Exhibit B
Between
SOLAR POWER, INC.,
And
TABLE OF CONTENTS
(Continued)
-ii-
TABLE OF CONTENTS
(Continued)
-iii-
TABLE OF CONTENTS
(Continued)
-iv-
TABLE OF CONTENTS
(Continued)
-v-
INDEX OF DEFINED TERMS
|
|
|
|
|
Accounting Firm |
|
Section 1.03(b) |
Acquisition |
|
Section 1.01 |
Adjusted Purchase Price |
|
Section 1.03(c) |
Adverse Recommendation Change |
|
Section 5.02(e) |
Affiliate |
|
Section 9.04(b) |
Agreement |
|
Preamble |
Alternative Financing |
|
Section 5.17(a) |
Ancillary Agreements |
|
Section 9.04(b) |
Applicable Law |
|
Section 1.02(a) |
Assigned Facility Contracts |
|
Section 1.02(a) |
Audited Balance Sheet |
|
Section 3.05(a) |
Benefit Plans |
|
Section 3.18(a) |
Business Day |
|
Section 9.04(b) |
Charter Amendment |
|
Section 9.04(b) |
Closing Dates |
|
Section 2.01 |
Closings |
|
Section 2.01 |
Code |
|
Section 9.04(b) |
Commonly Controlled Entity |
|
Section 3.18(a) |
Common Stock |
|
Recitals |
Common Stock Purchase Price |
|
Section 1.01 |
Company |
|
Preamble |
Company Contracts |
|
Section 3.12(b) |
Company Indemnitees |
|
Section 8.02 |
Company Intellectual Property |
|
Section 3.09(a) |
Company Material Adverse Effect |
|
Section 9.04(b) |
Company Pension Plan |
|
Section 3.18(c) |
Company Subsidiary |
|
Section 9.04(b) |
Consent |
|
Section 3.04 |
Contract |
|
Section 1.02(a) |
Conversion Shares |
|
Section 9.04(b) |
Current Assets |
|
Section 1.03(d) |
Current Liabilities |
|
Section 1.03(d) |
Defined Benefit Plan |
|
Section 3.18(f) |
DOJ |
|
Section 5.05(c) |
Documents |
|
Section 9.04(b) |
Environmental Laws |
|
Section 9.04(b) |
Environmental Reports |
|
Section 3.17(b) |
ERISA |
|
Section 3.18(a) |
Exchange Act |
|
Section 3.02(c) |
Excluded Liabilities |
|
Section 1.02(b) |
Facility |
|
Section 1.02(a) |
Family |
|
Section 9.04(b) |
FCPA |
|
Section 3.17(c) |
Filing |
|
Section 3.04 |
Financial Statements |
|
Section 3.05(a) |
Financing |
|
Section 5.17 |
First Closing |
|
Section 2.01 |
First Closing Date |
|
Section 2.01 |
First Closing Date Amount |
|
Section 2.02(b) |
First Closing Working Capital |
|
Section 1.03(a) |
FTC |
|
Section 5.05(c) |
Fundamental Representations |
|
Section 9.04(b) |
GAAP |
|
Section 1.03(d) |
Governmental Entity |
|
Section 3.03 |
Hazardous Materials |
|
Section 9.04(b) |
HSR Act |
|
Section 6.01 |
including |
|
Section 9.04(b) |
Indebtedness |
|
Section 9.04(b) |
Indemnified Party |
|
Section 8.05(a) |
Indemnifying Party |
|
Section 8.05(a) |
Intellectual Property |
|
Section 9.04(b) |
Interim Balance Sheet |
|
Section 3.05(a) |
Judgment |
|
Section 3.02 |
Knowledge |
|
Section 9.04(b) |
Leased Property |
|
Section 3.08(a) |
Lien |
|
Section 9.04(b) |
Lock-up Agreements |
|
Section 9.04(b) |
Losses |
|
Section 8.01(a) |
Management Shareholders |
|
Section 9.04(b) |
Material Interest |
|
Section 9.04(b) |
Notice of Disagreement |
|
Section 1.03(b) |
Ordinary Course of Business |
|
Section 9.04(b) |
Other Bid |
|
Section 5.02(a) |
Other Filings |
|
Section 9.04(b) |
Outside Date |
|
Section 7.01(a)(ii) |
Pension Plan |
|
Section 3.18(a) |
Permits |
|
Section 3.13(a) |
Permitted Lien |
|
Section 9.04(b) |
Person |
|
Section 9.04(b) |
Personnel |
|
Section 3.09(c) |
Plant Purchase Price |
|
Section 1.02(e) |
Preferred Stock Purchase Price |
|
Section 1.01 |
Proceeding |
|
Section 9.04(b) |
Proxy Statement |
|
Section 5.15(c) |
Purchased Common Shares |
|
Recitals |
Purchased Preferred Shares |
|
Recitals |
Purchased Shares |
|
Recitals |
Purchaser |
|
Preamble |
Purchaser Indemnitees |
|
Section 8.01(a) |
Purchaser Material Adverse Effect |
|
Section 9.04(b) |
Related Person |
|
Section 9.04(b) |
Release |
|
Section 9.04(b) |
Representative |
|
Section 9.04(b) |
Required Reserve Amount |
|
Section 5.13(a) |
Rights |
|
Section 3.02(a) |
Xxxxxxxx-Xxxxx Act |
|
Section 3.05(e) |
SEC |
|
Section 3.02(c) |
SEC Reports |
|
Section 3.29 |
Second Closing |
|
Section 2.03 |
Second Closing Date |
|
Section 2.03 |
Securities Act |
|
Section 3.28 |
Shares |
|
Section 9.04(b) |
Shareholder Approval |
|
Section 9.04(b) |
Shareholder Meeting |
|
Section 9.04(b) |
Shenzhen Plant Assets |
|
Section 1.02(a) |
Special Committee |
|
Section 9.04(b) |
Statement |
|
Section 1.03(a) |
Subsidiary |
|
Section 9.04(b) |
Superior Other Bid |
|
Section 5.02(a) |
Target Working Capital |
|
Section 1.03(c) |
Tax |
|
Section 9.04(b) |
Tax Return |
|
Section 9.04(b) |
Taxing Authority |
|
Section 9.04(b) |
Termination Fee |
|
Section 7.03(a) |
Technology |
|
Section 9.04(b) |
Third Party Claim |
|
Section 8.05(a) |
Trading Market |
|
Section 9.04(b) |
Transactions |
|
Section 1.01 |
Transferable Permits |
|
Section 1.02(a) |
Voting Company Debt |
|
Section 3.02(a) |
-vi-
INDEX OF DEFINED TERMS
(Continued)
|
|
|
|
|
Welfare Plan |
|
Section 3.18(a) |
Working Capital |
|
Section 1.03(d) |
-vii-
STOCK PURCHASE AGREEMENT (this “Agreement”) dated January 5, 2011, between Solar Power, Inc.,
a California corporation with headquarters located at 0000 Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxx
00000 (the “
Company”), and
LDK Solar Co., Ltd., a company incorporated under the laws of
Cayman Islands (the “
Purchaser”).
A. The Company desires to issue and sell to the Purchaser, and the Purchaser desires to
purchase, upon the terms and conditions stated in this Agreement, (i) an aggregate of 20,000,000
shares of Series A Preferred Stock, par value $0.0001 per share, with rights, preferences and
privileges as set forth in the Certificate of Determination for such Series A Preferred Stock
attached as Exhibit A hereto (the “Purchased Preferred Shares”) and (ii) an aggregate of
42,835,947 shares of Common Stock of the Company (the “Purchased Common Shares”, and
together with the Purchased Preferred Shares, the “Purchased Shares”). The Purchased
Preferred Shares are convertible into shares of common stock, par value $0.0001 per share, of the
Company (the “Common Stock”). The Purchased Common Shares, when issued, will constitute
approximately 44.9% of the issued and outstanding Common Stock of the Company and, together with
the Purchased Preferred Shares, will constitute 70% of the Company’s issued and outstanding share
capital.
B. The Company and the Purchaser mutually desire, in addition to the investment contemplated
under this Agreement, to jointly develop utility scale solar projects in the United States and
other global locations, with the Purchaser bringing manufacturing supply chain expertise and the
Company project sourcing and development capabilities, to optimize the competitiveness in price
points for module, balance of system and installation services.
C. Concurrently with, and as a condition to, the execution of this Agreement, the Management
Shareholders are entering into the Lock-Up Agreements and Xxxxxxx X. Xxxxxxx is entering into a
Voting Agreement with the Purchaser.
Accordingly, intending to be legally bound, the parties hereby agree as follows:
Section 1.01
Purchase and Sale of the Shares. On the terms and subject to the
conditions hereof, at the First Closing, the Company shall issue, sell and deliver to the
Purchaser, free and clear of any Liens (other than those arising out of acts of the Purchaser or
its Affiliates), and the Purchaser shall purchase from the Company, the Purchased Common Shares for
an aggregate purchase price equal to $10,708,987 (the “
Common Stock Purchase Price”)
payable as set forth below in
Section 2.02 (
Transactions to Be Effected at the First
Closing), and, at the Second Closing, the Company shall issue, sell and deliver to the Purchaser,
free and clear of any liens (other than those arising out of acts of the Purchaser or its
Affiliates), and the Purchaser shall purchase from the Company, the Purchased Preferred Shares for
an aggregate purchase price equal to $22,227,669, (the “
Preferred Stock Purchase Price”)
payable as set forth below in
Section 2.03 (
Transaction to Be Effected at the Second
Closing). The aggregate of the Common
(a) On the terms and subject to the conditions hereof, at the First Closing, immediately prior
to the issuance of the Purchased Shares, the Company shall sell, transfer, assign, convey and
deliver, or cause to be sold, transferred, assigned, conveyed and delivered, free and clear of any
Liens (except for Permitted Liens), to Purchaser, and Purchaser shall purchase, all right, title
and interest of the Company in, to or under the following (collectively, the “Shenzhen Plant
Assets”):
(i) the lease on the approximately 123,784 square foot facility in NanYue, Shenzhen,
Peoples Republic of China (PRC) (the “Facility”) for the manufacture of solar
modules and other solar system products, including lease to the land described in Part
1.02(a)(i) of Exhibit B, which lease expires on December 31, 2010, but which has been
extended by the Company for two months, ending February 28, 2011;
(ii) all furniture, trade fixtures, equipment, computers, machinery, vehicles,
apparatus, appliances, implements, signage, supplies and all other tangible personal
property of every kind and description owned by the Company, including spare parts, for use
in or relating to the Facility, as more fully set forth in Part 1.02(a)(ii) of Exhibit B;
(iii) all chemicals and other production inputs located at the Facility or in transit
to, or in storage for transit to, the Facility;
(iv) all contracts, leases, licenses, indentures, agreements, commitments or other
legally binding arrangements (“Contracts,” and each a “Contract”) related to
(i) the use and operation of the Facility and (ii) the manufacturing of products at the
Facility and (iii) the supply of products by the Facility (the “Assigned Facility
Contracts”);
(v) all the assets set forth in Part 1.02(a)(v) of Exhibit B;
(vi) all domain names, telephone, telex and telephone facsimile numbers and other
directory listings relating to the Facility;
(vii) all Permits of the Company and the Company Subsidiaries relating to the operation
of the Facility that can be transferred to Purchaser under Federal, state, local, foreign,
international or multinational treaty, constitution, statute or other law (including common
law), ordinance, rule or regulation (“Applicable Law”) with or without approval of
the applicable Governmental Entity (collectively, the “Transferable Permits”); and
(viii) all Documents that relate primarily to any of the foregoing items, provided that
the Company may retain copies of such Documents.
2
(b) Notwithstanding any provision in this Agreement to the contrary, Purchaser shall not
assume and shall not be obligated to assume or be obliged to pay, perform or otherwise discharge
any liability of the Company other than liabilities related to employee retention at the Facility
that Purchaser has assumed (such Liabilities, collectively, the “Excluded Liabilities”).
(c) Notwithstanding any other provision of this Agreement to the contrary, this Agreement
shall not constitute an agreement to assign any Assigned Facility Contract or Transferable Permit
if an attempted assignment without the consent of a third party (including any Governmental
Entity), which consent has not been obtained prior to the First Closing, would constitute a breach
of any obligation, violation of any applicable law or regulation, or in any way adversely affect
the of the Company or the eventual rights of Purchaser thereunder. If any such consent is not
obtained prior to the First Closing, the Company and the Purchaser shall cooperate (at the
Company’s expense) in any lawful and reasonable arrangement reasonably proposed by the Purchaser
under which the Purchaser shall obtain the economic claims, rights and benefits under the asset,
claim or right with respect to which the consent has not been obtained in accordance with this
Agreement. Such reasonable arrangement may include (i) the subcontracting, sublicensing or
subleasing to the Purchaser of any and all rights of the Company against the other party to such
third-party agreement and (ii) the enforcement by the company of such rights.
(d) With respect to Transferable Permits, Purchaser, on the one hand, and the Company, on the
other hand, shall take all reasonable actions to provide or submit any notifications, forms,
requests, applications or other reasonably necessary documents in order to notify, or obtain
consents, approvals or waivers from any applicable Governmental Entities or other Person, necessary
to facilitate the transfer of any Transferable Permits to Purchaser. If any Transferable Permit is
not able to be so transferred on or before the First Closing, and Purchaser requires such
Transferable Permit to conduct or operate the Facility, the Company shall use its reasonable best
efforts and make every good faith attempt (and Purchaser shall reasonably cooperate with the
Company) to obtain a substantially equivalent Permit, and the Company shall provide any consent
from the Company reasonably necessary to authorize the use by Purchaser of such Permit.
(e) The consideration for the sale and transfer of the Shenzhen Plant Assets shall consist of
a cash payment by the Purchaser to Seller in the amount of $409,042 (the “Plant Purchase
Price”).
(f) All excise, sales, use, value added, registration stamp, recording, documentary,
conveyancing, franchise, property, transfer and similar Taxes, levies, charges and fees incurred in
connection with the transactions contemplated by this Agreement shall be borne by the Company. The
Company and the Purchaser shall cooperate in providing each other with any appropriate
certificates, forms or other similar documentation as may be necessary or appropriate to establish
an exemption from (or otherwise reduce), or file tax returns with respect to, such Taxes.
(g) The Company and Purchaser shall allocate the Plant Purchase Price (and any other items
that are treated as consideration for federal income tax purposes) among the
3
Shenzhen Plant Assets in accordance with Part 1.02(g) of Exhibit B. The parties shall, and
shall cause their respective Affiliates to, file all Tax Returns in a manner consistent with the
allocations set forth therein.
(a) Within 60 days after the First Closing Date, the Company shall prepare and deliver to
Purchaser a statement (the “Statement”) setting forth Working Capital as of the close of
business on December 31, 2010 (“Closing Working Capital”).
(b) During the 30-day period following Purchaser’s receipt of the Statement, Purchaser and its
independent auditors shall be permitted to review the working papers of the Company relating to the
Statement. The Statement shall become final and binding upon the parties on the 30th day following
delivery thereof, unless Purchaser gives written notice of its disagreement with the Statement (a
“Notice of Disagreement”) to the Company before such date. Any Notice of Disagreement
shall specify in reasonable detail the nature of any disagreement so asserted. If a Notice of
Disagreement is received by the Company in a timely manner, then the Statement (as revised in
accordance with this sentence) shall become final and binding upon the Company and Purchaser on the
earlier of (A) the date the Company and Purchaser resolve in writing any differences they have with
respect to the matters specified in the Notice of Disagreement or (B) the date any disputed matters
are finally resolved in writing by the Accounting Firm. During the 30-day period following the
delivery of a Notice of Disagreement, the Company and Purchaser shall seek in good faith to resolve
in writing any differences that they may have with respect to the matters specified in the Notice
of Disagreement. During such period the Company and its auditors shall have access to the working
papers of Purchaser prepared in connection with the Notice of Disagreement. At the end of such
30-day period, the Company and Purchaser shall submit to an independent accounting firm (the
“Accounting Firm”) for arbitration any and all matters that remain in dispute and that were
properly included in the Notice of Disagreement. The Accounting Firm shall be KPMG LLP or such
other nationally recognized independent public accounting firm as shall be agreed upon by the
parties hereto in writing. The Company and Purchaser shall jointly request that the Accounting
Firm render a decision resolving the matters submitted to the Accounting Firm within 30 days after
such submission. The Accounting Firm shall have full authority to arbitrate all issues relating to
purchase price adjustment pursuant to this Section 1.03. Judgment may be entered upon the
determination of the Accounting Firm in any court having jurisdiction over the party against which
such determination is to be enforced. The cost of any arbitration (including the fees and expenses
of the Accounting Firm and reasonable attorney fees and expenses of the parties) pursuant to this
Section 1.03 shall be borne by Purchaser and the Company in inverse proportion as they may
prevail on matters resolved by the Accounting Firm, which proportionate allocations shall also be
determined by the Accounting Firm at the time its determination is rendered on the merits of the
matters submitted.
(c) The Purchase Price shall be decreased by the amount by which Closing Working Capital is
less than the Company’s Working Capital at September 30, 2010 (“Target Working Capital”)
(the Common Stock Purchase Price as so decreased shall hereinafter be referred to as the
“Adjusted Purchase Price”). In no event will the Common Stock Purchase Price be increased.
If the Closing Date Amount is less than the Adjusted Purchase Price,
4
Purchaser shall, and if the Closing Date Amount is more than the Adjusted Purchase Price, the
Company shall, within 10 Business Days after the Statement becomes final and binding on the
parties, pay by wire transfer of immediately available funds the amount of such difference,
together with interest thereon compounded daily at a rate equal to the rate of interest from time
to time announced publicly by Citibank N.A. as its prime rate, calculated on the basis of the
actual number of days elapsed divided by 365, from the Closing Date to the date of payment.
(d) The term “Working Capital” means Current Assets minus Current Liabilities. The
terms “Current Assets” and “Current Liabilities” mean the consolidated current
assets and consolidated current liabilities, respectively, of the Company, calculated in accordance
with United States generally accepted accounting principles as in effect on the date hereof
(“GAAP”).
Section 2.01
First Closing Date. The first closing of the Acquisition (the “
First
Closing”) shall take place at the offices of Sidley Austin LLP, 000 Xxxxxxx Xxxxxx, Xxx Xxxx,
X.X. 00000, at 10:00 a.m. on the later of (a) the second Business Day following the date on which
each of the conditions set forth in Article VI is satisfied or waived by the party entitled to
waive such condition (except for any conditions that by their nature can only be satisfied on the
First Closing Date, but subject to the satisfaction of such conditions or waiver by the party
entitled to waive such conditions) and (b) 60 days after the date hereof or such earlier date as
the Purchaser may designate in writing. The date on which the First Closing occurs is referred to
herein as the “
First Closing Date.” The First Closing Date and the Second Closing Date are
herein referred to as the “Closing Dates” and the First Closing and the Second Closing are herein
referred to as the “Closings.”
(a) The Company shall deliver or cause to be delivered to the Purchaser:
(i) certificates representing the Purchased, Common Shares registered in the name of
the Purchaser;
(ii) a “good standing” certificate for the Company and each Company Subsidiary, and a
copy of the Certificate of Incorporation and all amendments thereto (or comparable document)
of the Company and each Company Subsidiary, in each case certified by the Secretary of State
of the jurisdiction of organization of such entity, each dated as of a date within five
Business Days before the First Closing Date;
(iii) a certificate of the secretary of the Company and each Company Subsidiary in form
and substance reasonably acceptable to the Purchaser;
(iv) each Ancillary Agreement to which it is a party;
(v) designation of Xxxxxxxx Xxxx as the executive Chairman of the Company and Xxxx Xxx
as a member of the Company’s board of directors; and
5
(vi) the other documents required to be delivered by it pursuant to Article VI
(Conditions Precedent);
(b) The Purchaser shall deliver to the Company:
(i) payment, by wire transfer to a bank account designated in writing by the Company
(such designation to be made at least two Business Days before the First Closing Date), of
immediately available funds in an amount equal to (i) the sum of (A) the Common Stock
Purchase Price and (B) the Shenzhen Plant Assets Purchase Price minus (ii) an estimate,
prepared by the Company and reasonably acceptable to Purchaser, of any adjustment to the
Common Stock Purchase Price under Section 1.04 (Purchase Price Adjustment) (the
Common Stock Purchase Price minus such estimate is referred to herein as the “First
Closing Date Amount”);
(ii) each Ancillary Agreement to which it is a party; and
(iii) the other documents required to be delivered by it pursuant to Article
VI.
Section 2.03
Second Closing Date. The second closing of the Acquisition (the “Second
Closing”) shall take place at the offices of Sidley Austin LLP, 000 0
xx Xxxxxx, Xxx
Xxxx, X.X. 00000, at 10:00 a.m. on the later of (a) the second Business Day following the date on
which each of the conditions set forth in
Article VI A is satisfied or waived by the party
entitled to waive such condition (except for any conditions that by their nature can only be
satisfied on the Second Closing Date, but subject to the satisfaction of such conditions or waiver
by the party entitled to waive such conditions) and (b) 60 days after the date hereof or such
earlier date as the Purchaser may designate in writing. The date on which the Second Closing
occurs is referred to herein as the “
Second Closing Date.”
(a) The Company shall deliver or cause to be delivered to Purchaser:
(i) Certificates representing the Purchased Preferred Shares registered in the name of
the Purchaser;
(ii) a certificate of the secretary of the Company and each Company Subsidiary in form
and substance acceptable to the Purchaser;
(iii) the other documents required to be delivered by it pursuant to Article VI
A.
(b) The Purchaser shall deliver to the Company:
(i) Payment, by wire transfer to a bank account designated in writing by the Company
(such designation to be made at least two Business Days before the Second Closing Date), of
immediately available funds in an amount equal to the Preferred Stock Purchase Price.
6
Except as set forth in the Schedules, the Company represents and warrants to the Purchaser, as
of the date hereof and as of the First Closing Date and Second Closing Date, as follows:
Section 3.01
Organization, Standing and Power; Books and Records. (a) Each of the
Company and the Company Subsidiaries is duly organized, validly existing and in good standing under
the laws of the jurisdiction in which it is organized, which jurisdiction is set forth in
Schedule 3.01(a). Each of the Company and the Company Subsidiaries has full entity power
and authority and possesses all governmental franchises, licenses, permits, authorizations and
approvals necessary to enable it to own, lease or otherwise hold its properties and assets and to
carry on its business as presently conducted, other than such franchises, licenses, permits,
authorizations and approvals the lack of which, individually or in the aggregate, has not had and
would not reasonably be expected to have a Company Material Adverse Effect. Each of the Company
and the Company Subsidiaries is duly qualified and in good standing to do business in each
jurisdiction in which the conduct or nature of its business or the ownership, leasing or holding of
its properties makes such qualification necessary, except such jurisdictions where the failure to
be so qualified or in good standing, individually or in the aggregate, has not had and would not
reasonably be expected to have a Company Material Adverse Effect. A true and complete list of the
jurisdictions in which the Company and the Company Subsidiaries are so qualified is set forth in
Schedule 3.01(a).
(b) The Company has delivered to the Purchaser true and complete copies of the certificate of
incorporation and by-laws (or comparable documents), each as amended to date, of the Company and
each Company Subsidiary. The minute books of the Company and each Company Subsidiary, all of which
have been made available to the Purchaser before the date hereof, will be in the possession of the
Company or the applicable Company Subsidiary.
Section 3.02
Capital Stock of the Company and the Company Subsidiaries. (a) The
aggregate number of shares and type of all authorized, issued and outstanding classes of capital
stock, options and other securities of the Company (whether or not presently convertible into or
exercisable or exchangeable for shares of capital stock of the Company) is set forth in
Schedule 3.02(a). Except as set forth on
Schedule 3.02(a), there are no shares of
capital stock or other securities of the Company issued, reserved for issuance or outstanding.
Schedule 3.02(a) also sets forth for each Company Subsidiary the amount of its authorized
capital stock, the amount of its outstanding capital stock and the record and beneficial owners of
its outstanding capital stock, and there are no other shares of capital stock or other equity
securities of any Company Subsidiary issued, reserved for issuance or outstanding. All of the
outstanding equity securities and other securities of each Company Subsidiary are owned of record
and beneficially by the Company or one or more Company Subsidiaries, free and clear of all Liens.
Except as contemplated in this Agreement, no legend or other reference to any purported Lien
appears upon any certificate representing the Shares or any equity securities or other securities
of any Company Subsidiary. The Purchased Shares are duly authorized and (when issued and paid for
in accordance with the terms and conditions herein) will be, the Conversion Shares are duly
7
authorized and (when issued in accordance with the terms of the Purchased Preferred Shares
will be, and all the outstanding shares of capital stock of the Company and each Company Subsidiary
are duly authorized and are, validly issued, fully paid and nonassessable and not subject to or
issued in violation of any purchase option, call option, right of first refusal, preemptive right,
subscription right or any similar right under any provision of Applicable Law, the certificate of
incorporation or by-laws (or comparable documents) of the Company or any Company Subsidiary or any
Contract to which the Company or any Company Subsidiary is a party or otherwise bound. There are
not any bonds, debentures, notes or other Indebtedness of the Company having the right to vote (or
convertible into, or exchangeable for, securities having the right to vote) on any matters on which
holders of shares of common stock the Company may vote (“Voting Company Debt”). Except as
set forth above, there are not any options, warrants, rights, convertible or exchangeable
securities, “phantom” stock rights, stock appreciation rights, stock-based performance units,
commitments, Contracts, arrangements or undertakings of any kind to which the Company or any
Company Subsidiary is a party or by which any of them is bound (i) obligating the Company or any
Company Subsidiary to issue, deliver or sell, or cause to be issued, delivered or sold, additional
shares of capital stock or other equity interests in, or any security convertible or exercisable
for or exchangeable into any capital stock of or other equity interest in, the Company or of any
Company Subsidiary or any Voting Company Debt, (ii) obligating the Company or any Company
Subsidiary to issue, grant, extend or enter into any such option, warrant, call, right, security,
commitment, Contract, arrangement or undertaking or (iii) that give any Person the right to receive
any economic benefit or right similar to or derived from the economic benefits and rights accruing
to holders of shares of capital stock of the Company (collectively, “Rights”). There are
not any outstanding contractual obligations of the Company or any Company Subsidiary to repurchase,
redeem or otherwise acquire any capital stock, membership interests, partnership interests, joint
venture interests or other equity interests of the Company or any Company Subsidiary.
(b) Schedule 3.02(b) sets forth a true and complete list of all capital stock,
membership interests, partnership interests, joint venture interests and other equity interests in
any Person (other than a Company Subsidiary) owned, directly or indirectly, by the Company or any
Company Subsidiary.
(c) To the Knowledge of the Company, except as disclosed in the SEC Reports and any schedules
filed with the United States Securities and Exchange Commission (the “SEC”) pursuant to
Rule 13d-1 of the Securities Exchange Act of 1934 (the “Exchange Act”) by reporting
persons or in Schedule 3.02(c) hereto, no Person or group of related Persons beneficially
owns (as determined pursuant to Rule 13d-3 under the Exchange Act), or has the right to acquire, by
agreement with or by obligation binding upon the Company, beneficial ownership of in excess of 5%
of the outstanding Common Stock.
(d) Except as set forth in Schedule 3.02(d), the Company and each Company Subsidiary
have the unrestricted right to vote, and (subject to limitations imposed by applicable law) to
receive dividends and distributions on, all capital securities or ownership interest of the Company
Subsidiaries as owned by the Company or such Company Subsidiary.
