EXHIBIT (d)(1)
AGREEMENT AND PLAN OF MERGER
BY AND AMONG
CGI GROUP, INC.,
CGI VIRGINIA CORPORATION
AND
AMERICAN MANAGEMENT SYSTEMS, INCORPORATED
DATED AS OF MARCH 10, 2004
TABLE OF CONTENTS
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ARTICLE I THE OFFER............................................................. 1
SECTION 1.1 The Offer................................................... 1
SECTION 1.2 Company Actions............................................. 3
SECTION 1.3 Directors of the Company.................................... 4
ARTICLE II THE MERGER........................................................... 5
SECTION 2.1 The Merger.................................................. 5
SECTION 2.2 Effective Time; Closing..................................... 5
SECTION 2.3 Effect of the Merger........................................ 5
SECTION 2.4 Certificate of Incorporation and Bylaws..................... 5
SECTION 2.5 Directors and Officers...................................... 5
SECTION 2.6 Conversion of Shares........................................ 6
SECTION 2.7 Exchange of Certificates.................................... 6
SECTION 2.8 Dissenting Shares........................................... 8
SECTION 2.9 Stockholders' Meeting; Proxy/Information Statement.......... 8
SECTION 2.10 Further Action.............................................. 9
ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE COMPANY....................... 9
SECTION 3.1 Organization; Standing; Charter Documents; Subsidiaries..... 10
SECTION 3.2 Capital Structure........................................... 10
SECTION 3.3 Authority; Non-Contravention; Necessary Consents............ 11
SECTION 3.4 SEC Filings; Financial Statements........................... 12
SECTION 3.5 Absence of Certain Changes or Events........................ 14
SECTION 3.6 Brokers' and Finders' Fees.................................. 14
SECTION 3.7 Disclosure.................................................. 14
SECTION 3.8 Fairness Opinion............................................ 14
SECTION 3.9 Takeover Statutes........................................... 14
SECTION 3.10 Absence of Questionable Payments............................ 14
SECTION 3.11 Rights Agreement............................................ 15
SECTION 3.12 Representations Complete.................................... 15
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB.............. 15
SECTION 4.1 Organization; Standing; Charter Documents; Subsidiaries..... 15
SECTION 4.2 Authority; Non-Contravention; Necessary Consents............ 16
SECTION 4.3 Disclosure.................................................. 16
SECTION 4.4 Sufficient Funds............................................ 17
ARTICLE V CONDUCT PRIOR TO THE EFFECTIVE TIME................................... 17
SECTION 5.1 Conduct of Business by the Company.......................... 17
ARTICLE VI ADDITIONAL AGREEMENTS................................................ 19
SECTION 6.1 Acquisition Proposals....................................... 19
SECTION 6.2 Confidentiality; Access to Information; No Modification of
Representations, Warranties or Covenants.................... 22
SECTION 6.3 Public Disclosure........................................... 23
SECTION 6.4 Regulatory Filings; Best Efforts............................ 23
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SECTION 6.5 Notification of Certain Matters............................. 24
SECTION 6.6 Third-Party Consents........................................ 25
SECTION 6.7 Equity Awards and Employee Benefits......................... 25
SECTION 6.8 Indemnification............................................. 26
SECTION 6.9 Conveyance Taxes............................................ 27
SECTION 6.10 Loan of DIG Gross Proceeds to Parent........................ 27
ARTICLE VII CONDITIONS TO THE MERGER............................................ 27
SECTION 7.1 Conditions to the Obligations of Each Party to Effect the
Merger...................................................... 27
SECTION 7.2 No Other Conditions......................................... 27
ARTICLE VIII TERMINATION, AMENDMENT AND WAIVER.................................. 28
SECTION 8.1 Termination................................................. 28
SECTION 8.2 Notice of Termination; Effect of Termination................ 29
SECTION 8.3 Fees and Expenses........................................... 29
SECTION 8.4 Amendment................................................... 30
SECTION 8.5 Extension; Waiver........................................... 30
ARTICLE IX GENERAL PROVISIONS................................................... 31
SECTION 9.1 Non-Survival of Representations and Warranties.............. 31
SECTION 9.2 Notices..................................................... 31
SECTION 9.3 Interpretation; Certain Definitions......................... 32
SECTION 9.4 Counterparts................................................ 33
SECTION 9.5 Entire Agreement; Third-Party Beneficiaries................. 33
SECTION 9.6 Severability................................................ 33
SECTION 9.7 Other Remedies; Specific Performance........................ 34
SECTION 9.8 Governing Law............................................... 34
SECTION 9.9 Rules of Construction....................................... 34
SECTION 9.10 Assignment.................................................. 34
SECTION 9.11 Consent to Jurisdiction; Waiver of Trial by Jury............ 34
ANNEX A Conditions to the Offer..................................... A-1
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AGREEMENT AND PLAN OF MERGER
This
AGREEMENT AND PLAN OF MERGER (this "Agreement") is made and entered
into as of March 10, 2004, by and among CGI GROUP, INC., a corporation organized
under the laws of the province of Quebec (the "Parent"), CGI VIRGINIA
CORPORATION, a
Delaware corporation and a wholly-owned subsidiary of the Parent
(the "Merger Sub"), and AMERICAN MANAGEMENT SYSTEMS, INCORPORATED, a
Delaware
corporation (the "Company").
RECITALS
WHEREAS, the respective Boards of Directors of the Parent, the Merger Sub
and the Company have deemed it advisable and in the best interests of their
respective corporations and stockholders that the Parent and the Company
consummate the business combination and other transactions provided for herein;
WHEREAS, it is intended that the business combination be accomplished upon
the terms and subject to the conditions set forth in this Agreement, by the
Merger Sub commencing a cash tender offer (as such offer may be amended from
time to time, the "Offer") for all of the outstanding shares of common stock,
par value $0.01 per share, of the Company ("Company Common Stock") upon the
terms and subject to the conditions set forth in this Agreement (the shares of
Company Common Stock subject to the Offer are hereinafter referred to as the
"Shares") in an amount of $19.40 per Share (the "Offer Consideration") to be
followed by the Merger (as defined in Section 2.1);
WHEREAS, the respective Boards of Directors of the Parent, the Merger Sub
and the Company have approved the Offer and have declared the advisability of,
adopted and approved, in accordance with the General Corporation Law of the
State of
Delaware ("DGCL"), this Agreement and the transactions contemplated
hereby, including the Merger;
WHEREAS, subject to the terms of this Agreement, the Board of Directors of
the Company has resolved to recommend that the stockholders of the Company
accept the Offer, tender their Shares in the Offer, adopt this Agreement and
approve the Merger;
WHEREAS, the Parent, as the sole stockholder of the Merger Sub, has
approved the Offer and, immediately after the execution and delivery of this
Agreement, will approve and adopt this Agreement and approve the Merger;
WHEREAS, simultaneously with the execution and delivery of this Agreement,
and as a condition to the Parent's and the Merger Sub's willingness to enter
into this Agreement, certain officers and directors of the Company are entering
into separate voting agreements (the "Stockholder Tender and Voting
Agreements"), pursuant to which such individuals are agreeing, among other
things, to tender their Shares in the Offer and to grant the Parent a proxy to
vote their respective shares of Company Common Stock in favor of the Merger,
upon the terms and subject to the conditions set forth therein; and
WHEREAS, the Parent, the Merger Sub and the Company desire to make certain
representations, warranties and agreements in connection with the Offer and the
Merger and also to prescribe certain conditions to the Offer and the Merger.
NOW, THEREFORE, in consideration of the covenants, promises and
representations set forth herein, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties agree
as follows:
ARTICLE I
THE OFFER
SECTION 1.1 The Offer.
(a) Provided that this Agreement shall not have been terminated and none of
the events set forth in Section (a) through (i) of Annex A attached hereto and
made a part hereof ("Annex A") shall have occurred
and be continuing (and shall not have been waived by the Merger Sub), the Merger
Sub shall, and the Parent shall cause the Merger Sub to, commence (within the
meaning of Rule 14d-2 of the Exchange Act (as defined in Section 2.9(a)(ii)))
the Offer as promptly as reasonably practicable after the date hereof. The
obligation of the Merger Sub to accept for payment and pay for the Shares
tendered pursuant to the Offer shall be subject only to the satisfaction of the
condition that there be validly tendered and not withdrawn prior to the
expiration of the Offer that number of Shares which represents at least a
majority of the then outstanding Shares on a fully-diluted basis (taking into
account all Shares issued and outstanding as of the expiration of the Offer and
all additional Shares that would be issued and outstanding if all vested
options, warrants or rights to purchase Shares at a price per Share less than
the Offer Consideration were exercised) (the "Minimum Condition") and to the
satisfaction or waiver by the Merger Sub of the other conditions set forth in
Annex A (the Minimum Condition and the conditions set forth in Annex A
collectively, the "Offer Conditions"). The Company agrees that no Shares held by
the Company or any of its Subsidiaries (as defined in Section 3.1(a)) will be
tendered to the Merger Sub pursuant to the Offer. The Merger Sub expressly
reserves the right to waive in whole or in part any of the Offer Conditions
(other than the Minimum Condition), to increase the price per Share payable in
the Offer and to make any other changes in the terms of the Offer; provided,
however, that no change may be made without the prior written consent of the
Company which decreases the price per Share payable in the Offer, reduces the
maximum number of Shares to be purchased in the Offer, changes the form of
consideration to be paid in the Offer, imposes conditions to the Offer in
addition to the conditions set forth in Annex A, waives or changes the Minimum
Condition or makes any other change in the terms and conditions of the Offer
that is in any manner adverse to the holders of Shares or, except as provided
below, extends the Offer. Subject to the terms of the Offer and this Agreement
and the satisfaction of the Minimum Condition and the satisfaction or earlier
waiver of all the conditions of the Offer set forth in Annex A as of any
expiration date of the Offer, the Merger Sub shall accept for payment and pay
for all Shares validly tendered and not withdrawn pursuant to the Offer as soon
as it is permitted to do so under applicable Legal Requirements (as defined in
Section 3.2(d)). The scheduled expiration date of the Offer shall initially be
20 Business Days (as defined in Section 9.3(e)) following the date of
commencement of the Offer (counting for such purposes the day the Offer is
commenced as the first day of such period), and the Offer shall be extended
until such time as the Offer Conditions are satisfied or, to the extent
permitted by this Agreement, waived; provided, however, that the scheduled
expiration date of the Offer shall not be extended beyond 75 calendar days
following the date of commencement of the Offer (counting for such purposes the
day the Offer is commenced as the first day of such period) without the mutual
written consent of the Company and the Merger Sub (such date as may be so
extended, the "Outside Offer Date"). Notwithstanding the foregoing, the Merger
Sub may, without the consent of the Company, (i) extend the Offer for any period
required by any rule, regulation or interpretation of the United States
Securities and Exchange Commission (the "SEC"), the staff thereof or the Nasdaq
National Market ("NASDAQ") applicable to the Offer (but in no event beyond the
Outside Offer Date) or (ii) provide for one or more "subsequent offering
periods" of up to an additional 20 Business Days in the aggregate in accordance
with and to the extent permitted by Rule 14d-11 under the Exchange Act. Parent
and Merger Sub shall not terminate the Offer prior to any scheduled expiration
date (as the same may be extended or required to be extended) without the
written consent of the Company except in the event that Parent and Merger Sub
terminate this Agreement pursuant to Section 8.1. At the time that the Merger
Sub becomes obligated to accept for payment and pay for Shares pursuant to the
Offer, the Parent shall provide or cause to be provided to the Merger Sub the
funds necessary to pay for all Shares that the Merger Sub becomes so obligated
to accept for payment and pay for pursuant to the Offer. The Offer Consideration
shall, subject to any required withholding of Taxes (as defined in Section
9.3(h)), be net to the seller in cash, upon the terms and subject to the
conditions of the Offer.
(b) On the date of the commencement of the Offer, the Merger Sub shall file
with the SEC a Tender Offer Statement on Schedule TO (together with all
exhibits, amendments and supplements thereto, the "Schedule TO") with respect to
the Offer. The Schedule TO shall contain or incorporate by reference an offer to
purchase and forms of the related letter of transmittal and all other ancillary
Offer documents (collectively, together with all amendments and supplements
thereto, the "Offer Documents"). The Parent and the Merger Sub shall cause the
Offer Documents to be disseminated to the holders of the Shares as and to the
extent
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required by applicable federal securities laws. The Parent and the Merger Sub,
on the one hand, and the Company, on the other hand, will promptly correct any
information provided by it for use in the Offer Documents if and to the extent
that it shall have become false or misleading in any material respect, and the
Merger Sub will cause the Offer Documents as so corrected to be filed with the
SEC and to be disseminated to holders of the Shares, in each case as and to the
extent required by applicable federal securities laws and the DGCL. The Company
and its counsel shall be given a reasonable opportunity to review and comment
upon the Schedule TO before it is filed with the SEC. In addition, the Parent
and the Merger Sub agree to provide the Company and its counsel with any
comments, whether written or oral, that the Parent or the Merger Sub or either
of their counsel may receive from time to time from the SEC or its staff with
respect to the Schedule TO promptly after the receipt of such comments and to
consult with the Company and its counsel prior to responding to any such
comments (and provide the Company and its counsel with copies of any such
written response and telephonic notification of any such verbal response). If
the Offer is terminated or withdrawn by the Merger Sub, the Parent and the
Merger Sub shall promptly use their respective best efforts to cause the Paying
Agent to cause all tendered Shares to be returned to the registered holders of
the Shares represented by the certificate or certificates surrendered to the
Paying Agent (as defined in Section 2.7(a)).
SECTION 1.2 Company Actions.
(a) The Company represents and warrants that the Company's Board of
Directors, by resolutions adopted by unanimous vote at a meeting of all
directors called, has duly (i) determined that the terms of this Agreement, the
Offer and the Merger are fair to and in the best interests of the stockholders
of the Company, (ii) declared the advisability of, approved and adopted this
Agreement and approved and adopted the transactions contemplated hereby,
including the Merger, (iii) approved the Stockholder Tender and Voting Agreement
and (iv) resolved to recommend that (A) the stockholders of the Company accept
the Offer, tender their Shares to the Merger Sub thereunder and, if required by
Legal Requirements, adopt this Agreement and approve the Merger and (B) this
Agreement be submitted to the Company's stockholders for adoption at the Company
Stockholder Meeting (as defined in Section 2.9(a)(i)) to the extent required
under the DGCL. Subject to Section 6.1(e), the Company hereby consents to the
inclusion in the Offer Documents of the recommendation of the Company's Board of
Directors described in this Section 1.2(a).
(b) As promptly as practicable after the commencement of the Offer, the
Company shall file with the SEC a Solicitation/Recommendation Statement on
Schedule 14D-9 (together with all exhibits, amendments and supplements thereto,
the "Schedule 14D-9") which shall contain the recommendation referred to in
clause (iv) of Section 1.2(a) hereof (subject to Section 6.1(e)). The Company
further agrees to take all steps necessary to cause the Schedule 14D-9 to be
disseminated to holders of the Shares as and to the extent required by
applicable federal securities laws. The Company, on the one hand, and each of
the Parent and the Merger Sub, on the other hand, will promptly correct any
information provided by it for use in the Schedule 14D-9 if and to the extent
that it shall have become false or misleading in any material respect, and the
Company will cause the Schedule 14D-9 as so corrected to be filed with the SEC
and to be disseminated to holders of the Shares, in each case as and to the
extent required by applicable federal securities laws. The Parent and its
counsel shall be given a reasonable opportunity to review and comment upon the
Schedule 14D-9 before it is filed with the SEC. In addition, the Company agrees
to provide the Parent, the Merger Sub and their counsel with any comments,
whether written or oral, that the Company or its counsel may receive from time
to time from the SEC or its staff with respect to the Schedule 14D-9 promptly
after the receipt of such comments and to consult with the Parent, the Merger
Sub and their counsel prior to responding to any such comments (and provide the
Parent, the Merger Sub and their counsel with copies of any such written
response and telephonic notification of any such verbal response).
(c) The Company shall promptly furnish the Merger Sub with mailing labels
containing the names and addresses of all record holders of Shares and with
security position listings of Shares held in stock depositories, each as of a
recent date, together with all other available listings and computer files
containing names, addresses and security position listings of record holders and
non-objecting beneficial owners of Shares to the extent in possession of the
Company or the transfer agent for the Shares. The Company shall furnish the
Merger Sub with such additional information, including updated listings and
computer files of the stockholders of the Company, mailing labels and security
position listings, and such other assistance as the Parent, the
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Merger Sub or their Representatives (as defined in Section 6.1(a)) may
reasonably require in communicating the Offer to the record and beneficial
holders of the Shares. Subject to the requirements of applicable Legal
Requirements, and except for such steps as are necessary to disseminate the
Offer Documents and any other documents necessary to consummate the Offer or the
Merger, the Parent and the Merger Sub shall hold in confidence the information
contained in such labels, listings and files, shall use such information solely
in connection with the Offer and the Merger, and, if this Agreement is
terminated or if the Offer is otherwise terminated, shall promptly destroy, or
cause to be destroyed, or deliver, or cause to be delivered, to the Company all
copies of such information, labels, listings and files then in their possession
or in the possession of their Representatives and shall certify in writing to
the Company their compliance with this Section 1.2(c).
SECTION 1.3 Directors of the Company.
