrender of the Certificates in exchange for the
Merger Consideration. Each holder of record of one or more Certificates shall, upon
surrender to the Paying Agent of such Certificate or Certificates, together with such letter
of transmittal, duly executed, and such other documents as may reasonably be required by the
Paying Agent, be entitled to receive in exchange therefor, and Parent shall cause the Paying
Agent to pay in exchange therefor as promptly as
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practicable, the amount of cash to which such holder is entitled pursuant to
Section 2.9(a), and the Certificates so surrendered shall forthwith be canceled.
(ii) Book-Entry Shares. Notwithstanding anything to the contrary contained
in this Agreement, any holder of Book-Entry Shares shall not be required to deliver a
Certificate or an executed letter of transmittal to the Paying Agent to receive the Merger
Consideration that such holder is entitled to receive pursuant to this Article II.
In lieu thereof, each holder of record of one or more Book-Entry Shares whose Shares were
converted into the right to receive the Merger Consideration shall be entitled to receive,
and Parent shall cause the Paying Agent to pay as promptly as practicable after the
Effective Time, the amount of cash to which such holder is entitled pursuant to Section
2.9(a), and the Book-Entry Shares of such holder shall forthwith be canceled.
(c) No Further Ownership Rights in Capital Stock. Until surrendered as
contemplated by this Section 2.10, each Certificate shall be deemed at any time after the
Effective Time to represent only the right to receive upon such surrender the Merger Consideration
in respect of the Shares formerly represented by such Certificate as contemplated by this
Section 2.10. All cash paid upon the surrender for exchange of Certificates or the
conversion of Book-Entry Shares in accordance with the terms of this Article II shall be
deemed to have been paid in full satisfaction of all rights pertaining to the Shares represented
thereby. After the Effective Time, there shall be no further registration of transfers of Shares
on the records of the Company, and if Certificates are presented to the Surviving Corporation, they
shall be canceled and exchanged as provided for, and in accordance with the procedures set forth,
in this Article II.
(d) Unregistered Transfer of Capital Stock. If payment of the Merger
Consideration is to be made to a Person other than the Person in whose name the surrendered
Certificate is registered, it shall be a condition of such payment that the Certificate so
surrendered shall be properly endorsed or shall be otherwise in proper form for transfer and that
the Person requesting such payment shall have paid any transfer and any other Taxes required by
reason of the payment to a Person other than the registered holder of the Certificate surrendered
or shall have established to the satisfaction of the Surviving Corporation that such Tax either has
been paid or is not applicable.
(e) Lost Certificates. In the event that any Certificate shall have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the Person claiming such
Certificate to be lost, stolen or destroyed and, if required by the Surviving Corporation, the
posting by such Person of a bond in such reasonable amount as the Surviving Corporation may require
as indemnity against any claim that may be made against it with respect to such Certificate, the
Paying Agent will issue, in exchange for such lost, stolen or destroyed Certificate, the Merger
Consideration to which holders of such Certificates have become entitled in accordance with this
Article II.
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(f) Investment of Consideration Fund. The Paying Agent shall invest the cash
included in the Consideration Fund as directed by Parent. Any interest and other income resulting
from such investments shall be paid as directed by Parent. To the extent that there are losses
with respect to such investments, Parent shall promptly replace or restore the portion of the
Consideration Fund lost through investments so as to ensure that the Consideration Fund is
maintained at a level sufficient to make all payments required under this Article II.
(g) Termination of Consideration Fund. Any portion of the Consideration Fund that
remains unclaimed by the former holders of Company Common Stock one year after the Effective Time
shall be delivered as directed by Parent. Any such holders who have not complied with this
Article II prior to that time shall thereafter look only to Parent, and Parent shall
thereafter be liable, for payment of the Merger Consideration to which holders of such Certificates
have become entitled (subject to abandoned property, escheat and similar Laws). Any such portion
of the Consideration Fund remaining unclaimed by holders of Shares one year after the Effective
Time (or such earlier date as shall be immediately prior to such time as such amounts would
otherwise escheat to or become property of any Governmental Entity) shall, to the extent permitted
by applicable Law, become the property of Parent free and clear of all claims or interest of any
Persons previously entitled thereto.
(h) No Liability. None of Parent, the Surviving Corporation or the Paying Agent,
or any employee, officer, director, agent or Affiliate thereof, shall be liable to any Person in
respect of any cash from the Consideration Fund delivered to a public official pursuant to any
applicable abandoned property, escheat or similar Law.
Section 2.11. Equity Awards.
(a) Equity Plans. The Company shall prior to the Effective Time take all actions
necessary (including obtaining any necessary determinations and/or resolutions of the Company Board
or any applicable committee thereof and amending or adjusting any Equity Compensation Plan) to
terminate, effective at the Effective Time each Equity Compensation Plan.
(b) Stock Options. Immediately prior to the Effective Time, each Stock Option
that is then outstanding (each, a “Current Option”), whether or not vested and whether or not held
by a Transferred Employee (each such Current Option, a “Cancelled Stock Option”) shall be cancelled
and extinguished and in lieu thereof, the holder of each such Cancelled Stock Option will be
entitled to receive from the Surviving Corporation an amount in cash equal to the product of (i)
the excess, if any, of (A) the Merger Consideration over (B) the exercise price per Share under
such Cancelled Stock Option multiplied by (ii) the number of Shares subject to such Cancelled Stock
Option immediately prior to the Effective Time, without interest, reduced by any income or
employment taxes required to be withheld under the Code or any provision of state, local or foreign
tax law. As of the Effective Time, each Current Option (if any) that is not a Cancelled Stock
Option shall be cancelled and extinguished without further action, rights or entitlement on the
part of the holder thereof, and prior to the Effective Time the Company, the Company Board (and
board of any applicable Subsidiary) and any applicable committees thereof shall prior to the
Effective Time take all actions necessary to terminate, adjust or amend any such Current Option (or
the Employee Plan to which such Current Option is subject) so that such
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Current Option is cancelled and extinguished and otherwise arrange for the full cancellation
and extinguishment of, such Current Options, in each case for no payment or consideration of any
kind. Parent (and each of its Affiliates) is not assuming or continuing any Stock Option, stock
awards or stock option grants made prior to the Effective Time.
(c) Restricted Shares. Immediately prior to the Effective Time, each Restricted
Share that is then outstanding (each, a “Current Restricted Share”) shall, notwithstanding any
other provision of this Agreement, vest in full and, at the Effective Time, shall be treated as
provided in Section 2.9(a).
(d) Restricted Stock Units. As of the Effective Time, each Restricted Stock Unit
that (i) is outstanding immediately prior to the Effective Time (each, a “Current RSU”) and (ii) is
then held by a Non-Employee Director or is then vested or vests (automatically) in accordance with
its terms upon (or immediately prior to) the occurrence of the Effective Time or is then held as
described in Section 2.11(d) of the Company Disclosure Schedule (each such Current RSU, a
“Cancelled RSU”) shall be cancelled and extinguished and in lieu thereof, the holder of each such
Cancelled RSU will be entitled to receive from the Surviving Corporation an amount in cash equal to
the product of (A) the Merger Consideration multiplied by (B) the number of Shares subject to such
Cancelled RSU immediately prior to the Effective Time, without interest, reduced by any income or
employment taxes required to be withheld under the Code or other Applicable Law. As of the
Effective Time, each Current RSU that is not a Cancelled RSU shall be cancelled and extinguished
without further action, rights or entitlement on the part of the holder thereof, and prior to the
Effective Time the Company, the Company Board (and board of any applicable Subsidiary) and any
applicable committees thereof shall prior to the Effective Time take all actions necessary to
terminate, adjust or amend any such Current RSU so that such Current RSU is cancelled and
extinguished and otherwise arrange for the full cancellation and extinguishment of such RSUs, in
each case for no payment or consideration of any kind. Parent (and each of its Affiliates) is not
assuming or continuing any Current RSUs made prior to the Effective Time.
(e) Amendment and Administration of Equity Arrangements. As soon as reasonably
practicable following the date of this Agreement, the Company (and its board of directors and any
applicable committees thereof) shall take all requisite actions and/or adopt such resolutions as
may be required in order to give effect to and accomplish the transactions contemplated by this
Section 2.11, including, without limitation, amending each of the Equity Compensation Plans
(i) if and to the extent necessary and practicable, to reflect the transactions contemplated by
this Agreement, including, but not limited to, the cancellation of the Current RSUs pursuant to
Section 2.11(d) and the cancellation of the Cancelled Stock Options, the vesting of the
Current Restricted Shares pursuant to Section 2.11(b) and (c), respectively, and
(ii) to preclude (subject to the consummation of the transactions contemplated by this Agreement)
any discretionary, automatic or formulaic grant of (or any discretionary acceleration of vesting
of) any Stock Options, Restricted Shares, Restricted Stock Units or other equity-based awards
thereunder on or after the date hereof.
(f) Withholding Taxes. In accordance with this Section 2.11, the
Surviving Corporation will promptly pay or cause to be paid any amounts withheld pursuant to this
Section 2.11 for applicable foreign, federal, state and local taxes to the appropriate
Governmental Entity
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on behalf of such holders of the applicable Cancelled Stock Options, Current Restricted Shares
and/or Restricted Stock Units.
Section 2.12. Appraisal Rights. Notwithstanding anything in this Agreement to the
contrary, Shares that are issued and outstanding immediately prior to the Effective Time and that
are held by a holder who has not voted in favor of the Merger or consented thereto in writing and
who shall have properly demanded and perfected appraisal rights under Section 262 of the DGCL (the
“Dissenting Shares”) shall not be converted into or represent the right to receive the Merger
Consideration but instead shall be entitled to receive such payment from the Surviving Corporation
with respect to such Dissenting Shares as shall be determined pursuant to Section 262 of the DGCL;
provided, however, that if such holder shall have failed to perfect or shall have
effectively withdrawn or otherwise lost such holder’s right to appraisal and payment under the
DGCL, each such Share held by such holder shall thereupon be deemed to have been converted into and
to have become exchangeable for, as of the Effective Time, the right to receive, without any
interest thereon, the Merger Consideration in accordance with Section 2.9(a), and such
Share shall no longer be a Dissenting Share. The Company shall give prompt notice to Parent of any
written demands received by the Company for appraisals of any Shares, attempted withdrawals of such
demands and any other instruments served pursuant to the DGCL and received by the Company relating
to rights to be paid the “fair value” of Dissenting Shares, as provided in Section 262 of the DGCL,
and Parent shall have the right to direct all negotiations and proceedings with respect to such
demands. The Company shall not, except with the prior written consent of Parent, voluntarily make
or agree to make any payment with respect to any demands for appraisals of Shares, offer to settle
or settle any demands (or any litigation relating thereto) or approve any withdrawal of any such
demands.
Section 2.13. Adjustments. Notwithstanding the foregoing, if, between the date of
this Agreement and the Effective Time, the outstanding Shares shall be changed into a different
number, class or series of shares by reason of any stock dividend, subdivision, reclassification,
recapitalization, stock split, combination or exchange of shares, then the Merger Consideration
payable with respect thereto and any other amounts payable pursuant to this Agreement shall be
appropriately adjusted.
Section 2.14. Withholding Taxes. Parent and the Surviving Corporation shall be
entitled to deduct and withhold from the consideration otherwise payable to a holder of Shares
pursuant to the Merger any Taxes required to be deducted and withheld under the Code, the rules and
regulations promulgated thereunder or any provision of state, local or foreign tax law. To the
extent that amounts are so withheld and properly paid over to the appropriate taxing authority,
such withheld amounts shall be treated for all purposes of this Agreement as having been paid to
the holder of the Shares in respect of which such deduction and withholding was made.
ARTICLE III
Subject to Section 8.4, except, with respect to any Section of this Article
III, as set forth in the section of the disclosure schedule delivered by the Company to Parent
on the date of
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this Agreement (the “Company Disclosure Schedule”) that specifically relates to such Section
and except, with respect to any Section of this Article III other than the Identified
Company Representations, as disclosed in the Annual Report on Form 10-K of the Company for the
fiscal year ended October 1, 2010 (the “Company Form 10-K”), the Quarterly Reports on Form 10-Q and
the Current Reports on Form 8-K, in each case, filed from the date of the filing of the Company
Form 10-K to the date of this Agreement (other than disclosures in the “Risk Factors” or
“Forward-Looking Statements” sections of such reports and other disclosures that are similarly
non-specific and are predictive or forward-looking in nature), the Company hereby represents and
warrants to Parent and Merger Sub as follows:
Section 3.1. Organization and Standing. The Company is a corporation duly
organized, validly existing and in good standing under the Laws of the State of Delaware, with all
requisite corporate power and authority to carry on its business as it is presently being conducted
and to own, lease or operate its properties and Assets. The Company is duly qualified to do
business and is in good standing in each jurisdiction where the character of its properties owned
or leased or the nature of its activities make such qualification necessary, except where the
failure to be so qualified or in good standing would not, individually or in the aggregate, have or
reasonably be expected to have a Company Material Adverse Effect. The Company has delivered or
made available to Parent complete and correct copies of its certificate of incorporation and
bylaws, as amended to date, and each such instrument is in full force and effect. The Company is
not in violation of its certificate of incorporation or bylaws.
Section 3.2. Subsidiaries.
(a) Section 3.2(a) of the Company Disclosure Schedule sets forth the name and jurisdiction
of organization of each Subsidiary of the Company. The Company does not own, directly or
indirectly, any capital stock of, or other equity or voting interest in (including any securities
exercisable or exchangeable for or convertible into shares of capital stock of or other equity or
voting interests in), any other Person. Each of the Company’s Subsidiaries is duly organized,
validly existing and in good standing under the Laws of the jurisdiction of its respective
organization (to the extent the “good standing” concept is applicable in the case of any
jurisdiction outside the United States), except where the failure to be in good standing would not,
individually or in the aggregate, have or reasonably be expected to have a Company Material Adverse
Effect. Each of the Company’s Subsidiaries has all requisite corporate power and authority to
carry on its respective business as it is presently being conducted, to own, lease or operate its
respective properties and Assets and is duly qualified to do business and is in good standing in
each jurisdiction where the character of its properties owned or leased or the nature of its
activities make such qualification necessary (to the extent the “good standing” concept is
applicable in the case of any jurisdiction outside the United States), except where any such
failure would not, individually or in the aggregate, have or reasonably be expected to have a
Company Material Adverse Effect. The Company has delivered or made available to Parent complete
and correct copies of the certificates of incorporation and bylaws or other constituent documents,
as amended to date, of each of the Company’s Subsidiaries, and each such instrument is in full
force and effect. None of the Company’s Subsidiaries is in violation of its certificate of
incorporation, bylaws or other applicable constituent documents, except where such violation would
not, individually or in the aggregate, result in a Company Material Adverse Effect.
17
(b) All of the outstanding capital stock of, or other equity or voting interest in, each
Subsidiary of the Company (i) have been duly authorized, validly issued and are fully paid and
nonassessable and (ii) are owned, directly or indirectly, by the Company, free and clear of all
Liens, including any restriction on the right to vote, sell or otherwise dispose of such capital
stock or other equity or voting interest.
(c) There are no outstanding (i) securities of the Company or any of its Subsidiaries
convertible into or exchangeable for shares of capital stock of, or other equity or voting interest
in, any Subsidiary of the Company, (ii) options, warrants, rights or other commitments or
agreements to acquire from the Company or any of its Subsidiaries, or that obligate the Company or
any of its Subsidiaries to issue, any capital stock of, or other equity or voting interest in, or
any securities convertible into or exchangeable for shares of capital stock of, or other equity or
voting interest in, any Subsidiary of the Company, (iii) obligations of the Company to grant,
extend or enter into any subscription, warrant, right, convertible or exchangeable security or
other similar agreement or commitment relating to any capital stock of, or other equity or voting
interest (including any voting debt) in, any Subsidiary of the Company (the items in clauses (i),
(ii) and (iii), together with the capital stock of the Subsidiaries of the Company, being referred
to collectively as “Company Subsidiary Securities”) or (iv) other obligations by the Company or any
of its Subsidiaries to make any payments based on the price or value of any shares of any
Subsidiary of the Company. There are no outstanding agreements of any kind which obligate the
Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any outstanding
Company Subsidiary Securities.
Section 3.3. Authorization. The Company has all requisite corporate power and
authority to execute and deliver this Agreement and, subject to obtaining the Requisite Stockholder
Approval in the case of the consummation of the Merger, to consummate the transactions contemplated
hereby and to perform its obligations hereunder. The execution and delivery of this Agreement by
the Company and the consummation by the Company of the transactions contemplated hereby have been
duly authorized by all necessary corporate action on the part of the Company and no corporate
proceedings on the part of the Company are necessary to authorize this Agreement or to consummate
the transactions contemplated hereby, other than, with respect to the consummation of the Merger,
the Requisite Stockholder Approval. This Agreement has been duly executed and delivered by the
Company and, assuming the due authorization, execution and delivery by Parent and Merger Sub,
constitutes a legal, valid and binding obligation of the Company, enforceable against the Company
in accordance with its terms, except that such enforceability (i) may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors’
rights generally, and (ii) is subject to general principles of equity.
Section 3.4. Capitalization.
(a) The authorized capital stock of the Company consists of (i) 200,000,000 Shares and
(ii) 25,000,000 shares of preferred stock, no par value. As of February 18, 2011: (A) 82,218,129
Shares were issued and outstanding, (B) no shares of preferred stock were issued and outstanding
and (C) there were no Treasury Shares. All outstanding Shares are validly issued, fully paid,
nonassessable and free of any preemptive rights. Since January 1, 2011 and through
the date hereof, the Company has not issued any Shares other than pursuant to the
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exercise of
Stock Options or the payment of other awards granted under an Equity Compensation Plan.
(b) The Company has reserved 13,600,000 Shares for issuance under the Equity Compensation
Plans. As of February 18, 2011, with respect to the Equity Compensation Plans, there were
outstanding Stock Options with respect to 1,956,330 Shares, 6,011 Restricted Shares and Restricted
Stock Units with respect to 3,636,333 Shares and, since such date and through the date hereof, the
Company has not granted, committed to grant or otherwise created or assumed any obligation with
respect to any Stock Options, Restricted Shares, Restricted Stock Units or other rights or awards
under any of the Equity Compensation Plans. A true, correct and complete schedule of each Equity
Compensation Plan pursuant to which any Stock Options, Restricted Shares or Restricted Stock Units
outstanding as of the date hereof were issued, which schedule sets forth under each Equity
Compensation Plan each issued and outstanding Stock Option (and the exercise price thereof),
Restricted Share and Restricted Stock Unit issued thereunder, is set forth in Section
3.4(b) of the Company Disclosure Schedule. The Company has made available to Parent a true,
correct and complete copy of each Equity Compensation Plan.