8
Agreement and the Ancillary Agreements to which it is, or is specified to be, a party and to
consummate the Transactions, and no action is required to be taken or approval given by the
Company’s stockholders in order for the Transactions to be validly consummated under any Applicable
Law or the rules of any securities exchange or trading system on which the Company’s securities are
traded or listed for trading. The execution and delivery by the Company hereof and the Ancillary
Agreements to which it is, or is specified to be, a party and the consummation by the Company of
the Transactions have been duly authorized by all necessary action, corporate and otherwise. The
Company has duly executed and delivered this Agreement and at or before the First Closing will have
duly executed and delivered each Ancillary Agreement to which it is, or is specified to be, a
party, and this Agreement constitutes, and each Ancillary Agreement to which it is, or is specified
to be, a party will after the First Closing constitute, its legal, valid and binding obligation,
enforceable against it in accordance with its terms, except as limited by Applicable Laws affecting
the enforcement of creditors’ rights generally, by general equitable principles or by the
discretion of any government or any arbitrator, tribunal or court of competent jurisdiction,
administrative agency or commission or other governmental authority or instrumentality (in each
case whether Federal, state, local, foreign, international or multinational) (a “Governmental
Entity”) before which any Proceeding seeking enforcement may be brought.
Section 3.04
No Conflicts; Consents. The execution and delivery by the Company hereof
do not, the execution and delivery by the Company of each Ancillary Agreement to which it is, or is
specified to be, a party will not, and the consummation of the Transactions and compliance by the
Company with the terms hereof and thereof will not contravene, conflict with, or result in any
violation of or default (with or without notice or lapse of time, or both) under, or give rise to a
right of termination, cancellation or acceleration of any obligation, to a right to challenge the
Transactions or to loss of a material benefit under, or to increased, additional, accelerated or
guaranteed rights or entitlements of any Person under, or result in the creation of any Lien upon
any of the properties or assets of the Company or any Company Subsidiary under, any provision of
(i) the certificate of incorporation or by-laws (or comparable documents) of the Company or any
Company Subsidiary, (ii) any Contract or Benefit Plan to which the Company or any Company
Subsidiary is a party or by which any of their respective properties or assets is bound or (iii)
any judgment, order, decree, award, ruling, decision, verdict, subpoena, injunction or settlement
entered, issued, made or rendered by, or any consent agreement, memorandum of understanding or
other Contract with, any Governmental Entity (in each case whether temporary, preliminary or
permanent) (“
Judgment”), Permit or Applicable Law applicable to the Company or any Company
Subsidiary or their respective properties or assets, other than, in the case of clauses (ii) and
(iii) above, any such items that, individually or in the aggregate, have not had and would not
reasonably be expected to have a Company Material Adverse Effect. No consent, approval, waiver,
license, permit, franchise, authorization or Judgment (“
Consent”) of, or registration,
declaration, notice, report, submission or other filing (“
Filing”) with, any Governmental
Entity is required to be obtained or made by or with respect to the Company or any Company
Subsidiary in connection with the execution, delivery and performance hereof or any Ancillary
Agreement or the consummation of the Transactions or the ownership by the Purchaser of the Shares
following the Closings, other than (A) compliance with and Filings under Section 13(a) and Section
14(f) of the Exchange Act, (B) those that may be required solely by reason of the Purchaser’s (as
opposed to any other third party’s) participation in the
9
Transactions, and (C) those which if not obtained or made will not reasonably be expected to
have a Company Material Adverse Effect.
Section 3.05
Financial Statements. (a) The consolidated financial statements of the
Company included in the SEC Reports, including the notes thereto and all related compilations,
reviews and other reports issued by the Company’s accountants with respect thereto (the
“
Financial Statements”), comply as to form in all material respects with applicable
accounting requirements and the published rules and regulations of the SEC with respect thereto.
The Financial Statements: (i) have been prepared from the books and records of the Company and the
Company Subsidiaries in accordance with GAAP consistently applied during the periods covered
thereby (except as otherwise disclosed therein); (ii) are complete and correct in all material
respects; and (iii) fairly present the financial condition and the results of operations, cash
flows and changes in stockholders’ equity of the Company (on a consolidated basis) as of the
respective dates of and for the periods referred to in the Financial Statements, all in accordance
with GAAP, subject, in the case of interim Financial Statements, to normal recurring year-end
adjustments (the effect of which will not, individually or in the aggregate, be materially adverse)
and the absence of notes (that, if presented, would not differ materially from those included in
the most recent year-end Financial Statements). The interim Financial Statements have been
reviewed by the Company’s accountants in accordance with Statement of Auditing Standards No. 100.
The books and records of the Company and the Company Subsidiaries, all of which have been made
available to the Purchaser before the date hereof, are true and complete, have been maintained in
accordance with sound business practices and accurately present and reflect in all material
respects all of the transactions and actions therein described. No financial statements of any
Person other than the Company and the Company Subsidiaries are required by GAAP to be included in
the consolidated financial statements of the Company.
(b) The Company and the Company Subsidiaries do not have any material liabilities or
obligations (whether absolute or contingent, asserted or unasserted, known or unknown, primary or
secondary, direct or indirect, and whether or not accrued) of a nature required by GAAP to be
reflected on a consolidated balance sheet of the Company or in the notes thereto, except (i) as
disclosed, reflected or reserved against in the balance sheet included in the most recent quarterly
report on Form 10-Q filed by the Company prior to the date hereof (the “Interim Balance
Sheet”) or the notes thereto and (ii) for liabilities and obligations incurred in the Ordinary
Course of Business since the date of such Audited and/or Interim Balance Sheet and not in violation
hereof.
(c) The Company and the Company Subsidiaries maintain internal accounting controls sufficient
to provide reasonable assurances that (i) transactions are executed in accordance with management’s
general or specific authorizations, (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted accounting principles and
to maintain accountability for assets, (iii) access to assets is permitted only in accordance with
management’s general or specific authorization and (iv) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(d) The Company maintains disclosure controls and procedures (as such term is defined in Rule
13a-15 of the General Rules and Regulations under the Exchange Act) that
10
comply with the requirements of the Exchange Act. Such disclosure controls and procedures
have been designed to ensure that information required to be disclosed by the Company and the
Company Subsidiaries is accumulated and communicated to the Company’s management. The records,
systems, controls, data and information of the Company and the Company Subsidiaries are recorded,
stored, maintained and operated under means (including any electronic, mechanical or photographic
process, whether computerized or not) that are under the exclusive ownership and direct control of
the Company (including all means of access thereto and therefrom). The Company (x) has implemented
and maintains disclosure controls and procedures to ensure that material information relating to
the Company and the Company Subsidiaries is made known to the chief executive officer and the chief
financial officer of the Company by others within those entities and (y) has disclosed, based on
its most recent evaluation, to the Company’s outside auditors and the audit committee of the
Company’s board of directors (i) any significant deficiencies and material weaknesses in the design
or operation of internal controls over financial reporting that are reasonably likely to adversely
affect the Company’s ability to record, process, 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 the Company’s internal controls over financial reporting. These disclosures
were made in writing by management to the Company’s auditors and audit committee, true and complete
copies of which have been made available to the Purchaser before the date hereof.
Section 3.06
Absence of Changes or Events. Since the date of the Interim Balance
Sheet, there has not occurred any event and no circumstances exist that constitute or would
reasonably be expected to result in a Company Material Adverse Effect. Since the date of the
Interim Balance Sheet, the business of the Company and the Company Subsidiaries has been conducted
in the Ordinary Course of Business. Except as set forth on
Schedule 3.06, since the date
of the Interim Balance Sheet to the date hereof, neither the Company nor any Company Subsidiary has
taken any action that, if taken after the date hereof, would constitute a breach of
Section
5.01.
Section 3.07
Assets Other than Real Property Interests. The Company or a Company
Subsidiary has good and valid title to all the assets reflected on the Interim Balance Sheet or
thereafter acquired, other than assets disposed of in the Ordinary Course of Business since the
date of the Interim Balance Sheet and not in violation hereof, in each case free and clear of all
Liens other than Permitted Liens.
Schedule 3.07 sets forth a brief description of each
item of equipment or other personal property of the Company and the Company Subsidiaries with an
original cost in excess of $500,000, indicating, in each case, the purchase price thereof, the year
of purchase and the accumulated book depreciation through the date of the Interim Balance Sheet.
Each item set forth or required to be set forth in
Schedule 3.07 is adequate for the uses
to which it is being put, is in good working order (ordinary wear and tear excepted), is free from
any material defect and has been maintained in all material respects in accordance with the past
practice of the Company and the Company Subsidiaries and generally accepted industry practice, and
no repairs, replacements or regularly scheduled maintenance relating to any such item has been
deferred. All leased equipment and other personal property of the Company and the Company
Subsidiaries is in all material respects in the condition required of such property by the terms of
the lease applicable thereto. The buildings, plants and structures of the Company and the Company
Subsidiaries are structurally sound, are in good condition and repair, and are adequate for the
uses to which they are being put, and none of such buildings, plants or structures
11
are in need of maintenance or repairs except for ordinary, routine maintenance and repairs
that are not material in nature or cost. The assets of the Company and the Company Subsidiaries
are sufficient for the continued conduct of the business of the Company and the Company
Subsidiaries in substantially the same manner as conducted before the date hereof.
Section 3.08
Real Property. (a) Neither the Company nor any Company Subsidiary own
any Real Property.
Schedule 3.08(a) sets forth a complete list of all real property and
interests in real property leased by the Company or any Company Subsidiary (individually, a “Leased
Property”) and identifies any material base leases or operating Contracts relating thereto. The
Company or a Company Subsidiary has good and valid title to the leasehold estates in all Leased
Property, in each case free and clear of all Liens other than Permitted Liens.
(b) There (i) is adequate access between each Leased Property and public roads, and there are
no pending or threatened Proceedings that could have the effect of impairing or restricting such
access, (ii) are sufficient parking spaces on each Leased Property to comply with all applicable
provisions of any Contracts to which such Leased Property is subject, local zoning requirements and
all other Applicable Laws, (iii) to the Company’s knowledge, there are no material defects in the
roof, foundation, sprinkler mains, structural, mechanical and HVAC systems and masonry walls in any
of the improvements upon each Leased Property, no significant repairs thereof are required, and all
periodic maintenance has been done and is being done consistent with first class maintenance
standards for real property of similar size and age in the vicinity of such Leased Property, except
in all such cases for matters that, individually or in the aggregate, have not had and would not
reasonably be expected to have a Company Material Adverse Effect.
(c) To the Company’s knowledge, the occupancies and uses of the Leased Properties, comply with
all Applicable Laws and are not in violation of any thereof; and all certificate(s) of occupancy
and all other Permits required by Applicable Law for the proper use and operation of the Leased
Properties are in full force and effect. Since January 1, 2009, none of the Company and the
Company Subsidiaries have received notice of, and do not otherwise have Knowledge of, any
violations, Proceedings or Judgments relating to zoning, building use and occupancy, traffic, fire,
health, sanitation, air pollution, ecological, environmental or other Applicable Law, against or
with respect to the Leased Properties.
Section 3.09
Intellectual Property. (a)
Schedule 3.09(a) sets forth a true
and complete list of all Intellectual Property, owned, used, filed by or licensed to the Company or
any Company Subsidiary, other than unregistered designs and copyrights that, individually or in the
aggregate, are not material to the conduct of the business of the Company and the Company
Subsidiaries as presently conducted. The Intellectual Property set forth or required to be set
forth on
Schedule 3.09(a) is referred to herein as the “
Company Intellectual
Property.” With respect to all Company Intellectual Property that is registered or subject to
an application for registration,
Schedule 3.09(a) sets forth a list of all jurisdictions in
which such Company Intellectual Property is registered or in which registrations have been applied
for and all registration and application numbers. All Company Intellectual Property has been duly
registered in, filed in or issued by the appropriate Governmental Entity where such registration,
filing or issuance is necessary or appropriate for the conduct of the business of the Company and
the Company Subsidiaries as presently conducted. The Company or a Company Subsidiary is
12
the sole and exclusive owner of, and the Company and the Company Subsidiaries have the right
to use, execute, reproduce, display, perform, modify, enhance, distribute, prepare derivative works
of and sublicense, without payment to any other Person, all Company Intellectual Property and the
execution and delivery of this Agreement and the Ancillary Agreements and the consummation of the
Transactions do not and will not contravene, conflict with, alter or impair any such rights. Since
January 1, 2009, none of the Company and the Company Subsidiaries have received any communication
from any Person asserting any ownership interest in any Company Intellectual Property.
(b) None of the Company and the Company Subsidiaries have granted any license of any kind
relating to any Technology or the Company Intellectual Property or the marketing or distribution
thereof, except nonexclusive licenses to end-users in the Ordinary Course of Business. None of the
Company and the Company Subsidiaries are bound by or a party to any option, license or similar
Contract relating to the Intellectual Property of any other Person for the use of such Intellectual
Property in the conduct of the business of the Company and the Company Subsidiaries, except for so
called “shrink-wrap” license agreements relating to computer software licensed to the Company or a
Company Subsidiary in the Ordinary Course of Business. The conduct of the business of the Company
and the Company Subsidiaries as presently conducted does not violate, conflict with or infringe the
Intellectual Property of any other Person. No claims are pending or, to the Knowledge of the
Company, threatened, against the Company or any Company Subsidiary by any Person with respect to
the ownership, validity, enforceability, effectiveness or use in the business of the Company and
the Company Subsidiaries of any Intellectual Property. Since January 1, 2009, none of the Company
and the Company Subsidiaries have received any communication alleging that the Company or any
Company Subsidiary violated any rights relating to Intellectual Property of any Person.
(c) All material Technology has been maintained in confidence in accordance with protection
procedures customarily used in the industry to protect rights of like importance. All former and
current members of management and key personnel of the Company and the Company Subsidiaries,
including all former and current employees, agents, consultants and independent contractors who
have contributed to or participated in the conception and development of material Technology
(collectively, “Personnel”), have executed and delivered to the Company a proprietary
information agreement restricting such Person’s right to disclose proprietary information of the
Company and the Company Subsidiaries. All former and current Personnel either (i) have been party
to a written “work-for-hire” Contract with the Company or a Company Subsidiary that, in accordance
with all Applicable Laws, has accorded the Company or such Company Subsidiary full, effective,
exclusive and original ownership of all tangible and intangible property thereby arising or (ii)
have executed appropriate instruments of assignment in favor of the Company or such Company
Subsidiary as assignee that have conveyed to the Company or such Company Subsidiary full, effective
and exclusive ownership of all tangible and intangible property thereby arising. No former or
current Personnel have any claim against the Company or any Company Subsidiary in connection with
such Person’s involvement in the conception and development of any Technology and no such claim has
been asserted or, to the Knowledge of the Company, threatened. None of the current officers and
employees of the Company and the Company Subsidiaries has any patents issued or applications
pending for any device, process, design or invention of any kind now used or needed by the Company
or any Company Subsidiary in the furtherance of the business of the Company and the Company
13
Subsidiaries, which patents or applications have not been assigned to the Company or a Company
Subsidiary with such assignment duly recorded in the United States Patent and Trademark Office.
Section 3.10
Inventory. Each item of inventory of the Company and the Company
Subsidiaries, whether reflected on the Interim Balance Sheet or subsequently acquired, (a) is free
of any material defect or deficiency, (b) is in good, usable and currently marketable condition
consistent with past practice in the Ordinary Course of Business of the Company and the Company
Subsidiaries (subject, in the case of raw materials and work-in-process, to the completion of the
production process), and (c) is properly reflected in the books and records of the Company at the
lesser of cost and fair market value, with adequate obsolescence reserves, all as determined in
accordance with GAAP. Since the date of the Interim Balance Sheet, there have not been any
write-downs of the value of, or establishment of any reserves against, any inventory of the Company
and the Company Subsidiaries except for write-downs and reserves in the Ordinary Course of
Business.
Section 3.11
Receivables. All the accounts receivable of the Company and the Company
Subsidiaries that are reflected on the Interim Balance Sheet or on the accounting records of the
Company or any Company Subsidiary as of the First Closing Date (a) represent actual indebtedness
incurred by the applicable account debtors and (b) have arisen from bona fide transactions in the
Ordinary Course of Business. Except as disclosed in
Schedule 3.11, to the Knowledge of the
Company, all such accounts receivable are good and collectible at the aggregate recorded amounts
thereof, net of any applicable reserves for doubtful accounts reflected on the Interim Balance
Sheet. Since the date of the Interim Balance Sheet, there have not been any write-offs as
uncollectible of any customer accounts receivable of the Company and the Company Subsidiaries,
except for write-offs in the Ordinary Course of Business.
Section 3.12
Contracts. (a)
Schedule 3.12(a) sets forth a true and complete
list of each of the following Contracts to which the Company or any Company Subsidiary is a party
or by which the Company or any Company Subsidiary or any of their assets or businesses are bound
(and any amendments, supplements and modifications thereto):
(i) employment Contract that has an aggregate future liability in excess of $100,000
and is not terminable by the Company or a Company Subsidiary by notice of not more than 60
days for a cost of less than $50,000;
(ii) collective bargaining agreement or other Contract with any labor organization,
union or association;
(iii) Contract or covenant not to compete or other Contract restricting the
development, manufacture, marketing or distribution of the products and services of the
Company or any Company Subsidiary;
(iv) Contract with any current or former officer, director or employee of the Company,
a Company Subsidiary;
(v) lease, sublease or similar Contract with any Person (other than the Company or a
Company Subsidiary) under which the Company or a Company Subsidiary
14
is a lessor or sublessor of, or makes available for use to any Person (other than the
Company or a Company Subsidiary), (A) any Leased Property or (B) any portion of any premises
otherwise occupied by the Company or a Company Subsidiary;
(vi) lease, sublease or similar Contract with any Person (other than the Company or a
Company Subsidiary) under which (A) the Company or a Company Subsidiary is lessee of, or
holds or uses, any machinery, equipment, vehicle or other tangible personal property owned
by any Person or (B) the Company or a Company Subsidiary is a lessor or sublessor of, or
makes available for use by any Person, any tangible personal property owned or leased by the
Company or a Company Subsidiary, in any such case that has an aggregate future liability or
receivable, as the case may be, in excess of $25,000 and is not terminable by the Company or
a Company Subsidiary by notice of not more than 60 days for a cost of less than $10,000;
(vii) (A) continuing Contract for the future purchase of materials, supplies or
equipment (other than purchase Contracts and orders for inventory in the Ordinary Course of
Business), (B) management, service, consulting or other similar Contract or (C) advertising
Contract, in any such case that has an aggregate future liability to any Person (other than
the Company or a Company Subsidiary) in excess of $100,000 and is not terminable by the
Company or a Company Subsidiary by notice of not more than 60 days for a cost of less than
$25,000;
(viii) license, sublicense, option or other agreement relating in whole or in part to
the Company Intellectual Property (including any license or other agreement under which the
Company or a Company Subsidiary is licensee or licensor of any Intellectual Property) or to
any material Technology;
(ix) Contract under which the Company or a Company Subsidiary has borrowed any money
from, or issued any note, bond, debenture or other evidence of Indebtedness to, any Person
(other than the Company or a Company Subsidiary) or any other note, bond, debenture or other
evidence of Indebtedness of the Company or a Company Subsidiary (other than in favor of the
Company or a Company Subsidiary), in any such case that, individually, is in excess of
$25,000;
(x) Contract (including any so called take-or-pay or keepwell agreements) under which
(A) any Person including the Company or a Company Subsidiary, has directly or indirectly
guaranteed Indebtedness, liabilities or obligations of the Company or a Company Subsidiary
or (B) the Company or a Company Subsidiary has directly or indirectly guaranteed
Indebtedness, liabilities or obligations of any Person, including the Company or another
Company Subsidiary (in each case other than endorsements for the purpose of collection in
the Ordinary Course of Business);
(xi) Contract under which the Company or a Company Subsidiary has, directly or
indirectly, made any advance, loan, extension of credit or capital contribution to, or other
investment in, any Person (other than the Company or a Company Subsidiary and other than
extensions of trade credit in the Ordinary Course of Business);
15
(xii) Contract granting a Lien upon any Leased Property or any other material asset;
(xiii) Contract providing for indemnification by the Company or any Company Subsidiary
of any Person with respect to liabilities relating to any current or former business of the
Company, a Company Subsidiary or any predecessor Person, and for which the maximum
obligation thereunder could reasonably be expected to exceed $20,000;
(xiv) a power of attorney (other than a power of attorney given in the Ordinary Course
of Business with respect to routine tax matters, SEC filings pursuant to Section 16 and
other non-material matters);
(xv) a Contract not made in the Ordinary Course of Business;
(xvi) a Contract (including a purchase order) involving payment by the Company or a
Company Subsidiary of more than $100,000 or extending for a term more than 180 days from the
date hereof (unless terminable without payment or penalty upon no more than 60 days’
notice);
(xvii) a Contract (including a sales order) involving the obligation of the Company or
a Company Subsidiary to deliver products or services for payment of more than $50,000 or
extending for a term more than 180 days from the date hereof (unless terminable without
payment or penalty upon no more than 60 days’ notice);
(xviii) a Contract for the sale of any material asset of the Company or a Company
Subsidiary (other than inventory sales in the Ordinary Course of Business) or the grant of
any preferential rights to purchase any such asset or requiring the Consent of any party to
the transfer thereof;
(xix) a Contract with or license or Permit by or from any Governmental Entity;
(xx) a currency exchange, interest rate exchange, commodity exchange or similar
Contract;
(xxi) a Contract for any joint venture, partnership or similar arrangement, or any
Contract involving a sharing of profits, losses, costs, or liabilities by the Company or any
Company Subsidiary with any other Person;
(xxii) a Contract providing for the services of any dealer, distributor, sales
representative, franchisee or similar representative involving the payment or receipt over
the life of such Contract in excess of $25,000 by the Company or a Company Subsidiary;
(xxiii) other Contract that has an aggregate future liability to any Person in excess
of $100,000 and is not terminable by the Company or a Company Subsidiary by notice of not
more than 60 days for a cost of less than $25,000; or
16
(xxiv) a Contract other than as set forth above that is material to the business of the
Company and the Company Subsidiaries or the use or operation of their assets.
(b) All Contracts set forth or required to be set forth in Schedule 3.12(a) (the
“Company Contracts”) are valid, binding and in full force and effect and are enforceable by
the Company or the applicable Company Subsidiary in accordance with their terms, except as limited
by Laws affecting the enforcement of creditors’ rights generally, by general equitable principles
or by the discretion of any Governmental Entity before which any Proceeding seeking enforcement may
be brought, except for such failures to be valid, binding, in full force and effect or enforceable
that, individually or in the aggregate, have not had and would not reasonably be expected to have a
Company Material Adverse Effect. The Company or the applicable Company Subsidiary has performed
all obligations required to be performed by it under the Company Contracts, and it is not (with or
without notice or lapse of time, or both) in breach or default in any respect thereunder and, to
the Knowledge of the Company, no other party to any Company Contract is (with or without notice or
lapse of time, or both) in breach or default in any respect thereunder, except for such
noncompliance, breaches and defaults that, individually or in the aggregate, have not had and would
not reasonably be expected to have a Company Material Adverse Effect. None of the Company and the
Company Subsidiaries has received notice of any actual, alleged, possible or potential violation
of, or failure to comply with, any term or requirement of any Company Contract unless the foregoing
have not had and would not reasonably be expected to have a Company Material Adverse Effect. No
circumstances exist and, since January 1, 2009, no event has occurred that (with or without notice
or lapse of time, or both) would contravene, conflict with, or result in a violation or breach of,
or give the Company or any Company Subsidiary or any other Person the right to declare a default or
exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate
or modify, any Company Contract. None of the Company and the Company Subsidiaries has received any
notice of the intention of any party to terminate any Company Contract. True and complete copies
of all the Company Contracts, together with all amendments, supplements and modifications thereto,
have been delivered to the Purchaser before the date hereof. No officer, director, agent,
employee, consultant, or contractor of the Company or any Company Subsidiary is bound by any
Contract that purports to limit the ability of such officer, director, agent, employee, consultant,
or contractor to (A) engage in or continue any conduct, activity or practice relating to the
business of the Company or any Company Subsidiary or (B) assign to the Company or any Company
Subsidiary or to any other Person any rights to any invention, improvement or discovery. As of the
date hereof, there are no renegotiations of, attempts to renegotiate, or outstanding rights to
renegotiate any material amounts paid or payable to the Company or any Company Subsidiary under
current or completed Company Contracts with any Person and no such Person has made demand for such
renegotiation. The Company Contracts relating to the sale, design, manufacture or provision of
products or services by the Company or any Company Subsidiary have been entered into in the
Ordinary Course of Business and have been entered into without the commission of any act alone or
in concert with any other Person, or any consideration having been paid or promised, that is or
would be in violation of any Applicable Law.
Section 3.13
Permits. (a)
Schedule 3.13(a) sets forth all material
certificates, licenses, permits, authorizations and approvals (“
Permits”) issued or granted
to the Company or a Company Subsidiary. All Permits set forth or required to be set forth in
Schedule 3.13(a) are
17
validly held by the Company or a Company Subsidiary, and the Company or the applicable Company
Subsidiary is in compliance, and since January 1, 2009 has complied, in all material respects with
all terms and conditions thereof. Since January 1, 2009, none of the Company and the Company
Subsidiaries has received notice of any Proceeding relating to (i) any actual, alleged, possible or
potential violation of, or failure to comply with, any term or requirement of any such Permit or
(ii) any actual, proposed, possible or potential revocation, withdrawal, suspension, cancellation,
termination, nonrenewal or modification of any such Permit the loss of which, individually or in
the aggregate, has had or would reasonably be expected to have a Company Material Adverse Effect.
No event has occurred since January 1, 2009 and no circumstance exists that (with or without notice
or lapse of time, or both) (i) constitute or would reasonably be expected to result, directly or
indirectly, in a violation of, or a failure to comply with, any material term or requirement of any
such Permit or (ii) would reasonably be expected to result, directly or indirectly, in the
revocation, withdrawal, suspension, cancellation, termination, nonrenewal or modification of any
such Permit. All applications required to have been filed for the renewal of each such Permit have
been duly filed on a timely basis with the appropriate Governmental Entity, and all other Filings
required to have been made with respect to each such Permit have been duly made on a timely basis
with the appropriate Governmental Entity. None of such Permits will be subject to revocation,
withdrawal, suspension, termination, nonrenewal or modification as a result of the execution and
delivery hereof or any Ancillary Agreement or the consummation of the Transactions.
(b) The Company and the Company Subsidiaries possess or have applied for all Permits to own or
hold under lease and operate their respective assets and to conduct the business of the Company and
the Company Subsidiaries as currently conducted, other than such Permits the absence of which,
individually or in the aggregate, has not had and would not reasonably be expected to have a
Company Material Adverse Effect.
Section 3.14
Insurance.
Schedule 3.14 sets forth a true and complete list of
the insurance policies maintained with respect to the Company and the Company Subsidiaries, their
respective assets and properties, or their directors, officers or employees. True and complete
copies of all such insurance policies and all related applications, together with all modifications
and amendments thereto, have been delivered to the Purchaser before the date hereof. All such
policies are in full force and effect, all premiums due and payable thereon have been paid (other
than retroactive or retrospective premium adjustments that are not yet, but may be, required to be
paid with respect to any period ending before the First Closing Date), and no notice of
cancellation or termination has been received with respect to any such policy that has not been
replaced on substantially similar terms before the date of such cancellation. The Company and the
Company Subsidiaries have performed in all material respects their respective obligations under
each policy to which the Company or any Company Subsidiary is a party or that provides coverage to
the Company or any Company Subsidiary or any director, officer or employee thereof.
