AGREEMENT AND PLAN OF MERGER dated as of January 21, 2008 among VENTANA MEDICAL SYSTEMS, INC., ROCHE HOLDINGS, INC. and ROCKET ACQUISITION CORPORATION
Table of Contents
Exhibit
(e)(16)
AGREEMENT
AND PLAN OF MERGER
dated as of
January 21, 2008
among
VENTANA MEDICAL SYSTEMS, INC.,
ROCHE HOLDINGS, INC.
and
ROCKET ACQUISITION CORPORATION
dated as of
January 21, 2008
among
VENTANA MEDICAL SYSTEMS, INC.,
ROCHE HOLDINGS, INC.
and
ROCKET ACQUISITION CORPORATION
Table of Contents
TABLE OF
CONTENTS
i
Table of Contents
Page | ||||||||
Section 4.10.
|
Absence of Certain Changes | 12 | ||||||
Section
4.11.
|
No Undisclosed Material Liabilities | 13 | ||||||
Section 4.12.
|
Compliance with Laws and Court Orders | 13 | ||||||
Section 4.13.
|
Litigation | 13 | ||||||
Section 4.14.
|
Taxes | 13 | ||||||
Section 4.15.
|
Labor and Employment | 14 | ||||||
Section 4.16.
|
Employee Benefit Plans | 14 | ||||||
Section 4.17.
|
Environmental Matters | 16 | ||||||
Section
4.18.
|
Material Contracts | 17 | ||||||
Section 4.19.
|
Intellectual Property | 17 | ||||||
Section 4.20.
|
Finders’ Fees | 18 | ||||||
Section
4.21.
|
Opinion of Financial Advisors | 18 | ||||||
Section 4.22.
|
Anti-takeover Statutes and Rights Agreement | 18 | ||||||
ARTICLE 5 Representations and Warranties of Parent |
||||||||
Section 5.01.
|
Corporate Existence and Power | 19 | ||||||
Section 5.02.
|
Corporate Authorization | 19 | ||||||
Section 5.03.
|
Governmental Authorization | 19 | ||||||
Section 5.04.
|
Non-contravention | 19 | ||||||
Section 5.05.
|
Disclosure Documents | 20 | ||||||
Section 5.06.
|
Finders’ Fees | 20 | ||||||
Section 5.07.
|
Financing | 20 | ||||||
Section 5.08.
|
Operations of Merger Subsidiary | 20 | ||||||
ARTICLE 6 Covenants of the Company |
||||||||
Section
6.01.
|
Conduct of the Company | 20 | ||||||
Section 6.02.
|
Stockholder Meeting; Proxy Material | 22 | ||||||
Section 6.03.
|
Access to Information | 22 | ||||||
Section 6.04.
|
No Solicitation; Change of Recommendation | 23 | ||||||
ARTICLE 7 Covenants of Parent |
||||||||
Section 7.01.
|
Obligations of Merger Subsidiary | 25 | ||||||
Section 7.02.
|
Voting of Shares | 25 | ||||||
Section 7.03.
|
Director and Officer Liability | 25 | ||||||
Section
7.04.
|
Employee Matters | 26 | ||||||
ARTICLE 8 Covenants of Parent and the Company |
||||||||
Section
8.01.
|
Reasonable Best Efforts | 27 | ||||||
Section 8.02.
|
Cooperation | 27 |
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Page | ||||||||
Section 8.03.
|
Public Announcements | 27 | ||||||
Section 8.04.
|
Further Assurances | 28 | ||||||
Section 8.05.
|
Merger Without Meeting of Stockholders | 28 | ||||||
Section
8.06.
|
Section 16 Matters | 28 | ||||||
Section
8.07.
|
Notices of Certain Events | 28 | ||||||
Section
8.08.
|
Takeover Statutes | 28 | ||||||
Section
8.09.
|
Litigation | 28 | ||||||
Section
8.10.
|
Transfer Taxes | 29 | ||||||
ARTICLE 9 Conditions to the Merger |
||||||||
Section 9.01.
|
Conditions to the Obligations of Each Party | 29 | ||||||
ARTICLE 10 Termination |
||||||||
Section 10.01.
|
Termination | 29 | ||||||
Section 10.02.
|
Effect of Termination | 30 | ||||||
ARTICLE 11 Miscellaneous |
||||||||
Section 11.01.
|
Notices | 30 | ||||||
Section 11.02.
|
Survival of Representations and Warranties | 31 | ||||||
Section 11.03.
|
Amendments and Waivers | 31 | ||||||
Section 11.04.
|
Expenses | 32 | ||||||
Section 11.05.
|
Disclosure Schedule References and SEC Document References | 32 | ||||||
Section
11.06.
|
Binding Effect; Benefit; Assignment | 32 | ||||||
Section 11.07.
|
Governing Law | 33 | ||||||
Section 11.08.
|
Jurisdiction | 33 | ||||||
Section 11.09.
|
WAIVER OF JURY TRIAL | 33 | ||||||
Section 11.10.
|
Counterparts; Effectiveness | 33 | ||||||
Section 11.11.
|
Entire Agreement | 33 | ||||||
Section 11.12.
|
Severability | 33 | ||||||
Section 11.13.
|
Specific Performance | 33 | ||||||
ARTICLE 12 Definitions |
||||||||
Section
12.01.
|
Definitions | 34 | ||||||
Section
12.02.
|
Other Definitional and Interpretative Provisions | 36 |
iii
Table of Contents
AGREEMENT AND PLAN OF MERGER (this “Agreement”)
dated as of January 21, 2008, among VENTANA MEDICAL
SYSTEMS, INC., a Delaware corporation (the
“Company”), ROCHE HOLDINGS, INC., a Delaware
corporation (“Parent”), and ROCKET ACQUISITION
CORPORATION, a Delaware corporation and a wholly-owned indirect
subsidiary of Parent (“Merger Subsidiary”).
WITNESSETH:
WHEREAS, on June 27, 2007 Merger Subsidiary filed a Tender
Offer Statement on Schedule TO (together with any
amendments or supplements thereto, the
“Schedule TO”) with respect to the tender
offer by Merger Subsidiary (as such offer has been amended from
time to time prior to the date hereof, the “Existing
Offer”) to purchase all outstanding shares of common
stock, $0.001 par value, of the Company, together with the
associated Company Rights (as defined below) for so long as such
Company Rights are outstanding (collectively, the
“Shares”); and
WHEREAS, the parties hereto have agreed to the acquisition of
the Company on the terms and subject to the conditions set forth
herein, and Parent has agreed to cause Merger Subsidiary to
amend the Existing Offer to reflect such agreement (the
“Amended Offer”, and as it may be amended from
time to time in accordance with this Agreement, the
“Offer”);
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE 1
The
Offer
Section 1.01. The
Offer. (a) Provided that nothing
shall have occurred that would give rise to a right to terminate
the Offer pursuant to any of the conditions set forth in
Annex I, as promptly as practicable after the date hereof,
but in no event later than five Business Days following the
public announcement of the execution of this Agreement, Merger
Subsidiary shall amend the Offer to (i) increase the
purchase price to $89.50 per Share, net to the seller in cash,
(ii) provide that the conditions to the Offer shall be as
set forth in Annex I and no others, (iii) provide that
the expiration date shall be February 7, 2008 and
(iv) make such other amendments as are necessary or
appropriate to conform to the requirements of this Agreement.
The Offer shall be subject to the condition that there shall be
validly tendered in accordance with the terms of the Offer prior
to the expiration date of the Offer and not withdrawn, a number
of Shares that, together with the Shares then owned by Parent
and its Affiliates, represents at least a majority of the total
number of Shares outstanding on a fully-diluted basis (the
“Minimum Condition”) and to the other
conditions set forth in Annex I and to no other conditions.
Merger Subsidiary expressly reserves the right to waive any of
the conditions to the Offer and to make any other changes in the
terms of or conditions to the Offer; provided that
without the prior consent of the Company (which consent may be
granted or withheld by the Company in its sole discretion)
(A) the Minimum Condition may not be waived, (B) no
change may be made that changes the form of consideration to be
paid, decreases the price per Share or the number of Shares
sought in the Offer, amends or adds to the conditions to the
Offer set forth in Annex I or amends any other term of the
Offer in any manner adverse to the stockholders of the Company
and (C) the expiration date shall not be extended except as
otherwise provided herein. Notwithstanding the foregoing,
(x) Merger Subsidiary shall extend the Offer if at the
scheduled or extended expiration date of the Offer any of the
conditions to the Offer shall not be satisfied or waived, from
time to time until such conditions are satisfied or waived; and
(y) Merger Subsidiary shall extend the Offer for any period
required by any rule, regulation, interpretation or position of
the U.S. Securities and Exchange Commission (the
“SEC”) or the Nasdaq Global Select Market
applicable to the Offer; provided that in no event shall
Merger Subsidiary be required to extend the Offer beyond the End
Date unless Parent or Merger Subsidiary is not then permitted to
terminate this Agreement pursuant to Section 10.01(b)(i),
in which case Merger Subsidiary shall be required to extend the
Offer beyond the End Date. Following expiration of the Offer,
Merger Subsidiary shall, if requested by the Company, or may, in
its sole discretion, provide a subsequent offering period
(“Subsequent Offering Period”) in accordance
with
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Rule 14d-11
of the 1934 Act. Subject to the foregoing, including the
requirements of
Rule 14d-11,
and upon the terms and subject to the conditions of the Offer,
Merger Subsidiary shall, and Parent shall cause it to, accept
for payment and pay for, as promptly as practicable after the
expiration of the Offer, all Shares (1) validly tendered
and not withdrawn pursuant to the Offer and (2) validly
tendered in the Subsequent Offering Period (the date on which
Shares are first accepted for payment, the “Acceptance
Date”).
(b) As promptly as practicable after the date hereof, but
in no event later than five Business Days following the public
announcement of the execution of this Agreement, Merger
Subsidiary shall, and shall cause its Affiliates to,
(i) file with the SEC an amendment to the Schedule TO,
which shall include a revised offer to purchase and form of
letter of transmittal and summary advertisement reflecting the
terms and conditions set forth in this Agreement (collectively,
together with any amendments or supplements thereto, the
“Offer Documents”), and (ii) to the extent
required by applicable U.S. federal securities laws, cause
the Offer Documents to be disseminated to holders of Shares.
Each of Parent, Merger Subsidiary and the Company agrees
promptly to correct any information provided by it or any of its
Affiliates for use in the Schedule TO and the Offer
Documents if and to the extent that such information shall have
become false or misleading in any material respect. Merger
Subsidiary shall, and shall cause its Affiliates to, use their
respective reasonable best efforts to cause the Schedule TO
as so corrected to be filed with the SEC and the Offer Documents
as so corrected to be disseminated to holders of Shares, in each
case as and to the extent required by applicable
U.S. federal securities laws. The Company and its counsel
shall be given a reasonable opportunity to review and comment
(A) on the Schedule TO and the Offer Documents each
time before any such document is filed with the SEC and
(B) on any correspondence with the SEC (including comment
response letters) concerning the Offer or the Offer Documents,
and Merger Subsidiary shall give reasonable and good faith
consideration to any comments made by the Company and its
counsel. Parent and Merger Subsidiary shall provide the Company
and its counsel with any written or oral comments Parent, Merger
Subsidiary or their respective Affiliates or counsel may receive
from the SEC with respect to the Offer Documents promptly, but
in no event later than twelve hours, after the receipt of such
comments.
Section 1.02. Company
Action. (a) The Company hereby consents to
the Offer and represents that its board of directors (the
“Board of Directors”), at a meeting duly called
and held has (i) determined that this Agreement and the
transactions contemplated hereby, including the Offer and the
Merger, are fair to and in the best interests of the
Company’s stockholders, (ii) approved and adopted this
Agreement and the transactions contemplated hereby, including
the Offer and the Merger, and declared this Agreement advisable,
in accordance with the requirements of the Delaware General
Corporation Law (“Delaware Law”) and
(iii) resolved (subject to Section 6.04(b)) to
recommend acceptance of the Offer and adoption of this Agreement
by the stockholders of the Company.
(b) The Company has been advised that, except as set forth
in Section 1.02(b) of the Company Disclosure Schedule (as
defined below), as of the date hereof, all of its directors and
executive officers who own Shares intend to tender their Shares
pursuant to the Offer. The Company shall promptly furnish Parent
with a list of its stockholders, mailing labels and any
available listing or computer file containing the names and
addresses of all record holders of Shares and lists of
securities positions of Shares held in stock depositories, in
each case true and correct as of the most recent practicable
date, and shall provide to Parent such additional information
(including updated lists of stockholders, mailing labels and
lists of securities positions) as Parent may reasonably request
in connection with the Offer.
(c) As promptly as practicable after the amendment to the
Schedule TO is filed with the SEC pursuant to the first
sentence of Section 1.01(b), but in no event later than
five Business Days following the public announcement of the
execution of this Agreement, the Company shall file with the SEC
and, to the extent required by applicable U.S. securities
laws, disseminate to holders of Shares an amendment to the
Solicitation/Recommendation Statement on
Schedule 14D-9
filed by the Company on July 11, 2007 (together with any
amendments or supplements thereto, the
“Schedule 14D-9”)
that, subject to Section 6.04(b), shall reflect the
recommendations of the Board of Directors referred to above.
Each of the Company, Parent and Merger Subsidiary agrees
promptly to correct any information provided by it or any of its
Affiliates for use in the
Schedule 14D-9
if and to the extent that it shall have become false or
misleading in any material respect. The Company shall cause the
Schedule 14D-9
as so corrected to be filed with the SEC and to be disseminated
to
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holders of Shares, in each case as and to the extent required by
applicable U.S. federal securities laws. Parent, Merger
Subsidiary and their counsel shall be given a reasonable
opportunity to review and comment (A) on the
Schedule 14D-9
each time before it is filed with the SEC and (B) on any
correspondence with the SEC (including comment response letters)
concerning the
Schedule 14D-9,
and the Company shall give reasonable and good faith
consideration to any comments made by Parent, Merger Subsidiary
and their counsel. The Company shall provide Parent and Merger
Subsidiary and their counsel with any written or oral comments
the Company or its counsel may receive from the SEC with respect
to the
Schedule 14D-9
promptly, but in no event later than twelve hours, after the
receipt of such comments.
Section 1.03. Directors. (a) Effective
upon the acceptance for payment of any Shares pursuant to the
Offer, Parent shall be entitled to designate the number of
directors, rounded up to the next whole number, on the Board of
Directors that equals the product of (i) the total number
of directors on the Board of Directors (giving effect to the
election of any additional directors pursuant to this
Section 1.03) and (ii) the percentage that the number
of Shares beneficially owned by Parent and its Affiliates
(including Shares accepted for payment) bears to the total
number of Shares outstanding, and the Company shall use its
reasonable best efforts to take all action necessary to cause
Parent’s designees to be elected or appointed to the Board
of Directors, including increasing the number of directors and
seeking and accepting resignations of incumbent directors. At
such time, the Company shall also use its reasonable best
efforts to cause individuals designated by Parent to constitute
the number of members, rounded up to the next whole number, on
(A) each committee of the Board of Directors and
(B) each board of directors of each Subsidiary of the
Company (and each committee thereof) that, in each case,
represents the same percentage as such individuals represent on
the Board of Directors. Notwithstanding the foregoing, following
the election or appointment of Parent’s designees pursuant
to this Section 1.03(a) and until the Effective Time, the
Board of Directors shall at all times include, and the Company,
Parent and Merger Subsidiary shall cause the Board of Directors
to at all times include, at least three Continuing Directors and
each committee of the Board of Directors and the board of
directors of each Subsidiary of the Company shall at all times
include, and the Company, Parent and Merger Subsidiary shall
cause each committee of the Board of Directors and the board of
directors of each Subsidiary of the Company to at all times
include, at least one Continuing Director. A “Continuing
Director” shall mean a person who is a member of the
Board of Directors as of the date hereof or a person selected by
the Continuing Directors then in office. If the number of
Continuing Directors is reduced to below three prior to the
Effective Time, any remaining Continuing Directors (or
Continuing Director, if there shall be only one remaining) shall
be entitled to designate a person to fill such vacancy who is
not an officer, director, stockholder or designee of Parent or
any of its Affiliates and who shall be deemed to be a Continuing
Director for all purposes of this Agreement, or, if no
Continuing Directors then remain, the other directors shall
designate three persons to fill such vacancies who are not
officers, directors, stockholders or designees of Parent or any
of its Affiliates, and such persons shall be deemed to be
Continuing Directors for all purposes of this Agreement.
(b) The Company’s obligations to appoint Parent’s
designees to the Board of Directors shall be subject to
Section 14(f) of the 1934 Act and
Rule 14f-1
promulgated thereunder. Subject to applicable Laws, the Company
shall promptly take all actions required pursuant to
Section 14(f) and
Rule 14f-1
in order to fulfill its obligations under this
Section 1.03, including mailing to stockholders of the
Company the information required by Section 14(f) and
Rule 14f-1
as is necessary to enable Parent’s designees to be elected
or designated to the Board of Directors (provided that
Parent or Merger Subsidiary shall have provided to the Company
on a timely basis all information with respect to itself and its
nominees, officers, directors and Affiliates required by
Section 14(f) and
Rule 14f-1).