(c) Except as set forth in this Section 3.4, there are no (i) outstanding shares
of capital stock of, or other equity or voting interest in, the Company, (ii) outstanding
securities of the Company convertible into or exchangeable for shares of capital stock of, or other
equity or voting interest in, the Company, (iii) outstanding options, warrants, rights or other
commitments or agreements to acquire from the Company, or that obligates the Company to issue, any
capital stock of, or other equity or voting interest in, or any securities convertible into or
exchangeable for shares of capital stock of, or other equity or voting interest in, the Company,
(iv) obligations of the Company to grant, extend or enter into any subscription, warrant, right,
convertible or exchangeable security or other similar agreement or commitment relating to any
capital stock of, or other equity or voting interest (including any voting debt) in, the Company,
(v) restricted shares, stock appreciation rights, performance units, restricted stock units,
contingent value rights, “phantom” stock or similar securities or rights that are derivative of, or
provide economic benefits based, directly or indirectly, on the value or price of, any capital
stock of, or other voting securities of or ownership interests in, the Company (the items in
clauses (i), (ii), (iii), (iv) and (v), together with the capital stock of the Company, being
referred to collectively as “Company Securities”), or (vi) other obligations by the Company or any
of its Subsidiaries to make any payments based on the price or value of the Shares. There are no
outstanding agreements of any kind which obligate the Company or any of its Subsidiaries to
repurchase, redeem or otherwise acquire any Company Securities. Prior to the date of this
Agreement, the Company Board (or the compensation committee of the Company Board) took all actions
necessary, including adopting any necessary resolutions (w) to suspend the Company’s 2001 Employee
Stock Purchase Plan (the “ESPP”) (which, unless terminated prior to the Closing Date, shall remain
suspended through the Closing Date or termination date of this Agreement, whichever occurs
earlier), (x) to ensure that no offering period was commenced on or after the date of the Prior
Agreement, (y) to prohibit participants in the ESPP from increasing their payroll deductions from
those in effect on the date of the Prior Agreement, and (z) to provide that the amount of the
accumulated contributions of each participant under the ESPP as of immediately prior to the
Effective Time under the Prior Agreement shall, to the extent not used to purchase Shares in
19
accordance with the terms and conditions of the ESPP, be refunded to such participant as
promptly as practicable following the Effective Time under the Prior Agreement.
(d) Neither the Company nor any of its Subsidiaries is a party to any agreement
restricting the transfer of, relating to the voting of, requiring registration of, or granting any
preemptive rights, antidilutive rights or rights of first refusal or similar rights with respect to
any Company Securities.
Section 3.5. Non-contravention; Required Consents.
(a) The execution, delivery or performance by the Company of this Agreement, the
consummation by the Company of the transactions contemplated hereby and the compliance by the
Company with the provisions hereof do not and will not (i) violate or conflict with any provision
of the certificates of incorporation or bylaws or other constituent documents of the Company or any
of its Subsidiaries, (ii) subject to obtaining such Consents set forth in Section 3.5(a)(ii) of the
Company Disclosure Schedule, violate, conflict with, or result in the breach of or constitute a
default (or an event which with notice or lapse of time or both would become a default) under, or
result in the termination of, or accelerate the performance required by, or result in a right of
termination or acceleration under, any Contract to which the Company or any of its Subsidiaries is
a party or by which the Company, any of its Subsidiaries or any of their properties or Assets may
be bound, (iii) assuming, in the case of the consummation of the Merger, the receipt of the
Requisite Stockholder Approval and assuming compliance with the matters referred to in Section
3.5(b), violate or conflict with any Order or Law applicable to the Company or any of its
Subsidiaries or by which any of their properties or Assets are bound or (iv) result in the creation
of any Lien, other than Permitted Liens, upon any of the properties or Assets of the Company or any
of its Subsidiaries, other than any such event described in items (ii), (iii) and (iv) that,
individually or in the aggregate, has not had and would not reasonably be expected to have or
result in a Company Material Adverse Effect.
(b) No material consent, approval, order or authorization of, or filing or registration
with, or notification to (any of the foregoing being a “Consent”), any Governmental Entity is
required on the part of the Company or any of its Subsidiaries in connection with the execution,
delivery and performance by the Company of this Agreement and the consummation by the Company of
the transactions contemplated hereby, except (i) the filing and recordation of the Certificate of
Merger with the Secretary of State of the State of Delaware, (ii) such filings and approvals as may
be required by any federal or state securities Laws, including compliance with any applicable
requirements of the Exchange Act or by the rules and regulations of Nasdaq and (iii) compliance
with any applicable requirements of the HSR Act and any applicable foreign antitrust, competition
or merger control Laws.
Section 3.6. Company SEC Reports. The Company has timely filed with, or furnished
to, as applicable, the SEC all forms, reports and documents required to be filed or furnished by it
since October 1, 2007 (all such forms, reports and documents, together with any documents filed
during such period by the Company with the SEC on a voluntary basis on Current Reports on Form 8-K
and, in all cases, all exhibits and schedules thereto, the “Company SEC Reports”), each of which
complied in all material respects, as of its filing date (or, if amended or superseded by a filing
prior to the date of this Agreement, on the date of such
20
amended or superseded filing), with the applicable requirements of the Securities Act or the
Exchange Act, as the case may be, each as in effect on the date such Company SEC Report was filed,
except as otherwise disclosed in any such Company SEC Report. As of its filing date (or, if
amended or superseded by a filing prior to the date of this Agreement, on the date of such amended
or superseded filing), each Company SEC Report, including any financial statements or schedules
included or incorporated by reference therein, did not contain any untrue statement of a material
fact or omit to state any material fact necessary in order to make the statements made therein, in
light of the circumstances under which they were made, not misleading. True and correct copies of
all Company SEC Reports filed prior to the date hereof have been furnished to Parent or are
publicly available in the Electronic Data Gathering, Analysis and Retrieval (XXXXX) database of the
SEC. None of the Company’s Subsidiaries is required to file any forms, reports or other documents
with the SEC. No executive officer of the Company has failed in any respect to make the
certifications required of him or her under Section 302 or 906 of the Xxxxxxxx-Xxxxx Act of 2002
(the “Xxxxxxxx-Xxxxx Act”) with respect to any Company SEC Report, and neither the Company nor any
of its executive officers has received notice from any Governmental Entity challenging or
questioning the accuracy, completeness, form or manner of filing of such certifications.
Section 3.7. Financial Statements.
(a) The audited and unaudited consolidated financial statements of the Company and its
Subsidiaries included (or incorporated by reference) in the Company SEC Reports have been prepared
in accordance with GAAP consistently applied during the periods and at the dates involved (except
as may be indicated in the notes thereto) and (except as amended or superseded by a filing prior to
the date of this Agreement) fairly present in all material respects the consolidated financial
position of the Company and its Subsidiaries as of the dates thereof and the consolidated results
of operations and cash flows for the periods then ended.
(b) The Company has implemented and maintains a system of internal accounting controls
sufficient in all material respects to provide reasonable assurances regarding the reliability of
financial reporting and the preparation of financial statements in accordance with GAAP. The
Company (i) has implemented and maintains disclosure controls and procedures (as defined in Rule
13a-15(e) of the Exchange Act) sufficient in all material respects to ensure that material
information relating to the Company, including its consolidated Subsidiaries, is made known to the
Chief Executive Officer and the Chief Financial Officer of the Company by others within those
entities and (ii) has disclosed, based on its most recent evaluation prior to the date hereof, to
the Company’s outside auditors and the audit committee of the Company Board (A) any significant
deficiencies and material weaknesses in the design or operation of internal control over financial
reporting (as defined in Rule 13a-15(f) of the Exchange Act) which are reasonably likely to
adversely affect the Company’s ability to record, process, summarize and report financial
information and (B) any fraud, whether or not material, that involves management or other employees
who have a significant role in the Company’s internal control over financial reporting. A summary
of any of these disclosures made by management to the Company’s auditors and audit committee is set
forth as Section 3.7(b) of the Company Disclosure Schedule.
21
(c) Since October 1, 2007, (i) to the knowledge of the Company, neither the Company nor
any of its Subsidiaries, nor any Representative of the Company or any of its Subsidiaries, has
received any bona fide, substantive complaint, allegation, assertion or claim, whether written or
oral, regarding the accounting or auditing practices, procedures, methodologies or methods of the
Company or any of its Subsidiaries or their respective internal accounting controls, including any
bona fide, substantive complaint, allegation, assertion or claim that the Company or any of its
Subsidiaries has engaged in questionable accounting or auditing practices, and (ii) no attorney
representing the Company or any of its Subsidiaries, whether or not employed by the Company or any
of its Subsidiaries, has reported evidence of a violation of securities Laws, breach of fiduciary
duty or similar violation by the Company or any of its Representatives to the Company Board or any
committee thereof or to the Company’s Chief Legal Officer or Chief Executive Officer.
(d) To the knowledge of the Company, no officer, director or employee of the Company or
any of its Subsidiaries has provided or is providing information to any law enforcement agency
regarding the commission or possible commission of any crime by the Company or any of its
Subsidiaries or the violation or possible violation of any applicable Law. Neither the Company or
any of its Subsidiaries nor, to the knowledge of the Company, any officer, director, employee,
contractor, subcontractor or agent of the Company or any such Subsidiary has discharged, demoted,
suspended, threatened, harassed, sanctioned or in any other manner discriminated against an
employee of the Company or any of its Subsidiaries in the terms and conditions of employment
because of any act of such employee described in Section 806 of the Xxxxxxxx-Xxxxx Act.
(e) Neither the Company nor any of its Subsidiaries is a party to, or has any commitment
to become a party to, any joint venture, partnership agreement or any similar Contract (including
without limitation any Contract relating to any transaction, arrangement or relationship between or
among the Company or any of its Subsidiaries, on the one hand, and any unconsolidated affiliate,
including any structured finance, special purpose or limited purpose entity or Person, on the other
hand (such as any arrangement described in Section 303(a)(4) of Regulation S-K of the SEC)) where
the purpose or effect of such arrangement is to avoid disclosure of any material transaction
involving the Company or any of its Subsidiaries in the Company’s consolidated financial
statements.
Section 3.8. No Undisclosed Liabilities. Neither the Company nor any of its
Subsidiaries has any Liabilities other than (a) Liabilities reflected or otherwise reserved against
in the balance sheet of the Company as of October 1, 2010 or disclosed in the notes thereto, (b)
Liabilities under this Agreement, (c) Liabilities incurred in connection with the transactions
contemplated by this Agreement, (d) Liabilities arising subsequent to October 1, 2010 in the
ordinary course of business consistent with past practice or (e) Liabilities that have not had and
would not be reasonably likely to have, individually or in the aggregate, a Company Material
Adverse Effect.
Section 3.9. Absence of Certain Changes. Since October 1, 2010 through the date
hereof, except as may be affected by actions expressly contemplated by this Agreement, (a) the
business of the Company and its Subsidiaries has been conducted in the ordinary course consistent
with past practice, (b) there has not been any circumstance, development, event,
22
condition, effect or change that, individually or in the aggregate, has had or would
reasonably be expected to have a Company Material Adverse Effect and (c) neither the Company nor
any of its Subsidiaries has taken any action that, if taken after the date hereof, would require
Parent’s consent under Section 5.1.
Section 3.10. Material Contracts.
(a) For purposes of this Agreement, a “Material Contract” shall mean:
(i) any “material contract” (as such term is defined in Item 601(b)(10) of
Regulation S-K of the SEC) with respect to the Company and its Subsidiaries (whether or not
filed by the Company with the SEC);
(ii) any employment or consulting Contract with any current or former executive
officer or member of the Company Board pursuant to which the Company or any of its
Subsidiaries still has any Liability and that either (A) is for a fixed term of employment
or services (but in the case of consulting agreements, only if such fixed term exceeds 2
months) or (B) provides for severance or termination payments in an amount in excess of the
Company’s standard severance policy;
(iii) any Contract, other than an Employee Plan set forth on Section 3.15 of the
Company Disclosure Schedule, any of the benefits of which will be materially increased, or
the vesting of material benefits of which will be accelerated, by the occurrence of any of
the transactions contemplated by this Agreement or the value of any of the material benefits
of which will be calculated on the basis of any of the transactions contemplated by this
Agreement;
(iv) any agreement of indemnification or any guaranty other than any agreement of
indemnification entered into in connection with the distribution, sale or license of
services or hardware or software products in the ordinary course of business consistent with
past practice, which indemnification does not materially differ from the provisions in
Company’s standard form agreement as set forth in Section 3.10(a)(iv) of the Company
Disclosure Schedule;
(v) any Contract containing any provision (A) limiting in any material respect the
right of the Company or any of its Subsidiaries (or, after the Closing Date, Parent) to
engage in or compete with any Person in any line of business, (B) prohibiting the Company or
any of its Subsidiaries (or, after the Closing Date, Parent) from engaging in business with
any Person other than the counterparty to such Contract or levying a fine, charge or other
payment for doing so, or (C) otherwise prohibiting or limiting the right of the Company or
any of its Subsidiaries (or, after the Closing Date, Parent) to sell, distribute, license or
manufacture any of its products or services or to purchase or otherwise obtain any software,
components, parts or subassemblies from any Person other than the Company or its Affiliates;
23
(vi) any Contract relating to the license, disposition or acquisition by the
Company or any of its Subsidiaries of a material amount of assets not in the ordinary course
of business or pursuant to which the Company or any of its Subsidiaries has any material
ownership interest in any other Person or other business enterprise other than the Company’s
Subsidiaries;
(vii) any Contract for the acquisition or disposition of any business containing any
continuing profit sharing arrangements or “earn-out” arrangements, material indemnification
obligations or other contingent payment obligations;
(viii) any dealer, distributor, joint marketing or development agreement, under which
the Company or any of its Subsidiaries have continuing obligations or costs in excess of
$100,000 per year, to jointly market any product, technology or service, and which may not
be canceled without penalty upon notice of ninety days or less; or any Contract pursuant to
which the Company or any of its Subsidiaries have continuing obligations to jointly develop
any Intellectual Property that will not be owned solely by the Company or one of its
Subsidiaries;
(ix) any material joint venture or development agreements, or material outsourcing
arrangements (including Contracts to assemble, manufacture and package Company Products and
for information technology, back-office, or other service arrangements);
(x) any material Contract to provide source code to any third party for any Company
Product, including any material Contract to put such source code in escrow with a third
party on behalf of such licensee or contracting party, other than any such Contract entered
into in connection with the distribution, sale or license of Company Products in the
ordinary course of business consistent with past practice, which source code provision
and/or escrow does not materially differ from the provisions in one of the Company’s
standard form source code license agreements and/or escrow agreements as set forth in
Section 3.10(a)(x) of the Company Disclosure Schedule;
(xi) any Contract (A) containing any material support or maintenance obligation on the
part of the Company or any of its Subsidiaries, other than support or maintenance
obligations pursuant to the Company’s standard terms and conditions, or (B) containing any
service obligation or cost on the part of the Company or any of its Subsidiaries in excess
of $100,000, other than those obligations that are terminable by the Company or any of its
Subsidiaries on no more than ninety days notice without liability or financial obligation to
the Company or its Subsidiaries;
(xii) any Contract authorizing another Person to provide material support or
maintenance to customers of the Company Products on behalf of the Company, including
distributors or resellers that are obligated to provide such support or maintenance;
(xiii) any Contract to license any third party to manufacture or reproduce any Company
Products or any Contract with a third party for such third party to sell or distribute any
Company Products, except (A) non-exclusive agreements with distributors
24
or sales representatives in the ordinary course of business consistent with past practice, or (B)
agreements allowing internal copies made or to be made by end-user customers in the ordinary
course of business consistent with past practice;
(xiv) any Contract to sell or distribute any Company Products in which the Company or
any of its Subsidiaries has granted “most favored nation” pricing provisions;
(xv) any mortgages, indentures, guarantees, loans or credit agreements, security
agreements or other Contracts relating to the borrowing of money or extension of credit,
other than accounts receivables and payables in the ordinary course of business consistent
with past practice;
(xvi) any Contract, or series of related Contracts with a Person (or group of
affiliated Persons), for the purchase of materials, supplies, goods, services, equipment or
other assets under which the Company and its Subsidiaries made payments of $1,000,000 or
more during the twelve-month period ending on October 1, 2010;
(xvii) (A) any settlement agreement in connection with a Legal Proceeding or threatened
Legal Proceeding entered into within six years prior to the date of this Agreement primarily
relating to Intellectual Property, and (B) any settlement agreement in connection with a
Legal Proceeding or threatened Legal Proceeding not relating to Intellectual Property
entered into within the past three years, other than such settlement agreements for cash
only (which has been paid) and does not exceed $100,000 as to such settlement;
(xviii) any other Contract pursuant to which the Company or any of its Subsidiaries has
an outstanding payment obligation in excess of $1,000,000 in any individual case not
described in clauses (i) through (xvii) above;
(xix) any Company IP Agreement; or
(xx) any Contract, or series of related Contracts with a Person (or group of affiliated
Persons), the termination or breach of which would be reasonably expected to have a Company
Material Adverse Effect; provided, however, that notwithstanding anything to the contrary in
this Section 3.10 (other than Section 3.10(a)(ii)), an Employee Plan set
forth on Section 3.15 of the Company Disclosure Schedule shall not be deemed to be a
Material Contract.
(b) Section 3.10(b) of the Company Disclosure Schedule sets forth a list of all Material
Contracts to which the Company or any of its Subsidiaries is a party or is bound by, and identifies
each subsection of Section 3.10(a) that describes such Material Contract. As of the date
hereof, true and complete copies of all Material Contracts (including all exhibits and schedules
thereto) have been (i) made publicly available in the XXXXX database of the SEC or (ii) made
available to Parent.
(c) Each Material Contract is valid and binding on the Company (or such Subsidiary of the
Company party thereto) and is in full force and effect, and neither the Company nor any of its
Subsidiaries party thereto, nor, to the knowledge of the Company, any
25
other party thereto, is in
breach of, or default under, any such Material Contract, and no event has occurred that with notice
or lapse of time or both would constitute such a breach or default thereunder by the Company or any
of its Subsidiaries, or, to the knowledge of the Company, any other party thereto, except for such
failures to be valid and binding or to be in full force and effect and such defaults and breaches
that have not had and would not reasonably be expected to have, individually or in the aggregate, a
Company Material Adverse Effect. The Company has not received any written notice from any
counterparty that (i) such counterparty intends to terminate, or not renew, any Material Contract
or (ii) is seeking the renegotiation thereof in any material respect or substitute performance
thereunder in any material respect.
Section 3.11. Compliance with Laws.
(a) The Company and each of its Subsidiaries is in compliance with all Laws and Orders
applicable to the Company and its Subsidiaries or to the conduct of the business or operations of
the Company and its Subsidiaries, except for such failures to be in compliance that have not had
and would not reasonably be expected to have, individually or in the aggregate, a Company Material
Adverse Effect. To the knowledge of the Company, neither the Company nor any of its Subsidiaries
are under investigation with respect to any material violation of any applicable Laws. Except as
has not had and would not reasonably be expected to have, individually or in the aggregate, a
Company Material Adverse Effect, the Company and its Subsidiaries have, and are in compliance with
the terms of, all permits, licenses, authorizations, consents, approvals and franchises from
Governmental Entities required to conduct their businesses as currently conducted (“Permits”), and
no suspension or cancellation of any such Permits is pending or, to the knowledge of the Company,
threatened.
(b) To the knowledge of the Company, neither the Company nor any of its Subsidiaries has
(i) used any of its funds for unlawful contributions, loans, donations, gifts, entertainment or
other unlawful expenses relating to political activity; (ii) made or agreed to make any unlawful
payment to foreign or domestic government officials or employees or to foreign or domestic
political parties or campaigns; (iii) taken any action that would constitute a violation of any
provision of the Foreign Corrupt Practices Act of 1977, as amended, or any rules or regulations
hereunder, or any comparable foreign law or statute; or (iv) made or agreed to make any other
unlawful payment.
