EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER AND REORGANIZATION
BY AND AMONG
ACCELERATED NETWORKS, INC.,
ODIN ACQUISITION CORP.
AND
OCCAM NETWORKS INC.
Dated as of November 9, 2001
TABLE OF CONTENTS
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ARTICLE I THE MERGER................................................... 1
1.1 The Merger........................................................ 1
1.2 Effective Time; Closing........................................... 1
1.3 Effect of the Merger.............................................. 2
1.4 Articles of Incorporation and Bylaws; Directors and Officers...... 2
1.5 Effect on Capital Stock........................................... 2
1.6 Surrender of Certificates......................................... 3
1.7 No Further Ownership Rights in Occam Stock........................ 4
1.8 Lost, Stolen or Destroyed Certificates............................ 5
1.9 Dissenting Shares................................................. 5
1.10 Further Action.................................................... 5
1.11 Certain Definitions............................................... 5
1.12 Tax Consequences.................................................. 6
ARTICLE II REPRESENTATIONS AND WARRANTIES OF OCCAM..................... 6
2.1 Organization; Standing and Power; Charter Documents; Subsidiaries. 6
2.2 Occam Capital Structure........................................... 7
2.3 Authority; Non-Contravention; Necessary Consents.................. 8
2.4 Occam Financial Statements; Undisclosed Liabilities............... 9
2.5 Absence of Certain Changes or Events.............................. 10
2.6 Taxes............................................................. 10
2.7 Intellectual Property............................................. 11
2.8 Compliance; Permits............................................... 11
2.9 Litigation........................................................ 11
2.10 Contracts......................................................... 12
2.11 Employee Matters and Benefit Plans................................ 12
2.12 Real Property..................................................... 15
2.13 Insurance......................................................... 16
2.14 Disclosure........................................................ 16
2.15 Board Approval.................................................... 16
2.16 Related Party Transactions........................................ 16
2.17 Environmental Matters............................................. 17
2.18 Brokers' and Finders' Fees........................................ 17
ARTICLE III REPRESENTATIONS AND WARRANTIES OF ANI...................... 17
3.1 Organization; Standing and Power; Charter Documents; Subsidiaries. 17
3.2 ANI Capital Structure............................................. 17
3.3 Authority; Non-Contravention; Necessary Consents.................. 18
3.4 ANI SEC Filings; ANI Financial Statements; Undisclosed Liabilities 19
3.5 Absence of Certain Changes or Events.............................. 19
3.6 Taxes............................................................. 20
3.7 Intellectual Property............................................. 21
3.8 Compliance; Permits............................................... 21
3.9 Litigation........................................................ 21
3.10 Brokers' and Finders' Fees........................................ 21
3.11 Contracts......................................................... 21
3.12 Employee Matters and Benefit Plans................................ 22
3.13 Real Property..................................................... 24
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3.14 Insurance................................................................................ 25
3.15 Disclosure............................................................................... 25
3.16 Board Approval........................................................................... 25
3.17 Related Party Transactions............................................................... 25
3.18 Environmental Matters.................................................................... 26
3.19 Fairness Opinion......................................................................... 26
ARTICLE IV CONDUCT PRIOR TO THE EFFECTIVE TIME...................................................... 26
4.1 Conduct of Business by ANI............................................................... 26
4.2 Conduct of Business by Occam............................................................. 28
ARTICLE V ADDITIONAL AGREEMENTS..................................................................... 29
5.1 Prospectus/Proxy Statement; Registration Statement....................................... 29
5.2 Meetings of Stockholders and Shareholders; Board Recommendation.......................... 29
5.3 Acquisition Proposals.................................................................... 31
5.4 Occam Acquisition Proposals.............................................................. 33
5.5 Confidentiality; Access to Information; No Modification of Representations, Warranties or
Covenants................................................................................ 34
5.6 Public Disclosure........................................................................ 34
5.7 Regulatory Filings; Reasonable Efforts................................................... 34
5.8 Notification of Certain Matters.......................................................... 36
5.9 Third-Party Consents..................................................................... 36
5.10 Stock Options and Warrants............................................................... 36
5.11 Indemnification of Officers and Directors................................................ 37
5.12 Directors and Officers of ANI After the Effective Time................................... 37
5.13 Nasdaq Listing........................................................................... 38
5.14 Tax Matters.............................................................................. 38
5.15 Conversion of Occam Preferred Stock...................................................... 38
5.16 Employment of Continuing Employees....................................................... 38
ARTICLE VI CONDITIONS TO THE MERGER................................................................. 38
6.1 Conditions to Obligations of Each Party to Effect the Merger............................. 38
6.2 Additional Conditions to Obligations of Occam............................................ 39
6.3 Additional Conditions to the Obligations of ANI.......................................... 39
ARTICLE VII TERMINATION, AMENDMENT AND WAIVER....................................................... 40
7.1 Termination.............................................................................. 40
7.2 Notice of Termination; Effect of Termination............................................. 42
7.3 Fees and Expenses........................................................................ 42
7.4 Amendment................................................................................ 43
7.5 Extension; Waiver........................................................................ 43
ARTICLE VIII........................................................................................ 44
8.1 Non-Survival of Representations and Warranties........................................... 44
8.2 Notices.................................................................................. 44
8.3 Interpretation........................................................................... 44
8.4 Counterparts............................................................................. 45
8.5 Entire Agreement; Third-Party Beneficiaries.............................................. 45
8.6 Severability............................................................................. 45
8.7 Other Remedies; Specific Performance..................................................... 46
8.8 Governing Law............................................................................ 46
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8.9 Rules of Construction......................................... 46
8.10 Assignment.................................................... 46
8.11 Waiver of Jury Trial.......................................... 46
Exhibit A-1 Form of Voting Agreement for ANI stockholders
Exhibit A-2 Form of Voting and Conversion Agreement for Occam shareholders
Exhibit B-1 Form of Lock-up Agreement for ANI stockholders
Exhibit B-2 Form of Lock-up Agreement for Occam shareholders
Exhibit C Form of Funding Agreement
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AGREEMENT AND PLAN OF MERGER AND REORGANIZATION
This AGREEMENT AND PLAN OF MERGER AND REORGANIZATION is made and entered
into as of November 9, 2001, by and among Accelerated Networks, Inc., a
Delaware corporation ("ANI"), Odin Acquisition Corp., a California corporation
and wholly-owned subsidiary of ANI (the "Merger Sub"), and Occam Networks Inc.,
a California corporation ("Occam").
RECITALS
A. The Boards of Directors of each of ANI, Merger Sub and Occam have
approved, and deem it advisable and in the best interests of their respective
corporations and stockholders to consummate, the business combination
transaction provided for herein in which Merger Sub would merge with and into
Occam.
B. ANI and Occam desire to make certain representations, warranties and
agreements in connection with the Merger and also to prescribe certain
conditions to the Merger.
C. Concurrently with the execution of this Agreement, and as a condition and
inducement to the parties' willingness to enter into this Agreement, certain
stockholders of ANI are entering into voting agreements in the form of Exhibit
A-1 attached hereto and certain shareholders of Occam are entering into voting
and conversion agreements in the form of Exhibit A-2 attached hereto
(collectively, the "Voting Agreements").
D. Concurrently with the execution of this Agreement, and as a condition and
inducement to the parties' willingness to enter this Agreement, certain
stockholders of ANI are entering into lock-up agreements in the form of Exhibit
B-1 attached hereto and certain shareholders of Occam are entering into lock-up
agreements in the form of Exhibit B-2 attached hereto (the "Lock-up
Agreements").
E. Concurrently with the execution of this Agreement, ANI and Occam are
entering into a Funding Agreement in the form of Exhibit C attached hereto.
F. For Federal income tax purposes for the shareholders of Occam, the
parties intend that the Merger qualify as a reorganization under the provisions
of Section 368(a) of the Internal Revenue Code of 1986, as amended (the
"Code"), and the parties intend, by executing this Agreement, to adopt a plan
of reorganization within the meaning of Section 354(a) of the Code.
NOW, THEREFORE, in consideration of the covenants, promises and
representations set forth herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties agree as follows:
ARTICLE I
THE MERGER
1.1 The Merger. At the Effective Time (as defined in Section 1.2) and
subject to and upon the terms and conditions of this Agreement and the
applicable provisions of California Law, Merger Sub shall be merged with and
into Occam (the "Merger"), the separate corporate existence of Merger Sub shall
cease and Occam shall continue as the surviving corporation. Occam, as the
surviving corporation after the Merger, is hereinafter sometimes referred to as
the "Surviving Corporation."
1.2 Effective Time; Closing. Subject to the provisions of this Agreement,
the parties hereto shall cause the Merger to be consummated by filing an
agreement of merger with the Secretary of State of the State of California (the
"Agreement of Merger") in accordance with the relevant provisions of the
California General Corporation Law ("California Law") (the time of such filing
(or such later time as may be agreed in writing by
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Occam and ANI and specified in the Agreement of Merger) being the "Effective
Time") as soon as practicable on or after the Closing Date (as herein defined).
The closing of the Merger (the "Closing") shall take place at the offices of
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional Corporation, at a time and date
to be specified by the parties, which shall be no later than the second
business day after the satisfaction or waiver of the conditions set forth in
Article VI, or at such other time, date and location as the parties hereto
agree in writing (the "Closing Date").
1.3 Effect of the Merger. At the Effective Time, the effect of the Merger
shall be as provided in this Agreement and the applicable provisions of
California Law. Without limiting the generality of the foregoing, and subject
thereto, at the Effective Time all the property, rights, privileges, powers and
franchises of Merger Sub shall vest in the Surviving Corporation, and all
debts, liabilities and duties of Merger Sub shall become the debts, liabilities
and duties of the Surviving Corporation.
1.4 Articles of Incorporation and Bylaws; Directors and Officers.
(a) At the Effective Time, the Articles of Incorporation of Occam, as in
effect immediately prior to the Effective Time, shall be the Articles of
Incorporation of the Surviving Corporation until thereafter amended as
provided by law and such Articles of Incorporation of the Surviving
Corporation, provided that, the name of the Surviving Corporation shall be
designated by Occam prior to the mailing of the Prospectus/Proxy Statement
(as defined in Section 5.12) to the stockholders of ANI. The Bylaws of
Occam, as in effect immediately prior to the Effective Time, shall be, at
the Effective Time, the Bylaws of the Surviving Corporation until thereafter
amended.
(b) At the Effective Time, Kumar Shah shall become the sole director of
the Surviving Corporation and the officers of Occam shall become the
officers of the Surviving Corporation.
1.5 Effect on Capital Stock. Subject to the terms and conditions of this
Agreement, at the Effective Time, by virtue of the Merger and without any
action on the part of Occam or any shareholders of Occam, the following shall
occur:
(a) Occam Common Stock. Each share of the common stock, no par value per
share, of Occam ("Occam Common Stock") issued and outstanding immediately
prior to the Effective Time including shares of Occam Common Stock to be
issued upon the conversion of all outstanding shares of Series A Preferred
Stock, Series B Preferred Stock and Series C Preferred Stock of Occam
(collectively the "Occam Preferred Stock") immediately prior to the
Effective Time, but excluding any shares of Occam Common Stock to be
canceled pursuant to Section 1.5(b) or which constitute "dissenting shares"
as described in Section 1.9, will be canceled and extinguished and
automatically converted into the right to receive a number of shares of
common stock, par value $0.001 per share, of ANI ("ANI Common Stock") equal
to the Exchange Ratio (as defined in Section 1.11 hereof) and cash in lieu
of fractional shares pursuant to Section 1.5(f).
(b) Cancellation of Treasury Stock. Each share of Occam Common Stock held
by Occam or any direct or indirect wholly-owned subsidiary of Occam
immediately prior to the Effective Time shall be canceled and extinguished
without any conversion thereof.
(c) Stock Options and Warrants. At the Effective Time, all options to
purchase Occam Common Stock then outstanding and unexercised under Occam's
1999 Stock Plan (the "Occam Stock Option Plan") shall be assumed by ANI in
accordance with Section 5.10. At the Effective Time, all warrants to
purchase shares of Occam's capital stock then outstanding and unexercised
shall be assumed by ANI in accordance with Section 5.10.
(d) Stock of Merger Sub. Each share of the common stock, no par value per
share, of Merger Sub then outstanding shall be converted into one share of
common stock of the Surviving Corporation.
(e) Restricted Stock. If any shares of Occam capital stock outstanding
immediately prior to the Effective Time are unvested or are subject to a
repurchase option, risk of forfeiture or other condition under
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any applicable restricted stock purchase agreement or other agreement with
Occam or under which Occam has any rights, then the shares of ANI Common
Stock issued in exchange for such shares of Occam capital stock will also be
unvested and subject to the same repurchase option, risk of forfeiture or
other condition, and the certificates representing such shares of ANI Common
Stock may accordingly be marked with appropriate legends. Occam shall take
all action that may be necessary to ensure that, from and after the
Effective Time, ANI is entitled to exercise any such repurchase option or
other right set forth in any such restricted stock purchase agreement or
other agreement.
(f) No Fractional Shares. No fractional shares of ANI Common Stock shall
be issued in connection with the Merger, and no certificates or scrip for
any such fractional shares shall be issued. Any holder of Occam capital
stock who would otherwise be entitled to receive a fraction of a share of
ANI Common Stock (after aggregating all fractional shares of ANI Common
Stock issuable to such holder) shall, in lieu of such fraction of a share
and, upon surrender of such holder's Certificate(s) (as defined in Section
1.6(c)), be paid in cash the dollar amount (rounded to the nearest whole
cent), without interest, determined by multiplying such fraction by the ANI
Stock Price (as defined in Section 1.11) on the last trading day immediately
prior to the Effective Time.
1.6 Surrender of Certificates.
(a) Exchange Agent. ANI shall select an institution reasonably
satisfactory to Occam to act as the exchange agent (the "Exchange Agent") in
the Merger.
(b) ANI to Provide Common Stock. Promptly after the Effective Time, ANI
shall make available to the Exchange Agent for exchange in accordance with
this Article I, the shares of ANI Common Stock issuable and cash payable in
lieu of fractional shares pursuant to Section 1.5 in exchange for
outstanding shares of Occam Common Stock. In addition, ANI shall make
available as necessary from time to time after the Effective Time as needed,
cash in an amount sufficient for any dividends or distributions which
holders of shares of Occam Common Stock may be entitled pursuant to Section
1.6(d). Any cash and ANI Common Stock deposited with the Exchange Agent
shall hereinafter be referred to as the "Exchange Fund."
(c) Exchange Procedures. Promptly after the Effective Time, ANI shall
cause the Exchange Agent to mail to each holder of record (as of the
Effective Time) of a certificate or certificates (the "Certificates") which
immediately prior to the Effective Time represented outstanding shares of
Occam Common Stock (including shares of Occam Common Stock to be issued upon
the conversion of all Occam Preferred Stock immediately prior to the
Effective Time) and any dividends or other distributions pursuant to Section
1.6(d), (i) a letter of transmittal (which shall specify that delivery shall
be effected, and risk of loss and title to the Certificates shall pass, only
upon delivery of the Certificates to the Exchange Agent and shall be in such
form and have such other provisions as ANI may reasonably specify) and (ii)
instructions for use in effecting the surrender of the Certificates in
exchange for certificates representing shares of ANI Common Stock and any
dividends or other distributions pursuant to Section 1.6(d). Upon surrender
of Certificates for cancellation to the Exchange Agent or to such other
agent or agents as may be appointed by ANI, together with such letter of
transmittal, duly completed and validly executed in accordance with the
instructions thereto and such other documents as may reasonably be required
by the Exchange Agent, the holder of such Certificates shall be entitled to
receive in exchange therefor the number of shares of ANI Common Stock (after
taking into account all Certificates surrendered by such holder) to which
such holder is entitled pursuant to Section 1.5(a), cash in lieu of
fractional shares pursuant to Section 1.5(f) and any dividends or
distributions payable pursuant to Section 1.6(d), and the Certificates so
surrendered shall forthwith be canceled. Until so surrendered, outstanding
Certificates will be deemed from and after the Effective Time, for all
corporate purposes, to evidence the ownership of the number of shares of ANI
Common Stock into which such shares of Occam Common Stock (including shares
of Occam Common Stock to be issued upon the conversion of all Occam
Preferred Stock immediately prior to the Effective Time) shall have been so
converted, cash in lieu of fractional shares pursuant to Section 1.5(f) and
the right to receive any dividends or distributions payable pursuant to
Section 1.6(d).
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(d) Distributions With Respect to Unexchanged Shares. No dividends or
other distributions declared or made after the date hereof with respect to
ANI Common Stock with a record date after the Effective Time will be paid to
the holders of any unsurrendered Certificates with respect to the shares of
ANI Common Stock represented thereby until the holders of record of such
Certificates shall surrender such Certificates.
(e) Transfers of Ownership. If shares of ANI Common Stock are to be
issued in a name other than that in which the Certificates surrendered in
exchange therefor are registered, it will be a condition of the issuance
thereof that the Certificates so surrendered will be properly endorsed and
otherwise in proper form for transfer and that the Persons (as defined in
Section 8.3(c)) requesting such exchange will have paid to ANI or any agent
designated by it any transfer or other Taxes (as defined in Section 2.6)
required by reason of the issuance of shares of ANI Common Stock in any name
other than that of the registered holder of the Certificates surrendered, or
established to the satisfaction of ANI or any agent designated by it that
such Tax has been paid or is not payable.
(f) Required Withholding. Each of the Exchange Agent and the Surviving
Corporation shall be entitled to deduct and withhold from any consideration
payable or otherwise deliverable pursuant to this Agreement to any holder or
former holder of Occam Common Stock such amounts as may be required to be
deducted or withheld therefrom under the Code or under any provision of
state, local or foreign Tax law or under any other applicable Legal
Requirement (as defined in Section 2.2(c)). To the extent such amounts are
so deducted or withheld, the amount of such consideration shall be treated
for all purposes under this Agreement as having been paid to the Person to
whom such consideration would otherwise have been paid.
(g) No Liability. Notwithstanding anything to the contrary in this
Section 1.6, neither the Exchange Agent, the Surviving Corporation nor any
party hereto shall be liable to a holder of shares of ANI Common Stock or
Occam Common Stock for any amount properly paid to a public official
pursuant to any applicable abandoned property, escheat or similar law.
(h) Investment of Exchange Fund. The Exchange Agent shall invest any cash
included in the Exchange Fund as directed by ANI on a daily basis; provided
that no such investment or loss thereon shall affect the amounts payable to
Occam stockholders pursuant to this Article I. Any interest and other income
resulting from such investment shall become a part of the Exchange Fund, and
any amounts in excess of the amounts payable to Occam stockholders pursuant
to this Article I shall promptly be paid to ANI.
(i) Termination of Exchange Fund. Any portion of the Exchange Fund which
remains undistributed to the holders of Certificates six (6) months after
the Effective Time shall, at ANI's request, be delivered to ANI and any
holders of the Certificates who have not surrendered such Certificates in
compliance with this Section 1.6 shall after such delivery to ANI look only
to ANI for the shares of ANI Common Stock pursuant to Section 1.5(a), cash
in lieu of fractional shares pursuant to Section 1.5(f) and any dividends or
other distributions pursuant to Section 1.6(d) with respect to the shares of
Occam Common Stock (including shares of Occam Common Stock to be issued upon
the conversion of all Occam Preferred Stock immediately prior to the
Effective Time) formerly represented thereby. Any such portion of the
Exchange Fund remaining unclaimed by holders of shares of Occam Common Stock
(including shares of Occam Common Stock to be issued upon the conversion of
all Occam Preferred Stock immediately prior to the Effective Time)
immediately prior to such time as such amounts would otherwise escheat to or
become property of any Governmental Entity (as defined in Section 2.3(c))
shall, to the extent permitted by law, become the property of ANI free and
clear of any claims or interest of any Person previously entitled thereto.
1.7 No Further Ownership Rights in Occam Stock. All shares of ANI Common
Stock issued upon the surrender for exchange of shares of Occam Common Stock
(including shares of Occam Common Stock to be issued upon the conversion of all
Occam Preferred Stock immediately prior to the Effective Time) in accordance
with the terms hereof (including any cash paid in respect thereof pursuant to
Section 1.5(f)) shall be deemed to have been issued in full satisfaction of all
rights pertaining to such shares of Occam Common Stock (including shares of
Occam Common Stock to be issued upon the conversion of all Occam Preferred
Stock immediately
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prior to the Effective Time), and there shall be no further registration of
transfers on the records of the Surviving Corporation of shares of Occam Common
Stock and Occam Preferred Stock which were outstanding immediately prior to the
Effective Time. If, after the Effective Time, Certificates are presented to the
Surviving Corporation for any reason, they shall be canceled and exchanged as
provided in this Article I.
1.8 Lost, Stolen or Destroyed Certificates. In the event any Certificates
shall have been lost, stolen or destroyed, the Exchange Agent shall issue in
exchange for such lost, stolen or destroyed Certificates, upon the making of an
affidavit of that fact by the holder thereof, such shares of ANI Common Stock
and any dividends or distributions payable pursuant to Section 1.6(d);
provided, however, that ANI may, in its discretion and as a condition precedent
to the issuance thereof, require the owner of such lost, stolen or destroyed
Certificates to indemnify against any claim that may be made against ANI, Occam
or the Exchange Agent with respect to the Certificates alleged to have been
lost, stolen or destroyed.