Schedule
3.14 describes: (i) any self-insurance arrangement by or affecting the Company or any Company
Subsidiary, including any reserves established thereunder; (ii) any Contract or arrangement, other
than a policy of insurance, for the transfer or sharing of any risk by the Company or any Company
Subsidiary; and (iii) all obligations of the Company or any Company Subsidiary to third parties
with respect to insurance (including such obligations under leases and service agreements) and
identifies the policy under which such coverage is provided.
Schedule 3.14 sets forth, by
year, for the current policy year and each of the three preceding
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policy years: (i) a summary of the loss experience under each policy referred to above; (ii)
a statement describing each claim under an insurance policy for an amount in excess of $50,000,
which sets forth: (A) the name of the claimant; (B) a description of the policy by insurer, type
of insurance and period of coverage; and (C) the amount and a brief description of the claim; and
(iii) a statement describing the loss experience for all claims that were self-insured, including
the number and aggregate cost of such claims. All insurance policies to which the Company or any
Company Subsidiary is a party or that provide coverage to the Company or any Company Subsidiary, or
any director, officer or employee of the Company or any Company Subsidiary: (i) are issued by an
insurer that is financially sound and reputable; (ii) taken together, provide adequate insurance
coverage for the assets and the operations of the Company and the Company Subsidiaries for all
risks normally insured against by a Person carrying on the same business or businesses as the
Company and the Company Subsidiaries; (iii) are sufficient for compliance with all Applicable Law
and Contracts to which the Company or any Company Subsidiary is a party or by which any of them is
bound; (iv) will continue in full force and effect following the Closings; and (v) do not provide
for any retrospective premium adjustment or other experience-based liability on the part of the
Company or any Company Subsidiary. The Company and the Company Subsidiaries have given notice to
the insurer of all material claims that have arisen since January 1, 2009 and may be insured
thereby.
Section 3.15
Taxes. (a) (i) The Company and each Company Subsidiary, and any
Affiliated Group of which the Company or any Company Subsidiary is or has been a member, has filed
or caused to be filed in a timely manner (within any applicable extension periods) all material Tax
Returns required to be filed by the Code or by applicable state, local or foreign Tax laws and such
Tax Returns are true, complete and accurate in all material respects, (ii) all Taxes shown as due
and payable on such Tax Returns, and all other Taxes for which the Company or any Company
Subsidiary is or might otherwise be liable have been timely paid in full or will be timely paid in
full by the due date thereof and the most recent Financial Statements for the Company reflect an
adequate reserve for all Taxes payable by the Company and the Company Subsidiaries for all taxable
periods and portions thereof through the date of such Financial Statements, (iii) there are no
liens for Taxes with respect to any of the assets or properties of the Company or any Company
Subsidiary, and (iv) the Company and Company Subsidiaries have disclosed on their federal income
tax returns all positions taken therein that could give rise to a substantial underpayment of
federal income tax within the meaning of Section 6662 of the Code.
(b) (i) There is no action, suit, investigation, inquiry, audit, claim or assessment
outstanding, pending or proposed or threatened with respect to Taxes of the Company, and Company
Subsidiary or any Affiliated Group of which the Company or any Company Subsidiary is or has been a
member and (ii) no claim has ever been made by a Taxing Authority in a jurisdiction where the
Company or any Company Subsidiary has never paid Taxes or filed Tax Returns, asserting Company or
such Company Subsidiary is or may be subject to Taxes assessed by or otherwise imposed by such
jurisdiction.
(c) Each deficiency resulting from any audit or examination relating to Taxes by any Taxing
Authority has been timely paid. No material issues relating to Taxes were raised by the relevant
Taxing Authority in any completed audit or examination that would reasonably be expected to recur
in a later taxable period. The relevant statute of limitations is closed with respect to the
federal, foreign and material state and local Tax Returns of the Company, each
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Company Subsidiary and any Affiliated Group of which the Company or any Company Subsidiary has
ever been a part for all years through December 31, 2004. The Company has made available to the
Purchaser before the date hereof documents setting forth the dates of the most recent audits or
examinations of the Company, any Company Subsidiary or any Affiliated Group of which the Company or
any Company Subsidiary has ever been a member by any Taxing Authority in respect of Federal,
foreign and material state and local Taxes for all taxable periods for which the statute of
limitations has not yet expired.
(d) Neither the Company nor any Company Subsidiary is party to or bound by any Tax sharing
agreement, Tax indemnity obligation or similar Contract, arrangement or practice with respect to
Taxes (including any advance pricing agreement, closing agreement or other Contract relating to
Taxes with any Taxing Authority).
(e) Neither the Company nor any Company Subsidiary shall be required to include in a taxable
period ending after the First Closing Date taxable income attributable to income that accrued in a
prior taxable period but was not recognized in any prior taxable period as a result of the
installment method of accounting, the long-term contract method of accounting, the cash method of
accounting or Section 381 of the Code or any comparable provision of state, local, or foreign Tax
law, or for any other reason.
(f) (i) No property of the Company or any Company Subsidiary is “tax exempt use property”
within the meaning of Section 168(h) of the Code, (ii) neither the Company nor any Company
Subsidiary is a party to any lease made pursuant to Section 168(f)(8) of the Internal Revenue Code
of 1954 and (iii) none of the assets of the Company or any Company Subsidiary is subject to a lease
under Section 7701(h) of the Code or under any predecessor section thereof.
(g) (i) There are no outstanding agreements or waivers extending, or having the effect of
extending, the statutory period of limitation applicable to any material Tax returns required to be
filed with respect to the Company or any Company Subsidiary, (ii) neither the Company nor any
Company Subsidiary, nor any Affiliated Group of which the Company or any Company Subsidiary is or
has been a member, has requested any extension of time within which to file any material Tax
return, which return has not yet been filed, and (iii) no power of attorney with respect to any
Taxes has been executed or filed with any Taxing Authority by or on behalf of the Company or any
Company Subsidiary.
(h) The Company and the Company Subsidiaries have complied in all respects with all Applicable
Laws relating to the payment and withholding of Taxes (including withholding of Taxes pursuant to
Sections 1441, 1442, 3121 and 3402 of the Code or any comparable provision of any state, local or
foreign laws) and have, within the time and in the manner prescribed by Applicable Law, withheld
from and paid over to the proper Taxing Authorities all amounts required to be so withheld and paid
over under Applicable Laws.
(i) The Company has delivered or made available to the Purchaser for inspection before the
date hereof (i) true and complete copies of all income, franchise and other material Tax Returns of
the Company, each Company Subsidiary and any affiliated groups of which the Company or any Company
Subsidiary is or has ever been a part (but, in the case of
20
any such affiliated group, only the portions of such Tax Returns relating to the Company or
any Company Subsidiary) relating to Taxes for all taxable periods for which the applicable statute
of limitations has not yet expired and (ii) true and complete copies of all private letter rulings,
revenue agent reports, information document requests, notices of proposed deficiencies, deficiency
notices, protests, petitions, closing agreements, settlement agreements, pending ruling requests,
and any similar documents, submitted by, received by or agreed to by or on behalf of the Company or
any Company Subsidiary, or, to the extent related to the income, business, assets, operations,
activities or status of the Company or any Company Subsidiary, submitted by, received by or agreed
to by or on behalf of any affiliated group of which the Company or any Company Subsidiary is or has
ever been a part, and relating to Taxes for all taxable periods for which the statute of
limitations has not yet expired.
(j) Schedule 3.15(j) sets forth (i) each jurisdiction in which the Company or any
Company Subsidiary joins or has joined for any taxable period ending after 2004 in the filing of
any consolidated, combined or unitary Tax Return and (ii) the common parent corporation and the
other individual members of the consolidated, combined or unitary group filing such Tax Return.
(k) Schedule 3.15(k) sets forth each state, county, local, municipal or foreign
jurisdiction in which the Company or any Company Subsidiary files, is required to file or has been
required to file a Tax Return relating to state and local income, franchise, license, excise, net
worth, property or sales and use Taxes or is or has been liable for any Taxes on a “nexus” basis at
any time for taxable periods ending after 2004.
(l) Schedule 3.15(l) sets forth the following information with respect to the Company
and the Company Subsidiaries as of the most recent practicable date, (i) the basis of the Company
and each Company Subsidiary in their respective material assets (including any intangible assets),
(ii) the Company’s basis in the stock of the Company Subsidiaries (or the amount of any excess loss
account), (iii) the amount of any net operating losses, net capital losses, unused investment or
other credits, unused foreign Tax, or excess charitable contributions of the Company or the Company
Subsidiaries and (iv) the amount of any deferred gain or loss allocable to the Company or the
Company Subsidiaries arising out of any deferred intercompany transaction.
(m) The Company is not, and has not been, a real property holding company within the meaning
of Section 897 of the Code.
(n) Neither the Company nor any Company Subsidiary is a party to any agreement, contract,
arrangement or plan that has resulted or could result, separately or in the aggregate, in the
payment of (i) any “excess parachute payment” within the meaning of Code Section 280G (or any
corresponding provision of state, local or foreign tax law), and (ii) any amount that will not be
fully deductible as a result of Code Section 162(m) (or any corresponding provision of state, local
or foreign tax law).
(o) Neither the Company nor any Company Subsidiary has distributed stock of another Person, or
has had its stock distributed by another Person, in a transaction that was
21
purported or intended to be governed in whole or in part by Code Section 355 or Code Section
361.
(p) As a result of a change in accounting method for a taxable period beginning on or before
the First Closing Date, neither the Company nor any Company Subsidiary will be required to include
any adjustment under Section 481(c) of the Code (or any corresponding provision of any other
Applicable Law) in taxable income for any taxable period ending after the First Closing Date.
(q) Neither the Company nor any Company Subsidiary has been a member of any Affiliated Group
other than each Affiliated Group of which it is a member as of the date hereof, and neither the
Company nor any Company Subsidiary has had any direct or indirect ownership interest in any
corporation, partnership, joint venture or other entity other than the Company Subsidiaries.
(r) Neither the Company nor any Company Subsidiary has participated in a transaction that is
described as a “reportable transaction” within the meaning of Treasury Regulation § 1.6011-4(b)(1).
(s) No Tax asset of the Company or any Company Subsidiary is, prior to the First Closing Date,
subject to a limitation under Section 382 or Section 383 of the Code.
(t) No transaction contemplated by this Agreement is subject to withholding and no stock
transfer taxes, sales taxes, use taxes, real estate transfer or gains taxes, or other similar taxes
will be imposed on the transactions contemplated by this Agreement.
Section 3.16
Proceedings.
Schedule 3.16 sets forth a list of each pending or,
to the Knowledge of the Company, threatened Proceeding or claim with respect to which the Company
or any Company Subsidiary has been contacted by counsel for the plaintiff or claimant against or
affecting the Company or any Company Subsidiary or any of their assets or businesses and that has
had or would reasonably be expected to have, individually or in the aggregate, a Company Material
Adverse Effect. None of the Proceedings or claims set forth or required to be set forth in
Schedule 3.16 as to which there is at least a reasonable possibility of adverse
determination would have, if so determined, individually or in the aggregate, a Company Material
Adverse Effect. To the Knowledge of the Company, there are no unasserted claims of the type that
would be required to be disclosed in
Schedule 3.16 if counsel for the claimant had
contacted the Company that are considered probable of assertion and that if asserted would have at
least a reasonable possibility of an adverse determination. To the Knowledge of the Company,
neither the Company nor any Company Subsidiary is a party or subject to or in default under any
Judgment, other than such Judgments that, individually or in the aggregate, have not had and would
not reasonably be expected to have a Company Material Adverse Effect. To the Knowledge of the
Company, no officer, director, agent or employee of the Company or any Company Subsidiary is
subject to any Judgment that prohibits such officer, director, agent or employee from engaging in
or continuing any conduct, activity, or practice relating to the business of the Company or any
Company Subsidiary. There is not any Proceeding or claim by the Company or any Company Subsidiary
pending, or that the Company or any Company Subsidiary intends to initiate, against any other
Person. To the Knowledge of the Company,
22
there is no pending or threatened investigation of or affecting the Company or any
Company Subsidiary.
Section 3.17
Compliance with Applicable Laws; Environmental Matters; FCPA Matters.
(a) (i) The Company and the Company Subsidiaries are and at all times since January 1, 2007 have
been in compliance in all material respects with all Applicable Laws, including those relating to
occupational health and safety, and all Judgments applicable to the Company, any Company Subsidiary
or any assets owned or used by any of them, except for instances of noncompliance that,
individually or in the aggregate, have not had and would not reasonably be expected to have a
Company Material Adverse Effect and (ii) no circumstances exist and since January 1, 2004 no event
has occurred that (with or without notice or lapse of time, or both) would constitute or result in
a violation by the Company or any Company Subsidiary of, or a failure on the part of the Company or
any Company Subsidiary to comply in all material respects with, any Applicable Law, or any Judgment
applicable to the Company, any Company Subsidiary or any assets owned or used by any of them, or
would give rise to any obligation on the part of the Company or any Company Subsidiary to
undertake, or to bear all or any portion of the cost of, any remedial action of any nature. None
of the Company and the Company Subsidiaries has received any communication since January 1, 2009
from any Person seeking any Judgment or that alleges that the Company or a Company Subsidiary is
not in compliance in any material respect with any Applicable Law or any Judgment. To the
Knowledge of the Company, the current use by the Company and the Company Subsidiaries of the
plants, offices and other facilities located on the Leased Properties does not violate any local
zoning or similar land use or government regulations in any material respect.
Schedule
3.17(a) sets forth a true and complete list of all Judgments applicable to the Company, any
Company Subsidiary or any assets owned or used by any of them. The Company has made available for
inspection by the Purchaser before the date hereof all Filings made by the Company or any Company
Subsidiary with any Governmental Entity since January 1, 2009. All such Filings were timely filed
and were in compliance in all material respects with Applicable Laws when filed. No material
deficiencies have been asserted by any such Governmental Entity with respect to such Filings that
have not been cured or satisfied.
(b) The Company has provided the Purchaser with certain environmental reports relating to the
facilities and operations of the Company and the Company Subsidiaries, which reports are identified
in Schedule 3.17(b) (the “Environmental Reports”). Except as set forth in the
Environmental Reports, (i) since January 1, 2009, none of the Company and the Company Subsidiaries
has received any written communication from any Person that alleges that the Company or any Company
Subsidiary is not in compliance in all material respects with any Environmental Law or subject to
liability under any Environmental Law, (ii) the Company and the Company Subsidiaries hold, and are
in compliance in all material respects with, all Permits required for the Company and the Company
Subsidiaries to conduct their respective businesses under Environmental Laws, and are in compliance
with all Environmental Laws, except for any instances of noncompliance that, individually or in the
aggregate, have not had and would not reasonably be expected to have a Company Material Adverse
Effect, (iii) to the Knowledge of the Company, there are no environmental reports, other than the
Environmental Reports, that disclose environmental liabilities that, individually or in the
aggregate, would reasonably be expected to have a Company Material Adverse Effect, (iv) the Company
and the Company Subsidiaries have not entered into or agreed to any Judgment and are not subject to
any
23
Judgment relating to compliance with any Environmental Law or to investigation or cleanup of
Hazardous Material, (v) neither the Company nor any Company Subsidiary has any contingent
liabilities including any assumed, whether by contract or operation of law, liabilities or
obligations, in connection with any Hazardous Materials or arising under any Environmental Laws in
connection with its business or any formerly owned divisions, Subsidiaries, or companies, that,
individually or in the aggregate, have had or would reasonably be expected to have a Company
Material Adverse Effect, (vi) to the Knowledge of the Company, there are no asbestos-containing
materials or vessels containing polychlorinated biphenyls on, at or under any Leased Property,
(vii) neither the Company nor any Company Subsidiary has ever owned, leased or operated any real
property other than the Leased Properties, (viii) neither the Company nor any Company Subsidiary
has disposed of, or arranged for the disposal of, Hazardous Materials at any onsite or offsite
location and (ix) to the Knowledge of the Company, since January 1, 2009, there have been no
Releases of Hazardous Materials on, at or under any of the Leased Properties or any other property
or facility formerly owned, leased or operated by the Company, any Company Subsidiary or any of
their respective predecessors.
(c) Since January 1, 2009, neither the Company nor any Company Subsidiary, nor any of their
directors, officers, agents or employees, has directly or indirectly made any contribution, gift,
bribe, rebate, payoff, influence payment, kickback or other payment to any Person, private or
public, regardless of form, whether in money, property, or services (i) to obtain favorable
treatment in securing business, (ii) to pay for favorable treatment for business secured, (iii) to
obtain special concessions or for special concessions already obtained or (iv) in violation of the
Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder (the
“FCPA”) or any other Applicable Law, including, without limitation, taking any action in
furtherance of an offer, payment, promise to pay, or authorization or approval of the payment or
giving of money, property, gift or anything else of value, directly or indirectly, to any “foreign
official” (as such term is defined in the FCPA) or to any foreign political party or official
thereof or any candidate for foreign political office in contravention of the FCPA; and the
Company, the Company Subsidiaries and their Affiliates have conducted their businesses in
compliance with the FCPA and have instituted and maintain policies and procedures designed to
ensure continued compliance therewith.
Section 3.18
Employee Benefits; ERISA. (a)
Schedule 3.18(a) contains a list
and brief description of each “employee pension benefit plan” (as defined in Section 3(2) of the
Employee Retirement Income Security Act of 1974, as amended (“
ERISA”)) (a “
Pension
Plan”), “employee welfare benefit plan” (as defined in Section 3(1) of ERISA) (a “
Welfare
Plan”), and each other plan, arrangement or policy (written or oral) relating to stock options,
stock purchases, compensation, deferred compensation, severance, fringe benefits or other employee
benefits, in each case maintained or contributed to, or required to be maintained or contributed
to, by the Company, any Company Subsidiary or any ERISA Affiliate for the benefit of any present or
former officers, employees, agents, directors or independent contractors of the Company or any
Company Subsidiary (all the foregoing being herein called “
Benefit Plans”). The Company
has delivered to Purchaser true and complete copies of (i) each Benefit Plan (or, in the case of
any unwritten Benefit Plans, a description thereof), (ii) the two most recent annual reports on
Form 5500 (including all schedules and attachments thereto) filed with the Internal Revenue Service
with respect to each Benefit Plan (if any such report was required by Applicable Law), (iii) the
most recent summary plan description (or similar document) for each
24
Benefit Plan for which such a summary plan description is required by Applicable Law or was
otherwise provided to plan participants or beneficiaries and (iv) each trust agreement and
insurance or annuity contract or other funding or financing arrangement relating to any Benefit
Plan. To the Knowledge of the Company, each such Form 5500 and each such summary plan description
(or similar document) was as of its date and is true, complete and correct in all material
respects.
(b) Each Benefit Plan has been administered in all material respects in accordance with its
terms. The Company, the Company Subsidiaries and all the Benefit Plans are in compliance in all
material respects with the applicable provisions of ERISA, the Code, all other Applicable Laws and
the terms of all applicable collective bargaining agreements and similar Contracts. All reports,
returns and similar documents with respect to the Benefit Plans required to be filed with any
Governmental Entity or distributed to any Benefit Plan participant have been duly and timely filed
or distributed and, to the Knowledge of the Company, all reports, returns and similar documents
actually filed or distributed were true, complete and correct in all material respects. There are
no investigations by any Governmental Entity, termination proceedings or other claims (except
routine claims for benefits payable under the Benefit Plans) or proceedings against or involving
any Benefit Plan or asserting any rights to or claims for benefits under any Benefit Plan that
could give rise to any material liability, and there are not any facts or circumstances that could
give rise to any material liability in the event of any such investigation, claim or proceeding.
(c) None of the Company, any Company Subsidiary, any ERISA Affiliate, or any of their
respective predecessors has contributed to, contributes to, has been required to contribute to, or
otherwise participated in or participates in or in any way has any material liability, directly or
indirectly with respect to (A) any plan subject to Section 412 of the Code, Section 302 of ERISA or
Title IV of ERISA, including any “multiemployer plan” (within the meaning of Sections 3(37) or
4001(a)(3) of ERISA or Section 414(f) of the Code) or any single employer pension plan (within the
meaning of Section 4001(a)(15) of ERISA) that is subject to Sections 4063, 4064 or 4069 of ERISA or
Section 413(c) of the Code that covers or has covered any employee of the Company or any ERISA
Affiliate; or (B) any plan or arrangement that provides for post-employment medical, life insurance
or other welfare-type benefits (other than health continuation coverage required by Section 4980B
of the Code and Title I, Subtitle B, Part 6 of ERISA or otherwise as required by law).
(d) All contributions to, and payments from, the Benefit Plans that may have been required to
be made in accordance with the terms of the Benefit Plans, any applicable collective bargaining
agreement or any provision of ERISA or the Code have been timely made. All such contributions to,
and payments from, the Benefit Plans, except those payments to be made from a trust qualified under
Section 401(a) of the Code, for any period ending before the First Closing Date that are not yet,
but will be, required to be made, will be properly accrued and reflected in the financial
statements of the Company.
(e) Each Company Pension Plan that is intended to be a tax-qualified plan has been the subject
of a determination letter from the Internal Revenue Service to the effect that such Company Pension
Plan and related trust is qualified and exempt from Federal income taxes under Sections 401(a) and
501(a), respectively, of the Code; no such determination letter has
25
been revoked, and, to the Knowledge of the Company, revocation has not been threatened; no event
has occurred and no circumstances exist that would adversely affect the tax-qualification of such
Company Pension Plan; and such Company Pension Plan has not been amended since the effective date
of its most recent determination letter in any respect that might adversely affect its
qualification or materially increase its cost. The Company has delivered to Purchaser a true and
complete copy of the most recent determination letter received with respect to each Company Pension
Plan for which such a letter has been issued, as well as a true and complete copy of any pending
application for a determination letter. The Company has also provided to Purchaser a list of all
Company Pension Plan amendments as to which a favorable determination letter has not yet been
received.
(f) (i) No non-exempt “prohibited transaction” (as defined in Section 4975 of the Code or
Section 406 of ERISA) has occurred that involves the assets of any Benefit Plan; (ii) no non-exempt
prohibited transaction has occurred that could subject the Company, any Company Subsidiary, any of
their employees, or, to the Knowledge of the Company, a trustee, administrator or other fiduciary
of any trust created under any Benefit Plan to any material tax or sanctions on prohibited
transactions imposed by Section 4975 of the Code or Title I of ERISA; (iii) no Company Pension Plan
is reasonably expected to be terminated; and (iv) none of the Company, any Company Subsidiary or,
to the Knowledge of the Company, any trustee, administrator or other fiduciary of any Benefit Plan
or any agent of any of the foregoing has engaged in any transaction or acted in a manner that
could, or has failed to act so as to, subject the Company, any Company Subsidiary or any trustee,
administrator or other fiduciary to any liability for breach of fiduciary duty under ERISA or any
other applicable law.
(g) No ERISA Affiliate has incurred or reasonably expects to incur any liability (i) to a
Pension Plan (other than for contributions not yet due) that, when aggregated with other such
liabilities, would result in a material liability to the Company or any Company Subsidiary, which
liability has not been fully paid as of the date hereof, or (ii) to the Pension Benefit Guaranty
Corporation.
(h) No ERISA Affiliate has (i) engaged in a transaction described in Section 4069 of ERISA
that could subject the Company or any Company Subsidiary to liability at any time after the date
hereof or (ii) acted in a manner that could, or failed to act so as to, result in material fines,
penalties, taxes or related charges under (x) Section 502(c), (i) or (1) of ERISA, (y) Section 4071
of ERISA or (z) Chapter 43 of the Code.
(i) Schedule 3.18(i) discloses whether each Welfare Plan is (i) unfunded, (ii) funded
through a “welfare benefit fund”, as such term is defined in Section 419(e) of the Code, or other
funding mechanism or (iii) insured. Each such Welfare Plan may be amended or terminated without
material liability to the Company or any Company Subsidiary at any time after the First Closing
Date. The Company and the Company Subsidiaries comply with the applicable requirements of Section
4980B(f) of the Code with respect to each Benefit Plan that is a group health plan, as such term is
defined in Section 5000(b)(1) of the Code.
(j) No employee of the Company or any Company Subsidiary will be entitled to any additional
benefits or any acceleration of the time of payment or vesting of any benefits under any Benefit
Plan as a result of the Transactions.
26
(k) Assuming that the Company is a “publicly held corporation” within the meaning of Section
162(m) of the Code, no compensation payable by the Company or any Company Subsidiary to any of
their employees under any existing contract, Benefit Plan or other employment arrangement or
understanding (including by reason of the Transactions) would be subject to disallowance under
Section 162(m) of the Code.
(l) Any amount that could be received (whether in cash or property or the vesting of property)
as a result of any of the Transactions by any employee, officer, director or independent contractor
of the Company or any of its Affiliates who is a “disqualified individual” (as such term is defined
in proposed Treasury Regulation Section 1.280G-1) under any employment, severance or termination
agreement, other compensation arrangement or Benefit Plan currently in effect would not be
characterized as an “excess parachute payment” (as such term is defined in Section 280G(b)(1) of
the Code). Schedule 3.18(n) sets forth (i) the maximum amount that could be paid to each
executive officer of the Company as a result of the Transactions under all employment, severance
and termination agreements, other compensation arrangements and Benefit Plans currently in effect
and (ii) the “base amount” (as such term is defined in Section 280G(b)(3) of the Code) for each
such executive officer calculated as of the date hereof.
Section 3.19
Employee and Labor Matters. (a) (i) There is not, and since January 1,
2009 there has not been, any labor strike, dispute, work stoppage or lockout pending, or, to the
Knowledge of the Company, threatened, against or affecting the Company or any Company Subsidiary;
(ii) to the Knowledge of the Company, no union organizational campaign is in progress with respect
to the employees of the Company or any Company Subsidiary and no question concerning representation
of such employees exists; (iii) neither the Company nor any Company Subsidiary is engaged in any
unfair labor practice; (iv) there are not any unfair labor practice charges or complaints against
the Company or any Company Subsidiary pending, or, to the Knowledge of the Company, threatened,
before the National Labor Relations Board; (v) there are not any pending, or, to the Knowledge of
the Company, threatened, union grievances against the Company as to which there is a reasonable
possibility of adverse determination and that, if so determined, individually or in the aggregate,
would reasonably be expected to have a Company Material Adverse Effect; (vi) there are not any
pending, or, to the Knowledge of the Company, threatened, charges against the Company or any
Company Subsidiary or any of their current or former employees before the Equal Employment
Opportunity Commission or any state or local agency responsible for the prevention of unlawful
employment practices; and (vii) none of the Company and the Company Subsidiaries has received any
communication since January 1, 2009 of the intent of any Governmental Entity responsible for the
enforcement of labor or employment laws to conduct an investigation of or affecting the Company or
any Company Subsidiary and, to the Knowledge of the Company, no such investigation is in progress.
(b) Schedule 3.19(b) contains a list of all officers and other employees of and
consultants to the Company and the Company Subsidiaries whose current annual salary (including
bonus) is $75,000 or more, together with the current job title or relationship to the Company and
the Company Subsidiaries and the current annual salary (including bonus) for each such Person,
including a description of applicable bonus or benefit plans.