Section 3.12. Litigation. As of the date hereof, there are no Legal Proceedings (a)
pending or, to the knowledge of the Company, threatened against the Company, any of its
Subsidiaries or any of the respective properties of the Company or any of its Subsidiaries except
for any such Legal Proceeding involving only (i) claims for monetary damages (and not involving
claims for injunctive or similar equitable relief) not exceeding $100,000, (ii) claims for
non-monetary relief that would not reasonably be expected to be material to the Company and its
Subsidiaries, taken as a whole, or (iii) a combination of claims described in clauses (i) and (ii)
of this Section 3.12, and (b) whether filed or threatened, that have been settled or
compromised by the Company or any of its Subsidiaries during the past three years, except for any
such settlement or compromise involving only monetary payments (and not involving any injunctive or
similar equitable relief) not exceeding $100,000. Neither the Company nor any of its Subsidiaries
is subject to any outstanding Order that would reasonably be expected to be material to the Company
and its Subsidiaries, taken as a whole.
26
Section 3.13. Taxes.
(a) All material Tax Returns required by applicable Law to be filed in each Specified
Jurisdiction by or on behalf of the Company or any of its Subsidiaries have been timely filed in
accordance with all applicable Laws (after giving effect to any extensions of time in which to make
such filings), and all such Tax Returns were, at the time of filing, true, complete and correct.
(b) The Company and each of its Subsidiaries have in each Specified Jurisdiction paid (or have
had paid on their behalf) or have withheld and remitted to the appropriate Governmental Entity all
material Taxes (including income Taxes, withholding Taxes and estimated Taxes) due and payable
without regard to whether such Taxes have been assessed, or, where payment is not yet due, have
established (or have had established on their behalf) in accordance with GAAP an adequate accrual
for all Taxes through the end of the last period for which the Company and its Subsidiaries
ordinarily record items on their respective books, and regardless of whether the liability for such
Taxes is disputed.
(c) There are no Liens on the assets of the Company or any of its Subsidiaries relating or
attributable to Taxes, other than Permitted Liens.
(d) There are no Legal Proceedings now pending against or with respect to the Company or any
of its Subsidiaries with respect to any Tax, and none of the Company or any of its Subsidiaries
knows of any audit or investigation with respect to any liability of the Company or any of its
Subsidiaries for Taxes, and there are no agreements in effect to extend the period of limitations
for the assessment or collection of any Tax for which the Company or any of its Subsidiaries may be
liable.
(e) The Company and its Subsidiaries have not executed any closing agreement pursuant to
Section 7121 of the Code or any predecessor provision thereof, or any similar provision of state,
local or foreign Law.
(f) Each of the Company and its Subsidiaries has disclosed on its Tax Returns all positions
taken therein that could give rise to a substantial understatement of federal income Tax within the
meaning of Section 6662 of the Code or any similar provision of state, local or foreign Law.
(g) Neither the Company nor any of its Subsidiaries have (i) ever been a party to a Tax
Agreement under which the Company or any of its Subsidiaries currently has, or may at any time in
the future have, an obligation to contribute to the payment of any portion of a Tax (or pay any
amount calculated with reference to any portion of a Tax) of any Person (other than the Company or
any of its Subsidiaries), and (ii) any liability for Taxes of any Person (other than the Company or
any of its Subsidiaries) under Treasury regulation Section 1.1502-6 (or any similar provision of
state, local or foreign Law) as a transferee or successor, by contract or otherwise.
27
(h) No written or, to the knowledge of the Company, other claim has ever been made by any
appropriate Governmental Entity in a jurisdiction where neither the Company nor any of its
Subsidiaries filed Tax Returns that the Company or any of its Subsidiaries are or may be subject to
taxation by that jurisdiction.
(i) Neither the Company nor any of its Subsidiaries has engaged in a “reportable transaction”
as set forth in Treasury Regulation Section 1.6011-4(b)(1).
(j) Neither the Company nor any of its Subsidiaries has agreed nor is required to make any
adjustments pursuant to Section 481(a) of the Code or any similar provision of state, local or
foreign Law by reason of a change in accounting method initiated by it or any other relevant party
and, to the knowledge of the Company, no Governmental Entity has proposed any such adjustment or
change in accounting method, nor is any application pending with any appropriate Governmental
Entity requesting permission for any changes in accounting methods that relate to the business or
assets of the Company or any of its Subsidiaries.
(k) The Company and its Subsidiaries will not be required to include any item of income in, or
exclude any item of deduction from, taxable income for any taxable period (or portion thereof)
ending after the Closing Date as a result of (i) any installment sale or open transaction
disposition made on or prior to the Closing Date or (ii) any prepaid amount received on or prior to
the Closing Date.
(l) Neither the Company nor any of its Subsidiaries has any limitation on the use of any net
operating loss or Tax credit or other similar items imposed by Section 382 or Section 383 of the
Code or imposed by Treasury Regulations issued pursuant to Section 1502 of the Code or imposed by
any other provision of federal, state, local or foreign Law, excluding any limitation arising
solely from the transactions contemplated by this Agreement.
(m) Neither the Company nor any of its Subsidiaries currently benefit from (i) exemptions from
taxation, Tax holidays, reduction in Tax rate or similar Tax reliefs, or (ii) other financial
grants, subsidies or similar incentives granted by a Governmental Entity, whether or not relating
to Taxes.
(n) None of the assets of the Company or any of its Subsidiaries is treated as “tax exempt use
property,” within the meaning of Section 168(h) of the Code.
(o) During the two-year period ending on the date of this Agreement, neither the Company nor
any of its Subsidiaries was a distributing corporation or a controlled corporation in a transaction
intended to be governed by Section 355 of the Code.
Section 3.14. Environmental Matters.
(a) Except as has not had and would not reasonably be expected to have, individually or in the
aggregate, a Company Material Adverse Effect, the Company and its Subsidiaries (i) have been and
are in compliance with all applicable Environmental Laws, which compliance includes the possession
and maintenance of, and compliance with, all Permits required under applicable Environmental Laws
for the operation of the business of the Company
28
and its Subsidiaries and (ii) have obtained all
such Permits, and no suspension or cancellation of any such Permits is pending or, to the knowledge
of the Company, threatened.
(b) To the knowledge of the Company, there has been and is no presence or release of, or
exposure to Hazardous Substances or other condition reasonably expected to give rise to a
requirement for investigation or remediation, material violation of, or material Liability of the
Company or any of its Subsidiaries pursuant to any Environmental Law.
(c) Neither the Company nor any of its Subsidiaries has received any notice of potential
responsibility or information request relating to any generation, transportation, storage,
treatment, disposal or release of or exposure to Hazardous Substances, pursuant to any
Environmental Law, including Superfund and similar Laws.
(d) Neither the Company nor its Subsidiaries has received written notice of, is a party to or
is the subject of any Legal Proceeding alleging any material Liability or responsibility under or
noncompliance with any Environmental Law or seeking to impose any financial responsibility for any
investigation, cleanup, removal, containment or any other remediation or compliance under any
Environmental Law. To the knowledge of the Company, no such Legal Proceeding has been threatened,
and there is no reasonable basis for, or circumstances that are reasonably likely to give rise to,
any such Legal Proceeding by any Governmental Entity or any third party that would give rise to any
material Liability or obligation on the part of the Company or any of its Subsidiaries, and there
are no such Legal Proceedings, whether filed or threatened, that have been settled or compromised
by the Company or any Subsidiary during the past three years and at the time of such settlement or
compromise were material to the Company and its Subsidiaries, taken as a whole. Neither the
Company nor any of its Subsidiaries is subject to any Order or agreement by or with any
Governmental Entity or third party imposing any material Liability or obligation with respect to
any of the foregoing.
(e) The Company has made available to Parent copies of all written environmental, health or
safety assessments, audits and similar documents in the possession of the Company and its
Subsidiaries, including any “Phase I” and “Phase II” reports.
Section 3.15. Employee Benefit Plans.
(a) Section 3.15 of the Company Disclosure Schedule sets forth a complete and accurate list of
all material Employee Plans. With respect to each material Employee Plan, the Company has made
available to Parent complete and accurate copies of (in each case, if any) (i) the three most
recent annual reports on Form 5500 filed with the Internal Revenue Service for each Employee Plan,
including all schedules thereto; (ii) the most recent determination letter from the Internal
Revenue Service for any Employee Plan that is intended to qualify under Section 401(a) of the Code;
(iii) the current plan document (including any amendments thereto) and most recent summary plan
description, if any, or a written description of the terms of any Employee Plan that is not in
writing; (iv) any related trust agreements, insurance contracts, insurance policies or other
material documents of any funding arrangements, in each case, as currently in effect; (v) any
notices to or from, or a description of any oral communication with, the Internal Revenue Service
or any office or representative of the Department of Labor or any similar Governmental Entity in
the last six years relating to any compliance issues in respect of
29
any such Employee Plan; (vi)
with respect to each Employee Plan that is maintained in any non-U.S. jurisdiction (the
“International Employee Plans”), to the extent applicable, (x) the three most recent annual reports
or similar compliance documents required to be filed with any Governmental Entity with respect to
such plan, (y) any document comparable to the determination letter reference under clause (ii)
above issued by a Governmental Entity relating to the satisfaction of the requirements of Law
necessary to obtain the most favorable tax treatment, and (z) the three most recent actuarial
valuations prepared for such plan; and (vii) all amendments, modifications or supplements to any
such document. No Employee Plan maintained, sponsored, contributed to or required to be
contributed to by the Company, any of its Subsidiaries, or any of their respective ERISA Affiliates
or with respect to which any of the foregoing has any material Liability is (A) a “defined benefit
plan” (as defined in Section 414 of the Code), (B) a “multiemployer plan” (as defined in Section
3(37) of ERISA), (C) a “multiple employer” plan (as defined in Section 4063 or 4064 of ERISA), or
(D) subject to Section 302 of ERISA, Section 412 of the Code or Title IV of ERISA. No material
International Employee Plan is a defined benefit pension plan except to the extent such
International Employee Plan is required to be maintained by the Company or its Subsidiaries
pursuant to applicable Law or is listed in Section 3.15 of the Company Disclosure Schedule. With
respect to each Employee Plan not set forth on Section 3.15 of the Company Disclosure Schedule,
such Employee Plan either (i) may be terminated at any time with no material Liability to the
Company, Parent or any of their respective Subsidiaries, or (ii) does not, and will not, result in
the aggregate in any material Liability to the Company, Parent or any of their respective
Subsidiaries. The term “ERISA Affiliate” means any Person that, together with the Company any of
its Subsidiaries, would be deemed a “single employer” within the meaning of Section 414(b), (c),
(m) or (o) of the Code.
(b) Each Employee Plan has been maintained, operated and administered in material compliance
with its terms and with all applicable Laws, including the applicable provisions of ERISA and the
Code. Each Employee Plan that is intended to be “qualified” under Section 401 of the Code has
received a favorable determination letter from the Internal Revenue Service to such effect or still
has a remaining period of time in which to apply for or receive such letter and to make any
amendments necessary to obtain a favorable determination and no fact, circumstance or event has
occurred or exists since the date of such determination letter that would reasonably be expected to
adversely affect the qualified status of any such Employee Plan or the ability of such Employee
Plan to obtain a favorable determination. With respect to each International Employee Plan, all
applicable foreign qualifications and/or registration requirements have been satisfied in all
material respects, except where any failure to comply would not result in any material Liability to
the Company, Parent or any of their respective Subsidiaries.
(c) All material contributions, premiums and other payments required to be made with respect
to any Employee Plan have been made in all material respects on or before their due dates under
applicable Law and the terms of such Employee Plan. Neither the Company nor any of its
Subsidiaries has any plan or commitment to amend or establish any new material Employee Plan or to
materially increase any benefits under any Employee Plan.
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(d) There are no material Legal Proceedings pending or, to the knowledge of the Company,
threatened on behalf of or against any Employee Plan, the assets of any trust under any Employee
Plan, or the plan sponsor, plan administrator or any fiduciary or any Employee Plan with respect to
the administration or operation of such plans (excluding claims for benefits in the ordinary
course).
(e) None of the Company, any of its Subsidiaries, or, to the knowledge of the Company, any of
their respective directors, officers, employees or agents has, with respect to any Employee Plan,
engaged in or been a party to any non-exempt “prohibited transaction,” as such term is defined in
Section 4975 of the Code or Section 406 of ERISA, which would result in the imposition of a
material penalty assessed pursuant to Section 502(i) of ERISA or a material tax imposed by Section
4975 of the Code, in each case applicable to the Company, any of its Subsidiaries or any Employee
Plan or for which the Company or any of its Subsidiaries has any indemnification obligation.
(f) No Employee Plan provides or promises, and neither the Company nor any of its Subsidiaries
has otherwise incurred any liability with respect to, post-retirement medical or other
post-retirement welfare benefits to any Person, except (1) to the extent required under any
applicable Law or under Section 4980B of the Code, or (2) retirement or death benefits under any
plan intended to be qualified under Section 401(a) of the Code.
(g) Each Employee Plan that is a “nonqualified deferred compensation plan” (within the meaning
of Section 409A(d)(1) of the Code) has (i) been maintained and operated since January 1, 2005 in
good faith compliance with Section 409A of the Code and (ii) since January 1, 2009, to the
Company’s knowledge, has been in documentary and operational compliance with Section 409A of the
Code. To the Company’s knowledge, no additional Tax under Section 409A(a)(1)(B) of the Code has
been or is reasonably expected to be incurred by a participant in any such Employee Plan.
(h) Except as otherwise contemplated by Section 2.11 of this Agreement, the execution
and delivery of, and performance of the transactions contemplated by, this Agreement will not
(either alone or upon the occurrence of any additional or subsequent events, whether contingent or
otherwise): (i) result in any material payment or benefit becoming due or payable, or required to
be provided, to any Company Employee or director or independent contractor of the Company or any of
its Subsidiaries, (ii) result in the forgiveness of any material indebtedness of any such Company
Employee, director or independent contractor, (iii) materially increase the amount or value of any
benefit or compensation otherwise payable or required to be provided to any such Company Employee,
director or independent contractor, or (iv) result in the acceleration of the time of payment,
vesting or funding of any such material benefit or compensation.
(i) Through the date hereof, the Company and its Subsidiaries have complied in all material
respects with their obligations pursuant to the 401(k) Settlement Agreement.
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(j) Except as set forth on Section 3.15(j) of the Company Disclosure Schedule, neither the
Company nor any of its Subsidiaries is a party to, or otherwise obligated under, any contract,
agreement, plan or arrangement that provides for the gross-up of Taxes imposed by sections 280G,
4999 and/or 409A of the Code.
Section 3.16. Labor Matters.
(a) Neither the Company nor any of its Subsidiaries is a party to any Collective Bargaining
Agreement with respect to their respective employees with any labor organization, union, group or
association, or works council, and to the knowledge of the Company, there are no activities or
proceedings by any labor organization, union, group or association to organize any such employees.
There are no lockouts, strikes, slowdowns, work stoppages or, to the knowledge of the Company,
threats thereof by or with respect to any employees of the Company or any of its Subsidiaries, nor
have there been any such lockouts, strikes, slowdowns or work stoppages in the last six years.
(b) The Company and each of its Subsidiaries (i) is and has for the last six years been in
material compliance with all applicable Laws regarding employment and employment practices and
those Laws relating to terms and conditions of employment, wages and hours, occupational safety and
health and workers’ compensation, and (ii) has no material charges or complaints relating to unfair
labor practices or unlawful employment practices pending or, to the knowledge of the Company,
threatened against it before any Governmental Entity. To the knowledge of the Company, neither the
Company nor any of its Subsidiaries has any material Liability with respect to any
misclassification of any person as an independent contractor rather than as an “employee.”
(c) The Company and each of its Subsidiaries, with respect to any current or former employee
of the Company: (i) has withheld and reported all material amounts required by Law or by agreement
to be withheld and reported with respect to wages, salaries and other payments in the last six
years, (ii) is not materially liable for any arrears of wages or severance pay or any penalty for
failure to comply with any of the foregoing in the last three years, and (iii) is not liable for
any payment to any trust or other fund governed by or maintained by or on behalf of any
Governmental Entity, with respect to unemployment compensation benefits, social security or other
benefits or obligations for such employees (other than routine payments to be made in the normal
course of business and consistent with past practice).
Section 3.17. Real Property.
(a) Owned Real Property. Section 3.17(a) of the Company Disclosure Schedule sets
forth a complete list, as of the date of this Agreement, of all real estate owned by the Company
(together with all buildings, structures, fixtures and improvements thereon and all of the
Company’s rights thereto, the “Owned Real Property”). The Company has good and marketable fee
simple title to the Owned Real Property insured under policies of title insurance issued to the
Company with respect to such Owned Real Property, free and clear of all Liens other than Permitted
Liens, none of which materially interfere with the Company’s use, or materially detract from the
value of, or marketability of, the Owned Real Property. There are no
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rights of first refusal,
options to purchase, purchase agreements or similar agreements in effect with respect to all or any
part of the Owned Real Property.
(b) Leased Real Property. Section 3.17(b)(i) of the Company Disclosure Schedule sets
forth a complete list, as of the date of this Agreement, of all of the existing leases, subleases
or other agreements, and all amendments, if any, thereto (collectively, the “Leases”) under which
the Company or any of its Subsidiaries uses or occupies or has the right to use or occupy, now or
in the future, any real property (such property, the “Leased Real Property”) including with respect
to each Lease, the name of the lessor, the date of the Lease and each amendment thereto made as of
the date of this Agreement. The Company has heretofore made available to Parent true, correct and
complete copies of all Leases (including all modifications, amendments, terminations, supplements,
waivers and side letters thereto). The Company and/or its Subsidiaries have and own valid
leasehold estates in the Leased Real Property, free and clear of all Liens other than Permitted
Liens. Section 3.17(b)(ii) of the Company Disclosure Schedule sets forth a complete list, as of
the date of this Agreement, of all of the existing Leases granting to any Person, other than the
Company or any of its Subsidiaries, any right to use or occupy, now or in the future, any of the
Leased Real Property. Each of the Leases is, in all material respects, valid, in full force and
effect and enforceable against the Company or the applicable Subsidiary party thereto. Neither the
Company nor any of its Subsidiaries is in material breach of or default under, or has received
written notice of any material breach of or default under, any Lease, and, to the knowledge of the
Company, no event has occurred that with notice or lapse of time or both would constitute such a
breach or default thereunder by the Company or any of its Subsidiaries or any other party thereto.
To the knowledge of the Company, the Company or its applicable Subsidiary has adequate rights of
ingress and egress into the Leased Real Property.
Section 3.18. Assets; Personal Property. The Company and its Subsidiaries are in
possession of and have good title to, or valid leasehold interests in or valid rights under
contract to use all machinery, equipment, furniture, fixtures and other tangible personal property
and assets owned, leased or used by the Company or any of its Subsidiaries (the “Assets”) that are
material to the Company and its Subsidiaries, taken as a whole, free and clear of all Liens, except
for Permitted Liens.
Section 3.19. Intellectual Property.
(a) Section 3.19(a) of the Company Disclosure Schedule sets forth a complete and correct list
(by name and version number) of all products distributed or sold by the Company or its Subsidiaries
during the two (2) years prior to the date of this Agreement, and all services made commercially or
for revenue by the Company or its Subsidiaries during the two (2) years prior to the date of this
Agreement, and all products or services that are in development as of the date hereof and that the
Company or a Subsidiary of the Company expects or intends to make available commercially or for
revenue prior to twelve months after the date hereof (together with other products not included in
Section 3.19(a) of the Company Disclosure Schedule, “Company Products”).
