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Exhibit 2.02
AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION (this "AGREEMENT") is made
and entered into as of October 24, 1995 (the "AGREEMENT DATE") by and between
Intuit Inc., a Delaware corporation ("INTUIT"), and GALT Technologies, Inc., a
Pennsylvania corporation ("GALT").
RECITALS
A. The parties intend that, subject to the terms and conditions of this
Agreement, a Delaware corporation to be designated by Intuit that is a
wholly-owned subsidiary of Intuit ("INTUIT SUB") shall be merged with and into
GALT in a statutory merger (the "MERGER"), with GALT to be the surviving
corporation of the Merger, all pursuant to the terms and conditions of this
Agreement and applicable law.
B. The Merger is intended to be a tax-free plan of reorganization under
Section 368(a) of the Internal Revenue Code of 1986, as amended (the "CODE"),
and is intended by the parties to qualify for "pooling of interests" accounting
treatment.
C. Upon the effectiveness of the Merger, all the capital stock of GALT
("GALT CAPITAL STOCK") outstanding immediately prior thereto shall be converted
into shares of the common stock of Intuit plus cash for eliminated fractional
shares, the employee stock options to purchase shares of GALT common stock that
are outstanding immediately prior to the Effective Time under GALT's 1995 Stock
Option Plan shall be assumed by Intuit and converted into options to purchase
Intuit common stock as provided herein and Intuit Sub shall be merged with and
into GALT, all as provided herein.
NOW, THEREFORE, in consideration of the facts set forth in the
foregoing recitals and the agreements and conditions set forth herein, the
parties hereby agree as follows:
1. CERTAIN DEFINITIONS. As used in this Agreement, the following terms
shall have the meanings set forth below:
1.1 The "MERGER" shall mean the merger of Intuit Sub with and into GALT
(or, if Intuit so elects pursuant to Section 2.11 hereof, the merger of GALT
with and into Intuit Sub) contemplated by this Agreement.
1.2 "EFFECTIVE TIME" means the time and date on which an Agreement of
Merger in substantially the form of Exhibit A hereto (the "AGREEMENT OF MERGER")
regarding the Merger and conforming to the requirements of Section 252 of the
Delaware General Corporation Law is filed with the Delaware Secretary of State
pursuant to Section 252 of the Delaware General Corporation Law and Articles of
Merger regarding the Merger and conforming to the requirements of Section 1926
of the Pennsylvania Business Corporation Law (the "ARTICLES OF MERGER") are
filed with the Pennsylvania Department of State pursuant to Section 1926 of the
Pennsylvania Business Corporation Law and the Merger becomes effective under
Delaware and Pennsylvania law.
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1.3 "INTUIT COMMON STOCK" means the Common Stock, $0.01 par value, of
Intuit.
1.4 "INTUIT PRICE PER SHARE" means $47.275, which is the average of the
closing prices of Intuit Common Stock as quoted on the Nasdaq National Market
System and reported in The Wall Street Journal for the ten (10) trading days
ending on (and inclusive of) October 18, 1995.
1.5 "GALT COMMON STOCK" means the Common Stock, $0.01 par value, of
GALT.
1.6 "GALT SERIES A PREFERRED STOCK" means the Series A Participating
Preferred Stock, $0.01 par value, of GALT.
1.7 "GALT STOCK" means GALT Common Stock and GALT Series A Preferred
Stock, collectively.
1.8 "GALT OPTIONS" means options to purchase GALT Common Stock from
GALT granted by GALT to GALT employees under GALT's 1995 Stock Option Plan (the
"GALT OPTION PLAN").
1.9 "GALT DERIVATIVE SECURITIES" means, collectively, (a) any warrant,
option, right or other security that entitles the holder thereof to purchase or
otherwise acquire any shares of the capital stock of GALT ("GALT WARRANTS"); (b)
any note, evidence of indebtedness, stock or other security that is convertible
into or exchangeable for any shares of the capital stock of GALT or any GALT
Warrant ("GALT CONVERTIBLE SECURITY"); and (c) any, warrant, option, right or
other security that entitles the holder thereof to purchase or otherwise acquire
any GALT Convertible Security or any GALT Warrant; provided, however, that the
term "GALT Derivative Securities" does not include any GALT Options.
1.10 "FULLY DILUTED GALT SHARES" means that number of shares of GALT
Common Stock that is equal to the sum of: (a) the total number of shares of GALT
Common Stock that are issued and outstanding immediately prior to the Effective
Time; plus (b) the total number of shares of GALT Common Stock, if any, that are
directly or indirectly ultimately issuable by GALT upon the exercise, conversion
or exchange of all GALT Derivative Securities (including but not limited to
shares of GALT Series A Preferred Stock) that are issued and outstanding
immediately prior to the Effective Time (but excluding the shares of GALT Common
Stock, if any, that are ultimately issuable upon the exercise of all GALT
Options that are issued and outstanding immediately prior to the Effective
Time).
1.11 "GALT DISSENTING SHARES" means any shares of GALT Stock that are
held by a GALT shareholder as to which dissenter's rights to require the payment
of the fair value of such shares as provided in Chapter 15 of the Pennsylvania
Business Corporation Law have been duly and properly exercised and perfected.
1.12 "GALT SERIES A PREFERENCE AMOUNT" means the sum of $334,459.77.
1.13 "UNADJUSTED CONVERSION NUMBER" means the number equal to the
fraction (a) whose numerator is the quotient obtained by dividing the Merger
Amount (as defined below) by
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the number of shares of GALT Common Stock equal to the Fully Diluted GALT
Shares, and (b) whose denominator is the Intuit Price Per Share. As used herein,
the "MERGER AMOUNT" shall initially mean the sum of Nine Million Dollars
($9,000,000), provided that the Merger Amount shall be subject to adjustment
from time to time as provided in Sections 11.2 and 11.3 hereof, and upon each
such adjustment, the adjusted Merger Amount shall become the Merger Amount.
1.14 "GALT NON-INTUIT-RELATED REVENUE" means the aggregate amount of
revenue recognized by GALT on the accrual method of accounting during the time
period commencing on January 1, 1996 and ending on the last day of the last full
calendar month preceding the Closing (such time period being hereinafter
referred to as the "MEASURE PERIOD"), as determined in accordance with generally
accepted accounting principles consistently applied, minus all Intuit-Related
Revenue, as defined below. As used herein, the term "INTUIT-RELATED REVENUE"
means all revenue recognized by GALT on the accrual method of accounting during
the Measure Period that is derived in any manner from the Services Agreement
dated of even date herewith to be entered into by and between Intuit and GALT
concurrently with their execution of this Agreement, as determined in accordance
with generally accepted accounting principles consistently applied.
1.15 "ADJUSTMENT FACTOR" means the quotient obtained by dividing the
GALT Non-Intuit-Related Revenue by the cumulative sum of the GALT
Non-Intuit-Related Revenue projected to be recognized by GALT during the Measure
Period as indicated in the GALT Revenue Projection Schedule attached hereto as
Exhibit 1.15; provided however, that the Adjustment Factor may not be less than
one (1.00) or greater than one and eleven-hundredths (1.11) and accordingly,
notwithstanding the foregoing, if the Adjustment Factor as calculated above
would be a number less than one (1.00), then the Adjustment Factor shall be one
(1.00) and if the Adjustment Factor as calculated above would be a number
greater than one and eleven-hundredths (1.11), then the Adjustment Factor shall
be one and eleven-hundredths (1.11).
1.16 "ADJUSTED CONVERSION NUMBER" means the product obtained by
multiplying the Unadjusted Conversion Number by the Adjustment Factor.
1.17 "INTUIT MERGER SHARES" means the number of shares of Intuit Common
Stock, as presently constituted, equal to the product obtained by multiplying
the Adjusted Conversion Number by the number of shares of GALT Common Stock
equal to the Fully Diluted GALT Shares.
1.18 "INTUIT PREFERENCE SHARES" means that number of the Intuit Merger
Shares that is equal to the number obtained by dividing the GALT Series A
Preference Amount by the Intuit Price Per Share.
1.19 "INTUIT PARTICIPATION SHARES" means that number of the Intuit
Merger Shares remaining after the Intuit Preference Shares have been subtracted
from the Intuit Merger Shares.
1.20 "SERIES A PREFERENCE CONVERSION NUMBER" means that number obtained
by dividing the Intuit Preference Shares by the total number of shares of GALT
Series A Preferred Stock that are issued and outstanding immediately prior to
the Effective Time.
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1.21 "PARTICIPATION CONVERSION NUMBER" means that number obtained by
dividing the number of Intuit Participation Shares by the number of Fully
Diluted GALT Shares.
1.22 "PREFERRED PARTICIPATION CONVERSION NUMBER" means that number
obtained by multiplying the Participation Conversion Number by the number of
shares of GALT Common Stock into which each share of GALT Series A Preferred
Stock is convertible under GALT's Articles of Incorporation immediately prior to
the Effective Time.
Other capitalized terms defined elsewhere in this Agreement and not
defined in this Section 1 shall have the meanings assigned to such terms in this
Agreement.
2. PLAN OF REORGANIZATION
Subject to the terms and conditions of this Agreement, at the Effective
Time Intuit Sub shall be merged with and into GALT (unless Intuit elects
otherwise pursuant to the provisions of Section 2.11 hereof), pursuant to this
Agreement in accordance with applicable provisions of the laws of the State of
Delaware and the Commonwealth of Pennsylvania, as follows:
2.1 Conversion of Shares. At the Effective Time, by virtue of the
Merger and without the need for any action on the part of any holder of any
shares of stock described below:
2.1.1 Cancellation of GALT Treasury Stock. Each share of GALT
Stock (if any) held by GALT as treasury stock immediately prior to the Effective
Time shall be canceled and no payment or other consideration whatsoever shall be
made or paid with respect thereto.
2.1.2. Conversion of Intuit Sub Stock. Each share of the
Common Stock of Intuit Sub that is issued and outstanding immediately prior to
the Effective Time shall be converted into and become one (1) share of GALT
Common Stock which shall be issued and outstanding immediately after the
Effective Time, and the shares of GALT Common Stock into which the shares of
Intuit Sub are so converted shall be the only shares of GALT Stock that are
issued and outstanding immediately after the Effective Time.
2.1.3. Conversion of GALT Stock. Each share of GALT Common
Stock and each share of GALT Series A Preferred Stock that is issued and
outstanding immediately prior to the Effective Time (other than any GALT
Dissenting Shares as provided in Section 2.4) shall be converted into shares of
Intuit Common Stock as follows, subject to the provisions of Section 2.5
regarding the elimination of fractional shares:
(a) GALT Series A Preferred Stock. Each share of
GALT Series A Preferred Stock that is issued and outstanding immediately prior
to the Effective Time shall be converted into a number of shares of Intuit
Common Stock equal to the sum of the Series A Preference Conversion Number plus
the Preferred Participation Conversion Number; and
(b) GALT Common Stock. Each share of GALT Common
Stock that is issued and outstanding immediately prior to the Effective Time
shall be converted into a number of shares of Intuit Common Stock equal to the
Participation Conversion Number.
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It is the purpose and intent of this Section 2.1.3 to carry
into effect the merger liquidation preference provisions set forth in GALT's
Articles of Incorporation as in effect on the Agreement Date. Exhibit B attached
hereto sets forth examples of the formula used to determine the Series A
Preference Conversion Number and the Participation Conversion Number for
purposes of converting the outstanding shares of GALT Common Stock and GALT
Series A Preferred Stock in the Merger into shares of Intuit Common Stock as
provided in this Section 2.1.3 and the application of the formula set forth in
Section 2.2 for converting GALT Options into Intuit Options in the Merger.
2.2 Assumption and Conversion of GALT Options.
(a) Assumption by Intuit. Each GALT Option that is outstanding
immediately prior to the Effective Time shall, by virtue of the Merger and at
the Effective Time and without the need for any further action on the part of
any holder thereof, be assumed by Intuit and converted into an option (an
"INTUIT OPTION") to purchase that number of shares of Intuit Common Stock
determined by multiplying the number of shares of GALT Common Stock subject to
such GALT Option immediately prior to the Effective Time by the Participation
Conversion Number, at an exercise price per share of Intuit Common Stock equal
to the exercise price per share of GALT Common Stock that was in effect for such
GALT Option immediately prior to the Effective Time divided by the Participation
Conversion Number; provided, however, that if the foregoing calculation would
result in an assumed and converted GALT Option being converted into an Intuit
Option that, after aggregating all the shares of Intuit Common Stock issuable
upon the exercise of such Intuit Option, would be exercisable for a fraction of
a share of Intuit Common Stock, then the number of shares of Intuit Common Stock
subject to such Intuit Option shall be rounded down to the nearest whole number
of shares of Intuit Common Stock. The terms, exercisability, vesting schedule,
status as an "incentive stock option" under Section 422 of the Code, if
applicable, and all other terms and conditions of GALT Options (including but
not limited to the terms and conditions applicable to such options by virtue of
the GALT Option Plan) shall, to the extent permitted by law and otherwise
reasonably practicable, be unchanged. Continuous employment with GALT shall be
credited to the optionee for purposes of determining the vesting of the number
of shares of Intuit Common Stock subject to exercise under the converted GALT
Option after the Effective Time.
(b) Registration. Intuit shall use its best efforts to cause
the shares of Intuit Common Stock issuable upon exercise of the GALT Options
that are converted into Intuit Options under this Section to be registered on a
registration statement (or to be issued pursuant to a then-effective
registration statement) on Form S-8 (or successor form) promulgated by the
Securities and Exchange Commission ("SEC") under the Securities Act of 1933, as
amended (the "1933 ACT"), no later than ninety (90) days after the Effective
Time and shall use its best efforts to maintain the effectiveness of such
registration statement or registration statements for so long as such assumed
GALT Options remain outstanding.
2.3 Adjustments for Capital Changes. If, prior to the Effective
Time of Merger, Intuit or GALT recapitalizes, either through a split-up or
subdivision of its outstanding shares into a greater number of shares, or
through a reverse split or combination of its outstanding shares into a lesser
number of shares, or reorganizes, reclassifies or otherwise changes its
outstanding shares
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into the same or a different number of shares of other classes (other than
through a split-up, subdivision, reverse split or combination of shares provided
for in the previous clause), or declares a dividend on its outstanding shares
payable in shares or securities convertible into shares (a "CAPITAL CHANGE"),
then the number of shares of Intuit Common Stock into which the shares of GALT
Stock are to be converted in the Merger, and the number of shares of Intuit
Common Stock to be issued upon exercise of the Intuit Options issued upon the
conversion of GALT Options in the Merger, shall be adjusted appropriately (as
agreed to by Intuit and GALT if it involves something other than a mathematical
adjustment) so as to maintain the proportional interests of the holders of GALT
Stock (and, indirectly, the GALT Options) in the outstanding Intuit Common
Stock; provided, however, that the provisions of this Section shall not apply to
any merger or other acquisition of GALT or any other transaction not permitted
to be undertaken by GALT under the provisions of this Agreement. In the event
that a Capital Change affecting Intuit Common Stock occurs prior to the Merger,
then the Intuit Price Per Share shall be deemed to have been equitably adjusted
to reflect such Capital Change as necessary to effect the purposes and intent of
this Section.
2.4 GALT Dissenting Shares. Holders of GALT Dissenting Shares (if any)
shall be entitled to their rights under Subchapter D (Sections 1571 et seq.) and
Section 1930 of the Pennsylvania Business Corporation Law with respect to such
shares and such GALT Dissenting Shares shall not be converted into shares of
Intuit Common Stock in the Merger. GALT Stock as to which dissenting
shareholders' rights of appraisal under the Pennsylvania Business Corporation
Law have not been properly perfected shall, when such dissenting shareholders'
rights can no longer be exercised, be converted into Intuit Common Stock as
provided in Section 2.1.3.
2.5 Fractional Shares. No fractional shares of Intuit Common Stock
shall be issued in connection with the Merger. In lieu thereof, each holder of
GALT Stock who would otherwise be entitled to receive a fraction of a share of
Intuit Common Stock, after aggregating all shares of Intuit Common Stock to be
received by such holder, shall instead receive from Intuit, within twenty (20)
business days after the Effective Time, an amount of cash equal to the Intuit
Price Per Share (as adjusted to reflect any Capital Change of Intuit) multiplied
by the fraction of a share of Intuit Common Stock to which such holder would
otherwise be entitled.
2.6 Effects of the Merger. Subject to the provisions of Section 2.11,
at and upon the Effective Time: (a) the separate existence of Intuit Sub shall
cease and Intuit Sub shall be merged with and into GALT, and GALT shall be the
surviving corporation of the Merger (the "SURVIVING CORPORATION") pursuant to
the terms of this Agreement; (b) the Articles of Incorporation of GALT shall be
amended to read as set forth in Exhibit 2.6 attached hereto and shall be the
Articles of Incorporation of the Surviving Corporation; (c) the Bylaws of GALT
shall continue unchanged and shall be the Bylaws of the Surviving Corporation;
(d) each share of GALT Stock outstanding immediately prior to the Effective Time
and each GALT Option outstanding immediately prior to the Effective Time shall
be converted as provided in this Section 2; (e) the persons who are the officers
and directors of Intuit Sub immediately prior to the Effective Time shall be the
officers and directors of the Surviving Corporation immediately after the
Effective Time; and (f) the Merger shall, from and after the Effective Time,
have all of the effects provided by applicable law.
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2.7 Further Assurances. GALT agrees that if, at any time after the
Effective Time, Intuit considers or is advised that any further deeds,
assignments or assurances are reasonably necessary or desirable to be obtained
from GALT or its officers or directors, to consummate the Merger or to carry out
the purposes of this Agreement at or after the Effective Time, then Intuit, GALT
and their respective officers and directors may execute and deliver all such
proper deeds, assignments and assurances and do all other things necessary or
desirable to consummate the Merger and to carry out the purposes of this
Agreement, in the name of GALT or otherwise.
2.8 Fairness Hearing; Contingent Alternatives.
(a) Fairness Hearing; 3(a)(10) Exemption. Subject to the
provisions of Section 2.8(b) below, the issuance of the shares of Intuit Common
Stock to be issued in the Merger and the Intuit Options to be issued in the
Merger shall be qualified by a permit (the "PERMIT") to be issued under Sections
25121 and 25142 of the California Corporate Securities Law of 1968, as amended
(the "CALIFORNIA LAW"), after a fairness hearing (the "FAIRNESS HEARING") before
the California Commissioner of Corporations pursuant to Section 25142 of the
California Law, with the intent that the issuance of the shares of Intuit Common
Stock and Intuit Options to be issued in the Merger (but not the issuance of
Intuit Common Stock upon exercise of Intuit Options issued in the Merger) shall,
to the extent permitted by applicable law, thereby be exempt under Section
3(a)(10) of the 1933 Act from the registration requirements of the 1933 Act. As
promptly as practicable after the date of this Agreement, but in any event by no
later than December 31, 1995, Intuit (with GALT's full and prompt best efforts
cooperation) shall prepare and file with the California Department of
Corporations (the "DEPARTMENT") an application for qualification of the shares
of Intuit Common Stock and the Intuit Options to be issued in the Merger at the
Closing (as defined herein) and an application for the Fairness Hearing to be
held in connection therewith (collectively, the "PERMIT APPLICATION"), together
with any information or proxy statement included therein (the "INFORMATION
STATEMENT"), and any other documents required by the California Law in
connection with the Merger. Intuit shall use its best efforts to have the Permit
issued under the California Law as promptly as practicable after such filing and
GALT shall fully cooperate with Intuit in good faith to assist in such efforts.