(a) Subject to compliance with applicable law, promptly upon the purchase
of and payment for a number of Shares that satisfies the Minimum Condition by
the Merger Sub pursuant to the Offer, the Parent shall be entitled to designate
such number of directors, rounded up to the next whole number, on the Board of
Directors of the Company as is equal to the product obtained by multiplying the
total number of directors on such Board (after giving effect to the directors
designated by the Parent pursuant to this sentence) by the percentage that the
number of Shares so purchased and paid for bears to the total number of Shares
then outstanding. In furtherance thereof, the Company shall, upon request of the
Merger Sub, promptly increase the size of its Board of Directors or exercise its
reasonable commercial efforts to secure the resignations of such number of
directors, or both, as is necessary to enable the Parent's designees to be so
elected or appointed to the Company's Board of Directors and, subject to Section
14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder, shall cause the
Parent's designees to be so elected or appointed. At such time, the Company
shall, if requested by the Parent, also cause directors designated by the Parent
and the Merger Sub to constitute at least the same percentage (rounded up to the
next whole number) as is on the Company's Board of Directors of each Board of
Directors of each Subsidiary of the Company and committee of the Company's Board
of Directors. Notwithstanding the foregoing, if the Parent's designees are
appointed or elected to the Company's Board of Directors hereunder, until the
Effective Time the Company shall (and the Parent shall use reasonable commercial
efforts to cause the Company to) have at least two members of the Company's
Board of Directors who are directors on the date hereof and who are neither
officers of the Company nor designees of the Parent and who are otherwise
"independent directors" under applicable NASDAQ rules (the "Independent
Directors"); provided, however, if the number of Independent Directors shall be
reduced below two for any reason whatsoever, the parties shall use their
commercially reasonable efforts to cause the Board of Directors of the Company
to cause the Person designated by the remaining Independent Director to be
elected to fill such vacancy, which person shall be deemed to be an Independent
Director for all purposes of this Agreement. If no Independent Directors then
remain, the other directors of the Company then in office shall designate two
Persons to fill such vacancies who will not be directors, officers, employees or
affiliates of the Parent, the Merger Sub or the Company, and such persons shall
be deemed to be Independent Directors for all purposes of this Agreement.
(b) The Company shall promptly take all actions required pursuant to
Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order
to fulfill its obligations under Section 1.3(a), including mailing to its
stockholders together with the Schedule 14D-9 the information required by such
Section 14(f) and Rule 14f-1 as is necessary to enable the Parent's designees to
be elected to the Company's Board of Directors. The Parent and the Merger Sub
will supply the Company any information with respect to them and their nominees,
officers, directors and affiliates required by such Section 14(f) and Rule
14f-1. The provisions of this Section 1.3(b) are in addition to and shall not
limit any rights that any of the Merger Sub, the Parent or any of their
respective affiliates may have as a holder or beneficial owner of Shares as a
matter of law with respect to the election of directors or otherwise.
(c) Following the election or appointment of the Parent's designees
pursuant to Section 1.3(a) and until the Effective Time (as defined in Section
2.2), the Company's Board of Directors shall include at least one Independent
Director and the approval of a majority of the Independent Directors shall be
required to authorize any amendment of this Agreement or the Company Charter
Documents (as defined in Section 3.1(b)), any termination of this Agreement by
the Company, any extension by the Company of the time
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for the performance of any of the obligations or other acts of the Merger Sub or
the Parent, any waiver of any of the Company's rights or remedies hereunder or
any action as to which consent, agreement or action of the Company is required
hereunder or in connection herewith; provided, however, if the foregoing
provisions of this subsection are invalid or incapable of being enforced under
applicable law, then neither the Parent nor the Merger Sub shall approve (either
in its capacity as a stockholder or as a party to this Agreement, as
applicable), and the Parent and the Merger Sub shall use their commercially
reasonable efforts to prevent the occurrence of, such action unless such action
shall have received the unanimous approval of the Board of Directors of the
Company. The Board of Directors of the Company shall not delegate any matter
covered by this Section 1.3(c) to any committee of the Board of Directors of the
Company unless such committee consists only of Independent Directors.
ARTICLE II
THE MERGER
SECTION 2.1 The Merger. Subject to and upon the terms and conditions of
this Agreement and the applicable provisions of the DGCL, at the Effective Time,
the Merger Sub shall be merged with and into the Company (the "Merger"), the
separate corporate existence of the Merger Sub shall cease and the Company shall
continue as the surviving corporation. The Company, as the surviving corporation
after the Merger, is hereinafter sometimes referred to as the "Surviving
Corporation".
SECTION 2.2 Effective Time; Closing. Subject to the provisions of this
Agreement, the parties hereto shall cause the Merger to be consummated by filing
the Certificate of Merger with the Secretary of State of the State of
Delaware
in accordance with the relevant provisions of the DGCL (the "Certificate of
Merger") (the time of such filing with the Secretary of State of the State of
Delaware (or such later time as may be agreed in writing by the Company and the
Parent and specified in the Certificate of Merger) being the "Effective Time")
as soon as practicable on or after the Closing Date (as defined in this Section
2.2). The closing of the Merger (the "Closing") shall take place at the offices
of Holland & Knight LLP, 0000 Xxxxxx Xxxxxxxxx, XxXxxx, Xxxxxxxx 00000, at a
time and date to be specified by the parties, which shall be no later than the
second Business Day after the satisfaction or waiver of the conditions set forth
in Article VII, or at such other time, date and location as the parties hereto
agree in writing (the "Closing Date").
SECTION 2.3 Effect of the Merger. At the Effective Time, the effect of
the Merger shall be as provided in this Agreement and the applicable provisions
of the DGCL.
SECTION 2.4 Certificate of Incorporation and Bylaws. Subject to Section
6.8, at the Effective Time, the certificate of incorporation of the Company
shall be amended in its entirety to be identical to the certificate of
incorporation of the Merger Sub, as in effect immediately prior to the Effective
Time, until thereafter amended in accordance with the DGCL and as provided in
such certificate of incorporation; provided, however, that at the Effective
Time, Article I of the certificate of incorporation of the Surviving Corporation
shall be amended in its entirety to read as follows: "The name of the
corporation is American Management Systems, Incorporated"; and provided further,
any provisions relating to the incorporator or initial directors shall be
eliminated. Subject to Section 6.8, at the Effective Time, the Bylaws of the
Company shall be amended and restated in their entirety to be identical to the
Bylaws of the Merger Sub, as in effect immediately prior to the Effective Time,
until thereafter amended in accordance with the DGCL and as provided in such
Bylaws.
SECTION 2.5 Directors and Officers. The directors of the Merger Sub
immediately prior to the Effective Time shall become the directors of the
Surviving Corporation from and after the Effective Time, until their respective
successors are duly elected or appointed and qualified. The officers of the
Company immediately prior to the Effective Time shall become the officers of the
Surviving Corporation from and after the Effective Time, until their respective
successors are duly appointed.
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SECTION 2.6 Conversion of Shares. As of the Effective Time, by virtue of
the Merger and without any action on the part of the parties or the holders of
any Shares of the Company:
(a) Each issued and outstanding Share (other than Shares to be
canceled in accordance with Section 2.6(c) and the Dissenting Shares)
automatically shall be converted into the right to receive the Offer
Consideration in cash (the "Merger Consideration") payable, without
interest, to the holder of such Share, upon surrender, in the manner
provided in Section 2.7, of the certificate that formerly evidenced such
Share. All such Shares, when so converted, shall no longer be outstanding
and automatically shall be canceled and shall cease to exist, and each
holder of a certificate representing any such Shares shall cease to have
any rights with respect thereto, except the right to receive the Merger
Consideration therefor upon the surrender of such certificate in accordance
with Section 2.7. Any payment made pursuant to this Section 2.6(a) shall be
made net of applicable withholding taxes in accordance with Section 2.7(f)
to the extent that such withholding is required by applicable Legal
Requirements.
(b) Each issued and outstanding share of common stock, par value $0.01
per share, of the Merger Sub shall be converted into and become one
validly-issued, fully-paid and nonassessable share of common stock of the
Surviving Corporation.
(c) All Shares that are owned at the Effective Time by the Company,
the Parent, the Merger Sub or any other direct or indirect wholly-owned
Subsidiary of the Company, the Parent or the Merger Sub shall be canceled
and no Merger Consideration shall be delivered in exchange therefor.
(d) At the Effective Time, all Company Options (as defined in Section
3.2(b)) outstanding under the Company's equity incentive plans, the 1996
Amended Stock Option Plan F, as amended, the 1992 Amended and Restated
Stock Option Plan E, as amended, the Stock Option Plan for Employees, the
Restricted Stock and Stock Bonus Plan, the 2003 Stock Incentive Plan and
the 1999 Contractor Stock Option Plan, and each other plan or Contract (as
defined in Section 9.3(g)) of any nature with any Person (as defined in
Section 9.3(d)) pursuant to which any option to purchase capital stock of
the Company has been granted, but in any case excluding the Company's
Employee Stock Purchase Plan (collectively, the "Company Stock Option
Plans") shall be treated as set forth in Section 6.7(a). Rights outstanding
under the Company's Employee Stock Purchase Plan (the "Company Purchase
Plan") shall be treated as set forth in Section 6.7(c). Deferred Stock
Units (as defined in Section 6.7(d)) and Restricted Stock (as defined in
section 6.7(d)) shall be treated as set forth in section 6.7(d).
(e) The Merger Consideration shall be adjusted to reflect fully the
appropriate effect of any stock split, reverse stock split, stock dividend
(including any dividend or distribution of securities convertible into
Company Common Stock), reorganization, recapitalization, reclassification
or other like change with respect to Company Common Stock having a record
date on or after the date hereof and prior to the Effective Time.
SECTION 2.7 Exchange of Certificates.
(a) Prior to the Effective Time, the Parent shall designate an agent
reasonably acceptable to the Company to act as agent for the holders of the
Shares (other than the Shares held by the Parent, the Merger Sub, the Company or
any of their Subsidiaries) in connection with the Merger (the "Paying Agent") to
receive in trust, the aggregate Merger Consideration to which holders of Shares
shall become entitled pursuant to Section 2.6(a). At the Effective Time, the
Parent shall deposit the Merger Consideration with the Paying Agent. The Merger
Consideration shall be invested by the Paying Agent as directed by the Parent or
the Surviving Corporation. If for any reason (including losses) the funds held
by the Paying Agent are inadequate to pay the amounts to which the Stockholders
shall be entitled under Section 2.6(a), the Parent and the Surviving Corporation
shall be liable for the payment thereof.
(b) As promptly as practicable after the Effective Time, the Parent and the
Surviving Corporation shall cause to be mailed to each record holder, as of the
Effective Time, of an outstanding certificate or certificates which immediately
prior to the Effective Time represented Shares (the "Certificates" or
individually, a "Certificate"), whose Shares were converted pursuant to Section
2.6(a) into the right to receive the Merger Consideration, a letter of
transmittal (which shall specify that delivery shall be effected, and risk of
loss and
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title to a Certificate shall pass, only upon proper delivery of the Certificate
to the Paying Agent and shall be in such form and have such other provisions as
the Parent may reasonably specify) and instructions for effecting the surrender
of a Certificate in exchange for the Merger Consideration for the Shares. Upon
surrender of a Certificate for cancellation to the Paying Agent or to such other
agent or agents as may be appointed by the Parent, together with such letter of
transmittal duly executed and completed in accordance with the instructions
thereto, and any other documents reasonably required by the Parent, the holder
of such Certificate shall receive promptly in exchange therefor the Merger
Consideration for each Share formerly evidenced thereby, and such Certificate
shall forthwith be canceled. No interest will be paid or accrued on the cash
payable upon the surrender of a Certificate. If payment of the Merger
Consideration is to be made to a Person other than the Person in whose name the
surrendered Certificate is registered, it shall be a condition of payment that
the Certificate so surrendered be properly endorsed or otherwise be in proper
form for transfer and that the Person requesting such payment shall (i) have
paid any transfer and other Taxes required by reason of the payment to a Person
other than the registered holder of the Certificate surrendered or (ii) have
established to the satisfaction of the Surviving Corporation that such Taxes
have been paid or that payment of Taxes is not applicable. Until surrendered as
contemplated by this Section 2.7, each Certificate shall be deemed at any time
after the Effective Time to represent only the right to receive the Merger
Consideration for each Share in cash as contemplated by Section 2.6.
(c) At the Effective Time, the stock transfer books of the Company shall be
closed, and there shall be no transfers on the stock transfer books of the
Company of the Shares, which were outstanding immediately prior to the Effective
Time. From and after the Effective Time, the holders of Certificates evidencing
ownership of the Shares outstanding immediately prior to the Effective Time
shall cease to have any rights with respect to such Shares, except as otherwise
provided for herein or by applicable Legal Requirements. If, after the Effective
Time, Certificates are presented to the Paying Agent or the Surviving
Corporation, they shall be canceled and exchanged for the Merger Consideration
in accordance with the procedures set forth in this Article II.
(d) At any time following the six month anniversary of the Effective Time,
the Surviving Corporation shall be entitled to require the Paying Agent to
deliver to it any funds (including any interest received with respect thereto)
which had been made available to the Paying Agent, and holders shall be entitled
to look to the Surviving Corporation (subject to abandoned property, escheat or
other similar laws) only as general creditors thereof with respect to the Merger
Consideration payable upon due surrender of their Certificates without any
interest thereon. Notwithstanding the foregoing, neither the Surviving
Corporation nor the Paying Agent shall be liable to any holder of a Certificate
for Merger Consideration delivered to a public official pursuant to any
applicable abandoned property, escheat or similar law.
(e) In the event that any Certificate shall have been lost, stolen or
destroyed, upon the making of an affidavit of that fact by the Person claiming
such Certificate to be lost, stolen or destroyed, the Paying Agent will issue in
exchange for such lost, stolen or destroyed Certificate the Merger Consideration
deliverable in respect thereof as determined in accordance with this Article II,
provided, that the Person to whom the Merger Consideration is paid shall, as a
condition precedent to the payment thereof, give the Surviving Corporation a
bond in such sum as it may direct or otherwise indemnify the Surviving
Corporation in a manner satisfactory to it against any claim that may be made
against the Surviving Corporation with respect to the Shares represented by the
Certificate claimed to have been lost, stolen or destroyed.
(f) The Parent, the Merger Sub and the Surviving Corporation shall be
entitled to deduct and withhold, or cause the Paying Agent to deduct and
withhold, from the Offer Consideration or the Merger Consideration payable to a
holder of Shares pursuant to the Offer or the Merger any or all such amounts as
are required to be deducted and withheld under the Internal Revenue Code of
1986, as amended (the "Code"), and/or any applicable provision of state, local
or foreign Tax law or under any other applicable Legal Requirement. To the
extent that amounts are so deducted and withheld by the Parent, the Merger Sub,
the Surviving Corporation or the Paying Agent, such deducted and withheld
amounts shall be treated for all purposes of this Agreement as having been paid
to the holder of the Shares to which such consideration would otherwise have
been paid.
7
SECTION 2.8 Dissenting Shares.
(a) Shares of Company Common Stock that are issued and outstanding
immediately prior to the Effective Time and that are held by a Company
stockholder who (A) has not voted such shares in favor of the Merger; (B) shall
have delivered a written demand for appraisal of such shares in the manner
provided for in Section 262 of the DGCL; and (C) shall not have effectively
withdrawn or lost such right to appraisal as of the Effective Time (the
"Dissenting Shares"), shall be entitled to such rights (but only such rights) as
are granted by Section 262 of the DGCL. Each holder of Dissenting Shares who
becomes entitled to payment for such Dissenting Shares pursuant to Section 262
of the DGCL shall receive payment therefor from the Surviving Corporation in
accordance with the DGCL; provided, however, that (1) if any such holder of
Dissenting Shares shall have failed to establish such holder's entitlement to
appraisal rights as provided in Section 262 of the DGCL; (2) if any holder of
Dissenting Shares shall have effectively withdrawn his demand for appraisal of
such Dissenting Shares or lost his right to appraisal and payment for his
Dissenting Shares under Section 262 of the DGCL; or (3) if neither any holder of
Dissenting Shares nor the Surviving Corporation shall have filed a petition
demanding a determination of the value of all Dissenting Shares within the time
provided for the filing of such petition in Section 262 of the DGCL, such holder
shall forfeit the right to appraisal of such Dissenting Shares, and each such
Dissenting Share shall be deemed to have been converted into, as of the
Effective Time, the right to receive the Merger Consideration, without any
interest thereon, upon surrender, in the manner provided in Section 2.7 of this
Agreement, of the Certificate or Certificates that formerly evidenced such
shares.
(b) The Company shall give the Parent (A) prompt notice of any demands for
appraisal received by the Company, withdrawals of such demands, and any other
instruments served pursuant to the DGCL and received by the Company; and (B) the
opportunity to lead all negotiations and proceedings with respect to demands for
appraisal under the DGCL (it being understood that the Company shall be entitled
to participate therein). The Company shall not, except with the prior written
consent of the Parent, make any payment with respect to any demands for
appraisal or offer to settle or settle any such demands.
SECTION 2.9 Stockholders' Meeting; Proxy/Information Statement.
(a) As soon as practicable following the expiration of the Offer, if
required by applicable Legal Requirements in order to consummate the Merger,
(i) the Company, acting through its Board of Directors, shall, in
accordance with applicable Legal Requirements, duly call, give notice of,
convene and hold a special meeting of its stockholders, to be held on the
earliest practicable date determined in consultation with the Parent (the
"Company Stockholders' Meeting"). Alternatively, the Company may seek to
obtain, and Parent and Merger Sub shall provide or cause to be promptly
provided, written consent in lieu of a meeting of Company Stockholders
pursuant to Section 228 of the DGCL and the Company Charter Documents. Once
the Company Stockholders' Meeting has been called and noticed, the Company
shall not postpone or adjourn (other than for the absence of a quorum and
then only to the next possible future date) the Company Stockholders'
Meeting without the Parent's prior written consent and the written consent
of a majority of the Independent Directors;
(ii) the Company shall prepare and file a preliminary proxy statement
or information statement (as amended, supplemented or modified, the
"Proxy/Information Statement") relating to the Merger and this Agreement
which shall comply as to form with all applicable Legal Requirements and
which shall include all information concerning the Company, the Parent and
the Merger Sub required to be set forth therein pursuant to the Securities
Exchange Act of 1934, as amended (the "1934 Act"), and the applicable rules
and regulations thereunder (the "1934 Act Rules", and together with the
1934 Act, the "Exchange Act");
(iii) the Company shall respond promptly to any comments of the SEC
and shall file a definitive form of the Proxy/Information Statement, which
shall reflect compliance with or resolution of the comments and requests in
accordance with the Exchange Act from the SEC as the Company and the Parent
shall deem appropriate;
8
(iv) the Company shall distribute the Proxy/Information Statement to
the Company's stockholders in accordance with applicable Legal
Requirements; and
(v) subject to Section 6.1(e), the Company shall take all such other
reasonable action necessary or appropriate to obtain the lawful approval of
this Agreement by the Company's stockholders including, to the extent
necessary or advisable, soliciting from holders of Shares proxies in favor
of the adoption and approval of this Agreement, the Merger and the
transactions contemplated hereby. Without limiting the generality of the
foregoing, (A) the Company agrees that its obligation to duly call, give
notice of, convene and hold a meeting of the holders of Company Common
Stock, as required by this Section 2.9, shall not be affected by a Change
of Company Recommendation (as defined in Section 6.1(e)); and (B) the
Company agrees that its obligations pursuant to this Section 2.9 shall not
be affected by the commencement, public proposal, public disclosure or
communication to the Company of any Acquisition Proposal or Superior Offer.