(b) Section 3.19(b) of the Company Disclosure Schedule sets forth a complete and correct list
of the following categories of Owned Company IP: (i) all registered Trademarks and material
unregistered Trademarks; (ii) all Domain Names; (iii) all Patents; (iv) all registered
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Copyrights; and (v) all material Software in each case listing, as applicable, (A) the name of the
applicant/registrant and current owner, (B) the jurisdiction where the application/registration is
located, (C) the application or registration number, and (D) the status of the application or
registration, including upcoming deadlines for any renewals or other required filings in the
90-days period following the date of this Agreement. The registered Intellectual Property included
within Owned Company IP is subsisting, enforceable, and validly registered or filed in the name of
the Company or any of its Subsidiaries in those countries where the Company and its Subsidiaries
carry on their businesses, except as has not had and would not reasonably be expected to have,
individually or in the aggregate, a Company Material Adverse Effect. The Company and its
Subsidiaries exclusively own all right, title and interest in the Owned Company IP free and clear
of all Liens and have a valid right to use all Licensed Company IP. Neither the Company nor any of
its Subsidiaries knows of any information, materials, facts or circumstances that could render any
material Company IP invalid or unenforceable.
(c) Section 3.19(c) of the Company Disclosure Schedule separately sets forth a complete and
correct list of (i) all material agreements under which the Company or any of its Subsidiaries uses
or has the right to use any Licensed Company IP (other than licenses for commercially available
off-the-shelf software with an annual cost of less than $50,000 that is not incorporated into any
Company Products) and (ii) all agreements under which the Company or any of its Subsidiaries has
licensed to others the right to use any of the material Company IP (other than standard,
non-material, non-exclusive licenses granted to customers in connection with the sale or
distribution of Company Products entered into in the ordinary course of business) (such agreements,
whether or not listed on Section 3.19(c) of the Company Disclosure Schedule, the “Company IP
Agreements”). Neither the Company nor any of its Subsidiaries has granted any exclusive license of
or exclusive right to, or authorized the retention of any exclusive rights to, or allowed any Third
Party to retain ownership of any improvements to any Owned Company IP. To the knowledge of the
Company, there have been no material disputes during the three (3) years prior to the date of this
Agreement, and there are no pending disputes, nor basis for any dispute, regarding the scope of
such Company IP Agreements, performance under the Company IP Agreements, or with respect to
payments made or received under such Company IP Agreements.
(d) To the knowledge of the Company, the Company IP is all of the Intellectual Property that
is necessary for the conduct of the business of the Company and its Subsidiaries as currently
conducted and as proposed to be conducted.
(e) Each of the Company and its Subsidiaries has taken commercially reasonable steps to (i)
protect and maintain the Owned Company IP and (ii) protect and preserve the confidentiality of
Trade Secrets included in the Company IP.
(f) All former and current employees, consultants and independent contractors of the Company
that have created or contributed to any Owned Company IP have assigned or otherwise transferred to
the Company or its Subsidiaries all ownership and other rights of any nature whatsoever (to the
extent permitted by law) of such Person in any such Intellectual Property developed for the Company
or its Subsidiaries. The Company and its Subsidiaries have and use commercially reasonable efforts
to enforce a policy requiring (i) each employee, consultant or independent contractor whose duties
involve the creation or contribution
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of Intellectual Property to execute an assignment agreement
containing terms assigning such Intellectual Property to the Company and (ii) each employee,
consultant or independent contractor to execute a proprietary information and confidentiality
agreement that contains non-disclosure and other provisions protective of Trade Secrets, in each
case substantially in the form as those set forth in Section 3.19(f) of the Company Disclosure
Schedule.
(g) To the knowledge of the Company, the conduct and operations of the business of the Company
and its Subsidiaries, including the manufacture and sale of the Company Products, does not infringe
upon, misappropriate, violate or conflict in any way with the Intellectual Property rights of any
Person or constitute unfair competition or unfair trade practices under the laws of any
jurisdiction. There is no pending or, to the knowledge of the Company, threatened assertion, suit,
action, investigation, proceeding or claim against the Company or any Subsidiary, and there has
been no such assertion, suit, action, investigation, proceeding or claim against the Company or any
Subsidiary in the last three (3) years (or, to the knowledge of the Company, in the last six (6)
years), that the conduct and operations of the business of the Company and its Subsidiaries,
including the manufacture and sale of the Company Products, infringes upon, misappropriates,
violates or conflicts in any way with the Intellectual Property rights of any Person or constitutes
unfair competition or unfair trades practices under the Laws of any jurisdiction, and the Company
and its Subsidiaries have not been notified in writing in the last three (3) years (or, to the
knowledge of the Company, in the last six (6) years) of any such assertion, suit, action,
investigation, proceeding or claim (including invitations to take licenses or the like) against the
Company or any of its Subsidiaries, except in each case to the extent any such matters have been
resolved. To the knowledge of the Company, there are no unauthorized uses, disclosures,
infringements, or misappropriations by any Person of any Owned Company IP, except as has not had
and would not reasonably be expected to have, individually or in the aggregate, a Company Material
Adverse Effect.
(h) There is no pending or, to the knowledge of the Company threatened, assertion or claim
challenging the validity or enforceability of, or contesting the Company’s or any of its
Subsidiaries’ rights with respect to, any of the Owned Company IP or any agreement relating to
Licensed Company IP. The Company and its Subsidiaries are not subject to any Order that restricts
or impairs the use of any of Company IP or any Company Products, except as has not had and would
not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse
Effect. No compulsory licenses, licenses of right or anything similar have been granted by a court
of competent jurisdiction in respect of the Owned Company IP.
(i) The execution, delivery and performance of this Agreement will not result in, under the
terms of any agreement to which the Company or any Subsidiary is a party, (i) Parent, the Company
or its Subsidiaries being bound by any non-solicitation, non-compete, exclusivity obligation or
other material restriction on the operation of any business of the Company or its Subsidiaries,
including any of their products or services, (ii) the Company or its Subsidiaries granting to any
third party any rights or licenses to any material Intellectual Property, (iii) Parent granting any
third party any rights or licenses to any Intellectual Property, (iv) the release or disclosure of
any material Trade Secrets (other than pursuant to this Agreement) or (iv) the imposition of any
Lien on any Owned Company IP.
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(j) No Software that contains or is derived from open source software has been
incorporated by the Company or any of its Subsidiaries into any Company Products, or has otherwise
been distributed or licensed by the Company or any of its Subsidiaries to Third Parties, in a
manner that renders any Company Products subject to license terms that require the Company or any
of its Subsidiaries to (i) provide access to the corresponding source code of any software
contained in any Company Product or (ii) permit modification or free redistribution of any software
contained in any Company Product, except for access to such source code or modification or free
redistribution of such software that have not had and would not reasonably be expected to have,
individually or in the aggregate, a Company Material Adverse Effect. Neither the Company nor its
Subsidiaries is in violation of any open source license, except for such violations that have not
had and would not reasonably be expected to have, individually or in the aggregate, a Company
Material Adverse Effect. “Open source” software means software that is licensed pursuant to a
license that upon distribution of such software (and modifications thereof), purports to require
the distributing party to (i) provide access to the corresponding source code or (ii) permit
modification or free redistribution of such software (including the GNU General Public License).
(k) No material Software source code has been published or disclosed by the Company or any of
its Subsidiaries on or after January 1, 2006, except (i) in connection with the distribution, sale
or license of services or hardware or software products in the ordinary course of business
consistent with past practice, which source code disclosure does not materially differ from the
provisions in one of the Company’s standard form source code license agreements as set forth in
Section 3.19(k) of the Company Disclosure Schedule, and (ii) for source code that has been placed
into escrow pursuant to an escrow agreement for customers in the ordinary course of business. No
such source code has been released or disclosed to the beneficiary thereof, and the consummation of
the transactions contemplated hereby will not result in the release from escrow of such source
code.
(l) All use by the Company and its Subsidiaries of encryption-related technology, or other
technology that would require an export license or other Permit, is set forth on Section 3.19(l) of
the Company Disclosure Schedule. Such use is and has been authorized by any appropriate Permit as
set forth on Section 3.19(l) of the Company Disclosure Schedule.
(m) The participation by the Company and its Subsidiaries in any standards setting or other
industry organization is in material compliance with all rules, requirements and other obligations
of any such organization. Except as set forth on Section 3.19(m) of the Company Disclosure
Schedule, neither the Company nor any of its Subsidiaries is a member of, or party to, any patent
pool, industry standards body, trade association or other organization pursuant to the rules of
which it is obligated to license any Company IP to any Third Party. All Company IP that is subject
to the rules and regulations of any standard setting or other industry organization that requires
licensing of such IP on a fair and reasonable or non-discriminatory basis is listed in Section
3.19(m) of the Company Disclosure Schedule.
(n) No federal, state, local or other governmental entity nor any university, college, other
educational institution or research center has material rights in or to any material Owned Company
IP other than pursuant to a valid, nonexclusive license granted by the Company or any of its
Subsidiaries.
36
(o) The Company (or any Subsidiary or agent of the Company) has not granted any warranties
with respect to the Company Products that materially deviate from the standard warranties Company
provides with respect to such Company Products and that are in effect as of the date of this
Agreement, a copy of which warranty is included in Section 3.19(o) of the Company Disclosure
Schedule. During the twelve months prior to the date of this Agreement, the Company, its
Subsidiaries and, to the knowledge of the Company, its agents and distributors, have not received
any warranty claims related to the Company Products that are (i) for amounts in excess of $50,000,
(ii) claims under any “epidemic failure” or similar clause, or (iii) other material claims outside
the ordinary course of business.
(p) To the knowledge of the Company, there are no unresolved security holes, vulnerabilities,
or other defects in the Company Products or information technology systems used in their respective
businesses that would permit unauthorized or unknown access to computers or systems of users of
those Company Products or to the Company or its Subsidiaries information technology systems, except
as has not had and would not reasonably be expected to have, individually or in the aggregate, a
Company Material Adverse Effect. The Company and its Subsidiaries have taken reasonable steps and
implemented reasonable procedures and systems, consistent with standard industry practices, to
prevent such unauthorized or unknown access and to identify, detect and prevent any computer code,
such as viruses or other disruptive or disabling code, from entering Company Products.
(q) The Company and its Subsidiaries maintain policies and procedures regarding data security
and privacy that are commercially reasonable and, in any event, in compliance in all material
respects with all applicable Laws. There have been no security breaches relating to violations of
any security policy regarding or any unauthorized access of any data used in the business of the
Company or its Subsidiaries, except for such breaches that have not had and would not reasonably be
expected to have, individually or in the aggregate, a Company Material Adverse Effect. The use and
dissemination of any and all data and information concerning individuals by their businesses is in
compliance in all material respects with all applicable privacy and data security policies, terms
of use, customer contracts and Laws. The transactions contemplated hereby will not violate any
privacy policy, terms of use or Laws relating to the use, dissemination, or transfer of any such
data or information, nor will such transactions require the Company or any of its Subsidiaries to
provide any notice to, or seek any consent from, any employee, customer, supplier, service provider
or other third party under any policy of the Company relating to data security and privacy.
Section 3.20. Insurance. Section 3.20 of the Company Disclosure Schedule sets forth a
list of all material policies of insurance covering the Company, its Subsidiaries or any of their
employees, properties or assets, including policies of life, property, fire, workers’ compensation,
products liability, and other casualty and liability insurance. All such insurance policies are in
full force and effect, no notice of cancellation has been received thereto, and to the Company’s
knowledge, there is no existing material default or event which, with the giving of notice or lapse
of time or both, would constitute a material default, by any insured thereunder.
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Section 3.21. Related Party Transactions. Except as set forth in any Company SEC
Report filed at least two (2) days prior to the date hereof and no earlier than one year prior to
the date hereof, Section 3.21 of the Company Disclosure Schedule sets forth a true, correct and
complete description of all transactions, agreements, arrangements or understandings that are in
effect as of the date hereof and that would be required to be disclosed by the Company pursuant to
Section 404 of Regulation S-K promulgated under the Exchange Act.
Section 3.22. Vote Required. The affirmative vote of the holders of a majority of the
outstanding Shares, voting together as a class (the “Requisite Stockholder Approval”), is the only
vote of the holders of any class or series of the Company’s capital stock necessary (under
applicable Law or otherwise) to adopt this Agreement. Subject to the accuracy of the
representation set forth in Section 4.9, the Company Board has taken all necessary actions
so that the restrictions on business combinations set forth in Section 203 of the DGCL and any
other similar applicable Law are not applicable to this Agreement and the transactions contemplated
hereby, including the Merger. No proxy statement was filed (whether in preliminary form or
otherwise) with respect to the Prior Agreement on or before February 20, 2011. On or before
February 28, 2011 (the “Prior Agreement Termination Date”), the Company provided a written notice
of termination as of such date (the “Prior Agreement Termination Notice”) to SMSC and Comet
pursuant to and in accordance with Section 7.1(d)(i) of the Prior Agreement and in connection with
such termination, paid on such date to SMSC $7,700,000 in respect of the Termination Fee (as
defined in the Prior Agreement). The Company Board determined on February 21, 2011 that the
Acquisition Proposal (as defined in the Prior Agreement) reflected in the terms of this Agreement
constitutes a Superior Proposal (as defined in the Prior Agreement). On or before the Prior
Agreement Termination Date, the Company Board resolved and made a Company Board Recommendation
Change (as defined in the Prior Agreement) in favor of this Agreement and has not, on or before the
Prior Agreement Termination Date (and on or before execution and delivery of this Agreement by the
Company), withdrawn, modified or rescinded any such determinations (or resolutions) in any manner.
Immediately prior to the sending of the Prior Agreement Termination Notice to SMSC and Comet, the
Company was not in material breach of, had not previously materially breached and, except as set
forth on Section 3.22 of the Company Disclosure Schedule, had not received any notice of allegation
of any breach of, the Prior Agreement and the Company had not received any Acquisition Proposals
(as defined in the Prior Agreement) other than this Agreement since the date of the Prior
Agreement.
Section 3.23. Brokers; Expenses. Except for Qatalyst Partners LP (a true and correct
copy of whose engagement letter has been furnished or made available to Parent), there is no
investment banker, broker, finder, agent or other Person that has been retained by or is authorized
to act on behalf of the Company or any of its Subsidiaries who is entitled to any financial
advisor’s, brokerage, finder’s or other similar type of fee or commission in connection with the
transactions contemplated hereby. Section 3.23 of the Company Disclosure Schedule contains a good
faith estimate of the fees and expenses of any financial advisor, broker, finder, investment
banker, or similar party retained by the Company or any of its Subsidiaries in connection with the
Prior Agreement, this Agreement or the transactions contemplated thereby or hereby payable
conditioned upon the consummation of the transactions contemplated hereby (or thereby), and Section
3.23 of the Company Disclosure Schedule sets forth a good faith estimate of the amount of any
compensation which is or may become payable to any employee, former employee, director, former
director or Affiliate of the Company or any of its Subsidiaries,
38
triggered in whole or in part, by reason of the execution and delivery of the Prior Agreement,
this Agreement or the consummation of the transactions contemplated thereby or hereby, except for
severance obligations to Company employees that would not be payable unless such employees were
terminated without cause by the Company or resigned for good reason.
Section 3.24. Opinion of Financial Advisors. The Company Board has received the
opinion of Qatalyst Partners LP, financial advisor to the Company, to the effect that, as of the
date of such opinion, and based upon and subject to the various qualifications and assumptions set
forth therein, the Merger Consideration to be received by the holders of Company Common Stock
(other than Parent or any Affiliate of Parent) is fair, from a financial point of view, to such
stockholders. A copy of such opinion shall be delivered to Parent as promptly as practicable
following the execution of this Agreement.
Section 3.25. No Other Parent Representations and Warranties. Except for the
representations and warranties set forth in Article IV, the Company hereby acknowledges that
neither Parent or any of its Subsidiaries, nor any of their respective stockholders, directors,
officers, employees, Affiliates, advisors, agents or Representatives, nor any other Person, has
made or is making any other express or implied representation or warranty with respect to the
Parent or any of its Subsidiaries or their respective business or operations, including with
respect to any information provided or made available to the Company.
Subject to Section 8.4, except, with respect to any Section of this Article
IV, as set forth in the section of the disclosure schedule delivered by Parent to the Company
on the date of this Agreement (the “Parent Disclosure Schedule”) that specifically relates to such
Section, Parent and Merger Sub hereby represent and warrant to the Company as follows:
Section 4.1. Organization and Standing. Each of Parent and Merger Sub is a
corporation duly organized, validly existing and in good standing under the Laws of the State of
Delaware, with all requisite corporate power and authority to carry on its business as it is
presently being conducted and to own, lease or operate its properties and assets. Each of Parent
and Merger Sub is duly qualified to do business and is in good standing in each jurisdiction where
the character of its properties owned or leased or the nature of its activities make such
qualification necessary, except where the failure to be so qualified or in good standing would not,
individually or in the aggregate, have or reasonably be expected to have a Parent Material Adverse
Effect. Parent has delivered or made available to the Company complete and correct copies of each
of its and Merger Sub’s certificate of incorporation and bylaws, as amended to date, and each such
instrument is in full force and effect. Each of Parent and Merger Sub is not in violation of its
certificate of incorporation or bylaws.
Section 4.2. Authorization. Each of Parent and Merger Sub has all requisite corporate
power and authority to execute and deliver this Agreement and to consummate the transactions
contemplated hereby and to perform its obligations hereunder. Other than the adoption of this
Agreement by Parent in its capacity as sole stockholder of Merger Sub (which
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shall occur immediately after the execution and delivery of this Agreement), the execution and
delivery of this Agreement by Parent and Merger Sub and the consummation by Parent and Merger Sub
of the transactions contemplated hereby have been duly authorized by all necessary corporate or
other action on the part of Parent and Merger Sub, and no other corporate or other proceeding on
the part of Parent or Merger Sub is necessary to authorize, adopt or approve this Agreement and the
transactions contemplated hereby. This Agreement has been duly executed and delivered by each of
Parent and Merger Sub and, assuming the due authorization, execution and delivery by the Company,
constitutes a legal, valid and binding obligation of each of Parent and Merger Sub, enforceable
against each in accordance with its terms, except that such enforceability (i) may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting
creditors’ rights generally, and (ii) is subject to general principles of equity.
Section 4.3. Non-contravention; Required Consents.
(a) The execution, delivery or performance by Parent and Merger Sub of this Agreement, the
consummation by Parent and Merger Sub of the transactions contemplated hereby and the compliance by
Parent and Merger Sub with the provisions hereof do not and will not (i) violate or conflict with
any provision of the certificates of incorporation or bylaws or other constituent documents of
Parent or Merger Sub, (ii) violate, conflict with, or result in the breach of or constitute a
default (or an event which with notice or lapse of time or both would become a default) under, or
result in the termination of, or accelerate the performance required by, or result in a right of
termination or acceleration under, any Contract to which Parent or Merger Sub is a party or by
which Parent, Merger Sub or any of their properties or assets may be bound, (iii) assuming
compliance with the matters referred to in Section 4.3(b), violate or conflict with any
Order or Law applicable to Parent or Merger Sub or by which any of their properties or assets are
bound or (iv) result in the creation of any Lien, other than Permitted Liens upon any of the
properties or assets of Parent or Merger Sub, other than any such event described in items (ii),
(iii) and (iv) that, individually or in the aggregate, has not had and would not reasonably be
expected to have or result in a Parent Material Adverse Effect.
(b) No Consent of any Governmental Entity is required on the part of Parent, Merger Sub or any
of their Affiliates in connection with the execution, delivery and performance by Parent and Merger
Sub of this Agreement and the consummation by Parent and Merger Sub of the transactions
contemplated hereby, except (i) the filing and recordation of the Certificate of Merger with the
Secretary of State of the State of Delaware, (ii) such filings and approvals as may be required by
any federal or state securities Laws, including compliance with any applicable requirements of the
Exchange Act or by the rules and regulations of Nasdaq and (iii) compliance with any applicable
requirements of the HSR Act and any applicable foreign antitrust, competition or merger control
Laws.