Parent shall supply to the Company in writing and be solely
responsible for any information with respect to itself and its
nominees, officers, directors and Affiliates required by
Section 14(f) and
Rule 14f-1.
(c) Following the election or appointment of Parent’s
designees pursuant to Section 1.03(a) and until the
Effective Time, the approval of a majority of the Continuing
Directors shall be required to authorize (and such authorization
shall constitute the authorization of the Board of Directors and
no other action on the part of the Company, including any action
by any other director of the Company, shall be required)
(i) any amendment or termination of this Agreement by the
Company, (ii) any agreement between the Company and any of
its Subsidiaries, on the one hand, and Parent, Merger Subsidiary
or any of their respective Affiliates (other than
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the Company and its Subsidiaries), on the other hand,
(iii) the taking of any action by the Company or any of its
Subsidiaries that would prevent or would materially delay the
consummation of the Merger, (iv) any extension of time for
performance of any obligation or action hereunder by Parent or
Merger Subsidiary or (v) any waiver of any of the
Company’s rights or remedies under this Agreement.
Section 1.04. Top-Up
Option. (a) Subject to Sections 1.04(b)
and 1.04(c), the Company grants to Merger Subsidiary an option,
for so long as this Agreement has not been terminated pursuant
to the provisions hereof (the
“Top-Up
Option”), to purchase from the Company, up to the
number of authorized and unissued Shares, the number of Shares
that, when added to the number of Shares owned by Merger
Subsidiary at the time of exercise of the
Top-Up
Option, constitutes one Share more than 90% of the Shares that
would be outstanding immediately after the issuance of all
Shares to be issued upon exercise of the
Top-Up
Option, calculated on a fully-diluted basis (the Shares to be
issued upon exercise of the
Top-Up
Option, the
“Top-Up
Shares”).
(b) The
Top-Up
Option may be exercised by Merger Subsidiary in accordance with
Section 1.04(c), in whole or in part, only once, at any
time during the 10 Business Day period following the Acceptance
Date, or if any Subsequent Offering Period is provided, during
the 10 Business Day period following the expiration date of such
Subsequent Offering Period, and only if Merger Subsidiary shall
own as of such time less than 90% of the outstanding Shares;
provided that notwithstanding anything in this Agreement
to the contrary, the
Top-Up
Option shall not be exercisable to the extent (i) the
issuance of the Shares upon exercise of the
Top-Up
Option would require approval of the Company’s stockholders
under the rules and regulations of the Nasdaq Global Select
Market or (ii) the number of Shares issuable upon exercise
of the
Top-Up
Option would exceed the number of authorized but unissued and
unreserved Shares. The aggregate purchase price payable for the
Top-Up
Shares being purchased by Merger Subsidiary pursuant to the
Top-Up
Option shall be determined by multiplying the number of such
Shares by an amount in cash equal to the price paid for each
Share in the Offer, without interest. Such purchase price shall
be payable in cash by Merger Subsidiary.
(c) In the event Merger Subsidiary wishes to exercise the
Top-Up
Option, Merger Subsidiary shall deliver to the Company a notice
(the
“Top-Up
Notice”) setting forth (i) the number of
Top-Up
Shares that Merger Subsidiary intends to purchase pursuant to
the Top-Up
Option and (ii) the place and time at which the closing of
the purchase of such
Top-Up
Shares by Merger Subsidiary is to take place. The
Top-Up
Notice shall also include an undertaking signed by Parent and
Merger Subsidiary that, as promptly as practicable following
such exercise of the
Top-Up
Option, Merger Subsidiary intends to (and Merger Subsidiary
shall, and Parent shall cause Merger Subsidiary to, as promptly
as practicable after such exercise) consummate the Merger in
accordance with Section 253 of Delaware Law as contemplated
by Section 8.05. At the closing of the purchase of the
Top-Up
Shares, Parent and Merger Subsidiary shall cause to be delivered
to the Company the consideration required to be delivered in
exchange for the
Top-Up
Shares, and the Company shall cause to be issued to Merger
Subsidiary a certificate representing the
Top-Up
Shares. The parties hereto agree to use their reasonable best
efforts to cause the closing of the purchase of the
Top-Up
Shares to occur on the same day that the
Top-Up
Notice is deemed received by the Company pursuant to
Section 11.01, and if not so consummated on such day, as
promptly thereafter as possible. The parties further agree to
use their reasonable best efforts to cause the Merger to be
consummated in accordance with Section 253 of Delaware Law
as contemplated by Section 8.05 as close in time as
possible to (including, to the extent possible, on the same day
as) the issuance of the
Top-Up
Shares.
(d) Parent and Merger Subsidiary understand that the
Top-Up
Shares will not be registered under the 1933 Act and will
be issued in reliance upon an exemption thereunder for
transactions not involving a public offering. Each of Parent and
Merger Subsidiary represents, warrants and agrees that the
Top-Up
Option is being, and the
Top-Up
Shares will be, acquired by Merger Subsidiary for the purpose of
investment and not with a view to or for resale in connection
with any distribution thereof within the meaning of the
1933 Act. Any certificates evidencing
Top-Up
Shares may include any legends required by applicable securities
laws.
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ARTICLE 2
The
Merger
Section 2.01. The
Merger. (a) At the Effective Time, Merger
Subsidiary shall be merged (the “Merger”) with
and into the Company in accordance with Delaware Law, whereupon
the separate existence of Merger Subsidiary shall cease, and the
Company shall be the surviving corporation (the
“Surviving Corporation”).
(b) As soon as practicable (and in no event later than the
third Business Day) after satisfaction or, to the extent
permitted hereunder, waiver of all conditions to the Merger set
forth in Article 9, the Company and Merger Subsidiary shall
file a certificate of merger (or, if the Merger is consummated
pursuant to Section 253 of Delaware Law, a certificate of
ownership and merger) with the Delaware Secretary of State and
make all other filings or recordings required by Delaware Law
and this Agreement in connection with the Merger. The Merger
shall become effective at such time (the “Effective
Time”) as the certificate of merger (or, if the Merger
is to be consummated pursuant to Section 253 of Delaware
Law, the certificate of ownership and merger) is duly filed with
the Delaware Secretary of State or at such later time as is
permitted by applicable Law and specified in the certificate of
merger.
(c) At the Effective Time, the separate existence of Merger
Subsidiary shall cease, and from and after the Effective Time,
the Surviving Corporation shall possess all the rights, powers,
privileges and franchises and be subject to all of the
obligations, liabilities, debts, duties, restrictions and
disabilities of the Company and Merger Subsidiary, all as
provided under Delaware Law.
Section 2.02. Conversion
of Shares. At the Effective Time, by virtue of
the Merger and without any action on the part of Parent, Merger
Subsidiary, the Company or the holders of securities of Parent,
Merger Subsidiary or the Company:
(a) except as otherwise provided in Section 2.02(b),
Section 2.02(c) or Section 2.04, each Share
outstanding immediately prior to the Effective Time shall be
converted into the right to receive an amount in cash equal to
the price paid for each Share in the Offer, without interest
(the “Merger Consideration”);
(b) each Share held by the Company as treasury stock or by
Parent or any of its Subsidiaries immediately prior to the
Effective Time shall be canceled, and no payment shall be made
with respect thereto;
(c) each Share held by a Subsidiary of the Company
immediately prior to the Effective Time shall be converted into
such number of shares of stock of the Surviving Corporation such
that each such Subsidiary owns the same percentage of the
outstanding capital stock of Surviving Corporation immediately
following the Effective Time as such Subsidiary owned in the
Company immediately prior to the Effective Time; and
(d) each share of common stock of Merger Subsidiary
outstanding immediately prior to the Effective Time shall be
converted into and become one share of common stock of the
Surviving Corporation with the same rights, powers and
privileges as the shares so converted and shall constitute the
only outstanding shares of capital stock of the Surviving
Corporation (except for any such shares resulting from the
conversion of Shares pursuant to Section 2.02(c)).
Section 2.03. Surrender
and Payment. (a) Prior to the Effective
Time, Parent shall appoint an agent reasonably acceptable to the
Company (the “Exchange Agent”) for the purpose
of exchanging for the Merger Consideration (i) certificates
representing Shares (the “Certificates”) or
(ii) uncertificated Shares (the “Uncertificated
Shares”). Merger Subsidiary or one of its Affiliates
shall deposit with the Exchange Agent, as needed from time to
time, the Merger Consideration to be paid in respect of the
Certificates and the Uncertificated Shares. Promptly after the
Effective Time, Parent shall send, or shall cause the Exchange
Agent to send, to each holder of Shares at the Effective Time a
letter of transmittal and instructions for use in such exchange
(which shall specify that the delivery shall be effected, and
risk of loss and title shall pass, only upon proper delivery of
the Certificates or transfer of the Uncertificated Shares to the
Exchange Agent).
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(b) Each holder of Shares that have been converted into the
right to receive the Merger Consideration shall be entitled to
receive, upon (i) surrender to the Exchange Agent of a
Certificate, together with a properly completed letter of
transmittal, or (ii) receipt of an “agent’s
message” by the Exchange Agent (or such other evidence, if
any, of transfer as the Exchange Agent may reasonably request)
in the case of a book-entry transfer of Uncertificated Shares,
the Merger Consideration payable for each Share represented by a
Certificate or for each Uncertificated Share. Until so
surrendered or transferred, as the case may be, each such
Certificate or Uncertificated Share shall represent after the
Effective Time for all purposes only the right to receive the
Merger Consideration.
(c) If any portion of the Merger Consideration is to be
paid to a Person other than the Person in whose name the
surrendered Certificate or Uncertificated Share is registered,
it shall be a condition to such payment that (i) either
such Certificate shall be properly endorsed or shall otherwise
be in proper form for transfer or such Uncertificated Share
shall be properly transferred and (ii) the Person
requesting such payment shall pay to the Exchange Agent any
transfer or other Taxes required as a result of such payment to
a Person other than the registered holder of such Certificate or
Uncertificated Share or establish to the satisfaction of the
Exchange Agent that such Tax has been paid or is not payable.
(d) After the Effective Time, there shall be no further
registration of transfers of Shares. If, after the Effective
Time, Certificates or Uncertificated Shares are presented to the
Surviving Corporation, they shall be canceled and exchanged for
the Merger Consideration provided for, and in accordance with
the procedures set forth, in this Article 2.
(e) Any portion of the Merger Consideration made available
to the Exchange Agent pursuant to Section 2.03(a) (and any
interest or other income earned thereon) that remains unclaimed
by the holders of Shares six months after the Effective Time
shall be returned to the Surviving Corporation or one of its
Affiliates upon demand, and any such holder who has not
exchanged such Shares for the Merger Consideration in accordance
with this Section 2.03 prior to that time shall thereafter
look only to the Surviving Corporation for payment of the Merger
Consideration in respect of such Shares without any interest
thereon. Notwithstanding the foregoing, neither the Surviving
Corporation nor any of its Affiliates shall be liable to any
holder of Shares for any amount paid to a public official
pursuant to applicable abandoned property, escheat or similar
laws.
(f) Any portion of the Merger Consideration made available
to the Exchange Agent pursuant to Section 2.03(a) to pay
for Shares for which appraisal rights have been perfected shall
be returned to the Surviving Corporation or one of its
Affiliates, upon demand.
Section 2.04. Dissenting
Shares. Notwithstanding Section 2.02, Shares
outstanding immediately prior to the Effective Time and held by
a holder who has not voted in favor of the Merger or consented
thereto in writing and who has properly demanded appraisal for
such Shares in accordance with Delaware Law shall not be
converted into a right to receive the Merger Consideration,
unless and until such holder fails to perfect, withdraws (in
accordance with Delaware Law) or otherwise loses the right to
appraisal. If, after the Effective Time, such holder fails to
perfect, withdraws (in accordance with Delaware Law) or loses
the right to appraisal, such Shares shall be treated as if they
had been converted as of the Effective Time into a right to
receive the Merger Consideration. The Company shall give Parent
prompt notice of any demands received by the Company for
appraisal of Shares, and Parent shall have the right to
participate in all negotiations and proceedings with respect to
such demands. Except with the prior written consent of Parent,
the Company shall not make any payment with respect to, or offer
to settle or settle, any such demands.
Section 2.05. Stock
Options. At the Effective Time, each
then-outstanding option to purchase Shares granted under any
stock option or compensation plan or arrangement of the Company
(a “Company Stock Option”), whether or not
vested or exercisable, shall vest and be canceled, and, in
exchange therefor, the Surviving Corporation shall pay to each
former holder of any such Company Stock Option at or promptly
after the Effective Time an amount in cash equal to the product
of (a) the excess, if any, of the Merger Consideration over
the applicable exercise price per Share of such Company Stock
Option and (b) the number of Shares such holder could have
purchased (assuming full vesting of such Company Stock Option)
had such holder exercised such Company Stock Option in full
immediately prior to the Effective Time.
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Section 2.06. Restricted
Shares. At the Effective Time, each
then-outstanding restricted Share granted under any equity or
compensation plan or arrangement of the Company (a
“Company Restricted Share”) shall vest (and all
restrictions thereon shall immediately lapse) and shall be
converted into the right to receive the Merger Consideration in
accordance with Section 2.02(a).
Section 2.07. Performance
Units. At the Effective Time, each
then-outstanding performance unit granted under any equity or
compensation plan or arrangement of the Company (a
“Company Performance Unit”), whether or not
vested, shall vest and be canceled, and, in exchange therefor,
the Surviving Corporation shall pay to each former holder of any
such cancelled Company Performance Unit at or promptly after the
Effective Time an amount in cash equal to the product of the
Merger Consideration and the number of Shares subject to or
related to such Company Performance Unit.
Section 2.08. Employee
Stock Purchase Plan. The Company shall take all
action that is necessary to (a) suspend all payroll
deductions and cause the exercise of each outstanding purchase
right under the Company’s 2005 Employee Stock Purchase Plan
(the “Company ESPP”) not later than the initial
scheduled expiration of the Amended Offer; (b) provide that
no further purchase period or offering period shall commence
under the Company ESPP following that date; and
(c) immediately prior to and effective as of the Effective
Time and subject to the consummation of the Merger, terminate
the Company ESPP.
Section 2.09. Compensation
Arrangements. Prior to the Acceptance Date, to
the extent necessary, the Company (acting through the
Compensation Committee of the Board of Directors) will take all
steps that may be necessary or reasonably advisable to cause any
employee agreement, plan or arrangement pursuant to which
consideration is payable to any officer, director or employee to
be approved by the Compensation Committee of the Board of
Directors (comprised solely of “independent directors”
determined in accordance with the requirements of
Rule 14d-10(d)(2)
under the 1934 Act and the instructions thereto) as an
“employment compensation, severance or other employee
benefit arrangement” within the meaning of
Rule 14d-10(d)(2)
and to satisfy the requirements of the non-exclusive safe harbor
set forth in
Rule 14d-10(d).
Section 2.10. Adjustments. If,
during the period between the date of this Agreement and the
Effective Time, the outstanding Shares shall be changed into a
different number of shares or a different class (including by
reason of any reclassification, recapitalization, stock split or
combination, exchange or readjustment of Shares, or stock
dividend thereon with a record date during such period, but
excluding any change that results from any exercise of Company
Stock Options), the cash payable pursuant to the Offer, the
Merger Consideration and any other amounts payable pursuant to
this Agreement shall be appropriately adjusted.
Section 2.11. Withholding
Rights. Notwithstanding anything else contained
herein to the contrary, each of the Surviving Corporation and
Parent shall be entitled to deduct and withhold from the
consideration otherwise payable to any Person pursuant to
Article 1 and Article 2 such amounts as it is required
to deduct and withhold with respect to the making of such
payment under any provision of Tax law. If the Surviving
Corporation or Parent, as the case may be, so withholds amounts,
such amounts shall be treated for all purposes of this Agreement
as having been paid to the Person in respect of which the
Surviving Corporation or Parent, as the case may be, made such
deduction and withholding.
Section 2.12. Lost
Certificates. If any Certificate shall have been
mutilated, lost, stolen or destroyed, upon the making of an
affidavit of that fact by the Person claiming such Certificate
to be mutilated, lost, stolen or destroyed, the completion of
the letter of transmittal by such Person and, if required by the
Surviving Corporation, the posting by such Person of a bond, in
such reasonable amount as the Surviving Corporation may direct,
as indemnity against any claim that may be made against it with
respect to such Certificate, the Exchange Agent shall pay, in
exchange for such mutilated, lost, stolen or destroyed
Certificate, the Merger Consideration to be paid in respect of
the Shares represented by such Certificate as contemplated by
this Article 2.