(b) The Parent and the Merger Sub shall furnish to the Company all
information concerning the Parent, the Merger Sub and their affiliates required
by the Exchange Act or as otherwise required by the SEC to be set forth in the
Proxy/Information Statement.
(c) Each of the Company and the Parent shall consult and confer with the
other and the other's counsel regarding the Proxy/Information Statement and each
shall have the opportunity to comment on the Proxy/ Information Statement, and
any amendments or supplements thereto, before the Proxy/Information Statement is
filed with the SEC or mailed to the Company's stockholders. Each of the Company
and the Parent will provide to the other copies of all correspondence between it
(or its advisors) and the SEC relating to the Proxy/Information Statement.
(d) The Parent will vote, or cause to be voted, all Shares acquired by the
Parent, the Merger Sub or any other Subsidiary of the Parent in favor of the
Merger and the adoption of this Agreement.
(e) Notwithstanding the provisions of Sections 2.9 (a) and (b), in the
event that the Parent, the Merger Sub and any other Subsidiaries of the Parent
shall acquire in the aggregate at least 90% of the outstanding shares of each
class of capital stock of the Company pursuant to the Offer or otherwise, Parent
and Merger Sub shall, subject to Article VII hereof, take all necessary and
appropriate action to cause the Merger to become effective as soon as
practicable after such acquisition, without a meeting of the Company's
stockholders, in accordance with Section 253 of the DGCL.
SECTION 2.10 Further Action. At and after the Effective Time, the
officers and directors of the Parent and the Surviving Corporation will be
authorized to execute and deliver, in the name and on behalf of the Company and
the Merger Sub, any deeds, bills of sale, assignments or assurances and to take
and do, in the name and on behalf of the Company and the Merger Sub, any other
actions and things to vest, perfect or confirm of record or otherwise in the
Surviving Corporation any and all right, title and interest in, to and under any
of the rights, properties or assets acquired or to be acquired by the Surviving
Corporation as a result of, or in connection with, the Merger.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to the Parent and the Merger Sub as set
forth below, subject to those exceptions disclosed in writing in the disclosure
schedules supplied by the Company to the Parent, dated as of the date hereof,
and certified by a duly authorized officer of the Company (the "Company
Disclosure Schedule"). For purposes of the representations and warranties of the
Company contained herein, each exception set forth in the Company Disclosure
Schedule and each other response to this Agreement set forth in the Company
Disclosure Schedule is identified by reference to, or has been grouped under a
heading referring to, a specific individual section of this Agreement, and
disclosure in any section of the Company Disclosure Schedule of any facts or
circumstances shall be deemed to be adequate response and disclosure of such
facts or circumstances with respect to all representations and warranties by the
Company calling for
9
disclosure of such information if it is reasonably apparent on the face of the
Company Disclosure Schedules that such disclosure is applicable; provided,
however, that the Company represents and warrants that it has made a good faith
effort to include specific cross-references to other portions thereof where
applicable. The Company Disclosure Schedule may incorporate disclosures
contained in any quarterly, annual or current report or any proxy or information
statement filed with or furnished to the SEC (a "Public Filing") by reference to
a specific portion of a specific Public Filing. The inclusion of any information
in any section of the Company Disclosure Schedule or other document delivered by
the Company pursuant to this Agreement shall not be deemed to be an admission or
evidence of the materiality of such item, nor shall it establish a standard of
materiality for any purpose whatsoever.
SECTION 3.1 Organization; Standing; Charter Documents; Subsidiaries.
(a) Organization; Standing. Each of the Company and its Subsidiaries is a
corporation or other organization duly organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation or
organization, has the requisite power and authority to own, lease and operate
its properties and to carry on its business as now being conducted, except where
the failure to be so organized, existing and in good standing would not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect (as defined in Section 9.3(c)) on the Company, and is duly
qualified and in good standing to do business in each jurisdiction in which the
nature of its business or the ownership or leasing of its properties makes such
qualification necessary other than in such jurisdictions where the failure to so
qualify or to be good standing would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect on the Company. For
purposes of this Agreement, "Subsidiary", when used with respect to any party,
shall mean any corporation or other organization, whether incorporated or
unincorporated, at least a majority of the equity securities or other equity
interests of which having by their terms ordinary voting power to elect a
majority of the board of directors or others performing similar functions with
respect to such corporation or other organization is directly or indirectly
owned or controlled by such party or by any one or more of its Subsidiaries, or
by such party and one or more of its Subsidiaries; provided, however, that the
term "Subsidiary" shall not include any teaming arrangement, alliance or joint
venture of which the Company or any Subsidiary is a party. For purposes of this
Agreement, the term "Significant Subsidiary" means a Subsidiary that has assets
or liabilities or that is actively carrying on any business activities, but
shall not include any "Dagger Subsidiary", as such term is defined in that
certain Asset Purchase Agreement, dated on or about the date hereof, by and
among Parent, Merger Sub, the Company, CACI International, Inc., CACI,
INC. -- FEDERAL and Dagger Acquisition Corporation (the "DIG Purchase
Agreement").
(b) Charter Documents. The Company has delivered or made available to the
Parent: (i) a true and correct copy of the certificate of incorporation
(including any certificate of designations) and bylaws of the Company, each as
amended to date (collectively, the "Company Charter Documents") and (ii) the
certificate of incorporation and bylaws, or like organizational documents, of
each of its Significant Subsidiaries, each as amended to date (collectively,
"Subsidiary Charter Documents"), and each such instrument is in full force and
effect. The Company is not in violation of any of the provisions of the Company
Charter Documents and each Significant Subsidiary is not in material violation
of its respective Subsidiary Charter Documents.
(c) Subsidiaries. Section 3.1(c) of the Company Disclosure Schedule sets
forth a list of all the Significant Subsidiaries of the Company. All the
outstanding shares of capital stock of, or other equity interests in, each such
Significant Subsidiary have been validly issued and are fully paid and
nonassessable and are owned directly or indirectly by the Company, free and
clear of all pledges, claims, liens, charges, encumbrances, options and security
interests of any kind or nature whatsoever (collectively, "Liens"), including
any restriction on the right to vote, sell or otherwise dispose of such capital
stock or other ownership interests, except for restrictions imposed by
applicable securities laws or for Liens set forth on Section 3.1(c) of the
Company Disclosure Schedule.
SECTION 3.2 Capital Structure.
(a) Capital Stock. The authorized capital stock of the Company consists
of: (i) 200,000,000 shares of Company Common Stock and (ii) 4,000,000 shares of
preferred stock, par value $0.10 per share (the
10
"Company Preferred Stock"). As of February 29, 2004: (i) 42,684,247 shares of
Company Common Stock are issued and outstanding and (ii) no shares of the
Company Preferred Stock are issued and outstanding. All of the outstanding
shares of capital stock of the Company are, and all shares of capital stock of
the Company which may be issued prior to the Effective Time pursuant to any
Company Options will be when issued, duly authorized and validly issued, fully
paid and nonassessable.
(b) Stock Options. As of March 2, 2004, 5,927,080 shares of Company Common
Stock are subject to issuance pursuant to outstanding stock options granted
under or pursuant to the Company Stock Option Plans (referred to in this
Agreement as "Company Options"). The Company has provided Parent a list, as of
March 8, 2004, of each outstanding Company Option and (a) the name of the holder
of such Company Option; (b) the number and type of shares of Company Common
Stock subject to such Company Option; (c) the exercise price of such Company
Option; (d) the date on which such Company Option was granted; (e) the
applicable vesting schedule, and the extent to which such Company Option is
vested and exercisable; and (f) the latest date on which such Company Option
expires. All shares of Company Common Stock subject to issuance under the
Company Stock Option Plans, upon issuance on the terms and conditions specified
in the instruments pursuant to which they are issuable, would be duly
authorized, validly issued, fully paid and nonassessable. Section 3.2(b) of the
Company Disclosure Schedule sets forth a list of all outstanding stock
appreciation, phantom stock, profit participation or other similar rights with
respect to the Company.
(c) Voting Debt. No bonds, debentures, notes or other indebtedness having
the right to vote on any matters on which stockholders of the Company may vote
("Voting Debt") is issued or outstanding as of the date hereof.
(d) Other Securities. Other than the preferred stock or other rights (the
"Rights") issued pursuant to the Rights Agreement, dated as of July 31, 1998,
between the Company and ChaseMellon Shareholder Services L.L.C. (the "Rights
Agreement") and the Company Options and other awards under the Company Stock
Option Plans, except as otherwise set forth in the Disclosure Schedule, there
are no securities, options, warrants, calls, rights, commitments, agreements,
arrangements or undertakings of any kind to which the Company or any of its
Subsidiaries is a party or by which any of them is bound, or any preemptive or
similar rights, obligating the Company or any of its Subsidiaries to issue,
deliver or sell, or cause to be issued, delivered or sold, additional shares of
capital stock, Voting Debt or other voting securities of the Company or any of
its Subsidiaries, or obligating the Company or any of its Subsidiaries to issue,
grant, extend or enter into any such security, option, warrant, call, right,
commitment, agreement, arrangement or undertaking. All outstanding shares of
Company Common Stock, all outstanding Company Options, and all outstanding
shares of capital stock of each Subsidiary of the Company have been issued and
granted in compliance in all material respects with (i) all applicable
securities laws and all other applicable Legal Requirements and (ii) all
requirements set forth in applicable Material Company Contracts. For purposes of
this Agreement, "Legal Requirements" shall mean any federal, state, local,
municipal, foreign or other law, statute, constitution, principle of common law,
resolution, ordinance, code, order, edict, decree, rule, regulation, ruling or
requirement issued, enacted, adopted, promulgated, implemented or otherwise put
into effect by or under the authority of any Governmental Entity (as defined in
Section 3.3(c)).
SECTION 3.3 Authority; Non-Contravention; Necessary Consents.
(a) Authority. The Company has all requisite corporate power and authority
to enter into this Agreement and to consummate the transactions contemplated
hereby. The execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby, including the Merger, have been duly
authorized by all necessary corporate action on the part of the Company and no
other corporate proceedings on the part of the Company are necessary to
authorize the execution and delivery of this Agreement or to consummate the
Offer and the Merger and the other transactions contemplated hereby, subject
only to the adoption of this Agreement and the approval of the Merger by the
Company's stockholders and the filing of the Certificate of Merger as, if and to
the extent required pursuant to the DGCL. The affirmative vote of the holders of
record of not less than a majority of all votes entitled to be cast by the
holders of the outstanding shares of Company Common Stock to adopt this
Agreement and approve the Merger is the only vote of the holders of any class or
series of Company capital stock necessary to adopt this Agreement,
11
approve the Merger and consummate the Merger and the other transactions
contemplated hereby (the "Company Stockholders' Approval") This Agreement has
been duly executed and delivered by the Company and, assuming due execution and
delivery by the Parent and the Merger Sub, constitutes the valid and binding
obligation of the Company, enforceable against the Company in accordance with
its terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability relating to
or affecting creditors' rights and to general equity principles.
(b) Non-Contravention. The execution and delivery of this Agreement by the
Company does not, and performance of this Agreement by the Company will not: (i)
conflict with or violate the Company Charter Documents or any Subsidiary Charter
Documents; (ii) subject to obtaining the Company Stockholders' Approval and
compliance with the requirements set forth in Section 3.3(c), conflict with or
violate any material Legal Requirement applicable to the Company or any of its
Subsidiaries or by which the Company or any of its Subsidiaries or any of their
respective properties is bound or affected; or (iii) result in any material
breach of or constitute a material default (or an event that with notice or
lapse of time or both would become a material default) under, or materially
impair the Company's rights or alter the rights or obligations of any third
party in any material respect under, or give to others any rights of
termination, material amendment, acceleration or cancellation of, or result in
the creation of a Lien on any of the material properties or assets of the
Company or any of its Subsidiaries pursuant to, any Company Material Contract
(as defined in Section 9.3(f)). Section 3.3(b) of the Company Disclosure
Schedule lists all consents, waivers and approvals under any of the Company
Material Contracts required to be obtained in connection with the consummation
of the transactions contemplated hereby.
(c) Necessary Consents. No consent, approval, order or authorization of,
or registration, declaration or filing with any supranational, national, state,
municipal, local or foreign government, any instrumentality, subdivision, court,
administrative agency or commission or other governmental authority or
instrumentality, or any quasi-governmental or private body exercising any
regulatory, taxing, importing or other governmental or quasi-governmental
authority (a "Governmental Entity") is required to be obtained or made by the
Company in connection with the execution and delivery of this Agreement or the
consummation of the Merger and other transactions contemplated hereby, except
for: (i) the filing of the Certificate of Merger with the Secretary of State of
the State of
Delaware and appropriate documents with the relevant authorities of
other states in which the Company and/or the Parent are qualified to do
business; (ii) the filing of (A) the Proxy/ Information Statement with the SEC
in accordance with Exchange Act, if approval of the Company's stockholders is
required by the DGCL and (B) the filing of the Schedule TO with the SEC in
accordance with the Exchange Act, and (C) the filing of the Schedule 14D-9 with
the SEC in accordance with the Exchange Act; (iii) such consents, approvals,
orders, authorizations, registrations, declarations and filings as may be
required under applicable federal, foreign and state securities (or related)
laws, including the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as
amended (the "HSR Act"), the competition laws of Germany, the Exon-Xxxxxx
Amendment to Section 721 of the Defense Production Act of 1950 (the "Defense
Production Act") and NASDAQ; (iv) the consents listed on Section 3.3(c) of the
Company Disclosure Schedule; (v) such consents, approvals, orders,
authorizations, registrations, declarations and filings as may be required under
applicable state securities or "blue sky" laws and the securities laws of any
foreign country except where the failure to obtain such consent, approval,
order, authorization, registration or declaration and filings would reasonably
be expected not to have a Material Adverse Effect; and (vi) such other consents,
authorizations, filings, approvals and registrations which if not obtained or
made would materially affect the Company or the Parent or materially adversely
affect the ability of the parties hereto to consummate the Merger within the
time frame in which the Merger would otherwise be consummated in the absence of
the need for such consent, approval, order, authorization, registration,
declaration or filings. The consents, approvals, orders, authorizations,
registrations, declarations and filings set forth in (i) through (vi) are
referred to herein as the "Necessary Consents".
SECTION 3.4 SEC Filings; Financial Statements.
(a) SEC Filings. The Company has filed all required registration
statements, prospectuses, reports, schedules, forms, statements and other
documents (including exhibits and all other information incorporated by
reference) required to be filed by it with the SEC since December 31, 2000. The
Company has delivered or
12
made available to the Parent all such registration statements, prospectuses,
reports, schedules, forms, statements and other documents in the form filed with
the SEC. All such required registration statements, prospectuses, reports,
schedules, forms, statements and other documents (including those that the
Company may file subsequent to the date hereof), as amended, are referred to
herein as the "Company SEC Reports". As of their respective dates, the Company
SEC Reports (i) were prepared in accordance and complied in all material
respects with the requirements of the Securities Act of 1933, as amended (the
"Securities Act"), or the Exchange Act, as the case may be, the Xxxxxxxx-Xxxxx
Act of 2002 and the rules and regulations of the SEC thereunder applicable to
such Company SEC Reports and (ii) did not at the time they were filed (or if
amended or superseded by a filing prior to the date of this Agreement, then on
the date of such filing) contain any untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading, except to the extent corrected prior to the date
hereof by a subsequently filed Company SEC Report. None of the Company's
Subsidiaries is required to file any forms, reports or other documents with the
SEC. Notwithstanding the foregoing, the Company makes no representation or
warranty with respect to information supplied by or on behalf of Parent, the
Merger Sub, CACI International, Inc., CACI, INC. -- FEDERAL or Dagger
Acquisition Corporation which is contained in any of the foregoing documents, or
which any of such Persons failed to supply.
(b) Financial Statements. Each of the consolidated financial statements
(including, in each case, any related notes thereto) contained in the Company
SEC Reports, including each Company SEC Report filed after the date hereof until
the Closing (the "Company Financials"): (i) complied as to form in all material
respects with the published rules and regulations of the SEC with respect
thereto; (ii) was prepared in accordance with United States generally accepted
accounting principles ("GAAP") applied on a consistent basis throughout the
periods involved (except as may be indicated in the notes thereto or, in the
case of unaudited interim financial statements, as may be permitted by the SEC
on Form 10-Q, 8-K or any successor form under the Exchange Act); and (iii)
fairly presented in all material respects the consolidated financial position of
the Company and its consolidated Subsidiaries as at the respective dates thereof
and the consolidated results of the Company's operations and cash flows for the
periods indicated. The balance sheet of the Company contained in the draft of
the Company's Form 10-K for the year ended December 31, 2003 provided by the
Company as of December 31, 2003 is hereinafter referred to as the "Company
Balance Sheet," which shall be in all material respects consistent with the
Company's balance sheet included in the Form 10-K to be filed by the Company
after the date hereof (but for changes related to the announcement of the
Agreement). Since the date of the Company Balance Sheet, neither the Company nor
any of its Subsidiaries has incurred any liabilities (absolute, accrued,
contingent or otherwise) required under GAAP to be set forth on a consolidated
balance sheet which, individually or in the aggregate, would reasonably be
expected to have a Material Adverse Effect on the Company other than (i) as set
forth on Schedule 3.4(b) of the Disclosure Schedule or (ii) as incurred in the
ordinary course of the Company's business consistent with past practice.