Section 4.4. Litigation. As of the date hereof, there are no Legal Proceedings
pending or, to the knowledge of Parent or Merger Sub, threatened against Parent, any of its
Subsidiaries or any of the respective properties of Parent or any of its Subsidiaries that would
reasonably be expected to have or result in a Parent Material Adverse Effect.
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Section 4.5. Brokers. There is no investment banker, broker, finder, agent or other
Person that has been retained by or is authorized to act on behalf of Parent or any of its
Subsidiaries who is entitled to any financial advisor’s, brokerage, finder’s or other similar type
of fee or commission in connection with the transactions contemplated hereby.
Section 4.6. Availability of Funds; Financing. Parent and Merger Sub have provided to
the Company a true and complete copy of the fully executed equity commitment letter, dated as of
the date hereof, of the Equity Investor (such letter, the “Equity Commitment”), pursuant to which
the Equity Investor has committed to invest the amount set forth therein on the terms and
conditions set forth therein (the “Equity Funding”). The Equity Commitment has not been amended or
modified and the commitment contained in the Equity Commitment has not been withdrawn or rescinded
in any respect (except as permitted by the Equity Commitment). Subject to the terms, conditions
and exceptions set forth therein, the Equity Commitment is in full force and effect and constitutes
the legal, valid and binding obligations of each of Parent, Merger Sub and the Equity Investor,
except that such enforceability (i) may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium and other similar laws affecting creditors’ rights generally, and (ii)
is subject to general principles of equity. No event has occurred which, with or without notice,
lapse of time or both, would constitute a default or breach on the part of Parent, Merger Sub or
the Equity Investor under any term or condition of the Equity Commitment. There are no conditions
precedent related to the investing of the full amount of the Equity Funding, other than the
satisfaction of the conditions precedent to Parent’s and Merger Sub’s obligations hereunder.
Assuming the satisfaction of the conditions precedent to Parent’s and Merger Sub’s obligations
hereunder, Parent and Merger Sub have no reason to believe that the Equity Funding will not be made
available to Parent and Merger Sub on the Closing Date. The net proceeds contemplated by the
Equity Commitment will, together with cash and cash equivalents available to Parent, in the
aggregate be sufficient to consummate the Merger and the other transactions contemplated hereby
(including payment of the aggregate Merger Consideration and payment of Parent and Merger Sub’s
transaction costs and expenses) upon and in accordance with the terms and conditions contemplated
by this Agreement.
Section 4.7. No Prior Activities. None of Parent or Merger Sub has incurred, nor will
it incur prior to the Effective Time, any material liabilities or obligations, except those
incurred in connection with its organization and the negotiation of this Agreement and the
performance of its obligations hereunder and the consummation of the transactions contemplated by
this Agreement and the Equity Commitment, including the Merger and the Equity Funding. Except as
contemplated by this Agreement and the Equity Commitment or in connection with the Merger and the
Equity Funding, none of Parent or Merger Sub has engaged in any business activities of any type or
kind whatsoever, or entered into any agreements or arrangement with any Person, or become subject
to or bound by any material obligation or undertaking and none will occur prior to the Closing.
Section 4.8. Capitalization of Merger Sub. The authorized capital stock of Merger Sub
consists solely of 1,000 shares of common stock, par value $0.01 per share, all of which are
validly issued and outstanding. All of the issued and outstanding capital stock of Merger Sub is,
and at the Effective Time will be, owned by Parent or a direct or indirect wholly-owned Subsidiary
of Parent. Merger Sub has not conducted any business prior to the date hereof
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and has no, and prior to the Effective Time will have no, assets, liabilities or obligations
of any nature other than those incident to its formation and pursuant to this Agreement and the
Merger and the other transactions contemplated by this Agreement.
Section 4.9. Stock Ownership. Neither Parent nor Merger Sub owns or, prior to the
Effective Time, will own, beneficially or of record, any shares of capital stock of the Company.
Section 4.10. No Other Company Representations and Warranties. Except for the
representations and warranties set forth in Article III, Parent and Merger Sub hereby acknowledge
that neither the Company or any of its Subsidiaries, nor any of their respective stockholders,
directors, officers, employees, Affiliates, advisors, agents or Representatives, nor any other
Person, has made or is making any other express or implied representation or warranty with respect
to the Company or any of its Subsidiaries or their respective business or operations, including
with respect to any information provided or made available to Parent or Merger Sub.
ARTICLE V
Section 5.1. Conduct of Business by the Company. Except (i) as expressly contemplated
by this Agreement (ii) as required by Law, or (iii) as described in Section 5.1 of the Company
Disclosure Schedule, during the period from the date hereof to the Effective Time, the Company
shall conduct its business and shall cause its Subsidiaries’ business to be conducted in all
material respects in the ordinary course consistent with past practice, and shall use commercially
reasonable efforts to preserve intact its and its Subsidiaries’ current business organizations,
keep available the service of its and its Subsidiaries’ current officers and employees, and
preserve its and its Subsidiaries’ relationships with customers, suppliers, licensors, and
licensees. Without limiting the generality of the foregoing, except as expressly contemplated by
this Agreement or as described in Section 5.1 of the Company Disclosure Schedule, during
the period from the date hereof to the Effective Time, the Company shall not, and shall not permit
its Subsidiaries to, without the prior written consent of Parent (which consent shall not be
unreasonably withheld, conditioned or delayed, provided, that with respect to Sections
5.1(b), (c), (d), (g) and (u), such consent shall be in
Parent’s sole and absolute discretion, and provided further, that with respect to Section
5.1(r), it shall be subject to the provisions of Section 5.13):
(a) propose or adopt any amendments to its certificate of incorporation or bylaws or
comparable organizational documents;
(b) authorize for issuance, issue, sell, deliver or agree or commit to issue sell or deliver
(whether through the issuance or granting of options, warrants, commitments, subscriptions, rights
to purchase or otherwise) any Company Securities or Company Subsidiary Securities, except for the
issuance and sale of Shares pursuant to awards granted under the Equity Compensation Plans prior to
the date of the Prior Agreement;
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(c) acquire or redeem, directly or indirectly, or amend any Company Securities or Company
Subsidiary Securities (except pursuant to the terms of an Equity Compensation Plan or an award
thereunder with respect to tax withholding obligations arising in connection with such an award);
(d) other than dividends or distributions made by any wholly owned Subsidiary of the Company
to the Company or one of its Subsidiaries, split, combine or reclassify any shares of capital
stock, declare, set aside or pay any dividend or other distribution (whether in cash, shares or
property or any combination thereof) in respect of any shares of capital stock;
(e) propose or adopt a plan of complete or partial liquidation, dissolution, merger,
consolidation, restructuring, recapitalization or other reorganization of the Company or any of its
Subsidiaries (other than the Merger);
(f) (i) incur or assume any long-term or short-term debt or issue any debt securities except
for short-term debt incurred to fund operations of the business in the ordinary course of business
consistent with past practice, (ii) assume, guarantee, endorse or otherwise become liable or
responsible (whether directly, contingently or otherwise) for the obligations of any other Person
except wholly owned Subsidiaries of the Company, (iii) make any loans, advances or capital
contributions to or investments in any other Person (other than loans, advances, capital
contributions or investments by the Company or any of its Subsidiaries to or in a wholly-owned
Subsidiary of the Company) or (iv) mortgage or pledge any of its or its Subsidiaries’ Assets,
tangible or intangible, or create or suffer to exist any Lien thereupon (other than Permitted
Liens);
(g) except (1) as may be required by Law or as expressly contemplated by Section 2.11,
or (2) for ordinary course salary increases consistent with past practice, granted to non-officer
employees, enter into, adopt or amend or terminate any Employee Plan, or any material plan,
program, agreement or arrangement that would be an Employee Plan were it in effect as of the date
hereof, in any material manner or increase in any material manner the compensation or fringe
benefits of any director, officer or employee or pay any benefit not required by any Employee Plan
pursuant to its terms as in effect as of the date hereof;
(h) except for terminations for cause, terminate any Company Employee;
(i) forgive any loans to employees, officers or directors or any of their respective
Affiliates or Associates;
(j) make any deposits or contributions of cash or other property to or take any other action
to fund or in any other way secure the payment of compensation or benefits under the Employee Plans
or agreements subject to the Employee Plans or any other plan, agreement, contract or arrangement
of the Company, except as required pursuant to applicable Law or the terms of the applicable
Employee Plan or plan, agreement, contract or arrangement as in effect as of the date hereof;
(k) enter into, amend or extend any Collective Bargaining Agreement;
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(l) fail to satisfy in any material respect any obligation arising pursuant to the 401(k)
Settlement Agreement;
(m) acquire (whether by merger, consolidation or acquisition of stock or assets), sell, lease,
license or dispose of any business, property, assets, securities or Person (or any equity interest
therein) in any single transaction or series of related transactions, except (i) the purchase of
equipment, supplies or inventory, or the sale of goods or non-exclusive licenses of Intellectual
Property, in each case in the ordinary course of business consistent with past practice, and (ii)
the sale of fixed assets that are not material to the Company and its Subsidiaries, taken as a
whole;
(n) except as may be required as a result of a change in Law or in GAAP, make any material
change in any of the accounting principles or practices used by it;
(o) make or change any material Tax election or settle or compromise any material federal,
state or local income Tax liability or consent to any extension or waiver of any limitation period
with respect to any claim or assessment for material Taxes;
(p) enter into a Material Contract or materially amend any Material Contract or grant any
waiver, release or relinquishment of any material rights under any Material Contract;
(q) grant any exclusive rights with respect to any Company IP, divest any material Company IP,
or modify in any material respects the Company’s standard warranty terms for its products or
services or amend or modify any product or service warranty in effect as of the date hereof in any
material manner that is adverse to the Company or any of its Subsidiaries;
(r) settle or compromise any pending or threatened Legal Proceeding or pay, discharge or
satisfy or agree to pay, discharge or satisfy any Liability, other than (i) the payment, discharge
or satisfaction of Liabilities reflected or reserved against in full in the financial statements of
the Company as of October 1, 2010, (ii) the payment, discharge or satisfaction of Liabilities
solely for cash in amounts not exceeding $100,000 individually or $300,000 in the aggregate, net of
any insurance proceeds received or receivable in connection with such payment, discharge,
settlement or satisfaction, or (iii) payments, discharges or satisfaction of Liabilities incurred
in the ordinary course of business consistent with past practice subsequent to October 1, 2010;
provided, that notwithstanding the immediately preceding sub-clauses (i), (ii) and (iii), no
settlement or compromise, payment, discharge, waiver or other satisfaction will be made without the
prior written consent of Parent regarding any claim arising from termination of the Prior Agreement
or from this Agreement or from the transactions contemplated thereby or hereby;
(s) except as required by applicable Law or GAAP, revalue any of its properties or Assets
including writing-off notes or accounts receivable other than in the ordinary course of business
consistent with past practice;
(t) abandon, cancel or allow to lapse or fail to maintain or protect any Company IP other than
in the ordinary course of business consistent with past practice;
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(u) take any of the actions set forth in Section 5.1(u) of the Company Disclosure
Schedule; or
(v) (i) enter into an agreement, contract, commitment or arrangement to do any of the
foregoing or that, except to the extent affecting only the Company and its Subsidiaries, in any way
restricts the ability of the Company or any of its Subsidiaries or any Affiliate of the Company to
engage or compete in any line of business or any market or (ii) knowingly take any action that
results in or is reasonably likely to result in any of the conditions to the Merger set forth in
Article VI not being satisfied.
Section 5.2. Proxy Statement; Company Stockholders Meeting.
(a) If, after February 20, 2011, SMSC files with the SEC any registration statement containing
a proxy statement of the Company with respect to the Prior Agreement, the Company will promptly use
commercially reasonably efforts to cause SMSC as soon as practicable to withdraw such Registration
Statement or amend it to remove from such registration statement the portion that is a proxy
statement of the Company. As promptly as practicable after the execution and delivery of this
Agreement, the Company shall prepare and file with the SEC in preliminary form a proxy statement of
the Company for use in connection with the solicitation of proxies for the Merger-Related Proposals
as well as proposals relating to the Company’s annual meeting set forth on Section 5.2(a) of the
Company Disclosure Schedule (collectively with the Merger-Related Proposals, the “Company
Stockholder Meeting Proposals”) to be considered at the Company Stockholders Meeting (such proxy
statement, as may be amended or supplemented from time to time, the “Proxy Statement”). Each of
the Company and Parent shall, and shall cause its respective Representatives to, fully cooperate
with the other party hereto and its respective Representatives in the preparation of the Proxy
Statement, and shall furnish the other party hereto with all information concerning it and its
Affiliates as the other party hereto may deem reasonably necessary or advisable in connection with
the preparation of the Proxy Statement, and any amendment or supplement thereto, and each of Parent
and the Company shall provide the other party with a reasonable opportunity to review and comment
thereon. As promptly as practicable after the Company has filed the definitive Proxy Statement
with the SEC, Parent and the Company shall cause the Proxy Statement to be disseminated to the
stockholders of the Company.
(b) Unless the Company Board shall have effected a Company Board Recommendation Change in
compliance with the terms and conditions set forth in this Agreement, the Proxy Statement shall
include the Company Board Recommendation.
(c) Except as otherwise set forth in this Agreement or as may be required by applicable Law or
Order, the Company shall not effect any amendment or supplement to the Proxy Statement without the
prior consent of Parent (which consent shall not be unreasonably withheld, delayed or conditioned);
provided that the Company, in connection with a Company Board Recommendation Change, may
amend or supplement the Proxy Statement pursuant to a Qualifying Amendment to effect such change.
A “Qualifying Amendment” means an amendment or supplement to the Proxy Statement to the extent it
contains (i) a Company Board Recommendation Change, (ii) a statement of the reasons of the Company
Board for making such
45
Company Board Recommendation Change and (iii) additional information reasonably related to or
in anticipation of any of the foregoing.
(d) The Proxy Statement shall comply in all material respects as to form and substance with
the requirements of the Exchange Act. Without limiting the generality of the foregoing, the
information supplied or to be supplied by any party hereto for inclusion or incorporation by
reference in the Proxy Statement shall not, on the date the Proxy Statement (or any amendment
thereof or supplement thereto) is first mailed to stockholders, or at the time of the Company
Stockholders Meeting, 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. The information supplied or to be
supplied by or on behalf of either party hereto for inclusion in any filing pursuant to Rule 14a-12
under the Exchange Act (each, a “Regulation M-A Filing”) shall not, at the time any such Regulation
M-A Filing is filed with the SEC, 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. Without
limiting the generality of the foregoing, prior to the Effective Time, Parent and the Company shall
notify each other as promptly as practicable upon becoming aware of any event or circumstance which
should be described in an amendment of, or supplement to, the Proxy Statement so that any such
document would not include any misstatement of material fact or omit to state any material fact
necessary to make the statements therein, in light of the circumstances under which they are made,
not misleading, and as promptly as practicable thereafter, an appropriate amendment or supplement
describing such information shall be filed with the SEC and, to the extent required by applicable
Law or the SEC, disseminated to the stockholders of the Company. Parent and the Company shall each
notify the other as promptly as practicable after the receipt by it of any written or oral comments
of the SEC or its staff on, or of any written or oral request by the SEC or its staff for
amendments or supplements to, the Proxy Statement or any Regulation M-A Filing, and shall promptly
supply the other with copies of all correspondence between it or any of its Representatives and the
SEC or its staff with respect to any of the foregoing filings. Prior to mailing the Proxy
Statement to stockholders (or filing or mailing any amendment thereof or supplement thereto), the
Company (i) shall provide Parent with a reasonable opportunity to review and comment on such
document or response, (ii) shall include in such document or response all comments reasonably and
timely proposed by Parent and (iii) shall not file or mail such document or respond to the SEC
prior to receiving Parent’s approval, which approval shall not be unreasonably withheld,
conditioned or delayed.
(e) The Company shall establish a record date for, call, give notice of, convene, hold, and
take a vote of stockholders on (i) the adoption of this Agreement in accordance with the DGCL (the
“Merger Proposal”), (ii) the approval of the adjournment of such meeting to a later date, if
necessary, to solicit additional proxies if there are insufficient votes at the time of the meeting
to adopt this Agreement (the “Adjournment Proposal”), and (iii) if required by SEC rules and
regulations, the approval of any executive officer compensation (present, deferred, or contingent)
paid or payable by the Company and relating to the transactions contemplated hereby, including the
aggregate total of such compensation and the conditions upon which it may be paid, if any
(collectively, the proposals described in clauses (i), (ii) and (iii) of this Section
5.2(e) are referred to herein as the “Merger-Related Proposals”) at a
46
meeting of the Company stockholders (the “Company Stockholders Meeting”) as promptly as
practicable following the date hereof (which, if reasonably practicable, shall be within forty (40)
days following the date on which the Proxy Statement is first disseminated to Company
stockholders). Unless the Company Board has effected a Company Board Recommendation Change
pursuant to and in accordance with the terms of Section 5.3, the Company Board shall use
its commercially reasonable efforts to obtain the Requisite Stockholder Approval at the Company
Stockholders Meeting or any postponement or adjournment thereof, including by soliciting proxies
from Company stockholders in favor of the adoption of the Merger Agreement, it being agreed that,
unless the Company stockholders have approved the Adjournment Proposal at the Company Stockholders
Meeting or any adjournment or postponement thereof, the Company shall not adjourn or postpone the
Company Stockholders Meeting without the prior written consent of Parent (which consent shall not
be unreasonably withheld, conditioned or delayed). At the Company Stockholders Meeting, the
Company shall submit to a vote of its stockholders the Merger-Related Proposals. Except as
required by applicable Law or in compliance with the Company’s bylaws with respect to properly
submitted stockholder proposals, the Company shall not propose for consideration or submit for a
vote any matters at the Company Stockholders Meeting (or an adjournment of the Company Stockholders
Meeting, if permitted hereunder) other than the Company Stockholder Meeting Proposals without the
prior written consent of Parent. Except as required by applicable Law, the Company shall not
establish a record date for, call, give notice of, convene or hold any meeting of the Company
stockholders unless and until the Company Stockholders Meeting has been held, a vote of the Company
stockholders has been taken on the Merger Proposal and the Company Stockholders Meeting has been
adjourned. Notwithstanding anything to the contrary set forth in this Agreement, the Company’s
obligations under this Section 5.2 shall not be terminated, superseded, limited, modified
or otherwise affected by the commencement, disclosure, announcement or submission to the Company of
any Acquisition Proposal, or by any Company Board Recommendation Change (whether or not in
compliance with the terms hereof). For the avoidance of doubt, the Company shall not be required
to hold the Company Stockholders Meeting if this Agreement is validly terminated in accordance with
Section 7.1.
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Section 5.3. No Solicitation.