1.9 Dissenting Shares.
(a) Notwithstanding anything to the contrary contained in this Agreement,
any shares of capital stock of Occam that, as of the Effective Time, are or
may become "dissenting shares" within the meaning of Section 1300(b) of
California Law shall not be converted into or represent the right to receive
ANI Common Stock in accordance with Section 1.5(a), and the holder or
holders of such shares shall be entitled only to such rights as may be
granted to such holder or holders in Chapter 13 of California Law; provided,
however, that if the status of any such shares as "dissenting shares" shall
not be perfected, or if any such shares shall lose their status as
"dissenting shares," then, as of the later of the Effective Time or the time
of the failure to perfect such status or the loss of such status, such
shares shall automatically be converted into and shall represent only the
right to receive (upon the surrender of the certificate or certificates
representing such shares) ANI Common Stock in accordance with Section 1.5(a).
(b) Occam shall give ANI (i) prompt notice of any written demand received
by Occam prior to the Effective Time to require Occam to purchase shares of
capital stock of Occam pursuant to Chapter 13 of California Law and of any
other demand, notice or instrument delivered to Occam prior to the Effective
Time pursuant to California Law, and (ii) the opportunity to participate in
all negotiations and proceedings with respect to any such demand, notice or
instrument. Occam shall not make any payment or settlement offer prior to
the Effective Time with respect to any such demand.
1.10 Further Action. At and after the Effective Time, the officers and
directors of the Surviving Corporation will be authorized to execute and
deliver, in the name and on behalf of Occam, any deeds, bills of sale,
assignments or assurances and to take and do, in the name and on behalf of
Occam, any other actions to vest, perfect or confirm of record or otherwise in
the Surviving Corporation any and all right, title and interest in, to and
under any of the rights, properties or assets acquired or to be acquired by the
Surviving Corporation as a result of, or in connection with, the Merger.
1.11 Certain Definitions.
For purposes of this Agreement:
"ANI Stock Price" shall mean the closing price of a share of ANI
Common Stock, as reported on the Nasdaq National Market for a given date.
"ANI Common Equivalent Number" shall mean the sum of (A) the
aggregate number of shares of ANI Common Stock that are outstanding
immediately prior to the Effective Time, (B) 4,720,461 shares of ANI
Common Stock (representing an agreed portion of the shares of ANI Common
Stock that are purchasable under or otherwise subject to all options to
purchase shares of ANI Common Stock that are outstanding as of the date
hereof) reduced by the number of shares of ANI Common Stock (if any)
that are actually issued prior to the Effective Time upon the exercise
of options to purchase shares of ANI Common Stock issued prior to the
date hereof with exercise prices of less than $1.00 per share, (C) the
aggregate number of shares of ANI Common Stock that are purchasable
under or otherwise subject to all options and warrants to purchase
shares of ANI Common Stock that are issued after the date hereof and
prior to the Effective Time (if any) and that are outstanding
immediately prior to the Effective Time, and (D) the
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aggregate number of shares of ANI Common Stock that are issuable upon
the conversion of all other convertible securities of ANI that are
outstanding or deemed outstanding immediately prior to the Effective
Time (excluding all options and warrants to purchase shares of ANI
Common Stock).
"Exchange Ratio" shall mean a fraction whose numerator is the Merger
Consideration and whose denominator is the Occam Common Equivalent
Number.
"Merger Consideration" shall mean the number of shares of ANI Common
Stock equal to the product of 2.125 and the ANI Common Equivalent Number.
"Occam Common Equivalent Number" shall mean the sum of (A) the
aggregate number of shares of Occam Common Stock that are outstanding
immediately prior to the Effective Time (including shares of Occam
Common Stock to be issued upon the conversion of all Occam Preferred
Stock immediately prior to the Effective Time and shares of Occam Common
Stock issued or to be issued pursuant to the First Financing (as defined
in Section 2.4)), (B) the aggregate number of shares of Occam Common
Stock that are purchasable under or otherwise subject to all options and
warrants to purchase shares of Occam Common Stock that are outstanding
or deemed outstanding immediately prior to the Effective Time, (C) the
aggregate number of shares of Occam Common Stock that are directly or
indirectly issuable upon the conversion of all other convertible
securities of Occam that are outstanding or deemed outstanding
(including those convertible securities in connection with the Second
Financing (as defined in Section 2.4)) immediately prior to the
Effective Time (excluding all options and warrants to purchase shares of
Occam Common Stock), and (D) the aggregate number of shares of Occam
Common Stock or Occam Preferred Stock (or their equivalents) which Occam
has entered into any commitment or arrangement to issue (or to issue
options or warrants with respect to) prior to the Effective Time, but
which are not outstanding immediately prior to the Effective Time.
1.12 Tax Consequences. It is intended by the parties hereto that in the case
of the shareholders of Occam, the Merger shall constitute a reorganization
within the meaning of Section 368(a) of the Code. The parties hereto adopt this
Agreement as a plan of reorganization within the meaning of Treasury
Regulations Sections 1.368-2(g) and 1.368-3(a).
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF OCCAM
Occam represents and warrants to ANI, subject to the exceptions specifically
disclosed in writing in the disclosure schedules supplied by Occam to ANI dated
as of the date hereof and certified by a duly authorized officer of Occam (the
"Occam Schedules"), as follows:
2.1 Organization; Standing and Power; Charter Documents; Subsidiaries.
(a) Organization; Standing and Power. Occam is a corporation duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation, has the requisite power and authority to
own, lease and operate its properties and to carry on its business as now
being conducted, except (with respect to its good standing status only)
where the failure to be in good standing would not reasonably be expected to
have a Material Adverse Effect (as defined in Section 8.3(b)) on Occam, and
is duly qualified and in good standing to do business in each jurisdiction
in which the nature of its business or the ownership or leasing of its
properties makes such qualification necessary other than in such
jurisdictions where the failure to so qualify or to be good standing,
individually or in the aggregate, would not reasonably be expected to have a
Material Adverse Effect on Occam.
(b) Charter Documents. Occam has delivered or made available to ANI a
true and correct copy of the Articles of Incorporation and Bylaws of Occam,
each as amended to date (collectively, the "Occam Charter Documents") and
each such instrument is in full force and effect. Occam is not in violation
of any of the provisions of the Occam Charter Documents.
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(c) Subsidiaries. Occam has no Subsidiaries and does not own any capital
stock of, or any equity interest of any nature in, any other Person. For
purposes of this Agreement, "Subsidiary," when used with respect to any
party, shall mean any corporation or other organization, whether
incorporated or unincorporated, at least a majority of the securities or
other interests of which having by their terms ordinary voting power to
elect a majority of the Board Directors or others performing similar
functions with respect to such corporation or other organization is directly
or indirectly owned or controlled by such party or by any one or more of its
Subsidiaries, or by such party and one or more of its Subsidiaries.
2.2 Occam Capital Structure.
(a) Capital Stock. The authorized capital stock of Occam consists of: (i)
42,975,000 shares of Occam Common Stock, no par value per share, of which
6,172,457 shares are issued and outstanding as of the date hereof, (ii)
6,975,000 shares of Series A Preferred Stock, no par value per share, of
which 6,975,000 shares are issued and outstanding as of the date hereof,
(iii) 20,000,000 shares of Series B Preferred Stock, no par value per share,
of which 18,141,177 shares were issued and outstanding as of the date
hereof, and (iv) 8,000,000 shares of Series C Preferred Stock, no par value
per share, of which no shares are issued and outstanding as of the date
hereof. All of the outstanding shares of capital stock of Occam have been
duly authorized and validly issued, and are fully paid and nonassessable,
and except as set forth in Schedule 2.2 of the Occam Schedules, are free of
any preemptive rights, rights of participation, rights of maintenance or any
similar rights. As of the date hereof, there are no shares of Occam Common
Stock held in treasury by Occam. Except as set forth in Schedule 2.2 of the
Occam Schedules: (i) none of the outstanding shares of Occam Capital Stock
is subject to any right of first refusal in favor of Occam and (ii) there is
no Contract relating to the voting or registration of, or restricting any
Person from purchasing, selling, pledging or otherwise disposing of (or
granting any option or similar right with respect to), any shares of Occam
Common Stock. Occam is not under any obligation, nor is it bound by any
Contract pursuant to which it may become obligated, to repurchase, redeem or
otherwise acquire any outstanding shares of Occam Capital Stock.
(b) Stock Options and Warrants. As of the date hereof: (i) 11,741,300
shares of Occam Common Stock are subject to issuance pursuant to outstanding
options to purchase Occam Common Stock under the Occam Stock Option Plan and
29,500 shares of Occam Stock are subject to issuance pursuant to outstanding
options to purchase Occam Common Stock not under the Occam Stock Option Plan
(each an "Occam Option") and (ii) 188,235 shares of Occam Series B Preferred
Stock are reserved for issuance under warrants to purchase Series B
Preferred Stock (the "Occam Preferred Warrants"). All shares of Occam Common
Stock and Series B Preferred Stock subject to issuance as aforesaid, upon
issuance on the terms and conditions specified in the instruments pursuant
to which they are issuable, would be duly authorized, validly issued, fully
paid and nonassessable. Schedule 2.2(b) of the Occam Schedules sets forth
the following information with respect to each Occam Option outstanding as
of the date of this Agreement: (i) the particular plan (if any) pursuant to
which such Occam Option was granted; (ii) the name of the optionee; (iii)
the number of shares of Occam Common Stock subject to such Occam Option;
(iv) the exercise price of such Occam Option; (v) the date on which such
Occam Option was granted; and (vi) the applicable vesting schedule. Occam
has delivered or made available to ANI accurate and complete copies of all
stock option plans pursuant to which Occam has ever granted stock options,
and the forms of all stock option agreements evidencing such options.
Schedule 2.2(b) of the Occam Schedules also sets forth the following
information with respect to each Occam Preferred Warrant outstanding as of
the date of this Agreement: (i) the name of the holder of such Preferred
Warrant; (ii) the number of shares of Series B Preferred Stock subject to
such Occam Preferred Warrant; (iii) the exercise price of such Occam
Preferred Warrant; (iv) the date on which such Occam Preferred Warrant was
issued; and (v) the applicable vesting schedule. Occam has delivered or made
available to ANI accurate and complete copies of all warrant agreements
evidencing the Occam Preferred Warrants.
(c) Other Securities. Except as otherwise set forth in this Section 2.2
or in Schedule 2.2 of the Occam Schedules, as of the date hereof, there are
no (i) securities, options, warrants, calls, rights,
7
commitments, agreements, arrangements or undertakings of any kind to which
Occam is a party or by which it is bound obligating Occam to issue, deliver
or sell, or cause to be issued, delivered or sold, additional shares of
capital stock or other voting securities of Occam, or obligating Occam to
issue, grant, extend or enter into any such security, option, warrant, call,
right, commitment, agreement, arrangement or undertaking, (ii) outstanding
security, instrument or obligation that is or may become convertible into or
exchangeable for any shares of the capital stock or other securities of
Occam or (iii) stockholder rights plan (or similar plan commonly referred to
as a "poison pill") or Contract under which Occam is or may become obligated
to sell or otherwise issue any shares of its capital stock or any other
securities. All outstanding shares of Occam Common Stock, Occam Preferred
Stock and all outstanding options and warrants to acquire Occam capital
stock have been issued and granted in compliance with (i) all applicable
securities laws and all other applicable Legal Requirements (as defined
below) and (ii) all material requirements set forth in applicable Contracts
(as defined below). For purposes of this Agreement, "Legal Requirement"
shall mean any federal, state, local, municipal, foreign or other law,
statute, constitution, principle of common law, resolution, ordinance, code,
order, edict, decree, rule, regulation, ruling or requirement issued,
enacted, adopted, promulgated, implemented or otherwise put into effect by
or under the authority of any Governmental Entity. For purposes of this
Agreement, "Contract" shall mean any written, oral or other agreement,
contact, subcontract, lease, binding understanding, instrument, note,
option, warranty, purchase order, license, sublicense, insurance policy,
benefit plan or legally binding commitment or undertaking of any nature, as
in effect as of the date hereof or as may hereinafter be in effect.
2.3 Authority; Non-Contravention; Necessary Consents.
(a) Authority. The execution and delivery of this Agreement and the
Funding Agreement and the consummation of the transactions contemplated
hereby and thereby have been duly authorized by all necessary corporate
action on the part of Occam and no other corporate proceedings on the part
of Occam are necessary to authorize the execution and delivery of this
Agreement or the Funding Agreement or to consummate the Merger and the other
transactions contemplated hereby or thereby, other than the approval and
adoption of this Agreement and the approval of the Merger by Occam's
shareholders and the filing of the Agreement of Merger pursuant to
California Law. The affirmative vote of the holders of a majority of the
outstanding shares of Occam Preferred Stock (voting as a single class) and
the affirmative vote of the holders of a majority of the outstanding shares
of Occam Common Stock to approve and adopt this Agreement and approve the
Merger are the only votes of the holders of any class or series of Occam
capital stock necessary to approve and adopt this Agreement, approve the
Merger and consummate the Merger and the other transactions contemplated
hereby, provided that the approval of the conversion of all outstanding
shares of each series of Occam Preferred Stock into Occam Common Stock
requires the affirmative vote of the holders of two-thirds 2/3 of the
outstanding shares of each such series of Occam Preferred Stock. This
Agreement and the Funding Agreement have been duly executed and delivered by
Occam and, assuming due execution and delivery by ANI and Merger Sub,
constitute the valid and binding obligations of Occam, enforceable against
Occam in accordance with their respective terms subject to (i) laws of
general application relating to bankruptcy, insolvency and the relief of
debtors and (ii) rules of law governing specific performance, injunctive
relief and other equitable remedies.
(b) Non-Contravention. The execution and delivery of this Agreement and
the Funding Agreement by Occam do not, and performance of this Agreement and
the Funding Agreement by Occam will not, (i) conflict with or violate the
Occam Charter Documents or any resolution adopted by the shareholders, board
of directors or a committee of the board of directors of Occam, (ii) subject
to obtaining the approval and adoption of this Agreement and the approval of
the Merger by Occam's shareholders as contemplated in Section 5.2 and
compliance with the requirements set forth in Section 2.3(c), conflict with
or violate any Legal Requirement applicable to Occam or by which Occam or
any of its respective properties is bound or affected, (iii) result in any
material breach of or constitute a material default (or an event that with
notice or lapse of time or both would become a material default) under, or
impair Occam's rights or alter the rights or obligations of any third party
under, or give to others any rights of termination, amendment, acceleration
or cancellation of, or result in the creation of a material Lien (as defined
below) on any of the material
8
properties or assets of Occam pursuant to, any Occam Material Contract (as
defined in Section 2.10), except as set forth in Schedule 2.3(b) of the
Occam Schedules, or (iv) contravene, conflict with or result in a violation
of any of the terms or requirements of, or give any Governmental Entity (as
defined below) the right to revoke, withdraw, suspend, cancel, terminate or
modify any Occam Permit (as defined in Section 2.8) that is held by Occam or
that otherwise relates to the business of Occam or to any of the assets
owned or used by Occam. For purposes of this Agreement, "Lien" shall mean
any lien, encumbrance, mortgage, pledge, security interest, claim, charge,
option or other defect in ownership or title.
(c) Consents. No consent, approval, order or authorization of, or
registration, declaration or filing with any supranational, national, state,
municipal, local or foreign government, any instrumentality, subdivision,
court, administrative agency or commission or other governmental authority
or instrumentality, or any quasi-governmental or private body exercising any
regulatory, taxing, importing or other governmental or quasi-governmental
authority (a "Governmental Entity") or any other Person is required to be
obtained or made by Occam in connection with the execution and delivery of
this Agreement or the consummation of the Merger and other transactions
contemplated hereby, except for (i) the filing of the Agreement of Merger
with the Secretary of State of the State of California and appropriate
documents with the relevant authorities of other states in which Occam
and/or ANI are qualified to do business, (ii) the filing of the
Prospectus/Proxy Statement (as defined in Section 2.14) with the SEC in
accordance with the Securities Exchange Act of 1934, as amended (the
"Exchange Act") and the effectiveness of the Registration Statement (as
defined in Section 2.14), (iii) such consents, approvals, orders,
authorizations, registrations, declarations and filings as may be required
under applicable federal, foreign and state securities (or "blue sky") laws,
(iv) such other consents, approvals, orders, authorizations, registrations,
declarations and filings which if not obtained or made would not be material
to Occam or ANI or materially adversely affect the ability of the parties
hereto to consummate the Merger within the time frame in which the Merger
would otherwise be consummated in the absence of the need for such consents,
approvals, orders, authorizations, registrations, declarations or filings.
The consents, approvals, orders, authorizations, registrations, declarations
and filings set forth in (i) through (iv) are referred to herein as the
"Regulatory Consents."
2.4 Occam Financial Statements; Undisclosed Liabilities.
(a) Occam Financial Statements. Occam has delivered or made available to
ANI copies of (a) the audited balance sheet of Occam as of December 31,
2000, together with the related audited statement of operations,
stockholders' equity and cash flow for the year ended December 31, 2000 and
the notes thereto, and (b) the unaudited balance sheet of Occam as of
September 28, 2001, together with the related unaudited statement of
operations and cash flow for the nine (9) month period ended September 28,
2001 (collectively, the "Occam Financials"). The Occam Financials were (a)
prepared in accordance with United States generally accepted accounting
principles ("GAAP") applied on a consistent basis throughout the periods
involved (except as may be indicated in the notes thereto and (b) fairly
presented in all material respects the financial position of Occam as at the
respective dates thereof and the results of Occam's operations and cash
flows for the periods indicated (subject to in the case of any unaudited
financial statements normal and recurring year-end adjustments). The balance
sheet dated as of September 28, 2001 is hereinafter referred to as the
"Occam Balance Sheet."
(b) Except as disclosed in the Occam Financials, Occam does not have any
liabilities required under GAAP to be set forth on a balance sheet
(absolute, accrued, contingent or otherwise) which, individually or in the
aggregate, would be reasonably expected to have a Material Adverse Effect on
Occam, except for liabilities incurred since the date of the Occam Balance
Sheet in the ordinary course of business consistent with past practices and
liabilities incurred pursuant to this Agreement.
(c) As of the date hereof, Occam has (i) obtained a legally binding
commitment from its investors to provide $10,000,000 in equity financing
through the sale in a private placement of capital stock to such investors
in connection with the Merger (the "First Financing") and (ii) obtained a
legally binding commitment from its investors to provide $10,000,000 of
funding to ANI after the Effective Time (the "Second Financing"). Occam has
provided to ANI true and correct copies of the agreements setting forth the
terms of the First and Second Financing and such agreements remain in full
force and effect.
9
2.5 Absence of Certain Changes or Events. Since the date of the Occam
Balance Sheet there has not been: (i) any Material Adverse Effect on Occam;
(ii) any declaration, setting aside or payment of any dividend on, or other
distribution (whether in cash, stock or property) in respect of, any of Occam's
capital stock, or any purchase, redemption or other acquisition by Occam of any
of Occam's capital stock or any other securities of Occam or any options,
warrants, calls or rights to acquire any such shares or other securities except
for repurchases from employees following their termination pursuant to the
terms of their pre-existing stock option or purchase agreements; or (iii) any
split, combination or reclassification of any of Occam's capital stock.
2.6 Taxes.
(a) Definition. For the purposes of this Agreement, the term "Tax" or,
collectively, "Taxes," shall mean any and all federal, state, local and
foreign taxes, assessments and other governmental charges, duties,
impositions and liabilities, including taxes based upon or measured by gross
receipts, income, profits, sales, use and occupation, and value added, ad
valorem, transfer, franchise, withholding, payroll, recapture, employment,
excise and property taxes, together with all interest, penalties and
additions imposed with respect to such amounts, and any obligations with
respect to such amounts arising as a result of being a member of an
affiliated, consolidated, combined or unitary group for any period or under
any agreements or arrangements with any other person and including any
liability for taxes of a predecessor entity.
(b) Representations. Except where failure of any of the following
representations to be true would not have or evidence a Material Adverse
Effect on Occam:
(i) All federal, state, local and foreign returns, estimates,
information statements and reports relating to Taxes ("Tax Returns")
required to be filed by or on behalf of Occam with any Governmental
Entity with respect to any taxable period ending on or before the
Closing Date (the "Occam Returns") (i) have been or will be filed on or
before the applicable due date (including any extensions of such due
date), and (ii) have been, or will be when filed, accurately and
completely prepared in compliance with all applicable Legal
Requirements. Except as reserved on Occam Financials, all amounts
required to be paid in respect of Occam (whether or not shown on any Tax
Returns) due on or before the Closing Date have been or will be paid on
or before the Closing Date. Occam has delivered or made available to ANI
accurate and complete copies of all Occam Returns filed by or on behalf
of Occam since its date of incorporation.
(ii) The Occam Financials fully accrue all actual and contingent
liabilities for Taxes with respect to all periods through the dates
thereof in accordance with GAAP. All Taxes incurred since the date of
the Occam Balance Sheet have been incurred in the ordinary course of
business.
(iii) No Occam Return has ever been examined or audited by any
Governmental Body. No extension or waiver of the limitation period
applicable to any Occam Returns has been granted (by Occam or any other
Person), and no such extension or waiver has been requested from Occam.
(iv) No claim or Proceeding (as defined in Section 2.8) is pending or
has been threatened against or with respect to Occam in respect of any
Tax. There are no unsatisfied liabilities for Taxes (including
liabilities for interest, additions to tax and penalties thereon and
related expenses) with respect to any notice of deficiency or similar
document received by Occam with respect to any Tax (other than
liabilities for Taxes asserted under any such notice of deficiency or
similar document that are being contested in good faith by Occam and
with respect to which adequate reserves for payment have been
established). There are no liens for Taxes upon any of the assets of
Occam except liens for current Taxes not yet due and payable. Occam has
not entered into or become bound by any agreement or consent pursuant to
Section 341(f) of the Code. Occam has not been, and will not be,
required to include any adjustment in taxable income for any tax period
(or portion thereof) pursuant to Section 481 or 263A of the Code or any
comparable provision under state or foreign Tax laws as a result of
transactions or events occurring, or accounting methods employed, prior
to the Closing.