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ARTICLE 3
The
Surviving Corporation
Section 3.01. Certificate
of Incorporation. The certificate of
incorporation of the Company in effect at the Effective Time
shall, subject to the provisions of Section 7.03 hereof, be
the certificate of incorporation of the Surviving Corporation
until amended in accordance with Delaware Law.
Section 3.02. Bylaws. The
bylaws of Merger Subsidiary in effect at the Effective Time
shall, subject to the provisions of Section 7.03 hereof, be
the bylaws of the Surviving Corporation until amended in
accordance with Delaware Law.
Section 3.03. Directors
and Officers. From and after the Effective Time,
until successors are duly elected or appointed and qualified in
accordance with Delaware Law, (a) the directors of Merger
Subsidiary at the Effective Time shall be the directors of the
Surviving Corporation and (b) the officers of the Company
at the Effective Time shall be the officers of the Surviving
Corporation.
ARTICLE 4
Representations
and Warranties of the Company
Except as disclosed in (a) the Company SEC Documents filed
with the SEC prior to the date hereof (the “Filed SEC
Documents”) or (b) the disclosure schedule
delivered by the Company to Parent and Merger Subsidiary prior
to or simultaneously with the execution of this Agreement (the
“Company Disclosure Schedule”), the Company
represents and warrants to Parent that:
Section 4.01. Corporate
Existence and Power. The Company is a corporation
duly incorporated, validly existing and in good standing under
the laws of the State of Delaware and has all corporate powers
and all governmental licenses, authorizations, permits, consents
and approvals required to carry on its business in substantially
the same manner as now conducted, except for those licenses,
authorizations, permits, consents and approvals (a) set
forth in Section 4.01 of the Company Disclosure Schedule or
(b) the absence of which would not reasonably be expected
to have, individually or in the aggregate, a Company Material
Adverse Effect. The Company is duly qualified to do business as
a foreign corporation and is in good standing in each
jurisdiction where such qualification is necessary, except for
those jurisdictions where failure to be so qualified would not
reasonably be expected to have, individually or in the
aggregate, a Company Material Adverse Effect. The Company has
heretofore made available to Parent true and complete copies of
the certificate of incorporation and bylaws of the Company as
currently in effect.
Section 4.02. Corporate
Authorization. (a) The execution, delivery
and performance by the Company of this Agreement and the
consummation by the Company of the transactions contemplated
hereby are within the Company’s corporate powers and,
except for any required approval of the Company’s
stockholders in connection with the consummation of the Merger,
have been duly authorized by all necessary corporate action on
the part of the Company. The affirmative vote of the holders of
a majority of the outstanding Shares (if required by Delaware
Law) is the only vote of the holders of any of the
Company’s capital stock required in connection with the
consummation of the Merger (the “Company Stockholder
Approval”) This Agreement constitutes a valid and
binding agreement of the Company.
(b) At a meeting duly called and held, the Board of
Directors has (i) determined that this Agreement and the
transactions contemplated hereby are fair to and in the best
interests of the Company’s stockholders, (ii) approved
and adopted this Agreement and the transactions contemplated
hereby, including the Offer and the Merger, and declared this
Agreement advisable, in accordance with the requirements of
Delaware Law and (iii) resolved (subject to
Section 6.04(b)) to recommend acceptance of the Offer and
adoption of this Agreement by the stockholders of the Company
(the “Company Board Recommendation”).
Section 4.03. Governmental
Authorization. The execution, delivery and
performance by the Company of this Agreement and the
consummation by the Company of the transactions contemplated
hereby require no action by or in respect of, or filing with,
any Governmental Authority, other than (a) the filing of a
certificate
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of merger (or certificate of ownership and merger) with respect
to the Merger with the Delaware Secretary of State,
(b) compliance with any applicable Antitrust Laws,
(c) compliance with any applicable requirements of the
1934 Act and any other applicable U.S. state or
federal securities laws, (d) compliance with any applicable
rules and regulations of the Nasdaq Global Select Market and
(e) any actions or filings the absence of which would not
reasonably be expected to have, individually or in the
aggregate, a Company Material Adverse Effect.
Section 4.04. Non-contravention. Except
as set forth in Section 4.04 of the Company Disclosure
Schedule, the execution, delivery and performance by the Company
of this Agreement and the consummation by the Company of the
transactions contemplated hereby do not and will not
(a) contravene, conflict with, or result in any violation
or breach of any provision of the certificate of incorporation
or bylaws of the Company, (b) assuming compliance with the
matters referred to in Section 4.03, contravene, conflict
with, or result in a violation or breach of any provision of
applicable Law or any judgment, injunction, order or decree of
any Governmental Authority with competent jurisdiction,
(c) require any consent or other action by any Person
under, constitute a default, or an event that, with or without
notice or lapse of time or both, could become a default, under,
or cause or permit the termination, cancellation, acceleration
or other change of any right or obligation or the loss of any
benefit to which the Company or any of its Subsidiaries is
entitled under any provision of any agreement or other
instrument binding upon the Company or any of its Subsidiaries
or any license, franchise, permit, certificate, approval or
other similar authorization affecting, or relating in any way
to, the assets or business of the Company and its Subsidiaries
or (d) result in the creation or imposition of any Lien on
any asset of the Company or any of its Subsidiaries, except, in
the case of clauses (b) through (d), for such matters as
would not reasonably be expected to have, individually or in the
aggregate, a Company Material Adverse Effect.
Section 4.05. Capitalization. (a) The
authorized capital stock of the Company consists of
100,000,000 Shares and 5,000,000 shares of preferred
stock. As of January 20, 2008 there were outstanding
34,844,346 Shares (of which an aggregate of 16,150 are
Company Restricted Shares), no shares of preferred stock,
Company Stock Options to purchase an aggregate of
4,895,184 Shares (of which options to purchase an aggregate
of 3,922,382 Shares were exercisable) and Company
Performance Units with respect to 43,104 Shares. All
outstanding shares of capital stock of the Company have been,
and all shares that may be issued upon exercise of Company Stock
Options or delivered in settlement of Company Performance Units
will be, when issued in accordance with the respective terms
thereof, duly authorized and validly issued and fully paid and
nonassessable and free of preemptive rights. Section 4.05
of the Company Disclosure Schedule contains a list of
(i) each outstanding Company Stock Option, including the
holder, date of grant, exercise price, number of Shares subject
thereto and the number of such Shares that have vested and
(ii) all outstanding Company Restricted Shares and Company
Performance Units, including with respect to each such share or
unit, the holder, date of grant and number vested, and such list
is complete and accurate in all material respects.
(b) Except for the Company’s obligations under the
Rights Agreement and the Company Rights issued pursuant thereto,
except as set forth in this Section 4.05 and for changes
since January 20, 2008 resulting from the exercise of
Company Stock Options outstanding on such date and the purchase
of Shares pursuant to the Company ESPP in accordance with its
terms as in effect on the date hereof, there are no outstanding
(i) shares of capital stock of or other voting securities
or ownership interests in the Company or (ii) options or
other rights to acquire from the Company, or other obligation of
the Company to issue, any capital stock or other voting
securities or ownership interests in, or any securities
convertible into or exchangeable or exercisable for capital
stock or other voting securities or ownership interests in, the
Company (the items in clauses (i) and (ii) being
referred to collectively as the “Company
Securities”). There are no outstanding obligations of
the Company or any of its Subsidiaries to repurchase, redeem or
otherwise acquire any of the Company Securities.
(c) Except as set forth in Section 4.05 of the Company
Disclosure Schedule, none of (i) the Shares or
(ii) Company Securities are owned by any Subsidiary of the
Company.
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Section 4.06. Subsidiaries.
(a) Each Subsidiary of the Company is a corporation duly
incorporated, validly existing and in good standing under the
laws of its jurisdiction of incorporation, has all corporate
powers and all governmental licenses, authorizations, permits,
consents and approvals required to carry on its business in
substantially the same manner as now conducted, except for those
licenses, authorizations, permits, consents and approvals the
absence of which would not reasonably be expected to have,
individually or in the aggregate, a Company Material Adverse
Effect. Each such Subsidiary is duly qualified to do business as
a foreign corporation and is in good standing in each
jurisdiction where such qualification is necessary, except for
those jurisdictions where failure to be so qualified would not
reasonably be expected to have, individually or in the
aggregate, a Company Material Adverse Effect. Except as set
forth in Section 4.06(a) of the Company Disclosure
Schedule, all Subsidiaries of the Company and their respective
jurisdictions of incorporation are identified in the Company
10-K. Except
for Subsidiaries of the Company, neither the Company nor any of
its Subsidiaries owns more than 5% of the outstanding equity
interests in any Person.
(b) Except as set forth in Section 4.06(b) of the
Company Disclosure Schedule, all of the outstanding capital
stock of or other voting securities or ownership interests in
each Subsidiary of the Company is owned by the Company, directly
or indirectly, free and clear of any Lien and free of any other
limitation or restriction (including any restriction on the
right to vote, sell or otherwise dispose of such capital stock
or other voting securities or ownership interests). Except as
set forth in the preceding sentence, there are no outstanding
(i) shares of capital stock of or other voting securities
or ownership interests in any Subsidiary of the Company or
(ii) options or other rights to acquire from the Company or
any of its Subsidiaries, or other obligation of the Company or
any of its Subsidiaries to issue, any capital stock of or other
voting securities or ownership interests in, or any securities
convertible into or exchangeable or exercisable for any capital
stock of or other voting securities or ownership interests in,
any Subsidiary of the Company (the items in clauses (i) and
(ii) being referred to collectively as the “Company
Subsidiary Securities”). There are no outstanding
obligations of the Company or any of its Subsidiaries to
repurchase, redeem or otherwise acquire any of the Company
Subsidiary Securities.
Section 4.07. SEC
Filings. (a) The Company has made available
to Parent (i) the Company’s annual report on
Form 10-K
for the year ended December 31, 2006 (the “Company
10-K”),
(ii) its quarterly reports on
Form 10-Q
for the quarters ended March 31, 2007, June 30, 2007
and September 30, 2007, (iii) its proxy or information
statements relating to meetings of the stockholders of the
Company held (or actions taken without a meeting by such
stockholders) since December 31, 2006, and (iv) all of
its other reports, statements, schedules and registration
statements filed by the Company with the SEC since
December 31, 2006 (the documents referred to in this
Section 4.07(a), collectively, the “Company SEC
Documents”). As of its date (or, if amended prior to
the date hereof, as of the date of the last such amendment),
each Company SEC Document complied as to form in all material
respects with the applicable requirements of the 1933 Act
and the 1934 Act, as the case may be, and did not contain
any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make
the statements made therein, in the light of the circumstances
under which they were made, not misleading.
(b) The Company has established and maintains disclosure
controls and procedures (as defined in
Rule 13a-15
under the 1934 Act). Such disclosure controls and
procedures are designed to ensure that information required to
be disclosed in the Company’s periodic reports filed or
submitted under the 1934 Act is recorded, processed,
summarized and reported within the required time periods. Such
disclosure controls and procedures are effective in timely
alerting the Company’s principal executive officer and
principal financial officer to material information required to
be included in the Company’s periodic reports required
under the 1934 Act.
(c) The Company has established and maintains a system of
internal control over financial reporting (as defined in
Rule 13a-15
under the 1934 Act). Such internal controls are designed to
provide reasonable assurance regarding the reliability of the
Company’s financial reporting and the preparation of
Company financial statements for external purposes in accordance
with GAAP. The Company has disclosed, based on its most recent
evaluation of internal controls prior to the date hereof, to the
Company’s auditors and audit committee (i) any
significant deficiencies and material weaknesses in the design
or operation of internal controls which are reasonably likely to
adversely affect the Company’s ability to record, process,
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summarize and report financial information and (ii) any
fraud, whether or not material, that involves management or
other employees who have a significant role in internal
controls. The Company has made available to Parent a summary of
any such disclosure made by management to the Company’s
auditors and audit committee since January 1, 2005.
(d) Since January 1, 2005, each Company SEC Document
that was required to be accompanied by the certifications
required to be filed or submitted by the Company’s
principal executive officer and principal financial officer
pursuant to the Xxxxxxxx-Xxxxx Act was accompanied by such
certification and, at the time of filing or submission of each
such certification, such certification was true and accurate and
complied with the Xxxxxxxx-Xxxxx Act.
(e) There are no outstanding loans or other extensions of
credit made by the Company or any of its Subsidiaries to any
executive officer (as defined in
Rule 3b-7
under the 0000 Xxx) or director of the Company. The Company
has complied, since January 1, 2005, in all material
respects with the Xxxxxxxx-Xxxxx Act.
Section 4.08. Financial
Statements. The consolidated financial statements
of the Company (including all related notes and schedules)
included in the Company SEC Documents fairly present in all
material respects the consolidated financial position of the
Company and its consolidated Subsidiaries as of the dates
thereof and the consolidated results of their operations and
their cash flows for the periods then ended (subject, in the
case of unaudited interim financial statements, to normal
year-end audit adjustments and the absence of notes as permitted
by
Form 10-Q)
in conformity with United States generally accepted accounting
principles (“GAAP”) applied on a consistent
basis (except as may be indicated in the notes thereto). For
purposes of this Agreement, “Company Balance
Sheet” means the consolidated balance sheet of the
Company as set forth in the Company’s Quarterly Report on
Form 10-Q
for the quarter ended September 30, 2007, and
“Company Balance Sheet Date” means
September 30, 2007.
Section 4.09. Disclosure
Documents. (a) Each document required to be
filed by the Company with the SEC or required to be distributed
or otherwise disseminated to the Company’s stockholders in
connection with the transactions contemplated by this Agreement
(the “Company Disclosure Documents”), including
the
Schedule 14D-9,
and any amendments or supplements thereto, when filed,
distributed or disseminated, as applicable, will comply as to
form in all material respects with the applicable requirements
of the 0000 Xxx.
(b) The information with respect to the Company or any of
its Subsidiaries that the Company furnishes to Parent in writing
specifically for use in the Schedule TO and the Offer
Documents, at the time of the filing of the Schedule TO or
any amendment or supplement thereto, at the time of any
distribution or dissemination of the Offer Documents and at the
time of the consummation of the Offer, will not contain any
untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements made
therein, in the light of the circumstances under which they were
made, not misleading.
Section 4.10. Absence
of Certain Changes. Except as set forth in
Section 4.10 of the Company Disclosure Schedule, since the
Company Balance Sheet Date, the business of the Company and its
Subsidiaries has been conducted in the ordinary course
consistent with past practices and there has not been
(a) any event, occurrence, development or state of
circumstances or facts that has had or would reasonably be
expected to have, individually or in the aggregate, a Company
Material Adverse Effect; (b) any amendment to the articles
of incorporation or bylaws of the Company; (c) any split,
combination or reclassification of any shares of the
Company’s capital stock or declaration, setting aside or
payment of any dividend or other distribution (whether in cash,
stock or property or any combination thereof) in respect of the
Company’s capital stock, or redemption, repurchase or other
acquisition or offer to redeem, repurchase or otherwise acquire
any Company Securities; (d) any sale, assignment, license
or other transfer of any Necessary Intellectual Property or
Company Intellectual Property (or any rights therein) or
acquisition of any material Intellectual Property other than in
the ordinary course of business consistent with past practices;
(e) except as required by the terms of an applicable plan
or agreement then in effect or as required or deemed advisable
pursuant to applicable Law and except as would not result in an
expense greater than $25,000 in the aggregate, (i) any
increase in compensation, bonuses or other benefits payable to
any director or executive officer or, except in the ordinary
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course of business consistent with past practices, other
employee of the Company or any of its Subsidiaries or
(ii) any entering into, adoption or amendment in any
material respect of any employment, change of control,
severance, compensation, bonus, profit-sharing, stock option or
other stock related rights or other forms of incentive or
deferred compensation, retirement benefits or other benefit
agreement, plan, arrangement or policy applicable to any
director or executive officer or, except in the ordinary course
of business consistent with past practices, any other employee
of the Company or any of its Subsidiaries; or (f) any
resolution, commitment or agreement to take any of the actions
described in clauses (b) through (e) of this
Section 4.10.
Section 4.11. No
Undisclosed Material Liabilities. There are no
liabilities or obligations of the Company or any of its
Subsidiaries of any kind whatsoever, whether accrued,
contingent, absolute, determined, determinable or otherwise,
other than:
(a) liabilities or obligations disclosed or provided for in
the Company Balance Sheet or in the Filed SEC Documents;
(b) liabilities or obligations incurred in the ordinary
course of business consistent with past practices;
(c) liabilities or obligations that would not reasonably be
expected to have, individually or in the aggregate, a Company
Material Adverse Effect; and
(d) liabilities or obligations incurred in connection with
the transactions contemplated by this Agreement.