(a) The Company shall not, shall cause each of its Subsidiaries and each officer and director
of the Company or of any of its Subsidiaries not to, and shall use commercially reasonable efforts
to cause any other Representative of the Company or any of its Subsidiaries not to, directly or
indirectly, (i) solicit, initiate or knowingly take any action to facilitate or encourage the
making, submission of or announcement of any Acquisition Proposal, (ii) participate or engage in
any discussions or negotiations regarding, or furnish to any Third Party any non-public information
with respect to, or knowingly take any action to facilitate any inquiries or the making of any
proposal that constitutes, or would reasonably be expected to lead to, any Acquisition Proposal or
(iii) release any (A) Third Party from any standstill agreement or (B) Third Party that would
reasonably be expected to make an Acquisition Proposal from any confidentiality agreement to which
the Company is a party, or fail to reasonably enforce or grant any material waiver, request or
consent to any Acquisition Proposal under, any such agreement. The Company shall, and shall cause
each Subsidiary of the Company and the Company’s and each such Subsidiary’s respective
Representatives to, immediately cease and terminate any existing solicitation, encouragement,
activity, discussion or negotiation heretofore conducted by the Company, any Subsidiary of the
Company or their respective Representatives with respect to any Acquisition Proposal. It is
understood that any violation of the restrictions of this Section 5.3(a) by any
Representative of the Company or any Subsidiary of the Company shall be deemed a breach of this
Section 5.3(a) by the Company.
(b) Notwithstanding the restrictions set forth in Section 5.3(a), if, prior to the
receipt of the Requisite Stockholder Approval, in response to an unsolicited written Acquisition
Proposal received after the date of this Agreement from a Third Party that has not resulted from a
material breach or violation of Section 5.3(a) and that the Company Board in good faith
determines (after consultation with its financial advisor and outside legal counsel) is, or would
reasonably be expected to result in or lead to, a Superior Proposal and that the failure to take
such action would reasonably be expected to result in a breach of the fiduciary duties of the
Company Board to the Company’s stockholders under applicable Law, the Company and its
Representatives may, subject to the Company giving Parent at least twenty-four hours prior written
notice (which notice shall contain the identity of the Third Party making such Acquisition
Proposal, a copy of the Acquisition Proposal if it is in writing or otherwise a description of the
material terms and conditions pertinent thereto and a statement to the effect that the Company
Board has made the determination required by this Section 5.3(b) in respect thereof and the
Company intends to furnish non-public information to, or enter into discussions or negotiations
with, such Third Party making such Acquisition Proposal), (i) furnish information with respect to
the Company and each Subsidiary of the Company to the Third Party making such Acquisition Proposal
and its Representatives pursuant to a confidentiality agreement containing terms no less favorable
to the Company than the terms of the Confidentiality Agreement, and (ii) engage in such
negotiations or discussions with the Third Party that made such Acquisition Proposal as the Company
Board shall determine. To the extent any information furnished to a Third Party pursuant to this
Section 5.3(b) was not previously furnished or made available to Parent, the Company shall
furnish or make available a copy of such information to Parent promptly and in any event within
twenty-four hours from the time such information is furnished to the Third Party. The Company shall
provide Parent with a correct and complete copy of any confidentiality
48
agreement entered into pursuant to this paragraph within twenty-four hours of the execution
thereof.
(c) Except as otherwise permitted by Section 5.3(d) or Section 5.3(e), neither
the Company Board nor any committee thereof shall (i) fail to make the Company Board Recommendation
to holders of Company Common Stock, (ii) withdraw, qualify, modify, change or amend (or propose
publicly to withdraw, qualify, modify, change or amend) in any manner adverse to Parent or Merger
Sub, the Company Board Recommendation or (iii) approve or recommend or propose publicly to approve
or recommend, any Acquisition Proposal (it being understood that, only with respect to a tender
offer or exchange offer, taking a neutral position or no position (other than in a communication
made in compliance with Rule 14d-9(f) promulgated under the Exchange Act) with respect to any
Acquisition Proposal shall be considered a breach of this clause (iii)), (any of the foregoing in
clause (i), (ii) or (iii), a “Company Board Recommendation Change”) or (iv) authorize the Company
to, and the Company shall not, enter into any agreement, agreement-in-principle, memorandum of
understanding or letter of intent with respect to, or accept, any Acquisition Proposal (other than
a confidentiality agreement pursuant to and in accordance with Section 5.3(b)).
(d) Notwithstanding the provisions of this Section 5.3, at any time prior to the
Requisite Stockholder Approval, if the Company Board has received an Acquisition Proposal (that has
not been withdrawn) that constitutes a Superior Proposal, the Company Board may make a Company
Board Recommendation Change if prior to the Company Board taking any such action:
(i) the Company Board in good faith determines (after consultation with its outside
legal counsel) that the failure to take such action would reasonably be expected to result
in a breach of the fiduciary duties of the Company Board under applicable Law;
(ii) the Company shall have (A) provided to Parent a written notice, which notice shall
(x) state that the Company has received an Acquisition Proposal which the Company Board has
determined is a Superior Proposal and that the Company Board intends to take such action and
the manner in which it intends or may intend to do so and (y) include the identity of the
Third Party making such Superior Proposal, the most current written draft agreement relating
to the transaction that constitutes such Superior Proposal and all related transaction
agreements to which the Company would be a party, and (B) given such notice to Parent at
least four Business Days prior to taking any such action (it being understood that any
material amendment to the terms of such Superior Proposal shall require a new notice and a
new four Business Day period) and given Parent during such four Business Day period the
opportunity to meet or negotiate with the Company Board and its outside legal counsel, as
would permit the Company not to effect a Company Board Recommendation Change or take such
action pursuant to Section 7.1(d)(i) in response to such a Superior Proposal;
(iii) if Parent shall have delivered to the Company, within four Business Days after
receipt by Parent of such notice, a written proposal capable of being accepted to amend the
terms contemplated by this Agreement, the Company Board shall have in good faith determined
(after consultation with outside legal counsel), after considering the
49
terms of such proposal by Parent, that the failure to make a Company Board
Recommendation Change would reasonably be expected to result in a breach of its fiduciary
duties under applicable Law; and
(iv) the Company concurrently terminates this Agreement pursuant to Section
7.1(d)(i) and enters into a binding written agreement concerning a transaction that
constituted such Superior Proposal.
(e) The Company Board may also make a Company Board Recommendation Change at any time prior to
the receipt of the Requisite Stockholder Approval in the absence of a Superior Proposal if a
material fact, event, change, development or set of circumstances that was not known by the Company
Board as of or at any time prior to the date of this Agreement (and not relating in any way to any
Acquisition Proposal) (such material fact, event, change, development or set of circumstances, an
“Intervening Event”) shall have occurred and be continuing and prior to effecting such Company
Board Recommendation Change:
(i) the Company Board in good faith determines (after consultation with its outside
legal counsel) that, in light of such Intervening Event, the failure to take such action
would reasonably be expected to result in a breach of the fiduciary duties of the Company
Board under applicable Law;
(ii) the Company Board shall have (A) provided to Parent a written notice, which notice
shall (x) state that an Intervening Event has occurred and that the Company Board intends to
take such action and (y) describe the Intervening Event in reasonable detail and (B) given
such notice to Parent at least four Business Days prior to taking any such action and given
Parent during such four Business Day period the opportunity to meet or negotiate with the
Company Board and its outside legal counsel as would permit the Company not to effect a
Company Board Recommendation Change; and
(iii) if Parent shall have delivered to the Company a written proposal capable of being
accepted to amend the terms contemplated by this Agreement, within four Business Days after
receipt of such notice, the Company Board shall have in good faith determined (after
consultation with outside legal counsel), after considering the terms of such proposal by
Parent, that the failure to effect a Company Board Recommendation Change would reasonably be
expected to result in a breach of its fiduciary duties under applicable Law.
(f) Nothing contained in this Section 5.3 shall prohibit the Company or the Company
Board from (i) taking and disclosing to the holders of Company Common Stock a position with respect
to a tender or exchange offer by a Third Party pursuant to Rules 14d-9 and 14e-2(a) promulgated
under the Exchange Act and (ii) making any disclosure to the holders of Company Common Stock if the
Company Board in good faith determines (after consultation with its outside legal counsel) that the
failure to make such disclosure would reasonably be expected to be a breach of its fiduciary duties
under applicable Law; provided, however, that in no event shall this Section
5.3(f) affect the obligations of the Company set forth in Section 5.3.
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(g) In addition to the other obligations of the Company set forth in this Section
5.3, the Company shall promptly, and in any case within twenty-four hours of its receipt,
advise Parent orally and in writing of any request for information with respect to any Acquisition
Proposal, or any inquiry with respect to or which could reasonably be expected to result in an
Acquisition Proposal, and the material terms and conditions of such request, Acquisition Proposal
or inquiry, including the identity of the Third Party or group making any such Acquisition Proposal
and a copy of all written materials provided in connection with such Acquisition Proposal. The
Company shall keep Parent informed on a reasonably current basis of the status and material terms
and conditions (including all amendments or proposed amendments) of any such Acquisition Proposal
or inquiry and shall promptly provide to Parent a copy of all written materials subsequently
provided to or by the Company in connection with such Acquisition Proposal.
Section 5.4. Access to Information.
(a) From the date hereof to the Effective Time and subject to applicable Law, upon reasonable
notice, the Company shall, and shall cause its officers, directors and employees to, (i) provide
Parent and its Representatives with reasonable access during normal business hours to the
facilities, properties, employees (including all persons involved in the preparation of the
Company’s financial statements, internal controls, disclosure controls and procedures and financial
reporting processes), books and records of the Company and its Subsidiaries and use commercially
reasonable efforts to cause the Company’s and its Subsidiaries’ consultants and independent public
accountants to provide reasonable access to their work papers and such other information as Parent
may reasonably request, and (ii) furnish or make available to Parent and its Representatives such
financial and operating data and other information with respect to the business and properties of
the Company and its Subsidiaries as Parent may from time to time reasonably request.
(b) Notwithstanding Section 5.4(a), the Company may restrict or otherwise prohibit
access to any documents or information to the extent that (i) any applicable Law requires the
Company to restrict or otherwise prohibit access to such documents or information, (ii) access to
such documents or information would give rise to a material risk of waiving any attorney-client
privilege, work product doctrine, trade secret protection or other privilege applicable to such
documents or information, or (iii) access to a Contract to which the Company or any of its
Subsidiaries is a party or otherwise bound would violate or cause a default under, or give a third
party the right to terminate or accelerate the rights under, such Contract; provided, that
if the Company does not provide access or information in reliance on the foregoing, it shall use
its commercially reasonable efforts to communicate the applicable information to Parent in a way
that would not violate the applicable Law, Contract or obligation or give rise to such a waiver.
No information or knowledge obtained by Parent or its Representatives in any investigation
conducted pursuant to the access contemplated by this Section 5.4 shall affect or be deemed
to modify any representation or warranty of the Company set forth in this Agreement or otherwise
impair the rights and remedies available to Parent and Merger Sub hereunder.
(c) From and after the date hereof to the Effective Time, each of Parent and the Company shall
promptly notify the other upon obtaining knowledge that any representation or warranty made by such
party in this Agreement has become untrue or inaccurate in any
51
material respect or that such party
has breached or failed to comply with or satisfy in any material respect any covenant, condition or
agreement to be complied with or satisfied by such party under this Agreement.
(d) Each of Parent and the Company shall, and shall cause its Representatives to, hold all
documents and information furnished to it in connection with the transactions contemplated by this
Agreement pursuant to the terms of that certain Mutual Non-Disclosure Agreement entered into
between the Company and Golden Gate Private Equity, Inc., dated January 22, 2011 (the
“Confidentiality Agreement”).
Section 5.5. Governmental Filings.
(a) Subject to the terms and conditions of this Agreement, each of Parent and the Company
agrees to use its commercially reasonable efforts to make any filings required or in the parties’
reasonable opinion advisable pursuant to the HSR Act and any applicable foreign antitrust,
competition or merger control Laws (the “Antitrust Laws”) with respect to the transactions
contemplated hereby as promptly as practicable and use its commercially reasonable efforts to seek
the expiration or termination of the applicable waiting periods or to obtain any Consents under the
Antitrust Laws, as soon as practicable.
(b) With respect to any matters relating to or proceedings under the Antitrust Laws
(collectively “Antitrust Matters”), the parties agree to (i) give each other reasonable advance
notice of all meetings with any Governmental Entity relating to any Antitrust Matter, (ii) to the
extent permitted by such Governmental Entity, not participate independently in any such meeting
without first giving the other party (or the other party’s outside counsel) an opportunity to
attend and participate in such meeting, (iii) to the extent practicable, give the other party
reasonable advance notice of all substantive oral communications with any Governmental Entity
relating to any Antitrust Laws, (iv) if any Governmental Entity initiates a substantive oral
communication regarding any Antitrust Law, promptly notify the other party of the substance of such
communication, (v) provide each other with a reasonable advance opportunity to review and comment
upon and consider in good faith the views of the other in connection with all written
communications (including any analyses, presentations, memoranda, briefs, arguments, opinions and
proposals made or submitted by or on behalf of any party hereto relating to proceedings under the
Antitrust Laws) with a Governmental Entity regarding any Antitrust Laws and (vi) promptly provide
each other with copies of all written communications to or from any Governmental Entity relating to
any Antitrust Matters.
Section 5.6. Approvals and Consents. The parties shall cooperate with each other and
use their commercially reasonable efforts to obtain all necessary or advisable (in the parties’
reasonable opinion) Consents, including, without limitation, (a) all Consents of any Governmental
Entity including those described in Section 5.5 and (b) all Consents set forth in Section
3.5(b) of the Company Disclosure Schedule or described in Section 3.5(b), in connection
with the consummation of the transactions contemplated by this Agreement. Subject to the terms and
conditions of this Agreement, in taking such actions or making any such filings, the parties hereto
shall furnish information required in connection therewith and seek to obtain any such Consents as
soon as practicable.
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Section 5.7. Employee Benefits.
(a) Parent agrees to cause the Company, for the period beginning on the Closing Date and
ending no earlier than December 31 of the year in which the Closing Date occurs, to provide each
Company Employee who is actively employed by the Company or a Subsidiary of the Company as of the
Closing Date (such Company Employees, the “Transferred Employees”) with (i) a level of wages or
base salary that is at least equal to the level of wages or base salary which such Transferred
Employee was eligible to receive as of immediately prior to the Closing Date, (ii) severance
benefit protections for each Transferred Employee that are no less favorable to the Transferred
Employee than those referenced on Section 3.15 of the Company Disclosure Schedule and applicable to
such employee, and (iii) employee benefits (excluding any bonus, retention, change in control or
equity or equity-based plan, program or arrangement), which, in the aggregate, are no less
favorable than the employee benefits (excluding any bonus, retention, change in control or equity
or equity-based plan, program or arrangement) which such Transferred Employee was eligible to
receive as of immediately prior to the Closing Date; provided, however, that
neither Parent nor any of its Affiliates shall be obligated, to continue to employ any Transferred
Employee or (except as contemplated by clause (ii) above) maintain any particular employee benefit
plan for any specific period of time following the Closing Date.
(b) To the extent permissible under applicable Law, for all purposes (including for purposes
of eligibility, vesting (other than vesting for future equity awards) and levels of benefits, such
as the amount of any vacation, sick days, severance, layoff and similar benefits, but not for
benefit accrual purposes) under any “employee benefit plan” (as such term is defined in Section
3(3) of ERISA, but without regard to whether the applicable plan is subject to ERISA), program or
arrangement established or maintained by Parent or any of its Affiliates providing benefits to any
Transferred Employee (including any previously-established plan, program or arrangement covering
any Transferred Employee) (the “Parent Plans”) on or after the Closing Date, each Transferred
Employee shall be credited for all service credited to such Transferred Employee under similar
plans, programs or arrangements maintained by the Company or its Subsidiaries as of the Closing
Date in addition to service earned with Parent or any of Parent’s Affiliates after the Closing
Date, to the same extent as such Current Employee was entitled, before the Closing Date, to credit
for such service under any similar Employee Plan in which such Current Employee participated or was
eligible to participate immediate prior to the Closing Date; provided, however,
that Parent and its Affiliates shall have no obligation to credit any prior service of a
Transferred Employee pursuant to this Section 5.7(b) to the extent such service credit
would result in a duplication of benefits.
(c) From and after the Closing Date, Parent shall (i) cause any pre-existing conditions or
limitations and eligibility waiting periods under any U.S. group health plans of Parent or its
Affiliates to be waived with respect to the Transferred Employees and their eligible dependents and
(ii) give each of the Transferred Employees in the U.S. credit for the plan year in which the
Effective Time occurs toward applicable deductibles and annual out of pocket limits for expenses
incurred prior to the Closing Date for which payment has been made.
(d) As soon as reasonably practicable after the date hereof, but in no event later than (x)
the fifteenth Business Day immediately following the date hereof, with respect to
53
each individual
listed on Section 5.7(d) of the Company Disclosure Schedule and (y) five Business Days prior to the
anticipated Closing Date, with respect to each “disqualified individual” of the Company (as defined
in Section 280G(c) of the Code) (other than those individuals listed on Section 5.7(d) of the
Company Disclosure Schedule) that the Company determines in good faith reasonably will have
“parachute payments” (within the meaning of Section 280G of the Code) as a result of the
transactions contemplated by this Agreement, the Company shall furnish to Parent a schedule that
sets forth (A) the Company’s reasonable, good faith estimate of the amount of such parachute
payments (separately identifying each individual parachute payment) payable to each such
individual, (B) the “base amount” (as defined in Section 280G(b)(3) of the Code) for each such
disqualified individual and (C) such underlying documentation as is reasonably requested by Parent
to support the calculations described in clauses (A) and (B) above. The Company shall use good
faith efforts to provide to Parent reasonably sufficient evidence that the maximum amount that
could be paid to any individual not described in clauses (x) and (y) above will not result in any
amount failing to be deductible by reason of Section 280G of the Code. The Company may make good
faith assumptions in preparing such estimates, which assumptions shall be outlined in the
estimates.
(e) Unless otherwise requested by Parent prior to the Closing, the Company shall take all
necessary corporate action to terminate the Conexant Retirement Savings Plan in a manner that
complies with applicable Law, effective as of the date immediately prior to the Closing Date, but
contingent on the Closing. Prior to the Effective Time, Parent shall receive from the Company
evidence that the Company Board has adopted resolutions (previously approved by Parent, which
approval shall not unreasonably be withheld) to terminate such Plan, effective as of the date
immediately preceding the Closing Date but contingent on the Closing.
(f) The parties hereto acknowledge and agree that all provisions contained in this Section
5.7 are included for the sole benefit of the respective parties hereto and shall not create any
right (i) in any other Person, including any employees (including any Company Employee), former
employees, any participant or any beneficiary thereof in any Employee Plan or employee benefit plan
sponsored or maintained by Parent, or (ii) to continued employment with the Company, any of its
Subsidiaries, Parent or the Surviving Corporation. After the Effective Time, nothing contained in
this Section 5.7 is intended to be or shall be considered to be an amendment of any plan,
program, agreement, arrangement or policy of the Company, any of its Subsidiaries, Parent or the
Surviving Corporation, nor shall it interfere with Parent’s, the Surviving Corporation’s or any of
their Subsidiaries’ right to amend, modify or terminate any Employee Plan or any other plan,
program or arrangement or to terminate the employment of any employee of the Company or its
Subsidiaries for any reason.
Section 5.8. Public Announcements. Except with respect to any Company Board
Recommendation Change pursuant to Section 5.3, the Company, Merger Sub and Parent shall
consult with each other before issuing any press releases or otherwise making any public statements
with respect to this Agreement or the transactions contemplated hereby, and none of the parties
shall issue any press release or make any public statement prior to obtaining the other parties’
written consent, which consent shall not be unreasonably withheld or delayed, except that no such
consent shall be necessary to the extent disclosure may be required by Law, Order or applicable
stock exchange or Nasdaq rule or any listing agreement of any party hereto; provided,
that the party required to make such disclosure shall use its commercially reasonable
54
efforts to
allow the other party or parties hereto reasonable time to comment on such release or announcement
in advance of such issuance (it being understood that the final form and content of any such
disclosure, as well as the timing of any such disclosure, shall be at the final discretion of the
disclosing party).