10
(v) There is no agreement, plan, arrangement or other Contract
covering any employee or independent contractor or former employee or
independent contractor of Occam that, considered individually or
considered collectively with any other such Contracts, will, or could
reasonably be expected to, give rise directly or indirectly to the
payment of any amount that would not be deductible pursuant to Section
280G of the Code. Occam is not, nor has it been, a party to or bound by
any tax indemnity agreement, tax-sharing agreement, tax allocation
agreement or similar Contract.
(vi) Occam has no liability for any Tax pursuant to Treasury
Regulations Section 1.1502-6 or any analogous state, local or foreign
law or regulation or by reason of having been a member of any
consolidated, combined or unitary group on or before the Closing Date.
(vii) Occam has not constituted either a "distributing corporation"
or a "controlled corporation" in a distribution of stock qualifying
under Section 355 of the Code (x) in the two years prior to the date of
this Agreement or (y) in a distribution that could otherwise constitute
part of a "plan" or "series of related transactions" (within the meaning
of Section 355(e) of the Code) in conjunction with the Merger.
(viii) Occam is in full compliance with all terms and conditions of
any Tax exemptions, Tax holiday or other Tax reduction agreement or
order of a territorial or foreign government, and the consummation of
the Merger will not have any adverse effect on the continued validity
and effectiveness of any such Tax exemptions, Tax holiday or other Tax
reduction agreement or order.
(ix) Occam has not taken any action nor does it know of any fact,
agreement or plan or other circumstance that is reasonably likely to
prevent the Merger from qualifying as a reorganization within the
meaning of Section 368(a) of the Code.
2.7 Intellectual Property. To the knowledge of Occam, the products, services
and operations of Occam do not infringe or misappropriate the Intellectual
Property (as defined below) of any third party where such infringement or
misappropriation, individually or in the aggregate, would be reasonably
expected to have a material adverse effect on any material division, business
unit or product or service offering of Occam or otherwise have a Material
Adverse Effect on Occam. For purposes of this Agreement, "Intellectual
Property" shall mean all patents (including, without limitation, all U.S. and
foreign patents, patent applications, patent disclosures, and any and all
divisions, continuations, continuations-in-part, reissues, re-examinations and
extensions thereof), design rights, trademarks, trade names and service marks
(whether or not registered), trade dress, Internet domain names, copyrights
(whether or not registered) and any renewal rights therefor.
2.8 Compliance; Permits.
(a) Compliance. Occam is not in material conflict with, or in material
default or in material violation of, any Legal Requirement applicable to
Occam or by which Occam or any of its businesses or properties is, or Occam
believes is reasonably likely to be, bound or affected. No material
investigation or review by any Governmental Entity against Occam is pending
or, to Occam's knowledge, has been threatened in a writing delivered to
Occam. There is no material judgment, injunction, order or decree binding
upon Occam which has or would reasonably be expected to have the effect of
prohibiting or materially impairing any material business practice of Occam,
any acquisition of material property by Occam or the conduct of business by
Occam as currently conducted.
(b) Permits. Occam and its Subsidiaries hold, to the extent legally
required, all permits, licenses, variances, exemptions, orders and approvals
from Governmental Entities ("Permits") that are material to and required for
the operation of the business of Occam, as currently conducted
(collectively, the "Occam Permits"). No suspension or cancellation of any of
the Occam Permits is pending or, to the knowledge of Occam, threatened.
Occam is in compliance in all material respects with the terms of the Occam
Permits.
2.9 Litigation. There are no claims, suits, actions or proceedings pending
or, to the knowledge of Occam, threatened against Occam, before any court,
governmental department, commission, agency,
11
instrumentality or authority, or any arbitrator that seeks to restrain or
enjoin the consummation of the transactions contemplated hereby or which would
reasonably be expected, either singularly or in the aggregate with all such
claims, actions or proceedings, to be material to Occam (a "Proceeding").
2.10 Contracts.
(a) Occam Material Contracts. Except as otherwise set forth in Schedule
2.10 of the Occam Schedules, as of the date hereof Occam is not a party to
or is bound by any of the following (each, an "Occam Material Contract"):
(i) any "material contracts" (as such term is defined in Item
601(b)(10) of Regulation S-K of the SEC) with respect to Occam (assuming
Occam were a public company subject to the reporting requirements of the
SEC);
(ii) any Contract containing any covenant materially limiting the
right of Occam to engage in any line of business or to compete with any
Person or granting any exclusive distribution rights;
(iii) any Contract (other than Contracts evidencing Occam Options)
(A) relating to the acquisition, issuance, voting, registration, sale or
transfer of any securities of Occam, (B) providing any Person with any
preemptive right, right of participation, right of maintenance or any
similar right with respect to any securities of Occam, or (C) providing
Occam with any right of first refusal with respect to, or right to
repurchase or redeem, any securities;
(iv) any Contract that provides for indemnification of any officer,
director, employee or agent;
(v) any Contract incorporating or relating to any guaranty, any
warranty or any indemnity or similar obligation; or
(vi) any Contract, or group of Contracts with a Person (or group of
affiliated Persons), the termination of which would be reasonably
expected to have a have a Material Adverse Effect on Occam or the
Surviving Corporation.
(b) No Breach. All Occam Material Contracts are valid and in full force
and effect except to the extent they have previously expired in accordance
with their terms or if the failure to be in full force and effect,
individually or in the aggregate, would not reasonably be expected to have a
Material Adverse Effect on Occam. Occam has not violated any provision of,
or committed or failed to perform any act which with or without notice,
lapse of time or both would constitute a default under the provisions of,
any Occam Material Contract, except in each case for those violations and
defaults which, individually or in the aggregate, would not reasonably be
expected to have a Material Adverse Effect on Occam.
2.11 Employee Matters and Benefit Plans.
(a) Definitions. With the exception of the definition of "Affiliate" set
forth in Section 2.11(a)(i) below (which definition shall apply only to this
Section 2.11 and Section 3.12), for purposes of this Agreement, the
following terms shall have the meanings set forth below:
(i) "Affiliate" of a party shall mean any other person or entity
under common control with a party within the meaning of Section 414(b),
(c), (m) or (o) of the Code and the regulations issued thereunder;
(ii) "COBRA" shall mean the Consolidated Omnibus Budget
Reconciliation Act of 1985, as amended;
(iii) "DOL" shall mean the Department of Labor;
(iv) "Employee" of a party shall mean any current or former or
retired employee, consultant or director of a party or an Affiliate of
such party;
(v) "Employee Plan" of a party shall mean any plan, program, policy,
practice, contract, agreement or other arrangement providing for
compensation, severance, termination pay, deferred
12
compensation, performance awards, stock or stock-related awards, fringe
benefits or other employee benefits or remuneration of any kind, whether
written or unwritten or otherwise, funded or unfunded, including without
limitation, each "employee benefit plan," within the meaning of Section
3(3) of ERISA which is or has been maintained, contributed to, or
required to be contributed to, by such party or any Affiliate of such
party for the benefit of any Employee, or with respect to which such
party or any Affiliate of such party has or may have any liability or
obligation.
(vi) "Employment Agreement" of a party shall mean each management,
employment, severance, consulting, relocation, repatriation,
expatriation, visas, work permit or other agreement, contract or
understanding between such party or an Affiliate of such party and any
Employee of such party;
(vii) "ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as amended;
(viii) "FMLA" shall mean the Family Medical Leave Act of 1993, as
amended;
(ix) "International Employee Plan" of a party shall mean each
Employee Plan that has been adopted or maintained by such party or any
Affiliate of such party, whether informally or formally, or with respect
to which such party or any Affiliate of such Party has or may have any
liability, for the benefit of Employees who perform services outside the
United States;
(x) "IRS" shall mean the Internal Revenue Service;
(xi) "Multiemployer Plan" shall mean any "Pension Plan" (as defined
below) which is a "multiemployer plan," as defined in Section 3(37) of
ERISA;
(xii) "Occam Employee Plan" shall mean any Employee Plan as it
pertains to Occam or any of its Affiliates.
(xiii) "Occam Employment Agreement" shall mean any Employment
Agreement as it pertains to Occam or any of its Affiliates.
(xiv) "Pension Plan" shall mean each Employee Plan which is an
"employee pension benefit plan," within the meaning of Section 3(2) of
ERISA.
(b) Schedule. Schedule 2.11(b) of the Occam Schedules contains an
accurate and complete list of each Occam Employee Plan and each Occam
Employment Agreement. Occam does not have any plan or commitment to
establish any new Occam Employee Plan, International Employee Plan (as it
pertains to Occam or its Affiliates) or Occam Employment Agreement or to
modify any Occam Employee Plan or Occam Employment Agreement (except to the
extent required by law or to conform any such Occam Employee Plan or Occam
Employment Agreement to the requirements of any applicable law, in each case
as previously disclosed to Occam in writing, or as required by this
Agreement).
(c) Documents. Occam has provided or made available to ANI correct and
complete copies of: (i) all documents embodying each Occam Employee Plan,
and each Occam Employment Agreement including (without limitation) all
amendments thereto and all related trust documents, administrative service
agreements, group annuity contracts, group insurance contracts, and policies
pertaining to fiduciary liability insurance covering the fiduciaries for
each plan; (ii) the most recent annual actuarial valuations, if any,
prepared for each Occam Employee Plan; (iii) the three (3) most recent
annual reports (Form Series 5500 and all schedules and financial statements
attached thereto), if any, required under ERISA or the Code in connection
with each Occam Employee Plan; (iv) if the Occam Employee Plan is funded,
the most recent annual and periodic accounting of Occam Employee Plan
assets; (v) the most recent summary plan description together with the
summary(ies) of material modifications thereto, if any, required under ERISA
with respect to each Occam Employee Plan; (vi) all IRS determination,
opinion, notification and advisory letters, and all applications and
correspondence to or from the IRS or the DOL with respect to any such
application or letter; (vii) all communications material to any Employee or
Employees relating to any Occam Employee Plan and any proposed Occam
Employee Plans, in each case, relating to any amendments,
13
terminations, establishments, increases or decreases in benefits,
acceleration of payments or vesting schedules or other events which would
result in any material liability to Occam; (viii) all correspondence to or
from any governmental agency relating to any Occam Employee Plan; (ix) all
COBRA forms and related notices (or such forms and notices as required under
comparable law); (x) the three (3) most recent plan years discrimination
tests for each Occam Employee Plan; and (xi) all registration statements,
annual reports (Form 11-K and all attachments thereto) and prospectuses
prepared in connection with each Occam Employee Plan.
(d) Employee Plan Compliance. Except as set forth on Schedule 2.11(d) of
the Occam Schedules: (i) Occam has performed in all material respects all
obligations required to be performed by it under, is not in default or
violation of, and has no knowledge of any default or violation by any other
party to each Occam Employee Plan, and each Occam Employee Plan has been
established and maintained in all material respects in accordance with its
terms and in compliance with all applicable laws, statutes, orders, rules
and regulations, including but not limited to ERISA or the Code; (ii) each
Occam Employee Plan intended to qualify under Section 401(a) of the Code and
each trust intended to qualify under Section 501(a) of the Code has either
received a favorable determination, opinion, notification or advisory letter
from the IRS with respect to each such Occam Employee Plan as to its
qualified status under the Code, including all amendments to the Code
effected by the Tax Reform Act of 1986 and subsequent legislation, or has
remaining a period of time under applicable Treasury regulations or IRS
pronouncements in which to apply for such a letter and make any amendments
necessary to obtain a favorable determination as to the qualified status of
each such Company Employee Plan; (iii) no "prohibited transaction," within
the meaning of Section 4975 of the Code or Sections 406 and 407 of ERISA,
and not otherwise exempt under Section 4975 of the Code or Section 408 of
ERISA (or any administrative class exemption issued thereunder), has
occurred with respect to any Occam Employee Plan; (iv) there are no actions,
suits or claims pending, or, to the knowledge of Occam, threatened or
reasonably anticipated (other than routine claims for benefits) against any
Occam Employee Plan or against the assets of any Occam Employee Plan; (v)
each Occam Employee Plan (other than any stock option plan) can be amended,
terminated or otherwise discontinued after the Effective Time, without
material liability to Occam, or any Affiliate of Occam (other than ordinary
administration expenses); (vi) there are no audits, inquiries or proceedings
pending or, to the knowledge of Occam, threatened by the IRS or DOL with
respect to any Occam Employee Plan; and (vii) neither Occam nor any
Affiliate of Occam is subject to any penalty or tax with respect to any
Occam Employee Plan under Section 502(i) of ERISA or Sections 4975 through
4980 of the Code.
(e) Pension Plan. Neither Occam nor any Affiliate of Occam has ever
maintained, established, sponsored, participated in, or contributed to, any
Pension Plan which is subject to Title IV of ERISA or Section 412 of the
Code.
(f) Collectively Bargained, Multiemployer and Multiple Employer Plans. At
no time has Occam or any Affiliate of Occam contributed to or been obligated
to contribute to any Multiemployer Plan. Neither Occam nor any Affiliate of
Occam has at any time ever maintained, established, sponsored, participated
in, or contributed to any multiple employer plan, or to any plan described
in Section 413 of the Code.
(g) No Post-Employment Obligations. Except as set forth in Schedule
2.11(g) of the Occam Schedules, no Occam Employee Plan provides, or reflects
or represents any liability to provide retiree health to any person for any
reason, except as may be required by COBRA or other applicable statute, and
Occam has never represented, promised or contracted (whether in oral or
written form) to any Employee (either individually or to Employees as a
group) or any other person that such Employee(s) or other person would be
provided with retiree health, except to the extent required by statute.
(h) Health Care Compliance. Neither Occam nor any Affiliate of Occam has,
prior to the Effective Time and in any material respect, violated any of the
health care continuation requirements of COBRA, the requirements of FMLA,
the requirements of the Health Insurance Portability and Accountability Act
of 1996, the requirements of the Women's Health and Cancer Rights Act of
1998, the requirements of the Newborns' and Mothers' Health Protection Act
of 1996, or any amendment to each such act, or any similar provisions of
state law applicable to its Employees.
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(i) Effect of Transaction.
(i) Except as set forth on Schedule 2.11(i) of the Occam Schedules,
the execution of this Agreement and the consummation of the transactions
contemplated hereby will not (either alone or upon the occurrence of any
additional or subsequent events) constitute an event under any Occam
Employee Plan, Employment Agreement, trust or loan that will or may
result in any payment (whether of severance pay or otherwise),
acceleration, forgiveness of indebtedness, vesting, distribution,
increase in benefits or obligation to fund benefits with respect to any
Employee.
(ii) Except as set forth on Schedule 2.11(i) of the Occam Schedules,
no payment or benefit which will or may be made by Occam or its
Affiliates with respect to any Employee or any other "disqualified
individual" (as defined in Code Section 280G and the regulations
thereunder) will be characterized as a "parachute payment," within the
meaning of Section 280G(b)(2) of the Code.
(j) Employment Matters. Occam: (i) is in compliance in all respects with
all applicable foreign, federal, state and local laws, rules and regulations
respecting employment, employment practices, terms and conditions of
employment and wages and hours, in each case, with respect to Employees;
(ii) has withheld and reported all amounts required by law or by agreement
to be withheld and reported with respect to wages, salaries and other
payments to Employees; (iii) is not liable for any arrears of wages or any
taxes or any penalty for failure to comply with any of the foregoing; and
(iv) is not liable for any payment to any trust or other fund governed by or
maintained by or on behalf of any governmental authority, with respect to
unemployment compensation benefits, social security or other benefits or
obligations for Employees (other than routine payments to be made in the
normal course of business and consistent with past practice). There are no
pending, threatened or reasonably anticipated claims or actions against ANI
under any worker's compensation policy or long-term disability policy.
(k) Labor. No work stoppage or labor strike against Occam is pending,
threatened or reasonably anticipated. Occam does not know of any activities
or proceedings of any labor union to organize any Employees. Except as set
forth in Schedule 2.11(k) of the Occam Schedules, there are no actions,
suits, claims, labor disputes or grievances pending, or, to the knowledge of
Occam, threatened or reasonably anticipated relating to any labor, safety or
discrimination matters involving any Employee, including, without
limitation, charges of unfair labor practices or discrimination complaints,
which, if adversely determined, would, individually or in the aggregate,
result in any material liability to Occam. Neither Occam nor any of its
subsidiaries has engaged in any unfair labor practices within the meaning of
the National Labor Relations Act. Except as set forth in Schedule 2.11(k) of
the Occam Schedules, Occam is not presently, nor has it been in the past, a
party to, or bound by, any collective bargaining agreement or union contract
with respect to Employees and no collective bargaining agreement is being
negotiated by Occam.
(l) International Employee Plan. Occam does not now, nor has it ever had
the obligation to, maintain, establish, sponsor, participate in, or
contribute to any International Employee Plan.
2.12 Real Property. Occam does not own any real property. Schedule 2.12 of
the Occam Schedules set forth a list of all properties leased or otherwise
occupied by Occam and its Subsidiaries for the operation of its business,
including the address, the name of the landlord, and the current base rent
("Occam Facilities"). Schedule 2.12 of the Occam Schedules identifies all of
the leases or other occupancy agreements with respect to the Occam Facilities
("Occam Leases") and any amendments or modifications to the Occam Leases. No
party other than Occam has the right to occupy any of the Occam Facilities. The
Occam Facilities are in good condition and repair, reasonable wear and tear
excepted. Occam does not have any current and unperformed obligations under the
Occam Leases for repair, maintenance or replacement at any Occam Facilities or
for the installation of improvements at any Occam Facilities. Each Occam Lease
is in full force and effect, and no breach or default exists by Occam (or, to
the knowledge of Occam, by any other party thereto), nor to the knowledge of
Occam has any event or condition occurred which could (with the giving of
notice or the passage of time or both) constitute a breach or default, under
any Occam Lease.
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2.13 Insurance. All of Occam's policies and contracts for property and
casualty insurance (the "Occam Insurance Policies") are in full force and
effect and are sufficient for compliance with all requirements of law
applicable to Occam. The Occam Insurance Policies are in full force and effect
and will not lapse or be subject to suspension, modification, revocation,
cancellation, termination or nonrenewal by reason of the execution, delivery or
performance of this Agreement or of any transaction in connection with this
Agreement and are sufficient for compliance with all requirements of law
applicable to Occam. Occam is current in all premiums or other payments due
under each Occam Insurance Policy and has otherwise performed in all material
respects all of its respective obligations thereunder. Occam has not received,
during the past three years from any insurance carrier with which it has
carried any insurance, any refusal of coverage or notice of material limitation
of coverage or any notice that a defense will be afforded with reservation of
rights.
2.14 Disclosure. None of the information supplied or to be supplied by or on
behalf of Occam for inclusion in the registration statement on Form S-4 (or
similar successor form) to be filed with the SEC by ANI in connection with the
issuance of ANI Common Stock in the Merger (including amendments or supplements
thereto) (the "Registration Statement") will, at the time the Registration
Statement is filed with the SEC at the time the Registration Statement becomes
effective under the Securities Act of 1933, as amended (the "Securities Act"),
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they are made, not
misleading. None of the information supplied or to be supplied by or on behalf
of Occam for inclusion or incorporation by reference in the Prospectus/Proxy
Statement to be filed with the SEC as part of the Registration Statement (the
"Prospectus/Proxy Statement"), will, at the time the Prospectus/Proxy Statement
is mailed to the stockholders of ANI, at the time of the ANI Stockholders'
Meeting (as defined in Section 5.2(a)(i)) or Occam Shareholders' Meeting (as
defined in Section 5.2(a)(ii)) or as of the Effective Time, contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements therein, in the
light of the circumstances under which they are made, not misleading.
Notwithstanding the foregoing, no representation or warranty is made by Occam
with respect to statements made or incorporated by reference therein about ANI
supplied by ANI for inclusion or incorporation by reference in the Registration
Statement or the Prospectus/Proxy Statement.
2.15 Board Approval. The Board of Directors of Occam has, by resolutions
duly adopted at a meeting of all Directors duly called and held and not
subsequently rescinded or modified in any way), (i) determined that the Merger
is fair to, and in the best interests of, Occam and its shareholders and
declared the Merger to be advisable, (ii) approved this Agreement and (iii)
recommended that the shareholders of Occam approve and adopt this Agreement and
approve the Merger and directed that such matter be submitted to Occam's
shareholders at the Occam Shareholders' Meeting (as defined in Section 5.2).
2.16 Related Party Transactions. Except as set forth in Schedule 2.16 of the
Occam Schedules: (a) no Occam Related Party (as defined below) has any direct
or indirect interest in any material asset used in or otherwise relating to the
business of Occam; (b) no Occam Related Party is indebted to Occam; (c) to the
knowledge of Occam, no Occam Related Party has entered into, or has had any
direct or indirect financial interest in, any Occam Material Contract; (d) to
the knowledge of Occam, no Occam Related Party is competing directly or
indirectly, with Occam; and (e) to the knowledge of Occam, no Occam Related
Party has any claim or right against Occam (other than rights under the Occam
Options and rights to receive compensation for services performed as an
employee of Occam and rights associated with being an officer or director or as
set forth in the Occam Material Contracts). For purposes of the foregoing, each
of the following shall be deemed to be an "Occam Related Party": (i) each
individual who is, or who has at any time been, an officer or director of
Occam; (ii) each member of the immediate family of each of the individuals
referred to in clause "(i)" above; and (iii) any trust or other Person (other
than Occam) in which any one of the individuals referred to in clauses "(i)"
and "(ii)" above holds (or in which more than one of such individuals
collectively hold), beneficially or otherwise, a material voting, proprietary
or equity interest), but excludes any officers or directors of Occam who are
affiliated with any venture capital or similar investor in Occam and such
affiliates.