27
(c) No employee of the Company or any Company Subsidiary is, to the Knowledge of the Company,
a party to or bound by any Contract, or subject to any Judgment, that may interfere with the use of
such Person’s best efforts to promote the interests of the Company and the Company Subsidiaries,
may conflict with the Company and the Company Subsidiaries or the Transactions or that has had or
would reasonably be expected to have a Company Material Adverse Effect. To the Knowledge of the
Company, no activity of any employee of the Company or any Company Subsidiary as or while an
employee of the Company or any Company Subsidiary has caused a material violation of any employment
contract, confidentiality agreement, patent disclosure agreement or other Contract to which such
employee was a party. To the Knowledge of the Company, neither the execution and delivery hereof
nor the consummation of the Transactions will contravene, conflict with or result in a breach of
the terms, conditions or provisions of, or constitute a default under, any Contract under which any
such employee is obligated.
Section 3.20
Transactions with Affiliates. Except as set forth in the SEC Reports
filed prior to the date hereof, none of the officers or directors of the Company is presently a
party to any transaction with the Company or any Company Subsidiaries that would be required to be
disclosed pursuant to Item 404 of Regulation S-K (other than for ordinary course services as
officers or directors), including any contract, agreement or other arrangement providing for the
furnishing of services to or by, providing for rental of real or personal property to or from, or
otherwise requiring payments to or from any such officer or director or, to the Knowledge of the
Company, any corporation, partnership, trust or other entity in which any such officer or director
has a substantial interest or is an officer, director, trustee or partner.
Section 3.21
Intercompany Accounts.
Schedule 3.21 sets forth a true and
complete list of all intercompany account balances as of the date of the Interim Balance Sheet
between any director, officer or Affiliate of the Company or any of their respective Related
Persons, on the one hand, and the Company or any Company Subsidiary, on the other hand. Since the
date of the Interim Balance Sheet, there has not been any incurrence or accrual of any Liability
(as a result of allocations or otherwise) by the Company or any Company Subsidiary to any director,
officer or Affiliate of the Company or any of their respective Related Persons or any other
transaction between the Company or any Company Subsidiary and any director, officer or Affiliate of
the Company or any of their respective Related Persons except (i) in the Ordinary Course of
Business or (ii) as contemplated by this Agreement and the Ancillary Agreements.
Section 3.22
Customers.
Schedule 3.22 sets forth a true and complete list of
each customer to whom the Company or any Company Subsidiary made more than 5% of its total sales
during its most recent full fiscal year. Since the date of the Interim Balance Sheet, there has
not been (i) any material adverse change in the business relationship of the Company or any Company
Subsidiary with any customer set forth or required to be set forth in
Schedule 3.22 or (ii)
any change in any material term (including credit terms) of the sales agreements or related
agreements with any such customer. Since January 1, 2009, the Company and the Company Subsidiaries
have not received any customer complaint concerning their products and services, nor have they had
any of their products returned by a the Purchaser thereof, other than complaints and returns in the
Ordinary Course of Business that, individually or in the aggregate, have not had and would not
reasonably be expected to have a Company Material Adverse Effect.
28
Section 3.23
Suppliers. Since the date of the Interim Balance Sheet, neither the
Company nor a Company Subsidiary has entered into or made any contract or commitment for the
purchase of merchandise other than in the Ordinary Course of Business.
Schedule 3.23 sets
forth a true and complete list of the suppliers from whom the Company or any Company Subsidiary
purchased more than 5% of the total amount of goods and services that it purchased during its most
recent full fiscal year. Since the date of the Interim Balance Sheet, there has not been (i) to
the Knowledge of the Company any material adverse change in the business relationship of the
Company or a Company Subsidiary with any supplier of merchandise set forth or required to be set
forth in
Schedule 3.23 or (ii) any change in any material term (including credit terms) of
the supply agreements or related arrangements with any such supplier.
Section 3.24
Effect of Transaction. No creditor, employee, client, customer or other
Person having a material business relationship with the Company or any Company Subsidiary has
changed, or informed the Company that such Person intends to change, such relationship because of
the purchase and sale of the Shares or the execution and delivery of this Agreement and the
Ancillary Agreements or consummation of the Transactions.
Section 3.25
Accounts; Safe Deposit Boxes; Powers of Attorney; Officers and Directors.
Schedule 3.25 sets forth (i) a true and complete list of all bank and savings accounts,
certificates of deposit and safe deposit boxes of the Company and the Company Subsidiaries and
those Persons authorized to sign thereon and (ii) a true and complete list of all officers and
directors of the Company and the Company Subsidiaries.
Section 3.26
Corporate Name. The Company and the Company Subsidiaries (i) have the
exclusive right to use their respective names as the name of a corporation in any jurisdiction in
which the Company or such Company Subsidiary does business and (ii) have not received any notice of
conflict since January 1, 2004 with respect to the rights of others regarding the names of the
Company and the Company Subsidiaries. No Person is presently authorized by the Company or a
Company Subsidiary to use the name of the Company or a Company Subsidiary.
Section 3.27
Disclosure. (a) No representation or warranty of the Company contained
in this Agreement, and no statement contained in any certificate or Schedule furnished or to be
furnished by or on behalf of the Company to the Purchaser pursuant hereto, contains any untrue
statement of a material fact, or omits to state any material fact necessary, in the light of the
circumstances under which it was made, in order to make the statements herein or therein not
misleading or necessary in order to fully and fairly provide the information required to be
provided in any such certificate or Schedule.
(b) To the Company’s Knowledge, no event or circumstance has occurred or information exists
with respect to the Company or any Company Subsidiary or its or their business, properties,
operations or financial conditions, which, under applicable law, rule or regulation, requires
public disclosure or announcement by the Company but which has not been so publicly announced or
disclosed. The Company acknowledges and agrees that the Purchaser does not make and has not made
any representations or warranties with respect to the Transactions other than those set forth in
this Agreement and Ancillary Agreements.
29
Section 3.28
Private Offering. None of the Company and its Affiliates has issued,
sold or offered, or solicited any offers to acquire, any security of the Company to or from any
Person under circumstances that would cause the sale of the Purchased Shares, as contemplated by
this Agreement, to be subject to the registration requirements of the Securities Act of 1933, as
amended (the “
Securities Act”). Assuming the representations and warranties of the
Purchaser contained in
Section 4.05 are true and correct, the sale and delivery of the
Purchased Shares hereunder are, and the issuance and delivery of the Conversion Shares to the
Purchaser upon conversion of the Purchased Preferred Shares will be, exempt from the registration
and prospectus delivery requirements of the Securities Act.
Section 3.29
SEC Reports. The Company has filed all reports required to be filed by
it under the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof (such reports
relating to events occurring on or after January 1, 2007 that were required to be filed by the
Company under the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, together with
any materials filed or furnished by the Company under the Exchange Act, whether or not any such
materials were required, being collectively referred to herein as the “
SEC Reports”), on a
timely basis or has received a valid extension of such time of filing for any of the SEC Reports
and has filed any such SEC Reports prior to the expiration of any such extension. The Company has
delivered to the Purchaser true, correct and complete copies of the SEC Reports not available on
the SEC’s XXXXX system. As of their respective dates, the SEC Reports complied in all material
respects with the requirements of the Securities Act and the Exchange Act and the rules and
regulations of the SEC promulgated thereunder, and none of the SEC Reports contained any untrue
statement of a material fact or omitted to state a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the circumstances under which
they were made, not misleading.
Section 3.30
No Investment Company; No Real Property Holding Corporation. The Company
is not required to be registered as, and is not an Affiliate of, an “investment company” within the
meaning of the Investment Company Act of 1940, as amended. The Company is not required to be
registered as a United States real property holding corporation within the meaning of the Foreign
Investment in Real Property Tax Act of 1980.
Section 3.31
Listing and Maintenance Requirements. The Company has not, in the
twenty-four months preceding the date hereof, received written notice from any Trading Market on
which the Common Stock is or has been listed or quoted to the effect that the Company is not in
compliance with the listing or maintenance requirements of such Trading Market. The Company is in
compliance with all such listing and maintenance requirements.
Section 3.32
Registration Rights. The Company has not granted or agreed to grant to
any Person any rights to have any securities of the Company registered with the SEC or any other
governmental authority that have not been satisfied or waived.
Section 3.33
Application of Takeover Protections. There is no control share
acquisition, business combination, poison pill (including any distribution under a rights
agreement) or other similar anti-takeover provision under the Company’s charter documents or the
laws of its state of incorporation that is applicable to the Purchaser as a result of the Purchaser
and the Company fulfilling their obligations or exercising their rights under this
30
Agreement and Ancillary Agreements, including, without limitation, as a result of the Company’s
issuance of the Shares and the Purchaser’s ownership of the Shares.
Section 3.34
Acknowledgment Regarding the Purchaser’s Purchase of the Shares. Based
upon the assumption that the Transactions are consummated in conformity with this Agreement and
Ancillary Agreements, the Company acknowledges and agrees that the Purchaser is acting solely in
the capacity of an arm’s length purchaser with respect to the Transactions. The Company further
acknowledges that the Purchaser is not acting as a financial advisor or fiduciary of the Company
(or in any similar capacity) with respect to the Transactions and any advice given by the Purchaser
in connection with the Transactions is merely incidental to the Purchaser’ purchase of the
Purchased Shares. The Company further represents to the Purchaser that the Company’s decision to
enter into this Agreement has been based solely on the independent evaluation of the Transactions
by the Company.
Section 3.35
Xxxxxxxx-Xxxxx Act Compliance. The Company is in compliance in all
material respects with applicable requirements of the Xxxxxxxx-Xxxxx Act of 2002 (the
“
Xxxxxxxx-Xxxxx Act”) and applicable rules and regulations promulgated by the SEC
thereunder. No attorney representing the Company or any Company Subsidiary, whether or not
employed by the Company or any Company Subsidiary, has reported to the Company’s chief legal
counsel or chief executive officer evidence of a material violation of securities laws, breach of
fiduciary duty or similar violation by the Company or any of its officers, directors, employees or
agents pursuant to Section 307 of the Xxxxxxxx-Xxxxx Act. The Company has delivered made available
to the Purchaser copies of all material written correspondence sent to or received from the SEC by
the Company or any Company Subsidiary or their respective counsel or accountants since January 1,
2007. As of the date hereof, there are no outstanding or unresolved comments in comment letters
received from the SEC staff with respect to the SEC Reports. To the Knowledge of the Company, none
of the SEC Reports is the subject of ongoing SEC review. To the Knowledge of the Company, there
are no SEC inquiries or investigations, other governmental inquiries or investigations or internal
investigations pending or threatened, in each case regarding any accounting practice of the
Company. Except as permitted by the Exchange Act, since the enactment of the Xxxxxxxx-Xxxxx Act,
neither the Company nor any of its Affiliates has made, arranged, modified (in any material way) or
forgiven personal loans to any executive officer or director of the Company.
Section 3.36
Regulation M Compliance. The Company has not, and to the Company’s
Knowledge no one acting on its behalf has, (i) taken, directly or indirectly, any action designed
to cause or to result in the stabilization or manipulation of the price of any security of the
Company to facilitate the sale of the Shares, (ii) sold, bid for, purchased, or, paid any
compensation for soliciting purchases of, any of the Shares, or (iii) paid or agreed to pay to any
Person any compensation for soliciting another to purchase any other securities of the Company.
Section 3.37
Product Warranties and Liabilities. (a) Except as set forth in
Schedule 3.37(a), there is no pending or, to the Knowledge of the Company, threatened, and,
to the Knowledge of the Company, there is no basis for any, Proceeding relating to injury to person
or property of any Person suffered as a result of any product manufactured, distributed or sold by
or on behalf of any of the Company and Company Subsidiaries or performance of any service by
31
the Company or any Company Subsidiary, including claims arising out of any breach of product
warranty (other than warranty service and repair claims in the Ordinary Course of Business not
material in amount or significance), strict liability in tort, negligent manufacture of product,
negligent provision of services or any other allegation of liability, including or resulting in,
but not limited to, product recalls, arising from the materials, design, testing, manufacture,
packaging, labeling (including instructions for use), materials or workmanship or sale of its
products or from the provision of services or otherwise alleging any liability of the Company or
any Company Subsidiary as a result of any defect or other deficiency with respect to any product
manufactured, processed, distributed or sold by or on behalf of the Company or any Company
Subsidiary or performance of any service by and of the Company or any Company Subsidiary (hereafter
collectively referred to as “Product Liability Claims”) prior to the Closings.
(b) During the five-year period ending on the date hereof, no product manufactured or sold by
any of the Company and Company Subsidiaries has been the subject of any material recall or similar
action instituted by any governmental authority, agency or instrumentality or undertaken by any of
the Company and Company Subsidiaries on a voluntary basis. During the five-year period ending on
the date hereof, none of the Company and Company Subsidiaries has paid, settled or otherwise
incurred any uninsured or insured liability with respect to, any Product Liability Claims.
The Purchaser hereby represents and warrants to the Company, as of the date hereof and as of
the First Closing Date and the Second Closing Date, as follows:
Section 4.01
Organization, Standing and Power. The Purchaser is duly organized,
validly existing and in good standing under the laws of the jurisdiction in which it is organized
and has full corporate power and authority and possesses all governmental franchises, licenses,
permits, authorizations and approvals necessary to enable it to own, lease or otherwise hold its
properties and assets and to carry on its business as presently conducted, other than such
franchises, licenses, permits, authorizations and approvals the lack of which, individually or in
the aggregate, has not had and would not reasonably be expected to have a Purchaser Material
Adverse Effect.
Section 4.02
Authority; Execution and Delivery; and Enforceability. The Purchaser has
full power and authority to execute this Agreement and the Ancillary Agreements to which it is, or
is specified to be, a party and to consummate the Transactions. The execution and delivery by the
Purchaser hereof and the Ancillary Agreements to which it is, or is specified to be, a party and
the consummation by the Purchaser of the Transactions have been duly authorized by all necessary
corporate action. The Purchaser has duly executed and delivered this Agreement and at or before
the First Closing will have duly executed and delivered each Ancillary Agreement to which it is, or
is specified to be, a party, and this Agreement constitutes, and each Ancillary Agreement to which
it is, or is specified to be, a party will after the First Closing constitute, its legal, valid and
binding obligation, enforceable against it in accordance with its terms, except as limited by Laws
affecting the enforcement of creditors’ rights generally, by general equitable
32
principles or by the discretion of any Governmental Entity before which any Proceeding seeking
enforcement may be brought.
Section 4.03
No Conflicts; Consents. The execution and delivery by the Purchaser
hereof do not, the execution and delivery by the Purchaser of each Ancillary Agreement to which it
is, or is specified to be, a party will not, and the consummation of the Transactions and
compliance by the Purchaser with the terms hereof and thereof will not contravene, conflict with,
or result in any violation of or default (with or without notice or lapse of time, or both) under,
or give rise to a right of termination, cancellation or acceleration of any obligation, to a right
to challenge the Transactions or to loss of a material benefit under, or to increased, additional,
accelerated or guaranteed rights or entitlements of any Person under, or result in the creation of
any Lien upon any of the properties or assets of the Purchaser or any of its Subsidiaries under,
any provision of (i) the certificate of incorporation or by-laws (or comparable documents) of the
Purchaser or any of its Subsidiaries, (ii) any Contract to which the Purchaser or any of its
Subsidiaries is a party or by which any of their respective properties or assets is bound or (iii)
any Judgment or Applicable Law applicable to the Purchaser or any of its Subsidiaries or their
respective properties or assets, other than, in the case of clauses (ii) and (iii) above, any such
items that, individually or in the aggregate, have not had and would not reasonably be expected to
have a Purchaser Material Adverse Effect. No Consent of or Filing with any Governmental Entity is
required to be obtained or made by or with respect to the Purchaser or any of its Subsidiaries in
connection with the execution, delivery and performance hereof or any Ancillary Agreement or the
consummation of the Transactions or the ownership by the Purchaser of the Company following the
Closings, other than (A) compliance with and Filings under Section 13(a) of the Exchange Act, (B)
those that may be required solely by reason of the participation of Company (as opposed to any
other third party) in the Transactions) and (C) such other Consents and Filings the failure of
which to obtain or make has not had and would not reasonably be expected to have a Purchaser
Material Adverse Effect.
Section 4.04
Litigation. There are not any (a) outstanding Judgments against or
affecting the Purchaser or any of its Subsidiaries, (b) Proceedings pending or, to the Knowledge of
the Purchaser, threatened against or affecting the Purchaser or any of its Subsidiaries or (c)
investigations by any Governmental Entity that are, to the Knowledge of the Purchaser, pending or
threatened against or affecting the Purchaser or any of its Subsidiaries that, in any case,
individually or in the aggregate, have had or would reasonably be expected to have a Purchaser
Material Adverse Effect.
Section 4.05
Securities Act. The Purchased Shares hereto are being acquired for
investment only and not with a view to any public distribution thereof in violation of any of the
registration requirements of the Securities Act.
Section 4.06
Restricted Securities. The Purchaser understands that the Shares are
characterized as “restricted securities” under the U.S. federal securities laws inasmuch as they
are being acquired from the Company in a transaction not involving a public offering and that under
such laws and applicable regulations such securities may be resold without registration under the
Securities Act only in certain limited circumstances. The Purchaser is acquiring the Shares as
principal for its own account and not with a view to distributing or reselling the Shares or any
part thereof in violation of the Securities Act or any applicable state securities law, has no
33
present intention of distributing any of the Shares in violation of the Securities Act or any
applicable state securities law and has no direct or indirect arrangement or understandings with
any other persons to distribute or regarding the distribution of the Shares in violation of the
Securities Act or any applicable state securities law.
Section 4.07
Experience of the Purchaser. The Purchaser, either alone or together
with its representatives, has such knowledge, sophistication and experience in business and
financial matters so as to be capable of evaluating the merits and risks of the prospective
investment in the Purchased Shares, and has so evaluated the merits and risks of such investment.
The Purchaser is able to bear the economic risk of an investment in the Purchased Shares and, at
the present time, is able to afford a complete loss of such investment.
Section 4.08
General Solicitation. The Purchaser is not purchasing the Purchased
Shares as a result of any advertisement, article, notice or other communication regarding the
Purchased Shares published in any newspaper, magazine or similar media or broadcast over television
or radio or presented at any seminar or any other general solicitation or general advertisement.
Section 4.09
Short sales and Confidentiality Prior To The Date Hereof. Other than
consummating the transactions contemplated hereunder, the Purchaser has not, nor has any Person
acting on behalf of or pursuant to any understanding with such Purchaser, directly or indirectly
executed any transaction, including short sales, in the securities of the Company during the period
commencing October 24, 2010 until the date hereof. The Purchaser has maintained the
confidentiality of all disclosures made to it in connection with this transaction (including the
existence and terms of this transaction).
Section 4.10
Purchaser Status. The Purchaser is an “accredited investor” as defined
in Rule 501 under the Securities Act.
Section 4.11
No Legal, Tax or Investment Advice. The Purchaser understands that
nothing in this Agreement or any other materials presented by or on behalf of the Company to the
Purchaser in connection with the purchase of the Purchased Shares constitutes legal, tax or
investment advice. The Purchaser has consulted such legal, tax and investment advisors as it, in
its sole discretion, has deemed necessary or appropriate in connection with its purchase of the
Purchased Shares.
Section 4.12
Restrictions on Transfer. The Shares may only be disposed of in
compliance with state and federal securities laws. In connection with any transfer of the Shares
other than pursuant to an effective registration statement under the Securities Act, the Company
may require the transferor thereof to provide to the Company an opinion of counsel selected by the
transferor and reasonably acceptable to the Company, the form and substance of which opinion shall
be reasonably satisfactory to the Company, to the effect that such transfer does not require
registration of such transferred Shares under the Securities Act and applicable state securities
laws. As a condition of transfer other than a transfer (i) made pursuant to an effective
registration statement, (ii) made in accordance with Rule 144 or (iii) in which the Company
receives an opinion of counsel, reasonably satisfactory to the Company, that following such
disposition, such transferred shares are freely tradable and not subject to transfer restrictions
34
under federal and applicable state securities laws, any transferee shall in writing, agree to be
bound by, and make the representations set forth in, this ARTICLE IV.
Section 5.01
Covenants Relating to Conduct of Business. (a) Except for matters
expressly permitted hereby, from the date hereof to the Second Closing, the Company shall, and
shall cause the Company Subsidiaries to, conduct their respective businesses in the Ordinary Course
of Business (including with respect to research and development efforts, advertising, promotions,
capital expenditures and inventory levels) and, to the extent consistent therewith, use all
reasonable efforts to keep intact their respective businesses, keep available the services of their
current employees and preserve their relationships with customers, suppliers, licensors, licensees,
distributors and others with whom they deal to the end that their respective businesses shall be
unimpaired at each Closing Date. The Company shall not, and shall not permit any Company
Subsidiary to, take any action that would, or that would reasonably be expected to, result in any
of the conditions to the purchase and sale of the Purchased Shares set forth in
Article VI
or
Article VI A not being satisfied. In addition (and without limiting the generality of
the foregoing), except as otherwise expressly permitted or required by the terms hereof, until the
Second Closing the Company shall not, and shall not permit any Company Subsidiary to, do any of the
following without the prior written consent of the Purchaser:
(i) amend its certificate of incorporation or by-laws (or comparable documents) other
than to reflect the authorization of additional common stock in accordance with this
Agreement;
(ii) declare or pay any dividend or make any other distribution to its stockholders,
whether or not upon or in respect of any shares of its capital stock; provided,
however, that dividends and distributions may continue to be made by the Company
Subsidiaries to the Company or to other wholly-owned Company Subsidiaries;
(iii) redeem or otherwise acquire any shares of its capital stock or other equity
interests or any Rights or other securities or authorize, issue or sell any capital stock or
other equity interests or any Rights or other securities;
(iv) adopt or amend any Company Benefit Plan (or any plan that would be a Company
Benefit Plan if adopted) or enter into, adopt, extend (beyond the Second Closing Date),
renew or amend any collective bargaining agreement or other Contract with any labor
organization, union or association, except in each case as required by Applicable Law;
(v) grant to any executive officer or employee any increase in compensation or
benefits, except as may be required under existing written Contracts set forth on
Schedule 3.12(a);
(vi) incur or assume any Indebtedness or guarantee any such Indebtedness, other than in
the Ordinary Course of Business; provided, however, that in no event shall
35
the Company or any Company Subsidiary incur or assume any long-term Indebtedness for
borrowed money in excess of $50,000 individually or $100,000 in the aggregate;
(vii) permit, allow or suffer any of its assets to become subjected to any Lien of any
nature whatsoever that would have been required to be set forth in Schedule 3.07 or
3.08(a) if existing on the date hereof;
(viii) enter into any Contract that would have been required to be set forth in
Schedule 3.12(a) if it were in effect on the date hereof, or modify, amend,
terminate or grant any Consent or waiver under any Contract that is set forth or required to
be set forth in Schedule 3.12(a) or that would have been required to be set forth in
Schedule 3.12(a) if it were in effect on the date hereof;
(ix) cancel any Indebtedness in excess of $10,000 individually or $50,000 in the
aggregate, or settle, compromise, discharge, waive, release or assign any material claim,
right or Proceeding;
(x) pay, loan or advance any amount to, or sell, transfer or lease any of its assets
to, or enter into any agreement or arrangement with any director, officer or Affiliate of
the Company or any of their respective Related Persons, except for (A) transactions among
the Company and the Company Subsidiaries, (B) dividends and distributions permitted under
clause (ii) above and (C) intercompany transactions in the Ordinary Course of Business;
(xi) make any change in any method of accounting or accounting practice or policy other
than as required by changes in Applicable Law or GAAP that become effective after the date
hereof;
(xii) make any material change in internal accounting controls or disclosure controls
and procedures;
(xiii) make any Tax election, change any annual accounting period, adopt or change any
accounting method, file any amended tax return, enter into any closing agreement, settle any
tax claim or assessment relating to the Company or any Company Subsidiary, surrender any
right to claim a refund of taxes, consent to any extension or waiver of the limitation
period applicable to any tax claim or assessment relating to the Company or any Company
Subsidiary, or take or omit to take any other action relating to the filing of any tax
return or the payment of any tax, if such election, adoption, change, amendment, agreement,
settlement, surrender, consent, or other action would have the effect of increasing the tax
liability or decreasing any tax asset of the Company or any Company Subsidiary;
(xiv) make any payment of, or in respect of, any Tax to any Person or any Taxing
Authority, except to the extent such payment is in respect of a Tax that is due or payable
or has been properly estimated in accordance with Applicable Law as applied in a manner
consistent with past practice of the Company or Company Subsidiary;
36
(xv) acquire by merging or consolidating with, or by purchasing a substantial portion
of the assets of, or by any other manner, any business or any corporation, partnership,
association or other business organization or division thereof or otherwise acquire any
assets (other than inventory) that are material;
(xvi) make or incur any capital expenditure that, individually, is in excess of
$100,000 or make or incur any such expenditures that, in the aggregate, are in excess of
$250,000;
(xvii) sell, lease, license or otherwise dispose of any of its assets that are
material, individually or in the aggregate, to the Company and the Company Subsidiaries,
taken as a whole, except inventory sold in the Ordinary Course of Business;
(xviii) enter into any lease of real property, except any renewals of existing leases
in the Ordinary Course of Business;
(xix) open, relocate or close any office or other facility, or make any application for
such an opening, relocation or closing;
(xx) modify, amend, terminate or permit the lapse of any lease of, or reciprocal
easement agreement, operating agreement or other material Contract relating to, real
property (except modifications or amendments associated with renewals of existing leases in
the Ordinary Course of Business;
(xxi) take any action or fail to take any action such that any of the representations
or warranties set forth in Article III (Representations and Warranties Relating to
the Company) would not be true and correct as of the date of such action or as of the Second
Closing Date; or
(xxii) authorize any of, or commit or agree to take, whether in writing or otherwise,
to do any of, the foregoing actions.
(b)
Advise of Changes. The Company shall promptly advise the Purchaser in writing of
the occurrence of any matter or event that is material to the business, assets, condition
(financial or otherwise), or results of operations of the Company and the Company Subsidiaries,
taken as a whole.
(c)
Affirmative Covenants. Until the Second Closing, the Company shall, and shall
cause the Company Subsidiaries to:
(i) maintain their respective assets in the Ordinary Course of Business in good
operating order and condition, reasonable wear and tear excepted;
(ii) upon any damage, destruction or loss to any material asset, apply any and all
insurance proceeds received with respect thereto to the prompt repair, replacement and
restoration thereof to the condition of such asset before such event or, if required, to
such better condition as may be required by Applicable Law;
37
(iii) maintain its level and quality of Inventory and supplies, raw materials and spare
parts in the Ordinary Course of Business in a manner consistent with its practices in place
as of the date of the Interim Balance Sheet;
(iv) as soon as reasonably practicable after they become available, but in any event
not later than 40 days after the last day of each fiscal quarter ending after the date of
the Interim Balance Sheet, furnish to the Purchaser an unaudited consolidated balance sheet
of the Company as of the last day of such fiscal quarter and unaudited statements of
operations, cash flows and stockholders’ equity for such fiscal quarter, including the notes
thereto and all related compilations, reviews and other reports issued by the Company’s
accountants with respect thereto;
(v) as soon as reasonably practicable after they become available, but in any event not
later than 60 days after the last day of each fiscal year ending after the date of the
Audited Balance Sheet, furnish to the Purchaser an audited consolidated balance sheet of the
Company as of the last day of such fiscal year and audited statements of operations, cash
flows and stockholders’ equity for such fiscal year, including the notes thereto and all
related compilations, reviews and other reports issued by the Company’s accountants with
respect thereto; and
(vi) furnish any other information reasonably requested by the Purchaser in order for
the Purchaser to comply with the requirements of the Securities Act and the Exchange Act.