Section 5.9. Indemnification; Advancement; Insurance.
(a) For a period of not less than the applicable statutes of limitation, the Surviving
Corporation shall, and Parent shall cause the Surviving Corporation to, comply with all obligations
of the Company that were in existence or in effect as of the date hereof, under Law, its
certificate of incorporation, bylaws or by contract, relating to the exculpation, indemnification
and advancement of expenses to any current or former officer or director of the Company or any of
its Subsidiaries or any Person who becomes a director or officer of the Company or any of its
Subsidiaries prior to the Effective Time (the “Indemnified Persons”). Each Indemnified Person, and
his or her heirs and legal representatives, is intended to be a third party beneficiary of this
Section 5.9 and may specifically enforce its terms. This Section 5.9 shall not
limit or otherwise adversely affect any rights any Indemnified Person may have under any agreement
with the Company or any of its Subsidiaries, under the Company’s or any such Subsidiary’s
certificate of incorporation, bylaws or other organization documents or otherwise under applicable
Law. From and after the Effective Time, the certificate of incorporation and bylaws of the
Surviving Corporation will contain provisions with respect to exculpation, advancement of expenses
and indemnification that are at least as favorable to the Indemnified Parties as those contained in
the certificate of incorporation and bylaws of the Company as in effect on the date hereof, which
provisions will not be amended, repealed or otherwise modified for a period of six years from the
Effective Time in any manner that would adversely affect the rights thereunder of Indemnified
Parties, unless such modification is required by applicable Law.
(b) For a period of six years following the Effective Time, the Surviving Corporation shall,
and Parent shall cause the Surviving Corporation to, maintain policies of directors’ and officers’
liability insurance covering each Indemnified Person or other person currently covered by the
officers’ and directors’ liability insurance policies of the Company with respect to claims arising
from facts or events that occurred on or prior to the Effective Time and providing at least the
same coverage and amounts and containing terms that in the aggregate are not less advantageous to
the insured parties than those contained in the policies of directors’ and officers’ liability
insurance in effect as of the date hereof (the “Current Policy Coverage”); provided,
however, that in no event shall the Surviving Corporation be required to expend, per annum,
in excess of 300% of the annual premium currently paid by the Company for such coverage;
provided, further, that if the annual premium required to provide the foregoing
insurance exceeds 300% of the annual premium currently paid by the Company, the Surviving
Corporation shall, and Parent shall cause the Surviving Corporation to, provide a policy that the
Surviving Corporation reasonably believes has the greatest coverage as can be purchased for such
premium. Prior to the Effective Time, notwithstanding anything to the contrary set forth in this
Agreement, the Company may, without Parent’s prior consent, purchase a six-year “tail” prepaid
policy on the Current Policy Coverage at a cost per year covered for such tail policy not to exceed
the Maximum Amount, and such “tail” policy shall satisfy the provisions of this Section
5.9(b).
55
(c) Without limiting the generality of the provisions of Section 5.9(a), during the
period commencing at the Effective Time and ending on the sixth anniversary of the Effective Time,
the Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, indemnify and
hold harmless each Indemnified Person from and against, and advance expenses to each Indemnified
Person in respect of, any costs, fees and expenses (including reasonable attorneys’ fees and
investigation expenses), judgments, fines, losses, claims, damages, liabilities and amounts paid in
settlement in connection with any claim, action, suit, proceeding, investigation or inquiry,
whether civil, criminal, administrative or investigative, to the extent such claim, proceeding,
investigation or inquiry arises out of or pertains to (i) any action or omission or alleged action
or omission in such Indemnified Person’s capacity as a director, officer, employee or agent of the
Company or any of its Subsidiaries (regardless of whether such action or omission, or alleged
action or omission, occurred prior to, at or after the Effective Time), or (ii) any of the
transactions contemplated by this Agreement; provided, however, that if, at any
time prior to the sixth anniversary of the Effective Time, any Indemnified Person delivers to
Parent or the Surviving Corporation a written notice asserting a claim for indemnification under
this Section 5.9(c), then the claim asserted in such notice shall survive the sixth
anniversary of the Effective Time until such time as such claim is fully and finally resolved.
(d) The obligations of Parent and the Surviving Corporation under this Section 5.9
shall survive the consummation of the Merger and shall not be terminated or modified in such a
manner as to adversely affect any Indemnified Person to whom this Section 5.9 applies
without the consent of such affected Indemnified Person (it being expressly agreed that the
Indemnified Persons to whom this Section 5.9 applies shall be third party beneficiaries of
this Section 5.9, each of whom may enforce the provisions of this Section 5.9).
The rights of the Indemnified Persons under this Section 5.9 shall be in addition to, and
not in substitution for, any other rights that such persons may have under the certificates of
incorporation, bylaws or other equivalent organizational documents, any and all indemnification
agreements of or entered into by the Company or any of its Subsidiaries, or applicable Law (whether
at law or in equity).
(e) If Parent or the Surviving Corporation or any of their respective successors or assigns
(i) consolidates with or merges into any other Person and shall not be the continuing or surviving
corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of
its properties and assets to any Person, then and in each such case, proper provision shall be made
so that the successors and assigns of Parent or the Surviving Corporation, as the case may be,
assume the obligations set forth in this Section 5.9.
(f) Nothing in this Agreement is intended to, shall be construed to or shall release, waive or
impair any rights to Current Policy Coverage claims under any policy that is or has been in
existence with respect to the Company or any of its Subsidiaries for any of their respective
directors, officers or other employees, it being understood and agreed that the indemnification
provided for in this Section 5.9 is not prior to or in substitution for any such claims
under such policies.
Section 5.10. Commercially Reasonable Efforts. Subject to the terms and conditions
herein provided, each of the parties hereto shall use its commercially reasonable efforts to take,
or cause to be taken, all actions and to do, or cause to be done, all things
56
reasonably necessary,
proper or advisable under applicable Laws to consummate and make effective, in the most expeditious
manner possible, the transactions contemplated by this Agreement, including (a) vigorously
contesting any Legal Proceeding or Order adversely affecting the ability of the parties to
consummate the transactions contemplated hereby and (b) executing any additional instruments
reasonably necessary to consummate the transactions contemplated hereby; provided,
however, that none of Parent, Merger Sub or the Company shall be required under this
Agreement to divest any portion of the business of Parent, any Subsidiary of Parent, the Company or
any Subsidiary of the Company that, in each case, is material to the Company and its Subsidiaries,
taken as a whole, or Parent and its Subsidiaries, taken as a whole, as applicable (and the Company
shall not take any such action without the prior written approval of Parent). Subject to the terms
and conditions of this Agreement, each of the parties hereto agrees to use all commercially
reasonable efforts to cause the Effective Time to occur as soon as practicable. If at any time
after the Effective Time any further action is necessary to carry out the purposes of this
Agreement, the proper officers and directors of each party hereto shall take all such necessary
action.
Section 5.11. Section 16 Matters. Prior to the Effective Time, the Company shall
cause any dispositions of Company Common Stock (including derivative securities with respect to
Company Common Stock) resulting from the transactions contemplated by this Agreement by each
individual who is subject to the reporting requirements of Section 16(a) of the Exchange Act with
respect to the Company to be exempt under Rule 16b-3 promulgated under the Exchange Act.
Section 5.12. Takeover Laws. If any state takeover Law or similar Law becomes
applicable to this Agreement, the Merger or any of the other transactions contemplated by this
Agreement, each party shall use commercially reasonable efforts to ensure that 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 Law on this
Agreement, the Merger and the other transactions contemplated by this Agreement.
Section 5.13. Stockholder Litigation. The Company shall give Parent the opportunity
to participate in the defense or settlement of any stockholder litigation against the Company
and/or its directors relating to the Merger and the other transactions contemplated by this
Agreement or the Prior Agreement, and except as set forth in Section 5.13 of the Company Disclosure
Schedule, no such settlement shall be agreed to without the prior written consent of Parent.
Section 5.14. Equity Funding.
(a) Subject to the terms and conditions of this Agreement, Parent and Merger Sub shall take,
or cause to be taken, all actions and do, or cause to be done, all things necessary, proper or
advisable to arrange and obtain the Equity Commitment, and shall not permit any amendment or
modification to be made to, or any waiver of any provision or remedy under, the Equity Commitment
if such amendment, modification or waiver would (i) reduce the aggregate amount of the Equity
Funding, or (ii) impose new or additional conditions, or otherwise amend, modify or expand any
conditions, to the receipt of the Equity Funding, in any such case of (i) or
57
(ii) above in a manner
that would reasonably be expected to (A) delay or prevent the Closing Date, (B) make the
consummation of the Equity Funding (or satisfaction of the conditions to obtaining the Equity
Funding) less likely to occur or (C) adversely impact the ability of Parent, Merger Sub or the
Company to enforce its rights against the Equity Investor, the ability of Parent or Merger Sub to
consummate the Merger or the likelihood of consummation of the Merger. Parent and Merger Sub shall
(I) maintain in effect the Equity Commitment (including any definitive agreements entered into in
connection with any the Equity Commitment), (II) satisfy on a timely basis all conditions in the
Equity Commitment applicable to Parent and Merger Sub to obtaining the Equity Funding, (III)
consummate the Equity Funding at or prior to the Closing, and (IV) fully enforce the Equity
Investor’s obligations and Parent’s rights under the Equity Commitment. From and after the time
Parent or Merger Sub receives any portion of the Equity Funding until such time as Parent and
Merger Sub no longer have any obligations under this Agreement, Parent and Merger Sub shall not
take actions to use any portion of the Equity Funding for any purpose other than to satisfy its
obligations under this Agreement.
(b) Parent acknowledges and agrees that consummation of the Equity Funding is not a condition
to the Closing, and reaffirms its obligation to consummate the Merger irrespective and independent
of the availability or completion of the Equity Funding.
Section 5.15. Actions in Connection with the Company’s Debt.
(a) At any time from time to time after the date hereof, the Company shall, and shall cause
its Subsidiaries to, use their respective commercially reasonable efforts to commence, promptly
after the receipt of a written request from Parent to do so, one or more offers to purchase (a
“Debt Offer”) and/or consent solicitations (a “Consent Solicitation”) with respect to the
outstanding 11.25% Notes on the terms and conditions specified by Parent, and Parent shall assist
the Company in connection therewith. The Company agrees that, assuming the requisite consents are
received, it shall, and shall cause its Subsidiaries, and use commercially reasonable efforts to
cause the other parties to the agreements and documents relating to the 11.25% Notes, as
applicable, to, execute supplemental indentures or amendments, as applicable, to implement any
proposed consent, amendment, supplement or waiver. Notwithstanding the foregoing, (i) the closing
of any Debt Offer shall be conditioned on the completion of the Merger, (ii) no Consent
Solicitation shall result in a consent, amendment, supplement or waiver with respect to the
Indenture that is effective prior to the Closing and adverse to the Company in any material respect
(other than payment of any consent fee for which the Company is immediately reimbursed by Parent)
and (iii) any Debt Offer or Consent Solicitation shall otherwise be consummated in compliance with
applicable Law and SEC rules and regulations. The Company shall use its commercially reasonable
efforts to provide, and to cause its Subsidiaries and their respective Representatives to provide,
cooperation reasonably requested by Parent in connection with any Debt Offer or Consent
Solicitation. If requested by Parent in writing, in lieu of commencing a Debt Offer or Consent
Solicitation for the 11.25% Notes (or in addition thereto), the Company shall use its commercially
reasonable efforts to, to the extent permitted by the terms and conditions applicable to the 11.25%
Notes (including the Indenture), issue a notice of optional redemption for all of the outstanding
principal amount of the 11.25% Notes in accordance with the terms and conditions applicable thereto
(including the Indenture); provided, that no action described in this sentence shall be required to
be taken unless it can be conditioned on the occurrence of the Effective Time. Subject to the
Company’s
58
compliance with Section 5.15(b), Parent shall arrange for the Surviving
Corporation to have at the Effective Time sufficient funds necessary to consummate the closing of
any Debt Offer or redemption that is being consummated as of the Closing Date. The Company shall
facilitate access to Parent and its Representatives to the holders of the 11.25% Notes and shall
cooperate with, and participate in, discussions with such holders, in each case to the extent
reasonably requested by Parent.
(b) At any time from time to time after the date hereof, the Company shall provide, and shall
cause its Subsidiaries to provide, and shall use its commercially reasonable efforts to cause each
of its and their respective Representatives, including legal, tax, regulatory and accounting, to
provide, all cooperation reasonably requested by Parent in connection with any debt financing (the
“Potential Financing”) that Parent determines to be reasonably necessary or desirable in connection
with any of the actions described in Section 5.15(a) or otherwise in connection with the
11.25% Notes, including, subject to customary representations and confidentiality requirements, (i)
providing information relating to the Company and its Subsidiaries to any parties that Parent
reasonably anticipates may provide commitments with respect to, or otherwise participate in, the
Potential Financing (the “Potential Financing Sources”), (ii) to the extent reasonably requested by
Parent, assisting in preparation of customary offering or information documents to be used for the
arrangement and/or completion of the Potential Financing, including the provision of information
necessary to produce the business plan, financial projections and pro forma financial statements
reasonably requested by Parent, (iii) making available Representatives of the Company to
participate in customary meetings, presentations and due diligence sessions with rating agencies
and prospective Potential Financing Sources, (iv) executing and delivering, and causing its
Subsidiaries to execute and deliver, documents and instruments relating to guarantees and other
matters ancillary to the Potential Financing as may be reasonably requested by Parent as necessary
and customary in connection with the Potential Financing, (v) providing authorization letters to
Potential Financing Sources in respect of the distribution of information to prospective lenders or
investors, (vi) providing audited consolidated financial statements of the Company covering the
three (3) fiscal years immediately preceding the Closing for which audited consolidated financial
statements are currently available, unaudited financial statements (excluding footnotes) for any
interim period or periods of the Company ended after the date of the most recent audited financial
statements and at least 45 days prior to the Closing Date (within 45 days after the end of each
such period) and (vii) reasonable assistance to Parent in satisfying the conditions precedent to
the funding of any Potential Financing; provided , however, that until the Effective Time occurs,
neither the Company nor any of its Subsidiaries shall (A) be required to pay any commitment or
other similar fee, (B) have any liability or any obligation under any credit agreement or any
related document or any other agreement or document related to the Potential Financing or (C) be
required to incur any other liability in connection with the Potential Financing unless reimbursed
or indemnified by Parent to the reasonable satisfaction of the Company.
(c) Parent (i) shall promptly, upon request by the Company, reimburse the Company for all
reasonable out of pocket costs (including reasonable attorneys’ fees) incurred by the Company, any
of its Subsidiaries or their respective Representatives after the date hereof in connection with
the actions of the Company and its Subsidiaries and their Representatives contemplated by
Sections 5.15(a) and (b), (ii) acknowledges and agrees that the Company, its
59
Subsidiaries and their respective Representatives shall not incur any liability to any person prior
to the Effective Time with respect to any Debt Offer, Consent Solicitation or redemption of the
11.25% Notes and (iii) shall indemnify and hold harmless the Company, its Subsidiaries and their
respective Representatives from and against any and all losses, damages, claims, costs or expenses
suffered or incurred by any of them in connection with the transactions contemplated by
Sections 5.15(a) and (b).
(d) Parent acknowledges and agrees that neither (i) the pendency or consummation of any Debt
Offer, Consent Solicitation or redemption with respect to the 11.25% Notes nor (ii) the
availability to Parent of any Potential Financing is a condition to Parent’s and Merger Sub’s
obligations to consummate the Merger and the other transactions contemplated by this Agreement.
ARTICLE VI
Section 6.1. Conditions to Each Party’s Obligation to Effect the Merger. The
respective obligations of the parties to effect the Merger are subject to the satisfaction at or
prior to the Effective Time of the following conditions:
(a) Stockholder Approval. The Requisite Stockholder Approval shall have been
obtained.
(b) Regulatory Approvals. (i) All Consents of any Governmental Entity required to
consummate the transactions contemplated by this Agreement, including the Merger, as set forth in
Section 3.5(b) shall have been obtained or (ii) any waiting period (and any extensions
thereof) applicable to consummation of the Merger under the HSR Act and, to the extent material,
under any foreign Antitrust Laws shall have expired or been terminated.
(c) No Injunctions or Restraints; Illegality. No provision of any applicable Law or
Order shall have been enacted, entered, promulgated or enforced by any Governmental Entity that
prohibits, restrains, enjoins or prevents the consummation of the Merger.
Section 6.2. Conditions to Obligations of Parent and Merger Sub. The obligation of
Parent and Merger Sub to effect the Merger is also subject to the satisfaction, or waiver by
Parent, at or prior to the Effective Time, of the following conditions:
(a) Representations and Warranties. The representations and warranties of the Company
contained in this Agreement shall be true and correct on the date hereof and as of the Effective
Time as though made on and as of the Effective Time, except:
(i) for any failure to be so true and correct that, individually or in the aggregate,
has not had and would not reasonably be expected to have a Company Material Adverse Effect
(it being understood that for all purposes of determining the accuracy of such
representations and warranties (other than Section 3.9(b)), all references to the
term “Company Material Adverse Effect” and materiality qualifications and other
qualifications based on the word “material” contained in such representations and
60
warranties
shall be disregarded); provided, however, that the representations and warranties contained in (A) Section 3.3, Section 3.22, Section 3.23
and Section 3.24 of the Agreement shall be true and correct in all material respects
and (B) Sections 3.2(b) and (c) and Sections 3.4(a), (b) and
(c) shall be true and correct in all but de minimis respects (the representations
and warranties identified in the foregoing clauses (A) and (B), the “Identified Company
Representations”); and
(ii) for those representations and warranties which address matters only as of a
particular date, which representations and warranties shall have been true and correct in
accordance with the applicable standard described in clause (i) above as of such particular
date.
For purposes of this Section 6.2(a), “de minimis” means any breach of or inaccuracy
in any one or more of the representations and warranties of the Company set forth in
Sections 3.2(b) and (c) and Section 3.4(a), (b) and
(c) that would give rise to or result in any increased Liabilities, damages or costs
to Parent or the Company by more than $1,775,000 in the aggregate.
(b) Performance of Obligations of the Company. The Company shall have performed in
all material respects all obligations required to be performed by it under this Agreement at or
prior to the Effective Time.
(c) No Company Material Adverse Effect. Since the date hereof, there shall not have
been any circumstance, development, event, condition, effect or change that, individually or in the
aggregate, has had or would reasonably be expected to have a Company Material Adverse Effect.
(d) Certificate. Parent shall have received a certificate with respect to the
conditions in clauses (a), (b) and (c) of this Section 6.2 above signed on behalf of
Company by its chief executive officer or chief financial officer.
Section 6.3. Conditions to Obligations of the Company. The obligation of the Company
to effect the Merger is also subject to the satisfaction or waiver by the Company at or prior to
the Effective Time of the following conditions:
(a) Representations and Warranties. The representations and warranties of Parent and
Merger Sub contained in this Agreement shall be true and correct on the date hereof and as of the
Effective Time as though made on and as of the Effective Time (except that those representations
and warranties which address matters only as of a particular date shall have been true and correct
only on such date), except as has not had and would not, individually or in the aggregate,
reasonably be expected to have a Parent Material Adverse Effect (it being understood that for all
purposes of determining the accuracy of such representations and warranties, all references to the
term “material adverse effect” and materiality qualifications and other qualifications based on the
word “material” contained in such representations and warranties shall be disregarded);
provided, however, that the representations and warranties contained in Section
4.9 shall be true and correct in all material respects.