(c) The Company has heretofore furnished to the Parent and the Merger Sub a
complete and correct copy of any amendments or modifications, which have not yet
been filed with the SEC but which are required to be filed, to agreements,
documents or other instruments which previously had been filed by the Company
with the SEC pursuant to the Securities Act or the Exchange Act. All public
announcements in a news release issued by the Dow Xxxxx News Service, PR
Newswire or any equivalent service made by the Company since the date of the
Company Balance Sheet did not and will not contain any untrue statement of a
material fact or omit to state a material fact or disclose any matter or
proceeding 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. Notwithstanding the foregoing, the Company makes no
representation or warranty with respect to information supplied by or on behalf
of Parent, the Merger Sub, CACI International, Inc., CACI, INC. -- FEDERAL or
Dagger Acquisition Corporation which is contained in any of the foregoing
documents, or which any of such Persons failed to supply.
13
(d) Section 3.4(d) of the Company Disclosure Schedule sets forth a complete
list of all effective registration statements applicable to the Company's
capital stock filed on Form S-3 or Form S-8 or otherwise relying on Rule 415
under the Securities Act.
(e) The Company has established and maintains disclosure controls and
procedures (as defined in Rules 13a-15 and 15d-15 promulgated under the Exchange
Act) and internal controls over financial reporting (as defined in Rules 13a-15
and 15d-15 promulgated under the Exchange Act) intended to ensure that material
information relating to the Company, including its consolidated Subsidiaries, is
made known to the Chief Executive Officer and Chief Financial Officer. To the
Knowledge of the Company, there are no significant deficiencies or material
weaknesses in the design or operation of the Company's internal controls which
could adversely affect the Company's ability to record, process, summarize and
report financial data. To the Knowledge of the Company, there is no fraud,
whether or not material, that involves management or other employees who have a
significant role in the Company's internal controls.
SECTION 3.5 Absence of Certain Changes or Events. Since the date of the
Company Balance Sheet, the Company and each of its Subsidiaries have conducted
their businesses in the ordinary course consistent with past practice and, since
such date, there has not been (a) an event or development which, individually or
in the aggregate, would reasonably be expected to have a Material Adverse Effect
on the Company or (b) any event or development which, individually or in the
aggregate, would reasonably be expected to prevent or materially delay the
performance of this Agreement by the Company.
SECTION 3.6 Brokers' and Finders' Fees. Except for fees payable to
Xxxxxxx, Xxxxx & Co. pursuant to an engagement letter dated January 14, 2004, a
copy of which has been provided to the Parent, the Company has not incurred, nor
will it incur, directly or indirectly, any liability for brokerage or finders'
fees or agents' commissions or any similar charges in connection with this
Agreement or any transaction contemplated hereby.
SECTION 3.7 Disclosure. Neither the Proxy/Information Statement, the
Schedule 14D-9 nor any information supplied by the Company for inclusion in the
Offer Documents will, at the respective times the Proxy/Information Statement,
the Schedule 14D-9, the Offer Documents or any amendments or supplements thereto
are filed with the SEC or are first published, sent or given to the Company's
stockholders, as the case may be, 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 made therein, in the light of the
circumstances under which they are made, not misleading. The Proxy/Information
Statement and the Schedule 14D-9, will, when filed by the Company with the SEC,
comply as to form in all material respects with the applicable provisions of the
Exchange Act. Notwithstanding the foregoing, the Company makes no representation
or warranty with respect to information supplied by or on behalf of Parent, the
Merger Sub, CACI International, Inc., CACI, INC. -- FEDERAL or Dagger
Acquisition Corporation which is contained in any of the foregoing documents, or
which any of such Persons failed to supply.
SECTION 3.8 Fairness Opinion. The Company's Board of Directors has
received the opinion of Xxxxxxx, Sachs & Co., dated as of the date hereof, to
the effect that, as of such date, the cash consideration to be received by the
Company's stockholders pursuant to the Offer and the Merger is fair from a
financial point of view to such stockholders, and has (or promptly upon receipt
of a written copy thereof will have) delivered to the Parent a copy of such
opinion.
SECTION 3.9 Takeover Statutes. The Board of Directors of the Company has
taken all necessary action so that the restrictions on business combinations
contained in Section 203 of the DGCL that otherwise could be applicable to the
Parent, and any other similar Legal Requirement, will not apply to the
execution, delivery or performance of this Agreement and the consummation of the
Offer and the Merger and the other transactions contemplated hereby.
SECTION 3.10 Absence of Questionable Payments. Neither the Company nor
any of its Subsidiaries nor any director, officer, agent, employee or other
person acting on behalf of the Company or any of its Subsidiaries, has used any
Company funds for unlawful contributions, payments, gifts, or entertainment, or
made any unlawful expenditures relating to political activity to government
officials or others or established or
14
maintained any unlawful or unrecorded funds in violation of Section 30A of the
Exchange Act. Neither the Company nor any Subsidiary of the Company nor any
current director, officer, agent, employee or other person acting on behalf of
the Company or any Subsidiary of the Company, has, when acting in such capacity,
accepted or received any unlawful contributions, payments, gifts, or
expenditures. The Company is in compliance with the provisions of Section 13(b)
of the Exchange Act.
SECTION 3.11 Rights Agreement. The Company has amended the Rights
Agreement and has taken and will maintain in effect all further necessary action
(a) to prevent any Right issued or issuable under the Rights Agreement from
becoming exercisable by virtue of this Agreement, the Stockholder Tender and
Voting Agreement, the Offer, the Merger and the other Transactions and (b) to
ensure that (i) neither the Parent nor the Merger Sub nor any of their
"Affiliates" (as defined in the Rights Agreement) or "Associates" (as defined in
the Rights Agreement) is considered to be an "Acquiring Person" (as defined in
the Rights Agreement) by virtue of this Agreement, the Stockholder Tender and
Voting Agreement, the Offer, the Merger and the other Transactions; and (ii) the
provisions of the Rights Agreement, including the occurrence of a Distribution
Date (as defined in the Rights Agreement), are not and shall not be triggered by
reason of the announcement or consummation of the Offer, the Merger, the
execution of this Agreement, or the Stockholder Tender and Voting Agreement. The
Company has made available to the Parent a complete and correct copy of the
Rights Agreement as amended and supplemented to the date of this Agreement.
SECTION 3.12 Representations Complete. The representations or warranties
made by the Company herein, including the Company Disclosure Schedule, when such
representations and warranties and the Company Disclosure Schedule are read
together in their entirety with the Company SEC Reports, do not contain any
untrue statement of a material fact, or omit to state any material fact
necessary in order to make the statements contained herein or therein, in the
light of the circumstances under which made, not misleading.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF
PARENT AND MERGER SUB
The Parent and the Merger Sub represent and warrant to the Company as set
forth below, subject to the exceptions disclosed in writing in the disclosure
schedules supplied by the Parent and the Merger Sub to the Company, dated as of
the date hereof, and certified by a duly authorized officer of each of the
Parent and the Merger Sub (the "Parent Disclosure Schedule"). For purposes of
the representations and warranties of the Parent and the Merger Sub contained
herein, each exception set forth in the Parent Disclosure Schedule and each
other response to this Agreement set forth in the Parent Disclosure Schedule is
identified by reference to, or has been grouped under a heading referring to, a
specific individual section of this Agreement, and disclosure in any section of
the Parent Disclosure Schedule of any facts or circumstances shall be deemed to
be adequate response and disclosure of such facts or circumstances with respect
to all representations and warranties by the Parent and the Merger Sub calling
for disclosure of such information if it is reasonably apparent on the face of
the Parent Disclosure Schedules that such disclosure is applicable; provided,
however, that the Parent and Merger Sub represent and warrant that they have
made a good faith effort to include specific cross-references to other portions
thereof where applicable. The inclusion of any information in any section of the
Parent Disclosure Schedule or other document delivered by the Parent and the
Merger Sub pursuant to this Agreement shall not be deemed to be an admission or
evidence of the materiality of such item, nor shall it establish a standard of
materiality for any purpose whatsoever.
SECTION 4.1 Organization; Standing; Charter Documents; Subsidiaries.
(a) Organization; Standing and Power. Each of the Parent and the Merger
Sub is a corporation duly organized, validly existing and in good standing under
the laws of the jurisdiction of its incorporation, has the requisite power and
authority to own, lease and operate its properties and to carry on its business
as now being conducted, except where the failure to be so organized, existing
and in good standing would not reasonably be expected to have a Material Adverse
Effect on the Parent or the Merger Sub, as the case may be, and is duly
15
qualified and in good standing to do business in each jurisdiction in which the
nature of its business or the ownership or leasing of its properties makes such
qualification necessary other than in such jurisdictions where the failure to so
qualify or to be good standing, individually or in the aggregate, would not
reasonably be expected to have a Material Adverse Effect on the Parent or the
Merger Sub as the case may be.
(b) Charter Documents. The Parent has delivered or made available to the
Company (i) a true and correct copy of the Articles of Incorporation (including
any certificate of designations) and Bylaws of the Parent, each as amended to
date (collectively, the "Parent Charter Documents") and (ii) the Subsidiary
Charter Documents of the Merger Sub, and each such instrument is in full force
and effect. The Parent is not in violation of any of the provisions of the
Parent Charter Documents and the Merger Sub is not in violation of its
Subsidiary Charter Documents.
(c) Merger Sub. Except as contemplated by this Agreement, the Merger Sub
does not hold, nor has it held, any material assets or incurred any material
liabilities nor has the Merger Sub carried on any business activities other than
in connection with the Merger and the transactions contemplated by this
Agreement.
SECTION 4.2 Authority; Non-Contravention; Necessary Consents.
(a) Authority. Each of the Parent and the Merger Sub has all requisite
corporate power and authority to enter into this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby has been duly
authorized by all necessary corporate action on the part of the Parent and the
Merger Sub and no other corporate proceedings on the part of the Parent or the
Merger Sub are necessary to authorize the execution and delivery of this
Agreement or to consummate the Offer or the Merger and the other transactions
contemplated hereby, subject to the filing of the Certificate of Merger pursuant
to the DGCL and the adoption of this Agreement by the Parent as the sole
stockholder of the Merger Sub. This Agreement has been duly executed and
delivered by the Parent and the Merger Sub and, assuming due execution and
delivery by the Company, constitutes the valid and binding obligation of the
Parent and the Merger Sub, enforceable against each of the Parent and the Merger
Sub in accordance with its terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity principles.
(b) Non-Contravention. The execution and delivery of this Agreement by the
Parent and the Merger Sub does not, and performance of this Agreement by the
Parent and the Merger Sub will not: (i) conflict with or violate the Parent
Charter Documents or the Certificate of Incorporation or Bylaws of the Merger
Sub or (ii) conflict with or violate any material Legal Requirement applicable
to the Parent or the Merger Sub or by which the Parent or the Merger Sub or any
of their respective properties is bound or affected.
(c) Necessary Consents. No consent, approval, order or authorization of,
or registration, declaration or filing with any Governmental Entity is required
to be obtained or made by the Parent or the Merger Sub in connection with the
execution and delivery of this Agreement or the consummation of the Offer, the
Merger and other transactions contemplated hereby, except for (i) the Necessary
Consents and (ii) such other consents, authorizations, filings, approvals and
registrations which if not obtained or made would not be material to the Parent,
the Merger Sub or the Company or materially adversely affect the ability of the
parties hereto to consummate the Offer or the Merger within the time frame in
which the Offer or the Merger would otherwise be consummated in the absence of
the need for such consent, approval, order, authorization, registration,
declaration or filings.
SECTION 4.3 Disclosure. None of the information supplied by the Parent or
the Merger Sub for inclusion in the Proxy/Information Statement, the Proxy
Statement or the Schedule 14D-9 will, at the date mailed to the Company's
stockholders and at the time of the Company Stockholders' Meeting, contain any
untrue statement of a material fact or omit to state any material fact required
to be stated in the Proxy/ Information Statement or necessary in order to make
the statements in the Proxy/Information Statement, in light of the circumstances
under which they are made, not misleading. The Schedule TO, the Offer Documents
and any information supplied by the Parent or the Merger Sub for inclusion in
the Schedule 14D-9 will not, at the respective times the Schedule TO, the Offer
Documents, the Schedule 14D-9 or any
16
amendments or supplements thereto are filed with the SEC or are first published,
sent or given to the Company's stockholders, as the case may be, contain any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary in order to make the statements therein, in
the light of the circumstances under which they are made, not misleading. The
Schedule TO will, when filed by the Parent with the SEC, comply as to form in
all material aspects with the applicable provisions of the Exchange Act.
Notwithstanding the foregoing, the Parent makes no representation or
warranty with respect to information supplied by or on behalf of the Company,
which is contained in any of the foregoing documents, or which the Company
failed to supply.
SECTION 4.4 Sufficient Funds. Following the consummation of the sale of
the Company's Defense and Intelligence Division (as defined in Section 6.4(e))
and the loan of the gross Purchase Price (as defined in Section 2.4 of the DIG
Purchase Agreement) paid upon such consummation (the "DIG Gross Proceeds") from
the Company to Parent pursuant to Section 6.10 hereof, the Merger Sub will have
sufficient cash available to pay for the Shares that the Merger Sub becomes
obligated to accept for payment and pay for pursuant to the Offer and to pay the
aggregate Merger Consideration pursuant to the Merger and to otherwise
consummate the transactions contemplated herein or in the Offer Documents.
ARTICLE V
CONDUCT PRIOR TO THE EFFECTIVE TIME
SECTION 5.1 Conduct of Business by the Company.
(a) Ordinary Course. During the period from the date hereof and continuing
until the earlier of (x) the termination of this Agreement pursuant to its
terms, and (y) the Effective Time, the Company shall, and shall cause each of
its Subsidiaries to, except as otherwise expressly contemplated by this
Agreement or to the extent that the Parent shall otherwise consent in writing
(which consent shall not be unreasonably withheld, conditioned or delayed),
carry on its business in the usual, regular and ordinary course, in
substantially the same manner as heretofore conducted, and use all commercially
reasonable efforts consistent with past practices and policies to (i) preserve
intact its present business organization and workforce; and (ii) preserve its
relationships with customers, suppliers, licensors, licensees, and others with
which it has business dealings.