Intuit shall also take any action required to be taken under any applicable
state securities or "blue sky" laws in connection with the issuance of the
shares of Intuit Common Stock in the Merger. GALT shall timely furnish to Intuit
all information concerning GALT, its financial condition, its officers,
directors, shareholders, option holders and other security holders as may be
reasonably requested in connection with any action contemplated by this Section.
Intuit shall bear all expenses incurred by Intuit with respect to the Permit
Application or the Fairness Hearing, including without limitation (i) any filing
fees or other fees payable to the California Department of Corporations with
respect to the Permit Application and the Fairness Hearing and (ii) the costs of
any court reporter or stenographer selected by Intuit who prepares the
transcript of the Fairness Hearing, and (iii) all fees and costs of Intuit's
counsel incurred in connection with the Permit and the Fairness Hearing.
(b) Possible Form S-4 Registration. If despite Intuit's and
GALT's good faith best efforts to obtain the Permit: (A) the Department denies
Intuit's Permit Application and refuses to issue the Permit; or (B) the Permit
has not been issued by March 1, 1996; then Intuit shall instead register the
Intuit Common Stock to be issued in the Merger under the 1933 Act on
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Form S-4 promulgated thereunder (or such other registration form as may then be
available to register for the issuance of shares of Intuit Common Stock in the
Merger), in which case, Intuit and GALT shall prepare and file with the SEC such
form of registration statement (the "REGISTRATION FORM") together with the
prospectus/proxy statement included therein (the "PROSPECTUS/PROXY STATEMENT")
and any other documents required by the 1933 Act or the Securities Exchange Act
of 1934, as amended (the "EXCHANGE ACT") in connection with the Merger as soon
as reasonably practicable after the occurrence of either of the events described
in clause (A) or (B) of the first sentence of this Section 2.8(b). In such case,
Intuit and GALT shall use their best efforts to have the Registration Form
declared effective under the 1933 Act as promptly as practicable after such
filing, Intuit shall also take any action required to be taken under any
applicable state securities or "blue sky" laws in connection with the issuance
of the Intuit Common Stock in the Merger, and GALT shall furnish to Intuit all
information concerning GALT and the GALT stockholders as may be reasonably
requested in connection with any action contemplated by this Section 2.8(b).
2.9 Tax Free Reorganization. The parties intend to adopt this Agreement
as a tax-free plan of reorganization and (subject to the provisions of Section
2.11 hereof) to consummate the Merger as a reverse triangular merger in
accordance with the provisions of Section 368(a)(1)(A) by virtue of the
provisions of Section 368(a)(2)(E) of the Code. The Intuit Common Stock issued
in the Merger shall be issued solely in exchange for the GALT Stock, and no
other transaction other than the Merger represents, provides for or is intended
to be an adjustment to, the consideration paid for the GALT Stock. Except for
cash paid in lieu of fractional shares, and cash paid for dissenting shares, if
any, no consideration that could constitute "other property" within the meaning
of Section 356(b) of the Code is being paid by Intuit for the GALT Stock in the
Merger. The parties shall not take a position on any tax returns inconsistent
with this Section 2.9. In addition, Intuit represents as of the date of this
Agreement, and as of the Closing Date, that it presently intends to continue
GALT's historic business or use a significant portion of GALT's business assets
in a business. Both Intuit and GALT agree to execute tax representation
certificates consistent with this treatment of the Merger. GALT will use its
best efforts to cause the GALT Affiliates to execute similar tax representation
letters.
2.10 Pooling of Interests. The parties intend that the Merger be
treated as a "pooling of interests" for accounting purposes.
2.11 Option of Intuit. Notwithstanding the foregoing, the parties agree
that Intuit shall have the right, at its sole option, to restructure the Merger
as a tax-free forward triangular reorganization in which GALT is merged with and
into Intuit Sub, with Intuit Sub to be the Surviving Corporation of such Merger
on the terms and conditions stated herein, and the parties agree that, in such
case, this Agreement, the Agreement of Merger, the Articles of Merger and other
documents related to the Merger shall be modified accordingly.
3. REPRESENTATIONS AND WARRANTIES OF GALT
GALT hereby represents and warrants to Intuit that, except as set forth
in a letter addressed to Intuit dated the Agreement Date and delivered by GALT
to Intuit concurrently herewith (the "GALT DISCLOSURE LETTER") (which GALT
Disclosure Letter shall be deemed to be
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representations and warranties made to Intuit by GALT under this Section 3),
each of the following representations and statements in this Section 3 are true
and correct as of the Agreement Date:
3.1 Organization and Good Standing. GALT is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Pennsylvania, has the corporate power and authority to own, operate and lease
its properties and to carry on its business as now conducted and as proposed to
be conducted, and is qualified to transact business as a foreign corporation in
each jurisdiction in which a failure to be so qualified could reasonably be
expected to have a material adverse effect on its operations or financial
condition.
3.2 Power, Authorization and Validity.
3.2.1 GALT has the full corporate right, power and authority
to enter into, execute, deliver and perform its obligations under this Agreement
and each other agreement or document to which GALT is to be a party or which
GALT is to execute pursuant to, or with Intuit concurrently with the execution
of, this Agreement, including the Intuit Loan Agreement (as defined in Section
6.2) and the Services Agreement being entered into by and between GALT and
Intuit concurrently with their execution of this Agreement (collectively, the
"GALT ANCILLARY AGREEMENTS"), and GALT has all requisite corporate power and
authority to consummate the Merger in accordance with the terms of this
Agreement (including but not limited to the provisions of Section 2.11), subject
to obtaining the requisite approval of the Merger by GALT's shareholders. The
execution, delivery and performance of this Agreement and each of the GALT
Ancillary Agreements have been duly and validly approved and authorized by all
necessary corporate action on the part of GALT's Board of Directors. To the best
knowledge of GALT, Xxxxxx Xxxxxx, Xxxx Xxxxx and Xxxxx Xxxxxxxxxx, three
principal shareholders of GALT (collectively, the "PRINCIPAL SHAREHOLDERS") have
all requisite power and authority to enter into the Non-Competition Agreements
and GALT Affiliate Agreements they are required to execute and deliver to Intuit
pursuant to Section 9.
3.2.2 No filing, authorization, consent, approval or order,
governmental or otherwise, is necessary or required to enable GALT to enter
into, and to perform its obligations under, this Agreement and/or any of the
GALT Ancillary Agreements, except for (a) the filing of the Agreement of Merger
with the offices of the Delaware Secretary of State and the filing of the
Articles of Merger with the Pennsylvania Department of State and the filing of
appropriate documents with the relevant authorities of other states in which
GALT is qualified to do business, if any, (b) such filings as may be required to
comply with federal and state securities laws, and (c) the approval by the GALT
shareholders of the transactions contemplated hereby.
3.2.3 This Agreement and the GALT Ancillary Agreements are, or
when executed by GALT shall be, valid and binding obligations of GALT,
enforceable in accordance with their respective terms.
3.3 Capitalization of GALT.
3.3.1 Outstanding Stock. The authorized capital stock of GALT
consists entirely of 2,500,000 shares of Common Stock, par value $0.01 per
share, of which 1,987,085
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shares are issued and outstanding and 32,889 shares of Preferred Stock, par
value $0.01 per share, of which 32,889 shares are designated Series A
Participating Preferred Stock, par value $0.01 per share, all of which shares
are issued and outstanding, and no other shares of the capital stock of GALT are
authorized, issued or outstanding. Each share of GALT Series A Preferred Stock
is convertible into ten (10) shares of GALT Common Stock as a result of a
dividend in shares of GALT Common Stock that was paid to holders of GALT Common
Stock on December 13, 1994. All issued and outstanding shares of GALT's capital
stock have been duly authorized and validly issued, are fully paid and
nonassessable, have been offered, issued, sold and delivered by GALT in
compliance with all registration or qualification requirements (or applicable
exemptions therefrom) of all applicable federal and state securities laws, are
not subject to any claim, lien or preemptive right created by any action or
agreement of GALT or any right of rescission enforceable against GALT, and, to
the best knowledge of GALT, are not subject to any claim, lien, preemptive right
or right of rescission created by any act or omission of any GALT shareholder. A
list of all holders of GALT's capital stock and the number of shares held by
each is set forth in Exhibit 3.3.1.
3.3.2 No Options, Warrants or Rights. Except for options to
purchase a total of 139,135 shares of GALT Common Stock granted under the GALT
Option Plan which are outstanding on the Agreement Date and except for the
32,889 outstanding shares of GALT Series A Preferred Stock described in Section
3.3.1, there are no options, warrants, convertible securities or other
securities, calls, commitments, conversion privileges, preemptive rights or
other rights or agreements outstanding to purchase or otherwise acquire (whether
directly or indirectly) any shares of GALT's authorized but unissued capital
stock or any securities convertible into or exchangeable for any shares of
GALT's capital stock or obligating GALT to grant, issue, extend, or enter into
any such option, warrant, convertible security, other security, call,
commitment, conversion privilege, preemptive right or other right or agreement,
and there is no liability for dividends accrued but unpaid. A total of 166,303
shares of GALT Common Stock are reserved for issuance under the GALT Option
Plan, none of which shares have been issued as of the Agreement Date. To the
best knowledge of GALT, no person or entity holds or has any option, warrant or
other right to acquire any issued and outstanding shares of the capital stock of
GALT from any holder of shares of the capital stock of GALT and no GALT
shareholder is obligated to enter into or grant any such option, warrant or
other right. A list of all holders of GALT Options and the number of GALT
Options held by each such person is set forth in Exhibit 3.3.2. During the two
(2) year period immediately prior to the Agreement Date, GALT has not
authorized, or taken any action to authorize, the acceleration of the time
during which any holder of any option, warrant or other right to purchase or
acquire any share of capital stock of GALT may exercise such option, warrant or
right.
3.3.3 No Voting Arrangements or Registration Rights. There are
no voting agreements, voting trusts, rights of first refusal or other
restrictions (other than normal restrictions on transfer under applicable
federal and state securities laws) under any agreements, contracts or
understanding to which GALT is a party or which are binding on GALT that are
applicable to any of GALT's outstanding securities or to any securities issuable
upon the conversion of any GALT securities in the Merger. To GALT's best
knowledge, there are no voting agreements, voting trusts, rights of first
refusal or other restrictions (other than normal restrictions on transfer under
applicable federal and state securities laws) under any agreement,
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contract or understanding not described in the first sentence of this Section
3.3.3 that apply to any of GALT's outstanding securities or to any securities
issuable upon the conversion of any GALT securities in the Merger. GALT is not
under any obligation to register under the 1933 Act any of its presently
outstanding securities or any securities that may be subsequently issued by
GALT.
3.4 No Subsidiaries; Not a Subsidiary. GALT does not have any
subsidiaries or any interest, direct or indirect, in any corporation,
partnership, limited liability company, joint venture or other business entity.
GALT has never been a subsidiary of any corporation, partnership, limited
liability company, joint venture or other business entity.
3.5 No Violation of Existing Agreements. Neither the execution and
delivery of this Agreement nor any GALT Ancillary Agreement, nor the
consummation of the transactions contemplated hereby, shall conflict with, or
(with or without notice or lapse of time, or both) result in: (a) a termination,
breach or violation of (i) any provision of the Articles of Incorporation or
Bylaws of GALT, as currently in effect, or (ii) any federal, state, local or
foreign judgment, writ, decree, order, statute, rule or regulation applicable to
GALT or its assets or properties; or (b) a termination, material breach,
impairment or violation of any material instrument, agreement, contract or
commitment to which GALT is a party or by which GALT or its assets or properties
are bound. The consummation of the Merger by GALT shall not require the consent
of any third party (other than the legally required approval of GALT's
shareholders) and no agreement to which GALT is a party requires that any other
party thereto consent to the Merger.
3.6 Litigation. There is no action, suit, arbitration, proceeding,
claim or investigation pending against GALT or any officer or director of GALT
in their capacity as such, or to the best knowledge of GALT, against any
shareholder or other security holder of GALT in their capacity as such, before
any court, administrative agency, tribunal, arbitrator or arbitration panel or
other dispute resolution forum that, if determined adversely to GALT or any
officer, director, shareholder or other security holder of GALT, may reasonably
be expected to have a material adverse effect on the present or future
operations or financial condition of GALT, nor, to the best of GALT's knowledge,
has any such action, suit, arbitration, proceeding, claim or investigation been
threatened. No person, firm, corporation or other entity has a legally valid
claim upon which legal or equitable relief may be had against GALT, or, to the
best knowledge of GALT, against any GALT security holder or Intuit based upon:
(a) ownership, rights to ownership, or options, warrants or other rights to
acquire ownership, of any shares of the capital stock of GALT; or (b) any rights
as a GALT shareholder, including any option, warrant or preemptive rights or
rights to notice or to vote. There is no judgment, decree, injunction, rule or
order of any governmental entity or agency, court, arbitrator or other dispute
resolution forum outstanding against GALT. There is, to the best of GALT's
knowledge, no basis for any party to successfully assert a claim for any
material damages or injunctive or other equitable relief against GALT or Intuit
based on a claim that any product or service developed, owned, marketed,
provided, distributed or used by GALT (a) infringes any intellectual property
rights of any third party, (b) was or is defective in any material respect, or
did not or shall not perform in accordance with any warranty, (c) was not or is
not suitable for a use for which it was intended, or (d) did not conform to or
comply with applicable law.
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3.7 Taxes. GALT has timely filed all federal, state, local and foreign
tax returns required to be filed, has timely paid all taxes required to be paid
in respect of all periods for which returns have been filed, has established an
adequate accrual or reserve for the payment of all taxes payable in respect of
the periods subsequent to the periods covered by the most recent applicable tax
returns, has made all necessary estimated tax payments, and has no material
liability for taxes in excess of the amount so paid or accruals or reserves so
established. GALT is not delinquent in the payment of any tax and is not
delinquent in the filing of any tax returns, and no deficiencies for any tax
have been threatened, claimed, proposed or assessed. GALT has not received any
notification that any material issues have been raised (and are currently
pending) by the Internal Revenue Service or any other taxing authority
(including but not limited to any sales tax authority) and no tax return of GALT
has ever been audited by the Internal Revenue Service or any other taxing agency
or authority. No tax liens have been filed against any assets of GALT. GALT is
not a "personal holding company" within the meaning of Section 542 of the Code.
For the purposes of this Agreement, the terms "TAX" and
"TAXES" include all federal, state, local and foreign income, alternative or
add-on minimum income, gains, franchise, excise, property, sales, use,
employment, license, payroll, ad valorem, stamp, occupation, recording, value
added or transfer taxes, governmental charges, fees, customs duties, tariffs,
levies or assessments (whether payable directly or by withholding), and, with
respect to such taxes, any estimated tax, interest and penalties or additions to
tax and interest on such penalties and additions to tax.
3.8 GALT Financial Statements. GALT has delivered to Intuit as Exhibit
3.8: (i) GALT's draft audited balance sheet as of December 31, 1994, and draft
audited statements of operations, changes in shareholders' equity and cash flows
for the year ended December 31, 1994 and (ii) GALT's unaudited balance sheet
(the "BALANCE SHEET") as of September 30, 1995 (the "BALANCE SHEET DATE") and
unaudited statement of operations, and statement of cash flows for the
nine-month period ended September 30, 1995 (such balance sheets and such
statements of operations, changes in shareholders' equity and cash flows are
hereinafter collectively referred to as the "GALT FINANCIAL STATEMENTS"). The
GALT Financial Statements (a) are in accordance with the books and records of
GALT, and (b) fairly present the financial condition of GALT at the dates
therein indicated and the results of operations for the periods therein
specified. GALT has no material debt or liability of any nature, whether
accrued, absolute, contingent or otherwise, and whether due or to become due,
that is not reflected or reserved against in the Balance Sheet, except for those
that may have been incurred after the date of the Balance Sheet in the ordinary
course of its business consistent with past practice. All reserves established
by GALT and set forth in the Balance Sheet were reasonably adequate. At the
Balance Sheet Date, there were no material loss contingencies (as such term is
used in Statement of Financial Accounting Standards No. 5 issued by the
Financial Accounting Standards Board in March 1975) which are not adequately
provided for in the Balance Sheet as required by said Statement No. 5.
3.9 Title to Properties. GALT has good and marketable title to all of
its assets and properties as shown on the Balance Sheet, free and clear of all
liens, mortgages, security interests, claims, charges, restrictions or
encumbrances. All machinery, vehicles, equipment and
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other tangible personal property included in such assets and properties are in
good condition and repair, normal wear and tear excepted, and all leases of real
or personal property to which GALT is a party are fully effective and afford
GALT peaceful and undisturbed possession of the property leased thereunder in
accordance with the terms of such leases. To its best knowledge, GALT is not in
violation of any zoning, building, safety or environmental ordinance, regulation
or requirement or other law or regulation applicable to the operation of owned
or leased properties (the violation of which would have a material adverse
effect on its business), and GALT has not received any notice of violation with
which it has not complied. GALT does not own any real property.
3.10 Absence of Certain Changes. Since the Balance Sheet Date, there
has not been with respect to GALT any:
(a) material adverse change in the condition (financial or
otherwise), properties, assets, liabilities, businesses, operations, results of
operations or prospects of GALT that occurred prior to the Agreement Date;
(b) amendments or changes in the Articles of Incorporation or
Bylaws of GALT;
(c) (i) incurrence, creation, assumption or guarantee by GALT
of (A) any mortgage, security interest, pledge, lien or other encumbrance on any
of the assets or properties of GALT or (B) any material obligation, liability or
indebtedness for borrowed money; or (ii) issuance or sale of any debt or equity
securities of GALT or any options or other rights to acquire from GALT, directly
or indirectly, any debt or equity securities of GALT;
(d) payment or discharge of a material lien or liability
thereof, which lien was not either shown on the Balance Sheet or incurred in the
ordinary course of business after the date of the Balance Sheet;
(e) purchase, license, sale or other disposition, or any
agreement or other arrangement for the purchase, license, sale or other
disposition, of any of the assets or properties of GALT other than in the
ordinary course of business;
(f) damage, destruction or loss, whether or not covered by
insurance, materially and adversely affecting the properties, assets or business
of GALT;
(g) declaration, setting aside or payment of any dividend on,
or the making of any other distribution in respect of, any of the capital stock
of GALT, any split, combination or recapitalization of any of the capital stock
of GALT or any direct or indirect redemption, purchase or other acquisition by
GALT of any of the capital stock of GALT or any change in any rights,
preferences, privileges or restrictions of any outstanding security of GALT;
(h) change or increase in the compensation payable or to
become payable to any of the officers or employees of GALT, or any bonus or
pension, insurance or other benefit payment or arrangement (including without
limitation stock awards, stock appreciation rights or stock option grants) made
to or with any of such officers, employees or agents except in
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connection with normal employee salary or performance reviews or otherwise in
the ordinary course of business consistent with past practice;
(i) addition, resignation or termination of members of the
management, supervisory or other key personnel of GALT;
(j) obligation or liability incurred by GALT to any of its
officers, directors or shareholders except normal compensation and expense
allowances payable to officers;
(k) making of any loan, advance or capital contribution to, or
any investment in, any officer, director or shareholder other than (i) travel
loans or advances made in the ordinary course of business of GALT and (ii) other
loans and advances in an aggregate amount which does not exceed $25,000
outstanding at any time;
(l) entering into, amendment of, relinquishment, termination
or non-renewal by GALT of any material contract, lease transaction, commitment
or other material right or obligation other than in the ordinary course of
business;
(m) any transfer or grant of a right under any of the GALT IP
Rights (as defined in Section 3.13 below), other than those transferred or
granted in the ordinary course of GALT's business consistent with past
practices; or
(n) any agreement or arrangement made by GALT to take any
action which, if taken prior to the date of this Agreement, would have made any
representation or warranty of GALT set forth in this Agreement untrue or
incorrect as of the date when made.