(d)
Consultation. In connection with the continuing operation of the business of the
Company and the Company Subsidiaries between the date hereof and the Second Closing, the Company
shall use all reasonable efforts to consult in good faith on a regular and frequent basis with the
Purchaser to report material operational developments and the general status of ongoing operations
pursuant to procedures reasonably requested by the Purchaser. The Company acknowledges that any
such consultation shall not constitute a waiver by the Purchaser of any rights it may have under
this Agreement, and that the Purchaser shall not have any liability or responsibility for any
actions of the Company or any Company Subsidiary with respect to matters that are the subject of
such consultations.
(e)
Insurance. The Company shall keep, or cause to be kept, all insurance policies
set forth in
Schedule 3.14 (
Insurance), or suitable replacements therefor, in full force
and effect through the close of business on the Second Closing Date.
Section 5.02
No Solicitation. (a) The Company shall effective upon the execution
hereof terminate any discussions or negotiations regarding any proposal that constitutes, or may
reasonably be expected to lead to, any Other Bid, and shall promptly after the execution hereof
request each Person that has executed a confidentiality agreement in connection with its
consideration of acquiring the securities of the Company or any Company Subsidiary or substantially
all the business or assets of the Company or any Company Subsidiary to return all confidential
information furnished to such Person by or on behalf of the Company or any Company Subsidiary. At
all times during the period commencing with the execution and delivery of this Agreement and
continuing until the earlier to occur of the termination of this
38
Agreement pursuant to Section 7.01 and the Second Closing, the Company shall not, nor shall
the Company authorize or permit any Company Subsidiary or any Representative of the Company or any
Company Subsidiary to, directly or indirectly, (i) solicit, initiate or encourage any Other Bid,
(ii) enter into any Contract with respect to any Other Bid or (iii) participate in or enter into
any discussions or negotiations regarding, or furnish to any Person any information with respect
to, or take any other action to facilitate any inquiries or the making of any offer or proposal or
other action that constitutes, or may reasonably be expected to lead to, any Other Bid. The
Company shall promptly advise the Purchaser orally and in writing of any Other Bid or any inquiry
with respect to or which could lead to any Other Bid and the identity of the Person making any such
Other Bid or inquiry. “Other Bid” means any proposal or offer for a merger, sale of
securities, sale of substantial assets or similar transaction involving the Company or any Company
Subsidiary, other than the Transactions and the acquisition of inventory in the Ordinary Course of
Business. “Superior Other Bid” means a bona fide written Other Bid (on its most recently
amended and modified terms, if amended and modified), which offer or proposal was not, directly or
indirectly, the result of a breach of Section 5.02(a) and (b), made by a third
party (x) on terms that the Special Committee determines in its good faith judgment (based on the
financial analysis and other advice of independent financial advisors and on the advice of
independent legal advisors, and after giving effect to the payment of the Termination Fee pursuant
to Section 7.03 and to the expected timing of the closing of the proposed Other Bid) to be
more favorable to the shareholders of the Company than the Transactions (taking into account any
amendment or proposed amendment to this Agreement contemplated by Section 7.01(a)(vii)),
(y) which offer or proposal is reasonably likely to be consummated (taking into account, among
other things, all legal, financial, regulatory and other aspects of the offer or the proposal,
including any conditions and the identity of the offeror) and (z) for which financing, to the
extent required, is then fully committed or which, in the good faith judgment of the Special
Committee (based on the advice of independent financial advisors), is reasonably capable of being
timely financed by such third party.
(b) Notwithstanding the foregoing or any other provision of this Agreement to the contrary, at
any time prior to the First Closing, following the receipt after the date hereof by the Company or
any Company Subsidiary of an Other Bid from any Person, if the Company’s board of directors
(following the recommendation of the Special Committee) determines in good faith after consultation
with its outside independent legal counsel and independent financial advisors that such Other Bid
is, or is reasonably likely to lead to, a Superior Other Bid and which Other Bid was not, directly
or indirectly, the result of a breach of Section 5.02(a), the Company’s board of directors
may, but only to the extent required by the fiduciary obligations of the Company’s board of
directors, as determined in good faith by the Special Committee after receiving the advice of
outside independent legal counsel, directly or through Representatives, (1) contact such Person and
its Representatives for the purpose of clarifying the proposal and any material terms thereof and
the capability of consummation, so as to determine whether the Other Bid is likely to lead to a
Superior Other Bid and (2) if the Company’s board of directors (following the recommendation of the
Special Committee) determines in good faith following consultation with its legal and financial
advisors that such proposal for an Other Bid is likely to lead to a Superior Other Bid, the
Company’s board of directors may (directly or through its Representatives) (A) furnish non-public
information with respect to the Company and the Company Subsidiaries to the Person who made such
Other Bid pursuant to a confidentiality agreement not less restrictive on such Person than the
confidentiality agreement between the
39
Company and the Purchaser (provided that the Company has previously or concurrently furnished such
information to the Purchaser), (B) participate in negotiations regarding such Other Bid and (C)
following receipt of an Other Bid that the Company’s board of directors (following the
recommendation of the Special Committee) determines in good faith constitutes a Superior Other Bid,
terminate this Agreement pursuant to, and subject to compliance with, Section 7.01(a)(vii)
and Section 7.03.
(c) On the date of this Agreement, the Company shall advise all its Representatives and the
Representatives of any Company Subsidiary who are involved in the Transactions (“Deal
Representatives”) of the terms of Section 5.02(a) and shall take, and shall cause the
Company Subsidiaries to take, all actions reasonably necessary to cause all such Deal
Representatives immediately to cease any discussions or negotiations pending on the date hereof
with any Person other than the Purchaser and its Representatives with respect to, or that would
reasonably be expected to lead to, an Other Bid.
(d) Without limiting the foregoing, it is understood that any violation of the restrictions
set forth in this Section 5.02(a), (b), (c) or (f) by any Deal
Representative, any Company Subsidiary or any of their respective Representatives, whether or not
such Person is purporting to act on behalf of the Company, any Company Subsidiary or otherwise,
shall be deemed to be a breach of this Agreement by the Company.
(e) Neither the Company’s board of directors nor any committee thereof shall, directly or
indirectly, (i) (A) withdraw (or amend or modify in a manner adverse to the Purchaser) or propose
to withdraw (or amend or modify in a manner adverse to the Purchaser), the approval of the
Company’s board of directors of the Transactions or (B) recommend, adopt or approve, or propose to
recommend, adopt or approve, any Other Bid (any action described in this clause (i) being referred
to as an “Adverse Recommendation Change”) or (ii) approve or recommend, or propose to
approve or recommend, or allow the Company or any Company Subsidiary to execute or enter into, any
letter of intent, memorandum of understanding, agreement in principle, merger agreement,
acquisition agreement, option agreement, joint venture agreement, partnership agreement or other
similar agreement, arrangement or understanding (A) constituting or that could reasonably be
expected to lead to any Other Bid or (B) requiring it to abandon, terminate or fail to consummate
the Transactions; provided that in the case of sub clauses (A) and (B) of this clause (ii), the
Company shall not be prohibited from entering into an agreement referred to in and in accordance
with Section 7.01(a)(vii). Notwithstanding the foregoing, at any time prior to the First
Closing, and subject to the Company’s compliance with the other provisions of this Section
5.02 as applicable, the Company’s board of directors (following the recommendation of the
Special Committee) may make an Adverse Recommendation Change if the Company’s board of directors
determines in good faith, after receiving the advice of outside independent counsel, that it is
necessary to do so in order to comply with its fiduciary duties to the Company’s shareholders under
Applicable Law; provided that the Company’s board of directors shall give the Purchaser at least
five (5) Business Days’ prior written notice thereof, unless such notice is not consistent with
discharging the Company’s board of directors’ fiduciary duties, in which case the Company’s board
of directors shall give the Purchaser the maximum amount of prior written notice thereof that is so
consistent.
40
(f) The Company shall advise the Purchaser, orally and in writing, immediately following
receipt, of any written or oral Other Bid or inquiry that would reasonably be expected to lead to
an Other Bid received by the Company, any Company Subsidiary or any of their Representatives on or
after the date hereof, the terms and conditions of any such Other Bid (including any changes
thereto) and the identity of the Person (and any controlling affiliates of such Person known to the
Company) making any such Other Bid and of any discussions, explorations or negotiations sought to
be entered into or continued by such Person with the Company, any Company Subsidiary or any of
their respective directors, officers, employees or Representatives. The Company shall keep the
Purchaser fully informed on a timely basis of the status (including any change to the terms and
conditions thereof) of any such Other Bid and shall provide the Purchaser with any correspondence
in connection with the Other Bid immediately after such correspondence is sent or received by the
Company, any Company Subsidiary or any of their Representatives.
(g) Notwithstanding anything to the contrary in this Section 5.02, nothing contained
in this Agreement shall prevent the Company or its board of directors from complying with Rules
14d-9 and 14e-2 under the Exchange Act or publicly disclosing the existence of a Competing Proposal
to the extent the board of directors of the Company determines in good faith (after consultation
with its outside counsel) that the failure to make such disclosure would reasonably be expected to
constitute a breach of its fiduciary duties under Applicable Law.
Section 5.03
Access to Information. The Company shall, and shall cause the Company
Subsidiaries to, afford to the Purchaser and its accountants, counsel and other Representatives
reasonable access, upon reasonable notice during normal business hours during the period before the
Second Closing, to all the personnel, properties, books, contracts, commitments, Tax Returns,
records and financial, operating and other data of the Company and the Company Subsidiaries, and,
during such period shall furnish promptly to the Purchaser any information concerning the Company
or a Company Subsidiary as the Purchaser may reasonably request;
provided,
however,
that such access does not unreasonably disrupt the normal operations of the Company and the Company
Subsidiaries. This
Section 5.03 shall not require the Company or any Company Subsidiary to
permit any inspection, or to disclose any information, that in their reasonable judgment would
reasonably be expected to result in (i) the disclosure of any trade secrets of third parties or a
violation of any of their obligations with respect to confidentiality if the Company and the
Company Subsidiaries shall have used all reasonable efforts to obtain the consent of such third
party to such inspection or disclosure or (ii) the loss of attorney-client privilege with respect
to such information.
Section 5.04
Confidentiality. (a) Between the date of this Agreement and the Second
Closing Date, the Purchaser and the Company will maintain in confidence, and will cause their
respective directors, officers, employees, agents, and advisors, and the Company will cause the
Company Subsidiaries and their directors, officers, employees, agents and advisors to maintain in
confidence, and not use to the detriment of another party or the Company or any Company Subsidiary
any written, oral, or other information obtained in confidence from another party or the Company or
any Company Subsidiary in connection with this Agreement or the Transactions, unless (a) such
information is already known to such party or to others not bound by a duty of confidentiality or
such information becomes publicly available through no fault of such party, (b) the use of such
information is necessary or appropriate in making any filing or
41
obtaining any consent or approval required for the consummation of the transactions contemplated
herein, or (c) the furnishing or use of such information is required by or necessary or appropriate
in connection with any Proceeding or by Applicable Law. If the Transactions are not consummated,
each party will return or destroy as much of such written information as the other party may
reasonably request. This Section 5.04 shall supersede any other confidentiality agreement
between Purchaser and the Company or its affiliates.
Section 5.05
Reasonable Best Efforts. (a) On the terms and subject to the conditions
hereof, each party hereto shall cooperate with the other and use its reasonable best efforts to
cause each Closing to occur, including taking all reasonable actions necessary to comply promptly
with all legal requirements that may be imposed on it or any of its Related Persons with respect to
such Closing.
(b) Each party hereto shall, and shall cause its Affiliates to, use their reasonable best
efforts to obtain, and to cooperate in obtaining, all Consents from third parties necessary or
appropriate to permit the consummation of the Acquisition; provided, however, that
the parties shall not be required to pay or commit to pay any amount to (or incur any obligation in
favor of) any Person from whom any such Consent may be required (other than customary filing fees
payable to Governmental Entities and nominal filing or application fees payable to other third
parties) and the Purchaser shall not be required to agree to any conditions or restrictions imposed
by any third party that, individually or in the aggregate, in the reasonable judgment of the
Purchaser, would materially impair (or would reasonably be expected to materially impair) the
ability of the Purchaser to consummate the Transactions or would impose any material limitation on
the conduct of the Purchaser’s or the Company’s business.
(c) Subject to Applicable Laws relating to the sharing of information, each of the Company and
the Purchaser shall have the right to review in advance, and to the extent practicable each will
consult the others on, all the information relating to the Purchaser or the Company, as the case
may be, and any of their respective Related Persons, that appear in any Filing made with, or
written materials submitted to, any third party or any Governmental Entity in connection with the
Transactions.
Section 5.06
Expenses. Whether or not either Closing takes place, and except as
otherwise expressly set forth herein, all costs and expenses incurred in connection with this
Agreement and the Ancillary Agreements and the Transactions shall be paid by the party incurring
such expense. In the event of termination hereof, the obligation of each party hereto to pay its
own expenses will be subject to any rights of such party arising out of a breach hereof by another
party.
Section 5.07
Brokers or Finders. The Purchaser shall bear the fees and expenses of
any agent, broker, investment banker or other firm or Person engaged by the Purchaser or any of its
Related Persons that is entitled to any broker’s or finder’s fee or any other commission or similar
fee in connection with this Agreement, the Ancillary Agreements and any transaction contemplated
hereby and thereby. The Company shall bear the fees and expenses of any agent, broker, investment
banker or other firm or Person engaged by the Company, any Company Subsidiary or any of their
Related Persons that is entitled to any broker’s or finder’s fee or any
42
other commission or similar fee in connection with this Agreement, the Ancillary Agreements and any
transaction contemplated hereby and thereby.
Section 5.08
Supplemental Disclosure. (a) The Company shall have the continuing
obligation until the Second Closing promptly to supplement or amend the Schedules with respect to
any matter hereafter arising or discovered that, if existing or known at the date hereof, would
have been required to be set forth or described in the Schedules;
provided,
however, that no such supplement or amendment to the Schedules shall have any effect for
the purpose of determining the satisfaction of the conditions set forth in
Section 6.02
(
Conditions to Obligation of the Purchaser) or for purposes of determining whether any Person is
entitled to indemnification pursuant to
Article VIII (
Indemnification).
(b) The Purchaser shall promptly, upon having or gaining Knowledge of any event, condition or
fact that would cause any of the conditions to the Company’s obligation to consummate the
Acquisition not to be fulfilled, notify the Company thereof, and furnish any information the
Company may reasonably request with respect thereto.
(c) The Company shall promptly, upon having or gaining Knowledge of any event, condition or
fact that would cause any of the conditions to the Purchaser’s obligation to consummate the
Acquisition not to be fulfilled, notify the Purchaser thereof, and furnish any information the
Purchaser may reasonably request with respect thereto.
Section 5.09
Publicity. From the date hereof through the Second Closing Date, no
public release or announcement concerning the Transactions shall be issued by any party hereto
without the prior written consent of the other parties hereto (which consent shall not be
unreasonably withheld, conditioned or delayed), except such release or announcement as may be
required by Applicable Law or the rules or regulations of any United States or foreign securities
exchange, in which case the party required to make the release or announcement shall allow the
other party reasonable time to comment on such release or announcement in advance of such issuance;
provided,
however, that each of the Company and the Purchaser may make internal
announcements to their respective employees that are consistent with the parties’ prior public
disclosures regarding the Transactions after reasonable prior notice to and consultation with the
other.
Section 5.10
Further Assurances. From time to time, as and when requested by any
party, each party shall execute and deliver, or cause to be executed and delivered, all such
documents and instruments and shall take, or cause to be taken, all such further or other actions
subject to
Section 5.05 (
Reasonable Best Efforts), as such other party may reasonably deem
necessary or desirable to consummate the Transactions.
Section 5.11
Use of Proceeds. The Company shall not, without the prior written
consent of the Purchaser, use the net proceeds from the sale of the Purchased Shares for
distributions or dividends to the Company’s shareholders or for any purpose other than (i)
financing pre-construction and construction phase development costs related to solar projects and
general advancement of the Company’s business model and business operations, including for working
capital and general corporate purposes and (ii) until funds are needed for such uses,
43
short-term, interest-bearing, investment-grade securities, or otherwise pursuant to the Company’s
customary investment policies.
Section 5.12
Legend. The Purchaser agrees to the imprinting of the following legend
on any certificate evidencing the Shares:
THESE SECURITIES HAVE NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE
COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION
FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES
ACT”), OR ANY APPLICABLE STATE SECURITIES LAWS AND, ACCORDINGLY, MAY NOT BE OFFERED
OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO,
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN COMPLIANCE WITH
APPLICABLE STATE SECURITIES LAWS OR BLUE SKY LAWS. NOTWITHSTANDING THE FOREGOING,
THE SECURITIES MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER
LOAN OR FINANCING ARRANGEMENT SECURED BY THE SECURITIES.
The Company agrees to remove such restrictions and, at the request of the Purchaser, provide
the Purchaser with replacement securities not bearing such restrictions from and after the time
that the offer and sale of such securities is (i) registered under the Securities Act of 1933 or
(ii) is not required to be registered by virtue of Rule 144 thereunder or the availability of any
other exemption from registration with respect to such offer and sale.
(a) From and after the date of this Agreement, the Company shall at all times keep authorized
and reserve for issuance to the Purchaser, free from any preemptive rights, the maximum number of
shares of Common Stock that are required to issue all Conversion Shares (the “Required Reserve
Amount”), but not in excess of the number of authorized shares of Common Stock of the Company.
(b) From and after the First Closing Date, in the event that the authorized number of shares
of Common Stock is insufficient at any time to cover the Required Reserve Amount, the Company shall
take such action (including holding a meeting of its shareholders) as is necessary to increase the
authorized number of shares of Common Stock to an amount sufficient to cover the Required Reserve
Amount, as the case may be.
Section 5.14
Listing. The Company shall use its best efforts to have all of the
Conversion Shares authorized for quotation on the Over-The-Counter Bulletin Board or on the
securities exchange or automated quotation system on which the Common Stock is then listed or
authorized for quotation.
44
Section 5.15
Shareholder Approval; Meeting of Shareholders; Proxy Statement. (a) The
Company shall take, in accordance with Applicable Law and its articles of incorporation and bylaws,
all action necessary after the First Closing to convene the Shareholder Meeting not later than June
30, 2011 and to submit the Charter Amendment for approval by the requisite vote of the shareholders
the Company. In connection with each meeting of shareholders at which the Charter Amendment is
submitted for a vote of the shareholders of the Company, to the fullest extent permitted by
Applicable Law, (i) the Company’s board of directors shall recommend that its shareholders vote in
favor of the Charter Amendment and (ii) neither the Company’s board of directors nor any committee
thereof shall withdraw or modify, or propose or resolve to withdraw or modify in a manner adverse
to the Purchaser the recommendation of the board of directors that the shareholders of the Company
vote in favor of the Charter Amendment; provided, that at any time prior to obtaining such
shareholder approval the board of directors of the Company may withdraw such recommendation if it
determines in good faith (after consultation with outside counsel) that failure to take such action
violates its fiduciary duties under Applicable Law. The Company shall take all lawful action to
solicit from the shareholders proxies in favor of the Charter Amendment and take all other action
necessary or advisable to secure the Shareholder Approval, including, if necessary or appropriate,
adjourning the Shareholder Meeting to solicit additional proxies.
(b) In connection with obtaining the Shareholder Approval at the Shareholder Meeting, as
promptly as practicable after the First Closing, the Company shall, in consultation with the
Purchaser, prepare, and file with the Commission, preliminary proxy materials in compliance with
Section 14 of the Exchange Act (the “Proxy Statement”). As promptly as practicable after comments,
if any, are received from the Commission thereon and after the furnishing by the Company and the
Purchaser of all information required to be contained therein, the Company shall, in consultation
with the Purchaser, prepare and the Company shall file any required amendments, if any, with the
Commission. The Company shall notify the Purchaser promptly of the receipt of any comments from
the Commission or its staff and of any request by the Commission or its staff for amendments or
supplements to the Proxy Statement or for additional information and shall consult with the
Purchaser regarding, and supply the Purchaser with copies of, all correspondence between the
Company or any of its representatives, on the one hand, and the Commission or its staff, on the
other hand, with respect to the Proxy Statement. Prior to filing or mailing any proposed amendment
of or supplement to the Proxy Statement, the Company shall provide the Purchaser a reasonable
opportunity to review and comment on such document. The Company shall use its reasonable best
efforts to have the Proxy Statement cleared by the Commission and shall thereafter mail to the
shareholders of the Company as promptly as possible the Proxy Statement and all other proxy
materials for the Shareholder Meeting.
(c) The Company hereby covenants and agrees that (i) the Proxy Statement will, when filed,
comply as to form in all material respects with the applicable requirements of the Exchange Act and
(ii) none of the information included or incorporated by reference in the Proxy Statement will, at
the date it is first mailed to the shareholders of the Company or at the time of any amendment or
supplement thereof or at the time of the Shareholder Meeting, contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances under which they are made, not
misleading.
45
Section 5.16
Board of Directors. The Company shall cause each of Xxx Xxxxx, Xxx Xxxxx
and Xxxx Xxxxx to resign from the board of directors of the Company effective as of the date
specified in writing by the Purchaser prior to the Second Closing and shall cause each of Xxxxxxxx
Xxxx and Xxxx Xxx to be appointed to the Company’s board of directors in conjunction with the First
Closing and two other individuals to be designated by Purchaser to be appointed to the board of
directors of the Company and seated as directors upon the effectiveness of the foregoing
resignations.
Section 5.17
Financing. (a) Purchaser shall use its reasonable best efforts to
obtain from China Development Bank the funds necessary to consummate the Transactions (the
“Financing”), including using its reasonable best efforts to: (i) negotiate in good faith and enter
into definitive agreements with respect to the Financing on terms that are acceptable in good faith
to Purchaser and would not reasonably be expected to have a Purchaser Material Adverse Effect; (ii)
comply on a timely basis with all covenants, and satisfy on a timely basis all conditions, required
to be complied with or satisfied by Purchaser in such definitive agreements; and (iii) cause the
Financing to be consummated at such time or from time to time as is necessary for Purchaser to
satisfy its obligations under this Agreement;
provided,
however, that,
notwithstanding anything to the contrary contained herein, Purchaser shall have the right, but not
the obligation, to substitute other debt or equity financing for all or any portion of the
Financing from alternative financing sources. In the event any alternative or substitute financing
is obtained by Purchaser in accordance with the terms of this
Section 5.17(a) (the
“
Alternative Financing”), references herein to the Financing (including, for avoidance of
doubt, the references in this
Section 5.17 shall be deemed to refer to the Alternative
Financing.
(b) Purchaser shall keep the Company reasonably informed with respect to all material activity
concerning the status of the Financing and shall give the Company prompt notice of any event or
change that Purchaser determines will materially and adversely affect the ability of Purchaser to
consummate the Financing.
Section 6.01
Conditions to Each Party’s Obligation. The obligation of the Purchaser
and the Company to consummate the Transactions to be effected at the First Closing Date is subject
to the satisfaction (or waiver by the Purchaser and the Company) on or before the First Closing
Date of the following conditions:
(a)
Governmental Approvals. The waiting period under the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976 (the “
HSR Act”), if applicable to the consummation of the
Acquisition, shall have expired or been terminated or waived by the Parties, and all other Consents
of, Filings with, or expirations of waiting periods imposed by, any Governmental Entity necessary
for the consummation of the Acquisition shall have been obtained or filed or shall have occurred,
in each case without any conditions, restrictions, undertakings or limitations that, individually
or in the aggregate, in the judgment of the Purchaser, would materially impair (or would reasonably
be expected to materially impair) the ability of the Purchaser to consummate the Transactions or
would reasonably be expected to have a material adverse effect on the economic benefits to the
Purchaser arising therefrom.
46
(b)
No Injunctions or Restraints. No Applicable Law or Judgment enacted, entered,
promulgated, enforced or issued by any Governmental Entity or other legal restraint or prohibition
preventing the consummation of the Acquisition shall be in effect.
Section 6.02
Conditions to Obligation of the Purchaser. The obligation of the
Purchaser to consummate the Transactions is subject to the satisfaction (or waiver by the
Purchaser) on or before the First Closing Date of the following conditions:
(a)
Representations and Warranties. The representations and warranties (considered
individually and collectively) of the Company herein and in the Ancillary Agreements (other than
any Fundamental Representations) that are qualified as to materiality shall be true and correct,
and those not so qualified shall be true and correct in all material respects, as of the date
hereof and as of the First Closing Date as though made on the First Closing Date, except to the
extent such representations and warranties expressly relate to an earlier date (in which case such
representations and warranties qualified as to materiality shall be true and correct, and those not
so qualified shall be true and correct in all material respects, on and as of such earlier date).
Each Fundamental Representation of the Company shall be true and correct in all respects, as of the
date hereof and as of the First Closing Date as though made on the First Closing Date. The
Purchaser shall have received a certificate signed by an authorized officer of the Company to the
effect of the preceding two sentences.
(b)
Performance of Obligations of the Company. The Company shall have performed or
complied in all material respects with all obligations and covenants (considered individually and
collectively) required by this Agreement and the Ancillary Agreements to be performed or complied
with by the Company, as applicable, on or before the First Closing Date, and the Purchaser shall
have received a certificate signed by an authorized officer of the Company to such effect.
(c)
Absence of Proceedings. There shall not be pending or threatened any Proceeding
(i) challenging or seeking to restrain or prohibit the Acquisition or any other Transaction or
seeking to obtain from the Purchaser, any of its Related Persons, the Company or the Company
Subsidiaries in connection with the Acquisition or any other Transaction any damages that are
material, (ii) seeking to prohibit or limit the ownership or operation by the Purchaser or any of
its Related Persons of any material portion of the business or assets of the Purchaser, any of its
Related Persons, the Company or any of the Company Subsidiaries, or to compel the Purchaser, any of
its Related Persons, the Company or any of the Company Subsidiaries to dispose of or hold separate
any material portion of the business or assets of the Purchaser, any of its Related Persons, the
Company or any of the Company Subsidiaries, in each case as a result of the Transactions, (iii)
seeking to impose limitations on the ability of the Purchaser or any of its Subsidiaries to acquire
or hold, or exercise full rights of ownership of, the Shares, including the right to vote the
Shares on all matters properly presented to the stockholders of the Company, (iv) seeking to
prohibit the Purchaser or any of its Related Persons from effectively controlling in any material
respect the business or operations of the Company or any Company Subsidiary or (v) seeking to
impose any conditions or restrictions that, individually or in the aggregate, in the judgment of
the Purchaser, would materially impair (or would reasonably be expected to materially impair) the
ability of the Purchaser to consummate
47
the Acquisition or any other Transaction or would reasonably be expected to have a
material adverse effect on the economic benefits to the Purchaser arising therefrom.
(d)
Absence of Company Material Adverse Effect. There shall not have occurred any
event since the date of this Agreement and no circumstance shall exist that constitute or would
reasonably be expected to result in a Company Material Adverse Effect, and the Purchaser shall have
received a certificate signed by an authorized officer of the Company to such effect.