Section 4.12. Compliance
with Laws and Court Orders. Except as set forth
in Section 4.12 of the Company Disclosure Schedule, the
Company and each of its Subsidiaries is (and since
December 31, 2005 has been) in compliance with, and to the
knowledge of the Company is not under investigation with respect
to, and has not been threatened to be charged with, or given
notice of any violation of, any provision of applicable Law or
any judgment, injunction, order or decree of any Governmental
Authority with competent jurisdiction, except for such matters
as would not reasonably be expected to have, individually or in
the aggregate, a Company Material Adverse Effect.
This Section 4.12 excludes the subject matters covered by
Sections 4.07, 4.14, 4.17 and 4.19.
Section 4.13. Litigation. Except
as set forth in Section 4.13 of the Company Disclosure
Schedule, there is no action, suit, investigation or proceeding
pending against, or, to the knowledge of the Company, threatened
against or otherwise affecting, the Company, any of its
Subsidiaries, any of their respective properties or, to the
knowledge of the Company, any present or former officer,
director or employee of the Company or any of its Subsidiaries,
that would reasonably be expected to have, individually or in
the aggregate, a Company Material Adverse Effect.
Section 4.14. Taxes. (a) Except
as set forth in Section 4.14(a) of the Company Disclosure
Schedule, each Tax Return required to be filed with any Taxing
Authority by, or on behalf of, the Company or any of its
Subsidiaries has been timely filed and each such Tax Return is
true and complete in all respects, except where the failure to
timely file or to be true and complete would not, individually
or in the aggregate, reasonably be expected to have a Company
Material Adverse Effect.
(b) Except as set forth in Section 4.14(b) of the
Company Disclosure Schedule and except for such matters as would
not, individually or in the aggregate, reasonably be expected to
have a Company Material Adverse Effect, the Company and each of
its Subsidiaries has paid (or has had paid on its behalf) or has
withheld and remitted to the appropriate Taxing Authority all
Taxes shown as due and payable on all Tax Returns that have been
filed.
(c) The consolidated federal income Tax Returns for the
affiliated group of which the Company is the common parent
through the Tax year ended December 31, 2004 have been
examined and the examinations have been closed or are Tax
Returns with respect to which the applicable period for
assessment under Law, after giving effect to extensions or
waivers, has expired.
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(d) Except as set forth in Section 4.14(d) of the
Company Disclosure Schedule, there is no audit, examination, or
proceeding by any Taxing Authority now pending or, to the
Company’s knowledge, threatened against or with respect to
the Company or its Subsidiaries in respect of any Tax that would
reasonably be expected to have, individually or in the
aggregate, a Company Material Adverse Effect.
(e) During the two-year period ending on the date hereof,
neither the Company nor any of its Subsidiaries has constituted
either a “distributing corporation” or a
“controlled corporation” (within the meaning of
Section 355(a)(1)(A) of the Code).
(f) Neither the Company nor any of its Subsidiaries has
been required to disclose to the Internal Revenue Service that
it has participated in a “listed transaction” within
the meaning of Treasury
Regulation Section 1.6011-4(b).
(g) For purposes of this Agreement:
“Tax” (and, with correlative meaning,
“Taxes”) means (i) all taxes, charges,
fees, duties, levies, penalties or other assessments, including
income, gross receipts, excise, real and personal property,
sales, use, transfer, license, payroll, social security,
medicare, franchise, gains, built-in gains, unemployment
insurance, escheat, workers’ compensation, employer health
tax or other taxes, imposed by any Governmental Authority
(including withholding on amounts paid to or by any Person),
together with any interest, penalty, addition to tax or
additional amount imposed by any Governmental Authority (a
“Taxing Authority”) responsible for the
imposition of any such tax (domestic or foreign), and any
liability for any of the foregoing as transferee,
(ii) liability for the payment of any amount of the type
described in clause (i) as a result of being or having been
before the Effective Time a member of an affiliated,
consolidated, combined or unitary group or similar arrangement
required or permitted under applicable Law.
“Tax Return” means any report, return,
document, declaration or other information or filing required to
be supplied to any Taxing Authority with respect to Taxes,
including information returns, any documents with respect to or
accompanying payments of estimated Taxes, or with respect to or
accompanying requests for the extension of time in which to file
any such report, return, document, declaration or other
information.
Section 4.15. Labor
and Employment. (a) The Company and its
Subsidiaries have complied with all Laws relating to labor and
employment, including those relating to wages, hours, collective
bargaining, unemployment compensation, worker’s
compensation, equal employment opportunity, age and disability
discrimination, immigration control, employee classification,
information privacy and security, payment and withholding of
taxes, and continuation coverage with respect to group health
plans, except for such matters as would not reasonably be
expected to have, individually or in the aggregate, a Company
Material Adverse Effect.
(b) Except as set forth in Section 4.15(b) of the
Company Disclosure Schedule, neither the Company nor any of its
Subsidiaries is a party to or subject to, or is currently
negotiating in connection with entering into, any collective
bargaining agreement or other labor agreement with any union or
labor organization, and to the knowledge of the Company there
has not been any activity or proceeding of any labor
organization or employee group to organize any such employees.
Furthermore, (i) there are no unfair labor practice charges
or complaints against the Company or any of its Subsidiaries
pending before the National Labor Relations Board;
(ii) there are no labor strikes, slowdowns or stoppages
actually pending or to the knowledge of the Company threatened
against or affecting the Company or any of its Subsidiaries;
(iii) there are no representation claims or petitions
pending before the National Labor Relations Board or any foreign
equivalent; and (iv) there are no grievance or pending
arbitration proceedings against the Company or any of its
Subsidiaries that arose out of or under any collection
bargaining agreement, in each case, except for such matters as
would not reasonably be expected to have, individually or in the
aggregate, a Company Material Adverse Effect.
Section 4.16. Employee
Benefit Plans. (a) Section 4.16(a) of
the Company Disclosure Schedule contains a correct and complete
list identifying each material “employee benefit
plan,” as defined in Section 3(3) of ERISA, each
material employment, severance or similar contract, plan,
arrangement or policy and each other material plan or
arrangement (written or oral) providing for compensation,
bonuses, profit-
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sharing, stock option or other stock related rights or other
forms of incentive or deferred compensation, vacation benefits,
insurance (including any self-insured arrangements), health or
medical benefits, employee assistance program, disability or
sick leave benefits, workers’ compensation, supplemental
unemployment benefits, severance benefits and post-employment or
retirement benefits (including compensation, pension, health,
medical or life insurance benefits) which is maintained,
administered or contributed to by the Company or any Affiliate
and covers any employee or former employee of the Company or any
of its Subsidiaries, or with respect to which the Company or any
of its Subsidiaries has any liability. Copies of such plans
(and, if applicable,related trust or funding agreements or
insurance policies) and all amendments thereto have been made
available to Parent together with the most recent annual report
(Form 5500 including, if applicable, Schedule B
thereto) and tax return (Form 990) prepared in
connection with any such plan or trust. Such plans are referred
to collectively herein as the “Employee Plans.”
Employee Plans that primarily cover any employee or former
employee outside of the United States are referred to herein
collectively as “International Plans” and are
specifically identified in Section 4.16(a) of the Company
Disclosure Schedule by an asterisk.
(b) Neither the Company nor any ERISA Affiliate nor any
predecessor thereof sponsors, maintains or contributes to, or
has in the six-year period preceding the date hereof sponsored,
maintained or contributed to, any employee plan subject to
Title IV of ERISA. The Company does not maintain or
contribute to, or have liability in connection with, any
Employee Plan that is a “defined-benefit” type or
similar actuarial arrangement that primarily covers employees or
former employees outside of the United States, other than any
such arrangements that are mandated by local law.
(c) Neither the Company nor any ERISA Affiliate nor any
predecessor thereof contributes to, or has in the six-year
period preceding the date hereof contributed to, any
multiemployer plan, as defined in Section 3(37) of ERISA (a
“Multiemployer Plan”).
(d) Except for matters that would not reasonably be
expected to have, individually or in the aggregate, a Company
Material Adverse Effect, each Employee Plan has been maintained
in compliance with its terms and with the requirements
prescribed by any and all statutes, orders, rules and
regulations, including ERISA and the Code, which are applicable
to such Employee Plan. Each Employee Plan that is intended to be
qualified under Section 401(a) of the Code has received a
favorable determination letter, or has pending or has time
remaining in which to file, an application for such
determination from the Internal Revenue Service, and the Company
is not aware of any reason why any such determination letter
should be revoked or not be issued. The Company has made
available to Parent copies of the most recent Internal Revenue
Service determination letters with respect to each such Employee
Plan. Except for matters that would not reasonably be expected
to have, individually or in the aggregate, a Company Material
Adverse Effect, no events have occurred with respect to any
Employee Plan that could result in payment or assessment by or
against the Company of any excise taxes under
Sections 4972, 4975, 4976, 4977, 4979, 4980B, 4980D, 4980E
or 5000 of the Code.
(e) Except as set forth in Section 4.16(e) of the
Company Disclosure Schedule, the consummation by the Company of
the transactions contemplated by this Agreement will not (either
alone or together with any other event) entitle any employee or
independent contractor of the Company or any of its Subsidiaries
to any severance, bonus, retirement, job security or similar
benefit or enhance such benefit or accelerate the time of
payment or vesting or trigger any payment or funding (through a
grantor trust or otherwise) of compensation or benefits under,
or increase the amount payable or trigger any other material
obligation pursuant to, any Employee Plan. There is no contract,
plan or arrangement (written or otherwise) covering any employee
or former employee of the Company or any of its Subsidiaries
that, individually or collectively, would entitle any employee
or former employee to any severance or other payment solely as a
result of the transactions contemplated hereby, or could give
rise to the payment of any amount that would not be deductible
pursuant to the terms of Section 280G of the Code.
(f) Neither the Company nor any of its Subsidiaries has any
liability in respect of post-retirement health, medical or life
insurance benefits for retired, former or current employees of
the Company or its Subsidiaries except (i) as required to
avoid excise tax under Section 4980B of the Code or
(ii) for benefits provided during any severance period
pursuant to a written employment or separation plan or agreement
and that in the aggregate do not constitute a material liability
of the Company.
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(g) Except as set forth in Section 4.16(g) of the
Company Disclosure Schedule or as required or deemed advisable
by applicable Law, there has been no amendment to, written
interpretation or announcement (whether or not written) by the
Company or any of its Affiliates relating to, or change in
employee participation or coverage under, an Employee Plan which
would increase the expense of maintaining such Employee Plan
above the level of the expense incurred in respect thereof for
the fiscal year ended December 31, 2006 by an amount that
would reasonably be expected to have, individually or in the
aggregate, a Company Material Adverse Effect.
(h) For purposes of this Agreement:
“ERISA” means the Employee Retirement Income
Security Act of 1974.
“ERISA Affiliate” of any entity means any other
entity that, together with such entity, would be treated as a
single employer under Section 414 of the Code.
Section 4.17. Environmental
Matters. (a) Except as would not reasonably
be expected to have, individually or in the aggregate, a Company
Material Adverse Effect:
(i) no notice, notification, demand, request for
information, citation, summons or order has been received, no
complaint has been filed, no penalty has been assessed, and no
investigation, action, claim, suit, proceeding or review is
pending or, to the knowledge of the Company, is threatened by
any Governmental Authority or other Person relating to the
Company or any of its Subsidiaries and relating to or arising
out of any alleged violation of or liability under any
Environmental Law or Environmental Permit, or seeking costs,
damages, fines, penalties or injunctive relief relating to any
Hazardous Substance;
(ii) the Company and its Subsidiaries have all required
Environmental Permits and are and have been in compliance with
all Environmental Laws and Environmental Permits; and
(iii) there are no liabilities or obligations of the
Company or any of its Subsidiaries of any kind whatsoever,
whether accrued, contingent, absolute, determined, determinable
or otherwise, arising under or relating to any Environmental
Law, Environmental Permit or any Hazardous Substance.
(b) There has been no material environmental site
investigation, environmental report or other written
environmental analysis that is in the possession or control of
the Company or any of its Subsidiaries in relation to the
current or former business of, or any property or facility now
or previously owned, leased or operated by, the Company or any
of its Subsidiaries that has not been provided to Parent at
least five Business Days prior to the date hereof.
(c) Neither the Company nor any of its Subsidiaries owns,
leases or operates or has owned, leased or operated any real
property, or conducts or has conducted any operations, in New
Jersey or Connecticut. The consummation of the transactions
contemplated hereby require no filings to be made or actions to
be taken pursuant to any Environmental Law or Environmental
Permit.
(d) For purposes of this Section 4.17, the terms
“Company” and “Subsidiaries”
shall include any entity that is, in whole or in part, a
predecessor of the Company or any of its Subsidiaries, and for
purposes of this Agreement
“Environmental Laws” means any Law, permit
requirement, judgment, injunction, order or decree of, or
agreement with, any Governmental Authority or other third party
relating to the protection of the environment, employee health
and safety or pollutants, contaminants or otherwise hazardous
substances, wastes or materials, including exposure thereto.
“Environmental Permits” means all permits,
licenses, franchises, certificates, approvals and other similar
authorizations of or from Governmental Authorities relating to
or required by Environmental Laws and affecting, or relating to,
the business of the Company or any of its Subsidiaries as
currently conducted.
“Hazardous Substance” means any pollutant,
contaminant or chemical or any toxic, radioactive, ignitable,
corrosive, reactive or otherwise hazardous substance, waste
(including infectious and medical waste) or
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material, or any substance, waste or material having any
constituent elements displaying any of the foregoing
characteristics, listed, defined or regulated under any
Environmental Law.
Section 4.18.
Material Contracts. Except as set forth in the
Filed SEC Documents, neither the Company nor any of its
Subsidiaries is a party to or bound by any “material
contract” (as such term is defined in item 601(b)(10)
of
Regulation S-K
of the SEC) (all such contracts, the “Material
Contracts”).
True and complete copies of all such Material Contracts and all
amendments to or waivers thereunder have been made available by
the Company to Parent. Except for breaches, violations or
defaults which would not reasonably be expected to have,
individually or in the aggregate, a Company Material Adverse
Effect, (a) each of the Material Contracts is valid and in
full force and effect and (b) neither the Company nor any
of its Subsidiaries, nor to the Company’s knowledge any
other party to a Material Contract, has violated any provision
of, or taken or failed to take any act which, with or without
notice or lapse of time or both, would constitute a default
under the provisions of such Material Contract, and neither the
Company nor any of its Subsidiaries has received notice that it
has breached, violated or defaulted under any Material Contract.
Other than exclusive distributor arrangements entered into in
the ordinary course of business consistent with past practice,
and except as would not, individually or in the aggregate,
reasonably be expected to have a Company Material Adverse Effect
or a material adverse effect on the operations of Parent and its
Subsidiaries, neither the Company nor any of its Subsidiaries is
party to any agreement or arrangement that limits or otherwise
restricts the ability of the Company or any of its Subsidiaries
(or, after the consummation of the Offer or the Merger, Parent,
the Company or any of their respective Subsidiaries or any
successor thereto) to engage or compete in any line of business,
in any location or with any Person.
Section 4.19.
Intellectual Property. (a) For purposes of
this Agreement,
“Intellectual Property” means all U.S. and
foreign (i) patents and all proprietary rights associated
therewith, (ii) trademarks, service marks, trade names,
trade dress, domain names, brand names, certification marks,
corporate names and other indications of origin, together with
all goodwill related to the foregoing, (iii) copyrights and
designs and all rights associated therewith and the underlying
works of authorship, (iv) all inventions, trade secrets,
processes, formulae, methods, schematics, drawings, blue prints,
technology, know-how, software, discoveries, ideas and
improvements, (v) all registrations of any of the foregoing
and all applications therefor and (vi) other proprietary or
confidential information and materials.
“Company Intellectual Property” means all
Intellectual Property that is owned or exclusively licensed by
the Company or any of its Subsidiaries, and includes without
limitation all of the Company Registered Intellectual Property
as defined below.
(b) Except as set forth in Section 4.19(b) of the
Company Disclosure Schedule or as would not, individually or in
the aggregate, reasonably be expected to have a Company Material
Adverse Effect: (i) the Company and its Subsidiaries own,
or otherwise possess legally enforceable rights to use all
Intellectual Property necessary to conduct the business of the
Company and its Subsidiaries as currently conducted (the
“Necessary Intellectual Property”),
(ii) the execution and delivery of this Agreement by the
Company and the consummation of the transactions contemplated by
this Agreement will not alter, encumber, impair or extinguish
any Necessary Intellectual Property or any of the Company and
its Subsidiaries’ material rights therein, other than with
respect to off the shelf software that is commercially available
on nondiscriminatory pricing terms (“Off-the-Shelf
Software”), (iii) there is no claim, action, suit,
investigation or proceeding pending or, to the knowledge of the
Company, threatened against the Company or any of its
Subsidiaries (A) challenging or seeking to deny or restrict
the rights of the Company or any of its Subsidiaries in any
Necessary Intellectual Property, or (B) alleging that any
services provided, processes used or products manufactured or
sold by or on behalf of the Company or any of its Subsidiaries
infringe, violate or otherwise misappropriate any Intellectual
Property right of any third party, or that the Company or any of
its Subsidiaries have done so within the past two years,
(iv) there are no restrictions on the disclosure, use,
license or transfer by the Company of the Company Intellectual
Property or the Necessary Intellectual Property and (v) no
third party has been granted any current or contingent license
or immunity to sell, license or otherwise distribute products or
services utilizing the Company Intellectual Property.