(b) Required Consent. In addition, without limiting the generality of
Section 5.1(a), except as permitted by the terms of this Agreement or the DIG
Purchase Agreement, and except as provided in Section 5.1 of the Company
Disclosure Schedule, without the prior written consent of the Parent (which
consent shall not be unreasonably withheld, conditioned or delayed), during the
period from the date hereof and continuing until the earlier of (x) the
termination of this Agreement pursuant to its terms, and (y) the Effective Time,
the Company shall not do, and shall not permit its Subsidiaries to do, any of
the following:
(i) Enter into any new line of business material to it and its
Subsidiaries taken as a whole;
(ii) Declare, set aside or pay any dividends on or make any other
distributions (whether in cash, stock, equity securities or property) in
respect of any capital stock or split, combine or reclassify any capital
stock or issue or authorize the issuance of any other securities in respect
of, in lieu of or in substitution for any capital stock (other than
dividends or distributions paid by wholly-owned Subsidiaries of the Company
to the Company or to other wholly-owned Subsidiaries of the Company);
(iii) Purchase, redeem or otherwise acquire, directly or indirectly,
any shares of its capital stock or the capital stock of its Subsidiaries,
except repurchases of unvested shares at cost in connection with the
termination of the employment relationship with any employee pursuant to
stock option or purchase agreements in effect on the date hereof or
pursuant to the Company Stock Option Plans or the terms of the Company
Options;
(iv) Issue, deliver, sell, authorize, pledge or otherwise encumber any
shares of capital stock, Voting Debt or any securities convertible into
shares of the Company's capital stock or Voting Debt, or
17
subscriptions, rights, warrants or options to acquire any shares of the
Company's capital stock or Voting Debt or any securities convertible into
shares of the Company's capital stock or Voting Debt, or enter into other
agreements or commitments of any character obligating it to issue any such
securities or rights, other than issuances of Company Common Stock upon the
vesting and/or exercise of Company Options and/or other awards under the
Company Stock Option Plans existing on the date hereof in accordance with
their terms (including cashless exercises) or issuances of Company Common
Stock pursuant to the Company Purchase Plan (together with, in each case,
Rights) as permitted in Section 6.7(c);
(v) Redeem the Rights or amend, waive any rights under or otherwise
modify or terminate the Rights Agreement in connection with an Acquisition
Proposal by any person other than the Parent or the Merger Sub or render
the Rights Agreement inapplicable to any Acquisition Proposal by any person
other than the Parent or the Merger Sub unless, and only to the extent
that, (A) the Company is required to do so by a court of competent
jurisdiction or (B) the Acquisition Proposal is a Superior Proposal;
(vi) Cause, permit or propose any amendments to its Charter Documents
or any of the Subsidiary Charter Documents of its Significant Subsidiaries;
(vii) Acquire or agree to acquire by merging or consolidating with, or
by purchasing any equity interest in or a portion of the assets of, or by
any other manner, any business or any Person or division thereof, or
otherwise acquire or agree to acquire any assets which are material,
individually or in the aggregate, to its business;
(viii) Enter into any joint ventures, strategic partnerships, teaming
arrangement or alliances other than in the ordinary course of business
consistent with past practice;
(ix) Sell, pledge, dispose of, transfer, lease, license, or encumber,
or authorize the sale, pledge, disposition, transfer, lease, license, or
encumbrance of, any material property or assets of the Company or its
Subsidiaries, taken as a whole, except sales, pledges, dispositions,
transfers, leases, licenses or encumbrances pursuant to existing Contracts
which have been made available to the Parent prior to the date hereof;
(x) Make any loans, advances or capital contributions to, or
investments in, any other Person, other than (A) loans or investments by
the Company or one of its Subsidiaries to or in the Company or one of its
wholly-owned Subsidiaries, (B) the DIG Proceeds Loan pursuant to Section
6.10 hereof and (C) loans, advances, capital contributions or investments
in excess of One Million Dollars ($1,000,000) in any joint venture,
strategic partnership or alliance permitted pursuant to Section
5.1(b)(viii);
(xi) Except as required by GAAP or the SEC as concurred in by its
independent auditors, make any material change in its methods or principles
of accounting;
(xii) Make or change any material tax election;
(xiii) Settle any material claim (including any tax claim), action or
proceeding involving money damages, except (A) in the ordinary course of
business consistent with past practice or (B) to the extent subject to
reserves existing as of the date hereof in accordance with GAAP;
(xiv) Except as required by Legal Requirements, Contracts binding on
the Company or its Subsidiaries, or in the usual, regular and ordinary
course of business, in substantially the same manner as heretofore
conducted, and consistent with past practices and policies: (1) increase in
any manner the amount of compensation or fringe benefits of, pay any bonus
to or xxxxx xxxxxxxxx or termination pay to, any executive officer or
director of the Company or any of its Subsidiaries or materially increase
the foregoing with respect to employees of the Company and its Subsidiaries
generally; (2) increase or make any commitment to increase, the benefits
provided under any employee benefit plan (including any severance plan) of
the Company (each, a "Company Plan"), or adopt or amend, or make any
commitment to adopt or amend, any Company Plan or make any contribution,
other than regularly scheduled contributions, to any Company Plan; (3)
waive any stock repurchase rights, accelerate, amend or change the period
of exercisability of the Company Options or restricted stock, or reprice
any Company Options or authorize cash payments in exchange for any Company
Options; (4) enter into any
18
employment, severance, termination or indemnification agreement with any
Company employee; (5) make any material written representation or
commitment with respect to any material aspect of any Company Plan that is
binding and not materially in accordance with the existing written terms
and provisions of such Company Benefit Plan; (6) grant any stock
appreciation right, phantom stock award, stock-related award or performance
award (whether payable in cash, shares or otherwise) to any Person
(including any Company employee); or (7) enter into any agreement with any
Company employee the benefits of which are (in whole or in part) contingent
or the terms of which are materially altered upon the occurrence of a
transaction involving the Company of the nature contemplated hereby;
(xv) Subject the Parent or the Surviving Corporation or any of their
respective Subsidiaries to any non-compete or other material restriction on
any of their respective businesses following the Closing;
(xvi) Enter into any agreement or commitment the effect of which would
be to grant to a third party following the Merger any actual or potential
right of license to any material intellectual property owned by the Parent
or any of its Subsidiaries except for such agreements or commitments
entered into in the ordinary course of business consistent with past
practice or pursuant to any joint venture, strategic partnership, teaming
arrangement or alliance permitted pursuant to Section 5.1(b)(viii);
(xvii) Enter into, modify or amend in a manner adverse to such party,
or terminate any Company Material Contract or waive, release or assign any
rights or claims thereunder, in each case, in a manner adverse to such
party, other than any modification, amendment or termination of any such
Company Material Contract in the ordinary course of business consistent
with past practice;
(xviii) (i) Incur any indebtedness for borrowed money or guarantee any
such indebtedness of another Person, issue or sell any debt securities or
options, warrants, calls or other rights to acquire any debt securities of
it, guarantee any debt securities of another Person, enter into any "keep
well" or other agreement to maintain any financial statement condition of
any other Person (other than any wholly-owned Subsidiary of the Company) or
enter into any arrangement having the economic effect of any of the
foregoing (collectively, "Indebtedness"), except for Indebtedness for
borrowed money under the Company's existing credit facilities, or (ii) make
or authorize any capital expenditure materially in excess of the Company's
budget as disclosed to the Parent prior to the date hereof;
(xix) Except with respect to an Acquisition Proposal subject to
Section 6.1, take any action to render inapplicable, or to exempt any third
party from any state takeover law or state law that purports to limit or
restrict business combinations or the ability to acquire or vote shares; or
(xx) Agree in writing or otherwise to take any of the actions
described in (i) through (xviii) above.
ARTICLE VI
ADDITIONAL AGREEMENTS
SECTION 6.1 Acquisition Proposals.
(a) No Solicitation. The Company agrees that neither it nor any of its
Subsidiaries nor any of their respective officers, directors, advisors, agents,
accountants, consultants, employees, investment bankers and legal counsel
(collectively, "Representatives") shall directly or indirectly: (i) solicit,
initiate, or knowingly encourage, facilitate or induce any inquiry with respect
to, or the making, submission or announcement of, any Acquisition Proposal (as
defined in Section 6.1(g)(i)); (ii) participate in any discussions or
negotiations regarding, or furnish to any Person any nonpublic information with
respect to, or take any other action to facilitate any inquiries or the making
of any proposal that constitutes or may reasonably be expected to lead to, any
Acquisition Proposal; (iii) engage in discussions with any Person with respect
to any Acquisition Proposal, except as to the existence of these provisions;
(iv) approve, endorse or recommend any Acquisition Proposal (except to the
extent specifically permitted pursuant to Section 6.1(e)); or (v) enter into any
letter of intent or similar document or any contract agreement or commitment
contemplating or otherwise relating to any Acquisition Proposal or any
transaction contemplated thereby. The Company shall immediately terminate, and
shall cause each of its Subsidiaries and its and their Representatives to
immediately terminate, all
19
activities, discussions or negotiations, if any, with any third party with
respect to, or any that could reasonably be expected to lead to or contemplate
the possibility of, an Acquisition Proposal. The Company shall promptly request
that each person which has heretofore executed a confidentiality agreement with
the Company or any of its affiliates or Subsidiaries or any of its or their
Representatives with respect to such Person's consideration of a possible
Acquisition Proposal to promptly return or destroy (which destruction the
Company shall request be certified in writing by such person) all confidential
information heretofore furnished by the Company or any of its affiliates or
Subsidiaries or any of its or their Representatives to such person or any of its
affiliates or Subsidiaries or any of its or their Representatives.
(b) Notification Of Unsolicited Acquisition Proposals.
(i) As promptly as practicable after receipt of any Acquisition Proposal or
any request for nonpublic information or inquiry which it reasonably believes
could lead to an Acquisition Proposal, the Company shall provide the Parent with
oral and written notice of the material terms and conditions of such Acquisition
Proposal, request or inquiry, and the identity of the Person or group making any
such Acquisition Proposal, request or inquiry and a copy of all written
materials provided in connection with such Acquisition Proposal, request or
inquiry. The Company shall provide the Parent as promptly as practicable oral
and written notice setting forth all such information as is reasonably necessary
to keep the Parent informed in all material respects of the status and details
(including material amendments or proposed material amendments) of any such
Acquisition Proposal, request or inquiry and shall promptly provide to Parent
copies of any contracts, term sheets, letters of intent or other comparable
materials providing for the terms of the Acquisition Proposal received from the
Person or group making the Acquisition Proposal (including any amendments
thereto).
(ii) The Company shall provide the Parent with 48 hours prior notice (or
such lesser prior notice as is provided to the members of its Board of
Directors) of any meeting of its Board of Directors at which its Board of
Directors is reasonably expected to discuss or consider any Acquisition
Proposal.
(c) Superior Offers. Notwithstanding anything to the contrary contained in
Section 6.1(a), prior to the acceptance for payment and payment for Shares by
the Merger Sub in the Offer, in the event that the Company receives an
unsolicited, bona fide written Acquisition Proposal from a third party that its
Board of Directors has in good faith concluded (following consultation with its
outside legal counsel and its financial advisor), is, or is reasonably likely to
result in, a Superior Offer (as defined in Section 6.1(g)(ii)), it may then take
the following actions (but only (A) if and to the extent that its Board of
Directors concludes in good faith, following consultation with its outside legal
counsel, that it is reasonably likely that the failure to do so would result in
a breach of its fiduciary obligations under applicable Legal Requirements and
(B) after the Company has given written notice ("Superior Offer Notice") to the
Parent that expressly states (1) that it has received a bona fide, written
Acquisition Proposal from a third party that the Company's Board of Directors
has in good faith concluded (following consultation with its outside legal
counsel and its financial advisor), is, or is reasonably likely to result in, a
Superior Offer; (2) that the Company's Board of Directors has concluded in good
faith, following consultation with its outside legal counsel, that the failure
to take such action would be reasonably likely to result in a breach of its
fiduciary obligations under applicable Legal Requirements; (3) the identity of
the third party making such Acquisition Proposal and the material terms and
conditions of such Acquisition Proposal; and (4) the nature of the action that
the Company intends to take):
(i) Furnish nonpublic information to the third party making such
Acquisition Proposal, provided that (A) it receives from the third party an
executed confidentiality agreement containing customary limitations on the
use and disclosure of all nonpublic written and oral information furnished
to such third party on its behalf, the terms of which are at least as
restrictive as the terms contained in the Confidentiality Agreement (as
defined in Section 6.2(a)) and (B) contemporaneously with furnishing any
such nonpublic information to such third party, it furnishes such nonpublic
information to the Parent (to the extent such nonpublic information has not
been previously made available to Parent);
(ii) Engage in negotiations with the third party with respect to the
Acquisition Proposal; and
(iii) Subject to compliance with Section 6.1(d), enter into definitive
agreements with respect to such Acquisition Proposal and terminate this
Agreement pursuant to Section 8.1(h) hereof.
20
(d) For a period of not less than three Business Days after the Parent's
receipt from the Company of each Superior Offer Notice, the Company shall, if
requested by the Parent, negotiate in good faith with the Parent to revise this
Agreement so that the Acquisition Proposal that constituted a Superior Offer no
longer constitutes a Superior Offer.
(e) Changes of Recommendation. Neither the Company's Board of Directors
nor any committee thereof shall withdraw, modify or change, or propose publicly
to withdraw, modify or change, in a manner adverse to the Parent or to the
Merger Sub, the Company Board of Director's recommendation that the stockholders
of the Company accept the Offer, tender their Shares to the Merger Sub
thereunder and, if required by Legal Requirements, adopt this Agreement and the
Merger. Notwithstanding the foregoing, (A) in response to the receipt of a
Superior Offer that has not been withdrawn and continues to constitute a
Superior Offer after the Company's compliance with Section 6.1(d), the Board of
Directors of the Company may withhold, change or withdraw its recommendation
that the stockholders of the Company accept the Offer, tender their Shares to
the Merger Sub thereunder and, if required by Legal Requirements, adopt this
Agreement and the Merger; (B) in the case of a Superior Offer that is a tender
or exchange offer made directly to its stockholders, may recommend that its
stockholders accept the tender or exchange offer; and (C) to the extent that the
Company's Board of Directors concludes in good faith (following consultation
with outside legal counsel) that the failure to take such action would be
reasonably likely to result in a breach of its fiduciary obligations under
applicable Legal Requirements, the Board of Directors of the Company may
withhold, change or withdraw its recommendation that the stockholders of the
Company accept the Offer, tender their Shares to the Merger Sub thereunder and,
if required by the Legal Requirements, adopt this Agreement and the Merger (any
of the foregoing actions in (A), (B) or (C), whether by a Board of Directors or
a committee thereof, a "Change of Company Recommendation"). In the case of (A)
or (B), all of the following conditions in clauses (i) through (iv) shall be
met:
(i) the Merger Sub shall not yet have accepted for payment and paid
for the Shares pursuant to the Offer;
(ii) it shall have provided to the Parent written notice which shall
state expressly (1) that it has received a Superior Offer; (2) the material
terms and conditions of the Superior Offer and the identity of the Person
or group making the Superior Offer; and (3) that it intends to effect a
Change of Company Recommendation and the manner in which it intends to do
so;
(iii) the Company Board of Directors has concluded in good faith,
after consultation with its outside legal counsel and its financial
advisors, that, in light of such Superior Offer, the failure of the Company
Board of Directors to effect a Change of Company Recommendation would be
reasonably likely to result in a breach of its fiduciary obligations to its
stockholders under applicable Legal Requirements; and
(iv) it shall not have breached in any material respect any of the
provisions set forth in this Section 6.1.
(f) Compliance with Tender Offer Rules. Nothing contained in this
Agreement shall prohibit the Company or the Company Board of Directors, in
connection with a tender or exchange offer for the Company's outstanding
securities by a third party, from taking and disclosing to its stockholders a
position contemplated by Rules 14d-9 and 14e-2(a) promulgated under the Exchange
Act or making any disclosure to the Company's stockholders if the Company's
Board of Directors has concluded in good faith, after consultation with its
outside legal counsel, that the failure to do so would be inconsistent with
applicable Legal Requirements; provided that the content of any such disclosure
thereunder shall be governed by the terms of this Agreement. Without limiting
the foregoing proviso, the Company shall not effect a Change of Company
Recommendation unless specifically permitted pursuant to the terms of Section
6.1(e); provided, however, that the Company shall not be required to provide
Parent or Merger Sub an opportunity to review in advance a Change of Company
Recommendation.
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(g) Certain Definitions. For purposes of this Agreement, the following
terms shall have the following meanings:
(i) "Acquisition Proposal", with respect to the Company, shall mean
any offer or proposal, relating to any transaction or series of related
transactions involving: (A) any purchase from the Company or acquisition by
any Person or "group" (as defined under Section 13(d) of the Exchange Act)
of more than a 15% interest in the total outstanding voting securities of
the Company or any of its Subsidiaries or any tender or exchange offer that
if consummated would result in any Person or group beneficially owning 15%
or more of the total outstanding voting securities of the Company or any of
its Subsidiaries or any merger, consolidation, business combination or
similar transaction involving the Company or any of its Subsidiaries, (B)
any sale, lease (other than in the ordinary course of business), exchange,
transfer, license (other than in the ordinary course of business),
acquisition or other disposition (including by way of merger, consolidation
or exchange), in a single transaction or series of related transactions, of
the assets of the Company or any Subsidiary constituting 15% or more of the
consolidated assets of the Company or accounting for 15% or more of the
consolidated revenues of the Company (including its Subsidiaries taken as a
whole), or (C) any liquidation or dissolution of the Company; and
(ii) "Superior Offer," with respect to the Company, shall mean an
unsolicited, bona fide written offer made by a third party to acquire,
directly or indirectly, pursuant to a tender or exchange offer, merger,
consolidation or other business combination, (i) all or substantially all
of the assets of the Company, or (ii) a majority of the total outstanding
voting securities of the Company and as a result of which the stockholders
of the Company immediately preceding such transaction would hold less than
50% of the equity interests in the surviving or resulting entity of such
transaction or any direct or indirect parent or subsidiary thereof or (iii)
all or substantially all of the assets of the Company that are to be
acquired by a subsidiary of CACI International, Inc., pursuant to the DIG
Purchase Agreement, on terms that the Board of Directors of the Company has
in good faith concluded (following consultation with its outside legal
counsel and its financial adviser), taking into account, among other
things, all legal, financial, regulatory and other aspects of the offer and
the Person making the offer, to be more favorable, from a financial point
of view, to the Company's stockholders (in their capacities as
stockholders) than the terms of the Offer and the Merger.
SECTION 6.2 Confidentiality; Access to Information; No Modification of
Representations, Warranties or Covenants.
(a) Confidentiality. The parties acknowledge that the Company and the
Parent have previously executed a Confidentiality Agreement dated October 3,
2003, as since amended (the "Confidentiality Agreement"), which Confidentiality
Agreement will continue in full force and effect in accordance with its terms
and each of the Parent and the Company will hold, and will cause its respective
Representatives to hold, any Evaluation Material (as defined in the
Confidentiality Agreement) confidential in accordance with the terms of the
Confidentiality Agreement.
(b) Access to Information. The Company will afford the Parent and the
Merger Sub and each of their Representatives reasonable access during normal
business hours to each of the Company's and its Subsidiaries' properties, books,
records and personnel during the period prior to the Effective Time to obtain
all information concerning its business, including the status of product
development efforts, properties, results of operations and personnel, as the
Parent or the Merger Sub may reasonably request, and, during such period, upon
request by the Parent or the Merger Sub, the Company shall, and shall cause its
Subsidiaries to, furnish promptly to the Parent and the Merger Sub a copy of any
report, schedule, registration statement and other document filed by it during
such period pursuant to the requirements of federal or state securities laws.
(c) No Modification of Representations and Warranties or Covenants. No
information or knowledge obtained in any investigation or notification pursuant
to this Section 6.2, Section 6.4 or Section 6.5 shall affect or be deemed to
modify any representation or warranty contained herein, the covenants or
agreements of the parties hereto, the conditions to the obligations of the
parties or the remedies available to any of the parties under this Agreement.
22
SECTION 6.3 Public Disclosure. Without limiting any other provision of
this Agreement, the Parent and the Company will consult with each other before
issuing, and provide each other the opportunity to review, comment upon and
concur with, and use all reasonable efforts to agree on, any press release or
public statement with respect to this Agreement and the transactions
contemplated hereby, including the Offer, the Merger, and any Acquisition
Proposal and will not issue any such press release or make any such public
statement prior to such consultation and agreement, except as may be required by
applicable Legal Requirements or any listing agreement with the New York Stock
Exchange, NASDAQ or any other applicable national or regional securities
exchange. The parties have agreed to the text of the press releases announcing
the signing of this Agreement. Notwithstanding anything herein to the contrary,
this Section shall not apply to any press release or other public statement by
the Company relating to a Superior Offer or a Change of Company Recommendation.
SECTION 6.4 Regulatory Filings; Best Efforts.