3.11 Contracts and Commitments. Exhibit 3.11 sets forth a list of each
of the following written or oral contracts, agreements, commitments or other
instruments which are currently in effect and to which GALT is a party or to
which GALT or any of its assets or properties is bound:
(a) contract with or commitment to any labor union;
(b) continuing contract for the future purchase, sale or
manufacture of products, material, supplies, equipment or services requiring
payment to or from GALT in an amount in excess of $25,000 per annum which is not
terminable on 120 days' or less notice without cost or other liability to GALT
at or at any time after the Effective Time or in which GALT has granted or
received manufacturing rights, most favored nations pricing provisions or
exclusive marketing rights relating to any product, group of products or
territory;
(c) contract providing for the development of software by or
for GALT, or for the license of software to or from GALT, which software is used
or incorporated in any products currently distributed or services currently
provided by GALT or is contemplated to be used or incorporated in any products
to be distributed or services to be provided by GALT (other than software
generally available to the public which is currently licensed to GALT at a per
copy license fee of less than $1,000 per copy);
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(d) joint venture or partnership contract or agreement or
other agreement which involves a sharing of profits or losses in excess of
$25,000 per annum with any other party;
(e) contract or commitment for the employment of any officer,
employee or consultant of GALT or any other type of contract or understanding
with any officer, employee or consultant of GALT which is not immediately
terminable by GALT without cost or other liability in excess of $1,000;
(f) indenture, mortgage, promissory note, loan agreement,
guarantee, security agreement or other agreement or commitment for the borrowing
of money, for a line of credit or for a leasing transaction of a type required
to be capitalized in accordance with Statement of Financial Accounting Standards
No. 13 of the Financial Accounting Standards Board;
(g) lease or other agreement under which GALT is lessee of or
holds or operates any items of tangible personal property or real property owned
by any third party and under which payments to such third party exceed $20,000
per annum;
(h) agreement or arrangement for the sale of any assets,
properties or rights having a value in excess of $20,000, other than in the
ordinary course of business consistent with past practice;
(i) agreement which restricts GALT from engaging in any aspect
of its business or competing in any line of business in any geographic area;
(j) GALT IP Rights Agreement (as defined in Section 3.13
below);
(k) any agreement relating to the sale, issuance, grant,
exercise, award, purchase, repurchase or redemption of any shares of capital
stock or other securities of GALT or any options, warrants or other rights to
purchase or otherwise acquire any such shares of stock, other securities or
options, warrants or other rights therefor; or
(l) any other agreement, contract, commitment or instrument
that is material to the business of GALT or involves a commitment in excess of
$25,000 by GALT.
A copy of each agreement or document required to be listed on
Exhibit 3.11 (collectively, the "GALT MATERIAL AGREEMENTS") has been delivered
to Intuit's counsel. No consent or approval of any third party (including but
not limited to any consent to assignment) is required to ensure that, following
the Closing of the Merger, any GALT Material Agreement (other than the
agreements of GALT listed in Exhibit 3.11A hereto) shall continue to be in full
force and effect without any breach or violation thereof caused by virtue of the
Merger or any other transaction called for by this Agreement.
3.12 No Default. GALT is not in breach or default in any material
respect under any contract, agreement, commitment or other instrument or
obligation that is required to be listed on Exhibit 3.11 or that is otherwise
material to the business of GALT. GALT is not a party to any contract, agreement
or arrangement which has had or could reasonably be expected to have a
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material adverse effect on its business. GALT has no material liability for
renegotiation of government contracts or subcontracts, if any.
3.13 Intellectual Property.
3.13.1 As used herein, the term "INTELLECTUAL PROPERTY RIGHTS"
means, collectively, all worldwide industrial and intellectual property rights,
including, without limitation, patents, patent applications, patent rights,
trademarks, trademark applications, trade names, service marks, service xxxx
applications, trade dress, moral rights, copyrights, copyright applications,
licenses, inventions, know-how, trade secrets, customer lists, proprietary
processes and formulae, software source and object code, algorithms,
architecture, structure, display screens, layouts, inventions, development tools
and all documentation and media constituting, describing or relating to the
above, including, without limitation, manuals, memoranda and records. GALT owns,
or has the right to use, sell or license, all Intellectual Property Rights that
are necessary or required for the conduct of its business as presently conducted
(such Intellectual Property Rights being hereinafter collectively referred to as
the "GALT IP RIGHTS"), and such rights to use, sell or license are sufficient
for such conduct of its business as presently conducted.
3.13.2 The execution, delivery and performance of this
Agreement and the consummation of the Merger and the other transactions
contemplated hereby shall not constitute a material breach or default of any
instrument, contract, license or other agreement granting, licensing or
otherwise governing or affecting any GALT IP Right (the "GALT IP RIGHTS
AGREEMENTS"), shall not cause the forfeiture or termination or give rise to a
right of forfeiture or termination, of any GALT IP Right or materially impair
the right of GALT or the Surviving Corporation to use, sell or license any GALT
IP Right or portion thereof (except where such breach, forfeiture or termination
would not have a material adverse effect on GALT). There are no royalties,
honoraria, fees or other payments payable by GALT to any person by reason of the
ownership, use, license, sale or disposition of any of the GALT IP Rights.
3.13.3 Neither the manufacture, marketing, license, sale or
presently intended use of any product or service currently licensed, marketed,
sold or provided by GALT or currently under development by GALT violates any
license or agreement between GALT and any third party or, in its current form,
infringes any Intellectual Property Right of any other party (except that, to
the extent that the foregoing representation as to non-infringement applies to
third-party Intellectual Property Rights that are being infringed by standard
industry practices of GALT's competitors or other businesses engaged in
commercial activity involving the Internet or other on-line products, services
or technologies, such representation is only made as to GALT's best knowledge
and belief); and there is no pending or threatened claim or litigation
contesting the validity, ownership or right to use, sell, license or dispose of
any GALT IP Right nor, to the best knowledge of GALT, is there any basis for any
such claim, nor has GALT received any notice asserting that any GALT IP Right or
the proposed use, sale, license or disposition thereof conflicts or shall
conflict with the rights of any other party, nor, to the best knowledge of GALT,
is there any basis for any such assertion. To the best knowledge of GALT, no
employee, consultant or independent contractor of GALT is in violation of any
term of any non-competition agreement relating to the right of any such
employee, consultant or independent contractor to be employed or hired by GALT.
No product or technology licensed, marketed or sold by GALT or
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currently under development by GALT incorporates, uses or is based on, any
misappropriated Intellectual Property Rights of any third party.
3.13.4 GALT has taken reasonable and practicable steps
designed to protect, preserve and maintain the secrecy and confidentiality of
all its proprietary software and other trade secrets and all GALT's proprietary
rights therein. All officers, employees, consultants and independent contractors
of GALT who (a) have had access to proprietary information of GALT or any of its
suppliers, vendors, licensees or customers or (b) who have participated in any
manner in the creation, design or development of any software, technology,
product or service developed by or for GALT, have executed and delivered to GALT
an agreement regarding the protection of such proprietary information and the
assignment of inventions to GALT in the form provided to Intuit's counsel, and
copies of all such executed agreements have been delivered to Intuit's counsel.
3.13.5 Exhibit 3.13 contains a list of all worldwide
applications, registrations, filings and other formal actions made or taken
pursuant to federal, state and foreign laws by GALT to secure, perfect or
protect its interest in GALT IP Rights, including, without limitation, all
patents, patent applications, copyrights (whether or not registered), copyright
applications, trademarks and service marks (whether or not registered) and
trademark and service xxxx applications.
3.14 Compliance with Laws. GALT has complied, and is in full
compliance, in all material respects, with all applicable federal, state, local
or foreign laws, ordinances, regulations, and rules, and all orders, writs,
injunctions, awards, judgments, and decrees applicable to it, its business or
its assets and properties (the violation of which would have a material adverse
effect upon its business). GALT holds all permits, licenses, consents and
approvals from, and has made all filings with any government agencies and
authorities that are necessary in connection with its present business. GALT is
not required to be registered as an investment adviser under the Investment
Adviser's Act of 1940, as amended.
3.15 Certain Transactions and Agreements. None of the officers or
directors of GALT, nor any member of their immediate families, has any direct or
indirect ownership interest in any firm or corporation that directly competes
with, or does business with, or has any contractual arrangement with GALT
(except with respect to any interest in less than one percent (1%) of the stock
of any corporation whose stock is publicly traded). None of said officers or
directors, nor any member of their immediate families, is directly or indirectly
interested in any contract or informal arrangement with GALT, except for normal
compensation for services as an officer, director or employee thereof that have
been disclosed to Intuit. None of said officers or directors or family members
has any interest in any property, real or personal, tangible or intangible,
including any GALT IP Rights or any other Intellectual Property Rights, used in
or pertaining to the business of GALT, except for the normal rights of a
shareholder.
3.16. Employees, ERISA and Other Compliance.
3.16.1 GALT is in compliance in all material respects with all
applicable laws, agreements and contracts relating to employment, employment
practices, wages, hours, and terms and conditions of employment, including, but
not limited to, employee compensation
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matters. A list of all employees, officers and consultants of GALT and their
current compensation is set forth on Exhibit 3.16.1, which has been delivered to
Intuit. GALT does not have any employment contracts or consulting agreements
currently in effect that are not terminable at will (other than agreements with
the sole purpose of providing for the confidentiality of proprietary information
or assignment of inventions).
3.16.2 GALT (i) has never been, and is not now, subject to a
union organizing effort, (ii) is not subject to any collective bargaining
agreement with respect to any of its employees, (iii) is not subject to any
other contract, written or oral, with any trade or labor union, employees'
association or similar organization, and (iv) has no current labor disputes.
GALT has good labor relations, and has no knowledge of any facts indicating that
the consummation of the transactions contemplated hereby shall have a material
adverse effect on such labor relations, and has no knowledge that any of its key
employees intends to leave its employ.
3.16.3 Exhibit 3.16.3 identifies (a) each "employee benefit
plan," as defined in Section 3(3) of the Employee Retirement Income Security Act
of 1974, as amended ("ERISA"), and (b) all other written plans or agreements
involving direct or indirect compensation or benefits (including any employment
agreements entered into between GALT and any employee of GALT, but excluding
worker's compensation, unemployment compensation and other government-mandated
programs) currently or previously maintained, contributed to or entered into by
GALT under which GALT or any ERISA Affiliate (as defined below) of GALT has any
present or future obligation or liability (collectively, the "GALT EMPLOYEE
PLANS"). For purposes of this Section, "ERISA AFFILIATE" means any entity which
is a member of (A) a "controlled group of corporations," as defined in Section
414(b) of the Code, (B) a group of entities under "common control," as defined
in Section 414(c) of the Code, or (C) an "affiliated service group," as defined
in Section 414(m) of the Code, or treasury regulations promulgated under Section
414(o) of the Code, any of which includes GALT. Copies of all GALT Employee
Plans (and, if applicable, related trust agreements) and all amendments thereto
and written interpretations thereof (including summary plan descriptions) have
been delivered to Intuit or its counsel. All GALT Employee Plans which
individually or collectively would constitute an "employee pension benefit
plan," as defined in Section 3(2) of ERISA (collectively, the "GALT PENSION
PLANS"), are identified as such in Exhibit 3.16.3. All contributions due from
GALT with respect to any of the GALT Employee Plans have been made as required
under ERISA or have been accrued on GALT's financial statements as of the
Balance Sheet Date. Each GALT Employee Plan has been maintained in compliance
with its terms and with the requirements prescribed by any and all statutes,
orders, rules and regulations, including, without limitation, ERISA and the
Code, which are applicable to such GALT Employee Plans.
3.16.4 No GALT Pension Plan constitutes, or has since the
enactment of ERISA constituted, a "multiemployer plan," as defined in Section
3(37) of ERISA. No GALT Pension Plans are subject to Title IV of ERISA. No
"prohibited transaction," as defined in Section 406 of ERISA or Section 4975 of
the Code, has occurred with respect to any GALT Employee Plan which is covered
by Title I of ERISA which would result in a material liability to GALT,
excluding transactions effected pursuant to a statutory or administrative
exemption. Nothing done or omitted to be done and no transaction or holding of
any asset under or in connection with any GALT Employee Plan has or shall make
GALT or any officer or director of
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GALT subject to any material liability under Title I of ERISA or liable for any
material tax (as defined in Section 3.7) or penalty pursuant to Sections 4972,
4975, 4976 or 4979 of the Code or Section 502 of ERISA.
3.16.5 Any GALT Pension Plan which is intended to be qualified
under Section 401(a) of the Code (a "GALT 401(a) PLAN") is so qualified and has
been so qualified during the period from its adoption to date, and the trust
forming a part thereof is exempt from tax pursuant to Section 501(a) of the
Code. GALT has delivered to Intuit or its counsel a complete and correct copy of
the most recent Internal Revenue Service determination letter with respect to
each GALT 401(a) Plan.
3.16.6 Exhibit 3.16.6 lists each employment, severance or
other similar contract, arrangement or policy and each plan or arrangement
(written or oral) providing for insurance coverage (including any self-insured
arrangements), workers' benefits, vacation benefits, severance benefits,
disability benefits, death benefits, hospitalization benefits, retirement
benefits, deferred compensation, profit-sharing, bonuses, stock options, stock
purchase, phantom stock, stock appreciation or other forms of incentive
compensation or post-retirement insurance, compensation or benefits for
employees, consultants or directors which (a) is not a GALT Employee Plan, (b)
is entered into, maintained or contributed to by GALT and (c) covers any
employee or former employee of GALT. Such contracts, plans and arrangements as
are described in this Section 3.16.6 are hereinafter collectively referred to as
the "GALT BENEFIT ARRANGEMENTS." Each GALT Benefit Arrangement has been
maintained in substantial compliance with its terms and with the requirements
prescribed by any and all statutes, orders, rules and regulations that are
applicable to such GALT Benefit Arrangement. GALT has delivered to Intuit or its
counsel a complete and correct copy or description of each GALT Benefit
Arrangement.
3.16.7 Since December 31, 1994 there has been no amendment to,
written interpretation or announcement (whether or not written) by GALT relating
to, or change in employee participation or coverage under, any GALT Employee
Plan or GALT Benefit Arrangement that would increase materially the expense of
maintaining such GALT Employee Plan or GALT Benefit Arrangement.
3.16.8 GALT has provided, or shall have provided prior to the
Closing, to individuals entitled thereto all required notices and coverage
pursuant to Section 4980B of the Code and the Consolidated Omnibus Budget
Reconciliation Act of 1985, as amended ("COBRA"), with respect to any
"qualifying event" (as defined in Section 4980B(f)(3) of the Code) occurring
prior to and including the Closing Date, and no material Tax payable on account
of Section 4980B of the Code has been incurred with respect to any current or
former employees of GALT (or their beneficiaries).
3.16.9 No benefit payable or which may become payable by GALT
pursuant to any GALT Employee Plan or any GALT Benefit Arrangement or as a
result of or arising under this Agreement shall constitute an "excess parachute
payment" (as defined in Section 280G(b)(1) of the Code) which is subject to the
imposition of an excise Tax under Section 4999 of the Code or which would not be
deductible by reason of Section 280G of the Code. GALT is not a party
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to any (a) agreement with any executive officer or other key employee of GALT
(i) the benefits of which are contingent, or the terms of which are materially
altered, upon the occurrence of a transaction involving GALT in the nature of
any of the transactions contemplated by this Agreement and the Merger, (ii)
providing any term of employment or compensation guarantee, or (iii) providing
severance benefits or other benefits after the termination of employment of such
employee regardless of the reason for such termination of employment, or (b)
agreement or plan, including, without limitation, any stock option plan, stock
appreciation rights plan or stock purchase plan, any of the benefits of which
shall be materially increased, or the vesting of benefits of which shall be
materially accelerated, by the occurrence of any of the transactions
contemplated by this Agreement and the Merger or the value of any of the
benefits of which shall be calculated on the basis of any of the transactions
contemplated by this Agreement and the Merger.
3.17 Corporate Documents. GALT has made available to Intuit for
examination all documents listed in the GALT Disclosure Letter or other Exhibits
called for by this Agreement which have been requested by Intuit's legal
counsel, including, without limitation, the following: (a) copies of GALT's
Articles of Incorporation and Bylaws as currently in effect; (b) GALT's Minute
Book containing all records of all proceedings, consents, actions, and meetings
of GALT's shareholders, board of directors and any committees thereof; (c)
GALT's stock ledger and journal reflecting all stock issuances and transfers;
and (d) all permits, orders, and consents issued by any regulatory agency with
respect to GALT, or any securities of GALT, and all applications for such
permits, orders, and consents.
3.18 No Brokers. GALT is not obligated for the payment of fees or
expenses of any investment banker, broker or finder in connection with the
origin, negotiation or execution of this Agreement or the Merger or in
connection with any transaction contemplated hereby or thereby.
3.19 Books and Records. The books, records and accounts of GALT and its
Subsidiaries (a) are in all material respects true, complete and correct, (b)
have been maintained in accordance with commercially reasonable business
practices on a basis consistent with prior years, (c) are stated in reasonable
detail and accurately and fairly reflect the transactions and dispositions of
the assets of GALT, and (d) accurately and fairly reflect the basis for the GALT
Financial Statements. GALT maintains a system of internal accounting controls
sufficient to permit preparation of financial statements in conformity with
generally accepted accounting principles.
3.20 Insurance. GALT maintains fire and casualty, general liability,
business interruption, product liability, errors and omissions, and sprinkler
and water damage insurance which GALT believes to be reasonably prudent for
similarly sized and similarly situated businesses.
3.21 Environmental Matters.
3.21.1 To the best knowledge of GALT, during the period that
GALT has leased or owned its properties or owned or operated any facilities,
there have been no disposals, releases or threatened releases of Hazardous
Materials (as defined below) on, from or under such properties or facilities.