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2.17 Environmental Matters. Except as set forth in Schedule 2.17 of the
Occam Schedules, Occam has not disposed of, released, discharged or emitted any
Hazardous Materials into the soil or groundwater at any properties owned or
leased by Occam. For purposes of this Agreement, "Hazardous Materials" means
any chemical, pollutant, contaminant, waste or toxic or hazardous substance or
material regulated under any Legal Requirement with respect to environmental
matters.
2.18 Brokers' and Finders' Fees. Occam has not incurred, nor will it incur,
directly or indirectly, any liability for brokerage or finders' fees or agents'
commissions or any similar charges in connection with this Agreement or any
transaction contemplated hereby.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF ANI
ANI represents and warrants to Occam, subject to the exceptions specifically
disclosed in writing in the disclosure schedules supplied by ANI to Occam dated
as of the date hereof and certified by a duly authorized officer of ANI (the
"ANI Schedules"), as follows:
3.1 Organization; Standing and Power; Charter Documents; Subsidiaries.
(a) Organization; Standing and Power. ANI and each of its Subsidiaries is
a corporation or other organization duly organized, validly existing and in
good standing under the laws of the jurisdiction of its incorporation or
organization, has the requisite power and authority to own, lease and
operate its properties and to carry on its business as now being conducted,
except where the failure to be so organized, existing and in good standing
would not reasonably be expected to have a Material Adverse Effect on ANI,
and is duly qualified and in good standing to do business in each
jurisdiction in which the nature of its business or the ownership or leasing
of its properties makes such qualification necessary other than in such
jurisdictions where the failure to so qualify or to be good standing,
individually or in the aggregate, would not reasonably be expected to have a
Material Adverse Effect on ANI. For purposes of this Agreement,
"Subsidiary," when used with respect to any party, shall mean any
corporation or other organization, whether incorporated or unincorporated,
at least a majority of the securities or other interests of which having by
their terms ordinary voting power to elect a majority of the Board of
Directors or others performing similar functions with respect to such
corporation or other organization is directly or indirectly owned or
controlled by such party or by any one or more of its Subsidiaries, or by
such party and one or more of its Subsidiaries.
(b) Subsidiaries. Schedule 3.1 of the ANI Schedules lists all of the
Subsidiaries of ANI. All the outstanding shares of capital stock of, or
other equity interests in, each such Subsidiary have been validly issued and
are fully paid and nonassessable and are, except as set forth in Schedule
3.1, owned directly or indirectly by ANI, free and clear of all Liens,
including any restriction on the right to vote, sell or otherwise dispose of
such capital stock or other ownership interests, except for restrictions
imposed by applicable securities laws.
3.2 ANI Capital Structure.
(a) Capital Stock. The authorized capital stock of ANI consists of: (i)
200,000,000 shares of ANI Common Stock, par value $0.001 per share, of which
50,625,704 shares had been issued and were outstanding as of the date hereof
and (ii) 5,000,000 shares of preferred stock, par value $0.001 per share, of
which no shares are outstanding as of the date hereof. All of the
outstanding shares of capital stock of ANI have been duly authorized and
validly issued, and are fully paid and nonassessable and free of any
preemptive rights. As of the date hereof, there are no shares of ANI Common
Stock held in treasury by ANI.
(b) Stock Options. As of the date hereof, 11,290,528 shares of ANI Common
Stock are subject to issuance pursuant to outstanding options to purchase
ANI Common Stock (each an "ANI Option") under
17
the 1997 Stock Option/Stock Issuance Plan and the 2000 Stock Incentive Plan
of ANI (the "ANI Stock Option Plans"). All shares of ANI Common Stock
subject to issuance as aforesaid, upon issuance on the terms and conditions
specified in the instruments pursuant to which they are issuable, would be
duly authorized, validly issued, fully paid and nonassessable. Schedule
3.2(b) of the ANI Schedules sets forth the following information with
respect to each ANI Option outstanding as of the date of this Agreement: (i)
the particular plan (if any) pursuant to which such ANI Option was granted;
(ii) the name of the optionee; (iii) the number of shares of ANI Common
Stock subject to such ANI Option; (iv) the exercise price of such ANI
Option; (v) the date on which such ANI Option was granted; and (vi) the
applicable vesting schedule. ANI has delivered or made available to Occam
accurate and complete copies of all stock option plans pursuant to which ANI
has ever granted stock options, and the forms of all stock option agreements
evidencing such options. ANI has delivered or made available to Occam
accurate and complete copies of all agreements and documents evidencing all
employee stock purchase plans.
(c) Except as otherwise set forth in this Section 3.2 or in Schedule 3.2
of the ANI Schedules, as of the date hereof, there are no (i) securities,
options, warrants, calls, rights, commitments, agreements, arrangements or
undertakings of any kind to which ANI is a party or by which it is bound
obligating ANI to issue, deliver or sell, or cause to be issued, delivered
or sold, additional shares of capital stock or other voting securities of
ANI, or obligating ANI to issue, grant, extend or enter into any such
security, option, warrant, call, right, commitment, agreement, arrangement
or undertaking, (ii) outstanding security, instrument or obligation that is
or may become convertible into or exchangeable for any shares of the capital
stock or other securities of ANI, or (iii) stockholder rights plan (or
similar plan commonly referred to as a "poison pill") or Contract under
which ANI is or may become obligated to sell or otherwise issue any shares
of its capital stock or any other securities. All outstanding shares of ANI
Common Stock and all outstanding options and warrants to acquire ANI capital
stock have been issued and granted in compliance with (i) all applicable
securities laws and all other applicable Legal Requirements and (ii) all
material requirements set forth in applicable Contracts.
3.3 Authority; Non-Contravention; Necessary Consents.
(a) Authority. The execution and delivery of this Agreement and the
Funding Agreement and the consummation of the transactions contemplated
hereby and thereby have been duly authorized by all necessary corporate
action on the part of ANI and no other corporate proceedings on the part of
ANI are necessary to authorize the execution and delivery of this Agreement
or the Funding Agreement or to consummate the Merger and the other
transactions contemplated hereby or thereby, other than the approval of the
Merger and the issuance of ANI Common Stock in the Merger by ANI's
stockholders and the filing of the Agreement of Merger pursuant to
California Law. The affirmative vote of the holders of a majority of the
outstanding shares of ANI Common Stock to approve the Merger and the
issuance of ANI Common Stock in the Merger is the only vote of the holders
of any class or series of ANI capital stock necessary to approve and adopt
this Agreement and consummate the Merger and the other transactions
contemplated hereby. This Agreement and the Funding Agreement have been duly
executed and delivered by ANI and, assuming due execution and delivery by
Occam, constitute the valid and binding obligations of ANI, enforceable
against ANI in accordance with their respective terms subject to (i) laws of
general application relating to bankruptcy, insolvency and the relief of
debtors and (ii) rules of law governing specific performance, injunctive
relief and other equitable remedies.
(b) Non-Contravention. The execution and delivery of this Agreement and
the Funding Agreement by ANI do not, and performance of this Agreement and
the Funding Agreement by ANI will not, (i) conflict with or violate the
Certificate of Incorporation and Bylaws of ANI, each as amended to date (the
"ANI Charter Documents") or the equivalent documents of any Subsidiary of
ANI (the "ANI Subsidiary Charter Documents"), (ii) subject to obtaining the
approval and adoption of this Agreement and the approval of the Merger and
the issuance of ANI Common Stock in the Merger by ANI's stockholders as
contemplated in Section 5.2 and compliance with the requirements set forth
in Section 3.3(c), conflict with or violate any Legal Requirement applicable
to ANI or any of its Subsidiaries or by which ANI or any of its
18
Subsidiaries or any of their respective properties is bound or affected or
(iii) result in any material breach of or constitute a material default (or
an event that with notice or lapse of time or both would become a material
default) under, or impair ANI's rights or alter the rights or obligations of
any third party under, or give to others any rights of termination,
amendment, acceleration or cancellation of, or result in the creation of a
material Lien on any of the material properties or assets of ANI or any of
its Subsidiaries pursuant to, any ANI Material Contract (as defined in
Section 3.11), except as set forth in Schedule 3.3(b) of the ANI Schedules.
(c) Consents. No consent, approval, order or authorization of, or
registration, declaration or filing with any Governmental Entity or any
other Person is required to be obtained or made by ANI in connection with
the execution and delivery of this Agreement or the consummation of the
Merger and the other transactions contemplated hereby, except for the
Regulatory Consents.
3.4 ANI SEC Filings; ANI Financial Statements; Undisclosed Liabilities.
(a) ANI SEC Filings. ANI has filed all required registration statements,
prospectuses, reports, schedules, forms, statements and other documents
(including exhibits and all other information incorporated by reference)
required to be filed by it with the SEC since March 1, 2000. ANI has made
available to Occam (including via XXXXX) all such registration statements,
prospectuses, reports, schedules, forms, statements and other documents in
the form filed with the SEC. All such required registration statements,
prospectuses, reports, schedules, forms, statements and other documents, as
amended, are referred to herein as the "ANI SEC Reports." As of their
respective dates, the ANI SEC Reports (i) were prepared in accordance and
complied in all material respects with the requirements of the Securities
Act, or the Securities and Exchange Act of 1934, as amended (the "Exchange
Act"), as the case may be, and the rules and regulations of the SEC
thereunder applicable to such ANI SEC Reports and (ii) did not at the time
they were filed contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary in order to
make the statements therein, in the light of the circumstances under which
they were made, not misleading, except to the extent corrected prior to the
date hereof by a subsequently filed ANI SEC Report. None of ANI's
Subsidiaries is required to file any forms, reports or other documents with
the SEC.
(b) ANI Financial Statements. Each of the consolidated financial
statements (including, in each case, any related notes thereto) contained in
the ANI SEC Reports (the "ANI Financials"), (i) complied as to form in all
material respects with the published rules and regulations of the SEC with
respect thereto, (ii) was prepared in accordance with GAAP applied on a
consistent basis throughout the periods involved (except as may be indicated
in the notes thereto or, in the case of unaudited interim financial
statements, as may be permitted by the SEC on Form 10-Q, 8-K or any
successor form under the Exchange Act and except that unaudited financial
statements may not contain footnotes and are subject to normal and recurring
year-end audit adjustments which will not, individually or in the aggregate,
be material in amount) and (iii) fairly presented in all material respects
the consolidated financial position of ANI and its consolidated Subsidiaries
as at the respective dates thereof and the consolidated results of ANI's
operations and cash flows for the periods indicated (subject in the case of
any unaudited financial statements to normal and recurring year-end
adjustments). The balance sheet of ANI contained in the ANI SEC Reports as
of June 30, 2001 is hereinafter referred to as the "ANI Balance Sheet."
(c) Except as disclosed in the ANI Financials, neither ANI nor any of its
Subsidiaries has any liabilities required under GAAP to be set forth on a
consolidated balance sheet (absolute, accrued, contingent or otherwise)
which, individually or in the aggregate, would be reasonably expected to
have a Material Adverse Effect on ANI, except for liabilities incurred since
the date of the ANI Balance Sheet in the ordinary course of business
consistent with past practices and liabilities incurred pursuant to this
Agreement.
3.5 Absence of Certain Changes or Events. Since the date of the ANI Balance
Sheet there has not been: (i) any Material Adverse Effect on ANI; (ii) any
declaration, setting aside or payment of any dividend on, or other distribution
(whether in cash, stock or property) in respect of, any of ANI's or any of its
Subsidiaries'
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capital stock, or any purchase, redemption or other acquisition by ANI or any
of its Subsidiaries of any of ANI's capital stock or any other securities of
ANI or its Subsidiaries or any options, warrants, calls or rights to acquire
any such shares or other securities except for repurchases from employees
following their termination pursuant to the terms of their pre-existing stock
option or purchase agreements; or (iii) any split, combination or
reclassification of any of ANI's or any of its Subsidiaries' capital stock.
3.6 Taxes. Except where failure of any of the following representations to
be true would not have or evidence a Material Adverse Effect on ANI:
(a) All Tax Returns required to be filed by or on behalf of ANI or any
Subsidiary (collectively the "ANI Group" and individually a "Member") with
any Governmental Entity with respect to any taxable period ending on or
before the Closing Date (the "ANI Group Returns") (i) have been or will be
filed on or before the applicable due date (including any extensions of such
due date), and (ii) have been, or will be when filed, accurately and
completely prepared in compliance with all applicable Legal Requirements.
Except as reserved on ANI Financials, all amounts required to be paid in
respect of the ANI Group or any Member (whether or not shown on any Tax
Returns) on or before the Closing Date have been or will be paid on or
before the Closing Date. ANI has delivered or made available to Occam
accurate and complete copies of all ANI Group Returns filed by or on behalf
of ANI or any Member since its date of incorporation.
(b) The ANI Financials fully accrue all actual and contingent liabilities
for Taxes of the ANI Group with respect to all periods through the dates
thereof in accordance with GAAP. All Taxes incurred since the date of the
ANI Balance Sheet have been incurred in the ordinary course of business.
(c) No ANI Group Return has ever been examined or audited by any
Governmental Body. No extension or waiver of the limitation period
applicable to any ANI Group Returns has been granted (by ANI or any other
Person), and no such extension or waiver has been requested from ANI.
(d) No claim or Proceeding is pending or has been threatened against or
with respect to any Member or the ANI Group in respect of any Tax. There are
no unsatisfied liabilities for Taxes (including liabilities for interest,
additions to tax and penalties thereon and related expenses) with respect to
any notice of deficiency or similar document received by any Member or the
ANI Group with respect to any Tax (other than liabilities for Taxes asserted
under any such notice of deficiency or similar document that are being
contested in good faith by ANI and with respect to which adequate reserves
for payment have been established). There are no liens for Taxes upon any of
the assets of any Member except liens for current Taxes not yet due and
payable. Neither the ANI Group nor any Member (x) has entered into or become
bound by any agreement or consent pursuant to Section 341(f) of the Code or
(y) has been, or will be, required to include any adjustment in taxable
income for any tax period (or portion thereof) pursuant to Section 481 or
263A of the Code or any comparable provision under state or foreign Tax laws
as a result of transactions or events occurring, or accounting methods
employed, prior to the Closing.
(e) There is no agreement, plan, arrangement or other Contract covering
any employee or independent contractor or former employee or independent
contractor of any Member that, considered individually or considered
collectively with any other such Contracts, will, or could reasonably be
expected to, give rise directly or indirectly to the payment of any amount
that would not be deductible pursuant to Section 280G of the Code. No Member
is, or has been, a party to or bound by any tax indemnity agreement,
tax-sharing agreement, tax allocation agreement or similar Contract.
(f) Neither the ANI Group nor any Member has liability for any Tax
pursuant to Treasury Regulations Section 1.1502-6 or any analogous state,
local or foreign law or regulation or by reason of having been a member of
any consolidated, combined or unitary group on or before the Closing Date.
(g) ANI has not constituted either a "distributing corporation" or a
"controlled corporation" in a distribution of stock qualifying under Section
355 of the Code (x) in the two years prior to the date of this Agreement or
(y) in a distribution that could otherwise constitute part of a "plan" or
"series of related transactions" (within the meaning of Section 355(e) of
the Code) in conjunction with the Merger.
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(h) The ANI Group and all Members are in full compliance with all terms
and conditions of any Tax exemptions, Tax holiday or other Tax reduction
agreement or order of a territorial or foreign government, and the
consummation of the Merger will not have any adverse effect on the continued
validity and effectiveness of any such Tax exemptions, Tax holiday or other
Tax reduction agreement or order.
(i) No Member has taken any action or knows of any fact, agreement or
plan or other circumstance that is reasonably likely to prevent the Merger
from qualifying as a reorganization within the meaning of Section 368(a) of
the Code.
3.7 Intellectual Property. To the knowledge of ANI, the products, services
and operations of ANI do not infringe or misappropriate the Intellectual
Property of any third party where such infringement or misappropriation,
individually or in the aggregate, would be reasonably expected to have a
material adverse effect on any material division, business unit or product or
service offering of ANI or otherwise have a Material Adverse Effect on ANI.
3.8 Compliance; Permits.
(a) Compliance. Neither ANI nor any of its Subsidiaries is in material
conflict with, or in material default or in material violation of any Legal
Requirement applicable to ANI or any of its Subsidiaries or by which ANI or
any of its Subsidiaries or any of their respective businesses or properties
is, or ANI believes is reasonably likely to be, bound or affected, except,
in each case, or in the aggregate, for conflicts, violations and defaults
that would not have a Material Adverse Effect on ANI. No material
investigation or review by any Governmental Entity is pending or, to ANI's
knowledge, has been threatened in a writing delivered to ANI or any of its
Subsidiaries, against ANI or any of its Subsidiaries. There is no material
judgment, injunction, order or decree binding upon ANI or any of its
Subsidiaries which has or would reasonably be expected to have the effect of
prohibiting or materially impairing any material business practice of ANI or
any of its Subsidiaries, any acquisition of material property by ANI or any
of its Subsidiaries or the conduct of business by ANI and its Subsidiaries
as currently conducted.
(b) Permits. ANI and its Subsidiaries hold, to the extent legally
required, all Permits that are material to and required for the operation of
the business of ANI, as currently conducted (collectively, the "ANI
Permits"). No suspension or cancellation of any of the ANI Permits is
pending or, to the knowledge of ANI, threatened. ANI and its Subsidiaries
are in compliance in all material respects with the terms of the ANI Permits.
3.9 Litigation. Except as set forth in Schedule 3.9 of the ANI Schedules,
there are no claims, suits, actions or proceedings pending or, to the knowledge
of ANI, threatened against ANI or any of its Subsidiaries, before any court,
governmental department, commission, agency, instrumentality or authority, or
any arbitrator that seeks to restrain or enjoin the consummation of the
transactions contemplated hereby or which would reasonably be expected, either
singularly or in the aggregate with all such claims, actions or proceedings, to
be material to ANI.
3.10 Brokers' and Finders' Fees. Except for fees payable to Alliant Partners
pursuant to an engagement letter dated June 20, 2001, a copy of which has been
provided to Occam, ANI has not incurred, nor will it incur, directly or
indirectly, any liability for brokerage or finders' fees or agents' commissions
or any similar charges in connection with this Agreement or any transaction
contemplated hereby.
3.11 Contracts.
(a) ANI Material Contracts. Except as otherwise set forth in Schedule
3.11 of the ANI Schedules, as of the date hereof neither ANI nor any of its
Subsidiaries is a party to or is bound by any of the following (each, an
"ANI Material Contract"):
(i) any "material contracts" (as such term is defined in Item
601(b)(10) of Regulation S-K of the SEC) with respect to ANI and its
Subsidiaries;
21
(ii) any Contract (other than Contracts evidencing ANI Options) (A)
relating to the acquisition, issuance, voting, registration, sale or
transfer of any securities of ANI, (B) providing any Person with any
preemptive right, right of participation, right of maintenance or any
similar right with respect to any securities of ANI or (C) providing ANI
with any right of first refusal with respect to, or right to purchase or
redeem, any securities;
(iii) any Contract containing any covenant materially limiting the
right of ANI or its Subsidiaries to engage in any line of business or to
compete with any Person or granting any exclusive distribution rights;
(iv) any Contract that provides for indemnification of any officer,
director, employee or agent;
(v) any Contract incorporating or relating to any guaranty, any
warranty or any indemnity or similar obligation; or
(vi) any Contract, or group of Contracts with a Person (or group of
affiliated Persons), the termination of which would be reasonably
expected to have a have a Material Adverse Effect on ANI or the
Surviving Corporation.
(b) No Breach. All ANI Material Contracts are valid and in full force and
effect except to the extent they have previously expired in accordance with
their terms or if the failure to be in full force and effect, individually
or in the aggregate, would not reasonably be expected to have a Material
Adverse Effect on ANI. Neither ANI nor any of its Subsidiaries has violated
any provision of, or committed or failed to perform any act which with or
without notice, lapse of time or both would constitute a default under the
provisions of, any ANI Material Contract, except in each case for those
violations and defaults which, individually or in the aggregate, would not
reasonably be expected to have a Material Adverse Effect on ANI.
3.12 Employee Matters and Benefit Plans.
(a) Definitions. The terms set forth in Section 2.11(a) shall also apply
to this Section 3.12. In addition:
(i) "ANI Employee Plan" shall mean any Employee Plan as it pertains
to ANI and its Affiliates; and
(ii) "ANI Employment Agreement" shall mean any Employment Agreement
as it pertains to ANI and its Affiliates.
(b) Schedule. Schedule 3.12(b) of the ANI Schedules contains an accurate
and complete list of each ANI Employee Plan and each ANI Employment
Agreement. ANI does not have any plan or commitment to establish any new ANI
Employee Plan, International Employee Plan (as its pertains to ANI or its
Affiliates), or ANI Employment Agreement, or to modify any ANI Employee Plan
or ANI Employment Agreement (except to the extent required by law or to
conform any such ANI Employee Plan or ANI Employment Agreement to the
requirements of any applicable law, in each case as previously disclosed to
Occam in writing, or as required by this Agreement).