(a) Regulatory Filings. Each of the Parent, the Merger Sub and the Company
shall coordinate and cooperate with one another and shall each use best efforts
to comply with, and shall each refrain from taking any action that would impede
compliance with, all Legal Requirements, and, as promptly as practicable after
the date hereof, each of the Parent, the Merger Sub and the Company shall make
all filings, notices, petitions, statements, registrations, submissions of
information, application or submission of other documents required by any
Governmental Entity in connection with the Offer and the Merger and the
transactions contemplated hereby, including, without limitation: (i)
Notification and Report Forms with the United States Federal Trade Commission
(the "FTC") and the Antitrust Division of the United States Department of
Justice ("DOJ") as required by the HSR Act, Joint Voluntary Notices with the
Committee on Foreign Investment in the United States ("CFIUS"), as may be deemed
appropriate under the Exon-Xxxxxx Amendment to the Defense Production Act; and
such other forms as are required under the competition laws of Germany; (ii) any
other filing or registration necessary to obtain any Necessary Consent; (iii)
filings under any other comparable pre-merger notification forms required by the
merger notification or control laws of any applicable jurisdiction, as agreed by
the parties hereto, and (iv) any filings required under the Securities Act, the
Exchange Act, any applicable state or securities or "blue sky" laws and the
securities laws of any foreign country, or any other Legal Requirement relating
to the Offer and the Merger. Each of the Parent and the Company will cause all
documents that it is responsible for filing with any Governmental Entity under
this Section 6.4(a) to comply in all material respects with all applicable Legal
Requirements.
(b) Exchange of Information. The Parent, the Merger Sub and the Company
each shall promptly supply the other with any information which may be required
in order to effectuate any filings or application pursuant to Section 6.4(a).
Except where prohibited by applicable Legal Requirements, and subject to the
Confidentiality Agreement, each of the Company and the Parent shall consult with
the other prior to taking a position with respect to any such filing, shall
permit the other to review and discuss in advance, and consider in good faith
the views of the other in connection with any analyses, appearances,
presentations, memoranda, briefs, white papers, arguments, opinions and
proposals before making or submitting any of the foregoing to any Governmental
Entity by or on behalf of any party hereto in connection with any investigations
or proceedings in connection with this Agreement or the transactions
contemplated hereby (including under any antitrust or fair trade Legal
Requirement), coordinate with the other in preparing and exchanging such
information and promptly provide the other (and its counsel) with copies of all
filings, presentations or submissions (and a summary of any oral presentations)
made by such party with any Governmental Entity in connection with this
Agreement or the transactions contemplated hereby, provided that with respect to
any such filing, presentation or submission, each of the Parent and the Company
need not supply the other (or its counsel) with copies (or in case of oral
presentations, a summary) to the extent that applicable Legal Requirements
require such party or its Subsidiaries to restrict or prohibit access to any
such properties or information.
(c) Notification. Each of the Parent, the Merger Sub and the Company will
notify the other promptly upon the receipt of: (i) any comments from any
officials of any Governmental Entity in connection with any filings made
pursuant hereto and (ii) any request by any officials of any Governmental Entity
for amendments or supplements to any filings made pursuant to, or information
provided to comply in all material respects
23
with, any applicable Legal Requirement. Whenever any event occurs that is
required to be set forth in an amendment or supplement to any filing made
pursuant to Section 6.4(a), the Parent, the Merger Sub or the Company, as the
case may be, will promptly inform the other of such occurrence and cooperate in
filing with the applicable Governmental Entity such amendment or supplement.
(d) Best Efforts. Each of the parties agrees to use best efforts to take,
or cause to be taken, all actions, and to do, or cause to be done, and to assist
and cooperate with the other parties in doing, all things necessary, proper or
advisable to consummate and make effective, in the most expeditious manner
practicable, the Merger and the other transactions contemplated by this
Agreement, including using best efforts to accomplish the following: (i) the
taking of all reasonable acts necessary to cause the Offer Conditions and the
conditions set forth in Article VII to be satisfied; (ii) the obtaining of all
necessary actions or nonactions, waivers, consents, approvals, orders and
authorizations from Governmental Entities and the making of all necessary
registrations, declarations and filings (including such declarations,
registrations, filings or agreements necessary to obtain the approval or consent
of the Defense Security Service required under NISPOM and other registrations,
declarations and filings with Governmental Entities, if any) and the taking of
all reasonable steps as may be necessary to avoid any suit, claim, action,
investigation or proceeding by any Governmental Entity; (iii) the obtaining of
all necessary consents, approvals or waivers from third parties, including all
Necessary Consents to the extent the failure to obtain any such consent,
approval or waiver would prevent or materially hinder, delay or impair any
party's ability to consummate the Offer or Merger or other transactions
contemplated hereby; (iv) the defending of any suits, claims, actions,
investigations or proceedings, whether judicial or administrative, challenging
this Agreement or the consummation of the transactions contemplated hereby,
including seeking to have any stay or temporary restraining order entered by any
court or other Governmental Entity vacated or reversed; and (v) the execution or
delivery of any additional instruments necessary to consummate the transactions
contemplated by, and to fully carry out the purposes of, this Agreement. In
connection with and without limiting the foregoing, the Company and its Board of
Directors shall, if any takeover statute or other Legal Requirement is or
becomes applicable to the Offer, the Merger, this Agreement or any of the
transactions contemplated by this Agreement, use all reasonable efforts to
ensure that the Merger and the other transactions contemplated by this Agreement
may be consummated as promptly as practicable on the terms contemplated by this
Agreement and otherwise to render inapplicable or minimize the effect of such
takeover statute or other Legal Requirement on the Merger, this Agreement and
the transactions contemplated hereby. For the avoidance of doubt, "best efforts"
shall require that each party make all reasonable expenditures necessary to meet
the obligations set forth above and to litigate, if necessary, to obtain the
Necessary Consents and consummate the transactions contemplated by this
Agreement.
(e) Limitation on Divestiture. Notwithstanding anything in this Agreement
to the contrary, nothing contained in this Agreement shall be deemed to require
the Parent or the Company or any Subsidiary or affiliate thereof to take or
agree to take any Action of Divestiture (as defined in this Section 6.4(e)). For
purposes of this Agreement, an "Action of Divestiture" shall mean making
proposals, executing or carrying out agreements or submitting to Legal
Requirements providing for the license, sale or other disposition or holding
separate (through the establishment of a trust or otherwise) of any assets or
categories of assets that are material to either: (i) the Parent and its
Subsidiaries, or (ii) the Company and its Subsidiaries, in each case taken as a
whole, or the holding separate of Company capital stock or imposing or seeking
to impose any limitation on the ability of the Parent, the Company or any of
their respective Subsidiaries, to conduct their respective businesses or own
such assets or to acquire, hold or exercise full rights of ownership of the
Company's business except to the extent not material to the Parent and its
Subsidiaries or, the Company and its Subsidiaries, in each case taken as a
whole; provided, however, that an Action of Divestiture shall not include the
sale of the Company's Defense and Intelligence Division (the "Defense and
Intelligence Division") pursuant to the DIG Purchase Agreement.
SECTION 6.5 Notification of Certain Matters.
(a) By the Company. The Company shall give prompt notice to the Parent and
the Merger Sub of any representation or warranty made by it contained in this
Agreement becoming untrue or inaccurate, or any failure of the Company to comply
with or satisfy in any material respect any covenant, condition or agreement to
be complied with or satisfied by it under this Agreement.
24
(b) By Parent. The Parent and the Merger Sub shall give prompt notice to
the Company of any representation or warranty made by it contained in this
Agreement becoming untrue or inaccurate, or any failure of the Parent to comply
with or satisfy in any material respect any covenant, condition or agreement to
be complied with or satisfied by it under this Agreement.
SECTION 6.6 Third-Party Consents. As soon as practicable following the
date hereof, the Parent and the Company will each use all reasonable efforts to
obtain any material consents, waivers and approvals under any of its or its
Subsidiaries' respective Contracts required to be obtained in connection with
the consummation of the transactions contemplated hereby.
SECTION 6.7 Equity Awards and Employee Benefits.
(a) Treatment of Stock Options. The Company shall use commercially
reasonable efforts to (i) cause each Company Option that is outstanding, whether
or not vested, immediately prior to the Effective Time, to, effective as of the
Effective Time, be cancelled in exchange for the right to receive a single lump
sum cash payment, to be paid by the Surviving Corporation to the holder of the
Company Option as soon as practicable following the Closing, equal to the
product of (A) the number of shares of Company Common Stock subject to such
Company Option, and (B) the excess, if any, of the Merger Consideration for a
share of Company Common Stock at the Effective Time over the exercise price per
share of such Company Option (the aggregate amount payable under this Section
6.7(a), the "Option Consideration"), and (ii) obtain a release or other
documentation executed by the holder of each such Company Option, reasonably
satisfactory to the Parent and the Surviving Corporation, evidencing the
cancellation of such Company Option. The parties agree that the Company may
amend the Company Stock Option Plans and any applicable agreements as the
Company deems necessary or appropriate to carry out the Company's obligations
under this Section 6.7(a). The Surviving Corporation shall be entitled to deduct
and withhold, or cause to be deducted or withheld, from the Option Consideration
such amounts as are required to be deducted and withheld with respect to the
making of such payment under any applicable Legal Requirement, and the final
sentence of Section 2.7(f) shall apply.
(b) Treatment of Stock Option Plans. Except as otherwise agreed to by the
parties, prior to the Effective Time, the Company shall use commercially
reasonable efforts to cause (i) the payments or conversions into the right to
receive cash set forth in Section 6.7(a) to extinguish all rights of
participants under the Company Stock Option Plans and (ii) following the
Effective Time such participant not to have any right thereunder to acquire
equity securities of the Company, the Surviving Corporation, the Parent or any
of their respective Subsidiaries.
(c) Termination of the Company Purchase Plans. The Company Purchase Plan
shall be terminated no later than the date of the expiration of the Offer, and
no shares shall be issued under the Company Purchase Plan after such date. The
Company agrees that no more than 70,000 shares of Company Common Stock shall be
issued under the Company Purchase Plan during the period beginning on the date
hereof and ending on the date of the expiration of the Offer.
(d) Treatment of Deferred Stock Units and Restricted Stock. The Company
shall use commercially reasonable efforts to cause (i) "Deferred Stock Units"
granted under the Company Stock Option Plans or any agreement between the
Company and a current or former employee of the Company and outstanding, whether
or not vested, immediately prior to the Effective Time to be cancelled as of the
Effective Time, and (ii) the restrictions on each share of restricted stock
granted under the Company Stock Option Plans or any agreement between the
Company and a current or former employee of the Company outstanding immediately
prior to the Effective Time ("Restricted Stock") to expire as of the Effective
Time, and the parties agree that each holder of Deferred Stock Units or
Restricted Stock shall be paid by the Surviving Corporation as soon as
practicable following the Closing a single lump sum cash payment equal to the
product of (A) the number of Deferred Stock Units or shares of Restricted Stock,
as the case may be, and (B) the Merger Consideration for a share of Company
Common Stock at the Effective Time. The parties further agree that the Company
may amend the Company Stock Option Plans and any applicable agreements as the
Company deems necessary or appropriate to carry out the Company's obligations
under this Section 6.7(d).
25
(e) Employee Communications. With respect to matters described in this
Agreement, the Company will consult with the Parent (and consider in good faith
the advice of the Parent) prior to sending any material written notices or other
materials to its employees.
(f) Change in Control. The Parent acknowledges that each employee listed
on Section 6.7(f) of the Company Disclosure Schedule shall, upon the
consummation of the Merger, be entitled to terminate employment with the Company
and its Affiliates and that any such termination shall be deemed a "constructive
termination" without Cause for purposes of the employment agreements or change
in control agreements applicable to each such employee.
SECTION 6.8 Indemnification.
(a) Indemnity. From and after the Effective Time, the Parent will, and
will cause the Surviving Corporation to, fulfill and honor in all respects the
obligations of the Company pursuant to any indemnification agreements between
the Company and any Covered Party (as hereinafter defined), subject to
applicable Legal Requirements.
(b) Insurance. For a period of six years after the Effective Time, the
Parent shall cause, or shall cause the Surviving Corporation to cause, to be
maintained in effect directors' and officers' liability insurance covering those
persons who are covered by the Company's directors' and officers' liability
insurance policy as of the date hereof on terms comparable to those applicable
under the Company's current directors' and officers' liability insurance
policy(ies) for a period of six years; provided, however, that in no event will
the Surviving Corporation be required to expend annually in excess of 200% of
the annual premium currently paid by the Company for such coverage (and to the
extent annual premium would exceed 200% of the annual premium currently paid by
the Company for such coverage, the Parent shall cause or shall cause the
Surviving Corporation to cause to be maintained the maximum amount of coverage
as is available for such 200% of such annual premium).
(c) Third-Party Beneficiaries. This Section 6.8 is intended to be for the
benefit of, and shall be enforceable by the Covered Parties and their heirs and
personal representatives and shall be binding on the Parent and the Surviving
Corporation and its successors and assigns. In the event the Parent or the
Surviving Corporation or its successor or assign (i) consolidates with or merges
into any other Person and shall not be the continuing or surviving corporation
or entity in such consolidation or merger or (ii) transfers all or substantially
all of its properties and assets to any Person, then, and in each case, proper
provision shall be made so that the successor and assign of the Parent or the
Surviving Corporation, as the case may be, honor the obligations set forth with
respect to the Parent or the Surviving Corporation, as the case may be, in this
Section 6.8.
(d) From the Effective Time through the sixth anniversary of the date on
which the Effective Time occurs, the Parent and the Surviving Corporation shall,
jointly and severally, indemnify and hold harmless each Person who is now, or
has been at any time prior to the date hereof, or who becomes prior to the
Effective Time, a director or officer of the Company or any of its subsidiaries
(the "Covered Parties"), against all claims, losses, liabilities, damages,
judgments, fines and reasonable fees, costs and expenses, including attorneys'
fees and disbursements (collectively, "Costs"), incurred in connection with any
claim, action, suit, proceeding or investigation, whether civil, criminal,
administrative or investigative, arising out of or pertaining to (i) the fact
that the Covered Party is or was an officer or director of the Company or any of
its subsidiaries, (ii) matters existing or occurring at or prior to the
Effective Time (including this Agreement, the DIG Proceeds Loan, the other
transactions and actions contemplated hereby, and all actions taken in
furtherance of any of the foregoing), whether asserted or claimed prior to, at
or after the Effective Time, to the fullest extent permitted under applicable
law. Each Covered Party will be entitled to advancement of expenses incurred in
the defense of any claim, action, suit, proceeding or investigation from the
Parent and the Surviving Corporation, jointly and severally, within ten Business
Days of receipt by the Parent from the Covered Party of a request therefor;
provided that any Person to whom expenses are advanced provides an undertaking,
to the extent required by the DGCL, to repay such advances if it is ultimately
determined that such Person is not entitled to indemnification.
26
(e) The certificate of incorporation and by-laws of the Surviving
Corporation shall contain provisions no less favorable with respect to
indemnification, advancement of expenses and exculpation of present and former
directors and officers of the Company and its subsidiaries than are presently
set forth in the certificate of incorporation and by-laws of the Company.
(f) Notwithstanding anything herein to the contrary, if any claim, action,
suit, proceeding or investigation (whether arising before, at or after the
Effective Time) is made against any Covered Party, on or prior to the sixth
anniversary of the Effective Time, the provisions of this Section 6.8 shall
continue in effect until the final disposition of such claim, action, suit,
proceeding or investigation.
SECTION 6.9 Conveyance Taxes. The Parent, the Merger Sub and the Company
shall cooperate in the preparation, execution and filing of all returns,
questionnaires, applications or other documents regarding any sales, use,
transfer, value added, stock transfer or stamp taxes, any transfer, recording,
registration or other fees or any similar taxes which become payable in
connection with the transactions contemplated by this Agreement that are
required or permitted to be filed on or before the Effective Time. All such
taxes will be paid by the party bearing the legal responsibility for such
payment.
SECTION 6.10 Loan of DIG Gross Proceeds to Parent. Immediately after the
closing of the transactions contemplated in the DIG Purchase Agreement and
immediately prior to the Merger Sub's payment for the Shares tendered pursuant
to the Offer, the Company shall loan to Parent, and Parent shall borrow from the
Company, the DIG Gross Proceeds to be provided to Merger Sub to pay the Offer
Consideration or the Merger Consideration (the "DIG Proceeds Loan"). The DIG
Proceeds Loan shall be pursuant to a promissory note in the form attached hereto
as Exhibit A; provided, however, that in no event shall any term of the DIG
Proceeds Loan require an increase in the Offer Consideration or the Merger
Consideration or other amendment to any material term or condition of this
Agreement or the Offer Documents.
ARTICLE VII
CONDITIONS TO THE MERGER
SECTION 7.1 Conditions to the Obligations of Each Party to Effect the
Merger. The respective obligations of each party to this Agreement to effect
the Merger shall be subject to the satisfaction at or prior to the Closing Date
of each of the following conditions:
(a) Company Stockholders' Approval. To the extent required by the
Legal Requirements, the Company Stockholders' Approval shall have been
obtained; provided that the Parent may not assert this condition if it
fails to vote all Shares held by it or the Merger Sub in favor of the
Merger and the Company may not assert this condition if it fails to comply
with Section 2.9.
(b) No Order. No Governmental Entity of competent jurisdiction shall
have enacted, issued, promulgated, enforced or entered any statute, rule,
regulation, executive order, decree, injunction or other order (whether
temporary, preliminary or permanent) which (i) is in effect and (ii) has
the effect of making the Merger illegal or otherwise prohibiting
consummation of the Merger (which illegality or prohibition would have a
material impact on the Parent and its Subsidiaries, on a combined basis
with the Company and its Subsidiaries, taken as a whole, if the Merger were
consummated notwithstanding such statute, rule, regulation, executive
order, decree, injunction or other order).
(c) Purchase of Shares. The Parent or the Merger Sub shall have
purchased Shares pursuant to the Offer, provided, however, that the Parent
and Merger Sub may not assert the failure of this condition if the Merger
Sub fails to accept for payment or pay for Shares validly tendered pursuant
to the Offer in violation of the terms of the Offer or this Agreement.