GALT has no knowledge of any presence, disposals, releases or
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threatened releases of Hazardous Materials on, from or under any of
such properties or facilities, which may have occurred prior to GALT having
taken possession of any of such properties or facilities. For the purposes of
this Agreement, the terms "DISPOSAL," "RELEASE," and "THREATENED RELEASE" shall
have the definitions assigned thereto by the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, 42 U.S.C. Section 9601 et
seq., as amended ("CERCLA"). For the purposes of this AgreEment "HAZARDOUS
MATERIALS" shall mean any hazardous or toxic substance, material or waste which
is or becomes prior to the Closing regulated under, or defined as a "hazardous
substance," "pollutant," "contaminant," "toxic chemical," "hazardous materials,"
"toxic substance" or "hazardous chemical" under (a) CERCLA; (b) any similar
federal, state or local law; or (c) regulations promulgated under any of the
above laws or statutes.
3.21.2 To the best knowledge of GALT, none of the properties
or facilities of GALT is in violation of any federal, state or local law,
ordinance, regulation or order relating to industrial hygiene or to the
environmental conditions on, under or about such properties or facilities,
including, but not limited to, soil and ground water condition. During the time
that GALT has owned or leased its properties and facilities, neither GALT nor to
GALT's best knowledge, any third party, has used, generated, manufactured or
stored on, under or about such properties or facilities or transported to or
from such properties or facilities any Hazardous Materials other than those
present in normal and lawful amounts in normal office cleaning supplies.
3.21.3 During the time that GALT has owned or leased its
properties and facilities: (a) there has been no litigation brought or
threatened against GALT or any settlement reached by GALT with, any party or
parties alleging the presence, disposal, release or threatened release of any
Hazardous Materials on, from or under any of such properties or facilities; and
(b) to the best of GALT's knowledge, there has been no litigation brought or
threatened against any lessor or owner of real property leased by GALT or any
settlement reached by such lessor or owner with any party or parties alleging
the presence, disposal, release or threatened release of any Hazardous Materials
on, from or under any of such properties or facilities.
3.22 Full Disclosure. All of the representations and warranties made by
GALT under Section 3 of this Agreement (as qualified by the GALT Disclosure
Letter) are true, correct and complete in all material respects and do not
contain any untrue statement of a material fact or omit to state any material
fact necessary in order to make such representations, warranties or statements,
in light of the circumstances under which they were made, not misleading.
4. REPRESENTATIONS AND WARRANTIES OF INTUIT
Intuit hereby represents and warrants, that, except as set forth in a
letter addressed to GALT dated the Agreement Date and delivered by Intuit to
GALT concurrently herewith (the "INTUIT DISCLOSURE LETTER") (which Intuit
Disclosure Letter shall be deemed to be representations and warranties made to
GALT by Intuit under this Section 4), each of the following representations and
statements in this Section 4 are true and correct as of the Agreement Date:
4.1 Organization and Good Standing. Intuit is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware, and has the corporate
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power and authority to own, operate and lease its properties and to carry on its
business as now conducted and as proposed to be conducted.
4.2 Power, Authorization and Validity.
4.2.1 Intuit has the right, power, legal capacity and
authority to enter into, execute and perform its obligations under this
Agreement and all agreements to which Intuit is or shall be a party that are to
be executed by Intuit pursuant to, or with GALT concurrently with, the execution
of this Agreement, including the Intuit Loan Agreement (as defined in Section
6.2) and the Services Agreement being entered into by and between GALT and
Intuit concurrently with their execution of this Agreement (collectively, the
"INTUIT ANCILLARY AGREEMENTS"). The execution, delivery and performance of this
Agreement and the Intuit Ancillary Agreements have been duly and validly
approved and authorized by Intuit's Board of Directors.
4.2.2 No filing, authorization or approval, governmental or
otherwise, is necessary to enable Intuit to enter into and to perform its
obligations under this Agreement and the Intuit Ancillary Agreements, except for
(a) the filing of the Agreement of Merger with the offices of the Delaware
Secretary of State and the filing of the Articles of Merger with the
Pennsylvania Department of State and the filing of appropriate documents with
the relevant authorities of other states in which Intuit is qualified to do
business, if any; (b) the filing of the Permit Application with the Department
and such other filings as may be required to comply with federal and state
securities laws; and (d) any filing (if any) that may be required by the
Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act ("HSR ACT").
4.2.3 This Agreement and the Intuit Ancillary Agreements are,
or when executed by Intuit shall be, valid and binding obligations of Intuit
enforceable in accordance with their respective terms, except as to the effect,
if any, of (a) applicable bankruptcy and other similar laws affecting the rights
of creditors generally, and (b) rules of law and equity governing specific
performance, injunctive relief and other equitable remedies.
4.3 Capital Structure. The authorized capital stock of Intuit
consists of 60,000,000 shares of Intuit Common Stock, $0.01 par value, and
3,000,000 shares of Preferred Stock, $0.01 par value (the "INTUIT PREFERRED
STOCK"), of which 144,918 shares are designated Series A Preferred Stock,
1,655,082 shares are formerly authorized shares of Series A Preferred Stock that
are not currently issuable by Intuit under the terms of Intuit's Certificate of
Incorporation and 1,200,000 shares are undesignated. At the close of business on
October 13, 1995, approximately 44,201,321 shares of Intuit Common Stock were
issued and outstanding, and 4,377 shares of Intuit Common Stock were held by
Intuit in its treasury. No shares of Intuit Preferred Stock are issued or
outstanding.
4.4 No Violation of Existing Agreements. Neither the execution and
delivery of this Agreement nor any Intuit Ancillary Agreement, nor the
consummation of the transactions contemplated hereby and thereby, shall conflict
with, or (with or without notice or lapse of time, or both) result in: (a) a
termination, breach, impairment or violation of (i) any provision of the
Certificate of Incorporation or Bylaws of Intuit, as currently in effect or (ii)
any federal, state, local or foreign judgment, writ, decree, order, statute,
rule or regulation applicable to Intuit or its assets or properties; or (b) a
termination, or a material breach, impairment or violation, of any
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material instrument, agreement, contract or commitment to which Intuit is a
party or by which Intuit or its assets or properties are bound that would have a
material adverse effect on the business or financial condition of Intuit and its
subsidiaries, taken as a whole.
4.5 Intuit Disclosure Package. Intuit has delivered to GALT or its
counsel the proxy materials dated June 20, 1995 that were distributed by Intuit
to its stockholders in connection with Intuit's Annual Meeting of Stockholders
held on July 20, 1995 and a copy of the Prospectus dated June 20, 1995 covering
a registered public offering of Intuit Common Stock (collectively, the "INTUIT
DISCLOSURE PACKAGE").
4.6 Financial Statements. The financial statements of Intuit included
in the documents in the Intuit Disclosure Package complied as to form in all
material respects with the then applicable accounting requirements and the
published rules and regulations of the SEC with respect thereto, were prepared
in accordance with generally accepted accounting principles applied on a
consistent basis during the periods involved (except as may have been indicated
in the notes thereto or, in the case of any unaudited statements, as permitted
by the SEC) and fairly present (subject, in the case of the unaudited
statements, to normal, year-end audit adjustments) the consolidated financial
position of Intuit and its consolidated subsidiaries as at the respective dates
thereof and the consolidated results of their operations and cash flows.
4.7 Validity of Shares. The shares of Intuit Common Stock to be issued
pursuant to the Merger shall, when issued, (a) be duly authorized, validly
issued, fully paid and nonassessable, (b) assuming the Permit is issued by the
Department following, and pursuant to, the Fairness Hearing so as to qualify for
the exemption from registration afforded by Section 3(a)(10) of the 1933 Act, be
free and clear of any restrictions, liens and encumbrances except for applicable
restrictions on transfer under Rule 145(d) as promulgated under the 1933 Act and
under any GALT Affiliate Agreement to be executed pursuant to this Agreement and
(c) not be subject to any preemptive rights created by statute, the Certificate
of Incorporation or the Bylaws of Intuit.
4.8 Absence of Litigation. There is no claim, action, proceeding or
investigation pending or, to the best knowledge of Intuit, threatened against
Intuit or any property or asset of Intuit, before any court, arbitrator or
administrative, governmental or regulatory authority or body, domestic or
foreign, which is not disclosed in the Intuit Disclosure Package or which,
individually or in the aggregate, would have a material adverse effect on
Intuit. Neither Intuit nor any property or asset of Intuit, is subject to any
order, writ, judgment, injunction, decree, determination or award which would
have, individually or in the aggregate, a material adverse effect on the
business or financial condition of Intuit and its subsidiaries, taken as a
whole.
5. GALT COVENANTS
5.1 Preclosing Covenants. During the period from the Agreement Date
until the earlier to occur of (i) the Effective Time or (ii) the termination of
this Agreement in accordance with Section 10, GALT covenants and agrees with
Intuit as follows:
5.1.1 Cooperation; Advice of Changes. GALT shall promptly
advise Intuit in writing (a) of any event occurring subsequent to the Agreement
Date of which GALT becomes aware that would render any representation or
warranty of GALT contained in Section 3 of this
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Agreement (as qualified by the GALT Disclosure Letter) materially inaccurate if
such representation or warranty had been made on or as of the date of any such
event and (b) of any material adverse change in GALT's business, results of
operations or financial condition of which GALT becomes aware. GALT shall
deliver to Intuit within fifteen (15) days after the end of each full calendar
month ending after the Agreement Date and before the Closing Date, an unaudited
balance sheet, statement of operations and statement of cash flows for such
monthly period. GALT shall use best efforts to assist Intuit to ensure that the
Surviving Corporation has all authorizations, approvals, registrations, licenses
and other consents of any governmental or other regulatory body necessary to
conduct its business as contemplated hereby.
5.1.2 Maintenance of Business. GALT shall use its best efforts
to carry on and preserve its business and its relationships with customers,
suppliers, licensors, employees and others in substantially the same manner as
it has prior to the date hereof.
5.1.3 Conduct of Business. GALT shall continue to conduct its
business and maintain its business relationships in the ordinary course.
5.1.4 Certain Actions. GALT shall not, without the prior
written consent of the Chief Executive Officer of Intuit:
(a) borrow or lend any money (other than (i) funds
borrowed from Intuit pursuant to the Intuit Loan Agreement referred to in
Section 6.2 hereof or (ii) pursuant to any bank credit line or similar credit
facility approved in writing by Intuit) or encumber or voluntarily permit any of
its assets to be encumbered or subject to any lien except to secure loans
permitted under the foregoing provisions of this subparagraph (a) and except in
the ordinary course of its business consistent with past practice and to an
extent which is not material;
(b) enter into, amend or terminate any transaction,
lease, contract or other agreement that (i) would materially increase GALT's
working capital requirements in amounts that can not be reasonably satisfied by
the amount of funds that Intuit is required to loan to GALT under the Intuit
Loan Agreement (as defined in Section 6.2 hereof) or any other bank credit line
or similar credit facility of GALT that has been approved in writing by Intuit;
(ii) would adversely affect Intuit's ability to operate, or obtain the financial
benefit of, the business of GALT following the Effective Time; or (iii) that
contains any terms or conditions that would make consummation of the Merger a
breach or violation of such transaction, lease, contract or other agreement;
(c) sell, lease or otherwise dispose of any of its
assets that are material to it, whether individually or in the aggregate, or
license any of its technology or intellectual property on any exclusive basis or
in any other manner that would adversely affect Intuit's ability to successfully
exploit such technology or intellectual property after the Effective Time
consistent with GALT's historic business practices;
(d) pay (or make any commitment to pay) any bonus,
increased salary or special remuneration to any officer or to any employee who
owns GALT Stock representing more than five percent (5%) of the voting power of
all outstanding GALT Stock (except for normal salary increases consistent with
past practices not to exceed ten percent (10%)
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of such officer's or employee's base annual salary, and except pursuant to
existing arrangements previously disclosed in the GALT Disclosure Letter or
disclosed by GALT in writing to Intuit and approved in writing by Intuit, after
the Agreement Date) or enter into any new employment agreement with any such
person;
(e) change any of its accounting methods in any
material respect that is not approved by Intuit's independent auditors (such
approval not to be unreasonably withheld);
(f) guarantee, or act as a surety for, any
obligation of any third party;
(g) declare, set aside or pay any cash or stock
dividend or other distribution in respect of capital stock, or redeem,
repurchase or otherwise acquire any of its capital stock;
(h) issue or sell any shares of its capital stock
of any class (except for an issuance of GALT Common Stock upon the exercise of a
GALT Option that is disclosed in Section 3.3 as, and is in fact, outstanding on
the Agreement Date or upon the exercise of a GALT Option that is permitted to be
granted under the following provisions of this subparagraph (h)), or any other
of its securities, or issue or create any warrants, obligations, subscriptions,
options, convertible securities, or other commitments to issue any shares of
capital stock or other securities of GALT (except for the grant to GALT
employees of GALT Options to purchase not more than an aggregate total of
183,697 shares of GALT Common Stock, as now constituted, pursuant to the GALT
Stock Option Plan, where such grants are made in the ordinary course of business
at levels and for purposes consistent with GALT's past practices and with the
consent of Intuit, which consent shall not be unreasonably withheld consistent
with the ability to have the Merger accounted for as a "pooling of interests"
transaction);
(i) split, combine or reclassify any outstanding
shares of its capital stock of any class or series, enter into any
recapitalization affecting the number of outstanding shares of its capital stock
of any class or affecting any other of its securities, modify any rights of any
of its securities, accelerate the vesting of any outstanding option or other
security, or otherwise change the equity interest of any of its voting
securities;
(j) merge, consolidate or reorganize with, or
acquire any entity other than Intuit Sub or Intuit;
(k) amend its Articles of Incorporation or Bylaws;
or
(l) agree to do any of the things described in the
preceding clauses 5.1.4(a) through 5.1.4(k).
provided, however, that notwithstanding the foregoing, GALT shall be excused
from compliance with the foregoing provisions of this subparagraph 5.1.4 to the
extent that they prohibit GALT from borrowing money and encumbering its assets
in connection with such borrowing or prohibit GALT from issuing shares of GALT
Common Stock and/or GALT Series A Preferred stock if, and only if Intuit has
materially breached its obligation to advance loans to GALT under the
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Intuit Loan Agreement and failed to cure such material breach within three (3)
business days after receiving written notice of such material breach from GALT.
5.1.5 Shareholder Approval. GALT shall, in cooperation with
Intuit, call and hold a special meeting of GALT's shareholders or solicit the
written consent of GALT's shareholders at the earliest practicable date after
the conclusion of the Fairness Hearing (unless Intuit requests GALT to defer
such meeting or consent) to submit this Agreement, the Agreement of Merger, the
Merger and related matters for the consideration and approval of GALT's
shareholders, which approval shall be recommended by GALT's Board of Directors
(such vote or consent of the GALT shareholders is hereinafter referred to as the
"GALT SHAREHOLDER VOTE").
5.1.6 Preparation of Permit Application, Hearing Request and
Hearing Notice. GALT shall cooperate in good faith with Intuit to have the
Permit Application promptly prepared, filed and to have the notice of the
Fairness Hearing in the form approved by the Commissioner promptly sent to all
GALT's security holders so that the Permit can be issued and declared effective
under the California Law as promptly as practicable, and shall cause at least
one GALT officer and GALT's counsel to attend the Fairness Hearing. GALT shall
be solely responsible for any statement, information or omission relating to
GALT or its affiliates that is contained in the Permit Application, the Fairness
Hearing notice or the Information Statement.
5.1.7 Regulatory Approvals. GALT shall use reasonable, good
faith efforts to obtain, and to cooperate with Intuit to obtain, all
authorizations, approvals and consents of any governmental body, which may be
reasonably required in connection with the consummation of the Merger and/or any
other transaction contemplated by this Agreement in accordance with the terms of
this Agreement.
5.1.8 Necessary Consents. GALT shall cooperate with Intuit to
obtain such written consents, waivers or approvals as are required to allow the
consummation of the transactions contemplated hereby, to allow Intuit and Intuit
Sub to carry on GALT's business after the Closing and to allow Intuit (or Intuit
Sub) to enjoy the full benefit of any material lease, mortgage, contract,
agreement or instrument to which GALT is a party or by which GALT or its
property is or may be bound at the Closing Date.
5.1.9 Litigation. GALT shall notify Intuit in writing promptly
after learning of any material action, suit, claim, arbitration, proceeding or
investigation by or before any court, arbitrator or arbitration panel, board or
governmental agency, initiated by or against it, or known by it to be threatened
against it.
5.1.10 No Other Negotiations. GALT shall not, and shall not
authorize, encourage or direct any officer, director, employee or affiliate of
GALT, or any other person, on its behalf to, directly or indirectly, solicit or
encourage any offer from any party or consider any inquiries or proposals
received from any other party, participate in any negotiations regarding, or
furnish to any person any information with respect to, or otherwise cooperate
with, facilitate or encourage, any effort or attempt by any person (other than
Intuit), concerning any agreement or transaction regarding the possible
disposition of all or any substantial portion of GALT's business, assets or
capital stock by merger, consolidation, sale of assets or any other means of
business combination (an "ALTERNATIVE TRANSACTION"). GALT shall promptly notify
Intuit orally
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and in writing of any such inquiries or proposals. In addition GALT shall not
execute, enter into or become bound by (a) a letter of intent or other agreement
between GALT and any third party that is related to an Alternative Transaction
and pursuant to which GALT makes any agreement that would be binding on Intuit
if the Merger occurred or that may adversely affect GALT's assets or the
consummation of the Merger, or (b) an agreement or commitment between GALT and a
third party providing for an Alternative Transaction.
5.1.11 Access to Information. Until the Closing, GALT shall
allow Intuit and its agents reasonable access to the files, books, records and
offices of GALT, including, without limitation, any and all information relating
to GALT's taxes, commitments, contracts, leases, licenses, and real, personal,
intangible and intellectual property and financial condition, subject to the
terms of the letter confidentiality agreement between GALT and Intuit dated as
of October 17, 1995 (the "CONFIDENTIALITY AGREEMENT"). GALT shall authorize and
request its accountants to cooperate with Intuit and its agents in making
available all financial information reasonably requested, including without
limitation the right to examine all working papers pertaining to all financial
statements prepared or audited by such accountants.
5.1.12 Satisfaction of Conditions Precedent. GALT shall use
its best efforts to satisfy or cause to be satisfied all the conditions
precedent which are set forth in Sections 8 and 9 (insofar as satisfaction of
such conditions is within GALT's reasonable control), and GALT shall use its
best efforts to cause the transactions contemplated by this Agreement to be
consummated.
5.1.13 GALT Affiliates Agreements. Concurrently with the
execution of this Agreement GALT shall deliver to Intuit a letter identifying
all GALT's directors, officers, ten percent or greater shareholders and all
persons who are "affiliates" of GALT within the meaning of Rule 145 or Rule 405
under the 1933 Act at the time this Agreement is executed ("GALT AFFILIATES").
GALT shall cause each GALT Affiliate to deliver to Intuit, concurrently with the
signing of this Agreement, a written agreement (the "GALT AFFILIATES
AGREEMENT"), in the form of Exhibit 5.1.12. In addition, GALT shall cause each
person who may become a GALT Affiliate after the Agreement Date and before the
Effective Time to execute and deliver to Intuit a GALT Affiliate Agreement.