(e)
Other Documents. The Company shall have furnished to the Purchaser such other
documents relating to the existence and authority, absence of Liens, and such other matters as the
Purchaser or its counsel may reasonably request.
(f)
Acceptance by the Purchaser’s Counsel. The form and substance of all legal
matters contemplated herein and of all documents delivered hereunder shall be reasonably acceptable
to Sidley Austin
llp, counsel to the Purchaser.
(g)
Lock-up. The Lock-Up Agreements shall be in full force and effect on the First
Closing Date.
(h)
Certificate of Determination. The Company shall have filed with the Secretary of
State of California an amendment to its articles of incorporation in substantially the form
attached hereto as
Exhibit A.
(i)
Opinion of Counsel. Purchaser shall have received the legal opinion of Xxxxxxxxx
Genshlea Chediak, counsel to the Company, in form and substance reasonably acceptable to Purchaser,
covering the matters set forth in
Exhibit D-1 and dated the date of the First Closing.
Section 6.03
Conditions to Obligation of the Company. The obligation of the Company
to consummate the Transactions to be effected on the First Closing Date is subject to the
satisfaction (or waiver by the Company) on or before the First Closing Date of the following
conditions:
(a)
Representations and Warranties. The representations and warranties (considered
individually and collectively) of the Purchaser made herein and in the Ancillary Agreements
qualified as to materiality shall be true and correct, and those not so qualified shall be true and
correct in all material respects, as of the date hereof and as of the First Closing Date as though
made on the First Closing Date, except
to the extent such representations and warranties
expressly relate to an earlier date (in which case such representations and warranties qualified as
to materiality shall be true and correct, and those not so qualified shall be true and correct in
all material respects, on and as of such earlier date). Each Fundamental Representation of the
Purchaser that is qualified as to materiality shall be true and correct, and each such Fundamental
Representation that is not so qualified shall be true and correct in all respects, as of the date
hereof and as of the First Closing Date as though made on the First Closing Date. The Company
shall have received a certificate signed by an authorized officer of the Purchaser to the effect of
the preceding two sentences.
48
(b)
Performance of Obligations of the Purchaser. The Purchaser shall have performed
or complied in all material respects with all obligations and covenants (considered individually
and collectively) required by this Agreement and the Ancillary Agreements to be performed or
complied with by the Purchaser on or before the First Closing Date, and the Company shall have
received a certificate signed by an authorized officer of the Purchaser to such effect.
Section 6.04
Frustration of Closing Conditions. Neither the Purchaser nor the Company
may rely on the failure of any condition set forth in this Article VI to be satisfied if such
failure was caused by such party’s failure to act in good faith or to use its reasonable best
efforts to cause the First Closing to occur, as required by
Section 5.05 (
Reasonable Best
Efforts).
(a)
Governmental Approvals. The waiting period under the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976 (the “HSR Act”), if applicable to the consummation of the Acquisition,
shall have expired or been terminated or waived by the Parties, and all other Consents of, Filings
with, or expirations of waiting periods imposed by, any Governmental Entity necessary for the
consummation of the Acquisition shall have been obtained or filed or shall have occurred, in each
case without any conditions, restrictions, undertakings or limitations that, individually or in the
aggregate, in the judgment of the Purchaser, would materially impair (or would reasonably be
expected to materially impair) the ability of the Purchaser to consummate the Transactions or would
reasonably be expected to have a material adverse effect on the economic benefits to the Purchaser
arising therefrom.
(b)
No Injunctions or Restraints. No Applicable Law or Judgment enacted, entered,
promulgated, enforced or issued by any Governmental Entity or other legal restraint or prohibition
preventing the consummation of the Acquisition shall be in effect.
Section 6.02A
Conditions to Obligation of the Purchaser. The obligation of the
Purchaser to consummate the Transactions to be effected at the Second Closing is subject to the
satisfaction (or waiver by the Purchaser) on or before the Second Closing Date of the following
conditions:
(a)
Representations and Warranties. The representations and warranties (considered
individually and collectively) of the Company herein and in the Ancillary Agreements (other than
any Fundamental Representations) that are qualified as to materiality shall be true and correct,
and those not so qualified shall be true and correct in all material respects, as of the date
hereof and as of the Second Closing Date as though made on the Second Closing Date, except to the
extent such representations and warranties expressly relate to an earlier date (in which case such
representations and warranties qualified as to materiality shall be
49
true and correct, and those not so qualified shall be true and correct in all material
respects, on and as of such earlier date). Each Fundamental Representation of the Company shall be
true and correct in all respects, as of the date hereof and as of the Second Closing Date as though
made on the Second Closing Date. The Purchaser shall have received a certificate signed by an
authorized officer of the Company to the effect of the preceding two sentences.
(b)
Performance of Obligations of the Company. The Company shall have performed or
complied in all material respects with all obligations and covenants (considered individually and
collectively) required by this Agreement and the Ancillary Agreements to be performed by the
Company, and the Purchaser shall have received a certificate signed by an authorized officer of the
Company to such effect.
(c)
Absence of Proceedings. There shall not be pending or threatened any Proceeding
(i) challenging or seeking to restrain or prohibit the Acquisition or any other Transaction or
seeking to obtain from the Purchaser, any of its Related Persons, the Company or the Company
Subsidiaries in connection with the Acquisition or any other Transaction any damages that are
material, (ii) seeking to prohibit or limit the ownership or operation by the Purchaser or any of
its Related Persons of any material portion of the business or assets of the Purchaser, any of its
Related Persons, the Company or any of the Company Subsidiaries, or to compel the Purchaser, any of
its Related Persons, the Company or any of the Company Subsidiaries to dispose of or hold separate
any material portion of the business or assets of the Purchaser, any of its Related Persons, the
Company or any of the Company Subsidiaries, in each case as a result of the Transactions, (iii)
seeking to impose limitations on the ability of the Purchaser or any of its Subsidiaries to acquire
or hold, or exercise full rights of ownership of, the Shares, including the right to vote the
Shares on all matters properly presented to the stockholders of the Company, (iv) seeking to
prohibit the Purchaser or any of its Related Persons from effectively controlling in any material
respect the business or operations of the Company or any Company Subsidiary or (v) seeking to
impose any conditions or restrictions that, individually or in the aggregate, in the judgment of
the Purchaser, would materially impair (or would reasonably be expected to materially impair) the
ability of the Purchaser to consummate the Acquisition or any other Transaction or would reasonably
be expected to have a material adverse effect on the economic benefits to the Purchaser arising
therefrom.
(d)
Absence of Company Material Adverse Effect. There shall not have occurred any
event since the date of this Agreement and no circumstance shall exist that constitute or would
reasonably be expected to result in a Company Material Adverse Effect, and the Purchaser shall have
received a certificate signed by an authorized officer of the Company to such effect.
(e)
Other Documents. The Company shall have furnished to the Purchaser such other
documents relating to the existence and authority, absence of Liens, and such other matters as the
Purchaser or its counsel may reasonably request.
(f)
Acceptance by the Purchaser’s Counsel. The form and substance of all legal
matters contemplated herein and of all documents delivered hereunder shall be reasonably acceptable
to Sidley Austin LLP, counsel to the Purchaser.
50
(g)
Opinion of Counsel. Purchaser shall have received the legal opinion of Xxxxxxxxx
Genshlea Chediak, counsel to the Company, in form and substance reasonably acceptable to Purchaser,
covering the matters set forth in
Exhibit D-2 and dated as of the Second Closing Date.
(h)
Board of Directors. The resignations contemplated in
Section 5.16 shall
have been delivered.
(i)
Financing. Purchaser shall have obtained the Financing necessary to consummate
the Transactions to be effected on the Second Closing Date and to pay all related fees and
expenses.
(j)
Certificate of Determination. The amendment to the Company’s articles of
incorporation filed with the Secretary of State of California pursuant to
Section 6.02(h)
shall have been accepted, and a certified copy of the articles of incorporation of the Company, as
so amended and restated, shall have been delivered to Purchaser.
(a)
Representations and Warranties. The representations and warranties (considered
individually and collectively) of the Purchaser made herein and in the Ancillary Agreements
qualified as to materiality shall be true and correct, and those not so qualified shall be true and
correct in all material respects, as of the date hereof and as of the Second Closing Date as though
made on the Second Closing Date, except to the extent such representations and warranties expressly
relate to an earlier date (in which case such representations and warranties qualified as to
materiality shall be true and correct, and those not so qualified shall be true and correct in all
material respects, on and as of such earlier date). Each Fundamental Representation of the
Purchaser that is qualified as to materiality shall be true and correct, and each such Fundamental
Representation that is not so qualified shall be true and correct in all respects, as of the date
hereof and as of the Second Closing Date as though made on the Second Closing Date. The Company
shall have received a certificate signed by an authorized officer of the Purchaser to the effect of
the preceding two sentences.
(b)
Performance of Obligations of the Purchaser. The Purchaser shall have performed
or complied in all material respects with all obligations and covenants (considered individually
and collectively) required by this Agreement and the Ancillary Agreements to be performed or
complied with by the Purchaser on or before the Second Closing Date, and the Company shall have
received a certificate signed by an authorized officer of the Purchaser to such effect.
51
efforts to cause the Second Closing to occur, as required by Section 5.05 (Reasonable
Best Efforts).
Section 7.01
Termination. (a) Notwithstanding anything to the contrary herein, this
Agreement may be terminated and the Transactions abandoned at any time before the First Closing:
(i) by mutual written consent of the Company and the Purchaser;
(ii) by the Company if (A) there have been one or more breaches by the Purchaser of any
of its representations, warranties, covenants or agreements contained herein or in any
Ancillary Agreement that have not been waived by the Company and would result in the failure
to satisfy any of the conditions set forth in Section 6.01 (Conditions to Each
Party’s Obligation) or Section 6.03 (Conditions to Obligation of the Company) and
such breaches have not been cured within 60 days after written notice thereof has been
received by the Purchaser or (B) any of the conditions set forth in Section 6.01
(Conditions to Each Party’s Obligation) or Section 6.03 (Conditions to
Obligation of the Company) has become incapable of being satisfied on or before March 31,
2010 (the “Outside Date”) and has not been waived by the Company and;
provided, in each case that the Company is not in breach of any of its
representations, warranties, covenants or agreements contained herein or in any Ancillary
Agreement;
(iii) by the Purchaser if (A) there have been one or more breaches by the Company of
any of its respective representations, warranties, covenants or agreements contained herein
or in any Ancillary Agreement that have not been waived by the Purchaser and would result in
the failure to satisfy any of the conditions set forth in Section 6.01 (Conditions
to Each Party’s Obligation) or Section 6.02 (Conditions to Obligation of the
Purchaser) and such breaches have not been cured within 30 days after written notice thereof
has been received by the Company or (B) any of the conditions set forth in Section 6.01
(Conditions to Each Party’s Obligation) or Section 6.02 (Conditions to
Obligation of the Purchaser) has become incapable of being satisfied on or before the
Outside Date and has not been waived by the Purchaser; provided, in each case that
the Purchaser is not in breach of any of its representations, warranties, covenants or
agreements contained herein or in any Ancillary Agreement;
(iv) by the Company or the Purchaser, if the First Closing does not occur on or before
the Outside Date; provided, however, that the Company and the Purchaser
shall not be permitted to terminate this Agreement pursuant to this Section
7.01(a)(iv) if the failure to consummate the First Closing by such date results from
breach by the Company (in the case of termination by the Company) or the Purchaser (in the
case of termination by the Purchaser) of any of its representations, warranties, covenants
or agreements contained herein or in any Ancillary Agreement;
52
(v) by the Company or the Purchaser if any Judgment shall have been entered, or a
Governmental Entity shall have issued any order, restraining or prohibiting the consummation
of the Transactions;
(vi) by the Purchaser if, prior to the First Closing, an Adverse Recommendation Change
shall have occurred; or
(vii) by the Company, if at any time prior to the First Closing, (A) the Company’s
board of directors has received a Superior Other Bid, (B) the Company is in compliance with
Section 5.02, (C) the Company shall have first given the Purchaser at least five (5)
Business Days’ written notice of its intent to terminate pursuant to this subsection,
indicating in such notice the material terms and conditions of such Superior Other Bid, and
during the five (5) Business Day period immediately following the delivery of such notice,
the Company negotiates in good faith with the Purchaser to make such adjustments to the
terms and conditions of this Agreement as would enable the parties to proceed with the
Transactions on such adjusted terms, (D) after taking into account any amendment to this
Agreement entered into, or to which the Purchaser irrevocably covenants to enter into,
within such five (5) Business Day period and for which all internal approvals of the
Purchaser have been obtained since receipt of such notice, such Superior Other Bid continues
to constitute a Superior Other Bid and the Company’s board of directors authorizes the
Company to, and the Company does, enter into a definitive written agreement providing for a
transaction in accordance with the terms of the Superior Other Bid and (v) the Company shall
have prior to or simultaneously with such termination duly paid to the Purchaser, or as
directed by the Purchaser, the Termination Fee pursuant to Section 7.03. For the
avoidance of doubt, any significant change in the Superior Other Bid shall require the
Company to provide prompt written notice to the Purchaser thereof and such notice shall
commence a new five (5) Business Day period for purposes of clauses (iii) and (iv) above.
(b) In the event of termination by the Company or the Purchaser pursuant to Section
7.01(a), written notice thereof shall forthwith be given to the others, setting forth the
clause of Section 7.01(a) pursuant to which such party is terminating and the facts giving
rise to such party’s termination right in reasonable detail, and the Transactions shall be
terminated, without further action by any party. If the transactions are terminated as provided
herein:
(i) The Purchaser shall return all documents and other material received from the
Company relating to the Transactions, whether so obtained before or after the execution
hereof, to the Company; provided, however, that solely for purposes of
asserting or protecting its rights under this Agreement or any Ancillary Agreement, the
Purchaser may retain one copy of all documents made available to the Purchaser in any
physical or electronic “data rooms,” management presentations or in any other form in
expectation of the Transactions;
(ii) The Company shall return all documents and other material received from the
Purchaser relating to the Transactions, whether so obtained before or after the execution
hereof, to the Purchaser; provided, however, that solely for purposes of
asserting or protecting its rights under this Agreement or any Ancillary Agreement, the
53
Company may retain one copy of all documents made available to them in any physical or
electronic “data rooms,” management presentations or in any other form in expectation of the
Transactions; and
(iii) all confidential information received by any party from any other with respect to
the Transactions shall be treated in accordance with Section 5.04 (Confidentiality),
which shall remain in full force and effect notwithstanding the termination hereof.
(c) Notwithstanding anything to the contrary herein, the Transactions to be effected at the
Second Closing may be abandoned at any time before the Second Closing:
(i) by mutual written consent of the Company and the Purchaser;
(ii) by the Company if (A) there have been one or more breaches by the Purchaser of any
of its representations, warranties, covenants or agreements contained herein or in any
Ancillary Agreement that have not been waived by the Company and would result in the failure
to satisfy any of the conditions set forth in Section 6.01A (Conditions to Each
Party’s Obligation) or Section 6.03A (Conditions to Obligation of the Company) and
such breaches have not been cured within 60 days after written notice thereof has been
received by the Purchaser or (B) any of the conditions set forth in Section 6.01A
(Conditions to Each Party’s Obligation) or Section 6.03A (Conditions to Obligation
of the Company) has become incapable of being satisfied on or before March 31, 2010 (the
“Outside Date”) and has not been waived by the Company and; provided, in
each case that the Company is not in breach of any of its representations, warranties,
covenants or agreements contained herein or in any Ancillary Agreement;
(iii) by the Purchaser if (A) there have been one or more breaches by the Company of
any of its respective representations, warranties, covenants or agreements contained herein
or in any Ancillary Agreement that have not been waived by the Purchaser and would result in
the failure to satisfy any of the conditions set forth in Section 6.01A (Conditions
to Each Party’s Obligation) or Section 6.02A (Conditions to Obligation of the
Purchaser) and such breaches have not been cured within 30 days after written notice thereof
has been received by the Company or (B) any of the conditions set forth in Section
6.01A (Conditions to Each Party’s Obligation) or Section 6.02A (Conditions to
Obligation of the Purchaser) has become incapable of being satisfied on or before the
Outside Date and has not been waived by the Purchaser; provided, in each case that
the Purchaser is not in breach of any of its representations, warranties, covenants or
agreements contained herein or in any Ancillary Agreement;
(iv) by the Company or the Purchaser if the Second Closing does not occur on or before
the Outside Date; provided, however, that the Company and the Purchaser
shall not be permitted to terminate this Agreement pursuant to this Section
7.01(c)(iv) if the failure to consummate the Second Closing by such date results from
breach by the Company (in the case of termination by the Company) or the Purchaser (in the
case of termination by the Purchaser) of any of its representations, warranties, covenants
or agreements contained herein or in any Ancillary Agreement;
54
(v) by the Company or the Purchaser if any Judgment shall have been entered, or a
Governmental Entity shall have issued any order, restraining or prohibiting the consummation
of the Transactions;
Section 7.02
Effect of Termination. If this Agreement is terminated and the
Transactions are abandoned as described in
Section 7.01(a) (
Termination), then, subject to
the next succeeding sentence, this Agreement shall become null and void and of no further force and
effect, and all further obligations of the parties under this Agreement will terminate, except for
Section 5.04 (
Confidentiality),
Section 5.06 (
Expenses; Transfer Taxes),
Section 5.07 (
Brokers or Finders),
Section 5.11 (
Publicity),
Section 7.01
(
Termination), this
Section 7.02,
Section 7.03 (
Termination Fee) and
Article
IX (
General Provisions). Nothing in this
Section 7.02 shall be deemed to release any
party from any liability for fraud or any intentional or willful breach by such party and of the
terms and provisions hereof, and the rights of the parties to pursue all remedies for any such
fraud or breach will survive such termination unimpaired. Each party’s right of termination under
Section 7.01 is in addition to any other rights it may have under this Agreement or
otherwise, and the exercise of a right of termination will not be an election of remedies.
Section 7.03
Termination Fee (a) . (a)Notwithstanding any other provision of this
Agreement, the Company agrees with the Purchaser that (i) if the Purchaser shall terminate this
Agreement pursuant to
Section 7.01(a)(vi), the Company shall pay to the Purchaser, or as
directed by the Purchaser, the Termination Fee on the Business Day immediately following the
termination Date, and (ii) if the Company shall terminate this Agreement pursuant to
Section
7.01(a)(vii), the Company shall pay to the Purchaser, or as directed by the Purchaser, the
Termination Fee concurrent with such termination. For purposes of this Agreement, “
Termination
Fee” means an amount equal to $1,000,000. Payment of the Termination Fee shall be made by wire
transfer of immediately available funds.
(b) Each of the Purchaser and the Company acknowledges and agrees that in the event that the
Purchaser is entitled to receive the Termination Fee pursuant to this Agreement, the right of such
recipient to receive such amount shall constitute the Purchaser’s sole and exclusive remedy for,
and such amount shall constitute liquidated damages in respect of, such termination of this
Agreement.
Section 7.04
Amendments and Waivers. This Agreement may not be amended except by an
instrument in writing signed on behalf of each of the parties hereto. By an instrument in writing
the Purchaser, on the one hand, or the Company, on the other hand, may waive compliance by the
other with any term or provision hereof that such other party was or is obligated to comply with or
perform. No delay or omission by any party hereto to exercise any right or power under this
Agreement or pursuant to Applicable Law shall impair such right or power or be construed as a
waiver thereof. A waiver by either party of any representation, warranty, covenant or condition
shall not be construed to be a waiver of any succeeding breach or of any other representation,
warranty, covenant or condition.
55
Section 8.01
Indemnification by the Company. (a) The Company shall be liable for,
and shall indemnify the Purchaser and its Affiliates (the “
Purchaser Indemnitees”) against
and hold each of them harmless from, any loss, liability, claim, damage, cost or expense, including
reasonable legal fees and expenses (but excluding any lost profits and special, indirect,
consequential or punitive damages, except to the extent actually paid to a third party)
(collectively, “
Losses”), suffered or incurred by each such Purchaser Indemnitee arising
out of, involving or otherwise in respect of:
(i) any breach of any representation or warranty of the Company contained herein
(without giving effect to any supplemental disclosures delivered pursuant hereto), in any
Ancillary Agreement or any certificate delivered pursuant hereto or thereto;
(ii) any breach of any covenant of the Company contained herein or in any Ancillary
Agreement; and
(iii) any Excluded Liability.
(b) Subject to Section 8.01(c), the Company shall not be required to make any
indemnification payment pursuant to Section 8.01(a)(i) for any inaccuracy in or breach of
any representation or warranty in this Agreement until such time as the total amount of all Losses
that have been suffered or incurred by all of the Purchaser Indemnitees in the aggregate exceeds
$100,000. If the total amount of such Losses exceeds $100,000 in the aggregate, then the Purchaser
Indemnitees shall be entitled to be indemnified against and compensated and reimbursed for all such
Losses.
(c) The limitations set forth in Section 8.01(b) shall not apply: (i) in the case of
intentional misrepresentation or fraud; or (ii) to inaccuracies in or breaches of any of the
Fundamental Representations.
(d) Except as provided under Section 7.03 (Termination Fee), in the absence of actual
fraud, Section 8.01(a) shall be the exclusive remedy of Purchaser Indemnitees for monetary
damages for breach of this Agreement.
Section 8.02
Indemnification by the Purchaser. (a) The Purchaser shall be liable for
and shall indemnify the Company and its Affiliates (the “
Company Indemnitees”) against and
hold them harmless from any Loss suffered or incurred by such Company Indemnitee arising out of,
involving or otherwise in respect of:
(i) any breach of any representation or warranty of the Purchaser contained herein, in
any Ancillary Agreement or in any certificate delivered pursuant hereto or thereto; and
(ii) any breach of any covenant of the Purchaser contained herein or in any Ancillary
Agreement.
56
(b) Subject to Section 8.02(c), the Purchaser shall not be required to make any
indemnification payment pursuant to Section 8.02(a)(i) for any inaccuracy in or breach of
any representation or warranty in this Agreement until such time as the total amount of all Losses
that have been suffered or incurred by all of the Company Indemnitees in the aggregate exceeds
$100,000. If the total amount of such Losses exceeds $100,000 in the aggregate, then the Company
Indemnitees shall be entitled to be indemnified against and compensated and reimbursed for all such
Losses.
(c) The limitations set forth in Section 8.02(b) shall not apply: (i) in the case of
intentional misrepresentation or fraud; or (ii) to inaccuracies in or breaches of any of the
Fundamental Representations.
(d) In the absence of actual fraud, Section 8.02(a) shall be the exclusive remedy of
Purchaser Indemnitees for monetary damages for breach of this Agreement.
Section 8.03
Calculation of Losses. The amount of any Loss for which indemnification
is provided under this Article VIII shall be net of any amounts recovered by the Indemnified Party
under any insurance policy with respect to such Loss;
provided,
however, that the
Indemnified Parties shall not have any obligation to seek any such insurance recoveries. In the
event that any Indemnified Party does not seek any insurance recoveries, such Indemnified Party
shall promptly notify the Indemnifying Party of such fact in writing and each Indemnifying Party
shall be subrogated to any right of action that such Indemnified Party may have under such
insurance policies or against such third parties with respect to any matter giving rise to a claim
for indemnification hereunder.
Section 8.04
Survival of Representations, Warranties, Covenants and Agreements;
Termination of Indemnification. The representations, warranties, covenants and agreements
contained herein, in the Ancillary Agreements and the Certificates delivered pursuant to Article VI
and Article VIA hereof, shall survive as follows: (i) the Fundamental Representations shall not
terminate; (ii) the representations and warranties set forth in
Section 3.15 shall survive
until the expiration of the applicable statute of limitations; and (iii) all other representations
and warranties shall survive for 18 months following the First Closing; (iv) the covenants to be
performed at or before the related Closing shall survive for one year following the related
Closing; and (v) all other covenants shall not terminate provided that
Section 5.04 shall
survive for two years following the First Closing or the termination of this Agreement, whichever
first occurs. The rights of each Purchaser Indemnitee under
Section 8.01 (
Indemnification
by the Company) and the rights of each Company Indemnitee under
Section 8.02
(
Indemnification by the Purchaser) after the related Closing shall not be affected by any Knowledge
at or before the execution hereof or at or before the related Closing of any breach of
representation, warranty, covenant or agreement, whether such Knowledge came from the Purchaser or
any other Person, or any waiver of condition set forth in Article VI or Article VIA. The
obligations to indemnify and hold harmless any party (i) pursuant to
Section 8.01(a)(i)
(
Indemnification by the Company) or
Section 8.02(i) (
Indemnification by the Purchaser)
shall terminate when the applicable representation or warranty terminates in accordance with this
Section 8.04, (ii) pursuant to
Section 8.01(a)(ii) (
Indemnification by the Company)
or
Section 8.02(a)(ii) (
Indemnification by the Purchaser) shall terminate when the
applicable covenant terminates in accordance with this
Section 8.04 and (iii) pursuant to
57
Section 8.01(a)(iii)(Indemnification by the Company) shall terminate 18 months following the First Closing; provided, however, that such
obligations to indemnify and hold harmless shall not terminate with respect to any item as to which
the Indemnified Party shall have, before the expiration of the applicable period, made a claim by
delivering a notice of such claim in accordance with Section 8.05 (Procedures) to the
Indemnifying Party. The parties hereto hereby waive and agree not to assert (i) any right under
any statute of limitations or other Applicable Law to make an indemnification claim with respect to
any representation, warranty, covenant or agreement after such representation, warranty, covenant
or agreement terminates in accordance with this Section 8.04 and (ii) any defense under any
statute of limitations to any indemnification obligations that do not terminate, or that terminate
after the expiration of such statute of limitations, in accordance with this Section 8.04.
Section 8.05
Procedures. (a)
Third Party Claims. In order for a Person (the
“
Indemnified Party”) to be entitled to any indemnification provided for under
Section
8.01 (
Indemnification by the Company) or
Section 8.02 (
Indemnification by the
Purchaser) in respect of, arising out of or involving a claim made by any Person not a party hereto
against the Indemnified Party (a “
Third Party Claim”), such Indemnified Party must notify
the indemnifying party (the “
Indemnifying Party”) in writing of such Third Party Claim
(setting forth in reasonable detail the facts giving rise to such Third Party Claim (to the extent
known by the Indemnified Party) and the amount or estimated amount (to the extent reasonably
estimable) of Losses arising out of, involving or otherwise in respect of such Third Party Claim
promptly following receipt by such Indemnified Party of written notice of such Third Party Claim;
provided,
however, that, subject to
Section 8.04 (
Survival of
Representations, Warranties, Covenants and Agreements; Termination of Indemnification), failure to
give such notification promptly shall not affect the indemnification provided hereunder except to
the extent that the Indemnifying Party shall have been actually and materially prejudiced as a
result of such failure. Thereafter, the Indemnified Party shall deliver to the Indemnifying Party,
promptly following the Indemnified Party’s receipt thereof, copies of all notices and documents
(including court papers) received by the Indemnified Party relating to the Third Party Claim.