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(b) Agreements and Covenants. Parent and Merger Sub each shall have performed in all
material respects all obligations required to be performed by it under this Agreement at or prior
to the Effective Time.
(c) [reserved]
(d) Certificate. Company shall have received a certificate with respect to the
conditions in clauses (a), (b) and (c) of this Section 6.3 signed by an authorized senior
executive officer of Parent.
ARTICLE VII
Section 7.1. Termination. This Agreement may be terminated and the Merger may be
abandoned at any time prior to the Effective Time whether before or after receipt of the Requisite
Stockholder Approval:
(a) by mutual written consent of Parent and the Company;
(b) by either Parent or the Company if:
(i) the Merger shall not have not been consummated by July 31, 2011 (the “Outside
Date”); provided, that no party may terminate this Agreement pursuant to this
Section 7.1(b)(i) if such party’s material breach of this Agreement shall have been
a principal cause of or resulted in the failure of the Merger to be consummated on or before
such date; or
(ii) (A) there shall be any applicable Law that makes the transactions contemplated by
this Agreement illegal or otherwise prohibited or (B) any Governmental Entity having
competent jurisdiction shall have issued a final Order or taken any other final action
restraining, enjoining or otherwise prohibiting the transactions contemplated by this
Agreement and such Order or other action is or shall have become nonappealable;
provided, that the party seeking to terminate pursuant to this Section
7.1(b)(ii)(B) shall have used its commercially reasonable efforts to challenge such
Order or other action;
(c) by either the Company (provided that it shall not be in material breach of any of its
obligations under Section 5.3) or Parent (i) if the Requisite Stockholder Approval shall
not have been obtained at the Company Stockholders Meeting or at any adjournment or postponement
thereof permitted hereunder at which a vote on such approval was taken, (ii) if there are holders
of insufficient shares of the Company Common Stock present or represented by a proxy at the Company
Stockholders Meeting to constitute a quorum necessary to conduct the business of the Company
Stockholders Meeting and at such meeting there is no approval of the adjournment thereof to a later
date or (iii) if the Company Stockholder Meeting shall not have occurred by July 26, 2011
(provided, that no Company Stockholder Meeting shall have occurred or be deemed to have occurred
for purposes of the foregoing clause (iii) unless at such meeting a valid Requisite Stockholder
Approval vote was actually taken);
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(d) by the Company if:
(i) prior to the receipt of the Requisite Stockholder Approval, the Company Board has
effected a Company Board Recommendation Change in response to a Superior Proposal pursuant
to and in compliance with Section 5.3 in order substantially concurrently to enter
into a binding written agreement concerning a transaction that constitutes a Superior
Proposal and immediately prior to or contemporaneously with such termination pays to Parent
by wire transfer in immediately available funds the Termination Fee (and expense
reimbursement) required to be paid pursuant to Section 7.3; or
(ii) Parent or Merger Sub shall have materially breached or failed to perform any of
its representations, warranties, covenants or agreements set forth in this Agreement such
that a condition set forth in Section 6.3(a) or (b)is not capable of being
satisfied on or before the Outside Date;
(e) by Parent if:
(i) either (A) any member of the Company Board or any executive officer of the Company
or (B) any other Representative of the Company acting at the direction of (or acting with
the authorization of) any member of the Company Board or any executive officer of the
Company shall have violated or breached (or be deemed pursuant to the terms thereof, to have
violated or breached) in any material respect any provision of Section 5.3;
(ii) the Company Board or any Committee thereof shall have effected a Company Board
Recommendation Change (whether or not in compliance with Section 5.3);
(iii) after a tender offer or exchange offer is commenced that, if successful, would
result in any Third Party becoming a beneficial owner of 20% or more of the outstanding
Shares, the Company Board shall have failed to recommend within ten Business Days after
commencement of such tender offer or exchange offer that the Company’s stockholders not
tender their Shares in such tender or exchange offer;
(iv) the Company Board shall have failed to reconfirm the Company Board Recommendation
promptly, and in any event within ten Business Days, following Parent’s request to do so; or
(v) the Company shall have materially breached or failed to perform any of its
representations, warranties, covenants or agreements set forth in this Agreement such that a
condition set forth in Section 6.2(a), (b) or (c) is not capable of
being satisfied on or before the Outside Date.
The party desiring to terminate this Agreement pursuant to this Section 7.1 (other
than pursuant to Section 7.1(a)) shall give notice of such termination to the other party
in accordance with Section 8.2, specifying the provision or provisions hereof pursuant to
which such termination is effected.
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Section 7.2. Effect of Termination. In the event of the termination of this Agreement
and abandonment of the Merger pursuant to Section 7.1, this Agreement shall forthwith
become void and have no effect without any liability on the part of any party (or its Affiliates,
directors, officers or stockholders) to the other parties hereto; provided, that nothing
herein shall relieve any party from liability for any willful and material breach of this Agreement
prior to such termination. The provisions of Section 5.4(d), the last sentence of
Section 5.14, Section 5.15(c), this Section 7.2, Section 7.3 and
Article VIII shall survive any termination hereof pursuant to Section 7.1.
Section 7.3. Termination Fees.
(a) If this Agreement is terminated by the Company pursuant to Section 7.1(d)(i),
prior to or contemporaneously with and as a condition to the effectiveness of such termination, the
Company shall pay Parent a fee in immediately available funds in the amount of $7,700,000 (the
“Termination Fee”).
(b) If this Agreement is terminated by Parent pursuant to Section 7.1(e) (other than
pursuant to clause (v) thereof), then the Company shall promptly, but in no event later than three
Business Days after termination of this Agreement, pay Parent the Termination Fee.
(c) If this Agreement is terminated, other than pursuant to Section 7.1(a),
Section 7.1(b), Section 7.1(d)(ii) or Section 7.4, then the Company shall
promptly, but in no event later than one Business Day after termination of this Agreement, in
addition to any amounts payable pursuant to Section 7.3(a) and 7.3(b) (and
7.3(d) below), pay Parent an amount equal to Parent’s expenses, not to exceed $1,000,000
(the “Expense Cap”), incurred by or on behalf of Parent (including by its stockholders or
Affiliates, and including, subject to the Expense Cap, all fees and expenses of counsel,
accountants, investment bankers, financing sources, hedging counterparties, experts and consultants
to any of them) in connection with or related to the transactions contemplated hereby, including
the authorization, preparation, negotiation, execution and performance of this Agreement and the
Equity Commitment and any Potential Financing, in immediately available funds, as directed by
Parent in writing.
(d) If this Agreement is terminated pursuant to Section 7.1(b)(i) or Section
7.1(e)(v) and (i) at any time on or after the date hereof and prior to such termination a bona
fide Acquisition Proposal shall have been made to the Company Board or the Company or publicly
announced, and (ii) within twelve months after the date of such termination, the Company enters
into a definitive acquisition agreement (or other Contract setting forth the material terms of the
Acquisition Proposal) with respect to any transaction specified in the definition of “Acquisition
Proposal” or any such transaction is consummated, then the Company shall pay Parent the Termination
Fee no later than three Business Days after such event. For purposes of this Section
7.3(d), references in the definition of “Acquisition Proposal” to “20%” and “80%”shall be
replaced by a “majority.”
(e) The Company acknowledges that the agreements contained in this Section 7.3 are an
integral part of the transactions contemplated by this Agreement, and that, without these
agreements, Parent would not have entered into this Agreement; accordingly, if the Company fails to
promptly pay any amounts due pursuant to this Section 7.3 and, in order to
64
obtain such
payment, Parent commences a suit which results in a judgment against the Company for the
Termination Fee, the Company shall pay to Parent Parent’s reasonable costs and expenses (including
reasonable attorneys’ fees and expenses of enforcement) in connection with such suit, together with
interest on the amounts owed at the prime lending rate prevailing at such time, as published in the
Wall Street Journal, plus two percent per annum from the date such amounts were required to be paid
until the date actually received by Parent. The Company acknowledges that it is obligated to pay to
Parent any amounts due pursuant to this Section 7.3 regardless of whether the stockholders
of the Company have adopted this Agreement.
Section 7.4. Termination due to Non-Acceptance. Notwithstanding anything contained in
this Agreement to the contrary, this Agreement may be terminated, and the Merger may be abandoned
without liability on the part of any party hereto, by Parent if:
(a) The Prior Agreement has not been validly terminated, and in connection therewith,
$7,700,000 has not been paid to SMSC in respect of the Termination Fee (as defined in the Prior
Agreement) prior to 5:00 P.M. Pacific Standard Time on February 28, 2011; or
(b) Any disclosure schedule is attempted to be delivered prior to 5:00 P.M. Pacific Standard
Time on February 28, 2011, by or on behalf of the Company to Parent or Merger Sub in respect of
this Agreement containing disclosures other than those in the Company Disclosure Schedule that was
delivered in writing and accepted by Parent on February 21, 2011; or
(c) The Company has not duly executed and delivered this Agreement to Parent and Merger Sub
prior to 5:00 P.M. Pacific Standard Time on February 28, 2011.
Parent shall give notice of any termination of this Agreement pursuant to this Section 7.4
to the Company in accordance with Section 8.2, specifying the provision hereof pursuant to
which such termination is effected. In the event of the termination of this Agreement and
abandonment of the Merger pursuant to this Section 7.4, this Agreement (other than the
effect of this Section 7.4) shall forthwith become void and have no effect without any
liability on the part of any party (or its Affiliates, directors, officers or stockholders) to any
other parties hereto.
ARTICLE VIII
Section 8.1. Representations and Warranties. The representations and warranties made
herein and in any document delivered pursuant hereto shall not survive beyond the Effective Time or
a termination of this Agreement. This Section 8.1 shall not limit any covenant or
agreement of the parties hereto which by its terms requires performance after the Effective Time.
Section 8.2. Notices. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if delivered personally, mailed by certified
mail (return receipt requested), or sent by overnight courier, facsimile (upon confirmation of
receipt) or e-mail transmission to the parties at the following addresses or at such other
addresses as shall be specified by the parties by like notice:
65
(a) | if to the Company: | |||||
Conexant Systems, Inc. | ||||||
0000 XxxXxxxxx Xxxxxxxxx | ||||||
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000-0000 | ||||||
Attention: | Xxxx X. Xxxxxxxx | |||||
E-mail: | xxxx.xxxxxxxx@xxxxxxxx.xxx | |||||
Fax: | (000) 000-0000 | |||||
with a copy to: | ||||||
O’Melveny & Xxxxx LLP | ||||||
000 Xxxxxxx Xxxxxx Xxxxx, 00xx Xxxxx | ||||||
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000 | ||||||
Attention: | Xxxxx X. Xxxxxx | |||||
E-mail: | xxxxxxx@xxx.xxx | |||||
Fax: | (000) 000-0000 | |||||
(b) | if to Parent or Merger Sub: | |||||
Gold Holdings, Inc. | ||||||
c/o Golden Gate Private Equity, Inc. | ||||||
Xxx Xxxxxxxxxxx Xxxxxx, 00xx Xxxxx | ||||||
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000 | ||||||
Attention: | Xxxx Xxxxx | |||||
Fax: | (000) 000-0000 | |||||
with a copy to: | ||||||
Xxxxxxxx & Xxxxx LLP | ||||||
000 Xxxxxxxxxx Xx, Xxxxx 0000 | ||||||
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000 | ||||||
Attention: | Xxxxxxx X. Xxxxxx, Esq. | |||||
Xxxxxx X. Xxxxx, Esq. | ||||||
Fax: | (000) 000-0000 |
Notice so given shall (in the case of notice so given by mail or overnight courier) be deemed
to be given when received and (in the case of notice so given by facsimile, e-mail transmission or
personal delivery) on the date of actual transmission or (as the case may be) personal delivery.
66
Section 8.3. Expenses. Except as otherwise provided herein, each of the parties
hereto will bear all legal, accounting, investment banking and other fees, expenses and costs
incurred by it or on its behalf in connection with the transactions contemplated by this Agreement,
whether or not such transactions are consummated.
Section 8.4. Disclosure Generally. A matter set forth in one item of either the
Company Disclosure Schedule or Parent Disclosure Schedule need not be set forth in any other item
of such Schedule so long as its relevance to the other sections or subsections of such Schedule or
section of this Agreement is reasonably apparent on the face of the information disclosed in such
Schedule (without reference to the underlying documents referenced therein). The fact that any
item of information is disclosed in either the Company Disclosure Schedule or Parent Disclosure
Schedule shall not be construed to (a) mean that such information is required to be disclosed by
this Agreement; (b) represent a determination that (i) such item is material or establishes a
standard of materiality, (ii) such item did not arise in the ordinary course of business, or (iii)
the Merger requires the consent of third parties; or (c) constitute, or be deemed to be, an
admission to any third party concerning such item. Such information and the dollar thresholds set
forth herein shall not be used as a basis for interpreting the terms “material,” “Parent Material
Adverse Effect” or “Company Material Adverse Effect” or other similar terms in this Agreement.
Section 8.5. Amendment. This Agreement may be amended by action taken by Parent and
by action taken by or on behalf of the respective boards of directors of Merger Sub and the Company
at any time before the Effective Time; provided, however, that after the adoption
of this Agreement by the stockholders of the Company, no amendment shall be made which under the
DGCL requires further approval by such stockholders without obtaining such further approval. This
Agreement may be amended only by an instrument in writing signed by the parties hereto.
Section 8.6. Extension; Waiver. At any time prior to the Effective Time, any party
hereto may (a) extend the time for the performance of any of the obligations or other acts of the
other parties hereto, (b) waive any inaccuracies in the representations and warranties of the other
parties contained herein or in any document, certificate or writing delivered pursuant hereto or
(c) subject to the proviso of Section 8.5, waive compliance by the other parties with any
of the agreements or conditions contained herein. Any agreement on the part of any party hereto to
any such extension or waiver shall be valid only against such party and only if set forth in an
instrument, in writing, signed by such party. The failure or delay by any party hereto to assert
any of its rights hereunder shall not constitute a waiver of such rights nor shall any single or
partial assertion of a right preclude any other or further assertion thereof or the exercise of any
other right. The rights and remedies herein provided shall be cumulative and not exclusive of any
rights or remedies provided by Law.
Section 8.7. Binding Effect; Assignment. This Agreement shall be binding upon and
inure solely to the benefit of each party hereto and its successors and permitted assigns and,
except (a) as provided in Section 5.9 and (b) from and after the Effective Time, the rights
of stockholders of the Company to receive the Merger Consideration set forth in Article II, nothing
in this Agreement express or implied is intended to or shall confer upon any other Person any
rights, benefits or remedies of any nature whatsoever under or by reason of this Agreement.
67
This
Agreement shall not be assigned by operation of law or otherwise without the prior written consent
of the other parties hereto and any attempted assignment in violation of this Section 8.7
shall be null and void and of no effect.
Section 8.8. Governing Law. This Agreement and the transactions contemplated hereby
shall be governed by and construed in accordance with the laws of the State of Delaware without
regard to the principles of conflicts of law thereof.
Section 8.9. Jurisdiction.
(a) Each of the parties hereto (i) consents to submit itself, and hereby submits itself, to
the personal jurisdiction of the Court of Chancery of the State of Delaware and any court of the
United States located in the State of Delaware, in the event of any Legal Proceeding seeking to
enforce any provision of, or based on any matter arising out of or in connection with, this
Agreement or the transactions contemplated hereby, (ii) agrees that it will not attempt to deny or
defeat such personal jurisdiction by motion or other request for leave from any such court, and
agrees not to plead or claim any objection to the laying of venue in any such court or that any
judicial proceeding in any such court has been brought in an inconvenient forum, (iii) agrees that
it will not bring any action relating to this Agreement or any of the transactions contemplated by
this Agreement in any court other than the Court of Chancery of the State of Delaware or, if under
applicable law exclusive jurisdiction is vested in the Federal courts, any court of the United
States located in the State of Delaware and (iv) consents to service of process being made through
the notice procedures set forth in Section 8.2.
(b) Without limiting other means of service of process permissible under applicable Law, each
of the Company, Parent and Merger Sub hereby agrees that service of any process, summons, notice or
document by U.S. registered mail to the respective addresses set forth in Section 8.2 shall
be effective service of process for any suit or proceeding in connection with this Agreement or the
transactions contemplated hereby.
(c) EACH PARTY WAIVES ANY RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY LEGAL PROCEEDING BASED ON
ANY MATTER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
Section 8.10. Severability. If any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced by any rule of law, or public policy, all other
conditions and provisions of this Agreement shall nevertheless remain in full force and effect so
long as the economic or legal substance of the transactions contemplated hereby is not affected in
any manner adverse to any party. Upon such determination that any term or other provision is
invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith
to modify this Agreement so as to effect the original intent of the parties as closely as possible
in an acceptable manner to the end that transactions contemplated hereby are fulfilled to the
maximum extent possible.
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Section 8.11. Descriptive Headings. The descriptive headings herein are inserted for
convenience of reference only and are not intended to be part of or to affect the meaning or
interpretation of this Agreement.
Section 8.12. Counterparts. This Agreement may be executed in any number of
counterparts and by different parties hereto in separate counterparts, and delivered by means of
facsimile transmission or other electronic transmission, each of which when so executed and
delivered shall be deemed to be an original and all of which when taken together shall constitute
one and the same agreement.
Section 8.13. Entire Agreement. This Agreement (including the Company Disclosure
Schedule and the Parent Disclosure Schedule), the Equity Commitment and the Confidentiality
Agreement constitute the entire agreement between the parties hereto with respect to the subject
matter hereof and thereof and supersede all other prior agreements and understandings both written
and oral between the parties with respect to the subject matter hereof and thereof.
Section 8.14. Enforcement. The parties agree that irreparable damage would occur in
the event that any of the provisions of this Agreement or the Equity Commitment were not performed
in accordance with their specific terms or were otherwise breached. It is accordingly agreed that
the parties shall be entitled to equitable relief without the requirement of posting a bond or
other security, including to an injunction or injunctions to prevent breaches of this Agreement and
to enforce specifically the terms and provisions of this Agreement (including to cause Parent to
enforce the obligations of the Equity Investor under the Equity Commitment in order to cause the
Equity Funding to be timely completed, which actions would be expected to include Parent calling
the Equity Commitment), this being in addition to any other remedy to which they are entitled at
law or in equity. Notwithstanding anything else contained in this Agreement, in no event shall the
collective damages payable by Parent, Merger Sub or any of their affiliates, for breaches under
this Agreement or the Equity Commitment exceed the amount of the Commitment (as defined in the
Equity Commitment) in the aggregate for all such breaches.
* * * * *
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GOLD HOLDINGS, INC. |
||||
By: | /s/ Xxxx Xxxxx | |||
Name: | Xxxx Xxxxx | |||
Title: | Secretary | |||
GOLD ACQUISITION CORP. |
||||
By: | /s/ Xxxx Xxxxx | |||
Name: | Xxxx Xxxxx | |||
Title: | Secretary | |||
CONEXANT SYSTEMS, INC. |
||||
By: | /s/ D. Xxxxx Xxxxxx | |||
Name: | D. Xxxxx Xxxxxx | |||
Title: | Chairman and Chief Executive Officer | |||
{Agreement
and Plan of Merger}
List of Omitted Schedules and Exhibits
Pursuant to Item 601(b)(2) of Regulation S-K, the following exhibits and disclosure letters to the
Merger Agreement have been omitted from this Exhibit 2.1:
• | Company Disclosure Letter | |
• | Exhibit A — Certificate of Incorporation |
Any omitted exhibit, schedule or similar attachment will be furnished supplementally to the SEC
upon request.