5.2 Elimination of Certain GALT Warrants and Notes. Concurrently with
its execution of this Agreement: (a) GALT has caused all warrants to purchase
shares of GALT Capital Stock that were outstanding at such time to be exercised
solely for shares of GALT Common Stock so that such warrants are no longer
exercisable or outstanding; and (b) has caused all indebtedness for borrowed
money (including all principal, accrued interest and other charges owed) that is
owed by GALT to any shareholder, director, officer or employee of GALT or to any
affiliate of the foregoing to be repaid in full.
5.3 Derivative Securities. GALT shall take all actions necessary to
ensure that no GALT Derivative Securities (other than the shares of GALT Series
A Preferred Stock that are outstanding on the Agreement Date and reflected in
Section 3.3 or are permitted to be issued by GALT under the terms of Section
5.1.4 hereof) are issued or outstanding immediately prior to the Effective Time.
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5.4 Securities Compliance. GALT shall use its reasonable good faith
efforts to cooperate with Intuit to enable Intuit to offer and issue all Intuit
securities to be issued pursuant to this Agreement to be issued in compliance
with all applicable securities laws and the requirements of the Nasdaq Stock
Market and/or any other securities exchange on which Intuit Common Stock is
traded.
5.5 Certain Investments, Agreements. GALT does not own, and shall not
make any purchase or other acquisition of, or investment in, any shares of
Intuit Common Stock or other securities of Intuit. GALT shall not enter into any
agreement with any holders of Intuit shares calling for either GALT or Intuit to
retire or reacquire all or part of the Intuit shares to be issued pursuant to
the Merger. GALT shall not enter into any financial arrangements for the benefit
of any GALT shareholder which, in effect, would negate the exchange of equity
securities contemplated under this Agreement, including without limitation, any
loan or other financial arrangement at abnormally low interest rates, or any
guarantee of loans secured by Intuit shares to be issued pursuant to the Merger.
5.6 Pooling. Following the Agreement Date, GALT shall not take (a) any
of the actions described in Exhibit 5.6 or (b) any other action if, prior to
taking such action, GALT has been informed by Intuit or its accountants that, in
the opinion of Intuit's accountants, taking such action may preclude Intuit from
accounting for the Merger as a "pooling of interests" for accounting purposes
and Intuit or its accountants promptly give GALT a writing that states in
reasonable detail the action that Intuit or its accountants request GALT not to
take. GALT shall cooperate with Intuit to cause the business combination to be
effected by the Merger to be accounted for as a pooling of interests for
accounting purposes.
5.7 GALT Dissenting Shares. As promptly as practicable after the date
of the GALT Shareholder Vote and prior to the Closing Date, GALT shall furnish
Intuit with the name and address of each holder of any GALT Dissenting Shares
(if any) and the number of GALT Dissenting Shares owned by each such holder.
5.8 Termination of Registration and Voting Rights. All registration
rights agreements and voting agreements applicable to or affecting any
outstanding shares or other securities of GALT shall be duly terminated and
canceled by no later than the Effective Time.
5.9 Invention Assignment and Confidentiality Agreements. Each employee
and consultant of GALT who has had access to any software or other technology
owned or developed by GALT, or to any other confidential or proprietary
information of GALT, shall have executed and delivered to GALT an invention
assignment and confidentiality agreement in a form reasonably acceptable to
Intuit.
5.10 Closing of Merger. GALT shall not refuse to effect the Merger if,
on or before the Closing Date, all the conditions precedent to GALT's
obligations to effect the Merger under Section 8 hereof have been satisfied or
waived by GALT.
6. INTUIT COVENANTS
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6.1 Preclosing Covenants. During the period from the Agreement Date
until the earlier to occur of (i) the Effective Time or (ii) the termination of
this Agreement in accordance with Section 10, Intuit covenants and agrees as
follows:
6.1.1 Regulatory Approvals. Intuit shall execute and file, or
join in the execution and filing, of any application or other document that may
be necessary in order to obtain the authorization, approval or consent of any
governmental body, federal, state, local or foreign, which may be legally
required, in connection with the consummation of the transactions contemplated
by this Agreement. Intuit shall use its best efforts to obtain, and to cooperate
with GALT to obtain, all such authorizations, approvals and consents.
6.1.2 Satisfaction of Conditions Precedent. Intuit shall use
its best efforts to satisfy or cause to be satisfied all the conditions
precedent which are set forth in Sections 8 and 9 (insofar as satisfaction of
such conditions is within Intuit's reasonable control), and Intuit shall use its
best efforts to cause the transactions contemplated by this Agreement to be
consummated, and, without limiting the generality of the foregoing, to obtain
all consents and authorizations of third parties and to make all filings with,
and give all notices to, third parties that may be necessary or reasonably
required on its part in order to enable it to effect the transactions
contemplated hereby.
6.1.3 Preparation of Permit Application, Hearing Request and
Hearing Notice. As promptly as practicable after the date hereof (but in no
event later than December 31, 1995), Intuit, with GALT's assistance, shall
prepare and file with the Department the Permit Application, a request for a
Fairness Hearing and any other documents required by the California Law in
connection with such Permit Application. Intuit, with GALT's assistance, shall
participate in the Fairness Hearing and use its best efforts to have the Permit
declared effective under the California Law as promptly as practicable after
such filing. Intuit shall be solely responsible for any statement, information
or omission in the Permit Application (and the exhibits thereto) that relates to
Intuit or its affiliates. If Section 2.8(b) hereof becomes operative, then
Intuit shall use its best efforts to comply with its obligations thereunder.
6.1.4 Litigation. Intuit shall notify GALT in writing promptly
after learning of any material action, suit, arbitration, proceeding or
investigation by or before any court, arbitrator or arbitration panel, board or
governmental agency, initiated by or against Intuit or known by it to be
threatened against it, which could reasonably be expected to materially and
adversely affect Intuit or the prospects for consummation of the Merger if such
action, suit, arbitration, proceeding or investigation were decided adversely to
Intuit.
6.1.5 Advice of Changes. Intuit shall promptly advise GALT in
writing (a) of any event occurring subsequent to the date of this Agreement that
would render any representation or warranty of Intuit contained in Section 4 of
this Agreement (as qualified by the Intuit Disclosure Letter), if made on or as
of the date of such event or the Closing Date, untrue or inaccurate in any
material respect and (b) of any material adverse change in Intuit's business,
results of operations or financial condition; provided, however, that Intuit
shall not be obligated to disclose such information to GALT at any time or in
any manner that might subject Intuit to liability under applicable securities
laws.
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6.2 Working Capital Loan. Concurrently with the execution of this
Agreement by the parties, GALT and Intuit shall each enter into, execute and
deliver the Credit Agreement, Secured Revolving Promissory Note and Security
Agreement in the forms attached hereto as Exhibit 6.2 (such agreements being
collectively referred to as the "INTUIT LOAN AGREEMENT"). Subject to the terms
and conditions of the Loan Agreement, Intuit will lend GALT the principal amount
of not more than Three Million Eleven Thousand Ninety-Six Dollars ($3,011,096),
with the proceeds of any such loan or loans to be used by GALT solely for
working capital and any other purposes specified in the Intuit Loan Agreement.
All loans or advances of funds made by Intuit under the Intuit Loan Agreement
are hereinafter referred to as "INTUIT LOANS." The parties acknowledge and agree
that the repayment of all Intuit Loans shall be secured by GALT's grant to
Intuit, pursuant to the terms and conditions of the Intuit Loan Agreement, of a
first and senior lien and security interest in and to all of the assets and
properties of GALT, whether now owned or hereafter acquired. GALT further agrees
that, if so requested by Intuit, it shall use its best efforts to cooperate with
Intuit to obtain, as soon as practicable, replacement loan financing from a bank
or other lending institution that will be used to pay off all then outstanding
Intuit Loans.
6.3 Post-Merger Grant of Options. If the Merger is consummated as
contemplated by this Agreement, then as soon as reasonably practicable following
the closing and consummation of the Merger, and subject to the customary
approval of the Compensation Committee of Intuit's Board of Directors or its
delegate(s), Intuit shall grant to those persons who are GALT employees at the
date of the Closing of the Merger and who continue as GALT employees thereafter,
options to purchase shares of Intuit Common Stock in amounts determined by
Intuit in its sole discretion but consistent with the option grant levels that
are then customary for new Intuit employees of similar responsibility and
status, determined without regard to the number of Intuit Options issued to such
GALT employees in the Merger. The options to be granted pursuant to this Section
shall be granted at an exercise price equal to the then-current fair market
value of Intuit stock on the date of option grant as determined by Intuit
consistent with Intuit's past practice, with the right to exercise such options
to vest over a four-year period beginning on the first date of the optionee's
employment with the Surviving Corporation or Intuit after the Effective Time in
accordance with the vesting formulas then generally afforded to options granted
to new Intuit employees.
6.4 Closing of Merger. Intuit shall not refuse to effect the Merger if,
on or before September 30, 1996, all the conditions precedent to Intuit's
obligations to effect the Merger under Section 9 hereof have been satisfied or
waived by Intuit.
7. CLOSING MATTERS
7.1 The Closing; Closing Date.
(a) Closing. The closing of the transactions for consummation of
the Merger (the "CLOSING") shall take place at the offices of Fenwick & West,
Two Xxxx Xxxx Xxxxxx, Xxxx Xxxx, Xxxxxxxxxx 00000 on that date occurring on or
before September 30, 1996 that Intuit, in its sole discretion, chooses to be the
date of the Closing and gives GALT at least thirty (30) days' advance written
notice of in accordance with this Agreement. If Intuit fails to give GALT such
advance written notice of the scheduled Closing by August 15, 1996, then the
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Closing shall be held on September 1, 1996 unless the parties otherwise agree.
Nothing in this Section is intended to waive or eliminate the conditions
precedent to the parties' obligations to effect the Merger in Sections 8 and 9
hereof.
(b) Actions at Closing; Closing Date. Concurrently with the
Closing, the Agreement of Merger and the Articles of Merger shall be filed in
the offices of the Delaware Secretary of State and the Pennsylvania Department
of State, respectively. As used herein, the "CLOSING DATE" shall mean the date
on which the Closing occurs.
7.2 Exchange of Certificates.
7.2.1 At the Closing, each holder of shares of GALT capital stock
shall surrender to Intuit for cancellation the certificate(s) for such shares
(each a "GALT CERTIFICATE"), duly endorsed to Intuit or accompanied by duly
executed stock powers and assignments separate from certificate transferring
title to such shares to Intuit. At the Closing, or as promptly as practicable
after the Effective Time, and against receipt of such GALT Certificates, Intuit
shall issue to each tendering holder of a GALT Certificate a certificate for the
number of shares of Intuit Common Stock to which such holder is entitled
pursuant to Section 2 hereof. All Intuit Common Stock delivered upon the
surrender of GALT Stock in accordance with the terms hereof shall be deemed to
have been delivered in full satisfaction of all rights pertaining to such GALT
Stock.
7.2.2 No dividends or distributions payable to holders of record of
Intuit Common Stock after the Effective Time, or cash payable in lieu of
fractional shares, shall be paid to the holder of any unsurrendered GALT
Certificate until the holder of the GALT Certificate(s) surrenders such GALT
Certificate to Intuit as provided above. Subject to the effect, if any, of
applicable escheat and other laws, following surrender of any GALT Certificate,
there shall be delivered to the person entitled thereto, without interest, the
amount of any dividends and distributions therefor paid with respect to Intuit
Common Stock so withheld as of any date subsequent to the Effective Time and
prior to such date of delivery.
7.2.3 After the Effective Time there shall be no further
registration of transfers on the stock transfer books of GALT or its transfer
agent of the GALT Stock. If, after the Effective Time, GALT Certificates are
presented for any reason, they shall be canceled and exchanged as provided in
this Section 7.2.
7.2.4 Until GALT Certificates representing GALT Stock outstanding
prior to the Effective Time are surrendered pursuant to Section 7.2.1 above,
such GALT Certificates shall be deemed, for all purposes, to evidence ownership
of the number of shares of Intuit Stock into which the GALT Stock shall have
been converted pursuant to Section 2.
7.3 Converted GALT Options. Upon the Effective Time, all original GALT
stock option grant agreements representing GALT Options that were outstanding
immediately prior to the Effective Time ("GALT OPTION GRANTS") shall represent
the Intuit Options into which such GALT Options were converted in the Merger and
may be presented to Intuit for exercise of such Intuit Options. Intuit, in its
sole discretion, may elect to replace such GALT Option Grants with
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new Intuit Option Grant documents that do not change the terms on which the GALT
Options are to be converted into Intuit Options under Section 2.2 hereof.
8. CONDITIONS TO OBLIGATIONS OF GALT
GALT's obligations to effect the Merger hereunder are subject to the
fulfillment or satisfaction, on and as of the Closing, of each of the following
conditions (any one or more of which may be waived by GALT, but only in a
writing signed by GALT):
8.1 Accuracy of Representations and Warranties. The representations and
warranties of Intuit set forth in Section 4 (as qualified by the Intuit
Disclosure Letter) shall have been true and accurate in every material respect
on and as of the Agreement Date, and GALT shall have received a certificate to
such effect executed by Intuit's President, Executive Vice President or Chief
Financial Officer.
8.2 Covenants. Intuit shall have performed and complied in all material
respects with all its covenants in Section 6 on or before the Closing (or cured
any such failure to perform and comply with such covenants), and GALT shall have
received a certificate to such effect signed by Intuit's President, Executive
Vice President or Chief Financial Officer.
8.3 Compliance with Law; No Legal Restraints. The parties shall be able
to consummate the Merger without violation of any law, judgment, order or
decree, and all authorizations or consents required to be obtained from any
governmental authority to lawfully consummate the Merger shall have been
obtained.
8.4 Requisite GALT Shareholder Approvals. The principal terms of this
Agreement, the Agreement of Merger and the Merger shall have been approved and
adopted by GALT's shareholders, as required by applicable law and GALT's
Articles of Incorporation and Bylaws.
8.5 Opinion of Intuit's Counsel. GALT shall have received from Fenwick
& West, counsel to Intuit, an opinion substantially in the form of Exhibit 8.5.
8.6 Transferability of Securities. The shares of Intuit Common Stock to
be issued upon the conversion of GALT Stock in the Merger pursuant to the
provisions of Section 2.1.3 hereof shall either (i) be transferable, in the
opinion of Intuit's counsel that is reasonably acceptable to GALT, pursuant to
the provisions of Rule 145(d) under the 1933 Act; or (ii) be registered under
the 0000 Xxx.
9. CONDITIONS TO OBLIGATIONS OF INTUIT
The obligations of Intuit to effect the Merger hereunder are subject to
the fulfillment or satisfaction on, and as of the Closing, of each of the
following conditions (any one or more of which may be waived by Intuit, but only
in a writing signed by Intuit):
9.1 Covenants. GALT shall have performed and complied in all material
respects with all of its covenants contained in Section 5 hereof (except for (a)
the covenants contained in Sections 5.1.1, 5.1.2, 5.1.3, 5.1.9, 5.1.11 and 5.7
and (b) the covenants contained in Section 5.12,
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but only if GALT's violation of its covenants in Section 5.12 has not impaired
the satisfaction of any conditions to the parties' obligations to effect the
Merger under Section 8 or this Section 9, or caused Intuit to breach this
Agreement) on or before the Closing (or cured any such failure to perform or
comply with such covenants) and Intuit shall have received a certificate to such
effect signed by GALT's President and Chief Financial officer.
9.2 Compliance with Law; No Legal Restraints. The parties shall be able
to consummate the Merger without violation of any law, judgment, order or
decree, and all authorizations or consents required to be obtained from any
governmental authority to lawfully consummate the Merger shall have been
obtained.
9.3 Securities Law Compliance; Transferability of Securities. Either
the Commissioner shall have issued the Permit, or other action shall have been
taken so that Intuit may lawfully offer and issue the shares of Intuit Common
Stock and Intuit Options to be issued in the Merger.
9.4 Outstanding Securities; No Intuit Stockholder Vote. The shares of
GALT Capital Stock outstanding immediately prior to the Effective Time shall
consist only of (i) the shares of GALT Common Stock and GALT Series A Preferred
Stock represented by GALT as being outstanding on the Agreement Date in Section
3.3 hereof, and (ii) any shares of GALT stock that GALT is permitted to issue
under Section 5 hereof, provided that such stock consists only of GALT Common
Stock or GALT Series A Preferred Stock. No GALT Derivative Securities (other
than any shares of GALT Series A Preferred Stock referred to in the preceding
sentence) shall be outstanding immediately prior to the Effective Time. The
number of shares of Intuit Common Stock that Intuit must issue upon the
conversion of outstanding shares of GALT Stock and converted GALT Options shall
not exceed the number of shares of Intuit Common Stock that would require Intuit
to seek the approval of the Merger by its stockholders under applicable law or
the bylaws, rules or regulations of the Nasdaq Stock Market or any other stock
exchange on which Intuit Common Stock is traded.
9.5 Resignation of Directors. The directors of GALT in office
immediately prior to the Effective Time of the Merger shall have resigned as
directors of the Surviving Corporation effective as of the Effective Time.
9.6 Opinion of GALT's Counsel. Intuit shall have received from Xxxxxxxx
Xxxxxxxxx, counsel to GALT, an opinion substantially in the form of Exhibit 9.6.
9.7 Requisite GALT Shareholder Approvals. The principal terms of this
Agreement, the Agreement of Merger and the Merger shall have been approved and
adopted by GALT's shareholders, as required by applicable law and GALT's
Articles of Incorporation and Bylaws, and by GALT's Board of Directors and
holders of the issued and outstanding shares of GALT capital stock representing
at least ninety-three percent (93%) of the voting power of all issued and
outstanding shares of GALT capital stock shall have duly and validly
affirmatively voted to approve this Agreement, the Agreement of Merger and the
Merger in accordance with all applicable laws.
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9.8 Limits on Dissenting Shares. The shares of GALT Stock with respect
to which any GALT shareholders shall be eligible to exercise or perfect any
statutory appraisal rights of dissenting shareholders shall not exceed that
number (and class or series) of shares of GALT Stock that, but for the exercise
of such statutory appraisal rights, would be entitled to receive seven percent
(7%) or more of the total number of shares of Intuit Common Stock that would be
issuable in the Merger upon the conversion of all shares of GALT Stock that are
outstanding immediately prior to the Effective Time.
9.9 No Violation of Agreements. No GALT Affiliate who has executed a
GALT Affiliate Agreement with Intuit pursuant to Section 5.13 shall have,
breached, attempted to cancel or void such GALT Affiliate Agreement or asserted
that it is unenforceable and no Principal Shareholder who has executed a
Non-Competition Agreement with Intuit shall have attempted to cancel or void
such Non-Competition Agreement or asserted that it is unenforceable.
10. TERMINATION OF AGREEMENT AND MERGER
10.1 Termination.
10.1.1 By Consent. This Agreement, the Agreement of Merger, the
Merger and all transactions related thereto may be terminated at any time prior
to the Effective Time by the mutual written consent of Intuit and GALT.