(c) Documents. ANI has provided or made available to Occam correct and
complete copies of: (i) all documents embodying each ANI Employee Plan and
each ANI Employment Agreement including (without limitation) all amendments
thereto and all related trust documents, administrative service agreements,
group annuity contracts, group insurance contracts, and policies pertaining
to fiduciary liability insurance covering the fiduciaries for each plan;
(ii) the most recent annual actuarial valuations, if any, prepared for each
ANI Employee Plan; (iii) the three (3) most recent annual reports (Form
Series 5500 and all schedules and financial statements attached thereto), if
any, required under ERISA or the Code in connection with each ANI Employee
Plan; (iv) if the ANI Employee Plan is funded, the most recent annual and
periodic accounting of ANI Employee Plan assets; (v) the most recent summary
plan description together with the summary(ies) of material modifications
thereto, if any, required under ERISA with respect to each ANI Employee
Plan; (vi) all IRS determination, opinion, notification and advisory
letters, and all applications and correspondence to or from the IRS or the
DOL with respect to any such application or letter; (vii) all
22
communications material to any Employee or Employees relating to any ANI
Employee Plan and any proposed ANI Employee Plans, in each case, relating to
any amendments, terminations, establishments, increases or decreases in
benefits, acceleration of payments or vesting schedules or other events
which would result in any material liability to the ANI; (viii) all
correspondence to or from any governmental agency relating to any ANI
Employee Plan; (ix) all COBRA forms and related notices (or such forms and
notices as required under comparable law); (x) the three (3) most recent
plan years discrimination tests for each ANI Employee Plan; and (xi) all
registration statements, annual reports (Form 11-K and all attachments
thereto) and prospectuses prepared in connection with each ANI Employee Plan.
(d) Employee Plan Compliance. Except as set forth on Schedule 3.12(d) of
the ANI Schedules: (i) ANI has performed in all material respects all
obligations required to be performed by it under, is not in default or
violation of, and has no knowledge of any default or violation by any other
party to each ANI Employee Plan, and each ANI Employee Plan has been
established and maintained in all material respects in accordance with its
terms and in compliance with all applicable laws, statutes, orders, rules
and regulations, including but not limited to ERISA or the Code; (ii) each
ANI Employee Plan intended to qualify under Section 401(a) of the Code and
each trust intended to qualify under Section 501(a) of the Code has either
received a favorable determination, opinion, notification or advisory letter
from the IRS with respect to each such ANI Employee Plan as to its qualified
status under the Code, including all amendments to the Code effected by the
Tax Reform Act of 1986 and subsequent legislation, or has remaining a period
of time under applicable Treasury regulations or IRS pronouncements in which
to apply for such a letter and make any amendments necessary to obtain a
favorable determination as to the qualified status of each such ANI Employee
Plan; (iii) no "prohibited transaction," within the meaning of Section 4975
of the Code or Sections 406 and 407 of ERISA, and not otherwise exempt under
Section 4975 of the Code or Section 408 of ERISA (or any administrative
class exemption issued thereunder), has occurred with respect to any ANI
Employee Plan; (iv) there are no actions, suits or claims pending, or, to
the knowledge of ANI, threatened or reasonably anticipated (other than
routine claims for benefits) against any ANI Employee Plan or against the
assets of any ANI Employee Plan; (v) each ANI Employee Plan (other than any
stock option plan) can be amended, terminated or otherwise discontinued
after the Effective Time, without material liability to the ANI or any of
its Affiliates (other than ordinary administration expenses); (vi) there are
no audits, inquiries or proceedings pending or, to the knowledge of ANI,
threatened by the IRS or DOL with respect to any ANI Employee Plan; and
(vii) neither ANI nor any Affiliate is subject to any penalty or tax with
respect to any ANI Employee Plan under Section 502(i) of ERISA or Sections
4975 through 4980 of the Code.
(e) Pension Plan. Neither ANI nor any Affiliate has ever maintained,
established, sponsored, participated in, or contributed to, any Pension Plan
which is subject to Title IV of ERISA or Section 412 of the Code.
(f) Collectively Bargained, Multiemployer and Multiple Employer Plans. At
no time has ANI or any Affiliate contributed to or been obligated to
contribute to any Multiemployer Plan. Neither ANI, nor any Affiliate has at
any time ever maintained, established, sponsored, participated in, or
contributed to any multiple employer plan, or to any plan described in
Section 413 of the Code.
(g) No Post-Employment Obligations. Except as set forth in Schedule
3.12(g) of the ANI Schedules, no ANI Employee Plan provides, or reflects or
represents any liability to provide retiree health to any person for any
reason, except as may be required by COBRA or other applicable statute, and
ANI has never represented, promised or contracted (whether in oral or
written form) to any Employee (either individually or to Employees as a
group) or any other person that such Employee(s) or other person would be
provided with retiree health, except to the extent required by statute.
(h) Health Care Compliance. Neither ANI nor any Affiliate has, prior to
the Effective Time and in any material respect, violated any of the health
care continuation requirements of COBRA, the requirements of FMLA, the
requirements of the Health Insurance Portability and Accountability Act of
1996, the requirements of the Women's Health and Cancer Rights Act of 1998,
the requirements of the Newborns'
23
and Mothers' Health Protection Act of 1996, or any amendment to each such
act, or any similar provisions of state law applicable to its Employees.
(i) Effect of Transaction.
(i) Except as set forth on Schedule 3.12(i) of the ANI Schedules, the
execution of this Agreement and the consummation of the transactions
contemplated hereby will not (either alone or upon the occurrence of any
additional or subsequent events) constitute an event under any ANI
Employee Plan, ANI Employment Agreement, trust or loan that will or may
result in any payment (whether of severance pay or otherwise),
acceleration, forgiveness of indebtedness, vesting, distribution,
increase in benefits or obligation to fund benefits with respect to any
Employee.
(ii) Except as set forth on Schedule 3.12(i) of the ANI Schedules, no
payment or benefit which will or may be made by ANI or its Affiliates
with respect to any Employee or any other "disqualified individual" (as
defined in Code Section 280G and the regulations thereunder) will be
characterized as a "parachute payment," within the meaning of Section
280G(b)(2) of the Code.
(j) Employment Matters. ANI: (i) is in compliance in all respects with
all applicable foreign, federal, state and local laws, rules and regulations
respecting employment, employment practices, terms and conditions of
employment and wages and hours, in each case, with respect to Employees;
(ii) has withheld and reported all amounts required by law or by agreement
to be withheld and reported with respect to wages, salaries and other
payments to Employees; (iii) is not liable for any arrears of wages or any
taxes or any penalty for failure to comply with any of the foregoing; and
(iv) is not liable for any payment to any trust or other fund governed by or
maintained by or on behalf of any governmental authority, with respect to
unemployment compensation benefits, social security or other benefits or
obligations for Employees (other than routine payments to be made in the
normal course of business and consistent with past practice). There are no
pending, threatened or reasonably anticipated claims or actions against ANI
under any worker's compensation policy or long-term disability policy.
(k) Labor. No work stoppage or labor strike against ANI is pending,
threatened or reasonably anticipated. ANI does not know of any activities or
proceedings of any labor union to organize any Employees. Except as set
forth in Schedule 3.12(k) of the ANI Schedules, there are no actions, suits,
claims, labor disputes or grievances pending, or, to the knowledge of ANI,
threatened or reasonably anticipated relating to any labor, safety or
discrimination matters involving any Employee, including, without
limitation, charges of unfair labor practices or discrimination complaints,
which, if adversely determined, would, individually or in the aggregate,
result in any material liability to ANI. Neither the ANI nor any of its
subsidiaries has engaged in any unfair labor practices within the meaning of
the National Labor Relations Act. Except as set forth in Schedule 3.12(k) of
the ANI Schedules, ANI is not presently, nor has it been in the past, a
party to, or bound by, any collective bargaining agreement or union contract
with respect to Employees and no collective bargaining agreement is being
negotiated by ANI.
(l) International Employee Plan. ANI does not now, nor has it ever had
the obligation to, maintain, establish, sponsor, participate in, or
contribute to any International Employee Plan.
3.13 Real Property. Neither ANI nor its Subsidiaries owns any real property.
Schedule 3.13 of the ANI Schedules set forth a list of all properties leased or
otherwise occupied by ANI and its Subsidiaries for the operation of its
business, including the address, the name of the landlord, and the current base
rent ("ANI Facilities"). Schedule 3.13 of the ANI Schedules identify all of the
leases or other occupancy agreements with respect to the ANI Facilities ("ANI
Leases") and any amendments or modifications to the ANI Leases. No party other
than ANI has the right to occupy any of the ANI Facilities. The ANI Facilities
are in good condition and repair, reasonable wear and tear excepted. Neither
ANI nor any of its Subsidiaries have any current and unperformed obligations
under the ANI Leases for repair, maintenance or replacement at any ANI
Facilities or for the installation of improvements at any ANI Facilities. Each
ANI Lease is in full force and effect, and no breach or default exists by ANI
or any of its Subsidiaries (or, to the knowledge of ANI, by any other party
thereto), nor to the knowledge of ANI has any event or condition occurred which
could (with the giving of notice or the passage of time or both) constitute a
breach or default, under any ANI Lease.
24
3.14 Insurance. Schedule 3.14 of the ANI Schedules lists all of ANI's
policies and contracts for property and casualty insurance maintained (the "ANI
Insurance Policies"), true and complete copies of which have been delivered or
made available to Occam. The ANI Insurance Policies are in full force and
effect and will not lapse or be subject to suspension, modification,
revocation, cancellation, termination or nonrenewal by reason of the execution,
delivery or performance of this Agreement or of any transaction in connection
with this Agreement and are sufficient for compliance with all requirements of
law applicable to ANI and its Subsidiaries. ANI and its Subsidiaries are
current in all premiums or other payments due under each ANI Insurance Policy
and has otherwise performed in all material respects all of its respective
obligations thereunder. Neither ANI nor any Subsidiary has received, during the
past three years from any insurance carrier with which it has carried any
insurance, any refusal of coverage or notice of material limitation of coverage
or any notice that a defense will be afforded with reservation of rights.
3.15 Disclosure. None of the information supplied or to be supplied by or on
behalf of ANI for inclusion or incorporation by reference in the Registration
Statement will, at the time the Registration Statement becomes effective under
the Securities Act, contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary in order to
make the statements therein, in the light of the circumstances under which they
are made, not misleading. None of the information supplied or to be supplied by
or on behalf of ANI for inclusion or incorporation by reference in the
Prospectus/Proxy Statement, will, at the time the Prospectus/Proxy Statement is
mailed to the stockholders of ANI at the time of the ANI Stockholders' Meeting
or the Occam Shareholders' Meeting or as of the Effective Time, contain any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary in order to make the statements therein, in
the light of the circumstances under which they are made, not misleading. The
Prospectus/Proxy Statement will comply as to form in all material respects with
the provisions of the Exchange Act and the rules and regulations promulgated by
the SEC thereunder. Notwithstanding the foregoing, no representation or
warranty is made by ANI with respect to statements made or incorporated by
reference therein about Occam supplied by Occam for inclusion or incorporation
by reference in the Registration Statement or the Prospectus/Proxy Statement.
3.16 Board Approval. The Board of Directors of ANI has, by resolutions duly
adopted at a meeting of all Directors duly called and held and not subsequently
rescinded or modified in any way, (i) determined that the Merger is fair to,
and in the best interests of, ANI and its stockholders and declared the Merger
to be advisable, (ii) approved this Agreement and (iii) recommended that the
stockholders of ANI approve the Merger and the issuance of ANI Common Stock in
the Merger and directed that such matters be submitted to ANI's stockholders at
the ANI Stockholders' Meeting (as defined in Section 5.2). The Board of
Directors of Merger Sub has, by resolutions duly adopted at a meeting of all
Directors duly called and held and not subsequently rescinded or modified in
any way, (i) determined that the Merger is fair to, and in the best interests
of, Merger Sub and its stockholders and declared the Merger to be advisable,
(ii) approved this Agreement and (iii) recommended that the stockholder of
Merger Sub approve and adopt this Agreement and approve the Merger and directed
that such matter be submitted to Merger Sub's stockholder for approval.
3.17 Related Party Transactions. Except as set forth in Schedule 3.17 of the
ANI Schedules: (a) no ANI Related Party (as defined below) has any direct or
indirect interest in any material asset used in or otherwise relating to the
business of ANI; (b) no ANI Related Party is indebted to ANI; (c) to the
knowledge of ANI, no ANI Related Party has entered into, or has had any direct
or indirect financial interest in, any ANI Material Contract; (d) to the
knowledge of ANI, no ANI Related Party is competing directly or indirectly,
with ANI; and (e) to the knowledge of ANI, no ANI Related Party has any claim
or right against ANI (other than rights under the ANI Options and rights to
receive compensation for services performed as an employee of ANI and rights
associated with being an officer or director or as set forth in the ANI
Material Contracts). For purposes of the foregoing, each of the following shall
be deemed to be an "ANI Related Party": (i) each individual who is, or who has
at any time been, an officer or director of ANI; (ii) each member of the
immediate family of each of the individuals referred to in clause "(i)" above;
and (iii) any trust or other Person (other than ANI) in which any one of the
individuals referred to in clauses "(i)" and "(ii)" above holds (or in which
more than one of such
25
individuals collectively hold), beneficially or otherwise, a material voting,
proprietary or equity interest), but excludes any officers or directors of ANI
who are affiliated with any venture capital or similar investor in ANI and such
affiliates.
3.18 Environmental Matters. Except as set forth in Schedule 3.18 of the ANI
Schedules, neither ANI nor its Subsidiaries has disposed of, released,
discharged or emitted any Hazardous Materials into the soil or groundwater at
any properties owned or leased by any of them.
3.19 Fairness Opinion. ANI's Board of Directors has received a written
opinion from Alliant Partners, dated as of November 7, 2001, to the effect
that, as of such date, the Merger Consideration is fair to the stockholders of
ANI from a financial point of view and has delivered or made available to Occam
a copy of such opinion.
ARTICLE IV
CONDUCT PRIOR TO THE EFFECTIVE TIME
4.1 Conduct of Business by ANI. During the period from the date hereof and
continuing until the earlier of the termination of this Agreement pursuant to
its terms or the Effective Time, ANI will provide to Occam a bi-weekly report
specifying ANI's cash and cash equivalent balances.
In addition, except as permitted by the terms of this Agreement or as
required by the terms of written contracts or written agreements entered into
prior to the date of this Agreement (and disclosed to Occam prior to the date
of this Agreement) to which ANI or any of its Subsidiaries is a party or by
which ANI or any of its Subsidiaries is bound, and except as provided in
Schedule 4.1 of the ANI Schedules, without the prior written consent of Occam,
during the period from the date hereof through the earlier of the termination
of this Agreement pursuant to its terms or the Effective Time, ANI shall not do
any of the following and shall not permit its Subsidiaries to do any of the
following:
(a) Enter into any new line of business material to it and its
Subsidiaries taken as a whole;
(b) Declare, set aside or pay any dividends on or make any other
distributions (whether in cash, stock, equity securities or property) in
respect of any capital stock or split, combine or reclassify any capital
stock or issue or authorize the issuance of any other securities in respect
of, in lieu of or in substitution for any capital stock;
(c) Purchase, redeem or otherwise acquire, directly or indirectly, any
shares of capital stock of it or its Subsidiaries, except repurchases of
unvested shares at cost (but not in excess of the then current fair value of
such shares) in connection with the termination of the employment
relationship with any employee pursuant to stock option or purchase
agreements in effect on the date hereof or entered into the ordinary course
of business consistent with past practice after the date hereof;
(d) Issue, deliver, sell, authorize, pledge or otherwise encumber any
shares of capital stock, or any securities convertible into shares of
capital stock, or subscriptions, rights, warrants or options to acquire any
shares of capital stock or any securities convertible into shares of capital
stock, or enter into other agreements or commitments of any character
obligating it to issue any such securities or rights (other than the
issuance of options to employees in the ordinary course of business under
the ANI Stock Option Plans and the issuance of ANI Common Stock upon the
exercise of outstanding options);
(e) Cause, permit or propose any amendments to the ANI Charter Documents
or any of the ANI Subsidiary Charter Documents of its Subsidiaries, except,
to the extent necessary to comply with its obligations under Section 5.12
(f) Acquire or agree to acquire by merging or consolidating with, or by
purchasing any equity interest in or a portion of the assets of, or by any
other manner, any business or any Person or division thereof, or
26
otherwise acquire or agree to acquire any assets which are material,
individually or in the aggregate, to its business;
(g) Enter into any joint ventures, strategic partnerships or alliances
that are material to any of its divisions or business units;
(h) Except as previously disclosed in the ANI SEC Reports filed with the
SEC prior to the date hereof, sell, lease, license, encumber or otherwise
dispose of any properties or assets which are material, individually or in
the aggregate, to its business, except in the ordinary course of business
consistent with past practice;
(i) Make any loans, advances or capital contributions to, or investments
in, any other Person, other than (i) loans or investments by it or a
Subsidiary of it to or in it or any Subsidiary of it, (ii) employee loans or
advances made in the ordinary course of business or loans in the ordinary
course of business consistent with past practice which are not, individually
or in the aggregate, material to it and its Subsidiaries taken as a whole;
(j) Incur any indebtedness for borrowed money or guarantee any such
indebtedness of another Person, issue or sell any debt securities or
options, warrants, calls or other rights to acquire any debt securities of
it, guarantee any debt securities of another Person, enter into any "keep
well" or other agreement to maintain any financial statement condition of
any other Person (other than any wholly-owned Subsidiary of it) or enter
into any arrangement having the economic effect of any of the foregoing;
(k) Except as required by GAAP or the SEC as concurred in by its
independent auditors, make any material change in its methods or principles
of accounting since the date of the ANI Balance Sheet;
(l) Make or change any material Tax election;
(m) Except (i) as required by Legal Requirements or Contracts currently
binding on ANI or its Subsidiaries or (ii) in the case of clauses (B) or (C)
below only, in the ordinary course of business consistent with past
practice, (A) increase the amount of compensation of, pay any bonus to or
xxxxx xxxxxxxxx or termination pay to any executive officer or director of
ANI or Continuing Employee (as defined in Section 5.16), (B) increase the
amount of compensation of, pay any bonus to or xxxxx xxxxxxxxx or
termination pay to any employee (except those described in clause (A) above)
of ANI or any material Subsidiary, division or business unit of ANI, (C)
make any increase in or commitment to increase any ANI Employee Plan
(including any severance plan), adopt or amend or make any commitment to
adopt or amend any ANI Employee Plan or make any contribution, other than
regularly scheduled contributions, to any ANI Employee Plan, (D) waive any
stock repurchase rights, accelerate, amend or change the period of
exercisability of options or restricted stock, or reprice options granted
under any employee, consultant, director or other stock plans or authorize
cash payments in exchange for any options granted under any of such plans,
(E) enter into any employment, severance, termination or indemnification
agreement or any agreement the benefits of which are (in whole or in part)
contingent or the terms of which are materially altered upon the occurrence
of a transaction involving ANI of the nature contemplated hereby, (F) hire
any new employees or (G) increase in any manner the compensation or fringe
benefits of, or materially modify the employment terms of, its directors,
officers or employees, generally or individually;
(n) Enter into, modify or amend in manner adverse in any material respect
to ANI, or terminate any ANI Material Contract or waive, release or assign
any material rights or claims thereunder, other than the modification,
amendment or termination of any ANI Material Contract in the ordinary course
of business, consistent with past practice;
(o) Settle or offer to settle any pending litigation involving ANI or its
Subsidiaries for an amount that exceeds $100,000 individually or in the
aggregate;
(p) Make any capital expenditures in excess of $50,000 individually or in
the aggregate; or
(q) Agree in writing or otherwise to take any of the actions described in
(a) through (p) above.
27
4.2 Conduct of Business by Occam. During the period from the date hereof
through the earlier of the termination of this Agreement pursuant to its terms
or the Effective Time, Occam shall not, except to the extent ANI shall
otherwise consent in writing, (a) sell, pledge, dispose of, transfer or
encumber, or authorize the sale, pledge disposition, transfer or encumbrance of
any material property or assets of Occam except in the ordinary course of
business or (b) authorize or enter into any agreement to do any of the
foregoing.