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(c) Section 4.19(c) of the Company Disclosure Schedule
lists all material (i) patents and patent applications,
(ii) trademark, trade name and service xxxx registrations
(including Internet domain name registrations) and applications
therefor and (iii) copyright registrations and applications
included in the Company Intellectual Property (collectively,
“Company Registered Intellectual Property”).
All applications for Company Registered Intellectual Property
are without challenge, all registrations of Company Registered
Intellectual Property are in force, and all annuity,
maintenance, renewal and other fees that have become due
relating to any Company Registered Intellectual Property have
been properly paid in accordance with all applicable
requirements. Except as would not, individually or in the
aggregate, reasonably be expected to have a Company Material
Adverse Effect, the Company and its Subsidiaries are the sole
and exclusive owners of the Company Intellectual Property
(excluding Intellectual Property that is licensed exclusively by
the Company or any of its Subsidiaries), free and clean of any
Liens.
(d) Except as set forth in Section 4.19(d) of the
Company Disclosure Schedule or as would not, individually or in
the aggregate, reasonably be expected to have a Company Material
Adverse Effect, none of the Company Intellectual Property has
been adjudged (by consent or otherwise) invalid, unenforceable,
not owned solely by the Company, or not infringed; and no claims
with respect to Company Intellectual Property are pending, or to
the knowledge of the Company, threatened by any Person
challenging the ownership, validity, enforceability or
effectiveness of any of the Company Intellectual Property.
(e) The Company and its Subsidiaries have used reasonable
commercial efforts to maintain the confidentiality of all
material Company Intellectual Property the value of which is
contingent upon maintaining the confidentiality thereof. Except
as set forth in Section 4.19(e) of the Company Disclosure
Schedule, to the knowledge of the Company, no such Intellectual
Property has been disclosed other than to employees,
representatives and agents all of whom are bound by written
confidentiality agreements. Except as would not, individually or
in the aggregate, reasonably be expected to have a Company
Material Adverse Effect, the Company and its Subsidiaries have
appropriate procedures in place designed to provide that all
Intellectual Property conceived by their employees as a result
of performing their duties for the Company and its Subsidiaries
and third parties performing research and development for them
have been assigned or are required to be assigned to the Company
or any of its Subsidiaries. To the knowledge of the Company, the
Company and its Subsidiaries are in material compliance with all
confidentiality agreements and other protective agreements to
which they are a party that protect the Intellectual Property of
third parties.
(f) To the knowledge of the Company, no party other than
the Company or its Subsidiaries possesses any current or
contingent rights to any material source code that is part of
the Company Intellectual Property.
(g) To the knowledge of the Company, no third party is
infringing any Company Intellectual Property in a manner that
materially impairs the enforceability of such Company
Intellectual Property.
Section 4.20. Finders’
Fees. Except for (a) Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated and Xxxxxxx,
Sachs & Co. (the “Company Financial
Advisors”) and (b) P&M Corporate Finance,
LLC, there is no investment banker, broker, finder or other
intermediary that has been retained by or is authorized to act
on behalf of the Company or any of its Subsidiaries who is
entitled to any fee or commission from the Company or any of its
Affiliates in connection with the transactions contemplated by
this Agreement. The aggregate amount of all such fees or
commissions does not exceed the amount set forth in
Section 4.20 of the Company Disclosure Schedule.
Section 4.21. Opinion
of Financial Advisors. The Board of Directors has
received opinions of the Company Financial Advisors to the
effect that, as of the date of such opinions, the consideration
to be paid in the Offer and the Merger is fair, from a financial
point of view, to the holders of the Shares.
Section 4.22. Anti-takeover
Statutes and Rights Agreement. (a) Assuming
that neither Parent nor any of its Affiliates is an
“interested stockholder” (as defined in
Section 203 of Delaware Law) as of immediately prior to the
execution and delivery of this Agreement, the Company has taken
all action necessary to exempt the Offer, the Merger, this
Agreement and the transactions contemplated hereby from the
restrictions on business combinations of Section 203 of
Delaware Law and, to the extent permissible under applicable
Law, all provisions of
Sections 10-2721
to 10-2727
and
Sections 10-2741
to 10-2743
of the Arizona Revised
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Statutes that apply or purport to apply to the Offer, the
Merger, this Agreement and the transactions contemplated hereby.
To the knowledge of the Company, except for Section 203 of
Delaware Law and such provisions of the Arizona Revised
Statutes, no other “control share acquisition,”
“fair price,” “moratorium” or other
anti-takeover laws enacted under U.S. state or federal laws
apply to this Agreement or any of the transactions contemplated
hereby.
(b) The Company has taken all action necessary to render
the rights (the “Company Rights”) issued
pursuant to the Rights Agreement dated as of May 6, 1998,
between the Company and Xxxxx Fargo Bank, N.A. (as successor to
Norwest Bank Minnesota, N.A.) (the “Rights
Agreement”) inapplicable to the Offer, the Merger, this
Agreement and the transactions contemplated hereby.
ARTICLE 5
Representations
and Warranties of Parent
Parent represents and warrants to the Company that:
Section 5.01. Corporate
Existence and Power. Each of Parent and Merger
Subsidiary is duly incorporated, validly existing and in good
standing under the laws of its jurisdiction of incorporation (to
the extent such jurisdiction recognizes the concept of good
standing) and has all corporate powers and all governmental
licenses, authorizations, permits, consents and approvals
required to carry on its business in substantially the same
manner as now conducted, except for those licenses,
authorizations, permits, consents and approvals the absence of
which would not reasonably be expected to have, individually or
in the aggregate, a Parent Material Adverse Effect.
Section 5.02. Corporate
Authorization. The execution, delivery and
performance by Parent and Merger Subsidiary of this Agreement
and the consummation by Parent and Merger Subsidiary of the
transactions contemplated hereby are within the corporate powers
of Parent and Merger Subsidiary and have been duly authorized by
all necessary corporate action. This Agreement constitutes a
valid and binding agreement of each of Parent and Merger
Subsidiary.
Section 5.03. Governmental
Authorization. The execution, delivery and
performance by Parent and Merger Subsidiary of this Agreement
and the consummation by Parent and Merger Subsidiary of the
transactions contemplated hereby require no action by or in
respect of, or filing with, any Governmental Authority, other
than (a) the filing of a certificate of merger (or
certificate of ownership and merger) with respect to the Merger
with the Delaware Secretary of State, (b) compliance with
any applicable Antitrust Laws, (c) compliance with any
applicable requirements of the 1934 Act or any other
U.S. state or federal securities laws and (d) any
actions or filings the absence of which would not reasonably be
expected to have, individually or in the aggregate, a Parent
Material Adverse Effect.
Section 5.04. Non-contravention. The
execution, delivery and performance by Parent and Merger
Subsidiary of this Agreement and the consummation by Parent and
Merger Subsidiary of the transactions contemplated hereby do not
and will not (a) contravene, conflict with, or result in
any violation or breach of any provision of the certificate of
incorporation, bylaws or other organizational documents of
Parent or Merger Subsidiary, (b) assuming compliance with
the matters referred to in Section 5.03, contravene,
conflict with, or result in any violation or breach of any
provision of applicable Law or any judgment, injunction, order
or decree of any Governmental Authority with competent
jurisdiction, (c) require any consent or other action by
any Person under, constitute a default, or an event that, with
or without notice or lapse of time or both, could become a
default, under, or cause or permit the termination,
cancellation, acceleration or other change of any right or
obligation or the loss of any benefit to which Parent or Merger
Subsidiary is entitled under any provision of any agreement or
other instrument binding upon Parent or Merger Subsidiary, or
any license, franchise, permit, certificate, approval or other
similar authorization affecting, or relating in any way to, the
assets or business of Parent or Merger Subsidiary or
(d) result in the creation or imposition of any Lien on any
asset of Parent or Merger Subsidiary except, in the case of
clauses (b) through (d), for such matters as would not
reasonably be expected to have, individually or in the
aggregate, a Parent Material Adverse Effect.
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Section 5.05. Disclosure
Documents. (a) The information with respect
to Parent and any of its Affiliates that Parent furnishes to the
Company in writing specifically for inclusion or incorporation
by reference in any Company Disclosure Document will not contain
any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements made
therein, in the light of the circumstances under which they were
made, not misleading (i) in the case of the proxy or
information statement of the Company (the “Company Proxy
Statement”), if any, to be filed with the SEC in
connection with the Merger, as supplemented or amended, if
applicable, at the time such Company Proxy Statement or any
amendment or supplement thereto is first mailed to stockholders
of the Company and at the time such stockholders vote on
adoption of this Agreement, and (ii) in the case of any
Company Disclosure Document other than the Company Proxy
Statement, at the time of the filing of such Company Disclosure
Document or any supplement or amendment thereto and at the time
of any distribution or dissemination thereof.
(b) The Schedule TO, when amended and filed in
accordance with this Agreement, and the Offer Documents, when
distributed or disseminated in accordance with this Agreement,
will comply as to form in all material respects with the
applicable requirements of the 1934 Act and, at the time of
such filing, at the time of such distribution or dissemination
and at the time of consummation of the Offer, will not contain
any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements made
therein, in the light of the circumstances under which they were
made, not misleading; provided that this representation
and warranty will not apply to statements or omissions in the
Schedule TO and the Offer Documents based upon information
furnished to Parent or Merger Subsidiary in writing by the
Company specifically for inclusion or incorporation by reference
therein.
Section 5.06. Finders’
Fees. Except for Citigroup Global Markets Inc.
and Xxxxxxxxx & Co., LLC, whose fees and expenses will
be paid by Parent, there is no investment banker, broker, finder
or other intermediary that has been retained by or is authorized
to act on behalf of Parent who is entitled to any fee or
commission from Parent or any of its Affiliates in connection
with the transactions contemplated by this Agreement.
Section 5.07. Financing. Merger
Subsidiary has sufficient cash, available lines of credit or
other sources of immediately available funds (or such funds will
be made available to Merger Subsidiary by Parent or an Affiliate
of Parent at each of the Acceptance Date and Effective Time) to
enable it to purchase all of the Shares outstanding on a
fully-diluted basis and to pay all related fees and expenses
pursuant to the Offer and the Merger.
Section 5.08. Operations
of Merger Subsidiary. Merger Subsidiary is an
indirect, wholly owned Subsidiary of Parent that was formed
solely for the purpose of engaging in the Offer, the Merger and
the transactions contemplated by this Agreement, and Merger
Subsidiary has engaged in no business activity, has conducted no
operations and has incurred no liability, other than in
connection with the Offer, the Merger and the transactions
contemplated by this Agreement.
ARTICLE 6
Covenants
of the Company
The Company agrees that:
Section 6.01. Conduct
of the Company. From the date hereof until the
earlier of the Acceptance Date or termination of this Agreement
in accordance with its terms, except as (i) required by
applicable Laws, (ii) contemplated by this Agreement, or
(iii) set forth in Section 6.01 of the Company
Disclosure Schedule, the Company shall, and shall cause each of
its Subsidiaries to, use their respective reasonable best
efforts to conduct their businesses in all material respects in
the ordinary course consistent with past practices and use their
respective reasonable best efforts to (A) preserve intact
their present business organizations, (B) keep available
the services of their officers, employees and consultants, and
(C) maintain relationships with their customers, suppliers
and others having significant business relationships with them.
Without limiting the generality of the foregoing, except as
(x) required by applicable Law, (y) contemplated by
this Agreement, or (z) set forth in Section 6.01 of
the Company Disclosure Schedule, without Parent’s prior
written consent
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(which consent shall not be unreasonably withheld or delayed),
the Company shall not, nor shall it permit any of its
Subsidiaries to:
(a) amend its articles of incorporation, bylaws or other
similar organizational documents (whether by merger,
consolidation or otherwise);
(b) split, combine or reclassify any shares of its capital
stock or declare, set aside or pay any dividend or other
distribution (whether in cash, stock or property or any
combination thereof) in respect of its capital stock except for
dividends payable by any wholly-owned Subsidiaries of the
Company, or redeem, repurchase or otherwise acquire or offer to
redeem, repurchase or otherwise acquire any Company Securities
or any Company Subsidiary Securities;
(c) (i) issue, sell or otherwise deliver, or authorize
the issuance, sale or other delivery of, any Company Securities
or Company Subsidiary Securities, other than (A) the
issuance of Shares upon the exercise of Company Stock Options
that were outstanding on January 20, 2008 in accordance
with the terms of those options on such date and (B) the
issuance by any direct or indirect wholly-owned Subsidiary of
the Company of Company Subsidiary Securities to the Company or
to another direct or indirect wholly owned Subsidiary of the
Company, or the purchase of Shares pursuant to the Company ESPP
in accordance with its terms as in effect on the date hereof or
(ii) amend any term of any Company Security or any Company
Subsidiary Security (whether by merger, consolidation or
otherwise);
(d) incur any capital expenditures or any obligations or
liabilities in respect thereof, except for (i) those
contemplated by the capital expenditure budget attached to
Section 6.01 of the Company Disclosure Schedule,
(ii) any unbudgeted capital expenditures in an amount not
to exceed $2 million individually or $10 million in
the aggregate incurred in the ordinary course of business
consistent with past practices or in connection with the
Company’s current build out at its Tucson, Arizona campus
and (iii) capital expenditures incurred in the ordinary
course of business consistent with past practices in connection
with placement of field assets at customer sites;
(e) make any loans, advances or capital contributions to,
or investments in, any other Person except for loans, advances
and capital contributions in the ordinary course of business
consistent with past practices;
(f) acquire any material assets or property other than
capital expenditures permitted pursuant to Section 6.01(d)
and purchases of inventory and supplies in the ordinary course
of business consistent with past practices;
(g) except as permitted pursuant to Section 6.01(h),
sell, lease, license or otherwise transfer any material assets
or property other than sales of products of the Company and its
Subsidiaries or third parties for whom the Company and its
Subsidiaries act as resellers in the ordinary course of business
consistent with past practices;
(h) sell, assign, license or otherwise transfer any
Necessary Intellectual Property or Company Intellectual Property
(or any rights therein) or acquire any material Intellectual
Property other than in the ordinary course of business
consistent with past practices;
(i) incur, guaranty or otherwise become liable for any
indebtedness for borrowed money other than in the ordinary
course of business consistent with past practices, other than
indebtedness existing solely between the Company and its wholly
owned Subsidiaries or between such wholly owned Subsidiaries;
(j) except as permitted pursuant to Sections 6.01(g)
or 6.01(h), create or incur any material Lien on any material
assets or property;
(k) enter into any agreement or arrangement that limits or
otherwise restricts in any material respect the Company or any
of its Subsidiaries or any successor thereto or that could,
after the consummation of the Offer or the Merger, limit or
otherwise restrict in any material respect Parent, the Company
or any of their respective Affiliates or any successor thereto,
from engaging or competing in any line of business, in any
location or with any Person;
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(l) amend, modify or waive in any material respect or
terminate any Material Contract or enter into any agreement that
would constitute a Material Contract if entered into as of the
date hereof except in the ordinary course of business consistent
with past practices;
(m) except as required by the terms of an applicable plan
or agreement in effect on the date hereof or as required or
deemed advisable pursuant to applicable Law, (i) increase
compensation, bonuses or other benefits payable to any director
or executive officer or, except in the ordinary course of
business consistent with past practices, any other employee of
the Company or any of its Subsidiaries or (ii) enter into,
adopt or amend in any material respect any employment, change of
control, severance, compensation, bonus, profit-sharing, stock
option or other stock related rights or other forms of incentive
or deferred compensation, retirement benefits or other benefit
agreement, plan, arrangement or policy applicable to any
director or executive officer or, except in the ordinary course
of business consistent with past practices, any other employee
of the Company or any of its Subsidiaries;
(n) (i) settle, or propose to settle, any litigation,
investigation, arbitration, proceeding or claim that is material
to the Company and its Subsidiaries taken as a whole or that
relates to the transactions contemplated hereby, or
(ii) waive, release or assign any material rights or claims;
(o) materially change the Company’s methods of
accounting, except as required by concurrent changes in GAAP or
by applicable Law, as agreed to by its independent public
accountants;
(p) except as may be required by Law, make or change any
material Tax election, change any annual Tax accounting period,
adopt or change any method of Tax accounting, materially amend
any Tax Returns or file claims for material Tax refunds, enter
into any material closing agreement, settle any material Tax
claim, audit or assessment, or surrender any right to claim a
material Tax refund, offset or other reduction in Tax
liability; or
(q) resolve, commit or agree to do any of the foregoing.