(b)
Assumption. If a Third Party Claim is made against an Indemnified Party, the
Indemnifying Party shall (unless (i) the Indemnifying Party is also a party to such Third Party
Claim and the Indemnified Party determines in good faith that joint representation would be
inappropriate, or (ii) the Indemnifying Party fails to provide reasonable assurance to the
Indemnified Party of its financial capacity to defend such Third Party Claim and provide
indemnification with respect to such Third Party Claim) be entitled to participate in the defense
thereof and, if it so chooses, to assume the defense thereof with counsel selected by the
Indemnifying Party;
provided,
however, that such counsel is not reasonably objected
to by the Indemnified Party. If the Indemnifying Party assumes the defense of a Third Party Claim
in accordance with this
Section 8.05(b), (i) the Indemnifying Party shall not be liable to
the Indemnified Party for any legal expenses subsequently incurred by the Indemnified Party in
connection with the defense thereof and (ii) it shall be conclusively established for purposes
hereof that such Third Party Claim is within the scope of and subject to indemnification hereunder.
If the Indemnifying Party assumes the defense of a Third Party Claim in accordance with this
Section 8.05(b), the Indemnified Party shall have the right to participate in the defense
thereof and to employ counsel, at its own expense, separate from the counsel employed by the
Indemnifying Party, it being understood that the Indemnifying Party shall control such defense.
58
The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the
Indemnified Party for any period during which the Indemnifying Party has not assumed the
defense thereof. If the Indemnifying Party chooses to defend or prosecute a Third Party Claim, all
the Indemnified Parties shall cooperate in the defense or prosecution thereof. Such cooperation
shall include the retention and (upon the Indemnifying Party’s request) the provision to the
Indemnifying Party of records and information that are reasonably relevant to such Third Party
Claim, and making employees available at such times and places as may be reasonably necessary to
defend against such Third Party Claim for the purpose of providing additional information,
explanation or testimony in connection with such Third Party Claim. If notice is given to an
Indemnifying Party of a Third Party Claim in accordance with this Section 8.05(b) and the
Indemnifying Party does not, within 10 Business Days after such notice is given, give notice to the
Indemnified Party of its election to assume the defense of such Third Party Claim, the Indemnifying
Party will be bound by any determination made in such Third Party Claim or any settlement,
compromise or discharge effected by the Indemnified Party. If the Indemnifying Party assumes the
defense of a Third Party Claim, the Indemnifying Party shall defend such Third Party Claim
vigorously and diligently to final conclusion or settlement of such Third Party Claim;
provided that the Indemnifying Party shall not settle such Third Party Claim without the
consent of the Indemnified Party unless such settlement (i) does not involve any finding or
admission of any violation of Applicable Law or any violation of the rights of any Person and would
not have any adverse effect on any other claims that may be made against the Indemnified Party,
(ii) does not involve any relief other than monetary damages that are paid in full by the
Indemnifying Party and (iii) completely, finally and unconditionally releases the Indemnified Party
in connection with such Third Party Claim and would not otherwise adversely affect the Indemnified
Party. Notwithstanding the foregoing, the Indemnifying Party shall not be entitled to assume the
defense of any Third Party Claim (and shall be liable for the reasonable fees and expenses of
counsel incurred by the Indemnified Party in defending such Third Party Claim) if (i) the Third
Party Claim seeks an injunction or other equitable relief or relief other than monetary damages for
which the Indemnified Party would be entitled to indemnification under this Agreement that the
Indemnified Party reasonably determines, after conferring with its outside counsel, cannot be
separated from any related claim for monetary damages for which it would be entitled to
indemnification under this Agreement or may otherwise adversely affect the Indemnified Party, or
(ii) the Third Party Claim is a criminal, civil or administrative Proceeding or investigation
brought by a Governmental Entity or stock exchange, or relates to such a Proceeding or
investigation, or the underlying facts or circumstances of which would reasonably be expected to
give rise to such a Proceeding or investigation. If such equitable relief or other relief portion
of the Third Party Claim can be so separated from that for monetary damages for which the
Indemnified Party would be entitled to indemnification under this Agreement, the Indemnifying Party
shall be entitled to assume the defense of the portion relating to monetary damages for which the
Indemnified Party would be entitled to indemnification under this Agreement.
(c)
Other Claims. In the event any Indemnified Party has a claim against any
Indemnifying
Party under
Section 8.01 (
Indemnification by the Company) or
Section 8.02 (
Indemnification by the Purchaser) that does not involve a Third Party Claim,
the Indemnified Party shall deliver notice of such claim to the Indemnifying Party (setting forth
in reasonable detail the facts giving rise to such claim (to the extent known by the Indemnified
Party) and the amount or estimated amount (to the extent reasonably estimable) of Losses arising
out of,
59
involving or otherwise in respect of such claim) promptly after becoming aware of such
claim;
provided,
however, that, subject to
Section 8.04 (
Survival of
Representations, Warranties, Covenants and Agreements; Termination of Indemnification), failure to
give such notification promptly shall not affect the indemnification provided hereunder except to
the extent the Indemnifying Party shall have been actually and materially prejudiced as a result of
such failure. If the Indemnifying Party does not notify the Indemnified Party within 10 Business
Days following its receipt of such notice that the Indemnifying Party disputes its liability to the
Indemnified Party under
Section 8.01(a) or
Section 8.02(a), such claim specified by
the Indemnified Party in such notice shall be conclusively deemed a liability of the Indemnifying
Party and the Indemnifying Party shall pay the amount of such liability to the Indemnified Party on
demand or, in the case of any notice in which the amount of the claim (or any portion thereof) is
estimated, on such later date when the amount of such claim (or such portion thereof) becomes
finally determined.
(d)
Mitigation. The Purchaser and the Company shall cooperate with each other with
respect to resolving any claim or liability with respect to which one party is obligated to
indemnify any other party hereunder, including by making commercially reasonable efforts to
mitigate or resolve any such claim or liability;
provided,
however, that such party
shall not be required to make such efforts if they would be detrimental in any material respect to
such party. In the event that the Purchaser or the Company fails to make such commercially
reasonable efforts to mitigate or resolve any claim or liability, then (unless the proviso to the
foregoing sentence shall be applicable) notwithstanding anything else to the contrary contained
herein, the other party shall not be required to indemnify any Person for any Loss that would
reasonably be expected to have been avoided if the Purchaser or the Company, as the case may be,
had made such efforts. The reasonable costs incurred in connection with such mitigation shall be
treated as Losses for purposes of this Article VIII.
Section 8.06
Purchase Price Adjustment. Any indemnity payment under this Article VIII
shall be treated as an adjustment to the Common Stock Purchase Price.
Section 9.01
Assignment. This Agreement and the rights and obligations hereunder
shall not be assignable or transferable by any party (including by operation of law in connection
with a merger or consolidation of such party) without the prior written consent of the other
parties hereto. Notwithstanding the foregoing, the Purchaser may assign its rights hereunder to an
Affiliate of the Purchaser without the prior written consent of any other party;
provided,
however, that no assignment shall limit or affect the assignor’s obligations hereunder.
Any attempted assignment in violation of this
Section 9.01 shall be void. Upon the
Purchaser’s sale, disposition or other transfer, in whole or in part, of the Shares, the Company
hereby agrees that the Purchaser may assign, in whole or in part, any of the Purchaser’s
indemnification rights related thereto set forth herein, without the consent of the Company.
Section 9.02
No Third-Party Beneficiaries. Except as provided in
Article VIII
(
Indemnification), this Agreement is for the sole benefit of the parties hereto and their
permitted assigns and nothing herein expressed or implied shall give or be construed to give to any
Person,
60
other than the parties hereto and such assigns, any legal or equitable rights hereunder.
This Agreement does not constitute an amendment of any Benefit Plan and does not impose any
obligations on the Purchaser under any Benefit Plan.
Section 9.03
Notices. All notices or other communications required or permitted to be
given hereunder shall be in writing and shall be delivered by hand or sent by facsimile or sent,
postage prepaid, by registered, certified or express mail or overnight courier service and shall be
deemed given when so delivered by hand or facsimile, or if mailed, three days after mailing (one
Business Day in the case of express mail or overnight courier service), as follows:
|
(i) |
|
if to the Purchaser, |
|
|
|
|
LDK Solar Co., Ltd.
Xx-Xxxx Xxxxxxxxxx Xxxx
Xxxxx Xxxx
Xxxxxxx Xxxxxxxx 000000
People’s Republic of China |
|
|
|
|
Attention: Xx. Xxxxxxxx Xxxx |
|
|
|
Sidley Austin
Level 39
Two International Finance Centre
0 Xxxxxxx Xxxxxx
Xxxxxxx, Xxxx Xxxx |
|
|
|
|
Attention: Xxxxxxx Xx; |
|
|
|
|
and |
|
(ii) |
|
if to the Company, |
|
|
|
|
Solar Power, Inc.
0000 Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000 |
|
|
|
|
Attention: Xxxxxxx X. Xxxxxxx,
Chief Executive Officer |
|
|
|
|
with a copy to: |
|
|
|
|
Xxxxxxxxx Genshlea Chediak Law Corporation
000 Xxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxxxx 00000 |
|
|
|
|
Attention: Xxxxx Xxxxx |
61
Section 9.04
Interpretation; Exhibits and Schedules; Certain Definitions. (a) The
headings contained herein and in any Exhibit or Schedule hereto, the table of contents hereto and
the index of defined terms are for reference purposes only and shall not affect in any way the
meaning or interpretation hereof. Any matter set forth in any Schedule or in any section or
subsection of any Schedule shall be deemed set forth only for purposes of such Schedules or such
section or subsection, and not for purposes of any other Schedule, section or subsection. All
Exhibits and Schedules annexed hereto or referred to herein are hereby incorporated in and made a
part hereof as if set forth in full herein. Any capitalized terms used in any Schedule or Exhibit,
but not otherwise defined therein, shall have the meaning as defined herein. When a reference is
made herein to a Section, Exhibit or Schedule, such reference shall be to a Section of, or an
Exhibit or Schedule to, this Agreement unless otherwise indicated. For all purposes of this
Agreement, unless otherwise specified herein, (i) “or” shall be construed in the inclusive sense of
“and/or”; (ii) words (including capitalized terms defined herein) in the singular shall be
construed to include the plural and vice versa and words (including capitalized terms defined
herein) of one gender shall be construed to include the other gender as the context requires; (iii)
the terms “hereof” and “herein” and words of similar import shall be construed to refer to this
Agreement as a whole (including all the Exhibits and Schedules) and not to any particular provision
of this Agreement; and (iv) all references herein to “$” or dollars shall refer to United States
dollars. Each representation, warranty, covenant and agreement contained herein shall have
independent significance. Accordingly, if any representation, warranty, covenant or agreement
contained herein is breached, the fact that there exists another representation, warranty, covenant
or agreement relating to the same subject matter (regardless of the relative levels of specificity)
shall not detract from or mitigate the breach of the first representation, warranty, covenant or
agreement.
(b) For all purposes hereof:
“Affiliate” of any Person means another Person that directly or indirectly, through
one or more intermediaries, controls, is controlled by, or is under common control with, such first
Person. For purposes of this definition, the term “control” (including its correlative meanings
“controlled by” and “under common control with”) means possession, directly or indirectly, of power
to direct or cause the direction of management or policies (whether through ownership of securities
or partnership or other ownership interests, by contract or otherwise).
“Affiliated Group” means any “affiliated group” (as defined in Section 1504(a) of the
Code without regard to the limitations contained in Section 1504(b) of the Code) that or any other
group unity or association of corporations that files or has filed Tax Returns on an affiliated,
combined, consolidated or unitary basis.
“Ancillary Agreements” means the Certificate of Determination, Xxxx of Sale and
Liability Assumption Agreement and the other certificates delivered at Closing pursuant to ARTICLE
VI.
“
Business Day” means any day, other than a Saturday or a Sunday, that is neither a
legal holiday nor a day on which banking institutions are generally authorized or required by law
or regulation to close in The City of
New York,
New York and in Hong Kong.
62
“Charter Amendment” means an amendment to the Certificate of Incorporation of the
Company to increase the number of authorized shares of Common Stock to permit the conversion of all
Purchased Preferred Shares into common shares in accordance with the terms thereof.
“Conversion Shares” means the shares of Common Stock into which the Purchased
Preferred Shares are convertible.
“Code” means the Internal Revenue Code of 1986, as amended.
“Company Material Adverse Effect” means a material adverse effect (a) on the business,
assets, liabilities, condition (financial or otherwise), or results of operations of the Company
and the Company Subsidiaries, taken as a whole, or (b) on the ability of the Company to timely
consummate the Transactions and to perform its obligations under this Agreement; provided,
however, that the term “Company Material Adverse Effect” shall not include
effects, either alone or in combination, to the extent they result from (i) changes in general
economic conditions, (ii) changes in or events affecting the industry of the Company generally,
(iii) financial or securities market fluctuations or conditions, (iv) seasonal reductions in
revenues and/or earnings of the Company in the ordinary course of business, (v) any attack,
outbreak, hostility, terrorist activity, act or declaration of war or act of public enemies, (vi)
changes in Applicable Law or in the interpretation of any Applicable Law by any Governmental
Entity, or changes in regulatory conditions in the jurisdictions in which the Company or any
Company Subsidiary operates, (iv) changes in GAAP, (v) announcement or pendency hereof or of the
Transactions or (vi) actions taken or not taken at the request of the Purchaser, but any effects
resulting from the matters referred to in this proviso shall be excluded only to the extent such
matters occur after the date hereof, and any effects resulting from the matters referred in clauses
(i), (ii), (iii), or (iv) shall be excluded only to the extent such matters do not
disproportionately impact the Company or the Company Subsidiaries as compared to other companies
operating in the same industry. Any determination as to whether any circumstance, change or effect
has a Company Material Adverse Effect shall be made only after taking into account all effective
insurance coverages, third party indemnifications and Tax benefits received, or determined and
receivable on or prior to the related Closing Date with respect to such circumstance, change or
effect.
“Company Subsidiary” means each Subsidiary of the Company.
“Documents” means all books, records, files, invoices, inventory records, product
specifications, advertising materials, employment records, customer lists, cost and pricing
information, supplier lists, business plans, catalogs, customer literature, quality control records
and manuals, research and development files, records and laboratory books, plans, blueprints,
specifications, studies, surveys, maps, drawings, analysis, reports, training materials, ownership
and operating manuals, credit records of customers, correspondence with Governmental Entities and
modeling, testing and monitoring data and reporting, notifications and plans relating to
environmental health and safety matters (including, in each case, all data and other information
stored on discs, tapes or other media).
63
“Environmental Laws” means any and all Applicable Laws, Judgments and Permits issued,
promulgated or entered into by or with any Governmental Entity, relating to the environment,
preservation or reclamation of natural resources, or to the protection of human health as it
relates to the environment, including Applicable Laws, Judgments and Permits relating to noise
levels, or to the management, Release or threatened Release of Hazardous Materials.
“Family” means, with respect to an individual, (i) the individual’s spouse and any
former spouses, (ii) any other individual who is related to the individual or the individual’s
spouse (or any former spouse) within the second degree and (iii) any other individual who resides
with such individual.
“Fundamental Representations” means the representations and warranties of the Company
set forth in Sections 3.01 (Organization, Standing and Power; Books and Records), 3.02 (Capital
Stock of the Company and the Company Subsidiaries), 3.03 (Authority; Execution and Delivery;
Enforceability) and 3.27 (Disclosure) (as it relates to the foregoing sections) and of the
Purchaser set forth in Sections 4.01 (Organization, Standing and Power) and 4.02 (Authority;
Execution and Delivery; Enforceability).
“Hazardous Materials” means (1) any and all radioactive materials or wastes, petroleum
(including crude oil or any fraction thereof) or petroleum distillates, asbestos or asbestos
containing materials and urea formaldehyde foam and (2) any other wastes, materials, chemicals or
substances regulated pursuant to any Environmental Law.
“including” means “including, without limiting the generality of the foregoing.”
“Indebtedness” means, with respect to a Person, without duplication, (a) all
indebtedness for borrowed money, (b) all indebtedness for the deferred purchase price of property
or services (other than personal property, including inventory and services purchased, trade
payables, other expense accruals and deferred compensation items arising in the Ordinary Course of
Business), (c) all obligations evidenced by notes, bonds, debentures or other similar instruments
(other than performance, surety and appeal bonds arising in the Ordinary Course of Business in
respect of which such Person’s liability remains contingent), (d) all indebtedness created or
arising under any conditional sale or other title retention agreement with respect to property
acquired (even though the rights and remedies of the seller or lender under such agreement in the
event of default are limited to repossession or sale of such property), (e) all obligations under
leases that have been or should be, in accordance with GAAP, recorded as capital leases, (d) all
reimbursement, payment or similar obligations, contingent or otherwise, under acceptance, letter of
credit or similar facilities and (e) any liability of others described in clauses (a) through (d)
above that the Person has guaranteed or that is otherwise its legal liability, and including in
clauses (a) through (e) above any accrued and unpaid interest or penalties thereon.
“Intellectual Property” means any patent (including any reissue, division,
continuation or extension thereof), patent application, patent right, trademark, trademark
registration, trademark application, servicemark, trade name, business name, brand name,
64
copyright, copyright registration, design or design registration, or any right to any of the
foregoing.
“Knowledge” when used with respect to (i) the Company, means the actual knowledge of
any fact, circumstance or condition of those officers of the Company set forth on Exhibit C; and
(ii) the Purchaser, means the actual knowledge of any fact, circumstance or condition of those
officers of the Purchaser set forth on Exhibit C, and, in each case, the knowledge that
such officers would have had if such officers had conducted a reasonable inquiry.
“Lien” means any mortgage, lien, security interest, pledge, reservation, equitable
interest, charge, easement, lease, sublease, conditional sale or other title retention agreement,
right of first refusal, hypothecation, covenant, servitude, right of way, variance, option,
warrant, claim, community property interest, restriction (including any restriction on use, voting,
transfer, alienation, receipt of income or exercise of any other attribute of ownership) or
encumbrance of any kind.
“Lock-up Agreements” means (a) the agreement entered into as of the date hereof, by
and among Xxxxxxx X. Xxxxxxx, the Purchaser and the Company restricting the transfer of Xx.
Xxxxxxx’x securities of the Company for a period of one year, on and subject to the terms and
conditions therein, substantially in the form of Exhibit E-1, and (b) the various
agreements individually entered into as of the date hereof by and among each of the other
Management Shareholders, the Purchaser and the Company restricting the transfer of such Management
Shareholder’s securities of the Company for a period of 90 days, on and subject to the terms and
conditions therein, substantially in the form of Exhibit E-2.
“Management Shareholders” as listed in Exhibit F.
“Material Interest” has the meaning set forth in the definition of “Related Person.”
“Ordinary Course of Business” means, with respect to an action taken by any Person, an
action that (i) is consistent with the past practices of such Person and is taken in the ordinary
course of the normal day-to-day operations of the business of such Person; (ii) is not required to
be authorized by the board of directors of such Person (or by any Person or group of Persons
exercising similar authority) and is not required to be specifically authorized by the parent
company (if any) or the holders of the capital stock or other equity interests of such Person; and
(iii) is similar in nature and magnitude to actions customarily taken, without any authorization by
the board of directors (or by any Person or group of Persons exercising similar authority), in the
ordinary course of the normal day-to-day operations of other Persons that are in the same line of
business as such Person.
“Permitted Lien” means (i) such Liens as are set forth in Schedule 3.07 or
3.08(a), (ii) mechanics’, carriers’, workmen’s, repairmen’s or other like Liens arising or
incurred in the Ordinary Course of Business, Liens arising under original purchase price
conditional sales contracts and equipment leases with third parties entered into in the Ordinary
Course of Business and liens for Taxes that are not due and payable or that may thereafter be paid
without penalty, or that are being contested in good faith by appropriate proceedings for which
reserves have been
65
established to the extent required by GAAP, (iii) Liens that secure obligations reflected on
the Interim Balance Sheet or Liens the existence of which is referred to in the notes to the
Interim Balance Sheet, (iv) easements, covenants, rights-of-way and other similar restrictions of
record, (v) any conditions that may be shown by a current, accurate survey or physical inspection
of any Leased Property made before the First Closing, (vi) (A) zoning, building and other similar
restrictions, (B) Liens that have been placed by any developer, landlord or other third party on
property over which the Company or any Company Subsidiary has easement rights or on any Leased
Property and subordination or similar agreements relating thereto and (C) unrecorded easements,
covenants, rights-of-way and other similar restrictions and (vii) imperfections of title or
encumbrances that, individually or in the aggregate, do not impair materially, and would not
reasonably be expected to impair materially, the continued use and operation of the assets to which
they relate in the conduct of the business of the Company and the Company Subsidiaries as presently
conducted.
“Person” means any individual, firm, corporation, partnership, limited liability
company, trust, joint venture, Governmental Entity or other entity.
“Proceeding” means any suit, action, proceeding, arbitration, audit, hearing, or
investigation (in each case, whether civil, criminal, administrative, investigative, or informal)
commenced, brought, conducted or heard by or before, or otherwise involving, any Governmental
Entity.
“Purchaser Material Adverse Effect” means a material adverse effect on the ability of
the Purchaser to timely consummate the Transactions and to perform its obligations under this
Agreement and the Ancillary Agreements.
“Related Person” means (i) with respect to any Person that is not an individual, (A)
any Affiliate of such Person, (B) any Person that serves as a director, officer, partner, executor,
or trustee of such Person (or in any other similar capacity), (C) any Person with respect to which
such Person serves as a general partner or trustee (or in any other similar capacity), (D) any
Person that has direct or indirect beneficial ownership (as defined in Rule 13d-3 of the Exchange
Act) of voting securities or other voting interests representing at least 10% of the outstanding
voting power or equity securities or other equity interests representing at least 10% of the
outstanding equity interests (a “Material Interest”) in such Person and (E) any Person in
which such Person holds a Material Interest and (ii) with respect to any Person that is an
individual (A) each other member of such individual’s Family, (B) any Affiliate of such Person or
one or more members of such Person’s Family, (C) any Person in which such Person or members of such
Person’s Family hold (individually or in the aggregate) a Material Interest and (D) any Person with
respect to which such Person or one or more members of such Person’s Family serves as a director,
officer, partner, executor, or trustee (or in any other similar capacity).
“Release” means any spill, emission, leaking, pumping, injection, deposit, disposal,
discharge, dispersal, leaching, dumping, pouring, emanation or migration of any Hazardous Material
in, into, onto or through the environment (including ambient air, surface water, ground water,
soils, land surface or subsurface strata) or within any building, structure, facility or fixture.
66
“Representative” means, with respect to any Person, any director, officer, partner,
member, stockholder, Affiliate, employee, agent, consultant, advisor or other representative of
such Person, including legal counsel, accountants and financial advisors.
“Shares” shall mean the Purchased Shares and the Conversion Shares.
“Shareholder Approval” means the requisite approval under the California Corporations
Code of the Charter Amendment by the holders of capital stock of the Company entitled to vote
thereon.
“Shareholder Meeting” shall means the annual or special meeting of the holders of
shares of capital stock of the Company the to be called by the Company for the purpose of obtaining
the Shareholder Approval.
“Special Committee” means the committee of the Company’s board of directors, the
members of which are not affiliated with the Purchaser and are not members of the Company’s
management, formed for the purpose of, among other things, evaluating, and making a recommendation
to the Company’s full board of directors with respect to the Transactions; provided that if such
committee no longer exists, any determination required to be made under this Agreement by such
committee, and any judgment required to be exercised by such committee shall be made or exercised
by a majority of the then disinterested members of the Company’s board of directors.
“Subsidiary” of any Person means another Person, an amount of the voting securities,
other voting ownership or voting partnership interests of which is sufficient to elect at least a
majority of its board of directors or other governing body (or, if there are no such voting
interests, 50% or more of the equity interests of which) is owned directly or indirectly by such
first Person or by another Subsidiary of such first Person.
“Tax” or “Taxes” means (i) all Federal, state, county, local, municipal,
foreign and other taxes, assessments, duties or similar charges of any kind whatsoever, including
all franchise, income, sales, use, ad valorem, receipts, value added, profits, license,
withholding, payroll, employment, excise, premium, property, customs, net worth, capital gains,
transfer, stamp, documentary, social security, environmental, alternative minimum, occupation,
recapture and other taxes, and including all interest, penalties and additions imposed with respect
to such amounts, (ii) in the case of the Company or any Company Subsidiary, liability for the
payment of any amount of the type described in clause (i) as a result of being or having been on or
before the Second Closing Date a member of an Affiliated Group, and (iii) liability of the Company
or any Company Subsidiary for the payment of any amount as a result of being party to any Tax
Sharing Agreement or with respect to the payment of any amount imposed on any person of the type
described in (i) or (ii) as a result of any existing express or implied agreement or arrangement
(including, but not limited to, an indemnification agreement or arrangement).
“Taxing Authority” means any domestic, foreign, federal, national, state, county or
municipal or other local government, any subdivision, agency, commission or authority thereof, or
any quasi-governmental body exercising tax regulatory authority.
67
“Tax Return” or “Tax Returns” means all returns, declarations of estimated Tax
payments, reports, estimates, information returns and statements, including any related or
supporting information with respect to any of the foregoing, filed or to be filed with any Taxing
Authority in connection with the determination, assessment, collection or administration of any
Taxes.
“Technology” means all trade secrets, inventions, know-how, formulae, processes,
procedures, research records, records of inventions, test information, market surveys and marketing
know-how of the Company and the Company Subsidiaries.
“Trading Market” means the OTC Bulletin Board or any national securities exchange,
market or trading or quotation facility on which the Common Stock is then listed or quoted.
Section 9.05
Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement, and shall become
effective when one or more such counterparts have been signed by each of the parties and delivered
to the other parties.
Section 9.06
Entire Agreement. This Agreement and the Ancillary Agreements, along
with the Schedules and Exhibits hereto and thereto, contain the entire agreement and understanding
among the parties hereto with respect to the subject matter hereof and supersede all prior
agreements and understandings relating to such subject matter.
Section 9.07
Severability. If any provision hereof (or any portion thereof) or the
application of any such provision (or any portion thereof) to any Person or circumstance shall be
held invalid, illegal or unenforceable in any respect by a court of competent jurisdiction, such
invalidity, illegality or unenforceability shall not affect any other provision hereof (or the
remaining portion thereof) or the application of such provision to any other Persons or
circumstances.
Section 9.08
Enforcement. In the event of any breach or threatened breach by any
party hereto of any covenant or agreement of such party contained herein, the other parties hereto
shall be entitled, in addition to any other remedy that may be available at law or in equity, to
seek: (a) a decree or order of specific performance to enforce the observance and performance of
such covenant or agreement; and (b) an injunction restraining such breach or threatened breach.
Section 9.09
Consent to Jurisdiction. Each party irrevocably submits to the
jurisdiction of the Supreme Court of the State of
New York,
New York County and the United States
District Court for the Southern District of
New York (and the appropriate appellate courts), for
the purposes of any suit, action or other proceeding arising out of this Agreement, any Ancillary
Agreement, any certificate delivered pursuant hereto or thereto or any Transaction. Each party
agrees to commence any such action, suit or proceeding either in the United States District Court
for the Southern District of
New York or if such suit, action or other proceeding may not be
brought in such court for jurisdictional reasons, in the Supreme Court of the State of
New York,
New York County. Notwithstanding the foregoing, any party hereto may commence an action, suit or
proceeding with any Governmental Entity anywhere in the world for the sole
68
purpose of seeking recognition and enforcement of a judgment of any court referred to in the
first sentence of this
Section 9.9. Each party further agrees that service of any process,
summons, notice or document by U.S. registered mail to such party’s respective address set forth
above shall be effective service of process for any action, suit or proceeding in
New York with
respect to any matters to which it has submitted to jurisdiction in this
Section 9.9. Each
party irrevocably and unconditionally waives any objection to the laying of venue of any action,
suit or proceeding arising out of this Agreement, any Ancillary Agreement or the Transactions in
(i) the Supreme Court of the State of
New York, New York County, or (ii) the United States District
Court for the Southern District of New York, and hereby further irrevocably and unconditionally
waives and agrees not to plead or claim in any such court that any such action, suit or proceeding
brought in any such court has been brought in an inconvenient forum.