In addition, except as permitted by the terms of this Agreement (including
but not limited to all actions necessary to obtain and maintain the First
Financing and the Second Financing), and except as provided in Schedule 4.2 of
the Occam Schedules, without the prior written consent of ANI, during the
period from the date hereof and continuing until the earlier of the termination
of this Agreement pursuant to its terms or the Effective Time, Occam shall not
do any of the following and shall not permit its Subsidiaries to do any of the
following:
(a) Enter into any new line of business material to it taken as a whole;
(b) Declare, set aside or pay any dividends on or make any other
distributions (whether in cash, stock, equity securities or property) in
respect of any capital stock or split, combine or reclassify any capital
stock or issue or authorize the issuance of any other securities in respect
of, in lieu of or in substitution for any capital stock;
(c) Purchase, redeem or otherwise acquire, directly or indirectly, any
shares of its capital stock, except repurchases of unvested shares at cost
(but not in excess of the ten current fair value of such shares) in
connection with the termination of the employment relationship with any
employee pursuant to stock option or purchase agreements in effect on the
date hereof or entered into the ordinary course of business consistent with
past practice after the date hereof;
(d) Cause, permit or propose any amendments to the Occam Charter
Documents;
(e) Acquire or agree to acquire by merging or consolidating with, or by
purchasing any equity interest in or a portion of the assets of, or by any
other manner, any business or any Person or division thereof, or otherwise
acquire or agree to acquire any assets which are material, individually or
in the aggregate, to its business;
(f) Sell, lease, license, encumber or otherwise dispose of any properties
or assets which are material, individually or in the aggregate, to its
business, except in the ordinary course of business consistent with past
practice;
(g) Make any loans, advances or capital contributions to, or investments
in, any other Person, other than employee loans or advances made in the
ordinary course of business or loans in the ordinary course of business
consistent with past practice which are not, individually or in the
aggregate, material to Occam;
(h) Incur any indebtedness for borrowed money or guarantee any such
indebtedness of another Person, issue or sell any debt securities or
options, warrants, calls or other rights to acquire any debt securities of
it, guarantee any debt securities of another Person, enter into any "keep
well" or other agreement to maintain any financial statement condition of
any other Person or enter into any arrangement having the economic effect of
any of the foregoing;
(i) Except as required by GAAP as concurred in by its independent
auditors, make any material change in its methods or principles of
accounting since the date of the Occam Balance Sheet;
(j) Enter into a business combination or other similar transaction with
any Person unless such Person, as successor to Occam, is obligated to
consummate the Merger and otherwise fulfill Occam's contractual obligations
under this Agreement;
(k) Except (i) as required by Legal Requirements or Contracts currently
binding on Occam or (ii) in the ordinary course of business consistent with
past practice, (A) increase the amount of compensation of, pay any
extraordinary bonus to or xxxxx xxxxxxxxx or termination pay to any
executive officer or director of Occam, (B) make any increase in or
commitment to increase any Occam Employee Plan (including any
28
severance plan), adopt or amend or make any commitment to adopt or amend any
Occam Employee Plan or make any contribution, other than regularly scheduled
contributions to any Occam Employee Plan or (C) enter into any severance,
termination or indemnification agreement or any agreement the benefits of
which are (in whole or in part) contingent or the terms of which are
materially altered upon the occurrence of a transaction involving Occam of
the nature contemplated hereby.
(l) Make or change any material Tax election; or
(m) Agree in writing or otherwise to take any of the actions described in
(a) through (l) above.
ARTICLE V
ADDITIONAL AGREEMENTS
5.1 Prospectus/Proxy Statement; Registration Statement. As promptly as
practicable after the execution of this Agreement, ANI and Occam shall jointly
prepare the Prospectus/Proxy Statement and the Registration Statement in which
the Prospectus/Proxy Statement will be included as a prospectus and cause both
the Prospectus/Proxy Statement and the Registration Statement to be filed with
the SEC. Each of ANI and Occam shall use all reasonable efforts to cause the
Form S-4 Registration Statement and the Prospectus/Proxy Statement to comply
with the rules and regulations promulgated by the SEC. Occam will promptly
provide ANI with any information which may be required in order to effectuate
the preparation and filing of the Prospectus/Proxy Statement and the
Registration Statement pursuant to this Section 5.1. ANI will respond to any
comments from the SEC, will use all reasonable efforts to cause the
Registration Statement to be declared effective under the Securities Act as
promptly as practicable after such filing (with the reasonable assistance of
Occam with respect to all matters relating to Occam) and, subject to Article
VII, to keep the Registration Statement effective as long as is necessary to
consummate the Merger and the transactions contemplated hereby. ANI will notify
Occam promptly upon the receipt of any comments from the SEC or its staff in
connection with the filing of, or amendments or supplements to, the
Registration Statement and/or the Prospectus/Proxy Statement. Whenever any
event occurs which is required to be set forth in an amendment or supplement to
the Prospectus/Proxy Statement, the Registration Statement, ANI or Occam, as
the case may be, will promptly inform the other of such occurrence and
cooperate in filing with the SEC, and/or mailing to stockholders of such
amendment or supplement. ANI shall provide Occam with a reasonable opportunity
to review and comment on any amendment or supplement to the Registration
Statement and Prospect/Proxy Statement prior to filing such with the SEC. ANI
and Occam will cause the Prospectus/Proxy Statement to be mailed to its
respective stockholders and shareholders at the earliest practicable time after
the Registration Statement is declared effective by the SEC.
5.2 Meetings of Stockholders and Shareholders; Board Recommendation.
(a) Approval of Stockholders and Shareholders.
(i) Promptly after the date hereof, ANI will take all action
necessary in accordance with the laws of the State of Delaware
("Delaware Law") and its Certificate of Incorporation and Bylaws to
call, give notice of, hold and convene a meeting of its stockholders to
vote on the approval of the Merger and the issuance of ANI Common Stock
in the Merger (the "ANI Stockholders' Meeting") to be held as promptly
as practicable, and in any event (to the extent permissible under
applicable law) within thirty (30) days after the declaration of
effectiveness of the Registration Statement. ANI will use all reasonable
efforts to solicit from its stockholders proxies in favor of the
approval of the Merger and the issuance of ANI Common Stock in the
Merger and will take all other action necessary or advisable to secure
the vote or consent of its stockholders required by the rules of the
Nasdaq National Market to obtain such approval (the "ANI Stockholders'
Approval"). Notwithstanding anything to the contrary contained in this
Agreement, ANI may adjourn or postpone the ANI Stockholders' Meeting to
the extent necessary to ensure that any necessary supplement or
amendment to the Prospectus/Proxy Statement is provided to its
respective stockholders in advance of a vote on the Merger and this
29
Agreement or, if as of the time for which the ANI Stockholders' Meeting
is originally scheduled (as set forth in the Prospectus/Proxy Statement)
there are insufficient shares of common stock of ANI represented (either
in person or by proxy) to constitute a quorum necessary to conduct the
business of the ANI Stockholders' Meeting. ANI shall ensure that the ANI
Stockholders' Meeting is called, noticed, convened, held and conducted,
and that all proxies solicited by it in connection with the ANI
Stockholders' Meeting are solicited in compliance with Delaware Law
(except as to the nature of the vote required), its Certificate of
Incorporation and Bylaws, the rules of the Nasdaq National Market and
all other applicable Legal Requirements. The obligation of ANI to call,
give notice of, convene and hold the ANI Stockholders' Meeting in
accordance with this Section 5.2(a) shall not be limited to or otherwise
affected by the commencement, disclosure, announcement or submission to
it of any ANI Acquisition Proposal (as defined in Section 5.3(g)) or by
any withdrawal, amendment or modification of the recommendation of its
Board of Directors with respect to the approval of Merger and the
issuance of ANI Common Stock in the Merger.
(ii) Promptly after the date hereof, Occam will take all action
necessary in accordance with California Law and its Articles of
Incorporation and Bylaws to call, give notice of, hold and convene a
meeting of its shareholders to vote on the approval and adoption of this
Agreement and the approval of the Merger (the "Occam Shareholders'
Meeting") to be held as promptly as practicable, and in any event (to
the extent permissible under applicable law) within 30 days after the
declaration of effectiveness of the Registration Statement. Occam will
use all reasonable efforts to solicit from its shareholders proxies in
favor of the approval and adoption of this Agreement and the approval of
the Merger and will take all other action necessary or advisable to
secure the vote or consent of its shareholders (the "Occam Shareholders'
Approval"). Notwithstanding anything to the contrary contained in this
Agreement, Occam may adjourn or postpone the Occam Shareholders' Meeting
to the extent necessary to ensure that any necessary supplement or
amendment to the Prospectus/Proxy Statement is provided to its
respective shareholders in advance of a vote on the approval and
adoption of this Agreement and the approval of the Merger or, if as of
the time for which the Occam Shareholders' Meeting is originally
scheduled (as set forth in the Prospectus/Proxy Statement) there are
insufficient shares of common stock of Occam represented (either in
person or by proxy) to constitute a quorum necessary to conduct the
business of the Occam Shareholders' Meeting. Occam shall ensure that the
Occam Shareholders' Meeting is called, noticed, convened, held and
conducted, and that all proxies solicited by its in connection with the
Occam Shareholders' Meeting are solicited in compliance with California
Law, its Articles of Incorporation and Bylaws and all other applicable
Legal Requirements. The obligation of Occam to call, give notice of,
convene and hold the Occam Shareholders' Meeting in accordance with this
Section 5.2(a)(ii) shall not be limited to or otherwise affected by the
commencement, disclosure, announcement or submission to it of any Occam
Acquisition Proposal (as defined in Section 5.4(d)) or by any
withdrawal, amendment or modification of the recommendation of its Board
of Directors with respect to the adoption of this Agreement and the
approval of the Merger.
(iii) ANI, as the sole shareholder of Merger Sub, shall take all
action necessary to cause the Merger Sub to approve the Merger in
accordance with California Law.
(b) Board Recommendations.
(i) Except to the extent expressly permitted by Section 5.3, (A) the
Board of Directors of ANI shall recommend that ANI's stockholders vote
in favor of the approval of the Merger and the issuance of ANI Common
Stock in the Merger at the ANI Stockholders' Meeting, (B) the
Prospectus/Proxy Statement shall include a statement to the effect that
the Board of Directors of ANI has recommended that ANI's stockholders
vote in favor of the approval of the Merger and the issuance of ANI
Common Stock in the Merger at the ANI Stockholders' Meeting and (C)
neither the Board of Directors of ANI nor any committee thereof shall
withdraw, amend or modify, or propose or resolve to withdraw, amend or
modify in a manner adverse to Occam, the recommendation of the Board of
Directors of ANI that ANI's stockholders vote in favor of the approval
of the Merger and the issuance of ANI Common Stock in the Merger.
30
(ii) (A) The Board of Directors of Occam shall recommend that Occam's
shareholders vote in favor of the approval and adoption of this
Agreement and the approval of the Merger at the Occam Shareholders'
Meeting, (B) the Prospectus/Proxy Statement shall include a statement to
the effect that the Board of Directors of Occam has recommended that
Occam's shareholders vote in favor of the approval and adoption of this
Agreement and the approval of the Merger at the Occam Shareholders'
Meeting and (C) neither the Board of Directors of Occam nor any
committee thereof shall withdraw, amend or modify, or propose or resolve
to withdraw, amend or modify in a manner adverse to ANI, the
recommendation of the Board of Directors of Occam that Occam's
shareholders vote in favor of the approval and adoption of this
Agreement and the approval of the Merger.
5.3 ANI Acquisition Proposals.
(a) No Solicitation. ANI shall not, and shall not authorize or instruct
any of its Subsidiaries, nor any officer, director, investment banker,
attorney or other advisor (each a "Representative") of ANI or its
Subsidiaries to, and shall use reasonable efforts to cause each of the
employees and agents of ANI and its Subsidiaries not to, directly or
indirectly, (i) solicit, initiate or knowingly encourage the making,
submission or announcement of, any ANI Acquisition Proposal (as defined in
Section 5.3(g)), (ii) participate in any discussions or negotiations
regarding, or furnish to any Person any nonpublic information in connection
with or in response to any inquiries or the making of any proposal that
constitutes or would reasonably be expected to lead to, any ANI Acquisition
Proposal, (iii) engage in discussions with any Person with respect to any
ANI Acquisition Proposal, except as to the existence of this Agreement (but
excluding the Occam Schedules and the ANI Schedules) and as set forth in
Section 5.3(c), (iv) approve, endorse or recommend any ANI Acquisition
Proposal (except to the extent specifically permitted pursuant to Section
5.3(d) below) or (v) enter into any letter of intent or definitive agreement
contemplating or otherwise relating to any ANI Acquisition Proposal. ANI,
and its Subsidiaries and Representatives will each immediately cease any and
all existing activities, discussions or negotiations with any third parties
conducted heretofore with respect to any ANI Acquisition Proposal.
(b) Notification of Unsolicited Acquisition Proposals Involving ANI.
(i) As promptly as practicable after receipt of any ANI Acquisition
Proposal or any request for information or inquiry which it believes (or
should reasonably believe) would lead to an ANI Acquisition Proposal,
ANI shall provide Occam with written notice of the material terms and
conditions of such ANI Acquisition Proposal, request or inquiry, and the
identity of the Person or group making any such ANI Acquisition
Proposal, request or inquiry and a copy of all written materials
provided in connection with such ANI Acquisition Proposal, request or
inquiry.
(ii) ANI shall provide Occam with forty-eight (48) hours' prior
notice (or such lesser prior notice as is provided to the members of its
Board of Directors) of any meeting of its Board of Directors at which
its Board of Directors is reasonably expected to consider any ANI
Acquisition Proposal.
(c) Consideration of ANI Acquisition Proposals. Section 5.3(a) shall not
prohibit ANI or any of its Representatives, prior to the receipt of ANI
Stockholders' Approval, from furnishing information regarding ANI and its
Subsidiaries to, or entering into discussions with, any Person in response
to an ANI Acquisition Proposal that is submitted to ANI by such Person in
writing (and not withdrawn) if (1) neither ANI nor any of its Subsidiaries
nor any Representative of ANI or any of its Subsidiaries shall have breached
or taken any action inconsistent with any of the provisions set forth in
Section 5.3(a) in connection with such ANI Acquisition Proposal, (2) the
board of directors of ANI concludes in good faith, after consultation with
its outside legal counsel, that (A) the failure to take such action would be
inconsistent with the proper discharge of its fiduciary duties under
applicable law and (B) such ANI Acquisition Proposal, if consummated in
accordance with its terms, is an ANI Superior Offer (as defined in Section
5.3(g)) or reasonably likely to be an ANI Superior Offer, (3) at least two
business days prior to furnishing any such information to, or entering into
discussions with, such Person, ANI gives Occam written notice of the
identity of such Person and of ANI's intention to furnish information to, or
enter into discussions with, such Person, and ANI receives
31
from such Person an (A) executed confidentiality agreement containing
customary limitations on the use and disclosure of all nonpublic written and
oral information furnished to such Person by or on behalf of ANI and (B) an
executed agreement containing "standstill" provisions that impose a
comparable level of restrictions upon the Person as those imposed on Occam
pursuant to the terms of paragraph (3) of the Exclusivity Letter (as defined
in Section 8.5) and (4) at least two business days prior to furnishing any
such information to such Person, ANI furnishes such nonpublic information to
Occam (to the extent such nonpublic information has not been previously
furnished by ANI to Occam).
(d) Change of Recommendation Upon an ANI Superior Offer. Notwithstanding
anything to the contrary contained in Section 5.3(a), the ANI board of
directors may withdraw or modify in a manner adverse to Occam its
recommendation pursuant to Section 5.2(b)(i) if:
(i) the ANI Board of Directors has in good faith concluded that an
ANI Acquisition Proposal is an ANI Superior Offer;
(ii) such ANI Superior Offer has not been withdrawn;
(iii) the ANI Stockholders' Approval has not occurred;
(iv) ANI has provided to Occam at least five (5) business days' prior
notice of any meeting of ANI's board of directors at which it will
change its recommendation to recommend such ANI Superior Offer;
(vi) ANI's board of directors has determined in good faith, after
consultation with ANI's outside counsel, that, in light of such ANI
Superior Offer, the failure to withdraw or modify the its recommendation
pursuant to Section 5.2(b)(i) would be inconsistent with the proper
discharge of its fiduciary duties under applicable law; and
(vii) ANI has not solicited such offer in contravention of any of the
provisions set forth in Section 5.3(a).
(e) Continuing Obligation to Call, Hold and Convene Stockholders'
Meeting. Nothing contained in this Agreement shall limit the obligation of
ANI to call, hold and convene the ANI Stockholders' Meeting in accordance
with Section 5.2.
(f) Compliance with Tender Offer Rules. Nothing contained in this
Agreement shall prohibit ANI or its Board of Directors from taking and
disclosing to its stockholders a position contemplated by Rules 14d-9 and
14e-2(a) promulgated under the Exchange Act.
(g) Certain Definitions. For purposes of this Agreement, the following
terms shall have the following meanings:
(i) "ANI Acquisition" shall mean any transaction or series of related
transactions involving: (i) any purchase from ANI or acquisition by any
Person or "group" (as defined under Section 13(d) of the Exchange Act
and the rules and regulations thereunder) of more than a twenty percent
(20%) interest in the total outstanding voting securities of ANI or any
tender offer or exchange offer that if consummated would result in any
Person or group beneficially owning twenty percent (20%) or more of the
total outstanding voting securities of ANI or any merger, consolidation,
business combination or similar transaction involving ANI, (ii) any
sale, lease (other than in the ordinary course of business), exchange,
transfer, license (other than in the ordinary course of business),
acquisition or disposition of more than twenty percent (20%) of the
assets of ANI (including its Subsidiaries taken as a whole) or (iii) any
liquidation or dissolution of ANI.
(ii) "ANI Acquisition Proposal" shall mean any offer or proposal,
relating to an ANI Acquisition.
(iii) "ANI Superior Offer" shall mean a bona fide written offer made
by a Person to acquire, directly or indirectly, pursuant to a tender
offer, exchange offer, merger, consolidation or other
32
business combination, a majority of the total outstanding assets or
voting securities of ANI in a transaction that the Board of Directors of
ANI has concluded, after receipt of the advice of outside legal counsel
and financial advisers and taking into account, among other things, all
legal, financial, regulatory and other aspects of the offer and the
Person making the offer as the Board of Directors of ANI reasonably
determines to be relevant, (A) will provide greater value to ANI's
stockholders (in their capacities as stockholders) than the terms of the
Merger and (B) is reasonably capable of being consummated, provided,
however, that any such offer shall not be deemed to be an ANI Superior
Offer if any financing required to consummate the transaction
contemplated by such offer is not committed and is not reasonably
capable of being obtained by such third party.
5.4 Occam Acquisition Proposals
(a) No Solicitation. Occam shall not, and shall not authorize or instruct
any Representative of Occam to, and shall use reasonable efforts to cause
each of the employees and agents of Occam not to, directly or indirectly,
(i) solicit, initiate or knowingly encourage the making, submission or
announcement of, any Occam Acquisition Proposal (as defined in Section
5.4(d), (ii) participate in any discussions or negotiations regarding, or
furnish to any Person any nonpublic information in connection with or in
response to any inquiries or the making of any proposal that constitutes or
would reasonably be expected to lead to, any Occam Acquisition Proposal,
(iii) engage in discussions with any Person with respect to any Occam
Acquisition Proposal, except as to the existence of this Agreement (but
excluding the Occam Schedules and the ANI Schedules), (iv) approve, endorse
or recommend any Occam Acquisition Proposal, or (v) enter into any letter of
intent or definitive agreement contemplating or otherwise relating to any
Occam Acquisition Proposal. Occam and its Representatives will each
immediately cease any and all existing activities, discussions or
negotiations with any third parties conducted heretofore with respect to any
Occam Acquisition Proposal.
(b) Notification of Unsolicited Acquisition Proposals Involving Occam.
(i) As promptly as practicable after receipt of any Occam Acquisition
Proposal or any request for information or inquiry which it believes (or
should reasonably believe) would lead to an Occam Acquisition Proposal,
Occam shall provide ANI with written notice of the material terms and
conditions of such Occam Acquisition Proposal, request or inquiry, and
the identity of the Person or group making any such Occam Acquisition
Proposal, request or inquiry and a copy of all written materials
provided in connection with such Occam Acquisition Proposal, request or
inquiry.
(ii) Occam shall provide ANI with forty-eight (48) hours' prior
notice (or such lesser prior notice as is provided to the members of its
Board of Directors) of any meeting of its Board of Directors at which
its Board of Directors is reasonably expected to consider any Occam
Acquisition Proposal.
(c) Continuing Obligation to Call, Hold and Convene Occam Shareholders'
Meeting. Nothing contained in this Agreement shall limit the obligation of
Occam to call, hold and convene the Occam Shareholders' Meeting in
accordance with Section 5.2.
(d) Certain Definitions. For purposes of this Agreement, the following
terms shall have the following meanings:
(i) "Occam Acquisition" shall mean any transaction or series of
related transactions involving: (i) any purchase from Occam or
acquisition by any Person or "group" (as defined under Section 13(d) of
the Exchange Act and the rules and regulations thereunder) of more than
a twenty percent (20%) interest in the total outstanding voting
securities of Occam or any tender offer or exchange offer that if
consummated would result in any Person or group beneficially owning
twenty percent (20%) or more of the total outstanding voting securities
of Occam or any merger, consolidation, business combination or similar
transaction involving Occam, (ii) any sale, lease (other than in the
ordinary course of business), exchange, transfer, license (other than in
the ordinary course of business), acquisition or disposition of more
than twenty percent (20%) of the assets of Occam or (iii) any
liquidation or
33
dissolution of Occam, provided, however, that for purposes of this
Agreement, Occam Acquisition shall not include any business combination
or other similar transaction with a Person whereby such Person, as
successor to Occam, is obligated to consummate the Merger and otherwise
fulfill Occam's contractual obligations under this Agreement.
(ii) "Occam Acquisition Proposal" shall mean any offer or proposal,
relating to an Occam Acquisition.
5.5 Confidentiality; Access to Information; No Modification of
Representations, Warranties or Covenants.
(a) Confidentiality. The parties acknowledge that Occam and ANI have
previously executed a Confidentiality Agreement dated October 22, 2001 (the
"Confidentiality Agreement"), which Confidentiality Agreement will continue
in full force and effect in accordance with its terms.
(b) Access to Information. Each of Occam and ANI will afford the other
and the other's accountants, counsel and other representatives reasonable
access during normal business hours to its properties, books, records and
personnel during the period prior to the Effective Time to obtain all
information concerning its business, including the status of product
development efforts, properties, results of operations and personnel, as
such other party may reasonably request; provided, however, that any party
may restrict the foregoing access to the extent that any law, treaty, rule
or regulation of any Governmental Entity applicable to such party requires
such party or its Subsidiaries to restrict or prohibit access to any such
properties or information.
(c) No Modification of Representations and Warranties or Covenants. No
information or knowledge obtained in any investigation or notification
pursuant to this Section 5.5, Section 5.7 or Section 5.8 shall affect or be
deemed to modify any representation or warranty contained herein, the
covenants or agreements of the parties hereto or the conditions to the
obligations of the parties hereto under this Agreement.