Section 6.02. Stockholder
Meeting; Proxy Material. If required by Delaware
Law to consummate the Merger, the Company shall cause a meeting
of its stockholders (the “Company Stockholder
Meeting”) to be duly called and held as soon as
reasonably practicable after the Acceptance Date for the purpose
of voting on the adoption of this Agreement; provided
that the Company shall not be required to mail the Company
Proxy Statement or any other proxy materials relating to the
vote of the Company’s stockholders with respect to the
adoption of this Agreement prior to the Acceptance Date. Subject
to Section 6.04(b), the Company Board Recommendation shall
be included in the Company Proxy Statement. In connection with
such meeting, the Company shall, following the Acceptance Date,
(a) promptly prepare and file with the SEC, use its
reasonable best efforts to have cleared by the SEC and
thereafter mail to its stockholders as promptly as practicable
the Company Proxy Statement and all other proxy materials
required by Law for such meeting, (b) use its reasonable
best efforts to obtain the Company Stockholder Approval and
(c) otherwise comply with all legal requirements applicable
to such meeting.
Section 6.03. Access
to Information. From the date hereof until the
Effective Time, the Company shall (a) provide Parent, its
counsel, financial advisors, auditors and other authorized
representatives reasonable access to the properties, offices and
books and records of the Company and its Subsidiaries and such
financial and operating data and other information as such
Persons may reasonably request and (b) instruct the
employees, counsel, financial advisors, auditors and other
authorized representatives of the Company and its Subsidiaries
to cooperate with Parent in its investigation of the Company and
its Subsidiaries. Any investigation pursuant to this
Section 6.03 shall comply with applicable Law and be
conducted during business hours and in such manner so as not to
interfere unreasonably with the conduct of the business of the
Company and its Subsidiaries. No information or knowledge
obtained by Parent in any investigation pursuant to this
Section 6.03 shall affect or be deemed to modify any
representation or warranty made by the Company hereunder.
Nothing in this Section 6.03 shall require the Company
(i) to permit any inspection, or to disclose any
information, that in the reasonable judgment of the Company
would result in the disclosure of any trade secrets of third
Persons or violate any of the Company’s obligations with
respect to confidentiality, (ii) to disclose any privileged
information of the Company or any of its Subsidiaries,
(iii) to disclose any information
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the disclosure of which could, in the reasonable judgment of the
Company, cause significant competitive harm to the Company if
the transactions contemplated hereby are not consummated or
(iv) to permit invasive testing of any of the
Company’s or its Subsidiaries’ real property. In no
event shall the Company be required to supply pursuant to this
Section 6.03 to Parent, or Parent’s representatives,
any information relating to indications of interest from, or
discussions with, any other potential acquirers of the Company,
with respect to which Section 6.04 shall apply. All
requests for access to the offices or books and records of the
Company or its Subsidiaries shall be made to such
representatives of the Company as the Company shall designate,
who shall be solely responsible for coordinating all such
requests and all access permitted hereunder. All information
disclosed by the Company to Parent and its representatives
pursuant hereto shall be subject to the terms of the
Confidentiality Agreement (the “Confidentiality
Agreement”) dated November 13, 2007 between the
Company and Roche Holding Ltd, a joint stock company organized
under the laws of Switzerland (“Holding”).
Section 6.04. No
Solicitation; Change of
Recommendation. (a) Neither the Company nor
any of its Subsidiaries shall, nor shall the Company or any of
its Subsidiaries authorize or permit any of its officers,
directors or employees to (and the Company and its Subsidiaries
shall use their respective reasonable best efforts to cause
their respective counsel, financial advisors, auditors and other
agents and representatives not to) (such counsel, financial
advisors, auditors and other agents and representatives,
together with the officers, directors and employees of the
Company and its Subsidiaries, collectively referred to herein as
the “Company Representatives”), directly or
indirectly:
(i) solicit, initiate or knowingly take any action to
encourage or facilitate the making of an Acquisition Proposal,
(ii) participate in any discussions or negotiations with or
furnish any information with respect to the Company or any of
its Subsidiaries to any third party in connection with an
Acquisition Proposal,
(iii) take any action to render the Company Rights or
Section 203 of Delaware Law inapplicable to any transaction
included in the definition of Acquisition Proposal or grant any
waiver or release under any standstill or similar agreement with
respect to any class of equity securities of the Company or any
of its Subsidiaries, or
(iv) approve or enter into any agreement (including an
agreement in principle, letter of intent, term sheet or other
similar instrument) with respect to an Acquisition Proposal.
Notwithstanding the foregoing, if at any time prior to the
Acceptance Date, the Company receives a bona fide written
Acquisition Proposal that was not solicited on or after the date
of this Agreement, (1) the Company and Company
Representatives may contact the third party or parties making
such Acquisition Proposal solely for the purpose of clarifying
the terms and conditions thereof and (2) if the Board of
Directors determines in good faith (after considering the advice
of its outside legal and financial advisors) that such
Acquisition Proposal is or could be reasonably expected to
result in a Superior Proposal, the Company may:
(x) subject to entering into a confidentiality agreement
with terms no less favorable in the aggregate in any material
respect to the Company than those contained in the
Confidentiality Agreement, furnish information (including
non-public information) with respect to the Company or any of
its Subsidiaries to the third party or parties that made such
Acquisition Proposal and participate in discussions or
negotiations with respect to such Acquisition Proposal;
provided that (i) the Company shall notify Parent
promptly (but in no event later than 24 hours) after
receipt of any Acquisition Proposal or any request for
information with respect to the Company or any of its
Subsidiaries by a third party or parties that has made or is
considering making an Acquisition Proposal or any indication
that a third party is considering making an Acquisition Proposal
(such notice to identify the third party and contain the
material terms and conditions of any such proposal, request or
indication); (ii) the Company shall keep Parent informed,
on a prompt basis, of the status of, and any material changes in
any such proposal, request or indication; and (iii) the
Company shall
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promptly provide to Parent any material information furnished to
the third party that has not previously been provided by
Parent; and
(y) approve and enter into a definitive agreement with
respect to a Superior Proposal and take any actions listed in
Section 6.04(a)(iii) or 6.04(a)(iv), as applicable;
provided that (i) the Company shall have complied in
all material respects with the provisions of this
Section 6.04; (ii) the Company shall have notified
Parent in writing that the Board of Directors has determined
that the Acquisition Proposal is a Superior Proposal and
intends, subject to clause (iii) below, to enter into such
a definitive agreement with respect to the Superior Proposal and
to terminate this Agreement and attaching the most current
version of such agreement (or a summary containing all the
material terms and conditions thereof and identifying the third
party that has made such proposal); (iii) Parent does not
make, within three Business Days after receipt of such written
notice, an offer that the Board of Directors shall have
concluded in good faith (after considering the advice of its
outside legal and financial advisors) causes such Acquisition
Proposal to cease to be a Superior Proposal (it being understood
that the Company shall not enter into an agreement with respect
to the Superior Proposal during such three Business Day period)
and (iv) the Company shall, concurrently with entering into
such definitive agreement, terminate this Agreement and pay the
Termination Fee contemplated by Section 11.04(b).
(b) The Board of Directors shall not fail to make, withdraw
or modify in a manner adverse to Parent the Company Board
Recommendation or publicly recommend or announce its intention
to enter into an agreement (including an agreement in principle,
letter of intent, term sheet or other similar instrument) with
respect to any Acquisition Proposal or otherwise take any action
or make any statement inconsistent with the Company Board
Recommendation (collectively, an “Adverse Recommendation
Change”). Notwithstanding the foregoing, at any time
prior to the Company Stockholder Approval the Board of Directors
may make an Adverse Recommendation Change if the Board of
Directors determines in good faith (after considering the advice
of its outside legal and financial advisors) that the failure to
take such action would be inconsistent with its fiduciary duties
under Delaware Law.
(c) It is understood and agreed that any “stop, look
and listen” communication pursuant to
Rule 14d-9(f)
under the 1934 Act or other factually accurate public
statement by the Company that, in each case, merely describes
the Company’s receipt of an Acquisition Proposal and the
operation of this Agreement with respect thereto and reaffirms
the Company Board Recommendation shall not be deemed to be an
Adverse Recommendation Change. Nothing in this Section 6.04
or elsewhere in this Agreement shall prevent the Board of
Directors from disclosing any information required to be
disclosed under applicable Law or from complying with
Rule 14d-9
or
Rule 14e-2(a)
promulgated under the 1934 Act with respect to an
Acquisition Proposal (or any similar communication to holders of
Shares in connection with the making or amendment of a tender
offer or exchange offer). In addition, nothing in this
Section 6.04 or this Agreement shall prohibit the Company
from taking any action that any court of competent jurisdiction
orders the Company to take.
(d) The Company and its Subsidiaries shall, and shall cause
their officers, directors and employees (and the Company and its
Subsidiaries shall use their respective reasonable best efforts
to cause their respective counsel, financial advisors, auditors,
consultants and other agents and representatives) to cease
immediately and cause to be terminated any and all existing
activities, discussions or negotiations, if any, with any third
party conducted prior to the date hereof with respect to any
Acquisition Proposal. The Company shall promptly request that
each third party, if any, that has executed a confidentiality
agreement in connection with a possible Acquisition Proposal
return or destroy all confidential information heretofore
furnished to such Person by or on behalf of the Company or any
of its Subsidiaries (and all analyses and other materials
prepared by or on behalf of such Person that contains, reflects
or analyzes that information).
(e) For purposes of this Agreement:
“Acquisition Proposal” means any inquiry,
proposal or offer from any Person or Persons (other than Parent
and its Affiliates) relating to any (i) acquisition of
assets of the Company and its Subsidiaries (including
securities of Subsidiaries) representing 20% or more of the
Company’s consolidated assets or revenues,
(ii) acquisition of 20% or more of the outstanding Shares,
(iii) tender offer or exchange offer that if
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consummated would result in any Person beneficially owning 20%
or more of the outstanding Shares or (iv) merger,
consolidation, share exchange, business combination,
recapitalization, reorganization, liquidation, dissolution or
similar transaction involving the Company, in each case, other
than the transactions contemplated by this Agreement.
“Superior Proposal” means any Acquisition
Proposal (with all percentages in the definition of
“Acquisition Proposal” changed to 50%) on terms
that the Board of Directors determines in good faith (after
considering the advice of its outside legal and financial
advisors and taking into account all the terms and conditions of
the Acquisition Proposal) is reasonably likely to be capable of
consummation and is more favorable to the Company’s
stockholders than the Offer and the Merger (after giving effect
to any subsequent offer made by Parent in response to such
Superior Proposal).
ARTICLE 7
Covenants
of Parent
Parent agrees that:
Section 7.01. Obligations
of Merger Subsidiary. Parent shall take all
action necessary (a) to cause Merger Subsidiary to perform
its obligations under this Agreement and to consummate the Offer
and the Merger on the terms and conditions set forth in this
Agreement and (b) to ensure that, prior to the Effective
Time, Merger Subsidiary shall not conduct any business or make
any investments other than as specifically contemplated by this
Agreement.
Section 7.02. Voting
of Shares. Parent shall vote (or cause to be
voted) all Shares beneficially owned by it or any of its
Affiliates in favor of adoption of this Agreement at the Company
Stockholder Meeting.
Section 7.03. Director
and Officer Liability. (a) Parent shall
cause the Surviving Corporation to do the following (and shall
itself do the following as if it were the Surviving Corporation):
(i) for six years after the Effective Time, indemnify and
hold harmless the current and former officers, directors,
employees and employee benefit plan fiduciaries of the Company
or any of its Subsidiaries (each, an “Indemnified
Person”) in respect of acts, omissions or events
occurring at or prior to the Effective Time to the fullest
extent (A) provided in the certificate of incorporation or
bylaws of the Company or the organizational documents of any
Subsidiary of the Company, as applicable, or (B) permitted
by applicable Law, in each case as in effect on the date of this
Agreement;
(ii) for six years after the Effective Time, unless
otherwise required by applicable Law, cause the Surviving
Corporation’s and each of its Subsidiaries’
certificate of incorporation and bylaws or equivalent
organizational documents (or any such documents of any successor
to the business of the Surviving Corporation or any of its
Subsidiaries) to contain provisions regarding limitations on
personal liability of directors and indemnification of, and
advancement of expenses to, Indemnified Persons in respect of
acts, omissions or events occurring at or prior to the Effective
Time that are no less advantageous to the intended beneficiaries
than the corresponding provisions in the Company’s and its
Subsidiaries’ certificate of incorporation and bylaws or
equivalent organizational documents, in each case, as in effect
on the date of this Agreement; provided that if any claim
is asserted against any individual entitled to the protections
of such provisions within such six-year period, such provisions
shall not be modified until the final disposition of any such
claims;
(iii) honor all obligations of the Company to each
Indemnified Person (including rights relating to advancement of
expenses and indemnification rights to which such Indemnified
Persons are entitled because they are serving as a director,
officer, agent or employee of another Person at the request of
the Company or any of its Subsidiaries) in respect of acts,
omissions or events occurring at or prior to the Effective Time
to the fullest extent provided in any indemnification agreements
to which the Company or any Subsidiary of the Company is a party
as of the date hereof, in each case, as in effect on the date of
this Agreement;
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(iv) either (A) continue to maintain in effect for six
years after the Effective Time the Company’s
directors’ and officers’ insurance policies and
fiduciary liability insurance policies (collectively, the
“D&O Insurance”) in place as of the date
hereof with terms, conditions, retentions and limits of
liability that are at least as favorable as those contained in
the Company’s D&O Insurance policies in effect as of
the date hereof or (B) purchase comparable D&O
Insurance for such six-year period with terms, conditions,
retentions and limits of liability that are at least as
favorable as those contained in the Company’s D&O
Insurance policies in effect as of the date hereof; provided
that if the aggregate cost for such insurance coverage
exceeds 300% of the current annual premium paid by the Company
(which current annual premium amount is set forth in
Section 7.03(a)(iv) of the Company Disclosure Schedule),
the Surviving Corporation shall be obligated to obtain D&O
Insurance with the best available coverage with respect to
matters occurring at or prior to the Effective Time for an
aggregate cost of 300% of the current annual premium; and
(v) if Parent or the Surviving Corporation or any of their
respective successors or assigns (A) consolidates with or
merges into any other Person and is not the continuing or
surviving entity, (B) ceases to continue to exist for any
reason, or (C) transfers or conveys all or substantially
all of its properties and assets to any Person, then, and in
each such case, to the extent necessary, ensure that the
successors and assigns of Parent or the Surviving Corporation,
as the case may be, shall assume the obligations set forth in
this Section 7.03.
(b) Any determination required to be made with respect to
whether the conduct of an Indemnified Person who is or was an
officer or director of the Company complies with the standards
set forth under applicable Law, the certificate of incorporation
or bylaws of the Surviving Corporation or any indemnification
agreement to which the Company is a party as of the date hereof,
as the case may be, shall be made by independent legal counsel
jointly selected by such Indemnified Person and Parent.
(c) Nothing in this Section 7.03 shall impair any
rights of any Indemnified Person, and without limiting the
generality of the foregoing, if any Indemnified Person who is or
was an officer or director of the Company becomes involved in
any actual or threatened action, suit, claim, proceeding or
investigation covered by this Section 7.03 after the
Effective Time, Parent shall, or shall cause the Surviving
Corporation to, to the fullest extent permitted by applicable
Law, promptly advance to such Indemnified Person such
Indemnified Person’s legal or other expenses (including the
cost of any investigation and preparation incurred in connection
therewith), subject to the providing by such Indemnified Person
of an undertaking to reimburse all amounts so advanced in the
event of a non-appealable determination of a court of competent
jurisdiction that such Indemnified Person is not entitled
thereto.
(d) The rights of each Indemnified Person under this
Section 7.03 shall be in addition to (and not in
substitution for) any other rights such Indemnified Person may
have under the certificate of incorporation or bylaws of the
Company or equivalent organizational documents of any of its
Subsidiaries, Delaware Law, any agreement with the Company or
any of its Subsidiaries or otherwise and are intended for the
benefit of and shall be enforceable by such Indemnified Person
and such Indemnified Person’s heirs, executors or similar
representatives. The rights under this Section 7.03 shall
survive consummation of the Merger and shall not be amended in a
manner that is adverse to the Indemnified Persons without the
consent of the Indemnified Persons affected thereby.
Section 7.04. Employee
Matters. (a) For a period of one year
following the Effective Time, Parent shall provide to all
employees of the Company or any of its Subsidiaries as of the
Effective Time who continue employment with the Surviving
Corporation or any of its Affiliates (“Continuing
Employees”) with compensation and benefits that are in
the aggregate substantially equivalent to compensation and
benefits provided by the Company and its Subsidiaries as in
effect immediately prior to the Acceptance Date.