10.1.2 Termination on Termination Date. Unless the Merger has
occurred, or unless otherwise agreed in writing by the parties hereto, this
Agreement, the Agreement of Merger, the Merger and all transactions related
thereto will automatically terminate without the need for action on the part of
any party hereto at Midnight Pacific Time on September 30, 1996 (such time and
date being hereinafter referred to as the "TERMINATION DATE") if by that time
all of the conditions precedent to the parties' obligation to effect the Merger
set forth in Sections 8 and 9 hereof have not been satisfied or waived in
writing by the appropriate party.
10.1.3 Termination by Intuit for Certain GALT Breaches and
Remedies Therefor. If: (i) GALT enters into an agreement or commitment with a
third party providing for an Alternative Transaction; (ii) all of the conditions
precedent to GALT's and Intuit's obligations to effect the Merger under Sections
8 and 9 hereof have been fulfilled (or waived in writing by the party whose
obligation to close would otherwise be subject to such condition precedent) by
the date on which the Closing is to be held pursuant to Section 7.1(a) hereof
(the "SCHEDULED CLOSING DATE") and Intuit stands ready, willing and able to
effect the Closing and the Merger, and GALT nevertheless refuses or fails to
effect and consummate the Merger on the Scheduled Closing Date; (iii) Point
Venture Partners, L.P., Point Venture Partners Pennsylvania, L.P., Xxxxxx X.
Xxxxx, Xxxxxx X. Xxxxxx, D. Xxxx Xxxxx, or Xxxxx X. Xxxxxxxxxx fail to vote all
their GALT shares in favor of this Agreement and the Merger at the GALT
Shareholder Vote or otherwise or attempt to exercise statutory dissenting
shareholders' appraisal rights; or (iv) the shareholders of GALT fail to approve
this Agreement and the Merger by the percentage vote required in Section 9.7
hereof; then (a) Intuit may immediately terminate this Agreement, the Agreement
of Merger, the Merger and all transactions related thereto by giving GALT
written notice of such termination, (b) the entire principal amount of, and all
accrued interest due under,
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all Intuit Loans made under the Intuit Loan Agreement shall accelerate and
become immediately due and payable to Intuit in full; (c) all Intuit's
obligations to loan funds to GALT under the Intuit Loan Agreement shall
automatically and immediately terminate without the need for any further action
on the part of either party thereto; and (d) the Services Agreement being
entered into by GALT and Intuit concurrently herewith shall automatically and
immediately terminate without the need for any further action on the party of
either party thereto. Intuit's remedies under this Section 10.1.3 are not
exclusive and shall not preclude it from recovering actual damages for its lost
profits, transaction expenses and other quantifiable damages, as well as to
enforce any other rights or remedies to which it may be entitled under
applicable law.
10.1.4 Termination for Breach by Intuit and Remedies Therefor. If
all of the conditions precedent to GALT's and Intuit's obligations to effect the
Merger under Sections 8 and 9 hereof have been fulfilled (or waived in writing
by the party whose obligation to close would otherwise be subject to such
condition precedent) and GALT stands ready, willing and able to effect the
Closing and the Merger, and notwithstanding the fulfillment and/or waiver of all
such conditions precedent and GALT's willingness and ability to effect the
Closing and the Merger, Intuit refuses or fails to effect and consummate the
Merger by the Termination Date, then on the Termination Date this Agreement, the
Agreement of Merger, the Merger and all transactions related thereto shall
automatically terminate without the need for any further action by any party
hereto. Such failure or refusal by Intuit to consummate the Merger shall
constitute a material breach of this Agreement. In the event of such breach,
Intuit shall be liable to and shall pay to GALT the sum of Four Million Dollars
($4,000,000) in cash, which sum the parties agree shall constitute liquidated
damages intended to reasonably and justly compensate GALT for the harm that it
will suffer in the form of loss of goodwill with its customers, injury to its
reputation and lost business opportunity, which damages the parties agree would
be difficult to measure or prove. Such liquidated damages do not include and
GALT's recovery of such damages shall not preclude it from recovering actual
damages for its lost profits, transaction expenses and other quantifiable
damages, as well as to enforce any other rights or remedies to which it may be
entitled under applicable law. Intuit shall pay to GALT the foregoing liquidated
damages upon ten (10) days' prior written notice from GALT. Notwithstanding the
foregoing, Intuit shall not be obligated to pay GALT the Four Million Dollar
($4,000,000) liquidated damages payment referenced above, if, on the Termination
Date, any amount of principal or accrued interest under any Intuit Loans made by
Intuit to GALT under the Intuit Loan Agreement remain outstanding and unpaid for
any reason and, within thirty (30) days after the Termination Date and prior to
any payment of liquidated damages, GALT has not (i) repaid to Intuit in full all
amounts of principal and accrued interest outstanding and unpaid under all
Intuit Loans made by Intuit under the Loan Agreement and (ii) executed and
delivered to Intuit a written agreement irrevocably releasing Intuit of all
Intuit's further obligations under the Intuit Loan Agreement.
10.2 No Liability; Survival of Certain Terms. Any termination of this
Agreement in accordance with the provisions of this Section 10 (other than a
termination of this Agreement pursuant to Section 10.1.3 or Section 10.1.4) will
be without further obligation or liability upon any party in favor of the other
party hereto other than the obligations of the parties set forth in the
Confidentiality Agreement, which provides for certain mutual nondisclosure
agreements between GALT and Intuit (but only for the length of time expressly
contemplated by the Confidentiality Agreement).
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11. SURVIVAL OF REPRESENTATIONS; REDUCTION OF MERGER CONSIDERATION
11.1 Survival of Representations. All representations and warranties of
GALT in Section 3 hereof, and all representations and warranties of Intuit in
Section 4 hereof, will survive execution of this Agreement and continue in
effect until the Closing and the consummation of the Merger (except that the
representations and warranties of Intuit in Section 4.7 hereof shall survive the
Closing), although the timing of certain claims with respect to GALT's
representations and warranties is limited by the final sentence of Section
11.2.1 hereof.
11.2 Adjustment of Merger Consideration for Breach of GALT
Representations and Warranties.
11.2.1 Price Adjustment Claims. Subject to the terms and
conditions of this Section 11, in the event that, at any time or from time to
time prior to the Closing, Intuit asserts a claim that any representation or
warranty made by GALT in Section 3 of this Agreement (as qualified by the GALT
Disclosure Letter) was false, untrue, incorrect or inaccurate in any respect as
of the Agreement Date (a "PRICE ADJUSTMENT CLAIM"), then Intuit may initiate an
arbitration proceeding as provided herein for the purpose of seeking a reduction
of the number of shares of Intuit Common Stock issuable by Intuit upon the
conversion of GALT Stock in the Merger, and the number of Intuit Options to be
issued upon the assumption of GALT Options as provided in Section 2.2 hereof.
Intuit shall initiate a Price Adjustment Claim by giving GALT written notice of
such Price Adjustment Claim as provided in Section 12.9 hereof (a "CLAIM
NOTICE"). The Claim Notice shall identify the representations and warranties of
GALT in Section 3 of this Agreement that Intuit asserts were false, untrue,
incorrect or inaccurate in any respect as of the Agreement Date (the "CLAIM
REPRESENTATIONS") and shall specify in reasonable detail the nature and basis of
Intuit's Price Adjustment Claim. For purposes of this Agreement, a Price
Adjustment Claim shall be deemed to have been made by Intuit on the date on
which the Claim Notice for such Price Adjustment Claim is effectively given and
served on GALT pursuant to Section 12.9 hereof. No Price Adjustment Claim may be
made by Intuit later than ninety (90) days prior to the date that Intuit selects
to be the Closing Date as set forth in the written notice of the Closing that
Intuit is required to give under Section 7.1(a) hereof, or, if no such notice of
Closing is given by Intuit by August 15, 1996, the default date of September 1,
1996.
11.2.2 Arbitration of Price Adjustment Claims.
(a) Arbitration. If Intuit makes a Price Adjustment Claim,
then the parties agree that the Price Adjustment Claim shall be submitted to,
and shall be resolved by, final, mandatory and binding arbitration (the
"ARBITRATION"). Subject to the provisions of this Section 11.2, the Arbitration
of each Price Adjustment Claim shall be governed exclusively by Pennsylvania law
and the arbitration shall take place according to the Commercial Arbitration
Rules of the American Arbitration Association (the "AAA RULES") and held in
Pittsburgh, Pennsylvania, and shall be decided by a single arbitrator chosen
according to such AAA Rules (the "ARBITRATOR"). If Intuit makes a Price
Adjustment Claim, then it shall initiate the Arbitration by filing with the
Pittsburgh, Pennsylvania office of the AAA an appropriate submission and request
for arbitration pursuant to the AAA rules not later than three (3) days
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after giving the Claim Notice to GALT. Except as permitted by law, neither party
may appeal or contest the decision and award (if any) of the Arbitrator (the
"ARBITRATION AWARD") and the parties agree that they shall be finally bound by
the Arbitration Award. Intuit shall pay and advance the fees of the Arbitrator
and all applicable administrative costs and fees of the AAA charged by the AAA
for such Arbitration, subject to any right that Intuit may be granted to recover
such payment of fees and costs under the Arbitration Award.
(b) Timing and Procedures. The Arbitration hearing will
commence thirty (30) days after Intuit gives the Claim Notice. The parties agree
that the Arbitration hearing shall be concluded no later than thirty (30) days
after it has commenced and that the Arbitration Award shall be announced and
delivered in writing to the parties within ten (10) days after the Arbitration
hearing has concluded. The Arbitrator shall agree to be bound and abide by the
time requirements of this Section and no arbitrator shall be chosen who cannot
comply with these time requirements. Neither party shall have any right to
request a delay or postponement of the Arbitration hearing without the other
party's written consent. Unless otherwise agreed by the parties, pre-hearing
discovery shall be limited to the following: (i) production of all documents
that will be introduced at the Arbitration hearing; (ii) production of written
or recorded statements; (iii) production of documents relied on by experts in
the Arbitration hearing; and (iv) not more than two (2) depositions per side.
All pre-hearing discovery shall be concluded within twenty (20) days of Intuit's
filing of its submission with the AAA. The parties agree that the provisions of
this Section shall be strictly construed and enforced by the Arbitrator.
(c) Decisions of Arbitrator; Arbitration Award. In the
Arbitration, the Arbitrator shall decide and determine only the following
issues: (i) whether or not any of the Claim Representations that Intuit, in its
Claim Notice, claims to have been false, untrue, incorrect or inaccurate in any
respect as of the Agreement Date was in fact false, untrue, incorrect or
inaccurate in any respect as of the Agreement Date; (ii) the amount of Damages
(as defined below), if any, that Intuit has actually incurred as a result of the
falsity, untruth, incorrectness or inaccuracy of any Claim Representation (the
"ACTUAL DAMAGES"); (iii) the amount of Damages that Intuit will incur as a
result of the falsity, untruth, incorrectness or inaccuracy of any Claim
Representation if the Merger is consummated (the "FUTURE DAMAGES"); and (iv) who
should bear (or the proportion that each side will bear) the costs of the
Arbitration and each side's reasonable legal and other professional fees and
expenses incurred in connection with the Arbitration, given the equities of the
Price Adjustment Claim. The Arbitration Award shall clearly set forth in writing
the Arbitrator's decision and determination as to each of the above issues and
shall be issued and delivered to the parties within the ten (10) day time period
set forth in Section 11.2.2(b) above. The Arbitrator shall have no authority to
amend or modify the terms of this Agreement or to award punitive or exemplary
damages and the Arbitration Award may be enforced by a judgment entered with any
court of competent jurisdiction.
(d) Damages Defined. As used herein, the term "DAMAGES"
means all judgments, arbitration or similar awards (other than the Arbitration
Award), amounts paid in settlement, damages, losses, liabilities, penalties,
fines, taxes, costs and expenses (including, without limitation, reasonable
attorneys' fees, other professionals' and experts' reasonable fees and court or
arbitration costs ) arising from any falsity, untruth, incorrectness or
inaccuracy of any Claim Representation set forth in Intuit's Claim Notice.
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(e) Intent of Expedited Procedure. The parties hereto
acknowledge and agree that the procedures set forth herein for Arbitration of a
Price Adjustment Claim are intended to expedite the rapid resolution of each
Price Adjustment Claim. The parties desire to rigorously enforce the timing and
other procedural provisions set forth in Section 11.2 to facilitate a rapid and
final resolution of each Price Adjustment Claim and acknowledge that the parties
shall be bound by each Arbitration Award of a Price Adjustment Claim,
notwithstanding the fact that subsequently it may be determined that the amount
of Damages or Future Damages determined by the Arbitration Award is incorrect in
any amount, whether or not material. Further, the parties also agree to release
and hold harmless the Arbitrator from any liability whatsoever relating to any
Arbitration Award or the conduct of any Arbitration by such Arbitrator, other
than any claim a party may have for willful misconduct on the part of such
Arbitrator.
11.2.3 Reduction in Merger Consideration. If any Arbitration Award
rendered pursuant to the Arbitration of a Price Adjustment Claim finds that
Intuit has actually incurred Actual Damages and/or will incur Future Damages,
then the Merger Amount (as defined in Section 1.13 hereof) shall, subject to the
following provisions of this Section 11.2.3, be adjusted by being reduced,
dollar-for-dollar, by the sum of the Actual Damages and Future Damages,
determined by such Arbitration Award and the resulting adjusted Merger Amount
shall be used to calculate the Unadjusted Conversion Number and hence the Series
A Preference Conversion Number, the Participation Conversion Number and the
Preferred Participation Conversion Number for all purposes of determining the
conversion of GALT Stock pursuant to Section 2.1.3 and the assumption and
conversion of GALT Options pursuant to Section 2.2 hereof. The determination of
Actual Damages and/or Future Damages in any Arbitration Award shall be
conclusive and binding on the parties. Notwithstanding the foregoing, there
shall be no adjustment to the Merger Amount by virtue of an Arbitration Award
unless and until the aggregate cumulative sum of all Actual Damages plus all
Future Damages determined by such Arbitration Award and any prior Arbitration
Awards exceeds a cumulative total of One Hundred Thousand Dollars ($100,000), in
which event the Merger Amount shall be adjusted by being reduced,
dollar-for-dollar, by the full cumulative aggregate amount of all Actual Damages
plus all Future Damages determined by all Arbitration Awards.
11.2.4 Exclusive Remedy for Breach of Representations. The
reduction in the number of shares of Intuit Common Stock and Intuit Options
issuable in the Merger effected pursuant to Section 11.2.3 as a result of Price
Adjustment Claims made by Intuit under this Section 11.2 shall be Intuit's sole
and exclusive remedy for any breach of GALT's representations and warranties
under Section 3 of this Agreement.
11.3 Further Merger Amount Adjustment.
(a) In the event that at the Closing Date the product obtained by
multiplying (i) the aggregate number of shares of Intuit Common Stock to be
issued in the Merger pursuant to the provisions of Section 2.1.3 hereof,
computed without regard to this Section 11.3 (such aggregate number of shares of
Intuit Common Stock being hereinafter referred to as the "BASE NUMBER OF MERGER
SHARES") by (ii) the average of the closing prices of Intuit Common Stock as
quoted on the Nasdaq National Market System and reported in The Wall Street
Journal for the
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ten (10) trading days ending three (3) business days prior to the Closing Date
(the "INTUIT AVERAGE CLOSING PRICE") would be less than Eight Million Dollars
($8,000,000) (the "BASE AMOUNT") then:
(i) the number of shares of Intuit Common Stock to be issued
upon the conversion of all shares of GALT Stock that are outstanding immediately
prior to the Effective Time pursuant to Section 2.1.3 shall be increased to that
number of shares of Intuit Common Stock (the "ADJUSTED MERGER SHARES") that,
when multiplied by the Intuit Average Closing Price equals the Base Amount; and
(ii) the Series A Preference Conversion Number, the
Participation Conversion Number and the Preferred Participation Conversion
Number shall each be increased to the respective numbers that would result in
the issuance of a number of shares of Intuit Common Stock equal to the Adjusted
Merger Shares (and not more) pursuant to the conversion of GALT Stock under
Section 2.1.3, with such increase to be effected so as to maintain the same
relative ratios of the Series A Preference Conversion Number, the Participation
Conversion Number and the Preferred Participation Conversion Number as existed
prior to the adjustment called for by this Section, and the resulting increased
Participation Conversion Number shall be used to compute the conversion of GALT
Options into Intuit Options pursuant to Section 2.2 hereof; and
(iii) notwithstanding anything herein to the contrary, in the
event that the Merger Amount has at any time been reduced pursuant to the
provisions of Section 11.2 hereof, then, notwithstanding the foregoing, the Base
Amount for all purposes of this Section shall not be Eight Million Dollars
($8,000,000), but instead shall be reduced to that amount obtained by
multiplying Eight Million Dollars ($8,000,000) by a fraction whose numerator is
the Merger Amount in effect on the Closing Date and whose denominator is Nine
Million Dollars ($9,000,000);
provided, however, that notwithstanding anything to the contrary in this Section
11.3, in no event shall the aggregate total number of shares of Intuit Common
Stock issued upon the conversion of the outstanding shares of GALT Stock in the
Merger pursuant to Section 2.1.3 hereof exceed that number of shares of Intuit
Common Stock that is obtained by multiplying (a) 2.5 by (b) the Base Number of
Merger Shares.
12. MISCELLANEOUS
12.1 Governing Law; Venue. The laws of the Commonwealth of Pennsylvania
(irrespective of its choice of law principles) shall govern the validity of this
Agreement, the construction of its terms, and the interpretation and enforcement
of the rights and duties of the parties hereto. The parties agree that any
controversy or claim arising out of or relating to this Agreement, with the
exception of any Price Adjustment Claim described in Section 11.2, shall be
litigated in the United States District Court for the Western District of
Pennsylvania sitting in Pittsburgh, Pennsylvania.
12.2 Assignment; Binding Upon Successors and Assigns. Neither party
hereto may assign any of its rights or obligations hereunder without the prior
written consent of the other
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party hereto. This Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and permitted assigns. In the
event that a third party should acquire ownership of Intuit, whether by merger
or otherwise, such third party shall be obligated to cause Intuit to comply with
its obligations and to perform its duties under this Agreement, subject to the
terms and conditions hereof. In the event that Intuit enters into a definitive
agreement pursuant to which Intuit is to be acquired by a third party ("BUYER"),
then, if in Intuit's sole and absolute judgment and discretion, the acquisition
of Intuit by Buyer will not in any manner be adversely affected, delayed or
subject to potentially adverse tax or accounting treatment by acceleration of
the Closing of the Merger, then Intuit will, subject to any agreement between
Intuit and Buyer to the contrary, Intuit will use good faith reasonable efforts
to accelerate the date of the Closing.
12.3 Severability. If any provision of this Agreement, or the
application thereof, shall for any reason and to any extent be invalid or
unenforceable, the remainder of this Agreement and application of such provision
to other persons or circumstances shall be interpreted so as reasonably to
effect the intent of the parties hereto. The parties further agree to replace
such void or unenforceable provision of this Agreement with a valid and
enforceable provision that shall achieve, to the extent possible, the economic,
business and other purposes of the void or unenforceable provision.