5.6 Public Disclosure. Neither ANI nor Occam shall, nor shall they permit
any of their respective representatives to, issue any press release or
otherwise publicly disseminate any document or other written material relating
to the Merger or any of the other transactions contemplated by this Agreement
unless (i) both parties shall have approved such press release or written
material (it being understood that neither party shall unreasonably withhold
its approval of any such press release or written material), or (ii) ANI or
Occam, as the case may be, shall have determined after consultation with its
outside legal counsel that the issuance of such press release or the
dissemination of such written material is required by any applicable Legal
Requirement or, with respect to ANI, Nasdaq rule, and such party shall have
consulted with the other party prior to issuing such press release or
disseminating such written material. The parties have agreed to the text of the
joint press release announcing the signing of this Agreement.
5.7 Regulatory Filings; Reasonable Efforts.
(a) Regulatory Filings. Each of ANI and Occam shall coordinate and
cooperate with one another and shall each use all reasonable efforts to
comply with all Legal Requirements, and as promptly as practicable after the
date hereof, each of ANI and Occam shall make all filings required by any
Governmental Entity in connection with the Merger and the transactions
contemplated hereby, including, without limitation, (i) any Regulatory
Consent, (ii) filings under any pre-merger notification forms required by
the merger notification or control laws of any applicable jurisdiction, as
agreed by the parties hereto and (iii) any filings required under the
Securities Act, the Exchange Act, any applicable state or securities or
"blue sky" laws and the securities laws of any foreign country, or any other
Legal Requirement relating to the Merger. Occam and ANI shall respond as
promptly as practicable to any inquiries or requests received from any
Governmental Entity with respect to the Merger or any other transactions
contemplated by this Agreement. Each of ANI and Occam will use commercially
reasonable efforts to cause all documents that it is responsible for filing
with any Governmental Entity under this Section 5.7(a). to comply in all
material respects with all applicable Legal Requirements.
34
(b) Exchange of Information. ANI and Occam each shall promptly supply the
other with any information which may be required in order to effectuate any
filings or applications pursuant to Section 5.7(a). Except where prohibited
by applicable Legal Requirements, and subject to the Confidentiality
Agreement, each of Occam and ANI shall consult with the other prior to
taking a position with respect to any such filing, shall consider in good
faith the views of one another in connection with any analyses, appearances,
presentations, memoranda, briefs, white papers, arguments, opinions and
proposals before making or submitting any of the foregoing to any
Governmental Entity by or on behalf of any party hereto in connection with
any investigations or proceedings in connection with this Agreement or the
transactions contemplated hereby (including under any antitrust or fair
trade Legal Requirement), coordinate with the other in preparing and
exchanging such information and promptly provide the other with copies of
all filings, presentations or submissions (and a summary of any oral
presentations) made by such party with any Governmental Entity in connection
with this Agreement or the transactions contemplated hereby, provided that
with respect to any such filing, presentation or submission, each of ANI and
Occam need not supply the other with copies (or in case of oral
presentations, a summary) to the extent that any law, treaty, rule or
regulation of any Governmental Entity applicable to such party requires such
party or its Subsidiaries to restrict or prohibit access to any such
properties or information.
(c) Notification. Each of ANI and Occam will notify the other promptly
upon the receipt of (i) any comments from any officials of any Governmental
Entity in connection with any filings made pursuant hereto and (ii) any
request by any officials of any Governmental Entity for amendments or
supplements to any filings made pursuant to, or information provided to
comply in all material respects with, any Legal Requirements. Whenever any
event occurs that is required to be set forth in an amendment or supplement
to any filing made pursuant to Section 5.7(a), ANI or Occam, as the case may
be, will promptly inform the other of such occurrence and cooperate in
filing with the applicable Governmental Entity such amendment or supplement.
Each of Occam and ANI shall give the other party prompt notice of the
commencement or known threat of commencement of any Proceeding by or before
any Governmental Entity with respect to the Merger or any of the other
transactions contemplated by this Agreement, keep the other party informed
as to the status of any such Proceeding or threat, and in connection with
any such Proceeding, each of Occam and ANI will permit authorized
Representatives of the other party to be present at each meeting or
conference relating to any such Proceeding and to have access to and be
consulted in connection with any document, opinion or proposal made or
submitted to any Governmental Entity in connection with any such Proceeding.
(d) Reasonable Efforts. Subject to the express provisions of Section 5.2
and Section 5.3 hereof and upon the terms and subject to the conditions set
forth herein, each of the parties agrees to use all reasonable efforts to
take, or cause to be taken, all actions, and to do, or cause to be done, and
to assist and cooperate with the other parties in doing, all things
necessary, proper or advisable to consummate and make effective, in the most
expeditious manner practicable, the Merger and the other transactions
contemplated by this Agreement, including using all reasonable efforts to
accomplish the following: (i) the taking of all reasonable acts necessary to
cause the conditions precedent set forth in Article VI to be satisfied, (ii)
the obtaining of all necessary actions or nonactions, waivers, consents,
approvals, orders and authorizations from Governmental Entities and the
making of all necessary registrations, declarations and filings (including
registrations, declarations and filings with Governmental Entities, if any)
and the taking of all reasonable steps as may be necessary to avoid any
suit, claim, action, investigation or proceeding by any Governmental Entity,
(iii) the obtaining of all Regulatory Consents, (iv) the defending of any
suits, claims, actions, investigations or proceedings, whether judicial or
administrative, challenging this Agreement or the consummation of the
transactions contemplated hereby, including seeking to have any stay or
temporary restraining order entered by any court or other Governmental
Entity vacated or reversed and (v) the execution or delivery of any
additional instruments necessary to consummate the transactions contemplated
by, and to fully carry out the purposes of, this Agreement. In connection
with and without limiting the foregoing, Occam and its Board of Directors
shall, if any takeover statute or similar Legal Requirement is or becomes
applicable to the Merger, this Agreement or any of the transactions
contemplated by this Agreement, use all reasonable efforts to ensure that
the Merger and the other transactions contemplated by
35
this Agreement may be consummated as promptly as practicable on the terms
contemplated by this Agreement and otherwise to minimize the effect of such
Legal Requirement on the Merger, this Agreement and the transactions
contemplated hereby.
(e) Limitation on Divestiture and Contestation. Notwithstanding anything
in this Agreement to the contrary, nothing contained in this Agreement shall
be deemed to require ANI or Occam or any Subsidiary or affiliate thereof to
(i) agree to any divestiture by itself or any of its affiliates (including
for this purpose only Occam and ANI as affiliates of each other) of shares
of capital stock or of any business, assets or property, or the imposition
of any material limitation on the ability of any of them to conduct their
businesses or to own or exercise control of such assets, properties and
stock (including after the Merger) or (ii) contest any Proceeding relating
to the Merger if Occam and ANI mutually agree that contesting such
Proceeding is not advisable. ANI shall not take or agree to take any action
identified in the immediately preceding sentence without the prior written
consent of Occam and Occam shall not take or agree to take any action
identified in the immediately preceding sentence without the prior written
consent of ANI.
5.8 Notification of Certain Matters.
(a) By Occam. Occam shall give prompt notice to ANI after Occam obtains
actual knowledge of any representation or warranty made by it contained in
this Agreement becoming inaccurate, or any failure of Occam to comply with
or satisfy in any material respect any covenant or agreement to be complied
with or satisfied by it under this Agreement, in each case, to the extent
that such inaccuracy or failure would result in the conditions set forth in
Section 6.3(a) or 6.3(b) not being satisfied.
(b) By ANI. ANI shall give prompt notice to Occam after ANI obtains
actual knowledge of any representation or warranty made by it contained in
this Agreement becoming inaccurate, or any failure of ANI to comply with or
satisfy in any material respect any covenant, or agreement to be complied
with or satisfied by it under this Agreement, in each case, to the extent
that such inaccuracy or failure would result in the conditions set forth in
Section 6.2(a) or 6.2(b) not being satisfied.
5.9 Third-Party Consents. ANI will use all reasonable efforts to obtain any
third-party consents set forth in Schedule 6.2 of the ANI Schedules and Occam
will use all reasonable efforts to obtain any third-party consents set forth in
Schedule 6.3 of the Occam Schedules prior to the Effective Time.
5.10 Stock Options and Warrants.
(a) Assumption of Stock Options. At the Effective Time, each outstanding
Occam Option that is then outstanding, whether or not exercisable at the
Effective Time and regardless of the respective exercise prices thereof,
will be assumed by ANI. Each Occam Option so assumed by ANI under this
Agreement will continue to have, and be subject to, the same terms and
conditions set forth in the Occam Stock Option Plan (and any applicable
stock option agreement for such Occam Option) immediately prior to the
Effective Time (including any repurchase rights or vesting provisions),
except that (i) each Occam Option will be exercisable (or will become
exercisable in accordance with its terms) for that number of whole shares of
ANI Common Stock equal to the product of the number of shares of Occam
Common Stock that were issuable upon exercise of such Occam Option
immediately prior to the Effective Time multiplied by the Exchange Ratio,
rounded down to the nearest whole number of shares of ANI Common Stock and
(ii) the per share exercise price for the shares of ANI Common Stock
issuable upon exercise of such assumed Occam Option will be equal to the
quotient determined by dividing the exercise price per share of Occam Common
Stock at which such Occam Option was exercisable immediately prior to the
Effective Time by the Exchange Ratio, rounded up to the nearest whole cent.
As soon as reasonably practicable, ANI will issue
to each person who holds an assumed Occam Option a document evidencing the
foregoing assumption of such Occam Option by ANI.
(b) To the extent any Occam Option qualified as an incentive stock option
pursuant to Section 422 of the Code immediately prior to the Effective Time,
such Occam Option shall be assumed in a manner so as to maintain its status
as an incentive stock option.
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(i) Warrants. At the Effective Time, (A) the number of shares of ANI
Common Stock subject to each Occam Preferred Warrant shall be equal to
the product of (1) the number of shares of Occam Common Stock that are
issuable upon conversion of the shares of Occam Preferred Stock that
were subject to such Occam Preferred Warrant immediately prior to the
Effective Time, and (2) the Exchange Ratio, rounding to the nearest
whole share, and (B) the per share exercise price for the ANI Common
Stock issuable upon exercise of each such assumed Occam Preferred
Warrant shall be determined by dividing the exercise price per share of
the Occam Common Stock issuable upon conversion of the shares of Occam
Preferred Stock that were subject to such Occam Preferred Warrant, as in
effect immediately prior to the Effective Time, by the Exchange Ratio,
and rounding the resulting exercise price to the nearest whole cent.
(c) Prior to the Effective Time, Occam shall take all action that may be
necessary (under the plans and agreements pursuant to which Occam Options
and Occam Preferred Warrants are outstanding and otherwise) to effectuate
the provisions of this Section 5.10 and to ensure that, from and after the
Effective Time, former holders of Occam Options and Occam Preferred Warrants
have no rights with respect thereto other than those specifically provided
in this Section 5.10.
5.11 Indemnification of Officers and Directors. All rights to
indemnification existing in favor of those Persons who are officers and
directors of ANI as of the date of this Agreement (the "ANI Indemnified
Persons") for their acts and omissions occurring prior to the Effective Time,
as provided in ANI's Bylaws (as in effect as of the date of this Agreement) and
as provided in the indemnification agreements between ANI and said ANI
Indemnified Persons (as in effect as of the date of this Agreement) shall
survive the Merger and shall be observed by ANI to the fullest extent permitted
by Delaware law until not earlier than the sixth anniversary of the Effective
Time.
(a) From the Effective Time until the sixth anniversary of the Effective
Time, ANI shall maintain in effect, for the benefit of the ANI Indemnified
Persons with respect to their acts and omissions occurring prior to the
Effective Time, the existing policy of directors' and officers' liability
insurance maintained by ANI as of the date of this Agreement (the "Existing
Policy"); provided, however, that (i) ANI may substitute for the Existing
Policy a policy or policies of comparable coverage, and (ii) ANI shall not
be required to pay annual premiums for the Existing Policy (or for any
substitute policies) in excess of 150% of the current annual premium for the
Existing Policy. In the event any future annual premiums for the Existing
Policy (or any substitute policies) exceeds 150% of the current annual
premium for the Existing Policy, the Surviving Corporation shall be entitled
to reduce the amount of coverage of the Existing Policy (or any substitute
policies) to the amount of coverage that can be obtained for a premium equal
to 150% of the current annual premium for the Existing Policy.
(b) The provisions of this Section 5.11 are intended to be in addition to
the rights otherwise available to the ANI Indemnified Persons by law,
charter, statute, bylaw or agreement, and shall operate for the benefit of,
and shall be enforceable by, each of the ANI Indemnified Persons, and their
respective heirs and representatives.
5.12 Directors and Officers of ANI After the Effective Time; Change of Name.
(a) ANI shall use commercially reasonable efforts to obtain from those
officers and directors, who are not designated as a director or officer of
ANI after the Effective Time, a voluntary resignation from such position(s)
effective immediately after the Effective Time, provided that prior to the
Effective Time, ANI shall designate one individual to remain as a member of
the board of directors of ANI after the Effective Time (the "ANI Designee").
The ANI Designee (a) shall be entitled to serve on the board of directors of
ANI until at least the first anniversary of the Effective Time and (b) shall
appoint, pursuant to the Bylaws of ANI, those individuals designated by
Occam as directors of ANI after the Effective Time.
(b) ANI shall include in the Prospectus/Proxy Statement a resolution that
the stockholders of ANI approve an amendment to the Certificate of
Incorporation amending the name of ANI to such other name as
37
Occam may designate effective as of the Effective Time and a statement from
the Board of Directors of ANI recommending such amendment and name change,
provided that such designation is made prior to the mailing of the
Prospectus/Proxy Statement to the stockholders of ANI.
5.13 Nasdaq Listing. Prior to the Effective Time, ANI agrees to use all
reasonable efforts to authorize for listing on the Nasdaq National Market the
shares of ANI Common Stock issuable, and those required to be reserved for
issuance, in connection with the Merger, subject to official notice of issuance.
5.14 Tax Matters. At or prior to the filing of the Form S-4 Registration
Statement, Occam and ANI shall execute and deliver to Xxxxxx Godward LLP
("Xxxxxx") and to Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx Professional Corporation
("Xxxxxx Xxxxxxx") tax representation letters in customary form. ANI, Merger
Sub and Occam shall each confirm to Cooley and to Xxxxxx Xxxxxxx the accuracy
and completeness as of the Effective Time of the tax representation letters
delivered pursuant to the immediately preceding sentence. Following delivery of
the tax representation letters pursuant to the first sentence of this Section
5.14, each of ANI and Occam shall use its reasonable efforts to cause Cooley
and Xxxxxx Xxxxxxx, respectively, to deliver to it a tax opinion satisfying the
requirements of Item 601 of Regulation S-K promulgated under the Securities
Act. In rendering such opinions, each of such counsel shall be entitled to rely
on the tax representation letters referred to in this Section 5.14.
5.15 Conversion of Occam Preferred Stock. Occam shall effect a conversion of
all outstanding Occam Preferred Stock into Occam Common Stock immediately prior
to the Effective Time.
5.16 Employment of Continuing Employees. Prior to the date hereof, Occam has
delivered to ANI the names of those employees of ANI who would potentially be
retained by ANI after the Effective Time (each a "Continuing Employee"). Occam
shall negotiate in good faith with the Continuing Employees the terms of their
employment with ANI following the Effective Time and the terms offered by Occam
to a Continuing Employee shall provide for "at-will employment" and shall
include title, base salary and benefits that are commensurate with those
currently provided by Occam to its employees who are similarly situated to such
Continuing Employee. Such list of Continuing Employees shall not be increased
or decreased without the mutual consent of Occam and ANI. This provision shall
not be construed as a guarantee of employment to a specific employee of ANI for
any specific time period after the Effective Time.
ARTICLE VI
CONDITIONS TO THE MERGER
6.1 Conditions to Obligations of Each Party to Effect the Merger. The
respective obligations of each party to this Agreement to effect the Merger
shall be subject to the satisfaction at or prior to the Closing Date of the
following conditions:
(a) Stockholder and Shareholder Approval. The ANI Stockholders' Approval
and the Occam Shareholders' Approval shall have been obtained.
(b) No Order. No Governmental Entity shall have enacted, issued,
promulgated, enforced or entered any statute, rule, regulation, executive
order, decree, injunction or other order (whether temporary, preliminary or
permanent) which is in effect and which has the effect of making the Merger
illegal or otherwise prohibiting consummation of the Merger.
(c) Registration Statement Effective; Prospectus/Proxy Statement. The SEC
shall have declared the Registration Statement effective. No stop order
suspending the effectiveness of the Registration Statement or any part
thereof shall have been issued and be outstanding, and no proceeding for
that purpose, and no similar proceeding in respect of the Prospectus/Proxy
Statement, shall have been initiated or threatened in writing by the SEC and
be outstanding.
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(d) Governmental Litigation. There shall not be pending or threatened any
Proceeding in which a Governmental Entity is or is threatened to become a
party or is otherwise involved: (a) challenging or seeking to restrain or
prohibit the consummation of the Merger; or (b) relating to the Merger and
seeking to obtain from ANI or any of its Subsidiaries or Occam any damages
or other relief that would be material to the ANI and its Subsidiaries,
taken as a whole, or Occam; or (c) that could materially and adversely
affect the right of ANI to directly or indirectly own the assets or operate
the business of Occam.
6.2 Additional Conditions to Obligations of Occam. The obligation of Occam
to consummate and effect the Merger shall be subject to the satisfaction at or
prior to the Closing Date of each of the following conditions, any of which may
be waived, in writing, exclusively by Occam:
(a) Representations and Warranties. The representations and warranties of
ANI set forth in Article III shall have been accurate on the date hereof and
shall be accurate at and as of the Effective Time as if made as of the
Effective Time, except (i) for those representations and warranties that
address matters only as of a particular date (which shall be accurate as of
such date) and (ii) where the failure of the representations and warranties
to be accurate would not reasonably be expected to have a Material Adverse
Effect on ANI and the Surviving Corporation, taken as a whole (it being
agreed that for purposes of this clause (ii), all Material Adverse Effect
and materiality terms in the representations and warranties in Article III
shall be inapplicable).
(b) Agreements and Covenants. ANI shall have performed or complied in all
material respects with all agreements and covenants required by this
Agreement to be performed or complied with by it on or prior to the Closing
Date.
(c) Certificate from ANI Officer. Occam shall have received a certificate
executed on behalf of ANI by an authorized executive officer of ANI
confirming that the conditions set forth in Sections 6.1(a) (solely as to
the ANI Stockholders' Approval), 6.2(a), 6.2(b) and 6.2(d) have been duly
satisfied.
(d) Third Party Consents. Each of the third party consents identified in
Schedule 6.2 of the ANI Schedules, if any, shall have been obtained and
shall be in full force and effect.
(e) Tax Opinion. Occam shall have received a written opinion from its tax
counsel, Xxxxxx Xxxxxxx, in form and substance reasonably satisfactory to it
to the effect that the Merger will constitute a tax-free reorganization
within the meaning of Section 368(a) of the Code and such opinion shall not
have been withdrawn; provided, however, that if Xxxxxx Xxxxxxx does not
render such opinion, this condition shall nonetheless be satisfied if Cooley
renders such opinion to Occam.
6.3 Additional Conditions to the Obligations of ANI. The obligations of ANI
and Merger Sub to consummate and effect the Merger shall be subject to the
satisfaction at or prior to the Closing Date of each of the following
conditions, any of which may be waived, in writing, exclusively by ANI:
(a) Representations and Warranties. The representations and warranties of
Occam set forth in Article II shall have been accurate on the date hereof
and shall be accurate at and as of the Effective Time as if made as of the
Effective Time, except (i) for those representations and warranties that
address matters only as of a particular date (which shall be accurate as of
such date) and (ii) where the failure of the representations and warranties
to be accurate would not reasonably be expected to have a Material Adverse
Effect on ANI and the Surviving Corporation, taken as a whole (it being
agreed that for purposes of this clause (ii), all Material Adverse Effect
and materiality terms in the representations and warranties in Article II
shall be inapplicable).
(b) Agreements and Covenants. Occam shall have performed or complied in
all material respects with all agreements and covenants required by this
Agreement to be performed or complied with by it at or prior to the Closing
Date.
(c) Certificate from Occam Officer. ANI shall have received a certificate
executed on behalf of Occam by an authorized executive officer of Occam
confirming that the conditions set forth in Sections
39
6.1(a) (solely as to the Occam Shareholders' Approval), 6.3(a), 6.3(b),
6.3(d), 6.3(e) and 6.3(f) have been duly satisfied.
(d) Occam Financings. The agreements evidencing the First Financing and
the Second Financing shall be in full force and effect in accordance with
the terms of the documentation with respect thereto delivered to ANI prior
to the date hereof and shall not have been amended in any respect without
the prior written consent of ANI, and Occam shall have received not less
than $10,000,000 of net cash proceeds pursuant to the First Financing.
(e) Conversion of Preferred. All shares of Occam Preferred Stock shall
have converted into Occam Common stock prior to the Effective Time.
(f) Third Party Consents. Each of the consents identified in Schedule 6.3
of the Occam Schedules, if any, shall have been obtained and shall be in
full force and effect.
(g) Lock-ups. Each of the shareholders of Occam as of the date hereof
shall have executed and delivered the lock-up agreement in the form of
Exhibit B-2 attached hereto.