(b) Parent shall ensure that, as of the Effective Time,
each Continuing Employee receives full credit for all purposes
(other than the accrual of benefits under a defined benefit
pension plan) for service with the Company or any of its
Subsidiaries (or predecessor employers to the extent the Company
provides such past service credit) under the comparable employee
benefit plans, programs and policies of Parent, the Surviving
Corporation or any Affiliate of the Surviving Corporation, as
applicable, in which such employee becomes a
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participant. With respect to each health or other welfare
benefit plan maintained by Parent or the Surviving Corporation
or any Affiliate of the Surviving Corporation, as applicable,
for the benefit of any Continuing Employees, Parent shall
(i) cause to be waived any waiting period requirements,
insurability requirements and the application of any
pre-existing condition limitations under such plan and
(ii) cause each Continuing Employee to be given credit
under such plan for all amounts paid by such Continuing Employee
under any similar Company benefit plan for the plan year in
which such participation commences for purposes of applying
deductibles, co-payments and out-of-pocket maximums as though
such amounts had been paid in accordance with the terms and
conditions of the plans maintained by Parent, the Surviving
Corporation or such Affiliate, as applicable, for such plan
year. In addition, Parent shall implement, or cause its
appropriate Affiliates to implement, the additional arrangements
agreed upon by Parent and the Company.
(c) Parent shall cause the Surviving Corporation to assume
and honor in accordance with their terms all written employment,
change of control, severance, retention or termination
agreements applicable to any employee of the Company or any of
its Subsidiaries.
ARTICLE 8
Covenants
of Parent and the Company
The parties hereto agree that:
Section 8.01. Reasonable
Best Efforts. (a) Subject to the terms and
conditions of this Agreement, the Company and Parent shall use
their reasonable best efforts to take, or cause to be taken, all
actions and to do, or cause to be done, all things necessary,
proper or advisable under Law to consummate the transactions
contemplated by this Agreement, including (i) making as
promptly as practicable any required filings with any
Governmental Authority or other third party and furnishing all
information reasonably required in connection with such filings,
(ii) using reasonable best efforts to cause the expiration
of any applicable waiting periods, (iii) using reasonable
best efforts to obtain any consent, authorization or approval of
any private third Person required to be obtained by Parent,
Merger Subsidiary or the Company or any of their respective
Subsidiaries in connection with the transactions contemplated by
this Agreement, (iv) using reasonable best efforts to
prevent the entry of any judgment, injunction, order or decree
that would prohibit the consummation of the Offer or the Merger
and (v) taking any other actions by or with respect to any
Governmental Authority or other third party that are necessary,
proper or advisable to consummate the transactions contemplated
by this Agreement.
(b) In furtherance and not in limitation of the foregoing,
each of Parent and the Company shall make an appropriate filing
pursuant to any applicable Antitrust Laws with respect to the
transactions contemplated hereby as promptly as practicable, and
supply as promptly as practicable any additional information or
documents that may be requested and use reasonable best efforts
to cause the expiration or termination of any applicable waiting
periods or the taking of any other actions by or with respect to
such Antitrust Laws as soon as practicable.
Section 8.02. Cooperation.
The Company and Parent shall cooperate with one another
(a) in connection with the preparation of the Company
Disclosure Documents and the Offer Documents, (b) in
determining whether any action by or in respect of, or filing
with, any Governmental Authority is required, or any actions,
consents, approvals or waivers are required to be obtained from
parties to any material contracts, in connection with the
consummation of the transactions contemplated by this Agreement
and (c) in taking such actions or making any such filings,
furnishing information required in connection therewith or with
the Company Disclosure Documents or the Offer Documents and
seeking timely to obtain any such actions, consents, approvals
or waivers.
Section 8.03. Public
Announcements. Parent and its Affiliates, on the
one hand, and the Company and its Subsidiaries, on the other
hand, shall consult with each other, and use reasonable best
efforts to accommodate the comments (including as to timing) of
the other, before issuing any press release or making any other
public statement, or scheduling any press conference or
conference call with investors or analysts, with respect to this
Agreement or the transactions contemplated hereby and, except as
may be required by
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Law or any listing agreement with or rule of any national
securities exchange, shall not issue any such press release or
make any such other public statement or schedule any such press
conference or conference call before such consultation.
Notwithstanding anything in this Agreement to the contrary,
neither Parent nor any of its Affiliates or representatives
shall, without the prior consent of the Company, contact any
employees in their capacity as employees (except for executive
officers of the Company), customers or suppliers of the Company
or its Subsidiaries, whether in person or by telephone, mail or
other means of communication, prior to the Acceptance Date in
connection with the transactions contemplated hereby.
Section 8.04.
Further Assurances. At and after the Effective
Time, the officers and directors of the Surviving Corporation
shall be authorized to execute and deliver, in the name and on
behalf of the Company or Merger Subsidiary, any deeds, bills of
sale, assignments or assurances and to take and do, in the name
and on behalf of the Company or Merger Subsidiary, any other
actions and things 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 of the Company acquired or to be acquired by the
Surviving Corporation as a result of, or in connection with, the
Merger.
Section 8.05. Merger
Without Meeting of Stockholders. If at any time
after the Acceptance Date, Parent and its Affiliates shall own
at least 90% of the outstanding Shares, the parties shall take
all necessary and appropriate action to cause the Merger to be
effected as soon as practicable without a meeting of
stockholders of the Company in accordance with Section 253
of Delaware Law.
Section 8.06. Section 16
Matters. Prior to the Effective Time, the Company
shall take all such steps as may be required to cause any
disposition of Shares in the Merger (including derivative
securities with respect to such Shares) by each individual who
is subject to the reporting requirements of Section 16(a)
of the 1934 Act with respect to the Company to be exempt
under
Rule 16b-3
promulgated under the 1934 Act.
Section 8.07. Notices
of Certain Events. Subject to applicable Law,
each of the Company and Parent shall promptly notify the other
of:
(a) any notice or other communication received by the
Company or any of its Subsidiaries or Parent or any of its
Affiliates from any Person alleging that the consent of such
Person is or may be required in connection with the transactions
contemplated by this Agreement;
(b) any notice or other communication received by the
Company or any of its Subsidiaries or Parent or any of its
Affiliates from any Governmental Authority that relate to the
transactions contemplated by this Agreement; and
(c) any actions, suits, investigations or proceedings
commenced or, to its knowledge, threatened against the Company
or any of its Subsidiaries or Parent or any of its Affiliates
that relate to the consummation of the transactions contemplated
by this Agreement.
Section 8.08. Takeover
Statutes. If any “fair price,”
“moratorium,” “control share acquisition” or
other similar anti-takeover statute or regulation shall become
applicable to the transactions contemplated hereby, each of the
Company, Parent and Merger Subsidiary and the respective members
of their boards of directors shall, to the extent permitted by
applicable Law, use reasonable best efforts to grant such
approvals and take such actions as are necessary so that the
transactions contemplated by this Agreement may be consummated
as promptly as practicable on the terms contemplated
herein andotherwise act to eliminate or minimize the
effects of such statute or regulation on the transactions
contemplated hereby.
Section 8.09.
Litigation. (a) Each of the parties shall
promptly enter into stipulations staying all litigation
currently pending between them or their respective Affiliates
and representatives, or commenced by or on behalf of any of them
in connection with the Offer, and the parties shall cause such
stipulations to be filed promptly after the date of this
Agreement. Each of the parties shall also, promptly following
the Acceptance Date, enter into and file stipulations dismissing
with prejudice all such litigation and releasing all claims
against the other parties hereto (and their Affiliates and
representatives) based on any action or omission that occurred
prior to the date of such stipulations as of the date such
stipulations are filed. Notwithstanding the foregoing, if this
Agreement is terminated in accordance with Section 10.01,
after such
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termination, nothing herein shall prevent either party (or its
Affiliates or representatives) from pursuing any such litigation
or any other litigation against any other party hereto (or its
Affiliates or representatives).
(b) The Company shall give Parent the opportunity to
participate in the defense or settlement of any stockholder
litigation that currently exists or arises after the date of
this Agreement against the Company or its directors or officers
relating to any of the transactions contemplated hereby.
Section 8.10.
Transfer Taxes. Subject to Section 2.03(c),
all stock transfer, real estate transfer, documentary, stamp,
recording and other similar Taxes (including interest, penalties
and additions to any such Taxes) (“Transfer
Taxes”) incurred in connection with the transactions
contemplated hereby shall be paid by either Merger Subsidiary or
the Surviving Corporation, and the Company shall cooperate with
Merger Subsidiary and Parent in preparing, executing and filing
any Tax Returns with respect to such Transfer Taxes.
ARTICLE 9
Conditions
to the Merger
Section 9.01. Conditions
to the Obligations of Each Party. The obligations
of the Company, Parent and Merger Subsidiary to consummate the
Merger are subject to the satisfaction of the following
conditions:
(a) if required by Delaware Law, the Company Stockholder
Approval shall have been obtained;
(b) there is no Law or judgment, injunction, order or
decree of any Governmental Authority with, in any such case,
competent jurisdiction restraining, prohibiting or otherwise
making illegal the consummation of the Merger; and
(c) Merger Subsidiary shall have purchased Shares pursuant
to the Offer.
ARTICLE 10
Termination
Section 10.01. Termination. This
Agreement may be terminated and the Offer
and/or the
Merger may be abandoned at any time prior to the Effective Time
(notwithstanding receipt of the Company Stockholder Approval):
(a) by mutual written agreement of the Company and Parent;
(b) by either the Company or Parent, if:
(i) the Acceptance Date has not occurred on or before
May 31, 2008 (the “End Date”);
provided that the End Date shall be extended to
June 30, 2008 if on May 31, 2008, none of the
conditions set forth in Annex I exists other than as a
result of restrictions under applicable Antitrust Laws;
provided, further that the right to terminate this Agreement
pursuant to this Section 10.01(b)(i) shall not be available
to any party whose breach of any provision of this Agreement
results in the failure of the Acceptance Date to occur on or
before such time; or
(ii) if there is a Law or final, non-appealable judgment,
injunction, order or decree of any Governmental Authority with
competent jurisdiction restraining, prohibiting or otherwise
making illegal the consummation of the Offer or the Merger;
(c) by Parent, if prior to the first acceptance for payment
of Shares pursuant to the Offer:
(i) an Adverse Recommendation Change shall have occurred;
(ii) the Company shall have intentionally and materially
breached its obligations under Section 6.04 (it being
understood that actions taken by officers, directors or
employees of the Company or its Subsidiaries or Company
Representatives shall not give rise to a right to terminate the
Agreement pursuant to this Section 10.01(c)(ii) so long as
neither the Company nor any of its Subsidiaries has authorized
or permitted any such actions by its officers, directors or
employees and
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the Company and its Subsidiaries have used their respective
reasonable best efforts to cause such Company Representatives
not to take any such actions); or
(iii) a breach of any representation or warranty or failure
to perform any covenant or agreement on the part of the Company
set forth in this Agreement shall have occurred that would cause
the condition set forth in clauses (b)(ii) or (b)(iii) of
Annex I to exist, and such breach or failure is incapable
of being cured by the End Date;
(d) by the Company, if Parent, Merger Subsidiary or any of
their Affiliates shall have breached in any material respect any
of their respective representations or warranties or failed to
perform in any material respect any of their respective
covenants or agreements set forth in this Agreement or the
Guarantee dated as of the date hereof between Holding and the
Company, which breach or failure to perform is incapable of
being cured by the End Date; or
(e) by the Company pursuant to Section 6.04(a)(y).
The party desiring to terminate this Agreement pursuant to this
Section 10.01 (other than pursuant to
Section 10.01(a)) shall give notice of such termination to
the other party.
Section 10.02. Effect
of Termination. If this Agreement is terminated
pursuant to Section 10.01, this Agreement shall become void
and of no effect with no liability on the part of any party (or
any stockholder, director, officer, employee, agent or advisor
of such party) to the other party hereto; provided that,
if such termination shall result from the (a) intentional
failure of either party to fulfill a condition to the
performance of the obligations of the other party or
(b) material breach of either party to perform a covenant
hereof, such party shall be fully liable for any and all
liabilities and damages incurred or suffered by the other party
as a result of such failure or breach. The provisions of
Article 11 shall survive any termination hereof pursuant to
Section 10.01.
ARTICLE 11
Miscellaneous
Section 11.01. Notices. All
notices, requests and other communications to any party
hereunder shall be in writing (including facsimile transmission)
and shall be given,
if to Parent, to:
Roche Holdings, Inc.
0000 X. Xxxxxx Xx., Xxxxx #000
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxx Xxxxxxxxxx
Facsimile No.: (000) 000-0000
0000 X. Xxxxxx Xx., Xxxxx #000
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxx Xxxxxxxxxx
Facsimile No.: (000) 000-0000
with a copy to:
Xxxxx Xxxx & Xxxxxxxx 000 Xxxxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 Attention: |
Xxxxxxxxxxx Xxxxx Xxxx X. Xxxxxxxx Facsimile No.: (000) 000-0000 |
if to Merger Subsidiary, to:
Rocket Acquisition Corporation
0000 Xxxxx Xxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxxxx
Facsimile No.: (000) 000-0000
0000 Xxxxx Xxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxxxx
Facsimile No.: (000) 000-0000
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with a copy to:
Xxxxx Xxxx & Xxxxxxxx 000 Xxxxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 Attention: |
Xxxxxxxxxxx Xxxxx Xxxx X. Xxxxxxxx Facsimile No.: (000) 000-0000 |
if to the Company, to:
Ventana Medical Systems, Inc.
0000 X. Xxxxxxxxxx Xxxx Xxxxx
Xxxxxx, Xxxxxxx 00000
Attention: Chief Executive Officer
General Counsel
Facsimile No.: (000) 000-0000
0000 X. Xxxxxxxxxx Xxxx Xxxxx
Xxxxxx, Xxxxxxx 00000
Attention: Chief Executive Officer
General Counsel
Facsimile No.: (000) 000-0000
with a copy to:
Sidley Austin LLP 0 Xxxxx Xxxxxxxx Xxxxxx Xxxxxxx, Xxxxxxxx 00000 Attention: |
Xxxxxx X. Xxxx Xxxxxxxxx X. Xxxxxxxx Xxxxxxx X. Xxxxxx Xxxxxx X. Xxxxxxx Facsimile No.: (000) 000-0000 |
and to:
Xxxxx & Xxxxxx LLP
One Arizona Center
000 Xxxx Xxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Facsimile No.: (000) 000-0000
One Arizona Center
000 Xxxx Xxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Facsimile No.: (000) 000-0000
or to such other address or facsimile number as such party may
hereafter specify for the purpose by notice to the other parties
hereto. All such notices, requests and other communications
shall be deemed received on the date of receipt by the recipient
thereof if received prior to 5 p.m. on a business day in
the place of receipt. Otherwise, any such notice, request or
communication shall be deemed to have been received on the next
succeeding business day in the place of receipt.
Section 11.02. Survival
of Representations and Warranties. The
representations and warranties contained herein and in any
certificate or other writing delivered pursuant hereto shall not
survive the Acceptance Date.
Section 11.03. Amendments
and Waivers. (a) Any provision of this
Agreement may be amended or waived prior to the Effective Time
if, but only if, such amendment or waiver is in writing and is
signed, in the case of an amendment, by each party to this
Agreement or, in the case of a waiver, by each party against
whom the waiver is to be effective; provided that, after
the Company Shareholder Approval has been obtained (if
applicable), there shall be no amendment or waiver that, under
Delaware law, would require the further approval of the
stockholders of the Company without such approval.
(b) No failure or delay by any party in exercising any
right, power or privilege hereunder shall operate as a waiver
thereof nor shall any single or partial exercise thereof
preclude any other or further exercise thereof
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or the exercise of any other right, power or privilege. The
rights and remedies herein provided shall be cumulative and not
exclusive of any rights or remedies provided by Law.
Section 11.04. Expenses. (a)
General. All costs and expenses incurred in connection with
this Agreement shall be paid by the party incurring such cost or
expense.
(b) Termination Fee.
(i) If this Agreement is terminated by Parent pursuant to
Section 10.01(c)(i) or by the Company pursuant to
Section 10.01(e), then the Company shall pay to Parent in
immediately available funds $110,000,000 (the
“Termination Fee”), in the case of a
termination by Parent, within two Business Days after such
termination and, in the case of a termination by the Company,
immediately before and as a condition to such termination.
(ii) If (A) this Agreement is terminated by Parent or
the Company pursuant to Section 10.01(b)(i), (B) after
the date of this Agreement and prior to such termination, an
Acquisition Proposal shall have been publicly announced or
otherwise been communicated to the Board of Directors of the
Company or its stockholders and not withdrawn and
(C) within nine months following the date of such
termination, the Company shall have entered into a definitive
agreement with respect to or recommended to its stockholders an
Acquisition Proposal or an Acquisition Proposal shall have been
consummated (provided that for purposes of this clause
(C), each reference to “20%” in the definition of
Acquisition Proposal shall be deemed to be a reference to
“50%”), then the Company shall pay to Parent in
immediately available funds, concurrently with the occurrence of
the applicable event described in clause (C), the Termination
Fee.
The Company acknowledges that the agreements contained in this
Section 11.04(b) are an integral part of the transactions
contemplated by this Agreement and that, without these
agreements, Parent and Merger Subsidiary would not enter into
this Agreement.