12.4 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original as regards any party whose
signature appears thereon and all of which together shall constitute one and the
same instrument. This Agreement shall become binding when one or more
counterparts hereof, individually or taken together, shall bear the signatures
of both parties reflected hereon as signatories.
12.5 Other Remedies. Except as otherwise provided herein, any and all
remedies herein expressly conferred upon a party shall be deemed cumulative with
and not exclusive of any other remedy conferred hereby or by law on such party,
and the exercise of any one remedy shall not preclude the exercise of any other.
12.6 Amendment and Waivers. Any term or provision of this Agreement may
be amended, and the observance of any term of this Agreement may be waived
(either generally or in a particular instance and either retroactively or
prospectively) only by a writing signed by the party to be bound thereby. The
waiver by a party of any breach hereof or default in the performance hereof
shall not be deemed to constitute a waiver of any other default or any
succeeding breach or default. The failure of any party to enforce any of the
provisions hereof shall not be construed to be a waiver of the right of such
party thereafter to enforce such provisions. The Agreement may be amended by the
parties hereto at any time before or after approval of the shareholders of GALT,
but, after such approval, no amendment shall be made which by applicable law
requires the further approval of the shareholders of GALT without obtaining such
further approval.
12.7 Construction of Agreement. This Agreement has been negotiated by
the respective parties hereto and their attorneys and the language hereof shall
not be construed for or against either party. A reference to a Section or an
exhibit shall mean a Section in, or exhibit to,
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this Agreement unless otherwise explicitly set forth. The titles and headings
herein are for reference purposes only and shall not in any manner limit the
construction of this Agreement which shall be considered as a whole.
12.8 Attorneys' Fees. Except as provided in Section 11.2, should suit
be brought to enforce or interpret any part of this Agreement, the prevailing
party shall be entitled to recover, as an element of the costs of suit and not
as damages, its reasonable attorneys' fees, and other costs and expenses
incurred in such suit to be fixed by the judge (including without limitation,
costs, expenses and fees on any appeal) regardless of whether the trial is
before a jury or a judge alone. The prevailing party shall be entitled to
recover its attorneys' fees, other reasonable costs and expenses of such suit,
regardless of whether such suit proceeds to final judgment. The presiding judge
or the motions judge, if there is no presiding judge, shall finally decide the
amount of attorneys' fees, costs and expenses that may be recovered by a
prevailing party under this Section and the identity of the prevailing party.
12.9 Notices. All notices and other communications required or
permitted under this Agreement shall be in writing and shall be either hand
delivered in person, sent by telecopier, sent by certified or registered first
class mail, postage pre-paid, or sent by nationally recognized express courier
service. Such notices and other communications shall be deemed to have been
given and served effective upon receipt if hand delivered or sent by telecopier,
three (3) days after mailing if sent by mail, and one (l) day after dispatch if
sent by express courier, to the following addresses, or such other addresses as
any party may notify the other parties in accordance with this Section:
(i) If to Intuit:
Intuit Inc.
000 Xxxxxxxx Xxxxxx
Xxxxx Xxxx, XX 00000
Attention: General Counsel
with a copy to:
Fenwick & Xxxx
Xxx Xxxx Xxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
(ii) If to GALT:
GALT Technologies, Inc.
0000 Xxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Attention: President
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with a copy to:
Xxxxxxxx Xxxxxxxxx
One Oxford Centre
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxx, XX 00000-0000
Attention: Xxxx Xxxxx, Esq.
or to such other address as a party may have furnished to the other parties in
writing pursuant to this Section 12.9.
12.10 No Joint Venture. Nothing contained in this Agreement shall be
deemed or construed as creating a joint venture or partnership between any of
the parties hereto. No party is by virtue of this Agreement authorized as an
agent, employee or legal representative of any other party. No party shall have
the power to control the activities and operations of any other and their status
is, and at all times shall continue to be, that of independent contractors with
respect to each other. No party shall have any power or authority to bind or
commit any other. No party shall hold itself out as having any authority or
relationship in contravention of this Section.
12.11 Further Assurances. Each party agrees to cooperate fully with the
other parties and to execute such further instruments, documents and agreements
and to give such further written assurances as may be reasonably requested by
any other party to evidence and reflect the
[REST OF PAGE INTENTIONALLY LEFT BLANK]
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transactions described herein and contemplated hereby and to carry into
effect the intents and purposes of this Agreement.
12.12 Absence of Third Party Beneficiary Rights. No provisions of this
Agreement are intended, nor shall be interpreted, to provide or create any third
party beneficiary rights or any other rights of any kind in any client,
customer, affiliate, shareholder, partner or any party hereto or any other
person or entity unless specifically provided otherwise herein, and, except as
so provided, all provisions hereof shall be personal solely between the parties
to this Agreement; provided, however, that after the Effective Time, any holders
of GALT options who are entitled to have the shares of Intuit Common Stock that
are issuable upon exercise of their Intuit Options issued in the Merger
registered on Form S-8 under the 1933 Act under Section 2.2(b) hereof shall be
third party beneficiaries of Section 2.2(b) hereof solely for the purpose of
obtaining such Form S-8 Registration of such shares.
12.13 Public Announcement. Until Intuit has made a public press release
announcing its entry into this Agreement, GALT shall not disclose the fact of
the entry into and execution of this Agreement by the parties without Intuit's
prior written consent. Intuit may, at such time or times as its may deem
appropriate, issue such press releases, and make such other disclosures
regarding the parties entry into and execution of this Agreement, the Merger and
other subject matter of this Agreement, as Intuit determines are necessary or
appropriate, or required under applicable laws, rules or regulations.
12.14 Entire Agreement. This Agreement and the exhibits and schedules
hereto and the GALT Disclosure Letter and the Intuit Disclosure Letter
constitute the entire understanding and agreement of the parties hereto with
respect to the subject matter hereof and supersede all prior and contemporaneous
agreements or understandings, inducements or conditions, express or implied,
written or oral, between the parties with respect hereto other than the
Confidentiality Agreement. The express terms hereof control and supersede any
course of performance or usage of the trade inconsistent with any of the terms
hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
"INTUIT" "GALT"
INTUIT INC. GALT TECHNOLOGIES, INC.
By: /s/ XXXXXXX X. XXXXXX, XX. By: /s/ XXXXXX X. XXXXXX
---------------------------- --------------------------------
Its: Executive Vice President Its: President
----------------------------
[SIGNATURE PAGE TO AGREEMENT AND PLAN OF REORGANIZATION]
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LIST OF EXHIBITS
Exhibit A Agreement of Merger
Exhibit B Example of Merger Conversion Formulas
Exhibit 1.15 GALT Revenue Projection Schedule
Exhibit 2.6 Articles of Incorporation of Surviving Corporation
Exhibit 3.3.1 List of GALT Shareholders
Exhibit 3.3.2 List of GALT Option Holders
Exhibit 3.8 GALT Financial Statements
Exhibit 3.11 Contracts of GALT
Exhibit 3.11A Contracts Requiring Third Party Consents
Exhibit 3.13 GALT IP Rights
Exhibit 3.16.1 List of GALT Employees, Officers and Consultants
Exhibit 3.16.3 GALT Employee Plans
Exhibit 3.16.6 GALT Benefit Arrangements
Exhibit 5.6 Pooling Compliance Actions
Exhibit 5.1.13 GALT Affiliate Agreement
Exhibit 8.5 Opinion of Intuit's Counsel
Exhibit 9.6 Opinion of GALT's Counsel
The exhibits listed above will be furnished to the Commission
upon request.
45
STIPULATION AND AMENDMENT NO. 1 TO
AGREEMENT AND PLAN OF REORGANIZATION
This Stipulation and Amendment No. 1 to Agreement and Plan of
Reorganization (this "STIPULATION AND AMENDMENT") is made and entered into
effective as of November 3, 1995 by and between Intuit Inc., a Delaware
corporation ("INTUIT") and GALT Technologies, Inc., a Pennsylvania corporation
("GALT").
RECITALS
A. Intuit and GALT have previously entered into a certain Agreement and
Plan of Reorganization dated as of October 24, 1995 (the "REORGANIZATION
AGREEMENT"), providing for the merger (the "MERGER") of a subsidiary of Intuit
with and into GALT (or, at Intuit's election, the merger of GALT with and into a
subsidiary of Intuit). Capitalized terms used but not defined herein shall have
the same meanings given to them in the Reorganization Agreement.
B. On November 3, 1995 GALT entered into a Mutual Release (the "RELEASE
AGREEMENT") with Xxxxx Capital Management, Inc. ("XXXXX") and the P/A Fund, L.P.
("P/A FUND"), pursuant to which GALT has paid $70,000 to Xxxxx and the P/A Fund
in order to settle and obtain releases from Xxxxx and the P/A Fund of certain
claims. A total of $50,000 of such payment was not anticipated by or known to
Intuit at the time the Reorganization Agreement was entered into. The parties
desire to enter into this Stipulation and Amendment to stipulate and memorialize
their agreement that such $50,000 payment constitutes Actual Damages incurred by
Intuit within the meaning of Section 11.2.2(c) of the Reorganization Agreement,
and to waive any requirement under the Agreement that such matter be resolved
through arbitration.
NOW THEREFORE, Intuit and GALT hereby stipulate and agree as follows:
1. STIPULATION, AGREEMENT, WAIVER. Intuit and GALT each hereby
acknowledge, agree and stipulate that:
(a) for purposes of Section 11.2 of the Reorganization Agreement,
Intuit has actually incurred Actual Damages of $50,000 by virtue of GALT's
payment of $50,000 of the total amount paid to Xxxxx and P/A Fund under the
Release Agreement;
(b) the arbitration provisions of Section 11 of the Agreement are
hereby waived with respect to (and solely with respect to) the determination
that Intuit has actually incurred Actual Damages of $50,000 as provided in
paragraph (a) of this Section; and
(c) Intuit is not limited by this stipulation from making a Price
Adjustment Claim for any other Actual Damages and/or Future Damages arising from
or related to the Release Agreement, the subject matter of the claims released
thereby, any breach or violation of the Release Agreement or any assertion or
attempt by any party to the Release Agreement to assert its invalidity or
unenforceability.
2. AMENDMENT. Section 11.2.1 of the Reorganization Agreement is hereby
amended by inserting the following sentences after the last sentence of Section
00.0.0.:
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"Notwithstanding the foregoing, Intuit and GALT may agree by
written stipulation and without the need to resort to the
Arbitration of a Price Adjustment Claim, that Intuit has incurred
Actual Damages and/or Future Damages (as defined below). Any such
stipulated damages will be treated, for purposes of this Section
11.2, as if they were determined by an Arbitration Award rendered
pursuant to the Arbitration of a Price Adjustment Claim."
3. EXECUTION IN COUNTERPARTS. This Stipulation and Amendment may be
executed in counterparts, each of which shall be deemed an original and all of
which shall constitute one instrument.
IN WITNESS WHEREOF, the undersigned execute this Stipulation and
Amendment effective as of the date first written above.
INTUIT INC. GALT TECHNOLOGIES, INC.
By: /s/ XXXXXXX X. XXXXXX, XX. By: /s/ XXXXXX X. XXXXXX
---------------------------- --------------------------------
Its: Executive Vice President Its: President
----------------------------
47
AMENDMENT NO. 2
TO
AGREEMENT AND PLAN OF REORGANIZATION
This Amendment No. 2 to Agreement and Plan of Reorganization (this
"AMENDMENT") is made and entered into effective as of January 7, 1996 by and
between Intuit Inc., a Delaware corporation ("INTUIT") and GALT Technologies,
Inc., a Pennsylvania corporation ("GALT").
RECITALS
A. Intuit and GALT have previously entered into a certain Agreement and
Plan of Reorganization dated as of October 24, 1995, as amended by a Stipulation
and Amendment No. 1 to Agreement and Plan of Reorganization dated as of November
3, 1995 (the "REORGANIZATION AGREEMENT"), providing for the merger (the
"MERGER") of a subsidiary of Intuit with and into GALT (or, at Intuit's
election, the merger of GALT with and into a subsidiary of Intuit). The
capitalized terms used but not defined herein shall have the same meanings given
to them in the Reorganization Agreement.
B. Intuit and GALT now desire to further amend the Reorganization
Agreement in certain respects.
NOW THEREFORE, Intuit and GALT hereby agree as follows:
1. AMENDMENT OF SECTION 5.1.4(H). Section 5.1.4(h) of the
Reorganization Agreement is hereby amended to read in its entirety as follows:
"(h) issue or sell any shares of its capital stock of any class, or
any other of its securities, or issue or create any warrants,
obligations, subscriptions, options, convertible securities, or
other commitments to issue any shares of capital stock or other
securities of GALT, except that: (i) GALT may issue up to 650,000
shares of GALT Common Stock upon the exercise of GALT Options that
are either (A) included among the options to purchase up to 139,135
shares of GALT Common Stock that are disclosed in Section 3.3 as
being outstanding on the Agreement Date or (B) permitted to be
granted by GALT under the provisions of the following clause (ii);
and (ii) GALT may grant to GALT employees GALT Options to purchase
not more than an aggregate total of 510,865 shares of GALT Common
Stock, as now constituted, pursuant to the GALT Stock Option Plan
("POST-SIGNING GALT OPTION GRANTS"), provided such Post-Signing GALT
Option grants (1) are made in the ordinary course of GALT's business
at levels and for purposes consistent with GALT's past practices and
with the consent of Intuit, which consent shall not be unreasonably
withheld, provided that GALT's and Intuit's respective accountants
do not believe that such Post-Signing GALT Option grants are
inconsistent with the ability to have the Merger accounted for as a
"pooling of interests" transaction, and (2) have an exercise price
equal to the fair market value of GALT Common Stock on the date of
grant, determined after taking into consideration the existence of
this Agreement;"
2. AMENDMENT OF SECTION 6.3. Section 6.3 of the Reorganization
Agreement is hereby amended to read in its entirety as follows:
"6.3 Post-Merger Grant of Options. If the Merger is consummated as
contemplated by this Agreement, then as soon as reasonably
practicable following the closing and consummation of
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the Merger, and subject to the customary approval of the
Compensation Committee of Intuit's Board of Directors or its
delegate(s), Intuit shall grant to those persons who are GALT
employees at the date of the Closing of the Merger and who continue
as GALT employees thereafter ("ELIGIBLE GALT Employees"), options to
purchase shares of Intuit Common Stock in amounts determined by
Intuit in its sole discretion but at least in amounts equal to 75%
of the range of Intuit stock option grant levels that Intuit applied
to make Intuit stock option grants to new Intuit employees of
similar responsibility and status in the fall of 1995, determined
without regard to the number of Intuit Options issued to such
Eligible GALT Employees in the Merger; provided, however, that
notwithstanding the foregoing, the number of shares of Intuit Common
Stock to be subject to any stock option granted to an Eligible GALT
Employee pursuant to Section 6.3 shall be directly reduced, on a
share for share basis, by the sum of (i) the number of shares of
Intuit Common Stock that, immediately after the Closing of the
Merger, are subject to any Intuit Option that is issued to such
Eligible GALT Employee in the Merger upon the conversion and
assumption (pursuant to Section 2.2) of any GALT Option granted to
such Eligible GALT Employee on or after October 24, 1995
("POST-SIGNING GALT OPTIONS") plus (ii) the number of shares of
Intuit Common Stock that are issued to such Eligible GALT Employee
in the Merger upon the conversion (pursuant to Section 2.1) of any
shares of GALT Common Stock that such Eligible GALT Employee
acquired by exercising a Post-Signing GALT Option. The options to be
granted by Intuit pursuant to this Section shall be granted at an
exercise price equal to the then-current fair market value of Intuit
common stock on the date of option grant as determined by Intuit
consistent with Intuit's past practice, with the right to exercise
such options to vest over a four-year period beginning on the first
date of the optionee's employment with the Surviving Corporation or
Intuit after the Effective Time in accordance with the vesting
formulas then generally afforded to options granted to new Intuit
employees."
3. EFFECT OF AMENDMENT. The Reorganization Agreement, as amended
hereby, shall remain in full force and effect. In the event of any inconsistency
or conflict between this Amendment and the Reorganization Agreement, this
Amendment shall supersede and govern.
4. EXECUTION IN COUNTERPARTS. This Amendment may be executed in
counterparts, each of which shall be deemed an original and all of which shall
constitute one instrument.
IN WITNESS WHEREOF, the undersigned have executed this Amendment
effective as of the date first written above.
INTUIT INC. GALT TECHNOLOGIES, INC.
By: /s/ XXXXXXX X. XXXXXX, XX. By: /s/ XXXXXX X. XXXXXX
---------------------------- --------------------------------
Its: Executive Vice President Its: President
----------------------------
-2-
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AGREEMENT OF MERGER
THIS AGREEMENT OF MERGER (this "AGREEMENT") is made and entered into as
of September 3, 1996 (the "AGREEMENT DATE") by and between Intuit Merger Sub,
Inc., a Delaware corporation ("SUB") that is a wholly-owned subsidiary of Intuit
Inc., a Delaware corporation ("INTUIT"), and GALT Technologies, Inc., a
Pennsylvania corporation ("GALT").
RECITALS
A. Intuit and GALT have entered into an Agreement and Plan of
Reorganization, dated as of October 24, 1995 (the "PLAN"), providing for certain
representations, warranties and agreements in connection with the transactions
contemplated hereby, in accordance with the Pennsylvania Business Corporation
Law (the "PENNSYLVANIA LAW") and the Delaware General Corporation Law (the
"DELAWARE LAW").
B. The Boards of Directors of Intuit, Sub and GALT have determined it
to be advisable and in the respective interests of Intuit, Sub and GALT and
their stockholders that Sub be merged with and into GALT through a statutory
merger of Sub into GALT, in which GALT will be the surviving corporation of such
merger.
C. The Plan, this Agreement and the Merger (as defined below) have been
approved by Intuit, in its own right and in its capacity as the sole stockholder
of Sub and by the stockholders of GALT in accordance with Pennsylvania and
Delaware law.
NOW, THEREFORE, Sub and GALT hereby agree as follows:
1. CERTAIN DEFINITIONS. As used in this Agreement, the following terms
shall have the meanings set forth below:
1.1 The "MERGER" means the merger of Sub with and into GALT
contemplated by this Agreement.
1.2 "EFFECTIVE TIME" means the time and date on which this Agreement
(or, under Delaware law, a Certificate of Merger conforming to the requirements
of Section 252 of the Delaware Law) and any required officers' certificates are
filed with the offices of the Delaware Secretary of State and the Pennsylvania
Department of State and the Merger becomes effective under Delaware and
Pennsylvania law.
1.3 "INTUIT COMMON STOCK" means the Common Stock, $0.01 par value, of
Intuit.
1.4 "INTUIT PRICE PER SHARE" means $47.275, which is the average of the
closing prices of Intuit Common Stock as quoted on the Nasdaq National Market
System and reported in The Wall Street Journal for the ten (10) trading days
ending on (and inclusive of) October 18, 1995.
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1.5 "GALT COMMON STOCK" means the Common Stock, $0.01 par value, of
GALT.