(h) Tax Opinion. Unless Occam has waived the condition set forth in
Section 6.2(e), ANI shall have received a written opinion from its tax
counsel, Cooley, in form and substance reasonably satisfactory to it to the
effect that the Merger will constitute a tax-free reorganization within the
meaning of Section 368(a) of the Code and such opinion shall not have been
withdrawn; provided, however, that if Cooley does not render such opinion,
this condition shall nonetheless be satisfied if Xxxxxx Xxxxxxx renders such
opinion to ANI.
ARTICLE VII
TERMINATION, AMENDMENT AND WAIVER
7.1 Termination. This Agreement may be terminated at any time prior to the
Effective Time, by action taken or authorized by the Board of Directors of the
terminating party or parties, and except as provided below, whether before or
after the requisite approvals of the stockholders of Occam or ANI:
(a) by mutual written consent duly authorized by the Boards of Directors
of ANI and Occam;
(b) by either Occam or ANI if the Merger shall not have been consummated
by April 30, 2002; provided, however, that the right to terminate this
Agreement under this Section 7.1(b) shall not be available to any party
whose failure to perform any covenant in this Agreement required to be
performed by such party at or prior to the Effective Time has been a
principal cause of or resulted in the failure of the Merger to occur on or
before such date;
(c) by either Occam or ANI if a Governmental Entity shall have issued an
order, decree or ruling or taken any other action (including the failure to
have taken an action), in any case having the effect of permanently
restraining, enjoining or otherwise prohibiting the Merger, which order,
decree, ruling or other action is final and nonappealable;
(d) by either Occam or ANI if after the ANI Stockholders' Meeting the ANI
Stockholders' Approval shall not have been obtained by reason of the failure
to obtain the required vote at such meeting or at any adjournment thereof;
provided, however, that the right to terminate this Agreement under this
Section 7.1(d) shall not be available to either party where the failure to
obtain the ANI Stockholders' Approval shall have been caused by the failure
on the part of such party to perform any covenant in this Agreement required
to be performed by such party prior to the Effective Time;
(e) by either Occam or ANI if after the Occam Shareholders' Meeting the
Occam Shareholders' Approval shall not have been obtained by reason of the
failure to obtain the required vote at such meeting or at any adjournment
thereof; provided, however, that the right to terminate this Agreement under
this Section 7.1(e) shall not be available to either party where the failure
to obtain the Occam Shareholders' Approval
40
shall have been caused by the failure on the part of such party to perform
any covenant in this Agreement required to be performed by such party prior
to the Effective Time;
(f) by Occam if an ANI Triggering Event (as defined below) has occurred;
(g) by ANI if an Occam Triggering Event (as defined below) has occurred;
(h) by Occam if (i) any of ANI's representations and warranties contained
in this Agreement shall be or become inaccurate, such that the condition set
forth in Section 6.2(a) would not be satisfied (it being understood that,
for purposes of determining the accuracy of such representations and
warranties as of any date subsequent to the date of this Agreement, (A) all
"Material Adverse Effect" qualifications and other materiality
qualifications, and any similar qualifications, contained in such
representations and warranties shall be disregarded and (B) any update of or
modification to the ANI Schedules made or purported to have been made after
the date of this Agreement shall be disregarded), or (ii) if any of ANI's
covenants contained in this Agreement shall have been breached such that the
condition set forth in Section 6.2(b) would not be satisfied; provided,
however, that if an inaccuracy in any of ANI's representations and
warranties or a breach of a covenant by ANI is cured by ANI within thirty
(30) days following delivery by Occam to ANI of written notice of such
breach (provided such inaccuracy or breach is curable in such time period
and prior to the expiration date specified in Section 7.1(b)), then Occam
may not terminate this Agreement under this Section 7.1(h) on account of
such inaccuracy or breach; and
(i) by ANI if (i) any or become inaccurate, such that the condition set
forth in Section 6.3(a) would not be satisfied (it being understood that,
for purposes of determining the accuracy of such representations and
warranties as of any date subsequent to the date of this Agreement, (A) all
"Material Adverse Effect" qualifications and other materiality
qualifications, and any similar qualifications, contained in such
representations and warranties shall be disregarded and (B) any update of or
modification to the Occam Schedules made or purported to have been made
after the date of this Agreement shall be disregarded), or (ii) if any of
Occam's covenants contained in this Agreement shall have been breached such
that the condition set forth in Section 6.3(b) would not be satisfied;
provided, however, that if an inaccuracy in any of Occam's representations
and warranties or a breach of a covenant by Occam is cured within thirty
(30) days following delivery by ANI to Occam of written notice of such
breach (provided such inaccuracy or breach is curable within such time
period and prior to the expiration date specified in Section 7.1(b)), then
ANI may not terminate this Agreement under this Section 7.1(i) on account of
such inaccuracy or breach.
For the purposes of this Agreement, an "ANI Triggering Event," shall be
deemed to have occurred if (i) ANI's Board of Directors or any committee
thereof shall for any reason have withdrawn or shall have amended or modified,
in a manner adverse to Occam, its recommendation in favor of the approval of
the Merger and the issuance of ANI Common Stock in the Merger, (ii) ANI shall
have failed to include in the Prospectus/Proxy Statement the recommendation of
its Board of Directors in favor the approval of the Merger and the issuance of
ANI Common Stock in the Merger, (iii) an ANI Acquisition Proposal is publicly
announced and ANI fails to issue a press release announcing its opposition to
such ANI Acquisition Proposal within ten (10) business days after such
announcement, (iv) ANI's Board of Directors or any committee thereof shall have
approved or recommended any ANI Acquisition Proposal or (v) a tender or
exchange offer relating to ANI's securities shall have been commenced by a
Person unaffiliated with the other party hereto and ANI shall not have sent to
its securityholders pursuant to Rule 14e-2 promulgated under the Securities
Act, within ten (10) business days after such tender or exchange offer is first
published, sent or given, a statement disclosing that the Board of Directors of
ANI recommends rejection of such tender or exchange offer.
For the purposes of this Agreement, an "Occam Triggering Event," shall be
deemed to have occurred if (i) Occam's Board of Directors or any committee
thereof shall for any reason have withdrawn or shall have amended or modified,
in a manner adverse to ANI, its recommendation in favor of, the adoption and
approval of this Agreement or the approval of the Merger, (ii) Occam shall have
failed to include in the Prospectus/Proxy Statement the recommendation of its
Board of Directors in favor of the adoption and approval of this Agreement and
the approval of the Merger, (iii) an Occam Acquisition Proposal is publicly
announced or delivered to
41
Occam and Occam fails to notify its shareholders of its opposition to such
Occam Acquisition Proposal within ten (10) business days after such
announcement or delivery or (iv) Occam's Board of Directors or any committee
thereof shall have approved or recommended any Occam Acquisition Proposal.
7.2 Notice of Termination; Effect of Termination. Any termination of this
Agreement under Section 7.1 above will be effective immediately upon the
delivery of a valid written notice of the terminating party to the other party
hereto. In the event of the termination of this Agreement as provided in
Section 7.1, this Agreement shall be of no further force or effect, except (i)
as set forth in Section 5.5(a), this Section 7.2, Section 7.3 and Article VIII,
each of which shall survive the termination of this Agreement and (ii) nothing
herein shall relieve any party from liability for any willful or intentional
breach of this Agreement. No termination of this Agreement shall affect the
obligations of the parties contained in the Confidentiality Agreement, all of
which obligations shall survive termination of this Agreement in accordance
with their terms.
7.3 Fees and Expenses.
(a) General. Except as set forth in this Section 7.3, all fees and
expenses incurred in connection with this Agreement and the transactions
contemplated hereby shall be paid by the party incurring such expenses
whether or not the Merger is consummated, provided, however, ANI and Occam
shall share equally all fees and expenses, other than attorneys' fees,
incurred in connection with (A) the filing, printing and mailing of the
Registration Statement and the Prospectus/Proxy Statement and any amendments
or supplements thereto and (B) the filing by the parties hereto of any
notice or other document under any applicable antitrust law or regulation.
(b) Payment by ANI.
(i) In the event this Agreement is terminated by Occam or ANI
pursuant to Section 7.1(d) and there shall not then exist any grounds
for either party to terminate this Agreement pursuant to Section 7.1(e),
ANI shall, contemporaneously with any termination of this Agreement by
ANI and within two (2) business days after any termination of this
Agreement by Occam, pay to Occam the ANI Base Termination Fee (as
defined below) and to the extent ANI enters into a definitive agreement
for or consummates an ANI Acquisition within twelve (12) months after
such termination date, ANI shall pay to Occam the ANI Supplemental
Termination Fee (as defined below) within two (2) business days after
the consummation of such ANI Acquisition.
(ii) In the event this Agreement is terminated by Occam pursuant to
Section 7.1(f), (A) ANI shall, within two (2) business days after
termination of this Agreement by Occam, pay to Occam the ANI Base
Termination Fee and to the extent ANI enters into a definitive agreement
for or consummates an ANI Acquisition within twelve (12) months after
such termination date, ANI shall pay to Occam the ANI Supplemental
Termination Fee within two (2) business days after the consummation of
such ANI Acquisition.
(iii) For purposes of this Agreement, "ANI Base Termination Fee"
shall mean an amount equal to (A) $750,000 plus (B) all reasonable
out-of-pocket costs and expenses (including attorneys' fees) incurred by
Occam in connection with the negotiations of this Agreement and the
transactions contemplated by this Agreement, provided that such costs
and expenses will not exceed $750,000. For purposes of this Agreement,
"ANI Supplemental Termination Fee" shall mean the lesser of (A)
$1,750,000 and (B) twenty five percent (25%) of the amount (if any) by
which the ANI Third Party Acquisition Value (as defined below) exceeds
that amount equal to the product of (i) the outstanding number of shares
of ANI Common Stock as of the date hereof multiplied by (ii) the ANI
Stock Price as of the date hereof multiplied by (iii) 1.592968. For
purposes of this Agreement, "ANI Third Party Acquisition Value" shall
mean (A) in the case of an ANI Acquisition whereby the acquirer pays in
cash, the aggregate cash purchase price for such ANI Acquisition, (B) in
the case of an ANI Acquisition whereby the acquirer pays in acquirer's
stock or other consideration, the aggregate market value of such
consideration as of the date the ANI Acquisition's definitive agreement
or the ANI
42
Acquisition's consummation is publicly announced, whichever is earlier,
and (C) in the case of an ANI Acquisition whereby the acquirer pays in
acquirer's stock or other consideration and cash, a combination of the
foregoing.
(c) Payment by Occam.
(i) In the event this Agreement is terminated by Occam or ANI
pursuant to Section 7.1(e) and there shall not then exist any grounds
for either party to terminate this Agreement pursuant to Section 7.1(d),
Occam shall, contemporaneously with any termination of this Agreement by
Occam and within two (2) business days after any termination of this
Agreement by ANI, pay to ANI the Occam Base Termination Fee (as defined
below) and to the extent Occam enters into a definitive agreement for or
consummates an Occam Acquisition within twelve (12) months after such
termination date, Occam shall pay to ANI the Occam Supplemental
Termination Fee (as defined below) within two (2) business days after
the consummation of such Occam Acquisition.
(ii) In the event this Agreement is terminated by ANI pursuant to
Section 7.1(g), (A) Occam shall, within two (2) business days after
termination of this Agreement by ANI, pay to ANI the Occam Base
Termination Fee and to the extent Occam enters into a definitive
agreement for or consummates an Occam Acquisition within twelve (12)
months after such termination date, Occam shall pay to ANI the Occam
Supplemental Termination Fee within two (2) business days after the
consummation of such Occam Acquisition.
(iii) For purposes of this Agreement, "Occam Base Termination Fee"
shall mean an amount equal to (A) $750,000 plus (B) all reasonable
out-of-pocket costs and expenses (including attorneys' fees) incurred by
ANI in connection with the negotiations of this Agreement and the
transactions contemplated by this Agreement, provided that such costs
and expenses will not exceed $750,000. For purposes of this Agreement,
"Occam Supplemental Termination Fee" shall mean the lesser of (A)
$1,750,000 and (B) twenty five percent (25%) of the amount the Occam
Third Party Acquisition Value (as defined below) exceeds that amount
equal to the product of (i) the outstanding number of shares of ANI
Common Stock as of the date hereof multiplied by (ii) the ANI Stock
Price as of the date hereof multiplied by (iii) 3.385058. For purposes
of this Agreement, "Occam Third Party Acquisition Value" shall mean (A)
in the case of an Occam Acquisition whereby the acquirer pays in cash,
the aggregate cash purchase price for such Occam Acquisition, (B) in the
case of an Occam Acquisition whereby the acquirer pays in acquirer's
stock or other consideration, the aggregate market value of such
consideration as of the date the Occam Acquisition's definitive
agreement or the Occam Acquisition's consummation is publicly announced,
whichever is earlier, and (C) in the case of an Occam Acquisition
whereby the acquirer pays in acquirer's stock or other consideration and
cash, a combination of the foregoing.
7.4 Amendment. Subject to applicable law, this Agreement may be amended by
the parties hereto, by action taken or authorized by their respective Boards of
Directors, at any time before or after approval of the matters presented in
connection with the Merger by the stockholders of ANI and Occam, provided,
after any such approval, no amendment shall be made which by law or in
accordance with the rules of any relevant stock exchange requires further
approval by such stockholders without such further stockholder approval. This
Agreement may be not amended except by execution of an instrument in writing
signed on behalf of each of ANI and Occam.
7.5 Extension; Waiver. At any time prior to the Effective Time either party
hereto, by action taken or authorized by their respective Board of Directors,
may, to the extent legally allowed, (i) extend the time for the performance of
any of the obligations or other acts of the other parties hereto, (ii) waive
any inaccuracies in the representations and warranties made to such party
contained herein or in any document delivered pursuant hereto and (iii) waive
compliance with any of the agreements or conditions for the benefit of such
party contained herein. Any agreement on the part of a party hereto to any such
extension or waiver shall be valid only if set forth in an instrument in
writing signed on behalf of such party. Delay in exercising any right under
this Agreement shall not constitute a waiver of such right.
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ARTICLE VIII
GENERAL PROVISIONS
8.1 Non-Survival of Representations and Warranties. The representations and
warranties of Occam and ANI contained in this Agreement, or any instrument
delivered pursuant to this Agreement, shall terminate at the Effective Time,
provided, however, that Section 5.11 shall survive after the Effective Time.
8.2 Notices. Any notice or other communication required or permitted to be
delivered to any party under this Agreement shall be in writing and shall be
deemed properly delivered, given and received (a) upon receipt when delivered
by hand, or (b) two business days after sent by registered mail or by courier
or express delivery service or by facsimile, provided that in each case the
notice or other communication is sent to the address or facsimile telephone
number set forth beneath the name of such party below (or to such other address
or facsimile telephone number as such party shall have specified in a written
notice given to the other parties hereto):
(a) if to Occam, to:
Occam Networks Inc.
00 Xxxxx Xxxx Xxxx
Xxxxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Kumar Shah, President
Facsimile: (000) 000-0000
with a copy to:
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
Professional Corporation
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxx X. Xxxxxxxx
Facsimile: (000) 000-0000
(b) if to ANI, to:
Accelerated Networks, Inc.
000 Xxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Attention: H. Xxxxxxx Xxxxx, III, Chief Financial Officer
Facsimile: (000) 000-0000
with a copy to:
Xxxxxx Godward LLP
Five Palo Alto Square
0000 Xx Xxxxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxxxx
Facsimile: (000) 000-0000
8.3 Interpretation.
(a) When a reference is made in this Agreement to Exhibits, such
reference shall be to an Exhibit to this Agreement unless otherwise
indicated. When a reference is made in this Agreement to Sections, such
reference shall be to a Section of this Agreement unless otherwise
indicated. For purposes of this Agreement, the words "include," "includes"
and "including," when used herein, shall be deemed in each case to be
followed by the words "without limitation." The table of contents and
headings contained in this Agreement are for reference purposes only and
shall not affect in any way the meaning or interpretation of
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this Agreement. When reference is made herein to "the business of" an
entity, such reference shall be deemed to include the business of all such
entity and its Subsidiaries, taken as a whole. An exception or disclosure
made in Occam Schedules with regard to a representation of Occam, or in the
ANI Schedules with regard to a representation of ANI, shall be deemed made
with respect to any other representation by such party to which such
exception or disclosure is readily apparent.
(b) For purposes of this Agreement, the term "Material Adverse Effect,"
when used in connection with an entity, means any change, event, violation,
inaccuracy, circumstance or effect (any such item, an "Effect"),
individually or when taken together with all other Effects that have
occurred prior to the date of determination of the occurrence of the
Material Adverse Effect, that is or is reasonably likely to (i) be
materially adverse to the business, assets (including intangible assets),
capitalization, liabilities, financial condition or results of operations of
such entity taken as a whole with its Subsidiaries or (ii) materially impede
the ability or authority of such entity to consummate the transactions
contemplated by this Agreement in accordance with the terms hereof and
applicable Legal Requirements; provided, however, that, for purposes of
clause (i) above, in no event shall any of the following, alone or in
combination, be deemed to constitute, nor shall any of the following be
taken into account in determining whether there has been or will be, a
Material Adverse Effect on any entity: (A) any Effect resulting from
compliance with the terms and conditions of this Agreement, (B) any change
in such entity's stock price or trading volume, in and of itself, (C) any
Effect that results from changes affecting any of the industries in which
such entity operates generally or the United States economy generally (which
changes in each case do not disproportionately affect such entity in any
material respect), (D) any Effect that results from changes affecting
general worldwide economic or capital market conditions (which changes in
each case do not disproportionately affect such entity in any material
respect), (E) the failure of a party to meet published or internal earnings,
revenue estimates or projections or (F) any adverse effect that results from
the announcement or pendency of the Merger or any of the other transactions
contemplated by this Agreement.
(c) For purposes of this Agreement, the term "Person" shall mean any
individual, corporation (including any non-profit corporation), general
partnership, limited partnership, limited liability partnership, joint
venture, estate, trust, company (including any limited liability company or
joint stock company), firm or other enterprise, association, organization,
entity or Governmental Entity.
8.4 Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each
of the parties and delivered to the other party, it being understood that all
parties need not sign the same counterpart.
8.5 Entire Agreement; Third-Party Beneficiaries. This Agreement and the
documents and instruments and other agreements among the parties hereto as
contemplated by or referred to herein, including the Occam Schedules and the
ANI Schedules, (i) constitute the entire agreement among the parties with
respect to the subject matter hereof and supersede all prior agreements and
understandings, both written and oral, among the parties with respect to the
subject matter hereof, it being understood that the Confidentiality Agreement
shall continue in full force and effect until the Closing and shall survive any
termination of this Agreement and the "standstill" provisions in paragraph (3)
of that certain letter agreement dated October 22, 2001, between Occam and ANI
(relating to the exclusivity of negotiations) (the "Exclusivity Letter") shall
continue in full force and effect and shall survive any termination of this
Agreement, and (ii) are not intended to confer upon any other Person any rights
or remedies hereunder, other than the provisions of Section 5.11 with respect
to the ANI Indemnified Parties.
8.6 Severability. In the event that any provision of this Agreement or the
application thereof, becomes or is declared by a court of competent
jurisdiction to be illegal, void or unenforceable, the remainder of this
Agreement will continue in full force and effect and the application of such
provision to other persons or circumstances will 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 will achieve, to the greatest extent
possible, the economic, business and other purposes of such void or
unenforceable provision.
45
8.7 Other Remedies; Specific Performance. Except as otherwise provided
herein, any and all remedies herein expressly conferred upon a party will be
deemed cumulative with and not exclusive of any other remedy conferred hereby,
or by law or equity upon such party, and the exercise by a party of any one
remedy will not preclude the exercise of any other remedy. The parties hereto
agree that irreparable damage would occur in the event that any of the
provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached. It is accordingly agreed that the
parties shall be entitled to seek an injunction or injunctions to prevent
breaches of this Agreement and to enforce specifically the terms and provisions
hereof in any court of the United States or any state having jurisdiction, this
being in addition to any other remedy to which they are entitled at law or in
equity.
8.8 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware, regardless of the laws that
might otherwise govern under applicable principles of conflicts of law thereof.
8.9 Rules of Construction. The parties hereto agree that they have been
represented by counsel during the negotiation and execution of this Agreement
and, therefore, waive the application of any law, regulation, holding or rule
of construction providing that ambiguities in an agreement or other document
will be construed against the party drafting such agreement or document.
8.10 Assignment. No party may assign either this Agreement or any of its
rights, interests, or obligations hereunder without the prior written approval
of the other parties. Any purported assignment in violation of this Section
8.10 shall be void. Subject to the preceding sentence, this Agreement shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective successors and permitted assigns.
8.11 Waiver of Jury Trial. EACH OF ANI AND OCCAM HEREBY IRREVOCABLY WAIVES
ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER
BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR THE ACTIONS OF ANI OR OCCAM IN THE NEGOTIATION, ADMINISTRATION,
PERFORMANCE AND ENFORCEMENT HEREOF.
* * * * *
46
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized respective officers as of the date first
written above.
ACCELERATED NETWORKS, INC.
By: /s/ X.X. Xxxxx
------------------------------------
Name: X.X. Xxxxx
---------------------------------
Title: Chairman & CEO
----------------------------------
ODIN ACQUISITION CORP.
By: /s/ X.X. Xxxxx
------------------------------------
Name: X.X. Xxxxx
---------------------------------
Title: Chairman & CEO
----------------------------------
OCCAM NETWORKS INC.
By: /s/ Kumar Shah
------------------------------------
Name: Kumar Shah
---------------------------------
Title: President & CEO
----------------------------------
[SIGNATURE PAGE TO MERGER AGREEMENT]
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