(c) Each of Parent, Merger Subsidiary and the Company
acknowledges and agrees that in the event Parent is entitled to
receive payment of the Termination Fee, the right of Parent to
receive such amounts shall constitute Parent’s and its
Affiliates’ sole and exclusive remedy for, and such amounts
shall constitute liquidated damages in respect of, any
termination of this Agreement regardless of the circumstances
giving rise to such termination.
Section 11.05. Disclosure
Schedule References and SEC Document
References. (a) The parties hereto agree
that any reference in a particular Section of the Company
Disclosure Schedule shall only be deemed to be an exception to
(or, as applicable, a disclosure for purposes of) (i) the
representations and warranties (or covenants, as applicable) of
the Company that are contained in the corresponding Section of
this Agreement and (ii) any other representations and
warranties of the Company that are contained in this Agreement,
but only if the relevance of that reference as an exception to
(or a disclosure for purposes of) such representations and
warranties would be reasonably apparent to a person who has read
that reference and such representations and warranties, without
any independent knowledge on the part of the reader regarding
the matter(s) so disclosed.
(b) The parties hereto agree that any information contained
in any part of any Filed SEC Document shall only be deemed to be
an exception to (or a disclosure for purposes of) the
Company’s representations and warranties if the relevance
of that information as an exception to (or a disclosure for
purposes of) such representations and warranties would be
reasonably apparent to a person who has read that information
concurrently with such representations and warranties, without
any independent knowledge on the part of the reader regarding
the matter(s) so disclosed; provided that in no event
shall any information contained in any part of any Filed SEC
Document entitled “Risk Factors” or containing a
description or explanation of “Forward-Looking
Statements” be deemed to be an exception to (or a
disclosure for purposes of) any representations and warranties
of the Company contained in this Agreement.
Section 11.06.
Binding Effect; Benefit; Assignment. (a) The
provisions of this Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective
successors and assigns.
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Except as provided in Section 7.03, no provision of this
Agreement is intended to confer any rights, benefits, remedies,
obligations or liabilities hereunder upon any Person other than
the parties hereto and their respective successors and assigns.
(b) No party may assign, delegate or otherwise transfer any
of its rights or obligations under this Agreement without the
prior written consent of each other party hereto, except that
Parent or Merger Subsidiary may transfer or assign its rights
and obligations under this Agreement, in whole or from time to
time in part, to one or more of its Affiliates at any time;
provided that such transfer or assignment shall not relieve
Parent or Merger Subsidiary of its obligations under this
Agreement or prejudice the rights of stockholders to receive
payment for Shares validly tendered and accepted for payment
pursuant to the Offer or Shares converted into cash pursuant to
the Merger.
Section 11.07. Governing
Law. This Agreement shall be governed by and
construed in accordance with the law of the State of Delaware,
without regard to the conflicts of law rules of such state.
Section 11.08. Jurisdiction. The
parties hereto agree that any suit, action or proceeding seeking
to enforce any provision of, or based on any matter arising out
of or in connection with, this Agreement or the transactions
contemplated hereby shall be brought in the Court of Chancery of
the State of Delaware in and for New Castle County, Delaware or,
if such court shall not have jurisdiction, in any federal court
located in the State of Delaware or other Delaware state court,
and each of the parties hereby irrevocably consents to the
jurisdiction of such courts (and of the appropriate appellate
courts therefrom) in any such suit, action or proceeding and
irrevocably waives, to the fullest extent permitted by law, any
objection that it may now or hereafter have to the laying of the
venue of any such suit, action or proceeding in any such court
or that any such suit, action or proceeding brought in any such
court has been brought in an inconvenient forum. Process in any
such suit, action or proceeding may be served on any party
anywhere in the world, whether within or without the
jurisdiction of any such court. Without limiting the foregoing,
each party agrees that service of process on such party as
provided in Section 11.01 shall be deemed effective service
of process on such party.
Section 11.09. WAIVER
OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY
LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR
THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 11.10. Counterparts;
Effectiveness. This Agreement may be signed in
any number of counterparts, each of which shall be an original,
with the same effect as if the signatures thereto and hereto
were upon the same instrument. This Agreement shall become
effective when each party hereto shall have received a
counterpart hereof signed by all of the other parties hereto.
Until and unless each party has received a counterpart hereof
signed by the other party hereto, this Agreement shall have no
effect and no party shall have any right or obligation hereunder
(whether by virtue of any other oral or written agreement or
other communication).
Section 11.11. Entire
Agreement. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter
of hereof and thereof and supersede all prior agreements and
understandings, both oral and written, between the parties with
respect to the subject matter hereof and thereof.
Section 11.12. Severability. If
any term, provision, covenant or restriction of this Agreement
is held by a court of competent jurisdiction or other
Governmental Authority to be invalid, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions
of this Agreement shall remain in full force and effect and
shall in no way be affected, impaired or invalidated so long as
the economic or legal substance of the transactions contemplated
hereby is not affected in any manner materially adverse to any
party. Upon such a determination, the parties shall negotiate in
good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in an acceptable
manner in order that the transactions contemplated hereby be
consummated as originally contemplated to the fullest extent
possible.
Section 11.13. Specific
Performance. The parties hereto agree that
irreparable damage would occur if any provision of this
Agreement were not performed in accordance with the terms hereof
and that, except as provided in Section 11.04(c), the
parties shall be entitled to an injunction or injunctions to
prevent breaches of
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this Agreement or to enforce specifically the performance of the
terms and provisions hereof, in addition to any other remedy to
which they are entitled at law or in equity.
ARTICLE 12
Definitions
Section 12.01.
Definitions. (a) As used herein, the
following terms have the following meanings:
“Affiliate” means, with respect to any
Person, any other Person directly or indirectly controlling,
controlled by or under common control with such
Person; provided that neither
Genentech, Inc., a Delaware corporation, nor Chugai
Pharmaceutical Co., Ltd., a Japanese company, shall be deemed an
Affiliate of Holding or any of its Subsidiaries for purposes of
this Agreement, it being understood that Holding, Parent and
Merger Subsidiary shall be deemed to be Affiliates of one
another for purposes of this Agreement.
“Antitrust Laws” means applicable Laws that are
designed to prohibit, restrict or regulate actions having the
purpose or effect of monopolization or restraint of trade.
“Business Day” means a day other than Saturday,
Sunday or other day on which commercial banks in New York, New
York are authorized or required by Law to close.
““Code” means the Internal Revenue Code of
1986.
“Company Material Adverse Effect” means a
material adverse effect on
(i) the business, operations, results of operations,
assets, liabilities or financial condition of the Company and
its Subsidiaries, taken as a whole, excluding any effect
resulting from (A) changes in the financial or securities
markets or general economic or political conditions in the
United States, (B) changes (including changes of Law or
regulation) or conditions generally affecting the industry in
which the Company and its Subsidiaries operate and not
specifically relating to or having a materially disproportionate
effect on the Company and its Subsidiaries, (C) acts of
war, sabotage or terrorism or natural disasters involving the
United States not having a materially disproportionate effect on
the Company and its Subsidiaries, (D) the announcement or
consummation of the Offer or the transactions contemplated by
this Agreement, or (E) any failure by the Company to meet
any internal or published budgets, projections, forecasts or
predictions of financial performance for any period (it being
understood that this clause (E) shall not prevent a party
from asserting that any fact, change, event, occurrence or
effect that may have contributed to such failure independently
constitutes or contributes to a Company Material Adverse
Effect); or
(ii) the Company’s ability to consummate the
transactions contemplated by this Agreement.
“Governmental Authority” shall mean any
government, court, regulatory or administrative agency,
commission or authority or other governmental instrumentality,
whether domestic or foreign, federal, state or local,
multinational or supranational.
“knowledge” means, with respect to the Company,
the actual knowledge after reasonable inquiry of any of the
persons listed in Section 12.01(a) of the Company
Disclosure Schedule.
“Law” means all laws (including common law),
statutes, ordinances, codes, rules and regulations of any
Governmental Authorities.
“Lien” means, with respect to any property or
asset, any mortgage, lien, pledge, charge, security interest,
encumbrance, restriction, easement, right of way, title defect
or other adverse claim of any kind in respect of such property
or asset. For purposes of this Agreement, a Person shall be
deemed to own subject to a Lien, any property or asset that it
has acquired or holds subject to the interest of a vendor or
lessor under any conditional sale agreement, capital lease or
other title retention agreement relating to such property or
asset.
““1933 Act” means the Securities Act
of 1933.
““1934 Act” means the Securities
Exchange Act of 1934.
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“Parent Material Adverse Effect” means a
material adverse effect on Parent’s ability to consummate
the transactions contemplated by this Agreement or to perform
its obligations under this Agreement.
“Person” means an individual, corporation,
partnership, limited liability company, association, trust or
other entity or organization, including a Governmental Authority.
“Subsidiary” means, with respect to any Person,
any entity of which securities or other ownership interests
having ordinary voting power to elect a majority of the board of
directors or other persons performing similar functions are at
any time directly or indirectly owned by such Person.
(b) Each of the following terms is defined in the Section
set forth opposite such term:
Term
|
Section
|
|
Acceptance Date
|
1.01 | |
Acquisition Proposal
|
6.04 | |
Adverse Recommendation Change
|
6.04 | |
Amended Offer
|
Recitals | |
Agreement
|
Preamble | |
Board of Directors
|
1.02 | |
Certificates
|
2.03 | |
Company
|
Preamble | |
Company Balance Sheet
|
4.08 | |
Company Balance Sheet Date
|
4.08 | |
Company Board Recommendation
|
4.02 | |
Company Disclosure Documents
|
4.09 | |
Company Disclosure Schedule
|
4.01 | |
Company ESPP
|
2.08 | |
Company Financial Advisors
|
4.20 | |
Company Intellectual Property
|
4.19 | |
Company Performance Unit
|
2.07 | |
Company Proxy Statement
|
5.05 | |
Company Registered Intellectual Property
|
4.19 | |
Company Representatives
|
6.04 | |
Company Restricted Share
|
2.06 | |
Company Rights
|
4.22 | |
Company SEC Documents
|
4.07 | |
Company Securities
|
4.05 | |
Company Stock Option
|
2.05 | |
Company Stockholder Approval
|
4.02 | |
Company Stockholder Meeting
|
6.02 | |
Company Subsidiary Securities
|
4.06 | |
Company 10-K
|
4.07 | |
Confidentiality Agreement
|
6.03 | |
Continuing Director
|
1.03 | |
Continuing Employees
|
7.04 | |
D&O Insurance
|
7.03 | |
Delaware Law
|
1.02 | |
Effective Time
|
2.01 | |
Employee Plans
|
4.16 |
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Term
|
Section
|
|
End Date
|
10.01 | |
Environmental Laws
|
4.17 | |
Environmental Permits
|
4.17 | |
ERISA
|
4.16 | |
ERISA Affiliate
|
4.16 | |
Exchange Agent
|
2.03 | |
Existing Offer
|
Recitals | |
Filed SEC Documents
|
4.01 | |
GAAP
|
4.08 | |
Hazardous Substance
|
4.17 | |
Holding
|
6.03 | |
Indemnified Person
|
7.03 | |
Intellectual Property
|
4.19 | |
International Plans
|
4.16 | |
Material Contracts
|
4.18 | |
Merger
|
2.01 | |
Merger Consideration
|
2.02 | |
Merger Subsidiary
|
Preamble | |
Minimum Condition
|
1.01 | |
Multiemployer Plan
|
4.16 | |
Necessary Intellectual Property
|
4.19 | |
Off-the-Shelf Software
|
4.19 | |
Offer
|
Recitals | |
Offer Documents
|
1.01 | |
Parent
|
Preamble | |
Rights Agreement
|
4.22 | |
Schedule TO
|
Recitals | |
Schedule 14D-9
|
1.02 | |
SEC
|
1.01 | |
Shares
|
Recitals | |
Subsequent Offering Period
|
1.01 | |
Superior Proposal
|
6.04 | |
Surviving Corporation
|
2.01 | |
Tax
|
4.14 | |
Taxing Authority
|
4.14 | |
Tax Return
|
4.14 | |
Termination Fee
|
11.04 | |
Top-Up Notice
|
1.04 | |
Top-Up Option
|
1.04 | |
Top-Up Shares
|
1.04 | |
Transfer Taxes
|
8.10 | |
Uncertificated Shares
|
2.03 |
Section 12.02.
Other Definitional and Interpretative
Provisions. The words “hereof”,
“herein” and “hereunder” and words of like
import used in this Agreement shall refer to this Agreement as a
whole and not
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to any particular provision of this Agreement. The captions
herein are included for reference purposes only and shall be
ignored in the construction or interpretation hereof. References
to Articles, Sections, Exhibit, Annexes and Schedules are to
Articles, Sections, Exhibit, Annexes and Schedules of this
Agreement unless otherwise specified. All Exhibit, Annexes and
Schedules annexed hereto or referred to herein are hereby
incorporated in and made a part of this Agreement as if set
forth in full herein. All terms defined in this Agreement and
used but not otherwise defined in any Exhibit, Annex or Schedule
or any other document made or delivered pursuant hereto shall
have the meaning as defined in this Agreement. The definitions
contained in this Agreement are applicable to the singular as
well as the plural forms of such terms. Whenever the words
“include”, “includes” or
“including” are used in this Agreement, they shall be
deemed to be followed by the words “without
limitation”. “Writing”, “written” and
comparable terms refer to printing, typing and other means of
reproducing words (including electronic media) in a visible
form. References to any statute shall be deemed to refer to such
statute as amended from time to time and to any rules or
regulations promulgated thereunder. References to any agreement
or contract shall be deemed to refer to such agreement or
contract as amended, modified or supplemented from time to time
in accordance with the terms thereof; provided that with
respect to any agreement or contract listed on any schedules
hereto, all such amendments, modifications or supplements must
also be listed in the appropriate schedule. References to any
Person include the successors and permitted assigns of that
Person.
[The
remainder of this page has been intentionally left blank; the
next
page is the signature page.]
page is the signature page.]
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized
officers as of the day and year first above written.
VENTANA MEDICAL SYSTEMS, INC.
By: |
/s/ Xxxxxxxxxxx
X. Xxxxxxx
|
Name: Xxxxxxxxxxx X. Xxxxxxx
Title: | President and Chief Executive Officer |
ROCHE HOLDINGS, INC.
By: |
/s/ Xxxxx
Xxxxxxxxxx
|
Name: Xxxxx Xxxxxxxxxx
Title: | Vice President and Corporate Secretary |
ROCKET ACQUISITION CORPORATION
By: |
/s/ Xxxxx
Xxxxx
|
Name: Xxxxx Xxxxx
Title: | President |
By: |
/s/ Beat
Kraehenmann
|
Name: Beat Kraehenmann
Title: | Secretary |
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ANNEX I
Notwithstanding any other provision of this Agreement, Merger
Subsidiary shall not be required to accept for payment, or pay
for, any Shares, and may, subject to Article 1 and
Article 10 of this Agreement, terminate the Offer, if:
(a) prior to the expiration of the Offer, (i) the
Minimum Condition (as defined in the Merger Agreement) shall not
have been satisfied or (ii) there are any restrictions or
prohibitions under any applicable Antitrust Law (including
suspensory filing requirements, waiting periods and required
actions, consents or clearances by any Governmental Authority)
that would make illegal the consummation of the Offer or the
Merger; or
(b) at any time on or after the date of this Agreement and
prior to the expiration of the Offer, any of the following
conditions exists:
(i) there is a Law or judgment, injunction, order or decree
of any Governmental Authority with competent jurisdiction
restraining, prohibiting or otherwise making illegal the
consummation of the Offer or the Merger;
(ii) (A) the representations and warranties of the
Company contained in the second sentence of Section 4.05
shall not be true and correct in all material respects at and as
of immediately prior to the expiration of the Offer as if made
at and as of such time (other than such representations and
warranties that by their terms address matters only as of
another specified time, which shall be true and correct in all
material respects only as of such time) or (B) the other
representations and warranties of the Company contained in this
Agreement (disregarding all materiality and Company Material
Adverse Effect qualifications contained therein) shall not be
true and correct at and as of immediately prior to the
expiration of the Offer as if made at and as of such time (other
than representations and warranties that by their terms address
matters only as of another specified time, which shall be true
and correct only as of such time), except, in the case of
clause (B) only, for such matters as have not had and would
not reasonably be expected to have, individually or in the
aggregate, a Company Material Adverse Effect;
(iii) the Company shall have failed to perform in all
material respects all of its obligations to be performed or
complied with by it under this Agreement prior to such time;
(iv) the Company shall have failed to deliver to Parent a
certificate signed by an executive officer of the Company dated
as of the date on which the Offer expires certifying that the
conditions specified in clauses (ii) and (iii) of this
paragraph (b) do not exist; or
(v) this Agreement shall have been terminated in accordance
with its terms.
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