1.6 "GALT SERIES A PREFERRED STOCK" means the Series A Participating
Preferred Stock, $0.01 par value, of GALT.
1.7 "GALT STOCK" means GALT Common Stock and GALT Series A Preferred
Stock, collectively.
1.8 "GALT OPTIONS" means options to purchase GALT Common Stock from
GALT granted by GALT to GALT employees under GALT's 1995 Stock Option Plan (the
"GALT OPTION PLAN").
1.9 "GALT DERIVATIVE SECURITIES" means, collectively, (a) any warrant,
option, right or other security that entitles the holder thereof to purchase or
otherwise acquire any shares of the capital stock of GALT ("GALT WARRANTS"); (b)
any note, evidence of indebtedness, stock or other security that is convertible
into or exchangeable for any shares of the capital stock of GALT or any GALT
Warrant ("GALT CONVERTIBLE SECURITY"); and (c) any, warrant, option, right or
other security that entitles the holder thereof to purchase or otherwise acquire
any GALT Convertible Security or any GALT Warrant; provided, however, that the
term "GALT Derivative Securities" does not include any GALT Options.
1.10 "FULLY DILUTED GALT SHARES" means that number of shares of GALT
Common Stock that is equal to the sum of: (a) the total number of shares of GALT
Common Stock that are issued and outstanding immediately prior to the Effective
Time; plus (b) the total number of shares of GALT Common Stock, if any, that are
directly or indirectly ultimately issuable by GALT upon the exercise, conversion
or exchange of all GALT Derivative Securities (including but not limited to
shares of GALT Series A Preferred Stock) that are issued and outstanding
immediately prior to the Effective Time (but excluding the shares of GALT Common
Stock, if any, that are ultimately issuable upon the exercise of all GALT
Options that are issued and outstanding immediately prior to the Effective
Time).
1.11 "GALT DISSENTING SHARES" means any shares of GALT Stock that are
held by a GALT shareholder as to which dissenter's rights to require the payment
of the fair value of such shares as provided in Chapter 15 of the Pennsylvania
Business Corporation Law have been duly and properly exercised and perfected.
1.12 "GALT SERIES A PREFERENCE AMOUNT" means the sum of $334,459.77.
1.13 "UNADJUSTED CONVERSION NUMBER" means the number equal to the
fraction (a) whose numerator is the quotient obtained by dividing the Merger
Amount (as defined below) by the number of shares of GALT Common Stock equal to
the Fully Diluted GALT Shares, and (b) whose denominator is the Intuit Price Per
Share. As used herein, the "MERGER AMOUNT" shall initially mean the sum of Nine
Million Dollars ($9,000,000), provided that the Merger Amount shall be subject
to adjustment from time to time as provided in Sections 11.2 and 11.3 of the
Plan, and upon each such adjustment, the adjusted Merger Amount shall become the
Merger Amount.
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1.14 "GALT NON-INTUIT-RELATED REVENUE" means the aggregate amount of
revenue recognized by GALT on the accrual method of accounting during the time
period commencing on January 1, 1996 and ending on August 31, 1996 (such time
period being hereinafter referred to as the "MEASURE PERIOD"), as determined in
accordance with generally accepted accounting principles consistently applied,
minus all Intuit-Related Revenue, as defined below. As used herein, the term
"INTUIT-RELATED REVENUE" means all revenue recognized by GALT on the accrual
method of accounting during the Measure Period that is derived in any manner
from the Services Agreement dated of even date herewith to be entered into by
and between Intuit and GALT concurrently with their execution of this Agreement,
as determined in accordance with generally accepted accounting principles
consistently applied.
1.15 "ADJUSTMENT FACTOR" means the quotient obtained by dividing the
GALT Non-Intuit-Related Revenue by the cumulative sum of the GALT
Non-Intuit-Related Revenue projected to be recognized by GALT during the Measure
Period as indicated in the GALT Revenue Projection Schedule attached to the Plan
as Exhibit 1.15; provided however, that the Adjustment Factor may not be less
than one (1.00) or greater than one and eleven-hundredths (1.11) and
accordingly, notwithstanding the foregoing, if the Adjustment Factor as
calculated above would be a number less than one (1.00), then the Adjustment
Factor shall be one (1.00) and if the Adjustment Factor as calculated above
would be a number greater than one and eleven-hundredths (1.11), then the
Adjustment Factor shall be one and eleven-hundredths (1.11). The parties
acknowledge and agree that the Adjustment Factor has been determined to be one
(1.00).
1.16 "ADJUSTED CONVERSION NUMBER" means the product obtained by
multiplying the Unadjusted Conversion Number by the Adjustment Factor.
1.17 "INTUIT MERGER SHARES" means the number of shares of Intuit Common
Stock, as presently constituted, equal to the product obtained by multiplying
the Adjusted Conversion Number by the number of shares of GALT Common Stock
equal to the Fully Diluted GALT Shares.
1.18 "INTUIT PREFERENCE SHARES" means that number of the Intuit Merger
Shares that is equal to the number obtained by dividing the GALT Series A
Preference Amount by the Intuit Price Per Share.
1.19 "INTUIT PARTICIPATION SHARES" means that number of the Intuit
Merger Shares remaining after the Intuit Preference Shares have been subtracted
from the Intuit Merger Shares.
1.20 "SERIES A PREFERENCE CONVERSION NUMBER" means that number obtained
by dividing the Intuit Preference Shares by the total number of shares of GALT
Series A Preferred Stock that are issued and outstanding immediately prior to
the Effective Time.
1.21 "PARTICIPATION CONVERSION NUMBER" means that number obtained by
dividing the number of Intuit Participation Shares by the number of Fully
Diluted GALT Shares.
1.22 "PREFERRED PARTICIPATION CONVERSION NUMBER" means that number
obtained by multiplying the Participation Conversion Number by the number of
shares of GALT Common
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Stock into which each share of GALT Series A Preferred Stock is convertible
under GALT's Articles of Incorporation immediately prior to the Effective Time.
Other capitalized terms defined elsewhere in this Agreement and not
defined in this Section 1 shall have the meanings assigned to such terms in this
Agreement.
2. THE MERGER
2.1 The Merger. Subject to the terms and conditions of this Agreement,
Sub shall be merged with and into GALT pursuant to this Agreement in accordance
with applicable provisions of the laws of the State of Delaware and the
Commonwealth of Pennsylvania, as follows:
2.1.1 Conversion of Shares. At the Effective Time, by virtue of the
Merger and without the need for any action on the part of any holder of any
shares of stock described below, and subject to the provisions of Section 2.9
hereof:
(a) Cancellation of GALT Treasury Stock. Each share of GALT
Stock (if any) held by GALT as treasury stock immediately prior to the Effective
Time shall be canceled and no payment or other consideration whatsoever shall be
made or paid with respect thereto.
(b) Conversion of Sub Stock. Each share of the Common Stock
of Sub that is issued and outstanding immediately prior to the Effective Time
shall be converted into and become one (1) share of GALT Common Stock which
shall be issued and outstanding immediately after the Effective Time, and the
shares of GALT Common Stock into which the shares of Sub are so converted shall
be the only shares of GALT Stock that are issued and outstanding immediately
after the Effective Time.
2.1.2. Conversion of GALT Stock. Each share of GALT Common Stock
and each share of GALT Series A Preferred Stock that is issued and outstanding
immediately prior to the Effective Time (other than any GALT Dissenting Shares
as provided in Section 2.4) shall be converted into shares of Intuit Common
Stock as follows, subject to the provisions of Section 2.5 regarding the
elimination of fractional shares:
(a) GALT Series A Preferred Stock. Each share of GALT Series
A Preferred Stock that is issued and outstanding immediately prior to the
Effective Time shall be converted into a number of shares of Intuit Common Stock
equal to the sum of the Series A Preference Conversion Number plus the Preferred
Participation Conversion Number; and
(b) GALT Common Stock. Each share of GALT Common Stock that
is issued and outstanding immediately prior to the Effective Time shall be
converted into a number of shares of Intuit Common Stock equal to the
Participation Conversion Number.
2.2 Assumption and Conversion of GALT Options. Subject to the
provisions of Section 2.9 hereof, each GALT Option that is outstanding
immediately prior to the Effective Time shall, by virtue of the Merger and at
the Effective Time and without the need for any
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further action on the part of any holder thereof, be assumed by Intuit and
converted into an option (an "INTUIT OPTION") to purchase that number of shares
of Intuit Common Stock determined by multiplying the number of shares of GALT
Common Stock subject to such GALT Option immediately prior to the Effective Time
by the Participation Conversion Number, at an exercise price per share of Intuit
Common Stock equal to the exercise price per share of GALT Common Stock that was
in effect for such GALT Option immediately prior to the Effective Time divided
by the Participation Conversion Number; provided, however, that if the foregoing
calculation would result in an assumed and converted GALT Option being converted
into an Intuit Option that, after aggregating all the shares of Intuit Common
Stock issuable upon the exercise of such Intuit Option, would be exercisable for
a fraction of a share of Intuit Common Stock, then the number of shares of
Intuit Common Stock subject to such Intuit Option shall be rounded down to the
nearest whole number of shares of Intuit Common Stock. The terms,
exercisability, vesting schedule, status as an "incentive stock option" under
Section 422 of the Code, if applicable, and all other terms and conditions of
GALT Options (including but not limited to the terms and conditions applicable
to such options by virtue of the GALT Option Plan) shall, to the extent
permitted by law and otherwise reasonably practicable, be unchanged. Continuous
employment with GALT shall be credited to the optionee for purposes of
determining the vesting of the number of shares of Intuit Common Stock subject
to exercise under the converted GALT Option after the Effective Time.
2.3 Adjustments for Capital Changes. If after the date of this
Agreement and prior to the Effective Time, Intuit or GALT recapitalizes, either
through a split-up or subdivision of its outstanding shares into a greater
number of shares, or through a reverse split or combination of its outstanding
shares into a lesser number of shares, or reorganizes, reclassifies or otherwise
changes its outstanding shares into the same or a different number of shares of
other classes (other than through a split-up, subdivision, reverse split or
combination of shares provided for in the previous clause), or declares a
dividend on its outstanding shares payable in shares or securities convertible
into shares (a "CAPITAL CHANGE"), then the number of shares of Intuit Common
Stock into which the shares of GALT Stock are to be converted in the Merger, and
the number of shares of Intuit Common Stock to be issued upon exercise of the
Intuit Options issued upon the conversion of GALT Options in the Merger, shall
be adjusted appropriately (as agreed to by Intuit and GALT if it involves
something other than a mathematical adjustment) so as to maintain the
proportional interests of the holders of GALT Stock (and, indirectly, the GALT
Options) in the outstanding Intuit Common Stock; provided, however, that the
provisions of this Section shall not apply to any merger or other acquisition of
GALT or any other transaction not permitted to be undertaken by GALT under the
provisions of this Agreement. In the event that a Capital Change affecting
Intuit Common Stock occurs after the date of this Agreement and prior to the
Effective Time, then the Intuit Price Per Share shall be deemed to have been
equitably adjusted to reflect such Capital Change as necessary to effect the
purposes and intent of this Section.
2.4 GALT Dissenting Shares. Holders of GALT Dissenting Shares (if
any) shall be entitled to their rights under Subchapter D (Sections 1571 et
seq.) and Section 1930 of the Pennsylvania Business Corporation Law with respect
to such shares and such GALT Dissenting Shares shall not be converted into
shares of Intuit Common Stock in the Merger. GALT Stock as to which dissenting
shareholders' rights of appraisal under the Pennsylvania Business
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Corporation Law have not been properly perfected shall, when such dissenting
shareholders' rights can no longer be exercised, be converted into Intuit Common
Stock as provided in Section 2.1.2.
2.5 Fractional Shares. No fractional shares of Intuit Common Stock
shall be issued in connection with the Merger. In lieu thereof, each holder of
GALT Stock who would otherwise be entitled to receive a fraction of a share of
Intuit Common Stock, after aggregating all shares of Intuit Common Stock to be
received by such holder, shall instead receive from Intuit, within twenty (20)
business days after the Effective Time, an amount of cash equal to the Intuit
Price Per Share (as adjusted to reflect any Capital Change of Intuit) multiplied
by the fraction of a share of Intuit Common Stock to which such holder would
otherwise be entitled.
2.6 Effects of the Merger. At and upon the Effective Time: (a) the
separate existence of Sub shall cease and Sub shall be merged with and into
GALT, and GALT shall be the surviving corporation of the Merger (the "SURVIVING
CORPORATION") pursuant to the terms of this Agreement; (b) the Articles of
Incorporation of GALT shall be amended to read as set forth in Attachment A
hereto and shall be the Articles of Incorporation of the Surviving Corporation;
(c) the Bylaws of GALT shall continue unchanged and shall be the Bylaws of the
Surviving Corporation; (d) each share of GALT Stock outstanding immediately
prior to the Effective Time and each GALT Option outstanding immediately prior
to the Effective Time shall be converted as provided in this Section 2; (e) the
persons who are the officers and directors of Sub immediately prior to the
Effective Time shall be the officers and directors of the Surviving Corporation
immediately after the Effective Time; and (f) the Merger shall, from and after
the Effective Time, have all of the effects provided by applicable law.
2.7 Tax Free Reorganization. It is intended that the Plan and the
Merger be a tax-free plan of reorganization in accordance with the provisions of
Section 368(a)(1)(A) of the Code by virtue of the provisions of Section
368(a)(2)(E) of the Code.
2.8 Pooling of Interests. The parties intend that the Merger be treated
as a "pooling of interests" for accounting purposes.
2.9 Section 11 Adjustments. Notwithstanding the foregoing provisions of
this Section 2, the number of shares of Intuit Common Stock issuable to holders
of GALT Stock in the Merger, and number of Intuit Options issuable to holders of
GALT Options in the Merger, is subject to adjustment and increase as provided in
Section 11 of the Plan.
3. CLOSING MATTERS
3.1 Exchange of Certificates.
3.1.1 At or before the Effective Time, each holder of shares of
GALT capital stock shall surrender to Intuit for cancellation the certificate(s)
for such shares (each a "GALT CERTIFICATE"), duly endorsed to Intuit or
accompanied by duly executed stock powers and assignments separate from
certificate transferring title to such shares to Intuit. Promptly after the
Effective Time, and against receipt of such GALT Certificates, Intuit shall
issue to each tendering holder of a GALT Certificate a certificate for the
number of shares of Intuit Common
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Stock to which such holder is entitled pursuant to Section 2 hereof. All Intuit
Common Stock delivered upon the surrender of GALT Stock in accordance with the
terms hereof shall be deemed to have been delivered in full satisfaction of all
rights pertaining to such GALT Stock.
3.1.2 No dividends or distributions payable to holders of record of
Intuit Common Stock after the Effective Time, or cash payable in lieu of
fractional shares, shall be paid to the holder of any unsurrendered GALT
Certificate until the holder of the GALT Certificate(s) surrenders such GALT
Certificate to Intuit as provided above. Subject to the effect, if any, of
applicable escheat and other laws, following surrender of any GALT Certificate,
there shall be delivered to the person entitled thereto, without interest, the
amount of any dividends and distributions therefor paid with respect to Intuit
Common Stock so withheld as of any date subsequent to the Effective Time and
prior to such date of delivery.
3.1.3 After the Effective Time there shall be no further
registration of transfers on the stock transfer books of GALT or its transfer
agent of the GALT Stock that was outstanding prior to the Effective Time. If,
after the Effective Time, GALT Certificates are presented for any reason, they
shall be canceled and exchanged as provided in this Section 3.1.
3.1.4 Until GALT Certificates representing GALT Stock outstanding
prior to the Effective Time are surrendered pursuant to Section 3.1.1 above,
such GALT Certificates shall be deemed, for all purposes, to evidence ownership
of the number of shares of Intuit Stock into which the GALT Stock shall have
been converted pursuant to Section 2.
3.2 Converted GALT Options. Upon the Effective Time, all original GALT
stock option grant agreements representing GALT Options that were outstanding
immediately prior to the Effective Time ("GALT OPTION GRANTS") shall represent
the Intuit Options into which such GALT Options were converted in the Merger and
may be presented to Intuit for exercise of such Intuit Options. Intuit, in its
sole discretion, may elect to replace such GALT Option Grants with new Intuit
Option Grant documents that do not change the terms on which the GALT Options
are to be converted into Intuit Options under Section 2.2 hereof.
4. TERMINATION AND AMENDMENT
4.1 Agreement Subject to Termination by Written Mutual Consent. This
Agreement, the Merger and all transactions related thereto may be terminated at
any time prior to the Effective Time by the mutual written consent of Intuit and
GALT.
4.2 Agreement Subject to Termination Upon Termination of Plan. This
Agreement will terminate immediately in the event that the Plan is terminated in
accordance with its terms.
4.3 Effect of Termination. In the event of the termination of this
Agreement in accordance with Section 4.1 or Section 4.2 above, this Agreement
will immediately become void and there will be no liability on the part of
either Sub or GALT or their respective officers and directors on account of such
termination, except as otherwise provided in the Plan.
4.4 Amendment. This Agreement may be amended by the parties hereto at
any time before or after approval by the shareholders of GALT, but, after such
approval, no amendment
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will be made which by applicable law requires the further approval of GALT's
shareholders without obtaining such further approval. This Agreement may not be
amended except by an instrument in writing signed on behalf of Sub and GALT.
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5. MISCELLANEOUS
5.1 Plan. The Plan and this Agreement are intended to be construed
together in order to effectuate their purposes.
5.2 Governing Law; Venue. The laws of the Commonwealth of Pennsylvania
(irrespective of choice of law principles) shall govern the validity of this
Agreement, the construction of its terms, and the interpretation and enforcement
of the rights and duties of the parties hereto.
5.3 Assignment; Binding Upon Successors and Assigns. Neither party
hereto may assign any of its rights or obligations hereunder without the prior
written consent of the other party hereto. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and permitted assigns.
5.4 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original as regards any party whose
signature appears thereon and all of which together shall constitute one and the
same instrument.
5.5 Agent for Service of Process. GALT hereby agrees that it may be
served with process in the State of Delaware in any proceeding for enforcement
of any obligation of Sub, as well as for enforcement of any obligations of GALT
arising from the Merger, including any suit or other proceeding to enforce the
right of any stockholders as determined in appraisal proceedings pursuant to the
provisions of Section 262 of the DGCL, and GALT hereby irrevocably appoints the
Secretary of State of the State of Delaware as its agent to accept service of
process in any such suit or other proceedings, and a copy of such process shall
be mailed by the Secretary of State to GALT at 0000 Xxxx Xxxxxxxxx, Xxxxx 000,
Xxxxxxxxxx, XX 00000.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
"SUB" "GALT"
INTUIT MERGER SUB, INC. GALT TECHNOLOGIES, INC.
By: /s/ XXXXX X. XXXXXX By: /s/ XXXXXX X. XXXXXX
----------------------------- ------------------------------
Xxxxx X. Xxxxxx, President Xxxxxx X. Xxxxxx, President
By: /s/ XXXXX X. XXXXXX By: /s/ D. XXXX XXXXX
----------------------------- ------------------------------
Xxxxx X. Xxxxxx, Secretary D. Xxxx Xxxxx, Secretary
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