Section 9.10
GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE
PERFORMED ENTIRELY WITHIN SUCH STATE, WITHOUT REGARD TO THE CONFLICTS OF LAW PRINCIPLES OF SUCH
STATE.
Section 9.11
WAIVER OF JURY TRIAL. EACH PARTY HEREBY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LITIGATION DIRECTLY OR
INDIRECTLY ARISING OUT OF, INVOLVING OR OTHERWISE IN RESPECT OF THIS AGREEMENT, ANY ANCILLARY
AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY OR THEREBY. EACH PARTY (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT
SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND
(B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS
AGREEMENT AND THE ANCILLARY AGREEMENTS, AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS
AND CERTIFICATIONS IN THIS SECTION 9.11.
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SOLAR POWER, INC.,
by |
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Xxxxxxx X. Xxxxxxx |
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Name: |
Xxxxxxx X. Xxxxxxx |
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Title: |
Chairman & CEO |
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LDK SOLAR CO., LTD.
by
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/s/
Xxxxxxxx Xxxx |
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Name: |
Xxxxxxxx Xxxx |
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Title: |
CEO |
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70
EXHIBIT A
Certificate of Determination
Exh. A-9.11-1
CERTIFICATE OF DETERMINATION
OF RIGHTS, PREFERENCES, PRIVILEGES AND RESTRICTIONS OF
SERIES A PREFERRED STOCK OF
SOLAR POWER, INC.
Xxxxxxx X. Xxxxxxx and Xxxxxx X. Xxxxxx certify that:
1. They are the duly elected and acting Chief Executive Officer and Chief Financial Officer,
respectively, of Solar Power, Inc., a California corporation (the “Company”).
2. The Company has authorized the issuance of twenty million (20,000,000) shares of preferred
stock. 20,000,000 shares have been designated Series A Preferred Stock, none of which have been
previously issued.
3. Pursuant to authority given to it by the Company’s Articles of Incorporation, the Board of
Directors of the Company (the “Board”) has duly adopted the following:
RESOLVED, that the Board of Directors of the Company designates the Series A Preferred Stock
and the number of shares constituting each series, and fixes the rights, preferences, privileges
and restrictions relating to each series in addition to any set forth in the Articles of
Incorporation as follows:
A. Designation and Amount. The Company shall have a series of preferred stock which
shall be designated the “Series A Preferred Stock” (“Series A Preferred”) and the number of shares
initially constituting such series shall be twenty million (20,000,000).
B. Rights, Preferences, Privileges and Restrictions. Series A Preferred shall have
the respective rights, preferences, privileges and restrictions as follows:
Section 1. Dividend Rights.
1.1 Series A Dividends. Subject to any senior rights of preferred shares then
outstanding to receive annual dividends, the holders of Series A Preferred shall be entitled to
receive annual dividends out of any funds legally available therefor, prior to and in preference to
any declaration or payment of any dividend (payable other than in common stock of the Company
(“Common Stock”) or other securities and rights convertible into or entitling the holder thereof to
receive, directly or indirectly, additional shares of Common Stock) on the Common Stock, in an
amount equal to four cents ($0.04) per share per annum (as adjusted for any stock splits, stock
dividends, recapitalizations or the like), and any other amounts required under other provisions of
this Certificate of Determination of Rights, Preferences, Privileges and Restrictions
(“Certificate”) and no more (“Dividends”). The Dividends shall be payable as and when declared by
the Board.
1.2 Right to Share in Dividends Declared for Holders of Common Stock. The holders of
Series A Preferred shall be entitled to share with the holders of shares of Common Stock in any
cash or non-cash dividend or distribution, other than dividends payable in shares of Common Stock,
on an as-converted basis, declared for holders of the Common Stock, payable when and if declared by
the Board. Subject to the prior payment of any other senior dividend rights, any dividend shall be
paid pro rata among the holders of the Common Stock and the holders of the Series A Preferred and
parity stock on an as-converted basis. For the avoidance of doubt “on an
Exh. A-9.11-2
as-converted basis” means dividends shall be paid on each share of Series A Preferred Stock as if
such share of Preferred Stock and all other shares of Series A Preferred Stock had been converted
to Common Stock on the basis set forth in Section 4 below (irrespective of whether any
pre-condition to such conversion had been met).
1.3 Limitation. The holders of Series A Preferred shall not be entitled to receive
any dividends or other distributions except as provided in this Certificate and in accordance with
applicable California law. The right to such dividends on Series A Preferred shall not be
cumulative, and no right shall accrue to the holders of such stock by reason of the Board’s failure
to declare dividends thereon for any given period as herein provided.
1.4 No Fractional Shares. In connection with the payments to holders of Series A
Preferred of dividends in shares of capital stock, no fractions of shares of capital stock shall be
issued, but in lieu thereof the Company shall round up the number of shares of capital stock to
which each holder of shares of Series A Preferred Stock would be entitled, to the nearest whole
share.
1.5 Record Holders. The Company shall pay dividends required hereunder to the holders
of record of Series A Preferred as their names appear on the share register of the Company on the
corresponding record date designated by the Board with respect to such dividend. The record date
for purposes of determining the holders entitled to any dividend shall not be more than fifty (50)
days prior to the payment date fixed by the Board.
Section 2. Voting Rights.
2.1. Voting Rights. Except as otherwise expressly provided herein or as required by
law, each share of Series A Preferred shall entitle the holder thereof to such number of votes per
share equal to the number of shares of Common Stock into which such share of Series A Preferred
Stock would convert pursuant to Section 4 below (irrespective of whether any pre-condition
to such conversion has been met). Except as otherwise required by the provisions of the California
Corporations Code, the holders of shares of Series A Preferred, and the holders of Common Stock
shall at all times vote as one class, together with the holders of any other class of stock of the
Company accorded such general class voting right; provided, that the holders of shares of Series A
Preferred shall be entitled to approve by a majority vote, as a separate class, the matters
specified in Section 2.2.
2.2. Right to Vote on Specified Matters. The vote or consent of the holders of a
majority of the outstanding Series A Preferred shall be required for: (i) matters that by law
require the approval of the outstanding shares of the respective class; and (ii) any amendment or
change of the rights, preferences, privileges or powers of, or the restrictions provided for the
benefit of, the Series A Preferred.
Section 3. Liquidation, Dissolution or Bankruptcy.
If the Company: (i) adopts a plan of liquidation or of dissolution; (ii) commences a
voluntary proceeding under the federal bankruptcy law or any other applicable state or federal
bankruptcy, insolvency or similar law; (iii) consents to the entry of an order for relief in any
involuntary case under such law; (iv) consents to the appointment of a receiver, liquidator,
assignee, custodian, trustee or sequestrator (or similar official) of the Company or of any
substantial part of its property; (v) makes an assignment for the benefit of its creditors; or (vi)
admits in writing its inability to pay its debts generally as they become due; and on account of
any such event the Company shall liquidate, dissolve or wind up, then, and in that event, the
holders of Series A Preferred shall be entitled to receive, prior and in preference to any
distribution of any of the assets of the Company to the holders of the Common Stock or to the
Exh. A-9.11-3
holders of any other junior series of preferred stock, by reason of their ownership thereof
and subject to the rights of any other class or series of Company stock subsequently issued that
ranks senior to the Series A Preferred with respect to liquidation rights (“Senior Stock”), an
amount per share in cash or equivalent value in securities or other consideration equal to any
declared but unpaid Dividends as provided in Section 1.1 above (“Series A Preference
Amount”) ratably with any class or series ranking on a parity with the Series A Preferred (“Series
A Parity Stock”) in proportion to the respective preference amounts each such holder of Series A
Parity Stock would otherwise be entitled to receive. If the amount of such distribution after
payment to any Senior Stock is insufficient to permit full payment of the Series A Preference
Amount to the holders of the Series A Preferred, then such distribution shall be distributed
ratably to the holders of the Series A Preferred and Series A Parity Stock in proportion to the
respective preference amount each such holder would otherwise be entitled to receive. Any
remaining funds and assets of the Company legally available for distribution to shareholders shall
be distributed pro rata among the holders of Series A Preferred on an as-converted basis and the
Common Stock. For the avoidance of doubt, “on an as-converted basis” means that each share of
Series A Preferred Stock shall entitle the holder thereof to receive the amount of the remaining
funds and assets of the Company that such holder would have been entitled to receive had such
shares of Series A Preferred Stock and all other shares of Series A Preferred Stock been converted
to Common Stock on the basis set forth in Section 4 below (irrespective of whether any
pre-condition to such conversion had been met).
Section 4. Automatic Conversion of Series A Preferred.
4.1. Automatic Conversion. Each share of Series A Preferred Stock shall automatically
be converted into a number of shares of Common Stock equal to the Original Issue Price divided by
the Conversion Price immediately upon the Company having at least a number of authorized shares of
Common Stock available to be issued by the Company in the amount equal to the product of (i) the
number of Series A Preferred outstanding and (ii) the number obtained by dividing the Original
Issue price by the Conversion Price. The “Original Issue Price” shall mean $1.11138 per share for
each share of Series A Preferred (subject to adjustment from time to time for stock dividends,
combinations, splits, reorganizations, recapitalizations, reclassifications or other similar
events). The initial “Conversion Price” per share of Series A Preferred shall be $0.25000. Such
initial Conversion Price shall be subject to adjustment as set forth in Section 4.2 below.
4.2. Adjustment to Series A Preferred Conversion Price. The number of shares of
Common Stock into which each share of Series A Preferred is convertible shall be subject to
adjustment from time to time as follows:
(a) In case the Company shall at any time or from time to time declare a dividend, or make a
distribution, on the outstanding shares of Common Stock in shares of Common Stock or subdivide or
reclassify the outstanding shares of Common Stock into a greater number of shares or combine or
reclassify the outstanding shares of Common Stock into a smaller number of shares of Common Stock,
then, and in each case,
(1) the number of shares of Common Stock into which each share of Series A Preferred is
convertible shall be adjusted so that the holder of each share thereof shall be entitled to
receive, upon the conversion thereof, the number of shares of Common Stock that the holder of a
share of Series A Preferred would have been entitled to receive after the occurrence of any of the
events described above had such share been converted immediately prior to the happening of such
event or the record date therefor, whichever is earlier; and
(2) an adjustment made pursuant to this subsection 4.2(a) shall become effective (i) in the
case of any such dividend or distribution, immediately after the close of
Exh. A-9.11-4
business on the record date for the determination of holders of shares of Common Stock entitled to
receive such dividend or distribution, or (ii) in the case of any such subdivision,
reclassification or combination, at the close of business on the day upon which such corporate
action becomes effective.
(b) In case the Company shall be a party to (i) a merger (in which the previously outstanding
Common Stock shall be changed into or, pursuant to the operation of law or the terms of the
transaction to which the Company is a party, exchanged for different securities of the Company or
common stock or other securities of another corporation or interests in a non-corporate entity or
other property (including cash) or any combination of any of the foregoing), (ii) a consolidation
(in which the holders of Common Stock will receive capital stock in the consolidated company with
different rights, preferences and privileges than the Common Stock), or (iii) a sale of all or
substantially all of the Company’s assets or a recapitalization of the Common Stock; then, as a
condition of the consummation of such transaction, lawful and adequate provision shall be made so
that each holder of shares of Series A Preferred shall be entitled, upon consummation of such
transaction, to an amount per share equal to (A) the aggregate amount of stock, securities, cash
and/or any other property (payable in kind), as the case may be, into which or which each share of
Common Stock is changed or exchanged in the transaction, multiplied by (B) the number of shares of
Common Stock into which a share of Series A Preferred is convertible immediately prior to the
consummation of such transaction.
4.3. Right to Dividends. Upon conversion of any shares of Series A Preferred, each
holder thereof shall be entitled to receive any declared but unpaid dividends in respect of the
shares so converted.
4.4. No Fractional Shares. In connection with the conversion of any shares of Series
A Preferred, no fractions of shares of Common Stock shall be issued, but in lieu thereof the
Company at its sole election and discretion shall either round up to the nearest whole share or
make a cash payment equal to the then fair market value of such fractional share as determined in
good faith by the Board.
4.5. Notice Method. Any notice required or permitted by this Section 4 to be
given to a holder of Series A Preferred or to the Company shall be in writing and be deemed given
upon the earlier of (i) personal delivery to such holder, (ii) actual receipt or on the tenth day
after the same has been deposited by first class mail in the United States mail, postage prepaid,
and addressed to the holder at the address appearing on the books of the Company.
4.6. No Avoidance of Terms. The Company shall not amend its Articles of
Incorporation or participate in any reorganization, transfer of assets, consolidation, merger,
dissolution, issue or sale of securities or any other voluntary action, which has the effect of or
for the purpose of, avoiding or seeking to avoid the observance or performance of any of the terms
to be observed or performed hereunder by the Company. The Company shall at all times in good faith
take all such action as may be necessary or appropriate in order to protect the conversion rights
of the holders of Series A Preferred against improper dilution or other impairment.
Section 5. Reports as to Adjustments.
Whenever the number of shares of Common Stock into which each share of Series A Preferred is
convertible is adjusted as provided in Section 4.2 above, the Company shall promptly
provide notice to the holders of record of shares of Series A Preferred Stock, in accordance with
Section 4.5, (i) stating that the number of shares of Common Stock into which the shares of
Series A Preferred are convertible has been adjusted, (ii) setting forth the new number of shares
of Common Stock (or describing the new stock, securities, cash or other property) into which each
share of Series A Preferred of the holder is convertible, as a result of
Exh. A-9.11-5
such adjustment, and (iii) setting forth a brief statement of the facts requiring such adjustment
and the computation thereof, and when such adjustment became effective.
Section 6. Reacquired Shares.
Any shares of Series A Preferred which are converted, purchased or otherwise acquired by the
Company in any manner whatsoever shall be retired and canceled promptly after the acquisition
thereof, and, if necessary to provide for the lawful purchase of such shares, the capital
represented by such shares shall be reduced in accordance with the California Corporations Code.
All such shares shall upon their cancellation become authorized but unissued shares of preferred
stock of the Company and may be reissued as part of another series of preferred stock of the
Company.
Section 7. Notices of Record Date.
In the event of (i) the declaration by the Company of a record date for the holders of any
class or series of securities for the purpose of determining the holders thereof who are entitled
to receive any dividend or other distribution or (ii) any reorganization, reclassification or
recapitalization of the capital stock of the Company or any voluntary or involuntary dissolution,
liquidation or winding up of the Company, the Company shall send, in accordance with Section
4.5, at least thirty (30) days prior to the record date specified therein, a notice specifying
(A) the date on which any such record is to be taken for the purpose of such dividend or other
distribution and a description of such dividend or distribution, (B) the date on which any such
reorganization, recapitalization, reclassification, dissolution, liquidation or winding up is
expected to become effective, and (C) the time, if any is to be fixed, as to when the holders of
record of Series A Preferred shall be entitled to exchange their Series A Preferred for securities
or other property deliverable upon such reorganization, recapitalization, reclassification,
dissolution, liquidation or winding up.
Section 8. Captions.
All section captions are for reference only and shall not be considered in construing the
rights, preferences or privileges of the Series A Preferred.
Section 9. Severability.
If any provision contained herein is held by a court of competent jurisdiction to be invalid
or unenforceable, the remainder of the provisions which can be given effect without the invalid
provision shall continue in full force and effect and shall in no way be impaired or invalidated.
We further declare under penalty of perjury under the laws of the State of California that the
matters set forth in this certificate are true and correct of our own knowledge.
DATE: ______________
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Xxxxxxx X. Xxxxxxx, Chief Executive Officer |
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Xxxxxx X. Xxxxxx, Chief Financial Officer |
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Exh. A-9.11-6
EXHIBIT B
Shenzhen Plant Assets
Exh. B-1
EXHIBIT C
Knowledge
The officers of the Company for such “knowledge” purposes include:
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The officers of the Purchaser for such “knowledge” purposes include:
Exh. C-1
EXHIBIT D-1
Form of Opinion of Counsel
Based upon the foregoing and subject to the additional qualifications set forth below, we are
of the opinion that:
1. The Company is validly existing as a corporation and in good standing under California law.
2. The Company has the corporate power to execute and deliver the Agreement and the Ancillary
Agreements and to perform its obligations thereunder.
3. The Company has duly authorized, executed and delivered the Agreement and Ancillary
Agreements, and the Agreement and Ancillary Agreements constitute its valid and binding obligations
enforceable against it in accordance with their terms.
4. The execution and delivery by the Company of the Agreement and Ancillary Agreements and the
performance by the Company of its obligations under the Agreement and Ancillary Agreements,
including its issuance and sale of the Purchased Shares and the issuance of Conversion Shares, do
not and will not (i) violate the California Corporations Code (the “CCC”), or United States federal
law, (ii) violate any court order, judgment or decree applicable to the Company of which we are
aware, (iii) result in a breach of, or constitute a default under, any agreement set forth as an
exhibit to the Company’s most recent 10-K, or any 10-Q or 8-K filed after the date of the most
recent 10-K, or (iv) violate the Company’s certificate of incorporation or by-laws.
5. The Company is not required to obtain any consent, approval, license or exemption by, or
order or authorization of, or to make any filing, recording or registration with, any governmental
authority pursuant to the CCC or United States federal law in connection with the execution and
delivery by the Company of the Agreement and Ancillary Agreements or the performance by it of its
obligations thereunder other than those that have been obtained or made.
6. The authorized capital stock of the Company consists of (i) 100,000,000 shares of Common
Stock, $0.0001 par value, of which 52,292,576 shares are issued and outstanding, and 20,000,000
shares of preferred stock issuable in series, of which 20,000,000 shares have been designated as
Series A Preferred Stock.
7. The Purchased Shares have been duly authorized, and when issued, delivered and paid for in
accordance with the Agreement, will be validly issued, fully paid and nonassessable. The
Conversion Shares have been duly authorized and, when issued in accordance with the Company’s
certificate of incorporation upon conversion of the Purchased Preferred Shares, will be validly
issued, fully paid and nonassessable. Neither the issuance or sale of the Purchased Shares nor the
issuance of the Conversion Shares is subject to any preemptive rights under the CCC or the
Company’s certificate of incorporation or by-laws.
Exh. D-1-1
8. Based on, and assuming the accuracy of, the representations of the Purchaser in the
Agreement, the sale of the Purchased Shares pursuant to the Agreement does not, and the issuance of
the Conversion Shares upon conversion of the Purchased Preferred Shares in accordance with the
Company’s certificate of incorporation will not (assuming no commission or other remuneration is
paid or given directly or indirectly for soliciting the conversion), require registration under the
Securities Act.
9. To our knowledge, there is neither pending nor threatened, any action, suit, proceeding, or
claim, whether or not purportedly on behalf of the Company, to which the Company or any director,
officer, stockholder or employee of the Company, in such person’s capacity as a director, officer,
stockholder or employee of the Company, is named as a party.
Exh. D-1-2
EXHIBIT D-2
Form of Opinion of Counsel
1. The Company is validly existing as a corporation and in good standing under California law.
2. The Company has the corporate power to execute and deliver the Agreement and the Ancillary
Agreements and to perform its obligations thereunder.
3. The Company has duly authorized, executed and delivered the Agreement and Ancillary
Agreements, and the Agreement and Ancillary Agreements constitute its valid and binding obligations
enforceable against it in accordance with their terms.
4. The execution and delivery by the Company of the Agreement and Ancillary Agreements and the
performance by the Company of its obligations under the Agreement and Ancillary Agreements,
including its issuance and sale of the Purchased Preferred Shares and the issuance of Conversion
Shares, do not and will not (i) violate the California Corporations Code (the “CCC”), or United
States federal law, (ii) violate any court order, judgment or decree applicable to the Company of
which we are aware, (iii) result in a breach of, or constitute a default under, any agreement set
forth as an exhibit to the Company’s most recent 10-K, or any 10-Q or 8-K filed after the date of
the most recent 10-K, or (iv) violate the Company’s articles of incorporation or by-laws.
5. Except as disclosed in the Schedules or SEC Reports, and required notice filings in
connection with exemptions from registration for the offer and sale of securities, the Company is
not required to obtain any consent, approval, license or exemption by, or order or authorization
of, or to make any filing, recording or registration with, any governmental authority pursuant to
the CCC or United States federal law in connection with the execution and delivery by the Company
of the Agreement and Ancillary Agreements or the performance by it of its obligations thereunder
other than those that have been obtained or made.
6. The authorized capital stock of the Company consists of (i) 100,000,000 shares of Common
Stock, $0.0001 par value, of which, based on the Transfer Agent stock register, [52,292,576] shares
are issued and outstanding, and 20,000,000 shares of preferred stock issuable in series, of which
[20,000,000 ] shares have been designated as Series A Preferred Stock.
7. The Purchased Preferred Shares have been duly authorized, and when issued, delivered and
paid for in accordance with the Agreement, will be validly issued, fully paid and nonassessable.
The Conversion Shares have been duly authorized and, when issued in accordance with the Company’s
certificate of incorporation upon conversion of the Purchased Preferred Shares, will be validly
issued, fully paid and nonassessable. Neither the issuance or sale of the Purchased Preferred
Shares nor the issuance of the Conversion Shares is subject to any preemptive rights under the CCC
or the Company’s certificate of incorporation or by-laws.
Exh. D-2-1
8. Based on, and assuming the accuracy of, the representations of the Purchaser in the
Agreement, the sale of the Purchased Preferred Shares pursuant to the Agreement does not, and the
issuance of the Conversion Shares upon conversion of the Purchased Preferred Shares in accordance
with the Company’s certificate of incorporation will not (assuming no commission or other
remuneration is paid or given directly or indirectly for soliciting the conversion), require
registration under the Securities Act.
9. To our knowledge, other than as described in the Schedules, there is neither pending nor
threatened, any action, suit, proceeding, or claim, whether or not purportedly on behalf of the
Company, to which the Company or any director, officer, stockholder or employee of the Company, in
such person’s capacity as a director, officer, stockholder or employee of the Company, is named as
a party.
Exh. D-2-2
EXHIBIT E-1
Form of Lock-up Agreement
____________, 2011
Solar Power, Inc.
[Address]
LDK Solar Co., Ltd.
Xx-Xxxx Xxxxxxxxxx Xxxx
Xxxxx Xxxx
Xxxxxxx Xxxxxxxx 000000
People’s Republic of China
Dear Ladies and Gentlemen:
To induce the Purchaser and the Company to continue their efforts in connection with the
Transactions, the undersigned hereby agrees that, without the prior written consent of the Company
and the Purchaser, the undersigned will not, during the period commencing on the date hereof and
ending one year after the Second Closing Date (1) offer, pledge, sell, contract to sell, sell any
option or contract to purchase, purchase any option or contract to sell, grant any option, right or
warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any shares
of Common Stock or any securities convertible into or exercisable or exchangeable for shares of
Common Stock, or (2) file any registration statement with the SEC relating to the offering of any
shares of Common Stock or any securities convertible into or exercisable or exchangeable for shares
of Common Stock, or (3) enter into any swap or other arrangement that transfers to another, in
whole or in part, any of the economic consequences of ownership of any shares of Common Stock or
any securities convertible into or exercisable or exchangeable for shares of Common Stock, whether
any such transaction described above is to be settled by delivery of shares of Common Stock or such
other securities, in cash or otherwise. In addition, the undersigned also agrees and consents to
the entry of stop transfer instructions with the Company’s transfer agent and registrar against the
transfer of the undersigned’s shares of Common Stock except in compliance with the foregoing
restrictions.
The undersigned understands that the Company and the Purchaser are relying upon this letter
agreement in proceeding toward consummation of the Transactions. The undersigned further
understands that this letter agreement is irrevocable and shall be binding upon the undersigned’s
heirs, legal representatives, successors, assigns and other Related Persons.
Exh. E-1-1
Whether or not the Transactions will actually consummate depends on a number of factors,
including the various corporate and regulatory approvals as well as the finalization of each
Ancillary Agreement, the terms of which are subject to negotiation between the Company and the
Purchaser.
This letter agreement shall become effective upon the First Closing. This letter agreement
shall be governed by and construed in accordance with the laws of the State of New York. The
undersigned hereby submits to the non-exclusive jurisdiction of the New York courts in connection
herewith.
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Very truly yours,
Xxxxxxx X. Xxxxxxx
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Exh. E-1-2
EXHIBIT E-2
Form of Lock-up Agreement
____________, 2011
Solar Power, Inc.
[Address]
LDK Solar Co., Ltd.
Xx-Xxxx Xxxxxxxxxx Xxxx
Xxxxx Xxxx
Xxxxxxx Xxxxxxxx 000000
People’s Republic of China
Dear Ladies and Gentlemen:
To induce the Purchaser and the Company to continue their efforts in connection with the
Transactions, the undersigned hereby agrees that, without the prior written consent of the Company
and the Purchaser, the undersigned will not, during the period commencing on the date hereof and
ending 90 days after the Second Closing Date (1) offer, pledge, sell, contract to sell, sell any
option or contract to purchase, purchase any option or contract to sell, grant any option, right or
warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any shares
of Common Stock or any securities convertible into or exercisable or exchangeable for shares of
Common Stock, or (2) file any registration statement with the SEC relating to the offering of any
shares of Common Stock or any securities convertible into or exercisable or exchangeable for shares
of Common Stock, or (3) enter into any swap or other arrangement that transfers to another, in
whole or in part, any of the economic consequences of ownership of any shares of Common Stock or
any securities convertible into or exercisable or exchangeable for shares of Common Stock, whether
any such transaction described above is to be settled by delivery of shares of Common Stock or such
other securities, in cash or otherwise. In addition, the undersigned also agrees and consents to
the entry of stop transfer instructions with the Company’s transfer agent and registrar against the
transfer of the undersigned’s shares of Common Stock except in compliance with the foregoing
restrictions.
The undersigned understands that the Company and the Purchaser are relying upon this letter
agreement in proceeding toward consummation of the Transactions. The undersigned further
understands that this letter agreement is irrevocable and shall be binding upon the undersigned’s
heirs, legal representatives, successors, assigns and other Related Persons.
Exh. E-2-1
Whether or not the Transactions will actually consummate depends on a number of factors,
including the various corporate and regulatory approvals as well as the finalization of each
Ancillary Agreement, the terms of which are subject to negotiation between the Company and the
Purchaser.
This letter agreement shall become effective upon the First Closing. This letter agreement
shall be governed by and construed in accordance with the laws of the State of New York. The
undersigned hereby submits to the non-exclusive jurisdiction of the New York courts in connection
herewith.
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Very truly yours,
[name of Management Shareholder]
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Exh. E-2-2
EXHIBIT F
Management Shareholders
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Name of Management Shareholder |
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Shares of Common Stock Owned |
XXXXXXX X. XXXXXXX |
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6,000,000 |
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XXXXXXX X. XXXXXXX |
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1,110,800 |
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XXXXXX X. XXXXXX |
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50,000 |
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XXXX X. XXXXX |
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15,000 |
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XXXXXX X. XXXX |
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50,000 |
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XXXXXXX X. XXXXXXX |
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517,550 |
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XXXXXXX X. XXXXXXX |
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50,000 |
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Exh. F-1