SECTION 7.2 No Other Conditions. Except as expressly provided in this
Article VII, there shall be no other conditions to the Merger, including any
financing contingency. Without limiting the generality of the foregoing, the
existence or possible existence of any post-closing adjustment to the purchase
price payable in the DIG Purchase Agreement, any Objection (as defined in the
DIG Purchase Agreement) or pendency or resolution of any dispute under Section
2.8 of the DIG Purchase Agreement or any issue pertaining to the
27
Closing Balance Sheet (as defined in the DIG Purchase Agreement) shall not in
any way impact, hinder, prevent or otherwise delay the Parent's or the Merger
Sub's obligation to consummate the transactions contemplated in this Agreement.
ARTICLE VIII
TERMINATION, AMENDMENT AND WAIVER
SECTION 8.1 Termination. This Agreement may be terminated at any time
prior to the Effective Time, by action taken or authorized by the Board of
Directors of the terminating party or parties, and except as provided below,
whether before or after the Company Stockholders' Approval is obtained:
(a) by mutual written consent duly authorized by the Boards of
Directors of the Parent and the Company; provided that, following the
acceptance for payment of the Shares pursuant to the Offer, the affirmative
vote of a majority of the Independent Directors shall be required for
termination by the Company;
(b) by either the Company or the Parent, if as a result of any of the
Offer Conditions being incapable of being satisfied (i) the Merger Sub
shall have failed to commence the Offer within 30 days following the date
of this Agreement or (ii) the Offer shall have expired without any Shares
being purchased pursuant thereto; provided, however, that the right to
terminate this Agreement pursuant to this Section 8.1(b) shall not be
available to any party whose failure to fulfill any obligation under this
Agreement or the Offer has been the cause of, or resulted in, the failure
of the Shares to have been purchased pursuant to the Offer;
(c) by either the Company or the Parent, if the Merger Sub has not
accepted payment for the Shares pursuant to the Offer, on or before the
Outside Offer Date; provided, however, that the right to terminate this
Agreement pursuant to this Section 8.1(c) shall not be available to any
party whose failure to fulfill any obligation under this Agreement or the
Offer has been the cause of, or resulted in, the failure of the Offer to
have been consummated by such date;
(d) by either the Company or the Parent, if a Governmental Entity
shall have issued an order, decree or ruling or taken any other action
(including the failure to have taken an action), in any case having the
effect of permanently restraining, enjoining or otherwise prohibiting the
Offer or the Merger, which order, decree, ruling or other action is final
and nonappealable;
(e) by the Parent prior to the acceptance for payment of the Shares
pursuant to the Offer, if a Company Triggering Event (as defined in this
Section 8.1) shall have occurred;
(f) by the Company prior to the acceptance for payment of the Shares
pursuant to the Offer, (i) if the Merger Sub or the Parent shall have
materially breached any of their respective covenants, obligations or other
agreements under this Agreement, or (ii) if the representations and
warranties of the Parent and the Merger Sub set forth in this Agreement
shall not be true and correct in all material respects (without giving
effect to any limitation as to "materiality" or "Material Adverse Effect"
set forth therein) at and as of the date of the Agreement and as of the
date of termination of this Agreement (except to the extent expressly made
as of an earlier date, in which case as of such date); provided, further
that the breach of the covenant, obligation, agreement, representation or
warranty is incapable of being or has not been cured by the Parent or the
Merger Sub prior to or on the date which is 30 calendar days immediately
following written notice by the Company to the Parent of such breach or
failure to perform;
(g) by the Parent prior to the acceptance for payment of the Shares
pursuant to the Offer, (i) if the Company shall have materially breached
any of its respective covenants, obligations or other agreements under this
Agreement, or (ii) if the representations and warranties of the Company set
forth in this Agreement shall not be true and correct in all material
respects (without giving effect to any limitation as to "materiality" or
"Material Adverse Effect" set forth therein) at and as of the date of the
Agreement and as of the date of termination of this Agreement (except to
the extent expressly made as of an earlier
28
date, in which case as of such date); provided, further that the breach of
the covenant, obligation, agreement, representation or warranty is
incapable of being or has not been cured by the Company prior to or on the
date which is 30 calendar days immediately following written notice by the
Parent to the Company of such breach or failure to perform; or
(h) by the Company, if the Company accepts an Acquisition Proposal
provided that the Company has not materially breached Section 6.1.
For the purposes of this Agreement, a "Company Triggering Event" shall be
deemed to have occurred if: (i) a Change of Company Recommendation shall have
occurred for any reason, (ii) the Company shall have failed to include in the
Preliminary Proxy, the Proxy/Information Statement or the Schedule 14D-9 the
recommendation of its Board of Directors in favor of the adoption and approval
of the Agreement and the approval of the Merger and that the stockholders of the
Company accept the Offer, tender their Shares to the Merger Sub pursuant to the
Offer, (iii) the Company Board of Directors fails to reaffirm (publicly, if so
requested) its recommendation in favor of the adoption of this Agreement and the
approval of the Merger and that the stockholders of the Company accept the
Offer, tender their Shares to the Merger Sub pursuant to the Offer within 10
calendar days after the Parent requests in writing that such recommendation be
reaffirmed, provided that Parent shall make such a request only upon a
reasonable belief that the Company Board of Director's recommendation may change
or has changed; (iv) the Company Board of Directors or any committee thereof
shall have approved or recommended any Acquisition Proposal, or (v) a tender or
exchange offer relating to the Company's securities shall have been commenced by
a Person unaffiliated with the Parent and the Company shall not have sent to its
security-holders pursuant to Rule 14e-2 promulgated under the Exchange Act,
within ten Business Days after such tender or exchange offer is first published,
sent or given, a statement disclosing that the Board of Directors of the Company
recommends rejection of such tender or exchange offer.
SECTION 8.2 Notice of Termination; Effect of Termination. Any termination
of this Agreement under Section 8.1 above will be effective immediately upon the
delivery of a written notice of the terminating party to the other party hereto.
In the event of the termination of this Agreement as provided in Section 8.1,
this Agreement shall be of no further force or effect, except (i) as set forth
in Section 6.2(a), this Section 8.2, Section 8.3 and Article IX, each of which
shall survive the termination of this Agreement and (ii) nothing herein shall
relieve any party from liability for any willful breach of this Agreement. No
termination of this Agreement shall affect the obligations of the parties
contained in the Confidentiality Agreement, all of which obligations shall
survive termination of this Agreement in accordance with their terms.
SECTION 8.3 Fees and Expenses.
(a) General. Except as set forth in this Section 8.3, all fees and
expenses incurred in connection with this Agreement and the transactions
contemplated hereby shall be paid by the party incurring such expenses whether
or not the Merger is consummated; provided, however, that the Parent and the
Company shall share equally any SEC filing fees and the filing fees for the
Notification and Report Forms filed with the FTC and DOJ under the HSR Act and
Joint Voluntary Notice with CFIUS under the Defense Production Act, and
premerger notification and reports forms under similar applicable laws of other
jurisdictions, in each case pursuant to Section 6.4(a).
(b) Company Termination Fee.
(i) Payment by the Company. In the event that this Agreement is terminated
(1) by the Parent or the Company pursuant to Sections 8.1(c), the
Company shall pay the Parent a fee equal to US Thirty Million Dollars
($30,000,000) in immediately available funds (the "Company Termination
Fee"); provided, that: (A) such payment shall be made only if (I) the Offer
was commenced, (II) all Offer Conditions other than the Minimum Condition
were satisfied or waived upon expiration of the term of the Offer unless
the failure to satisfy the Offer Conditions other than the Minimum
Condition is the result of the Company's intentional failure to fulfill any
obligation under the Agreement, (III) prior to the expiration of the Offer,
there was public disclosure of an Acquisition Proposal with respect to the
Company, which Acquisition Proposal shall not have been withdrawn,
29
terminated or otherwise abandoned prior to the termination of this
Agreement and (IV) within 12 months following the termination of this
Agreement a Superior Offer is consummated; and (B) such payment shall be
made promptly, but in no event later than five (5) Business Days after the
consummation of such Superior Offer;
(2) by the Parent pursuant to Section 8.1(e), the Company shall
promptly, but in no event later than five Business Days after the date of
such termination, pay the Parent the Company Termination Fee; or
(3) by the Company pursuant to Section 8.1(h), the Company shall, as a
condition precedent to such termination, pay the Parent the Company
Termination Fee.
(ii) Expenses. In the event that (A) this Agreement is terminated by the
Parent or the Company pursuant to Section 8.1 (c), (B) the Offer was commenced,
(C) the Minimum Condition was not satisfied upon expiration of the term of the
Offer, (D) prior to the expiration of the Offer there was public disclosure of
an Acquisition Proposal with respect to the Company, which Acquisition Proposal
shall not have been withdrawn, terminated or otherwise abandoned prior to the
termination of this Agreement, (E) within 12 months following the termination of
this Agreement, a Superior Proposal is consummated and (F) the Termination Fee
is not otherwise payable pursuant to Section 8.3(b)(i), then the Company shall
pay the Parent promptly following written request therefor an amount equal to
the Parent's and CACI International Inc's documented out-of-pocket expenses
(including attorneys', accountants' and financial advisors' fees and any fees
incurred by the Parent in connection with the transactions contemplated by this
Agreement including the filing of the Schedule TO or the Proxy/Information
Statement with the SEC and the filing of the (1) Notification and Report Forms
with the FTC and DOJ under the HSR Act and the Defense Production Act; (2) the
premerger notification and reports forms required under the competition laws of
Germany; and (3) the negotiation of the DIG Purchase Agreement) up to a maximum
amount of US Five Million Dollars ($5,000,000).
(iii) Interest and Costs; Other Remedies. The Company acknowledges that
the agreements contained in this Section 8.3(b) are an integral part of the
transactions contemplated by this Agreement, and that, without these agreements,
the Parent would not enter into this Agreement; accordingly, if the Company
fails to pay in a timely manner the amounts due pursuant to this Section 8.3(b),
and, in order to obtain such payment, the Parent makes a claim that results in a
final judgment against the Company for the amounts set forth in this Section
8.3(b), the Company shall pay to the Parent its reasonable costs and expenses
(including reasonable attorneys' fees and expenses) in connection with such
suit, together with interest on the amounts set forth in this Section 8.3(b) at
the base rate of Citibank N.A. in effect on the date such payment was required
to be made plus 2%.
(iv) Liquidated Damages. Parent, Merger Sub and the Company acknowledge
and agree that payment of the fees and reimbursement of expenses described in
this Section 8.3(b) shall be liquidated damages in lieu of actual damages except
in the event of willful breach and that such amounts are reasonable and not a
penalty.
SECTION 8.4 Amendment. Subject to applicable Legal Requirements, this
Agreement may be amended by the parties hereto, by action taken or authorized by
their respective Boards of Directors, at any time before or after the Company
Stockholders' Approval is obtained, provided, after any such approval, no
amendment shall be made which by law or in accordance with the rules of any
relevant stock exchange requires further approval by such stockholders without
such further stockholder approval. This Agreement may not be amended except by
execution of an instrument in writing signed on behalf of each of the Parent,
the Merger Sub and the Company.
SECTION 8.5 Extension; Waiver. At any time prior to the Effective Time
either party hereto, by action taken or authorized by its Board of Directors,
may, to the extent legally allowed: (i) extend the time for the performance of
any of the obligations or other acts of the other parties hereto, (ii) waive any
inaccuracies in the representations and warranties made to such party contained
herein or in any document delivered pursuant hereto, and (iii) waive compliance
with any of the agreements or conditions for the benefit of such party
30
contained herein. Any agreement on the part of a party hereto to any such
extension or waiver shall be valid only if set forth in an instrument in writing
signed on behalf of such party. Delay in exercising any right under this
Agreement shall not constitute a waiver of such right.
ARTICLE IX
GENERAL PROVISIONS
SECTION 9.1 Non-Survival of Representations and Warranties. The
representations and warranties of the Company, the Parent and the Merger Sub
contained in this Agreement, or any instrument delivered pursuant to this
Agreement, shall terminate at the Effective Time, and only the covenants that by
their terms survive the Effective Time and this Article IX shall survive the
Effective Time.
SECTION 9.2 Notices. All notices and other communications hereunder shall
be in writing and shall be deemed duly given (i) on the date of delivery if
delivered personally, (ii) on the date of confirmation of receipt (or, the first
Business Day following such receipt if the date is not a Business Day) of
transmission by telecopy or telefacsimile, or (iii) on the date of confirmation
of receipt (or, the first Business Day following such receipt if the date is not
a Business Day) if delivered by a nationally recognized courier service. All
notices hereunder shall be delivered as set forth below, or pursuant to such
other instructions as may be designated in writing by the party to receive such
notice:
(a) if to the Parent or the Merger Sub, to:
CGI Group, Inc.
0000 Xxxxxxxxxx Xxxxxx West, 0xx Xxxxx
Xxxxxxxx, Xxxxxx X0X0X0
Attention: Xxxxx Xxxxx
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
with copies to:
XxXxxxxx Xxxxxxxx LLP
Le Windsor, 0000 Xxxx Xxxxxx
Xxxxxxxx, Xxxxxx
Xxxxxx X0X 0X0
Attention: Xxxx-Xxxx Xxxxxxxx, Esquire
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
and
Holland & Knight LLP
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Esquire
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
(b) if to the Company, to:
American Management Systems, Incorporated
0000 Xxxxxx Xxxx, 00xx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
31
with copies to:
Xxxxxx & Xxxxxx LLP
0000 Xxxxxx Xxxxxxxxx, Xxxxx 000
XxXxxx, Xxxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxx, Esquire
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
SECTION 9.3 Interpretation; Certain Definitions.
(a) When a reference is made in this Agreement to Exhibits, such reference
shall be to an Exhibit to this Agreement unless otherwise indicated. When a
reference is made in this Agreement to Sections, such reference shall be to a
section of this Agreement unless otherwise indicated. For purposes of this
Agreement, the words "include," "includes" and "including," when used herein,
shall be deemed in each case to be followed by the words "without limitation."
The table of contents and headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement. When reference is made herein to "the business of" an entity,
such reference shall be deemed to include the business of all such entity and
its Subsidiaries, taken as a whole.
(b) For purposes of this Agreement, the term "Knowledge of the Company"
means, with respect to any matter in question, the actual, current knowledge of
such matter of any of the following employees of the Company: Xxxxxx X. Xxxxxxx,
Chairman and Chief Executive Officer; Xxxxx X. Xxxxxxxx, Executive Vice
President, General Counsel, Chief Risk Officer and Secretary; Xxxxx Xxxxxxxxx,
Executive Vice President and Chief Human Resources Officer; Wick Xxxxxxx, Senior
Vice President and Chief Technology Officer; Xxxxx Xxxxx, Executive Vice
President, Public Sector; Xxxxx X. Xxxxxx, Executive Vice President and Chief
Financial Officer; Xxxxx Xxxxxxx, Senior Vice President of Corporate
Development; and Xxxxxx Xxxxxx, Executive Vice President, Commercial Sector; and
Xxxxxxxx Xxxxxxxx, Senior Vice President, Global Communications and Marketing.
(c) For purposes of this Agreement, the term "Material Adverse Effect",
when used in connection with an entity, means any fact, change, event,
violation, inaccuracy, circumstance or effect (any such item, an "Effect"),
individually or when taken together with all other Effects that have occurred
prior to the date of determination of the occurrence of the Material Adverse
Effect, that is or would be reasonably expected to (i) be materially adverse to
the business, assets (including intangible assets), liabilities, financial
condition, prospects or results of operations of such entity taken as a whole
with its Subsidiaries or (ii) prevent or materially alter or delay the
consummation of the transactions contemplated by this Agreement, including the
Offer, in accordance with the terms hereof and applicable Legal Requirements.
Notwithstanding the foregoing, the term "Material Adverse Effect" when applied
to the Company shall not include any Effect (a) relating to or resulting from
economic or geopolitical conditions in general or changes in legal or regulatory
conditions except to the extent that it has a disproportionate effect on the
Company relative to other business entities engaged in the same line or lines of
business as the Company (b) resulting from the execution or announcement of this
Agreement, (c) resulting from any actions taken by Parent, Merger Sub, CACI
International Inc., CACI, INC. -- FEDERAL, Dagger Acquisition Corporation or any
of their respective Affiliates after the date hereof and prior to the Closing
Date that relate to, or affect, the business of the Company and its
Subsidiaries, (d) resulting from compliance by the Company and its Subsidiaries
with the terms of this Agreement or (e) resulting from any liability, cost or
expense associated with, relating to or arising from the transactions
contemplated by this Agreement or the DIG Purchase Agreement (including legal,
accounting and financial advisory fees and disbursements).
(d) For purposes of this Agreement, the term "Person" shall mean any
individual, corporation (including any non-profit corporation), general
partnership, limited partnership, limited liability partnership, joint venture,
estate, trust, company (including any limited liability company or joint stock
company), firm or other enterprise, association, organization, entity or
Governmental Entity.
32
(e) For purposes of this Agreement, the term "Business Day" means any day
on which banks are not required or authorized to close in Virginia or Quebec.
(f) For the purposes of this Agreement, the term "Company Material
Contract" means
(i) any "material contracts" (as such term is defined in Item
601(b)(10) of Regulation S-K of the SEC) with respect to the Company and
its Subsidiaries;
(ii) any Contract containing any covenant: (A) limiting the right of
the Company or its Subsidiaries to engage in any material line of business,
make use of any material Intellectual Property (via License Agreement or
otherwise) or compete with any Person in any material line of business; (B)
granting any exclusive distribution or supply rights; or (C) otherwise
having an adverse effect on the right of the Company and its Subsidiaries
to sell, distribute or manufacture any material products or services or to
purchase or otherwise obtain any material software, components, parts or
subassemblies; and
(iii) any Contract, or group of Contracts with a Person (or group of
affiliated Persons), the termination or breach of which would be reasonably
expected to have a Material Adverse Effect on any material division or
business unit or other material operating group of product or service
offerings of the Company or otherwise reasonably expected to have a
Material Adverse Effect on the Company.
(g) For purposes of this Agreement the term "Contract" means any written,
oral or other agreement, contract, subcontract, settlement agreement, lease,
binding understanding, instrument, note, option, warranty, purchase order,
license, sublicense, insurance policy, benefit plan or legally binding
commitment or undertaking of any nature, as in effect as of the date hereof or
as may hereinafter be in effect.
(h) For the purposes of this Agreement, the term "Tax" (including "Taxes")
means (A) all federal, state, local, foreign and other net income, gross income,
gross receipts, sales, use, ad valorem, transfer, franchise, profits, license,
lease, service, service use, withholding, payroll, employment, excise,
severance, stamp, occupation, premium, property, windfall profits, customs,
duties and other taxes, fees, assessments or charges of any kind whatsoever,
together with any interest and any penalties, additions to tax or additional
amounts with respect thereto; (B) any liability for payment of amounts described
in clause (A) whether as a result of transferee liability, of being a member of
an affiliated, consolidated, combined or unitary group for any period, or
otherwise through operation of law; and (C) any liability for the payment of
amounts described in clauses (A) or (B) as a result of any tax sharing, tax
indemnity or tax allocation agreement or any other express or implied agreement
to indemnify any other person.
SECTION 9.4 Counterparts. This Agreement may be executed in two or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each of
the parties and delivered to the other party, it being understood that all
parties need not sign the same counterpart.
SECTION 9.5 Entire Agreement; Third-Party Beneficiaries. This Agreement
and the documents and instruments and other agreements among the parties hereto
as contemplated by or referred to herein, including the Company Disclosure
Schedule and the Parent Disclosure Schedule (i) constitute the entire agreement
among the parties with respect to the subject matter hereof and supersede all
prior agreements and understandings, both written and oral, among the parties
with respect to the subject matter hereof, it being understood that the
Confidentiality Agreement shall continue in full force and effect until the
Closing and shall survive any termination of this Agreement and (ii) are not
intended to confer upon any other Person any rights or remedies hereunder,
except as specifically provided, following the Effective Time, in Section 6.8.
Without limiting the foregoing, it is expressly understood and agreed that the
provisions of Section 6.7 are statements of intent and no Continuing Employee
shall have any rights or remedies, including rights of enforcement, with respect
thereto and no Continuing Employee or other Person is or is intended to be a
third-party beneficiary thereof.
SECTION 9.6 Severability. In the event that any provision of this
Agreement or the application thereof, becomes or is declared by a court of
competent jurisdiction to be illegal, void or unenforceable, the remainder of
this Agreement will continue in full force and effect and the application of
such provision to
33
other Persons or circumstances will be interpreted so as reasonably to effect
the intent of the parties hereto. The parties further agree to replace such void
or unenforceable provision of this Agreement with a valid and enforceable
provision that will achieve, to the greatest extent possible, the economic,
business and other purposes of such void or unenforceable provision.
SECTION 9.7 Other Remedies; Specific Performance.
(a) Other Remedies. Except as otherwise provided herein, any and all
remedies herein expressly conferred upon a party will be deemed cumulative with
and not exclusive of any other remedy conferred hereby, or by law or equity upon
such party, and the exercise by a party of any one remedy will not preclude the
exercise of any other remedy. The parties hereto agree that irreparable damage
would occur in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise breached.
(b) Specific Performance. It is accordingly agreed that the parties shall
be entitled to seek an injunction or injunctions to prevent breaches of this
Agreement and to enforce specifically the terms and provisions hereof in any
court of the United States or any state having jurisdiction, this being in
addition to any other remedy to which they are entitled at law or in equity.
SECTION 9.8 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of
Delaware, regardless of the laws that
might otherwise govern under applicable principles of conflicts of law thereof.
SECTION 9.9 Rules of Construction. The parties hereto agree that they
have been represented by counsel during the negotiation and execution of this
Agreement and, therefore, waive the application of any law, regulation, holding
or rule of construction providing that ambiguities in an agreement or other
document will be construed against the party drafting such agreement or
document.
SECTION 9.10 Assignment. No party may assign either this Agreement or any
of its rights, interests, or obligations hereunder without the prior written
approval of the other parties. Any purported assignment in violation of this
Section 9.10 shall be void. Subject to the preceding sentence, this Agreement
shall be binding upon and shall inure to the benefit of the parties hereto and
their respective successors and permitted assigns. Notwithstanding the
foregoing, the Merger Sub reserves the right to transfer or assign, in whole or
in part, to the Parent or to any affiliate of the Parent, the right to purchase
Shares tendered pursuant to the Offer, but any such transfer or assignment will
not relieve the Merger Sub of its obligations under the Offer and will in no way
prejudice the rights of tendering stockholders to receive payment for Shares
validly tendered and accepted for payment pursuant to the Offer.
SECTION 9.11 Consent to Jurisdiction; Waiver of Trial by Jury.
(a) Each of the parties hereto hereby irrevocably and unconditionally
submits, for itself and its property, to the exclusive jurisdiction of any
Delaware state court, or Federal court of the United States of America, sitting
in
Delaware, and any appellate court from any thereof, in any action or
proceeding arising out of or relating to this Agreement or the agreements
delivered in connection herewith or the transactions contemplated hereby or
thereby or for recognition or enforcement of any judgment relating thereto, and
each of the parties hereby irrevocably and unconditionally (a) agrees not to
commence any such action or proceeding except in such courts, (b) agrees that
any claim in respect of any such action or proceeding may be heard and
determined in such
Delaware state court or, to the extent permitted by Law, in
such Federal court, (c) waives, to the fullest extent it may legally and
effectively do so, any objection which it may now or hereafter have to the
laying of venue of any such action or proceeding in any such Delaware state or
Federal court, and (d) waives, to the fullest extent permitted by Law, the
defense of an inconvenient forum to the maintenance of such action or proceeding
in any such Delaware state or Federal court. Each of the parties hereto agrees
that a final judgment in any such action or proceeding shall be conclusive and
may be enforced in other jurisdictions by suit on the judgment or in any other
manner provided by Law. Each party to this Agreement irrevocably consents to
service of process in the manner provided for notices in Section 9.2. Nothing in
this Agreement shall affect the right of any party to this Agreement to serve
process in any other manner permitted by Law.
34
(b) EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE
UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND
THEREFORE IT HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING
OUT OF OR RELATING TO THIS AGREEMENT AND ANY OF THE AGREEMENTS DELIVERED IN
CONNECTION HEREWITH OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. EACH
PARTY CERTIFIES AND ACKNOWLEDGES THAT (A) 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 EITHER OF SUCH
WAIVERS, (B) IT UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF SUCH WAIVERS,
(C) IT MAKES SUCH WAIVERS VOLUNTARILY, AND (D) IT HAS BEEN INDUCED TO ENTER INTO
THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN
THIS SECTION 9.11(b).
*****
35
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized respective officers as of the date first
written above.
CGI GROUP, INC.,
a corporation organized under the laws
of the Province of Quebec
By: /s/ XXXXX XXXXX
------------------------------------
Name: Xxxxx Xxxxx
Title: Chairman of the Board and
Chief Executive Officer
CGI VIRGINIA CORPORATION,
a Delaware corporation
By: /s/ XXXXX XXXXX
------------------------------------
Name: Xxxxx Xxxxx
Title: Chairman of the Board and
Chief Executive Officer
AMERICAN MANAGEMENT SYSTEMS,
INCORPORATED,
a Delaware corporation
By: /s/ XXXXXX X. XXXXXXX
------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Chairman and Chief Executive
Officer
[SIGNATURE PAGE TO THE
AGREEMENT AND PLAN OF MERGER]
36
ANNEX A
CONDITIONS TO THE OFFER
Notwithstanding any other provision of the Offer, the Merger Sub shall not
be required to accept for payment or, subject to any applicable rules and
regulations of the SEC, including Rule 14e-1(c) promulgated under the Exchange
Act (relating to the Merger Sub's obligation to pay for or return tendered
Shares promptly after termination or withdrawal of the Offer), pay for, and may
postpone the acceptance for payment of and payment for Shares tendered, and,
except as set forth in this Agreement, terminate the Offer as to any Shares not
then paid for if (i) the Minimum Condition shall not have been satisfied at the
scheduled expiration date of the Offer, (ii) any applicable waiting period under
the HSR Act or the competition laws of Germany shall not have expired or been
terminated, (iii) the period of time for any applicable review process by the
CFIUS under the Defense Production Act shall not have expired or CFIUS shall
have taken and not withdrawn any action or made and not withdrawn any
recommendation to the President of the United Sates to block or prevent the
consummation of the Offer or the Merger; (iv) the sale of the Defense and
Intelligence Division has not been consummated pursuant to the terms of the DIG
Purchase Agreement, or the DIG Gross Proceeds have not been loaned to Parent by
the Company to the extent required pursuant to Section 6.10 of this Agreement
(provided, however, that this subsection (iv) shall not serve as a condition to
the acceptance of Shares tendered for payment if all conditions to the sale of
the Defense and Intelligence Division have been satisfied or waived but for the
closing of the Offer and the purchaser of the Defense and Intelligence Division
is ready, willing and able to close upon the Merger Sub's acceptance of the
Shares tendered for payment, and provided, further, that this subsection (iv)
shall be inapplicable if Parent fails to fulfill its obligations under Section
6.10 of this Agreement), or (v) immediately prior to the expiration of the
Offer, any of the following conditions shall exist:
(a) there shall have been instituted by any Governmental Entity or any
other Person and be pending, or threatened in writing by any Governmental
Entity, any suit, action or proceeding against the Parent, the Merger Sub
or the Company challenging or seeking (i) to make illegal, restrain or
prohibit the making of the Offer, the acceptance for payment of, or payment
for, any Shares by the Parent or the Merger Sub, or the consummation of the
Merger transaction, (ii) to prohibit or limit materially the ownership or
operation by the Company, the Parent, the Merger Sub or any of their
affiliates of all or any material portion of the business or assets of the
Company, the Parent or any of their affiliates, taken as a whole, or compel
the Company, the Parent or any of their affiliates to divest a material
portion of the business or assets of the Company, the Parent or any of
their affiliates, taken as a whole, (iii) to impose or confirm limitations
on the ability of the Parent, the Merger Sub or any other affiliate of the
Parent to exercise full rights of ownership of any Shares, including,
without limitation, the right to vote any Shares acquired by the Merger Sub
pursuant to the Offer or otherwise on all matters properly presented to the
Company's stockholders, including, without limitation, the approval and
adoption of this Agreement and the transactions contemplated by this
Agreement, or (iv) to require divestiture by the Parent or the Merger Sub
of any Shares; provided, that to the extent a Governmental Entity is not a
party to the suit, action or proceeding, the Parent reasonably believes,
based on the advice of counsel in such proceeding, that such suit, action
or proceeding has a reasonable likelihood of success;
(b) there shall have been entered, enforced, enacted or deemed
applicable to (A) the Parent, the Merger Sub or the Company or (B) the
Agreement, the Offer or the Merger, in any case, any statute, rule,
regulation, legislation, judgment, order, injunction or decree that is
reasonably likely to, directly or indirectly, result in any of the
consequences referred to in clauses (i) through (iv) of paragraph(a) above.
(c) the representations and warranties of the Company set forth in the
Agreement shall not be true and correct in all material respects (other
than representations and warranties qualified by materiality or Material
Adverse Effect, which shall be true in all respects) at and as of the date
of this Agreement and the expiration of the Offer (except to the extent
that such representations and warranties speak as of a specific date, in
which case as of such specific date);
A-1
(d) the Company shall have breached any covenant, obligation or other
agreement to be performed or complied by it under the Agreement where such
breach materially hinders Merger Sub's ability to consummate the Offer or
would reasonably be expected to materially interfere with Merger Sub's
ability to assume the control and provide for the orderly transition of
control of the business of the Company upon consummation of the Merger;
(e) the Agreement shall have been terminated in accordance with its
terms;
(f) any of the following shall have occurred since the date of this
Agreement and be continuing such that the consummation of the Offer and the
other transactions contemplated by this Agreement are impracticable: (1)
any general suspension of trading in, or limitation on prices for,
securities on the Toronto Stock Exchange, the New York Stock Exchange or
the NASDAQ, (2) a declaration of a banking moratorium or any suspension of
payments in respect of banks in the United States or Canada (whether or not
mandatory), (3) a material adverse change in or material disruption of
conditions in the market for syndicated bank credit facilities that would
materially impair the ability to syndicate loans by banks or other
financial institutions, including any limitation (whether or not mandatory)
by any Governmental Entity on the extension of credit generally by banks or
other financial institutions in the United States or Canada, or (4) a
commencement or, if already commenced, a material worsening, of a war,
armed hostilities or other national or international calamity directly or
indirectly involving the United States or Canada or any terrorist
activities which materially and adversely affects the Parent or the Company
or CACI International, Inc. and DIG taken as a whole or (5) changes in
legal or regulatory conditions to the extent such changes have a material,
adverse and disproportionate impact on CACI International, Inc. relative to
other business entities engaged in substantially the same line or lines of
business;
(g) an Effect has occurred since the date of this Agreement that has
had or would reasonably be expected to have a Material Adverse Effect on
(i) the Company and its Subsidiaries, taken as a whole, or (ii) the
business of the Company and its Subsidiaries, taken as a whole, excluding
the Defense and Intelligence Division but including the proceeds of the
sale of the Defense and Intelligence Division pursuant to the DIG Purchase
Agreement;
(h) a Company Triggering Event shall have occurred; provided, however,
that Parent and Merger Sub shall be deemed to have waived this condition if
not asserted within five (5) Business Days following the date of such
Company Triggering Event; or
(i) the Merger Sub and the Company shall have agreed in writing that
the Merger Sub shall terminate the Offer or postpone the acceptance for
payment of or payment for Shares thereunder.
The foregoing conditions are for the benefit of the Merger Sub and the
Parent and may be asserted by the Merger Sub or the Parent unless the
circumstances giving rise to any such condition resulted from or arose out of or
breach of the Agreement by the Parent or the Merger Sub, or may be waived by the
Merger Sub or the Parent in whole or in part at any time and from time to time
in their sole and absolute discretion.
The failure by the Parent or the Merger Sub at any time to exercise any of
the foregoing rights shall not be deemed a waiver of any such right; the waiver
of any such right with respect to particular facts and other circumstances shall
not be deemed a waiver with respect to any other facts and circumstances; and
each such right shall be deemed an ongoing right that may be asserted at any
time and from time to time.
A-2
INDEX OF DEFINED TERMS
PAGE
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1934 Act.................................................... 12
1934 Act Rules.............................................. 12
Acquisition Proposal........................................ 31
Action of Divestiture....................................... 35
Agreement................................................... 1
Annex A..................................................... 2
Business Day................................................ 46
Certificate................................................. 9
Certificate of Merger....................................... 7
Certificates................................................ 9
CFIUS....................................................... 33
Change of Company Recommendation............................ 30
Closing..................................................... 7
Closing Date................................................ 7
Code........................................................ 10
Company..................................................... 1
Company Balance Sheet....................................... 18
Company Charter Documents................................... 14
Company Common Stock........................................ 1
Company Disclosure Schedule................................. 13
Company Financials.......................................... 18
Company Material Contract................................... 47
Company Options............................................. 15
Company Plan................................................ 26
Company Preferred Stock..................................... 15
Company Purchase Plan....................................... 8
Company SEC Reports......................................... 18
Company Stock Option Plans.................................. 8
Company Stockholders' Approval.............................. 16
Company Stockholders' Meeting............................... 11
Company Termination Fee..................................... 42
Company Triggering Event.................................... 41
Confidentiality Agreement................................... 32
Contract.................................................... 47
Costs....................................................... 38
Covered Parties............................................. 38
Defense and Intelligence Division........................... 35
Defense Production Act...................................... 17
Deferred Stock Units........................................ 36
DGCL........................................................ 1
DIG Gross Proceeds.......................................... 24
DIG Proceeds Loan........................................... 38
DIG Purchase Agreement...................................... 14
PAGE
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Dissenting Shares........................................... 11
DOJ......................................................... 33
Effect...................................................... 46
Effective Time.............................................. 7
Exchange Act................................................ 12
FTC......................................................... 33
GAAP........................................................ 18
Governmental Entity......................................... 17
HSR Act..................................................... 17
Include..................................................... 45
Indebtedness................................................ 27
Independent Directors....................................... 6
Knowledge of the Company.................................... 46
Legal Requirements.......................................... 16
Liens....................................................... 15
Material Adverse Effect..................................... 48
Merger...................................................... 7
Merger Consideration........................................ 8
Merger Sub.................................................. 1
Minimum Condition........................................... 2
NASDAQ...................................................... 3
Necessary Consents.......................................... 17
Offer....................................................... 1
Offer Conditions............................................ 2
Offer Consideration......................................... 1
Offer Documents............................................. 3
Option Consideration........................................ 36
Outside Offer Date.......................................... 3
Parent...................................................... 1
Parent Charter Documents.................................... 22
Parent Disclosure Schedule.................................. 21
Paying Agent................................................ 9
Person...................................................... 46
Proxy/Information Statement................................. 12
Public Filing............................................... 13
Representatives............................................. 28
Restricted Stock............................................ 36
Rights...................................................... 15
Rights Agreement............................................ 15
Schedule 14D-9.............................................. 4
Schedule TO................................................. 3
SEC......................................................... 3
Securities Act.............................................. 18
Shares...................................................... 1
PAGE
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Significant Subsidiary...................................... 14
Stockholder Tender and Voting Agreements.................... 1
Subsidiary.................................................. 14
Subsidiary Charter Documents................................ 15
Superior Offer.............................................. 31
Superior Offer Notice....................................... 29
Surviving Corporation....................................... 7
Tax......................................................... 47
Taxes....................................................... 47
Voting Debt................................................. 15
